NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

NELY YAMILETH YANEZ, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D13-5017 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed April 17, 2015. 

Appeal from the Circuit Court for 

Hillsborough County; Michelle Sisco, Judge. 

Michelle Borton and Paul Palacios, Tampa, 

for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Patricia A. McCarthy, 

Assistant Attorney General, Tampa, for 

Appellee. 

Rebecca Sharpless of Immigration Clinic, 

University of Miami School of Law, Coral 

Gables, for Amici Curiae, The American 

Immigration Lawyers Association, Central 

and South Florida Chapter, and The 

National Immigration Project of The National 

Lawyers Guild. 
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CASANUEVA, Judge. 

Nely Yamileth Yanez appeals an order denying her motion for 

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The 

motion alleged that her attorney failed to warn her that her guilty plea to public 

assistance fraud subjected her to deportation, and therefore, the attorney rendered 

ineffective assistance of counsel pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).1 

Relying on Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013), the trial court summarily 

denied the motion based on the fact that Ms. Yanez was not lawfully in this country 

when she entered the plea. We agree with Cano and Rosario v. State, 40 Fla. L. 

Weekly D172 (Fla. 4th DCA Jan. 7, 2015), and conclude that because Ms. Yanez was 

in this country unlawfully, she cannot show that she was prejudiced by counsel's 

misadvice as she was already subject to deportation before she entered the plea. 

As this court noted in Odegaard v. State, 137 So. 3d 505, 507 (Fla. 2d 

DCA 2014) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)), in order to 

establish a claim of ineffective assistance of counsel, "a defendant [must] demonstrate 

first that counsel's performance was deficient and second that the deficient performance 

prejudiced the defense." To meet the second prong, "[t]he defendant must show that 

there is a reasonable probability that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694). 

In the context of a plea, a defendant meets the prejudice requirement only where she 

can demonstrate "a reasonable probability that, but for counsel's errors, [she] would not 

 

 1Ms. Yanez received a withhold of adjudication and was sentenced to 

three years of probation. 
- 3 -

have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 

52, 59 (1985). A defendant must establish "that a decision to reject the plea bargain 

would have been rational under the circumstances." Hernandez v. State, 124 So. 3d 

757, 762 (Fla. 2012) (quoting Padilla, 559 U.S. at 372). 

In Padilla, 559 U.S. at 374, the Court held that defense counsel must 

inform her client if a plea involves a risk of deportation. In that case, the Court held that 

the appellant did not receive "constitutionally competent counsel" because counsel 

failed to advise the appellant that his drug distribution conviction made him subject to 

automatic deportation. Id. at 360. Ms. Yanez alleged in her motion that her guilty plea 

made her "subject to deportation." She alleged that her offense is a deportable offense 

under 8 U.S.C. § 1227(a)(2)(A)(i) as an alien who has committed a crime involving 

moral turpitude for which a sentence of more than one year may be imposed. See 

generally Facey v. State, 143 So. 3d 1003, 1005 (Fla. 4th DCA 2014) ("Third-degree 

grand theft does not appear to be an aggravated felony but may be a crime of moral 

turpitude which can result in removal if committed within five years of admission. See 8 

U.S.C. § 1227(a)(2)(A)(i)." (emphasis added)). 

We conclude that even if Ms. Yanez could establish the first prong of 

Strickland due to counsel's misadvice, she cannot establish the second prong, because 

she cannot show that a decision to reject the plea bargain would have been rational 

under the circumstances where she was already subject to deportation. When she 

entered the plea, Ms. Yanez knew that she was in this country unlawfully and that there 

was a possibility that she would be deported. As the Fourth District noted in Rosario, 40 

Fla. L. Weekly at D172, "in a situation where a defendant seeks to withdraw a plea 
- 4 -

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." See Ibarra v. State, 125 So. 3d 820, 821 (Fla. 4th DCA 

2013) ("As an illegal alien, appellant had no legitimate expectation that he would be 

allowed to remain in this country when he committed the offenses and entered the plea 

at issue."). 

In Cano, 112 So. 3d at 648, the court similarly held as follows: 

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. 

(Emphasis added.) 

Ms. Yanez admitted in her motion that she was also charged with being 

removable under 8 U.S.C. §1182(a)(6)(A)(i) and §1182(a)(7)(A)(i)(I). She argued, 

however, that neither of these provisions prohibit her from asserting relief from 

deportation under 8 U.S.C. § 1229b(b)(1)(C), which provides that the attorney general 

may cancel the removal of an alien in certain situations but not if the alien has been 

convicted of an offense under section 1227(a)(2). 

The possibility that Ms. Yanez could have obtained an adjustment in 

status was "a matter within the exclusive discretion of federal officials, [and was] too 
- 5 -

speculative and not a proper basis to support prejudice for a Padilla claim." See 

Rosario, 40 Fla. L. Weekly at D173. As the Rosario court noted, Padilla did not expand 

counsel's duty to affirmatively "advise an undocumented immigrant whether a plea will 

have a negative impact on the possibility of avoiding removal or being able to reenter." 

Id. Even though the Court did not address the prejudice prong in Padilla, it noted that 

the appellant had been a lawful permanent resident of the United States for over forty 

years and had served the country with honor in the United States Armed Forces during 

the Vietnam War. 559 U.S. at 359-60. Before entering his plea, Mr. Padilla's status as 

a lawful permanent resident of this country provided him certain rights, including the 

right to remain in this country. Ms. Yanez did not enjoy the same right to remain in this 

country before she entered her plea. 

 Accordingly, we conclude that because Ms. Yanez was in this country 

unlawfully and was subject to removal on that basis alone, she cannot establish that she 

was prejudiced by her counsel's failure to advise her that she was subject to 

deportation. 

 Affirmed. 

 

WALLACE and KHOUZAM, JJ., Concur.