Jermaine Facey v. State
143 So. 3d 1003
Fla. Dist. Ct. App.2014Background
- Facey, a Jamaican citizen and U.S. lawful permanent resident, pleaded guilty (with adjudication withheld) to third-degree grand theft (loss $459.37) on Jan 15, 2013 and received 18 months probation.
- Immigration authorities initiated removal proceedings in Aug 2013 based on that conviction.
- Facey filed a Florida Rule 3.850 motion asserting ineffective assistance of counsel under Padilla v. Kentucky, claiming counsel failed to advise him about immigration consequences or to consult an immigration attorney, and that he would not have pleaded otherwise.
- The written plea form Facey signed warned the plea "will" result in deportation; the plea colloquy confirmed Facey discussed immigration consequences with counsel and declined to consult an immigration attorney.
- The trial court denied relief; Facey appealed, arguing counsel’s failure to adequately warn about deportation prejudiced him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel ineffective under Padilla for failing to advise about immigration consequences? | Facey: counsel told him nothing about immigration risks and did not advise consultation; he would not have pleaded if properly advised. | State: Record (plea form and colloquy) shows Facey was warned, discussed consequences with counsel, and declined further consultation; no prejudice shown. | Denied — record conclusively refutes ineffective assistance claim. |
| Did Padilla require counsel to give a definitive warning where deportation consequences are not "automatic"? | Facey: (implicitly) Padilla entitles him to relief because counsel’s warning was inadequate. | State/Court: Padilla applies only where deportation is "truly clear" and automatic; where law is unclear, advising that plea "may" carry risk is sufficient. | Court: Padilla does not extend to require definitive advice here; a "may/could" warning suffices. |
| Was the trial court’s plea colloquy compliant with Fla. R. Crim. P. 3.172(c)(8)? | Facey (on appeal via counsel): the court’s warning that plea "could subject" him to deportation was insufficient. | State: The colloquy satisfied the rule and shows Facey understood deportation risk. | Court: Colloquy satisfied Rule 3.172(c)(8); new contention was unpreserved and rejected. |
| Is automatic deportation clear from the statute for third-degree grand theft? | Facey: alleged deportation consequence severe (but did not show it was automatic). | State/Court: Grand theft is not shown to be an aggravated felony; deportation is not automatic and discretionary relief may remain. | Court: Not an aggravated felony on the record; automatic deportation not established. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform noncitizen when deportation consequences are clear and automatic; otherwise a general warning of risk suffices)
- Hernandez v. State, 124 So. 3d 757 (Fla. 2012) (Padilla limited to situations where deportation is truly clear; an equivocal warning does not categorically bar a claim)
- Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013) (explains defendant's burden when only "may/could" warning was delivered)
- Coleman v. State, 718 So. 2d 827 (Fla. 4th DCA 1998) (Sixth Amendment guarantees reasonably effective counsel, not perfect or error-free representation)