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Non-U.S. citizens convicted of crimes are subject to deportation

Non-U.S. citizens accused of crimes face not only incarceration but also deportation. This applies even to those who have resided in the United States for an extended period of time as a legal resident.

Those charged with crimes in state court may be offered plea agreements that involve no jail time, and; therefore, at first blush seem to be a reasonable resolution of the case even if the defendant did not commit the crime.

By agreeing to such a plea, the defendant avoids the costs of going to trial and potential incarceration if found guilty. Consequences of deportation, however, may not be immediately apparent.

The increased scrutiny of the United States government of non-U.S. citizens since 9/11 has led to problems for many people who pled no contest or guilty to minor charges.

Fla. R. Crim. P. 3.172(c)(a), provides that any defendant pleading guilty or nolo contendere must be advised by the trial judge that if the person is not a U.S. citizen, the plea may subject the person to deportation pursuant to the laws of the United States.

The Florida Supreme Court in the 2006 case of State v. Green, 944 So. 2d 208 (Fla. 2006), held that a defendant who was not properly advised of the consequences of deportation involved in entering a plea of guilty or no contest, may seek to withdraw the plea.

There is a time limit for a defendant to take advantage of this ability to withdraw a plea if the defendant was not properly advised of the deportation consequences. Specifically, Fla. R. Crim. P. 3.850(b), requires that a motion to withdraw a plea is subject to a limitation period of two years. The time limit commences when the judgment and sentence become final. The defendant must establish that he or she is subject to deportation because of the plea, but need not establish that the defendant has been specifically threatened with deportation.

In the Green case, the defendant pled no contest to assault and battery. This conviction however, subjected him to deportation.

Before the Green case, the Florida Supreme Court's decision in Peart v. State, 756 So. 2d 42 (Fla. 2000), held that the two-year limitation period did not commence until the defendant was actually threatened with deportation.

On March 31, 2010 the United States Supreme Court issued its opinion in the case ofPadilla v. Kentucky, 2010 WL 1222274, recognizing the importance of potential deportation to a defendant who pleads guilty. The Supreme Court ruled that a lawyer who does not advise a defendant that a guilty plea may cause deportation violates the attorney's duties under the Sixth Amendment.

Because of the severe consequence of deportation, any non-U.S. citizen who is confronted with the decision to enter a plea of guilty or no contest in a criminal case, should consider that such a plea may result in deportation. The entry of a plea of guilty or no contest should be thoroughly considered before deciding whether to enter into a plea or risk going to trial. Consultation with a defense attorney should include the risks of going to trial and conviction compared to the risk of deportation. For this reason, experienced trial counsel in a criminal defense case is of extreme importance.