Edwards v. State

• Decision Date: 21 January 1981
• Docket Number: No. 79-1991,79-1991
• Citation: 393 So.2d 597
• Parties: Clement Lemmon EDWARDS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 597

393 So.2d 597

Clement Lemmon EDWARDS, Appellant, v. The STATE of Florida, Appellee.

No. 79-1991.

District Court of Appeal of Florida, Third District.

Jan. 21, 1981.

Hersh & Bernstein, David F. Cerf, Jr., Miami, for appellant.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.

REVISED OPINION

DANIEL S. PEARSON, Judge.

We granted Edwards' motion for rehearing. We withdraw our per curiam opinion filed August 12, 1980, and issue this revised opinion reversing the trial court's summary denial of Edwards' motion to vacate his 1977 convictions.

Edwards made two claims for relief below: first, that his plea of guilty to the charges of selling and possessing marijuana was involuntary in that the trial court failed to advise him at the plea proceeding of the possible collateral consequence of deportation ¹; and second, that the failure of his retained counsel to advise him of this consequence rendered his counsel ineffective. Either failure, said Edwards, entitled him to the vacation of his conviction and underlying plea.

We first hold that it is not the responsibility of the trial court to advise a defendant of federal deportation consequences at the time of taking a guilty plea, and the trial court's omission of this advice does not render the plea involuntary. Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976); Michel v. United States, 507 F.2d 461 (2d Cir. 1974). Deportation is a collateral consequence of a plea, Fruchtman v. Kenton, supra, and it is consistently held that courts are not required to advise pleading defendants of collateral consequences. Michel v. United States, supra; Tindall v. United States, 469 F.2d 92 (5th Cir. 1972); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971); Ladner v. Henderson, 438 F.2d 638 (5th Cir. 1971).

But labelling the consequence as collateral does not diminish its significance. Indeed, the penalty of deportation has been recognized as often far more extreme than the direct consequences which may flow from a plea of guilty to an offense. Deportation has been said to be "the equivalent of banishment," Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1947); "a savage penalty," "a life sentence of exile," Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J., dissenting); an event that results in "loss of property or life; or of all that makes life worthwhile," Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 (1922). Because of "the grave nature of deportation," the vagueness doctrine, against which the constitutionality of criminal statutes is tested, has been applied to deportation statutes. Jordan v. DeGeorge, supra. Thus, the consequence of deportation, collateral or not, can be matched in severity only by the prison sentence meted out. ² Our decision today is limited to the unique collateral consequence of deportation.

It is a lawyer's duty to ascertain that his client's plea of guilty is entered voluntarily and knowingly, that is, upon advice which enables the accused to make an informed, intelligent, and conscious choice to plead guilty or not. Edwards v. Estelle, 541 F.2d 1162 (5th Cir.), cert. denied, 430 U.S. 973, 97 S.Ct. 1662, 52 L.Ed.2d 367 (1976); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). A waiver of constitutional rights to be acceptable must be made with sufficient awareness of the relevant circumstances and likely results. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Ignorance of the potential consequences of deportation cannot, in our view, make for an intelligent waiver. See United States v. Shapiro, 222 F.2d 836 (7th Cir. 1955) (where defendant entered a plea of guilty under the belief that he was a United States citizen and not subject to deportation, conviction would be set aside to prevent manifest injustice); People v. Giron, 11 Cal.3d 793, 114 Cal.Rptr. 596, 523 P.2d 636 (1974) (defendant's lack of awareness of deportation consequences constituted good cause for vacating a plea); People v. Wiedersperg, 44 Cal.App.3d 550, 118 Cal.Rptr. 755 (1st Ct.App.1975) (where defendant was not apprised of deportation consequences, petition to set aside conviction on that ground stated a claim for relief). See also United States v. Briscoe, 432 F.2d 1351 (D.C.Cir.1970) ("Under appropriate circumstances the fact that a defendant has been misled as to consequences of deportability may render his guilty plea subject to attack ..."). While we may not impose upon the trial court the obligation to advise the accused of this consequence because "collateral," its "collateralness" is immaterial in measuring the effective assistance of counsel.

