Peart v. State

We have for review the decision in Peart v. State, 705 So.2d 1059 (Fla. 3d DCA 1998), wherein the district court certified conflict with Marriott v. State, 605 So.2d 985 (Fla. 4th DCA 1992), and Wood v. State, 698 So.2d 293 (Fla. 1st DCA 1997), quashed, 750 So.2d 592 (Fla.1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We quash Peart and approve Marriott.

The Peart opinion below is actually five cases that the Third District Court of Appeal consolidated wherein the court reviewed various claims for postconviction relief involving alleged violations of Florida Rule of Criminal Procedure 3.172(c)(8), which requires that trial courts advise defendants of the possibility of deportation as a consequence to entering pleas of guilty or nolo contendere. Defendants Moses Evans and Jose Jimenez were never in custody and filed writs of error co-ram nobis to present their rule 3.172(c)(8) claims. The Third District held that

the defendants do not seek coram nobis relief asserting errors of fact or newly discovered evidence, but rather on the basis of an error of law, to wit, an irregularity in their plea colloquy rendering their pleas involuntary. State v. Garcia, 571 So.2d 38 (Fla. 3d DCA 1990). Moreover, these petitions do not assert claims “of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment.” Hallman, 371 So.2d at 485. Coram nobis relief, therefore, is not the appropriate remedy.

Peart, 705 So.2d at 1062 (emphasis omitted). The court stated that “there is no present mechanism that provides relief under these circumstances.” Id. at 1063.

With respect to defendants Roan Peart and Victor Ross, who were in custody prior to seeking the instant relief and who likewise presented their claims through writs of coram nobis, the Third District held that their 'proper avenue of relief was to file motions pursuant to Florida Rule of Criminal Procedure 3.850 in order to challenge the voluntariness of their pleas based on the alleged rule 3.172(c)(8) errors. See Peart, 705 So.2d at 1062, 1063. The Third District then applied the two-year limitation period provided in rule 3.850 and barred their claims, holding that a rule 3.850 motion must be filed within two years of the date the judgment and sentence become final, rather than two years from when the defendant is threatened with deportation, thus precluding them from relief. See id. at 1062.

Defendant Jorge Prieto was in custody when he filed his rule 3.850 motion seeking relief. The district court held that in order to successfully obtain postconviction relief based on the alleged rule 3.172(c)(8) error, Prieto would have to prove, among other things, that “had [he] declined the plea offer and gone to trial, [he] most probably would have been acquitted.” Peart, 705 So.2d at 1063. The district court granted Prieto leave to amend his motion. See id.

This Court is therefore called upon to resolve three basic legal issues: (1) whether a writ of error coram nobis was the proper vehicle for the noncustodial defendants to raise a violation of rule 3.172(c)(8); (2) whether the two-year limitation in rule 3.850 applies to writs alleging a rule 3.172(c)(8) violation and, if so, at what point does the limitation begin to run; and (3)whether defendants attempting to prove such an error must prove, among other things, that had they gone to trial, they probably would have been acquitted. As will be explained below, we hold that a writ of coram nobis was the proper pleading for a noncustodial defendant to file, but that as of our decision in Wood v. State, 750 So.2d 592 (Fla.1999), such claims should now be filed pursuant to Florida Rule of Criminal Procedure 3.850; a two-year limitation period applies, see Wood, and that the limitation period begins to run when the defendant has or should have (whichever is earlier) knowledge of the threat of deportation based on the plea; and, finally, such defendants need not prove a probable acquittal at trial, but rather that they were prejudiced by the error.

I. THE WRIT OF ERROR CORAM NOBIS WAS THE PROPER VEHICLE BY WHICH NONCUSTODIAL DEFENDANTS COULD HAVE ALLEGED RULE 3.172(C)(8) VIOLATIONS.

We begin our review of these issues with a discussion of the writ of error coram nobis, which is an ancient writ designed to correct judgments and sentences based on errors of fact. See Wood, 750 So.2d at 593; Hallman v. State, 371 So.2d 482, 484-85 (Fla.1979). The petition should fully assert the evidence upon which the alleged facts may be proven and the source of such evidence. See Wood, 750 So.2d at 593. The facts upon which the petition is based must have been unknown at trial, and it must appear that the defendant and counsel could not have known of them by the use of diligence. See id. When the alleged facts are sufficient in legal effect-meaning that if the alleged facts had been known by the trial court at the previous hearing the court probably would not have entered a judgment against the defendant — the next step is for the trial court to determine the truth of the allegations in an evidentiary hearing. See id.

