Bermudez v. State, 91-2641

• Decision Date: 11 August 1992
• Docket Number: No. 91-2641,91-2641
• Citation: 603 So.2d 657
• Parties: Jose BERMUDEZ, Appellant, v. The STATE of Florida, Appellee. 603 So.2d 657, 17 Fla. L. Week. D1886
• Court: Florida District Court of Appeals

Page 657

603 So.2d 657

Jose BERMUDEZ, Appellant, v. The STATE of Florida, Appellee.

No. 91-2641.

603 So.2d 657, 17 Fla. L. Week. D1886

District Court of Appeal of Florida,

Third District.

Aug. 11, 1992.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Barbara Arlene Fink, Asst. Atty. Gen., for appellee.

Before HUBBART, FERGUSON and COPE, JJ.

FERGUSON, Judge.

Bermudez contends that the court's warning to him, during a plea colloquy, that he could be deported as a result of his guilty plea, did not cure the affirmative misadvice given him by his attorney that nothing would happen to his immigration status. We disagree and affirm the trial court's denial, without an evidentiary hearing, of the motion for post-conviction relief.

The evidence of guilt was overwhelming. Bermudez executed two consent-to-search forms which led to the recovery of a kilo of cocaine in his home and another kilo in his automobile. After being warned of his right to remain silent and the right to counsel, he admitted to owning the contraband. Facing a maximum sixty-year sentence if convicted on both counts, the defendant and the State negotiated a thirty-year sentence in exchange for a guilty plea.

During the plea colloquy, the trial judge inquired of the defendant, pursuant to Florida rule of Criminal Procedure 3.172(c)(viii), whether he understood that he could be deported to his native land by reason of the guilty plea. ¹ He answered, under oath, "Yes, I do." In this appeal he contends that he was entitled to an evidentiary hearing on a motion for post-conviction relief on the basis of allegations that his attorney was ineffective in advising him that his immigration status would not be affected by the plea.

In State v. Ginebra, 511 So.2d 960 (Fla.1987), the supreme court held that a defendant's lack of knowledge that a plea of guilty may lead to deportation does nothing to undermine the plea itself which is, in effect, a confession in open court as to the facts alleged, citing United States v. Sambro, 454 F.2d 918, 921 (D.C.Cir.1971). See also State v. Fundora, 513 So.2d 122 (Fla.1987) (defense counsel's failure to inform defendant of possible deportation is not ineffective assistance of counsel because deportation is only a "collateral consequence" of the plea). Expressly not addressed in Ginebra was the legal effect of affirmative misadvice from counsel concerning deportation. In State v. Sallato, 519 So.2d 605 (Fla.1988), the court held that where a defendant was affirmatively misadvised, the court should conduct a new hearing to determine whether the ramifications were such that the defendant should be allowed to withdraw the plea.

A year after Ginebra was decided, the court adopted In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988), which added subsection (c)(viii), requiring judges presiding at plea colloquies to inform the accused that a guilty or nolo contendere plea may subject him to deportation. There is no case authority on the effect of the court's instruction in accordance with the above rule where the defendant's counsel has given misadvice. Compare Dugart v. State, 578 So.2d 789 (Fla. 4th DCA 1991) (defendant was entitled to evidentiary hearing regarding voluntariness of his guilty plea where he relied on affirmative misinformation of his attorney regarding deportation consequences of plea and where the trial court failed to comply with rule 3.172(c)(viii) to advise d...