text:
    STATE of Florida, Petitioner, v. Owran GREEN, Respondent.
    No. SC05-687.
    Supreme Court of Florida.
    Oct. 26, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Michael B. Cohen, Fort Lauderdale, FL, for Respondent.
   PARIENTE, J.

We have for review Green v. State, 895 So.2d 441 (Fla. 4th DCA 2005), which is in express and direct conflict with three decisions of the Third District Court of Appeal on the application of our decision in Peart v. State, 756 So.2d 42 (Fla.2000). In Peart, we held that in moving to withdraw a guilty or no contest plea on grounds that the trial court did not advise the defendant that the plea could result in deportation, the defendant must demonstrate that he or she has been threatened with deportation because of the plea. See id. at 48. The conflict issue is whether anything “less than the initiation of a deportation proceeding will constitute sufficient prejudice by reason of a ‘threat of deportation.’ ” Green, 895 So.2d at 444 (quoting Peart, 756 So.2d at 44). In the conflict cases, the Third District ruled that circumstances falling short of initiation of deportation proceedings were insufficient to establish threatened deportation. See Curiel v. State, 795 So.2d 180, 181 (Fla. 3d DCA 2001); Saldana v. State, 786 So.2d 643, 645 (Fla. 3d DCA 2001); Kindelan v. State, 786 So.2d 599, 600 (Fla. 3d DCA 2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We accepted this case for review to resolve the conflict. However, our review has alerted us to larger problems in applying Peart fairly, efficiently, and with adequate regard for finality. Because of these unintended consequences, we recede from our holding in Peart that the two-year period for moving to withdraw a plea on grounds that the trial court failed to advise the defendant that the plea could result in deportation begins “when the defendant has or should have knowledge of the threat of deportation based on the plea.” 756 So.2d at 46. Instead, pursuant to Florida Rule of Criminal Procedure 3.850(b), the limitations period commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation. Further, the defendant must establish only that he or she is subject to deportation because of the plea, not, as we held in Peart, that he or she has been specifically threatened with deportation. These changes govern in any case in which a trial court accepts a plea of guilty or no contest on or after the date of this decision. Application of this holding to older cases is addressed in the conclusion to this opinion.

In light of our holding in this case, and based on procedural defects in Green’s trial court pleadings which we discuss below, we quash the Fourth District’s decision in this case and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In September 2003, Green filed a sworn rule 3.850 motion seeking to vacate the no contest plea to lesser included offenses of assault and battery that he entered in 1993. Green asserted that neither his trial counsel nor the trial court advised him that the plea would render him subject to deportation as required by Florida Rule of Criminal Procedure 3.172(c)(8). Further, Green claimed that he learned about the adverse immigration consequences when he “recently” consulted an immigration attorney. The motion included documentation showing that a Form 1-601 application to the Immigration and Naturalization Service (INS) for a waiver of grounds for excludability by Green’s wife was denied in July 2003.

The State asserted in a written response that the motion was facially deficient because it failed to allege that Green was actively being deported by the United States government. The response also pointed to a separate offense of solicitation of prostitution identified in the 1-601 application attached to the motion that could also support deportation. On October 14, 2003, the trial court entered an order summarily denying Green’s motion “for the reasons stated in the State Attorney’s Response.” Seven days after entry of the order, Green’s counsel filed an unsworn reply to the State’s response asserting that (1) Green is threatened with deportation because the denial of the waiver of grounds for excludability would cause the Department of Homeland Security to begin deportation proceedings, (2) “[t]he Defendant intends to produce an expert ... who can further expound on this issue,” and (3) the defense expected its expert to testify that the crime of solicitation of prostitution falls within a “petty offense exception” and is not by itself an excluda-ble offense. On February 13, 2004, defense counsel filed a motion to set aside the court order on grounds that he did not receive a copy of the order before he filed his reply. In an order dated February 24, 2004, the trial court denied the motion to set aside the order. Green commenced an appeal.

Relying on the allegations in Green’s unsworn, untimely reply, the Fourth District reversed the summary denial of his rule 3.850 motion and remanded for an evidentiary hearing. The court pointed to Peart’s approval of district court decisions holding that to show prejudice, defendants had to establish “that they were ‘threatened’ with deportation because of the plea, and that had they known of the possible consequence they would not have entered the plea.” Green, 895 So.2d at 443 (quoting Peart, 756 So.2d at 47). The Fourth District determined that Green demonstrated a sufficient threat of deportation in asserting that as a result of statutory changes following the September 11, 2001, terrorist attacks, the Department of Homeland Security would “as a matter of course ” deport him. Id. at 442. The court stated:

It does not seem to us that the term “threat of deportation” in Peart v. State, 756 So.2d 42, 44 (Fla.2000), was used in the sense the State argues. We readily admit that the actual commencement of proceedings by the INS eliminates any speculation about the actuality of being deported. But the commencement of legal proceedings to deport does more than merely threaten deportation. Actually commencing procedures to expel an alien indicates that deportation from the United States has moved beyond any mere threat and has instead become reality. And therein lies the distinction underscored by Peart’s reliance on threaten to show prejudice.
In sum, we think defendant made out a prima facie case of prejudice under Peart .... In fact he has done more than allege a mere possibility. He has suggested proof that he will now actually be deported as a direct result of a plea that he never would have made if he had known the legal consequences .... [H]e is entitled to an evi-dentiary hearing to make his case.

Id. at 443-44 (footnote omitted). In dissent, Judge Stone stated that he would follow precedent holding that notice that the government is initiating a deportation proceeding is necessary to demonstrate that the defendant is threatened with deportation. Judge Stone concluded that “to hold otherwise is to speculate that the government will initiate deportation proceedings.” Id. at 445 (Stone, J., dissenting).

This Court granted discretionary review based on the express, direct conflict acknowledged by the Fourth District in the majority opinion below:

Some decisions since Peart have held that nothing less than the initiation of a deportation proceeding will constitute sufficient prejudice by reason of a “threat of deportation.” See Kindelan v. State, 786 So.2d 599 (Fla. 3d DCA 2001) (holding that the denial of a request to adjust immigration status and a finding that movant was excludable is not a “threat of deportation”); Curiel v. State, 795 So.2d 180 (Fla. 3d DCA 2001) (placing a detainer on the incarcerated movant was not a “threat of deportation”); Saldana v. State, 786 So.2d 643 (Fla. 3d DCA 2001) (finding that notice a detainer would be placed on the movant and an investigation into deportability initiated was not a threat of “actual deportation”). We disagree with that reading and are therefore in conflict with these decisions on this issue.

Green, 895 So.2d at 444.

ANALYSIS

In the discussion that follows, we review our opinion in Peart, explore the problems that have arisen from application of Peart in the lower courts, and explain our decision to abandon several of the pleading and proof requirements of Peart in favor of the more objective criteria in rule 3.850. Finally, we address the Fourth District decision in this case.

