Recently in Post-Conviction Relief Category

February 26, 2013

US Supreme Court Rules Before Florida Supreme Court on Retro-Activity of Padilla

The United States Supreme Court has dashed the hopes of many illegal immigrants who are awaiting deportation or trying to obtain their residency. Miami criminal lawyers who represent clients in post-conviction relief matters have been anxiously awaiting the Florida Supreme Court to rule on the retroactivity of Padilla type cases, got their answer from the United States Supreme Court. The high court ruled 7-2 that immigrants cannot withdraw guilty or no lo contendere pleas in cases that were resolved prior to March 31, 2010. In 2010, the Supreme Court ruled that defense attorneys had an affirmative obligation to advise defendants of potential immigration consequences prior to entering a plea. If a defense lawyer failed to advise or provided affirmative mis-advice regarding the potential immigration consequences, such as deportation, a defendant was entitled to file a motion to vacate and re-open the case.

The Supreme Court in Chaidez ruled that the defendant, a lawful permanent resident since 1977, could not vacate her 2004 conviction for insurance fraud. The conviction will most likely lead to the denial of her continued residency and eventual deportation. Her motion to vacate was based on the fact that her defense lawyer at the time she took the plea did not advise her of the risks of deportation by entering the guilty plea. While the Supreme Court ruling in the Chaidez finally decided the retroactive question, that does not mean that a motion to vacate cannot be won in court. However, a successful motion to vacate will now largely be won based on negotiations and stipulations made with prosecutors, rather than based on the law.

The likelihood of a success ful motion to vacate no longer rests on the law, but must be argued on the equities. The success of a motion to vacate for immigrants being deported or unable to gain or maintain their residency and eventual citizenship will be determined by a number of factors. The first factor to consider is the jurisdiction where the plea was taken. In light the newest case, it is highly unlikely to find effective relief in federal court. Had Chaidez gone the other way in the Supreme Court, immigrants might have had a chance in district court. As far as state courts go, success will be determined by the policies of each particular state attorney's office in Florida. The Broward County State Attorney's Office has a firm policy against agreeing to vacate pleas. Miami-Dade County prosecutors seem to be much more flexible. Generally, an agreement to vacate a plea is left up to the division chief, or head prosecutor, in any particular courtroom. Some division chiefs are flexible, while others won't give you the time of day. In the end, an immigrants chances of obtaining his residency or averting deportation will in some aspects depend on the luck of the draw.

Now that the law has been handed down, what does it take to win motion to vacate? Assuming a particular division chief is willing to entertain a motion to vacate, an extensive mitigation packet will have to be compiled. Items that will be needed for the mitigation packet include tax returns, birth certificates, marriage certificates, and of course letters from various individuals explaining why a particular person should be permitted to remain in the United States. Anyone seeking to vacate a plea must retain a qualified criminal attorney experienced in handling these types matters. Any attorney who files a motion and expects to win before a judge has no clue what he or she is doing and will lose the motion. Hire a lawyer with a good track record when it comes to winning these types of cases.

Supreme Court Won't Extend 2010 Immigration Ruling, Reuters.com, February 26, 2013.

September 18, 2012

ICE Arrests 36 Aliens in Gulf Coast Operation

Immigration and Customs Enforcement (ICE) conducted another sweep in the State of Florida netting 36 aliens with criminal convictions or egregious immigration law violations. The operation lasted five days and occurred in and around the Gulf Coast area. The last operation that netted dozens of immigrants occurred in Miami and the South Florida region. All those arrested were deemed by ICE to be immigration fugitives or immigration violators. The sweeps conducted by ICE are becoming more frequent and are focusing on different areas of Florida and around the United States. Once a person has been arrested by ICE, few options remain for those in custody. Anyone having a friend or family member in immigration custody should contact both an immigration and criminal lawyer to determine if the person being held in custody can take legal action to avoid deportation.

In the latest operation, immigrants were taken into custody for criminal convictions for multiple offenses including: aggravated assault, burglary, battery on a law enforcement officer, identity theft, cocaine possession, simple battery, fraud, forgery, driving under the influence (DUI), and domestic violence related charges. Five of the 36 taken into custody had been previously ordered to leave the country, but failed to leave as directed by ICE authorities. Six of those taken into custody had already been deported and illegally re-entered the country. Of the 36 individuals arrested, three were women. Those taken into to custody came from countries such as Cuba, Honduras, Guatemala, Mexico, Vietnam, Thailand, Iran, and the Czech Republic.

Anyone taken into to custody for a prior criminal record, should immediately consult with both an immigration and criminal attorney. Immigration lawyers are useful in presenting a case in front of an immigration judge in federal court. However, the a person's release from custody cannot be generally secured until a criminal defense lawyer successfully files and wins and motion to vacate a criminal record and then secures a dismissal of the charges. Motions to vacate have been increasingly difficult to win as the appellate courts have seriously eroded the laws allowing for the filing of a successful motion for post-conviction relief.

However, experienced criminal lawyers are often able to successfully file and win these motions with supporting mitigation packets. The mitigation packets submitted to prosecutors must contain tax returns, marriage and birth certificates of the spouse and children born of the marriage, and supporting letters from employers, friends and family. Despite the disintegration of the laws allowing for post-conviction relief, equity can play a large part in successfully obtaining the release of a friend or loved one from immigration custody.

