Marriott v. StateMarriott v. State
PER CURIAM.
We sua sponte consider this appeal en banc for purposes of receding from our position in Marriott v. State, 582 So.2d 728 (Fla. 4th DCA 1991) (“Marriott I“), which we now deem to be erroneous.
Michael Donovan Marriott brought this as a full appeal from an order entered pursuant to a
On remand from Marriott I, an assistant public defender represented appellant at the hearing before Judge Greene. Following the hearing, Judge Greene denied appellant‘s
After the evidentiary hearing the trial court found, and the record supports, that appellant‘s attorney did not apprise appellant of the possible deportation consequences. Appellant argues that the trial court violated this court‘s mandate in Marriott I when it ruled that defense counsel‘s failure to advise him regarding immigration consequences of his plea did not constitute ineffective assistance of counsel. We recognize that in Marriott I, relying on Dugart v. State, 578 So.2d 789 (Fla. 4th DCA 1991), we wrote:
It is true that the record does not provide a basis for this court to determine with absolute certainty that the trial court knew that the defendant was an alien and still failed to inform him of possible deportation. However, even assuming it did not know, appellant has made an adequate case of ineffective assistance of counsel for failure to advise him as to the possibility of deportation.
582 So.2d at 729. In Dugart, however, the defense attorney erroneously believed and advised the defendant that he would be subject to deportation only after a second felony conviction. The defendant relied on this affirmative misinformation when he entered his plea. At bar, defense counsel omitted entirely any discussion of possible deportation.
In light of Fundora v. State, 513 So.2d 122 (Fla. 1987) (immigration consequences are collateral to a plea and thus, ineffective assistance of counsel cannot be based on immigration consequences), as well as our holdings in Dugart and Marriott I, we deem it appropriate to revisit this issue in the context of
We do, however, find merit in appellant‘s second point on appeal, that the trial court‘s failure to advise him regarding immigration consequences sufficiently prejudiced him so that he should be permitted to withdraw his plea. We conclude that
Furthermore, it is undisputed that appellant‘s entry of a nolo contendere plea subjected him to the possibility of deportation. We hold that the threat of deportation was sufficient for a showing of prejudice as required under Simmons v. State, 489 So.2d 43 (Fla. 4th DCA 1986). Appellant‘s entire family resides in the United States; he has no relatives remaining in his native Jamaica. He made it known that he would not have entered the nolo contendere plea had he known of these consequences. In Marriott I, we reversed and remanded for a hearing as to “whether the plea was voluntarily made with an understanding of the possible penalties and the possibility of deportation.” 582 So.2d at 730. We found that the plea colloquy demonstrated that the trial court failed to inform appellant that his plea might subject him to deportation. Id. at 729. We also held that “[a] defendant should be allowed to withdraw a plea which is based on a misunderstanding or misapprehension of the facts considered by the defendant making the plea. Forbert v. State, 437 So.2d 1079 (Fla. 1983).” 582 So.2d at 729. Due process requires a court accepting a guilty or nolo contendere plea to “carefully inquire into the defendant‘s
Accordingly, we reverse and remand with directions to the trial court to vacate appellant‘s conviction and sentence and permit appellant to withdraw his plea and proceed to trial.
GLICKSTEIN, C.J., and DOWNEY, ANSTEAD, HERSEY, DELL, GUNTHER, STONE, WARNER, POLEN and FARMER, JJ., concur.
LETTS, J., dissents without opinion.
GARRETT, J., recused.