I. PEART V. STATE

In Peart, we reviewed a decision of the Third District that consolidated five appeals. Four defendants, two who were in custody and two who were not, filed petitions for writs of error coram nobis. Another defendant, who was in custody, moved for postconviction relief under rule 3.850. All five sought to withdraw their pleas on grounds that they were not advised by the trial court of immigration consequences of the pleas. Peart, 756 So.2d at 44. The Third District ruled that the defendants not in custody did not satisfy the requirements for error coram nobis because the failure to advise the defendants of immigration consequences was an error of law and coram nobis was available to address errors of fact or newly discovered evidence. The district court ruled that the defendants in custody who sought the writ should have filed their claims under rule 3.850, but that their claims were untimely because they were filed more than two years after their judgments and sentences became final. Finally, the Third District ruled that the defendant in custody who filed his claim under rule 3.850 would have to file a new motion alleging that, had he declined the plea offer and gone to trial, he probably would have been acquitted. Id. (citing Peart v. State, 705 So.2d 1059, 1062-63 (Fla. 3d DCA 1998)).

Our decision in Peart incorporated three holdings, one for each of the procedural postures. First, consistent with our then recent decision in Wood v. State, 750 So.2d 592 (Fla.1999), we determined that rule 3.850 would henceforth be the proper post-conviction vehicle in which to raise a violation of rule 3.172(c)(8) regardless of whether the defendant is in custody. Peart, 756 So.2d at 46. Second, we held that the two-year limitations period under rule 3.850 begins to run “when the defendant has or should have knowledge of the threat of deportation based on the plea.” Id. Third, the Court held that a defendant raising this claim need not prove a likelihood of acquittal had the case gone to trial in order to establish prejudice as required for relief under Florida Rule of Criminal Procedure 3.172(i). Peart, 756 So.2d at 47-48.

On the second of Peart’s three holdings, the Court stated that

in order for a defendant to establish a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea. Since the day the defendant gains (or should gain) knowledge of the threat of deportation is the first day the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns of the threat should likewise start the running of the two-year limitation period.

Id. at 46 (citation omitted). On the showing of prejudice required, we approvingly cited district court decisions holding that

to show prejudice pursuant to a rule 3.172(c)(8) violation, defendants had to establish that they did not know that the plea might result in deportation, that they were “threatened” with deportation because of the plea, and that had they known of the possible consequence they would not have entered the plea.

Id. at 47.

In a partially dissenting opinion in which he was joined by Chief Justice Harding and Justice Quince, Justice Wells asserted that the majority’s rejection of a requirement that the defendant establish probable acquittal had the case gone to trial would result in stale claims, contrary to the requirement in rule 3.850 that motions be filed within two years after the judgment and sentence become final. Id. at 52 (Wells, J., concurring in part and dissenting in part). Justice Wells pointed out that neither of the exceptions to the two-year deadline — -newly discovered evidence or assertion of a fundamental constitutional right established only after the two-year period — applied in any of the five cases. Id.

II. APPLICATION OF PEART

The first of our three holdings in Peart was merely an extension of our decision in Wood to postconviction motions raising rule 3.172(c)(8) violations. In Wood, this Court eliminated the requirement in rule 3.850 that the defendant be in custody, which had compelled defendants not in custody to use the writ of error corara nobis in postconviction challenges to their convictions. 750 So.2d at 595. Thus, the Court ruled in Peart that “since Wood both custodial and noncustodial defendants have been required to employ rule 3.850 to raise their claims” under rule 3.172(c)(8). 756 So.2d at 46.

However, the second holding in Peart, that “the limitation period begins to run when the defendant learns or should have learned (whichever is earlier) of the threat of deportation based on the plea,” id. at 48, contravened language in Wood holding that claims formerly raised via error co-ram nobis are subject to the time periods in rule 3.850:

Limiting claims cognizable under co-ram nobis to the same time limit that is applied to rule 3.850 motions places both such claimants on equal footing and prevents unwarranted circumvention of the rule. We hasten to add that the discovery of facts giving rise to a coram nobis claim will continue to be governed by the due diligence standard, and that co-ram nobis claims cannot breathe life into postconviction claims that have previously been held barred.

Wood, 750 So.2d at 595 (citation omitted). By starting the two-year clock with actual or imputed notice of a threatened deportation rather than finality of the judgment and sentence, as in rule 3.850(b), Peart authorized claims that otherwise would have been time-barred under the rule.

District court decisions demonstrate that as applied, Peart actually deters defendants from raising rule 3.172(c)(8) claims within the first several years after a plea. The claim does not ripen until a defendant is threatened with deportation. The conflict issue in this case reflects division in the district courts on what constitutes “threatened deportation.” However, under any of the thresholds for threatened deportation applied by the district courts, many motions claiming rule 3.172(c)(8) violations that have been filed long after the two-year period governing other posteon-viction claims under rule 3.850(b) are nonetheless timely under Peart.

Cases in which initiation of deportation proceedings constitutes the threatened deportation involve some of the longest delays. In Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002), the Fourth District ruled that a motion to withdraw a plea entered fourteen years earlier was timely because it was filed within two years of the date when the defendant learned that INS had commenced a deportation action against him. Id. at 990. In its 2002 decision in Alfaro v. State, 828 So.2d 1056 (Fla. 3d DCA 2002), the Third District ruled that a motion to withdraw a 1991 plea alleging that the defendant received notice to appear in deportation proceedings was timely. Id. at 1058. In State v. Lindo, 863 So.2d 1237 (Fla. 4th DCA 2003), the Fourth District determined that a 2002 motion to withdraw a 1990 plea, filed less than a year after the defendant received notice to appear in deportation proceedings, was timely. Id. at 1239. Likewise, in the 2000 decision in Gray v. State, 774 So.2d 30 (Fla. 2d DCA 2000), the trial court denied a postconviction motion claiming a rule 3.172(c)(8) violation on a 1990 plea on grounds that it was untimely and not subject to the exception for newly discovered evidence. The Second District reversed, concluding that the motion was filed within two years of the time when the defendant had or should have had knowledge of the threat of deportation. Id. at 31; see also Martinez v. State, 842 So.2d 900, 901 (Fla. 2d DCA 2003) (concluding that motion filed “quickly” after INS notice to appear in deportation proceedings, but nine years after plea, “cannot be ruled untimely on its face”).

Even under the Fourth District’s less exacting standard for establishing a threatened deportation in this case, “timely” motions alleging a rule 3.172(c)(8) violation can be filed many years after the plea. Green filed his motion to withdraw his 1993 plea in 2002, within months after denial of the application to waive grounds for excludability. Similarly, in Alguno v. State, 892 So.2d 1200, (Fla. 4th DCA 2005), the Fourth District ruled that a 2003 motion seeking to withdraw a 1995 plea and alleging that INS had denied his application for naturalization in 2001 stated a legally cognizable claim. Id. at 1201-02.

Precedent in which motions have been denied as premature also reflect the delay inherent in Peart’s criteria for a prima facie case. In Saldana v. State, 786 So.2d 643 (Fla. 3d DCA 2001), the court ruled that notice that a detainer would be placed on the movant and an investigation into deportability initiated did not constitute threatened deportation based on a 1990 plea. Id. at 645. In Kindelan v. State, 786 So.2d 599 (Fla. 3d DCA 2001), the Third District ruled insufficient a motion to withdraw a 1987 plea alleging that when Kindelan “applied to adjust his immigration status, INS advised him that he was excludable from the United States due to his conviction.” Id. at 600. In State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), notice invoking discretionary review filed, No. SC05-1901 (Fla. Oct. 14, 2005), in which the Third District certified conflict with Green, the court ruled that a motion to withdraw a plea which alleged that an immigration attorney advised the defendant that he would be subject to deportation if he applied for residency did not state a prima facie case for relief. Id. at 258; see also Aparicio v. State, 893 So.2d 630, 631 (Fla. 3d DCA 2005) (ruling premature a motion to withdraw a 1998 plea alleging that defense was advised by immigration counsel that if he applied for citizenship or tried to visit his son in Cuba he would at least be detained); Wigley v. State, 851 So.2d 784, 785 (Fla. 4th DCA 2003) (affirming denial of “premature” motion alleging that federal government had instituted action to revoke naturalization). As courts have explicitly held in some of these cases, the denial of the rule 3.850 motion is “without prejudice to the defendant seeking relief when the ‘threat of deportation’ is more demonstrable.” Wigley, 851 So.2d at 785 (citation omitted); see also Aparicio, 893 So.2d at 631.

