Lopez-Gonzalez v. State

Full title: Efrain Lopez-Gonzalez, Appellant, v. The State of Florida, Appellee.

Court: Third District Court of Appeal State of Florida

Date published: Apr 10, 2019

No. 3D18-993 (Fla. Dist. Ct. App. Apr. 10, 2019)

Opinion

No. 3D18-993

04-10-2019

Efrain Lopez-Gonzalez, Appellant, v. The State of Florida, Appellee.

The Law Firm of Joseph R. Lackey, L.L.C., and Joseph R. Lackey, for appellant. Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

PER CURIAM.

Not final until disposition of timely filed motion for rehearing. Lower Tribunal Nos. 06-36064, 06-6133-A, 08-12344-B An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge. The Law Firm of Joseph R. Lackey, L.L.C., and Joseph R. Lackey, for appellant. Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee. Before EMAS, C.J., and SALTER and HENDON, JJ. PER CURIAM.

Affirmed. See State v. Green, 944 So. 2d 208, 219 (Fla. 2006) (receding in part from Peart v. State, 756 So. 2d 42 (Fla. 2000), and applying the criteria in Florida Rule of Criminal Procedure 3.850 to determine the timeliness of a postconviction motion claiming a rule 3.172(c)(8) violation; holding that a defendant must file such a claim within two years from the date the judgment and sentence become final, and that 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"). See also Jules v. State, 233 So. 3d 1196, 1199 (Fla. 3d DCA 2017) (observing that "a defendant acts at his peril by simply waiting until the occurrence of some event that renders deportation imminent" and that, pursuant to Green, 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. Instead, 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" (additional citations omitted)).