EFTA Document EFTA01809388

IN THE SUPREME COURT OF FLORIDA CASE NO. 95,615 EDWIN SCOTT, Petitioner, -vs- THE STATE OF FLORIDA, Respondent . ON PETITION FOR DISCRETIONARY REVIEW BRIEF OF RESPONDENT ON THE MERITS ROBERT A. BUTTERWORTH Attorney General Tallahassee, Florida MICHAEL J. NEIMAND Assistant Attorney General Florida Bar Number 0239437 Office of the Attorney General 110 S.E. 6th Street, 10th Floor Ft. Lauderdale, Florida 33301 (954) 712-4600 Fax (954) 712-4761 EFTA_R1_00167789 EFTA01809388 TABLE OF CONTENTS TABLE OF CITATIONS INTRODUCTION 1 STATEMENT OF TYPE SIZE AND FONT 1 STATEMENT OF THE CASE AND FACTS 2 QUESTION PRESENTED 3 SUMMARY OF THE ARGUMENT 4 ARGUMENT 6 I CORAM NOBIS IS A LIMITED REMEDY FOR INDIVIDUALS WHO ARE NOT IN CUSTODY, HAVE A NEWLY DISCOVERED EVIDENCE CLAIM OR AN ERROR IN FACT THAT WOULD HAVE CONCLUSIVELY PREVENTED THE TRIAL COURT FROM ENTERING THE JUDG- MENT AND FOR WHICH ANOTHER REMEDY NEVER EXISTED. A CORAM NOBIS RELIEF IS NOT AVAILABLE TO VACATE THE PLEA OF A NON- CUSTODIAL DEFENDANT WHO FIRST FEELS THE EFFECTS OF THE TRIAL COURT'S FAILURE TO ADVISE HIM HE WAS PLEADING GUILTY TO TWO CASES UNTIL HIS FEDERAL SENTENCE WAS GOING TO BE ENHANCED BY THOSE PLEAS. B A DEFENDANT SHOULD BE REQUIRED TO ASSERT AND PROVE A PROBABILITY OF ACQUITTAL AT TRIAL TO SECURE RELIEF FROM AN INVOLUNTARY PLEA RESULTING FROM THE TRIAL COURT'S FAILURE TO FOLLOW RULE 3.172. II EFTA_R1_00167790 EFTA01809389 THE PETITION FOR WRIT OF ERROR CORAM NOBIS WAS PROPERLY DENIED BECAUSE PETITIONER PREVIOUSLY HAD OTHER RELIEF AVAILABLE TO HIM AND HIS CLAIM IS BARRED BY THE DOCTRINE OF LACHES. CONCLUSION 24 CERTIFICATE OF SERVICE 24 EFTA_R1_00167791 EFTA01809390 TABLE OF CITATIONS CASES PAGE Baggett v. State, 637 So. 2d 303 (Fla. 1st DCA 1994) 12 Bartz v. State, 24 Fla.L.Weekly D2019 (Fla. 3d DCA 1999) 21 Fuller v. State, 578 So 2d 887 (Fla. 1st DCA 1991), quashed on other grounds, 595 So. 2d 20 (Fla. 1992) 15 Gideon v. Wainwright, 372 U.S. 335 (1963) 7 Gradison v. State, 654 So. 2d 635 (Fla. 1st DCA 1995) 12 Hallman v. State, 371 So. 2d 482 (Fla. 1957) 14 Hill v. State, 724 So. 2d 610 (Fla. 5th DCA 1998), rev. denied, 731 So. 2d 649 (Fla. 1999) 22 Jones v. State, 591 So. 2d 911 (Fla. 1991) 14,17 La Rocca v. State, 151 So. 2d 64 (Fla. 2d DCA 1963) 9 Loftin v. McGregor, 152 Fla. 813, 14 So. 2d 574 (Fla. 1943) 13 Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992) 8 McCray v. State, 699 So. 2d 1366 (Fla. 1998) L2 Mitchell v. State, iii EFTA_R1_00167792 EFTA01809391 638 So. 2d 606 (Fla. 1st DCA 1994) 12 Nickels v. State, 86 Fla. 208, 99 So. 121 (1924) 9 Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998) 12 Richardson v. State, 546 So. 2d 1037 (Fla. 1989) 6,8 Russ v. State, 95 So. 2d 594 (Fla. 1957) 6 Snell v. State, 28 So. 2d 863 (Fla 1947) 9 State v. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995), rev. denied, 668 So. 2d 602 (Fla. 1996) State v. Garcia, 16,17 571 So. 2d 38 (Fla. 3d DCA 1990) 9,14 State v. Morris, 538 So. 2d 514 (F1a.3d DCA 1989) 12 State v. Will, 645 So. 2d 91 (Fla. 3d DCA 1994) 16 Suarez v. State, 616 So. 2d 1067 (Fla. 3d DCA 1993) 11,16 Sullivan v. State, 154 Fla. 496, 18 So. 2d 163 (1944) 8 Todd v. State, 648 So. 2d 249 (Fla. 3d DCA 1994) 1 '7 Vonia v. State, 680 So. 2d 438 (Fla 2nd DCA 1996) 9,11,20 Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975) 7 iv EFTA_R1_00167793 EFTA01809392 Wood v. State, 24 Fla. L Weekly S240 (Fla. May 27, 1999) . 4,6,10,11,19,20,21 Wuornos v. State, 676 So. 2d 966 (Fla. 1996) 15 Xiques v. Dugger, 571 So. 2d 3 (Fla. 2d DCA 1990) 23 OTHER AUTHORITIES Florida Rule of Criminal Procedure 3.850 6,12 Florida Rule of Criminal Procedure 3.172(c)(8) 15 Florida Rule of Criminal Procedure 3.172(I) 15,16 V EFTA_R1_00167794 EFTA01809393 INTRODUCTION The Respondent, the STATE OF FLORIDA, was the Appellee below. The Petitioner, EDWIN SCOTT, was the Appellant below. The parties will be referred to as the State and the Petitioner. The symbol "R" will designate the record on appeal, the symbol "T" will designate the transcript of proceedings and the symbol "A" will designate the Appendix to this brief. STATEMENT OF TYPE SIZE AND FONT The size and style of type used in this brief is 12 point Courier New. 1 EFTA_R1_00167795 EFTA01809394 STATEMENT OF THE CASE AND FACTS The State accepts the Petitioner's statement of