       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             NERO COOKE,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-3497

                          [September 16, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,
Judge; L.T. Case No. 2010CF005839AXX.

   Antonio Bugge, Fort Lauderdale, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

GERBER, J.

    The defendant appeals from the circuit court’s order denying, without
an evidentiary hearing, his Florida Rule of Criminal Procedure 3.850
motion for postconviction relief alleging ineffective assistance of counsel
for failing to advise him of his guilty plea’s deportation consequences.
The court denied the motion without an evidentiary hearing on two
grounds: (1) the motion was facially insufficient; and (2) the motion and
record conclusively demonstrated that the defendant was not entitled to
relief. We conclude the court erred on both grounds. We also conclude
the court’s warning during the plea colloquy, that the plea “probably”
would result in the defendant’s deportation, did not necessarily remove
any prejudice caused by counsel’s alleged ineffective assistance, where
the plea’s deportation consequences, at least on the face of the
defendant’s motion, may have been “truly clear” at the time of the plea.
Thus, we reverse the denial of the defendant’s 3.850 motion, and remand
for an evidentiary hearing on the motion.
   We present this opinion in four parts: (1) the parties’ arguments to
the circuit court; (2) the circuit court’s reasoning; (3) the parties’
arguments to this court; and (4) our reasoning. Part 4 will contain three
sub-parts explaining:      (a) why the defendant’s motion was facially
sufficient; (b) why the motion and record did not demonstrate the
defendant was not entitled to relief; and (c) why the court’s warning
during the plea colloquy, that the plea “probably” would result in the
defendant’s deportation, did not necessarily remove any prejudice caused
by counsel’s alleged ineffective assistance, where the plea’s deportation
consequences, at least on the face of the defendant’s motion, may have
been “truly clear” at the time of the plea.

              1. The Parties’ Arguments to the Circuit Court

   On November 10, 2011, the defendant pled guilty to carrying a
concealed firearm committed on May 19, 2010. On a plea form, he
placed his initials next to the following sentence: “I understand that if I
am not a United States Citizen, my plea may subject me to deportation
pursuant to the laws and regulations governing the United States . . .
and, this Court has no jurisdiction (authority) in such matters.”
(emphasis added).

    During the plea colloquy, the court warned the defendant: “[I]f you’re
not a citizen, by pleading guilty today, that would negatively affect your
immigration status, probably resulting in deportation and not being
allowed back in to the country. Do you understand that?” (emphasis
added). The defendant responded: “Yes, sir.” The court adjudicated the
defendant guilty and sentenced him to prison.

    The defendant then filed his rule 3.850 motion seeking to vacate his
plea, judgment, and sentence. The motion also incorporated supporting
affidavits from the defendant and an immigration attorney. The motion
alleged, in pertinent part:

      3. At the time [the defendant] pled guilty to the charge, he
      was not a citizen of the United States . . . .

      4. [The defendant] was never warned by his attorney that
      there would be mandatory consequences as a result of his
      plea. See Affidavit of [Defendant].

      5. By entering the instant plea [the defendant] became
      mandatorily deportable from the United States. If [the
      defendant] did not have the instant conviction he would not

                                    2
   be deportable from the United States. See Immigration and
   Nationality Act (INA); Affidavit of Attorney . . . .

   6. Pursuant to US Immigration law any non-citizen
   convicted of a firearm offense is deportable from the United
   States. See Immigration and Nationality Act at Section
   237(a)(2)(C); Affidavit of Attorney . . . .

   7. Had [the defendant] been warned by his attorney of the
   certain immigration consequences of his plea he would not
   have entered a plea in the instant case and instead would
   have chosen to proceed to trial. See Affidavit of [Defendant].

The defendant’s affidavit alleged:

   1. I am a citizen of [another country who] entered the United
   States on June 8, 2007, as a lawful permanent resident.

   2. On December 1, 2011, I was placed into removal
   proceedings by the Department of Homeland Security (DHS).

   3. I am deportable from the United States only because of
   my conviction in the instant case.

   4. If I had known that by entering my plea in this case I
   would become subject to mandatory deportation I never
   would have entered it.

