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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 APPEARANCES: JEFFREY ASHTON Assistant State Attorney 415 North Orange Avenue Orlando, Florida 32801 On Behalf of the

Plaintiff Vs. JOSEPH VEGA, Defendant. _________________/ STATE OF FLORIDA, Plaintiff,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CRIMINAL JUSTICE DIVISION

CASE NUMBER: 2008-CF-5351-O DIVISION NUMBER: 15

CHANGE OF PLEA HEARING BEFORE THE HONORABLE BOB LEBLANC

Recorded by Digital Court Reporters In the Orange County Courthouse 425 North Orange Avenue Courtroom 7-D Orlando, Florida 32801 Commencing at 1:35 p.m. Tuesday, June 22, 2010 Transcribed By Kelley A. Grijalva

KATHLEEN T. GILLARD Assistant Public Defender 501 N. Magnolia Avenue Orland, Florida 32801 On Behalf of the Defendant

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2 1 2 TABLE OF EXHIBITS 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TESTIMONY OF JOSEPH VEGA Direct Examination By Ms. Gillard Cross-Examination By Mr. Ashton Redirect Examination by Gillard COURTS RULING CERTIFICATE OF COURT TRANSCRIBER 5 10 31 53 61 3 I N D E X PAGE

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3 1 2 3 DEFENDANT'S EXHIBIT A/1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 48 TABLE OF EXHIBITS Offered for Identification Admitted Into Evidence

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: P R O C E E D I N G S Okay. State of Florida versus Joseph

Vega, 08-CF-5351. MS. GILLARD: Honor. Kathleen Gillard for Mr. Vega, Your

Mr. Vega is present next to me, Your Honor. Jeff Ashton for the State of Florida. And I know we granted an evidentiary

MR. ASHTON: THE COURT:

hearing as to what? MR. ASHTON: Well, Judge, we never received an order

indicating what claims would or would not be set for hearing. We just received a notice of hearing. And I did

file a response indicating that I felt that -- I know I said just one of the claims was -- should be summarily dismissed. But as I said, we never really got a

determination. I believe I indicated that ground 1 should be summarily denied. But ground 2 would require a hearing

since there's - it involved as opposed to discussions between Counsel and Defendant. THE COURT: I'm sure not sure I said which grounds. We'll set the hearing So you

I just said each side has one hour.

and you can argue and present whatever you want. each got one hour. MS. GILLARD: burden, Your Honor. Thank you.

I believe we have the

So if I may call Mr. Vega.

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS. GILLARD: Q Okay. Mr. Vega, will you please state your name for THE COURT: be sworn. * * * * * WHEREUPON: The Defendant was duly sworn, examined and testified as follows: MS. GILLARD: THE COURT: Can he sit right there, Your Honor? I think for cross-examination purposes, Okay. Mr. Vega, raise your right hand to

probably should sit in the witness box. And for the record, this is a motion with withdraw plea. correct? MR. ASHTON: 3.850. THE COURT: MR. ASHTON: All right. But it's obviously a withdrawal of plea. * * * * * DIRECT EXAMINATION It is titled that, but it is under Rule Is that

the record? A Q Joseph Luis Vega. And Mr. Vega, at some point in 2008, you were charged

with criminal actions where your -- I guess, ex or separated wife was the victim. A Q Correct. And you did not have a trial in those matters. Correct?

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Correct? A Q Correct. And you ultimately entered pleas to all four counts?

All four charges? A Q Correct. All right. And I don't know if you recall the case

number, but that 08-CF-5351. A Q Correct. Does that sound right? Okay. Now, Mr. Vega, what's

your background as far as education A Q Four-year degree, business. That's it. So you have no legal background? You never went to

law school? A Q No, ma'am. Okay. And as far as ever being charged with a

felony, was this your first time -- with a felony? A Q Yes, it was. So you didn't have a lot of knowledge about the

criminal justice system? A Q I have no knowledge about how it worked. Okay. Now, prior to entering your plea, did you meet Correct?

with your -- you were assigned a public defender. A Q A Correct. And that would have been Ms. Shepherd? Yes.

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over. Q Okay. I guess at some point, later, after you had Q A Q And you see her here today? I do. Okay. So that's the same Ms. Shepherd that

represented you on the charges. Correct? A Q A Q It is. How many times would you say you met with her? I would say for sure two, possibly three times. Okay. Now, most of your charges -- or all of them

rather -- stem from the fact that there had been injunctions in place or served or issued or requested prior to these charges. Correct? A Q Correct. Did you discuss with Ms. Shepherd the temporary

injunction at all that was -- looks like -- issued on March the -- yeah, March 18th of 2008. A Ms. Shepherd told me she would not discuss the

injunction with me. Q Okay. And at some point you did get served with that Correct?

temporary injunction. A Q A I did.

And did you read it over? I looked it over. I didn't study it, but I looked it

entered your pleas, you had had further conversations with Ms.

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Shepherd with regards to the 15 days that a temporary injunction could be issued? A It was about six months after I entered my pleas in

February of '09, six months later, I happened -- I don't know how come -- I happened to be looking at the paperwork and I noticed the dates. Q Okay. When you discuss the injunction with Ms.

Shepherd, is it because you didn't understand or you weren't sure if it was valid? discuss the injunction? A Q A Q A You mean, six months after I plead -No, originally when you said -Oh, originally, before I plead? Yes. I just thought that, you know, the attorney and the What was your purpose of wanting to

client should look at the paperwork that the charges were based on together and go over it together. was the case. Q Okay. Did you rely solely on Ms. Shepherd's advice And she didn't think that

when you entered your plea? A Q I relied solely on her advice. Now, you if you had the chance to have discussed this

with her and the outcome after doing some research, it appears that the temporary injunction would not have been valid -MR. ASHTON: Objection. Assumes a fact not in

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evidence. And it's legally incorrect. Sustained.

THE COURT: BY MS. GILLARD: Q Okay.

So, Mr. Vega, you said that you had met with Correct?

her on three occasions. A Q A

I said two for sure, three possibly. Okay. Two or three.

And I could even -- it could even be four, I just But two for sure.

don't remember exactly. Q Okay.

And did you ever have the opportunity to

discuss with Ms. Shepherd during those meetings the fact that the permanent injunction was -- as to when it was served upon you? A She didn't want to discuss anything regarding the

injunctions period. Q Okay. So what you made you enter a plea to these

charges if you weren't aware of the evidence? A I was going totally by her advice. And she told me

that either I made the three calls or I didn't. And that's all that mattered. And if I was going to go to a jury trial, they

would look at those facts whether I made the three calls or not. And that was it. Q That was all that mattered.

If you were -- had been aware of possible defenses to

these charges, would you have entered your pleas? A No, I would not have.

