Jeff Ashton vs. Joseph Vega

8/6/2019 Jeff Ashton vs. Joseph Vega

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IN THE CIRCUIT COURT OF THENINTH JUDICIAL CIRCUIT, IN ANDFOR ORANGE COUNTY, FLORIDACRIMINAL JUSTICE DIVISION

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STATE OF FLORIDA,4

Plaintiff,5

Vs. CASE NUMBER: 2008-CF-5351-O6

JOSEPH VEGA, DIVISION NUMBER: 157

Defendant.8

_________________/9

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CHANGE OF PLEA HEARING11

BEFORE12

THE HONORABLE BOB LEBLANC13

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Recorded by Digital Court Reporters15

In the Orange County Courthouse425 North Orange Avenue16Courtroom 7-DOrlando, Florida 3280117Commencing at 1:35 p.m.Tuesday, June 22, 201018Transcribed By Kelley A. Grijalva

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APPEARANCES:22

JEFFREY ASHTON KATHLEEN T. GILLARD23Assistant State Attorney Assistant Public Defender415 North Orange Avenue 501 N. Magnolia Avenue24Orlando, Florida 32801 Orland, Florida 32801On Behalf of the Plaintiff On Behalf of the Defendant25

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I N D E X1PAGE

2TABLE OF EXHIBITS 3

3TESTIMONY OF JOSEPH VEGA

Direct Examination By Ms. Gillard 54 Cross-Examination By Mr. Ashton 10Redirect Examination by Gillard 315

COURT’S RULING 536

CERTIFICATE OF COURT TRANSCRIBER 617

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TABLE OF EXHIBITS1

Offered for Admitted2Identification Into Evidence

3DEFENDANT'S EXHIBIT A/1 47 48

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P R O C E E D I N G S1

THE COURT: Okay. State of Florida versus Joseph2

Vega, 08-CF-5351.3

MS. GILLARD: Kathleen Gillard for Mr. Vega, Your4

Honor. Mr. Vega is present next to me, Your Honor.5

MR. ASHTON: Jeff Ashton for the State of Florida.6

THE COURT: And I know we granted an evidentiary7

hearing as to what?8

MR. ASHTON: Well, Judge, we never received an order9

indicating what claims would or would not be set for10

hearing. We just received a notice of hearing. And I did11

file a response indicating that I felt that -- I know I12

said just one of the claims was -- should be summarily13

dismissed. But as I said, we never really got a14

determination.15

I believe I indicated that ground 1 should be16

summarily denied. But ground 2 would require a hearing17

since there's –- it involved as opposed to discussions18

between Counsel and Defendant.19

THE COURT: I'm sure not sure I said which grounds.20

I just said each side has one hour. We'll set the hearing21

and you can argue and present whatever you want. So you22

each got one hour.23

MS. GILLARD: Thank you. I believe we have the24

burden, Your Honor. So if I may call Mr. Vega.25



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THE COURT: Okay. Mr. Vega, raise your right hand to1

be sworn.2

* * * * *3

WHEREUPON: The Defendant was duly sworn, examined and4

testified as follows:5

MS. GILLARD: Can he sit right there, Your Honor?6

THE COURT: I think for cross-examination purposes,7

probably should sit in the witness box. And for the8

record, this is a motion with withdraw plea. Is that9

correct?10

MR. ASHTON: It is titled that, but it is under Rule11

3.850.12

THE COURT: All right.13

MR. ASHTON: But it's obviously a withdrawal of plea.14

* * * * *15

DIRECT EXAMINATION16

BY MS. GILLARD:17

Q Okay. Mr. Vega, will you please state your name for18

the record?19

A Joseph Luis Vega.20

Q And Mr. Vega, at some point in 2008, you were charged21

with criminal actions where your -- I guess, ex or separated22

wife was the victim. Correct?23

A Correct.24

Q And you did not have a trial in those matters.25



6



Correct?1

A Correct.2

Q And you ultimately entered pleas to all four counts?3

All four charges?4

A Correct.5

Q All right. And I don't know if you recall the case6

number, but that 08-CF-5351.7

A Correct.8

Q Does that sound right? Okay. Now, Mr. Vega, what's9

your background as far as education10

A Four-year degree, business. That's it.11

Q So you have no legal background? You never went to12

law school?13

A No, ma'am.14

Q Okay. And as far as ever being charged with a15

felony, was this your first time -- with a felony?16

A Yes, it was.17

Q So you didn't have a lot of knowledge about the18

criminal justice system?19

A I have no knowledge about how it worked.20

Q Okay. Now, prior to entering your plea, did you meet21

with your -- you were assigned a public defender. Correct?22

A Correct.23

Q And that would have been Ms. Shepherd?24

A Yes.25



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Q And you see her here today?1

A I do.2

Q Okay. So that's the same Ms. Shepherd that3

represented you on the charges. Correct?4

A It is.5

Q How many times would you say you met with her?6

A I would say for sure two, possibly three times.7

Q Okay. Now, most of your charges -- or all of them8

rather -- stem from the fact that there had been injunctions in9

place or served or issued or requested prior to these charges.10

Correct?11

A Correct.12

Q Did you discuss with Ms. Shepherd the temporary13

injunction at all that was -- looks like -- issued on March the14

-- yeah, March 18th of 2008.15

A Ms. Shepherd told me she would not discuss the16

injunction with me.17

Q Okay. And at some point you did get served with that18

temporary injunction. Correct?19

A I did.20

Q And did you read it over?21

A I looked it over. I didn't study it, but I looked it22

over.23

Q Okay. I guess at some point, later, after you had24

entered your pleas, you had had further conversations with Ms.25



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Shepherd with regards to the 15 days that a temporary1

injunction could be issued?2

A It was about six months after I entered my pleas in3

February of '09, six months later, I happened -- I don't know4

how come -- I happened to be looking at the paperwork and I5

noticed the dates.6

Q Okay. When you discuss the injunction with Ms.7

Shepherd, is it because you didn't understand or you weren't8

sure if it was valid? What was your purpose of wanting to9

discuss the injunction?10

A You mean, six months after I plead --11

Q No, originally when you said --12

A Oh, originally, before I plead?13

Q Yes.14

A I just thought that, you know, the attorney and the15

client should look at the paperwork that the charges were based16

on together and go over it together. And she didn't think that17

was the case.18

Q Okay. Did you rely solely on Ms. Shepherd's advice19

when you entered your plea?20

A I relied solely on her advice.21

Q Now, you if you had the chance to have discussed this22

with her and the outcome after doing some research, it appears23

that the temporary injunction would not have been valid --24

MR. ASHTON: Objection. Assumes a fact not in25



9



evidence. And it's legally incorrect.1

THE COURT: Sustained.2

BY MS. GILLARD:3

Q Okay. So, Mr. Vega, you said that you had met with4

her on three occasions. Correct?5

A I said two for sure, three possibly.6

Q Okay. Two or three.7

A And I could even -- it could even be four, I just8

don't remember exactly. But two for sure.9

Q Okay. And did you ever have the opportunity to10

discuss with Ms. Shepherd during those meetings the fact that11

the permanent injunction was -- as to when it was served upon12

you?13

A She didn't want to discuss anything regarding the14

injunctions period.15

Q Okay. So what you made you enter a plea to these16

charges if you weren't aware of the evidence?17

A I was going totally by her advice. And she told me18

that either I made the three calls or I didn't. And that's all19

that mattered. And if I was going to go to a jury trial, they20

would look at those facts whether I made the three calls or21

not. And that was it. That was all that mattered.22

Q If you were -- had been aware of possible defenses to23

these charges, would you have entered your pleas?24

A No, I would not have.25



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MS. GILLARD: I don't have any other questions.1

