Rabess v. State, 38 Fla. L. Weekly D1343a (Fla. 4th DCA June 19, 2013):  Where a defendant is advised that a plea “may” or “could” cause deportation consequences, and based on the charges and the defendant’s immigration status is is “truly clear and automatic” that the defendant will be deported, the “may” or “could” equivocal warnings are inadequate and a defendant should be allowed to withdraw the plea causing the immigration problem.  *Yes, I am the master of the run-on sentence.

Under Padilla v. Kentucky, 559 U.S. 356 (2010), in such circumstances a defendant must make a showing that withdrawal of the plea is necessary to correct a “manifest injustice.”  The Florida criminal appeal court held that to make such a showing under Rule 3.170(l), a defendant must establish the same criteria that would be required of him in a Rule 3.850 motion for postconviction relief.  The criminal court of appeal cited to another recent ruling in explaining the principle:

In Cano v. State, 38 Fla. L. Weekly D925, 2013 WL 1748535 (Fla. 4th DCA Apr. 24, 2013), we described what a movant must establish in these circumstances:

Where a movant has received the standard “may” or “could” deportation warning required by rule 3.172(c)(8), to state a claim for relief under Padilla, a movant must establish the following: (1) that the movant was present in the country lawfully at the time of the plea; (2) that the plea at issue is the sole basis for the movant’s deportation; (3) that the law, as it existed at the time of the plea, subjected the movant to “virtually automatic” deportation; (4) that the “presumptively mandatory” consequence of deportation is clear from the face of the immigration statute; (5) that counsel failed to accurately advise the movant about the deportation consequences of the plea; and (6) that, if the movant had been accurately advised, he or she would not have entered the plea.

Defendant was permitted to withdraw the plea.  This case demonstrates the heightened burden placed on defense attorneys to understand immigration law with regard to pleas, or to engage an immigration attorney to consult on the matter.

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