Florida Supreme Court Hears 3 Immigration Cases
TALLAHASSEE, Fla. (AP) - Attorneys for three immigrants urged the Florida Supreme Court on Tuesday to throw out their guilty pleas to felony charges because defense lawyers failed to warn them the result would be almost certain deportation.
They cited a 2010 U.S. Supreme Court decision in a Kentucky case that says failing to give immigrants such advice violates their constitutional right to effective counsel.
Benjamin Waxman, a lawyer for Leduan Diaz, urged the justices to heed the words of one of their predecessors, William Glenn Terrell, who served on the high court for 41 years until his death in 1964.
"It is better to eat crow than to perpetuate error," Waxman quoted from one of Terrell's opinions.
One question the justices are trying to answer is whether the U.S. Supreme Court ruling is retroactive to pleas entered before it was handed down.
Another is whether a broader warning given by Florida judges that defendants "may" face deportation is strong enough to offset defense lawyers' failure to give clients accurate advice or any at all.
Assistant Attorney General Kristen Davenport argued against retroactivity in part because of the standard judges' warnings.
"We've been warning them about the risk of deportation for 20 years," Davenport said. "Kentucky had not."
That's insufficient because the warnings fall short of advising that federal immigration officials and judges have no choice but to deport non-citizen felons, the defendants' lawyers argued.
Some of the justices expressed agreement.
"When it's plain that this would be a mandatory deportation consequence, then you've got to tell them that," said Justice Peggy Quince. "I don't see how you can get around that language."
Justice Barbara Pariente called the judges' warning "a cookie-cutter colloquy" that fails to alert defendants they are facing a "presumptively mandatory deportation offense."
The issue came up as the justices heard the case of Gabriel Hernandez, a native of Nicaragua, who pleaded guilty to a drug charge in exchange for probation in Miami-Dade County when he was 19 years old in 2001. He has since earned a college degree and is holding down a job, but now faces deportation.
"It's like the sword of Damocles hanging over Mr. Hernandez' head for the test of his life," Pariente said.
Davenport, though, argued the fact he's still in the United States 11 years later shows deportation is not a sure thing and the judge's warning was adequate to overcome his lawyer's failure to advise him on that matter.
Diaz, originally from Cuba, pleaded guilty to burglary and assault charges, also in Miami-Dade.
The third appellant is Claudia Vergara Castano, a native of Colombia, who pleaded guilty to child neglect after a child wandered away from her home day care center in Orlando.
The justices did not indicate when they might rule, but one option is to wait for the U.S. Supreme Court to decide whether its decision in the case of Jose Padilla, a native of Honduras, is retroactive. The federal justices agreed on April 30 to consider that issue in an Illinois case.
One result of the federal ruling, though, will be to require the Florida Supreme Court to recede from a 1987 opinion that precluded ineffective counsel claims based on defense lawyers' failure to advise clients they could be deported as the result of a guilty or no-contest plea, Pariente noted.
Hernandez' lawyer, Michael Vastine, said his client did not appeal until after the Padilla decision because he knew any claim would be summarily denied based on the 1987 ruling.
Davenport also argued against retroactivity because it would hamper the administration of justice by unleashing a flood on cases that would be difficult, if not impossible, for the state to retry.
"There is an interest in finality that overrides the interests of an individual defendant," she said.
Under questioning by Pariente, though, she acknowledged the state's five district courts of appeal have issued only 47 opinions citing the Padilla ruling in the intervening two years but contended there's the potential for many more.
Castano's case differs from the others in that she found a new lawyer and immediately appealed rather than wait until the Padilla case was decided. Also, her lawyer testified that he told her he'd heard the federal government was deporting felons and advised her to check with an immigration attorney.
"That's not enough," H. Manuel Hernandez argued for Castano. "She was not given real advice in terms of the immigration consequences. She was given legal gossip."
The cases are Gabriel A. Hernandez v. State of Florida, SC-11-941; Leduan Diaz v. State of Florida, SC11-1281; Claudia Vergara Castano v. State of Florida, SC11-1571.
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