               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                                IN THE DISTRICT COURT OF APPEAL

                                                OF FLORIDA

                                                SECOND DISTRICT


ROBERT GODDARD,                                 )
                                                )
              Appellant,                        )
                                                )
v.                                              )      Case No. 2D16-2969
                                                )
STATE OF FLORIDA,                               )
                                                )
              Appellee.                         )
                                                )

Opinion filed April 21, 2017.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; Wayne M. Durden, Judge.

Arturo R. Rios of Law Office of Arturo
R. Rios, P.A., St. Petersburg, for Appellant.




PER CURIAM.

              Robert Goddard appeals the order summarily denying his motion for

postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because the

record does not conclusively refute Mr. Goddard's claim that counsel provided

ineffective assistance by misadvising him regarding the deportation consequences of

pleading guilty, we reverse and remand for further consideration of Mr. Goddard's claim.
                                       Background

              Mr. Goddard is an immigrant from Barbados and is a lawful permanent

resident of the United States. In August 2015, pursuant to a negotiated plea

agreement, Mr. Goddard pleaded guilty to possession of

methylenedioxymethamphetamine (MDMA), possession of prescription drugs without a

prescription, possession of cocaine, possession of cannabis with intent to sell, and

possession of drug paraphernalia. The trial court withheld adjudication and ordered

twenty-four months' probation and ten days of confinement in the county jail. As a result

of those convictions, the Department of Homeland Security detained Mr. Goddard and

initiated removal proceedings in February 2016.

              In an amended motion for postconviction relief filed in March 2016, Mr.

Goddard raised one claim of ineffective assistance of counsel, alleging that his trial

counsel specifically advised him on two separate occasions that his pleas would not

subject him to deportation if the trial court withheld adjudication. Mr. Goddard asserted

that had counsel not given him that advice, he would not have pleaded guilty and would

have proceeded to trial.

              After ordering the State to respond, the postconviction court issued a two-

paragraph order adopting the State's reasoning that the trial court's advisement during

the plea colloquy, "if you are not a U.S. citizen you are subject to deportation," cured

any prejudice from counsel's misadvice. This appeal follows.

                                         Analysis

              When reviewing the summary denial of a motion filed under rule 3.850,

this court applies de novo review and "must accept the movant's factual allegations as




                                            -2-
true to the extent that they are not refuted by the record." Jennings v. State, 123 So. 3d

1101, 1121 (Fla. 2013) (citing Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000)).

Since there was no evidentiary hearing, the court "must examine each claim to

determine if it is legally sufficient[] and, if so, whether the record refutes it." Allen v.

State, 854 So. 2d 1255, 1258 (Fla. 2003). "[U]nless the record shows conclusively that

the appellant is entitled to no relief, the order shall be reversed and the cause remanded

for an evidentiary hearing or other appropriate relief." Fla. R. App. P. 9.141(b)(2)(d).

               Mr. Goddard raises one claim of ineffective assistance of counsel, for

which he is required to show that (1) counsel's performance was deficient and (2) the

deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 694

(1984). To establish that counsel was deficient, Mr. Goddard must overcome the

"strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance." Id. at 689. "In the plea context, a defendant satisfies the

prejudice requirement only where he can demonstrate 'a reasonable probability that, but

for counsel's errors, he would not have pleaded guilty and would have insisted on going

to trial.' " Hernandez v. State, 124 So. 3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart,

474 U.S. 52, 59 (1985)). "[A] petitioner must convince the court that a decision to reject

the plea bargain would have been rational under the circumstances." Id. (alteration in

original) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

               A. Deficiency

               First, the record does not conclusively refute Mr. Goddard's claim that

counsel's misadvice constituted deficient performance, as the deportation

consequences of pleading guilty could be easily determined from reading the federal




                                              -3-
removal statute. In Padilla, 559 U.S. 356, the Supreme Court held that counsel has a

duty to advise noncitizen clients of the deportation consequences of pleading guilty.

The Court ruled that it is deficient performance for counsel to fail to advise or to

affirmatively misadvise a client regarding the deportation consequences of pleading

guilty when those consequences are "truly clear." Id. at 369.

