Readers of this blog are probably already aware that being charged with a crime in Florida is a serious matter that can come with severe consequences, including jail time and heavy fines. As the state Supreme Court’s recent decision in Hernandez v. State makes clear, a conviction can also mean deportation for non-citizens.
Gabriel Hernandez was born in Nicaragua and immigrated to the United States, where he is a permanent resident alien cardholder, as a child. He was arrested as a 19 year-old for selling LSD to a police informant. Hernandez was appointed a public defender, whom he met with for 10 minutes on the day of his arraignment before pleading guilty to a second degree felony of sale of a controlled substance.
Although the plea called for one year of probation, as well as completion of a substance abuse assessment and any recommended treatment, Hernandez was warned that the charge carried a maximum prison sentence of 15 years. He was also told by the judge that the U.S. could use the charges against him in a deportation proceeding. The public defender later indicated that he typically told clients that a plea “may affect their immigration status,” but he did not discuss immigration issues with outside counsel or refer clients to an immigration expert.
Hernandez later learned that his plea qualified as an “aggravated felony” under the Immigration and Nationality Act and, as a result, required him to be deported. He filed a motion seeking to have his plea vacated, arguing that his lawyer failed to properly explain the immigration implications of the plea and that Hernandez would not have pled guilty if he were aware of the circumstances.
Hernandez based his motion on the U.S. Supreme Court ruling in Padilla v. Kentucky, in which the court ruled that a criminal defendant’s attorney provided insufficient counsel by failing to inform the defendant that a guilty plea on drug charges would result in his mandatory deportation. In that case, the court specifically held that a lawyer is required to “inform her client whether his plea carries a risk of deportation.”
Here, the state Supreme Court found that Hernandez’s counsel was similarly insufficient. “Given that the deportation consequence was ‘truly clear,’ Hernandez’s counsel had a commensurate duty to provide the ‘correct advice,’” the Court ruled, quoting Padilla. The judge’s warning to Hernandez about the possible immigration implications of his plea did not waive this duty, according to the Court.
Nevertheless, the Court further ruled that the requirements set forth in Padilla do not apply retroactively to persons, like Hernandez, adjudicated before that decision was rendered. The Court affirmed a lower court’s decision denying Hernandez’s motion.
If you have been charged with a crime in Florida, you need an effective, knowledgeable attorney who will aggressively defend your interests and consider every aspect of any possible plea deal. The South Florida criminal defense attorneys at Anidjar & Levine can help assess your situation, protect your rights, negotiate with the prosecution on your behalf, and reach the best possible outcome for your case.
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