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Fourth DCA affirms denial of motion to withdraw guilty plea based on alleged misadvice of counsel as to deportation consequences.  [Added 7/16/10]

    Criminal Defendant was charged with a felony but entered a negotiated plea to a misdemeanor.  During the plea colloquy, the trial judge gave Defendant the "standard warning" required by Fla.R.Crim.P. 3.172(c)(8) that the conviction may result in deportation.  Shortly after his conviction the federal immigration authorities sought to deport Defendant.  Defendant filed a timely Fla.R.Crim.P. 3.850 motion to withdraw his plea, alleging that he entered the plea to the misdemeanor charge because his attorney assured him that, unlike the felony charge, the misdemeanor conviction would not cause him to be deported.  At the evidentiary hearing on his motion Defendant "admitted that he understood the judge’s warning but relied on his attorney’s advice instead."  (Footnote omitted.).  The motion was denied.  Defendant appealed.

    The Fourth DCA affirmed.  The trial court's "Rule 3.172(c)(8) deportation warning in the plea colloquy cures any prejudice arising from counsel’s alleged misadvice.  [Defendant] is not entitled to withdraw his plea on the basis of ineffective assistance of counsel, and we affirm."  The appeals court distinguished Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  Padilla had not been advised by the trial judge during the plea colloquy that his plea might result in deportation.

    The court concluded:  "A defendant’s sworn answers during a plea colloquy must mean something.  A criminal defendant is bound by his sworn assertions and cannot rely on representations of counsel which are contrary to the advice given by the judge.  . . .  When the Court advises that the plea may result in deportation, a defendant has an affirmative duty to speak up if the attorney has promised something different.  . . .  The court’s warning that [Defendant] may be deported based on his plea cured any prejudice that might have flowed from counsel’s alleged misadvice.  . . .  When [Defendant] entered his plea, he assumed the risk that he 'may' be deported."  Flores v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D08-3866, 7/14/2010).

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