In sum, the district court opinions applying Peart reflect that in many cases, commencement of deportation proceedings or another event constituting a threatened deportation can lag far behind a guilty or no contest plea to a deportable offense. Because a claimed rule 3.172(c)(8) violation is not ripe under Peart until the defendant is threatened with deportation and has or should become aware of the threat, the delay in commencing deportation proceedings causes a corresponding delay in bringing these claims.

Delayed filing hampers adjudication because transcripts of plea colloquies that would demonstrate whether defendants were advised of immigration consequences often become unavailable over time. When a transcript was not previously prepared, court reporters are required to retain original notes or electronic records no longer than ten years in felony cases, five years in misdemeanor cases. Fla. R. Jud. Admin. 2.430(f). Accordingly, contrary to the Fourth District’s opinion, there is no transcript of the plea colloquy in the record in this case, only a notation by the court reporter that in general transcripts are unavailable after ten years. Similarly, plea hearing transcripts were unavailable in Gaston, 911 So.2d at 258 n. 1, and Kindelan, 786 So.2d at 599-600. The opinion in Kindelan also reflects an unsuccessful attempt to reconstruct the record. Id. at 600. Further, one court has held that inclusion of the immigration warning on a preprinted plea form signed by the defendant is an insufficient basis for denial of relief on this claim. Alexis v. State, 845 So.2d 262, 262 (Fla. 2d DCA 2003); Benelhocine v. State, 787 So.2d 38, 39-40 (Fla. 2d DCA 2001). Therefore, too often, the filing delay required by Peart deprives defendants of the means by which they could conclusively meet their burden of demonstrating that they were not given the immigration warning.

In addition, when a defendant’s motion to withdraw a plea is granted for failure to give the rule 3.172(c)(8) warning, the passage of time between the guilty plea and the postconviction motion puts the State at a great disadvantage in seeking to try the case to conviction. Evidence may become unavailable and witnesses’ memories may fade. Concern over the effect of delays in filing these motions was at the heart of Justice Wells’ dissenting view in Peart that a defendant should establish a probability of acquittal, not merely threatened deportation, to obtain relief:

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 by Rule 3.850. This two-year limitation assures some realistic probability that evidence will remain available and that the trial court can 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.

Peart, 705 So.2d at 1063-64 (footnote omitted)....

As Justice Lewis stated in his concurring opinion in Provenzano v. State, 750 So.2d 597, 604 (Fla.1999), “[pjrocedures are not simply ‘technical’ niceties.” The procedure here is a two-year limitation which serves the purpose explained by Judge Shevin and should not be avoided by fixing the two years so that these otherwise stale claims are reviewed.

Peart, 756 So.2d at 52 (Wells, J., concurring in part and dissenting in part) (alteration in original).

The rejection by the Peart majority of a requirement that a defendant show probable acquittal in order to withdraw a plea is consistent with decisions by this Court and the United States Supreme Court in cases involving ineffective assistance claims. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Grosvenor v. State, 874 So.2d 1176, 1179-81 (Fla.2004). Nonetheless, the district court decisions discussed above validate the concern that the requirements in Peart for stating a prima facie case for withdrawal of a plea based on a rule 3.172(c)(8) violation will render evidence and witnesses unavailable.

III. TIMELINESS OF RULE 3.172(C)(8) CLAIMS UNDER RULE 3.850

Rule 3.850(b) provides that a motion to vacate a sentence that exceeds the limits provided by law may be filed at any time, but all other motions filed under the rule in a noncapital case must be filed within two years after the judgment and sentence become final. The rule contains three exceptions, but only the first is relevant here. It authorizes a motion filed beyond the two-year period if the motion alleges that the facts on which the claim is predicated were unknown to the movant or the mov-ant’s attorney and could not have been ascertained with the exercise of due diligence. Fla. R.Crim. P. 3.850(b)(1).

This Court first placed a time limit on postconviction claims in 1984. See Fla. Bar re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So.2d 907 (Fla.1984). As we noted in Baker v. State, 878 So.2d 1236, 1243 (Fla.2004), the two-year deadline and other limitations placed in the rule were prompted by Chief Justice Alderman’s concurring-in-result-only opinion in McCrae v. State, 437 So.2d 1388 (Fla.1983). Chief Justice Alderman suggested a time limit on postconviction claims “to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice.... There is no reason why a defendant, through the exercise of due diligence, cannot determine his basis for collateral attack during that period of time.” Id. at 1391 (Alderman, C.J., concurring in result only).

Peart's holding that the limitations period for a motion claiming a rule 3.172(c)(8) violation begins when the defendant knew or should have known of the threat of deportation exempts these motions from the requirement in rule 3.850(b) that post-conviction motions be filed within two years of the judgment and sentence becoming final. The district court precedent discussed above demonstrates that in many cases, the two-year clock does not start until long after the two-year period in the rule otherwise would have expired. Further, the actual or imputed knowledge of the threat of deportation that starts the two-year clock under Peart relieves defendants who could not meet the requirements of rule 3.850(b) from establishing that even with the exercise of due diligence, they could not have ascertained that they were subject to deportation within the two-year period in the rule. This result contravenes our caveat in Wood that “the discovery of facts giving rise to a coram nobis claim will continue to be governed by the due diligence standard and that coram nobis claims cannot breathe life into post-conviction claims that have previously been held barred.” 750 So.2d at 595 (citation omitted).

IV. RECEDING FROM PEART AND APPLYING RULE 3.850(B)

We decided Peart only six years ago, but its fruits have ripened to the point that we can confidently evaluate whether several of its holdings remain viable. Fidelity to precedent provides “stability to the law and to the society governed by that law.” State v. Gray, 654 So.2d 552, 554 (Fla.1995). However, the doctrine “does not command blind allegiance to precedent.” Id. Stare decisis yields “when an established rule of law has proven unacceptable or unworkable in practice.” Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1131 (Fla.2005). The district court precedent discussed above demonstrates that Peart’s requirements for filing a timely claim and establishing a prima facie case for relief on a rule 3.172(c)(8) violation have delayed these claims to a point that has proven unacceptable.

Accordingly, we recede from Peart’s holding as to the commencement of the two-year limitations period and its requirement that the defendant establish that he or she has been threatened with deportation. Instead, we apply the criteria of rule 3.850 to determine whether a postconviction motion claiming a rule 3.172(c)(8) violation is timely. A motion seeking to withdraw a plea on grounds that the trial court did not advise the defendant of the possibility of deportation will be held to the same time constraints as other postconviction motions raising other claims under rule 3.850. These claims must be brought within two years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final. Henceforth, it is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice for the failure to inform the defendant in accord with rule 3.172(c)(8). Whether the plea subjects the defendant to deportation is an existent fact on the date of the plea which is either known or ascertainable by the defendant.

