MOTION FOR NEW TRIAL

IN THE CIRCUIT COURT OF THE SEVENTH  JUDICIAL CIRCUIT 

IN AND FOR VOLUSIA COUNTY, FLORIDA

 

MOTION FOR NEW TRIAL

COMES NOW, Defendant PERSONA, pro se;, and pursuant to Rules 3.580, 3.590, and 3.600, Florida Rules of Criminal Procedure, respectfully requests that this Honorable Court grant a new trial in the above-styled cause. As grounds for this Motion, Defendant states as follows:

PRELIMINARY STATEMENT

  1. In this motion, the Defendant, PERSONA, will be referred to as “Defendant”. The Plaintiff, the State of Florida, will be referred to as the “State”. 
  2. Defendant files this Motion to ask for New Trial on the ground that substantial rights of the Defendant were prejudiced when the key witness in the case deleted substantial evidence, which was crucial to the case. For that reason, the said evidence was never used in the case. 

STATEMENT OF JURISDICTION

  1. Jurisdiction is proper since this Court gave the Judgment convicting Defendant and gave Defendant a sentence accordingly. 

STATEMENT OF RELEVANT FACTS

  1.  Defendant was convicted and sentenced by this Court on or about [ENTER DATE].
  2. In the pendency of the trial, Detective , from the Jacksonville Sheriff’s Office (JSO) (hereinafter “Det. Vought”) was the key witness and chatter in this case. Det. Vought, in a deposition, admitted to deleting key evidence of an Internet Crimes Against Children (ICAC) Gmail account, which was the only way to authenticate that there was an email exchange. Further, Det. Vought was off-duty as shown on the time-card and has since lost his cell phone. Therefore, the communication could not be authenticated.  
  3. Defendant’s former attorney also failed to point out to the jury that the evidence from the said key witness was deleted. The Court therefore lacked an opportunity to consider this fact.  

Particulars of the facts that were not presented to the jury

  1. Det. Vought was not in the Sting House when setting up the Gmail account and Craigs List ad. The IP address he used was in Jacksonville. He did not use the secure ICAC servers as required for all communication during the operation.
  2. Det. Vought disobeyed the judge’s order to not use or turn on the ICAC laptop before turning it over to the defense for inspection. See Rick Green’s testimony. 
  3. Det. Vought deleted over 100 ICAC case files including one with the name Brooks Mitchell and date of 3/13/2015 from the ICAC laptop just before he turned it over to defense. See Rick Green’s testimony.
  4. Det. Vought deleted the internet history from the ICAC laptop after being told not to by the judge. See Rick Green’s testimony.
  5. Det. Vought removed all the passwords from his police laptop after being told not to by the judge. See Rick Green’s testimony.
  6. Det. Vought was unable to provide his ICAC cell phone and text after the judge ordered it to be turned over to the defense. See Rick Green’s testimony.
  7. Det. Vought lied under oath about his on-duty status at 11:15PM on 03/12/2015 during text/chat, per deposition and timecard.
  8. Det. Vought did not attend ICAC training on 3/9/2015 as stated in his deposition. 
  9. Det. Vought did not receive or read the mandatory ICAC Operation of Standards Manual as per deposition. In fact, he had not even seen it until 3 years later at his deposition in this manner. 
  10. Det. Vought did not remember who emailed him to work this operation, per deposition
  11. Det. Vought did not know who his ICAC TEAM LEADER was, per his deposition.
  12. Detective Lily Efird, of the Volusia County Sheriff’s Office (VCSO), Det. Vought’s TEAM LEADER, did not know Det. Kelly Vought, per Det. Efird’s deposition
  13. Det. Lily Efird was not trained or part of the ICAC Task Force but was appointed as the TEAM LEADER.
  14. Det. Vought did not know who his ICAC supervisor was, per his deposition. 
  15. Det. Vought did not submit a written police report or author any reports in this case, as per the deposition.
  16. Det. Vought turned over highly sensitive and confidential information and this entire case file to the United States Coast Guard (USCG) without ICAC or JSO permission, per his deposition.
  17. Det. Vought was not listed to work on any personnel assignments for the Sting Operation, per the signed Order of Operation.
  18. Det. Vought did not provide the entire chat/text to the ICAC supervisor as required by Operation Standards, per the deposition & Standards.
  19. The Chain of Custody was broken by Det. Joe Riley, who was the head forensic expert at VCSO. Det. Riley was never listed on the COC form.  (COC form & Riley’s Deposition Page 8 lines 22-25 & page 9 lines 1-25).
  20. There is No “Affiliate agreement” for this operation between VCSO and JSO including any agreement for Det. Kelly Vought to work the week of 3/9/2015- 3/16/2015. See FOIA request.
  21. It was never mentioned by the defense to the jury about the discrepancy between the emails entered from the State and the emails from the Craigs List Server that was deposed by the defense. The emails admitted from the State were called a fraud by the defense’s forensic expert Rick Green under sworn testimony. There is no way to authenticate the text since the ICAC cell phone has gone missing and there is no way to authenticate the email threads since Det. Vought deleted the emails and entire Gmail account. By his own words. “That account is — it’s no longer in existence.” 

