Summary
concluding that petitioner's claim that he received notice a detainer would be placed on him was insufficient to constitute prima facie showing he had been "threatened with deportation resulting from the plea" where notice did not state the reason petitioner was subject to detainer
Summary of this case from Vacarean v. StateOpinion
Case No. 3D00-2042
Opinion filed September 19, 2001. Rehearing Denied October 12, 2001
An appeal from the Circuit Court for Dade County, Lawrence A. Schwartz, Judge. Lower Tribunal No. 89-5243 A.
Alberto Leandeo Curiel, in proper person.
Robert A. Butterworth, Attorney General and Darien M. Doe, Assistant Attorney General, for appellee.
Before LEVY and SHEVIN, JJ., and NESBITT, Senior Judge.
Defendant appeals from the denial of his motion for post conviction relief. He argues that he was not informed of the deportation consequences of this plea. See Fla. R. Crim. P. 3.172(c)(8). The State's answer to this claim is that a defendant claiming such a violation must make a showing that he has been "threatened with deportation resulting from the plea." See Peart v. State, 756 So.2d 42, 46 (Fla. 2000). Here, defendant received notice that a detainer will be placed on him; the notice does not state why he is subject to being detained. Accordingly, defendant has failed to make the showing necessary for the relief sought. See Vaval v. State, 3D-01-1729 (Fla. 3d DCA Aug. 29, 2001);Rodriguez v. State, 789 So.2d 548 (Fla. 3d DCA 2001); Saldana v. State, 786 So.2d 643 (Fla. 3d DCA 2001) (concluding that advising a defendant that he or she is under investigation is not the same thing as being threatened with deportation); Kindelan v. State, 786 So.2d 599 (Fla. 3d DCA 2001).
This affirmance is without prejudice to defendant refiling his 3.850 motion should the investigation lead to the threat of deportation.