County Criminal Court: CRIMINAL PROCEDURE – Pleas – Non-citizen defendant should have been allowed to withdraw guilty plea because he was not adequately informed by either counsel or trial court that his plea might result in deportation. Decision of trial court reversed. Ziad v. State, No. 03-32 APANO (Fla. 6^th Cir.App.Ct. May 12, 2004).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

ATIMANE ZIAD

Appellant,

v. Appeal No. CRC 03-32 APANO

UCN522003AP000032XXXXCR

STATE OF FLORIDA

Appellee.

_______________________/

Opinion filed ______________________.

Appeal from a decision of the

Pinellas County Court

County Judge Amy Williams

Edward Panzica, Esq.

Attorney for appellant

Nancy Lawler, Esq.

Assistant State Attorney

ORDER AND OPINION

THIS MATTER is before the Court on Atimane Ziad’s appeal from a decision of the Pinellas County Court to deny his motion to withdraw his guilty plea. After reviewing the briefs and record, this Court reverses the decision of the trial court.

The appellant entered a guilty plea in 2000 to the charge of battery. He was not a citizen of the United States, and in part as a result of this plea he was deported. It is undisputed that at the time the plea was accepted, the trial judge failed to specifically advise the appellant of the possible deportation consequences as required by Florida Rule of Criminal Procedure 3.172(c)(8). Because the judge who accepted the plea did not inform the appellant that the plea might subject him to deportation, the appellant sought to withdraw his guilty plea. The judge who heard the motion, however, denied it because the court found the appellant was aware of the possible deportation consequences from other sources, and therefore was not prejudiced by the original court’s failure to follow the dictates of Fla.R.Crim.P. 3.172(c)(8).

First, the judge reasoned that the appellant was told in a 1997 hearing in an unrelated case that there might be possible immigration consequences. No transcript of that hearing, however, is in this appellate file. What is in the record is a transcript showing that during the hearing on the appellant’s motion to withdraw his plea, the State quoted from what was purportedly a transcript of the 1997 case; but nowhere in the purported quote read by the State does it mention deportation. This is insufficient. See Labaday v. State, 783 So.2d 275 (Fla. 3d DCA 2001).

Second, the judge found that the appellant in a 2001 proceeding was told about immigration consequences. Since this occurred after the time the appellant entered his plea in 2000, it is not relevant.

The final piece of information the trial court used to support its decision was that the appellant’s attorney testified that he read the plea form to the appellant, the plea form contained a section on the possible deportation consequences, and that the appellant appeared to understand. Upon cross-examination, however, the attorney admitted that he could not be sure that the appellant understood what he was being read. What is significant is that the attorney testified that he could not recall specifically explaining the possible deportation consequences to the appellant. He only testified that he read the form to the appellant.

In Periello v. State, 684 So.2d 258 (Fla. 4^th DCA 1996), the defendant had not been advised of the possible deportation consequences of his plea by the court. He had, however, been read a seven-page plea agreement by his attorney, and had signed and initialed each page of a plea form that contained information about deportation. The court ruled that this was insufficient to deny the defendant’s motion to withdraw his plea. This Court must follow that precedent. See also, Pikwrah v. State, 829 So.2d 402 (Fla. 2d DCA 2002); and Joseph v. State, 787 So.2d 933 (Fla. 2d DCA 2001).

Finally, the case at bar is unlike the situation in State v. Luders, 768 So.2d 440 (Fla. 2000). In Luders the court found that the defendant was not prejudiced by the trial court’s failure to advise him of the deportation consequences of his plea because he was advised by his defense counsel of the deportation consequences and “he decided to accept the risk.” Id. As noted in the District Court decision involving the same plea by the same defendant, “it is undisputed that the defendant’s counsel advised him, to some degree, of the potential deportation consequences prior to the entry of his nolo contendere plea. It is also undisputed that the defendant made a conscious decision to assume the risk of deportation and enter the plea.” State v. Luders, 731 So.2d 163 (Fla. 4^th DCA 1999). That is not the situation in the case at bar. Luders is, therefore, not dispositive of this appeal.

IT IS THEREFORE ORDERED that the trial court’s decision to deny the appellant’s motion to withdraw his plea is reversed, and this matter is remanded with

instructions to the trial court to grant the motion.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of May 2004.

__________________________

James R. Case

Circuit Judge

__________________________

Nancy Moate Ley

Circuit Judge

____________________________

John A. Schaefer

Circuit Judge

cc: State Attorney

Edward Panzica, Esq.

Judge Williams