CLAUDIA VERGARA CASTANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Claudia Vergara Castaño appeals the denial of her ineffective assistance of counsel claim, arguing her attorney failed to adequately advise her of mandatory deportation consequences before she pleaded guilty to child neglect. The Fifth District affirmed the denial, holding that the trial court's statutory deportation warning cured any deficiency in counsel's advice, while certifying questions about Padilla v. Kentucky's retroactive application to the Florida Supreme Court.
The court held that any prejudice from counsel's inadequate advice regarding immigration consequences was cured by the trial court's statutory deportation warning under Florida Rule of Criminal Procedure 3.172(c)(8). The court also held that Padilla should not be applied retroactively and certified that question of great public importance to the Florida Supreme Court.
[1] A trial court's warning to a defendant regarding potential deportation during a plea colloquy cures any prejudice arising from counsel's inadequate advice concerning immi…
[2] The rule established in Padilla v. …
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Join FLexlaw to unlock all legal intelligence“any prejudice arising from counsel's misadvice regarding the immigration consequences of a plea is cured when the trial court gives the deportation warning in Florida Rule of Criminal Procedure 3.172(c)(8) during the plea colloquy”
Establishes the court's holding that statutory warnings cure inadequate counsel advice on deportation
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Join FLexlaw to unlock all legal intelligenceCastaño, who operated a home day care center, was charged with third-degree child neglect after a child in her care was found wandering in her neighbo…
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The appellant, Claudia Vergara Castaño, timely appeals the denial of her rule 3.850 motion1 alleging ineffective assistance of counsel. Although she raises several points on appeal, only one merits discussion. That is, Castaño contends her lawyer was ineffective for failing to apprise her of the immigration consequences of her plea.
Castaño, who owned and operated a day care center out of her home, was charged with child neglect, a third-degree felony, when 'a child under her care was found wandering in her neighborhood. Castaño was represented by counsel and ultimately entered a plea to the charge of child neglect. According to her attorney, her main concern was avoiding a jail sentence. Her attorney also stated that he and Castaño discussed the immigration consequences of her plea. Because her attorney was unsure whether she could be deported as a result of pleading to the charge, he suggested Castaño consult with an immigration attorney. At the time of her plea, the trial judge informed Castaño that “if you’re not a U.S. citizen you can be deported as a result of this plea.” Castaño indicated she understood, and answered ‘Tes.”
In oral argument, Castano’s attorney argued that a plea to child neglect may be a crime which requires mandatory deportation. Thus, Castano contends that in light of Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), her attorney was obligated to advise her that mandatory deportation could be a consequence of her plea.
This court has previously aligned itself with the Fourth District Court of *548Appeal in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), which held that any prejudice arising from counsel’s misadvice regarding the immigration consequences of a plea is cured when the trial court gives the deportation warning in Florida Rule of Criminal Procedure 3.172(c)(8) during the plea colloquy. The instant warning given by the trial judge is sufficient to cure any inadequate advice given by Castano’s attorney. We recognize that this directly conflicts with Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).
Another aspect of this case is that Castaño entered her plea on March 4, 2009, and Padilla was decided March 31, 2010. We have previously held that Padilla should not be applied retroactively. See State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011). We agree with the Third District Court of Appeal that the question whether Padilla should be applied retroactively is one of great public importance and we certify to the Florida Supreme Court that question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v). We certify conflict with the Third District Court of Appeal in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). Consistent with our holding in Chin v. State, 51 So.3d 472 (Fla. 5th DCA 2010), we affirm.
AFFIRMED, QUESTION CERTIFIED; CONFLICT CERTIFIED.
MONACO, C.J. and LAWSON, J., concur.
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Castano v. State, 119 So. 3d 1208 (Fla. 2012)…At the time of the criminal charges, Castaño owned and operated a day care center out of her home. She was charged with child neglect, a third-degree felony, when a child under her care was found wandering in her neighborhood. See Castano v. State, 65 So. 3d 546, 547 (Fla. 5th DCA 2011). The child was found unharmed a short distance away by a neighbor who called the police. Castaño entered her plea on March 4, 2009, and was sentenced to one day in jail, with credit for one day served, three years of supervi…1 / 2
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Kieran F. O'Neill v. State, 107 So. 3d 1133 (Fla. 2d DCA 2012)…ing in accordance with rule 3.172(c)(8), he could not show the prejudice necessary to obtain relief, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores, 57 So. 3d at 220-21; see [*1135] also Castano v. State, 65 So. 3d 546, 547-48 (Fla. 5th DCA 2011) (agreeing with the Fourth District in Flores), review granted, 81 So. 3d 413 (Fla.2012). Following Flores, the postconviction court ruled that because O’Neill had received a deportation warning in compliance with rule 3.…
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Ferguson v. State, 88 So. 3d 421 (Fla. 4th DCA 2012)…15 (Fla. 4th DCA 2011); Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So. 3d 414 (Fla.2012); Barreneche v. State, 80 So. 3d 455 (Fla. 1st DCA 2012); Barrios-Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011); Castano v. State, 65 So. 3d 546 (Fla. 5th DCA 2011). MAY, C.J., WARNER and CIKLIN, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010)
- Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011)
- Flores v. State, 57 So. 3d 218 (Fla. 4th DCA 2010)
- State v. Shaikh, 65 So. 3d 539 (Fla. 5th DCA 2011)