FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-3517 _____________________________ MOHAMMED ALSUBAIE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. April 29, 2019 B.L. THOMAS, C.J. Appellant challenges the lower court’s denial of his motion for postconviction relief, arguing that his counsel was ineffective in failing to advise him of the deportation consequences of his no contest plea. Because Appellant has shown a reasonable probability that he would have rejected the plea and proceeded to trial had he been adequately informed of the plea’s deportation consequences, we reverse. Facts In February 2014, Appellant was charged by information with possession of a controlled substance (cocaine), possession of a controlled substance (less than 20 grams of cannabis), and driving without a valid driver’s license. The charges stemmed from Appellant’s arrest after an Escambia County sheriff’s deputy stopped Appellant for running a red light. During the traffic stop, Appellant told the officer he did not have a valid driver’s license and that there was marijuana under the driver’s seat. The officer searched Appellant’s person incident to the arrest and found a “small white rock” in Appellant’s front left pocket; the rock field-tested positive as a cocaine-based substance. Appellant filed a motion to suppress the evidence seized during the traffic stop, arguing that the traffic stop was unlawful. The trial court denied Appellant’s motion. Appellant entered a plea of no contest and reserved the right to appeal the trial court’s ruling on his motion to suppress. We affirmed per curiam. Alsubaie v. State, 151 So. 3d 1231 (Fla. 1st DCA 2014) (Table). Appellant’s plea agreement stated that he understood that if he was not a citizen of the United States, his plea to the charges may result in his deportation or expulsion from the United States. During the plea colloquy, Appellant stated he had read, understood, agreed with, and signed the plea agreement: THE COURT: And you understand about being a U.S. citizen? [APPELLANT]: Yes, sir. THE COURT: It’s possible that this could -- you could be deported. Well, he’s not adjudicated, but it’s possible you could be deported; do you understand that? [APPELLANT]: Yes, sir. (Emphasis added.) The trial court found that Appellant freely and voluntarily entered the plea, and the court accepted the plea. The court withheld adjudication on the felony cocaine possession count, and sentenced Appellant to 36 months’ probation. The court adjudicated Appellant guilty on the two misdemeanor counts, and sentenced Appellant to concurrent six-month terms of probation for each count. In 2016, Appellant received a Notice to Appear from the U.S. Department of Homeland Security (“DHS”), stating that he was removable from the United States due to his convictions for 2 possession of cocaine and possession of marijuana. Appellant subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing that counsel was ineffective for failing to advise Appellant of the immigration consequences of his plea. Appellant attached an affidavit ...
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