Peart v. StatePeart v. State
SHEVIN, Judge.
These appeals have been consolidated for en banc and rehearing en banc consideration because they raise the common issue of whether coram nobis or post-conviction relief is available to attack a conviction based on the trial court‘s failure to apprise defendants of the deportation consequences of their pleas pursuant to
These consolidated cases may be grouped into three categories: A) Defendants appeal from denials of coram nobis petitions, Peart, Jimenez, and Ross; B) State appealing from coram nobis relief granted, State v. Evans, No. 96-1205; C) Defendant appeals from a denial of а timely motion for post-conviction relief, Prieto v. State, Nos. 96-2432; 96-961.
I. Factual Background
In 1993, Roan Peart pled guilty to aggravated assault, armed robbery and burglary of a conveyance. The court withheld adjudication, credited Peart with seven months served in jail, and placed Peart on two-years probation, which Peart successfully completed.
In 1997, Peart filed a petition for writ of error coram nobis asserting that his plea was involuntarily entered because he was not advised of the deportation consequences of his plea. Peart asserted that as a result of his guilty plea, the United States Immigration and Naturalization Service [“INS“] had instituted deportation proceedings against him. Peart asserted that had he been advised he would not have accepted thе plea and would have gone to trial. The trial court denied Peart‘s petition without an evidentiary hearing. Peart appeals.
In 1990, Jose Jimenez pled nolo contendere to possession of cocaine, in exchange for a withhold of adjudication and two days credit fоr time served. In 1995, INS notified Jimenez, a citizen of the Dominican Republic, that it was revoking his legal permanent resident status and initiating deportation proceedings against him. Like Peart, Jimenez also asserted, by way of petition for writ of coram nobis, that he was not advised of the deportation consequences of his plea, and that, had he known of those consequences, he would not have entered the plea. The petition was denied. Jimenez appeals.
In 1980, Victor Ross pled guilty to manufacture and/or possession of cannabis with intent to sell, manufacturе, or deliver. Ross pled and his adjudication was withheld; he was sentenced to eighteen months probation. Ross asserts that the trial court told him that there should be no deportation consequences as a result of the plea because a “withhold” was not a conviction.1 Ross was а citizen of Grenada and a legal United States resident alien. In 1996, Ross applied for naturalization. In response to the application, INS informed Ross that he would be deported because of his 1980 plea. Ross filed a motion to withdraw his plea and set aside the sentence оr, alternatively, for coram nobis relief. Ross asserted that he should be allowed to set his plea aside because the trial judge misadvised him of his deportation consequences; had he been correctly advised he would not have entered the plea. Ross appeals the denial of his motion.
Andrew Moses Evans pled nolo contendere to the charge of carrying a concealed weapon in 1990. He received credit for two days he served in jail and a withhold of adjudication. Evans was a citizen of Jamaica and a legal permanent resident. In 1996, Evans filed a petition for coram nobis relief asserting that his plea was involuntary because he was not advised of the immigration consequences, and he would not have entered the plea had he known. Evans was facing deportation. The trial court granted the petition and vacated the judgment and sentence. The state appeals that order.
In 1994, Jorge Prieto pled guilty to attempted murder. However, pursuant to a plea agreement, Prieto received a twenty-year sentence and agreed to testify truthfully against a codefendant. Additiоnally, the state agreed to nolle prosequi a capital murder charge against Prieto. Under the plea agreement, if the state did not feel Prieto testified satisfactorily, the state could seek an increased sentence of life imprisonment on the attempted murder count and could refile the capital murder charge seeking the death penalty. Prieto filed a motion for post-conviction relief pursuant to
II. Appropriate Relief
is not a United States citizen, the plea may subject him or her to deportation pursuant to thе laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.
This provision became effective January 1, 1989. See In Re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988). Prior to this date, there was no affirmative duty to advise a defendant of deportation consequences. See State v. Ginebra, 511 So.2d 960 (Fla.1987). A criminal defendant may seek to set aside a plea for failure of the court to inform him of the deportation consequences of the plea if the defendant can show prejudice.
