State v. Rajaee, 98-3476.

CourtCourt of Appeal of Florida (US)
Citation745 So.2d 469
Docket NumberNo. 98-3476.,98-3476.
PartiesSTATE of Florida, Appellant, v. Hossain RAJAEE, Appellee.
Decision Date19 November 1999

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.

Jack R. Maro, Ocala, for Appellee.

HARRIS, J.

Rajaee trafficked in such a large quantity of cocaine that his penalty upon conviction would have been a minimum of fifteen years in prison. He entered into a plea agreement by which he was sentenced to four years in prison with probation to follow. Although Rajaee was born in Iran, and even though the court specifically advised him before plea that a conviction might subject him to deportation, he pled nolo contendere and, after a pre-sentence investigation, was sentenced according to the agreement.

Upon arriving at the Department of Corrections, Rajaee was contacted by INS concerning possible deportation. Rajaee then moved to withdraw his previous plea because he claims that he mistakenly believed at the time of his plea that he was an American citizen and that if deported to Iran he would be subject to execution.

Rajaee's burden in setting aside his plea is established by Florida Rule of Criminal Procedure 3.170(l):

(l) Motion to Withdraw the Plea after sentencing.
A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rules of Appellate Procedure 9.140(b)(2)(B)(i)-(v). (Emphasis added).

The only possible basis available under the referenced rule for Rajaee to invoke is that the plea was involuntary. Throughout the hearing, the judge made two points clear. First, that he believed that Rajaee entered the plea because it was such a good offer and that Rajaee believed that INS would simply leave him alone. It was only after the INS contact indicating that his gamble had gone south that Rajaee discovered his "mistake." Second, although not authorized by the rule as a basis for withdrawal of plea, the judge made it clear that even if there were no mistake he did not want Rajaee to be deported by INS to Iran. After very brief testimony, the judge set aside the plea, without setting forth his reasoning, and the State appeals. We reverse.

Florida Rule of Criminal Procedure 3.172(c)(8) requires that the judge inform the defendant that deportation may be a consequence of the plea if defendant is not a citizen. The rule does not require the judge to inquire as to whether the defendant is a citizen or to explain the requirements of becoming a citizen to a defendant. A defendant is put on notice that he should know, or if any doubt exists he should determine, his citizenship status before proceeding with the plea. No case has been cited to us which indicates that a mistake not caused by the court, defense counsel, law enforcement, or someone representing the state or not based on a misunderstanding of the plea agreement, the score sheet, or some document prepared by some governmental agent is sufficient to make a plea involuntary. In short, a mistake of some fact solely within the knowledge or control of the defendant has not been approved as a basis for withdrawing a plea. In Johnson v. State, 648 So.2d 263 (Fla. 5th DCA 1994), this court held:

Johnson's basis for seeking to withdraw his guilty plea in this case was that he was unaware of his own probationary status stemming from another criminal case at the time he pled guilty. Where the mistake or misunderstanding in entering a plea is attributable to the defendant, it is not error for the court to refuse to allow withdrawal of it.

Even assuming that a "mistake" relating to one's citizenship status, as opposed to a mistake relating to the consequence of a plea based on that status, is sufficient to make the plea "involuntary," the evidence presented in this case fails to establish even that a mistake was made. The court asked the defendant, "But are you a citizen or not?" The defendant responded, "Immigration, when they came after me that I'm not a citizen, Your Honor. They came to me in Marion County, then when I got to Lake Butler they came to tell me. And I said, `I am a citizen. I have a child here. I've been here twenty years. My whole family is citizen.'" Perhaps it is overly technical, but this testimony does not prove a mistake concerning his belief that he was and is a citizen, but only that there is a disagreement as to his citizenship which must be determined by INS. Thus, the record does not support the basis for his motion.

Although both Rajaee and his counsel, for different reasons1, predicted dire consequences if Rajaee were to be deported, defense counsel candidly admitted he had no evidence that he could offer as to what would happen to Rajaee upon deportation. While the harshness of the Iranian justice system is disturbing, it is not a problem to be addressed by our criminal court. If Rajaee is deported, it is because as a noncitizen he violated our drug laws. He should not be treated any differently in relation to our criminal justice system merely because of from whence he came. The possibility of harsh treatment upon deportation should be, and may well be, a consideration of INS.

REVERSED.

THOMPSON, J., concurring specially, with opinion.

