County Criminal Court: CRIMINAL PROCEDURE Ė Postconviction relief Ė Rule 3.850 Ė Trial court did not err in summarily denying motion without conducting evidentiary hearing- defendant must show trial court did not provide advise regarding possible immigration consequences and deportation and the resultant prejudice, defendant failed to show prejudice Ė defendantís claim that as he was not represented by counsel he was unaware of viable defenses to the charged offense is legally insufficient and properly denied without an evidentiary hearing.Creary v. State No. 02-88 (Fla. 6th Cir. App. Ct. Dec. 5, 2002).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

ORVILLE CREARY,

††††††††††† Appellant,

 

vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No. CRC 02-01368 CFANO

 

STATE OF FLORIDA,

††††††††††† Appellee.

_________________________________/

 

Opinion filed ______________.

 

Appeal from Order Denying Motion for Post-Conviction Relief

Pinellas County Court

County Judge Amy M. Williams

 

Frank de la Grana, Esq.

Attorney for Appellant

 

Bernie McCabe

State Attorney

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the court on the defendantís appeal from an Order Denying Defendantís Motion for Post-Conviction Relief.The defendantís motion was filed pursuant to Fla. R. Crim. P. 3.850 and was denied without an evidentiary hearing.No briefs are required and none have been submitted.See, Fla. R. App. P. 9.141(b)(1) and (2).After reviewing the record, this court affirms the trial courtís decision.

††††††††††† The defendant was arrested for the offense of battery.At the advisory hearing, he entered a plea of no contest without the benefit of counsel.The defendant was placed on twelve months probation.In his postconviction motion, the defendant sought to withdraw his plea alleging that he was prejudiced by the trial courtís failure to inform him of possible consequences of his plea and as he was not represented by counsel he was not aware that a viable defense existed.The trial court denied the defendantís motion without an evidentiary hearing.

††††††††††† This Court affirms the trial courtís denial of the defendantís motion for post conviction relief.In order for a defendant to obtain postconviction relief based on a rule 3.172 (c)(8) violation, a defendant must show that the trial court did not provide advice regarding the possible immigration consequences of the plea and the resultant prejudice.Although Fla.R.Crim.Pro. 3.172(c)(8) requires the Court to inform defendants who are not United States citizens that their plea may subject them to deportation, it is not a ďper seĒ rule allowing an automatic withdrawal of the plea by all defendants threatened with deportation.The defendant is required to show that, absent the failure of the court to inform the defendant of possibility of deportation, the defendant would not have entered the plea.Peart v. State, 756 So.2d 42 (Fla. 2000).Pursuant to Peart, ďa defendant must show prejudice not only by the subsequent threat of deportation but also because the trial court failed to provide the information required by rule 3.172 (c) (8).Searaphi v. State, 818 So.2d 485 (Fl. 2002).In order to show prejudice, the defendant threatened with deportation must demonstrate that he or she was prejudiced in the process by entering the plea because the trial court failed to provide the information required by Rule 3.172 (c)(8).Seraphin, 818 So.2d at 488.In the case at bar, the defendant has failed to show that he was prejudiced.The defendant failed to properly allege that deportation proceedings had been initiated against him.

The defendant alleges that because he was not represented at trial he was unaware a viable defense existed.The defendant does not state the nature of the defense nor specific facts for the courtís review. The claim is legally insufficient and was properly denied without hearing.

The trial court did not err in denying the postconviction motion without an evidentiary hearing as the motion is insufficient on its face.It is therefore

††††††††††† ORDERED that the decision of the trial court is affirmed without prejudice to the defendant to refile his motion for postconviction relief alleging specific facts to show prejudice should deportation proceedings be instituted.

††††††††††† DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida this ______ day of December, 2002.

 

_______________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

 

 

 

 

_______________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

 

______________________________

TIMOTHY R. PETERS

Circuit Judge

Copies furnished to:

 

Frank de la Grana, Esq.

 

Bernie McCabe, Esq.