IN THE COUNTY COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT

CRIMINAL DIVISION “H”

CASE NO.: xx-xxxx-xx-xxxxxx-xxxxx

STATE OF FLORIDA,

vs.

Defendant.
/

DEFENDANT’S SWORN MOTION TO VACATE JUDGMENT

THE DEFENDANT, , by and through her undersigned counsel

and pursuant to Fla. R. Crim. P. 3.850, moves this honorable court to vacate the judgment in the

above-styled cause due to the ineffective assistance of counsel and provides the following in

support thereof:

POSTURE

1. On February 27, 2022, Defendant was charged by information with violating

Florida Statute 365.16(1)(b), a 2nd degree misdemeanor for making harassing telephone calls.

2. The Palm Beach County Court, Criminal Division H, accepted Defendant’s guilty

plea, ordered a withheld adjudication and six months of probation that included completion of an

anger management class, community service, and no contact with the alleged victim, and

assessed court costs, all which Defendant successfully completed without incident.

3. No other post-conviction remedies or appeals from the judgment or sentence have

been filed in this matter.

ineffective assistance of counsel that failed to offer any defenses available at the time to show

Defendant lacked the requisite intent to violate the statute.

STATEMENT OF THE FACTS

5. On June 10, 2019, Defendant’s former husband filed for a Petition for Dissolution

of Marriage with a Minor Child in Case No. , and later

sought and obtained an Agreed Temporary Timesharing Order (“Order”) on November 14, 2019,

attached as Exhibit A.

6. The Order provided the following relevant provisions:

a. The Defendant was deemed the primary parent.

b. The former Husband’s first Thursday overnight timesharing commenced

on November 11, 2019, and his first weekend timesharing commenced on November 22,

2019.

c. The agreement provided that each party “shall allow open telephonic

communication between the child and other parent on a daily basis. Said telephonic

communication shall not occur after 9:00 p.m. on a school night and shall not be

excessive or harassing in nature.”

d. The agreement also provided that “(n)either parent shall conceal the

whereabouts of any child of the parties …”.

7. For the first two months following the court’s Order, Defendant made countless

attempts to speak with her daughter by calling the former husband’s telephone number; however,

the calls went largely unanswered.

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 8. On January 20, 2020, Defendant filed the first of several Motions to Compel that

sought the court’s intervention to compel the former husband to abide by the Order and allow

telephonic communications with her daughter.

9. Defendant called the same number she had been using to reach her former

husband and at no time did she intend to call or expect to speak to someone other than her former

husband.

10. Unable to reach her daughter, a worried and concerned Defendant made repeated

calls that continued to go unanswered.

11. Following an unsuccessful pretrial mediation in the dissolution of marriage

matter, on July 10, 2020, the alleged victim in the above-styled cause, also the former husband’s

then paramour, sought the Police Department’s intervention alleging

Defendant had been making months of harassing telephone call in violation of Florida Statute

365.16(1)(b).

12. The alleged victim failed to disclose to the investigating officer the existence of

the Order issued in the related family law matter that the calls to Defendant’s daughter were

permitted and allowed under the Order or that those calls were intentionally being unanswered in

violation of the Order and, therefore, causing the repeated calls.

13. The alleged victim also failed to disclose the calls were made to the former

husband’s telephone number Defendant called when needing to reach her daughter and were

never intended for her.

14. By her own admissions in her statement to the Jupiter Police Department, neither

the former husband nor the alleged victim answered the calls placed by Defendant in her efforts

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to reach her daughter, providing further proof of the alleged victim’s nefarious intentions in

contacting the authorities and the former husband’s flouting of the court’s Order.

