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SUPREME COURT OF FLORIDA Powered By Docstoc
					                               IN THE

                 SUPREME COURT OF FLORIDA



 JOSE MARTINEZ FLORES,                  CASE NO.

                 Appellant

 v.                                     FOURTH DCA No. 4D-08-3866



 STATE OF FLORIDA,                      L.T. NO. 98-22000-CF-10A

                 Appellee.




           JURISDICTIONAL BRIEF OF THE PETITIONER




Thomas A. Kennedy, Attorney
Counsel for Appellant
Thomas A. Kennedy, P.A.
Florida Bar No. 0528757
1426 21st Street
Vero Beach, FL 32960-3485
(772) 299-5990/299-5995 (fax)
tomaskennedy@aol.com
Counsel for Petitioner, JOSE MARTINEZ FLORES
                                  A. TABLE OF CONTENTS                                                                 Page


A. TABLE OF CONTENTS ................................................................................... ii

B. TABLE OF CITATIONS .................................................................................. iii

        1. Cases ........................................................................................................ iii

        2. Other Authority........................................................................................ iii

C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS ........... 1

D. SUMMARY OF ARGUMENT ......................................................................... 4

E. JURISDICTIONAL STATEMENT ................................................................... 5

F. ARGUMENT AND CITATIONS OF AUTHORITY ....................................... 6

        The decision below expressly and directly conflicts with
        Hernandez v State, slip op., No. 3D10-2462 (Fla. 3rd DCA,
        April 6, 2011), concerning whether an advisement pursuant
        Fla.R.Crim.P. 3.172(c)(8) “cures” an the erroneous advice of
        counsel concerning the immigration consequences of a plea....................... 6
G. CONCLUSION ................................................................................................ 10

H. CERTIFICATE OF SERVICE ........................................................................ 11

I. CERTIFICATE OF COMPLIANCE ................................................................ 11




                                                              ii
                              B. TABLE OF CITATIONS                                                                 Page
    1. Cases

Bermudez v State, 603 So. 2d 657 (3rd DCA 1992)......................................... 2, 3, 6
Edwards v State, 393 So. 2d 597 (Fla. 1981) ......................................................... 7
Flores v State, 57 So. 3d 218 (Fla. 4th DCA 2010) .............................................. 4,7
Gideon v Wainright, 372 U.S. 335, 83 S. Ct. 792 (1963) ....................................... 6
Ginebra v State, 511 So. 2d 960 (Fla. 1987 ........................................................... 7
Hernandez v State, 36 Fla. L. Weekly D 713 (Fla. Dist. Ct. App. 3d Dist. Apr. 6,
2011) ........................................................................................................... 3,4,5,6,9
Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366 (1985)........................................ 6
Padilla v Kentucky, 130 S. Ct. 1473 (2010) ........................................................ 1-9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 205 (1984)............................. 6


2. Other Authority

United States Constitution, Amendment VI........................................................ 8,11

Art. V, § 3(b)(3), Fla. Constitution ...................................................................... 4,5

F.S. 90.801(2), ...................................................................................................... 22

                                                   Florida Rules

Florida Rule of Criminal Procedure 3.172(c) (8) ....................................... 2,3,4,7,8

Florida Rule of Appellate Procedure 9.030 ......................................................... 4,5




                                                             iii
  C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS

      On October 30, 1998 Jose Martinez Flores (hereinafter “Petitioner Flores”)

was arrested for felony possession of cocaine and DUI. Following an unsuccessful

effort to defer prosecution and a five-month pretrial detention, on April 7, 2008

Petitioner followed the misadvice of his counsel that a plea to the amended charge

of possession of paraphernalia in exchange for a time-served disposition would not

be subject him to deportation or removal.       Counsel was wrong and removal

proceedings were initiated against Petitioner based on that conviction.

