Justice for Richard: Rich's Recycled Bikes & More
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In 2013, Richard was the victim of a series of egregious Abuses of Power; all of which stemmed from his Former Defense Attorney failing to inform him or the Court of an Actual Conflict of Interest with Respect to the Concurrent Representation of Clients.

INTRODUCTION

Hello all, my name is Michael J. Tomaso and I am the Assistant Manager at RICH’S RECYCLED BIKES & MORE in Port Charlotte, Florida; which is owned and managed by my mother, Gloria J. Tomaso; and where my brother, Richard S. Tomaso is our Bicycle Mechanic. While we have been in business in this location since 2012; Richard has been repairing bicycles since 1976. My family and I relocated to Charlotte County, Florida from Iselin, New Jersey in 1978 and we have been full-time residents ever since.  From 1986 until 1995, I was a Code Compliance Officer, a Videographer and a Video Court Reporter for Lee County (Florida) Government; in which many of my colleagues were either former and/or retired law enforcement officers; and were I became very well-versed in the understanding and interpretation of both the Florida Southern Standard Building Code and the Florida Statutes.  I am also known in the entertainment field for having played many small, but iconic roles in classic motion pictures on a continual basis after graduating from high school; all of which have unwittingly (albeit, humbly) brought me international renown. Regardless of how I am known; those who know me well enough; also know I that am universally known for always doing the right thing in any given situation, especially when it involves a grave injustice and/or the oppression of the Civil and/or Constitutional rights of another; regardless of how well I may or may not know that person and without any regard as to how much it may end up costing me, personally.

Unfortunately, the person whose Civil and/or Constitutional rights that are being oppressed, this time; just so happens to be my brother, Richard.

Accordingly, the purpose of this Funded Justice Campaign is to not only ensure that Richard’s side of the story can finally be told; but to also raise funds in an effort to not only recoup all of what we have previously paid Richard’s former DEFENSE COUNSEL; who, unbeknownst to us at the time; was unethically concealing the existence an actual conflict of interest; but to also hire new counsel (or counselors) in an effort to redress an egregious miscarriage of justice that directly stemmed from a series of unethical and unlawful abuses of power that were engaged upon by Richard’s former DEFENSE COUNSEL as an Officer of the Court and other State Actors; in a concerted effort to conceal from both Richard and the Trial Court the fact that a State Witness and a Criminal Defendant were both being concurrently represented by the same law firm; with respect to the intentional denial of Richard’s the Constitutional right to Due Process and Effective Assistance of Counsel that is also conflict-free; as guaranteed to every American citizen by the United States Constitution; and also in an effort to ultimately redress both a personal and a social injustice which had directly stemmed from an abuse of power in connection with a series of unfortunate incidents; all of which commenced in May of 2013 with a traffic accident involving my brother, Richard which was caused by the reckless driving of a then 19 year-old male (hereinafter referred to as “LPC”).

Unfortunately, the criminal defense attorney (hereinafter referred to as “DEFENSE COUNSEL”) that my mother, Gloria had hired to defend Richard in the criminal charges which stemmed from the accident; was also concurrently representing LPC on felony drug possession (morphine) and concealed weapons charges in connection with LPC’s arrest which had occurred several weeks prior on February 28, 2013 in Desoto County, Florida; and DEFENSE COUNSEL had failed to disclose this particular fact to Richard or to the Trial Court at any time prior to, throughout the duration of or at any subsequent time after DEFENSE COUNSEL’s representation of Richard had ended.

Subsequent to DEFENSE COUNSEL'S discovery of the actual conflict of interest which was indeed had between Richard and LPC; DEFENSE COUNSEL had persuaded Richard to change his initial Plea of “not guilty” to “no contest”; by affirmatively misadvising Richard that while he had the right to go to trial; that DEFENSE COUNSEL would not be permitted to use any favorable evidence in Richard’s defense at trial, no matter how material or exculpatory, including the Discovery deposition of an independent witness (hereinafter referred to as “NSC”); which clearly established that it LPC’s own reckless driving that was the actual cause of the accident by “driving like a fool and cutting Richard off at the last second.”

Because of the actual conflict of interest which indeed existed between LPC and Richard; DEFENSE COUNSEL had to avoid a trial at all costs; because once he placed LPC on the stand and began to cross-examine him at trial in Richard’s defense by eliciting testimony that LPC had committed reckless driving and perjury; DEFENSE COUNSEL would have then violated the attorney-client privilege which indeed existed between LPC and DEFENSE COUNSEL as another current client of his firm. On December 9, 2013, Richard entered a Plea of “no contest” based exclusively on the misadvice of DEFENSE COUNSEL and Richard was sentenced to one year and one day in the Florida Department of Corrections; followed by 36 months of supervised probation; all of which has consequently resulted in great financial hardship for my family and I; as we have been forced to take much from both the business and from our own personal finances in an effort to hire attorneys to appeal Richard’s convictions and to keep the business open.

To my family, friends and colleagues, old and new and near and far who did not know about any of this; please understand that this has been very painful and embarrassing for my family and I; even though we have always known for a fact that Richard has not done anything wrong. Most importantly, the reason why my family and I have kept this quiet for the past three years; was because we truly believed that the justice system would work in Richard's favor; as long as we made a good faith effort in petitioning the State Court and by simply presenting them with all of the favorable evidence in our possession at the time that was both material and exculpatory in an effort to overturn Richard’s convictions; all of which that Richard's former DEFENSE COUNSEL had previously misadvised Richard was “inadmissible” or in the alternative; that DEFENSE COUNSEL had simply withheld from Richard, altogether; but the State had simply later denied Richard’s petitions for Post-Conviction Relief by alleging that Richard’s claims for relief on the grounds of an actual conflict of interest were “legally and/or insufficiently pled” even though they indeed, were.

For example, Richard raised twelve grounds for relief pertaining to allegations of Ineffective Assistance of Counsel and Involuntariness of Plea.  Accordingly, the Trial Court was required to either: (a) attach any evidence in the official record which refuted any or all of Richard's allegations in support of his twelve claims for relief, and/or in the alternative: (b) to attach any case law that demonstrated that Richard was entitled to no relief in connection with any or all of his twelve claims.  The Trial Court did neither.  Finally, the Trial Court then used the wrong case law in support of its denial of Richard's petition; even though he was entitled to an evidentiary hearing without the necessity of any further amendments; especially in connection with his allegation of ineffective assistance of counsel that specifically pertained to the actual conflict of interest which indeed existed between Richard and LPC; as concurrent clients of the same law firm.

