Leduan Diaz, Appellant, v. The State of Florida, Appellee. (2011)

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Florida Immigration Advocacy Center, and Tania Galloni;  Immigration Clinic, University of Miami School of Law, and Rebeccaa Sharpless;  Immigration Clinic, St. Thomas University School of Law, and Michael Vastine, Director, as Amicus Curiae.

ON MOTION FOR REHEARING

Defendant, LeDaun Diaz, seeks rehearing following the issuance of our opinion on October 20, 2010.   We grant rehearing, withdraw our prior opinion, and substitute this opinion in its place.

Diaz appeals the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of counsel due to trial counsel's failure to advise him that accepting a plea would subject him to deportation.   We affirm based on Hernandez v. State, 36 Fla. L. Weekly D713 (Fla. 3d DCA Apr. 6, 2011), wherein this Court:  (a) citing Padilla v. Kentucky, 130 S.Ct. 1473 (2010), found that the 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;  (b) certified conflict with Flores v. State, 35 Fla. L. Weekly D1562 (Fla. 4th DCA July 14, 2010) on this legal question;  and (c) found that Padilla 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.

Affirmed.