The 4th DCA ruled this week in Flores v. State, 35 Fla. L. Weekly D1562a, that a trial court’s general admonition that a plea in a criminal case may lead to deportation (given as a rule in all criminal cases, pursuant to Fl. R. Crim. P. 3.172(c)(8)) will overcome trial counsel’s affirmative misadvice to the contrary. Flores was charged with possession of cocaine and DUI and entered drug court. He did not successfully complete the program and a warrant was issued for his arrest. ICE placed a detainer on him. He ultimately entered a plea to the reduced charge of misdemeanor possession of drug paraphernalia and received a time served disposition based on his attorney’s advice that this reduced charge would eliminate his risk of deportation. Two weeks later, ICE sought to deport Flores.
Flores’ timely Rule 3.850 motion was denied after an evidentiary hearing. His trial counsel did not testify and no other evidence or testimony was presented that refuted Flores’ allegations about his attorney’s advice. The trial court denied the motion, finding that Flores lacked credibility and that the court’s warning about deportation cured any misadvice from Flores’ trial counsel.
The 4th DCA specifically held in this opinion that the Rule 3.172(c)(8) deportation warning cures any misadvice from trial counsel– and specifically addressed how this case differs from Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In Padilla, the Kentucky trial court gave no admonition at all about the risks of deportation resulting from pleas in criminal cases.
This blog previously addressed the question of what impact Padilla might have on postconviction litigation in Florida. The answer seems to be not much. In Florida before Padilla, trial courts were required to give the Rule 3.172(c)(8) warning and the failure to do so could very well lead to a legal basis to withdraw a plea. It appears that Padilla does not change that.
The real problem presented by the lack of redress available to criminal defendants who are placed in the position of having to rely on their criminal defense lawyers for immigration advice is that it will, in my opinion, impact substantially on indigent defendants who do not have access to trained immigration counsel. Are assistant public defenders in a position to do anything more than inform their clients that a plea in a criminal case will undoubtedly lead to deportation? Will that lead to unnecessary trials and the concomitant waste of judicial resources? These are questions (and problems) beyond the scope of the cases creating the law on this issue. But perhaps they should not be.
Because 77 of those offenders are serving sentences imposed in Florida and the other 52 are imprisoned in just 10 States and in the federal system, it appears that only 12 jurisdictions nationwide in fact impose life without parole sentences on juvenile nonhomicide offenders, while 26 States and the District of Columbia do not impose them despite apparent statutory authorization.
To me, the statement above was perhaps the most compelling part of today’s Supreme Court opinion in Graham v. Florida, in which the Court held that the Eighth Amendment bars life imprisonment for juvenile defendants whose crimes do not involve death. The fact that such a high percentage of juveniles sentenced to life are in Florida doesn’t necessarily surprise me, but it does sadden me.
The significance of the case is clear: no longer will juveniles be subject to sentences of life without parole. What our communities are going to do to integrate these individuals back into society is another question—one that Florida is going to have to address quite soon, apparently.