Reducing Uncertainty and Delay Involved In Filing Motions to Vacate Pleas Grounded on Immigration Consequences
In Markland v. State, 971 So. 2d 832 (Fla. 3d DCA 2007), the appellant had a deportation order entered against him in 1995, but did not move to withdraw his plea until 2005. Id. at 833.
The trial court denied the claim as untimely, which was affirmed on appeal. Id.
In 2007, relying on State v. Green, 944 So. 2d 208 (Fla. 2006).
Markland filed a motion for postconviction relief seeking, again, to set aside his plea.
The Third District held: "The Green decision 'reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8).'
The Green decision does not revive a claim which has already been found to be time-barred under Peart." Markland, 971 So. 2d at 834 (quoting Green, 944 So. 2d at 219).
The Third District reached this conclusion again in State v. De Armas, 988 So. 2d 156, 157-58 (Fla. 3d DCA 2008) ("Green actually sought to reduce the uncertainty and delay involved in the filing and determination of motions to vacate pleas grounded on 'immigration consequences.' . . . Green did not, however, open a new two-year window for the filing of such motions by defendants with over two years of actual knowledge of the immigration consequences of the challenged plea before the filing of the motion to vacate."); and again in Morales v. State, 988 So. 2d 705, 706 (Fla. 3d DCA 2008) (holding that where a defendant's claim became time-barred under Peart, Green did not revive it).