Can I Withdraw an Old Plea to Stop Deportation in Orlando?

By: John Guidry

Imagine you’re finally getting your life together. You’ve got a good job, your family is thriving here in Central Florida, and that “minor” Possession of Cocaine charge from five years ago is a distant memory. Then, out of nowhere, you’re sitting at a table with an immigration officer who tells you that old plea just triggered removal proceedings. It’s a gut-punch.

For a non-U.S. citizen, a criminal charge in Orlando isn’t just about jail time or fines; it’s about whether you get to stay in the country. This nightmare often appears years after a case is closed. It leads to one desperate question: can you “undo” or withdraw that old plea to stop the deportation?

The answer is a complicated “maybe.” It all comes down to what you were told in court, the quality of your lawyer’s advice, and—most importantly—how long the clock has been ticking.

Facing criminal charges in Orlando as a non-citizen? Don’t let a split-second decision in court haunt you for decades. Get a defense that protects your status. Call John Guidry at (407) 423-1117.

The Legal Basis: Withdrawing a Plea After Padilla v. Kentucky

The door for these challenges was kicked open by the U.S. Supreme Court in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Before this case, lawyers could often get away with staying silent about immigration. Not anymore.

• Ineffective Assistance: The Court ruled that if a defense attorney fails to advise a client about the clear immigration consequences of a plea, it constitutes “ineffective assistance of counsel.”
• Grounds for Challenge: This gives you the legal standing to challenge the conviction and ask the judge to let you withdraw the plea because you didn’t have all the facts.

The “May” vs. “Will” Debate in Florida Courts

After the Padilla ruling, a massive fight erupted in Florida’s courts over how strong the warning from the judge and lawyer actually had to be.

• The Local View (The 5th DCA): In our backyard, the court in Santiago v. State, 65 So.3d 575 (Fla. 5th DCA 2011) held that a standard warning that a plea “may” result in deportation was good enough.
• The Miami View (The 3rd DCA): Conversely, in Hernandez v. State, 61 So.3d 1144 (Fla. 3rd DCA 2011), the court ruled that “may” was far too weak. For many offenses, deportation isn’t a possibility; it’s a near-certainty.

Because of this “insane” conflict, judges today in Orange, Osceola, and Seminole County don’t take chances. In 2024 and 2025, you will hear a much stronger warning on the record: that a plea “WILL” subject you to deportation. This makes it significantly harder to argue later that you were “blabbed” into a deal you didn’t understand.

The Critical Deadline: The Two-Year Rule

This is where many people run into a brick wall. You cannot wait until immigration authorities detain you five years later to try and fix a bad plea.

Under Florida’s Rules of Criminal Procedure, a motion to withdraw a plea on these grounds (technically called a Rule 3.850 Motion) must be filed within two years of the conviction becoming final. If you miss that two-year window, you are almost certainly out of luck, regardless of how “tough” the situation is.

John’s Takeaways

• Immigration is Central to Defense: For non-citizens, any plea—even for a misdemeanor—can trigger deportation. There is no such thing as a “minor” charge.
• The Padilla Standard: You have a constitutional right to know if your plea is a one-way ticket out of the country. If your lawyer didn’t tell you, we have a fighting chance.
• “May” vs. “Will”: Modern cases are harder to overturn because judges now use the word “WILL” during the plea colloquy to cover their bases.
• The Two-Year Clock: If your conviction is more than two years old, your options for a 3.850 motion are extremely limited. You must act the moment you realize there is a problem.
• Regional Nuance: Every county from Lake to Volusia handles these motions differently. You need a trial lawyer who knows the local tendencies of the judges.

The justice system can be cold, and it’s a failure of proof when a defendant isn’t given the full picture of their future before signing their rights away. If you are a non-citizen facing charges in Orange, Seminole, Osceola, Lake, Brevard, or Volusia County, you need a defense that looks beyond the courtroom and into your immigration status.

For those of you already facing removal, the first step is always retaining a top-tier immigration lawyer. But if you need to fight the underlying criminal conviction to save your status, I’m the one you call.

Facing these charges? Call John at (407) 423-1117.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.