the case and facts as a substantially accurate account of the proceedings below. EFTA_R1_00167796 EFTA01809395 QUESTION PRESENTED I WHETHER CORAM NOBIS IS A LIMITED REMEDY FOR INDIVIDUALS WHO ARE NOT IN CUSTODY, HAVE A NEWLY DISCOVERED EVIDENCE CLAIM OR AN ERROR IN FACT THAT WOULD HAVE CONCLUSIVELY PREVENTED THE TRIAL COURT FROM ENTERING THE JUDGMENT AND FOR WHICH ANOTHER REMEDY NEVER EXISTED? A WHETHER CORAM NOBIS RELIEF IS AVAILABLE TO VACATE THE PLEA OF A NON-CUSTODIAL DEFENDANT WHO FIRST FEELS THE EFFECTS OF THE TRIAL COURT'S FAILURE TO ADVISE HIM HE WAS PLEADING GUILTY TO TWO CASES UNTIL HIS FEDERAL SENTENCE WAS GOING TO BE ENHANCED BY THOSE PLEAS? B WHETHER A DEFENDANT SHOULD BE REQUIRED TO ASSERT AND PROVE A PROBABILITY OF ACQUITTAL AT TRIAL TO SECURE RELIEF FROM AN INVOLUNTARY PLEA RESULTING FROM THE TRIAL COURT'S FAILURE TO FOLLOW RULE 3.172? II WHETHER THE PETITION FOR WRIT OF ERROR CORAM NOBIS WAS PROPERLY DENIED BECAUSE PETITIONER PREVIOUSLY HAD OTHER RELIEF AVAILABLE TO HIM AND HIS CLAIM IS BARRED BY THE DOCTRINE OF LACHES? EFTA_R1_00167797 EFTA01809396 SUMMARY OF THE ARGUMENT The purpose of the writ of error coram nobis is to enable a party against whom a judgment has been rendered to gain relief from the judgment by applying to the same court in which the judgment was rendered. It is brought to show an error in fact, defect in process, default in performance of duty by ministerial officers, and other matters none of which are apparent from the record. The showing must be such that if the matters shown had been before the trial court when the judgment was entered, the trial court would have been precluded from entering the judgment. The party seeking the writ must have no other remedy. Thus a claim that a plea was involuntary because the trial court failed to advise the defendant that he was pleading to two cases is not the proper subject for a coram nobis petition where the defendant was in custody for more than two years after the plea. Coram nobis is also not available since the failure to advise a defendant of the consequences of his plea is not an error of fact or is its ascertainment after the defendant is no longer in custody considered newly discovered evidence. This Court's decision in Wood v. State, 24 Fla. L Weekly S240 (Fla. May 27, 1999) does not change the foregoing rationale. Wood incorporated coram nobis into Rule 3.850. The only thing that Wood 4 EFTA_R1_00167798 EFTA01809397 did is to allow an individual who was never in custody to file a Rule 3.850 motion. Wood has not changed the requirement that a defendant must show factual innocence. When a defendant is in custody, he can file a timely motion for post conviction relief alleging his plea was involuntary because he was not told of the deportation consequences of his plea. However, the mere fact that the record supports the claim is insufficient to grant relief. The defendant must show prejudice in the form that he would have been acquitted of the charge had he gone to trial. EFTA_R1_00167799 EFTA01809398 ARGUMENT I CORAM NOBIS IS A LIMITED REMEDY FOR INDIVIDUALS WHO ARE NOT IN CUSTODY, HAVE A NEWLY DISCOVERED EVIDENCE CLAIM OR AN ERROR IN FACT THAT WOULD HAVE CONCLUSIVELY PREVENTED THE TRIAL COURT FROM ENTERING THE JUDGMENT AND FOR WHICH ANOTHER REMEDY NEVER EXISTED. The purpose of the writ of error coram nobis, now pursuant to Wood v. State, 24 Fla. L Weekly S240 (Fla. May 27, 1999) a Rule 3.850 motion filed by a defendant who was never in custody, is to enable a party against whom a judgment has been rendered to gain relief from the judgment by applying to the same court in which the judgment was rendered. It is brought to show an error in fact, defect in process, default in performance of duty by ministerial officers, and other matters none of which are apparent from the record. The showing must be such that if the matters shown had been before the trial court when the judgment was entered, the trial court would have been precluded from entering the judgment. The party seeking the writ must have no other remedy. Russ v. State, 95 So. 2d 594, (Fla. 1957). In Richardson v. State, 546 So. 2d 1037 (Fla. 1989) this Court recognized that Florida Rule of Criminal Procedure 3.850 has absorbed many of the claims traditionally brought under habeas 6 EFTA_R1_00167800 EFTA01809399 