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State v. Gaston

District Court of Appeal of Florida, Third District
Sep 28, 2005
911 So. 2d 257 (Fla. Dist. Ct. App. 2005)

Summary

In Gaston, the defendant moved to withdraw a plea of guilty to a charge of carrying a concealed firearm entered a decade earlier.

Summary of this case from Gaston v. State

Opinion

No. 3D04-2326.

September 28, 2005.

Appeal from the Circuit Court, Miami-Dade County, David C. Miller, J.

Charles J. Crist, Attorney General, Tallahassee, and Jill K. Traina, Assistant Attorney General, Miami, for appellant.

Jerrard B. Cutrone, Miami, for appellee.

Before RAMIREZ, WELLS, and CORTIÑAS, JJ.


The State of Florida appeals from an order permitting Mario F. Gaston to withdraw a plea entered over ten years ago based on Gaston's claim that he was not advised that his plea might subject him to deportation. Because Gaston failed to make a prima facie case for relief, we reverse.

In 1994, Gaston pled guilty to a single charge of carrying a concealed firearm. Adjudication was withheld and Gaston was placed on probation for three months with a special condition of fifty hours of community service. A little over ten years later, Gaston filed the instant motion to withdraw his plea claiming that his plea was involuntary because the trial court failed to advise him that his plea might subject him to deportation and because he has been advised by an immigration attorney that if he applied for residency, he would be subjected to deportation proceedings. The motion was granted; we reverse.

Due to the passage of time no transcript of the plea hearing exists.

In Kindelan v. State, 786 So.2d 599, 600 (Fla. 3d DCA 2001), we held that following application for adjustment of immigration status, advice from INS of excludability from the United States due to a conviction fails to establish a prima facie case for relief, because "advising a defendant that a conviction constitutes grounds for exclusion from the United States is not the same as being threatened with deportation as a result of a plea." This holding is dispositive. See Aparicio v. State, 893 So.2d 630, 631 (Fla. 3d DCA 2005) (concluding that a defendant advised by an immigration attorney that he would be detained if he applied for citizenship failed to establish a prima facie case because it is not the possibility of immigration consequences, but rather imminent deportation proceedings that support relief); Saldana v. State, 786 So.2d 643, 645 (Fla. 3d DCA 2001) (concluding that issuance of a detainer by INS notifying initiation of investigation did not establish a prima facie case for relief). The order granting Gaston's motion to withdraw plea is, therefore, reversed.

We also certify conflict with Green v. State, 895 So.2d 441 (Fla. 4th DCA 2005), which is presently pending in the Florida Supreme Court (Case No. SC05-687) on conflict review.


Summaries of

State v. Gaston

District Court of Appeal of Florida, Third District
Sep 28, 2005
911 So. 2d 257 (Fla. Dist. Ct. App. 2005)

In Gaston, the defendant moved to withdraw a plea of guilty to a charge of carrying a concealed firearm entered a decade earlier.

Summary of this case from Gaston v. State

In State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), this court reversed a trial court order vacating a plea allegedly entered in violation of Florida Rule of Criminal Procedure 3.172(c)(8), which requires trial judges to inform those intending to plead guilty or nolo contendre "that, if he or she is not a United States citizen, the plea may subject him or her to deportation.

Summary of this case from State v. Gaston
Case details for

State v. Gaston

Case Details

Full title:The STATE of Florida, Appellant, v. Mario GASTON, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Sep 28, 2005

Citations

911 So. 2d 257 (Fla. Dist. Ct. App. 2005)

Citing Cases

State v. Green

Id. at 600. In State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), notice invoking discretionary review filed,…

Gaston v. State

We have for review State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), in which the Third District Court of…