# Hernandez v. State

> Supreme Court of Florida · November 21, 2012 · 124 So. 3d 757

URL: https://www.frixlaw.com/law-library/cases/4805699

## Case

- **Full name:** Gabriel A. HERNANDEZ v. STATE of Florida, Respondent State of Florida v. Gabriel A. Hernandez
- **Court:** Supreme Court of Florida
- **Decided:** November 21, 2012
- **Citations:** 124 So. 3d 757; 2012 WL 5869660
- **Precedential status:** Published
- **Opinion:** Concurrence by Pariente
- **Judges:** Canady, Labarga, Lewis, Pariente, Perry, Polston, Quince
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4805699

## How later opinions describe it (automated extraction)

- 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 s…
- 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”
- holding that when immigration law is truly clear that Padilla requires “more than equivocal advice concerning those consequences”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4805699. Public record. Not legal advice.