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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ASHTON: Q Just so we're clear, you had been served with the MS. GILLARD: THE COURT: I don't have any other questions. Cross-examination. * * * * * CROSS-EXAMINATION

temporary injunction at the time you made the contact with your wife that was prohibited. A Is that correct? I have no idea when

I don't know what the date was.

I was served. Q A Q So you don't know when you were served? I don't know the date. Okay. But you said you looked at the injunction

very, very thoroughly six months after your plea and that your basis of complaint was the terms of the injunction. But you're

testifying now that you don't -- you didn't notice on that when it was served on you. A served. Q Well, as you looked through and examined the At the time, I don't remember the date that it was

document, did you observe that the events alleged happened after you were served with the injunction? A There's no way the events could have occurred after I

was served with the injuct -- I mean -- when I received the injunction -- I don't understand exactly what you mean by that.

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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q It's very simple. After you received the temporary

injunction, you called your wife. A Q I did. Okay. That's my point. You got the injunction

telling you not to have any contact with her -- I'm paraphrasing -- and then later you did. A Q I did. All right. Now, are you familiar with any of the

following cases:

Seaboard Airline RY Company versus Tampa found at 134 So. 529? Are you familiar

Southern Rail Company

with that case, the legal holding of this case? A Q A about. Q Is it your present position that because the Are these cases that I have put forth? No. Oh. They're cases I put forth in my response. I have no knowledge of what those cases are

injunction hearing was more than 15 days after the issuance of the injunction that -MS. GILLARD: BY MR. ASHTON: Q -- you had a legal right --MS. GILLARD: MR. ASHTON: Calls for a legal answer. I believe his direct testimony was that Objection, Your Honor.

upon reading the injunction he believed he had a legal defense. And I'm just exploring that thought process with

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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him. THE COURT: to these charges. MR. ASHTON: charges. I assume to the defense of these A defense to the injunction or a defense

Otherwise there's no -No point in us being here. -- reason for us being here. Unless I

THE COURT: MR. ASHTON:

misunderstood something. MS. GILLARD: THE COURT: MR. ASHTON: BY MR. ASHTON: Q Is it your position that because the temporary It's his question. Say the question over. Yes. I mean --

injunction hearing date was more than 15 days after the injunction was issued that you had the right to ignore the order. Just a minute -- let me -- Counsel wants to object Go ahead.

again or -- okay. A period. Q

I didn't know anything about any dates whatsoever

Is it your position having -- you said you read the

injunction about six months after you plead. A Q Yes. And having read that, is it now your position that

because the hearing date in the temporary injunction was more than 15 days after the date of issuance, you had the right to

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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ignore the injunction completely. A My position is I never would have plead guilty to the

charges had my attorney advised me of the date conflicts. Q Okay. But -I'm sorry.

THE COURT: BY MR. ASHTON: Q

-- is it that premise -THE COURT: I'm sorry. If your attorney had advised

you of what? THE WITNESS: conflicts. THE COURT: Right? But you were served with the injunction. The date conflicts. The date

At some point. I was served. But I --

THE WITNESS: THE COURT: THE WITNESS:

Did you read the injunction? I wasn't aware of anything about -I had no idea.

regarding the date conflicts. BY MR. ASHTON: Q A Q

So are the date conflicts important to you? When? I mean -Now. You're telling us that there was something

about those date conflicts that was so important that had you known it at the time you wouldn't have entered the plea. A Q Well -What about them?

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14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It started like this. I hate to say this. But I

never really read the paperwork which I plead guilty to thoroughly from beginning to end until six months after I plead guilty to the charges. paperwork. Something just told me, look at the

And I was amazed to see on the second page of the

injunction in bold face type, it said, "Not to exceed 15 days maximum" in bold face type. And I said to myself, "If this is And then I looked at

on the injunction, what does that mean?"

the date when the judge signed the order and the date he gave for the -- for me to come back for the hearing on the permanent and it turned out to be 17 days. And I was amazed that no one

had told me this, including the State prosecutor's office, my defense attorney, no one had told me anything about dates whatsoever. Q So what? That's a natural question. That's

something -A Q So what? So what? What you do you mean -Calm down. Calm down. Calm down.

So -- calm down.

What difference does that make in -- let me finish. Slow down. I want you to tell this Court what

Just calm down.

legal significance there is, according to you, to that difference in dates. A That date conflict.

Well, first of all -MS. GILLARD: I object, Your Honor. Any legal

argument would come from his lawyer.

That's why Mr. Vega

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15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was appointed an attorney. THE COURT: But I need to know the effective dates of

the injunction if I'm to be able to find that it is or is not in place. MS. GILLARD: question is. MR. ASHTON: BY MR. ASHTON: Q If this Court were to find as a matter of law that I'll rephrase the question. I know. But that's not what his

the date conflict that you focused on legally is irrelevant, has nothing to do with your guilt or innocence, okay, assume that for the purpose of this question. A innocence? Q A The date conflict that you've pointed out. Assume that the dates on the injunction have nothing Assume the dates have nothing to do with my guilt or

to do with whether an injunction is valid or not? Q A Yes, exactly. In other words, an injunction without dates is not an What is an injunction without dates?

injunction. Q A

Mr. Vega, do you understand my question? No, I don't. Because I can't understand you It's part of the same I

separating dates from an injunction.

process. How can you eliminate dates from an injunction? don't understand that. It doesn't make sense to me.

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16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, when you were offered the plea, you were facing

five years in the department of corrections for the felony count. A Is that not correct? You know what? Five years in prison.

I don't remember exactly what my So I don't -- I can't say that I

attorney told me at the time. knew that at the time. Q

Does that sound familiar at all to you?

That you

could go into prison for this crime? A Five years in prison for making three phone calls I don't know if I made the connection I don't

about my children?

between those calls about my children and five years. remember that. Q I don't remember that.

Do you remember signing a plea form in this case that

included a maximum/minimum sentences for these various offenses? A I remember signing a form that said I was making my And now it So it was

plea voluntarily and with knowledge to the facts.

turns out, I did not have knowledge as to the facts. not a voluntary plea. dates. Q Right. I understand that.

I didn't have complete knowledge of the

And we've already talked

about whether that's legally significant or not will be up to the Court. Right? Now, what do you recall the maximum

penalties were? A I don't. I left that up to my attorney to deal with.

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17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And she told me some kind of, you know -- I don't know if it was three to five, two to five. remember the phrase she used. Q A Do you recall -So she never said just five years. Nobody ever told I don't know. I don't exactly

me five years, that's it. THE COURT:

Nobody told me that. Any time

I beg to differ with you.

anyone enters a plea in front of me -THE WITNESS: THE COURT: Uh-huh. -- I make sure to tell them every single

count they're entering a plea to and what the maximum penalty is on each count. person. THE WITNESS: THE COURT: penalty was. THE WITNESS: I agree, the maximum. I'm saying no I agree. The maximum -I do it with every single

So somebody told you what the maximum

one told me five years for sure. That's what I'm saying. BY MR. ASHTON: Q A No. No. No.

