It was tax season and Jim was working overtime again. Jim was used to this sort of thing this time of year, having been an accountant for the last 18 years. As he got into his car after putting in a 13-hour day, all Jim could think of was getting home to see his wife and three young children, then getting into bed for some much-needed sleep. Unfortunately, Jim never made it home. Jim would never experience another day of freedom in this country.
Jim did not think he was speeding as he was driving home but, after being startled by the blue flashing lights in his rearview mirror, he looked down and to his surprise he was doing over 20 miles above the speed limit. The police officer could not have been more polite but Jim was so nervous that his hands trembled when he handed over his drivers license and registration. Any contact with police would remind Jim of the horrible experience he had in 1998 when, upon the advice of his lawyer, he pled no contest to insurance fraud. Jim's conviction involved a fraudulent insurance claim he riled, in which he defrauded his insurance company out of approximately $25,000. He was sentenced to 30 days in the Dade County Jail as a special condition of two years of probation and adjudication was withheld. After noticing Jim's thick accent, the officer asked Jim where he was from. Jim replied that he was from Ireland but he had been in the United States since 1985. The officer asked if he was a citizen and Jim said that he was not but that he has had a green card since 1991.
Ever since the 9/11 disaster, Officer Jones' department required him to run a records check with the Department of Homeland Security whenever encountering a noncitizen. About five minutes after calling Jim's name into the DHS, Officer Jones was advised that Jim was an aggravated felon and should be placed into custody and turned over to immigration officials who were already dispatched to Officer Jones' police station.
Jim could not believe that he was being arrested for a speeding ticket. Officer Jones explained that it was not the speeding ticket, but rather a request by DHS to make the arrest. Later that night, Jim was picked up by Homeland Security agents and taken to the Krome Detention Center in Miami where he was held in mandatory detention. The immigration lawyer hired by his family told Jim more bad news. Because of his prior conviction, new legislation passed by Congress gave Jim no possibility of being released on bond and the immigration judge had no choice but to ultimately deport him. Despite living in the U.S. for over 18 years, an 18-year career as an accountant, holding a green card, owning a home, being married to a U.S. citizen for 12 years, and having three U.S. citizen children, it appeared that absolutely nothing could be done for Jim. This was especially hard for Jim to accept since he paid restitution in full, successfully completed his probation, and received a withhold of adjudication. After being held in custody for eight months at the Krome Detention Center, Jim was deported.
One Strike and You're Out
Thanks to sweeping and draconian immigration legislation recently passed by Congress, Jim's odyssey is not unique and nightmare cases like this are occurring with greater frequency throughout the country. Convictions for certain felonies which never before caused deportation or serious immigration problems are now being used as justification to deport and exclude noncitizens regardless of their strong ties to the community. Because Jim was convicted after April 24, 1996, for insurance fraud with a loss of over $10,000, an "aggravated felony," and was released from that sentence after October 8, 1998, he was subject to mandatory detention without possibility of release on bond (unless he fit into the narrow exception relating to cooperating witnesses) and to mandatory deportation. (1)
Vacating the Conviction
Increasingly, the only avenue of relief left for people in Jim's situation is to vacate the criminal conviction that triggers the new federal laws mandating detention and deportation. Florida Rule of Criminal Procedure 3.850 (commonly referred to as "Rule 3") is the exclusive vehicle used in state court to vacate a state court conviction resulting from a guilty or no contest plea or a finding of guilt following trial. Rule 3.850 applies to both custodial and noncustodial defendants. (2)
Rule 3 motions need not be supported by supplemental affidavits but must be sworn to or affirmed by the defendant. (3) Subject to limited exceptions, defendants have one opportunity for challenging a state court conviction. Therefore, all potential grounds to vacate should be included or would be deemed waived. There is no filing fee and leave to amend the petition should be freely granted. (4) Generally, a Rule 3 motion must be filed within two years after the judgment and sentence become final in a noncapital case, which means 30 days after the conviction is rendered, if no appeal is taken, or the conclusion of direct appellate review, i.e., from the latter of the issuance of an appellate mandate or final determination by a court of last resort from which review was sought. (5) To preserve a defendant's ability to later seek federal habeas relief pursuant to 28 U.S.C. [section] 2254, a Rule 3 motion must be sought within one year of the state conviction becoming final. (See section on time limits for seeking relief pursuant to [section] 2254 below). The two-year time limitation in Rule 3.850 does not apply to newly discovered evidence or a newly recognized retroactive...
