GASTON vs. STATE OF FLORIDA

Supreme Court of Florida

____________

No. SC05-1901

____________

MARIO GASTON,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[February 8, 2007]

PARIENTE, J.

We have for review State v. Gaston, 911 So. 2d 257 (Fla. 3d DCA 2005), in which the Third District Court of Appeal certified conflict with Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), quashed, 944 So. 2d 208 (Fla. 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

In Gaston, the defendant moved to withdraw a plea of guilty to a charge of carrying a concealed firearm entered a decade earlier. 911 So. 2d at 258. Gaston asserted that the trial court did not advise him that the plea might subject him to deportation and that he was subsequently advised by an immigration attorney that he would be subjected to deportation proceedings if he applied for residency. Id. The trial court granted the motion but the Third District reversed, concluding that Gaston had not stated a prima facie case by pleading that he was specifically threatened with deportation because of the plea. Id.

In Peart v. State, 756 So. 2d 42 (Fla. 2000), we held that to establish prejudice arising from a trial court's failure to advise a defendant of deportation consequences of a plea, a defendant â€