Opinion
No. 3D19-2018
11-27-2019
Reiner DE QUESADA, Appellant, v. The STATE of Florida, Appellee.
Martin Beguiristain, Miami, for appellant. Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
Martin Beguiristain, Miami, for appellant.
Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
Before FERNANDEZ, MILLER, and GORDO, JJ.
MILLER, J.
Appellant, Reiner de Quesada, challenges the summary denial by the lower tribunal of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion filed below, de Quesada contended his charging document was fundamentally defective, thus, his sentence was illegal, and his plea was involuntary, as trial counsel misadvised him of the immigration consequences of the plea. For the reasons set forth below, we discern no error and affirm.
FACTS AND BACKGROUND
On May 8, 2006, de Quesada was charged by information with one count of trafficking in cannabis, in violation of section 893.135(1)(a), Florida Statutes. The charging document specified that de Quesada possessed "in excess of 25 pounds, but less than 2000 pounds" of cannabis. Accordingly, he was subject to a "mandatory minimum term of imprisonment of [three] years," along with a $25,000 fine. § 893.135 (1)(a)(1), Fla. Stat.
On July 12, 2007, in anticipation of a negotiated plea, the State manually reduced the charges on the face of the information, to reflect possession of cannabis with intent to sell, in violation of section 893.13(1)(a)(2), Florida Statutes. Immediately thereafter, de Quesada entered a plea of guilty to the lesser charge, as reflected in the amended information, and received a withhold of adjudication followed by three years of probation with certain special conditions. De Quesada did not appeal his judgment and sentence and after he fulfilled all probationary conditions, his probation was terminated expeditiously.
On October 15, 2018, de Quesada filed a motion for postconviction relief, asserting that his trial counsel failed to advise him of potential immigration consequences stemming from his plea. The trial court summarily denied the motion. On April 29, 2019, de Quesada filed an amended postconviction motion, again citing the purported immigration misadvice and inserting a contention that the charging document was fundamentally defective. The court denied the motion and the instant appeal ensued.
STANDARD OF REVIEW
"The standard of review of a summary denial of a rule 3.850 motion is de novo." Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th DCA 2012) (citing McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) ("To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.")).
LEGAL ANALYSIS
Rule 3.850 provides a "two-year time limitation for filing motions for postconviction relief." Pearson v. State, 141 So. 3d 722, 722 (Fla. 3d DCA 2014) ; see Fla. R. Crim. P. 3.850(b) ("A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than [two] years after the judgment and sentence become final."). Nevertheless, "[d]ue process of law requires the State to allege every essential element when charging a violation of law to provide the accused with sufficient notice of the allegations against him." Price v. State, 995 So. 2d 401, 404 (Fla. 2008) (citing Art. I, § 9, Fla. Const.; M.F. v. State, 583 So. 2d 1383, 1386-87 (Fla. 1991) ). Accordingly, "[w]here an information wholly omits an essential element of the crime it is a defect that can be raised at any time." Price, 995 So. 2d at 404 (citation omitted); see State v. Burnette, 881 So. 2d 693, 694-95 (Fla. 1st DCA 2004) ("An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.") (citation omitted).
In the instant case, although the State inscribed the words "possession with intent to sell cannabis" on the face of the information, it neglected to pen the corresponding elements. However, "even where the body of a charging instrument omits an essential element, such an error is a waivable technical defect, if the charging instrument references the correct statute, and the statute sets forth the required elements." Huckaba v. State, 260 So. 3d 377, 382 (Fla. 1st DCA 2018) (citation omitted). Here, the amended information indeed cited the correct statute and the statute itself set forth the required elements. Hence, "the charging instrument in this case did not wholly fail to state a crime and was not fundamentally defective." Id.
Finally, as the information was amended to allow the parties to circumvent the application of the minimum mandatory term of imprisonment, de Quesada "cannot take advantage on appeal of an error which he himself induced." Andrews v. State, 343 So. 2d 844, 846 (Fla. 1st DCA 1976) (citations omitted); see State v. Ortiz, 79 So. 3d 177, 178 (Fla. 3d DCA 2012) (finding defendant had fully served his sentence, thus had "reaped the benefit" and was "estopped" from challenging the legality of the sentence); cf. Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888, 890 (Fla. 1962) ("[A]dvantage must be timely taken of the failure to comply with the constitutional provisions [of filing an information by authorized prosecutors] else they will be deemed to have been waived."); Acton v. State, 457 So. 2d 540 (Fla. 2d DCA 1984) (erroneous statutory citation in information waived by plea without objection and colloquy); Shanklin v. State, 369 So. 2d 620, 622 (Fla. 2d DCA 1979) ("[A]ppellant's plea of guilty to the crime of battery of a law enforcement officer, after the state had properly laid a factual basis, constituted a tacit amendment of the information to properly charge that offense.").
De Quesada further asserts error in the denial of the claim his plea was involuntary for failure to warn of likely immigration consequences. As he filed his motion well beyond the two-year limitation, entirely failed to articulate any prejudice, and did not allege "he could not have ascertained the immigration consequences of his plea during two-year period after his judgment became final with the exercise of due diligence," we discern no error. Wallace v. State, 264 So. 3d 389, 392 (Fla. 5th DCA 2019) (citing State v. Green, 944 So. 2d 208 (Fla. 2006) ); see Jules v. State, 233 So. 3d 1196, 1200 (Fla. 3d DCA 2017) ("[The defendant] was required to allege in his motion ... that, in the exercise of due diligence, he could not have ascertained the possible immigration consequences of his plea."); see also Blackwood v. State, 217 So. 3d 1146, 1147 (Fla. 2d DCA 2017) ("In order to succeed on a claim of ineffective assistance of counsel, a movant ‘must show that counsel's performance was deficient [and] ... that the deficient performance prejudiced the defense.’ ") (alterations in original) (citation omitted).
"[W]ithout a timely notice of appeal or without the granting of a belated appeal, [the] convictions and sentences bec[o]me final thirty days after being imposed." Jones v. State, 922 So. 2d 1088, 1090 (Fla. 4th DCA 2006) (citation omitted).
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Accordingly, we affirm the order under review.
Affirmed.