State v. Stephenson

• Decision Date: 23 June 2021
• Docket Number: 4D21-332
• Parties: STATE OF FLORIDA, Appellant, v. DANE STEPHENSON, Appellee.
• Court: Florida District Court of Appeals

STATE OF FLORIDA, Appellant, v. DANE STEPHENSON, Appellee.

No. 4D21-332

Florida Court of Appeals, Fourth District

June 23, 2021

Not final until disposition of timely filed motion for rehearing.

Appeal from the County Court for the Seventeenth Judicial Circuit Broward County; Kal Evans, Judge; L.T. Case Nos 14-007632-MM-10A and 20-000024-AC-10A.

Harold F. Pryor, State Attorney, and Joanne Lewis, Assistant State Attorney, Fort Lauderdale, for appellant.

No appearance for appellee.

Damoorgian, J.

Appellant State of Florida ("the State"), appeals an order from the county court granting a motion to vacate a plea entered by appellee, Dane Stephenson ("Defendant"). For the reasons discussed below, we reverse.

By way of background, Defendant was charged with misdemeanor possession of cannabis in 2014. At his arraignment, Defendant was given the option by the State to accept a withhold of adjudication and pay court costs or attend a misdemeanor diversion program. Defendant, acting pro se, elected the first option and entered a plea of no contest to the charge. It is undisputed that the court did not conduct a plea colloquy, although it did recite the plea options. The court ultimately accepted Defendant's plea, withheld adjudication, and ordered Defendant to pay court costs.

In 2018, Defendant filed a motion to vacate his plea pursuant to Florida Rule of Criminal Procedure 3.850(b)(2). In his motion, Defendant alleged he was being deported back to Jamaica as a result of the plea and that "he would not have entered a plea, but instead, he would have proceeded to trial or drug court or diversion" had he been advised of his plea's immigration consequences. Defendant argued that the plea and sentence must be vacated to prevent a manifest injustice because the court's failure to advise him of the deportation consequences made his plea "not knowingly, intelligently and voluntarily entered."

At the hearing on the motion, the State argued the motion was time barred, and that Defendant failed to demonstrate the existence of a manifest injustice. Ultimately, the court found that a manifest injustice had occurred because of the complete absence of a plea colloquy advising Defendant of any of his rights and the consequences of entering his plea.^[1]This appeal follows.

The State argues that, pursuant to Florida Rule of Criminal Procedure 3.850(b), Defendant's motion to vacate was untimely and failed to establish one of the exceptions to the two-year time limit. See Fla. R. Crim. P. 3.850(b) (noting that no motion "shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final"). For much of the same reasons, the State also argues that Defendant failed to establish a manifest injustice. We agree.

We begin by observing that Defendant's rule 3.850 motion to vacate plea was untimely as it was filed more than two years after the judgment and sentence became final. As such, in order to be entitled to relief, Defendant was required to allege and establish one of the three exceptions to the two-year time limit provided in rule 3.850(b). Those exceptions include:

(1) 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;

(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity; or

(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.

Fla. R. Crim. P. 3.850(b)(1)-(3).

In the present case, although Defendant's motion referenced the exception listed in rule 3.850(b)(2), the motion contained no allegations regarding a fundamental change in constitutional law. Thus, that exception does not apply. Instead, Defendant alleged that he suffered a manifest injustice because of the court's failure to advise him of the deportation consequences of his plea through an adequate plea colloquy. To the extent this qualified as an allegation of newly discovered evidence under rule 3.850(b)(1), we find this exception to the two-year limitation period does not apply here either.

In filing outside the two-year time limitation, a defendant "must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period." State v. Green, 944 So.2d 208, 219 (Fla. 2006). "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. The requirement of 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. at 218; accord State v. Lorenzo, 271 So.3d 77, 78 (Fla. 3d DCA 2019).

Here the record reflects Defendant entered his plea in 2014 and filed his motion to vacate plea in 2018. The record further reflects Defendant moved to vacate his plea only after he was detained by immigration authorities at the airport in 2015. In other words, Defendant knew or should have known the immigration consequences of his plea in 2015 and yet he waited until 2018 to file his motion to vacate plea. Under these circumstances, and notwithstanding the complete absence of a meaningful plea colloquy, it cannot be said that Defendant "could not have ascertained the immigration consequences of his plea during the two-year...