corpus and coram nobis. This Court found the a Rule 3.850 motion is the appropriate place to bring newly discovered evidence claims since it is one of the exceptions to the two year time limitation for bringing claims under the rule where it is alleged that the facts upon which the claim is predicated were unknown to the movant or his attorney and could not have been ascertained by the exercise of due diligence. This Court then held that the only currently viable use for the writ of error coram nobis is where the defendant is no longer in custody, thereby precluding the use of Rule 3.850 as a remedy. Therefore, errors of fact which are newly discovered as contemplated by Rule 3.850, unascertainable by the exercise of due diligence, are those that are cognizable by writ of error coram nobis. The second area covered by coram nobis is defect of process. This area also has its counterpart in Rule 3.850 and can heard under the exception to the two-year time limitation for bringing claims under the rule when the fundamental constitutional right asserted was not established within the period provided for and has been held to apply retroactively. In Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975) a writ of error coram nobis was granted where the defendant was no longer in custody and he alleged his Gideon v. Wainwright, 372 U.S. 335 (1963) right to counsel was violated. The 7 EFTA_R1_00167801 EFTA01809400 Court found that the right to appointed counsel in felony prosecutions is a fundamental right with retroactive application. Based on defect of process, and not ineffective assistance of counsel, the writ was granted. The writ was granted because not only was the defendant not in custody but when he was in custody the right to counsel did not exist and therefore the defendant had no other remedy. The third area covered by coram nobis is to correct an error in the court's record caused by a default in the performance of a duty by a ministerial officer. In Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992) the Court held that when a clerk misperforms a ministerial duty by recording the wrong judgment of conviction, coram nobis was appropriate, regardless of due diligence, to correct a patent error in the record caused by the clerk. The fourth area covered by coram nobis, all other matters not apparent from the face of the record, has been absorbed by Rule. 3.850. Richardson v. State, 546 So. 2d 1037 (Fla 1989) (claims based on alleged knowing use of perjured testimony and claims of suppression of evidence by the prosecution are cognizable in Rule 3.850 proceedings). Not only does a writ of coram nobis require that the petitioner not be in custody at the time it is filed and the 8 EFTA_R1_00167802 EFTA01809401 subject mater must be one of those listed above, but the party seeking the writ must have no other remedy. This means that the party has no remedy at all and not that the once available remedy is now time barred. Sullivan v. State, 154 Fla 496, 18 So 2d 163 (1944) (the writ does not lie to give relief to an irregularity arising in connection with a petit juror's disqualification, although the defendant did not discover the error until after the time for a new trial has expired); Vonia v. State, 680 So. 2d 438 (Fla 2nd DCA 1996) (writ of error coram nobis did not concern itself with newly discovered evidence or with questions of fact, could not be used to collaterally attack a defendant's expired sentences, where the defendant had not sought post conviction relief, so that defendant's claim would have been procedurally barred even if he had still been incarcerated on the conviction attacked). In accordance with the foregoing a claim of ineffective assistance of counsel is not a proper subject for a writ of error coram nobis since the claim can be raised in either a Rule 3.850 motion or a petition for writ of habeas corpus. Snell v. State, 28 So. 2d 863 (Fla 1947). Also a claim that a guilty or nolo plea was not voluntary is also not a proper claim for coram nobis since in can be raised in a Rule 3.850 motion or a motion to withdraw or 9 EFTA_R1_00167803 EFTA01809402 vacate plea, unless it was unknown to the court at the time of the plea that the plea was entered into because of actual dominating fraud, duress or other unlawful means actually asserted