Jules v. State, 3D17–1337

• Decision Date: 29 November 2017
• Docket Number: No. 3D17–1337,3D17–1337
• Citation: 233 So.3d 1196
• Parties: John JULES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

233 So.3d 1196

John JULES, Appellant,

v.The STATE of Florida, Appellee.

No. 3D17–1337

District Court of Appeal of Florida, Third District.

Opinion filed November 29, 2017.

Geller Tamayo LLC and Pablo Tamayo, for appellant.

Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

Before EMAS, LOGUE and LINDSEY, JJ.

EMAS, J.

INTRODUCTION

John Jules appeals from an order denying his motion for postconviction relief following an evidentiary hearing. Jules claimed in his motion that the trial court's failure to advise him of possible immigration consequences rendered his plea involuntary, entitling him to withdraw his plea. For the reasons that follow, we hold that Jules' claim is time-barred.

FACTS AND PROCEDURAL HISTORY

The relevant factual allegations, with one notable exception,¹ are not in dispute:

Jules was a citizen of Haiti living in Miami, Florida. In 1993, Jules obtained legal permanent resident status.

In September 1994, Jules was arrested and was subsequently charged with seven crimes: three counts of attempted first-degree murder; one count of armed burglary; one count of burglary with an assault or battery; one count of armed robbery; and one count of strongarm robbery.

In April 1995, Jules entered a negotiated plea of guilty to all seven charges. In exchange for his guilty plea, he was sentenced to ten years' state prison on each count, all sentences to run concurrently.

Jules served his sentence and was released from prison in January 2001. No immigration detainer or hold was placed on him preventing his release from prison following the completion of his sentence. In 2003 and 2014, Jules was approved for the renewal of his legal permanent resident status to remain in the United States.² In 2008 and 2009 Jules traveled to and from the Bahamas and returned to the United States without incident. In June 2015, Jules traveled to Turks and Caicos and, upon his return into the United States, he was detained by immigration officials and advised that his 1995 convictions subjected him to deportation. In August 2015, Jules was formally placed into removal proceedings.

In March 2017 Jules filed a motion for postconviction relief, alleging that, in 1995, the trial judge failed to advise Jules that his plea could subject him to possible immigration consequences. A review of the 1995 plea colloquy confirms the trial judge simply asked Jules "Are you a United States citizen?" to which Jules answered "Yes." The trial judge did not thereafter advise Jules that, regardless of his assertion of United States citizenship, if he was not a United States citizen, the plea may subject him to deportation.³ Jules contends that this failure rendered his plea involuntary because, had he been properly advised of the potential immigration consequences of his plea, he would not have entered the plea but would have insisted on going to trial.

The State contended below, and here on appeal, that Jules' motion was untimely.

Under rule 3.850(b), a defendant generally must file his 3.850 motion "no more than 2 years after the judgment and sentence become final. ..." Jules asserts that his motion is timely because he satisfied the "due diligence" exception to the two-year time limitation, which permits a defendant to file a 3.850 motion more than two years after the judgment and sentence are final if

the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence. ...

Fla. R. Crim. P. 3.850(b)(1).

The State asserted that Jules could not meet this exception because he failed to act with due diligence to ascertain the potential immigration consequences of his plea. The trial court held an evidentiary hearing and denied the motion, concluding that the motion was time-barred.

ANALYSIS AND DISCUSSION

Jules asserts that he did not know the immigration consequences of his plea until June 2015, when he was detained at the airport by immigration authorities and advised that his prior convictions subjected him to deportation. We need not decide whether Jules in fact knew of the immigration consequences of his plea prior to June 2015 because, even if true, it is not alone sufficient to warrant relief. Jules must also establish that this information "could not have been ascertained by the exercise of due diligence."⁴ Fla. R. Crim. P. 3.850(b)(1).

In his motion, Jules assert that, in the exercise of due diligence, he could not have ascertained the possible immigration consequences of his plea prior to June 2015. However, Jules failed to allege, or establish at the hearing, any steps he took to show that he acted with due diligence or to otherwise establish why he could not have discovered the possible immigration consequences of his plea prior to June 2015. Instead, Jules alleges that he was misled into believing that there were no immigration consequences to his plea, and points to the fact that no detainer was placed on him during his prison sentence; that his lawful permanent resident status had been renewed (though under a different name) on two separate occasions after his release from prison; and that in 2008 and 2009 he had traveled to the Bahamas and returned to the United States without being detained.

The State counters that, under State v. Green, 944 So.2d 208 (Fla. 2006), Jules had two years from the date of Green to file his motion for postconviction relief or, if filed outside that two-year window, to affirmatively plead and prove that, in the exercise of due diligence, he could not have ascertained during that two-year window the possible immigration consequences of his 1995 plea. In the absence of pleading and proving same, the State asserts, Jules' motion was time-barred under Green. We agree.⁵

In Peart v. State, 756 So.2d 42 (Fla. 2000), the Florida Supreme Court reaffirmed a trial court's obligation to make the appropriate inquiry under rule 3.172(c), to ensure a defendant enters his plea knowingly and voluntarily. The Court also recognized that a defendant may, under certain circumstances, seek to withdraw a plea as involuntary when the trial court's failure to make the proper inquiry results in prejudice to the defendant. Id. at 45. The Court held that a defendant seeking to withdraw his plea under these circumstances must file a motion pursuant to rule 3.850 and that such motion must be filed within the two-year time established in rule 3.850(b)(1). Id. at 46.

Finally, the Court was called upon to determine when the two-year time limitation begins to run. The Peart Court held that that two-year period within which to file such a motion begins to run "when the defendant has or should have knowledge of the threat of deportation" based on a plea. Id. Further, the Court held, "in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea. Id. (Emphasis added.)

However, six year later, in Green, the Court receded from that portion of Peart, and established a new standard:

We recede from our holding in Peart that the two-year period for moving to withdraw a plea on grounds that the trial court failed to advise the defendant that the plea could result in deportation begins "when the defendant has or should have knowledge of the threat of deportation based on the plea." [ Peart ,] 756 So.2d at 46.

Instead, pursuant to Florida Rule of Criminal Procedure 3.850(b), the limitations period commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation. Further the defendant must establish only that he or she is subject to deportation because of the plea, not, as we held in Peart , that he or she has been specifically threatened with deportation.

Green, 944 So.2d at 210 (emphasis added).

Additionally, and significantly for our purposes, the Court in Green noted that, under this new standard, a defendant acts at his peril by simply waiting until the occurrence of some event that renders deportation imminent: "It will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired." Id. at 218. Instead, due diligence "compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status." Id. (Emphasis added.)

In establishing the proper timeframe for cases (like Jules') whose conviction and sentence were already final at the time of the Green decision, the Court noted:

Our holding in this cases reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose cases arealready final will have two years from the date of this opinion in whichto file a motion comporting with the standards adopted today.

Id. at 219 (emphasis added).

Green was decided on October 26, 2006. Therefore, Jules had until October 26, 2008, to file his motion. Because he did not file his motion until March 30, 2017, Jules was required to allege in his motion, and prove at a hearing, that, in the exercise of due diligence, he could not have ascertained the possible immigration consequences of his plea until June 2015, when he was detained by immigration authorities and advised he was subject to deportation. Green, 944 So.2d at 218 ; Canseco v. State, 52 So.3d 575 (Fla. 2010) ; State v. Ruiz, 30 So.3d 653 (Fla. 3d DCA 2010).

Jules filed his motion in March 30, 2017 and, by his own concession, did so only after he was detained by immigration authorities (in June 2015), and only after receiving a...