PLEASE THE COURT, JAMES CARNEY FROM THE STATE OF FLORIDA.

CHIEF JUSTICE: YOU MIGHT WANT TO SPEAK UP AND W E'LL TRY TO GET THE MIC TO S PEAK UP.

JIM CARNEY FOR THE S TA TE OF FLORIDA, PETITIONER . JUST L IKE T O BRI EF LY D O A BRIEF HISTORY O F THE O UT LINE OF THE HISTORY IN T HIS CAS E. T HE DEFENDANT PLED THE TWO MISDEMEANORS, APPROXIMATELY TEN YEARS LAT ER HE M OV ED T O A G AU SE P LE A S AYIN G H E WAS SUPPORT TO D EP OR TATI ON A S A RESULT OF THE TWO MISDEMEANORS.

JUSTICE: AS A PRELIMINARY QUESTION, I S T HERE A - - I N THE RECORD IN THI S C AS E A TRANSCRIPT OF T HE P LE A ?

NO, YOUR H ONOR , I 'M N OT QUITE SURE WHERE T HE F OURT H DISTRICT GOT THAT FROM. IT IS UND IS PUTED BETWEEN THE PARTIES THAT THERE IS NO TRANSCRIPT. I T DOESN'T EXIST.

JUSTICE: S O WE D ON'T K NO W ONE WAY OR THE OTHER WHETHER THE TRIAL COURT ADVIS ED A S A MATTER OF THE R EC OR D W HETHER THE TRIAL C OURT A DV ISED THI S DEFENDANT.

CORRECT, YOUR HONOR.

JUSTICE: IS THAT COR RE CT?

YES. ANYWAY, THE DEF ENDANT M OV ED ABOUT TEN YEARS AFTER T HE PLEA TO WIT HD RA W T HE P LE A , ALLEGING THAT HE WAS DEP ORTABLE AS A RESULT OFTHE PLEA.

CHIEF JUSTICE: DID HEMOVE TO D O THIS WI THIN T HE WINDOW THAT P EART S ET OUT ?

IT IS NOT C LEAR F RO M T HE PLEADING. THAT IS ONE O F T HE STA TE 'S ARGUMENTS THAT IS T HA T T HE PLEADING WAS I NSUFFI CI ENT BECAUSE HE DOESN'T ALLEGE WHEN HE LEA RNED O F D EPORTATION N O MAT TE R H OW I T IS DEFINED.

CHIEF JUSTICE: BUT IT IS THE S TATE'S POSITION THAT THE P REJUDICE THAT W OULD REQUIRE OR STA RT THE CLO CK T ICKING WOULD BE T HE ACT UA L INITIATION OF DEPORTA TION?

YES, YOUR HONOR.

CHIEF JUSTICE: MY C ONCERN WITH THAT, WHICH I S I T DOE S SEE M LIKE THAT IS A BRIGHT-LINE RULE B UT WOULDN'T THAT MEAN THE N T HA T IN CERTAIN SIT UA TI ON S I T COULD BE TWO D EC ADES L AT ER THAT A D EFEN DA NT SEEKS T O W ITHDRAW ?

I F E VE R , BUT T HA T I S THE POINT.IT MAY NEVER H AP PE N .

CHIEF JUSTICE: BUT THE STATE FEELS THAT THAT'S A B ETTER POLICY THA N T HE EARLIER D AT E W HICH I S I F THERE IS A POSSIBILI TY OF THAT HAPPENING IT SHOULD JUST BE WITHIN TWO Y EA RS OF THE PLEA ACTUALLY H AVIN G B EEN E NT ERED T HA T SOM EONE HAS TO B RI NG A C LAIM T HA T THEY WERE M IS INFORMAT IO NED? I MEAN, THOSE ARE S ORT O F THE TWO, YOU K NO W , ONE-HANDED, Y OU'VE GOT TO D O IT TWO YEARS AFTER YOUR P LEA WAS E NT ER ED , W ITHD RA W IT WITH YOU W ER EN'T A DVIS ED O F THE CONSEQUENCES OF DEPORTATION AND YOU THINK YOU HAVE A POSSIBILITY OR THE OTHER I S Y OU J US T H AV E TO WAIT U NTIL THE G OVER NMENT IS GOING TO DO S OM ETHING BEFORE YOU GET T O W IT HDRA W A PLEA ON THAT B ASIS .

WHAT THE T ES T W AS I N P EART WAS WITHIN T WO Y EA RS OF WHICH HE LEARNS OF THE THREAT OF DEP OR TA TI ON. THE QUESTION I S - -.

CHIE F JUSTICE: THE QUESTION IS WHAT DOES THE THREAT M EA N ?

THAT REA LLY W AS N'T A N ISSUE I N P EA RT , BUT - -.

JUSTICE: ANOTH ER PRACTICAL QUESTION WITH REGARD TO THAT, I'M NOT S UR E THE RECORD D EM ONST RA TES , B UT IF WE TAK E THIS B RIGH T- LI NE APPROACH THAT HE MUST B E SUBJECT TO DEPORTATION , WHA T ARE THE P RACT IC AL IT IES. I MEAN, COULD AN I NDIVIDUAL ONCE THEY RECEIVE THAT NOTICE OR WHATEVER IT IS , THEN ATTEMPT T O FIL E T HE PLEADING A ND C OULD I T P UT U S I N A CIR CU MS TA NCE S O T HA T YOU ARE DEP OR TE D BEFOR E Y OU CAN GET THE P RO CE ED INGS TOTALLY FINISHED? IT COULD END UP H ERE AND TAKE A YEAR OR S O O R T WO YEARS? WHAT DO WE KNOW A BOUT PRACTICAL RAMIFICATIONS OF SELECTING THAT DATE? WOULD THAT MAKE I T ELU SA RY ?

FIRST OF ALL , I F S OMEO NE IS HONESTL Y P AR ANOI D A BO UT THAT THEY COULD ALR EADY HAVE THE PLE ADIN G P REPARE D I F THEY WERE WORRIED ABOUT THAT.

JUSTICE: THEY WOULDN'T KNOW.

OKAY. I'M SORRY.

JUSTICE: T HEY WOULD NOT KNOW. YOU SAY T HEY HAVE IT PREPARED. I GUESS YOU COULD PREPARE IT THE DAY AFTER THE PLEA , B UT SIGNIFY !!IES T HE Y KNO W SOMETHING SO I THINK WHAT YOU WERE SAYING IS I M EA N W E NEED A DATE WHE N THE Y KNOW WHAT IS GOING ON. IF YOU SAY T HAT THEN I T SEEMS TO ME THAT T HE THR EA T THA T T HEY K NO W A T THE T IME OF THE PLEA THEN WHA T A RE W E HERE ABOUT?

NO, I WOULD T HAN ASS UMING THEY WOULD FIND OUT A FT ER THE PLEA BUT BEF OR E DEPORTATION PROCEED INGS.

WOULDN'T THAT U NDER P EART THEN SAY Y OU NEE D T O FIL E IT WITHIN TWO YEARS FROM THEN?

I THINK T HAT' S W HA T PEART DOES S AY . I'M SORRY , NO , N O .

JUSTICE: YOU ARE NOT SAYING THAT?

NO.

JUSTICE: I'M T RY ING T O UNDERSTAND THE PRACTIC ALITIES OF THIS.

LET ME SAY THA T I 'M NOT AN EXPERT IN IMMIGRATION L AW BUT I DO K NO W THA T DEPORTATION P ROCEEDINGS DON'T HAPPEN O VERNIG HT. YOU GET A NOTICE TO A PP EA R UNDER THE STATUTE. YOU HAVE TIME TO G ET A N ATTORNEY. YOU THEN A PPEAR B EF OR E A JUDGE, IMM IG RA TI ON J UDGE . Y OU THEN HAVE A RIGHT O F APPEAL TO THE B IA AND I N C ERTAIN CIRCU MSTANCES LIMITED YOU DON'T HAVE AN ABSOLUTE RIGHT TO APPEAL.YOU HAVE A RIGHT T O A PP EA L TO THE FEDERAL COURT S SO I T IS NOT SOMETHI NG T HA T Y OU ARE NOT GOING TO B E P UT ON A BOAT O VERN IGHT .

