Alfred C. Canseco v. State of Florida (SC09-1535)

SUMMARY: 7-0 Decision. The Court held that a defendant was not entitled to an extension of time to withdraw his plea under State v. Green when more than two years had passed since the defendant received actual notice of deportation proceedings and filing his motion to withdraw plea. The Court affirmed the 1st DCA and answered its certified question in the negative.

This case is before the Court for review of the decision of the First District Court of Appeal in Canseco v. State, 12 So. 3d 923 (Fla. 1st DCA 2009). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO. 2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA. Canseco, 12 So. 3d at 923.

In Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), the Second District Court of Appeal demonstrated clearly how the two-year Green window was intended to operate. In Ventura, the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795. In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id. His motion was dismissed without prejudice because of an outstanding arrest warrant. Id. Ventura refiled his motion in December 2006, which the trial court dismissed relying on Green, noting that Ventura filed his motion more than two years after his case was final. Id. On appeal to the Second District, Ventura argued that the trial court misread Green, to which the Second District agreed, stating: Under Green a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging “that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.” The trial court‟s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation. Ventura, 977 So. 2d at 796-97 (citation omitted) (quoting Green, 944 So. 2d at 219).

Canseco‟s argument—that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea—is not supported by a logical reading of the opinion. If Canseco‟s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart‟s guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court‟s intent. Indeed, no district court has interpreted Green to provide such a result. Accordingly, we answer the certified question in the negative and approve the decision below.