ORELLANA v. STATE (2009)

District Court of Appeal of Florida,First District.

Felix Antonio ORELLANA, Appellant, v. STATE of Florida, Appellee.

No. 1D08-3292.

Decided: May 04, 2009

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

The appellant appeals an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. The appellant's motion, timely filed pursuant to State v. Green, 944 So.2d 208, (Fla.2006), alleges that the trial court did not inform the appellant of the possibility of deportation. Because the trial transcripts are no longer available, the lower court relied on a written plea agreement in summarily denying the appellant's claim. Where an appellant alleges that the trial court did not inform the appellant of the possible deportation consequences of a plea, a written plea agreement is no substitute for a plea colloquy. See Perriello v. State, 684 So.2d 258, 259-60 (Fla. 4th DCA 1996).

Because the record now before us fails to conclusively refute the appellant's claim, we reverse the order and remand for further proceedings.

REVERSED AND REMANDED for further proceedings.

PER CURIAM.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.

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