FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3517

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MOHAMMED ALSUBAIE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Gary L. Bergosh, Judge.

April 29, 2019

B.L. THOMAS, C.J.

Appellant challenges the lower court’s denial of his motion for 

postconviction relief, arguing that his counsel was ineffective in 

failing to advise him of the deportation consequences of his no 

contest plea. Because Appellant has shown a reasonable 

probability that he would have rejected the plea and proceeded to 

trial had he been adequately informed of the plea’s deportation 

consequences, we reverse. 

Facts

In February 2014, Appellant was charged by information with 

possession of a controlled substance (cocaine), possession of a 

controlled substance (less than 20 grams of cannabis), and driving 

without a valid driver’s license. 
2

The charges stemmed from Appellant’s arrest after an 

Escambia County sheriff’s deputy stopped Appellant for running a 

red light. During the traffic stop, Appellant told the officer he did 

not have a valid driver’s license and that there was marijuana 

under the driver’s seat. The officer searched Appellant’s person 

incident to the arrest and found a “small white rock” in Appellant’s 

front left pocket; the rock field-tested positive as a cocaine-based 

substance. 

Appellant filed a motion to suppress the evidence seized 

during the traffic stop, arguing that the traffic stop was unlawful. 

The trial court denied Appellant’s motion. Appellant entered a 

plea of no contest and reserved the right to appeal the trial court’s 

ruling on his motion to suppress. We affirmed per curiam. 

Alsubaie v. State, 151 So. 3d 1231 (Fla. 1st DCA 2014) (Table). 

Appellant’s plea agreement stated that he understood that if 

he was not a citizen of the United States, his plea to the charges 

may result in his deportation or expulsion from the United States. 

During the plea colloquy, Appellant stated he had read, 

understood, agreed with, and signed the plea agreement:

THE COURT: And you understand about being a 

U.S. citizen? 

[APPELLANT]: Yes, sir. 

THE COURT: It’s possible that this could -- you 

could be deported. Well, he’s not adjudicated, but it’s 

possible you could be deported; do you understand that?

[APPELLANT]: Yes, sir. 

(Emphasis added.) The trial court found that Appellant freely and 

voluntarily entered the plea, and the court accepted the plea. The 

court withheld adjudication on the felony cocaine possession count, 

and sentenced Appellant to 36 months’ probation. The court 

adjudicated Appellant guilty on the two misdemeanor counts, and 

sentenced Appellant to concurrent six-month terms of probation 

for each count. 

In 2016, Appellant received a Notice to Appear from the U.S. 

Department of Homeland Security (“DHS”), stating that he was 

removable from the United States due to his convictions for 
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possession of cocaine and possession of marijuana. Appellant 

subsequently filed a motion for postconviction relief pursuant to 

Florida Rule of Criminal Procedure 3.850, arguing that counsel 

was ineffective for failing to advise Appellant of the immigration 

consequences of his plea. Appellant attached an affidavit to his 

motion as an exhibit, swearing that “[i]f I had known that by 

entering my plea in this case I would become subject to mandatory 

deportation I never would have entered it.” 

At an evidentiary hearing on Appellant’s motion, Appellant 

testified that he is a citizen of Saudi Arabia, and he received

lawful, permanent resident status in the United States in 2013. 

Appellant’s postconviction counsel stated that although the trial 

court withheld adjudication on the felony count, the federal 

government treats a felony plea of nolo contendere as the 

functional equivalent of being adjudicated guilty of a felony, even 

if adjudication is withheld. Appellant testified that he was 

therefore placed in removal proceedings as a convicted felon, 

despite the court withholding adjudication. 

Appellant testified that his trial counsel did not advise him 

that his no contest plea would result in his mandatory deportation 

and did not advise him to consult an immigration lawyer. He 

testified that, had he known that as a result of his plea he would 

be placed into DHS custody and subjected to mandatory removal, 

he would not have entered the plea, but would have taken his case 

to trial. Appellant’s trial counsel did not testify at the evidentiary 

hearing.

The postconviction court issued an order denying Appellant’s 

motion for postconviction relief. While the court did not dispute 

that deportation was a “‘presumptively mandatory’ consequence of 

[Appellant]’s plea,” the court found that Appellant was not 

prejudiced by his counsel’s failure to adequately advise Appellant 

on the deportation consequences of his plea. The court found that, 

based on the evidence in the record, Appellant had no chance of 

being acquitted at trial of the charges to which he pled no contest, 

and he therefore “would have been just as removable by 

immigration officials after a conviction after a jury trial as he was 

in light of a no contest plea.” Because the court found that “it 

would have been objectively unreasonable to reject the State’s plea 

offer,” the court found that Appellant was not prejudiced by his 
4

trial counsel’s failure to advise him on the deportation 

consequences of his plea, and the court denied Appellant’s 

postconviction motion.

