State v. Mohammed Shaikh

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011 STATE OF FLORIDA, Appellant, v. Case No. 5D10-2515 MOHAMMED SHARIQUE SHAIKH, Appellee. ________________________________/ Opinion filed June 3, 2011 3.850 Appeal from the Circuit Court for Orange County, Roger J. McDonald, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee. PER CURIAM. The State seeks reversal of an order granting the motion of the appellee, Mohammed Sharique Shaikh, for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Mr. Shaikh's motion, his third, was based on the opinion of the United States Supreme Court in Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), concerning the consequences of inadequate legal advice in connection with the risk of deportation at the time of the entry of a plea. The trial court found that his nolo contendere plea to violation of a domestic violence injunction was involuntary because of the purportedly erroneous advice given to him by his attorney. We reverse. Mr. Shaikh's plea was entered on October 29, 2007, well before Padilla was handed down. We agree with that part of the decision of our sister court in the third district in Hernandez v. State, 36 Fla. L. Weekly D713 (Fla. 3d DCA Apr. 6, 2011), holding that Padilla should not be applied retroactively. As Mr. Shaikh is not entitled to relief on his claim, we reverse the order granting post-conviction relief and remand to the trial court to reinstate the judgment and sentence in case number 48-2007-CF-5935. REVERSED and REMANDED with instructions. MONACO, C.J., and LAWSON and JACOBUS, JJ., concur. 2

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