Mortimer v. State
96 So. 3d 1060
Fla. Dist. Ct. App.2012Background
- Appellant was convicted in 1970 by a jury of two counts of aggravated assault with a deadly weapon with intent to effect death; adjudication was withheld and he was placed on probation for ten years.
- Forty years later, he sought to vacate the convictions upon learning he faced deportation.
- The trial court denied postconviction relief as untimely and for lack of a valid ineffective-assistance claim; the denial was affirmed on appeal.
- Appellant argued ineffective assistance under Padilla v. Kentucky; the court held Padilla not retroactive and the claim untimely under Florida law.
- Appellant contended counsel failed to request a judicial recommendation against deportation (JRAD); the court found no deficiency since he was not deportable at the time.
- The court discussed AEDPA amendments and Green v. State, emphasizing that late attempts to bring immigration-related claims are governed by two-year finality standards and finality interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Postconviction relief was timely | Appellant argues delayed relief due to immigration status changes. | State argues untimely under Florida rules and Green framework. | Untimely; no valid time exception. |
| Whether Padilla retroactivity applies to render claims timely | Padilla advisory deficiency caused delay; retroactivity should apply. | Padilla not retroactive; cannot excuse lateness. | Padilla not retroactive; no relief. |
| Whether counsel was ineffective for not requesting JRAD | Counsel should have sought JRAD given potential deportability warnings. | No deficiency since appellant was not deportable in 1970 and misadvice could be discovered earlier. | Without merit; no deficient performance. |
| Whether Green’s two-year window applies to immigration claims in postconviction relief | Delay due to immigration status changes should toll time. | Defendant did not raise within two years after conviction; Green applies. | Two-year window applied; claim not timely. |
Key Cases Cited
- Perez v. I.N.S., 116 F.3d 405 (9th Cir.1997) (deportability criteria under pre-AEDPA law)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (non-retroactivity; due process considerations)
- Hernandez v. State, 61 So.3d 1144 (Fla.3d DCA 2011) (Padilla not retroactive in Florida)
- Davis v. State, 69 So.3d 315 (Fla.4th DCA 2011) (Padilla non-retroactive; time-bar analysis)
- Ey v. State, 982 So.2d 618 (Fla.2008) (postconviction time limit runs when conviction final)
- Gusow v. State, 6 So.3d 699 (Fla.4th DCA 2009) (timeliness of postconviction claims under due diligence)
- State v. Green, 944 So.2d 208 (Fla.2006) (two-year window for immigration-consequences claims)
- Peart v. State, 756 So.2d 42 (Fla.2000) (threat of deportation as trigger for relief)
- De Luca v. O’Rourke, 213 F.2d 759 (1954) (legislative retroactivity considerations for deportation laws)