Furthermore, with respect to Richard's allegations of Involuntariness of Plea, the State dismissed those allegations by simply stating, in so many other words or less, that Richard should have known that DEFENSE COUNSEL was lying to him; and that DEFENSE COUNSEL had no obligation, whatsoever to inform Richard of any of the consequences associated with the entering of his Plea of "no contest", prior to Richard doing so.

Naturally and of course, the State had to deny Richard’s Petition for Post-Conviction Relief at all costs, because his allegations of "Ineffective Assistance of Counsel also implicated a State Prosecutor; who also knew that DEFENSE COUNSEL was concurrently representing both LPC and Richard from the very start; that LPC was in violation of his pre-trial release (State supervision) in connection with his previous arrest for felony possession of a controlled substance (morphine), possession of paraphernalia and carrying a concealed firearm by associating with his best friend and witness, GWO III, a known drug user and opiates addict; and that LPC had also subsequently filed a fraudulent insurance claim by and through his grandmother in connection with the damages to his vehicle for an accident which was indeed caused by LPC’s own reckless driving; and that said claim was submitted for payment by Richard’s own insurance company as an “at fault” accident – two months prior to entering his Plea of “no contest” and being deemed “legally responsible” for the accident.

Of course, an Appeal followed through a well-experienced Appellate Attorney at a cost of approximately $10,000.  However and also of course, the Appellate Court Denied Richard's Appeal per curiam and without rendering an opinion, which means no further Appeals could be filed.  The Appellate Attorney that we hired was just as surprised as we were by the Denial; because while no Appellate Attorney cannot guarantee success; she truly believed that Richard had a better than average chance at having the requested relief being granted by the State Appellate Court.

However, and Nonetheless, it is profoundly believed that the reason why Richard's Appeal was Denied, was because it also implicated State Actors who had engaged in the unlawful practice of prosecutorial misconduct [1]; which included, but was not limited to; the fact that they were all fully aware that there was an actual conflict of interest which indeed existed between Richard and LPC from the very start.

For example, in Brady v. Maryland, 373 U.S. 83 (1963); which was a landmark United States Supreme Court case which established that the Prosecution must turn over all evidence that could potentially exonorate a Criminal Defendant (exculpatory evidence) to DEFENSE COUNSEL; even if said disclosure of said evidence to the defense would essentially torpedo the Prosecution's case against a Criminal Defendant.

However, what makes this a most unusual - and egregious circumstance - is the fact that there is material evidence which strongly suggests that Richard's former criminal DEFENSE COUNSEL and an Assistant State Attorney had apparently colluded on their efforts to withhold or to otherwise conceal favorable evidence from both Richard and the Trial Court that was both material and exculpatory; and for no reason other than to conceal the fact that the alleged "victim", LPC and Richard were both being concurrently represented by DEFENSE COUNSEL's firm; to conceal the material fact that LPC's reckless driving was indeed the cause of the accident; and to also conceal the fact that LPC was in violation of his State supervised, pre-trial release in connection with his February 28, 2013 arrest in Desoto County, Florida for felony possession of a controlled substance (morphine), possession of paraphernalia and carrying a concealed firearm by associating with his "best friend" and witness GWO III, a known drug-user and opiates addict.

It is very hard for my family and I to ask for financial help because all of our lives we were always the family that other people had always been able to go to, whenever they needed help with their own issues.

Nonetheless, we must now do so in an effort to hire a new attorney (or attorneys) for the purposes of redressing this issue by getting Richard’s convictions overturned at the Federal level on the grounds which include, but are not limited to, Civil Rights and Constitutional Law violations; but also for the purposes of representing Richard in the filing of several civil lawsuits in connection with false statements made to law enforcement authorities, Fraud, Theft by Deception and Fraud in connection with the Filing of a False or Fraudulent Insurance Claim.

If you are willing and able to donate $5, $10 or even $20 or more and would be so kind as to also share my Campaign; it would be so very much appreciated. If you cannot donate; then all that I ask is that you simply share my Campaign, so that Richard’s side of the story can finally be told. By doing so, perhaps an attorney experienced in Civil Rights and/or Constitutional Law will step forward and would be willing to take Richard’s petition for relief to the next level; in an effort to assist him in redressing the difficult legal position that he was consequently placed in as a direct result of his former DEFENSE COUNSEL’s dishonesty and unethical conduct.

As for my friends and fellow colleagues in the entertainment field in which whom I have previously discussed this matter with and who had subsequently offered to help whenever I was ready to ask for it; now is the time to pass this story along to the powers-that-be in both the media and in the entertainment field - in an effort to bring a most horrendous example of an egregious miscarriage of justice up front and center in diligent effort to ensure that what has happened, here to my family and I; cannot ever happen again to anyone else.

Naturally and of course, I am very confident that with your generous help by either making a financial contribution and/or by sharing this Campaign with others; which will hopefully enable me to hire the right attorneys for the job - that justice will finally be served for my brother, Richard.

After all, it is my profound belief that the only thing necessary for injustice to prevail is for the good citizenry to do nothing.

HERE IS A CHRONOLOGY OF THE FACTS:

On May 7, 2013, my brother, Richard was involved in a traffic accident with a then 19 year-old male (hereinafter referred to as “LPC”); as he and our mother, Gloria were on their way home from work at RICH’S RECYCLED BIKES & MORE and traveling in separate vehicles. Two deputies (hereinafter referred to as “DFC JEB” and “DFC DS”) and one Supervisor (hereinafter referred to as “CPL RC”) with the Charlotte County Sheriff’s Office (hereinafter referred to as “CCSO”) responded on scene. The alleged “victim”, LPC and LPC’s “best friend” and witness (hereinafter referred to as "GWO III"), provided recorded statements to DFC DS indicating that Richard allegedly run his vehicle off of the road and intentionally rammed the back of LPC’s parked vehicle.