Analysis

“When considering a trial court's ruling on a rule 3.850 motion 

after an evidentiary hearing, we defer to the trial court's factual 

findings – provided that they are supported by competent, 

substantial evidence – but we review de novo the trial court's 

‘application of the law to those facts.’” Parenti v. State, 225 So. 3d 

949, 951 (Fla. 5th DCA 2017) (quoting Jennings v. State, 123 So. 3d 

1101, 1113 (Fla. 2013). 

To prove ineffective assistance of counsel, the defendant must 

show that (1) counsel’s performance was deficient, and (2) the 

defendant was prejudiced by that deficient performance. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Where counsel could have easily determined that the 

defendant’s plea would make him eligible for deportation, counsel 

is deficient under the first Strickland prong in failing to give the 

defendant correct and unequivocal advice regarding the 

deportation consequences of his plea. Padilla v. Kentucky, 559 

U.S. 356, 368-69 (2010). 

The State agrees that, because Appellant would be subject to 

virtually certain deportation if he pleaded no contest, Appellant 

was entitled to unequivocal advice that his plea would result in 

deportation – advice he did not receive. Thus, the State 

acknowledges Appellant’s counsel provided deficient performance. 

On the second Strickland prong, “[i]n the context of guilty 

pleas, . . . in order to satisfy the ‘prejudice’ requirement, the 

defendant must show that there is a reasonable probability that, 

but for counsel's errors, he would not have pleaded guilty and 

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 

52, 58-59 (1985). “[T]o obtain relief on this type of claim, a 

petitioner must convince the court that a decision to reject the plea 

bargain would have been rational under the circumstances.” 

Padilla, 559 U.S. 356 at 372. 
5

In Lee v. United States, the Supreme Court analyzed what 

facts are required to adequately demonstrate “a reasonable 

probability that [the defendant] would have rejected the plea had 

he known that it would lead to mandatory deportation.” 137 S. Ct. 

1958, 1967 (2017). Based on the deficient advice of his attorney, 

the defendant in Lee pled guilty and accepted a prison term of one 

year and one day, but later learned that, because he had pled 

guilty to an “aggravated felony,” he would be deported after his 

prison sentence. Id. at 1963. 

The Supreme Court held that it would not have been 

irrational for Lee to go to trial and risk additional prison time in 

order to hold onto some chance of avoiding deportation. Id. at 

1969. The Court noted that, even where loss at trial is a virtual 

certainty, if a defendant views the consequences of losing at trial 

and pleading guilty as “similarly dire, even the smallest chance of 

success at trial may look attractive.” Id. at 1966. 

But for his attorney's incompetence, Lee would have 

known that accepting the plea agreement would certainly

lead to deportation. Going to trial? Almost certainly. . . . 

[I]f the consequences of taking a chance at trial were not 

markedly harsher than pleading, as in this case, that 

“almost” could make all the difference. 

Id. at 1968 (emphasis in original). 

Appellant scored 17.4 points on his Criminal Punishment 

Code score sheet, and therefore likely risked no more than a year 

in county jail if found guilty by a jury.* He presented uncontested 

testimony that he would have gone to trial but for his counsel’s 

 * Had Appellant been found guilty by a jury, the court could 

have sentenced Appellant to a harsher state prison sentence, if it 

made written findings that a nonstate sentence would present a 

danger to the community. See § 775.082(10), Florida Statutes

(2017). However, such a finding was highly unlikely given the 

nature of the charges. See Jones v. State, 71 So. 3d 173, 176 (Fla. 

1st DCA 2011) (holding that a state sentence was improper where 

“the record does not suggest that imprisonment within the state 

prison system rather than the county jail would better deter him 

from” repeating the charged conduct).
6

failure to inform that his plea would lead to certain deportation. 

Coupled with the limited additional consequence of a potential jury 

verdict of guilt, and even a slight possibility of an acquittal, we 

hold that there was a reasonable probability that he would have 

risked proceeding at trial to avoid mandatory deportation. 

Appellant was therefore prejudiced by his trial attorney’s 

failure to unequivocally advise him on the deportation 

consequences of his plea and was thus deprived of his right to 

effective counsel. We reverse the lower court’s order denying 

Appellant’s motion for postconviction relief and remand for a new 

trial. 

REVERSED and REMANDED. 

KELSEY, J., concurs; WINOKUR, J., concurs with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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WINOKUR, J., concurring. 

Alsubaie told the trial court—under oath—that he understood 

he could be deported as a result of his no-contest plea. He also 

swore that he read and understood the plea agreement, which 

likewise informed him that his plea “may result in deportation or 

expulsion from the United States.” That consequence came to 

pass: two years after he entered the no-contest plea, the United 

States Department of Homeland Security informed Alsubaie that 

he was removable from the United States due to his convictions. 

In spite of the clear indication that Alsubaie was made well aware 

that he was facing deportation if he entered the plea, he moved to 

withdraw the plea on the ground that he was not properly advised 

that he was facing deportation.