JUS TICE: THAT' S E ASY F OR YOU TO SAY BUT T HA T M AY N OT BE THE REALITY AND MAY NOT BE THE REA LITY W IT H REF ERENCE TO WH ETHE R OR N OT SOMEBODY IS BEING D ET AI NE D OR THAT KIND OF T HI NG . HOW A BOUT ARTIC UL AT IN G F OR US JUST EXACT LY W HA T THE STATE'S POS ITION IS. IN OTHER WORDS, WHA T R ULE WOULD YOU HAVE U S A NNOU NCE COMING OUT OF THI S ASSUM IN G THAT WE G ET THAT FAR I N T HE CASE? W HAT RULE WOULD YOU H AV E U S A NNOUNCE ?

THAT THE THREAT O F DEPORTATION A RISES AT THE TIME THAT THE NTA IS I SS UE D.

J USTICE: DOESN'T T HAT G O CONTRARY TO US WAN TING T O ENCOURAGE PEOPLE, YOU K NO W , TO ACT P RO MP TL Y A ND Q UICK LY AND D IS POSE O F T HESE CLA IM S AND ALS O A LM OS T R EQ UI RE P EOPLE THAT, YOU KNOW , ONC E THEY ARE PUT ON NOT IC E O F SOMETHING THAT REALLY THE C LOCK OUGHT TO START R UN NI NG AND ACTUA LL Y THEY SHOULD B E THEN CUT O FF F RO M B RING ING THE CLAIM IF THEY HAD AN EARLIER OPPORTUNITY W HE N THEY WERE ON N OTIC E. WHY WOULDN'T THA T M AK E A L OT MORE SENSE? THAT IS , T O V IRTU ALLY REQUI RE T HEM. THAT IS, IF YOU C OULD F IN D OUT AFTER T HEY BROUGHT A CLAIM, FOR INS TANC E, W EL L , FIVE YEARS BEFORE T HE Y ACTUALLY GOT A LETTE R , THA T SAID, YOU KNOW , W E' VE CHECKED YOUR REC OR D A ND I T LOOKS LIKE YOU'VE GOT A PROBLEM , AND , Y OU KNO W , BECAUSE OF THIS P RI OR OFFENSE AND I F Y OU C OULD ACTUALLY USE THA T LET TE R T O PREVENT THEM F RO M BRING IN G A CLA IM BECAUSE THEY KNE W F IVE YEARS BEFORE T HA T TH EY WER E UNDER THREAT. WOULDN'T THAT BE A B ET TE R T HING TO E NC OURA GE T HE EARLIER BRINGING O F C LA IMS AND ACTUA LLY C UT O FF T HESE CLAIMS IF S OMEBODY WAS O N NOTICE AND THEY DIDN'T ACT ?

I T HINK A S A PRA CTIC AL MATTER, THE HYPOT HETICAL YOU ARE OUTLINING WOULD BE A RARE OCCASION.I THINK UNDER THE TEST THAT THE FOURTH DCA O UTLI NED I THINK IT WOULD BE V ER Y HAR D FOR THE STATE I N M OS T CIRCUMSTANCES TO DISPUTE WHEN THE D EFEN DA NT C LA IM S THAT HE LEARNED OF THE THREAT OF DEP OR TATION. SO I DON'T THINK THAT WOULD NECESSARILY R ES UL T I N T HESE CLA IMS BEING B RO UG HT ANY EARLIER.

CHIEF JUSTICE: IF WE TAKE A T WO-Y EA R - - Y OU S EE , THE PROBLEM I'M H AVING IS I GUESS DO YOU LEARN YOU COULD BE DEP ORTED O R YOU W OULD B E DEPORTED AND T HE W HOLE I DE A OF THE I NV OL UNTA RY P LE A I S THA T H OP EF UL LY T RI AL C OU RT S DO TEL L T HE D EFEN DA NT A S PART OF THE S TANDAR D C OLLOQUY T HA T T HE Y C OULD B E DEPORTED A ND A LL W E A RE TALKING A BOUT I N P EART IS THAT IF T HE Y D ON'T T ELL T HE M THAT T HE N THE Y HAV E THE R IGHT TO W ITHD RA W T HE P LE A FROM THE TIME THAT THE Y K NO W THAT THE Y K NO W T HEY COULD BE D EPORTED.

RIGHT. BUT WHAT I AM SAYIN G I S T HA T FIRST OF ALL THE STATE HAS AN INTEREST I N FIN ALIT Y.

CHIEF JUSTICE: THAT'S WHY I AM W ON DE RI NG W HY YOU D ON 'T WANT IT TO BE JUS T I F T WO YEARS IS GONE UNL ESS THE Y REALLY DIDN'T LEARN OF I T FOR YEARS LATER , BUT , Y OU KNOW, S OMEBODY W HO I S SUBJECT TO DEPORTA TION W HICH MEANS THAT THEY ARE H ER E O N SOME KIND OF A V IS A O R T HE STATUS WOULD ALMOST B E O N NOTICE THAT T HAT'S A P OSSIBILITY AND CERTAINLY LEARN OF IT IN T WO Y EARS .

WELL , IF THI S C OURT WANTED TO M AKE IT A STRAI GH T TWO YEARS THE STATE PROBA BL Y WOULDN'T HAVE A PROBLEM WITH THAT.

JUSTICE: WITH THE EXCEPTION, OF COU RSE , IF THEY C OULD DEM ON ST RATE THA T THEY WEREN'T AWARE OF IT.

THE PROBLEM WITH THA T EXCEPTION IS THAT THEY COULD -- IN A LOT O F C IR CUMSTANCES THEY COULD JUST PICK O UT A NY TIME THEY W ANTED. BECAUSE IT W OU LDN'T RESULT IN THE CLAIM S N ECES SA RILY BEING BROUGHT A NY SOONER. THEY COULD SAY, HEY , I'M GOING TO - -.

JUSTICE: BUT THIS IS THE CIRCLE ABOUT REQUIRING THE COURT TO DO IT. THAT IS THA T T HE WHO LE REQUIREMENT OF HAVING T HE COURT DO IT I S T HA T E VE N THOUGH YOU WOULD HOPE T HAT PEOPLE WOULD BE K NOWLEDGEABLE A BOUT THE R ISKS THEY ARE T AK IN G , Y OU KNOW , D EP EN DI NG O N THE IR CIRCU MSTANCES OF BEING HERE AND NOT BEING A C IT IZ EN O R A RESID ENT , T HA T T HE Y W OU LD KNOW THEMSELVES W ITHOUT THE COURT TELLING THEM , B UT BECAUSE WE KNO W T HA T THE SE C ONSEQUENCES ARE S O SER IO US AND ON TH E OTHER HAND W E KNOW T HAT THE Y ARE J US T SIMPLY LOTS OF PEOPLE THAT DON'T KNOW, Y OU KNOW , ABOUT THIS. WE WERE A CT UA LL Y R EQ UIRING THE COURT TO KNOW IT. SO IT IS SORT O F I MPLI CI T THAT THERE HAS TO B E SOM E - - GAIN SOME KNOWLEDGE SOM E W AY BEFORE MAKING THE C LA IM . ISN'T THERE ? WHY WOULD YOU MAKE A CLA IM IF YOU DIDN'T KNOW I T ?

WELL, WHAT I A M S AYING IS THAT YOU COULD LEARN THE CLA IM AND STILL WAIT T O MAKE IT AND IT WOULD BE V ER Y DIFFICULT FOR THE STATE T O PROVE WHEN THE PERSON ACTUALLY LEARNED OF THE CLAIM SO IT WOULDN'T NECESSARILY -- YOUR R UL E WOULDN'T NECESSARILY RESUL T IN THE CLAIM S BEI NG BRO UG HT ANY SOONER BECAUSE THE DEFENDANT MAY WANT T O W AI T UNTIL THE EVIDENCE IS G ON E AND THEN BRING THE CLAIM.