DFC JEB stated in his Affidavit of Probable Cause (hereinafter referred to as “APC”) that Richard’s mother, Gloria had informed DFC JEB that while she was in her vehicle and ahead of Richard on Elmira Boulevard at the time the accident occurred; that she had observed in her rearview mirror that she had seen LPC’s car pass Richard and then saw Richard stop; but had no idea that Richard and LPC had collided, so she never stopped.

However, after DFC JEB had spoken with LPC and witness, GWO III, DFC JEB alleged that Richard had committed the charged offenses without question and without compromise and Richard was arrested; thus giving rise to Case No. 13-841-F. DFC JEB also stated in his APC that an independent witness (hereinafter referred to as “NSC”), who had left the scene before CCSO deputies had arrived as he was purportedly on his way to Tampa, Florida; was later contacted over the telephone [2] regarding his version of events as to how the accident occurred between LPC and Richard; and that NSC had allegedly told the same story as LPC's "best friend" and witness, GWO III.

At no time during this incident or at any subsequent time, after Richard’s arrest did DFC JEB, DFC DFC DS, CPL RC or anyone else from the CCSO ever take a recorded or written statement from Richard regarding his version of how the accident occurred, nor was he ever read his Miranda rights. Also, notably, no citations were ever issued and no crash report was ever prepared.

While Richard was admittedly dazed and upset after the accident occurred; Richard has always maintained the fact that he never made any of the statements that DFC JEB had alleged that Richard had supposedly made in his APC. More specifically, Richard never admitted to DFC JEB or anyone else at the scene that he purposely hit LPC’s front driver’s side door as he drove away. Richard maintains that he was upset and angry because “it (how the accident occurred due to LPC’s reckless driving) was so stupid”; a material fact which was later confirmed by independent witness NSC [3] in his Discovery deposition that was taken by Richard’s former DEFENSE COUNSEL in the presence of the Assistant State Attorney (hereinafter referred to as “SJP”); in which NSC which clearly established the material fact that it LPC’s own reckless driving that was the actual cause of the accident [4] by “driving like a fool and cutting Richard off at the last second.”

Richard was also never provided with the routine opportunity to exchange driver (insurance) information with LPC at the scene or at any subsequent time, after; because LPC had falsely accused Richard of “road rage”; by telling deputies that Richard was just some “crazy person” that had randomly “attacked” LPC by running his car off the road and ramming LPC’s car, “repeatedly” for no reason.

DFC JEB also stated in his APC that there was only one set of tire tracks in the grass that matched the tires on Richard’s car; which sustained the material fact that Richard had tried to brake in an effort to avoid a collision with the rear of LPC’s vehicle; a material fact that was corroborated by State Witness, NSC [3] several months later during his Discovery deposition that was taken by DEFENSE COUNSEL on September 30, 2013; and also thus refuting DFC JEB’s theory in which DFC JEB had concluded in his investigation that “Richard had intentionally and threatened by act to do violence to LPC” and that “Richard had also (purportedly) had the ability and carried out the threat creating a well-founded fear in LPC” by “purposely driving his vehicle into the rear of LPC’s vehicle while he (LPC) was sitting inside”.

Regardless, DFC JEB further stated in his APC that the fact that there were tire tracks in the grass from Richard’s car had purportedly proven that LPC’s car was allegedly stopped at the time of the collision; and had also purportedly (sic) “disproven” Richard’s story that LPC’s vehicle had cut Richard off, whipped in front of him and then had suddenly applied his brakes; thus causing Richard to slam on his brakes and subsequently colliding with the rear of LPC’s vehicle.

However, DFC JEB’s statement regarding the reasoning in support of his theory, here is not only incorrect, but is also completely contradictory; because if Richard had intended to ram into the back of LPC’s car intentionally as alleged; Richard would not have attempted to brake as later corroborated by an independent State Witness (hereinafter referred to as “NSC”; thus causing the skid marks in the grass that DFC JEB had specifically referred to in his APC.

If LPC had, in fact, had time to allegedly pass Richard with plenty of enough time to spare for him to place his vehicle in park and to also apply the emergency brake prior to Richard pulling off the road and ramming the rear of LPC’s vehicle (at least according to what LPC stated during his Discovery deposition with respect to what he told law enforcement officials, that day regarding his version of the facts of how the accident had allegedly occurred); there would have been four tire ruts made in the grass adjacent to the road from LPC’s vehicle; due to the inertia of being struck from behind by another vehicle at 35 m.p.h. or more; thus sustaining the material fact that LPC’s vehicle was still in drive at the time of the crash (as corroborated by the testimony of independent State Witness, NSC [3]); which would have ultimately resulted in damage to LPC’s vehicle that would have risen to the level of catastrophic proportions; as well as also resulting in serious bodily injury to LPC ; but yet LPC did not report any injuries at the time that the accident had occurred; nor did he make any claim for injuries at any subsequent time, after; in spite of being struck from behind while his car was allegedly in park and at a complete stop with the emergency brake applied.

However, in reality, Richard had gone into the grass in an effort to avoid a collision, but LPC had also pulled over into the grass at the same time that Richard did, thus explaining why the skid marks left by the tires on Richard’s vehicle as he attempted to brake were in the grass adjacent to the road, and not on the road, itself.

During the accident, Richard’s vehicle rested in a wet grassy area alongside the roadway. The accident occurred in the immediate vicinity of the residence of LPC’s “best friend” and witness, GWO III, a known drug-user and opiates addict.  GWO III was outside of his residence at the time of the incident standing right next to independent State Witness NSC in the driveway, and it appeared that GWO III knew LPC. LPC then got out of his vehicle; leaving the driver’s side door partially open and ran up the driveway to where GWO III and NSC were standing. Richard then got out of his vehicle and yelled out to LPC: “What was that!?”  Richard knew that GWO III had a reputation for involvement in the unlawful use, sale or distribution of narcotics. Richard also knew that GWO III’s father also possessed at least one firearm. Because of LPC’s erratic driving that led to an accident, in combination with the exchange of words that ensued immediately after the accident, along with the possible involvement of GWO III and his father; Richard, already dazed and upset from the crash, became fearful and wanted to leave the scene to call the police from his residence located a half a mile further from the scene of the accident; because he did not own a cellular phone. When Richard attempted to do so, his vehicle had unintentionally fishtailed in the wet grass and veered at an angle and sideways into LPC’s open driver’s side door; in which the edge of LPC’s front driver’s side door had caught on the seam between the fender and the passenger’s side front door on Richard’s vehicle. At no time did Richard possess the requisite intent to commit an aggravated assault or the intentional act of criminal mischief as alleged by DFC JEB in his APC.

