STATE OF FLORIDA, PETITIONER,
v.
HECTOR SALLATO, RESPONDENT
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Florida Supreme Court quashed the Third District Court of Appeal's affirmance of a guilty plea vacation, holding that while failure to advise of deportation consequences is not ineffective assistance, positive misadvice about citizenship consequences requires remand for factual determination.
Defense counsel's failure to advise of deportation as a collateral consequence of a guilty plea does not constitute ineffective assistance, but positive misadvice regarding citizenship consequences requires remand for determination of its legal effect.
[1] Positive misadvice by defense counsel regarding collateral consequences of a guilty plea, as distinguished from mere failure to advise, requires remand for determination…
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Join FLexlaw to unlock all legal intelligence“there was nothing to worry about, he would not have a conviction”
Sallato's allegation of what counsel told him regarding the effect of his guilty plea on his citizenship status
Sallato pleaded guilty and moved to vacate his plea, alleging he asked counsel whether the plea would jeopardize his chances of becoming a permanent U…
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PER CURIAM.
We have for review State v. Sallato, 508 So. 2d 1256 (Fla.3d DCA 1987), in which the district court affirmed a trial court’s order granting a motion to vacate Sallato’s guilty plea, relying, inter alia, on its decisions in Ginebra v. State, 498 So. 2d 467 (Fla.3d DCA 1986), and Edwards v. State, 393 So. 2d 597 (Fla.3d DCA 1981), and acknowledging conflict in Hahn v. State, 421 So. 2d 710 (Fla. 1st DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We recently quashed Ginebra, and disapproved Edwards, in State v. Ginebra, 511 So. 2d 960 (Fla.1987), holding that defense counsel is not ineffective for failing to advise his client that a guilty plea could result in deportation, a collateral consequence of the plea. A review of the record, however, shows that the instant case involves more than a failure to advise. Salla-to alleged in his motion to vacate that he asked counsel whether his plea would jeopardize his chances of becoming a permanent United States citizen. Counsel allegedly replied that “there was nothing to worry about, he would not have a conviction.” We expressed no opinion in Ginebra concerning the legal effect of “positive mis-advice.” Id. at 962 n. 6.
Accordingly, we quash the district court’s decision in light of its reliance on decisions now disapproved and remand to the district court with instructions to remand to the trial court for a determination of whether the accused was given positive misadvice by trial counsel and the legal ramifications of such advice.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Roan Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998)…tion in a manner consistent with this opinion. Conflict certified; affirmed in part; reversed in part and remanded. . Ross’ plea predates the adoption of Florida Rule of Criminal Procedure 3.172(c)(8). Compare infra op. at - with State v. Sallato, 519 So. 2d 605 (Fla.1988)(affirmative misadvice about deportation consequences grounds- for Rule 3.850 postconviction relief). . As a general note, the problem facing these defendants stems from recent congressional immigration law amendments. This problem must b…
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…See, e.g., State v. Leroux, 689 So. 2d 235, 236 (Fla.1996) (reversing for evidentiary hearing on defendant’s allegation that counsel misinformed him about the amount of time that he would actually serve on his negotiated sentence); State v. Sallato, 519 So. 2d 605, 606 (Fla.1988) (where the defendant alleged that counsel incorrectly advised that a guilty plea and conviction could not jeopardize his application for U.S. citizenship, remanding for the trial court to determine “whether the accused was given posi…1 / 2
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EY v. State, 982 So. 2d 618 (Fla. 2008)…r another crime constitutes ineffective assistance of counsel when the defendant specifically tells counsel before the plea that he has committed another crime. B. Subsequent Sentence for a Prior Crime Relying on our decisions in State v. Sallato, 519 So. 2d 605, 606 (Fla.1988), and State v. Leroux, 689 So. 2d 235, 235 (Fla.1996), Petitioner argues that erroneous advice about the consequences of a plea on the sentence for another crime that already has been committed is no longer hypothetical and constitute…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ginebra, 511 So. 2d 960 (Fla. 1987)
- Clement Lemmon Edwards v. State, 393 So. 2d 597 (Fla. 3d DCA 1981)
- Ginebra v. State, 498 So. 2d 467 (Fla. 3d DCA 1986)
- Hahn v. State, 421 So. 2d 710 (Fla. 1st DCA 1982)
- Aquilina Lazo v. Baring Indus., Inc., 508 So. 2d 1256 (Fla. 3d DCA 1987)
- State v. Sallato, 508 So. 2d 1256 (Fla. 3d DCA 1987)