Peng v. State

202 So.3d 459

Stanley PENG, Appellant,

v.STATE of Florida, Appellee.

No. 5D16–1480.

District Court of Appeal of Florida, Fifth District.

Oct. 28, 2016.

Thomas P. O'Connell, of Thomas P. O'Connell, P.A., Fort Lauderdale, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

Stanley Peng appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We find merit to one of the two issues raised on appeal.

After the entry of a no contest plea, Peng was convicted of traveling to meet a minor for unlawful sexual activity in violation of section 847.0135(4), Florida Statutes (2010). As a consequence of his conviction, he was designated a sexual offender. In his postconviction motion, Peng claimed that his trial counsel affirmatively misadvised him that designation as a sexual offender, rather than as a sexual predator, would preclude his photograph from being posted on the Florida Department of Law Enforcement's website. He further averred that but for this misadvice, he would have proceeded to trial.

Although counsel is generally not required to advise a defendant of the collateral consequences of a plea, affirmative misadvice regarding collateral consequences may provide a basis for postconviction relief. See, e.g., Deck v. State, 985 So.2d 1234, 1236 (Fla. 2d DCA 2008) (holding that defendant's allegation in postconviction relief motion that trial counsel affirmatively misadvised him of collateral consequences of his plea presented facially sufficient claim for postconviction relief; defendant's motion alleged that, but for the misadvice, defendant would not have entered plea). Furthermore...