Hardware v. State
185 So. 3d 530
Fla. Dist. Ct. App.2015Background
- Defendant Hardware pleaded no contest to two felonies (carrying a concealed firearm; possession with intent to distribute ~8 grams marijuana) and two misdemeanors; adjudication withheld and placed on one year drug offender probation.
- Shortly after the plea, Hardware received a Notice to Appear in immigration removal proceedings listing three bases for removal: overstayed visa, concealed firearm conviction, and aggravated felony (illicit trafficking related to the marijuana plea).
- After receiving the Notice, Hardware consulted immigration counsel who advised relief was available for the visa/weapon bases but not for the aggravated-felony marijuana plea; an approved family visa petition existed but would be blocked by the aggravated-felony plea.
- Hardware filed a postconviction Padilla claim alleging his criminal counsel failed to advise that the plea carried presumptively mandatory deportation; he asserted he would have gone to trial if properly advised.
- The trial court summarily denied relief, relying on Sinclair and Cano, concluding Padilla relief is barred where the defendant was unlawfully present at plea or where the plea is not the sole basis for deportation.
- The lead opinion affirmed; Judge Emas concurred in result but wrote separately rejecting the bright-line rules in Sinclair and Cano, urging a totality-of-the-circumstances Strickland prejudice inquiry instead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Padilla/Strickland relief is available when the defendant was unlawfully present at the time of plea | Hardware: counsel deficient for failing to advise of deportation; he would have rejected plea | State: Cano and Sinclair bar Padilla claims if defendant was unlawfully present | Court (lead): affirmed denial; concurrence: rejects categorical bar — unlawful presence is a factor, not automatic bar |
| Whether Padilla relief is barred if there is any alternative basis for deportation | Hardware: plea’s deportation consequence was material; would have refused plea | State: Sinclair requires the challenged plea be the sole basis for deportation | Court: affirmed under Sinclair/Cano; concurrence: Sinclair overly broad — alternative bases should not categorically defeat prejudice showing |
| Proper prejudice standard under Strickland for plea-vacatur Padilla claims | Hardware: must show reasonable probability he would have gone to trial but for bad advice | State: outcome of immigration process (alternative basis) negates prejudice | Court: affirmed denial here; concurrence: focus should be whether plea decision would have differed (Hill/Hill–Strickland totality), not ultimate deportation outcome |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise when plea carries presumptively mandatory deportation)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficiency and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for guilty-plea ineffective-assistance claims)
- State v. Sinclair, 995 So.2d 621 (Fla. 3d DCA 2008) (plea must be only basis for deportation to show Padilla prejudice)
- Cano v. State, 112 So.3d 646 (Fla. 4th DCA 2013) (requires lawful presence at time of plea and plea as sole deportation basis for Padilla relief)
- Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008) (precedent requiring movant show plea is only basis for deportation)
- Dumenigo v. State, 988 So.2d 1201 (Fla. 3d DCA 2008) (prior deportable conviction can defeat prejudice showing)
- Grosvenor v. State, 874 So.2d 1176 (Fla.) (totality-of-the-circumstances and focus on whether plea decision would have differed)