Opinion
No. 3D08-1446.
August 13, 2008.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John C. Schlesinger, Judge.
James P. Gagel, for appellant.
Bill McCollum, Attorney General, for appellee.
Before WELLS, ROTHENBERG, and SALTER, JJ.
Alfonso Orozco appeals the denial of his motion to vacate plea, conviction, and sentence regarding a 1996 charge for possession of cocaine. Orozco pleaded guilty to the charge, but adjudication was withheld and he received a suspended sentence. His motion claims that he was not properly advised of the immigration consequences of that plea, and that he has now become subject to deportation.
The trial court denied Orozco's motion because the immigration notice to appear attached to the motion does not refer to the 1996 charge or sentence, referring instead to an allegation that he overstayed a B-2 tourist visa in 1994.
We affirm the trial court's ruling, but we do so without prejudice to Orozco's right to plead under oath, and then to endeavor to prove eligibility for relief, under State v. Green, 944 So.2d 208 (Fla. 2006). Specifically, to obtain such relief Orozco will need to plead and ultimately prove that: (1) his expired visa does not constitute an independently sufficient basis for his removal under applicable law, (2) the 1996 plea and suspended sentence subjects him to removal, (3) the plea colloquy and other sources of information did not make him aware of the adverse immigration consequences of the 1996 plea and suspended sentence more than two years before he filed his motion to vacate that plea, and (4) he would not have entered his voluntary plea in 1996 had he known the consequences applicable to his immigration status.
In this case, as in Green, we direct the appellant to file any verified pleading conforming to these requirements within sixty days after jurisdiction returns to the trial court.
Affirmed, but without prejudice to the filing and prosecution of a verified motion consistent with this opinion.