ALEJANDRO RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rodriguez challenged the summary denial of his Rule 3.850 motion to withdraw his no-contest plea to cocaine possession, arguing his trial counsel failed to advise him of the presumptively mandatory deportation consequences as required by Padilla v. Kentucky. The Florida Second District Court of Appeal reversed, holding that a generic warning that a plea "may" result in deportation is insufficient to cure counsel's failure to inform a defendant of mandatory deportation consequences.
The court held that an admonition that a plea "may" result in deportation is not sufficient to alert a defendant that conviction would result in presumptively mandatory deportation, and therefore does not cure the prejudice from counsel's failure to provide such advisement. The defendant stated a facially sufficient claim entitling him to an evidentiary hearing on his plea withdrawal motion.
[1] A defendant's plea is involuntarily entered when counsel fails to advise the defendant of the presumptively mandatory deportation consequences of a conviction.
[2] An admonition that a plea to a particular offense may subject a defendant to deportation is insufficient to cure prejudice resulting from counsel's failure to advise of p…
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Join FLexlaw to unlock all legal intelligence“an admonition that a plea to a particular offense may subject a defendant to deportation is not sufficient to alert him that the conviction would result in presumptively mandatory deportation, and it therefore does not cure the prejudice resulting from counsel's failure to so advise”
Establishes the core holding that generic 'may' warnings are insufficient; counsel must advise of mandatory deportation consequences
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Join FLexlaw to unlock all legal intelligenceIn November 2011, Rodriguez entered a negotiated plea of no contest to possession of cocaine in exchange for 40 days in jail. The trial court advised …
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Alejandro Rodriguez challenges the order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order and remand for an evidentiary hearing.
In November 2011, Rodriguez entered a negotiated plea of no contest to possession of cocaine in exchange for a sentence of 40 days in jail. Rodriguez sought to withdraw his plea on the ground that it was involuntarily entered because his trial counsel did not advise him as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010),1 that a conviction for possession of cocaine would subject him to presumptively mandatory deportation.2 He further alleged that there is a reasonable probability he would not have pleaded but instead would have proceeded to trial had he been aware of the deportation consequences of the plea. Rodriguez presented a facially sufficient claim that his plea was involuntarily entered based on counsel’s failure to properly advise him of the clear deportation consequences of the plea. See Hernandez v. State, — So.3d - (Fla.2012).
The transcript of the plea hearing indicates that the trial court pursuant to Florida Rule of Criminal Procedure 3.172(c)(8) advised Rodriguez that the plea “may” subject him to deportation. In denying the motion, the postconviction court found that this was a sufficient warning of the deportation consequences of the plea.3 However, an admonition that a plea to a particular offense may subject a defendant to deportation is not sufficient to alert him that the conviction would result in presumptively mandatory deportation, and it therefore does not cure the prejudice resulting from counsel’s failure to so advise. See Hernandez, — So.3d at -; O’Neill v. State, 107 So.3d 1133, 1135 (Fla. 2d DCA 2012). We therefore reverse and remand for an evidentiary hearing on Rodriguez’s claim. See O’Neill, 107 So.3d at 1135. Because it appears that deportation proceedings have already begun, the postcon-viction court on remand shall expedite its consideration of Rodriguez’s claim.
Reversed and remanded.
VILLANTI and SLEET, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010)
- Kieran F. O'Neill v. State, 107 So. 3d 1133 (Fla. 2d DCA 2012)