Counsel's failure to advise a client of the collateral consequence of deportation does not constitute ineffective assistance of counsel.
The respondent, a non-citizen, filed a post-conviction motion arguing that his guilty plea was involuntary and his counsel ineffective for failing to advise him of the collateral consequence of deportation. The district court reversed the trial court's summary denial of the motion, finding the allegations sufficient for collateral relief. The Supreme Court of Florida reviews the case to resolve a conflict with its recent decision in State v. Ginebra. The court applies the rule that counsel's failure to advise a client of the collateral consequence of deportation does not constitute ineffective assistance of counsel. Consequently, the court holds that the trial court's summary denial of the motion was proper and quashes the district court's decision.
At page 124 Quashing decision based on ineffective assistance of counsel7 citing casesthe absence of similar conduct for an extensive period of time might suggest that the conduct is no longer characteristic of the defendant.
- Foburg v. State, 744 So. 2d 1175 (Fla. 2d DCA 1999).published(the absence of similar conduct for an extensive period of time might suggest that the conduct is no longer characteristic of the defendant.)
- Kulling v. State, 827 So. 2d 311 (Fla. 2d DCA 2002).published Heuring, 513 So.2d at 124-25; Morman v. State, 811 So.2d 714, 717 (Fla. 2d DCA 2002).
- Morman v. State, 811 So. 2d 714 (Fla. 2d DCA 2002).publishedTraditionally, as the supreme court in Heuring noted, the similar fact evidence must meet a strict standard of relevance; the charged and collateral offenses must be "not only strikingly similar, but they must also share some unique charac…
- Thomas v. State, 599 So. 2d 158 (Fla. 1st DCA 1992).published The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristics which sets them apart from other offenses. 513 So.2d at 124 (emphasis added).
- Vandiver v. State, 578 So. 2d 1145 (Fla. 4th DCA 1991).publishedId. at 124.
- Robert Newby v. State of Florida, 272 So. 3d 862 (Fla. 2d DCA 2019).publishedSee McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006) (quoting Heuring, 513 So. 2d at 124).
- Fulton v. State, 523 So. 2d 1197 (Fla. 2d DCA 1988).publishedSee Heuring at 124.
At page 125 Admissibility of similar fact evidence in criminal cases3 citing casesThe state argues that the molestations of these five children were admissible as similar fact evidence under Williams . The trial court, however, correctly excluded direct evidence of these molestations since they were not sufficiently similar to the charged offenses.
- Euline v. State, 577 So. 2d 598 (Fla. 3d DCA 1991).published(The state argues that the molestations of these five children were admissible as similar fact evidence under Williams . The trial court, however, correctly excluded direct evidence of these molestations since they were…)
- Maddry v. State, 585 So. 2d 359 (Fla. 1st DCA 1991).publishedThis court found that treatment of other residents was admissible to counter inferences that the victim's injuries were isolated instances beyond the defendant's knowledge or control, and that such evidence did not become a feature of the…
- Calloway v. State, 520 So. 2d 665 (Fla. 1st DCA 1988).publishedId. at 125, 126 .
Other citing cases
- State of Florida v. Robert Lincoln, 279 So. 3d 854 (Fla. 2d DCA 2019).published
- Henry v. State, 948 So. 2d 609 (Fla. 2007).published
- McLean v. State, 934 So. 2d 1248 (Fla. 2006).published
- Billie v. State, 863 So. 2d 323 (Fla. 3d DCA 2003).published
- Gutherez v. State, 809 So. 2d 16 (Fla. 4th DCA 2002).published
- Smith v. State, 788 So. 2d 279 (Fla. 4th DCA 2000).published
- Kimbrell v. State, 764 So. 2d 893 (Fla. 4th DCA 2000).published
- Chapman v. State, 639 So. 2d 682 (Fla. 2d DCA 1994).published
- Stevens v. State, 521 So. 2d 362 (Fla. 5th DCA 1988).published
- Bermudez v. State, 603 So. 2d 657 (Fla. 3d DCA 1992).published
Show 1 more citing case
- Lemus v. State, 585 So. 2d 388 (Fla. 2d DCA 1991).published
v.
Gerardo FUNDORA, Respondent.
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., Miami, for petitioner.
Michael E. Allen, Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
EHRLICH, Justice.
We have for review Fundora v. State, 508 So.2d 1250 (Fla. 3d DCA 1987), because of conflict with our recent decision in State v. Ginebra, 511 So.2d 960 (Fla. 1987). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the decision below.
Relying on its decisions in Ginebra v. State, 498 So.2d 467 (Fla. 3d DCA 1986), and Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981), the district court below reversed the trial court's summary denial of Fundora's Florida Rule of Criminal Procedure 3.850 motion, finding that "1) appellant's contentions, that his counsel was ineffective in failing to inform Fundora of the possibility of deportation as a result of his guilty plea and that his pleas were made involuntary as a result of this lack of information, are valid grounds for collateral relief from his guilty pleas ... and 2) appellant sufficiently alleges facts which, if proven, would support his prayer for relief." 508 So.2d at 1250 (citations omitted). In State v. Ginebra, we recently quashed the third district's decision in that case and expressly disapproved its reasoning in Edwards, holding that "counsel's failure to advise his client of the collateral consequence of deportation does not constitute ineffective assistance of counsel." 511 So.2d at 962.
The trial court's summary denial of Fundora's 3.850 motion was proper under our holding in Ginebra. Accordingly, we quash the decision below and remand for proceedings consistent with this opinion.
It is so ordered.
McDONALD, C.J., and OVERTON, SHAW, BARKETT and GRIMES, JJ., concur.