ICE has given no indication that they intend to let up on the immigrations sweeps they conduct at random times and locations. An official from ICE was quoted as saying, "These arrests of convicted criminal and repeat immigration offenders demonstrate ICE's ongoing commitment to public safety." Anyone who is an immigrant and has a prior criminal record should consult with an attorney because inevitably, the federal authorities will come knocking. Repairing a criminal record is much easier when a person is out of custody with no pending immigration charges, as favorably resolving these cases sometimes takes months, sometimes even exceeding a year.

Immigration and Customs Enforcement Arrests 36 Fugitives, Criminal Aliens in Gulf Coast Operation, WCTC.TV.com, September 18, 2012.

May 22, 2012

Woman Sentenced to Life Receives Reduced Sentence

A woman sentenced to life in prison for her purported involvement in a murder plot was re-sentenced last week which led to her release from a federal detention facility. Defenses lawyers from Miami, Florida were finally able to persuade the presiding judge that her life sentence was not warranted. Yuby Ramirez was set to spend the rest of her life in prison for her involvement in murder conspiracy case that was contrived to protect two men who were later convicted on cocaine trafficking charges. Although, Ramirez had appeared to have a somewhat minor role in the conspiracy, she was sentenced to life in prison. Under, federal and Florida state law, defendants sentenced to life in prison will never be released on parole unless an appeal of some other form of post-conviction relief is granted.

Ramirez allegedly had a supporting role in the murder plot to kill a government witness set to testify against two of Miami's most infamous "Cocaine Cowboys". The plot was against Bernardo Gonzalez in an effort to protect Willie Falcon and Sal Magluta, both dropouts from Miami Senior High School. Gonzalez was a former associate of the two defendants and agreed to cooperate with government prosecutors and investigators in exchange for a reduced sentence. Falcon later entered a plea deal for which he is serving 20 years. Magluta opted for trial and was sentenced to 195 years in prison. Gonzalez initially was in charge of the Miami-Bahamas cocaine operation. He murdered in his home in June 1993. Ramirez was accused of housing the hitmen assigned to kill Gonzalez along with the weapons used in he murder. Ramirez also provided the vehicle used in the hit.

The sentence reduction was based on a motion for post-conviction relief that accused the defense attorneys representing Ramirez of convincing her not to accept a relatively light sentence. According to Ramirez, who testified at the hearing, defense attorneys talked her out of accepting a 5 to 10 year prison sentence in exchange for a guilty plea. She also convinced the judge that the lawyers did not advise her that she could receive life in prison if she was found guilty at trial. Essentially, Ramirez and her defense team convinced the judge that she had received affirmative mis-advice amounting to ineffective assistance of counsel. The judge found that a "reasonable probability that, but for counsel's mis-advice, Ramirez would have accepted the government's offer and pled guilty." Ramirez agreed to re-enter a plea in exchange for a 12 year sentence which amounted to credit time served. She was released from prison, but immediately taken into immigration custody.

Motions to vacate for ineffective of counsel can also be filed under Florida Rule of Criminal Procedure 3.850. If a defendant entered a plea based on a material misrepresentation provided by counsel, that individual may be entitled to post-conviction relief, if the misrepresentation was material. For example, the Supreme Court of the United States handed down a ruling which allows for a plea to be vacated if a defense lawyer provided material misinformation regarding the immigration consequences of entering a plea. The local appellate court has ruled that the new law is not retro-active and cannot be used for cases that pre-date 2010. The Supreme Court of Florida is currently waiting to decide whether the law should be applied retroactively. The decision and opinion should be handed down in the next couple of months.

Miami Woman Freed from Life Sentence in "Willie and Sal" Drug-Murder Hit, Miami Herald.com, May 15, 2012.

April 3, 2012

Immigration Authorities Arrest Thousands

Over a six day period, Immigration and Customs (ICE) agents arrested 3,168 foreign nationals. The crackdown is the largest since 2009. Of those arrested, 139 individuals were picked up in Miami-Dade, Broward and Palm Beach Counties. The majority of those arrested had criminal convictions for crimes such as murder, kidnapping, drug trafficking and certain sexual offenses. The large number of arrests will have immigration and criminal lawyers seeking ways to extricate family members from immigration custody. Others arrested by ICE agents were foreign nationals who have failed to comply with deportation orders or have illegally returned to the United States. Even though a person is being held by immigration authorities, all hope is not lost.

For years Miami criminal attorneys have represented foreign nationals set for deportation as a result of their criminal records by filing motions for post-conviction relief. While lawyers that specialize in immigration law are crucial to securing a person's release, more often than not, the problem lies with a criminal record that was acquired many years ago. Lawyers that practice in the area of criminal law are often contacted by immigration lawyers who request that criminal records be set aside. Over the years, the law regarding the rights of foreign nationals who enter no contest of guilty pleas to criminal charges have changed and the rights afforded to foreign nationals have been severely diminished. For example, the years ago, the Florida courts were instructed to advise defendants that if they entered a plea in a case, they could be subject to deportation. After the mandate came into effect, judges sometimes failed to advise defendants what were deemed "immigration warnings". On other occasions, transcripts of the plea colloquy were unavailable due to the age of the case.