      Petitioner timely sought post conviction and testified at his post conviction

motion that had he known that paraphernalia was considered the same as cocaine

possession for immigration purposes, he would not have pleaded as he did and

would have insisted on a trial. Flores was advised during the plea colloquy that his

plea may result in his deportation. He admitted that he understood what the judge

said but did not believe this warning applied to him personally. He thought this

was something the judge had to say to everyone and relied on what his attorney

had told him instead. The Post Conviction Court denied relief finding that the

advice of trial counsel was not ineffective because the case cited by the Petitioner

at the hearing confirming the erroneousness of counsel’s advice was decided after

the plea was taken and trial counsel can’t be ineffective for providing inaccurate

advice before the issuance of a change in the law.
                                         1
      Petitioner appealed the Post Conviction Court’s ruling and the Fourth

District Court reversed the Post Conviction Court holding that “[t]he trial court's

conclusion that there was a change in law which counsel could not have anticipated

was incorrect.” See slip opinion p. 2. 1 On July 14, 2010, the Fourth District Court

nevertheless affirmed the denial of relief adopting for the first time the reasoning

of the Third District Court in Bermudez v State, 603 So. 2d 657 (3rd DCA 1992)

that counsel’s misadvice was “cured” by the Fla. R. Crim. P. 3.172(c)(8) plea

advisement of the court.

        While this appeal was pending before the Fourth District Court, on March

31, 2010, the United States Supreme Court decided the landmark case of Padilla v

Kentucky, 130 S. Ct. 1473 (2010) in which that Court recognized an immigrant

defendant’s right, pursuant to the United States Sixth Amendment’s Right to

Counsel, to be correctly advised of the “succinct and straightforward”

consequences of a plea to criminal charges, see Padilla @ 1483. The Fourth

District Court considered the application of Padilla on the instant appeal and

distinguished this case from Padilla as Mr. Padilla was subject to removal based


1
   Two other issues were not addressed by the Fourth District Court; 1) whether
Petitioner’s wife's testimony about the legal advice counsel had given was hearsay,
and 2) whether the Post Conviction Court should have granted a request to reopen
the evidentiary hearing to take testimony from the prosecutor who disclosed after
the hearing and oral ruling certain statements of trial counsel which corroborated
Petitioner’s testimony at the hearing.
                                         2
on a drug trafficking charge while Mr. Flores was removable based on a mere drug

conviction. The Fourth District adopted the rationale of Bermudez and held that

the misadvice was “cured” by the trial court’s Rule 3.172(c)(8) immigration

advisement.    The Fourth District did not consider the effect of Padilla on

Bermudez continuing viability.

      Mr. Flores unsuccessfully moved for rehearing asking for the opportunity to

brief the adoption of the Bermudez rationale in light of Padilla, as briefing in this

matter had concluded prior to the issuance of the Padilla decision. The Fourth

District Court, however allowed participation by Amicus organizations; the Florida

Association of Criminal Defense Lawyers and the American Immigration

Attorney’s Association – National and South Florida Chapter.

      While this matter was pending rehearing in the Fourth District, the Third

District Court over-ruled its’ 19 year-old holding in Bermudez based on Padilla

and certified conflict with this matter in Hernandez v State, 36 Fla. L. Weekly D

713 (Fla. Dist. Ct. App. 3d Dist. Apr. 6, 2011).

In over-ruling the Bermudez decision that the Fourth District followed in this case,

the Third District certified conflict with this decision on that issue and certified the




                                           3
issue as also involving great public importance, see Hernandez @ sec. II. 2 Mr.

Flores submitted Hernandez as supplemental authority to the Fourth District in

support of his request for rehearing and the rehearing was immediately denied.

      Petitioner believes the Fourth District Court misapplied Padilla for some of

the reasons stated in the Hernandez opinion. Petitioner agrees with the Third

District Court that there is express and direct conflict and the issue presented

herein is of great public importance and therefore seeks the discretionary review of

this Honorable Court pursuant to Art. V, § 3(b)(3), Fla. Const.; Fla. R. App. P.

9.030(a)(2)(A)(iv).

