DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

JERMAINE FACEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-618

[July 23, 2014]

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

the Seventeenth Judicial Circuit, Broward County; Barbara McCarthy, 

Judge; L.T. Case No. 10021303CF10A.

Luis Alberto Guerra, Fort Lauderdale, for appellant.

No appearance required for appellee.

PER CURIAM.

We affirm the order denying appellant’s rule 3.850 motion for 

postconviction relief. We conclude that the record refutes appellant’s 

allegations of ineffective assistance of counsel and that appellant’s remedy 

from the harsh consequence of deportation lies, if anywhere, with 

immigration officials.

Background

On January 15, 2013, Facey, a citizen of Jamaica and lawful 

permanent resident of the United States, entered a negotiated plea to 

grand theft. According to the factual basis announced during the plea 

hearing, Facey used a clearance code to obtain a discount for his friends 

at a clothing store, causing the company to lose $459.37. Adjudication 

was withheld, and he was placed on probation for 18 months. Immigration 

officials subsequently initiated removal proceedings in August 2013 based 

on the conviction in this case.

In November 2013, Facey’s retained counsel filed a motion for 
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postconviction relief, arguing that trial counsel was ineffective in “failing 

to tell [Facey] anything about the possible adverse immigration 

consequences” of the plea and failing to even advise Facey to consult with 

an immigration attorney. See Padilla v. Kentucky, 559 U.S. 356 (2010). 

The motion claimed that if counsel had advised Facey to consult with an 

immigration attorney he would not have pleaded.

The trial court denied the motion based on the State’s response which 

explains that Facey signed a written plea form that advised him that this 

plea “will” result in his deportation. In the plea form, Facey acknowledged 

that he had read and understood the plea form which he signed and 

initialed.

The State further noted that during the plea colloquy the court 

confirmed that Facey had spoken about the immigration consequences 

with counsel and that Facey did not want to confer with an immigration 

attorney. The following transpired during the plea colloquy:

COURT: Are you a United States Citizen?

DEFENDANT: No, Judge.

COURT: Do you understand by entering into this plea, with 

a withhold or an adjudication, that that could subject you to 

being deported?

Where are you from?

 

DEFENDANT: Jamaica.

COURT: You could be asked by the United States 

Immigration to leave the country permanently as a result of 

this plea, or held by immigration, picked up by immigration 

and held by immigration; do you understand that?

DEFENDANT: Yes, Judge.

COURT: And you talked thoroughly about the consequences 

with Mr. Rubinchik [defense counsel]?

DEFENDANT: Yes, yes.

COURT: And do you want to talk to anyone else about the 

immigration consequences?
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DEFENDANT: No, Judge.

The judge later inquired of defense counsel:

COURT: You did go over the immigration consequences, Mr. 

Rubinchik?

COUNSEL: I did. And I explained because he’s a non-citizen 

he’ll not be eligible for PTI [a pretrial intervention program].

COURT: Right.

COUNSEL: I tried to get the State this morning to 

acknowledge the nature of the case, if he would pay restitution 

in full, if they would dismiss the case so Mr. Facey wouldn’t 

have to face those consequences. That request was denied, 

as well.

Mr. Facey has the immigration consequences, and I’ll ask the 

Court to allow him to verify probation through pay stubs. I 

don’t want to jeopardize his job.

This appeal follows.

Discussion

The record conclusively refutes Facey’s allegation that counsel failed to 

“tell him anything” about the immigration consequences or that Facey was 

prejudiced by counsel failing to advise him to consult an immigration 

attorney. To the contrary, the record shows that Facey entered the plea 

aware of the possibility of deportation and that counsel sought other 

avenues in an attempt to avoid the immigration consequences.

The Florida Supreme Court has held that, where the deportation 

consequences are “truly clear” and virtually automatic, as they were for 

Mr. Padilla, who pleaded to an aggravated felony, an “equivocal” “may” or 

“could” deportation warning as required by rule 3.172(c)(8) does not 

categorically bar a Padilla claim. Hernandez v. State, 124 So. 3d 757, 762-

63 (Fla. 2012). Mr. Hernandez, like Mr. Padilla, was convicted of an 

aggravated felony, which precludes discretionary relief from removal. Id. 

at 762; 8 U.S.C. § 1101(a)(43)(B) (defining an “aggravated felony” which 

includes any “drug trafficking crime (as defined in section 924(c) of Title 

18”). Here, Facey’s grand theft conviction has not been shown to be an 
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aggravated felony, and automatic deportation has not been shown to be 

clear from the face of the immigration statute. See Cano v. State, 112 So. 

3d 646, 648 (Fla. 4th DCA 2013) (setting forth what a defendant is required 

to prove in order to be entitled to relief under Padilla where the standard 

may or could warning has been delivered).

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). 

The Notice to Appear for removal proceedings indicates that Facey was 

admitted to the United States on September 11, 2007. The offense was 

committed in November 2010. Unlike the defendants in Hernandez and 

Padilla, Facey was not convicted of an aggravated felony and may qualify 

for discretionary cancellation of removal. See 8 U.S.C. § 1229b.

Padilla does not require defense attorneys to provide perfect advice 

about immigration consequences. The Sixth Amendment does not 

guarantee perfect, error-free counsel even as to criminal charges which 

implicate liberty. Coleman v. State, 718 So. 2d 827, 829 (Fla. 4th DCA 

1998) (“The standard is reasonably effective counsel, not perfect or errorfree counsel”). Padilla by its express terms is limited to those situations 

where deportation is automatic and clear from the face of the statute. 

Padilla, 559 U.S. at 369 (“When the law is not succinct and straightforward 

. . . , a criminal defense attorney need do no more than advise a noncitizen 

client that pending criminal charges may carry a risk of adverse 

immigration consequences.”). Facey has not shown that the grand theft 

conviction at issue subjects him to automatic deportation that is clear from 

the face of the statute.

Counsel’s initial brief in this appeal argues a new, different claim. 

Counsel contends that the warning given by the court, advising that the 

plea “could subject” Facey to being deported, was insufficient. Florida Rule 

of Criminal Procedure 3.172(c)(8) requires that a court accepting a plea 

assure itself that defendant understands that the plea “may subject him 

or her to deportation[.]” It is improper for counsel to argue a different, 

unpreserved claim in this appeal, and the trial court’s plea colloquy 

satisfies the rule.

Conclusion

The trial court properly denied the postconviction motion at issue 

because the claim of ineffective assistance of counsel is conclusively 

refuted by the record. We decline to extend Padilla to create an impractical 

requirement that criminal defense attorneys provide clients with perfect 
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immigration advice. Here, appellant entered his plea with eyes wide open 

and aware of the risk of deportation. He now faces the very consequence 

that he fully acknowledged understanding when he accepted the plea.

We understand the concerns regarding the “harsh consequences of 

deportation.” Padilla, 559 U.S. at 360-64. However, by entering into the 

plea deal, the defendant avoided the possibility of a prison term. Serving 

a prison sentence (for up to five years in this case), only to face removal 

upon release from incarceration, is a harsh consequence as well. While 

we often see much more serious offenses that are far more deserving of 

deportation, Congress has eliminated the procedures permitting a judicial 

recommendation against deportation. Id. at 361-62. Facey’s remedy from 

the harsh consequence of deportation in this case lies, if anywhere, with 

the discretion of immigration officials.

Affirmed.

WARNER, MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.