That's what I'm -THE COURT: I think he's asking you if you understood

at the time you entered the plea what maximum penalty it is you were facing.

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18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was. BY MR. ASHTON: Q A And that's all I asked you -Okay. I guess that I heard Ms. Shepherd say

something to five. Q A Okay. Two to five, three to five. I don't know what it

But something to five. Q So my point is that you knew that worst case

scenario, you could potentially go to prison for five years for this crime. could. A Whether you thought you deserved it not, you

Correct? But which crime are you talking about? There were

several things -Q The felony case. The aggravated -- I believe it was

the aggravated stalking count. A And that was based on the three calls? Is that what

you're talking about?

Cause I'm not sure exactly what

you're -- what the felony count is comprised of. Q The charge of aggravated stalking after an

injunction. A Q A Q play this. Which injunction are you talking about? Sir, you know -I don't -- you know -We're not going to play this. We're not going to

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19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GILLARD: BY MR. ASHTON: Q The question is -MS. GILLARD: THE COURT: MS. GILLARD: THE COURT: If the Court needs to admonish -Hold on. -- my client -We're talking about the specific charges Objection, Your Honor.

that you entered a plea to that you're seeking to have withdrawn. THE WITNESS: THE COURT: about. Right? There's two injunctions involved There was -That's the only charges we're talking

THE WITNESS: though, sir.

I'm asking him which injunction he's talking

about that I -THE COURT: THE WITNESS: That's good to know. Go ahead.

The charges were split up among two So which one are you talking

different injunctions. about? BY MR. ASHTON: Q yourself.

Anyway, why don't I let you read the information to That way you can be fully educated in the matter. I

will provide you with the information and with the Court's indulgence as much time as you need to read it. THE COURT: It's your hour. Like I said, you each

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20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have an hour. THE WITNESS: BY MR. ASHTON: Q This is the information charging you with the So what am I supposed to read here?

offenses in this case. THE WITNESS: And, Your Honor, am I supposed to read

it to myself or read it out loud? THE COURT: BY MR. ASHTON: Q Yeah. Actually -I mean, because I think if I read it I think just to yourself.

THE WITNESS:

out loud, at least everyone will know what I'm reading. THE COURT: THE WITNESS: THE COURT: Well, we know you're And we'll be on the same page. What the formal document is charging you

is called an information. So we know he's handed you the information. THE WITNESS: BY MR. ASHTON: Q Just, if you would, please, read the first what's Which is this paragraph -All right. All right. Lawson Lamar, State Right. But I mean --

called count. A

Okay.

Attorney of the Ninth Judicial -Q A To yourself. To yourself is fine.

-- prosecuting for the State of Florida in Orange

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21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 County. MS. GILLARD: please. Mr. Vega, you can read it to yourself,

The Court said to yourself is fine. Okay. Okay. The last line here where

THE WITNESS:

it says, "After an injunction for protection under Florida Statute 78.046 or 741.30 had been duly issued and served." BY MR. ASHTON: Q A Q right now. A Q A Sir -What does -Excuse me. There is not a question for you to answer

Have you finished reading the paragraph? Well, that's the main thing -Have you finished reading the paragraph? The dates -- let's see the dates 27th of March, 7th

of April -- so it's split between -MR. ASHTON: Judge, could you instruct the witness

just to answer the question that I asked. THE COURT: I think he's just asking have you now

read the charge in Count I? BY MR. ASHTON: Q A Q A Q Have you read Count I. That's all I'm asking. Count I? This paragraph right here. That's what I was referring. Very good. Thank you.

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22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: THE WITNESS: problem with. BY MR. ASHTON: Q Sir, I didn't ask you what you have a problem with. So you've read it. Duly issued and served is what I have a

The very last part of it.

If you could just answer my questions and then your attorney can get up and allow you to -- ask you additional questions. A Q Okay. Okay.

Now, did you understand at the time of your plea that

the maximum possible sentence for that crime you just read was five years in the Department of Corrections? A I never was told that it was going to be definitely I told you the window was three to five or two to

five years. five. years.

It was never told to me, you will definitely go for five

THE COURT: Correct? THE WITNESS: THE COURT:

And in all fairness, you did not.

Well, you're right. You did not go for five years. No.

THE WITNESS: BY MR. ASHTON: Q A Q

Do you understand I used the word maximum. I don't understand what the point is, sir. Do you understand the word maximum? MS. GILLARD: Can I --

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23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ASHTON: MS. GILLARD: THE WITNESS: MS. GILLARD: What? If you don't mind. Yes. The question to you is, did you Mr. Vega?

understand that if you were found guilty of that charge that you could potentially face five years in prison? Not

that you were going to be sentenced to prison if you plead to it. But the maximum penalty you were facing was five years. Did you understand that at the time? That's the

question.

And whether you did or not, you can answer it. Not --

But that's the question. THE WITNESS: MS. GILLARD: I --

-- that anyone said you were going to

prison for five years. THE WITNESS: to a charge -MS. GILLARD: THE WITNESS: to five years. That carried a maximum penalty --- that carried somewhere between three I understood that I was pleading guilty

And -And maybe that was your score? Like

MS. GILLARD:

maybe you scored a certain amount and it went -MR. ASHTON: MS. GILLARD: MR. ASHTON: THE WITNESS: Well, Judge, I appreciate --- to five years? -- the assistance. Yeah. But I think --

That's -- you know, that's as

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24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 far as I'm going to take it. I did never in my mind ever

thought being a first time offender that I would go to jail or prison for five years. It never occurred to me that -BY MR. ASHTON: Q Can you let me ask you a question? THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: And you didn't. Sir? You didn't. You're right, sir. So calm down. I didn't. Right? It never crossed my mind.

It's okay.

Well, I don't understand why he -You don't have to understand why he's Let him ask what he's asking You didn't go to prison for

asking what he's asking. seeing if you can answer. five years. So calm down. Okay.

THE WITNESS: THE COURT: years.

And you're not going to prison for five

So calm down. Okay, Judge. Thank you.

THE WITNESS: BY MR. ASHTON: Q A Q Now -Uh-huh.

-- did you also understand that the maximum sentence

for the additional three misdemeanors was a year each?

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25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A You know, I can't remember separating the charges in

my mind, individually, understanding anything to do with each individual charge. years. to me. I had a vague notion of three to five And that's all that occurred

And that's all I thought.

And that's as far as I can take it.

I cannot any further into detail because I didn't break it down in my mind. I was just facing one charge in my mind, Or two to five or whatever I

three to five years, that was it. it was.

