5D08-4410 Antonio Martell v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-4410

Case Date: 07/13/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2009

ANTONIO MARTELL, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 17, 2009 3.850 Appeal from the Circuit Court for Volusia County, Patrick G. Kennedy, Judge. Oscar J. Rodriguez, of Law Offices of Oscar J. Rodriguez, Coral Gables, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D08-4410

PER CURIAM. Antonio Martell appeals the summary dismissal of his amended motion to vacate judgment and plea filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The circuit court entered an order that found the motion to be facially insufficient because Martell failed to allege that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within the two-year limitation period of rule 3.850 and granted Martell leave to amend. Martell filed an amended motion that again failed to include that allegation, and the court dismissed the

amended motion with prejudice. Because Martell's motion was filed within two years of State v. Green, 944 So. 2d 208, 218 (Fla. 2006), Martell was not required to plead his inability to determine the immigration consequences of his plea. See Burrell v. State, 989 So. 2d 713 (Fla. 1st DCA 2008). Accordingly, the order summarily dismissing Martell's amended motion is reversed and the case is remanded for consideration on the merits. REVERSED and REMANDED.

SAWAYA, EVANDER, JJ., and PLEUS, JR., R., Senior Judge, concur.

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