The requirement that a defendant allege and prove that he or she would not have entered the plea if informed of this possibility remains in force. See Peart, 756 So.2d at 47; cf. Grosvenor, 874 So.2d at 1181. Further, the defendant must state in the rule 3.850 motion how he or she will prove that the immigration warning was not given. In the normal case, this will require the defendant to allege that a hearing transcript will demonstrate a violation of rule 3.172(c)(8). Absent conclusive evidence of a violation, the trial court has discretion to deny relief.

Further, when a motion alleging a rule 3.172(c)(8) violation is untimely, the defendant must satisfy the requirement in rule 3.850(b)(1) by alleging and proving that the fact that the plea subjected the defendant to deportation could not have been ascertained during the two-year period with the exercise of due diligence. It will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired. The requirement of due diligence compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status.

V. THIS CASE

Green’s motion was legally deficient under Peart. He failed to allege that he had been threatened with deportation because of his plea. The Fourth District’s reliance on Green’s reply to the State’s response to his motion was in error, because the reply was unsworn and was filed after the trial court denied his motion. A trial court is not required to consider facts raised in an unsworn supplemental pleading when ruling on a postconviction challenge to a plea. Melton v. State, 720 So.2d 577, 577 (Fla. 1st DCA 1998). Further, a trial court is obligated to consider an amended pleading only if it is filed before the court rules on the motion. See Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999) (holding that trial court erred in declining to consider amended motion filed before termination of two-year time limit for post-conviction motion and before trial court ruled), receded, from on other grounds by Nelson v. State, 875 So.2d 579, 583 (Fla.2004).

Accordingly, the trial court acted within its discretion in denying Green’s motion to set aside its order and consider Green’s reply. In taking into consideration Green’s reply as if it were timely and under oath, the Fourth District failed to give proper deference to the trial court’s authority to decline to consider the un-sworn, untimely pleading. Although we have dispensed with the requirement that a defendant show that he or she is threatened with deportation because of the plea, Green’s motion does not allege that he would not have entered the plea if advised that it could result in his deportation. This remains essential to a claim for relief from a rule 3.172(c)(8) violation.

Therefore, the denial of Green’s motion should be affirmed without prejudice to his filing a new motion within sixty days after jurisdiction returns to the trial court. If Green’s new motion sufficiently alleges that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation, the trial court may summarily deny the claim only if it attaches record portions conclusively refuting one or more of these elements. Otherwise, Green must receive an evidentiary hearing. See Fla. R.Crim. P. 3.850(d).

CONCLUSION

To reiterate our holding in this case, a defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final. The motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future. A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period.

Our holding in this case reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today. In cases now pending in the trial and appellate courts on this issue, courts should apply the criteria set out herein. If relief is denied in a case now pending because the defendant has not alleged or established that he or she is subject to or threatened with deportation, the defendant should be allowed to refile in compliance with the standards set out in this case within sixty days of affirmance, denial, or dismissal. All other defendants have two years from the date their cases become final in which to seek relief under our holding today.

We quash the Fourth District decision in this case and remand for proceedings consistent with this opinion. We disapprove Curiel, Saldana, and Kindelan to the extent they rely on the requirement in Peart, from which we recede herein, that the defendant establish a specific threat of deportation.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

      . Now, as at the time of Green’s plea, rule 3.172(c)(8) provides that the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

      (8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service.
      The Court adopted this requirement in 1988. See In re Amendments to Fla. Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988).

      . Rule 3.172(i) provides that failure to follow procedures in the rule, which governs acceptance of a guilty or no contest plea, "shall not render a plea void absent a showing of prejudice.”

      . We have stayed the proceedings in Gaston pending disposition of this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Donald Alan TOBKIN, Respondent.
    No. SC04-1493.
    Supreme Court of Florida.
    Oct. 26, 2006.

      John F. Harkness, Jr., Executive Director, Kenneth K, Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, Ian S. Seitel, Chair, and Mitchell J. Burnstein, Past Chair, Seventeenth Circuit Grievance Committee “H,” Lillian Archbold, Ronna Friedman Young, Bar Counsel, Fort Lauderdale, Florida, for Complainant.
    Donald Alan Tobkin, M.D., Pro se, Hollywood, Florida.
   PER CURIAM.

We review a referee’s report finding ethical breaches by Donald Alan Tobkin. We have jurisdiction. See art. Y, § 15, Fla. Const. We approve the referee’s findings of fact and recommendations as to guilt. However, we disapprove the recommended discipline of a ten-day suspension and instead impose a ninety-one-day suspension.

I. Factual and Procedural Background

The Florida Bar filed a four-count complaint alleging ethical misconduct by Tob-kin. The first three counts arose from Tobkin’s actions in connection with Rose v. Fiedler, a medical malpractice action in which he represented the plaintiff. The fourth count arose from Tobkin’s actions in connection with Bronfman v. LaPayowker, another medical malpractice action in which he represented the plaintiff.

Count 1 of the complaint alleged that Tobkin engaged in objectionable conduct during pretrial discovery in the Rose case, including conduct intended to thwart defense counsel’s efforts to take certain depositions, for which the trial judge sanctioned Tobkin to no avail. Count 1 further alleged that Tobkin’s misconduct continued during the trial, which ultimately resulted in the trial court striking the plaintiffs witnesses and granting a directed verdict for the defense.

Count 2 alleged that Tobkin referred to the “captain of the ship” doctrine in his opening statement, in violation of a court order directing the parties not to discuss any issue that was the subject of a pending motion. (The doctrine was the subject of a pending motion in limine filed by the defense.)

Count 3 alleged that, after the judge in Rose announced he was going to grant a directed verdict in favor of the defendants, Tobkin filed a second action in a different county on behalf of the same plaintiff against several of the same defendants. The second action was ultimately dismissed by the second trial court as a sham pleading.

Count 4 alleged that Tobkin created a disturbance at Aventura Comprehensive Cancer Center when he went to the center to meet with defense counsel concerning certain of his client’s x-rays. Specifically, count 4 alleged Tobkin grabbed records away from opposing counsel, approached the receptionist and demanded to know who had released the records, and screamed at the film librarian, which led the center’s personnel to summon security.

Among other things, the referee considered the Fourth District Court of Appeal’s opinion in Rose v. Fiedler, 855 So.2d 122 (Fla. 4th DCA 2003), quashed sub nom. Hussamy v. Rose, 916 So.2d 785 (Fla.2005). In that case, the district court found Tobkin’s actions before the trial court contumacious and willfully disobedient, and that they had caused prejudice to the defense. The opinion also noted that the trial court had imposed sanctions on Tobkin on several occasions for discovery abuses, for failing to follow the case management order, and for other misconduct. The Fourth District opinion further noted that Tobkin created a disturbance at a cancer center in May 2002 when he tried to prevent defense counsel from obtaining his client’s medical records pursuant to a subpoena. Defense counsel ultimately sought a restraining order. The Fourth District’s opinion further noted that the “vast majority of the motions for sanctions, motions to compel, and motions for protective orders ... were precipitated by [Tob-kin’s] failure to follow the rules of civil procedure and court orders” and that the “bulk of the defendants’ motions were granted.” Id. at 123. Finally, the opinion referred to Tobkin’s statements to the jury about the “captain of the ship” doctrine, which was subject to a pending motion in limine, about midway through his opening statements, despite the fact the trial judge had instructed the attorneys not to discuss “any matter that was the subject of a pending motion.” Id. at 124.

