§802E-3 Failure to advise; vacation of judgment. If the court fails to advise the defendant as required by sections 802E-2 and 802E-4 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; am L 2013, c 279, §3]
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 (2005).