Criminal Defense
Since 1993
Since 1993
Can I Withdraw My Plea in Florida Due to Immigration Consequences?
For a non-U.S. citizen, a seemingly minor criminal charge in Orlando can have a life-altering consequence: deportation. This problem often appears years after a case is closed, when a person discovers that an old plea to a crime like Possession of Cocaine has triggered removal proceedings by immigration authorities. This leads to a desperate question: can you “undo” or withdraw the old plea to stop the deportation?
The answer is a complicated “maybe,” and it all comes down to what you were told in court and how long ago you were sentenced.
Facing Criminal Charges in Orlando as a non-citizen? Make sure you get yourself a strong defense so that you don’t suffer immigration consequences later. Call John Guidry: (407) 423-1117
The Legal Basis: Withdrawing a Plea After Padilla v. Kentucky
The door for these challenges was opened by the U.S. Supreme Court in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). The Court ruled that a defense attorney’s failure to advise a client about the clear immigration consequences of a plea could constitute “ineffective assistance of counsel,” giving the client grounds to later challenge the conviction.
The “May” vs. “Will” Debate in Florida Courts
After Padilla, a controversy erupted in Florida’s courts over how strong the warning from the judge and lawyer had to be.
- In our local Fifth District Court of Appeals, the court in Santiago v. State, 65 So.3d 575 (Fla. 5th DCA 2011), held that the standard judge’s warning that a plea “may” result in deportation was sufficient.
- However, another court in Hernandez v. State, 61 So.3d 1144 (Fla. 3rd DCA 2011), ruled that “may” was too weak and did not adequately inform the defendant of the near-certainty of deportation for many offenses.
The Current Reality in Central Florida Courtrooms
Because of that conflict, judges today in Orange, Osceola, and Seminole County have resolved the issue by giving a much stronger, clearer warning. You will now be told on the record that a plea “WILL” subject a non-citizen to deportation and other immigration consequences. This makes it much more difficult to successfully argue later that you were not properly advised.
The Critical Deadline: You Only Have Two Years
Here is the most important part: you cannot wait until immigration authorities detain you five years later to address the problem. Under Florida’s Rules of Criminal Procedure, a motion to withdraw a plea on these grounds (which is, technically, a 3.850 Motion, but that’s a story for another day) must be filed within two years of the conviction becoming final. If you miss that deadline, you are almost certainly out of luck.
John’s Takeaways
- For non-U.S. citizens, any criminal plea can have severe immigration consequences, including deportation, even for minor offenses.
- You may be able to withdraw an old plea if you were not properly warned about these consequences, based on the U.S. Supreme Court case Padilla v. Kentucky.
- Today, judges in Central Florida give a very strong warning that a plea “WILL” have immigration consequences, making these challenges harder for recent cases.
- CRITICAL DEADLINE: You only have two years from when your sentence becomes final to file a motion to withdraw your plea on these grounds.
- An attorney experienced in these specific post-conviction motions is essential to navigate the complex rules and strict deadlines.
If you are a non-citizen facing charges in Orange, Seminole, Osceola, Lake, Brevard, or Volusia County, it is critical to have a strong defense up front, to avoid any sort of conviction that will cause immigration problems later. For those of you who are already convicted and now facing immigration issues, I recommend you start by retaining an immigration lawyer. Good Luck!
About the Author, 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.