De Quesada v. State
Decision Date | 27 November 2019 |
Docket Number | No. 3D19-2018,3D19-2018 |
Citation | 289 So.3d 26 |
Parties | Reiner DE QUESADA, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Martin Beguiristain, Miami, for appellant.
Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
Before FERNANDEZ, MILLER, and GORDO, JJ.
Appellant, Reiner de Quesada, challenges the summary denial by the lower tribunal of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion filed below, de Quesada contended his charging document was fundamentally defective, thus, his sentence was illegal, and his plea was involuntary, as trial counsel misadvised him of the immigration consequences of the plea. For the reasons set forth below, we discern no error and affirm.
On May 8, 2006, de Quesada was charged by information with one count of trafficking in cannabis, in violation of section 893.135(1)(a), Florida Statutes. The charging document specified that de Quesada possessed "in excess of 25 pounds, but less than 2000 pounds" of cannabis. Accordingly, he was subject to a "mandatory minimum term of imprisonment of [three] years," along with a $25,000 fine. § 893.135 (1)(a)(1), Fla. Stat.
On July 12, 2007, in anticipation of a negotiated plea, the State manually reduced the charges on the face of the information, to reflect possession of cannabis with intent to sell, in violation of section 893.13(1)(a)(2), Florida Statutes. Immediately thereafter, de Quesada entered a plea of guilty to the lesser charge, as reflected in the amended information, and received a withhold of adjudication followed by three years of probation with certain special conditions. De Quesada did not appeal his judgment and sentence and after he fulfilled all probationary conditions, his probation was terminated expeditiously.
On October 15, 2018, de Quesada filed a motion for postconviction relief, asserting that his trial counsel failed to advise him of potential immigration consequences stemming from his plea. The trial court summarily denied the motion. On April 29, 2019, de Quesada filed an amended postconviction motion, again citing the purported immigration misadvice and inserting a contention that the charging document was fundamentally defective. The court denied the motion and the instant appeal ensued.
"The standard of review of a summary denial of a rule 3.850 motion is de novo." Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th DCA 2012) ( ).
Rule 3.850 provides a "two-year time limitation for filing motions for postconviction relief." Pearson v. State, 141 So. 3d 722, 722 (Fla. 3d DCA 2014) ; see Fla. R. Crim. P. 3.850(b) () . Nevertheless, "[d]ue process of law requires the State to allege every essential element when charging a violation of law to provide the accused with sufficient notice of the allegations against him." Price v. State, 995 So. 2d 401, 404 (Fla. 2008) (citing Art. I, § 9, Fla. Const.; M.F. v. State, 583 So. 2d 1383, 1386-87 (Fla. 1991) ). Accordingly, "[w]here an information wholly omits an essential element of the crime it is a defect that can be raised at any time." Price, 995 So. 2d at 404 (citation omitted); see State v. Burnette, 881 So. 2d 693, 694-95 (Fla. 1st DCA 2004) () (citation omitted).
In the instant case, although the State inscribed the words "possession with intent to sell cannabis" on the face of the information, it neglected to pen the corresponding elements. However, "even where the body of a charging instrument omits an essential element, such an error is a waivable technical defect, if the charging instrument references the correct statute, and the statute sets forth the required elements." Huckaba v. State, 260 So. 3d 377, 382 (Fla. 1st DCA 2018) (citation omitted). Here, the amended information indeed cited the correct statute and the statute itself set forth the required elements. Hence, "the charging instrument in this case did not wholly fail to state a crime and was not fundamentally defective." Id.
Finally, as the information was amended to allow the parties to circumvent the application of the minimum mandatory term of imprisonment, de Quesada "cannot take advantage on appeal of an error which he himself induced." Andrews v. State, 343 So. 2d 844, 846 (Fla. 1st DCA 1976) (citations omitted); see State v. Ortiz, 79 So. 3d 177, 178 (Fla. 3d DCA 2012) ( ); cf. Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888, 890 (Fla. 1962) (); Acton v. State, 457 So. 2d 540 (Fla. 2d DCA 1984) ( ); Shanklin v. State, 369 So. 2d 620, 622 (Fla. 2d DCA 1979) ().
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