   5. I was never advised by my criminal defense attorney of
   the immigration consequences of my plea.

The immigration attorney’s affidavit alleged, in pertinent part:

   3. [The defendant] became deportable from the Unites States
   under section 237(a)(2)(C) of the Immigration and Nationality
   Act (INA) on November 10, 2011 as an alien convicted any
   time after admission of a violation of any law of purchasing,
   selling, offering for sale, exchanging, using, owning,
   possessing, or carrying, or of attempting or conspiring to
   purchase, sell, offer for sale, exchange, use, own, possess, or
   carry, any weapon, part, or accessory, which is a firearm or
   destructive devise [sic] (as defined in section 921(a) of Title
   18) in violation of any law.


                                     3
      4. The moment [the defendant] entered his guilty plea he
      became mandatorily deportable from the United States.

      5. Given the fact that this is [the defendant’s] only criminal
      conviction and he is a lawful permanent resident of the
      United States if he did not have the instant conviction he
      would not be deportable from the United States.

   Based on the allegations, the motion argued that the defendant
received ineffective assistance of counsel.       More specifically, the
defendant argued that counsel must advise when a plea renders the
defendant deportable, and that both misadvice and lack of advice in this
regard constitutes ineffective assistance of counsel. The defendant also
argued that a court’s equivocal deportation warning does not cure the
prejudice which counsel’s misadvice or lack of advice causes.

   The state’s response, citing Cano v. State, 112 So. 3d 646, 648 (Fla.
4th DCA 2013), argued: “Where movant has received the standard ‘may’
or ‘could’ deportation warning required by [Florida Rule of Criminal
Procedure] 3.172(c)(8), to state a claim for relief under Padilla [v.
Kentucky, 559 U.S. 356 (2010)], a movant must establish the following”:

      (1) the movant was in the United States lawfully at the time
          of the plea;
      (2) the plea is the sole basis for the movant’s deportation;
      (3) the law, as it existed at the time of the plea, subjected
          the movant to “virtually automatic” deportation;
      (4) the    “presumptively     mandatory”     consequence      of
          deportation is clear from the immigration statute’s face;
      (5) counsel failed to accurately advise the movant about the
          plea’s deportation consequences; and
      (6) if counsel had advised the movant accurately, then the
          movant would not have entered the plea.

The state then concluded: “Pursuant to the above . . . to properly resolve
this matter, an evidentiary hearing is warranted. At that time, it will be
up to the defendant to satisfy the burden of proof. . . . The State of
Florida respectfully requests this Honorable Court to conduct an
evidentiary hearing on defendant’s instant Motion.” (emphasis added).




                                     4
                   2. The Circuit Court’s Reasoning

   Despite the state’s concession that an evidentiary hearing was
warranted, the circuit court entered a written order denying the
defendant’s motion without an evidentiary hearing. The court reasoned:

        First and foremost, the defendant fails to establish, much
     less even claim, that his attorney misadvised him concerning
     the deportation consequences of his plea. Furthermore,
     there is no allegation that [defense counsel] was ever advised
     by [the defendant] that he was not a citizen, or that [the
     defendant] even sought any advice as to the possible
     deportation consequences of his guilty plea. Therefore, the
     Court finds that there was no affirmative mis-advice by
     [defense counsel] as discussed above. [Defense counsel’s]
     performance fell within the wide range of reasonable
     professional assistance, and was neither constitutionally
     deficient nor unreasonable. Therefore, he was not legally
     ineffective. Strickland v. Washington, 104 S. Ct. 2052 (1984);
     Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013); Padilla v.
     Kentucky, 130 S. Ct. 1473 [(2010)].

        Second, even if [defense counsel] is deemed to be
     ineffective for failing to advise as to possible deportation
     consequences where there is not even an allegation that the
     defendant told [defense counsel] that he was not a citizen,
     then the sworn colloquy between [the defendant] and the
     [previous] trial judge amply cured any silence by [defense
     counsel], as claimed by the defendant. That sworn colloquy
     demonstrated that the [previous] trial judge advised the
     defendant that he “probably” would be subject to deportation
     as a result of his guilty plea. In this regard, the defendant’s
     sworn affirmative understanding to the trial court’s
     statement that “if you’re not a citizen, by pleading guilty
     today, that would negatively affect your immigration status,
     probably resulting in deportation and not being allowed back
     in to the country” refutes [the defendant’s] claim of
     ineffectiveness. . . . In this case, [the defendant’s] sworn
     plea colloquy was thorough and complete and advised him
     he would probably be deported. [The defendant] is unable to
     establish any mis-advice by counsel and therefore, his claim
     must fail.



                                   5
    This appeal followed. Because the circuit court’s decision was based
on its legal determinations only, our review is de novo. Cf. Hernandez v.
State, 124 So. 3d 757, 759 n.1 (Fla. 2012) (“[G]iven that the certified
questions involve legal determinations . . . we employ a de novo standard
of review.”) (citation omitted).