Furthermore, In spite of the fact that the incident was apparently deemed a crime scene and not an accident; LPC, as well as a few other people in plain clothes that were apparently friends of either LPC’s or GWO III’s; were all allowed to approach and enter LPC’s vehicle several times during the purported investigation at the scene; while Richard was barred from going anywhere near his vehicle or his mother, Gloria and his brother, Michael; who were also on the scene; and neither vehicle was searched or impounded after the purported investigation was concluded and Richard was taken to jail; based exclusively on the false, misleading and defamatory per se statements of both the alleged "victim", LPC and his "best friend" and witness, GWO III that were made with actual malice [5] to law enforcement authorities [6]; and were uttered by LPC and GWO III with the exclusive intent to conceal the material fact that not only was LPC's reckless driving the actual cause of the accident,; but to also conceal the fact that LPC was in violation of his State supervised, pre-trial release in connection with his February 28, 2013 arrest in Desoto County, Florida for felony possession of a controlled substance (morphine) possession of paraphernalia and carrying a concealed firearm [7]; by associating with GWO III, a known drug-user and opiates addict; in which CCSO deputies had, nonetheless, acted and relied upon without question and without compromise.

When Richard had asked the CCSO Supervisor that was on scene for the reason as to why he was being arrested; CPL RC told him that after listening to both LPC’s and GWO III’s accounts as to what they said had allegedly occurred; that there was “no way that it (the accident) could have happened the way that Richard said that it did”.

On May 13, 2013, Richard’s mother, Gloria hired DEFENSE COUNSEL's law firm to defend him against the criminal charges that he was now facing for an accident that was caused by LPC. Based upon Richard’s description of the accident, DEFENSE COUNSEL explained to Richard that an accident reconstructionist would be essential to the defense theory. DEFENSE COUNSEL proposed utilizing an expert (hereinafter referred to as "HA") that was personally known to DEFENSE COUNSEL's firm for the initial investigation. Richard agreed to utilize the expert.

Prior to the May 7, 2013 incident, LPC was arrested for felony possession of a controlled substance, possession of paraphernalia and carrying a concealed firearm in DeSoto County, Florida on February 28, 2013. Richard advised DEFENSE COUNSEL of the arrest; and also continued to subsequently provide DEFENSE COUNSEL with evidence that was obtained from LPC’s public Facebook account; in which LPC had indicated that he was employed as a Licensed Insurance Agent/Customer Service Representative with an insurance company located in Venice, Florida which was owned and operated by his maternal grandmother; where LPC had also indicated that his screen name on Twitter was “designerdrugkid ; and where LPC had also made a derogatory post about CCSO Sgt. Mike Wilson; specifically pertaining to his death which had previously occurred the line of duty on August 5, 2013. In addition, Richard had also disclosed to DEFENSE COUNSEL his knowledge of both LPC’s and GWO III’s drug reputations and of Richard’s belief that GWO III and LPC also knew one another.  Michael also provided DEFENSE COUNSEL with a voluminous amount of Incident/Call-Out Reports; all of which were obtained from the CCSO through a Chapter 119 Public Records Request; which sustained the fact that CCSO Deputies had been previously dispatched to GWO III's residence numerous times in response to complaints of domestic disturbances and/or drug-related activity.  After Richard and Michael had informed DEFENSE COUNSEL of all of the foregoing facts and provided him with all of the evidence that he had, thus far in support, thereof; DEFENSE COUNSEL explained that his firm had an office located in DeSoto County, Florida and that he would investigate the charges against LPC; thus indicating when and explaining how DEFENSE COUNSEL had discovered the fact that his law firm was concurrently representing LPC and Richard. However, DEFENSE COUNSEL never brought up the issue again at any subsequent time, after his discovery of said concurrent representation.

On May 23, 2013; Stuart Allen & Associates, Inc., a collection agency for Farmer’s/Bristol West Insurance Companies; faxed documentation to the 20th Judicial Circuit of the Florida State Attorney’s Office on May 23, 2013 in connection with Richard’s criminal action involving LPC; which stated that “at this time we are requesting restitution as a condition of sentencing”; thus clearly indicating Stuart Allen & Associates, Inc. had already made the determination that RICHARD would be deemed automatically guilty by the Court; a determination which was so very obviously based exclusively on the fact that the alleged “victim”, LPC and his grandmother had advised their insurance carrier that Richard had, albeit falsely, “attacked him in a random fit of road rage” and that LPC’s insurance carrier had taken the word of LPC and his grandmother without question or compromise and without even a routine investigation, because LPC was working as a Licensed Insurance Agent/Customer Service Representative for an insurance company that was owned and operated by his grandmother at the time that this accident occurred and when LPC’s claim for damages was subsequently filed with his insurance carrier. Accordingly, even the most routine of investigations conducted by LPC’s insurance carrier would have most certainly revealed that it was LPC that was indeed the cause of the accident, and not Richard. In spite of DEFENSE COUNSEL being aware of this communication from the very start; DEFENSE COUNSEL never disclosed a copy of said communication to Richard at any time during; or at any subsequent time, after DEFENSE COUNSEL’s representation of Richard had ended. Rather, said documentation was later obtained by Richard through a Chapter 119 Public Records Request with the 20th Judicial Circuit of the State Attorney’s Office.

 Three months later on August 13, 2013, the State filed Information alleging that Richard had committed an aggravated battery with a deadly weapon during an incident with alleged “victim” (hereinafter referred to as “BAM”); a then 16 year-old juvenile delinquent who was on State probation at the time that this incident occurred for previous criminal offenses; thus giving rise to Case No. 13-1491-F

The State further alleged that Richard had intentionally struck BAM with his vehicle. Notably, at no time during this incident or at any subsequent time, after Richard’s arrest did CCSO Supervisor (hereinafter referred to as “CPL RC”), the CCSO Deputy that was instructed by CPL RC, (hereinafter referred to as “DFC ML”) to place Richard under arrest; or anyone else from the CCSO ever take a recorded or written statement from Richard regarding his version of how the incident occurred, nor was he ever read his Miranda rights.