THE COURT: Cross-examination.2

* * * * *3

CROSS-EXAMINATION4

BY MR. ASHTON:5

Q Just so we're clear, you had been served with the6

temporary injunction at the time you made the contact with your7

wife that was prohibited. Is that correct?8

A I don't know what the date was. I have no idea when9

I was served.10

Q So you don't know when you were served?11

A I don't know the date.12

Q Okay. But you said you looked at the injunction13

very, very thoroughly six months after your plea and that your14

basis of complaint was the terms of the injunction. But you're15

testifying now that you don't -- you didn't notice on that when16

it was served on you.17

A At the time, I don't remember the date that it was18

served.19

Q Well, as you looked through and examined the20

document, did you observe that the events alleged happened21

after you were served with the injunction?22

A There's no way the events could have occurred after I23

was served with the injuct -- I mean -- when I received the24

injunction -- I don't understand exactly what you mean by that.25



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Q It's very simple. After you received the temporary1

injunction, you called your wife.2

A I did.3

Q Okay. That's my point. You got the injunction4

telling you not to have any contact with her -- I'm5

paraphrasing -- and then later you did.6

A I did.7

Q All right. Now, are you familiar with any of the8

following cases: Seaboard Airline RY Company versus Tampa9

Southern Rail Company found at 134 So. 529? Are you familiar10

with that case, the legal holding of this case?11

A Are these cases that I have put forth?12

Q No. They're cases I put forth in my response.13

A Oh. I have no knowledge of what those cases are14

about.15

Q Is it your present position that because the16

injunction hearing was more than 15 days after the issuance of17

the injunction that --18

MS. GILLARD: Objection, Your Honor.19

BY MR. ASHTON:20

Q -- you had a legal right ---21

MS. GILLARD: Calls for a legal answer.22

MR. ASHTON: I believe his direct testimony was that23

upon reading the injunction he believed he had a legal24

defense. And I'm just exploring that thought process with25



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him.1

THE COURT: A defense to the injunction or a defense2

to these charges.3

MR. ASHTON: I assume to the defense of these4

charges. Otherwise there's no --5

THE COURT: No point in us being here.6

MR. ASHTON: -- reason for us being here. Unless I7

misunderstood something.8

MS. GILLARD: It's his question. I mean --9

THE COURT: Say the question over.10

MR. ASHTON: Yes.11

BY MR. ASHTON:12

Q Is it your position that because the temporary13

injunction hearing date was more than 15 days after the14

injunction was issued that you had the right to ignore the15

order. Just a minute -- let me -- Counsel wants to object16

again or -- okay. Go ahead.17

A I didn't know anything about any dates whatsoever18

period.19

Q Is it your position having -- you said you read the20

injunction about six months after you plead.21

A Yes.22

Q And having read that, is it now your position that23

because the hearing date in the temporary injunction was more24

than 15 days after the date of issuance, you had the right to25



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ignore the injunction completely.1

A My position is I never would have plead guilty to the2

charges had my attorney advised me of the date conflicts.3

Q Okay. But --4

THE COURT: I'm sorry.5

BY MR. ASHTON:6

Q -- is it that premise --7

THE COURT: I'm sorry. If your attorney had advised8

you of what?9

THE WITNESS: The date conflicts. The date10

conflicts.11

THE COURT: But you were served with the injunction.12

Right? At some point.13

THE WITNESS: I was served. But I --14

THE COURT: Did you read the injunction?15

THE WITNESS: I wasn't aware of anything about --16

regarding the date conflicts. I had no idea.17

BY MR. ASHTON:18

Q So are the date conflicts important to you?19

A When? I mean --20

Q Now. You're telling us that there was something21

about those date conflicts that was so important that had you22

known it at the time you wouldn't have entered the plea.23

A Well --24

Q What about them?25



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A It started like this. I hate to say this. But I1

never really read the paperwork which I plead guilty to2

thoroughly from beginning to end until six months after I plead3

guilty to the charges. Something just told me, look at the4

paperwork. And I was amazed to see on the second page of the5

injunction in bold face type, it said, "Not to exceed 15 days6

maximum" in bold face type. And I said to myself, "If this is7

on the injunction, what does that mean?" And then I looked at8

the date when the judge signed the order and the date he gave9

for the -- for me to come back for the hearing on the permanent10

and it turned out to be 17 days. And I was amazed that no one11

had told me this, including the State prosecutor's office, my12

defense attorney, no one had told me anything about dates13

whatsoever.14

Q So what? That's a natural question. That's15

something --16

A So what? What you do you mean --17

Q So -- calm down. Calm down. Calm down. Calm down.18

So what? What difference does that make in -- let me finish.19

Just calm down. Slow down. I want you to tell this Court what20

legal significance there is, according to you, to that21

difference in dates. That date conflict.22

A Well, first of all --23

MS. GILLARD: I object, Your Honor. Any legal24

argument would come from his lawyer. That's why Mr. Vega25



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was appointed an attorney.1

THE COURT: But I need to know the effective dates of2

the injunction if I'm to be able to find that it is or is3

not in place.4

MS. GILLARD: I know. But that's not what his5

question is.6

MR. ASHTON: I'll rephrase the question.7

BY MR. ASHTON:8

Q If this Court were to find as a matter of law that9

the date conflict that you focused on legally is irrelevant,10

has nothing to do with your guilt or innocence, okay, assume11

that for the purpose of this question.12

A Assume the dates have nothing to do with my guilt or13

innocence?14

Q The date conflict that you've pointed out.15

A Assume that the dates on the injunction have nothing16

to do with whether an injunction is valid or not?17

Q Yes, exactly.18

A In other words, an injunction without dates is not an19

injunction. What is an injunction without dates?20

Q Mr. Vega, do you understand my question?21

A No, I don't. Because I can't understand you22

separating dates from an injunction. It's part of the same23

process. How can you eliminate dates from an injunction? I24

don't understand that. It doesn't make sense to me.25



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Q Now, when you were offered the plea, you were facing1

five years in the department of corrections for the felony2

count. Is that not correct? Five years in prison.3

A You know what? I don't remember exactly what my4

attorney told me at the time. So I don't -- I can't say that I5

knew that at the time.6

Q Does that sound familiar at all to you? That you7

could go into prison for this crime?8

A Five years in prison for making three phone calls9

about my children? I don't know if I made the connection10

between those calls about my children and five years. I don't11

remember that. I don't remember that.12

Q Do you remember signing a plea form in this case that13

included a maximum/minimum sentences for these various14

offenses?15

A I remember signing a form that said I was making my16

plea voluntarily and with knowledge to the facts. And now it17

turns out, I did not have knowledge as to the facts. So it was18

not a voluntary plea. I didn't have complete knowledge of the19

dates.20

Q Right. I understand that. And we've already talked21

about whether that's legally significant or not will be up to22

the Court. Right? Now, what do you recall the maximum23

penalties were?24

A I don't. I left that up to my attorney to deal with.25



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And she told me some kind of, you know -- I don't know if it1