15. Over the last three and half years during which the Domestic Relations Division

of the [court] retained jurisdiction over the petition for dissolution of marriage and currently

retains jurisdiction over the custody and timesharing of Defendant’s minor child, a clear pattern

has emerged where the Defendant’s petition to the court compelling the former husband to cease

violating the Order are met with the alleged victim pressuring the Police

Department to act on her false claims of harassing phone calls. For example:

a. As previously mentioned, according to statements made to the

Police Department on July 10, 2020, and included in the probable cause affidavit, the

alleged victim stated the harassing calls had been occurring as early December 2019,

which was immediately following the court’s November 14, 2019, Order and following

Defendant’s first Motion to Compel filed on January 20, 2020, to force the former

husband to answer Defendant’s calls to her daughter.

b. In June 2021, the Police Department sent a legal demand to

Google, Inc. to obtain documents to prove who had been repeatedly contacting the

alleged victim, which followed within a month after the Defendant’s second Motion to

Compel filed on May 12, 2021, in a renewed effort to enforce the court’s Order.

c. On January 5, 2022, several months after receiving the documents from

Google, Inc. the Department revisited its investigation into the alleged

harassing calls and issued its probable cause affidavit on January 6, 2022, which stated

the “only purpose [Defendant] was contacting [the alleged victim] was to harass, upset,

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 and or cause stress …” and predated by one day Defendant’s most recent Motion to

Compel filed on January 7, 2022, seeking yet again enforcement of the Order.

16. Defendant’s repeated, unanswered calls to the alleged victim were the result of

the former husband’s refusal to ensure Defendant’s calls reached her daughter as permitted under

the family court’s Order, the delegation of this responsibility to the alleged victim without

Defendant’s knowledge, and the failure of the former husband to keep Defendant apprised of her

daughter’s whereabouts and, therefore, proves that the calls were justified and that Defendant

lacked the requisite intent to violate the statute.

17. In further support of the relief requested, the former husband has offered

Defendant’s calls in the dissolution of marriage matter to characterize her actions as harassing

and interrupting his parenting time and the alleged victim has failed to disclose the Order to the

Police Department, which suggests a fraud being committed upon the courts that

requires correcting to ensure the best interests of Defendant’s daughter are met.

18. Upon the advice of counsel, Defendant plead guilty to the charges of making the

harassing calls; however, after reviewing the record in the above styled matter along with the

record in Defendant’s related family law matter, it is abundantly clear Defendant’s counsel failed

to offer any affirmative defenses or investigate any exculpatory evidence readily available at the

time to demonstrate a lack of Defendant’s intent to commit the crime as charged.

19. Based upon the foregoing, Defendant’s has shown beyond any doubt that her

lawyer’s performance fell below any objective standard of reasonableness and has demonstrated

with high probability that, but for the counsel’s unprofessional errors, the outcome in the instant

matter would have been much different. See Strickland v. Washington, 466 U.S. 668 (1984).

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 20. Defendant hereby certifies that she has read the motion and understands its

contents, has filed this motion in good faith with an understanding it is timely, has merit, and

does not duplicate any previous motions that have been disposed of by the court, has

incorporated facts as obtained from official court and law enforcement records that are true and

correct, and understands English.

WHEREFORE, DEFENDANT respectfully requests this court to vacate its judgment and

sentence in this matter due to ineffective assistance of counsel and issue other relief it deems just

and proper including but not limited to calling upon authorities to investigate whether any crimes

were committed by the alleged victim in her statements made to law enforcement that created the

foundation for the charges to be filed against Defendant.

AFFIDAVIT OF DEFENDANT

State of )
County of ) ss:
)
BEFORE ME, the undersigned authority, personally appeared , who

first being duly sworn, deposes and says that the facts contained in the foregoing

DEFENDANT’S SWORN MOTION TO DISMISS are true and correct.

xxxxxxxxxx, Affiant
Defendant
Sworn to and subscribed before me by means of _____ physical presence or _____ online notarization, this day
of , by .

Notary Public – State of XX Commissioned Name of Notary Public

Seal:

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct electronic copy of the foregoing has been furnished

to via at this day of

, 20 .

Respectfully submitted,

s/
Name
Address
Email
Phone Number

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