Yanez v. State, 2D13–5017.

• Decision Date: 17 April 2015
• Docket Number: No. 2D13–5017.,2D13–5017.
• Citation: 170 So.3d 9
• Parties: Nely Yamileth YANEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

170 So.3d 9

Nely Yamileth YANEZ, Appellant
v.
STATE of Florida, Appellee.

No. 2D13–5017.

District Court of Appeal of Florida, Second District.

April 17, 2015.
Rehearing Denied June 10, 2015.

170 So.3d 10

Michelle Borton and Paul Palacios, Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appellee.

Rebecca Sharpless of Immigration Clinic, University of Miami School of Law, Coral Gables, for Amici Curiae, The American Immigration Lawyers Association, Central and South Florida Chapter, and The National Immigration Project of The National Lawyers Guild.

Opinion

CASANUEVA, Judge.

Nely Yamileth Yanez appeals an order denying her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion alleged that her attorney failed to warn her that her guilty plea to public assistance fraud subjected her to deportation, and therefore, the attorney rendered ineffective assistance of counsel pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).¹ Relying on Cano v. State, 112 So.3d 646 (Fla. 4th DCA 2013), the trial court summarily denied the motion based on the fact that Ms. Yanez was not lawfully in this country when she entered the plea. We agree with Cano and Rosario v. State, 165 So.3d 672, (Fla. 4th DCA Jan. 7, 2015), and conclude that because Ms. Yanez was in this country unlawfully, she cannot show that she was prejudiced by counsel's misadvice as she was already subject to deportation before she entered the plea.

As this court noted in Odegaard v. State, 137 So.3d 505, 507 (Fla. 2d DCA 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ), in order to establish a claim of ineffective assistance of counsel, “a defendant [must] demonstrate first that counsel's performance was deficient and second that the deficient performance prejudiced the defense.” To meet the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). In the context

170 So.3d 11

of a plea, a defendant meets the prejudice requirement only where she can demonstrate “a reasonable probability that, but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A defendant must establish “that a decision to reject the plea bargain would have been rational under the circumstances.” Hernandez v. State, 124 So.3d 757, 762 (Fla.2012) (quoting Padilla, 559 U.S. at 372, 130 S.Ct. 1473 ).

In Padilla, 559 U.S. at 374, 130 S.Ct. 1473, the Court held that defense counsel must inform her client if a plea involves a risk of deportation. In that case, the Court held that the appellant did not receive...