De Abreu v. State, 90-3718
| Decision Date | 26 December 1991 |
| Docket Number | No. 90-3718,90-3718 |
| Citation | 593 So.2d 233 |
| Parties | Douglas DE ABREU, Appellant, v. STATE of Florida, Appellee. 593 So.2d 233, 17 Fla. L. Week. D136 |
| Court | Florida District Court of Appeals |
Douglas De Abreu, pro se.
Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Douglas De Abreu, appeals the trial court's denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant's motion raises several claims, one of which merits discussion. Taking as true the facts as related in the motion, appellant was charged with possession of cocaine, and on April 23, 1990, entered a plea of guilty to the stated charge. Pursuant to the plea agreement, the state recommended a term of eighteen months of supervised probation which expired on October 23, 1991. The trial court accepted appellant's plea and withheld adjudication. After being placed on probation, appellant was arrested by agents of the Immigration and Naturalization Service and charged with violation of immigration laws based on appellant's conviction for possession of cocaine.
On appeal, among the issues raised, appellant argues that his plea was entered involuntarily because of the trial court's failure to inform him, as required by Florida Rule of Criminal Procedure 3.172(c)(viii), that if he is not a citizen of the United States, his plea may subject him to deportation pursuant to the laws and regulations governing the United States Naturalization and Immigration Service. 1 Pursuant to this court's order of October 1, 1991, the state filed a response to the claims raised in appellant's motion.
Although Florida Rule of Criminal Procedure 3.172(i) states that failure to follow any of the procedures in this Rule shall not render a plea void absent a showing of prejudice, it appears that appellant's motion, on its face, makes a showing that appellant's plea was entered involuntarily and that appellant was prejudiced by the trial court's failure to follow the procedure set forth in Rule 3.172(c)(viii). We find prejudice in the fact that appellant is now facing the precise dilemma against which the rule is designed to protect--the surprise threat of deportation resulting from an uninformed plea of guilty or nolo contendere. As a consequence, we find it necessary to reverse and remand with directions to the trial court to either conduct an...
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