I don't -- that's as far as I could go with it.

can't go any further --I can't break it down any more than that. Q the State? And you -- was this a negotiated plea negotiated with In other words, that they offered you a plea with a Was that not the situation

certain sentence and you accepted. here? A

The State failed to share with my defender any

information whatsoever that could have led -MR. ASHTON: question. THE COURT: MR. ASHTON: Sustained. And please -- if the Court could help my Objection. Non-responsive to the

by instructing the witness to answer the questions that I ask. THE COURT: MR. ASHTON: Repeat the question. Sure.

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26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ASHTON: Q This was a negotiated plea. In other words, the

State offered that if you plead guilty to these crimes, you would get a certain sentence. A Q A Q A Q Is that not correct?

Negotiated in bad faith. Now -That's correct. Now -That's the way I perceive it. -- that offer was no time in jail. Correct? Correct? Not one Negotiated in bad faith.

day in jail. A Q A Q A

Incorrect. Please correct. Violation of probation, I was told automatic jail. Did you violate your probation? I was told that was a possibility. No, I never

violated my probation. Q jail time. A But your plea offer was probation with no additional Is that -I did never -- I never had the concept that I would

never go to jail in my mind because I thought it was always a possibility as long as I was on probation. So I never felt

free from the possibility of jail ever until the probation was terminated. THE COURT: Nobody's free from the possibility of

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27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jail until they're terminated. Every single probationer

is subject to that exact same feeling. THE WITNESS: THE COURT: BY MR. ASHTON: Q However, you did not go to jail as a result of your Well, that's what I'm explaining. I understand.

sentence, did you? A Q A Q A Q A Q Not as a result of the sentence -Okay. -- but prior to the sentence I did. Now, so -My jail time was incorporated in the sentence. Credit for time served. Exactly. Exactly. So you were faced with the possibility of

going to prison for perhaps up to five years versus the certainty of probation. Now, are you telling this Court that

that had nothing to do with your decision to enter this plea? A What had nothing to do? I'm not -- you're not making

yourself very clear. plea? Q

What had nothing to do with making the

The sentence that you might have received versus the

sentence in the plea offer. A You know, why are we sitting here discussing what I

might have said when it's very clear I had no knowledge of the

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28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. date conflicts in the injunctions? So what I might have said

doesn't matter because I had no knowledge of the dates conflicts in terms of being served, in terms of issuance, in terms of exploration. All the dates I had no knowledge of. So

I cannot go into anything about, you know -Q So you didn't know about the date conflicts on the Correct? That's what you said.

time of the plea. A Q A

I left all that work up my attorney. So why did you enter the plea? Because I was ignorant of the facts of the case in

terms of the injunction having been duly issued and served which your charging papers state. meant. Q But why did you enter the plea? I mean, did you I did not realize what that

enter the plea -- let me give you some examples. A Q Okay. Did you enter the plea to spare the victim Did you enter the plea to avoid a possible harsher Did you enter the plea because you felt it was in Why did you enter the plea at the time you

testifying? sentence?

your best interest?

did it, not in hindsight -A Q A I entered the plea --- but at the time you did it? -- lacking the knowledge of the true facts of the It was a bad faith plea.

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29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time. that. Q I don't want to know about hindsight. I want to know Q knowledge. A But at the time, you didn't believe that you lacked Correct? At the time.

I was not the attorney representing myself at the My attorney's job was to let me know about anything like

what was in your head at the time you entered the plea. A What was in my head was that the charges that your

office brought before the Court that the injunctions had been duly issued and served were true and correct. head. The charges were real. I That was in my

never -- it never crossed my

mind to question the charging affidavit where your office states under oath that the injunctions had been duly issued and served which was not the case. Q And if this Court finds as a matter of law that they Let me finish. Let me

were duly issued and served -- no. finish.

Then would you agree that you would have entered the

plea anyway? A That question is convoluted. I don't understand

exactly what the question is. question. Q I will. THE COURT:

What -- please restate the

You are saying in hindsight that had you

known that the -- at least, in your belief -- the injunction had not been duly issued and served you

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30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wouldn't have entered the plea. THE WITNESS: THE COURT: Correct. So that if you now find out the

injunction was duly issued and served, then in hindsight, you would have entered the plea. THE WITNESS: Yes?

Being served in jail almost three weeks

after I was accused of violating injunction is not duly issued and served. BY MR. ASHTON: Q But if the Court -THE COURT: You only spent 14 days in jail. How were

you served three weeks later? THE WITNESS: It was 20 days I think it was. They

had me in Seminole County first and then they transferred me to -THE COURT: Oh. -- to -- so I was there 20 days before

THE WITNESS:

I was actually served the injunction which I was charged with violating. BY MR. ASHTON: Q Okay. I'll end this with this question. Wouldn't it

be fair to say then that that one issue, that one issue, the date issue, is the issue that you believe had you known then you would not have entered the plea. A It's not one date, sir. Correct?

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31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time? A I did not attend the pretrial. I think it was handled BY MS. GILLARD: Q Mr. Vega, when you -- how long would you say Ms. Q A I said the date issue, I believe is the word I used. It's a date issue on the service of the injunction. It's a

It's a date issue on the issuance of the injunctions.

date issue on the expiration of the temporary injunction at 15 days. It's -- there's many dates here that are involved in Many dates. I

this whole case. Q

And if again that wasn't a problem -- never mind.

think we're done. * * * * * REDIRECT EXAMINATION

Shepherd was your attorney? A I believe it was from when I came of jail the first

time in April, I believe, of '08 all the way up to the point where I plead, in February, I believe it was, of '09. Q A Q A Q Okay. So -- what's that? About --

Eleven months. -- ten, eleven month. Okay.

Eleven months which I thought was quite a long time. Okay. Did you also come to the pretrials during that

between my attorney -Q Okay.

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32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q -- and the state attorney without me being present. Okay. Which I didn't understand why I wasn't there. But --

Okay. So your appearance was waived and you didn't

come to them. A Q Okay. Now, when Ms. Shepherd was your attorney, did you

discuss in detail the individual charges, for example, the aggravated stalking after an injunction? A about -Q Well, I know you mentioned something about three What do you mean by in detail? What do you mean

phones and so she said if you made the three phone calls that's all that matters. A Yeah. Is that -She -- we did not discuss the circumstances It was just a -- to me, Ms. It

that led the charges being filed.

Shepherd was making it clear that it was black and white. was just the actual act of making three calls. the issue. Nothing else was at issue.

And that was

Just the act of making

the three calls. Q So did she read the statute to you so that you could

understand that, you know, in order to be found guilty of that offense, the State would have to prove at least two incidents of some form of repeated, malicious, willful, harassing behavior?

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33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A She never broke it down into at least. She just said

the three as taken together as three calls.

I mean, it was

never broke down to me in terms of anything other than just three calls. Q Just --

Did you and attorney ever discuss any case law with

regards to the fact that two of the calls alleged that you had just called to see -MR. ASHTON: BY MS. GILLARD: Q -- about seeing your -MR. ASHTON: Objection. Exceeds the scope of cross. Objection. Scope.