JUSTICE: WELL , D OE SN 'T THAT BRING UP THE W HO LE PROBLEM WITH WHETHER YOU ARE TALKING ABOUT AT THE T IM E DEPORTATION P ROCE ED INGS A RE INSTITUTED OR AT T HE T IM E H E M AY LEARN THAT T HEY M AY INSTITUTE DEPOR TA TION PROCEEDINGS, THE STATE REALLY GET S C AU GH T I N A SITUATION WHERE THIS COULD BE YEARS DOWN THE R OA D S UC H AS IN THIS CAS E , Y OU KNO W , TEN YEARS L ATER W HO KNO WS WHERE THE WITNE SSES WHO COULD HAVE T ES TI FI ED A T A TRIAL IN THIS C AS E W OU LD B E , W HERE ALL OF THE EVI DE NC E IS. I MEAN, THE STA TE R EALL Y I S CAU GHT. SO WHY, WHY ISN 'T T HE STATE HERE ARGUING T HA T R EA LL Y I N THESE KINDS OF S IT UA TION S EVERYONE IS ON N OT IC E , T HE RULES C LEARLY SAY T HAT T HIS IS WHAT T HE J UD GE IS S UPPOSED T O SAY DUR IN G THE PLEA COLLOQUY , GIV E Y OU T HAT INFORMATION ABOUT THE POSSIBILITY IMMIGRATION CONSEQUENCES OF YOU R P LE A S O W HY I SN'T A DEF EN DANT REQUIRED TO B RING T HA T C LAIM WITHIN THE TWO YEARS? LIKE ANY O THER 3 .8 50 C LA IM ?

I THINK A DEFEN DANT SHOULD -- SHOULD BE , BUT PEART DOES NOT SAY THAT. I WOULD A GREE WITH YOU. I THINK THAT'S WHAT THE DISSENT IN PEART SAID.

JUSTICE: B ECAUSE B EYOND THE T WO YEARS, I M EAN , W HA T I SAY I S A P ROBL EM WIT H H OW IN THE WORLD I F Y OU S AY H E SHO ULD HAV E BEEN , W E K NO W H E SHOULD H AV E B EE N GIV EN T HA T INFORMATION BUT WHAT HAPPENS FROM THERE? DOES THE STATE HAVE ANY KIN D OF L ATCH ES A RGUM EN T?

WEL L , N OT - - F IRST O F ALL THE STATE WOULD B E HAP PY WITH THE TWO-YEAR CUT O FF . I THINK THAT WOULD B E A G OO D SOLUTION BUT THAT'S NOT W HA T IS HELD IN P EART .

CHIEF JUSTICE: WASN'T PEART BECAUSE OF THE FACT THAT THESE WERE DEF ENDANTS THAT WERE N OT I N C US TODY AND A GAIN I HAV E G OK T O L OO K BACK. MY CONCERN IS T HIS : I S T HA T AGAIN IF WE SAY THA T T HE CLOCK DOE SN'T START TIC KI NG UNTIL D EP OR TA TI ON PROCEEDINGS START AND SOMEBODY IS -- HAS K NOWN F OR YEARS THAT THEY C OU LD B E SUBJECT TO IT , YOU REALL Y HAVE INT ER FE RE D W IT H T WO POSSIBLE SITUATIONS, WHICH IS T HA T T HE G OV ER NMEN T I S FINALLY DECIDING TO D EPOR T THIS PERSON. NOW THERE I S AN ISSUE O F T HE V OLUN TARINESS OF THE PLE A. YOU HAVE GOT T HE GOV ER NM EN T WHO P ROSECU TE D T HE STATE OF FLORIDA WHO MAY NOT HAV E THAT INFORMATION ANY MORE , AND INSTEAD O F S OMEB OD Y , Y OU KNOW , T HE W ITHD RAWA L O F THE PLEA DOESN'T MEAN THEY ARE NOT GOING TO BE CON VI CT ED I T MEANS THEY HAVE GOT TO B E PUT TO THE TES T S O A LL O F THE SUDDEN 20 YEARS L ATER THEY HAVE GOT TO WITHD RA W THE PLEA. THE EVIDENCE I SN'T THERE A ND NOW BOTH THE STATE AND T HE FEDERAL GOVERNMENT A RE ACTUALLY I N A BAD POS ITIO N BECAUSE OF THAT. WHE REAS IF W E DO I T A T THE EARLIEST POSSIBLE D AT E HOPEFULLY THE EVIDENCE IS REASONABLY F RE SH AND W E AR E NOT RUN NING INT O T HE P ROBL EM THAT JUSTICE LEWIS SAID , WHICH IS SORT OF L OO KI NG AT TWO SEPARATE PRO CE EDIN GS I N STATE AND FEDERAL COURT AND KIND O F H AVIN G U S B E R US HI NG IN ONE OR THE OTH ER O F T HE M . > > WELL, I W IL L G O BAC K TO MY POINT THAT I NSTI TU TING THAT RULE WOULD NOT GUARANTEE THAT THE D EFEN DA NT REALLY BROUGHT IT WHEN H E ACTUALLY LEARNED OF IT. SEC OND , I F THE L EG ITIM AT E CLAIMS THAT THE VAST MAJORITY OF THESE C AS ES A RE LIKELY TO BE VERY OLD , ANYWAY , B EC AU SE T HE R UL E WAS ENA CTED IN 198 9 , I B ELIE VE , AND IT IS P RE TTY MUCH A MATTER OF C OU RS E I N WRI TTEN PLEA AGREE ME NTS AS WEL L AS COLLOQUYS THAT THIS I S DON E NOW.

J US TICE : DOESN'T THE DEFENDANT HAVE AN I NCENTIVE TO BRING THE SE C LA IM S A S SOON AS POS SI BL E B EC AUSE I F IT MATTERS TO HIM A T A LL HE IS GOING TO BE I NCAR CE RATE D AND, THE REFORE, I F A W HA T DRAWL OF THE PLEA IS GOING TO REM OV E HIS INC AR CE RATION O BVIOUSLY HE HAS AN INCENTIVE TO BRING THE CLAIM SO WHY WOULD H E WAI T A FTER FINDING OUT A POSSI BI LI TY O F DEPORTATION TO FILE T HE CLAIM?

WELL, IF H E IS N OT I NCARCERATED HE WOULD NOT NECESSARILY B RING THE C LA IM.

JUSTICE: I'M SORRY?

IF H E IS N OT IN C US TO DY AT THE TIME HE WOULD NOT NECESSARILY BRING T HE C LA IM . UNTIL -- WHICH IS T HE F ACTS OF T HIS C ASE , W HICH ARE THE FACTS OF THIS CASE. THE DEFENDANT WAS NOT I N CUSTODY AT THE TIME HE M OV ED TO WITHDRAW HIS P LE A.

JUSTICE: LET ME A SK YOU THIS. WE SEEM TO SAY T HA T W E SHOULD IMPOSE A BRIGHT-LINE RULE THAT THE A CT UA L INITIATION OF DEPORTATION P ROCEEDINGS SHOULD BEGIN THE PERIOD. IT SEEMS TO ME THA T A LT HO UG H WE CAN RULE T HA T W AY , I N ORDER TO R ESOL VE THE CONFLICT IT IS NOT NEC ESSA RY BECAUSE THE CONFLIC T APP EA RS TO INVOLVE WHE THER THE DENIAL OF PERMA NENT RESIDENCY S TA TU S IS I TSEL F THE THREAT OF DEPORTATION AND WE CAN SIMPL Y A NSWE R , WELL, THAT C ER TAINLY I S N OT ENOUGH TO BE A THREAT T O DEPORTATION , B UT T HERE M AY BE S OM ETHI NG SHORT O F INITIATION OF PROCE EDIN GS THAT WOULD C ONST IT UTE S UCH A THREA T.

WELL , E XCEPT THAT THE PETITION MAKES THE ALLEGATION THAT HE I S DEPORTABLE AS A RESULT OF THE TWO M ISDEME AN OR POS SESSIONS.

JUSTICE: BUT THE CONFLICT IS THE CASES IS B AS ED O N T HE DENIAL O F P ER MANENT RESIDENCY STATUS . IT SEEMS TO ME AND T HE T HI RD DCA SAY S T HA T' S NOT E NOUGH TO CONSTITUTE A T HREAT. THE FOURTH D CA S AY S I T I S AND WE HAVE TO RESOL VE T HA T PARTICULAR CONFLICT. WE COULD RES OLVE IT B ROAD LY OR WE C OU LD R ES OL VE I T N ARROWLY.