                       D. SUMMARY OF ARGUMENT

      This Petition seeks the discretionary review of Flores v State, 57 So. 3d 218

(Fla. 4th DCA 2010). The Third District Court of Appeals in Hernandez has

certified to this Court 3 the question decided by the Fourth District here; that the

plea court’s Rule 3.172(c)(8) advisement “cures” any misadvice that Mr. Flores

may have received from counsel.       The Third District also certified the same

question as involving great public importance, see Appendix pp. . Petitioner



2
   The Third District also certified the issue, not applicable to Mr. Flores, of the
retroactivity of Padilla to cases final before the issuance of Padilla on March 31,
2010.
3
   Notice of discretionary jurisdiction was filed by Hernandez in that case on May
5, 2011, but extensions of time were also granted for the parties to seek rehearing.
                                         4
agrees with the Third District and seeks the discretionary jurisdiction for the

reasons advanced in the Hernandez decision and further reasons expressed here.

      The decision by the Fourth District Court below was the first application in

Florida of the landmark United States Supreme Court case of Padilla v Kentucky.

While Padilla defined the obligation on defense counsel the ruling by the Fourth

District Court here suggests Padilla may not apply or can effectively be substituted

where the judicial immigration advisement is given. The Padilla opinion itself

states that advice such as that contained in the Rule 3.172(c)(8) would not be

sufficient to satisfy counsel’s obligation, in a case such as this, where the

immigration consequences are “succinct and straightforward.” See Padilla @ 296.

      Jurisdiction is appropriately exercised to resolve the conflict and promote

compliance with the requirements of Padilla.

                      E. JURISDICTIONAL STATEMENT

The Court has discretionary jurisdiction to review a decision of a district court of

appeal that expressly and directly conflicts with a decision of another district court

of appeal on the same point of law. See Art. V, § 3(b)(3), Fla. Const.; Fla. R. App.

P. 9.030(a)(2)(A)(iv).




                                          5
            F. ARGUMENT AND CITATIONS OF AUTHORITY

The decision below expressly and directly conflicts with Hernandez v. State,

36 Fla. L. Weekly D 713 (Fla. Dist. Ct. App. 3d Dist. Apr. 6, 2011), concerning

whether a plea court’s advisement pursuant to Rule 3.172(c)(8) “cures” the

lack of advice or misadvice of counsel which would otherwise entitle the

misled defendant to withdraw his plea, pursuant to Padilla v. Kentucky.

      Padilla may be the most significant constitutional right to counsel case since

Gideon v Wainright, 372 U.S. 335, 83 S. Ct. 792 (1963), decided almost 50 years

ago. Gideon recognized the right to counsel in Florida and the nation at large as

necessary “to insure fundamental human rights of life and liberty,” id @ 343,804.

Padilla recognized an immigrant defendant’s entitlement under the United States

Constitutions VI Amendment to accurate advice concerning immigration

consequences of a criminal plea. The U.S. Supreme Court said in Padilla,

      It is quintessentially the duty of counsel to provide her client with
      available advice about an issue like deportation and the failure to do
      so "clearly satisfies the first prong of the Strickland analysis." Hill v.
      Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)
      (White, J., concurring in judgment).
Padilla @ 1484.
      The Fourth District Court considered Padilla but adopted the theory of

Bermudez v State that purports to “cure” any misadvice or lack of advice where a

                                          6
Rule 3.172(c)(8) judicial advisement is given. The Fourth District necessarily

concluded that the accurate advice requirement of Padilla can be satisfied or

substituted with the terms of the Rule. The Bermudez decision relied on Ginebra v

State, 511 So. 2d 960 (Fla. 1987) which over-ruled Edwards v State, 393 So. 2d

597 (Fla. 1981), held “that counsel's failure to advise his client of the collateral

consequence of deportation does not constitute ineffective assistance of counsel.”

Thus Padilla has over-ruled Ginebra and returned to the principle announced in

Edwards requiring correct advice be given in immigration consequences.

      The Third District Court in Hernandez disagreed with the Court below and

certified conflict on this very question. In Hernandez, the Third District held that

Padilla has now recognized a requirement that accurate advice must be given to

guilty-pleading immigrants.