                 3. The Parties’ Arguments to This Court

   The defendant argues the circuit court erred in denying his motion
without an evidentiary hearing. In support of that argument, the
defendant raises four sub-arguments.

   First, because his motion and affidavit asserted his counsel never
advised him that his plea would subject him to a certain and mandatory
deportation, “an evidentiary hearing should be conducted to determine if
the facts expressed in [the] motion are true.”

   Second, in reference to the court’s reasoning that counsel may not
have known that he was not a United States citizen: “[T]he only way to
determine exactly what occurred between [him] and his attorney is to
conduct an evidentiary hearing. . . . [E]ven assuming arguendo that
somehow [counsel] did not know his immigration status[,] [counsel] had
an affirmative duty to find it out and advise [him] that the instant plea
would without a doubt cause him to be deported from the United States.”

  Third, the circuit court’s equivocal warning, that the plea “probably”
would result in his deportation, did not cure any ineffectiveness.

   Fourth, the state agreed an evidentiary hearing was warranted and
requested the court to conduct an evidentiary hearing.

   The state, despite its concession in the circuit court that an
evidentiary hearing was warranted, now argues that the court properly
denied the defendant’s motion without an evidentiary hearing for two
reasons.

   First, the defendant’s motion was facially insufficient because it did
not specify how his counsel failed to advise him accurately about his
plea’s deportation consequences.

   Second, the defendant’s plea form and affirmative response to the
court’s warning that the plea “probably” would result in deportation
conclusively refuted his ineffective assistance claim.


                                   6
                            4. Our Reasoning

   We conclude the circuit court erred in finding: (1) the motion was
facially insufficient; and (2) the motion and record conclusively
demonstrated that the defendant was not entitled to relief.

   We also conclude the court’s warning during the plea colloquy, that
the plea “probably” would result in the defendant’s deportation, did not
necessarily remove any prejudice caused by counsel’s alleged ineffective
assistance, where the plea’s deportation consequences, at least on the
face of the defendant’s motion, may have been “truly clear” at the time of
the plea.

   Thus, the court erred in denying the defendant’s motion without an
evidentiary hearing.

          a. Why the Defendant’s Motion Was Facially Sufficient

   The defendant’s motion was facially sufficient because he alleged, via
his incorporated affidavit: “I was never advised by my criminal defense
attorney of the immigration consequences of my plea.” In other words,
the defendant alleged his counsel did not inform him at all whether the
plea carried the risk of deportation.

    Counsel’s alleged failure to give the defendant any advice regarding
the risk of deportation violates Padilla, where the United States Supreme
Court held: “[C]ounsel must inform [the] client whether [the] plea carries
a risk of deportation.” 559 U.S. at 374.

   Contrary to the circuit court’s finding of facial insufficiency, neither
Padilla nor its progeny contain any requirement that a defendant’s
motion allege: (1) counsel misadvised him concerning the deportation
consequences of his plea; (2) the defendant advised counsel that he was
not a citizen; or (3) the defendant sought advice as to the plea’s
deportation consequences.

   In fact, contrary to the circuit court’s first point, the United States
Supreme Court, in Padilla, expressly rejected the argument that an
ineffective assistance claim exists in the deportation context “only to the
extent that [the defendant] has alleged affirmative misadvice.” Id. at 369.
The Court reasoned:

      [T]here is no relevant difference between an           act   of
      commission and an act of omission in this context.

                                    7
          A holding limited to affirmative misadvice would invite
      two absurd results. First, it would give counsel an incentive
      to remain silent on matters of great importance, even when
      answers are readily available.          Silence under these
      circumstances would be fundamentally at odds with the
      critical obligation of counsel to advise the client of the
      advantages and disadvantages of a plea agreement. When
      attorneys know that their clients face possible exile from this
      country and separation from their families, they should not
      be encouraged to say nothing at all. Second, it would deny a
      class of clients least able to represent themselves the most
      rudimentary advice on deportation even when it is readily
      available.    It is quintessentially the duty of counsel to
      provide [the] client with available advice about an issue like
      deportation and the failure to do so clearly satisfies the first
      prong of the Strickland analysis.

Id. at 370-71 (internal quotation marks, citations, and footnotes omitted).