by some one not in privity with the petitioner or counsel. La Rocca v. State, 151 So. 2d 64 (Fla. 2d DCA 1963); Nickels v. State, 86 Fla. 208, 99 So. 121 (1924) (writ of error coram nobis proper vehicle to vacate plea where plea was entered because of fear of mob violence); State v. Garcia, 571 So. 2d 38 (Fla. 3d DCA 1990) (coram nobis is an inappropriate remedy when it is alleged the a plea is involuntary for the failure of the trial court to insure that the defendant was aware of the consequences of his plea). For individuals who were never in custody a writ of error coram nobis, now pursuant to Wood v. State, 24 Fla. L Weekly S240 (Fla. May 27, 1999) a Rule 3.850 motion, is the appropriate remedy to raise claims of newly discovered evidence or other errors in fact, which could not have been discovered with due diligence and the result of which would conclusively have prevented the trial court from originally entering the judgment. It is also available to individuals who were never in custody to raise issues concerning defect of process or failure to do ministerial duties. The individual filing the writ must not have any other remedy available. The failure to timely utilize a remedy it, does not 10 EFTA_R1_00167804 EFTA01809403 equate to the absence of a remedy. With these legal principles in mind the State will address the issues raised by the Petitioner herein. A CORAM NOBIS RELIEF IS NOT AVAILABLE TO VACATE THE PLEA OF A NON- CUSTODIAL DEFENDANT WHO FIRST FEELS THE EFFECTS OF THE TRIAL COURT'S FAILURE TO ADVISE HIM HE WAS PLEADING GUILTY TO TWO CASES UNTIL HIS FEDERAL SENTENCE WAS GOING TO BE ENHANCED BY THOSE PLEAS. On November 5, 1990, Petitioner plead guilty, and was given a 2 1/2 year sentence with credit time served for 60 days. On December 30, 1997 Petitioner filed a Petition for Writ of Error Coram Nobis. He contended that he was not advised by the trial court that he was pleading guilty to two cases. He alleged that had he known this, he would not have pled guilty. Since Petitioner pled guilty and in custody for 2 1/2 years four years, his only avenue for post-conviction relief is Rule 3.850. Although he is no longer in custody and 2 year limitation has elapsed, coram nobis, now pursuant to Wood v. State, 24 Fla. L Weekly 5240 (Fla. May 27, 1999) a Rule 3.850 motion, is not available to Petitioner because he had another remedy, but failed to use it. Relief is also not available by a motion to withdraw or vacate the plea pursuant to Rule 3.170 Fla.R.Crim.P because it is 11 EFTA_R1_00167805 EFTA01809404 only cognizable on direct appeal. Suarez v. State, 616 So. 2d 1067 (Fla. 3d DCA 1993). Since Petitioner was in custody for 2 1/2 years and this claim could only be raised in a Rule 3.850 motion, the two year limitation period began to run when the judgment and sentence was final. Vonia v. State, 680 So. 2d 438 (Fla. 2d DCA 1996) (writ of error coram nobis that did not concern itself with newly discovered evidence or with questions of fact could not be used to collaterally attack defendant's expired sentences, where defendant had not sought post-conviction relief, so that defendant's claim would have been procedurally barred even if he had still been incarcerated on conviction he attacked) . In order to avoid the harsh reality that he is not entitled to the writ of coram nobis because Petitioner had an available remedy but failed to utilize it, he claims that the two year limitations period did not begin to run until he found out that his federal sentence was going to be enhanced based on his state convictions. Petitioner then reasons, that since she did not learn of this until after the limitations period ended, he never had a remedy other than coram nobis to cure the defects in the plea. This position, as recognized by the Third District in Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998), is directly contrary to the terms of Florida Rules of Criminal Procedure 3.850. Rule 12 EFTA_R1_00167806 EFTA01809405 3.850(b), specifically states that a motion thereunder must be brought within two years "after judgment and sentence become final." This provision has consistently been applied to claims of involuntary pleas. See Gradison v. State, 654 So. 2d 635, (Fla. 1st DCA 1995) (postconviction motion challenging voluntariness of nolo contendre plea