Motion to Withdraw, Set Aside, and/or Vacate Plea and Judgment

COMES NOW the Defendant, by and through the undersigned counsel, pursuant to Florida Rules of Criminal Procedure 3.170(k) (Responsibility of Court on Pleas), 3.172 (Acceptance of Guilty or Nolo Contendere Plea), 3.111(d)(2) (Waiver of Counsel), and 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), and hereby respectfully requests this Court permit him to withdraw or otherwise set aside and vacate the plea and judgment entered in this case on December 8, and in support thereof, Defendant states as follows:

A. Introduction and Facts

1. On December 8, the Client was arrested for misdemeanor battery, in violation of FS §784.03(1)(A)(2).
2. The Client was assigned an appearance date of December 8.
3. On December 8, at his initial appearance, a hearing was conducted before this Court, at which time the Client, without counsel, plead nolo contendere, was adjudicated guilty, placed on misdemeanor probation for one year and court costs and fines in the amount of $655 were imposed.
4. The Client had no attorney representing him during the time of his first appearance.
5. During the time of his first appearance, the Client was informed that he if was to plea not guilty, he would be facing a $20,003 bond, which he could not afford, therefore would have had to remain incarcerated during the time of his case.
6. The Client is currently employed with Company as a Shipping Clerk, and needed to be released from the jail to keep his job, despite his innocence.
7. The Client did not understand the actions he was taking by pleading Nolo Contendere on December 8.
8. The Client has subsequently received advice of counsel and now comprehends that the conduct alleged is not violative of the statute for which he was cited, is thus factually and legally innocent of the charge, such that he should not have pled to that which was not a crime.

B. Law and Authorities

9. Rule 3.170(k) (Responsibility of Court on Pleas), sets forth the requirements of the Court to determine “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty.” (emphasis added). Respectfully, the “circumstances surrounding the plea” in this case do not demonstrate that Mr. D. had a “full understanding of the significance of the plea and its voluntariness.”
10. Rule 3.172 (Acceptance of Guilty or Nolo Contendere Plea), sets forth the procedures for acceptance of a plea, including determine voluntariness and the existence of a factual basis. See especially Rule 3.172(a), (b) and (c). Respectfully, compliance with those rules was not had. In particular, there was not a lawful factual basis for the plea. (See Parts C. and D. infra.)
11. Rule 3.111(d)(2) sets forth requirements for the court to permit a defendant to waive counsel, including advising the defendant of the “disadvantages and dangers of self-representation.” At no time during the individual plea colloquy was Mr. D. advised of the “disadvantages and dangers of self-representation.” Exhibit B at 3-4.
12. Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence). Motions relying on this rule must be filed within two (2) years after the judgment, in noncapital cases. This motion is timely filed.
13. “A plea of guilty should be entirely voluntary … and should not be induced by fear, misapprehension [or] persuasion.” Lopez v State, 227 So. 2d 694, 697 (Fla. 3d DCA), citations omitted. “Even a slight undue motivation will invalidate [a guilty] plea; it must be without a semblance of such influence.” Reddick v State, 190 So. 2d 340, 343 (Fla. 2d DCA, 1996), citations omitted; certiorari discharged 199 So.2d 99 (Fla. 1967).
14. Due process requires a Court accepting a guilty plea to carefully inquire into the Defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary. Koenig v. State, 597 So. 2d 256 (Fla. 1992). The fact that a Defendant may have signed a written plea form which reflects the Defendant’s rights is not sufficient. Koenig v. State, 597 So. 2d 256 (Fla. 1992); Joseph v. State, 782 So. 2d 895 (Fla. 2d DCA 2001. The plea dialogue in the instant case does not reflect an individualized discussion by the Court with the Defendant regarding the written plea form. Indeed, in this case, there was no written plea form at all.
15. A review of the transcript of the plea dialogue does not reflect that the Court made a finding that the plea was freely and voluntarily entered in accord with Rule. 3.172(a) and (c), Florida Rules of Criminal Procedure. Exhibit B at 4.
16. When addressing Mr. D., individually, at no time did the court “advise the [defendant] of the disadvantages and dangers of self-representation.” Fla. R. Crim. P. 3.111(d)(2). Neither did the court conduct a “thorough inquiry . . . into both the accused’s comprehension of [the offer of counsel] and the accused’s capacity to make a knowing and intelligent waiver.” Id.
17. “When a defendant who is entitled to counsel elects to waive that right and self-represent, the judge must inform the defendant of the risks inherent to self-representation and make an inquiry sufficient to determine whether the defendant’s waiver of counsel is being made knowingly and intelligently.” Case v. State, 865 So. 2d 557, 559 (Fla. 1st DCA 2003)(citing Faretta v. California, 422 U.S. 806 (1975)). “When a defendant waives the right to counsel, the trial court’s failure to perform an adequate Faretta inquiry is per se reversible error.” Id. (citing State v. Young, 626 So. 2d 665, 657 (Fla. 1993)). Moreover, denial of a defendant’s right to counsel renders a conviction void. Burgett v. Texas, 389 U.S. 109, 114 (1967). “A void judgment may be collaterally attacked at any time.” Brown v. State, 917 So. 2d 272, 273 (Fla. 5th DCA 2005).
18. Because the record establishes the lack of an adequate inquiry into defendant’s understanding of the offer of counsel and his capacity to knowingly and intelligently waive counsel, the judgment based upon his no contest plea is void, and the defendant should be allowed to withdraw his plea and have the judgment vacated.
19. Duval County judges have permitted withdrawal of pleas and have vacated judgments under facts where the plea colloquy was no more substantial (indeed, Mr. D. was less substantial). Attached hereto are copies of decisions by Circuit Judge L. M. D. in the case of C. A. J., Jr. v. State of Florida, Duval County Case, and the Opinions of both Judge B. D. S. and K. K. C., in the case of State of Florida v. B. W., Duval County Case.
20. As reflected in those orders, as well as in the above cited Florida Rules of Criminal Procedure, where an individualized plea colloquy has not been properly undertaken, it cannot be “cured” – even by the existence of a standardized videotape that may have been viewed by defendants prior to the entry of their plea. Here, Mr. D. was not shown any such videotape.