    For the same reasons, also off-target is the state’s argument to this
court that the defendant’s motion was facially insufficient because it did
not specify how his counsel failed to advise him accurately about his
plea’s deportation consequences. As mentioned above, the defendant did
not allege, and Padilla did not require him to allege, that his counsel
failed to advise him accurately whether the plea carried the risk of
deportation. The defendant alleged, as Padilla permits him to allege, that
his counsel did not inform him at all whether the plea carried the risk of
deportation.

           b. Why the Motion and Record Did Not Demonstrate
               the Defendant Was Not Entitled To Relief

    The motion and record did not demonstrate the defendant was not
entitled to relief, because nowhere in the motion or in the record is it
alleged that counsel informed the defendant whether his plea carried a
risk of deportation.

   The circuit court’s error in this regard (which the state follows in its
argument to this court) stems from the court’s finding that a defendant’s
ineffective assistance of counsel claim in this context can be refuted by
the court’s colloquy with the defendant. That finding is incorrect. The
only way in which the record can refute an ineffective assistance of
counsel claim for failure to inform the defendant whether the plea carried

                                     8
a risk of deportation is for the record to show that counsel informed the
defendant whether the plea carried a risk of deportation. Here, the
record contains no such showing. Cf. Facey v. State, 143 So. 3d 1003,
1004 (Fla. 4th DCA 2014) (record refuted the defendant’s allegation that
counsel failed to “tell him anything” about the immigration consequences
where, during the plea colloquy, the defendant acknowledged talking
with counsel “thoroughly about the consequences”).

   In other words, the circuit court’s error stems from its apparent
merging of Strickland’s two requirements for establishing an ineffective
assistance of counsel claim:

      First, the defendant must show that counsel’s performance
      was deficient. This requires showing that counsel made
      errors so serious that counsel was not functioning as the
      “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense.

466 U.S. at 687. Here, the circuit court found that, “even if [defense
counsel] is deemed to be ineffective for failing to advise as to possible
deportation consequences,” then the court’s warning during the plea
colloquy, that the plea “probably” would result in the defendant’s
deportation, “refute[d] [the defendant’s] claim of ineffectiveness.” That is
incorrect. What the court could have found, in theory, is that counsel’s
performance, on the face of the record only, was deficient, but the court’s
warning during the plea colloquy, that the plea “probably” would result
in the defendant’s deportation, removed any prejudice caused by
counsel’s alleged ineffective assistance. Cf. Facey, 143 So. 3d at 1004
(record refuted the defendant’s allegation that he was prejudiced by
counsel allegedly failing to advise him to consult an immigration attorney
where the defendant signed a plea form which advised him that the plea
“will” result in his deportation).

   However, even the theory that the court’s warning during the plea
colloquy removed any prejudice caused by counsel’s alleged ineffective
assistance does not hold water. Put another way, the court’s warning –
that the plea “probably” would result in the defendant’s deportation – did
not necessarily remove any prejudice caused by counsel’s alleged
ineffective assistance. We expound upon this point in the next section.




                                     9
            c. Why the Court’s Warning During the Plea Colloquy,
    That the Plea “Probably” Would Result in the Defendant’s Deportation,
                  Did Not Necessarily Remove Any Prejudice
             Caused By Counsel’s Alleged Ineffective Assistance

   The court’s warning during the plea colloquy, that the plea “probably”
would result in the defendant’s deportation, did not necessarily remove
any prejudice caused by counsel’s alleged ineffective assistance, because
the plea’s deportation consequences, at least on the face of the
defendant’s motion, may have been “truly clear” at the time of the plea.

  We base this conclusion on our reading of Padilla, Hernandez, and the
Immigration and Nationality Act (INA), as codified in the United States
Code. We address each in turn.

    In Padilla, the United States Supreme Court held:

       When the law is not succinct and straightforward . . . a
       criminal defense attorney need do no more than advise a
       noncitizen client that pending criminal charges may carry a
       risk of adverse immigration consequences. But when the
       deportation consequence is truly clear . . . the duty to give
       correct advice is equally clear.

559 U.S. at 369 (emphasis added; footnote omitted).

   In Hernandez, the Florida Supreme Court held that Padilla’s “truly
clear” standard applying to counsel’s deportation advice also applied to
Florida Rule of Criminal Procedure 3.172(c)(8)’s court-required
deportation warning1:

1   Rule 3.172(c)(8) provides, in pertinent part:

       (c) Determination of Voluntariness. Except when a defendant is
       not present for a plea . . . the trial judge should, when determining
       voluntariness, place the defendant under oath and shall address
       the defendant personally and shall determine that he or she
       understands:

       ....

