Griffiths v. State

Oct 18, 2000
No. 3D00-2493
Versions:776 So. 2d 280
2000 Fla. App. LEXIS 13532
2000 WL 1531838

Dissenting Opinion

SCHWARTZ, Chief Judge,

(dissenting).

For the reasons expressed in the special concurrence to the panel decision and the dissent in Elharda v. State, 775 So.2d 321 (Fla. 3d DCA 2000), review denied, — So.2d - (Fla. Case no. SC00-1429, *281January 8, 2001), I would adopt those opinions as the law of this district, overrule Elharda, and affirm the order under review.

JORGENSON, LEVY, GERSTEN and GREEN, JJ., concur.





Lead Opinion

PER CURIAM.

We reverse the order denying defendant’s motion for post-conviction relief. The transcript of the plea colloquy unequivocally reflects that upon being asked whether he was a United States citizen defendant answered in the affirmative. Thereafter the trial court did not inform defendant of the deportation consequences of his plea as required in Florida Rule of Criminal Procedure 3.172(c)(8). Pursuant to Elharda v. State, 775 So.2d 321 (Fla. 3d DCA 2000), defendant shall be allowed to withdraw his plea and proceed to trial on the merits.

Reversed and remanded.

SHEVIN and FLETCHER, JJ., concur.





Concurrence Opinion

SCHWARTZ, Chief Judge

(specially concurring).

I agree with Judge Levy’s dissent in Elharda v. State, 775 So.2d 321 (Fla. 3d DCA 2000), State v. Rajaee, 745 So.2d 469 (Fla. 5th DCA 1999), review denied, 763 So.2d 1044 (Fla.2000), and the statement in Johnson v. State, 760 So.2d 992 (Fla. 2d DCA 2000), all to the effect that,

[i]f the trial court had warned him of the risk of deportation when he believed he was a United States citizen, there is no reason to think that the warning would have altered his decision. Any prejudice he would have sustained in that circumstance would relate to his own lack of knowledge about his own citizenship, and not to a failure of the trial court to give him correct legal information.

Johnson, 760 So.2d at 993. See also St. Preux v. State, 769 So.2d 1116 n. 1 (Fla. 2d DCA 2000). Nevertheless, because I am bound by the contrary opinion of the majority in Elharda, I reluctantly concur in reversal.





Rehearing

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is denied.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.

ON MOTION FOR REHEARING EN BANC

The motion for rehearing en banc is denied.

COPE, GODERICH, FLETCHER, SHEVIN, SORONDO and RAMIREZ, JJ., concur.