RICHARD has consistently denied any criminality; has consistently denied his alleged refusal to provide a recorded statement; and most importantly; and has also consistently denied that he had purportedly “confessed” to the commission of any crime as alleged in DFC ML’s Affidavit of Probable Cause at any time during CPL RC’s interrogation of Richard; which occurred only at the bike shop and in the presence of RICHARD’s brother, Michael, his mother, Gloria; approximately six other witnesses who were regular customers and two other CCSO Deputies (hereinafter referred to as “DFC CW” and “DFC MS”, respectively); who had initially responded to the bike shop shortly after the incident had occurred.

To the contrary, Richard alleges that on August 13, 2013, BAM and an accomplice, (hereinafter referred to as “JMS”), went to RICH’S RECYCLED BIKES & MORE, a business in which JMS had prior knowledge of the fact that is was owned and managed Richard's mother, Gloria; an elderly person over the age of sixty-five (65) as he had previously been in Gloria's shop many times prior to this incident; and had engaged in the unlawful practice of Theft from a Person sixty-five (65) Years or Older; by stealing two bicycles from the outside of Gloria’s shop. One of the bicycles was a Huffy 26” Three-Speed, Brownish in color and valued at $180; and the other bicycle was a Jamis 24” 21 Speed Mountain Bike, Purple/Bluish in color and valued at $300. Because Google was coming to take interior panoramic photos of Gloria’s shop for the internet earlier that day; and in order to provide Google with more of an unobstructed view of the shop; Richard had moved several bicycles to the outside of the building and had chained them up. Because most of those bicycles had belonged to customers and were either in for repair and/or evaluation or had been previously donated to Gloria; Gloria did not have the serial numbers for the two bicycles that were stolen by BAM and JMS. BAM’s and JMS’s theft of the two bicycles had occurred subsequent to Richard unchaining the bicycles and while he was in the process of moving them back into the shop. The theft of the two bicycles by BAM and JMS was caught on surveillance video from two different angles by a neighboring establishment, The Beacon Clinic.

Upon learning of the thefts almost immediately, thereafter; Richard drove around the area in his brother, Michael’s 1970 Chevy Nova, searching for the stolen bicycles. Richard drove at a slow rate of speed (approximately 15 miles per hour in a 35-mile per hour zone) and found both of the purported thieves, BAM and JMS, riding the stolen bicycles.

When Richard approached BAM and JMS, Richard asked them to return the stolen bicycles. Instead, BAM and JAM fled from Richard, thus engaging in the unlawful practice of Resisting a Merchant; and Richard continued to pursue BAM and JMS on the stolen bicycles at a slow rate of speed. Once they reached the end of a driveway in between two homes which were (unbeknownst to Richard, at the time) directly adjacent to a golf course, BAM jumped off of the stolen bicycle (the Jamis 24” Mountain Bike) and threw it into the path of Richard’s vehicle. Richard then ran over the stolen bicycle. BAM subsequently alleged that he was struck by the vehicle and thrown “five or six feet into the air”. BAM was then taken to a local hospital, where it was determined, however, that he had received no injuries as a result of the alleged impact and was released shortly, thereafter.

During the CCSO’s preliminary investigation, BAM alleged that he and JMS had “found the bicycles by a canal” and had “taken them because they looked like bicycles that belonged to friends”. BAM and JMS had denied stealing anything from Gloria’s shop. However, a defense witness (hereinafter referred to as “TCA”) informed the CCSO in a recorded statement that he had seen BAM and JMS with the two bikes after the theft had occurred; and that BAM and JMS had also admitted to defense witness TCA that they had just “scored them”.

Additionally, surveillance video obtained by Michael from The Beacon Clinic; had even further established that BAM and JMS did, in fact, steal the two bicycles from Gloria’s shop. Gloria, Michael and Richard were all aware of the surveillance video and had subsequently obtained a copy of said surveillance video from The Beacon Clinic at Richard’s former criminal defense attorney’s (hereinafter referred to as “DEFENSE COUNSEL”) request; and Michael then subsequently provided said surveillance video to DEFENSE COUNSEL on a thumb drive. A copy of the surveillance footage was also later provided to CCSO DFC CW by Michael in connection with CCSO Case No. 1308-11187; which had stemmed from Gloria's reporting of the thefts of the two bicycles by BAM and JMS.

During a pre-trial investigation, Richard became aware of two possible defense witnesses (hereinafter referred to as “RSM” and “ARD”, respectively“). During BAM’s Discovery deposition that was taken by DEFENSE COUNSEL in the presence of an Assistant State Attorney (hereinafter referred to as “ASA SJP”) on November 7, 2013; BAM admitted that his memory was impaired, because he had smoked a large amount of synthetic pot (K-2) and that he had also taken enough illegal narcotics to drop a plow horse on the day that this incident had occurred between BAM and Richard. BAM did, however, admit to stealing the two bicycles from Gloria’s shop, after previously telling CCSO law enforcement officials that BAM and his accomplice, JMS were never at Gloria’s shop and had "found the two bicycles by a canal"; thus establishing the fact that BAM and JMS had also engaged in the unlawful practice of Perjury by making false statements to Law Enforcement Authorities with respect to a material matter or a material fact.

In spite of the fact that BAM had admitted to stealing the two bicycles from Gloria’s shop during his Discovery deposition; DEFENSE COUNSEL never advised Richard of this material fact at any time prior to; or at any subsequent time, after Richard had entered his combined Plea of “no contest” in both cases.  Rather, Richard discovered this material fact two months after her had entered his Plea; when Gloria had obtained transcripts of BAM's Discovery deposition at her own expense and Michael sent copies of them to Richard while he was in prison.  But for Gloria's efforts in obtaining the transcripts; Richard might have never have learned that BAM had later admitted to stealing the bikes during his Discovery deposition; because DEFENSE COUNSEL never informed him of that material fact at any time prior to affirmatively misadvising Richard to change his original Plea of "not guilty" to "no contest".