In the instant cases, the writ is being used to advance claimed violations of Florida Rule of Criminal Procedure 3.172, which requires that trial judges, among other things, inform defendants of the possibility of deportation when the judges accept the defendants’ pleas. Pursuant to rule 3.172(c), this Court has held that a trial court should inquire into a defendant’s understanding of the broad spectrum of rights being waived by pleading guilty, so that the record contains an affirmative showing that the defendant voluntarily and intelligently entered the plea. See Koenig v. State, 597 So.2d 256, 258 (Fla.1992). The trial court’s failure to follow the above procedure, however, “shall not render a plea void absent a showing of prejudice.” Fla. R.Crim. P. 3.172(i).

Viewing the writ of error coram nobis in light of the need to review alleged errors in plea acceptance hearings under rule 3.172(c)(8), we hold that the 'writ was the proper vehicle by which noncustodial defendants may have alleged rule 3.172(c)(8) violations. The writ of error coram nobis is an established method of collaterally attacking a judgment based on a rule 3.172(c)(8) violation. See, e,g, Gregersen v. State, 714 So.2d 1195 (Fla. 4th DCA), review granted, 728 So.2d 205 (Fla. 1998); Beckles v. State, 679 So.2d 892 (Fla. 3d DCA 1996); Dugart v. State, 578 So.2d 789 (Fla. 4th DCA 1991). Federal courts have likewise accepted writs of error co-ram nobis as vehicles to collaterally attack judgments based on alleged trial court failures to advise federal defendants of possible immigration consequences of their pleas. See United States v. Ayala, 894 F.2d 425, 427-28 & n. 4 (D.C.Cir.1990); Garda-Trigo v. United States, 671 F.2d 147 (5th Cir.1982). Thus, the writ of error coram nobis has heretofore been an established mechanism to address alleged rule 3.172(c)(8) violations raised by noncustodial defendants.

We conclude that pre-Wood, the writ of error coram nobis was the proper pleading for noncustodial defendants to seek review of a rule 3.172(c)(8) violation. However, since Wood both custodial and noncustodial defendants have been required to employ rule 3.850 to raise their claims. See Wood, 750 So.2d at 593.

II. DEFENDANTS SHALL HAVE TWO YEARS TO FILE PLEADINGS ALLEGING A RULE 3.172(C)(8) VIOLATION AS MEASURED FROM WHEN THE DEFENDANT HAS OR SHOULD ' HAVE KNOWLEDGE OF THE THREAT OF DEPORTATION.

We now turn to the second question of whether the two-year limitation in rule 3.850 applies to writs alleging rule 3.172(c)(8) violations and, if so, at what point does the limitation period begin to run. The first part of this question must be answered in the affirmative based on our recent decision in Wood, in which we held that as of the date of that decision writs of error coram nobis would be subject to the two-year limitation provided in rule 3.850, although pre-Wood petitions were not subject to a like limitation. See Wood, 750 So.2d at 593.

In answer to the second part of the question, we hold that the limitation period runs from when the defendant has or should have knowledge of the threat of deportation based on the plea. As explained below, in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea. See infra pp. 47-48. Since the day the defendant gains (or should gain) knowledge of the threat of deportation is the first day the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns, of the threat should likewise start the running of the two-year limitation period.

We therefore hold that defendants who gained knowledge of the threat of deportation prior to the filing date of this decision shall have two years from this decision to file a rule 3.850 motion alleging their claims for relief. All defendants who subsequently discover threats of deportation shall have two years from the date of such discovery to file their claims for relief.

III. DEFENDANTS DO NOT HAVE TO PROVE A LIKELY ACQUITTAL AT TRIAL TO OBTAIN RELIEF UNDER RULE 3.172(C)(8); RATHER, THEY MUST PROVE PREJUDICE RESULTANT FROM THE ERROR.

Turning to the third and final question presented in this case, we must determine whether defendants attempting to obtain relief under rule 3.172(c)(8) must prove, among other things, that had they gone to trial, they probably would have been acquitted. We answer that question negatively: The defendant need not prove a likely acquittal at trial. In Peart, the court of appeal held that in order for defendant Prieto to obtain relief based on his alleged rule 3.172(c)(8) violation, he would have to prove, among other things, “that had [he] declined the plea offer and gone to trial, defendant most probably would have been acquitted.” 705 So.2d at 1063. The court explained that this

requirement comports with the Rule 3.172 requirement that [a] defendant must show prejudice to set aside a plea as not in conformity with the Rule. Because of the special nature of the claims in these cases, that deportation has resulted as a consequence of the pleas, in order to demonstrate prejudice the defendant must demonstrate a probable likelihood that he or she would have been acquitted. To require any less of a showing would subject the trial court to entertaining petitions for relief to set aside pleas in cases where the defendant would nonetheless be found guilty at trial and therefore would be facing the same consequence of deportation.

Peart, 705 So.2d at 1063-64 (emphasis omitted and added).

