Gale v. State

District Court of Appeal of Florida

Gale v. State

79 So. 3d 126, 2012 Fla. App. LEXIS 974, 2012 WL 204724

CourtDistrict Court of Appeal of Florida

DecidedJanuary 25, 2012

Docket3D11-2059

StatusPublished

This text of 79 So. 3d 126 (Gale v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gale v. State, 79 So. 3d 126, 2012 Fla. App. LEXIS 974, 2012 WL 204724 (Fla. Ct. App. 2012).

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Opinion

WELLS, Chief Judge.

Keyion Gale appeals from an order denying as untimely his Florida Rule of Criminal Procedure 3.850 motion to vacate his no contest plea, which was entered on May 9, 2009. The postconviction motion, which was filed on July 12, 2011, claimed that the trial court failed to inform Gale of the deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172(c)(8). We affirm the denial of this claim because it was not raised within the two-year period prescribed by Rule 3.850. See State v. Green, 944 So.2d 208, 219 (Fla.2006) (providing that “a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final”). The postconviction motion also claimed that trial counsel failed to advise Gale that accepting a plea would subject him to deportation, citing to Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We affirm the denial of this claim as this court has found that Padilla has no retroactive effect, and thus does not apply to pleas taken before Padilla was announced. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Affirmed.

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WELLS, Chief Judge.

Keyion Gale appeals from an order denying as untimely his Florida Rule of Criminal Procedure 3.850 motion to vacate his no contest plea, which was entered on May 9, 2009. The postconviction motion, which was filed on July 12, 2011, claimed that the trial court failed to inform Gale of the deportation consequences of his plea as required by Florida Rule of Criminal Procedure 3.172(c)(8). We affirm the denial of this claim because it was not raised within the two-year period prescribed by Rule 3.850. See State v. Green, 944 So.2d 208, 219 (Fla.2006) (providing that “a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final”). The postconviction motion also claimed that trial counsel failed to advise Gale that accepting a plea would subject him to deportation, citing to Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We affirm the denial of this claim as this court has found that Padilla has no retroactive effect, and thus does not apply to pleas taken before Padilla was announced. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).

Affirmed.

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79 So. 3d 126, 2012 Fla. App. LEXIS 974, 2012 WL 204724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gale-v-state-fladistctapp-2012.

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