"Defense counsel is in a much better position to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger. Rule 11, ³ in our view, was not intended to relieve counsel of his responsibilities to his client." Michel v. United States, supra, 507 F.2d at 466.

The dissent sees some inconsistency in our holding on the one hand that the trial court's failure to advise the defendant of possible deportation consequences does not render the plea involuntary, and on the other hand that counsel's failure may. We do not see that placing the burden of advising the defendant on that person in the system most familiar with the background and status of the defendant, and the possibility or not of deportation, makes for inconsistency. Compare, e. g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (holding that the trial court is under no duty to inquire concerning conflicts in representation, notwithstanding that such conflicts might give rise to a claim of ineffective assistance of counsel). Even as Federal Rule of Criminal Procedure 11 was not intended to relieve counsel of his responsibilities to his client, Michel v. United States, supra, Florida Rule of Criminal Procedure 3.172 provides no immunity to counsel for his derelictions. Cf. Hall v. State, 316 So.2d 279 (Fla.1975) (holding that counsel are ethically bound to see that proper procedural steps are followed in accepting a guilty plea).

This brings us to the dissenter's comment that it must be obvious to any alien defendant that deportation is a possible consequence, and therefore, advice to that effect is, as a matter of law, unnecessary. We think it could as well be said that it must be obvious to every American citizen that he has a right to plead not guilty and maintain his innocence, that he has a right to trial by jury, a right to confront witnesses against him and yet our rules require, see, e. g., Florida Rule of Criminal Procedure 3.172, that these and other equally fundamental rights be diligently explained to every defendant before a plea of guilty waiving such rights is accepted. We simply do not indulge assumptions that even the most basic rights are known or understood, see, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("We will not pause to inquire in individual cases whether the defendant was aware of his rights, without a warning being given"); Montoya v. United States, 392 F.2d 731 (5th Cir. 1968) ("No amount of circumstantial evidence that the person may have been aware (of his rights) will suffice (in lieu of a warning)."), and we see no reason to indulge one in the present context. If upon remand it be shown that Edwards knew of the possible deportation consequence without advice, then so be it. We should not, however, assume the obviousness of this fact.

Thus, to the extent that the trial court summarily denied Edwards' motion on the basis that the consequence of deportation could not, as a matter of law, affect the voluntariness of Edwards' plea, or that such consequence was one which he is presumed to know, or that the failure to advise of this consequence could not give rise to a claim of ineffective counsel, the trial court was in error.

Lastly, since the trial court may have based its summary denial on the proposition that Edwards had no legal right to attack the competence of retained counsel, see, e. g., Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), we point out that the fact that Edwards' counsel was of his own choosing is no longer an impediment to relief. ⁴ Cuyler v. Sullivan, supra; Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980); Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980); Presley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980); Chambers v. State, 388 So.2d 1259 (Fla. 2d DCA 1980); State v. Dukes, 388 So.2d 651 (Fla. 2d DCA 1980).

Accordingly, we hold that Edwards' motion to vacate his conviction and set aside his plea of guilty, insofar as it attacked the ineffectiveness of his retained counsel for failure to advise Edwards of the consequences of deportation, stated a legal ground for relief upon which Edwards is entitled to an evidentiary hearing. At that hearing it will, of course, be incumbent upon Edwards to establish that he was not advised by his counsel and was otherwise unaware of the consequence of deportation; that had he known of this consequence, he would not have entered the plea of guilty; and that such a consequence will actually flow from the conviction. The ineffectiveness of Edwards' counsel is to be judged by the test announced in Meeks v. State, 382 So.2d 673 (Fla.1980), that is, "whether counsel was reasonably likely to render reasonably effective counsel based on the totality of circumstances." 382 So.2d at 675. Notwithstanding that the Meeks test, only recently announced, it to be applied in the hearing to be hereafter held, ⁵ we make clear that the trial court is to decide whether counsel's performance would have been reasonably effective in 1977 when Edwards' plea was entered. See Blatch v. State, supra.

Reversed and remanded.

HUBBART, Chief Judge (dissenting).

I must respectfully dissen...