Filed: Sep. 01, 2021
Latest Update: Sep. 01, 2021
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
YINETTE MARIA NUNEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D20-2680
September 1, 2021
Appeal from the Circuit Court for Pinellas County; William H.
Burgess, III, Judge
Jorge León Chalela of Jorge León Chalela, P.A, Tampa, for
Appellant.
MORRIS, Chief Judge.
Yinette Nunez appeals the summary denial of her motion for
postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850, in which she alleged that she pleaded guilty to
four charges in 2018 without having been advised by her counsel of
the "immediate" and "certain" deportation consequences of her
pleas. We reverse and remand for further proceedings.
The postconviction court analyzed Nunez's claim under Padilla
v. Kentucky, 559 U.S. 356 (2010), which holds that 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, and Cano v. State,
112 So. 3d 646, 648 (Fla.
4th DCA 2013), which requires certain showings where a defendant
received an "equivocal" warning by the trial court at the plea
hearing as provided for in Florida Rule of Criminal Procedure
3.172(c)(8).1 In Cano, the Fourth District recognized that "an
'equivocal' warning . . . is not on its own sufficient to refute a claim
that counsel was ineffective in failing to advise a defendant about
'truly clear' deportation consequences."
112 So. 3d at 647 (quoting
Hernandez v. State,
124 So. 3d 757, 763 (Fla. 2012)). But the Cano
1 The warning was amended in 2015, is now found in rule
3.172(c)(8)(A), and requires a trial court to advise a defendant that
"[i]f the defendant is not a citizen of the United States, a finding of
guilt by the court, and the court's acceptance of the defendant's
plea of guilty or no contest, regardless of whether adjudication of
guilt has been withheld, may have the additional consequence of
changing his or her immigration status, including deportation or
removal from the United States." (Emphasis added.)
2
court "clarif[ied] what a movant must establish to be entitled to
relief" when the movant has received the standard rule 3.172(c)(8)
warning. Such a movant
must establish the following: (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.
Id. at 648; see Yanez v. State,
170 So. 3d 9, 10-11 (Fla. 2d DCA
2015) (quoting the pleading requirements in Cano and affirming an
order denying rule 3.850 relief because by admitting that she was
in the country unlawfully, movant could not show that she "was
present in the country lawfully at the time of the plea" or "that the
plea at issue is the sole basis for" her deportation); see also
Balcazar v. State,
116 So. 3d 575, 576 (Fla. 2d DCA 2013) (citing
Cano as "listing the full set of pleading requirements for a claim of
ineffective assistance of counsel under Padilla").
3
The postconviction court found, and the record supports, that
Nunez received the equivocal warning provided for in rule
3.172(c)(8). Nunez received the warning when she pleaded guilty in
2018 to the felonies of child abuse and battery on a law
enforcement officer in exchange for three years' probation and to
two misdemeanor charges of battery and disorderly intoxication in
exchange for time served.2 Thus, the pleading requirements in
Cano apply here.3
The postconviction court also found that the record showed
that the 2018 pleas at issue are not the sole basis for Nunez's
2We note that Nunez received the warning again when she
admitted to violating that probation in 2019, by committing a new
2019 charge of uttering forged checks, in exchange for sentences of
22.5 months in prison on both counts.
3 We distinguish the cases of Blackwood v. State, 217 So. 3d
1146, 1147-48 (Fla. 2d DCA 2017), and Huerta v. State,
228 So. 3d
626, 628 (Fla. 2d DCA 2017), which themselves distinguished Cano.
In Blackwood, the record reflected "that the trial court did not give
[the defendant] a rule 3.172(c)(8) warning during his plea colloquy"
and thus "there was no record evidence that [the defendant], a
noncitizen, received any warning of potentially adverse immigration
consequences before entering his plea."
217 So. 3d at 1148. And
Huerta relies on Blackwood and does not address whether the
defendant in that case was given an equivocal warning by the trial
court.
228 So. 3d at 628. Thus, those cases do not apply to a
situation in which a defendant was given the warning in rule
3.172(c)(8).
4
deportation, a requirement in Cano. While we agree with Cano that
Nunez must establish this requirement in order to be entitled to
relief, we disagree that the record refutes this requirement. Nunez's
probation was revoked in 2019 when she entered a guilty plea to
one new charge of uttering forged checks, a third-degree felony, for
which she received a sentence of 22.5 months in prison.4 Such a
conviction and sentence may subject her to deportation if the
offense was committed within five years of her admission or within
ten years if she had been provided lawful permanent resident
status. See 8 U.S.C. § 1227(a)(2)(A)(i); Walker v. U.S. Att'y Gen., 783
F. 3d 1226, 1229 (11th Cir. 2015) (holding that uttering a forged
instrument is a crime of moral turpitude for purposes of the
deportation statutes). The postconviction court failed to
acknowledge that such a crime must be committed within a certain
amount of time in order to trigger deportation, and it is not clear
from the record when Nunez entered the United States or what her
4Nunez did not allege in her rule 3.850 motion that she was
seeking to withdraw the plea in the 2019 uttering case. And at the
2019 VOP/plea hearing, Nunez's counsel indicated that Nunez had
consulted with an immigration attorney before she entered her
admissions and plea.
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status was when she entered or at the time of any of the offenses at
issue. The postconviction court also found that Nunez had not
established that the 2018 convictions were the sole basis for
deportation because Nunez admitted in her motion that an
immigration detainer was not placed on her until December 11,
2019, thus suggesting that the deportation is due to the uttering
conviction. However, it is not clear from the record that Nunez is
subject to deportation for the 2019 uttering conviction or that the
immigration detainer is due to that 2019 conviction.
In sum, while we agree that the requirements of Cano are
applicable, we cannot conclude based on our limited record that
Nunez is unable to establish entitlement to relief under Cano.
Accordingly, we reverse the order denying her rule 3.850 motion
and remand for the postconviction court to allow her an opportunity
to amend her motion to establish a facially sufficient claim under
Cano. See rule 3.850(f)(2); Spera v. State, 971 So. 2d 754, 761 (Fla.
2007). We note that in addition to failing to allege that the 2018
pleas are the sole basis for her deportation, Nunez's motion also
failed to allege that she was in the country lawfully at the time she
entered the plea, that the law as it existed at the time of the plea
6
subjected her to "virtually automatic" deportation, and that the
"presumptively mandatory" consequence of deportation is clear from
the face of the immigration statute. On remand, Nunez must
satisfy these pleading requirements in order to be entitled to relief.
Reversed and remanded with directions.
SILBERMAN and LUCAS, JJ., Concur.
Opinion subject to revision prior to official publication.
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