If a judge either failed to warn a defendant about immigration consequences or a transcript proving that the warnings were provided no longer existed, a skilled defense lawyer could file a motion to vacate, thereby setting aside the criminal record. The motions were regarded as Peart and Green motions. However, after thousands of successful motions to vacate, the Florida Supreme Court set a cut-off date of two years after the plea was taken to file the motion for post-conviction relief. With that being said, foreign nationals with old convictions no longer have standing to file these motions in circuit court. The Supreme Court of the United States in the Padilla case, ruled that affirmative mis-advice from a criminal defense attorney regarding the immigration consequences of entering a plea could allow for a judgement and sentence to be vacated. The Supreme Court did not address whether the law applied retroactively, meaning that allegations of mis-advice could have occurred years before the ruling was handed down.

Certain appellate courts in the State of Florida have ruled that the law set forth in Padilla does not apply retroactively. Any plea taken prior to March 31, 2010, regardless of mis-advice of counsel, is not entitled to be vacated for that reason. The Supreme Court of Florida is currently deciding whether to apply Padilla retroactively. Obviously, if the law is held to be retro-active, a large number of foreign nationals facing deportation would have a legitimate chance to stay in the country if the appropriate motion is filed by an attorney and granted by the court. Unless the Supreme Court reverses the rulings of the appellate courts, motions to vacate have a limited chance of success. The best way to avoid deportation under the current state of the law is to present a mitigation packet to the prosecuting authority which contains records regarding a foreign national's children, tax returns, and letters from employers, friends and families stating the person set for deportation is worth keeping in this country to raise his or her family and to contribute to society. Effective mitigation packets can successfully allow for a judgement and sentence to be vacated. The result of course will depend on the charge to which a plea was entered. Simple drug offenses like cocaine or marijuana possession charges are more likely to be vacated than violent crimes like aggravated battery or sexually motivated offenses. Anyone trying to get a friend of loved one out of immigration custody must speak with a lawyer with experience in success in getting judgements and sentences vacated.

ICE Makes Record Arrests in Nationwide Crackdown, Miami Herald.com, March 2, 2012.

January 24, 2012

GPS Tracking Requires a Warrant Says Supreme Court

In a controversial decision, the Supreme Court handed down a ruling that will assist defendants in fighting their charges and curtail law enforcement's ability to conduct surveillance on suspects committing criminal offenses. In a unanimous decision, the Court ruled that there are privacy interests involving GPS devices and that warrants may be required to obtain permission to use them. It is uncommon for Miami criminal attorneys to see cases involving GPS tracking devices, certainly on the state level. The case being heard in front of the Supreme Court came by way of Washington, D.C. A suspected drug trafficking kingpin was prosecuted with evidence obtained as a result of using a GPS devise. The case was reversed and remanded for a new trial.

According to the Court's opinion, all the justices agreed that the Fourth Amendment applies to GPS devices. Federal investigators attached a GPS to the defendant's vehicle and monitored his movements over a twenty-eight day period. Significant evidence was acquired through the use of device and helped convict the purported drug kingpin of charges serious enough to merit life in prison. The trial garnered a lot of media attention during its pendency. An appellate lawyer from Washington, D.C., filed an appeal on behalf of the defendant, specifically objecting to the use of the GPS devise. The government filed a response claiming that the use of a GPS device is no different than current forms of low-tech monitoring that are not protected by the Fourth Amendment.

While the decision of the Supreme Court was unanimous, the judges were split 5 to 4 on the basis for their findings. The Justice Scalia, representing the majority of the court, found that the attachment of the device was in and of itself unconstitutional. He specifically wrote, "We hold that the government's installation of a GPS on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a search." The Court did not go as far to say all uses of a GPS device will be per se prohibited, but the use of any such device would be "risky undertaking". The court did not address other modern forms of surveillance devices and explained that they did not want to "rush forward" and make other decisions other than the issue at hand.

Surveillance has always been a primary means of gathering evidence for federal and local law enforcement agencies. Wiretaps have always been the most common form of intelligence gathering. As technology advances, law enforcement will seek to implement new ways to use that technology to prosecute individuals suspected of drug trafficking, money laundering, and other forms of organized crime. Anyone charged with a criminal offense that is supported by the use of surveillance equipment should discuss the case with an experienced criminal defense attorney familiar with the requirements federal law enforcement must comply with prior to obtaining evidence in this manner.

Supreme Court: Warrants Needed in GPS Tracking, The Washington Post.com, January 24, 2012.

September 30, 2011

Immigration Authorities Make 3,000 Arrests

The U.S. Immigration and Customs Enforcement (ICE) is at it again. The department responsible for deporting immigrants back to their native countries made another widespread sweep netting 3,000 individuals with prior criminal convictions. This operation was the country's largest since 2003. Immigration and criminal defense lawyers around the country will have their hands full in attempting to have family members released from immigration custody. The recent operation involved 2,901 arrests during an operation that lasted seven days and was spread across all 50 states, Puerto Rico and the U.S. Virgin Islands. In Florida alone, 272 arrests were made with 56 coming in Miami-Dade County and 41 in Broward County.