We begin our analysis of this issue by observing that prior to Peart, district courts of appeal have uniformly held that in order for a defendant to obtain postcon-viction relief based on a rule 3.172(c)(8) violation, the defendant had to prove that the trial court did not provide advice regarding the possible immigration consequences of the plea and resultant prejudice. See Perriello v. State, 684 So.2d 258, 259-60 (Fla. 4th DCA 1996); Beckles, 679 So.2d at 892; De Abreu v. State, 593 So.2d 233, 234 (Fla. 1st DCA 1991). In order to show prejudice pursuant to a rule 3.172(c)(8) violation, defendants had to establish that they did not know that the plea might result in deportation, that they were “threatened” with deportation because of the plea, and that had they known of the possible consequence they would not have entered the plea. See Perriello, 684 So.2d at 259 (holding prejudice shown where defendant was “threatened” with deportation); Marriott, 605 So.2d at 987 (holding that “threat” of deportation of alien was a sufficient showing of prejudice in such cases); De Abreu, 593 So.2d at 234 (holding that the defendant’s allegation in a rule 3.850 motion that the trial court violated rule 3.172(c)(8), and that the defendant was subsequently surprised by the “threat” of deportation, constituted a sufficient showing of prejudice to justify an evidentiary hearing). Accordingly, based on established precedent, in order to obtain relief from an alleged rule 3.172(c)(8) error, defendants are not required to prove a probable acquittal at trial.

CONCLUSION

We conclude that prior to Wood the writ of error coram nobis was the proper pleading to file for a noncustodial defendant to allege a rule 3.172(c)(8) violation, although as of Wood such claims should be pled via rule 3.850; that as of Wood there is a two-year limitation period on all claims alleging rule 3.172(c)(8) violations, and that the limitation period begins to run when the defendant learns or should have learned (whichever is earlier) of the threat of deportation based on the plea; and that to obtain relief in such a case the defendant need not prove the likelihood of. acquittal at trial, but rather that he or she was prejudiced by the error. We quash Peart, approve Marriott and remand for proceedings consistent with this opinion.

It is so ordered.

SHAW, PARIENTE and LEWIS, JJ„ concur.

ANSTEAD,' J., concurs specially with an opinion, in which SHAW and LEWIS, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion, in which HARDING, C.J., and QUINCE, J., concur.

. This Court recently quashed the First District's Wood decision since writs of coram nobis were not subject to a two-year time limitation, although we relied on the First ■ District's reasoning in favor of such a limitation to apply a two-year time limit to cases where the judgment is entered from the filing of our Wood decision forward. We also relied on the First District's reasoning to amend Florida Rule of Criminal Procedure 3.850 by deleting the "in custody” requirement so that custodial and noncustodial defendants may rely on the rule. See Wood v. State, 750 So.2d 592, 593 (Fla.1999).

. Rule 3.172(c) provides that

the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

(8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service.... [T]his admonition shall be given to all defendants in all cases.

Fla. R.Crim. P. 3.172(c)(8)(emphasis added).

. We note that both the failure to advise a defendant of possible deportation consequences and the error of providing "affirmative misadvice” as to such a consequence should be treated the same under the above analysis.

. In so holding, we note that in applying the instant limitation period, Florida law provides defendants greater protection regarding this kind of error than that provided under federal law. See United States v. Morse, 36 F.3d 1070, 1071 (11th Cir.1994)(holding that advising a defendant of the possibility of deportation is not a requirement under federal law since deportation is only a collateral, versus a direct, consequence of a plea); United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990)(same).

. This Court included advisement of the possible immigration consequences of the plea during the plea acceptance hearing because deportation of a person from the United States often is just as harsh as other consequences, if not more so. See In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988). Before the amendment, this Court treated a trial court failure to warn a defendant of the possible deportation consequences of a plea as a "collateral consequence” that would not support a claim of ineffective assistance of counsel. State v. Ginebra, 511 So.2d 960 (Fla.1987). One year later, however, we established rule 3.172(c)(8). We subsequently acknowledged that our old case law was superseded by the new rule in State v. De Abreu, 613 So.2d 453 (1993)(“In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988), ... superseded Ginebra to the extent of any inconsistency. ”).

. See Beckles, 679 So.2d at 892 (holding that being taken into custody by immigration authorities because of the conviction based on the plea was sufficient to show prejudice); Spencer v. State, 608 So.2d 551 (Fla. 4th DCA 1992)(holding that appellate immigration court decision that defendant was deportable was sufficient to show prejudice); see also State v. Oakley, 715 So.2d 956, 957 (Fla. 4th DCA 1998)(holding that defendant failed to show prejudice, despite rule 3.172(c)(8) violation, where defendant was deportable based on previous drug trafficking conviction).