Summary
declining to consider state's laches defense, raised for the first time on appeal
Summary of this case from Krasnick v. StateOpinion
Case No. 3D99-2400.
Opinion filed July 5, 2000.
An appeal from the Circuit Court for Dade County, Marilyn Milian, Judge. Lower Tribunal Nos. 85-1733, 86-8358.
Robert A. Butterworth, Attorney General, and Alison B. Cutler, Assistant Attorney General, for appellant.
The Law Firm of Alvarez Garcia-Montes and Gustavo J. Garcia-Montes, for appellee.
Before COPE, GREEN and SORONDO, JJ.
The State appeals an order granting Ralph Richardson's petition for writ of error coram nobis. We affirm.
In 1997, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against defendant-appellee Richardson, on account of his criminal record. The INS seeks to deport him to Haiti, where he was born.
Defendant filed a petition for writ of error coram nobis, seeking to set aside his 1985 guilty plea in Dade County Circuit Court case number 85-1733, where he pled guilty to the charges of unlawful possession of cannabis and carrying a concealed firearm, and was placed on probation. He also sought to set aside his guilty plea in circuit court case number 86-8358, where he pled guilty to the charge of sale of cannabis. Adjudication in that case was withheld and he was sentenced to four consecutive weekends in jail.
The record indicates that defendant also has a conviction from Escambia County, but the just-cited cases from Dade County are the only ones involved in the present proceeding.
Defendant requested coram nobis relief on the basis that he was unaware of the deportation consequences of his pleas. He contended that if he had known of the immigration consequences he would not have entered into those plea agreements. The trial court granted the petition and the State has appealed.
At the evidentiary hearing defendant testified, and the trial court found, that defendant had always believed he was born in Brooklyn, New York, and had always believed that he was a United States citizen. This was corroborated by one of defendant's siblings. Defendant had consistently reported Brooklyn as his birthplace on forms he filled out for his marriage license, selective service registration, driver's license, and the like.
According to the testimony, defendant's parents immigrated from Haiti to Brooklyn many years ago. While defendant's mother was on a visit to Haiti, defendant was born. Defendant and his mother returned to Brooklyn soon thereafter and he grew up there. The older siblings (in a family of ten children) were born in Haiti, while the younger children were born in Brooklyn. Although the State strenuously argued that defendant should not be believed, the trial court was convinced by the evidence and made a finding that the defendant at all relevant times believed that he was a United States citizen.
In 1997, after his father passed away, defendant made arrangements to travel to Haiti to look at some family property. He had never been out of the United States before. When applying for a passport he was required to produce a birth certificate and learned for the first time that his place of birth was actually Haiti.
Defendant obtained a passport and traveled to Haiti but on his return was stopped by immigration authorities. Because of his criminal record, the INS initiated deportation proceedings, and defendant filed his petition for writ of error coram nobis.
During the pendency of this appeal the Florida Supreme Court decided Peart v. State, 25 Fla. L. Weekly S 271 (Fla. April 13, 2000), which is dispositive. Under Peart, defendant is entitled to postconviction relief.
The Florida Supreme Court has explained that for claims filed on and after May 27, 1999, the defendant should proceed by motion under Florida Rule of Criminal Procedure 3.850, rather than petition for writ of error coram nobis. See Peart, 25 Fla. L. Weekly at S 272. Although the present proceeding was filed in August 1999 and therefore should have been a 3.850 motion, rather than a petition for writ error coram nobis, the procedural error makes no difference and we treat the matter as if a 3.850 motion had been filed.
The State argues that Peart is not controlling here. The State points out that the rule has been that for pleas entered into prior to January 1, 1989, a defendant could obtain coram nobis relief only where the defendant received affirmative misadvice of counsel regarding immigration consequences of a plea,see State v. Sallato, 519 So.2d 605, 606 (Fla. 1988), but not where there has been a mere failure to advise of immigration consequences. See State v. Ginebra, 511 So.2d 960, 962 (Fla. 1987). The State points out that the present case involves 1985 and 1986 pleas, and that there is no claim of affirmative misadvice of counsel regarding immigration consequences. The State thus reasons that Ginebra remains controlling, and that the defendant is not entitled to any relief with regard to the 1985 and 1986 pleas. The State points out that in the Peart case, only one of the participants had entered into a plea prior to January 1, 1989, and that participant, Victor Ross, had claimed that he had received affirmative misadvice regarding the immigration consequences of his plea. See Peart v. State, 705 So.2d 1059, 1061 (Fla. 3d DCA 1998), quashed, Peart v. State, 25 Fla. L. Weekly at S 271.
Effective January 1, 1989, the Florida Rules of Criminal Procedure were amended to require each defendant to be advised "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." Fla. R. Crim. P. 3.172(c)(8); see In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992, 992-94 (Fla. 1988). The rule change superseded Ginebra to the extent of any inconsistency. See State v. De Abreu, 613 So.2d 453 (Fla. 1993).
We believe the State reads the Florida Supreme Court's Peart decision too narrowly. The Peart decision says, "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." 25 Fla. L. Weekly at S 274 n. 3. Thus Peart has erased the distinction between affirmative misadvice, and a failure to advise, regarding immigration consequences. This means Ginebra is now a dead letter, as the Peart decision itself seems to indicate.See 25 Fla. L. Weekly at S 274 n. 5. The logic of Peart extends to a situation where, as here, the defendant mistakenly believed that he was a United States citizen. See Elharda v. State, No. 3D99-1305, slip op. at 4-5 (Fla. 3d DCA June 7, 2000).
The State argues that the defendant's petition was untimely. We reject that argument on authority of Peart which, insofar as pertinent here, creates a two-year time window from April 13, 2000. See 25 Fla. L. Weekly at S 272. The petition was timely.
The State contends that the defendant should be barred from relief because he did not act with due diligence to learn his true citizenship status. The State did not raise this point in the evidentiary hearing, but raised it for the first time in the motion for rehearing. That is a factual issue which came too late. The State's position in the trial court, in cross-examination and argument, was that it was simply incredible to believe the defendant could grow to adulthood without finding out his true place of birth. The credibility determination was for the trial court and the court, after hearing from multiple witnesses and reviewing multiple documents, concluded that the defendant's testimony was credible on this point.
The State argues that the petition is barred by laches, because it will likely be impossible for the State to proceed to prosecute the 1985 and 1986 charges after a decade and a half of delay. Laches remains an available defense for the State, even after Peart. See State v. Gregerson, No. SC 93801 (April 27, 2000) (approving Gregerson v. State, 714 So.2d 1195 (Fla. 4th DCA 1998)). However, this defense was not raised in the trial court, so we decline to consider it.
Affirmed.