DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ANGELA ROSARIO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-4329

[January 7, 2015]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Nineteenth Judicial Circuit, Indian River County; Robert L. Pegg, 

Judge; L.T. Case No. 312010CF000316B.

Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, 

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm the trial court’s order dismissing appellant’s second amended 

motion for postconviction relief in which she claimed that she was entitled 

to withdraw her plea to criminal charges because her counsel was 

ineffective or violated a Sixth Amendment duty under Padilla v. Kentucky, 

559 U.S. 356 (2010). Padilla held “that counsel must inform [the] client 

whether [a] plea carries a risk of deportation.” Id. at 374. Counsel did not 

violate this duty.

This court and others have held that, in a situation where a defendant 

seeks to withdraw a plea based on Padilla, and alleges lack of knowledge 

of the risk of deportation, prejudice cannot be established if the defendant 

was present in the country unlawfully or was otherwise subject to removal. 

Ibarra v. State, 125 So. 3d 820, 821 (Fla. 4th DCA 2013); Ioselli v. State, 

122 So. 3d 388, 390 (Fla. 4th DCA 2013); Joseph v. State, 107 So. 3d 492 

(Fla. 4th DCA 2013); see also Garcia v. State, 425 S.W.3d 248, 261 n.8 

(Tenn. 2013) (“[C]ourts have consistently held that an illegal alien who 

pleads guilty cannot establish prejudice, even if defense counsel failed to 
2

provide advice about the deportation consequences of the plea as Padilla

requires, because a guilty plea does not increase the risk of deportation 

for such a person.”); United States v. Sinclair, 409 F. App’x 674, 675 (4th 

Cir. 2011); Gutierrez v. United States, 560 F. App’x 924, 927 (11th Cir. 

2014), cert. denied, 135 S. Ct. 302 (2014); State v. Guerrero, 400 S.W.3d 

576, 589 (Tex. Crim. App. 2013).

We have considered the original motion and first amended motion as 

well. We agree with the trial court that these motions were insufficient. 

At the time of the plea, appellant was aware that she was in the country 

unlawfully and that she was subject to removal. She was aware of the 

possibility of her deportation. The plea that she entered to misdemeanor 

petit theft was not to an aggravated felony which subjected her to 

automatic deportation that was “truly clear” from the face of the 

immigration statute. See Hernandez v. State, 124 So. 3d 757, 763 (Fla. 

2012) (holding that where a deportation consequence is “truly clear” a 

warning that defendant “may” be deported does not cure the prejudice 

from counsel’s deficiency in failing to provide more than equivocal advice 

about deportation).

Appellant admits that, from their first meeting, defense counsel told her 

that he did not practice immigration law and would not advise her about 

immigration consequences. He suggested that she retain an immigration 

lawyer. Beyond advising of the risk of deportation as required by Padilla, 

counsel had no affirmative duty to provide advice about other possible 

immigration ramifications of the plea, such as whether the plea might 

negatively impact her ability to obtain an adjustment in status, a waiver 

of inadmissibility, or cancellation of removal. Padilla did not create a duty 

for criminal defense counsel to provide all manner of advice about possible 

immigration consequences flowing from a plea. Counsel acted 

appropriately in advising the client to consult an immigration lawyer.

In fact, appellant was represented by an immigration lawyer as she was 

seeking an adjustment in status to become a legal resident, which she 

claims she would be entitled to because of her marriage to a U.S. citizen. 

Appellant alleged in her motions that she “assumed” that defense counsel 

was conferring with her immigration attorney as the case progressed and 

“reasonably believed” that a withhold of adjudication would not have an 

adverse effect on her attempt to obtain an adjustment in status. She 

alleged that counsel advised her that a withhold of adjudication “was not 

a conviction.” In none of her motions did appellant allege that counsel 

gave her any misadvice as to the effect of the plea on her request for 

adjustment in status. Cf. Ghanavati v. State, 820 So. 2d 989, 991 (Fla. 

4th DCA 2002) (finding that a claim that criminal defense counsel gave 
3

affirmative misadvice about immigration may be a basis for withdrawing a 

plea), cited with approval, Ey v. State, 982 So. 2d 618, 622 (Fla. 2008). Her 

allegation that defense counsel had agreed to consult with the immigration 

lawyer before any plea, and her assumption that this had occurred, were

insufficient to state a claim for relief under either Padilla or based on 

“affirmative misadvice.” The trial court did not err in striking the original 

and first amended motions as legally insufficient.1

Appellant essentially seeks to expand the Sixth Amendment duty 

recognized by Padilla to include an affirmative duty for criminal defense 

counsel to advise an undocumented immigrant whether a plea will have a 

negative impact on the possibility of avoiding removal or being able to 

reenter. The possibility for an adjustment in status, a matter within the 

exclusive discretion of federal officials, is too speculative and not a proper 

basis to support prejudice for a Padilla claim. See Rosas v. State, 991 So. 

2d 1003, 1003-04 (Fla. 4th DCA 2008). Padilla involved a defendant who 

was lawfully present in the country and not otherwise subject to removal. 

The deportation consequence he faced was clear and automatic from the 

face of the statute. That is not the situation here. We decline to extend 

Padilla’s holding.

Finally, the trial court did not abuse its discretion in declining to permit 

further opportunity to amend or in concluding that appellant failed to 

show excusable neglect for the untimely filing of the second amended 

motion. See Parker v. State, 907 So. 2d 694, 695 (Fla. 4th DCA 2005) 

(explaining that under rule 3.050, a party seeking an extension of time 

after the time limit has expired, must show good cause and excusable 

neglect).

Affirmed.

WARNER, GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Although the trial court dismissed the second amended motion as insufficient 

because it was not sworn, the second amended motion remained substantively 

insufficient to state a claim for relief.