The unusual thing about the latest ICE operation is that all of the individuals detained had prior criminal convictions. According to experts, immigration is changing its policy in that the department is seeking to detain and deport immigrants with criminal records and not undocumented immigrants lacking criminal records. Immigrants lacking criminal records are to be considered low priority cases, not necessarily subject to deportation. There are three categories of immigrants that now have high-priority for deportation: those with criminal records, those that are arrested crossing the border, and those have been previously deported and have returned.

This ICE operation specifically targeted individuals with prior criminal records. Of the 2,901 immigrants detained, more than 1,000 are considered to be highly dangerous criminals, while 42 were documented gang members and 151 are sexual offenders. Many of those detained had criminal convictions for murder, attempted murder, kidnapping, armed burglary, drug trafficking, aggravated child abuse, sexual offenses, aggravated assault and aggravated battery. Beside being detained for criminal records, some of the immigrants were arrested on additional charges for failing to abide by deportation orders or returning to the country after having been previously deported.

Loved ones who have family members in custody typically seek out immigration attorneys to assist in these legal proceedings. Often times, immigration lawyers have their hands tied in attempting to free someone from immigration custody. In most circumstances, the only way to circumvent deportation is by returning to criminal court and filing a motion for post-conviction relief. While the United States Supreme Court has recently handed down precedent allowing for relief when a defendant received affirmative mis-advice regarding the immigration consequences of taking a plea to particular charges. Even simple offense such as cocaine possession or possession of marijuana can allow for deportation. While the case handed down by the Supreme Court is helpful, Florida District Courts of Appeal have severely limited the circumstances when someone is entitled to vacate a plea. Unless the Florida Supreme Court reigns in the appellate courts, winning motions to vacate will be an uphill battle. Despite the current state of the law, experienced criminal defense lawyers can still win motions to vacate sentences. Most of the success will be garnered by unconventional means. In the end it does not matter how a criminal record is vacated, but that is in fact vacated.

ICE Detains Nearly 3,000 with Criminal Records, Miami Herald.com, September 28, 2011.

June 23, 2011

Congressman Seeks to Pass New Immigration Law

In 2005, the United States Congress passed a new law which forbid federal immigration authorities for indefinitely detaining illegal immigrants with prior criminal histories. Our community has always been the home to people living illegally in the United States. This reality has always been a cause for concern for Miami criminal defense lawyers because a criminal conviction or any type of criminal record for that matter is sometimes more devastating than a similar result obtained on behalf of a U.S. citizen. While the majority of illegal immigrants are deported for various criminal offenses on a daily basis, illegal Cuban immigrants can not be deported to their home country. Federal law prevents Cuban immigrants from being deported. The current state of law prevents illegal immigrants from being held in detention in excess of six months. The majority of non-Cuban illegal immigrants are deported to their country of origin within weeks or even days. Illegal Cuban immigrants are eventually released to resume their lives within the United States.

Congressman Lamar Smith of Texas has proposed a bill that will allow immigration authorities to indefinitely detain illegal immigrants with criminal records for violent crimes, such as murder and sexual battery, and for drug offenses, such as cocaine possession or marijuana trafficking. While deportation is an unpleasant thought for anyone to say the least, this proposed change in the law would affect illegal Cuban immigrants the most, as they would be incarcerated indefinitely, or at least until the U.S. policy towards Cuba is amended. While the proposed bill is not imminently going to become law, the change has garnered a lot of attention from both proponents and opponents. While the bill does not specifically refers to Cubans, everyone knows that it applies to them as they are the largest body of people residing in the United States that are not subject to deportation.

Proponents of the bill claim that the bill does not target Cubans, but all dangerous non-deportable individuals with criminal records for violent offenses, certain drug offenses and for certain crimes of moral turpitude. Immigration laws allow for the deportation of persons with records for aggravated felonies which are outlined in the federal statutes. The bill is not supposed to be retroactive if passed into law, but opponents of the bill claim that language within the proposed law will allow for detention for crimes committed prior to and deportation orders signed prior to the enactment of the legislation. Opponents also claim that the passage of the bill will result in thousands of illegal immigrants being jailed for years.

While the passage of the law is not imminent, all illegal immigrants and defense attorneys alike must be keenly aware of the harsh consequences of accepting pleas. Lawyers must know what criminal offenses allow for deportation and advise their clients accordingly. With individuals with prior records, the best option to prevent deportation is to file a motion for post-conviction relief with the hope of vacating a prior judgement and sentence and having the charge dismissed. Current changes in the law have made it increasingly difficult to obtain this result. Cut off periods have been instituted by the courts which limits the time for individuals to file motions that did not receive the legally required immigration warnings from the court or for individuals who received affirmative mis-advice from their lawyers regarding the possible deportation as a result of entering a plea. Anyone being held in immigration custody or facing deportation should seek out an experienced lawyer in handling these matters to determine the best course of action to prevent deportation.

Cubans Who Can't Be Deported Could End Up Detained in U.S., Miami Herald.com, June 21, 2011.

