How a Plea Can Get You Deported

Here’s a few things you may, or may not, know about Orlando’s criminal justice system. First, quite a few cases end in some sort of plea agreement. Second, some of these defendants are not citizens. So, it doesn’t take a rocket scientist to figure out that a plea to a criminal charge can lead to deportation. But the problem is, deportation is not triggered by all criminal charges in all cases, and not all criminal defense attorneys understand the deportation consequences of entering a plea. Often, defendants are getting bad advice on this issue. When this happens, its time to hire some “other” attorney, and attempt to ‘undo’ the plea that led to deportation in the first place.

As you know, we wouldn’t discuss a topic like “deportation as a result of a criminal plea” without giving up a real world example, right? Here it is: O’Neill v. State, 2012 WL 1959460 (Fla.App. 2nd DCA 2012). O’Neill was not a United States citizen, and his criminal defense attorney advised him to enter a no contest plea to three separate felony charges–possession of cocaine, sale and delivery of cocaine, and grand theft. The negotiated plea called for 364 days jail, followed by 2 years of probation. O’Neill entered this plea because his attorney advised him that any sentence under one year would not trigger deportation consequences.

So, O’Neill gets out of jail, and consults an immigration attorney. The immigration attorney informs him that–in fact–he will be deported for the sale of cocaine charges. Basically, O’Neill’s defense attorney was wrong. He never would have entered the plea but for his attorney’s assurances that he would not be deported. As such, O’Neill went back to court after serving all his jail time, and requested that the court permit him to withdraw his plea and allow him to have a jury trial on each of his three charges.

The prosecution fought against the withdrawal of the pleas, as expected. After all, it had been almost two years since the cases first started, and its tough to restart a prosecution that late in the game (maybe they had already destroyed the evidence, lost their witnesses, etc). The State further argued that, when O’Neill entered his no contest plea, he was warned by the judge that he “could be” deported. The problem with this argument is that the judge was wrong. The truth of the matter is that O’Neill “will be” deported. The second district court of appeals in Florida cited the United States Supreme Court’s decision in Padilla v. Kentucky, noting that “when the deportation consequence [of a plea] is truly clear, … the duty to give correct advice is equally clear.” 130 S.Ct. at 1483 (2010). The court also quoted a Florida case to find that “the ruling in Padilla does not turn on the fact that the Kentucky trial court and plea colloquy failed to include a “may subject you to deportation” type of warning. It turns on the fact that a “may” warning is deficient (and is actually misadvice) in a case in which the plea “will” subject the defendant to deportation.” Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3rd DCA 2011).

Even though O’Neill was denied his request to withdraw his pleas in the original court, and denied his first appeal–this second bite at the appeal was the charm. Based on the analysis above, the Second DCA granted O’Neill’s request for further review of his claim of prejudice based upon the bad advice of his attorney. Please note however, our Florida appeals courts are not in agreement on this issue. The court in O’Neill points out that their decision conflicts with rulings from the Fourth District (Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010)), and our own Fifth District (Castano v. State, 65 So.3d 546 (Fla. 5th DCA 2011). And, O’Neill is not out of the woods yet. If the prosecution can find him guilty of the sale of cocaine charge, my guess is that the deportation proceedings will start afresh. But hey, its not over, the fight continues.

“Over? Did you say ‘over’? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no! ”

― John Belushi in “Animal House” (of course, couldn’t resist)