Does Padilla apply retroactively in post-conviction proceedings?

The Florida 2nd DCA has recently decided the case of Barrios-Cruz v. State (2D10-4774).  This case is important for Florida defense attorneys because it deals with failing to advise clients of possible consequences of entering a plea, primarily in the context of deportation consequences.  The way in which these claims arise in Florida is in a 3.850 post-conviction ineffective assistance of counsel claim (i.e., I would not have pled to the charges had my attorney advised me that I could possibly get deported.)

The fear among many jurists is that if Padilla is held to be retroactive in post-conviction matters, the floodgates would be opened, and many pre-Padilla pleas would come back before the courts.

The 2nd DCA held that Padilla should not be applied retroactively in post-conviction proceedings.  This holding is in line with the 3rd DCA, but does conflict with other courts.  Because courts are split on this issue, and because the decision carries with it significant implications for the treatment of pleas entered pre-Padilla, the 2nd DCA certified the following question of great importance to the Florida Supreme Court:


The legal test the 2nd DCA used in determining Padilla is not retroactive is the Witt standard, to which there are three elements.  Under Witt, a change of law will not be applied retroactively unless the change:

1.  emanates from [the Supreme Court of Florida] or the United States Supreme Court,

2.  is constitutional in nature, and

3.  constitutes a development of fundamental significance.

Because Padilla is a United States Supreme Court decision that is constitutional in nature, the first two elements of this analysis are satisfied. Accordingly, the question becomes whether Padilla represents a development of fundamental significance.  In the end, the 2nd DCA said,

While we recognize that Padilla represents an important development enumerating both a new right for defendants and a new duty for counsel, we do not find that it rises to the level of those rare “fundamental and constitutional law changes which cast serious doubt on the veracity or integrity of the original trial proceeding.”

Although this is the current state of the law in Florida, it remains to be seen what action, if any, the Florida Supreme Court will take.



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