March 1, 2011

Immigration Arrests Illegal Immigrants in South Florida

Immigration and Customs Enforcement (ICE) arrested 19 people who are now sitting in federal custody. The sweep targeted illegal immigrants with criminal convictions for drug trafficking, sex crimes and violent offenses. The individuals will be held in federal custody until the removal proceedings are completed. All those detained have the right to be retained by a Miami criminal defense attorney. Unlike criminal court, detainees will not be appointed a criminal lawyer from the public defender's office. However, theses individual can privately retain counsel in an effort to get a bond pending the removal proceedings. Keep in mind that federal judges will seldom grant this kind of relief at a bond hearing.

The best way to fight an immigration detainer is to attack the criminal case which most likely arose in state court. Illegal immigrants are deported for serious crimes such as armed robbery and sexual battery, but an individual charged with a minor felony offense, such as cocaine possession can be deported. Even misdemeanor offenses such as possession of drug paraphernalia or two marijuana possession offenses can result in deportation. Also know that federal immigration law does not differentiate between a conviction or a withhold of adjudication. The only way to successfully lift an immigration detainer and prevent deportation is by filing and winning a motion for post-conviction relief.

Motions for post conviction-relief can be based on many grounds. The goal of these types of motions is to have a formerly entered into plea vacated or set aside. Always remember, even if a plea is vacated or set aside, the case is just re-opened and then set for trial. The ultimate goal after a plea is vacated is to have it dismissed or nolle prossed by the prosecutor. Two documents are required to be presented to a federal judge in order to prevent deportation. First, an order vacating the plea signed by a circuit or county court judge must be presented. The order must state that the original plea was taken in violation of the defendants rights, either because the proper procedure was not followed, the defendant's constitutional rights were violated or the criminal defense lawyer representing the defendant was found to be ineffective.

An example of a procedural violation includes incomplete plea colloquys where a defendant is not advised of his or her right to be represented by an attorney or not advised of the right to take the case to trial. These are also examples of constitutional violations that can lead to a successful motion for post-conviction relief. Ineffective assistance of counsel can come in many forms, but failing to advise a client of possible deportation or providing affirmative mis-advice regarding the immigration consequences of entering a plea can be sufficient grounds to vacate a plea. Note that recent appellate courts in the State of Florida have held that even if a defendant was not advised by the attorney of immigration consequences or was provided affirmative misadvise, the judge can cure the problem simply by inquiring during the plea colloquy if a defendant understands that by entering into a plea could subject them to immigration consequences such as deportation. Anyone facing deportation for prior criminal acts should seek the advise of both an immigration and criminal defense lawyer in an effort to resolve the problem.

South Florida Immigration Sweep Nets 24 Arrests, Miami Herald.com, February 26, 2011.

December 14, 2010

Immigration Snags Illegal Foreign Nationals

Immigration and Customs Enforcement (ICE) began another round of nabbing immigrants with criminal records with the intent to deport them to their home nations. The most recent operation netted 93 foreign nationals who were illegally living in the United States. The basis for the apprehensions were prior criminal convictions for a wide variety of crimes. ICE vowed to continue the operations to catch illegal immigrants with prior criminal records. Anyone who is not a citizen or a lawful permanent resident who has a prior criminal record should contact a Miami post-conviction relief attorney to file a motion to vacate and then seek a nolle pros or dismissal of the charges to prevent an inevitable deportation.

Examples of people caught up in the recent dragnet include the following: a 23 year-old citizen of Ecuador with a criminal conviction for felony battery, a 20 year-old citizen of Guatemala with convictions for driving while license suspended, and a 36 year-old from Guatemala convicted of burglary and attempted burglary. Immigration authorities reported the operations are conducted to catch illegal immigrants with criminal convictions for offenses like drug trafficking, sex offenses and violent crimes. The most recent operation resulted in the arrest of 84 men and 9 women from 22 countries. Arrests were made in Miami-Dade, Broward, Palm Beach, Hillsborough and Duval Counties. All of the individuals arrested are currently being held in federal custody awaiting deportation or removal proceedings.

While some illegal immigrants are arrested for relatively minor offenses such as marijuana possession and petit theft, others are arrested for more serious crimes such as armed robbery and burglary. Anyone facing deportation should speak with an immigration attorney to create a strategy to avoid removal. The federal courts may issue a waiver for certain criminal offenses. For example marijuana possession can be waived, but a second conviction for the same crime cannot be waived. In many cases, a marijuana possession conviction is accompanies by a conviction for possession of drug paraphernalia. In this instance, the marijuana charge can be waived, but the paraphernalia count cannot be waived and therefore a motion to vacate must be filed on the client's behalf.

If an offense cannot be waived, a motion for post-conviction relief must be filed with the court. Many of the motions are time barred after two years, so it is imperative to handle these matters as soon as possible. Although a case may be time barred, an effective criminal defense attorney on many occasions can still have a plea vacated and the charges dropped in exchange for a charitable contribution or can even have a client enrolled in the pre-trial diversion program. After the completion of the program the charges will be dismissed. In sum, all immigration cases are different and there are many approaches that can be taken to avoid removal or deportation. Anyone subject to removal or deportation should seek the advice of counsel as soon as possible as the problem will not go away by itself.

