NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

MIGUEL MENCHACA-RAMIREZ, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D13-3152 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

________________________________ ) 

Opinion filed December 17, 2014. 

Appeal from the Circuit Court for Polk 

County; Roger A. Alcott, Judge. 

Joseph ThurdeKoos of Maney & 

Gordon, P.A., Orlando, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Peter Koclanes, 

Assistant Attorney General, Tampa, 

for Appellee. 

KELLY, Judge. 

 Miguel Menchaca-Ramirez appeals from the order denying his Motion to 

Vacate/Set Aside Judgment and Sentence under Florida Rule of Criminal Procedure 

3.850. We reverse the order and remand for further proceedings. 
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 In 2008, Menchaca-Ramirez entered a nolo contendere plea to uttering a 

forged instrument, driving while license suspended (habitual offender), and several 

other offenses. He was adjudicated guilty and sentenced to a total of 364 days in jail 

followed by two years' probation. In 2011, Menchaca-Ramirez admitted to violating his 

probation. The court revoked Menchaca-Ramirez's probation and sentenced him to 

concurrent terms of fourteen months' incarceration on the uttering a forged instrument 

and driving while license suspended convictions; the sentences on the remaining counts 

were unchanged. 

 Thereafter, Menchaca-Ramirez sought to withdraw his admission to 

violating his probation on the ground that it was involuntary. He claimed that his 

counsel did not advise him that under the Immigration and Nationality Act, a sentence 

exceeding one year would aggravate his two convictions for uttering a forged instrument 

making him deportable with no ability to seek relief.1 Menchaca-Ramirez contended 

that if counsel had informed him he would be ineligible to request relief in removal 

proceedings he would not have admitted the violation and would have proceeded to 

trial. 

 The postconviction court held an evidentiary hearing on MenchacaRamirez's motion. No testimony was taken as Menchaca-Ramirez had been deported, 

and the court accepted the stipulation of defense counsel that she advised MenchacaRamirez that his admission "may" have immigration consequences and that he should 

 1See 8 U.S.C. § 1227(a)(2)(A)(i) (2012) (stating that any alien who is 

convicted of a crime of moral turpitude and receives a sentence of one year or longer is 

deportable); 8 U.S.C. § 1229b(b)(1)(C) (2012) (providing that the attorney general can 

cancel removal under certain circumstances but not if the alien has been convicted 

under 8 U.S.C. § 1227(a)(2) (2012)). 
- 3 -

talk to an immigration lawyer if he was concerned. The court cited the transcript of the 

2011 plea colloquy where the court informed Menchaca-Ramirez, "if you are not a 

United States citizen, this plea would subject you to deportation." The court found this 

language sufficient to place Menchaca-Ramirez on notice of the immigration 

consequences of his plea and denied the motion. 

 "[W]hen the deportation consequence [of a plea] is truly clear . . . the duty 

to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 357 (2010). 

Here, unlike his original plea, Menchaca-Ramirez's admission to the probation violation 

resulted in his mandatory deportation and eliminated his eligibility for deportation relief. 

Under these particular circumstances, even if the trial court's deportation warning during 

the plea colloquy is considered sufficient, it does not cure the prejudice resulting from 

counsel's failure to advise Menchaca-Ramirez of the "truly clear" deportation 

consequences of his admission as required by Padilla. See Hernandez v. State, 124 

So. 3d 757, 763 (Fla. 2012). 

 Reversed and remanded. 

BLACK, J., Concurs. 

ALTENBERND, J., Concurs specially. 
- 4 -

ALTENBERND, Judge, Specially concurring. 

 This is an unfortunate case, but I am not certain that the postconviction 

court will be able to repair matters on remand. Mr. Menchaca-Ramirez is nearly fiftynine years old and came to this country from Mexico as a teenager. All seven of his 

children are U.S. citizens. He apparently was a lawful permanent resident of this 

country, although he may not have understood his status. 

 His convictions are for driving without a valid license and uttering a forged 

instrument. His violation of probation seems to have been another conviction for driving 

without a valid license. These charges allegedly are related to his efforts to stay in this 

country while his status was unclear to him. One way or the other, they are minor 

criminal offenses. 

 If the trial court and the lawyers had appreciated that a sentence of 

fourteen months' incarceration would subject this man to deportation, it seems highly 

unlikely that he would have received this sentence. Without that knowledge, the short 

sentence with credit for time served undoubtedly seemed to be a minimal and 

appropriate punishment. 

 The ineffective assistance that Mr. Menchaca-Ramirez received occurred 

at the hearing on his violation of probation in 2011. Thus, on remand, there is no basis 

to set aside his convictions from 2008. On remand, the postconviction court should set 

aside the order of revocation and probably the new conviction and sentence for driving 

without a license. Even though the sentence imposed on the order of revocation is fully 

served, it might be possible for the postconviction court to enter a new order of 

revocation with a sentence that would not necessitate this man's deportation. 
- 5 -

 But Mr. Menchaca-Ramirez obviously will not be able to attend these 

proceedings or provide live testimony. Perhaps he can resolve these matters from 

Mexico in a fashion that will allow him to return to his family in the United States, but 

there is no question that our mandate will be a challenge for the postconviction court.