Florida Supreme Court Rules Plea Language Does Not Foreclose Ineffective Attorney Appeal – Hernandez v. State

November 28, 2012 by David S. Seltzer

As a criminal defense attorney who also handles immigration law, I am extra careful whenever I handle criminal cases involving someone who is not a U.S. citizen. Even if you have a green card (lawful permanent residency), some criminal convictions can still qualify you for removal from the United States. This is a serious concern for people who have built families, careers and lives in this country, because one mistake can take it all away. That’s why I was very interested to see the Florida Supreme Court’s decision in Hernandez v. State, a case asking whether a warning required by Florida law is enough to put defendants on notice of the immigration consequences of a conviction. Defendant Gabriel Hernandez made a postconviction motion alleging ineffective assistance of counsel, because he didn’t realize his guilty plea carried a risk of deportation.

Hernandez came to the United States from Nicaragua as a two-year-old and became a green card holder. In 2001, at the age of 19, he was arrested for selling LSD to a police informant, and eventually charged with a Florida state felony. Ten minutes after a public defender was appointed for him, he entered a guilty plea and was sentenced to probation, court costs and substance abuse assessment and treatment. The trial court at the time asked Hernandez if he understood the charges could be used against him in deportation proceedings. However, unbeknownst to both Hernandez and the public defender, the drug crime to which he pleaded is classified as an aggravated felony requiring mandatory deportation, with no eligibility for discretionary relief. Despite Hernandez’s achievements since then—a degree and a career—he was deportable.

In 2010, the U.S. Supreme Court decided in Padilla v. Kentucky that a defendant may file a postconviction motion arguing ineffective assistance of counsel in a very similar situation. Following that motion, Hernandez filed a postconviction motion alleging ineffective assistance of counsel, saying he would not have pleaded guilty if he had been advised that it would mean mandatory deportation. The Miami circuit court denied his motion, saying he had gotten warning from the court in his plea colloquy. The Third District Court of Appeal upheld the decision for a different reason, saying Padilla could not be applied retroactively. This created a split between the Third and Fourth Districts.

The Florida Supreme Court considered both questions: whether Padilla may be applied retroactively and whether the language of the plea colloquy was enough warning to stop a finding of ineffective advice of counsel. In the end, it said no to both—ending Hernandez’s hopes of stopping his deportation, but permitting post-Padilla defendants to try. Under Padilla, the high court said, more warning than the equivocal plea colloquy was required. The colloquy was not meaningless, but a warning that the plea “may be used against [him] in deportation” was insufficient. However, the court found that the rule created by Padilla could not apply retroactively because it was not “a development of fundamental significance.”

I suspect that Hernandez and others facing immigration consequences of a criminal conviction might disagree that Padilla was not a development of fundamental significance. While applying it retroactively would certainly create a lot of new cases, that doesn’t itself make it a bad idea—sometimes, doing the right thing makes a lot of waves. Hernandez, who grew up in the United States and has a career and family members here, faces permanent removal from the United States over what appears to be a youthful mistake. It’s significant that his offense was a drug sales charge, because his crime may have been classified as an “aggravated felony” because of the “war on drugs,” which has inflated the penalties for many nonviolent drug crimes. This is why it’s absolutely vital for defendants facing drug charges, with or without an immigration status problem, to get help from an experienced lawyer.

If you’re charged with a crime in South Florida and you need experienced legal advice fast, call Seltzer Law, P.A. You can reach us for a free consultation at 1-888-843-3333 or send us a message online.

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