LEGAL ARGUMENTS

There was insufficient evidence to hold the Defendant guilty

A new trial may be granted if “[t]he verdict is contrary to law or the weight of the evidence.” Thomas v. State, 574 So.2d 160 (Fla. 4th DCA 1990). In Thomas, the court indicated that the provision in the rule that a new trial may be granted if the “verdict is contrary to law” means that the insufficiency of the evidence is a proper basis for that relief. See State v. Andrews, 820 So.2d 1016, 1021 (Fla. 4th DCA 2002) (“`In reviewing a motion for a new trial, the trial court must consider both the weight and sufficiency of the evidence.'”) (quoting State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994)); State v. May, 703 So.2d 1097, 1098 (Fla. 2d DCA1997) (“A new trial motion is made pursuant to rule 3.600 and may be based on two grounds: (i) the legal sufficiency of the evidence or (ii) the weight of the evidence. Fla. R. Crim. P. 3.600(a)(2).”); Thomas v. State, 574 So.2d 160, 160 (Fla. 4th DCA 1990).

“Sufficiency of evidence” is a test of whether the evidence presented is legally adequate to justify the verdict. See State v. Andrews, 820 So.2d 1016, 1021 (Fla. 4th DCA 2002).

In the instant action, Defendant avers that the insufficiency of evidence was created by the fact that Detective Vought deleted pertinent evidence contained in the Internet Crimes Against Children (ICAC) Gmail account, which was the only way to authenticate that there was an email exchange. Further, Det. Vought was off-duty as shown on the time-card and has since lost his cell phone. Therefore, the communication could not be authenticated.  Further, Defendant’s former attorney failed to point out that Det. Vought had deleted the said account, and instead, chose a different strategy. It follows; insufficient evidence was presented before the Court in that regard. 

CONCLUSION

There is prejudicial error in that the Defendant’s substantial rights were denied because pertinent evidence in the case was not presented to the jury. As alleged hereinabove, the evidence that was deleted by Det. Vought would have gone a long way in influencing the verdict of the Court.  

WHEREFORE, the Defendant respectfully requests this Court to enter an order:

  1. Ordering a New Trial;
  2. Appointing counsel for Defendant;
  3. Clearing Defendant’s name from any criminal database;
  4. Expressly permitting the defendant to reserve the right to amend this Motion; and
  5. Awarding any such other and further relief as this Court deems just and proper.


Respectfully submitted this _______________ day of ______________, 2022

 

OATH

 

Under penalties of perjury, I Persona declare that I have read the foregoing motion and that the facts stated in it are true. I do certify that I understand the English language and can read and write in English. I have read this motion and I do understand this motion. I shall use the email system for communication all correspondences regarding the instant case. I do certify I presented copies to the clerk of court. I respectfully ask the clerk to make copies and to deliver to ALL concerned parties. 

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certifies that the foregoing Motion for a New Trial has been served upon the State of Florida by mail, email/efiling or personal delivery a copy of the same to the office of Assistant State Attorney Erica B. Cane in the Volusia County Courthouse, and the prosecutor Kevin Sullivan. 

 

[Insert address of the 7th Judicial Circuit Courthouse and State attorney’s office here]

 

[Insert Persona’s address here]

 

Respectfully submitted this _______________ day of ______________, 2022

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