Criminal Immigrants Rounded Up Across Florida, News-Press.com, December 14, 2010.

November 18, 2010

Six Convicted Criminals Take Into Custody by ICE Authorities

Immigration and Customs Enforcement (ICE) is at it again by continuing to pick up illegal aliens with prior criminal records. The agency has been following the same protocol over the past year. Several Miami-Dade County residents were taken into custody for felony convictions such as drug trafficking, violent crimes such as robbery, aggravated assault and aggravated battery, and sex offenses. ICE has conducted numerous enforcement operations in order to deport convicted felons. The operation that netted the aliens yesterday was conducted by the Joint Criminal Alien Removal Taskforce or ("JCART"). The six individuals are being held in federal custody pending removal proceedings or deportation. Anyone being held by immigration authorities for prior criminal convictions should retain a Miami criminal attorney experienced in handling post-conviction relief matters in order to set aside past criminal convictions.

In most instances, the only way to get a relative or loved one out of immigration custody is to prove to an immigration judge that the conviction has been successfully vacated and the charges dismissed. The first step to successfully proceeding with a motion for post-conviction relief is locate the file at the clerk's office to determine if a plea colloquy is in the file. If the plea colloquy is not in the file, it must be ordered from the court reporter who was present in court when the plea was taken. The arrest affidavit must be evaluating to determine the severity of the crime. A prosecutor will be somewhat sympathetic if the charges or not serious or involve crimes of violence.

The next step in vacating a plea is to evaluate the colloquy. Fortunate defendants were not advised of the possibility of being deported by the judge. As long as a defendant is in deportation proceedings, and the plea was taken less than two years ago, a motion for post-conviction relief will most likely be successful. The Supreme Court of the United recently handed down a decision that affirmative mis-advice from a criminal defense lawyer regarding the immigration consequences is also a basis for vacating a plea. The appellate courts within the State of Florida are deciding whether this defect can be cured by a judge's plea colloquy. Just because a case is vacated does not mean that charges will be dismissed, unless an agreement can be worked out with the prosecutor. However, the older the case, the more difficult it is for the prosecutor to prove the case and in all likelihood will decide not to proceed with the prosecution.

Keep in mind that drug trafficking charges, violent crimes and sex offenses are not the only offenses that can get an illegal alien deported. Two convictions or even withholds of adjudications for simple marijuana possession can form the basis for being deported. In many instances, defendants accept plea to seemingly harmless charges only to find themselves in immigration custody years later. The best course of action for a person who is illegally in the United States or is a resident alien and is charged with a crime is to seek out a criminal defense law firm who will fight the charges and hopefully obtain a dismissal of the charges. This is the only measure that can guarantee staying in the United States.

ICE Arrest 6 At-Large Convicted Criminal Aliens in Miami, BorderFireReport.net, November 18, 2010.

November 8, 2010

Judge Denies Motion for New Trial for Convicted Cops

A circuit court judge denied a motion for a new trial submitted by police officers recently convicted by a South Florida jury. The trial received a huge amount of media attention. Each Miami criminal attorney representing the defendants filed the motion based on alleged juror misconduct. One of the jurors was accused or reading articles about the case on the internet while the other juror allegedly contacted his father who is in the legal field in another country. The judge believed the information provided to her, but did not find that the accusations did not rise to the level of misconduct.

The accused police officers were members of the Miami-Dade County crime suppression team and were accused of grand theft, burglary, criminal mischief, aggravated assault and battery. One of the officers was convicted of official misconduct, aggravated assault and criminal mischief. The other officer was convicted of only one count of burglary. Both defendants were acquitted on false imprisonment and grand theft charges. Both defendants are awaiting sentencing pending the completion of their pre-sentence investigation reports. Each defendant was being held in custody, until the judge released one of the defendants for medical reasons.

Under Florida Rule of Criminal Procedure 3.600, a judge must grant a new trial if he or she finds that the jurors determined the verdict by lot; the verdict rendered was contrary to the weight of the evidence; or new and material evidence, if introduced at trial, would have probably resulted in a not guilty verdict and the defendant could not have discovered the new and material evidence using reasonable diligence. The judge must also grant a new trial if the defendants rights were substantially prejudiced by showing the defendant was not present at a material proceeding of the criminal process; the jury received other evidence not admitted by the court; the jurors separated during deliberation without the court's permission; a juror was guilty of misconduct, the prosecutor was guilty of misconduct; the judge failed to read an instruction as required under the law; or for any other reason that did not allow for a fair trial.

Defense counsel argued in their motion for a new trial that the jurors actions must be construed as misconduct thereby allowing for a new trial. The judge after taking testimony found that the jurors actions while inappropriate, but did not amount to misconduct and therefore denied the motions for a new trial. With that being said, the defendant convicted of aggravated assault with a firearm, official misconduct and criminal mischief is facing 15 years in prison with a 3 year minimum mandatory. The other defendant is facing 21 months to 15 years in prison for burglary of an occupied dwelling.

Motion for News Trial Denied in Convicted Cops Case, CBS4.com, November 8, 2010.


