Florida Rule of Criminal Procedure Rule 3.172(C)(8) Interpretation

Rule 3.172(c)(8) provides: Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands: (8) that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the 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. Fla. R. Crim. P. 3.172(c)(8). In Peart v. State, 756 So. 2d 42 (Fla. 2000) the Supreme Court of Florida held that: (1) defendants not in custody should use rule 3.850 to raise rule 3.172(c)(8) claims; (2) the two-year period for raising rule 3.172(c)(8) claims commences when the defendant learns of the immigration consequences of the plea; (3) defendants need not demonstrate probable acquittal at trial to obtain relief. Peart, 756 So. 2d at 44-45. the Court approved language requiring defendants to "establish . . . that they were 'threatened' with deportation because of the plea," but did not expound on the meaning of "threatened" as it related to this requirement. Id. at 47. Courts interpreted the clause to require commencement of deportation proceedings, or similar governmental action, to establish a threat of deportation.