Flores v. State
| Decision Date | 13 April 2011 |
| Docket Number | No. 4D08–3866.,4D08–3866. |
| Citation | 57 So.3d 218 |
| Parties | Jose Martinez FLORES, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
57 So.3d 218
Jose Martinez FLORES, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08–3866.
District Court of Appeal of Florida, Fourth District.
July 14, 2010.Rehearing Denied April 13, 2011.
[57 So.3d 218]
Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.PER CURIAM.
In 1998, Jose Martinez Flores was charged with possession of cocaine and DUI. He entered drug court but failed to successfully complete the program. A warrant issued for his arrest in March 2000. Flores was arrested on the warrant in November 2007. Immigration and Customs Enforcement (ICE), the federal agency which enforces immigration law, placed a detainer on Flores requesting that he be turned over to their custody upon release. On April 7, 2008, Flores entered a negotiated plea to a lesser misdemeanor offense of possession of drug paraphernalia and was sentenced to time served. Two weeks later, April 21, 2008, ICE sought to deport Flores.
After holding an evidentiary hearing, the lower court denied Flores' timely Rule 3.850 motion which sought to withdraw the plea. Flores alleged that he entered the plea to this reduced, misdemeanor charge because his attorney assured him that, unlike the felony possession of cocaine charge, this misdemeanor conviction would not cause him to be deported.
During the plea colloquy, the judge gave Flores the standard warning that the conviction
[57 So.3d 219]
may result in deportation. Fla. R.Crim. P. 3.172(c)(8) (requiring court to verify before accepting plea that defendant understands “that if he or she pleads guilty or nolo contendere, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service”).
At the evidentiary hearing, Flores admitted that he understood the judge's warning but relied on his attorney's advice instead.1 Flores sought to introduce testimony from his wife that, at or about the time of the plea, she discussed with the attorney her husband's immigration problem and their concern that he not be deported.2 The court ruled this was inadmissible hearsay. Flores' attorney did not testify at the evidentiary hearing. No evidence was presented to dispute Flores' testimony.
The court denied the motion finding that Flores was not credible. The judge did not believe that Flores had difficulty understanding English or that his attorney had given him misadvice which caused him confusion during the plea hearing. The court appears to have agreed with the State's argument that the Rule 3.172(c)(8) warning, advising that the plea may result in deportation, cured any deficiency on the part of counsel and that appellant could not rely on the advice of counsel when it was contrary to what the court advised in the colloquy. Bermudez v. State, 603 So.2d 657 (Fla. 3d DCA 1992).
After the hearing, the prosecutor approached Flores' postconviction counsel and advised that she recalled Flores' attorney telling her during plea negotiations that Flores would not accept a plea to possession of cocaine because it would lead to his deportation. Postconviction counsel brought this to the court's attention and attempted to present testimony from the prosecutor, but the judge did not believe this testimony would change the outcome. The court ruled that Flores was not entitled to relief because the case he cited to show that possession of drug paraphernalia is a deportable offense, Alvarez Acosta v. U.S. Atty. Gen., 524 F.3d 1191 (11th Cir.2008), issued after the plea and constituted a change in law.
Flores moved for rehearing and cited authority establishing, well before the date of his plea, that possession of drug paraphernalia is an offense relating to a “controlled substance” which makes appellant deportable. Luu–Le v. I.N.S., 224 F.3d 911, 914 (9th Cir.2000). See 8 U.S.C. § 1227(a)(2)(B) (providing that any alien convicted of any law...
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