C. Factual Basis – Absent From the Record

21. The plea transcript reflects not only that the Court did not find the existence of a factual basis, but, in addition, no factual basis was placed on the record by the State, or otherwise.
22. Moreover, Mr. D. was told that he was “charged with exposure of sexual organs.” Exhibit B at 3. Of course, that is the title of the statute, but, respectfully, the title is misleading, in that mere exposure of sexual organs is not a crime. As noted in Part D., infra, the exposure must be “in a vulgar, indecent, lewd, or lascivious manner.” Mr. D. was not informed of that essential element of this offense, and, to his non-lawyer and non-legal-trained ear, when he heard that his charge was simply, “ exposure of sexual organs,” he perceived he had no defenses, as he, of course, knew he had been nude on the beach.
23. In addition to the absence of a stated factual basis, the Citation (Exhibit A) contained no facts that would support a proper and lawful factual basis for the F.S. §800.03 charge, as further discussed in Part D., infra.

D. Law and Authorities – Factual Innocence

24. The Thirty-Ninth Annual Review of Criminal Procedure, 39 Geo.L.J. 432, outlined factors to be considered in determining whether there are “fair and just” reasons that warrant withdrawal of a plea. Application of these factors warrant withdrawal of Mr. D.’s plea. One of those factors is Mr. D.’s assertion of factual and legal innocence. Id. at 432 and n. 1349. Even in a post-sentencing 28 U.S.C. §2255 motion to set aside a guilty plea, a defendant may obtain relief from his procedural default in failing to challenge his conviction if he can show that the alleged error in his plea “has probably resulted in the conviction of one who is actually innocent.” Jones v. U.S., 153 F.3d 1305, 1308 (11th Cir. 1998) (emphasis added).
25. Here, the sworn probable cause of the Department of Environmental Protection (Exhibit A), was that,
This officer observed defendant lying on his back totally naked exposing his genitals on public beach, Big Talbot Island State Park.