The pivotal issue beforе us is whether a petition for writ of error coram nobis is the proper vehicle for challenging a conviction based on the court‘s failure to follow
the function of a writ of error coram nobis is to correct fundamental errors of fact, and that the writ is not available to correct errors of law. In order to be legally sufficient, the petition for writ of error coram nobis must, therefore, allege specific facts of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment and sentence attacked; the petition must also assert the evidence upon which the alleged facts can be proved and the source of such evidence. The facts upon which the petition is based must have been unknown to the trial court, the defendant, and defense counsel at the time of trial; and it must appear that the defendant and his/her counsel could not have known such facts by the use of due diligence.
Malcolm v. State, 605 So.2d 945, 947 (Fla. 3d DCA 1992)(emphasis added); Hallman v. State, 371 So.2d 482 (Fla.1979). The petitioner must have no other remedy available. Russ v. State, 95 So.2d 594 (Fla.1957).
In these cases, the defendants do not seek coram nobis relief asserting errors of fact or newly discovered evidence, but rather on the basis of an error of law, to wit, an irregularity in their plea colloquy rendering their pleas involuntary. State v. Garcia, 571 So.2d 38 (Fla. 3d DCA 1990). Moreover, these petitions for relief do not assert claims “of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment.” Hallman, 371 So.2d at 485. Coram nobis relief, therefore, is not the appropriate remedy. The proper remedy for the defendants to pursue is, instead, a motion for post-conviction relief pursuant to
We are unpersuaded by the defendants’ argument that the requеst for relief is timely if brought when the defendants learn of impending deportation proceedings. These claims are not founded on newly discovered evidence and, therefore, do not fall under the
We note that post-conviсtion relief is available for defendants who are placed on probation, such as Peart and Ross. State v. Bolyea, 520 So.2d 562 (Fla.1988)(court-ordered probation constitutes custody for 3.850 purposes). Hence, as to defendants Peart and Ross, the availability of 3.850 relief renders coram nobis an improper remedy because defendants had other relief available.
Because defendants Jimenez and Evans were never in custody aftеr conviction, but were released based on “time served”
We recognize that as to non-custodial defendants this may be a harsh and unfair result. However, there is no present mechanism that provides relief under these circumstances, and it is beyond this Court‘s authority to alter the procedural rules to provide this rеlief. We believe that persons not in custody should be allowed post-conviction relief for failure of a trial court to advise them of the deportation consequences of their pleas as required by
III. Prieto‘s Rule 3.850 Motion
As a final issue, we turn to Prieto‘s appeal from the denial of his 3.850 motion. The court erred in denying the motion and in granting the state‘s motion to increase sentence. Prieto filed his motion pro se. The record demonstrates that at the hearing counsel moved to amend the motion to assert the court‘s failure to warn of deportation consequences. Leave to amend a 3.850 motion should be freely granted. Reed v. State, 640 So.2d 1094, 1098 (Fla.1994); Nava v. State, 659 So.2d 1314 (Fla. 4th DCA 1995). Therefore, we reverse the order denying Prieto‘s 3.850 motion and remand with leavе for Prieto to amend his motion.
As guidance to Prieto and others who would assert similar claims, we point out that to set aside a plea for failure to inform a defendant of immigration consequences pursuant to
a) the defendant was not advised by the court of the immigration consequences;
b) that defendant had no actual knowledge of same;3
c) that INS had instituted deportation proceedings, or defendant is at risk of deportation;
d) that defendant would not have pled had defendant known of the deportation consequences; and
e) that had defendant declined the plea offer and gone to trial, defеndant most probably would have been acquitted.
This last requirement comports with the
Requiring that the defendants establish that they most probably would have been acquitted is concordant with this court‘s conclusion that these motions must be brought within two years after judgment and sentenсe become final, as required in
Upon accepting a plea, it is very important that trial judges comply with
Based on the foregoing reasoning, we recede from Beckles, and its progeny and certify conflict with Marriott v. State, 605 So.2d 985 (Fla. 4th DCA 1992), and Wood v. State, 698 So.2d 293 (Fla. 1st DCA 1997), review granted, 705 So.2d 571 (Fla. 1998). We affirm the denial of relief in Peart, Jimenez, and Ross, reverse the order granting coram nobis in Evans, and reverse the order in Prieto denying the post-conviction relief motion with instructions to permit Prieto to amend the motion in a manner consistent with this opinion.
Conflict cеrtified; affirmed in part; reversed in part and remanded.