Fla. Justices Issue Split Decision for Immigrants
TALLAHASSEE, Fla. (AP) - Non-U.S. citizens can appeal convictions resulting from guilty or no-contest pleas on grounds that defense lawyers failed to warn them they'd face almost certain deportation, the Florida Supreme Court said in three opinions Thursday.
However, the justices also said their decision cannot be applied retroactively to convictions that occurred before a 2010 U.S. Supreme Court opinion in a similar case from Kentucky, except for appeals filed prior to that decision.
As a result, the justices denied appeals by two immigrants. In a third case, the seven justices reinstated Claudia Vergara Castano's appeal in a lower court because she had filed it before the U.S. Supreme Court ruling.
All three opinions were unanimous and unsigned. They won't, though, be the final word on retroactivity because the U.S. Supreme Court has agreed to hear that issue in an Illinois case.
Castano, a native of Colombia, pleaded guilty to child neglect after a youngster wandered away from her home day care center in Orlando.
The maximum penalty was five years in prison, but as the result of a plea agreement with prosecutors, Castano was sentenced in 2009 to time served - one day in jail - as well as paying court costs and three years of supervised probation.
The woman's lawyer, who advised her to take the plea deal, said he told her she needed to consult with an immigration attorney. Castano maintains he never warned her that she would face mandatory deportation as a result of her plea.
"She stated that her counsel told her there was no alternative because she 'would be found guilty anyway,'" wrote Justice Barbara Pariente in a concurring opinion. "She further testified that counsel told her that the plea would require only a payment from her and that 'everything was going to be all right.'"
The state argued that any deficiencies by defense lawyers in advising their clients that deportation would likely result from their pleas was overridden by a warning from judges that defendants "may" be subject to deportation as required by court rules before accepting such pleas.
Citing the U.S. Supreme Court opinion, the state justices found that warning to be insufficient if deportation is virtually certain.
"At least in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel's deficiencies," the state Supreme Court wrote in the case of Gabriel Hernandez.
The native Nicaraguan pleaded guilty to a 2001 drug charge in exchange for probation in Miami-Dade County when he was 19 years old. He has since earned a college degree and is holding down a job but faces deportation.
The justices rejected his appeal because Hernandez did not file it until after the 2010 U.S. Supreme Court decision in the case of Jose Padilla, a native of Honduras.
For the same reason, the Florida justices also rejected an appeal from Leduan Diaz, a Cuban immigrant who pleaded guilty to burglary and assault charges, also in Miami-Dade.
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