was three to five, two to five. I don't know. I don't exactly2

remember the phrase she used.3

Q Do you recall --4

A So she never said just five years. Nobody ever told5

me five years, that's it. Nobody told me that.6

THE COURT: I beg to differ with you. Any time7

anyone enters a plea in front of me --8

THE WITNESS: Uh-huh.9

THE COURT: -- I make sure to tell them every single10

count they're entering a plea to and what the maximum11

penalty is on each count. I do it with every single12

person.13

THE WITNESS: I agree. The maximum --14

THE COURT: So somebody told you what the maximum15

penalty was.16

THE WITNESS: I agree, the maximum. I'm saying no17

one told me five years for sure.18

That's what I'm saying.19

BY MR. ASHTON:20

Q No. No. No.21

A That's what I'm --22

THE COURT: I think he's asking you if you understood23

at the time you entered the plea what maximum penalty it24

is you were facing.25



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BY MR. ASHTON:1

Q And that's all I asked you --2

A Okay. I guess that I heard Ms. Shepherd say3

something to five.4

Q Okay.5

A Two to five, three to five. I don't know what it6

was. But something to five.7

Q So my point is that you knew that worst case8

scenario, you could potentially go to prison for five years for9

this crime. Whether you thought you deserved it not, you10

could. Correct?11

A But which crime are you talking about? There were12

several things --13

Q The felony case. The aggravated -- I believe it was14

the aggravated stalking count.15

A And that was based on the three calls? Is that what16

you're talking about? Cause I'm not sure exactly what17

you're -- what the felony count is comprised of.18

Q The charge of aggravated stalking after an19

injunction.20

A Which injunction are you talking about?21

Q Sir, you know --22

A I don't -- you know --23

Q We're not going to play this. We're not going to24

play this.25



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MS. GILLARD: Objection, Your Honor.1

BY MR. ASHTON:2

Q The question is --3

MS. GILLARD: If the Court needs to admonish --4

THE COURT: Hold on.5

MS. GILLARD: -- my client --6

THE COURT: We're talking about the specific charges7

that you entered a plea to that you're seeking to have8

withdrawn.9

THE WITNESS: There was --10

THE COURT: That's the only charges we're talking11

about. Right?12

THE WITNESS: There's two injunctions involved13

though, sir. I'm asking him which injunction he's talking14

about that I --15

THE COURT: That's good to know. Go ahead.16

THE WITNESS: The charges were split up among two17

different injunctions. So which one are you talking18

about?19

BY MR. ASHTON:20

Q Anyway, why don't I let you read the information to21

yourself. That way you can be fully educated in the matter. I22

will provide you with the information and with the Court's23

indulgence as much time as you need to read it.24

THE COURT: It's your hour. Like I said, you each25



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have an hour.1

THE WITNESS: So what am I supposed to read here?2

BY MR. ASHTON:3

Q This is the information charging you with the4

offenses in this case.5

THE WITNESS: And, Your Honor, am I supposed to read6

it to myself or read it out loud?7

THE COURT: I think just to yourself.8

BY MR. ASHTON:9

Q Yeah. Actually --10

THE WITNESS: I mean, because I think if I read it11

out loud, at least everyone will know what I'm reading.12

THE COURT: Well, we know you're -13

THE WITNESS: And we'll be on the same page.14

THE COURT: What the formal document is charging you15

is called an information. So we know he's handed you the16

information.17

THE WITNESS: Right. But I mean --18

BY MR. ASHTON:19

Q Just, if you would, please, read the first what's20

called count. Which is this paragraph --21

A Okay. All right. All right. Lawson Lamar, State22

Attorney of the Ninth Judicial --23

Q To yourself. To yourself is fine.24

A -- prosecuting for the State of Florida in Orange25



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County.1

MS. GILLARD: Mr. Vega, you can read it to yourself,2

please. The Court said to yourself is fine.3

THE WITNESS: Okay. Okay. The last line here where4

it says, "After an injunction for protection under Florida5

Statute 78.046 or 741.30 had been duly issued and served."6

BY MR. ASHTON:7

Q Sir --8

A What does --9

Q Excuse me. There is not a question for you to answer10

right now. Have you finished reading the paragraph?11

A Well, that's the main thing --12

Q Have you finished reading the paragraph?13

A The dates -- let's see the dates 27th of March, 7th14

of April -- so it's split between --15

MR. ASHTON: Judge, could you instruct the witness16

just to answer the question that I asked.17

THE COURT: I think he's just asking have you now18

read the charge in Count I?19

BY MR. ASHTON:20

Q Have you read Count I. That's all I'm asking.21

A Count I?22

Q This paragraph right here.23

A That's what I was referring.24

Q Very good. Thank you.25



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THE COURT: So you've read it.1

THE WITNESS: Duly issued and served is what I have a2

problem with. The very last part of it.3

BY MR. ASHTON:4

Q Sir, I didn't ask you what you have a problem with.5

If you could just answer my questions and then your attorney6

can get up and allow you to -- ask you additional questions.7

A Okay. Okay.8

Q Now, did you understand at the time of your plea that9

the maximum possible sentence for that crime you just read was10

five years in the Department of Corrections?11

A I never was told that it was going to be definitely12

five years. I told you the window was three to five or two to13

five. It was never told to me, you will definitely go for five14

years.15

THE COURT: And in all fairness, you did not.16

Correct?17

THE WITNESS: Well, you're right.18

THE COURT: You did not go for five years.19

THE WITNESS: No.20

BY MR. ASHTON:21

Q Do you understand I used the word maximum.22

A I don't understand what the point is, sir.23

Q Do you understand the word maximum?24

MS. GILLARD: Can I --25



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MR. ASHTON: What?1

MS. GILLARD: If you don't mind. Mr. Vega?2

THE WITNESS: Yes.3

MS. GILLARD: The question to you is, did you4

understand that if you were found guilty of that charge5

that you could potentially face five years in prison? Not6

that you were going to be sentenced to prison if you plead7

to it. But the maximum penalty you were facing was five8

years. Did you understand that at the time? That's the9

question. And whether you did or not, you can answer it.10

But that's the question. Not --11

THE WITNESS: I --12

MS. GILLARD: -- that anyone said you were going to13

prison for five years.14

THE WITNESS: I understood that I was pleading guilty15

to a charge --16

MS. GILLARD: That carried a maximum penalty --17

THE WITNESS: -- that carried somewhere between three18

to five years. And --19

MS. GILLARD: And maybe that was your score? Like20

maybe you scored a certain amount and it went --21

MR. ASHTON: Well, Judge, I appreciate --22

MS. GILLARD: -- to five years?23

MR. ASHTON: -- the assistance. But I think --24

THE WITNESS: Yeah. That's -- you know, that's as25



24



far as I'm going to take it. I did never in my mind ever1

thought being a first time offender that I would go to2

jail or prison for five years. It never crossed my mind.3

It never occurred to me that --4

BY MR. ASHTON:5

Q Can you let me ask you a question?6

THE COURT: And you didn't. Right?7

THE WITNESS: Sir?8

THE COURT: You didn't.9

THE WITNESS: You're right, sir. I didn't.10

THE COURT: So calm down. It's okay.11

THE WITNESS: Well, I don't understand why he --12

THE COURT: You don't have to understand why he's13

asking what he's asking. Let him ask what he's asking14

seeing if you can answer. You didn't go to prison for15

five years. So calm down.16

THE WITNESS: Okay.17

THE COURT: And you're not going to prison for five18

years. So calm down.19

THE WITNESS: Okay, Judge. Thank you.20

BY MR. ASHTON:21

Q Now --22

A Uh-huh.23

Q -- did you also understand that the maximum sentence24

for the additional three misdemeanors was a year each?25



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A You know, I can't remember separating the charges in1

