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.

• 22 November 2012
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