Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: Padilla v. Kentucky

Florida’s Fourth DCA Reverses Dismissal of Charges Against Public Official, And The Court Still Struggles With Retroactivity of Padilla in Postconviction Cases

In an opinion released this week, the Fourth District Court of Appeal in West Palm Beach held that the trial court erred by dismissing corruption charges against a public official.   Although the opinion is not final until any motion for rehearing is disposed of, the opinion essentially allows the State to resume prosecution of the official.  Since it’s pretty uncommon to see public corruption charges in State court (most public corruption cases arise in federal court), this would be a good opinion to read.  Not only will it be helpful to criminal defense attorneys who defend public corruption cases, but the opinion also contains a good discussion of motions to dismiss and traverses under Fla. R. Crim. P. 3.190(c)(4).

Criminal appeals attorneys should take a few minutes to read another opinion released by the Fourth DCA, Perez v. State, 4D10-3180, because it shows that the Court is still struggling with the issue of whether Padilla v. Kentucky, 550 U.S. 356 (2010), applies retroactively in postconviction cases.  In support of its holding that Padilla would not apply retroactively, the Court reasoned that Perez’s conviction became final before the Padilla opinion issued, and Perez did not file his motion for postconviction relief until after Padilla.  The majority opinion, authored by newly-appointed Judge Forst, contains a good discussion of Padilla, Hernandez v. State, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012), in which the Florida Supreme Court held that Padilla does not apply retroactively, and Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013), where the United States Supreme Court held that a defendant may not obtain federal relief based on Padilla where his or her conviction became final on direct review before Padilla was decided.  Judge Stevenson authored a well-reasoned dissent wherein he stated that he would apply Padilla retroactively because Perez’s postconviction motion was already in the pipeline when Padilla was decided.

Padilla v. Kentucky: Will it Apply Retroactively? United States Supreme Court Oral Argument Set for October 30, 2012

Criminal defense and criminal appeals lawyers may be interested to know that on October 30, 2012, the United States Supreme Court will be having OA in the case of Chaidez v. United States, No.11-00820, to consider the question of whether Padilla v. Kentucky, 130 S. Ct. 1473 (2010), will apply retroactively to defendants whose convictions became final before the Padilla decision was rendered.  The formal Question Presented, as framed by the Court, reads as follows:

11-820 CHAIDEZ V. UNITED STATES
DECISION BELOW: 655 F.3d 684
CERT. GRANTED 4/30/2012
QUESTION PRESENTED: In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal
defendants receive ineffective assistance of counsel under the Sixth Amendment
when their attorneys fail to advise them that pleading guilty to an offense will
subject them to deportation.  The question presented is whether Padilla applies to
persons whose convictions became final before its announcement.
LOWER COURT CASE NUMBER: 10-3623

The Florida Supreme Court is considering the retroactivity issue as well, in the case of State v. Hernandez, No. SC11-1357.  According to the docket, the Florida Supreme Court held OA in May of 2012.  Since the Florida Supreme Court has yet to issue a decision, perhaps it’s waiting to see what the United States Supreme Court decides in Chaidez.  My last post on the Hernandez case can be found here.

Florida Supreme Court Delays Mandatory E-Filing, And Courts Issuing Numerous Opinions in Aftermath of Shelton and Adkins

Mandatory e-filing in Florida’s courts is being delayed.  Surprising, I know.  Check out the order here. Too bad the State of Florida can’t just buy the CM/ECF system that the Federal courts use.  Then again, that would just be too easy.

As I reviewed the websites for Florida’s District Courts of Appeal this week, I noticed that a good number of opinions are being issued in the wake of State v. Adkins, 37 Fla. L. Weekly S449 (Fla. July 12, 2012).  For example, the Fourth DCA issued a slew of opinions denying Rule 3.850 motions for post-conviction relief, while the First and Second DCA reversed several cases which had been dismissed based on Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).  Note: in Shelton v. Secretary, Dept. of Corrections, No. 11-13515, 2012 WL 3641008 (11th Cir. Aug. 24, 2012), the United States Court of Appeals for the Eleventh Circuit reversed the District Court’s grant of federal habeas relief.  You can read my previous post on the Eleventh Circuit opinion here.

For those criminal defense and criminal appeals attorneys who are monitoring the Padilla retroactivity issue, in Litchmore v. State, No. 2D12-800, the Second DCA certified a question of great public importance to the Florida Supreme Court as to the retroactivity of Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), in post-conviction proceedings.  The issue remains pending in the Florida Supreme Court.  You can search the docket for State v. Hernandez, No. SC11-1357, by clicking here.

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

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