High court ruling on deportation issue does not apply to past cases, Florida Supreme Court says

11/21/2012 1:49 PM

11/21/2012 3:44 PM

A Miami man who could face deportation for an 11-year-old drug charge is not eligible to have his conviction thrown out, the Florida Supreme Court ruled Wednesday.

Gabriel Hernandez, now a successful bank administrator, had asked a Miami trial court to toss out his 2001 drug conviction, saying his lawyer failed to properly warn him he could face deportation to his native Nicaragua.

Like hundreds of defendants statewide, Hernandez filed his request after the U.S. Supreme Court in March 2010 threw out the conviction for a Kentucky man, Jose Padilla, whose lawyer failed to warn him that he would be deported after pleading guilty.

But a Miami judge refused Hernandez’s request. And The Third District Court of Appeal ruled that the Padilla case did not apply to past cases like Hernandez’s.

On Wednesday, the Florida Supreme Court agreed unanimously that the Padilla case is not “retroactive.” The state high court did rule that current and future Florida defendants have the right to claim their lawyers were “ineffective” for not properly advising them of possible deportation.

The issue of “retroactivity” has been closely watched in legal circles as thousands of people across the country — who could face deportation because of past convictions — sought help under the Padilla case.

Wednesday’s decision in Florida is not the final say for Hernandez.

Ultimately, the U.S. Supreme Court will decide whether its own decision in Padilla applies retroactively.

Last month, the nation’s high court heard arguments for a Chicago woman, Roselva Chaidez, who is facing deportation for 9-year-old conviction for fraud. No ruling has been issued.

Hernandez arrived in the United States from Nicaragua when he was 2 years old. Now 30 and a legal resident, he boasts a bachelor’s degree and works as a successful computer network administrator for a Miami bank group.

His one blemish was at 19, when he was arrested on charges of selling LSD.

In an outcome typical for first-time offenders, Hernandez pleaded guilty and accepted a year of probation in return for a promise that no felony conviction would appear on his record. But Hernandez insists he never understood that the plea deal could wind up getting him deported to Nicaragua.

The Florida Supreme Court on Wednesday also ruled on the same issue in a companion case for Miami’s Leduan Diaz. His lawyer, Maggie Arias, said she is “hopeful” that the U.S. Supreme Court will rule differently than the state high court and find Padilla to apply to all cases.

“This would ensure that fairness and general due process are afforded to people who received ineffective advice from lawyers,” Arias said.

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