       (8) that if he or she pleads guilty or nolo contendere, if he or she is
       not a United States citizen, the plea may subject him or her to
       deportation pursuant to the laws and regulations governing the
       United States Immigration and Naturalization Service.

                                         10
       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. Padilla, 130 S.Ct. at 1483. 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.

          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 affect
       his immigration status.       In other words, the colloquy
       required by rule 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.

124 So. 3d at 763 (emphasis added).

   Thus, the issue for this court is whether the defendant’s plea to
carrying a concealed firearm, at least on the face of the defendant’s
motion and the INA, had:

      “possible immigration consequences,” id. (i.e., it was not “truly
       clear” that the plea would result in deportation), for which the
       court’s rule 3.172(c)(8) warning that the plea “probably” would
       result in the defendant’s deportation may have been sufficient; or

      “presumptively mandatory consequences,” id. (i.e., it was “truly
       clear” that the plea would result in deportation), for which the
       court’s rule 3.172(c)(8) warning that the plea “probably” would
       result in the defendant’s deportation may have been insufficient.




(emphasis added).

                                     11
   After examining the INA, we conclude the plea’s deportation
consequences, at least on the face of the defendant’s motion and the INA,
may have had “presumptively mandatory consequences,” id. (i.e., it may
have been “truly clear” that the plea would result in deportation), for
which the court’s rule 3.172(c)(8) warning that the plea “probably” would
result in the defendant’s deportation may have been insufficient.

    The defendant’s motion and his immigration attorney’s supporting
affidavit cite section 237(a)(2)(C) of the INA as the basis for why the
defendant’s plea to carrying a concealed firearm made him “mandatorily
deportable.”

   INA section 237(a)(2)(C), codified at 8 U.S.C. § 1227(a)(2)(C) and
entitled “Deportable aliens,” provides, in pertinent part:

      (a) Classes of deportable aliens

      Any alien . . . in and admitted to the United States shall,
      upon the order of the Attorney General, be removed if the
      alien is within one or more of the following classes of
      deportable aliens:

      ....

      (2) Criminal offenses

      ....

      (C) Certain firearm offenses

      Any alien who at any time after admission is convicted under
      any law of . . . carrying . . . any weapon . . . which is a
      firearm . . . in violation of any law is deportable.

(emphasis added).

    Further, INA section 238(a)(1), codified at 8 U.S.C. § 1228(a)(1) and
entitled “Expedited removal of aliens convicted of committing aggravated
felonies,” provides, in pertinent part:

      (a) Removal of criminal aliens

      (1) In general


                                     12
      The Attorney General shall provide for the availability of
      special removal proceedings at certain Federal, State, and
      local correctional facilities for aliens convicted of any
      criminal offense covered in section 1227(a)(2) . . . (C) . . . of
      this title . . . . Such proceedings shall be conducted . . . in a
      manner which assures expeditious removal following the end
      of the alien’s incarceration for the underlying sentence.

   Lastly, INA section 240A(a), codified at 8 U.S.C. § 1229b(a) and
entitled “Cancellation of removal; adjustment of status,” provides, in
pertinent part:

      (a) Cancellation of removal for certain permanent residents

      The Attorney General may cancel removal in the case of an
      alien who is inadmissible or deportable from the United
      States if the alien --

      (1) has been an alien lawfully admitted for permanent
      residence for not less than 5 years,

      (2) has resided in the United States continuously for 7 years
      after having been admitted in any status, and

      (3) has not been convicted of any aggravated felony.2

   Applying the foregoing provisions to the face of the defendant’s
motion, the defendant’s plea to carrying a concealed firearm may have
had “presumptively mandatory consequences” (i.e., it may have been
“truly clear” that the plea would result in deportation) for the following
reasons:

         The plea to carrying a concealed firearm subjects the defendant
          to mandatory deportation upon the order of the Attorney
          General, see 8 U.S.C. § 1227(a)(2)(C);

         The plea to carrying a concealed firearm subjects the defendant
          to expedited deportation, see 8 U.S.C. § 1228(a)(1); and



2  8 U.S.C. § 1101(a)(43) defines “aggravated felony” by identifying
approximately two dozen qualifying offenses, but does not identify carrying a
concealed firearm as one of those qualifying offenses.

