FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Jalal Harb, Judge.
Brandon J. Rafool of Brandon J. Rafool, LLC, Winter Haven,
Jo Bondi, Attorney General, Tallahassee, and Jeffrey H.
Siegal, Assistant Attorney General, Tampa, for Appellee.
Blackwood appeals the denial of his Florida Rule of Criminal
Procedure 3.850 motion for postconviction relief after an
evidentiary hearing. Blackwood, a Jamaican citizen legally
present in the United States, alleged that his trial counsel
failed to warn him that he would be subject to automatic
deportation as a result of entering a plea to aggravated
assault with a deadly weapon and that had he known of the
deportation consequences, he would not have entered the plea
but instead would have proceeded to trial. Because the only
evidence provided at the evidentiary hearing supported
Blackwood's sworn assertions in his postconviction
motion, we reverse the postconviction court's order
Padilla v. Kentucky, 559 U.S. 356 (2010), counsel
has a duty to provide correct advice about the deportation
consequences of a plea when those consequences are clear from
the relevant immigration statute. Id. at 369
("[W]hen the deportation consequence is truly clear . .
. the duty to give correct advice is equally clear.").
On appeal, the State concedes that Blackwood's plea to
aggravated assault with a deadly weapon made him eligible for
automatic deportation. See 8 U.S.C. §
1227(a)(2)(A)(iii) (2015) ("Any alien who is convicted
of an aggravated felony at any time after admission is
deportable."); § 1101(a)(43)(F) (defining an
aggravated felony as "a crime of violence . . . for
which the term of imprisonment [is] at least one year"
(footnote omitted)); 18 U.S.C. § 16(a) (2015) (defining
a crime of violence as "an offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another").
Blackwood's trial counsel testified at the evidentiary
hearing that he did not advise Blackwood that he would be
subject to automatic deportation as a result of the plea. The
postconviction court correctly found that counsel's
performance was deficient.
postconviction court also found that Blackwood would not have
entered the plea had he been accurately advised of the
deportation consequences by his trial counsel based on
Blackwood's sworn statements in his postconviction motion
and his testimony at the evidentiary hearing. However, the
court denied the motion after concluding that Blackwood had
not proven that he was subject to automatic deportation under
the federal immigration statute. The postconviction court
relied on the test outlined by the Fourth District in
Cano v. State, 112 So.3d 646, 648 (Fla. 4th DCA
2013), which requires a postconviction movant to establish
(1) that the movant was present in the country lawfully at
the time of the plea; (2) that the plea at issue is the sole
basis for the movant's deportation; (3) that the law, as
it existed at the time of the plea, subjected the movant to
"virtually automatic" deportation; (4) that the
"presumptively mandatory" consequence of
deportation is clear from the face of the immigration
statute; (5) that counsel failed to accurately advise the
movant about the deportation consequences of the plea; and
(6) that, if the movant had been accurately advised, he or
she would not have entered the plea.
order to succeed on a claim of ineffective assistance of
counsel, a movant "must show that counsel's
performance was deficient [and] . . . that the deficient
performance prejudiced the defense." Hernandez v.
State, 124 So.3d 757, 762 (Fla. 2012) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In this case, the postconviction court found that Blackwood
had met this burden but imposed an additional requirement
that he also prove that he was subject to automatic
deportation under the federal immigration statute. This was
Cano, the Fourth District addressed the facial
sufficiency of a motion denied under Flores v.
State, 57 So.3d 218 (Fla. 4th DCA 2010), decision
quashed, 134 So.3d 447 (Fla. 2014), which held that
giving defendants the rule 3.172(c)(8) warning that they may
be subject to deportation as a consequence of entering a plea
cured the prejudice to all defendants alleging a claim under
Padilla. 112 So.3d at 647-48. In Hernandez,
the Florida Supreme Court abrogated the holding in
Flores, explaining that an equivocal warning in a
plea colloquy that a plea may or may not result in
deportation "cannot by itself refute a claim that [a
defendant] was unaware of presumptively mandatory
consequences." 124 So.3d at 763. Under
Hernandez, even when defendants have received the
warning required by rule 3.172(c)(8) from the court during
their plea colloquy, they may still show prejudice if they
were subject to automatic deportation under the federal
immigration statutes. Id. Thus, Cano is
limited to its facts and should not be read to impose an
additional evidentiary burden on all defendants asserting
ineffective assistance of counsel claims under
record reflects that the trial court did not give Blackwood a
rule 3.172(c)(8) warning during his plea colloquy. Therefore,
it is irrelevant whether Blackwood is subject to automatic
deportation under the federal immigration statutes; there was
no record evidence that Blackwood, a noncitizen, received any
warning of potentially adverse immigration consequences
before entering his plea. See Padilla, 559 U.S. at
369. Because the postconviction court found that
Blackwood's counsel was deficient and that Blackwood
would not have entered the plea had he been properly advised
of the deportation consequences, the court should have
granted the motion. Accordingly, we reverse and remand for
the postconviction court to grant the motion and allow
Blackwood to withdraw his plea.
and remanded ...