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People's Law Guide


Pro Bono Representation Helping Shape Laws

Steven A. Goldstein



By Steve Goldstein, Managing Partner Pozo Goldstein & Gomez, LLP

Last year, Pozo Goldstein & Gomez through our firm's criminal defense division director, Maggie Arias, was asked whether she would participate in co-writing an Amicus Brief to the Third District Court of Appeals requesting rehearing in the matter of Leduan Diaz v. State. Mr. Diaz, a Cuban national and lawful permanent resident of the United States, had been detained by immigration pursuant to deportation proceedings being commenced against him based solely on criminal charges for which he had been convicted in 2001. His attorney at the time of the plea, had failed to inform Mr. Diaz that by pleading guilty to aggravated assault with a deadly weapon, burglary of an unoccupied conveyance with the intent to commit an assault or battery therein, and criminal mischief, he would become removable from the United States under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act as having been convicted of at least one crime involving moral turpitude. 8 U.S.C. §1227(a)(2).

In 2010, after Mr. Diaz became detained by immigration, attorney Matt Ladd filed a motion for post conviction relief in the Eleventh Judicial Circuit Court in Miami-Dade County, alleging that Mr. Diaz's defense counsel affirmatively misadvised Mr. Diaz in 2001, that he would not likely face any risk of deportation because the offenses to which he pled were only resulting in withholds of adjudication rather than in felony convictions. In addition to that ground, Mr. Ladd's motion alluded to the plea colloquy read by the trial judge back in 2001. That plea colloquy revealed that the standard judicial warning given in criminal case pleas as required by Florida Rule of Criminal Procedure 3.172(c)(8) was neither adhered to in Mr. Diaz's case nor did the warning prove to adequately place Mr. Diaz on notice of his imminent deportation consequence.

Mr. Diaz's motion for post conviction relief was denied and that denial was appealed to the Third District Court of Appeals. The 3rd DCA subsequently affirmed the lower court's decision to deny Mr. Diaz's motion, citing to Flores v. State, 35 Fla. L. Weekly D1562, 2010 WL 2882465 (July 14, 2010), a case holding that the Florida Rule of Criminal Procedure3.172(c)(8) which requires a warning that deportation "may" result from a guilty plea cured any affirmative misadvice on the part of a noncitizen defendant's attorney.

After the 3rd DCA's decision, our firm's Maggie Arias along with her co-writer, appellate criminal defense attorney, Benjamin Waxman, substituted as counsel for Leduan Diaz who had been moved to a detention facility in Monroe County. Ms. Arias and Mr. Waxman then filed a motion for rehearing, rehearing en banc, certification, and clarification with the 3rd DCA. On May 25, 2011, the 3rd DCA affirmed its original denial of Mr. Diaz's appeal in a decision citing the case of Hernandez v. State, 36 Fla. L. Weekly D713 (Fla. 3d DCA April 6, 2011), which held that a trial court's deportation warning under Florida Rule of Criminal Procedure 3.172(c)(8) did not cure the prejudice arising from defense counsel's failure to warn that accepting a plea would result in the defendant's mandatory deportation; certified conflict with Flores v. State, supra.; and found that Padilla v. Kentucky had no retroactive effect and thus did not apply to pleas taken before Padilla was announced, certifying a question of great public importance to the Florida Supreme Court.

In short, Mr. Diaz's denial was affirmed though the case that was cited had actually certified questions of great public importance to the Florida Supreme Court. The main issues are the following:

  1. Does Florida's Rule of Criminal Procedure 3.172(c)(8) requiring a warning that deportation "may" result from a criminal case plea, bar immigration-based ineffective assistance of counsel claims brought pursuant to Padilla v. Kentucky, 599 U.S. , 130 S.Ct. 1473 (2010), and,
  2. Does Padilla v. Kentucky apply retroactively to pleas taken prior to Padilla being announced in March of 2010?

Based on the outstanding questions which have yet to be answered by the Florida Supreme Court, Ms. Arias and Mr. Waxman recently filed their motion seeking discretionary jurisdiction in the Florida Supreme Court, followed by their jurisdictional brief which was filed in the Supreme Court on June 30th, 2011.

The Law Firm of Pozo, Goldstein & Gomez, LLP., proudly continues to represent Mr. Leduan Diaz on a pro bono basis. His case, along with thousands of other non-U.S.-citizens convicted of certain crimes, presents an issue of great public importance. Concurrent with other cases which have been recently submitted to the Florida Supreme Court for review, Mr. Diaz's appellate case decision in the Florida Supreme Court is one which will help shape the changes in the current law concerning accurate deportation warnings to non-U.S.-citizen defendants as well as help to ensure adequate and effective legal representation of those persons facing additional consequences in immigration as a direct result of criminal case pleas. We are proud to have ventured into the litigation of these landmark issues facing hundreds of thousands of immigrants in the State of Florida. We are certain that Ms. Arias' continued and zealous representation of Mr. Diaz will no doubt impact the making of the laws governing non-U.S.-citizens charged with criminal offenses.

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