stating that “a colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality ofthe circumstances by providing evidence that the defendant is aware ofthe possibility that a plea could affect his immigration status” but it “cannot, by itself, remove prejudice resulting from counsel’s deficiency”
How later courts described this case
- stating that “a colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality ofthe circumstances by providing evidence that the defendant is aware ofthe possibility that a plea could affect his immigration status” but it “cannot, by itself, remove prejudice resulting from counsel’s deficiency”
- holding that where a deportation consequence is “truly clear” a warning that defendant “may” be deported does not cure the prejudice from counsel’s deficiency in failing to provide more than equivocal advice about deportation
- holding as to a guilty plea to an aggravated felony that “counsel was deficient under Padilla for failing to advise [the defendant] that his plea subjected him to presumptively mandatory deportation”
- finding counsel’s performance “deficient under Padilla” because counsel “fail[ed] to advise [defendant] that his plea subjected him to presumptively mandatory deportation”
Written by the judges who cited it.
The opinion
PARIENTE, J.,
concurring.
I agree with the majority that Padilla v. Kentucky, 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), does not apply retroactively and therefore does not apply to this case. For the reasons more fully explained in my concurrence in Castano v. State, 119 So.3d 1208 (Fla.2012), Padilla applies to those cases in which, at the time Padilla was decided, the initial postconviction proceeding was not yet final and the defendant had raised a claim of ineffective assistance of counsel for failing to advise of the deportation consequences of a plea. Here, however, Hernandez waited nine years after his 2001 plea to bring a claim of ineffective assistance of counsel for failure to advise of deportation consequences by filing a postconviction motion after Padilla was decided.
QUINCE, J., concurs.