my mind, individually, understanding anything to do with each2

individual charge. I had a vague notion of three to five3

years. And that's all I thought. And that's all that occurred4

to me. And that's as far as I can take it.5

I cannot any further into detail because I didn't break it6

down in my mind. I was just facing one charge in my mind,7

three to five years, that was it. Or two to five or whatever8

it was. I don't -- that's as far as I could go with it. I9

can't go any further --I can't break it down any more than10

that.11

Q And you -- was this a negotiated plea negotiated with12

the State? In other words, that they offered you a plea with a13

certain sentence and you accepted. Was that not the situation14

here?15

A The State failed to share with my defender any16

information whatsoever that could have led --17

MR. ASHTON: Objection. Non-responsive to the18

question.19

THE COURT: Sustained.20

MR. ASHTON: And please -- if the Court could help my21

by instructing the witness to answer the questions that I22

ask.23

THE COURT: Repeat the question.24

MR. ASHTON: Sure.25



26



BY MR. ASHTON:1

Q This was a negotiated plea. In other words, the2

State offered that if you plead guilty to these crimes, you3

would get a certain sentence. Is that not correct?4

A Negotiated in bad faith.5

Q Now --6

A That's correct. Negotiated in bad faith.7

Q Now --8

A That's the way I perceive it.9

Q -- that offer was no time in jail. Correct? Not one10

day in jail. Correct?11

A Incorrect.12

Q Please correct.13

A Violation of probation, I was told automatic jail.14

Q Did you violate your probation?15

A I was told that was a possibility. No, I never16

violated my probation.17

Q But your plea offer was probation with no additional18

jail time. Is that --19

A I did never -- I never had the concept that I would20

never go to jail in my mind because I thought it was always a21

possibility as long as I was on probation. So I never felt22

free from the possibility of jail ever until the probation was23

terminated.24

THE COURT: Nobody's free from the possibility of25



27



jail until they're terminated. Every single probationer1

is subject to that exact same feeling.2

THE WITNESS: Well, that's what I'm explaining.3

THE COURT: I understand.4

BY MR. ASHTON:5

Q However, you did not go to jail as a result of your6

sentence, did you?7

A Not as a result of the sentence --8

Q Okay.9

A -- but prior to the sentence I did.10

Q Now, so --11

A My jail time was incorporated in the sentence.12

Q Credit for time served.13

A Exactly.14

Q Exactly. So you were faced with the possibility of15

going to prison for perhaps up to five years versus the16

certainty of probation. Now, are you telling this Court that17

that had nothing to do with your decision to enter this plea?18

A What had nothing to do? I'm not -- you're not making19

yourself very clear. What had nothing to do with making the20

plea?21

Q The sentence that you might have received versus the22

sentence in the plea offer.23

A You know, why are we sitting here discussing what I24

might have said when it's very clear I had no knowledge of the25



28



date conflicts in the injunctions? So what I might have said1

doesn't matter because I had no knowledge of the dates2

conflicts in terms of being served, in terms of issuance, in3

terms of exploration. All the dates I had no knowledge of. So4

I cannot go into anything about, you know --5

Q So you didn't know about the date conflicts on the6

time of the plea. Correct? That's what you said.7

A I left all that work up my attorney.8

Q So why did you enter the plea?9

A Because I was ignorant of the facts of the case in10

terms of the injunction having been duly issued and served11

which your charging papers state. I did not realize what that12

meant.13

Q But why did you enter the plea? I mean, did you14

enter the plea -- let me give you some examples.15

A Okay.16

Q Did you enter the plea to spare the victim17

testifying? Did you enter the plea to avoid a possible harsher18

sentence? Did you enter the plea because you felt it was in19

your best interest? Why did you enter the plea at the time you20

did it, not in hindsight --21

A I entered the plea --22

Q -- but at the time you did it?23

A -- lacking the knowledge of the true facts of the24

case. It was a bad faith plea.25



29



Q But at the time, you didn't believe that you lacked1

knowledge. Correct? At the time.2

A I was not the attorney representing myself at the3

time. My attorney's job was to let me know about anything like4

that.5

Q I don't want to know about hindsight. I want to know6

what was in your head at the time you entered the plea.7

A What was in my head was that the charges that your8

office brought before the Court that the injunctions had been9

duly issued and served were true and correct. That was in my10

head. The charges were real. I never -- it never crossed my11

mind to question the charging affidavit where your office12

states under oath that the injunctions had been duly issued and13

served which was not the case.14

Q And if this Court finds as a matter of law that they15

were duly issued and served -- no. Let me finish. Let me16

finish. Then would you agree that you would have entered the17

plea anyway?18

A That question is convoluted. I don't understand19

exactly what the question is. What -- please restate the20

question.21

Q I will.22

THE COURT: You are saying in hindsight that had you23

known that the -- at least, in your belief -- the24

injunction had not been duly issued and served you25



30



wouldn't have entered the plea.1

THE WITNESS: Correct.2

THE COURT: So that if you now find out the3

injunction was duly issued and served, then in hindsight,4

you would have entered the plea. Yes?5

THE WITNESS: Being served in jail almost three weeks6

after I was accused of violating injunction is not duly7

issued and served.8

BY MR. ASHTON:9

Q But if the Court --10

THE COURT: You only spent 14 days in jail. How were11

you served three weeks later?12

THE WITNESS: It was 20 days I think it was. They13

had me in Seminole County first and then they transferred14

me to --15

THE COURT: Oh.16

THE WITNESS: -- to -- so I was there 20 days before17

I was actually served the injunction which I was charged18

with violating.19

BY MR. ASHTON:20

Q Okay. I'll end this with this question. Wouldn't it21

be fair to say then that that one issue, that one issue, the22

date issue, is the issue that you believe had you known then23

you would not have entered the plea. Correct?24

A It's not one date, sir.25



31



Q I said the date issue, I believe is the word I used.1

A It's a date issue on the service of the injunction.2

It's a date issue on the issuance of the injunctions. It's a3

date issue on the expiration of the temporary injunction at 154

days. It's -- there's many dates here that are involved in5

this whole case. Many dates.6

Q And if again that wasn't a problem -- never mind. I7

think we're done.8

* * * * *9

REDIRECT EXAMINATION10

BY MS. GILLARD:11

Q Mr. Vega, when you -- how long would you say Ms.12

Shepherd was your attorney?13

A I believe it was from when I came of jail the first14

time in April, I believe, of '08 all the way up to the point15

where I plead, in February, I believe it was, of '09.16

Q Okay. So -- what's that? About --17

A Eleven months.18

Q -- ten, eleven month. Okay.19

A Eleven months which I thought was quite a long time.20

Q Okay. Did you also come to the pretrials during that21

time?22

A I did not attend the pretrial. I think it was handled23

between my attorney --24

Q Okay.25



32



A -- and the state attorney without me being present.1

Q Okay.2

A Which I didn't understand why I wasn't there. But --3

Q Okay. So your appearance was waived and you didn't4

come to them.5

A Okay.6

Q Now, when Ms. Shepherd was your attorney, did you7

discuss in detail the individual charges, for example, the8