I didn't ask him about this. THE COURT: BY MS. GILLARD: Q With regards to the phone calls that were made that I'm going to allow it. Go ahead.

were alleged to have been made in this case where two of the incidents, I believe the first two date dealt with your

calling -- the first call dealt with you saying that you wanted another chance -MR. ASHTON: THE COURT: MS. GILLARD: BY MS. GILLARD: Q Did you and Ms. Shepherd discuss in detail with Objection. Leading. Leading. Start over.

Finish the question. Thank you. Okay.

regards to the aggravated stalking after an injunction charge

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34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which allegedly a period of time -- and Mr. Ashton just had you read the count that dealt with dates in between the 27th of March 2008 and the 7th day of April 2008 -- did you and your attorney discuss any case law with regards to defenses to the fact that one of your phone calls probably really wasn't harassment because you only calling to ask for a second chance. MR. ASHTON: BY MR. ASHTON: Q And to -MR. ASHTON: THE COURT: that down? MS. GILLARD: BY MS. GILLARD: Q regards Did Ms. Shepherd ever discuss a defense with you with to your phone call that was alleged to have been made Okay. Leading. Compound. Can you break Objection.

It certainly is compound.

on the 27th of March 2008 not being harassment because you called with a specific purpose of seeing your children? A that way. I don't remember it being broken down by Ms. Shepherd I just remember her saying that they have to prove

it was a harassment situation. And she says it could go either way. But, you know, she didn't tell me point blank that, you

know, I mean -- she just said it -- the statute was -- could be interpreted different ways. And, you know, I just -- to me it And, you

was all vague in my mind as to what harassment meant.

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35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, and obviously I thought making a call about can I see my children was somehow defined as harassment under the law, which I didn't understand that. I didn't understand it. And that's

one reason why I plead to the charges is because Ms. Shepherd said she couldn't guarantee that any jury would understand the -- you know, the harassment -- the legal definition of harassment was just so vague and so up there, you know, I just -- I couldn't break it down. all to her. I didn't understand. I left it

I mean, I'm not an attorney.

I didn't understand

what that meant. Q Did Ms. Shepherd read you the definition from the

statute book of harassment to make you better understand? A I think we did look at the -- what definition of And that left me more confused than before So I

harassment was.

because I didn't know, you know, which was it could go. think she did go over that phrase in the statute about harassment. Q

Did she ever go over any case law with you at any --

were you aware of her doing any legal research with regards to the telephone calls and the content of them as a possible defense to where you would not have had three contacts if two of them were not deemed to be harassing. A Q A Well -Did she ever discuss that with you? Any case law.

She never talked about what she was actually doing in

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36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the case in terms of case law to me. kinds of discussions at all. No, we never had those

I mean, you know, it's -- I knew

she was doing something in the case, but I didn't know exactly what she was doing in the case. Q Okay. You know, I had no real idea.

And Mr. Ashton was questioning you repeatedly

about the dates and how you seemed to think that they're important. A Q A Correct? No. I --

To pursue an injunction? No. He misinterpreted what I said. I don't seem to

think they're important. that they're important. opinion. Q important. Yes? A Q Yes. Okay.

The statutes in the Florida laws deem It's not my opinion. This is not an

This is what I read in the statutes. Right. It's clear that you think the dates are Based on your reading of the statutes.

Correct?

Yes, I do. And you had referred to Page 2 of the Correct?

temporary injunction which states about the 15 days. A Q A Not to exceed 15 days. Is that correct? Correct. Correct.

MS. GILLARD:

May I approach the witness with a copy

of the temporary injunction, Your Honor? THE COURT: Sure.

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37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. GILLARD: MR. ASHTON: Thank you. I just ask that it be marked for

identification so that we have a record of what it was -THE COURT: MS. GILLARD: Yeah, I wouldn't mind seeing it. Right. That's my goal here. So -- and

you have a copy, you said. MR. ASHTON: MS. GILLARD: A couple, I think. Okay.

Now, may I approach, Your Honor? THE COURT: MS. GILLARD: BY MS. GILLARD: Q Mr. Vega, I'm now showing you what is -- the clerk Yes. Thank you.

has just marked this as Defense Exhibit A for identification. Okay? Do you recognize this document? A Take a look at it.

This looks like the document that I studied for the

very first time in detail after I plead. Q A Q Do you recognize it? I do recognize it. And do you recognize it to be a copy of the temporary

injunction for protection against domestic violence with minor children that was issued in 08DR4285-0? A Q referring Yes, I do. Okay. And the problem with the dates that you're

to, is it the fact that it looks to be Judge

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38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Komanski had signed this temporary injunction on March 18th, 2008, which is reflected on the last page. A Q Yes. Okay. That's correct. And it appears that it was docketed, if you Is that correct?

look at that little stamp up on the top of the front page -A Q Uh-huh. -- the clerk stamped that it was also docketed at the Correct? Yes. Yes.

exact same day. A Q Yes. Okay.

And then there is a stamp where it shows that Correct?

you were served with a copy of this. A Q A Q Yes. Okay.

And that occurred on what day?

The 24th day of March. Okay. Now, the place that you're referring to with Correct?

regards to the 15 days is on Page 2 of this document. A Correct. MS. GILLARD: If the Court wouldn't mind,

I can give

Mr. Vega another copy to reference and you can -- I can present -- enter this one into evidence so the Court can be reviewing it as we're discussing? MR. ASHTON: Well, the document speaks for itself so

I do object to Mr. Vega -THE COURT: no idea -I don't have one in front of me. I have

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39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ASHTON: THE COURT: MR. ASHTON: a copy of it. Yeah. -- what you're talking about. I have no objection to the Court getting I may have an objection to

That's fine.

Mr. Vega giving commentary on what he thinks it means as a matter of law -MS. GILLARD: MR. ASHTON: MS. GILLARD: I have not ask him for any commentary. That's fine. If I may approach the Court, I can give

you another copy of this document -THE COURT: MS. GILLARD: Okay. -- while Mr. Vega continues to testify.

(Counsel confer) MS. GILLARD: THE COURT: BY MS. GILLARD: Q Okay. So, now, Mr. Vega, the Court -Judge May I approach? Sure.

LeBlanc has a copy of the temporary injunction that you're looking at as well so everyone can follow along. A Q Right. And -- now, with regards to this injunction, there Okay?

was a hearing set which I believe you did not attend -correct? -- on April 3rd? A Q I did not attend it. And the problem that you're

So April 3rd at 8:30.

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40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 having with this after we've reviewed the statute -A Q Right. -- is on Page 2 and the first line under Temporary Correct?

Injunction in terms. A Q Correct.