I THI NK T HA T THE 4TH ACT UALLY S AI D T HA T THE DEFENDANT ALLEGING THAT HE IS GOING TO B E DEPORTE D AS A RESULT OF THE SE TWO CONVICTIONS CONSTITUTES A THREAT OF DEPORTATION . > > JUSTICE: CERTAINLY I THINK ALL OF THE CASES REQUIRE MORE THAN AN ALLEG ATION THAT HE IS DEPORTABLE NOW.

AT T HAT POINT YOU CAN G ET A N E VIDE NT IARY H EARING AFTER YOU MADE THE A LLEGAT IO N.

JUSTICE: SO IN THAT SENSE T HEN EVERY DEF ENDA NT WHO - - EVERY A LI EN W HO H AS B EE N CONVICT ED OF AND PLED CAN NOW SAY H E I S DEP OR TABL E BECAUSE ALL H E HAS TO D O I S ALLEGE IT AND HE GETS A N EVIDENTIARY HEARING ?.

IT A PPEARS THAT WAY UNDER THE 4TH DIS TRIC T'S CAS E .

CHIEF JUSTICE: I GUESSTHE PROBLEM IS THAT T HE DEFINITION UNDER R UL E 3 .1 72 ABOUT UND ER 8 , M UST B E SUB SECTION I O F PREJU DI CE , THAT'S WHERE WE GET, I'M TRYING TO S EE WHERE WE GOT BACK TO PREJUDICE I T D OE SN'T ALLOW DEFENDANTS JUST T O FILE A MOTION T O W ITHD RA W T HE PLE A JUS T B EC AU SE S OME OF THE PROCEDU RE S I N THE RULE WERE NOT FOL LOWED. IT HAS TO B E A SHO WI NG O F P REJUDICE AND NOW WE GET BACK TO W HA T PRE JUDI CE M EANS , AND I GUESS THE QUESTIO N GOES BAC K T O A S W E S AI D I T M EANT A THREAT O F DEPORTATION , A ND T HAT C OULD BE D EP OR TE D O R W OULD B E DEPORTED. ARE THOSE THE TWO S ORT O F ENDS OF I T , WHETHER THEY COULD BE D EP ORTED ? OR THAT THEY WOU LD, I N F AC T , BE D EPOR TED?

THE STATE I S S UGGE ST IN G THAT THE B RIGH T-LI NE O F D EPORTATION PRO CEED INGS DOESN'T N ECESSARILY MEAN THEY WILL ACTUALLY BE DEPORTED. THEY MAY HAVE SOME D EFENSE S . BUT THA T S TR IKES A REASONABLE BALANCE BETWEEN SHOWING PREJUDICE A ND LETTING THE DEFENDANT H AVE RELIEF . > > JUSTICE: I W OULD LIK E T O JUST ADDRESS MOM ENTA RI LY F OR BOTH OF Y OU ACTUALLY IT I S GOING TO BE A JURISDI CTIO NA L QUESTION AND THAT IS WHETHER THE NOTICE OF APPEAL IN T HIS CASE WAS TIMEL Y F ILED. DO WE K NOW FROM T HIS R ECORD? DO WE HAVE A PROBLEM W ITH THAT? WHERE ARE WE WITH R EG AR D TO THE J UR IS DI CT IO N WHI CH I S A S I W OULD ASSUME T HE S UB JECT MATTER JURISDICTION ISSUE? WOULD YOU ENLIG HT EN U S O N THAT?

YES, WHAT HAPPE NED IN THIS CASE IS THAT I B ELIEVE IN O CTOBER OF 2 00 3 , THE TRIAL COURT D EN IED R EL IE F. IN FEBRUARY OF 2 00 4 , T HE D EFENDANT FIL ED A M OT ION TO SET ASIDE , I B EL IE VE IS W HAT HE CALLED IT, AND S AI D H E DID NOT - - I T W ASN' T SWORN. HE SAID HE DID N OT R EC EI VE THE ORD ER U NT IL FEB RUARY 2004. THE T RI AL COU RT DEN IE D THA T M OTION TO SET A SI DE B UT REPORTEDLY GAVE THE DEFENDANT 30 DAYS TO APPEAL. I DON'T T HINK H E COULD D O THAT. I THINK T HE PRO PE R PROCEDU RE --.

JUSTICE: LET ME ASK YOU A MORE FUNDAME NTAL QUESTION. WAS THE N OTICE OF APP EAL FILED WITHIN 30 DAYS OF THAT ORDER?

I BELIEVE I T W AS .

JUSTICE: IT WAS. SO THEN THE ISSUE WOULD BE WHETHER THEY COULD E XTEN D I T AND BY WITH THE DENIAL ARE WE GOING TO REALLY LOOK AT THE DENIAL OF T HE ORD ER O R THE ORDER THAT W AS E NT ER ED IN FEBRUARY, IS THAT REALLY WHAT WAS BEFORE THE APPELLATE COURT OR DID IT BRING UP THE P RIOR ORD ER I N NOVEMBER? I GUESS THAT'S THE JURISDICTIONAL QUESTION WE'RE TALKING ABOUT THEN.

YES, YOUR H ON OR .

JUSTICE: OKAY.

A ND THE STA TE 'S POSIT IO N IS THAT T HEY SHOUL D H AV E FILED A B E LA TE D A PP EA L I N THE 4TH DISTR ICT.

CHIEF JUSTICE: THERE SEEMS TO BE A LOT OF PROBLEMS IN THE 4TH D ISTR ICT OPINION IN TERMS OF THE PROCEDURAL POSTU RE O F T HI S CASE SAYING THERE WAS A TRANSCRIPT WHEN THERE WASN'T A TRANSCRIP T R EQ UI RING - - R ELYING ON AN U NSWO RN R EPLY . CERTAINLY WE WILL C ON SI DER THOSE ISS UE S I N RES OLVI NG THIS CASE BUT I T D OE S APPEA R THERE IS A CLEAR C ON VICT BETWEEN THE WAY THE 4 TH DISTRICT IS APP ROAC HI NG THESE CASES AND T HE WAY THE 3RD DISTRICT IS. DO YOU AGREE WITH THAT?

YES , YOUR H ONOR . ALSO POINT O UT - -.

CHIEF JUSTICE: DO YOU KNOW WHAT? I HAVEN'T BEEN KEE PING TRACK. SINCE YOU ARE THE S TATE I 'M ASSUMIN G YOU ARE GOI NG TO USE ALL OF YOUR T IM E . I WILL GIVE YOU A COU PL E O F MINUTES IN REBUTTAL.

YES, T HANK YOU . D O I H AV E - - I R ESER VE FIV E M INUTES?

CHIEF JUSTICE: THE YELLO W LIGHT WENT ON AND WE WERE SO ENGAGED IN CONVERSATION THAT I WAS THINKING THAT Y OU WER E THE S TATE AND YOU W ER E ALREADY U P O N T HE O THER SIDE.

MAY IT PLEASE THE COURT.

CHIEF JUSTICE: I 'LL GIVE YOU A C OUPLE OF MINUTES.

I'M SOR RY , YOUR HONOR . MY NAME IS MIKE C OH EN A ND I REPRESENTED OWRAN GREEN BELOW. I AM H ON OR ED TO APPEA R BEFORE YOU TO ARGUE T HIS SIGNIFICANT QUESTION. I KNOW THE JUSTICE HAS A SK ED ABOUT THE TWO-YEAR R UL E.

JUSTICE: BEF OR E THA T , I S T HERE A B AS IS I N T HI S APPELLATE R EPOR T T O CON CLUD E T HAT THI S T RIAL J UDGE DID NOT ADVISE THIS D EF ENDA NT ?

YES , J US TICE W EL LS . > > JUSTICE: IS THERE A TRANSCRIPT?

THERE IS N O TRANSCRIP T . > > JUSTICE: THE F OU RT H DISTRICT IS WRONG.

