170 So. 3d 9
Fla. Dist. Ct. App.2015Background
- Appellant Nely Yamileth Yanez pleaded guilty to public assistance fraud, received a withhold of adjudication and three years probation.
- She filed a Rule 3.850 motion claiming counsel failed to advise her that the plea could subject her to deportation, invoking Padilla v. Kentucky.
- The trial court summarily denied relief, relying on Cano v. State, because Yanez was unlawfully present in the U.S. when she pleaded.
- Yanez alleged the offense could be a crime involving moral turpitude and thus deportable, and also admitted she was removable under separate statutory grounds.
- The State argued (and the court found) that because Yanez was already subject to removal based on unlawful presence, she could not show prejudice from counsel’s misadvice.
- The Second District affirmed, holding that unlawful presence precludes establishing Padilla prejudice where removal would have occurred regardless of the plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel rendered ineffective assistance by failing to advise that the plea could cause deportation under Padilla | Counsel failed to advise that the plea made her deportable; Padilla requires such advice | Counsel's misadvice caused no prejudice because Yanez was already removable due to unlawful presence | Denied: even if deficient, no prejudice where defendant already subject to removal |
| Whether a defendant unlawfully present can satisfy Padilla prejudice prong | Padilla prejudice can exist if plea increases deportation risk | A defendant unlawfully present lacks a legitimate expectation to remain; prejudice cannot be shown | Held: unlawful presence bars establishing prejudice for Padilla claim |
| Whether speculative possibility of discretionary relief (e.g., cancellation/adjustment) suffices for prejudice | Yanez argued potential eligibility for relief could mean plea mattered | Discretionary relief is speculative and insufficient to show a rational choice to reject plea | Held: speculative relief is not proper basis for Padilla prejudice |
| Whether Cano criteria apply when defendant received generic Rule 3.172 warning | Yanez contended generic warning insufficient under Padilla | Court applied Cano: lawful presence at plea is prerequisite to Padilla relief among other factors | Held: Cano's approach supports denying relief where defendant was unlawfully present |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about deportation consequences of a plea)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice in plea context requires reasonable probability defendant would have gone to trial)
- Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013) (framework for Padilla claims when standard Rule 3.172 warning was given; lawful presence required to show prejudice)
- Odegaard v. State, 137 So. 3d 505 (Fla. 2d DCA 2014) (applying Strickland/Hill standards to plea-based ineffective assistance claims)
- Hernandez v. State, 124 So. 3d 757 (Fla. 2012) (decision to reject plea must be rational to satisfy Padilla prejudice)
- Facey v. State, 143 So. 3d 1003 (Fla. 4th DCA 2014) (discussing crimes of moral turpitude and potential removal consequences)
- Ibarra v. State, 125 So. 3d 820 (Fla. 4th DCA 2013) (illegal alien has no legitimate expectation to remain; Padilla prejudice not shown)