(emphasis added).
26. It is clear from the probable cause allegations (which informed the Court as to the potential, vel non, for a factual basis for the plea), that the citing officer had no probable cause to satisfy the elements of a violation of F.S. §800.03, for reason that Mr. D.’s nudity was not coupled with any allegation of lewd or lascivious exhibition.
27. Florida Standard Jury Instruction (Criminal) 11.9 sets forth the elements for a violation of F.S. §800.03, and requires that,
The [exposure or exhibition of the sexual organs] [or] [nakedness] was in a vulgar, indecent, lewd, or lascivious manner.
28. Moreover, “Proof of mere nudity or exposure is not sufficient to sustain a conviction.” Id. That is most certainly the situation here, in that the citing officer reported “mere nudity.” Hence, there was no proper factual basis for the plea, in that no crime had been committed.
29. Indeed, both the third and fourth elements of the pattern instruction require not only that the exposure be in a “vulgar, indecent, lewd or lascivious manner,” but that Mr. D. “intended” the exposure to be in that manner. The Standard Jury Instruction defines those four terms as synonymous with each other, and specifically says they “mean the same thing.” The instruction states they mean “an unlawful indulgence or wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing the act.” Clearly, these terms have no application to the simple act of Mr. D. lying on the beach. Moreover, as the instruction notes, “Proof of mere nudity or exposure is not sufficient to sustain a conviction.”
30. The application of this statute has been rejected in a case whose facts are remarkably
similar to those at hand. In Goodmakers v. State, 450 So. 2d 888 (2d DCA 1984), the court held that mere nudity was insufficient to constitute a violation of F.S. §800.003. Id. at 891. The defendant had to be in a “state of sexual arousal.” Id. Absent that, “he did not engage in a lewd or lascivious exhibition or exposition of his private parts while naked.” Id. In Goodmakers, the defendant was “lying nude on a dock” and his “sexual organs were not in a state of arousal.” The same must be said here, in that the citing officer alleged mere nudity, and nowhere alleged that Mr. D.’s sexual organs were in a state of arousal – such that the statutory elements that the nudity be “in a vulgar, indecent, lewd, or lascivious manner” were alleged, let alone established.
31. Importantly, the Goodmakers court relied on the First District Court of Appeal, which held that, even in the case of nudity, “in order for nudity to be prosecutable under section 800.003, Florida Statutes, there must be a lewd or lascivious exhibition or exposure of the sexual organs.” Duvallon v. State, 404 So. 2d 196, 197 (1st DCA 1981).
32. In addition to the clear reading of the statute, and Florida Standard Jury Instruction (Criminal) 11.9, on two occasions, this statute has been sought to be applied to urination. In all instances, its application to such a natural bodily function has been rejected.
33. In both Durant v. State, 647 So. 2d 163 (2d DCA 1994) and Payne v. State, 463
So. 2d 271 (2d DCA 1984), the appellate courts have held that, “The act of urinating in public does not by itself constitute a lewd or lascivious act.” Indeed, the facts in Durant are far more egregious than is this case. In that case, the defendant had “urinated off his back steps one evening, knowing that neighbor girls were outside and would see him.” Durant, 647 So. 2d at 163-164.
34. Similarly, in Burks v. State, 766 So. 2d 468 (5th DCA 2000), the court held that a conviction for a lewd and lascivious act in the presence of the child could not be sustained by the defendant’s act of coming from behind his trailer while naked and putting his hands on his hips in view of a 14 year-old. The rationale for that holding was that this act was not an act of “wicked, lustful, unchaste, licentious or sensual design.” Burks, 766 So.2d at 470. The court reasoned that these terms import “more than a negligent disregard of the decent proprieties and consideration due to others.” Id. At worst, that is all that can be said with regard to Mr. D.
35. In summary, the (1) statute, (2) Standard Jury Instruction, and (3) case law pretermits application of this statute to the act of Mr. D. merely lying nude on the beach.
36. For all these reasons, Mr. D. credibly asserts his innocence, and thus has provided an additional “fair and just” reason to permit withdrawal of his plea.

E. Conclusion

37. Mr. D. had valid defenses that he could have asserted, had he been aware of them, and intends to assert them, should he be allowed to withdraw his plea. These include lack of evidence, failure of proof, lack of a proper factual basis for the charge and the failure to state an offense.
38. Respectfully, Mr. D. has made a sufficient showing of prejudice or manifest injustice, that the plea dialogue was insufficient, that his plea was not voluntary, and that he now stands convicted of that which is not a crime, to establish his entitlement for the Court to exercise its discretion to permit him to withdraw his plea.
WHEREFORE, it is respectfully requested that this motion be granted, and that the Court exercise its discretion to permit Mr. D. to withdraw his plea.