AND WHAT I S AID IN MY BRIEF, JUSTICE WELLS , I S T HAT THE ERROR WAS HAR ML ES S , BECAUSE IF YOU L OO K A T THE R ECORD, T HERE E XI ST ED N O TRANSCRIPT BECAUSE OF THE PASSAGE OF TIME. THERE IS A N ADM IN IS TR AT IVE RULE IN BROWARD C OU NTY W HE N A CASE IS MORE THAN TEN YEARS OLD THERE ARE N O S TR AN SCRIPTS O - - T RA NS CRIP TS AVAILABLE BUT IF YOU LOOK A T THE WAIVER OF RIGHTS F ORMS AND I CAN TELL YOU THE WAIVER OF RIGHTS FORMS I N PRESENT DAY BROWARD C OU NT Y ALWAYS HAVE AN A DMONIT IO N A S TO DEPORTATION WARNI NG S. THIS WAIVER OF RIGHTS FORM DID NOT. AND M R. G REEN HAD WOR N I N THIS PETITION --.

JUSTICE: SO IN ORDER FOR US TO RES OLVE T HI S CAS E , WE WOULD HAVE TO HOLD THA T I T IS NOT W HA T W EN T O N I N B ETWEEN THE JUD GE A ND T HE DEFENDANT ORALLY. IT IS WHAT'S IN T HE R IG HTS?

NO, SIR. THERE IS A SWORN P ETIT IO N FROM MR. GREEN THAT IT DID NOT GET THE ADMON ITIO N FIR ST OF ALL IN CON NE CT IO N WIT H THE WAIVER OF RIG HTS FORM A S WELL WHICH HAS NO DEPORTATION W AR NI NG . > > JUSTICE: M Y S EC OND QUESTION IS. IS THIS M OTION U NDER 3 .8 50 ?

IT I S , SIR .

JUSTICE: NOW, W HA T SPECIFIC PRO VI SION UND ER 3.850 DO Y OU S AY A VO ID S T HE TWO-Y EAR L IM IT ATIO N O F 3.850?

AND I THINK THAT'S W HAT IS SO SIG NIFI CANT ABOUT THE DIFFERENCE OF THESE TYPE OF CASES T O ADD RE SS S OM E O F JUSTICE L EW IS ' C ON CE RNS , A ND THE NORMAL 3 .8 50 C AS E W HERE Y OU HAVE T WO YEARS FROM T HE TIME OF THE JUD GMENT O R CONVICTION TO BRING IT. THE I SSUE ALL REV OL VE S A ROUND PREJUDICE. IN THIS C AS E W HAT H AP PE NE D WAS IT WAS A N I MM EDIATE R ELATIVE PETITION F ILED B Y MR. GREEN'S WIFE . TOE ALLOW HIM T O ADJUS T - - TO ALLOW HIM T O ADJ US T HIS STATUS TO A PERMANENT RESIDENT. B ECAUSE HE HAD A C RIMINA L CONVICTION HE DID NOT L EA RN OF THE CONSEQU ENCE S O F DEPORTABILITY OF THE WAIVER.

JUSTICE: I'M M OR E CONCERNED ABOUT THE PROCEDURE, AND T HE PRO CEDU RE UNDER OUR 3.850 RUL E A S A VERY B RIGH T -L IN E T WO -YEA R RULE THERE ARE THREE EXCEPTIONS TO IT. W HICH EXC EPTION D O Y OU CLA IM WITH THIS N EW LY D ISCO VE RED EVIDENCE? WAS T HIS A CON ST ITUT IONA L --

NO, SIR. IT IS BAS ED O N PEA RT V ERSUS STATE. I N P EART V ER SUS STATE T HI S COURT RULED T HA T T HE DEFENDANT HAD TWO YEARS FROM THE TIME T HAT H E L EA RNED OF THE DEP ORTATI ON CON SE QUEN CES T O FILE THI S K IN D OF PETITION.

JUSTICE: YOU WOULD AGREE THAT PEART W AS A S IT UATI ON IN WHICH WE WER E D EA LING WITH A N E RR OR - - > > I REA LL Y D ID N' T A DD RESS THIS ISSUE, B UT I THINK W HA T THE COURT D ID RECOGNIZE , JUSTICE WELLS, IS THAT THIS IS A DIFFERENT FOR M WHE N I T COMES TO PEOPLE WITH IMM IGRATION PROBLEMS. FOR INSTANCE IN THIS CASE , THE DEFENDANT WAS R ENDERE D IN AD MI SS IB LE B EC AU SE H IS STATUS WAS IN QUEST ION. IN OTHER WORDS, H E WAS CONVICTED OF ASSAU LT A ND BATTERY.WHAT WE S AY WER E A B AS IS FOR T HE R IG HT T O S ET A SI DE T HE PLEA. UNTIL H E FIL ED A W AI VE R AND UNTIL THAT WAIVER WAS D EN IE D MANY YEARS LATER, HE WAS NOT P REJUDICED. BY THE DENIAL OF T HA T W AI VE R .

JUSTICE: THE QUESTION IS WHETHER HE IS PREJUDICE D EVEN NOW.

VERY MUCH SO.

JUS TICE: T HAT'S CERTAINLY AN ISSUE HERE.

VERY MUCH SO AND I 'L L EXPLAIN WHY, JUDGE, I F Y OU LOOK AT MY BRIEF. WHEN THE WAIVER WAS D EN IE D ON THE BASIS O F T HI S CONVI CTION , H E N O LON GE R HAD ANY RIGHT TO R EMAI N AND S TAY IN THE UNITED STATES. HE WAS A N OVE RSTA Y. HE HAD O VE RS TA YE D H IS V IS A S O HE BECAME DEP ORTA BL E A T THAT POINT. HE DIDN'T BECOME D EPOR TA BL E BECAUSE OF THE CONVICTION UNTIL THE WAIVER WAS DENIED SO TO HAVE A STR AI GHT TWO-YEAR RULE WOU LD FLY IN THE FACE OF PREJU DI CE . HE WAS NOT P RE JU DI CED U NTIL THE POINT THAT THE WAIVER WAS DENIED , S IR.

JUSTICE: DO WE KNO W IF A MISDE MEANOR R EN DERS A DEFENDANT DEPORTA BLE?

IT DOES FOR T WO REA SO NS AS I'VE S TA TE D I N M Y BRI EF . TWO CRIMES O F M OR AL TURPI TUDE U NDER A N IMM IGRATION LAW C AN REN DE R AN ALIEN I N AD MI SS IBLE A ND D EPORTABLE. THE STATE 'S S AY T ATIO N I S A MATTER OF V A ND E WHI CH WER E CASES CITED IN NEW YORK AND MASSACHUSETTS WHICH HAS NOTHING TO DO WITH THE LAW HERE IN SOUTH FLO RIDA. SAY THEY ARE NOT C RI ME S O F MORAL T URPITUDE. WE SAY THEY ARE U NDER T HE LAW OR ALTERNATIVELY - -.

JUSTICE: WASN'T THAT THE WHOLE PURPOSE OF REQUIRI NG INITIATION OF DEPORTATION PROCEEDINGS IS S O THA T T HE COU RT COU RT S D ON 'T H AVE T O GET INVOLVED IN MATTERS OF IMMIGRATION LAW WHICH THEY DON'T UNDERSTAND AND IT IS UP TO THE FEDERAL GOVERNMENT TO DECIDE WHETH ER S OM ETHING RENDERS SOMEONE DEPOR TA BL E OR NOT AND A T T HAT POI NT THEY CAN S HOW PREJU DICE . ANYTHING OTHER THAN THAT IS SPECULATION.

I WOULD SAY NOT , S IR . IT IS INC UMBE NT U PO N C OU NSEL TO PRESE NT A N E XP ER T WIT NESS , FORMER IMMIG RA TION J UD GE O R FORMER E XP ER T I N I MM IGRA TION LAW WHO WIL L OPI NE T O W HA T THE EFFEC TS O F T HI S WILL BE AND A CIRCUIT C OURT W OU LD B E IN FINE P OSITION TO MAK E THAT.

JUSTICE: THE Y CANNOT TESTIFY ABOUT SOMEONE, WHETHER THE GOVERNMENT IS ACTUALLY INITIATED DEPORTATION PROCEEDINGS I F THAT'S T HE P OINT .