September 16, 2010

Regional Director of Florida Immigration Seeking to Deport Felons

The new regional field director for Florida's Immigration and Customs Enforcement (ICE) apprehension and removal department issued a public statement indicating that his department is stepping up efforts to remove or deport illegal immigrants with prior felony convictions. According to Marc Moore, the agency is shifting its focus on capturing and deporting illegal immigrants with past criminal records. According to ICE records, they were responsible for deporting 136,000 convicted criminal aliens in 2008 - 2009 and that they agency has already deported 170,000 individuals this year. In the event you or someone you know is picked up by ICE authorities and is currently detained, it is imperative to consult with a Miami criminal defense lawyer that has extensive experience in vacating or setting aside criminal convictions.

In most instances, the only way to secure someone's release from immigration custody is to have a judgement and sentence vacated and secure a nolle pros or dismissal of the charges from the prosecutor's office handling the case. The first step in the process is to order the file from the clerks office. Many of the cases that are subjecting people to deportation are cases that occurred in the 1990's. These files are kept in storage and must be reviewed before filing a motion for post-conviction relief. After the file has been received, all documents in the file must be reviewed including the arrest affidavit, information, judgement and sentence and typed plea colloquy.

Once the file has been ordered, it is necessary to track down the court reporter in an effort to obtain the transcript of the plea that was taken years ago. If the court reporter or the transcript is not available, the court reporting agency will submit an affidavit to that effect. The Supreme Court recently handed down a decision in the case of Kentuck v. Padilla, which allow individuals to file motion for post-conviction relief for individual that received mis-advice from their trial lawyer regarding immigration consequences that could occur as a result of entering into a plea. Recently, Florida law has gone further to say that affirmative mis-advice from counsel can be cured if the trial judge accepting the plea informed the person of the potential immigration problems such as deportation as a result of accepting the plea. If the transcript of the plea does not exist, defense attorneys have more flexibility in drafting their motions for post-conviction relief.

A person's criminal record will go a long way in determining whether a motion for post-conviction relief will be granted. Before agreeing to the motion the prosecution will generally run a background check to determine if the person seeking relief has a prior criminal record. The prosecution will also look at the charge(s) that were pled to in the case seeking to be vacated. For example a person charged with cocaine possession, marijuana possession or lower level theft charge is more likely have their conviction vacated that a person convicted of armed robbery and sexual battery. Another important fact to remember is that ICE does not distinguish between a conviction and a withhold of adjudication. Finally, the jurisdiction where the case is closed, the judge and prosecutor currently handling the case will have a significant impact in determining whether a motion to vacate is granted. Also remember, just because a case is vacated, it is still a pending case and needs to be nolle prossed or dismissed to effect a release from immigration custody.

Florida Immigration Chief Says Felons are Top Priority,The Palm Beach.com, September 8, 2010.

July 8, 2010

Homeland Security Now Linked to Florida Jails

Immigration officials are now linked to the booking data maintained by all Florida county jails. Immigration and Customs Enforcement ("ICE") has achieved the ability to check the county jails for foreign nationals subject to deportation. The ICE field officer director in Miami announced that all 67 counties in the State of Florida are currently linked to their databases. The program is controversial, but will allow ICE to locate foreign nationals who have been convicted of previous crimes or are pending criminal charges. The director was quoted as saying, "This capability means that local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody." Prior to the creation of the Department of Homeland Security, criminal foreign nationals were not held because the booking centers were not linked to an immigration database.

This change brings up a couple of interesting points that need to be addressed. When a person is booked into a Miami-Dade County Jail, corrections will be notified by immigration and told to place an immigration detainer on a recent arrestee. Corrections will then note on the jail card that an immigration detainer is in place and will affix the detainer to the physical jail card. Once the detainer is place, it is futile to post a bond because the detainer will not allow the department of corrections to release the defendant. Even requesting a bond hearing is futile because a county or circuit court judge does not have the power to lift the detainer.

As long a person is in the United States legally, e.g. a local permanent resident, ICE will not issue a detainer unless the person is convicted. If a defendant is here illegally, a detainer will be issued. The important point here is that defendants very often enter pleas to credit time served as a matter of convenience. Once that plea is entered, depending on the charge, a person that can be detained and made subject to deportation proceedings. Another common occurrence is that a person entered a plea several years ago that when the plea was entered was not a deportable offense. Since the 9/11 attacks, immigration laws have become much more strict actually allowing for deportation for charges such as marijuana possession and cocaine possession.

If you or someone you know is being held in a county jail with an immigration detainer, it is imperative to contact a Miami criminal lawyer experienced in representing client is post-conviction relief matters. The only way to secure the release of person who was previously convicted of an offense is to file a motion to vacate. Once the motion to vacate is granted, the lawyer must secure a nolle prosse or a dismissal of the charges by the state attorney's office handling the matter. Another important point to remember is that a person in custody will not be transported to immigration authorities until the case is closed. Never enter a plea to obtain the transfer because even though the person will be transferred, the conviction or withhold of adjudication will guarantee deportation.

Florida Jail Linked to Immigration Databases, The Miami Herald.com, June 30, 2010.

