[§802E-3]  Failure to advise; vacation of
judgment.  If the court fails to advise the defendant as required by
section 802E-2 and the defendant shows that conviction of the offense to which
the defendant pleaded guilty or nolo contendere may have the consequences for
the defendant of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States, on
defendant's motion, the court shall vacate the judgment and permit the
defendant to withdraw the plea of guilty or nolo contendere, and enter a plea
of not guilty.  Absent a record that the court provided the advisement required
by this section, the defendant shall be presumed not to have received the
required advisement. [L 1988, c 382, pt of §1]



 



Case Notes



 



  Where trial court failed to recite on the record the
advisement concerning alien status to defendant as required by the plain
language of §802E-2, and the standard set forth in this section mandates that
the trial court either advise the defendant as required by §802E-2 or
"vacate the judgment and permit the defendant to withdraw the plea of nolo
contendere and enter a plea of not guilty", judgment vacated and defendant
permitted to withdraw nolo contendere plea and enter a plea of not guilty.  108
H. 162, 118 P.3d 645.