Trial Counsel Ineffective For Misadvising Defendant He Would Not Be Deported
September 30, 2120 (Jacksonville, FL) – G.M was charged with lewd and lascivious conduct and as a result hired private counsel to represent him for his criminal case. Prior to trial the State had extended an offer to reduce the offense to felony battery if G.M. accepted a plea of 5-years in prison. When G.M. was advised of this plea offer by trial counsel, he asked his attorney if by accepting the State”s offer would he be subject him to deportation. Counsel advised him to retain an immigration attorney.
After retaining an immigration attorney, G.M.’s trial attorney consulted with the immigration attorney and advised G.M. that entering a plea to felony battery would not subject G.M. to deportation. Based upon trial counsel’s advice G.M. accepted the plea and was sentenced to 5-years in prison. While serving his his prison sentence, G.M. was notified by ICE that as a result of him entering a plea to felony battery deportation proceedings were being initiated.
A Rule 3.850 motion asking to vacate the sentence was filed alleging trial counsel was ineffective for misadvising G.M. that he would not be subject to deportation for accepting a plea that resulted in a conviction for felony battery. The trial court set the matter for an evidentiary hearing. Prior to the hearing attorney Malove spoke to the assistant state attorney and provided him with copies of text messages proving that trial counsel advised G.M’s wife numerous times that G.M. would not be deported for accepting a plea to felony battery. We also provided a letter from the immigration attorney that was emailed to the trial attorney informing him that a plea to felony battery would result in G.M. being subject to deportation, contrary to what G.M. was advised.
As a result of our hard work and attention to detail, the Assistant State Attorney agreed that based upon the text messages and email from the immigration attorney that trial counsel was ineffective. I convinced the State to vacate the plea and allow G.M to enter a new plea to a charge that would not subject him to deportation. Ultimately, the evidentiary hearing turned into a motion to vacate the plea hearing which was granted and G.M. was allowed to plea to an offense that did not subject him to deportation.
G.M’s ICE hold was immediately terminated and he was released to be back with his family. Attention to detail and knowledge of the law makes a difference in post-conviction.
Sentence vacated. Deportation proceedings dismissed!