aggravated stalking after an injunction?9

A What do you mean by in detail? What do you mean10

about --11

Q Well, I know you mentioned something about three12

phones and so she said if you made the three phone calls that's13

all that matters. Is that --14

A Yeah. She -- we did not discuss the circumstances15

that led the charges being filed. It was just a -- to me, Ms.16

Shepherd was making it clear that it was black and white. It17

was just the actual act of making three calls. And that was18

the issue. Nothing else was at issue. Just the act of making19

the three calls.20

Q So did she read the statute to you so that you could21

understand that, you know, in order to be found guilty of that22

offense, the State would have to prove at least two incidents23

of some form of repeated, malicious, willful, harassing24

behavior?25



33



A She never broke it down into at least. She just said1

the three as taken together as three calls. I mean, it was2

never broke down to me in terms of anything other than just3

three calls. Just --4

Q Did you and attorney ever discuss any case law with5

regards to the fact that two of the calls alleged that you had6

just called to see --7

MR. ASHTON: Objection. Scope.8

BY MS. GILLARD:9

Q -- about seeing your --10

MR. ASHTON: Objection. Exceeds the scope of cross.11

I didn't ask him about this.12

THE COURT: I'm going to allow it. Go ahead.13

BY MS. GILLARD:14

Q With regards to the phone calls that were made that15

were alleged to have been made in this case where two of the16

incidents, I believe the first two date dealt with your17

calling -- the first call dealt with you saying that you wanted18

another chance --19

MR. ASHTON: Objection. Leading. Leading.20

THE COURT: Finish the question. Start over.21

MS. GILLARD: Thank you. Okay.22

BY MS. GILLARD:23

Q Did you and Ms. Shepherd discuss in detail with24

regards to the aggravated stalking after an injunction charge25



34



which allegedly a period of time -- and Mr. Ashton just had you1

read the count that dealt with dates in between the 27th of2

March 2008 and the 7th day of April 2008 -- did you and your3

attorney discuss any case law with regards to defenses to the4

fact that one of your phone calls probably really wasn't5

harassment because you only calling to ask for a second chance.6

MR. ASHTON: Objection.7

BY MR. ASHTON:8

Q And to --9

MR. ASHTON: Leading. Compound.10

THE COURT: It certainly is compound. Can you break11

that down?12

MS. GILLARD: Okay.13

BY MS. GILLARD:14

Q Did Ms. Shepherd ever discuss a defense with you with15

regards to your phone call that was alleged to have been made16

on the 27th of March 2008 not being harassment because you17

called with a specific purpose of seeing your children?18

A I don't remember it being broken down by Ms. Shepherd19

that way. I just remember her saying that they have to prove20

it was a harassment situation. And she says it could go either21

way. But, you know, she didn't tell me point blank that, you22

know, I mean -- she just said it -- the statute was -- could be23

interpreted different ways. And, you know, I just -- to me it24

was all vague in my mind as to what harassment meant. And, you25



35



know, and obviously I thought making a call about can I see my1

children was somehow defined as harassment under the law, which2

I didn't understand that. I didn't understand it. And that's3

one reason why I plead to the charges is because Ms. Shepherd4

said she couldn't guarantee that any jury would understand the5

-- you know, the harassment -- the legal definition of6

harassment was just so vague and so up there, you know, I just7

-- I couldn't break it down. I didn't understand. I left it8

all to her. I mean, I'm not an attorney. I didn't understand9

what that meant.10

Q Did Ms. Shepherd read you the definition from the11

statute book of harassment to make you better understand?12

A I think we did look at the -- what definition of13

harassment was. And that left me more confused than before14

because I didn't know, you know, which was it could go. So I15

think she did go over that phrase in the statute about16

harassment.17

Q Did she ever go over any case law with you at any --18

were you aware of her doing any legal research with regards to19

the telephone calls and the content of them as a possible20

defense to where you would not have had three contacts if two21

of them were not deemed to be harassing.22

A Well --23

Q Did she ever discuss that with you? Any case law.24

A She never talked about what she was actually doing in25



36



the case in terms of case law to me. No, we never had those1

kinds of discussions at all. I mean, you know, it's -- I knew2

she was doing something in the case, but I didn't know exactly3

what she was doing in the case. You know, I had no real idea.4

Q Okay. And Mr. Ashton was questioning you repeatedly5

about the dates and how you seemed to think that they're6

important. Correct?7

A No. I --8

Q To pursue an injunction?9

A No. He misinterpreted what I said. I don't seem to10

think they're important. The statutes in the Florida laws deem11

that they're important. It's not my opinion. This is not an12

opinion. This is what I read in the statutes.13

Q Right. It's clear that you think the dates are14

important. Correct? Based on your reading of the statutes.15

Yes?16

A Yes. Yes, I do.17

Q Okay. And you had referred to Page 2 of the18

temporary injunction which states about the 15 days. Correct?19

A Not to exceed 15 days.20

Q Is that correct?21

A Correct. Correct.22

MS. GILLARD: May I approach the witness with a copy23

of the temporary injunction, Your Honor?24

THE COURT: Sure.25



37



MS. GILLARD: Thank you.1

MR. ASHTON: I just ask that it be marked for2

identification so that we have a record of what it was --3

THE COURT: Yeah, I wouldn't mind seeing it.4

MS. GILLARD: Right. That's my goal here. So -- and5

you have a copy, you said.6

MR. ASHTON: A couple, I think.7

MS. GILLARD: Okay.8

Now, may I approach, Your Honor?9

THE COURT: Yes.10

MS. GILLARD: Thank you.11

BY MS. GILLARD:12

Q Mr. Vega, I'm now showing you what is -- the clerk13

has just marked this as Defense Exhibit A for identification.14

Okay? Do you recognize this document? Take a look at it.15

A This looks like the document that I studied for the16

very first time in detail after I plead.17

Q Do you recognize it?18

A I do recognize it.19

Q And do you recognize it to be a copy of the temporary20

injunction for protection against domestic violence with minor21

children that was issued in 08DR4285-0?22

A Yes, I do.23

Q Okay. And the problem with the dates that you're24

referring to, is it the fact that it looks to be Judge25



38



Komanski had signed this temporary injunction on March 18th,1

2008, which is reflected on the last page. Is that correct?2

A Yes. That's correct.3

Q Okay. And it appears that it was docketed, if you4

look at that little stamp up on the top of the front page --5

A Uh-huh.6

Q -- the clerk stamped that it was also docketed at the7

exact same day. Correct?8

A Yes. Yes. Yes.9

Q Okay. And then there is a stamp where it shows that10

you were served with a copy of this. Correct?11

A Yes.12

Q Okay. And that occurred on what day?13

A The 24th day of March.14

Q Okay. Now, the place that you're referring to with15

regards to the 15 days is on Page 2 of this document. Correct?16

A Correct.17

MS. GILLARD: If the Court wouldn't mind, I can give18

Mr. Vega another copy to reference and you can -- I can19

present -- enter this one into evidence so the Court can20

be reviewing it as we're discussing?21

MR. ASHTON: Well, the document speaks for itself so22

I do object to Mr. Vega --23

THE COURT: I don't have one in front of me. I have24

no idea --25



39



MR. ASHTON: Yeah.1

THE COURT: -- what you're talking about.2

MR. ASHTON: I have no objection to the Court getting3

a copy of it. That's fine. I may have an objection to4