was untimely where it was filed more than two years after the judgment and sentence became final); Mitchell v. State, 638 So. 2d 606 (Fla. 1st DCA 1994) (same); Baggett v. State, 637 So. 2d 303 (Fla. 1st DCA 1994) (same); State v. Morris, 538 So. 2d 514 (Fla.3d DCA 1989) (same). The application of this principle to a claim of involuntary plea is within the proper framework of Rule 3.850 litigation because the alleged defect in the plea occurred at the time the plea was entered and not when the effects of the defect are felt by the defendant. Any other interpretation would be contrary to the terms of Rule 3.850 (a) which specifically lists as a ground covered by the Rule a plea that was involuntarily given. As such, Petitoner had a remedy to challenge the voluntariness of his plea. Thus, the Third District correctly held that coram nobis was an improper remedy because Petitioner had Rule 3.850 relief available to him. The Petitioner next contends that the instant claim also satisfies the next prong of coram nobis since an involuntary plea 13 EFTA_R1_00167807 EFTA01809406 is a error of fact which is newly discovered evidence. Neither of these claims withstand close scrutiny. To support his contention that the claim of an involuntary plea is an error of fact, Petitioner relies on cases which hold that the determination of the voluntariness of a plea is a question of fact. The State does not dispute this statement, but does dispute its applicability to the issue at hand. A question of fact arises when two or more conclusions can be drawn from the facts. Loftin v. McGregor, 152 Fla. 813, 14 So. 2d 574 (Fla. 1943). This definition as applied to the determination of the voluntariness of a plea is correct since the trial court usually has to make its decision based on two sets of facts. However simply because the trial court's determination is labeled a question of fact, it does not automatically mean an error of fact. This is so because an error of fact is defined as one which conclusively would have prevented the entry of the judgment and sentenced attacked. Hallman v. State, 371 So. 2d 482 (Fla. 1957). Thus, a defendant is entitled to relief only when the question of fact is determined in his favor, while a defendant is entitled to relief upon establishment of the error of fact regardless of what other evidence is present. Therefore, it is clear that a claim of an involuntary plea does not involve an error of fact but instead 14 EFTA_R1_00167808 EFTA01809407 involves a error of law. State v. Garcia, 571 So. 2d 38 (Fla 3d DCA 1990) (claim that guilty plea had not been knowingly and intelligently made because the defendant was not aware of the consequences of his plea is an error of law and not within the function of a writ of error coram nobis.) The Petitioner's claim of newly discovered evidence is the same reason why he is not barred by the two year time limit of Rule 3.850 and that is that the plea did not become involuntary until his federal sentence was going to be enhanced because of the pleas.. This position is meritless since a defendant in oder to establish evidence as newly discovered he must show that it (1) was not known to him or his counsel at the time of or plea and could not have been ascertained by the exercise of due diligence; and (2) of such a nature that it would probably produce an acquittal. Jones v. State, 591 So. 2d 911 (Fla. 1991). Petitioner's claim fails because the "fact" that he was not advised that he was pleading guilty to two cases was evident from his plea colloquy and thus was easily ascertainable with the minimal exercise of diligence. Further, the "fact" that he was not advised that he was pleading to two cases would not provide for an acquittal, just a retrial or a new plea. Thus, it is evident that Petitioner's claim of an involuntary plea can not meet the requirements of newly 15 EFTA_R1_00167809 EFTA01809408 discovered evidence. B A DEFENDANT SHOULD BE REQUIRED TO ASSERT AND PROVE A PROBABILITY OF ACQUITTAL AT TRIAL TO SECURE RELIEF FROM AN INVOLUNTARY PLEA RESULTING FROM THE TRIAL COURT'S FAILURE TO FOLLOW RULE 3.172. Florida Rule of Criminal Procedure 3.172(c) (8) requires trial judges to inform all defendants of the possibility of deportation when accepting guilty or nolo pleas. However, Florida Rule of Criminal Procedure 