                                     13
         The Attorney General may not cancel the defendant’s
          deportation, because he has not been an alien lawfully admitted
          for permanent residence for not less than 5 years and has not
          resided in the United States continuously for 7 years after
          having been admitted in any status, see 8 U.S.C. § 1229b(a)(1)
          & (2). According to the defendant’s affidavit, he entered the
          United States as a lawful permanent resident on June 8, 2007,
          which was less than five years from his offense on May 19,
          2010, and his plea and conviction on November 10, 2011.

   Thus, because the plea’s deportation consequences, at least on the
face of the defendant’s motion and the INA, may have had “presumptively
mandatory consequences” (i.e., it may have been “truly clear” that the
plea would result in deportation), the court’s rule 3.172(c)(8) warning
that the plea “probably” would result in the defendant’s deportation may
have been insufficient. Padilla, 559 U.S. at 369; Hernandez, 124 So. 3d
at 763. As a result, the circuit court erred in denying the defendant’s
3.850 motion without an evidentiary hearing.

   Based on the foregoing, we reverse the circuit court’s order denying
the defendant’s rule 3.850 motion without an evidentiary hearing. We
remand for the court to conduct an evidentiary hearing on the motion.3

3   In reaching our decision, we note an error in our Facey opinion which is
referenced in section 4.b. above. In Facey, we stated that the defendant “was
not convicted of an aggravated felony and may qualify for discretionary
cancellation of removal. See 8 U.S.C. § 1229b.” 143 So. 3d at 1005. That
statement was error because it ignored section 1229b’s other two requirements
for a defendant to qualify for discretionary cancellation of removal: being
“lawfully admitted for permanent residence for not less than 5 years” and
having “resided in the United States continuously for 7 years after having been
admitted in any status.” 8 U.S.C. § 1229b(a)(1) & (2). The defendant in Facey
“was admitted to the United States on September 11, 2007” and “[t]he offense
was committed in November 2010.” 143 So. 3d at 1005. Thus, at the time the
of the offense, the defendant had not been “lawfully admitted for permanent
residence for not less than 5 years” and had not “resided in the United States
continuously for 7 years after having been admitted in any status.” As a result,
he did not meet section 1229b’s other two requirements for a defendant to
qualify for discretionary cancellation of removal.

    However, that error was harmless (and is dicta) because we based our
decision to affirm the circuit court’s denial of the defendant’s rule 3.850 motion
on two other independent grounds: (1) the record refuted the defendant’s
allegation that counsel failed to “tell him anything” about the immigration
consequences where, during the plea colloquy, the defendant acknowledged
talking with counsel “thoroughly about the consequences”; and (2) the record

                                       14
   Reversed and remanded for an evidentiary hearing.

WARNER, J., concurs.
CIKLIN, C.J., dissents with opinion.

CIKLIN, C.J., dissenting.

   I respectfully dissent. The trial judge advised the defendant during
the plea colloquy that he “probably” will be deported. This has not been
shown to be inaccurate.

   Requiring an attorney to provide definitive advice that deportation is
“certain” may compel attorneys to provide wrong advice. See State v.
Shata, No. 2013AP1437-CR, 2015 WL 4112673, at *19-20 (Wis. July 9,
2015) (holding that lawyer’s advice that there was a “strong chance” of
deportation was not deficient and attorney was not required to tell him
that his conviction would “absolutely result” in deportation).           As
explained in Shata, federal officials have prosecutorial discretion as to
removal proceedings, and there may be “avenues for deportable aliens to
avoid deportation.” Id. at *14. Other courts have concluded that an
attorney is not required to advise a client that deportation is certain to
occur. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct.
2013)(concluding that counsel’s advice that deportation was likely and
possible was correct and not deficient), appeal denied, 86 A.3d 232 (Pa.
2014); Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013)
(holding that counsel’s advice that it was “very likely” defendant would be
deported was not deficient).

   Immigration law is often complex, and state courts and criminal
defense lawyers are generally not well versed in it. Requiring state courts
to make definitive pronouncements and delve deep into immigration law
matters in postconviction proceedings may further complicate the law.

   I would hold that the court’s accurate warning in this case
conclusively refutes the potential prejudice.




refuted the defendant’s allegation that he was prejudiced by counsel allegedly
failing to advise him to consult an immigration attorney where the defendant
signed a plea form which advised him that this plea “will” result in his
deportation. 143 So. 3d at 1004. Although the error was dicta, we note the
error here so that courts and practitioners do not rely on the error in the future.

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Not final until disposition of timely filed motion for rehearing.




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