The referee found Tobkin guilty of violating Rules Regulating the Florida Bar 4-3.1 (asserting only meritorious claims and contentions), 4-3.4(a) (unlawfully obstructing another party’s access to evidence), 4-3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), 4-3.4(d) (making a frivolous discovery request or failing to comply with a legally proper discovery request), and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice). The referee found one mitigating factor — absence of a prior disciplinary record—and three aggravating factors: (1) a pattern of misconduct; (2) multiple offenses; and (3) substantial experience in the practice of law. The referee further recommended that Tobkin be suspended for ten days, ordered to attend The Florida Bar’s program on professionalism, and ordered to pay costs.

II. Legal Analysis

Tobkin petitions for review, claiming that (A) the referee erred in denying his motion to dismiss the charges against him for insufficiency; (B) the referee’s findings are not supported by competent, substantial evidence in the record; and (C) a ten-day suspension is not warranted. We address each of these in turn.

A. Sufficiency of the Charges

Tobkin argues that the Bar’s charges were legally insufficient because they failed to allege, and the Bar failed to prove by clear and convincing evidence, that unbiased and identifiable, qualified individuals comprised the grievance committee which found probable cause in his case. According to Tobkin, this was a mandatory condition precedent.

There is no support for this argument. Rule 3-7.6(h)(l)(B), which sets forth the requisite contents of a Bar complaint, provides: “The complaint shall set forth the particular act or acts of conduct for which the attorney is sought to be disciplined.” It does not mention a need to plead anything about the members of the grievance committee who found probable cause. If Tobkin believed one or more members of the grievance committee were biased, the burden was upon him to seek their recusal. In fact, he sought to have three members of the grievance committee in his case remove themselves from the case. One of the members did so. The other two did not. Tobkin does not raise any issue with regard to those two members.

Rule 3-3.4(c) of the Rules Regulating the Florida Bar provides:

No member of a grievance committee shall perform any grievance committee function when that member:
(1) is related by blood or marriage to the complainant or respondent;
(2) has a financial, business, property, or personal interest in the matter under consideration or with the complainant or respondent;
(3) has a personal interest that could be affected by the outcome of the proceedings or that could affect the outcome; or
(4) is prejudiced or biased toward either the complainant or the respondent.
Upon notice of the above prohibitions the affected members should recuse themselves from further proceedings. The grievance committee chair shall have the power to disqualify any member from any proceeding in which any of the above prohibitions exist and are stated of record or in writing in the file by the chair.

Tobkin does not identify which of the grievance committee members he believes should have been recused. Nor does he state any grounds for recusal. Thus, we find that Tobkin’s claims that the referee erred in denying his motion to dismiss the charges against him for insufficient evidence are without merit.

B. The Referee’s Findings

Tobkin next argues there was insufficient evidence to support the referee’s findings. He claims the findings concerning Counts 1 through 3 were based on hearsay language included in the “unauthenticated” opinion of the Fourth District in Rose v. Fiedler, 855 So.2d 122 (Fla. 4th DCA 2003). According to Tobkin, hearsay evidence should not and cannot be considered clear and convincing evidence. Tob-kin further argues that the Bar’s two live witnesses, who testified concerning the allegations in Count 4, were biased and gave false testimony and affidavits. He asserts that no live testimony supported the referee’s finding that he yanked x-rays away from defense counsel.

We disagree with Tobkin’s assessment of the sufficiency of the evidence. First, the referee properly relied upon facts included in the Fourth District’s opinion in Rose v. Fiedler. Because Bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by the technical rules of evidence. Consequently, a referee has wide latitude to admit or exclude evidence, see Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002); Fla. Bar v. Rendina, 583 So.2d 314, 315 (Fla.1991), and may consider any relevant evidence, including hearsay and the trial transcript or judgment in a civil proceeding. See Fla. Bar v. Vining, 707 So.2d 670, 673 (Fla.1998); Fla. Bar v. Vannier, 498 So.2d 896, 898 (Fla.1986). A referee’s decisions about the admissibility of evidence will not be disturbed absent an abuse of discretion. Rotstein, 835 So.2d at 244.

Even if the rules of evidence did apply strictly, the referee’s consideration of the Fourth District’s opinion nevertheless would have been proper. Section 90.201, Florida Statutes (2005), entitled “Matters which must be judicially noticed,” provides that a court shall take judicial notice of: “Decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and the Congress of the United States.” The opinion in Rose constitutes decisional law. Although the Fourth District initially reversed the trial court’s decision granting a directed verdict in favor of the defendants, it did so because there was no evidence that Tobkin’s client had knowledge of or involvement in Tob-kin’s misconduct.

In making his factual findings, the referee was also entitled to consider the affidavits and other documents introduced in evidence. See Fla. Bar v. Centurion, 801 So.2d 858 (Fla.2000) (holding that the referee could consider a client’s written complaint to the Bar and the testimony of another client’s sister concerning the client’s complaint, even though the clients were not present at the hearing, where the attorney did not subpoena the witnesses or demonstrate that he was prejudiced by not having the witnesses present at the hearing).

Tobkin’s argument that the witnesses who testified about the Bronfman case were unreliable is also without merit. “The referee is in a unique position to assess the credibility of witnesses, and his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect.” Fla. Bar v. Thomas, 582 So.2d 1177, 1178 (Fla.1991).

We find there is competent, substantial evidence in the record to support the referee’s findings.

C. The Recommended Sanction

The referee recommended a ten-day suspension. We disapprove that recommendation, finding there is no reasonable basis in case law or the Florida Standards for Imposing Lawyer Sanctions.

We recognize that Tobkin argues that a ten-day suspension was too harsh, and that the Bar conversely argues that such a suspension is appropriate. We nevertheless conclude that Tobkin’s misconduct, especially in light of his unwillingness to comprehend that his conduct was inappropriate, warrants a suspension of ninety-one days.

Standards 6.12, 6.22, and 7.2 support the imposition of a suspension for each of Tobkin’s several acts of misconduct, and case law demonstrates that a significantly longer suspension than ten days is warranted for misconduct as egregious as Tobkin’s. The case of Florida Bar v. Committe, 916 So.2d 741 (Fla.2005), cert. denied, — U.S.-, 126 S.Ct. 1890, 164 L.Ed.2d 569 (2006), is instructive. In that case, the attorney was found guilty of knowingly failing to comply with legally proper discovery requests, filing two frivolous federal lawsuits, and abusing the legal process, all in connection with a proceeding to collect on a judgment against him. The attorney’s misconduct occurred in a debt collection case in which he was the defendant. This Court rejected the referee’s recommendation that he be privately reprimanded and instead imposed a ninety-day suspension and one year’s probation, and ordered him to obtain additional training.

In Committe, we cited to Florida Bar v. Richardson, 591 So.2d 908 (Fla.1991). There, an attorney was suspended for sixty days for filing a frivolous federal lawsuit in violation of rule 4-3.1. See also Fla. Bar v. Kelly, 813 So.2d 85 (Fla.2002) (disapproving a referee’s recommended discipline of a sixty-day suspension and imposing a ninety-one-day rehabilitative suspension for filing a frivolous lawsuit and other misconduct).