               Like Mr. Goddard, Mr. Padilla was charged with committing a crime

involving a controlled substance (transportation of a large amount of marijuana). Id. at

359. In concluding that counsel was deficient for not advising Mr. Padilla that he would

likely be deported if he pleaded guilty, the Court stated "counsel could have easily

determined that [Mr. Padilla's] plea would make him eligible for deportation simply from

reading the text of the statute, which addresses not some broad classification of crimes

but specifically commands removal for all controlled substances convictions except for

the most trivial of marijuana possession offenses." Id. at 368 (referring to 8 U.S.C. §

1227(a)(2)(B)(i)). In that situation, where the deportation consequence of pleading

guilty was clear, counsel rendered deficient performance by failing to accurately advise

his client that a conviction would almost certainly lead to deportation.

               Similarly, Mr. Goddard faced controlled substance charges that would be

grounds for deportation under the same federal removal statute. See 8 U.S.C. §

1227(a)(2)(B)(i) (2015) ("Any alien who at any time after admission has been convicted

of a violation of . . . any law or regulation of a State . . . relating to a controlled

substance . . . , other than a single offense involving possession for one's own use of 30

grams or less of marijuana, is deportable."). Mr. Goddard's MDMA, cocaine, and

marijuana convictions would each qualify under the statute. Thus, as was the case in




                                               -4-
Padilla, the deportation consequence of pleading guilty was clear, and counsel therefore

would have been deficient for providing anything short of accurate advice that

deportation would be all but certain.

              On that point, Mr. Goddard asserts in a sworn affidavit that counsel

specifically told him on two occasions that he would not be deported if he pleaded guilty.

According to Mr. Goddard, counsel was adamant that if the court withheld adjudication

then he would not have any formal convictions that would allow for deportation. This

advice was incorrect, as a withholding of adjudication qualifies as a conviction for

deportation purposes. See 8 U.S.C. § 1101(a)(48)(A) (defining "conviction" as including

a withhold of adjudication when (i) "the alien has entered a plea of guilty" and "(ii) the

judge has ordered some form of punishment, penalty, or restraint on the alien's liberty");

Gomez v. State, 126 So. 3d 444, 444 (Fla. 4th DCA 2013) (noting that deportation for a

controlled substance offense "was automatic, regardless of the withholding of

adjudication"). Taking his assertions as true, as we are required to do, Mr. Goddard has

made a sufficient showing of deficiency, and the record does not refute his claim on this

point.

              B. Prejudice

              Second, the record does not conclusively refute Mr. Goddard's claim that

he was prejudiced by counsel's deficient performance, as he alleges that he would not

have pleaded guilty had he known that he would likely be deported, and the court's plea

colloquy was insufficient to cure counsel's misadvice. The State contends that the

court's advisement during the plea colloquy was unequivocal and negated counsel's

errors. However, in the context of refuting prejudice, a court must look to the totality of




                                            -5-
the circumstances to determine if the defendant knew of the deportation consequences

of entering a guilty plea, and the record in this case does not conclusively show that Mr.

Goddard knew of those consequences.

              The Florida Supreme Court explained in Hernandez, 124 So. 3d at 763,

that for a plea colloquy to cure counsel's deficiency it must rise to the same level of

accuracy and clarity that Padilla requires of counsel:

              Where deportation consequences are "truly clear," the
              United States Supreme Court in Padilla requires
              effective counsel to provide more than equivocal
              advice concerning those consequences. At least in
              those circumstances, an equivocal warning from the
              trial court is less than what is required from counsel
              and therefore cannot, by itself, remove prejudice
              resulting from counsel's deficiency.

(Citation omitted.) Thus, in cases such as this one, where counsel is required to

provide clear and accurate advice that a guilty plea will almost certainly result in

deportation, the court's advisement in the plea colloquy must be equally clear and

accurate in order to erase any prejudice.

              In addition to looking at the clarity of the plea colloquy, the supreme court

in Hernandez also indicated that the analysis should look at the totality of the

circumstances to determine if the defendant was on notice of the deportation

consequences of his plea:

                      The fact that an equivocal warning from the
              trial court is insufficient to categorically eliminate
              prejudice in every circumstance is not to say,
              however, that the plea colloquy is meaningless . . . .
              Instead, a colloquy containing an equivocal warning
              from the trial court and an acknowledgment from the
              defendant contributes to the totality of the
              circumstances by providing evidence that the
              defendant is aware of the possibility that a plea could



                                            -6-
              affect his immigration status. In other words, the
              colloquy required by [Florida Rule of Criminal
              Procedure] 3.172(c)(8) may refute a defendant's
              postconviction claim that he had no knowledge that a
              plea could have possible immigration consequences;
              however, it cannot by itself refute a claim that he was
              unaware of presumptively mandatory consequences.

