Florida Supreme Court holds that Padilla v. Kentucky Does Not Apply Retroactively

On November 21, 2012, the Florida Supreme Court, the highest court in the State of Florida, issued a decision in the case of Hernandez v. State. It concluded that the U.S. Supreme Court’s decision in Padilla v. Kentucky cannot be applied retroactively in Florida.

In Padilla, the U.S. Supreme Court, the highest court of the land, held that criminal defense counsel had the affirmative duty to investigate and advise clients of the immigration consequences of their criminal pleas. If the criminal defense attorney failed to give proper advice relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea.  A successful motion to vacate a criminal plea is sometimes the only way to prevent a non-U.S. citizen’s removal/deportation from the United States.

Even though the Hernandez decision is a major blow to many individuals who entered a misinformed plea in a Florida court prior to the Padilla decision in 2010, the U.S. Supreme Court is expected to rule on the question of retroactivity early next year in the case of Chaidez v. United States.

It is critical for non-U.S. citizens who have been charged with a crime to contact experienced immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client’s immigration status.

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