LEGAL GUIDE
Written by attorney Elizabeth Rose Blandon | May 20, 2011

How Reopening a Criminal Court Case Helps You

Foreign nationals can get a "do over" in criminal court when they did not receive "effective assistance of counsel" before entering a plea of guilty or no contest. In other words, the criminal defense attorney must inform a foreign national client that pleading guilty to criminal charges creates a risk of deportation. It is important for a client to get a "do over" for a guilty plea entered in criminal court if possible because those records will be used to deport the foreign national.The Immigration Court has no jurisdiction to go back and look at the merits of the criminal case and must take the conviction at face value: guilty.

How the "do over" works.

In light of a recent Supreme Court decision, many foreign national criminal defendants in Florida are trying to reopen their cases by withdrawing or vacating their guilty pleas. Attorneys start this process by filing a motion. If the motion is granted by the criminal court, the defendant has the opportunity to retry the criminal case.

Barriers to getting your Motion Granted.

There are usually two reasons why a motion is not granted. First, there is a record that the judge "advised" the defendant about the possibility of deportation. Second, the motion will be denied if it is filed late.

Judge Warned about Possibility of Deportation.

This judicial "advice" comes in the form of a standard warning given to the defendant by a judge in a criminal court case. In a criminal case when the defendant enters a guilty plea, the criminal court judge will then read off what is known as a "plea colloquy." This is essentially a list of warnings given to the defendant to make sure he understands the guilty plea before it is entered with the court. Florida criminal court judges usually state that the plea may subject the foreign national to deportation pursuant to the laws and regulations govering the United States.

Whether this generic warning is sufficient to fix the impact of ineffective legal advice is currently under consideration by the Florida Supreme Court. While it is obvious that the judge's advice should give the defendant some awareness of the possibility of deportation, it is far less obvious that this generic warning is enough to give the defendant the high level awareness necessary to have the same effect as though he received "effective assistance of counsel" from his or her attorney. This should not discourage foreign nationals who previously pled guilty in criminal court from seriously considering whether to file a motion if they were not advised of the immigration consequences by their attorney. If the Florida Supreme Court makes a decision about judicial warnings that is friendly toward foreign nationals, those who file late risk having their motion rejected.

The Motion is Filed Late.

A foreign national has two years after the date of the conviction to file a motion to reopen their criminal court case. They can file the motion more than two years later if 1) the lateness was caused by the foreign national's lack of knowledge about certain facts; 2) the motion enforces a constitutional right; and 3) an attorney was hired to file the motion, but failed to do so. The Florida Supreme Court is also currently deciding whether these types of motions can be filed more than 2 years after the conviction.

Additional resources provided by the author

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