|Posted on June 18, 2018 at 2:35 PM|
Attorneys practicing criminal law should be extremely careful when representing foreign citizens in criminal cases, even minor misdemeanors. Even if your client has been a legal permanent resident for decades, a conviction for a specified offense could pose serious immigration problems. Once a conviction becomes final, it is extremely difficult to get it vacated. The following article details the unique procedural hurdles that a family had to endure and illustrates an extreme example of this process.
In 2004, after spending their working years in New York, Bernard and Josephine Storey, decided to move to Clearwater, Florida and retire near the beach. Bernard, a legal permanent resident of the United States for over forty years, a father, and grandfather, developed bipolar disorder after suffering a head injury sustained during a car wreck. In 2005, after Bernard suffered a psychological breakdown, he was arrested in Clearwater, and subsequently placed on probation. Almost a year and a half later, in 2007, Bernard violated his probation with a new misdemeanor charge. Without the benefit of his medication and thinking there was no immigration issue, he pled to the misdemeanor and admitted his probation violation. The circuit court sentenced Bernard to a year and a day in jail. Immigration Customs Enforcement (ICE) put a hold on Mr. Storey, which mandated his deportation once he completed his sentence. According to ICE, Bernard was now convicted of an aggravated felony and deportable since the original charge was aggravated assault and his sentence was over a year, literally one day over. Once he was transferred from the Pinellas County Jail to the Department of Corrections, correctional officers noted Bernard acting strange and he was sent to the Crisis Stabilization Unit and given injections of psychotropic medication.
Faced with the possibility of her husband’s deportation, Josephine retained counsel and a legal battle that would take almost a decade began. First, we filed motions for postconviction relief in the circuit and county court and argued amongst other things that Bernard’s pleas were involuntary due to the lack of his medication and his mental health. After the motion was partially denied without a hearing, I appealed the denial to the Second District Court of Appeal. The appellate court reversed and remanded Bernard’s case back to the trial court for an evidentiary hearing on his motion. Storey v. State, 32 So. 3d 105 (Fla. 2d DCA 2009). The trial court denied the motion a second time after a hearing despite hearing expert testimony from a forensic psychologist confirming Bernard’s psychosis at the time of the admission to the violation of probation, the basis for his removal from the United States.
For a second time, I appealed Bernard’s case to the Second District Court of Appeal, which became extremely complicated. After complete briefing, oral argument, and while the appeal was pending, immigration decided to deport Bernard back to his native country of Trinidad, away from his wife, Josephine, his children, and grandchildren, all of whom were American citizens. Six months after the oral argument, the Attorney General’s office found out about the deportation and filed a motion to dismiss the appeal, which was granted without an explanation. The admission to the violation of probation and the resulting sentence, the basis of the appeal, was the sole reason Bernard was deported. Despite pointing this out to the appellate court, it denied a motion for rehearing and motion for rehearing in banc. Bernard was banished to Trinidad and Josphine’s health seriously deteriorated requiring multiple hospitalizations, including visits to the intensive care unit.
We determined that the proper procedural remedy was to file an extraordinary writ, a petition for a writ of mandamus, in the Florida Supreme Court, SC12-2504. In the petition, we argued that it was improper for an appellate court to dismiss an appeal merely because defendant was deported, when the sole basis for the deportation was the issue on appeal. The Florida Association of Criminal Defense Lawyers and the Catholic Charities Legal Services filed amicus briefs in support of Bernard’s position. After a year, the Florida Supreme Court agreed and ordered the Second District Court of Appeal to rule on Mr. Storey’s case. On May 24, 2014, the Second District reversed the denial of Bernard’s motion, found that his plea was involuntary, and remanded the case back to the circuit court. Storey v. State, 139 So. 3d 448 (Fla. 2d DCA 2014). After some negotiation, the State Attorney’s Office elected not to pursue Bernard’s probation violation and the state conviction that gave rise to his deportation was dismissed.
Even though the state conviction that gave rise to Bernard’s deportation was reversed, his case still had to go before the immigration court in Miami. Thankfully, in March 2016, He was able to visit Josephine in the hospital and they currently live in Clearwater.