3.172(I) also provides that "(f)ailure to follow any of the procedures in this rule shall not render a plea void absent a showing prejudice." (emphasis added). Furthermore in Wuornos v. State, 676 So. 2d 966 (Fla. 1996), this Court specifically approved of the following portion of the First District's opinion in Fuller v. State, 578 So. 2d 887, 889 (Fla. 1st DCA 1991), quashed on other grounds, 595 So. 2d 20 (Fla. 1992): In the absence of an allegation of prejudice or manifest injustice to the defendant, the trial court's failure to adhere to rule 3.172 is an insufficient basis for reversal. Id.; see also State v. Fox, 659 So. 2d 1324, 1326 (Fla. 3d DCA 1995), rev. denied, 668 So. 2d 602 (Fla. 1996) (citing Willkerson v. State, 401 So. 2d 1110, 1112 (Fla. 1981); State v. Will, 645 So. 16 EFTA_R1_00167810 EFTA01809409 2d 91, 93 (Fla. 3d DCA 1994); Suarez v. State, 616 So. 2d 1067, 1068 (Fla. 3d DCA 1993). Also, "it is the defendant's burden to establish prejudice or manifest injustice. `(Ijt is not sufficient to simply make bald assertions.'" Fox, 659 So. 2d at 1327 (quoting State v. Caudle, 504 So. 2d 419, 421 (Fla. 5th DCA 1987)). In order to properly allege prejudice in this context, a defendant must claim that had he been informed of the possibility of deportation, he would have rejected the plea offer and gone to trial. Additionally, and more importantly, he must claim that had he gone to trial, he would have most probably been acquitted. The reason this is a necessary allegation is that the defendant would have faced the same deportation consequences if he had been convicted following a trial even if the court withheld adjudication after trial. The State submits that this reasoning is sound and that this portion of the Third District's opinion fully comports with prejudice requirement as set forth in Florida Rule of Criminal Procedure 3.172(I). This reasoning, as stated by the Third District should be adopted by this Court as its own. As guidance to Prieto and others who would assert similar claims, we point out that to set aside a plea for failure to inform a defendant of immigration consequences pursuant to Rule 3.172(c)(8), the motion must assert, and the defendant must prove the following: 17 EFTA_R1_00167811 EFTA01809410 a) the defendant was not advised by the court of the immigration consequences; b) that defendant had no actual knowledge of same; c) that INS had instituted deportation proceedings, or defendant is at risk of deportation; d) that defendant would not have pled had defendant known of the deportation consequences; and e) that had defendant declined the plea offer and gone to trial, defendant most probably would have been acquitted. This last requirement comports with the Rule 3.172 requirement that defendant must show oreiudice to set aside a plea as not in conformity with the Rule. Because of the special nature of the claims in these cases, that deportation has resulted as a consequence of the pleas, in order to demonstrate prejudice the defendant must demonstrate a probable likelihood that he or she would have been acquitted. To require any less of a showing would subject the trial court to entertaining petitions for relief to set aside pleas in cases where the defendant would nonetheless be found guilty at trial and therefore would be facing the same consequence of deportation. See generally Jones v._State, 591 So. 2d 911 (Fla. 1991); State v. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995), review denied, 668 So. 2d 602 (Fla. 1996); Todd v. State, 648 So. 2d 249 (Fla. 3d DCA 1994). Requiring that the defendants establish that they most probably would have been acquitted is concordant with this court's conclusion that these motions must be brought within two years after judgment and sentence become final, as required in Rule 3.850. This two- year limitation assures some realistic probability that evidence will remain available and that the trial court can 18 EFTA_R1_00167812 EFTA01809411 reliably determine whether defendant most likely would have prevailed at trial. If we adopt defendants' argument that the triggering event is the onset of deportation proceedings, in many cases the court files will be quite stale and evidence or witnesses may or may not be available. The two-year limit addresses this problem. 