Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT LUCIA ALEXANDRA CASCO REYES, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D20-1169 [July 28, 2021] Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Charles A. Schwab, Judge; L.T. Case No. 562017CF001845A. Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Appellant challenges the denial of her motion for postconviction relief, alleging ineffective assistance of counsel. Although the trial court conducted an evidentiary hearing, it ultimately concluded that it lacked jurisdiction pursuant to Florida Rule of Criminal Procedure 3.850 to adjudicate the claim. We agree and affirm. Appellant, who was not a United States citizen, was charged with tampering with evidence (marijuana) and loitering and prowling. She pled no contest in exchange for a referral to “drug court” for disposition under section 948.08(6), Florida Statutes. After appellant completed the program successfully, the trial court entered an order dismissing the charges and vacating her plea. Eleven months later, appellant learned that despite the order of dismissal, the United Stated Department of Homeland Security rejected her request to renew her Temporary Protected Status. The rejection was based on the charges notwithstanding the dismissal. Appellant consulted an immigration attorney who confirmed that based on federal immigration law, her drug court program constituted a “conviction,” that she would be ineligible for resident status, and that she could be immediately and summarily removed. Appellant timely filed a rule 3.850 motion alleging that her trial counsel misadvised her that successful completion of a drug court program with dismissal of the charges would allow her to avoid adverse immigration consequences. The trial court conducted an evidentiary hearing before concluding that it lacked jurisdiction under rule 3.850 because no judgment was ever entered. Instead, the charges were dismissed, and the plea was vacated. The trial court correctly ruled that it lacked jurisdiction to grant the relief requested. Florida Rule of Criminal Procedure 3.850(a) provides grounds “for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida[.]” (emphasis supplied). Florida Rule of Criminal Procedure 3.650 defines “judgment” as “the adjudication by the court that the defendant is guilty or not guilty.” Therefore, since rule 3.850 provides for relief from a judgment which requires an adjudication by the court, the dismissal of charges and vacation of a plea cannot meet the definition of a judgment for purposes of relief pursuant to the rule. Appellant argues that if she is not entitled to relief pursuant to rule 3.850, she should be entitled to habeas corpus relief. But “[h]abeas corpus proceedings are intended to test the legality of the petitioner’s detention and to secure his or her release if it is determined that the detention is illegal.” Collins v. State, 859 So. 2d 1244, 1245 (Fla. 5th DCA 2003) (citations omitted). Appellant has not alleged that she is being detained and thus the writ would not apply. See also § 79.01, Fla. Stat. (2021). For these reasons, the trial court correctly determined that it lacked jurisdiction. Affirmed. WARNER, DAMOORGIAN and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2