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3rd DCA Denies Padilla Retroactivity in Hernandez Case

The Florida Third District Court of Appeal recently ruled in Hernandez v. State, that the U.S. Supreme Court’s decision in Padilla v. Kentucky should not be applied retroactively. The Padilla Court held that a criminal defendant who entered a plea to a criminal charge, but was not properly advised, or advised at all, of the immigration consequenses of his or her plea, could withdraw his plea to the criminal charge if certain conditions were met. However, the Padilla Court did not specifically state whether this applied to cases prior to the Padilla decision (March 2010). The 3rd DCA stated in Hernandez that it appeared that the Padilla Court meant for the decision to be retroactive and thus apply to final convictions prior to March 31, 2010, but because the Court did not specifically state that the decision should be applied retroactively, the 3rd DCA refused to hold that it did, in fact, apply retroactively. The 3rd DCA did certify the issue to the Florida Supreme Court.
This decision will ultimately be decided by the Florida Supreme Court and the U.S. Supreme Court. It has far reaching consequenses for non U.S. citizens who have entered pleas of guilty or no contest and been sentenced in a criminal case. If the Florida Supreme Court or the U.S. Supreme Court agrees with the 3rd DCA, immigrant clients who have relied on the incorrect advice of their criminal lawyer in pleading to a criminal charge, and now are facing deportation because of that advice, will have no remedy to go back and challenge that criminal conviction.