Furthermore, shortly after DEFENSE COUNSEL had taken the Discovery deposition of the State’s only purported independent Witness (hereinafter referred to as “CHT”) on November 7, 2013; who was on the golf course at the time that the incident occurred; DEFENSE COUNSEL suggested that statements made by CHT during his deposition had allegedly constituted compelling evidence of Richard’s guilt; despite the fact that CHT had changed his story with respect to a material matter or a material fact; in which CHT had later testified at his Discovery deposition that he had actually seen Richard strike the bicycle and had also seen BAM on the ground under the bike, but then had also seen BAM immediately get back up; as opposed to what CHT had initially stated in his original recorded statement that was taken by DFC ML a few hours after the incident had occurred on August 13, 2013; in which CHT had initially stated that he had only heard a crash from 100 yards away, rather than having seen the crash.

However, on December 7, 2013, defense witnesses RSM and ARD provided recorded statements to a Private Investigator hired by DEFENSE COUNSEL; in which both RSM and ARD had established the fact that they had spoken with both BAM and JMS shortly after the incident, and that BAM had admitted to fabricating the entire incident because he was on currently on State probation and did not want to be charged with stealing the bicycles from Gloria’s shop. BAM’s statements clearly establish that he intended to fabricate the entire story for no reason other than to protect himself from criminal prosecution; and that BAM acted upon that intent by doing just that. BAM’s state of mind inferred his own guilt and had thus subsequently exculpated Richard from any guilt.

Accordingly, the theft of the two bicycles from Gloria’s shop by BAM and his accomplice, JMS was relevant to explain Richard’s state of mind and his subsequent actions. At no time did Richard possess the requisite intent to commit a battery. Rather, he intended to lawfully retrieve the two bicycles that were stolen from his shop by BAM and his accomplice, JMS; in accordance with §812.015(3)(a) of the Florida Statutes, specifically pertaining to Resisting a Merchant.

Shortly after Richard’s August 13, 2013 arrest in connection with Case No. 13-1491-F; DEFENSE COUNSEL; under false pretenses and with corrupt intent; had immediately sought out and ultimately succeeded in having Richard’s mother, Gloria; an elderly person over the age of sixty-five (65); to subsequently retain DEFENSE COUNSEL’s firm once again to also represent RICHARD in Case No. 13-1491-F; in spite of the fact that DEFENSE COUNSEL was already presently laboring under an actual conflict of interest in Case No. 13-841-F in connection with a traffic accident which occurred on May 7, 2013 between RICHARD and LPC, as the alleged “victim”. At no time prior to, throughout the duration of, or at any subsequent time, after did DEFENSE COUNSEL ever disclose to either Gloria, Richard or to the Trial Court; the fact that DEFENSE COUNSEL’s firm was concurrently representing the alleged “victim”, LPC and Richard in Case No. 13-841-F throughout the entire proceedings in both cases.

Unbeknownst to Richard, Gloria or to the Trial Court, one of DEFENSE COUNSEL’s senior partners in the same law firm was actively representing LPC in his ongoing criminal case. DEFENSE COUNSEL never disclosed his firm’s concurrent representation of both LPC and Richard to Richard, Gloria or to the Trial Court at any time throughout the duration of; or at any subsequent time, after Richard’s criminal actions in Cases No. 13-841-F and 13-1491-F had ended. LPC, the alleged “victim” in Case No. 13-841-F was initially charged with felony possession of a controlled substance (morphine), possession of paraphernalia and carrying a concealed firearm in Case No. 2013-CF-120. Shortly after his February 28, 2013 arrest, the State reduced the felony offense to a misdemeanor and proceeded with prosecution in Case No. 2013-MM-146 as to possession of paraphernalia only. The simple possession case remained an open case from March of 2013 until LPC ultimately pled in March of 2014 in exchange for six (6) months of probation and community service. DEFENSE COUNSEL never disclosed to Richard, Gloria or to the Trial Court the fact that his partner, SJR was representing LPC throughout the entire proceedings at any time prior to, throughout the duration of, or at any subsequent time, after DEFENSE COUNSELS’s representation of Richard had ended.

After DEFENSE COUNSEL had subsequently learned of LPC’s pending criminal matter and the fact that his law firm was also currently defending LPC in connection with the same; and once DEFENSE COUNSEL was retained by Gloria to also defend Richard in Case No. 13-1491-F; DEFENSE COUNSEL then explained to Richard that hiring an expert reconstructionist in Case No. 13-841-F would be “inconclusive” and as such, DEFENSE COUNSEL indicated that he would not pursue the accident reconstructionalist in Richard’s defense. Relying upon DEFENSE COUNSEL’s explanation, Richard did not retain the expert. In addition, despite Richard having disclosed to DEFENSE COUNSEL his knowledge of both LPC’s and GWO III’s drug reputations and of Richard’s belief that GWO III and LPC also knew one another, DEFENSE COUNSEL now maintained that such facts were irrelevant and could not be used in support of a defense theory as to LPC’s and GWO III’s credibility in Richard's defense.

Furthermore, in spite of DEFENSE COUNSEL initially assuring Gloria (after she paid him nearly $15,000 in advance); who was understandably very upset, grief-stricken and vulnerable; and after DEFENSE COUNSEL had promised to develop a sound defense strategy for Richard and subsequently to take both cases to trial; DEFENSE COUNSEL then informed Gloria and Michael in so many words or less that because Richard is "of color"; and because all of the State's witnesses are all white Caucasians; that Richard's chances at prevailing at trial would "not be good" because a jury would perceive him (albeit, unlawfully) as being of a minority race [8]; especially when taking into consideration that he (DEFENSE COUNSEL) would purportedly not be able to use any favorable evidence or witness testimony in Richard's defense at trial, no matter how material or exculpatory; nor would the jury ever be made aware of the drug use and/or criminal histories of either of the alleged "victims" or any of the State's witnesses.

Upon Gloria hearing of this, She cried.  And there is no worse feeling in the world than seeing a family member cry.  For the first time in my life, I felt totally helpless, and there was nothing that I could do about it.  Well, at least at the time.

