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Deportation and Voluntary Pleading

Major cities like Los Angeles, Miami, New Orleans and Phoenix are increasing the number of deportation proceedings in response to President Trump’s executive orders regarding illegal immigrants with pending criminal cases.

Deportation and Voluntary Pleading

In a criminal trial, a defendant can plead guilty, no-contest, and not guilty.  With regards to a deportation hearing, all pleas must be voluntary.  The trial judge then determines the “voluntariness” of a guilty or no-contest plea.  The trial court must inform the defendant that the guilty or no-contest plea may subject the defendant to deportation.  Then the defendant can chose to withdraw the plea.

If a court convicts a defendant on based on a guilty plea, the defendant has the right to a new hearing on the voluntariness of the plea.  This happens when the defendant alleges on appeal that the trial court did not give notice that a pleading of guilty or not guilty can result in deportation.  A plea is not voluntary if the trial court does not give notice that pleading guilty or no-contest can result in deportation.

In Florida, there is a two-year window to withdraw a plea based on an alleged failure to warn of the possible deportation.  Fla. R. Crim. P. 3.850.  Under a Supreme Court of Florida decision in State v. Green, the filing period begins when the “judgment and sentence [become] final.”  State v. Green, 944 So. 2d 208, 210 (Fla. 2006).  This means that the filing period begins once the trial is over.  The trial is over once the judgment is finalized.

If you feel that your plea was not voluntary, if you are a  permanent resident looking to become a U.S. citizen, or if you have questions about how you can change your status, please contact us.

Disclaimer: This article is purely for educational purposes only and is not intended to provide legal advice. If you are in need of legal advice or are uncertain as to your legal needs, please contact an attorney for consultation.

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