Mr. Vega giving commentary on what he thinks it means as a5

matter of law --6

MS. GILLARD: I have not ask him for any commentary.7

MR. ASHTON: That's fine.8

MS. GILLARD: If I may approach the Court, I can give9

you another copy of this document --10

THE COURT: Okay.11

MS. GILLARD: -- while Mr. Vega continues to testify.12

(Counsel confer)13

MS. GILLARD: May I approach?14

THE COURT: Sure.15

BY MS. GILLARD:16

Q Okay. So, now, Mr. Vega, the Court -- Judge17

LeBlanc has a copy of the temporary injunction that you're18

looking at as well so everyone can follow along. Okay?19

A Right.20

Q And -- now, with regards to this injunction, there21

was a hearing set which I believe you did not attend --22

correct? -- on April 3rd?23

A I did not attend it.24

Q So April 3rd at 8:30. And the problem that you're25



40



having with this after we've reviewed the statute --1

A Right.2

Q -- is on Page 2 and the first line under Temporary3

Injunction in terms. Correct?4

A Correct.5

Q Where it states that the injunction shall in no event6

be in effect -- well, I paraphrased. Sorry. This injunction7

shall be effective until the hearing set above and in no event8

for longer than 15 days unless extended by the Court. Correct?9

A Correct.10

Q Are you aware of any extension that was granted --11

let me finish -- with regards to the temporary injunction to12

make it last longer than 15 days?13

A I'm not aware nor did I find any evidence of any14

court order extension of this injunction.15

Q Okay. So actually you had your -- the hearing was16

set with regards to this temporary injunction to become17

permanent more than 15 days. Correct?18

A Correct.19

Q About -- I believe if you start from the 18th, it20

comes out to be 17 days. Right?21

A Seventeen days exactly. Which falls in the middle of22

the week.23

THE COURT: Wait a minute. I thought you weren't24

served with the injunction until the 24th of March. Isn't25



41



it in effective for 15 days from the 24th of March?1

MS. GILLARD: He doesn't have to ever be served. And2

he's still going to have the hearing on the 3rd.3

THE COURT: That's not what I asked. The injunction4

was served --5

MS. GILLARD: I think it was from the date of --6

THE COURT: -- on the 24th of March is the injunction7

not in force for 15 days from the date at -- maximum -- of8

the 24th of March on for 15 days.9

MS. GILLARD: No. I believe it goes from the 15 days10

of the issuance of it.11

THE COURT: Why? It had no effect until it was12

served. It's 15 days from the date it's served.13

MS. GILLARD: Well, wouldn't -- that's like saying14

then it wouldn't have an effect if he never was served.15

Right? And that he'd still have a permanent injunction?16

I mean, I think the hearing is set in that time frame to17

correspond with the 15 days. In this case, though,18

however, it was set out 17 days later. And I believe the19

other aspect of this argument that Mr. Vega is stating is20

that no temporary injunction can be in effect for longer21

than 15 days meaning basically had he been in court and22

been served on that day, now we have an injunction that's23

in place for longer than 15 days -- temporary24

injunction --25



42



THE COURT: But it wasn't.1

MS. GILLARD: -- that the judge issued.2

THE COURT: It was only served on the 24th of March.3

MS. GILLARD: That's if it goes by the service date.4

But the --5

THE COURT: Well, when is it in effect otherwise? It6

can't be in effect unless he's served with it.7

MR. ASHTON: I think the key point is that the events8

alleged to -- two of the events occurred within the 159

days period of either the beginning date when it was10

issued or it was served. And the State's position in its11

response is that -- and I think what the Defendant is not12

understanding is that as a matter of law, you can't --13

that error if it in fact is an error, does not invalidate14

the injunction. You still have to follow the injunction.15

It is still valid. And as I've cited all the cases in my16

memorandum that show that it is still valid so this is not17

a defense. Unless a legal argument for the Court -- you18

know, I sort of tried to talk to the Defendant about that.19

We aren't communicating. But -- so I think either way,20

it's still valid. There is no defense as a matter of law.21

But I don't expect the Defendant to agree with that.22

MS. GILLARD: Can I continue? But basically Mr.23

Vega's position that I am putting forth for Mr. Vega24

here --25



43



THE COURT: Is?1

MS. GILLARD: -- is that basically the 15 -- that2

because this temporary injunction -- I mean, it was3

issued. This temporary injunction, whether it be served4

or not, was it issued. And it cannot be --5

THE COURT: It doesn't matter when it's --6

MS. GILLARD: -- issued --7

THE COURT: -- issued. It could be issued in 2008.8

If it's served today, it's in effect for 15 days today.9

The injunction has no effect unless and until it's served.10

If it's not served, he has no idea he can't make a phone11

call.12

MS. GILLARD: Well, it says --13

THE COURT: The injunction has absolutely no effect14

until it's served.15

MS. GILLARD: It says it's effective until the16

hearing or --17

THE COURT: Once it is served.18

MS. GILLARD: No.19

THE COURT: So if I issue an injunction today and you20

don't know about it, I can cite you with violating the21

injunction cause it hasn't been served? Of course not.22

An injunction has no effect until it is served.23

MS. GILLARD: Well, then that's like saying that this24

temporary injunction has no effect --25



44



THE COURT: It didn't --1

MS. GILLARD: -- at all --2

THE COURT: -- until March 24th. So when he made the3

calls on March 27th, March 28th and April 7th, he was4

violating the injunction.5

MS. GILLARD: Well, I understand the Court's --6

THE COURT: Analysis.7

MS. GILLARD: Yes. And the argument that Mr. Vega is8

putting forth is that -- basically the whole document --9

this whole document is a nullity, that the Court has no10

jurisdiction to issue this for longer than 15 days.11

Basically, it was issued on the date that March 18th and12

because it was issued for a period to last longer than 1513

days that it is not valid. And I know the Court's saying14

it's not valid until served.15

THE COURT: And what would that do about the first or16

second of three phone calls?17

MS. GILLARD: Well, the first or second were --18

MR. ASHTON: Judge, before we argue the merits, could19

we -- could I just finish my cross-examination?20

THE COURT: Well, are you done questioning him?21

MR. ASHTON: We seem to be getting into the merits --22

MS. GILLARD: No.23

THE COURT: Okay.24

MR. ASHTON: -- of the arguments.25



45



THE COURT: Then continue your questioning.1

MS. GILLARD: Okay.2

BY MS. GILLARD:3

Q So, Mr. Vega, that was your argument -- correct? --4

that the 15 days started from the date of March --5

A My argument was that the 15 days is what the Court6

has to reach the point where they're going to decide on whether7

to issue a permanent injunction or not. And whether --8

MR. ASHTON: Excuse me, sir.9

THE WITNESS: -- it was served or not.10

MR. ASHTON: Excuse me, sir. I need to --11

THE WITNESS: Whether it was served or not --12

THE COURT: Hang on.13

THE WITNESS: -- has nothing --14

THE COURT: He's objecting.15

MR. ASHTON: Judge, could you ask the witness --16

THE COURT: Once he objects, stop answering.17

THE WITNESS: He would object --18

THE COURT: I didn't tell you that before.19

THE WITNESS: Well, he --20

MR. ASHTON: Well, I was trying to be polite and ask21

Mr. Vega to calm down and stop. I have an objection.22

This witness is giving a legal opinion which is not23

relevant to this matter.24

THE COURT: Correct.25



46



MR. ASHTON: Facts are what they are. I object to1

the narrative legal opinion. And if you could wait, sir,2

until the Court rules.3

THE COURT: It does call for a legal opinion.4

MS. GILLARD: Okay. I'm asking for Mr. Vega's5

opinion as to his belief, which is why we're here today.6

