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126 So. 3d 444

Gomez v. State

District Court of Appeal of Florida

Decided November 13, 2013

District Court of Appeal of Florida · decided 2013-11-13

Cited by 2 later decisions — most recently February 2019

2 state decisions

Relies on 944 So. 2d 208 - State v. Green · Gusow v. State · State v. Johnson

Good law ✅— No negative treatment on recordhow we know

Decided 2013-11-13

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PER CURIAM.

¶1We affirm the denial of appellant’s untimely motion for postconviction relief. In it, appellant alleged that his attorney mi-sadvised him as to the consequences to his immigration status of his plea and sentence. He pled no contest to sale or delivery of controlled pills (MDMA, known as “ecstasy”) and received a withhold of adjudication with eighteen months of probation. When his green card, allowing him legal residency in this country, came up for renewal six years later, he discovered that, even though his attorney had advised him that a withhold of adjudication might prevent deportation, deportation for the crime was automatic, regardless of the withholding of adjudication. He moved for postconviction relief based upon his attorney’s misadvice, which the trial court denied.

¶2His motion was untimely. See Marshall v. State, 983 So.2d 680, 682-84 (Fla. 4th DCA 2008) (time for bringing a postconviction ineffective assistance claim based upon misadvice of counsel commences on *445the date conviction and sentence becomes final); see also Gusow v. State, 6 So.3d 699, 705 (Fla. 4th DCA 2009) (same). Those cases apply the rule of State v. Green, 944 So.2d 208 (Fla.2006), which holds that a postconviction claim of an involuntary plea based upon failure to advise of deportation consequences must be brought within two years of the conviction becoming final. In Marshall, we found that the reasoning of Greenshould also apply in cases of misadvice.

¶3In Marshall, we certified conflict with Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002), and State v. Johnson, 615 So.2d 179 (Fla. 3d DCA 1993). This conflict has never been resolved, although Rodriguezand Johnsonwere both decided prior to Green, which we conclude controls this issue.

¶4Affirmed.

WARNER, MAY and FORST, JJ., concur.
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