To Obtain Relief In a Deportation Case One Needs to Prove That Had He Declined the Plea Offer He Would Most Probably Be Acquitted
In Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998), the court of appeal held that in order for defendant Prieto to obtain relief based on his alleged rule 3.172(c)(8) violation, he would have to prove, among other things, "that had he declined the plea offer and gone to trial, defendant most probably would have been acquitted." 705 So. 2d at 1063.
The court explained that this requirement comb bbports with the Rule 3.172 requirement that a defendant must show prejudice to set aside a plea as not in conformity with the Rule.
Because of the special nature of the claims in these cases, that deportation has resulted as a consequence of the pleas, in order to demonstrate prejudice the defendant must demonstrate a probable likelihood that he or she would have been acquitted.
To require any less of a showing would subject the trial court to entertaining petitions for relief to set b pleas in cases where the defendant would nonetheless be found guilty at trial and therefore would be facing the same consequence of deportation. Peart, 705 So. 2d at 1063-64.