RAYMUNDO SANTIAGO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Santiago appeals a denial of his postconviction motion challenging whether his trial counsel was ineffective for not advising him of deportation consequences under Padilla v. Kentucky. The court affirms the denial of his motion as untimely, holding that the trial court's deportation warning during the plea colloquy cured any prejudicial effect from counsel's failure to advise.
The court affirmed the denial of Santiago's postconviction motion as untimely. The court held that the trial court's warning that the plea "may" subject Santiago to deportation cured any prejudice from counsel's misadvice, assuming any misadvice occurred. Additionally, the court held that Padilla should not be applied retroactively to postconviction motions, which are subject to the same two-year time constraint as other postconviction motions to vacate sentences.
[1] A trial court's warning during a plea colloquy that a plea "may" subject a non-citizen defendant to deportation cures any prejudice from counsel's alleged misadvice regar…
[2] The Supreme Court's holding in Padilla v. …
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Join FLexlaw to unlock all legal intelligence“Do you also understand that if you're not a United States citizen that this plea could subject you to deportation?”
The trial court's explicit deportation warning given to Santiago during the plea colloquy, which the court found cured any prejudice from counsel's potential misadvice.
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Join FLexlaw to unlock all legal intelligenceSantiago pled no contest to possession of cocaine with intent to sell or deliver and possession of drug paraphernalia, receiving a probationary senten…
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*576 ON MOTION FOR REHEARING
We grant Raymundo Santiago’s motion for rehearing and request for written opinion, withdraw our earlier per curiam affir-mance and issue the following opinion in its stead.
Santiago pled no contest to possession of cocaine with intent to sell or deliver and possession of drug paraphernalia. He did not appeal his probationary sentence, which became final on February 2, 2008. On April 16, 2010, Santiago filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court denied Santiago’s motion as untimely. We affirm, but write to address Santiago’s claim that under the holding of Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), trial counsel was ineffective by not advising him of the deportation consequences of his no contest plea.
The record reflects that the following exchange took place between the court and Santiago during the plea colloquy:
THE COURT: Did you have an opportunity to discuss the plea form and your case with your attorney?
THE DEFENDANT: Yes.
THE COURT: Did you understand all the rights that are contained in this plea form; such as, your right to plead not guilty, the right to have your attorney represent you through a jury trial, the right to compel witnesses to testify on your behalf and cross-examine the witnesses against you, the right to testify or to remain silent, present any defenses that you might have and the right to require the State prove your guilt beyond reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: Do you also understand that if you’re not a United States citizen that this plea could subject you to deportation?
THE DEFENDANT: Yes.
(Emphasis added).
We agree with the holding of Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), that the trial court’s warning to Santiago that he may be deported as a result of his plea cured any prejudice that might have flowed from counsel’s misadvice (assuming any misadvice was given). Santiago, like Flores, assumed the risk that he “may” be deported. But see Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (certifying conflict with Flores and finding that Padilla rendered Florida’s existing standard deportation warning that plea “may” subject defendant to deportation to be constitutionally deficient in cases where automatic deportability is “truly clear,” non-discretionary consequence). However, we do agree with that part of the decision in Hernandez holding that Padilla should not be applied retroactively. State v. Shaikh, 65 So.3d 539, - (Fla. 5th DCA 2011); see State v. Green, 944 So.2d 208 (Fla. 2006) (holding that motion to withdraw plea on grounds that trial court did not advise of possibility of deportation will be held to same two-year time constraint as other postconviction motions to vacate sentences).
AFFIRMED.
MONACO and COHEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Hernandez v. State, 124 So. 3d 757 (Fla. 2012)…Hernandez pled guilty, and it has remained substantively unaltered since it original adoption in 1988. See In re Amendments to Fla. R. Crim. P., 536 So. 2d 992 (Fla.1988). . The Fifth District has reached the same conclusion. See Santiago v. State, 65 So. 3d 575, 576 (Fla. 5th DCA 2011) ("[T]he trial court's warning to Santiago that he may be deported as a result of his plea cured any prejudice that might have flowed from counsel’s misadvice (assuming any misadvice was given).”). . Florida, like many other…
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Efren Zamora v. State, 112 So. 3d 112 (Fla. 1st DCA 2012)…. See Smith v. State, 85 So. 3d 551 (Fla. 4th DCA 2012); Barrios-Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011); Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011) (certifying question), rev. granted, 81 So. 3d 414 (Fla.2012); Santiago v. State, 65 So. 3d 575 (Fla. 5th DCA 2011). We join the other district courts of appeal in Florida, which have concluded that Padilla is not to be retroactively applied. See e.g., Angel-Bello v. State, 91 So. 3d 276 (Fla. 1st DCA 2012); Barreneche v. State, 80 So. 3d 45…
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Martinez v. State, 66 So. 3d 1083 (Fla. 5th DCA 2011)…PER CURIAM. We deny Appellant’s motion for rehearing, but withdraw our previous per curiam opinion dated June 14, 2011, and substitute the following opinion in its place. AFFIRMED. See Santiago v. State, 65 So. 3d 575 (Fla. 5th DCA 2011); see also Hernandez v. State, 61 So. 3d 1144, 1151 (Fla. 3d DCA 2011) (holding, inter alia, that the decision in Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), should not be applied retroactively, while ce…
Previewing 3 of 4 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)
- State v. Owran Green, 944 So. 2d 208 (Fla. 2006)
- 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)