Here, Tobkin has done much more than file a frivolous lawsuit, warranting a proportionately greater sanction. Tobkin’s misconduct occurred in connection with two cases in which he represented clients. His misconduct resulted in a directed verdict against his client.

A review of Bar discipline cases in which ten-day suspensions were imposed shows the insufficiency of that sanction for the misconduct involved here. The conduct in those cases was significantly less egregious. See Fla. Bar v. Glick, 693 So.2d 550, 551 (Fla.1997) (failing to pursue the claim of a client, failing to convey a settlement offer, failing to inform clients the claim had been dismissed, failing to respond to requests for status updates, and misrepresenting clients’ concern for maintaining the confidentiality of a settlement agreement); Fla. Bar v. Nunes, 661 So.2d 1202 (Fla.1995) (sending a letter critical of opposing counsel’s handling of the case to opposing counsel’s client); Fla. Bar v. Grosso, 647 So.2d 840, 841 (Fla.1994) (failing to respond to the Bar’s letter of inquiry); Fla. Bar v. Herzog, 521 So.2d 1118 (Fla.1988) (engaging in deceptive billing practices); Fla. Bar v. Golden, 502 So.2d 891, 892 (Fla.1987) (failing to file a probate action, failing to communicate with a client, and misrepresenting the status of the case to a client); Fla. Bar v. Stein, 471 So.2d 36, 37 (Fla.1985) (neglecting legal matters); Fla. Bar v. Lund, 410 So.2d 922, 923 (Fla.1982) (admitting a small portion of respondent’s testimony before the griev-anee committee was untrue, although he claimed it was unintentional).

Tobkin, on the other hand, engaged in many acts of misconduct, intentionally violated court orders, filed a sham pleading, and even acted in such an unprofessional manner that hospital security was called to deal with him. His misconduct at the cancer center, grabbing records from people and screaming at the librarian, bordered on violent. Further, Tobkin continues to believe his conduct was nothing more than zealous advocacy. He blames his problems on the trial court, defense counsel, The Florida Bar, and the grievance committee. Based on these facts and the cases cited above, we disapprove the referee’s recommendation of a ten-day suspension and hold that a ninety-one-day suspension is required.

Tobkin’s due process rights are not implicated by our decision to impose a stiffer sanction than the referee recommended and the Bar has sought. The charges themselves placed Tobkin on notice of the possible sanctions. See Fla. Bar v. Baker, 810 So.2d 876, 879-80 (Fla.2002) (holding that the attorney had notice that disbarment was a possible sanction as a result of the charges and the Florida Standards for Imposing Lawyer Sanctions). Tobkin was also given adequate opportunity to explain the circumstances of the alleged offenses and to offer testimony in mitigation of any penalty to be imposed. See Fla. Bar v. Carricarte, 733 So.2d 975, 978-79 (Fla.1999) (holding that due process was satisfied as long as the attorney was given an adequate opportunity to explain the circumstances of the alleged offense and to offer testimony in mitigation).

III. Conclusion

Based on the foregoing, we approve the referee’s factual findings and recommendation that Donald Alan Tobkin be found guilty of violating rules 4-3.1 (asserting only meritorious claims and contentions), 4-3.4(a) (unlawfully obstructing another party’s access to evidence), 4-3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), 4-3.4(d) (making a frivolous discovery request or failing to comply with a legally proper discovery request), and 4-8.4(d) (engaging in conduct prejudicial to the administration of justice). We disapprove the referee’s recommended sanction of a ten-day suspension.

Donald Alan Tobkin is hereby suspended from the practice of law for ninety-one days and until he is reinstated following a hearing in which he proves his rehabilitation by clear and convincing evidence. The suspension will be effective thirty days from the filing of this opinion so that Tobkin can close out his practice and protect the interests of existing clients. If Tobkin notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Tobkin shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Donald Alan Tobkin in the amount of $2,914.78, for which sum let execution issue.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The Fourth District nevertheless reversed the directed verdict in favor of the defendants because there was no evidence that Tobkin’s client had knowledge of or involvement in Tobkin's misconduct. In Hussamy v. Rose, 916 So.2d 785 (Fla.2005), this Court quashed the Fourth District's decision and remanded the case for reconsideration in light of Ham v. Dunmire, 891 So.2d 492 (Fla.2004) (holding that dismissal may be proper even if there is no evidence that the client was personally involved in the attorney's act of disobedience). On reconsideration, the Fourth District affirmed the trial court’s directed verdict. Rose v. Fiedler, 921 So.2d 720 (Fla. 4th DCA 2006).

      . Standard 6.12 provides:
      Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.

      . Standard 6.22 provides:
      Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.

      .Standard 7.2 provides:
      Suspension is appropriate when a lawyer knowingly engages in conduct that is a violation of duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.


author: BELL, J. CANTERO, J.,

text:
    STATE of Florida, Petitioner, v. Steven Eugene ISELEY, Respondent.
    No. SC04-485.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Timothy D. Wilson and Kellie A. Nielan, Assistant Attorney Generals, Daytona Beach, FL, for Petitioner.

      Nathan G. Dinitz, Daytona Beach, FL, for Respondent.
   BELL, J.

We have for review Iseley v. State, 865 So.2d 580 (Fla. 5th DCA 2004), which expressly and directly conflicts with Tucker v. State, 726 So.2d 768 (Fla.1999), and State v. Overfelt, 457 So.2d 1385 (Fla.1984). The conflict concerns the jury findings necessary to authorize the mandatory minimum punishments authorized for using firearms to commit specified crimes. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We hold that when a charging document alleges that the defendant used a firearm in committing an offense enumerated in section 775.087(2)(a), Florida Statutes (2002), and the jury specifically finds the defendant guilty of the offense “with a firearm” as charged in the information, the three-year mandatory minimum term authorized by that provision may be imposed.

FACTS AND PROCEDURAL HISTORY

Steven Eugene Iseley was charged by information with one count of aggravated assault with a deadly weapon. This information alleged that, in committing the assault, Iseley “did exhibit a firearm, ready it for firing by charging it (placing a round in the chamber) ... and further did commit the assault with semi-automatic handgun or pistol, a deadly weapon.” At trial, the jury was given the standard jury instruction for aggravated assault; however, the trial court referred to the crime of aggravated assault with a firearm. Specifically, the jury was instructed:

Before you can find the defendant guilty of aggravated assault with a firearm, the state must prove the following four elements beyond a reasonable doubt, the first three elements defined in assault: One: Steven Eugene Iseley intentionally and unlawfully threatened, either by word or act, to do violence to Kevin Squire.
Two: At the time, Steven Eugene Iseley appeared to have the ability to carry out the threat.
Three: The act of Steven Eugene Iseley created in the mind of Kevin Squire a well-founded fear that the violence was about to take place.
Four: The assault was made with a deadly weapon; to wit, a firearm.
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm. A firearm means any weapon, including a starter gun, which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive, the frame or receiver of any such weapon. It is not necessary for the state to prove the defendant had an intent to kill.

This instruction was followed by the standard instruction on the lesser included offense of assault.