Where it states that the injunction shall in no event Sorry. This injunction

be in effect -- well, I paraphrased.

shall be effective until the hearing set above and in no event for longer than 15 days unless extended by the Court. A Q Correct. Are you aware of any extension that was granted -Correct?

let me finish -- with regards to the temporary injunction to make it last longer than 15 days? A I'm not aware nor did I find any evidence of any

court order extension of this injunction. Q Okay. So actually you had your -- the hearing was

set with regards to this temporary injunction to become permanent more than 15 days. A Q Correct. About -- I believe if you start from the 18th, it Right? Which falls in the middle of Correct?

comes out to be 17 days. A the week. THE COURT:

Seventeen days exactly.

Wait a minute.

I thought you weren't Isn't

served with the injunction until the 24th of March.

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41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it in effective for 15 days from the 24th of March? MS. GILLARD: He doesn't have to ever be served. And

he's still going to have the hearing on the 3rd. THE COURT: was served -MS. GILLARD: THE COURT: I think it was from the date of --- on the 24th of March is the injunction That's not what I asked. The injunction

not in force for 15 days from the date at -- maximum -- of the 24th of March on for 15 days. MS. GILLARD: No. I believe it goes from the 15 days

of the issuance of it. THE COURT: served. Why? It had no effect until it was

It's 15 days from the date it's served. Well, wouldn't -- that's like saying

MS. GILLARD:

then it wouldn't have an effect if he never was served. Right? And that he'd still have a permanent injunction?

I mean, I think the hearing is set in that time frame to correspond with the 15 days. In this case, though, And I believe the

however, it was set out 17 days later.

other aspect of this argument that Mr. Vega is stating is that no temporary injunction can be in effect for longer than 15 days meaning basically had he been in court and been served on that day, now we have an injunction that's in place for longer than 15 days -- temporary injunction --

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42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. GILLARD: THE COURT: MS. GILLARD: But the -THE COURT: Well, when is it in effect otherwise? It But it wasn't. -- that the judge issued. It was only served on the 24th of March. That's if it goes by the service date.

can't be in effect unless he's served with it. MR. ASHTON: I think the key point is that the events

alleged to -- two of the events occurred within the 15 days period of either the beginning date when it was issued or it was served. And the State's position in its

response is that -- and I think what the Defendant is not understanding is that as a matter of law, you can't -that error if it in fact is an error, does not invalidate the injunction. You still have to follow the injunction. And as I've cited all the cases in my

It is still valid.

memorandum that show that it is still valid so this is not a defense. Unless a legal argument for the Court -- you

know, I sort of tried to talk to the Defendant about that. We aren't communicating. it's still valid. But -- so I think either way,

There is no defense as a matter of law.

But I don't expect the Defendant to agree with that. MS. GILLARD: Can I continue? But basically Mr.

Vega's position that I am putting forth for Mr. Vega here --

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43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. GILLARD: Is? -- is that basically the 15 -- that

because this temporary injunction -- I mean, it was issued. This temporary injunction, whether it be served And it cannot be --

or not, was it issued. THE COURT: MS. GILLARD: THE COURT:

It doesn't matter when it's --- issued --- issued. It could be issued in 2008.

If it's served today, it's in effect for 15 days today. The injunction has no effect unless and until it's served. If it's not served, he has no idea he can't make a phone call. MS. GILLARD: THE COURT: Well, it says -The injunction has absolutely no effect

until it's served. MS. GILLARD: hearing or -Once it is served. No. So if I issue an injunction today and you It says it's effective until the

THE COURT: MS. GILLARD: THE COURT:

don't know about it, I can cite you with violating the injunction cause it hasn't been served? Of course not.

An injunction has no effect until it is served. MS. GILLARD: Well, then that's like saying that this

temporary injunction has no effect --

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44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. GILLARD: THE COURT: It didn't --- at all --- until March 24th. So when he made the

calls on March 27th, March 28th and April 7th, he was violating the injunction. MS. GILLARD: THE COURT: MS. GILLARD: Well, I understand the Court's -Analysis. Yes. And the argument that Mr. Vega is

putting forth is that -- basically the whole document -this whole document is a nullity, that the Court has no jurisdiction to issue this for longer than 15 days. Basically, it was issued on the date that March 18th and because it was issued for a period to last longer than 15 days that it is not valid. it's not valid until served. THE COURT: And what would that do about the first or And I know the Court's saying

second of three phone calls? MS. GILLARD: MR. ASHTON: Well, the first or second were -Judge, before we argue the merits, could

we -- could I just finish my cross-examination? THE COURT: MR. ASHTON: MS. GILLARD: THE COURT: MR. ASHTON: Well, are you done questioning him? We seem to be getting into the merits -No. Okay. -- of the arguments.

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45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. GILLARD: BY MS. GILLARD: Q So, Mr. Vega, that was your argument -- correct? -Then continue your questioning. Okay.

that the 15 days started from the date of March -A My argument was that the 15 days is what the Court

has to reach the point where they're going to decide on whether to issue a permanent injunction or not. MR. ASHTON: THE WITNESS: MR. ASHTON: THE WITNESS: THE COURT: Excuse me, sir. -- it was served or not. Excuse me, sir. I need to -And whether --

Whether it was served or not -Hang on. -- has nothing --

THE WITNESS: THE COURT: MR. ASHTON: THE COURT: THE WITNESS: THE COURT: THE WITNESS: MR. ASHTON:

He's objecting. Judge, could you ask the witness -Once he objects, stop answering. He would object -I didn't tell you that before. Well, he -Well, I was trying to be polite and ask I have an objection.

Mr. Vega to calm down and stop.

This witness is giving a legal opinion which is not relevant to this matter. THE COURT: Correct.

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46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ASHTON: Facts are what they are. I object to

the narrative legal opinion. And if you could wait, sir, until the Court rules. THE COURT: MS. GILLARD: It does call for a legal opinion. Okay. I'm asking for Mr. Vega's

opinion as to his belief, which is why we're here today. THE COURT: His opinion doesn't matter. His belief

is a different thing. THE WITNESS: MS. GILLARD: THE WITNESS: MS. GILLARD: THE COURT: MS. GILLARD: THE COURT: MS. GILLARD: THE WITNESS:

His belief might make a difference.

My belief is -Let -Oh, okay. The Court and I are -So go ahead --- discussing -Go ahead and answer the question. Okay. Go ahead.

My belief is that if the injunction is

never served on the respondent that nevertheless, the Court has 15 days to set a hearing date -- up to 15 days for the permanent hearing. That's it. Whether the

respondent is ever served or not has nothing to do with the fact that 15 days will go by maximum and then a hearing is set forth to decide it should become permanent or not. So it has nothing to do with the service on the respondent. It's a time frame set forth by the

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47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 legislature in the laws that gives the Court up to 15 days to come up with a hearing date for the permanent injunction. And that has nothing -- and the wording in

the statutes has nothing to say about being served or anything. It just says this is what a temporary This is why they call it a temporary That makes it temporary.

injunction is.

because it lasts up to 15 days.

