Unawareness of the Immigration Consequences at the Time of a Plea Bargain
In Pena v. State, 980 So. 2d 542 (Fla. 4th DCA 2008), the appellant accepted a plea and was sentenced in 1991. Id. at 543.
The record showed that Pena was unaware of the immigration consequences at the time of his plea. Id.
In 1998, Pena was notified of removal proceedings. Id.
He moved to withdraw his plea in 2000. Id.
However, because Pena believed that he could not be deported, he voluntarily dismissed his motion. Id. at 544.
After Pena's motion to terminate the removal proceedings was denied, he filed a successive motion to withdraw his 1991 plea. Id.
The trial court denied his motion, and the Fourth District affirmed the denial, reasoning, "[W]e do not believe the language of Green should be read to revive a claim that has already gone stale under Peart." Pena, 980 So. 2d at 545.
"Instead, we believe the exception to the two-year limitations period, for cases already final prior to Green, was intended to apply to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn." Id. at 545-46.
Additionally, in Prieto v. State, 989 So. 2d 688 (Fla. 4th DCA 2008) review denied, 1 So. 3d 173 (Fla. 2009), the Fourth District explained, "The supreme court did not announce any intent to allow defendants to revive an already stale claim, but rather closed a loophole that resulted in a scenario where a defendant could not file a sufficient claim under Peart, and would be unable to file a timely claim under Green." Id. at 690.
Like Canseco, Prieto received notice of his deportation while Peart was still controlling law and did not seek relief under Peart. Prieto, 989 So. 2d at 689-90.