County Criminal Court: CRIMINAL PROCEDURE – Postconviction relief
– Rule 3.850 – 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 – defendant’s 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
(
IN THE CIRCUIT COURT OF THE
SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
APPELLATE DIVISION
ORVILLE
CREARY,
Appellant,
vs.
Appeal No. CRC 02-01368 CFANO
STATE
OF
Appellee.
_________________________________/
Appeal
from Order Denying Motion for Post-Conviction Relief
County
Judge Amy M. Williams
Frank
de la Grana, Esq.
Attorney
for Appellant
Bernie
McCabe
State
Attorney
THIS MATTER is before the court on the
defendant’s appeal from an Order Denying Defendant’s Motion for Post-Conviction
Relief. The defendant’s 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,
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 court’s 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 defendant’s motion without an evidentiary hearing.
This Court affirms the trial court’s
denial of the defendant’s 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 “per se” 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 (
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 court’s 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
_______________________________
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.