WELL, I THINK IN P OINT IN G OUT , JUSTICE A NSTEAD 'S CONCURRING OPINION IN P EART , ALTHOUGH HE D IDN' T D EFIN E THREAT OF DEPORTATION H E TALKED ABOUT THE LEGAL POSSIBILITY OF DEPORTATION WITH THE 4TH DCA T ALKE D A BOUT THE M ARRI OT T P OS ITIO N. PEA RT A PP RO VE D MAR RI OTT AND IT HAS TO B E T HE L EG AL POSSIBILITY OF DEPORTATION WHICH IS THE TEST BECAUSE T O USE AN ILL USTRATION IT I S COMMON KNOWLEDGE IN SOUTH FLORIDA THAT CUB AN N ATIO NALS ARE NOT DEPORTED BAC K TO THE ISLAND OF C UBA , E VE N T HO UG H DEP ORTATION PROCEEDINGS ARE COMMENCED AND EVE N THOUGH THEY ARE ARE TEC HN ICAL LY ENTERED AN ORDER OF DEPORTATION SO YOU H AVE S UC H SITUA TION WHERE IF Y OU U SE THE S TATE'S TES T I T D OESN'T MAKE SENSE UNTIL THE GOVERNMENT OF C UB A TAL KS ABOUT --

YOU ARE TAL KING A BOUT A SUBSET OF IMMIGRANTS W E HAVE TO WRITE THE LAW FOR THE ENTIRE STATE.

NO, I UNDERST AND THAT, SIR, BUT WHAT I 'M SAY ING I S UNTIL SUCH TIME AS THE GOVERNMENT OF CUBA C HANG ES ITS POL IC Y I T W OU LD H AV E A SITUATION WHERE SOMEONE WOULD HAVE BEE N D EPOR TE D , THE NOTICE TO A PPEAR WOULD HAVE BEEN FILED AND THEY WOULD HAVE HAD TO ENT ER A N ORDER OF DEPORTA TI ON A ND Y ET THEY WOULD STILL BE HER E. SO THE BRI GH T-LI NE TES T T HAT THE STATE IS SUGGE ST ING.

JUSTICE: I GUESS YOU ARE PROVING TOO MUCH BECAUSETHAT ARGUMENT SAYS EVEN THE INITIATION OF DEP OR TATION PROCEEDINGS IS NOT ENOUGH. IT IS AN A RGUM EN T THAT STARTED EVEN LATER, NOT BEFORE.

I'M JUST USI NG T HAT A S A N A RGUMENT , JUDGE , T O S HO W Y OU THAT A B RI GH T- LI NE T ES T DOESN'T WORK .

CHIEF JU STICE: THE BRIGHT-LINE TEST AND J US TI CE ANSTEAD IN H IS C ONCU RR ENCE , THE DIS SENT S AI D THERE W OULD BE ACTUAL DEPORTATION AND H E SAID AS OPPOSED T O T HE INITIATION OF DEPORTATION PROCEEDINGS.SO ALTHOUGH THE MAJ OR IT Y DIDN'T TALK ABOUT THE THREAT BEING THE I NI TIATION O F DEP ORTATION P ROCE ED INGS , THAT'S AN E AR LI ER DATE T HAN THE ACTUAL DEPORTATION AND LET ME ASK YOU. IT SOUNDS LIKE YOU H AV E IMMIGRATION L AW K NOWL ED GE.

SO MEWHAT. I RELY O N I NFORMATION I'VE RECEIVED.

CHIEF JUSTICE: WELL, THE QUESTION I HAVE I S , A ND MAYBE I T DOESN'T APPEAR I N THIS RECORD , B UT IF T HE RE I S A NYTHING WE CAN REF ER T O FROM THE POINT OF THE I NITIATION OF DEP ORTA TI ON PROCEEDINGS, WHAT IS THE USUAL T IME P ER IOD UNT IL A N ORD ER OF D EP ORTA TION ?

I'M G LA D Y OU A SK ED T HA T B ECAUSE IT IS VER Y IMP OR TA NT TO UNDERSTAND FROM WHAT I UNDERSTAND, REA SO NABLY SPE AKING TO A F ORME R UNI TE D STA TES I MM IG RATION JUDGE WHO I ASKED THAT V ER Y Q UE STIO N ABOUT , SOM ET IM ES IMM IG RATI ON JUDGES DON'T GRANT YOU CONTINUANCES SO WHAT HAPPENSAS A PRACTICAL MATTER I S I F YOU GO IN A ND T HE Y BEG IN DEP ORTATION PROCEEDINGS YOU DON'T HAVE TIME TO C OM E B AC K TO THE STATE COURT T O VACATE. SO IF YOU USE THI S INITIATION TEST , THE N Y OU WON'T B E ABLE TO V ACAT E AND THE WHOLE R UL E U ND ER 30. 55 0 WILL BE F RU ST RA TED.

CHIEF JUSTICE: BUT WON 'T THAT REQUIRE THE TRIAL J UD GE IN ANY G IV EN C AS E T O HAV E T O E VALUATE THE L EG AL EFF EC T O F WHATEVER IT IS T HA T T HE DEFENDANT RECEIVES TO KNOW WHETHER THIS IS SOMETHING LIKE YOU ARE SAYIN G HERE THAT WILL COME OUT B UT T HE WAIVER, WHEN THE WAI VE R W AS DENIED HE WAS N OW D EPORTABLE?

YE S, MA'AM.

CHIEF JUSTICE: BUT THATWILL HAVE TO BE -- T HA T WI LL HAVE TO B E ESTABLISHED AND THAT WILL REQUIRE A TRIAL JUDGE IN E VE RY CAS E T O MAK E A DIFFERENT LEGAL DETERMINATION ABOUT WHAT THE EFFECT IS OF A G IV EN S TATU S?

R ESPECTFULLY I DON'T THINK SO, JUDGE. I THINK YOU WOULD PRESENT THE IMMIGRATION LAW YE R W HO REPRESENTED THE PERSON WHO TOLD HIM WHEN H E EXP LA INED THE EFFECT OF THE W AIVE R .

WELL , W HA T CAU SE D Y OUR CLIENT TO FILE A R EQUEST FOR A WAIVER? > > I'M SORRY, M A'AM? 

JUSTICE: WHAT PROMP TED YOUR CLIENT TO FILE THE REQUEST FOR THE W AIVER?

HE HAD B EC OM E INADMISSIBLE BECAUSE OF THE CONVICTION FOR ASSAULT AND B ATTERY, AND DUE T O T HA T H IS LAWYER --.

JUSTICE: SO HE K NEW THA T A L ONG TIME B EF ORE H E ACTUALLY FILED T HE WAIVE R R EQUEST?

NO, BEC AUSE W HAT HAPPENS IS UNTIL SUCH TIME AS THE WAIVER IS D EN IED, H E D ID N' T BECOME D EPOR TA BLE. HE IS I NA DM IS SIBL E H E I S OUT OF STATUS IN THE U NITE D STATES.

JUSTICE: SO AT THE TIME THAT -- DID H E H AV E A V IS A AT SOME POINT?

I'M SORRY, M A'AM?

JUSTICE: DID HE H AV E A V ISA AT SOME P OI NT ?

YES, BUT H E O VERS TAYE D.

JUSTICE: AT THE POINT HE OVERSTAYED DOESN'T HE BECOME DEPORTABLE AT T HAT P OINT?

NO, BEC AUSE H E H AS A WAIVER AVAILABLE TO HIM FROM A CLOSE FAMILY R ELATIV E , H IS WIFE, BUT WHEN HE W AS C ONVICTED T HE B AS IS F OR THE DENIAL OF HIS WAIVE R W OULD HAVE BEEN THE CRIMINA L CONVICTION.

JUSTICE: BUT IN A GEN ERAL CASE WOULDN'T A PERSON BECOME DEP OR TA BL E O NC E THE IR VISA HAS EXP IRED?

N OT D EP ORTA BL E. INADMISSIBLE .

JUSTICE: BUT E ITHER WAY , YOU ARE NO LONGE R L EG ALLY I N THE UNITED STATES, CORRECT?

THAT'S CORRECT, BUT YOU HAVE AN A VA IL AB LE - -.