And temporary means it could go away. BY MS. GILLARD: Q A Q A Right. It's not permanent. Okay. So that's my belief is that, you know -THE COURT: I think your belief is correct. That's correct. It is

temporary and it can go away. THE WITNESS:

Regardless of whether it's served on

the respondent or not. THE COURT: MS. GILLARD: THE COURT: MS. GILLARD: Well, there you're wrong. But go ahead.

I'd like to move into evidence -Move on. -- as Defense Exhibit 1 for

identification a copy of the temporary injunction that's -THE COURT: MS. GILLARD: Any objection? -- previously been marked as Defense --

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48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ASHTON: THE COURT: No objection. All right. Then Defense A will come in as

Defense 1 without objection. Copy of the temporary injunction served March 24th, 2008. (Defendant's Exhibit 1 admitted into evidence) THE COURT: you -THE WITNESS: THE COURT: Yes, sir. -- the very first paragraph of all Mr. Vega, I just want to point out to

injunctions state, "Under the laws of Florida, the Court has jurisdiction of the petitioner and the subject matter and has jurisdiction of the respondent upon service of the temporary injunction." In other words, once it's served, But not until then.

it's in effective and 15 days run. THE WITNESS: respondent? THE COURT: THE WITNESS:

What happens if they can't find the

Then there ain't no injunction in force. Then the petitioner doesn't have a

chance to go and get a permanent on the 15th day -THE COURT: THE WITNESS: going forth? THE COURT: the respondent. THE WITNESS: But the respondent might be out of Correct. Because there is no service on Correct. -- the petitioner is disallowed from

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49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 state for -- or might be hiding. And the petitioner And on the 15th

deserves protection from the Court. day -THE COURT:

Oh, I'm not here to argue the However, I just want

philosophical merits of that or not.

to point out the first paragraph of the injunction for which you are served states the Court has jurisdiction over you upon service of 15 days starts running. THE WITNESS: THE COURT: THE WITNESS: Okay. I'm not asking you. I'm telling you. If I understand what you're saying, so the injunction. Okay? That's when the

I'm telling you.

if I'm not located, it just -THE COURT: If you're not located, there's not And unless

injunction because there's been no service.

the petitioner comes to court with another act alleged that would give rise to issuing of another temporary injunction, there's not injunction. BY MS. GILLARD: Q Okay. Mr. Vega, when were you served with a copy of

the permanent injunction? A I was served with a copy of the permanent injunction

about three weeks after I was charged with violating the injunction, on the third call. Three weeks after. In other

words, according to what I just heard put forth, if you haven't

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50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been served yet, you can't be charged with violating the injunction and I wasn't served on -- at the time of the third charge. Q A Okay. So it's very clear now to me that that charge was

totally -- did not belong in the charges -- the third call because I had never been served at that date. THE COURT: BY MS. GILLARD: Q So, Mr. Vega, the answer was -THE COURT: BY MS. GILLARD: Q -- three weeks? THE COURT: BY MS. GILLARD: Q A About three weeks later? Three weeks after I was charged with violating it. THE COURT: So the 24th of March is not a correct -- the temporary injunction? -- when were you served with -The question was --

date as to when you were served? THE WITNESS: She asked about the permanent. She

asked about the permanent. BY MS. GILLARD: Q Okay. THE COURT: THE WITNESS: Oh. That's a separate injunction, Your

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51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know. THE COURT: be when? THE WITNESS: THE COURT: actually -MS. GILLARD: THE COURT: The 8th. -- the 7th. So the injunction would The 10th. Well, it's a little less than that. It's Fifteen days from the 24th of March would Honor. THE COURT: or the temporary? Does it matter whether it's the permanent An injunction was in force whether it's The information doesn't What difference

the temporary or the permanent.

specify nor does the stalking charge. does it make.

The question is whether -It was the temporary -The question is whether an injunction was

MS. GILLARD: THE COURT:

in place at the time the phone calls were made on the 27th of March, the 28th of March or the 7th of April, whether it's the temporary or the permanent one, who cares. Was

there an injunction in place? Were you served with the temporary injunction on the 24th of March 200 -THE WITNESS: THE COURT: I was served with the temporary. All right. And 15 days from the 24th of

March would be when? THE WITNESS: Like the 9th of June, I guess. I don't

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52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3rd. THE COURT: And it doesn't matter if the permanent The temporary was expire midnight on April 7th which was the date of the third phone call. THE WITNESS: THE COURT: THE WITNESS: date on the 3rd. But -No buts. The 7th -- the 3rd was -- the hearing The judge entered a new order on the

3rd, four days before the 7th. He entered a new order. THE COURT: And you were served with the injunction

and did not appear on the 3rd or did appear on the 3rd? THE WITNESS: I did not appear. I was not there. I

have never -- I didn't even know there was a permanent injunction entered. hearing. THE COURT: Because you did not appear for the 3rd. I didn't even know there was a

But you were served with notice of the hearing on the 3rd, which it states right here in the temporary that was served on you on the 24th. THE WITNESS: The temporary said the date would be

was served on you three weeks later.

still in force when you made those three calls that were the subject of the stalking charge. injunction in force. So there was an

It wasn't the permanent injunction

but the temporary injunction was in force at the time

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53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: him. * * * * * COURT'S RULING I just don't want to waste anyone's time. There was. time. THE WITNESS: I know, Your Honor. But I mean I those calls were made. separate counts. Those calls are charged in three

And those calls comprise the aggravated

stalking in Count I. THE WITNESS: Or the charging affidavit said I

violated the permanent injunction. THE COURT: It didn't say permanent or temporary. Do you want me to show you? It

just said injunction. THE WITNESS: THE COURT:

It's -I'm just -- I don't want to waste our

thought they broke it down into two on the temporary and one on the permanent. down. THE COURT: in place. It just said that there was an injunction They That's the way the State broke it

They didn't say permanent or temporary.

just said violation of an injunction. MS. GILLARD: If I can approach Mr. Vega, I can show

He's saying there was no injunction in place. It was in place for 15 days. 7, 2008.

It expired at midnight April

The three phone calls were March 27, March 28th

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54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and April 7th. That's Count I, Count II, and Count III.

And the reason that he entered a plea is because he scored 22 months in prison. And he didn't want to go to prison. So instead of going to prison, they agreed on a downward departure and gave him probation. So instead of facing

eight years in jail, he took a plea to a downward departure and probation, complied with the conditions of probation and we terminated him early. denied. MS. GILLARD: Thank you, Your Honor. As of this moment, I don't have an Because now the 3850 is over The motion is

THE DEFENDANT: attorney.

