776 So. 2d 280 | Fla. Dist. Ct. App. | 2000
Dissenting Opinion
(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,
JORGENSON, LEVY, GERSTEN and GREEN, JJ., concur.
Lead Opinion
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
(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
The motion for rehearing is denied.
ON MOTION FOR REHEARING EN BANC
The motion for rehearing en banc is denied.