      But this orderly landscape has been repainted. It is now the law in this
      and every other state that constitutionally competent counsel must
      advise a noncitizen/defendant that certain pleas and judgments will,
      not "may," subject the defendant to deportation. We must respectfully
      disagree with the existing panel decision of the Fourth District in
      Flores v. State because in our view 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.
                                         7
        We anticipate that Rule 3.172(c)(8) will require an amendment to
        comport with the holding in Padilla.
Hernandez @ sec. IV.
        The Padilla opinion itself suggests that advice such as that contained in the

Rule 3.172(c)(8) would not be sufficient to satisfy counsel’s obligation, in a case

such as the instant matter, where the immigration consequences are “succinct and

straightforward.” See Padilla @ 296. The Padilla Court considered and rejected

Justice Alito’s generic advice requirement which is materially comparable to that

required by the Florida Rule 3.172(c)(8). See concurrence of Justice Alito, @

1494.

        In addition, silence alone is not enough to satisfy counsel's duty to
        assist the client. Instead, an alien defendant's Sixth Amendment right to
        counsel is satisfied if defense counsel advises the client that a
        conviction may have immigration consequences, that immigration
        law is a specialized field, that the attorney is not an immigration
        lawyer, and that the client should consult an immigration specialist if
        the client wants advice on that subject. Emphasis supplied.
The Padilla Court instead required the advice to be accurate, “when the deportation

consequence is truly clear, as it was in this case, the duty to give correct advice is

equally clear,” see Padilla @ 1483.4


4
  The removal statute cited in Padilla v Kentucky is precisely the same statute that
subjected Mr. Flores to removal, 8 U.S.C. § 1227(a)(2)(B), see footnote 1, Padilla
v Kentucky.
                                           8
      Clarity for the criminal defense practitioner is paramount in fulfilling the

obligation recognized in Padilla. Leaving the effect of these decisions unsettled in

the District Courts may dissuade rather than encourage the kind of advice required

by Padilla. The warning that is the core of the conflict between these District

Courts and the disputed point of law is given every day in guilty pleas all over the

state. With Florida’s immigrant population amounting to approximately 20% there

can be no doubt that, based on this decision that immigrant’s are pleading to

offenses each day where their right to accurate advice, has not been fully given.

There is an imminent need to insure that counsel’s obligation announced in Padilla

must be carried out regardless of how the conflict is resolved. Adding an element

of predictability for the criminal defense practitioner will help insure that

defendant’s right o effective assistance is protected.

      In a state such as Florida, where recent immigrants comprise a significant

proportion of our state’s population, Padilla has the potential to effect thousands of

cases, defendants, families, and communities. An early and definitive application

of the Padilla decision by this court is necessary to avoid disparate and divergent

outcomes that cause rather than alleviate unnecessary litigation.




                                           9
                               G. CONCLUSION.

This case presents an important issue that potentially has an effect on numerous

criminal cases in this state. The Court has discretionary jurisdiction to review the

decision below and Petitioner Flores prays that the Court will exercise its

discretion and consider the merits of his argument.

Dated this 21st day of May, 2011.




                                __________________________________
                                Thomas A. Kennedy, Attorney
                                Counsel for Appellant




                                         10
                       H. CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing instrument has

been furnished to:

Assistant Attorney General Mitchell Egber,
Office of the Attorney General, State of Florida,
1515 N. Flagler Drive, 9th Floor,
West Palm Beach, FL 33401-3432,

by Fedex delivery this 21st day of May, 2011.


                      I. CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this computer-generated brief is submitted in Times
New Roman 14-point font.



                                RESPECTFULLY, SUBMITTED,




                                __________________________________
                                Thomas A. Kennedy, Attorney
                                Counsel for Appellant
                                Thomas A. Kennedy, P.A.
                                Florida Bar No. 0528757
                                1426 21st Street
                                Vero Beach, FL 32960-3485
                                (772) 299-5990/299-5995 (fax)
                                tomaskennedy@aol.com




                                         11

				
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