Florida Supreme Court- Deportation Does Not Apply to Past Cases

On Wednesday, the Florida Supreme court said that a Miami man who could face deportation for an old drug charge is not eligible to toss his conviction.

Gabriel Hernandez, now a successful bank administrator, argued to the FL Supreme Court to toss his conviction on the grounds that his lawyer failed to properly advise him that he could be deported to his native country of Nicaragua.

This case is very similar to a past case where the United States Supreme Court in 2010 overturned the conviction for Kentucky resident Jose Padilla, whose lawyer failed to warn him that he would be deported when pleading guilty.

But a Miami judge, going against the Padilla decision refused Hernandez’s request as did the Third District Court of Appeal, stating that the Padilla case did not apply to past cases like this one.

The Florida Supreme Court unanimously ruled that the Padilla case is not retroactive- ie. does not apply to old cases.  The Court did rule that current and future defendants in Florida have the right to be advised of immigration consequences, or can claim that their lawyers were “ineffective.”

Ultimately, this will not be the last stop for this retroactive issue as the U.S. Supreme Court will decide whether its own decision in Padilla applies retroactively.

Last month, the Supreme Court heard arguments for a Chicago resident, Roselva Chaidez, who is facing deportation for and old fraud conviction. No ruling has been issued in that case yet.

IHernandez pleaded guilty and accepted 1 year of probation in return for a “pre-trial diversion” or that no conviction would appear on his record. But Hernandez insists that he never understood that pleading guilty could lead to him being deported.  

The Florida Supreme Court also ruled on Wednesday in a companion case of Miami’s Leduan Diaz on the same issue.

Florida Tenant Arrested for Blowing “Raspberries” (Strange Law)

Dominick L. Verducci had a disute with his apartment complex and told the manager that if he were younger he would “knock the nose” off his face. He then stuck his tongue out and blew the man a raspberry at the manager.

Verducci was charged with battery because the spit from his raspberry hit the property manager in the face.  Battery is defined as actually or intentionally touching or striking another person.  Police said that the crime is not limited to extremities, but includes objects such as bodily fluids.

Verducci, who was dripping wet for an undisclosed reason and wasn’t wearing a shirt, went to complain in the front office of the apartment complex.  The manager overheard Verducci and went to address the loud situation and the puddle of water he had made on the floor.

Verducci became angry, cursed at the manager and blew a raspberry in his face.  When the manager would not fight Verducci, he went to leave continuing to be loud and pretended to wipe his rear end.

Officers arrested Verducci for simple battery and he was booked in Alachua County jail.  He was released on his own recognizance shortly after.


Florida Supreme Court to Determine if Illegal Immigrant Can Become Lawyer

26-year-old Jose Manuel Godinez-Samperio from Mexico graduated law school and passed the Florida Bar Exam.   He came to the U.S. with his parents at the age of 9, and stayed after their tourist visas expired. 

Godinez-Samperio disclosed to the Board of Bar Examiners that he was an undocumented immigrant, obtaining a waiver of the Board’s requirement to show residency.  After he passed the bar exam, the case went to the Florida Supreme Court to determine whether or not Godinez-Samperio should be granted a law license in Florida.


This case is one of the latest to test President Barack Obama’s new policy of granting temporary work permits to young illegal immigrants against states that seek to crack down on illegal immigration.  Better known as “deferred action for childhood arrivals,” the policy protects illegal immigrants 15 to 30 years old from being deported for at least 2 years, and allows them to obtain work permits.


Justice Canady cited a 1996 federal immigration law suggesting that it would preclude Godinez-Samperio from practicing as a lawyer.  Other justices questioned whether Godinez-Samperio would even legally be able to work even if he was granted his law license.  


In August 2012, the U.S. Justice Department told California’s Supreme Court in a similar case that it should not allow an illegal immigrant, Sergio Garcia, to practice law in California despite passing the bar exam.  Similarly, the Florida Supreme Court questioned last month at oral arguments whether the Justice Department should be consulted in this case as well.  


A similar case is developing in New York, although that case has not yet gone to court. 


-Jonathan A. Klurfeld, Esq.

www.JAKLegal.com