Ultimately, subsequent to learning of LPC’s pending criminal matter, DEFENSE COUNSEL not only minimized any possible defenses that Richard had in the first Case (13-841-F); but DEFENSE COUNSEL had also minimized any possible defenses that were to be had by Richard in his second Case (13-1491-F), as well; by affirmatively misadvising Richard into believing that material evidence in the form of surveillance video showing BAM’s and JMS’s theft of the two bicycles from Gloria’s shop; and material evidence in the form of favorable witness testimony that was elicited from RSM and ARD by a private investigator that was hired by DEFENSE COUNSEL pertaining to BAM’s state of mind at the time of the bicycle thefts – material evidence which had the potential to exculpate Richard of any criminal liability - would be inadmissible.

In fact, immediately prior to Richard’s scheduled trial date with Case No. 13-841-F involving LPC, DEFENSE COUNSEL explained to Richard that his defenses to the LPC case would essentially be moot, since the State would consolidate both offenses for the purposes of the Plea Agreement and sentencing; due to the purported legal connection between Case No. 13-841-F and 13-1491-F; in spite of the fact that each incident occurred months apart and involved different “alleged” victims, different witnesses and entirely different circumstances (the only similarity being that the “alleged” victims, LPC and BAM were both drug-users and that most of the State Witnesses were also drug-users; had criminal records and were also on some form of State probation and/or supervision).

In Case No. 13-841-F involving LPC, DEFENSE COUNSEL could not adequately represent Richard’s interests when those interests were directly adverse to another client, LPC, as the alleged “victim”. To adequately convey the defense theory, DEFENSE COUNSEL would have been required to elicit testimony in Richard’s defense at trial by alleging that LPC committed reckless driving, committed perjury and was associated with another individual, GWO III while he was on pre-trial release; whom Richard believed to be involved with illegal drugs.  By doing so, DEFENSE COUNSEL would have then violated the attorney-client privilege which indeed existed between DEFENSE COUNSEL and LPC as another current client of his law firm. These are the precise issues that DEFENSE COUNSEL either minimized or completely ignored.

Accepting DEFENSE COUNSEL’s "advice", Richard waived his right to jury trial and accepted a Plea Agreement as to all pending charges in Cases No. 13-841-F and 13-1491-F. Had Richard known that DEFENSE COUNSEL’s firm represented the alleged “victim”, LPC in an ongoing criminal matter, and had Richard also known that BAM and JMS had later admitted in their respective Discovery depositions that were taken by DEFENSE COUNSEL in the presence of ASA SJP that they had, in fact, stolen the bicycles from Gloria’s store after initially lying to CCSO law enforcement officials by claiming that they had simply “found the bicycles by a canal”; Richard would have rejected the State’s Plea Offer, would have fired his DEFENSE COUNSEL and would have insisted upon a jury trial in both cases, respectively; starting with the LPC case; with a new conflict-free defense counselor.

On December 9, 2013, on the day that Richard was to go to a trial by jury in Case No. 13-841-F in which LPC was the alleged “victim”; Richard entered a combined Plea of “no contest” in Cases No. 13-841-F and 13-1491-F, conjointly and respectively; based solely upon DEFENSE COUNSEL’s explanations as to the admissibility of evidence, regardless of how material and potentially exculpatory; Richard had mistakenly and had unfortunately believed that he had no viable defense strategies in either case.

But for DEFENSE COUNSEL’s affirmative misadvice, which was motivated for no reason other than to not only conceal from both Richard, Gloria and the Trial Court the fact that not only was there an actual conflict of interest which indeed existed between Richard and LPC in Case No. 13-841-F with respect the fact that Richard and LPC were both being concurrently represented by the same law firm; but to also conceal the fact that a fraudulent insurance claim was filed and subsequently paid two months prior to Richard entering his Plea in the first Case (13-841-F) and consequently being deemed “legally responsible” by the Trial Court for the damages to LPC’s vehicle; Richard would have, once again, rejected the State’s Plea Offer, would have fired his DEFENSE COUNSEL and would have insisted upon a jury trial in Cases 13-841-F and 13-1491-F, respectively with a new, conflict-free defense counselor.

Consequently and pursuant to a Plea Agreement that was entered into by Richard with the State Attorney’s Office based exclusively upon the affirmative misadvice that was rendered to Richard by DEFENSE COUNSEL; Richard; who had no prior criminal record; was sentenced to one year and one day in the Florida Department of Corrections; followed by thirty-six (36) months of reporting probation and to subsequently spend the remainder of his life branded as a convicted felon with the added distinction of being classified as a “violent felony offender” and thus being forever deprived of his right to vote, obtain a passport or to own a firearm; in addition to also being required to take an Anger Management course in connection with the Case involving LPC and to be drug-tested; both at Richard’s own expense; in spite of the fact that Richard (in addition to also being a non-drinker and a non-smoker) had never done illegal drugs in his life, and to make restitution for the damages to LPC’s vehicle in the amount of $3,123.35 to Stuart Allen & Associates, Inc., a third-party collection agency for LPC’s insurance carrier; in spite of the fact that Richard’s insurance company, PROGRESSIVE had already paid Stuart Allen & Associates, Inc. for the damages to LPC’s vehicle on October 9, 2013; a fact that DEFENSE COUNSEL failed to inform Richard of anytime prior to; or at any subsequent time, after entering his combined Plea of “no contest”. Richard did not file a direct appeal, because DEFENSE COUNSEL advised him that the State’s Plea Agreement would preclude Richard from having the right to do so.

CONCLUSION

While Richard was released from the custody of the Florida Department of Corrections (hereinafter referred to as “FDOC”) on July 1, 2014; Richard is not a free man.  At the most, Richard enjoys only a facsimile of freedom, a defective freedom that imperfectly resembles the real thing. After a cumulative total of thirteen (13) months behind bars, Richard also recently completed three (3) years of supervised probation with the added distinction of being classified as a “violent felony offender”; all of which commenced with his release from the FDOC.  What is now had is a convergence of multiple unfairness that unjustly leaves Richard a convicted felon; a designation that will deprive Richard of the right to vote or to obtain a passport and will shadow him throughout his life from the time he entered his Plea of “no contest” from that point forward; a Plea which was based exclusively on the affirmative misadvice of his former DEFENSE COUNSEL.

This is both a travesty and a tragedy.