May 3, 2010

Immigration and Customs Enforcement Makes Nearly 600 Arrests

Throughout the southeastern United States, Immigration and Customs Enforcement (ICE) made almost 600 arrests. Federal and local law enforcement agencies arrested hundreds of criminal aliens as part of Operation Cross Check. The operation was the largest undertaken under this type of law enforcement action. The majority of individuals arrested were taken into custody in Florida and Puerto Rico. ICE broke down the arrests by county and number. Miami-Dade County led the way with 48 arrests. Other counties where individuals were detained included Lee County, 14 arrests; Collier County, 5 arrests; Broward County, 24 arrests; Monroe County, 5 arrests, Palm Beach County, 11 arrest; Hillsborough County, 10, arrests; and Orange County, 25 arrests. Individuals were taken into custody for prior convictions ranging from sexual battery to marijuana possession. If you or someone you know was taken into custody for immigration reasons, immediately contact a Miami criminal law firm to address the problem.

Most people taken into immigration custody will seek the advice of an immigration attorney. However, to solve the problem, the previous conviction or convictions that are causing the immigration detention must vacated and dismissed by the prosecuting authority. A criminal lawyer with experience in vacating pleas will have the ability to set aside a previous conviction or withhold of adjudication. Know that immigration authorities do not distinguish between a conviction or a withhold of adjudication. Bear in mind that even if a successful morion for post-conviction relief is filed, the case is not automatically dismissed. In fact, when a judgement and sentence is vacated, the case is re-opened from where it left off and still needs to be defended. Once a case has been vacated and the charges dismissed, only then can an immigration attorney appear in federal immigration court to secure a person's release.

Operation Cross Check should act as a lesson. If you are a not a U.S. citizen and have a past criminal record seek out a lawyer who handles post-conviction relief matters at the earliest possible time. It is much easier to filed a motion to vacate and have the charges dismissed when a person is not being held in immigration custody. Most judges will require defendants to appear in court to resolve these types of matters. An individual in immigration custody will be at a disadvantage because he or she can not appear in court. Another lesson to be learned is that defendants should not enter pleas out of convenience. Immigration authorities do not care whether or not you served jail time, received probation or even the easiest plea of credit time served. The only thing that concerns immigration authorities is the charge to which an individual took a plea..

Prior to 9/11, individuals were only deported for major crimes such as armed robbery, burglaries, aggravated assault and batteries and the like. Under the current state of the law, a conviction for drug paraphernalia such as a marijuana or cocaine pipe can get someone deported. In fact two convictions for simple marijuana will allow for deportation. While the Supreme Court of Florida diluted the rules for vacating convictions, the Supreme Court of the United States recently handed down law to help non-citizens avoid deportation. If an experienced lawyer can show that a criminal attorney did not warn their clients that deportation can result as part of taking the plea, the judgement and sentence can be vacated.

Nearly 600 Criminal Aliens Arrested in Nationwide Sting, MarcoNews.com, April 30, 2010.

October 28, 2009

Miami Criminal Defense Lawyer Seeks New Trial

A Miami criminal lawyer representing the man convicted of killing a 9 year old Liberty City girl is seeking a new trial. The defense lawyer is claiming that the manslaughter conviction of his client should be set aside because one of the jurors failed to mention that he had previously been a victim of a crime. The defense lawyer requested that Miami-Dade Circuit Judge Marisa-Tinkler Mendez grant him permission to speak with the jurors including the alternates. The judge set a hearing for November 10, 2009, to determine whether or not she will grant access to the jurors for questioning.

Earlier this month, a six member jury convicted Damon Darling of manslaughter and aggravated assault for his involvement in the death of Sherdavia Jenkins. Jenkins was the innocent victim caught in the cross-fire between Darling and his co-defendant, Leroy Larose in the courtyard of an apartment building located in Liberty City. Just prior to the commencement of the trial, Larose accepted a plea deal t seven years in prison in exchange for his testimony against Darling. Darling is facing up to 50 years in state prison at his upcoming sentencing hearing.

Darling was initially charged by the Miami-Dade County State Attorney's Office with second degree murder and attempted murder. A several hours of deliberation the jury returned a verdict of guilty to the lesser included charges of manslaughter and aggravated assault with a firearm. If the judge grants a new trial, Darling will only be facing the lesser charges for which he was convicted. Double jeopardy precludes the state attorneys office from proceeding on the original charges.

The defense lawyer filed a motion for a new trial because a juror inaccurately filled out a juror questionnaire, when he checked "no" to question asking if he had ever been the victim of a crime. Since the trial, an investigation revealed that in 2008, the juror had been the victim the crimes of aggravated assault with a deadly weapon, simple battery and criminal mischief, all stemming from a single incident. The motion claims that Darling was prejudiced for not having provided that information during jury selection.

The motion for a new trial also alleges that the same juror and another juror were "lifelong" friends from Homestead, Florida and that they failed to reveal this information to the judge, the defense lawyers and the prosecutors. Both jurors denied any impropriety, saying that the allegations were blown out of proportion had and had nothing to do with the verdicts they rendered.

Convict's Lawyer: Juror Tainted Sherdavia Trial, The Miami Herald, October 27, 2009.