Motion of Postconviction Relief Claiming That the Trial Court Did Not Advise That a Plea Might Subject to Deportation
In Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795.
In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id.
His motion was dismissed without prejudice because of an outstanding arrest warrant. Id.
Ventura refiled his motion in December 2006, which the trial court dismissed relying on in State v. Green, 944 So. 2d 208 (Fla. 2006), noting that Ventura filed his motion more than two years after his case was final. Id.
On appeal to the Second District, Ventura argued that the trial court misread Green, to which the Second District agreed, stating:
Under Green a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging "that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation."
The trial court's requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green.
Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation. Ventura, 977 So. 2d at 796-97 (quoting Green, 944 So. 2d at 219).