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Legal Pleadings:

Vacate Plea and Judgment

COMES NOW the Defendant, by and through the undersigned counsel, pursuant to Florida Rules of Criminal Procedure 3.170(l) (Motion to Withdraw the Plea after Sentencing), 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 her to withdraw or otherwise set aside and vacate the plea and judgment entered in this case on June 9, and in support thereof, Defendant states as follows:

A. Introduction and Facts

1. On June 9, at 1:22 a.m., the Client was arrested and charged with domestic battery.
2. The Client’s first appearance was in Courtroom J-1, on June 9, at 2:00 p.m.
3. At first appearance, the Client pled no contest to domestic battery. Adjudication was withheld, and she was sentenced to one year of probation, with the special conditions that she complete the Batterers’ Intervention Program, have no violent contact with her husband, and pay costs and fines in the amount of $760.00.
4. The Client waived the right to counsel, and was not represented by an attorney when she entered her plea.
5. At the time of the Client’s appearance in J-1, she had not eaten since lunch the day before (24 hours) or slept since the night before (32 hours).
6. The Client could not read any of the documents presented to her at J-1, including the Waiver of Right to Counsel, because she did not have her reading glasses with her.
7. The Waiver of Right to Counsel, which the Client signed, was not entirely filled out, and did not include the maximum penalty for Domestic Battery. Exhibit B.
8. The Client did not believe she had the right to the services of the Public Defender. She recalls being asked if she had an attorney she wanted to contact. The Client did not know any attorneys, and did not know how to contact any. Although she did view the videotaped presentation, she does not recall being told of the dangers of self-representation, and this was not discussed with her individually.
9. When the Client appeared before the judge, she understood she had three options: (1) to plead guilty, (2) to plead no contest, or (3) to plead not guilty.
10. Prior to appearing before the judge, the Client does not recall being told any of the following information:
a. What her bond would be, if she pled not guilty.
b. What her sentence would be, if she pled guilty or no contest.
c. Any information about the Batterers’ Intervention Program, including the fact that it is a 24 week program.
d. Her husband (the alleged victim) did not wish to press charges against her.
11. The Client does recall being told that if she entered a plea of guilty or no contest, she would be released from jail that day.
12. The Client has been employed by the Relief Society, for 10 years, as a Relief Services Assistant. She could not afford to miss any more days of work, and decided to enter a plea of no contest, so that she could get out of jail as quickly as possible.
13. Prior to her plea, the Client did not have an opportunity to speak with her husband. However, S. B., the Assistant State Attorney appearing in J-1, did contact her husband, and her husband told him that he did not want the Client prosecuted for battery. This was not conveyed to the Client, before she entered her plea, and would have affected her decision to enter a plea.
14. The Client stood in front of the judge with two other defendants, who were also charged with domestic battery. The Assistant State Attorney read the charges. The judge asked what she wanted to plead, and when she said, “No contest,” the judge imposed the aforementioned sentence.
15. The Client and her husband have been married for almost 31 years, and have two grown sons, and one granddaughter.
16. The Client has never been arrested before.
17. Her husband, the alleged victim, has reviewed the Arrest and Booking Report (“Report”). He has confirmed by the Affidavit that the Client did not intentionally commit a battery on him on June 9.
18. The Client’s husband also confirms he does not want his wife prosecuted for this battery charge, as he stated to Mr. B. on June 9.
19. The Client believes herself to be innocent of the charges, and her husband agrees.

B. Law and Authorities – Plea not Knowing and Voluntary

20. Rule 3.170(l)(Motion to Withdraw the Plea after Sentencing), provides that a motion to withdraw a plea may be filed within 30 days after rendition of the sentence, on the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)a-e. In particular, subsection c states, “an involuntary plea, if preserved by a motion to withdraw plea.” And subsection e states, “as provided by law.” In this case, the plea was involuntary, because the Client did not understand the consequences of her plea, the sentence she was agreeing to, the maximum penalty, or the fact that her husband (the alleged victim) did not want her prosecuted.
21. 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.” Respectfully, the “circumstances surrounding the plea” in this case do not demonstrate that the Client had a “full understanding of the significance of the plea and its voluntariness.”
22. Rule 3.172 (Acceptance of Guilty or Nolo Contendere Plea), sets forth the procedures for acceptance of a plea, including determining the voluntariness and the existence of a factual basis. See especially Rule 3.172(a) and (c). Respectfully, those procedures were not followed in this case.
23. “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).
24. 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 Client’s plea was not “intelligent and voluntary,” since she did not have a full understanding of what she was agreeing to at the time.

C. Law and Authorities – Waiver of Right to Counsel

25. 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.” Although the Client watched a video taped presentation at J-1, regarding her right to counsel, at no time during the individual plea colloquy was the Client advised of the “disadvantages and dangers of self-representation.”
26. 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. Fla. R. Crim. P. 3.111(d)(2).
27. “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).
28. Because of the lack of an adequate inquiry into defendant’s understanding of the offer of counsel, and her capacity to knowingly and intelligently waive counsel, the judgment based upon her no contest plea is void, and the defendant should be allowed to withdraw her plea, and have the judgment vacated.
29. Duval County judges have permitted withdrawal of pleas and have vacated judgments under facts where the plea colloquy was no more substantial.
30. 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” by the existence of a standardized videotape that may have been viewed by the Defendant prior to the entry of his plea. Indeed, in the orders entered by the Duval County Judges, the content of the videotape was essentially irrelevant.

D. Law and Authorities – Factual Innocence

31. The Thirty-Eighth Annual Review of Criminal Procedure, 38 Geo.L.J. 420 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 the Client’s plea. One of those factors is the Client’s assertion of factual and legal innocence. Id. at 421 and n. 1335. That factual and legal innocence is evidenced by her husband’s Affidavit, which demonstrates he does not believe his wife intentionally battered him. Even in a post-sentencing 20 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).
32. The Client’s husband’s Affidavit confirms that the Client is not guilty of battery, because she did not intentionally batter him on the evening of June 9, but grabbed him out of fear, in an effort to get him to slow down and drive more carefully.
33. The Client credibly asserts her innocence, and thus has provided an additional “fair and just” reason to permit withdrawal of her plea.

E. Conclusion

34. The Client’s plea was not made knowingly and voluntarily, and was made without the assistance of counsel.
35. The Client did not knowingly and intelligently waive her right to counsel.
36. The Client is factually innocent of the charge of domestic battery. She had valid defenses that she could have asserted, had she been aware of them, and intends to assert them, should she be allowed to withdraw her plea.
37. The Client was the subject of “manifest injustice,” because her plea was not knowingly and voluntarily entered, she did not knowingly and voluntarily waive her right to counsel, and, she was factually innocent of the charges. Snodgrass v. State, 837 So. 2d 507 (Fla. 4th DCA 2003).
WHEREFORE, it is respectfully submitted that the Defendant be permitted to withdraw her plea.