Is that correct?

so -- I put in a motion into my file for an appointment of an attorney. It's in my case file. That motion is denied. You've had an attorney. You're not What do you need

THE COURT: entitled to it.

an attorney for at this point? THE DEFENDANT: THE COURT: The appeal of the 3850. I

You can file an appeal on the 3850.

don't know if you're entitled to counsel on that. However, based on the record, the injunction having been in force, the motion to withdraw the plea and the postconviction motion is denied as unfounded. MS. GILLARD: And, Your Honor, I don't know -- I

never got a copy, but I think Mr. Vega had told me that he

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55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had written something about -- did you request different counsel from me anyway. THE DEFENDANT: No. Right? I knew that the moment the

hearing would be settled, I would -- you told me you could not be my attorney any longer. MS. GILLARD: Well -And I put forth the motion to the And I --

THE DEFENDANT:

judge to -- for appointment of a counsel. MS. GILLARD:

We had discussed if we were successful

then no I would not have been his attorney cause I was only appointed for the 3850. THE COURT: And then --

Mr. Vega, the motion is denied and you If you wish to do so, You file the appeal.

have the right to file an appeal. it must be filed within 30 days. You file the paperwork. MS. GILLARD: THE COURT:

I don't do it for you. Right? I

And I don't do it either.

You are the attorney of record for it.

believe you are required to and then motion to withdraw. MS. GILLARD: THE COURT: difference. against. THE DEFENDANT: THE COURT: I don't understand. You're trying Right. I think I do.

I'm not sure it's going to make much

You have to understand what you're up

What are you trying to do?

to get your record wiped clean.

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56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEFENDANT: record set straight. THE COURT: No. I'm trying to just -- have the The facts of the case.

That's all.

And I just set the record straight. Yes, sir.

THE DEFENDANT: THE COURT:

You believed you were not under force of

an injunction and you were based on the injunction in place. You believed the injunction was not in force at The

the time those three phone calls were made.

injunctions were in force at the time those three phone calls were made. THE DEFENDANT: I was under the impression the 3850 It only had

had nothing to do with my guilt or innocence.

to do with what my attorney made me aware of or not aware of and my attorney made no -THE COURT: Yes. But your belief is wrong. You're

saying you're attorney didn't make you aware that there was no injunction. Your attorney didn't make you aware of So that

that because there was an injunction in force.

your belief of what your attorney knew or didn't know is wrong. She knew there was an injunction in force because I find that there was

there was an injunction in force. an injunction in force.

And there's absolutely no basis You got a

for me to find that she was ineffective.

probation officer when you should have gone to prison. And now you don't like it?

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57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEFENDANT: First offense, Your Honor. I never

did anything in my life ever before. THE COURT: prison. Kill someone only one time, you go to

It has nothing to do with whether it's your first It has to do with how you score, what the You got a good deal. You took advantage of

offense or not. offenses are. the deal.

And it's done with.

But it's a conviction on

your record. THE DEFENDANT: on it. I thought you withheld adjudication

Then it's not -Oh. If I withheld adjudication, then You are correct.

THE COURT: it's correct. Yeah.

I didn't realize that.

THE DEFENDANT: THE COURT:

Okay.

I didn't realize that. Now, I'm not clear about the fact The Court is withdrawing my

THE DEFENDANT:

that I have an attorney now. attorney. Is that --

THE COURT:

No, I'm not withdrawing.

I'm doing

nothing other than denying the motion to withdraw the plea and denying the motion for post-conviction relief as unfounded. MS. GILLARD: THE COURT: MS. GILLARD: And basically -That's all I'm doing. -- under my appointment -- I'm just

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58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to explain this if the Court will indulge me. THE COURT: MS. GILLARD: THE COURT: Oh, you were court appointed? Yes. Then it is up to you to perfect the

appeal if he so chooses. MS. GILLARD: THE COURT: Exactly. However, I don't believe he's entitled to

counsel for purpose of -- court appointed counsel for purposes of a post-conviction appeal. appeal, he can do one himself. MS. GILLARD: THE COURT: Right. But he's not entitled to counsel. But once you have counsel appointed, If wants to do an

THE DEFENDANT:

Your Honor, they can't take it away in the middle of your case. THE COURT: MS. GILLARD: THE COURT: MS. GILLARD: It's not -No. -- in the middle. The case is over with.

The statute with regards to my

appointment requires me to file the initial paperwork for an appeal. However -The case is over with. -- once the appeal is filed, the

THE COURT: MS. GILLARD:

paperwork requesting -- I mean, I think he's going to have to be paying for copies and transcripts and everything.

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59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's not like a public defender is appointed. THE COURT: Well, I can declare indigent for costs But he doesn't get court

for purposes of appeal. appointed counsel. MS. GILLARD: everything -THE COURT: MS. GILLARD: Right.

Right.

So he's going to have to get

-- himself.

And he would have to file

a motion to be declared indigent. THE DEFENDANT: It's already been filed. I've

already been declared indigent. MS. GILLARD: THE COURT: Not for the appeal. You're not entitled to counsel. You've

been entitled to counsel long enough. don't -- it's not my decision.

And it's not that I

That's an appellate court

-- they've made the rules not me. THE DEFENDANT: But if you have 30 days, what

happens -- I mean, I have -THE COURT: You have 30 days to file the appeal. I have to personally --

THE DEFENDANT: THE COURT: attorney. THE DEFENDANT: THE COURT: MS. GILLARD:

Don't ask me for legal advice, ask your

Is she still my attorney?

She is until she -I'm only doing the appellate --

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60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MS. GILLARD: She --- I will do the appeal paperwork if But I do not --

you request me to file an appeal for you. it's very basic paperwork. THE COURT: MS. GILLARD: THE COURT: It is not --

She would file --- legal. -- the notice of appeal and then withdraw

as counsel of record. MS. GILLARD: piece of paper. It's just a notice of appeal. It's a

And a few other pieces of paper that

designate a court reporter with regards to the date of hearing. But it's -- it's not a full blown memorandum of It's just -- and it's done for That's the initial documents

law or anything like that. every person who appeals.

that the Judge is saying then you would be required to write your own brief -THE COURT: MS. GILLARD: THE COURT: MR. ASHTON: THE COURT: MR. ASHTON: THE COURT: I'm done. -- with regards to the appeal. We're done. We're off the record.

Could we go ahead and adjourn? We're done. We're --

They need to talk. This proceeding is concluded.

(Proceedings concluded at 2:36 p.m.) * * * * *

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61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ________________________ KELLEY A. GRIJALVA, CET**D Digital Court Transcriber STATE OF FLORIDA: COUNTY OF ORANGE: I, Kelley A. Grijalva, CET**D, being a Digital Court Transcriber as authorized by Rule 2.535(h)(3), Florida Rules of Judicial Administration, and the Administrative Order of the Ninth Judicial Circuit numbered 07-98-43, certify that the foregoing transcription is true and correct. Dated this 21th of December, 2010, in the City of Orlando, County of Orange, State of Florida. C E R T I F I C A T E

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