Iseley objected to the instruction on aggravated assault with a firearm. He argued that aggravated assault with a firearm was not the crime charged in the information and that the instruction approved by the trial court was for a crime that exceeded the crime for which he was charged. The trial judge acknowledged that the correct nomenclature for the crime charged was aggravated assault with a deadly weapon, but reasoned that under Florida case law, a verdict choice of aggravated assault with a firearm was the only device by which the allegations in the information could be presented to the jury without using an interrogatory verdict. Significantly, Iseley never requested an interrogatory verdict form separating the determination whether he possessed a firearm from the finding of guilt on the substantive offense. Iseley also did not respond to the trial court’s request for proposed instructions calling for the jury to determine whether the deadly weapon used was a firearm. He argued that the information did not charge aggravated assault with a firearm, and therefore the word “firearm” should not be used in the verdict form. In the alternative, Iseley requested instructions and verdict choices on aggravated assault with a firearm as a greater offense and aggravated assault with a deadly weapon as a lesser included offense. The trial court overruled Iseley’s objection and denied his requested alternative instruction.

The verdict form gave the jury the choice of finding Iseley (1) guilty of aggravated assault with a firearm, as charged in the information; (2) guilty of the lesser included offense of assault; or (3) not guilty. The jury returned a verdict of “Guilty of the offense of AGGRAVATED ASSAULT WITH A FIREARM, as charged in the Information.” Iseley filed a motion for arrest of judgment, again arguing that the trial court erred in giving instructions and a verdict that referred to the crime as aggravated assault with a firearm instead of assault with a deadly weapon. The trial court denied the motion. The court adjudicated Iseley guilty and, as required by section 775.087(2)(a)(l), sentenced him to the mandatory minimum sentence of three years’ imprisonment because Iseley possessed a firearm during the commission of the aggravated assault.

On appeal, the Fifth District Court of Appeal reversed Iseley’s conviction and remanded for a new trial. Iseley, 865 So.2d at 583. The district court held that “[t]he jury ... should have been instructed on aggravated assault with a deadly weapon and then been asked to make a special finding ... as to whether that weapon was a firearm.” Id. at 582. The district court’s rationale was two-fold. First, the court observed that “[t]he effect of the instructions given and the verdict form was to bypass the ‘deadly weapon’ aspect and go directly to the firearm aspect.” Id. at 582. Relying on dicta in Fernandez v. State, 570 So.2d 1008, 1010 (Fla. 2nd DCA 1990), the Fifth District noted that “the offenses here, while both third degree felonies, do not carry the ‘same penalty’ because aggravated assault with a firearm, unlike with a deadly weapon, carries an enhanced sanction.” 865 So.2d at 582. Second, the district court stated that failing to require a separate finding that the offense was committed with a firearm “deprived the jury of a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilt as to the offense of aggravated assault with a deadly weapon.” Id. at 582-83.

ANALYSIS

We must decide whether the jury instructions and verdict form meet the requirements of Tucker and Overfelt for application of section 775.087. Our review of the proceedings below, as governed by the applicable law, demonstrate that the requirements of Tucker and Overfelt were met. Thus, the trial court properly imposed the three-year mandatory minimum sentence authorized by section 775.087(2)(a)(l). In reaching this conclusion, we hold that where there is undisputed evidence that the deadly weapon used by the defendant was a firearm, an instruction on aggravated assault with a deadly weapon as a lesser included offense of aggravated assault with a firearm is not required in order to enable the jury to exercise its pardon power. Therefore, we reject the Fifth District’s ruling that the verdict form in this case denied Iseley an opportunity for a jury pardon.

Because the conflict issue involves the interpretation of a statute, section 775.087(2)(a)(l), the standard of review is de novo. See B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255 (Fla.2004).

Absence of Firearm Interrogatory

Chapter 784, Florida Statutes (2002), defines the crimes of assault and aggravated assault. Section 784.021(1) defines aggravated assault as an assault with (a) a deadly weapon without intent to kill; or (b) an intent to commit a felony. Section 784.021(2) provides that an aggravated assault is a third-degree felony punishable as provided in chapter 775. Chapter 775 prescribes the penalties for substantive crimes. Section 775.082(3)(d), Florida Statutes (2002), provides that a person convicted of a third-degree felony may be punished by a term of imprisonment not exceeding five years. Additionally, section 775.087 requires enhanced penalties when a firearm is used in the commission of certain felony crimes. Section 775.087(2)(a)(l) mandates a minimum three-year sentence of imprisonment if a person possesses a firearm during the commission of an aggravated assault. Specifically, section 775.087(2)(a)(l) states:

[A] person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense.

In four cases over a fifteen-year period, beginning with Overfelt and concluding with Tucker, this Court has considered the sufficiency of a jury verdict to support application of the penalty enhancement mandated by section 775.087(2)(a)(l). See also State v. Hargrove, 694 So.2d 729 (Fla. 1997); State v. Tripp, 642 So.2d 728 (Fla.1994). In Tucker, the Court acknowledged that the discussion of the issue in earlier cases was somewhat confusing. However, the Court concluded that in each of these decisions, “the essential holding is the same: that the verdict form itself contain an express reference to the use of a firearm.” Tucker, 726 So.2d at 772. Though we stated that the better practice is to include a specific question or special verdict addressed to the firearm issue, we reiterated our prior holdings in Hargrove and Overfelt that “an enhanced sentence should be upheld if based on a jury verdict which specifically refers to the use of a firearm, either as a separate finding or by the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty.” Id. at 772.

In each of the cases, we required that the application of the mandatory minimum sentence penalty in section 775.087(2)(a)(l) be predicated upon what was termed in Hargrove a “clear jury finding” that the defendant possessed a firearm during the commission of the felony. Id., (quoting Hargrove, 694 So.2d at 731); see also Tripp, 642 So.2d at 728; Overfelt, 457 So.2d at 1387. This requisite “clear jury finding” can be demonstrated either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty. See Tucker, 726 So.2d at 771-72; Overfelt, 457 So.2d at 1387.

The requisite “clear jury finding” was made in this case. This jury’s finding that Iseley was guilty of aggravated assault with a firearm as charged in the information is consistent with both the language of the information and the evidence adduced at trial. The information expressly charged that a firearm was used during the commission of the aggravated assault. Our review of the record establishes that the only deadly weapon involved in this case was the firearm referenced in the information and that there was no dispute that the weapon met the definition of a firearm. Consequently, we conclude that because the verdict form contained an express reference to the use of a firearm in the commission of the crime, the evidence supports that finding required by section 775.087, and the verdict of guilt of aggravated assault with a firearm constituted the clear jury finding necessary under our precedent.

Effect of Denial of Requested Instruct ion on Jury’s Pardon Power

In reaching the above conclusion, we have considered and rejected the Fifth District’s determination that the verdict form in this case denied Iseley an opportunity for a jury pardon. The Fifth District’s conclusion rests on its determination that aggravated assault with a deadly weapon is not a lesser included offense of aggravated assault with a firearm. Specifically, the Fifth District relied on dicta in Fernandez v. State, 570 So.2d 1008, 1010 (Fla. 2d DCA 1990), stating that “[t]he jury instructions and the verdict form logically treated aggravated assault with a deadly weapon as the next lesser-included offense of aggravated assault with a firearm.” Iseley, 865 So.2d at 581. We disagree.

In Fernandez, the issue was whether an instruction on discharge of a firearm in public should have been given as a lesser included offense of aggravated assault with a firearm. The Second District held that the instruction was necessary to allow the jury to exercise its pardon power because the instruction on aggravated assault with a deadly weapon as a lesser included offense did not provide such an opportunity:

Under the evidence in this case, the jury could only conclude that the deadly weapon was a firearm. No reasonable jury could have found that the defendant used a weapon other than a firearm. Thus, the lesser-included offense of aggravated assault with a deadly weapon other than a firearm did not give the jury an honest option to “pardon” the defendant.