19 EFTA_R1_00167813 EFTA01809412 II THE PETITION FOR WRIT OF ERROR CORAM NOBIS WAS PROPERLY DENIED BECAUSE PETITIONER PREVIOUSLY HAD OTHER RELIEF AVAILABLE TO HIM AND HIS CLAIM IS BARRED BY THE DOCTRINE OF LACHES. Finally, the Petitioner contends that he is entitled to the writ of error coram nobis to collaterally attack his pleas because he is no longer in custody. This is based on this Court's decision in Wood v. State, 24 Fla.L.Weekly 5240 (Fla. May 27, 1999). In Wood this Court eliminated the writ of error coram nobis for noncustodial movants. It provided that henceforth custodial and noncustodial movants would be governed by Rule 3.850; thus, removing the "in custody" requirement of Rule 3.850. This Court further held that the Rule 3.850 time limits would be applied toward already filed petitions for writ of error coram nobis and that defendants adjudicated prior to the Wood decision would "have two years from the filing date within which to file claims traditionally cognizable under coram nobis." This Court held that the "other issues Wood raises are beyond the scope of the certified conflict and we decline to address them;" hence, the opinion merely addressed the jurisdictional issue of the time limitations. Id. at 20 EFTA_R1_00167814 EFTA01809413 n. 3. Woods matter was then remanded for further proceedings.- Id. The Wood opinion cited with approval Vonia v. State, 680 So.2d 438 (Fla. 2d DCA 1996), finding that the principles therein are still applicable to coram nobis claims, in spite of the changes of the statue of limitations. Wood, 24 Fla.L.Weekly at 3. In Vonia, the defendant began serving his five year sentence in 1984. Vonia, 680 So.2d at 439. After the expiration of the two year time limitation of Rule 3.850 and while he was still serving his sentence, the defendant filed a petition for writ of error coram nobis. While his petition was pending, the defendant's sentence expired. The defendant had not filed a Rule 3.850 motion while he was incarcerated during the two year time requirements of the Rule; hence, had he filed a Rule 3.850 instead of his coram nobis claim, he would have been procedurally barred. The Vonia court approved the denial of the defendant's coram nobis claim because he was not denied a remedy that would be available to him had he still been Since Wood only addressed the jurisdictional issue and remanded the case for further proceedings, the remaining issues were left to the trial court to determine, such as; whether the petition should be dismissed on the basis that the defendant had the opportunity to file a Rule 3.850 while on probation; whether the petition should be dismissed on the basis that the defendant failed to exercise due diligence in bringing forth his claim; or whether the petition should be denied on the basis that it is meritless. See argument infra. 21 EFTA_R1_00167815 EFTA01809414 incarcerated. The court reasoned that "the writ of error coram nobis cannot be used by a person no longer in custody to breathe life into a postconviction claim previously time barred." Id. In effect, the Vonia court held that a petitioner should not be permitted to file a Rule 3.850 while incarcerated and also be given a second bite of the apple when he then files a petition for writ of error coram nobis when he is no longer in custody, when a petitioner who remains "in custody" is only permitted one bite of the apple in filing a Rule 3.850. Here, the Petitioner was sentenced to 2 1/2 years in prison with 60 days for credit for time served. The Petitioner therefore had the opportunity to file a Rule 3.850 while he was incarcerated. The Petitioner chose not to but instead waited just about seven years to file his petition for writ of error coram nobis. In accordance with Wood and Vonia the availability of 3.850 relief renders the Defendant's coram nobis an improper remedy. Coram nobis here is being used by the Petitioner to breathe life into a postconviction claim that would have otherwise been time barred and he is not being denied a remedy that would have otherwise been available to him had he still been incarcerated. Moreover, the State would submit that the Defendant's claims should also be barred by the doctrine of laches. Wood also held 22 EFTA_R1_00167818 EFTA01809415 that the due diligence standard in coram nobis claims should also