Menchaca-Ramirez v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MIGUEL MENCHACA-RAMIREZ, )
)
Appellant, )
)
v. ) Case No. 2D13-3152
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed December 17, 2014.
Appeal from the Circuit Court for Polk
County; Roger A. Alcott, Judge.
Joseph ThurdeKoos of Maney &
Gordon, P.A., Orlando, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes,
Assistant Attorney General, Tampa,
for Appellee.
KELLY, Judge.
Miguel Menchaca-Ramirez appeals from the order denying his Motion to
Vacate/Set Aside Judgment and Sentence under Florida Rule of Criminal Procedure
3.850. We reverse the order and remand for further proceedings.
In 2008, Menchaca-Ramirez entered a nolo contendere plea to uttering a
forged instrument, driving while license suspended (habitual offender), and several
other offenses. He was adjudicated guilty and sentenced to a total of 364 days in jail
followed by two years' probation. In 2011, Menchaca-Ramirez admitted to violating his
probation. The court revoked Menchaca-Ramirez's probation and sentenced him to
concurrent terms of fourteen months' incarceration on the uttering a forged instrument
and driving while license suspended convictions; the sentences on the remaining counts
were unchanged.
Thereafter, Menchaca-Ramirez sought to withdraw his admission to
violating his probation on the ground that it was involuntary. He claimed that his
counsel did not advise him that under the Immigration and Nationality Act, a sentence
exceeding one year would aggravate his two convictions for uttering a forged instrument
making him deportable with no ability to seek relief.1 Menchaca-Ramirez contended
that if counsel had informed him he would be ineligible to request relief in removal
proceedings he would not have admitted the violation and would have proceeded to
trial.
The postconviction court held an evidentiary hearing on Menchaca-
Ramirez's motion. No testimony was taken as Menchaca-Ramirez had been deported,
and the court accepted the stipulation of defense counsel that she advised Menchaca-
Ramirez that his admission "may" have immigration consequences and that he should
1
See 8 U.S.C. § 1227(a)(2)(A)(i) (2012) (stating that any alien who is
convicted of a crime of moral turpitude and receives a sentence of one year or longer is
deportable); 8 U.S.C. § 1229b(b)(1)(C) (2012) (providing that the attorney general can
cancel removal under certain circumstances but not if the alien has been convicted
under 8 U.S.C. § 1227(a)(2) (2012)).
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talk to an immigration lawyer if he was concerned. The court cited the transcript of the
2011 plea colloquy where the court informed Menchaca-Ramirez, "if you are not a
United States citizen, this plea would subject you to deportation." The court found this
language sufficient to place Menchaca-Ramirez on notice of the immigration
consequences of his plea and denied the motion.
"[W]hen the deportation consequence [of a plea] is truly clear . . . the duty
to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 357 (2010).
Here, unlike his original plea, Menchaca-Ramirez's admission to the probation violation
resulted in his mandatory deportation and eliminated his eligibility for deportation relief.
Under these particular circumstances, even if the trial court's deportation warning during
the plea colloquy is considered sufficient, it does not cure the prejudice resulting from
counsel's failure to advise Menchaca-Ramirez of the "truly clear" deportation
consequences of his admission as required by Padilla. See Hernandez v. State, 124
So. 3d 757, 763 (Fla. 2012).
Reversed and remanded.
BLACK, J., Concurs.
ALTENBERND, J., Concurs specially.
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ALTENBERND, Judge, Specially concurring.
This is an unfortunate case, but I am not certain that the postconviction
court will be able to repair matters on remand. Mr. Menchaca-Ramirez is nearly fifty-
nine years old and came to this country from Mexico as a teenager. All seven of his
children are U.S. citizens. He apparently was a lawful permanent resident of this
country, although he may not have understood his status.
His convictions are for driving without a valid license and uttering a forged
instrument. His violation of probation seems to have been another conviction for driving
without a valid license. These charges allegedly are related to his efforts to stay in this
country while his status was unclear to him. One way or the other, they are minor
criminal offenses.
If the trial court and the lawyers had appreciated that a sentence of
fourteen months' incarceration would subject this man to deportation, it seems highly
unlikely that he would have received this sentence. Without that knowledge, the short
sentence with credit for time served undoubtedly seemed to be a minimal and
appropriate punishment.
The ineffective assistance that Mr. Menchaca-Ramirez received occurred
at the hearing on his violation of probation in 2011. Thus, on remand, there is no basis
to set aside his convictions from 2008. On remand, the postconviction court should set
aside the order of revocation and probably the new conviction and sentence for driving
without a license. Even though the sentence imposed on the order of revocation is fully
served, it might be possible for the postconviction court to enter a new order of
revocation with a sentence that would not necessitate this man's deportation.
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But Mr. Menchaca-Ramirez obviously will not be able to attend these
proceedings or provide live testimony. Perhaps he can resolve these matters from
Mexico in a fashion that will allow him to return to his family in the United States, but
there is no question that our mandate will be a challenge for the postconviction court.
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