STEVE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steve Smith appealed the trial court's denial of his postconviction motion challenging his 1986 drug conviction, claiming lack of deportation advisement by his counsel constituted ineffective assistance. The appellate court affirmed the denial on three independent grounds: timeliness, non-retroactive application of Padilla v. Kentucky, and insufficient showing that the drug conviction alone caused deportation.
The court affirmed the trial court's denial on three grounds: (1) the motion was untimely under the two-year window established in State v. Green; (2) Padilla v. Kentucky cannot be applied retroactively to Smith's 1986 conviction; and (3) Smith failed to clearly establish that the drug conviction alone was the sole basis for deportation, as he also had a firearm conviction that could independently support deportability.
[1] A postconviction motion challenging a conviction that may lead to deportation must be filed within the two-year window established by State v. …
[2] The Supreme Court's decision in Padilla v. …
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Join FLexlaw to unlock all legal intelligence“While Padilla authorizes an ineffective assistance of counsel claim where a defendant is misadvised as to the deportation consequences in pleading to a crime, Florida courts have held that Padilla cannot be applied retroactively.”
Establishes the critical limitation that Padilla's protections do not apply to convictions predating the Supreme Court's 2010 decision
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Join FLexlaw to unlock all legal intelligenceSmith was convicted in 1986 of possession of cannabis with intent to deliver. In April 2010, deportation proceedings commenced against him. Smith clai…
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We affirm the trial court’s denial of appellant’s postconviction challenge to his 1986 conviction for possession of cannabis with intent to deliver. He claims that this conviction is causing deportation proceedings against him, which commenced in April 2010. He maintains that he was not advised by counsel or the court at the 1986 plea hearing, a transcript of which is now unavailable, that his plea may result in deportation, and that if he had been so advised he would not have pled to the crime. The trial court correctly denied the motion.
First, the motion was untimely, because it was outside the two-year window of State v. Green, 944 So.2d 208, 218 (Fla.2006), for bringing postconviction claims challenging convictions which could lead to deportation. Second, his reliance on Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is misplaced. While Padilla authorizes an ineffective assistance of counsel claim where a defendant is misadvised as to the deportation consequences in pleading to a crime, Florida courts have held that Padilla cannot be applied retroactively. Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011). See also McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011). Third, even without the drug conviction, appellant may still be deportable or unable to adjust his immigration status because of his conviction for a firearm offense. See, e.g., Nieto Hernandez v. Holder, 592 F.3d 681, 686 (5th Cir.2009); 8 U.S.C. § 1227(a)(2)(C) (an alien convicted of an offense for possession of a firearm is de-portable). Thus, appellant has not clearly shown that the drug conviction is the sole *553basis for deportation. See Forrest v. State, 988 So.2d 38, 40 (Fla. 4th DCA 2008).
Affirmed.
HAZOURI and GERBER, JJ., concur.
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Drewery Geter v. State, 115 So. 3d 375 (Fla. 3d DCA 2012)…iction of the innocent.” Id. (citations omitted). Similarly, to date, every other Florida District Court of Appeal has held that Padilla does not have retroactive application. See Zamora v. State, 112 So. 3d 112, (Fla. 1st DCA 2012); Smith v. State, 85 So. 3d 551 (Fla. 4th DCA 2012); Barrios-Cruz, 63 So. 3d 868; State v. Shaikh, 65 So. 3d 539 (Fla. 5th DCA 2011). Thus, similarly to Apprendi and Padilla, the Miller “decision constitutes an evolutionary refinement designed to correspond to new developments in…
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Ferguson v. State, 88 So. 3d 421 (Fla. 4th DCA 2012)…PER CURIAM. Affirmed. Smith v. State, 85 So. 3d 551 (Fla. 4th DCA 2012); Davis v. State, 69 So. 3d 315 (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…
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Cisneros v. State, 92 So. 3d 278 (Fla. 4th DCA 2012)….Ct. 1473, 176 L.Ed.2d 284 (2010), recognizing ineffective assistance of trial counsel claims where a defendant is misadvised on deportation consequences of a plea, is misplaced because that decision does not apply retroactively. See Smith v. State, 85 So. 3d 551 (Fla. 4th DCA 2012) (citing McCalla v. State, 77 So. 3d 845 (Fla. 4th DCA 2012), and other authorities). Further, the record attachment to the State’s response filed in the trial court, which the trial court attached and incorporated as the basis f…
Previewing 3 of 9 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)
- Emerson Davis v. State, 69 So. 3d 315 (Fla. 4th DCA 2011)
- Forrest v. State, 988 So. 2d 38 (Fla. 4th DCA 2008)
- McCALLA v. State, 77 So. 3d 845 (Fla. 4th DCA 2012)