County Criminal Court: CRIMINAL PROCEDURE – Post conviction Relief – Deportation proceedings do not need to be imminent before a 3.850 motion seeking to withdraw a plea may be heard; sufficient if deportation proceedings might be instituted because of plea. Order denying 3.850 motion reversed. Vanlinder v. State, No. CRC 05-18 APANO, (Fla. 6th Cir. App. Ct. March 5, 2007).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

ALEXANDRA GOULD VANLINDER         

            Appellant,

                                                                                  Appeal No. CRC 05-18 APANO

                                                                                        UCN522005AP000018XXXXCR

v.

 

STATE OF FLORIDA

            Appellee.

___________________________________/

 

Opinion filed _______________________.

 

Appeal from a decision of the Pinellas County Court

County Judge Paul Levine

 

Frank McDermott, Esq.

Attorney for appellant

 

Kristen Howatt, Esq.

Assistant State Attorney

ORDER AND OPINION

 

            THIS MATTER is before the Court on the appellant, Alexandra Vanlinder’s, appeal from a decision of the Pinellas County Court denying her motion for post-conviction relief. This matter was stayed for some time pending a decision from the Florida Supreme Court in the case of State v. Green, 944 So.2d 298 (Fla. 2006). The Green decision has been rendered, and the appellant filed a Notice of Supplemental Authority informing this Court of the decision. In addition, the appellant filed a second Notice of Supplemental Authority informing this Court of the case of Gaston v. State, 32 Fla. L. Weekly S578 (Fla. 2007).

            This Court has reviewed both decisions, and finds that they require the reversal of the trial court’s order. The appellant was attempting to withdraw her plea to a criminal charge because she claims she was not informed about the possible immigration consequences of the plea.  The trial court denied the appellant’s motion on procedural grounds because deportation proceedings were not imminent. A review of the two new cases, however, reveals that deportation proceedings do not have to be imminent. It is now sufficient for a defendant to proceed if it is possible that deportation proceedings might be instituted because of the plea. Obviously, the trial court did not have the benefit of these two new cases. Since there is now no longer the requirement that deportation proceedings be imminent before a defendant can bring a motion to set aside a previous plea, this particular procedural bar to the appellant has been removed. Accordingly, the order denying the motion for post-conviction relief is reversed.

            IT IS THEREFORE ORDERED that the Order Denying Defendant’s Motion for Post Conviction Relief is reversed, and this matter is remanded to the trial court so that the defendant may proceed with her motion for post-conviction relief.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of March, 2007.

 

________________________                                    __________________________

          Linda Allan                                                                     R. Timothy Peters

          Circuit Judge                                                                  Circuit Judge

                                                                       

 

                                                __________________________

                                                            John A. Schaefer

                                                            Circuit Judge

cc:        State Attorney

            Frank McDermott, Esq.

            Judge Levine