According to the State, both LPC and BAM were the alleged “victims” of Richard. However, not only does all of the evidence in the form of favorable witness testimony and sworn Discovery depositions sustain the fact that it was clearly the other way around; but also the fact that it was Richard’s own former DEFENSE COUNSEL who was the one who had ultimately victimized Richard the most of all; as a direct, proximate and conclusive result of DEFENSE COUNSEL’s deception, manipulation, misinformation and affirmative misadvice that was rendered to Richard under false pretenses and with corrupt intent; and for no reason other than to conceal the existence of an actual conflict of interest that was indeed had between the alleged “victim”, LPC and a Richard in Case No. 13-841-F.  These are two cases that simply cry out for the combined Plea and Sentencing that was entered by Richard on December 9, 2013 to be reversed or to be set aside with prejudice; because it is certainly more than enough to make enlightened men and women of all ages sick – sick enough to demand that Richard be permitted to have his day in Court in both of these cases with a competent criminal defense attorney with a sound defense strategy that is conflict-free with respect to any of the alleged “victims” or any of the State’s witnesses; and most importantly, a criminal defense attorney that has only Richard’s best interest at heart, without question and without compromise; and who will do everything in his or her power to honor the fiduciary duty that is owed to Richard as the client.  Unless and until that happens, Richard will spend the remainder of his natural life with a freedom of very limited means; and no means of justice at all.  Finally, Richard wishes to make it very clear to one and all that his grievance in connection with DEFENSE COUNSEL’s former representation has nothing to do with “buyer’s remorse”, nor is it an impermissible attempt to go behind his Plea. It is about his former DEFENSE COUNSEL knowingly and willingly crossing over the line and breaking the rules as well as the law; not only by intentionally misleading and ultimately deceiving Richard in connection with his combined Plea of “no contest”, but by also intentionally misleading and ultimately deceiving the Trial Court with respect to all of the same, as well; and for no reason other than to inure to the benefit of himself, to the benefit of another client and to the benefit of another lawyer in his firm.

FOOTNOTES

[1] The Prosecutor’s role in our adversarial justice system – to obtain convictions, regardless of a defendant’s guilt or innocence – necessarily creates competitiveness in terms of winning cases. But as stated by the U.S. Supreme Court, “[W]hile he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” (See: Berger v. United States, 295 U.S. 78, 88 (1935)).  According to the Innocence Project and the Center for Prosecutor Integrity, the “foul blows” that prosecutors may strike can assume many forms, including, but may not be limited to:

Withholding or delaying the release of exculpatory evidence
• Allowing witnesses they know or should know are not truthful to testify
• During plea negotiations, overstating the strength of the evidence
• Failing to report misconduct by other prosecutors (or attorneys)

Prosecutorial Misconduct has many permutations. Beyond the more typical examples cited above, sometimes Prosecutors simply break the law themselves, using their position of authority to further their own personal interests. (Prosecutorial Misconduct: Taking the Justice Out of Criminal Justice; Prison Legal News; November 8, 2014). 

[2] Subsequent to this incident occurring between Richard and LPC; Michael was personally advised by CPL RC that (CCSO) policy prohibits the taking of witness statements over the telephone; as the law enforcement official making said inquiry has no way of knowing that they are, in fact, speaking to the actual witness in question.

[3] The inability to recall what happened can make filing a legal claim more difficult for an accident victim (Richard); especially if the negligent party (alleged "victim", LPC) is purposely lying about the stages of an accident. Hopefully, a third party (independent State Witness, NSC) also witnessed the accident and complied with an official investigation. Direct and intended misrepresentation of facts is criminally determined as fraud and this occurs much more often than many people realize. (“The Legal Consequences of Lying About Auto Accidents” by Jamaica Bell, September 10, 2013).

[4] The accident is actually determined by a standard of preponderance of the evidence, which is effectively a 51%-49% weighing of the evidence. Some evidence, such as violating the law of vehicular control (by alleged "victim", LPC), is a “heavy” fact in preponderance and is normally the controlling doctrine. (“The Legal Consequences of Lying About Auto Accidents” by Jamaica Bell, September 10, 2013).

[5] Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. 1984). In order to sufficiently establish actual malice; there must be: (a) actual knowledge of falsity by the publisher at the time of publication; or (b) ‘reckless disregard’ by the publisher of whether the statements were false. To satisfy the ‘reckless disregard’ prong, a Defamation Plaintiff must establish with convincing clarity that a Defendant: (a) entertained serious doubts as to the truth of the publication at the time of publication; or (b) possessed, at the time of publication, a ‘high degree of awareness of the probable falsity’ of said publication. To satisfy the ‘reckless disregard’ prong, a Defamation Plaintiff must establish with convincing clarity that a Defendant: (a) entertained serious doubts as to the truth of the publication at the time of publication; or (b) possessed, at the time of publication, a ‘high degree of awareness of the probable falsity’ of said publication.

[6] Fridovich v. Fridovich, 598 So. 2d 65 (1992). Fridovich, 573 So. 2d at 70[5]also affirms that they are in agreement with the observation that a qualified privilege “is sufficiently protective of (those) wishing to report events concerning crime and balances society’s interest in detecting and prosecuting crime with a Defendant’s interest not to be falsely accused”. “There is no benefit to society or to the administration of justice in protecting those who make intentionally false and malicious defamatory statements to the police”. “The countervailing harm caused by the malicious destruction of another’s reputation by false accusation can have irreparable consequences”. “We believe the law should provide a remedy in situations such as this” (Fridovich, 573 So. 2d at 70[6]). “We thus hold, as a majority of other states have held in this context, that defamatory statements voluntarily(Fridovich, 573 So. 2d at 70[7]) made by private individuals to the police or the State’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged” (Fridovich, 573 So. 2d at 70[8]).

[7] State v. Jason Stockley; 22nd Judicial Circuit Court of Missouri (2017). "The Court observes, based on its nearly 30 years on the bench, that an urban heroin (drug) dealer not in possession of a firearm would be an anomaly". - wrote Circuit Judge Timothy Wilson.

[8] Title VII of the Civil Rights Act of 1964 proscribes that it is unlawful to discriminate against any citizen on the basis of perceived race, religion, sex or national origin.

 

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