JUSTICE : S O W HY W OULD N' T THAT BE A GOOD POINT AT WHICH ANY DEF ENDA NT W OU LD HAVE T O T HE N RAI SE T HE C LAIM THAT H E W AS N OT PRO PERL Y INFORMED OF T HE IMM IGRA TI ON C ONSEQUENCES OF HIS PLE A?

BECAUSE HE B EC AM E DEPORTABLE ONLY BECAUSE OFHIS CRIMINAL CON VICTION. DESPITE THAT, H E WOULD HAV E HAD THE WAIVER A VA ILABLE TO HIM TO OVERC OM E THA T.

JU STICE: WELL , W E'RE TALKING ABOUT, YOU'RE TALKING A BOUT YOUR C LI EN T I N PARTICULAR.

YES, MA'AM.

JUSTICE: BUT I'M TALKING ABOUT ALIEN S I N GENERAL.

IN MY BRIEF I M AK E MENTION OF CERTA IN INDIVIDUALS WHO ARE NEVER IN A SITUATION WHERE THE Y CAN APPLY FOR WAI VER. FOR I NS TANCE , D RU G DEFENDANTS WERE CON VI CTED O F D RUG C ONVICTIO NS , DOM ES TI C V IOLENCE DEFENDANTS WHO A RE CONVICTED OF THOSE KINDS OF CONVICTIONS HAD N O WAI VE R.

JUSTICE: EVEN IN THO SE CASES WHEN YOU CAN'T GET A WAIVER YOU STILL HAVE T O WAIT UNTIL INS D EC ID ED T O INSTITUTE DEPORTATI ON PROCEEDINGS, SO A DEF ENDA NT CAN REALLY JUST S IT A ROUN D AND WAIT A ND , Y OU KNO W , A LL O F T HE E VIDE NC E D IS APPEARS AND ALL OF THE WITNE SSES DISAP PEAR AND THEN FIL E A CLAIM T HAT U ND ER 3.8 50 T HA T HE WAS NOT PRO PE RL Y INF OR MED OF THE IMMIGRATION CONSEQUENCES?

WELL , I 'M N OT S UR E THA T THAT WOULD BE THE CASE. IF HE D IDN'T GET H IS W AR NI NG , THE WHOLE POINT GOES T O T HE V OLUNTARINESS OF THE PLE A SO HE WOULD NOT KNOW UNTIL H E CONSULTED WITH A LAW YER . UNTIL HE GOT T HO SE W AR NINGS AND SOMEONE INVES TI GA TE D THAT THAT W AS THE C AS E , TOGETHER WITH W OU LD R ES UL T IN PREJUDICE WHETHER HE WOULD BE SUBJECT TO DEPORTATION AND I THINK THAT'S WHY THE COURT IN PEART VERSUS STATE SAID Y OU HAVE TWO YEARS FROM THE T IM E YOU LEARN ABOUT THAT. THIS IS A DIFFERE NT S PE CIES OF CASE. IT IS C OM PLETELY D IFFERENT.

CHIEF JUSTICE: JUSTICE CANTERO HAS A Q UE ST IO N.

GETTING BACK TO YOU R ANSWER TO THE CHI EF J USTI CE ABOUT THE INITIATION OF PROCEEDINGS IT SEEMS TO ME THAT AND Y OU W ER E T AL KI NG ABOUT S OMETIMES THE IMMIGRATION JUDGE WON'T GRA NT THE C ONTINUANCE.

YES, SIR.

JUS TI CE: E VE RY ALI EN A S FAR AS I UND ERSTAND H AS AN ABSOLUTE RIGHT TO AN APPEAL TO THE BOARD OF I MM IGRA TION APPEALS, CORRECT?

THAT'S CORRECT.

JUSTICE: AND FROM T HERE AN APPEAL CAN GO TO THE UNITED STATES C IRCUIT COURT OF APPEALS IN THA T PARTICULAR CIRCUIT.

THAT'S C ORRECT.

JUSTICE: AND T HA T W HOLE PROCESS COULD TAKE AT A MINIMUM S EVERAL MONTHS , USUALLY MORE THAN A YEA R. ISN'T THAT CORRECT?

THAT'S CORRECT . BUT STILL THE I SSUE I S IS THE P LEA V OL UN TARY AND CAN IT BE SET ASIDE?

JUSTICE: I UNDERSTAND. I'M JUST TALKING ABOUT SOME OF THE JUSTICES A RE CONCERNED THAT IF W E M AK E THE B RIGH T-LI NE I NI TI ATION OF PROCEEDINGS THAT T HERE ISN'T ENOUGH TIM E THEN T O SEEK A WIT HDRAWAL OF T HE PLEA AND I B EL IEVE T HA T THERE IS AT L EAST OVE R A YEAR THAT HAPPENS B ET WEEN THE TIME OF INITIATIO N O F PROCE EDINGS AND THE TIM E WHEN A DEFENDANT OR A N A LI EN CAN EXHAUST HIS ADM INISTRATIVE REM ED Y.

BUT THE M OR E I MP ORTANT QUESTION I THINK, J USTICE C ANTERO, IS THE T EST OF T HE LEGAL POSSIBILITY OF D EPORTATION SUP ERSE DING THE BRIGHT-LINE TEST.

JUSTICE: I UNDERSTAND THAT'S YOUR POSITION.

JUSTICE: SHOULD WE H AVE OR IS THERE A NEC ESSI TY F OR AND WHAT IS YOUR R ESPO NS E T O THE ISSUE WIT H A LI EN S E NT ER UNDER DIFFERENT STATUS. SOME MAY COME U NDER A V ISA. SOME MAY JUST E NTER. SHOULD THERE BE A DISTINCTION FOR THOSE THAT JUST E NT ER ED B ECAU SE T HE Y SHO ULD K NO W , IF Y OU L OOK AT PEART, SHOULD KNOW O R S HO UL D HAVE KNOWN, THEY ARE SUBJECT TO DEPORTA TION A T ANY P OI NT EVEN WITHOUT REGARD TO THE PLEA. SO IS THE RE A L EG AL R EASON FOR A DIS TI NC TI ON B ETWE EN GROUPS WITHIN THAT GRO UP ? I MEAN, IS THA T A N I SSUE?

I THINK THERE MAY BE M AN Y LEGAL DISTINCTIONS BETWEEN GROUPS BECAUSE THE IMMIGRATION LAW IS VARIED BUT I THINK THAT'S WHY YOU HAVE AN IMMIGRATION LAW YE R WHO IS GOING TO E XPLAIN T O AN I MMIG RATION D EF EN DANT WHEN HE BEC OMES D EP OR TABL E.

CHIEF JUSTICE: THE ANSWER SO THAT QUESTION , THOUGH , I S IF SOMEBODY IS ILLEGALLY I N THIS COUNTRY THEN THEY ARE GOING TO B E D EPOR TA BL E REGARDLESS OF WHETHER THEY HAVE BEEN C ONVICTED OF A MISDEMEANOR OR NOT SO T HE Y ARE NOT GOING TO BE ABLE TO PROVE PRE JU DICE B EC AUSE T HE Y -- BEC AU SE T HE Y WOULD BE DEPORTABLE OTHERWISE?

NOT N EC ES SA RILY . A LEGAL RES ID ENT WHO W AS HERE LEGALLY, BUT IN THE CASE OF A D RU G CON VICT IO N --.

CHIEF JUSTICE: BUT I SAY IN THE CASE OF A DEFENDANT WHO WAS IN THIS COUNT RY ILLEGALLY , T HE N T HE Y A RE P ROBABLY NOT GOING TO BE ABLE TO PROVE A PRE JU DI CE PRONG OF THE U ND ER P EA RT B ECAUSE THE R EASON F OR THE M BEING SUBJECT T O DEPOR TA TI ON IS BECAUSE THEY WERE N EVER IN THIS COU NTRY L EG ALLY , NOT BECAUSE O F A S UB SEQU EN T CONVICTION, AND THA T SHO UL D BE A QUESTION OF P ROOF . DO YOU AGREE WITH THAT?

I UNDERSTAND WHAT YOU ARE SAYING AND I TAKE EXCEPTION TO IT BECAUSE THEY WOULD STILL HAVE AS M R. G RE EN DID . HE WAS HERE A S O N OVE RSTA Y BUT HE HAD AVAILABLE TO HIM. ONCE THE WAIVER WAS DENIED HE BECAME DEP OR TABLE.

