Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors At Law
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Immigration Consequences of a Guilty Plea Post-Padilla

In United States v. Padilla, 559 U.S. 356 (2010), the United States Supreme Court held that the Sixth Amendment requires attorneys to inform their non-citizen clients of the immigration consequences of entering a guilty plea in criminal cases. In many situations, entering such a plea, even in a misdemeanor case, can result in deportation. An order of deportation can occur many years after the guilty plea, much to the surprise of the client. Padilla recognized that a lawyer who fails to advise their client of the potential for deportation is not competent, so that a plea entered without such advice is not a voluntary plea and therefore, can be vacated. A question left open by the Padilla decision was whether it was retroactive, meaning a person whose plea was entered before Padilla became final could also vacate their plea if not properly advised. 

Unfortunately, the Court in Chaidez v. United States, U.S., 24 Fla.L.Weekly Fed. 542a (February 20, 2013), has ruled that Padilla is not retroactive. Because of this ruling, a final conviction entered before March 31, 2010, is not subject to a motion for post-conviction relief on the grounds that the defendant was not advised of the immigration consequences of his plea. In reaching its decision, the Court ruled Padilla announced a "new rule" because it broke new ground, a person whose criminal conviction was final before it was not decided, cannot argue that the conviction should be vacated (set aside) because their lawyer failed to advise them of the immigration consequences of their guilty plea. The net effect of this decision is that if you pled guilty and your case was final (you had been sentenced and if an appeal was taken, a mandate had been issued) before March 31, 2010, you cannot move to vacate your conviction on Padillagrounds. 

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
215 N. Washington Street
Jacksonville, FL 32202

Phone: 904-701-0589
Phone: 904-727-7191
Fax: 904-356-9667
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Regular office hours are 7:30 a.m. to 6:30 p.m.

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