THE COURT: His opinion doesn't matter. His belief7

is a different thing. His belief might make a difference.8

THE WITNESS: My belief is --9

MS. GILLARD: Let --10

THE WITNESS: Oh, okay.11

MS. GILLARD: The Court and I are --12

THE COURT: So go ahead --13

MS. GILLARD: -- discussing --14

THE COURT: Go ahead and answer the question.15

MS. GILLARD: Okay. Go ahead.16

THE WITNESS: My belief is that if the injunction is17

never served on the respondent that nevertheless, the18

Court has 15 days to set a hearing date -- up to 15 days19

for the permanent hearing. That's it. Whether the20

respondent is ever served or not has nothing to do with21

the fact that 15 days will go by maximum and then a22

hearing is set forth to decide it should become permanent23

or not. So it has nothing to do with the service on the24

respondent. It's a time frame set forth by the25



47



legislature in the laws that gives the Court up to 15 days1

to come up with a hearing date for the permanent2

injunction. And that has nothing -- and the wording in3

the statutes has nothing to say about being served or4

anything. It just says this is what a temporary5

injunction is. This is why they call it a temporary6

because it lasts up to 15 days. That makes it temporary.7

And temporary means it could go away.8

BY MS. GILLARD:9

Q Right.10

A It's not permanent.11

Q Okay.12

A So that's my belief is that, you know --13

THE COURT: I think your belief is correct. It is14

temporary and it can go away. That's correct.15

THE WITNESS: Regardless of whether it's served on16

the respondent or not.17

THE COURT: Well, there you're wrong. But go ahead.18

MS. GILLARD: I'd like to move into evidence --19

THE COURT: Move on.20

MS. GILLARD: -- as Defense Exhibit 1 for21

identification a copy of the temporary injunction22

that's --23

THE COURT: Any objection?24

MS. GILLARD: -- previously been marked as Defense --25



48



MR. ASHTON: No objection.1

THE COURT: All right. Then Defense A will come in as2

Defense 1 without objection. Copy of the temporary3

injunction served March 24th, 2008.4

(Defendant's Exhibit 1 admitted into evidence)5

THE COURT: Mr. Vega, I just want to point out to6

you --7

THE WITNESS: Yes, sir.8

THE COURT: -- the very first paragraph of all9

injunctions state, "Under the laws of Florida, the Court10

has jurisdiction of the petitioner and the subject matter11

and has jurisdiction of the respondent upon service of the12

temporary injunction." In other words, once it's served,13

it's in effective and 15 days run. But not until then.14

THE WITNESS: What happens if they can't find the15

respondent?16

THE COURT: Then there ain't no injunction in force.17

THE WITNESS: Then the petitioner doesn't have a18

chance to go and get a permanent on the 15th day --19

THE COURT: Correct.20

THE WITNESS: -- the petitioner is disallowed from21

going forth?22

THE COURT: Correct. Because there is no service on23

the respondent.24

THE WITNESS: But the respondent might be out of25



49



state for -- or might be hiding. And the petitioner1

deserves protection from the Court. And on the 15th2

day --3

THE COURT: Oh, I'm not here to argue the4

philosophical merits of that or not. However, I just want5

to point out the first paragraph of the injunction for6

which you are served states the Court has jurisdiction7

over you upon service of the injunction. That's when the8

15 days starts running. Okay? I'm telling you.9

THE WITNESS: Okay.10

THE COURT: I'm not asking you. I'm telling you.11

THE WITNESS: If I understand what you're saying, so12

if I'm not located, it just --13

THE COURT: If you're not located, there's not14

injunction because there's been no service. And unless15

the petitioner comes to court with another act alleged16

that would give rise to issuing of another temporary17

injunction, there's not injunction.18

BY MS. GILLARD:19

Q Okay. Mr. Vega, when were you served with a copy of20

the permanent injunction?21

A I was served with a copy of the permanent injunction22

about three weeks after I was charged with violating the23

injunction, on the third call. Three weeks after. In other24

words, according to what I just heard put forth, if you haven't25



50



been served yet, you can't be charged with violating the1

injunction and I wasn't served on -- at the time of the third2

charge.3

Q Okay.4

A So it's very clear now to me that that charge was5

totally -- did not belong in the charges -- the third call6

because I had never been served at that date.7

THE COURT: The question was --8

BY MS. GILLARD:9

Q So, Mr. Vega, the answer was --10

THE COURT: -- when were you served with --11

BY MS. GILLARD:12

Q -- three weeks?13

THE COURT: -- the temporary injunction?14

BY MS. GILLARD:15

Q About three weeks later?16

A Three weeks after I was charged with violating it.17

THE COURT: So the 24th of March is not a correct18

date as to when you were served?19

THE WITNESS: She asked about the permanent. She20

asked about the permanent.21

BY MS. GILLARD:22

Q Okay.23

THE COURT: Oh.24

THE WITNESS: That's a separate injunction, Your25



51



Honor.1

THE COURT: Does it matter whether it's the permanent2

or the temporary? An injunction was in force whether it's3

the temporary or the permanent. The information doesn't4

specify nor does the stalking charge. What difference5

does it make. The question is whether --6

MS. GILLARD: It was the temporary --7

THE COURT: The question is whether an injunction was8

in place at the time the phone calls were made on the 27th9

of March, the 28th of March or the 7th of April, whether10

it's the temporary or the permanent one, who cares. Was11

there an injunction in place? Were you served with the12

temporary injunction on the 24th of March 200 --13

THE WITNESS: I was served with the temporary.14

THE COURT: All right. And 15 days from the 24th of15

March would be when?16

THE WITNESS: Like the 9th of June, I guess. I don't17

know.18

THE COURT: Fifteen days from the 24th of March would19

be when?20

THE WITNESS: The 10th.21

THE COURT: Well, it's a little less than that. It's22

actually --23

MS. GILLARD: The 8th.24

THE COURT: -- the 7th. So the injunction would25





53



those calls were made. Those calls are charged in three1

separate counts. And those calls comprise the aggravated2

stalking in Count I.3

THE WITNESS: Or the charging affidavit said I4

violated the permanent injunction.5

THE COURT: It didn't say permanent or temporary. It6

just said injunction. Do you want me to show you?7

THE WITNESS: It's --8

THE COURT: I'm just -- I don't want to waste our9

time.10

THE WITNESS: I know, Your Honor. But I mean I11

thought they broke it down into two on the temporary and12

one on the permanent. That's the way the State broke it13

down.14

THE COURT: It just said that there was an injunction15

in place. They didn't say permanent or temporary. They16

just said violation of an injunction.17

MS. GILLARD: If I can approach Mr. Vega, I can show18

him.19

* * * * *20

COURT'S RULING21

THE COURT: I just don't want to waste anyone's time.22

He's saying there was no injunction in place. There was.23

It was in place for 15 days. It expired at midnight April24

7, 2008. The three phone calls were March 27, March 28th25



54



and April 7th. That's Count I, Count II, and Count III.1

And the reason that he entered a plea is because he scored2

22 months in prison. And he didn't want to go to prison.3

So instead of going to prison, they agreed on a downward4

departure and gave him probation. So instead of facing5

eight years in jail, he took a plea to a downward6

departure and probation, complied with the conditions of7

probation and we terminated him early. The motion is8

denied.9

MS. GILLARD: Thank you, Your Honor.10

THE DEFENDANT: As of this moment, I don't have an11

attorney. Is that correct? Because now the 3850 is over12

so -- I put in a motion into my file for an appointment of13

an attorney. It's in my case file.14

