final until disposition of timely filed motion for rehearing.
appeals from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Dennis Bailey, Judge; L.T. Case Nos.
14-9573 CF10A, 14-10948 CF10A and 14-11681 CF10A.
Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellant.
A. Howard, Fort Lauderdale, for appellee.
state appeals an order granting Pierre-John Lundy's
motions to vacate his pleas, judgments, and sentences.
Because the trial court erred by not directing the state to
respond to Lundy's motions and in failing to hold an
evidentiary hearing where it was clear that one was needed,
we must reverse and remand for further proceedings.
a Haitian national in the United States on temporary
protected status, was charged with various misdemeanor and
felony crimes in three separate cases and entered pleas of
nolo contendere in all three cases at a single hearing. The
trial court withheld adjudication on all counts except one
and placed Lundy on community control for eighteen months, to
be followed by three and a half years of probation. The trial
court did not advise Lundy of potential immigration
consequences, and at one point referred to him as a
later moved to vacate his pleas, judgments, and sentences.
Lundy attached to his motion a letter from U.S. Citizenship
and Immigration Services informing Lundy that his temporary
protected status was withdrawn due to his convictions. His
motion alleged that, at the time of his plea, the court
failed to advise him that a conviction would subject him to
mandatory revocation of his protected status and deportation
and that he would have gone to trial had he known of the
harsh immigration consequences.
counsel explained that Lundy's motions were filed just
one week prior to the hearing and scheduled for a hearing
with two days' notice because Lundy had been removed from
his home by United States Immigration and Customs Enforcement
and was being held at a federal detention center. At the time
the motions were filed, it was unclear if and when Lundy
would be deported.
merits, counsel argued that Lundy's pleas should be
vacated because there was no mention of immigration
consequences during the plea colloquy. The state admitted
that there was no mention of immigration consequences at the
hearing, but argued the trial court's omission was
immaterial if Lundy's attorney at the time advised him of
such consequences. The state requested a continuance in order
to subpoena Lundy's former counsel. When the trial court
raised the time sensitivity issue, the state contended,
"[W]e can't respond. We can't argue this motion
with one day notice when we have to subpoena the
witness." The trial court granted Lundy's motions
based on the transcript of the plea colloquy and his
assertion in his sworn motion indicating that he was not
advised of the potential immigration consequences.
appeal, the state contends that the trial court erred in
summarily granting the motions to vacate without first
ordering the state to respond or holding an evidentiary
hearing as required by Florida Rule of Criminal Procedure
3.850(f)(6). We agree.
order vacating a judgment is reviewed de novo. See State
v. Joubert, 847 So.2d 1023, 1025 (Fla. 3d DCA 2003).
Motions to vacate a sentence are governed by Florida Rule of
Criminal Procedure 3.850. In pertinent part, the rule
Motions Requiring a Response from the State
Attorney. Unless the motion, files, and records in the
case conclusively show that the defendant is entitled to no
relief, the court shall order the state attorney to
file, within the time fixed by the court, an answer to the
motion. The answer shall respond to the allegations contained
in the defendant's sufficiently pleaded claims, describe
any matters in avoidance of the sufficiently pleaded claims,
state whether the defendant has used any other available
state postconviction remedies ...