June 2, 2008

Withdrawal of a Guilty or No Contest Plea to a Crime in Florida Due to Possible Deportation

Criminal defendants in Florida who are subject to deportation if they plead guilty or no contest to a crime must be informed of the possibility of deportation before they enter a plea of guilty or no contest to a crime. This is typically done during what is called the plea colloquy where the judge informs the criminal defendant of his or her rights prior to pleading guilty or no contest to a crime.

The criminal defense lawyer for a defendant should also determine if the client is subject to deportation if he or she pleads guilty or no contest to a crime and discuss this with the defendant before the decision to enter the plea is made.

If a criminal defendant in Florida (who is subject to being deported) pleads guilty or no contest to a crime without being told that he or she could be deported as a result of the guilty or no contest plea, the criminal defendant may be allowed to withdraw his or her guilty or no contest plea. The result of a withdrawal of the plea is that the defendant is in the same position he or she was in before the guilty or no contest plea was entered. The same charges are still pending.

For a criminal defendant to withdraw a guilty or no contest plea in Florida under these circumstances, certain factors must be present. The criminal defendant, who is now subject to deportation, must not have been informed of this fact prior to pleading guilty or no contest to a crime. The criminal defendant (or his criminal defense attorney) must file the motion to set aside the guilty or no contest plea within two years of the date the judgment and sentenced were entered. There is an exception to the two year period if the criminal defendant did not, despite his or her efforts, have any reason to know of the possibility of deportation. The defendant must also show that had he or she known of the possibility of deportation, he or she would not have plead guilty or no contest to the crime. The defendant does not have to prove that deportation proceedings have been initiated or even threatened.