Alsubaie can make this claim in the face of record evidence to 

the contrary by arguing that his lawyer had a duty to inform him 

of deportation consequences, separate from and in addition to the 

court’s duty to inform him, and by alleging that it was insufficient 
7

to tell him that he may face deportation, when in fact he would

face deportation. 

In any event, Alsubaie is entitled to relief pursuant to 

Hernandez v. State, 124 So. 3d 757 (Fla. 2012). In Hernandez, the 

court applied Padilla v. Kentucky, 559 U.S. 356 (2010), to a Florida 

case. In Padilla, the Supreme Court ruled that a defendant may 

withdraw a guilty plea if counsel did not advise him that the plea 

would subject him to automatic deportation. 559 U.S. at 360. But 

unlike the defendant in Padilla,1 a defendant in Florida would 

have been advised by the trial court during the plea colloquy that 

a plea “may subject him or her to deportation.” Fla. R. Crim. P. 

3.172(c)(8) (2014). Thus, even if counsel failed to advise the 

defendant of deportation consequences, a Florida court was 

required to give this advice as a part of the plea colloquy.

However, the court in Hernandez ruled that the plea colloquy, 

even one complying with the 2014 version of Rule 3.172(c)(8), was 

insufficient to remove prejudice resulting from counsel’s failure to 

advise the defendant about deportation, when deportation 

consequences were “truly clear.” Hernandez, 124 So. 3d at 763. In 

other words, the court’s advice required by the rule constituted an 

“equivocal warning” because it stated that the defendant “may” be 

deported, which was insufficient in cases where deportation was in 

fact “presumptively mandatory” under federal law. Id.

Under this standard, it appears that Alsubaie’s counsel was 

deficient for failing to inform him of the fact that his deportation 

was “presumptively mandatory” under federal law. Moreover, 

neither his sworn testimony that he was aware that he may be 

deported, nor his acknowledgement that he signed and understood 

an agreement informing him of the same, was sufficient to 

overcome counsel’s deficiency.2

 1 See Com. v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), rev’d 

and remanded sub nom. Padilla v. Kentucky, 559 U.S. 356 (2010).

2 Since the State never introduced trial counsel’s testimony at 

the evidentiary hearing, we are left only with Alsubaie’s testimony 

that counsel told him nothing about deportation consequences of 

the plea.
8

But for Hernandez, I would affirm the trial court’s ruling 

because the record reflects that Alsubaie was told explicitly that 

he could be deported, regardless of what counsel told him or failed 

to tell him. Florida courts often reject postconviction claims that 

counsel misadvised defendants, when the alleged misadvice is 

inconsistent with the defendant’s sworn answers given in a plea 

colloquy. See, e.g., La Page v. State, 29 So. 3d 1168, 1170 (Fla. 1st 

DCA 2010) (rejecting the defendant’s claim that counsel 

misadvised him regarding his potential sentence because the plea 

colloquy showed that trial court “clearly informed Appellant of the 

potential sentence he was facing”); Lamkin v. State, 215 So. 3d 640, 

641 (Fla. 5th DCA 2017) (holding that the trial court’s “express 

statements during the plea colloquy that it makes no promises as 

to the sentence . . . can refute a defendant’s claims that, under the 

advice of counsel, the defendant entered a plea believing he would 

receive a particular sentence”). It is therefore difficult to see how 

any lack of advice from Alsubaie’s counsel about deportation 

prejudiced him, in light of evidence that he understood that he may 

be deported. And it is difficult to understand how advice that he 

may be deported is insufficient merely because federal law 

provides that his deportation was “presumptively mandatory.”

I am confident, however, that this issue will not continue to 

arise. Alsubaie entered his plea in 2014. In 2015, Rule 3.172(c)(8) 

was substantially amended. In re Amendments to Fla. Rules of 

Criminal Procedure, 188 So. 3d 764 (Fla. 2015). The subdivision 

no longer requires merely a brief warning that a plea “may subject” 

the defendant to deportation, which it did when Alsubaie entered 

his plea. The subdivision now requires the court to advise the 

defendant to consult with counsel regarding deportation 

consequences, and to allow a reasonable amount of time to permit 

the defendant to consider the plea in light of deportation 

consequences. Fla. R. Crim. P. 3.172(c)(8) (2018). See Goddard v. 

State, 217 So. 3d 1105, 1110 n.2 (Fla. 2d DCA 2017) (recognizing 

the effect of rule amendment). I have not found any cases where a 

defendant was permitted to withdraw a plea pursuant to 

Hernandez where the court read the defendant the post-2015 rule. 

One may hope that judges giving advice pursuant to the new rule 

have adequately informed defendants of deportation 

consequences, and that courts will no longer be compelled to order 

the withdrawal of guilty pleas as in this case. 
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_____________________________

Jason Cromey, Pensacola, for Appellant.

Ashley Moody, Attorney General, Anne Conley and Amanda D. 

Stokes, Assistant Attorneys General, Tallahassee, for Appellee.