Nunez v. State
Decision Date | 01 September 2021 |
Docket Number | 2D20-2680 |
Citation | 331 So.3d 229 |
Parties | Yinette Maria NUNEZ, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Jorge León Chalela of Jorge León Chalela, P.A, Tampa, for Appellant.
Yinette Nunez appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which she alleged that she pleaded guilty to four charges in 2018 without having been advised by her counsel of the "immediate" and "certain" deportation consequences of her pleas. We reverse and remand for further proceedings.
Id. at 648 ; see Yanez v. State , 170 So. 3d 9, 10-11 (Fla. 2d DCA 2015) ( ); see also Balcazar v. State , 116 So. 3d 575, 576 (Fla. 2d DCA 2013) ( ).
The postconviction court found, and the record supports, that Nunez received the equivocal warning provided for in rule 3.172(c)(8). Nunez received the warning when she pleaded guilty in 2018 to the felonies of child abuse and battery on a law enforcement officer in exchange for three years' probation and to two misdemeanor charges of battery and disorderly intoxication in exchange for time served.2 Thus, the pleading requirements in Cano apply here.3
The postconviction court also found that the record showed that the 2018 pleas at issue are not the sole basis for Nunez's deportation, a requirement in Cano . While we agree with Cano that Nunez must establish this requirement in order to be entitled to relief, we disagree that the record refutes this requirement. Nunez's probation was revoked in 2019 when she entered a guilty plea to one new charge of uttering forged checks, a third-degree felony, for which she received a sentence of 22.5 months in prison.4 Such a conviction and sentence may subject her to deportation if the offense was committed within five years of her admission or within ten years if she had been provided lawful permanent resident status. See 8 U.S.C. § 1227(a)(2)(A)(i) ; Walker v. U.S. Att'y Gen. , 783 F. 3d 1226, 1229 (11th Cir. 2015) ( ). The postconviction court failed to acknowledge that such a crime must be committed within a certain amount of time in order to trigger deportation, and it is not clear from the record when Nunez entered the United States or what her status was when she entered or at the time of any of the offenses at issue. The postconviction court also found that Nunez had not established that the 2018 convictions were the sole basis for deportation because Nunez admitted in her motion that an immigration detainer was not placed on her until December 11, 2019, thus suggesting that the deportation is due to the uttering conviction. However, it is not clear from the record that Nunez is subject to deportation for the 2019 uttering conviction or that the immigration detainer is due to that 2019 conviction.
In sum, while we agree that the requirements of Cano are applicable, we cannot conclude based on our limited record that Nunez is unable to establish entitlement to relief under Cano . Accordingly, we reverse the order denying her rule 3.850 motion and remand for the postconviction court to allow her an opportunity to amend her motion to establish a facially sufficient claim under Cano . See rule 3.850(f)(2) ; Spera v. State , 971 So. 2d 754, 761 (Fla. 2007). We note that in addition to failing to allege that the 2018 pleas are the sole basis for her deportation, Nunez's motion also failed to allege that she was in the country lawfully at the time she entered the plea, that the law as it existed at the time of the plea subjected her to "virtually automatic" deportation, and that the "presumptively mandatory" consequence of deportation is clear...
To continue reading
Request your trial