W. SHARP, J., dissents, with opinion.

THOMPSON, J., concurring specially.

I agree with Judge Harris' determination that there was no legal basis to set aside the plea. Although the trial court has discretion to set aside a plea, an appellate court can reverse the decision if there has been an abuse of discretion. See Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983)

. Here, the trial court's only reason for setting aside the plea was that Rajaee might be executed if he were deported to Iran. In essence, the trial court felt that the consequences of pleading no contest, deportation and subjection to the laws of Iran, might be too harsh. That reasoning is neither recognized by the Florida Rules of Criminal Procedure nor Florida case law.

In Peart v. State, 705 So.2d 1059 (Fla. 3d DCA), rev. granted, 722 So.2d 193 (Fla. 1998), the court gave five elements necessary to set aside a plea if the trial court failed to inform a defendant of immigration consequences: (1) that the defendant was not advised by the court of the immigration consequences; (2) that defendant had no actual knowledge of same; (3) that INS had instituted deportation proceedings, or defendant is at risk of deportation; (4) that defendant would not have pled had defendant known of the deportation consequences; and (5) that had defendant declined the plea offer and gone to trial, defendant most probably would have been acquitted.

Here, there is no doubt that the court informed Rajaee that he might be deported if he was not a citizen. The deportation implications of his plea were discussed on two occasions with the court before he was sentenced. He admits on appeal that he was so informed. Therefore, he knew of the consequences when he entered the plea and has failed to prove one of the requisite elements. Further, the evidence against him is such that Rajaee has failed to show the last element: that he most probably would have been acquitted. An undercover officer was involved in the sale of half a kilogram of cocaine. Rajaee was videotaped and separately audiotaped as he gave the officer $7,900 for the cocaine. A jury might acquit him through a jury pardon, but that is improbable. The trial court was concerned with Rajaee's ultimate fate but Rajaee's apprehension cannot be the sole basis to set aside the plea. In this case, the trial court abused its discretion.

W. SHARP, J., dissenting.

I respectfully dissent. The majority reverses the trial court's order which allowed the defendant Rajaee to withdraw his plea and set aside Rajaee's conviction and sentence based on that plea. Because of the highly unusual circumstances of this case, I cannot agree the trial judge abused his discretion in setting aside the plea.

During an undercover "sting" operation, Rajaee allegedly purchased a quantity of cocaine from a police informant. The transaction was videotaped and the informant was outfitted with a bodybug. Rajaee was charged with trafficking in cocaine and conspiracy to traffic in cocaine. Despite the seemingly irrefutable evidence against him, the state offered Rajaee a plea agreement of four years incarceration followed by three years probation. Perhaps this was done because the equipment malfunctioned or there were credibility problems with the informant, or, perhaps as defense counsel later argued to the trial judge, Rajaee had a good case of entrapment.

In any event, Rajaee accepted the plea offer. At his plea hearing, Rajaee was advised that he could be subject to deportation if he was not a United States citizen and was convicted of a criminal offense. Florida Rule of Criminal Procedure 3.172(c)(8) requires...

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  • State v. Seraphin
    • United States
    • Florida Supreme Court
    • May 16, 2002
    ...States, he may have suffered no prejudice. Although we recognize conflicting case law from our sister courts, see State v. Rajaee, 745 So.2d 469 (Fla. 5th DCA 1999), and Johnson v. State, 760 So.2d 992 (Fla. 2d DCA 2000), we have consistently held that the trial court's compliance with rule......
  • Felix v. Sec'y, Dept. of Corrs.
    • United States
    • U.S. District Court — Northern District of Florida
    • September 10, 2021
    ... ... with a copy of the state-court record, and Petitioner has ... filed a reply. ECF Nos. 12, 15, 16. Upon due ... Seraphin, 818 So.2d 485, 489 (Fla. 2002); State v ... Rajaee , 745 So.2d 469, 470 (Fla. 5 th DCA ... 1999) (“A defendant is put on ... notice ... ...
  • United States v. Medina
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    • February 13, 2015
    ...should know, or if any doubt exists he should determine, his citizenship status before proceeding with the plea." State v.Rajaee, 745 So. 2d 469, 470 (Fla. Dist. Ct. App. 1999), review denied, 763 So. 2d 1044 (Fla. 2000). Defendant cites to no authority that a mistake or misunderstanding in......
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