THE CAPITAL, TALLAHASSEE, May 9, 2012 -
Michael Peltier, The News Service of Florida
Following a 2010 U.S. Supreme Court decision in a Kentucky case, the Florida Supreme Court is being asked to clarify how much attorneys must advise clients who are not U.S. citizens that their decision on how to plead could have them deported.
On Tuesday, the Florida court took testimony in three cases in which the clients claimed they were not adequately advised by their attorneys that the course of action they were pursuing could lead to mandatory deportation.
The cases come two years after the U.S. Supreme Court ruled in Padilla v. Kentucky that attorneys must advise non-citizen clients about deportation risks of a guilty plea. The ruling has sparked a flurry of cases from defendants who are not U.S. citizens and whose cases were decided before Padilla or while the Kentucky case was working its way through the court.
Nearly 50 Florida cases have already been filed.
Among the issues the state high court faces, is whether or not the Padilla decision was significant enough to require that the law be applied retroactively.
A lawyer in the attorney general's office argued for the state that Florida has since 1989 had a rule that defense attorneys must advise their clients that deportation may be a consequence of a guilty verdict. As such, there is no need to go back and address those cases again, said Kristen Davenport, who argued all three cases on behalf of the state.
Florida rules of criminal procedure already require that judges inform defendants that a guilty or nolo contendere plea could result in deportation if they are not U.S. citizens.
"The defendants in Florida were not completely in the dark," Davenport said.
During questioning, Justice Barbara Pariente said that the knowledge of whether or not a plea agreement could or would produce a mandatory deportation provision was critical if the defendant was to make an informed decision.
"That goes to the essence as to whether you are going to take the plea or not," Pariente said.
The cases Tuesday reflected nuances in some ways different from Padilla. One case involved a client who was placed on probation and adjudication was withheld. The second case involved a defendant who claimed he pleaded guilty to charges without knowing they would bring about mandatory deportation.
A third case involved a day care center owner who pleaded guilty and was sentenced to one day in jail and went back to have the judgment vacated. She is also facing mandatory deportation.
The court doesn't have a timeline for ruling on the matter.