continue to be applied. Wood, 24 Fla.L.Weekly at 3. In Bartz v. State, 24 Fla.L.Weekly D2019 (Fla. 3d DCA 1999), the Court applied the doctrine and found that the defendant's claims, where he waited over twenty-one years to raise them, should be barred on that basis. The State would also submit that the use of the presumption of the doctrine of laches in McCray v. State, 699 So.2d 1366, 1368 (Fla. 1998), should also be applicable in the circumstances presently before this Court. In McCray, the defendant filed a petition for writ of habeas corpus fifteen years after his conviction and sentence became final. The McCray court held that "any petition for a writ of habeas corpus claiming ineffective assistance of appellate counsel is presumed to be the result of an unreasonable delay and to prejudice the state if the petition has been filed more than five years from the date the petitioner's conviction became final." Id. at 1368. The Court further held that the presumption "may be overcome only if the petitioner alleges under oath, with a specific factual basis, that the petitioner was affirmatively misled about the results of the appeal by counsel." Similarly, here, the doctrine of laches is applicable. The 23 EFTA_R1_00167817 EFTA01809416 Petitioner's judgment and sentence were filed on November 5, 1990. The Petitioner never filed a direct appeal, hence, his judgment and sentence became final thirty days later - on December 5, 1990. The Petitioner waited until December 30,1997, just about seven years - over the five year time limit announced in McCray - to filed his petition for writ of error coram nobis and he made no representations for the reasons for his extensive delay. See Hill v. State, 724 So.2d 610 (Fla. 5th DCA 1998), rev. denied, 731 So.2d 649 (Fla. 1999) (laches applicable where petition filed more than six years after convictions became final); Xiques v. Dugger, 571 So.2d 3 (Fla. 2d DCA 1990) (laches applicable where waited eight years after conviction). Moreover, even if this Court were not to apply the McCray presumption, the petition should still be barred by the doctrine of laches. First, as stated above, the Petitioner makes no representations whatsoever that he has been diligent in bringing forth this claim. Instead, the Petitioner has cited no reasons for the undue delay. Second, the State would submit that it will undoubtedly be prejudiced by the delay. It would be extremely difficult for the State to gather the necessary witnesses to contest this claim. Finally, the policy rationale for allowing the laches defense 24 EFTA_R1_00167818 EFTA01809417 is important - to acknowledge the finality of convictions at some point which, in turn, will foster confidence in the judicial system. Here, the Petitioner took the benefit of the plea bargain and it was not until after he felt the collateral impact of his previous conviction in federal court that he chose to seek relief. Clearly, the policy to put a stop to these types of claims which could be filed years down the road is very real. Because the Petitioner had a remedy available to him prior to his release, and because he waited nine years to file his petition, the State would submit that the petition was properly denied. CONCLUSION Based on the foregoing, Petitioner requests this Court affirm in total the decision of the District Court. Respectfully submitted, ROBERT A. BUTTERWORTH Attorney General MICHAEL J. NEIMAND Assistant Attorney General Florida Bar Number 0239437 Office of the Attorney General 110 S.E. 6th Street Ft Lauderdale, Florida 33131 (954) 712-4600 Fax (954) 712-4761 25 EFTA_R1_00167819 EFTA01809418 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing RESPONDENT'S BRIEF ON THE MERITS was furnished by mail to KENNETH M. SWARTZ, Attorney for Petitioner, 150 West Flagler, Suite 1700, Miami, Florida 33130 on this day of October, 1999. MICHAEL J. NEIMAND Assistant Attorney General 26 EFTA_R1_00167820 EFTA01809419 IN THE SUPREME COURT OF FLORIDA CASE NO. 95,615 EDWIN SCOTT, Petitioner, vs. THE STATE OF FLORIDA, Respondent. APPENDIX ROBERT A. BUTTER WORTH Attorney General MICHAEL J. NEIMAND Assistant Attorney General Florida Bar No. 0239437 Office of the Attorney General 110 S.E. 6th Street Ft. Lauderdale, Florida 33301 (954) 712-4600 Fax No. (954) 712-4761 EFTA_R1_0°167821 EFTA01809420