“Facing Deportation, After the Green Decision”

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

A client comes into my office and states that after pleading guilty to a non violent criminal offense over 15 years ago, his life has been "hell." He explains that he came to the U.S. from Jamaica when he was two years old. Although he lived in the U.S. legally since that time, he had not yet obtained his citizenship. He is consumed with fear that if he ever travels and/or applies for citizenship, he'll face deportation as a result of his old conviction. He further explains that in early 2006, he spoke with an attorney who told him that there was no legal basis to set aside his conviction because, in spite of never having been told of the possible immigration consequences by the sentencing judge, he was not yet in deportation proceedings. He pleads for your assistance. He says, "I'm desperate! Please help me get the plea set aside." Is there anything that can be done to assist him?

The Due Process clauses of the United States and Florida Constitutions require that when accepting a guilty plea, the court must inquire into the defendant's understanding of the plea so that the record contains an affirmative showing the plea was intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238 (1969); Koenig v. State, 597 So. 2d 256 (Fla. 1992). An involuntary plea is a recognized ground for post conviction relief. Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993).

In Peart v. State, 756 So. 2d 42 (Fla. 2000), the Florida Supreme Court held that the failure of the trial court to advise of deportation consequences during the plea colloquy denies the defendant his constitutionally guaranteed due process right to enter the plea voluntarily and intelligently and is grounds for vacating the conviction. The Court also held that: (1) A motion pursuant to Rule 3.850 is the appropriate vehicle to attack a conviction on the grounds that the defendant was not advised of the possible deportation consequences of her plea contrary to Rule 3.172(c)(8) of the Florida Rules of Criminal Procedure, id. at 46; (2) a defendant shall have two years from the day he gains or should gain knowledge of the threat of deportation to file such a motion, id. at 46 and (3) there is no requirement that a defendant prove a likely acquittal at trial to obtain relief. Id. at 47. Since Peart, the Supreme Court of Florida decided State v. Green, 2006 Fla. LEXIS 2534, wherein it receded from Peart's requirement that a defendant must wait until he is actually threatened with deportation proceedings. Green, 2006 Fla. LEXIS at *2. "Instead, 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." Id. at *3.

In Green, the Court further clarified the criteria necessary for post conviction relief as follows: (1) a defendant must file a Rule 3.850 motion within two years after the judgment and sentence become final, (2) the motion must allege "defendant would not have entered the plea if properly advised, and (3) that under current law the plea does render the defendant subject to being removed from the country at some point in the future." Id. at *30. Further, "a defendant filing outside the two–year limitation period 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." Id.

Nevertheless, the Green Court recognized that in the interest of justice, cases that were not previously ripe under Peart, have until two years after the date of the Green decision, October 26, 2006, to bring forth an action for post conviction relief. Green, 2006 Fla. LEXIS at *30. Additionally, cases that are currently pending in trial or appellate courts on this issue should apply the Green criteria instead of Peart. Id. at *30–31.

My client is elated knowing that the Green decision finally provides him with the relief that he is seeking. The prior attorney was correct when informing the client in early 2006 that nothing could be done. However, after the Green case was decided in October of 2006, the law changed, permitting relief for countless individuals who, while not facing imminent deportation, may face deportation at some time in the future.