The Florida Supreme Court has held that the case of Padilla v. Kentucky is not retroactive. The United States Supreme Court held in Padilla that criminal defense counsel had the affirmative duty to investigate and advise their clients of the immigration consequences of their criminal plea. If the criminal defense attorney failed to give proper advise relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea. However, in Florida, under Florida Rule of Criminal Procedure 3.850, a criminal defendant can only challenge convictions that happened within the last two (2) years prior to filing the motion. The question left by the U.S. Supreme Court was whether Padilla was retroactive, applying to convictions that happened prior to the Padilla decision, thus allowing criminal defendants to attack convictions that are more than two years old.
The Florida Supreme Court held in Hernandez v. State, that while a trial court’s pro forma warning to a criminal client that their criminal plea can subject them to immigration consequences is not in and of itself enough to deny a motion to vacate a conviction based on ineffective assistance of counsel, Padilla does not apply retroactively.
This decision is a blow to countless non U.S. Citizens who were provided incorrect or no advice on how their criminal plea could and would lead to their deportation. However, their is a silver lining. The highest court in the land, the United States Supreme Court, should render a decision on this same issue early next year in the case of U.S. v. Chaidez.