570 So.2d at 1011. Thus, Fernandez supports the view that where the only “deadly weapon” involved in the offense is a firearm, a choice between finding that the crime was committed with a firearm and finding that it was committed with a deadly weapon is really no choice at all.

In this case, the jury was instructed on assault, the next immediate lesser included offense to aggravated assault with a deadly weapon. This lesser included offense subtracted the element of the deadly weapon or firearm. Thus, the jury was not deprived of an opportunity to use its inherent pardon power. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978) (stating that the jury has an opportunity to exercise its inherent pardon power if it is instructed on the next immediate lesser included offense).

CONCLUSION

Accordingly, we reaffirm and adhere to our decisions in Tucker and Overfelt. We quash the decision of the Fifth District Court of Appeal below and remand with directions to reinstate Iseley’s conviction and sentence for aggravated assault with a firearm, including the three-year mandatory minimum term under section 775.087(2)(a).

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, and QUINCE, JJ„ concur.

CANTERO, J., dissents with an opinion, in which ANSTEAD, J., concurs.

CANTERO, J.,

dissenting.

I would dismiss review because I conclude we do not have jurisdiction. The State sought review based on article V, section 3(b) of the Florida Constitution, under which we “may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law.” Jenkins v. State, 385 So.2d 1356, 1359 (Fla.1980). The majority finds conflict between the district court’s decision in this case, Iseley v. State, 865 So.2d 580 (Fla. 5th DCA 2004), and our decisions in Tucker v. State, 726 So.2d 768 (Fla.1999), and State v. Overfelt, 457 So.2d 1385 (Fla.1984). No such conflict exists.

To demonstrate the lack of conflict, I will first discuss our decisions in Overfelt and Tucker, and then compare their holdings with the district court’s decision in this case.

In Overfelt, the question was whether, after conviction of a felony, the trial court could enhance a defendant’s sentence, or apply a mandatory minimum under the relevant statute, when the jury did not specifically find that the defendant used a firearm. 457 So.2d at 1386. We held that a jury, not a judge, must decide whether an accused possessed a firearm. We concluded that allowing a judge to make that finding “would be an invasion of the jury’s historical function and could lead to a miscarriage of justice.” Id. at 1387.

Fifteen years later, we decided Tucker. In that case, the defendant was convicted of “attempted first degree murder with a firearm,” one of the choices on the verdict form. 726 So.2d at 772. We held that, although no special verdict form was used, an enhanced sentence could be imposed because the verdict itself referred to the use of a firearm. Id. The jury thus made the finding we required in Overfelt.

This case presents a different issue. The information charged the defendant with aggravated assault with a deadly weapon. 865 So.2d at 580. The trial court gave the jury the standard instruction on aggravated assault, but referred to the crime of aggravated assault with a firearm. The jury convicted the defendant of “aggravated assault with a firearm.” The defendant did not contend that the jury failed to find that he used a firearm. Nor did the defendant argue that the enhanced sentence could not be imposed without a special verdict form. Rather, the defendant raised a different issue: the jury’s power to pardon. He contended that the enhanced sentence resulting from the jury’s finding that he used a firearm made the offense of aggravated assault with a deadly weapon a lesser-included offense of aggravated assault with a firearm. Thus, he argued, the trial court should have instructed the jury on aggravated assault with a deadly weapon as a lesser-included offense and should have allowed the jury to exercise its pardon power by not finding use of a firearm.

The district court agreed that, although aggravated assault with a deadly weapon and aggravated assault with a firearm are both third-degree felonies, the enhanced sentence for use of a firearm meant the offenses did not carry the same penalty. The court reversed the conviction, stating that the jury “should have been instructed on aggravated assault with a deadly weapon and then been asked to make a special finding as per the charging document and evidence adduced at trial as to whether that weapon was a firearm.” Id. at 582. The court concluded that “[t]he effect of the instructions given and the verdict form was to bypass the ‘deadly weapon’ aspect and go directly to the firearm aspect.” Id. This “streamlining” of the jury’s analysis “deprived the jury of a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilt as to the less onerous offense of aggravated assault with a deadly weapon.” Id. at 582-88.

This is clearly not the same issue we decided in either Overfelt or Tucker. Nor does the Court’s holding today, quashing the district court’s decision, implicate the issues decided in those eases. The majority holds “that where there is undisputed evidence that the deadly weapon used by the defendant was a firearm, an instruction on aggravated assault with a deadly weapon as a lesser included offense of aggravated assault with a firearm is not required in order to enable the jury to exercise its pardon power.” Majority op. at 229-30.

Our opinions in Overfelt and Tucker addressed whether the jury made the requisite finding for imposing an enhanced sentence for use of a firearm. Iseley accepted that a jury finding of firearm possession allows an enhanced sentence, but addressed a separate issue concerning the jury’s pardon power through findings on lesser-included offenses. That issue was not addressed in either Overfelt or Tucker. Therefore, no conflict exists. I would dismiss the case because jurisdiction was improvidently granted.

ANSTEAD, J., concurs.

      . Aggravated assault is defined in section 784.021 as follows:
      (1) An "aggravated assault” is an assault:
      (a) With a deadly weapon without intent to kill; or
      (b) With an intent to commit a felony. § 784.021, Fla. Stat. (2002).

      . As the Fourth District has recently explained in describing the jury's inherent pardon power, "Florida law permits a jury to be lenient and pardon a defendant either by finding him not guilty or by convicting a defendant of a lesser included offense." State v. Carswell, 914 So.2d 9, 11 (Fla. 4th DCA 2005), review dismissed, 923 So.2d 1161 (Fla.2006).


text:
    The WICCAN RELIGIOUS COOPERATIVE OF FLORIDA, INC., Petitioner, v. Jim ZINGALE, et al., Respondents.
    No. SC05-873.
    Supreme Court of Florida.
    Oct. 26, 2006.
    Heather Morcroft, Orlando, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General, and James A. McKee, Deputy Solicitor General, Tallahassee, FL, for Appellee.
    Kevin W. Shaughnessy and Caroline M. Landt of Baker and Hostetler, LLP, Orlando, Florida, on behalf of the Florida Catholic, Inc., and Florida Baptist Witness, Inc.; and Mathew D. Staver, Mait-land, Florida and Erik W. Stanley, Lynchberg, Virginia, on behalf of Liberty Counsel, as Amici Curiae.
   PER CURIAM.

We originally accepted jurisdiction to review the First District Court of Appeal’s decision in Wiccan Religious Cooperative of Fla., Inc. v. Zing ale, 898 So.2d 134, 135 (Fla. 1st DCA 2005), based on express and direct conflict with Department of Education v. Lewis, 416 So.2d 455 (Fla.1982), Department of Administration v. Horne, 269 So.2d 659 (Fla.1972), and Paul v. Blake, 376 So.2d 256 (Fla. 3d DCA 1979), on the issue of taxpayer standing. See art. V, § 3(b)(3), Fla. Const. After further consideration, we have determined that the First District did not address the issue of taxpayer standing and that there is no other basis for the Court to exercise its jurisdiction. Accordingly, we conclude that jurisdiction was improvidently granted and hereby dismiss this case.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ„ concur.

LEWIS, C.J., dissents.