CHIEF JUSTICE: I'M TALKING ABOUT SOMEONE T HAT DOESN'T COME INTO THIS C OUNTRY LEGALLY.

A M EX ICAN C RO SS ING THE BORDER?

CHIEF JUSTICE: THERE ARE MILLIONS OF PEOPLE IN THIS STATUS.

OF COURSE. I THINK THA T THE ISS UE I S THE TWO -YEA R RUL E , IT I S VERY IMPORTANT TO UNDERSTAND WHEN ONE PERSON L EARN S O R SHOULD LEARN OF THE CONSEQUENCES OF DEPORTATION. THAT'S WHY THE C OU RT CAN HAVE THIS T WO -Y EA R RUL E - -.

JUSTICE: I T SEEMS T O M E THAT THIS WHOLE THING I S JUST, AND I R EC OG NIZE THAT I DISSE NTED ON THIS V ER Y B AS IS , BUT HOW IN T HE WOR LD , PRACTICALLY S PEAKIN G , ARE Y OU GOING T O O BJEC TIVE LY B E ABLE TO C OME U P W IT H A P OINT IN TIME WHE N S OM EONE S HOUL D H AVE KNO WN THA T TH EY W ER E SUBJECT TO D EP OR TATION ? IT SEEMS TO ME THAT I S J US T FRAUGHT WITH I N EQU ITAB LE ADMINISTRATION.

IN THIS CASE WHEN THE CLIENT WAS INFORMED BY THE IMMIGRATION LAWYER THAT THAT WAS THE EFFECT OF THE DENIAL.

JUSTICE: THEN HE KNEW IT OR SHOULD HAVE KNOWN T.

MOST OF THESE PEO PL E AR E NOT EDUCATED PEOPLE , JUS TI CE WELLS.

JUSTICE: WHEN YOU COME INTO ANY COUNTRY, YOU REALIZE THERE IS A BASIC CONDITION OF ENTRY INTO THE COUNTRY YOU'VE GOT TO ABIDE BY THE LAWS A ND R ULES OF THE NATION, RIGHT?

OF COURSE.

JUSTICE: AND I F YOU VIOLATE IT THEN ANYONE WIT H ANY COMMON SENSE KNOWS T HAT IF Y OU HAV E A S PE CI AL PERMISSION TO BE IN A COUNTRY IF YOU VIOLATE THAT COUNTRY'S LAW THAT IT M IG HT SUBJECT YOU T O B EING A T THE T IME YOU E NT ER ED T HIS P LEA IN THIS CASE , W OU LD N' T A NY PERSON WITH ANY C OM MO N SEN SE UNDERSTAND THAT THEY VIOLATED THE LAW IN THE UNITED STATES AND WER E HER E O N A W IT H S OM E P ER MI SSION THAT IT MIG HT I MPAC T T HEIR ABILITY TO R EMAI N ?

I N T HA T LIM ITED C AS E B UT MOST OF THE TIME T HI S M AY INVOLVE ILLEGAL R ESID EN TS WHO ARE HER E AND W AITI NG T O BECOME NATURAL IZED. A C ON VICTION OF A D RUG CONVI CTION OR A DOM ES TI C VIOLENCE MISDEMEANOR WOULDSUBJECT A LEGAL R ESIDENT T O DEPORTATION AND T HEY WOULDN'T KNOW, JUDGE , UNLES S THEY GOT T HE - -.

JUSTICE: WHEN YOU R CLIENT ENTERED THIS PLEA WAY BAC K WHEN.

YES, SIR.

JUSTICE: WAS HE SUB JE CT TO BE D EP OR TE D BEC AUSE O F T HAT PLEA AT THA T T IME?

YES , T HE RE A RE TWO B AS ES FOR IT. IF HE W AS I NV OLVI NG H IM SELF WITH THE CONVICTION OF MORAL TURPITUDE WHICH IS THE ASSAULT AND BATTERY CONVICTION, WHICH IS U ND ER IMM IGRATION LAW DET ER MI NED TO BE A CRI ME N OT OF A SINGLE SCHEME OF CONTACT. UNDER THAT STANDARD , Y ES . OR ALT ER NATIVE LY , W HE N H IS WAIVER WAS DENIED DOW N THE LINE HE A LS O B EC AM E DEPORTABLE SO THE A NSWER TO THE QUESTION IS YES, SIR, AND I THINK IF YOU L OO K A T MY FOOTNOTE IN M Y BRI EF I T SPEAKS TO THA T .

JUSTICE: DID HE HAV E A RIGHT TO THE WAIVER OR IS THE WAIVER A D IS CRETIO NARY?

THE WAIVER IS DISCRETIONARY BUT AS I POINT OUT UNDER HCF R 212 .7 D Y OU MUST SHOW A N E XT RE MELY UNUSUAL HARDSHIP TO HAVE THE WAIVER GRANTED SO THE FACT THAT EVEN T HO UG H I T I S DISCRETIONARY REALLY DOESN'TCOME INTO PLAY. IT IS R EALLY NOT GOING T O GET THAT WAI VE R G RA NTED BECAUSE OF THE CONVICTION IN THIS CASE.

JUSTICE: LET M E ASK YOU HOW DOES THE COU NS EL'S CONVERSATIONS W IT H Y OU R CLIENT ALSO ENTER INTO T HE C ALCULUS IN D ETER MINING WHETHER THE C LI ENT K NEW. THERE MAY BE CASES WHE RE T HE JUDGE DOES NOT A DVIS E T HE DEFENDANT OF THE P ORTA BI LI TY BUT T HE C OU NSEL DOE S A ND , THEREFORE, THE C LI EN T DID KNOW ABOUT IT A ND THERE W AS NO PRE JU DI CE . DOES THE STA TE N OW H AV E T O PRESENT THE DEF ENSE C OUNS EL A T TRIAL TO SHOW T HA T T HE DEFENDANT ACTUALLY DID K NO W ABOUT THE POS SIBILITY OF THE D EPOR TABILITY?

I THINK T HE J US TI CE IS ON THE DEFENDANT TO PRO DU CE - - B ECAUSE T HE R UL E I N P EART I S IT IS TWO YEARS FROM T HE TIME YOU L EARNED OR S HOUL D HAVE LEARNED OF THE T HR EA T OF DEPORTA TION.

JUSTICE: S O PART OF THA T ONUS AT THE EVI DE NT IA RY HEARING IS TO PRE SENT DEFENSE COUNSEL TO SAY THAT DEFENDANT DID NOT ADVISE HIM OF THE POSSIBILITY IS IT ?

THE DEF ENDANT CAN S AY WITH C REDI BILI TY F INDI NG S BEING WHAT THEY ARE, PRUDENT D EFENSE COUNSEL WOULD WANT TO PRESENT A LAWYER TO PRESENT SUCH TESTIMONY.

JUSTICE: BUT THE DEFENDANT CAN SAY IT HIMSELF IF HE CHO OSES?

IF HE CHOOSES BUT , O F COURSE, PRUDENT D EF EN SE COUNSEL WOULD W AN T TO BET REST THAT T ES TIMONY I N A N APPROPRIATE WAY.I ALSO WANTED TO SPEAK - -.

CHIEF JUSTICE: Y OU ARE OUT OF YOUR TIM E. DID YOU WANT TO M AK E O NE CONCLUDING COMMENT ?

WITH R EGARD TO THE WAI VER WE STILL THINK THERE I S A WAIVER WITH R EGARD TO THE STATE'S FAILURE TO RAI SE T HESE ISS UES BELOW , W E T HI NK THAT IF THE P ETITION WAS INSUFFICIENT IT C AN BE DISMISSED WITHOUT PRE JU DI CE AND AS TO T HE JUR ISDI CT IONA L ISSUE, W E A GA IN WOU LD A SK THE COURT T O ALL OW U S T O AMENDOR OR TO E XTEND THE TIME TO FILE. W E DID FILE A N OTICE TO APPEAL BASED ON MISTAKE I N INTERPRETATION BY THE TRIAL COURT. THANK YOU VERY MUCH