         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


JULIAN PLUCK,

             Appellant,

 v.                                                     Case No. 5D18-1742

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed August 10, 2018

3.850 Appeal from the Circuit
Court for Brevard County,
Nancy Maloney, Judge.

Christopher T. Cochran, Merritt Island, for
Appellant.

No Appearance for Appellee.


LAMBERT, J.

      Appellant challenges the summary denial of his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850.          Because the record

conclusively refutes the claims raised by Appellant in his motion, we affirm.

      In February 2017, Appellant was charged with possession of a controlled

substance with the intent to sell or deliver. Six months later, pursuant to a negotiated

plea agreement, the trial court accepted Appellant’s no contest plea, withheld an

adjudication of guilt, and placed Appellant on eighteen months of probation.
       Appellant thereafter timely filed the present motion alleging that his trial counsel

was ineffective for failing to properly advise him of the possible deportation consequences

of his plea. Appellant asserted that he is now being deported as a result of his plea and

that if he had been properly advised by his counsel, he would not have tendered this plea.

Appellant further alleged that the deportation warning provided to him by the trial court

was “defective,” and he moved that his plea be vacated and that he be allowed to proceed

to trial. In denying the motion, the postconviction court attached to its order a copy of the

transcript of the change of plea hearing and held that this transcript conclusively refuted

Appellant’s claim that his plea was involuntary because he was not properly advised of

the potential deportation consequences. We agree.

       Before accepting a plea of guilty or nolo contendere, Florida Rule of Criminal

Procedure 3.172(c) requires that a trial judge make certain inquiries of defendants and

issue standard warnings to them to ensure the voluntariness of their plea. Prior to

January 1, 2016, subsection (c)(8) of this rule required that a judge advise a defendant

that if he or she is not a United States citizen, a plea of guilty or nolo contendere may

subject him or her to deportation pursuant to the laws and regulations governing the

United States Immigration and Naturalization Service. In Hernandez v. State, 124 So. 3d

757 (Fla. 2012), the Florida Supreme Court held that this equivocal warning that a guilty

or nolo contendere plea “may subject you” to deportation does not bar ineffective

assistance of counsel claims in every instance, especially where deportation

consequences are “truly clear.” 124 So. 3d at 762. Under such circumstances, the court

concluded that “an equivocal warning from the trial court is less than what is required from




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counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s

deficiency.” Id. at 763.

       Following the court’s opinion in Hernandez, rule 3.172(c) was amended effective

January 1, 2016, as to the various requirements placed upon the trial judge before

accepting a guilty or nolo contendere plea. See In re Amendments to the Fla. Rules of

Criminal Procedure, 188 So. 3d 764, 766-71 (Fla. 2015). The judge, when determining

the voluntariness of a plea, must now place the defendant under oath, address the

defendant personally, and determine on the record that the defendant understands

certain rights enumerated in this rule. Id. at 766. The former subsection (c)(8) of the rule,

including the brief admonition given to the defendant that a plea of guilty or nolo

contendere “may subject” him or her to deportation, was deleted in its entirety and

replaced with the following expanded version:

              (8) Deportation Consequences.

              (A)    If the defendant is not a citizen of the United States, a
              finding of guilt by the court, and the court’s acceptance of the
              defendant’s plea of guilty or no contest, regardless of whether
              adjudication of guilt has been withheld, may have the
              additional consequence of changing his or her immigration
              status, including deportation or removal from the United
              States.

              (B)    The court should advise the defendant to consult with
              counsel if he or she needs additional information concerning
              the potential deportation consequences of the plea.

              (C)    If the defendant has not discussed the potential
              deportation consequences with his or her counsel, prior to
              accepting the defendant’s plea, the court is required, upon
              request, to allow a reasonable amount of time to permit the
              defendant to consider the appropriateness of the plea in light
              of the advisement described in this section.




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                (D)    This admonition should be given to all defendants in all
                cases, and the trial court must not require at the time of
                entering a plea that the defendant disclose his or her legal
                status in the United States.

Fla. R. Crim. P. 3.172(c)(8).

       Returning to the present case, the transcript of the plea hearing attached to the

order on appeal conclusively shows that counsel was not ineffective and that the trial

court and counsel complied with the new requirements of rule 3.172(c)(8).                 First,

Appellant’s counsel represented to the trial court that the case had in fact been continued

several times to provide Appellant with the opportunity to consult separately with

immigration attorneys to discuss the potential effect that his plea may have regarding his

possible deportation. 1 Second, Appellant was placed under oath and, in response to the

court’s direct inquiry, testified that he understood that entering his plea may have

deportation consequences. Appellant also testified that he had separately consulted with

an attorney about these deportation consequences and that he still believed that it was in

his best interest to enter his plea. Lastly, the trial court found that Appellant understood

that by tendering his no contest plea, he was giving up certain constitutional rights

previously addressed at the hearing and that Appellant had entered into the plea freely

and voluntarily with the understanding of the consequences of the plea.

       To establish an ineffective assistance of counsel claim, a defendant must first show

that counsel’s performance was deficient and, second, that the deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where,

as here, no evidentiary hearing is held on the rule 3.850 motion, the defendant’s factual




       1   Counsel volunteered to the trial court that Appellant is not a United States citizen.


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allegations in the motion must be accepted as true to the extent that they are not

conclusively refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). As

outlined above, Appellant’s claims were conclusively refuted by the record attachments

to the order on appeal.    Accordingly, we affirm the postconviction court’s denial of

Appellant’s rule 3.850 motion.


      AFFIRMED.

EDWARDS and EISNAUGLE, JJ., concur.




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