NOT FINAL UNTIL TIME EXPI RES 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 Mo tion to Vacate/Set Aside Judgment and Sentence under Florida Rule of Cr iminal Procedure 3.850. We reverse the order and remand for further proceedings

.- 2 - In 2008, Menchaca-Ramirez entered a nolo contendere plea to ut tering a forged instrument, driving wh ile license suspended (habitual of fender), and several other offenses. He was adjudicated guilty and sentenced to a t otal of 364 days in jail followed by two years' probation. In 2011, Menchaca-Ramirez ad mitted to violating his probation. The court revoked Menchaca-Ramirez's probation and sentenced him to

concurrent terms of fourteen months' incarceration on the utter ing a forged instrument and driving while license sus pended 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 Natio nality Act, a sentence exceeding one year would aggrava te his two convictions for utte ring 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 requ est 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 Mencha caRamirez's motion. No testimony was taken as Menchaca-Ramirez h ad 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

1 See 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 t he 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 c ited 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 deportati on." 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 eligib ility 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 th e prejudice resulting from counsel's failure to advise Menchaca-Ramirez of the "truly clea r" deportation consequences of his admission as required by Padilla. See Hern andez 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 po stconviction court will be able to repair matter s on remand. Mr. Menchaca-R amirez is nearly fiftynine years old and came to this country from Mexico as a teenag er. All seven of his children are U.S. citizens. He apparently was a lawful permane nt resident of this country, although he may not have understood his status. His convictions are for driving without a valid license and ut tering a forged instrument. His violation of probation seems to have been anot her conviction for driving without a valid license. These charges allegedly are related t o his efforts to stay in this country while his status was unclear to him. One way or the ot her, they are minor

criminal offenses. If the trial court and the lawyers had appreciated that a sent ence of

fourteen months' incarceration would subject this man to deport ation, it seems highly unlikely that he would have received this sentence. Without th at 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 postcon viction court should set

aside the order of revocation and probably the new conviction a nd sentence for driving without a license. Even though the sentence imposed on the ord er of revocation is fully served, it might be possible for the postconviction court to en ter 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 man date will be a challenge for t he postconviction court.