THE COURT: That motion is denied. You're not15

entitled to it. You've had an attorney. What do you need16

an attorney for at this point?17

THE DEFENDANT: The appeal of the 3850.18

THE COURT: You can file an appeal on the 3850. I19

don't know if you're entitled to counsel on that.20

However, based on the record, the injunction having been21

in force, the motion to withdraw the plea and the post-22

conviction motion is denied as unfounded.23

MS. GILLARD: And, Your Honor, I don't know -- I24

never got a copy, but I think Mr. Vega had told me that he25



55



had written something about -- did you request different1

counsel from me anyway. Right?2

THE DEFENDANT: No. I knew that the moment the3

hearing would be settled, I would -- you told me you could4

not be my attorney any longer.5

MS. GILLARD: Well --6

THE DEFENDANT: And I put forth the motion to the7

judge to -- for appointment of a counsel. And I --8

MS. GILLARD: We had discussed if we were successful9

then no I would not have been his attorney cause I was10

only appointed for the 3850. And then --11

THE COURT: Mr. Vega, the motion is denied and you12

have the right to file an appeal. If you wish to do so,13

it must be filed within 30 days. You file the appeal.14

You file the paperwork. I don't do it for you.15

MS. GILLARD: And I don't do it either. Right?16

THE COURT: You are the attorney of record for it. I17

believe you are required to and then motion to withdraw.18

MS. GILLARD: Right. I think I do.19

THE COURT: I'm not sure it's going to make much20

difference. You have to understand what you're up21

against.22

THE DEFENDANT: I don't understand.23

THE COURT: What are you trying to do? You're trying24

to get your record wiped clean.25



56



THE DEFENDANT: No. I'm trying to just -- have the1

record set straight. That's all. The facts of the case.2

THE COURT: And I just set the record straight.3

THE DEFENDANT: Yes, sir.4

THE COURT: You believed you were not under force of5

an injunction and you were based on the injunction in6

place. You believed the injunction was not in force at7

the time those three phone calls were made. The8

injunctions were in force at the time those three phone9

calls were made.10

THE DEFENDANT: I was under the impression the 385011

had nothing to do with my guilt or innocence. It only had12

to do with what my attorney made me aware of or not aware13

of and my attorney made no --14

THE COURT: Yes. But your belief is wrong. You're15

saying you're attorney didn't make you aware that there16

was no injunction. Your attorney didn't make you aware of17

that because there was an injunction in force. So that18

your belief of what your attorney knew or didn't know is19

wrong. She knew there was an injunction in force because20

there was an injunction in force. I find that there was21

an injunction in force. And there's absolutely no basis22

for me to find that she was ineffective. You got a23

probation officer when you should have gone to prison.24

And now you don't like it?25



57



THE DEFENDANT: First offense, Your Honor. I never1

did anything in my life ever before.2

THE COURT: Kill someone only one time, you go to3

prison. It has nothing to do with whether it's your first4

offense or not. It has to do with how you score, what the5

offenses are. You got a good deal. You took advantage of6

the deal. And it's done with. But it's a conviction on7

your record.8

THE DEFENDANT: I thought you withheld adjudication9

on it. Then it's not --10

THE COURT: Oh. If I withheld adjudication, then11

it's correct. I didn't realize that. You are correct.12

Yeah.13

THE DEFENDANT: Okay.14

THE COURT: I didn't realize that.15

THE DEFENDANT: Now, I'm not clear about the fact16

that I have an attorney now. The Court is withdrawing my17

attorney. Is that --18

THE COURT: No, I'm not withdrawing. I'm doing19

nothing other than denying the motion to withdraw the plea20

and denying the motion for post-conviction relief as21

unfounded.22

MS. GILLARD: And basically --23

THE COURT: That's all I'm doing.24

MS. GILLARD: -- under my appointment -- I'm just25



58



going to explain this if the Court will indulge me.1

THE COURT: Oh, you were court appointed?2

MS. GILLARD: Yes.3

THE COURT: Then it is up to you to perfect the4

appeal if he so chooses.5

MS. GILLARD: Exactly.6

THE COURT: However, I don't believe he's entitled to7

counsel for purpose of -- court appointed counsel for8

purposes of a post-conviction appeal. If wants to do an9

appeal, he can do one himself.10

MS. GILLARD: Right.11

THE COURT: But he's not entitled to counsel.12

THE DEFENDANT: But once you have counsel appointed,13

Your Honor, they can't take it away in the middle of your14

case.15

THE COURT: It's not --16

MS. GILLARD: No.17

THE COURT: -- in the middle. The case is over with.18

MS. GILLARD: The statute with regards to my19

appointment requires me to file the initial paperwork for20

an appeal. However --21

THE COURT: The case is over with.22

MS. GILLARD: -- once the appeal is filed, the23

paperwork requesting -- I mean, I think he's going to have24

to be paying for copies and transcripts and everything.25



59



It's not like a public defender is appointed.1

THE COURT: Well, I can declare indigent for costs2

for purposes of appeal. But he doesn't get court3

appointed counsel.4

MS. GILLARD: Right. So he's going to have to get5

everything --6

THE COURT: Right.7

MS. GILLARD: -- himself. And he would have to file8

a motion to be declared indigent.9

THE DEFENDANT: It's already been filed. I've10

already been declared indigent.11

MS. GILLARD: Not for the appeal.12

THE COURT: You're not entitled to counsel. You've13

been entitled to counsel long enough. And it's not that I14

don't -- it's not my decision. That's an appellate court15

-- they've made the rules not me.16

THE DEFENDANT: But if you have 30 days, what17

happens -- I mean, I have --18

THE COURT: You have 30 days to file the appeal.19

THE DEFENDANT: I have to personally --20

THE COURT: Don't ask me for legal advice, ask your21

attorney.22

THE DEFENDANT: Is she still my attorney?23

THE COURT: She is until she --24

MS. GILLARD: I'm only doing the appellate --25



60



THE COURT: She --1

MS. GILLARD: -- I will do the appeal paperwork if2

you request me to file an appeal for you. But I do not --3

it's very basic paperwork. It is not --4

THE COURT: She would file --5

MS. GILLARD: -- legal.6

THE COURT: -- the notice of appeal and then withdraw7

as counsel of record.8

MS. GILLARD: It's just a notice of appeal. It's a9

piece of paper. And a few other pieces of paper that10

designate a court reporter with regards to the date of11

hearing. But it's -- it's not a full blown memorandum of12

law or anything like that. It's just -- and it's done for13

every person who appeals. That's the initial documents14

that the Judge is saying then you would be required to15

write your own brief --16

THE COURT: I'm done.17

MS. GILLARD: -- with regards to the appeal.18

THE COURT: We're done. We're off the record.19

MR. ASHTON: Could we go ahead and adjourn?20

THE COURT: We're done. We're --21

MR. ASHTON: They need to talk.22

THE COURT: This proceeding is concluded.23

(Proceedings concluded at 2:36 p.m.)24

* * * * *25



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C E R T I F I C A T E1

STATE OF FLORIDA:2

COUNTY OF ORANGE:3

I, Kelley A. Grijalva, CET**D, being a Digital Court4

Transcriber as authorized by Rule 2.535(h)(3), Florida Rules of5

Judicial Administration, and the Administrative Order of the6

Ninth Judicial Circuit numbered 07-98-43, certify that the7

foregoing transcription is true and correct.8

Dated this 21th of December, 2010, in the City of Orlando,9

County of Orange, State of Florida.10

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KELLEY A. GRIJALVA, CET**D14Digital Court Transcriber

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Documents

Jeff Ashton vs. Joseph Vega