Id. (emphasis added and citation omitted).1

              Accordingly, we must determine whether the court, through its plea

colloquy, met counsel's duty under Padilla to correctly inform the defendant of the

"presumptively mandatory" deportation consequences of pleading guilty and whether it

appears from the totality of the circumstances that the defendant pleaded guilty with

knowledge of those consequences.

              Applying the supreme court's Hernandez analysis to this case, the

particular plea colloquy that the trial court gave to Mr. Goddard did not cure counsel's

misadvice and the totality of the circumstances do not conclusively show that Mr.

Goddard knew the consequences of pleading guilty. The trial court's plea colloquy in

this case contained a string of advisements regarding nearly a dozen different rights

that Mr. Goddard was giving up by pleading guilty, with a brief advisement concerning

deportation in the middle:

              COURT: Okay, by entering into this plea agreement
              you're giving up certain constitutional rights related to
              this case that I need to go over with you. You are
              giving up the right to a jury trial, the right to the proof
              of the allegations by the State beyond and to the
              exclusion of any reasonable doubt. The right to
              confront witnesses, the right to be represented by an
              attorney at the trial and to have your attorney cross-


              1Prior to 2016, rule 3.172(c)(8) contained a simple advisement that a
finding of guilt "may" result in deportation. See In re Amendments to Fla. Rules of
Criminal Procedure, 188 So. 3d 764, 766, 770 (Fla. 2015).


                                             -7-
              examine witnesses called by the State and to
              subpoena and compel witnesses on your behalf.

              You are also giving up the right to choose not to
              testify and to have the jury told they cannot hold that
              against you as well as giving up the right to choose to
              testify and have your testimony considered like that of
              any other witnesses. You are also giving up the right
              to appeal guilt or innocence of the charges and if you
              are not a U.S. citizen you are subject to deportation.

              Also, if at any time you are ever incarcerated prior to
              your release the State can make a determination as
              to whether you had ever been accused of, charged
              with or found guilty of a sexually violent or sexually
              motivated offense in which case the State can file
              involuntary civil commitment proceedings against you
              to have you held civilly pursuant to the terms of the
              Jimmy Ryce Act. So, do you understand all of those
              matters?

              THE DEFENDANT: Yes, sir.

(Emphasis added.) In light of the assured advice that Mr. Goddard received from

counsel, the trial court's advisement was insufficient to properly inform Mr. Goddard of

the severe and nearly certain deportation consequences of pleading guilty. 2



              2We   note that the change in rule 3.172(c)(8)'s standard advisements
between 2015 and 2016 demonstrates the supreme court's recognition of the
importance of a thorough advisement and the inadequacy of a brief advisement. Prior
to 2016, the rule instructed trial courts to simply advise a defendant that "if he or she is
not a United States citizen, [a guilty or no contest] plea may subject him or her to
deportation." Fla. R. Crim. P. 3.172(c)(8). In the 2016 version of rule 3.172(c)(8),
courts are now instructed to give a much more comprehensive advisement:

              (A) If 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.


                                            -8-
              Mr. Goddard alleged that counsel told him on two occasions that a

withhold of adjudication would not subject him to deportation. Mr. Goddard asserted

that he questioned counsel to make sure and that counsel assured him that he had

nothing to worry about. Looking at the totality of the circumstances, the trial court's brief

statement, in the midst of a long colloquy, that the pleas would subject Mr. Goddard to

deportation was insufficient to meet counsel's duty under Padilla, and it does not

establish that Mr. Goddard knew the deportation consequences of pleading guilty.

Accordingly, the record does not conclusively refute Mr. Goddard's claim of prejudice.

                                        Conclusion

              Because the record does not conclusively show that Mr. Goddard is not

entitled to relief, we reverse the postconviction court's summary denial of his motion and

remand for further consideration of his claim, including an evidentiary hearing if

necessary.

              Reversed and remanded.



              (B) The court should advise the defendant to consult
              with counsel if he or she needs additional information
              concerning the potential deportation consequences of
              the plea.

              (C) If the defendant has not discussed the potential
              deportation consequences with his or her counsel,
              prior to accepting the defendant's plea, the court is
              required, upon request, to allow a reasonable amount
              of time to permit the defendant to consider the
              appropriateness of the plea in light of the advisement
              described in this section.

              (D) This admonition should be given to all defendants
              in all cases, and the trial court must not require at the
              time of entering a plea that the defendant disclose his
              or her legal status in the United States.


                                            -9-
WALLACE, LaROSE, and MORRIS, JJ., Concur.




                                  - 10 -
