Preview
Filing # 92755904 E-Filed 07/18/2019 10:24:10 AM
1932201/4
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR INDIAN RIVER COUNTY,
FLORIDA
CASE NO. 312019CA00232
LEAH M. HUBBARD,
Plaintiff,
v.
E. CLAYTON YATES, P.A.,
Defendant.
/
DEFENDANT, E. CLAYTON YATES, P.A.’S, MOTION TO DEEM DEFENDANT’S
SECOND REQUESTS FOR ADMISSIONS TO PLAINTIFF AS ADMITTED AND
MOTION FOR SANCTIONS
The Defendant, E. CLAYTON YATES, P.A., pursuant to Rule 1.370 of the Florida
Rules of Civil Procedure, requests that this Honorable Court enter an Order to deem
Defendant's Second Requests for Admissions to Plaintiff as admitted, and, for the Court
to enter an award of sanctions for the cost associated with the pursuit of this motion, for
the reasons stated further below. 4 /
MEMORANDUM OF LAW AND ARGUMENT
I. Background
This is a legal malpractice action brought by the Plaintiff, Leah Marie Hubbard,
against her former criminal defense attorney, E. Clayton Yates, P.A. In the first underlying
criminal action, Plaintiff entered a plea of nolo contendere on April 2, 2018 to aggravated
assault with a deadly weapon and was sentenced to 181 days of community control and
one year of probation. In the second underlying criminal action, which occurred when
Plaintiff was out on bond for her initial offense, she was ordered to be confined to theCASE NO, 312019CA00232
county jail for 181 days, placed on community control for one year, and placed on
probation for one year due to her second plea of nolo contendere on April 2, 2018.
(Defendant's Second Requests for Admissions to Plaintiff, Exhibit “A”, with attachments
thereto).
To prevail on a claim of legal malpractice against a criminal defense attorney, the
Plaintiff, as part of the causation element of the cause of action, must prove by the greater
weight of the evidence that he or she was innocent of the crimes charged in the underlying
criminal proceeding. Rowe v. Schrieber, 725 So. 2d 1245 (Fla. 4th DCA 1999). Stated
differently, unless the Plaintiff demonstrates that she was actually innocent of the
underlying crimes she was charged with, she is barred from recovery in a legal
malpractice case against the Defendant. Id. The Plaintiff has failed to make such a
showing and as such the Defendant has asserted such a defense.
Also, in legal malpractice actions arising out of criminal cases, the criminal
defendant must obtain appellate or post-conviction relief as a precondition to maintaining
the action. Steele v. Kehoe, 747 So. 2d 931, 933 (Fla.1999). This is often referred to as
the exoneration requirement. Cocco v. Pritcher, 1 So. 3d 1246, 1248 (Fla. 1st DCA 2009).
The defendant must also “establish the final disposition of the underlying criminal case in
his or her favor.” Cira v. Dillinger, 903 So. 2d 367, 371 (Fla. 2d DCA 2005). Where the
defendant was granted post-conviction relief but subsequently pled no contest to the
charges, he or she cannot meet the exoneration requirement. Id. As such, the
Exoneration Defense has been asserted by the Defendant due to the Plaintiff's pleas of
nolo contendere in the underlying criminal actions.CASE NO. 312019CA00232
i. The Court Should Deem that Defendant’s Second Requests_for
Admissions to Plaintiff Be Admitted
A party may serve upon any other party a written request for the admission of the
truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to
statements or opinions of fact or of the application of law to fact, including the
genuineness of any documents described in the request. Fla. R. Civ. P. 1.370(a). The
answer shall specifically deny the matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny the matter. Id.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Id. Unless the court determines that an objection
is justified, it shall order that an answer be served. Id. If the court determines that an
answer does not comply with the requirements of this rule, it may order either that the
matter is admitted or that an amended answer be served. Id. The provisions of Fla. R.
Civ. P. 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. Id.
First, the Plaintiff's objections to Defendant's Second Requests for Admissions
(Exhibit “B”) to on the bases that they are not reasonably calculated to lead to the
discovery of admissible evidence and/or to narrow the issues is legally and factually
wrong. On July 12, 2019, Defendant propounded its Second Requests for Admissions
onto Plaintiff pertaining to her pleas of nolo contendere in the underlying criminal actions.
Defendant has sought to confirm, in accordance with Fla. R. Civ. P. 1.370 that the Plaintiff
pleaded nolo contendere to the charges, that the Plaintiff signed plea forms with the Court
pertaining to pleas of nolo contendere, and that she and read ‘and understood those
documents. The foregoing is absolutely relevant to the Plaintiffs claims that the
Defendant's negligence proximately caused her damages.CASE NO. 312019CA00232
The discovery sought in Defendant's Second Requests for Admissions is
discoverable as it goes to the very heart of this case: whether or not the Plaintiff pleaded
nolo contendere and is precluded from asserting any claims for legal malpractice under
the Exoneration Defense. The discovery sought also seeks to narrow the issues before
the Court, Nevertheless, Plaintiff objected, without a valid legal basis to do so, to all of the
requests except the one asking for her to admit her name. As such, the Requests for
Admissions comply with Fla. R. Civ. P. 1.370.
Second, the Plaintiff's argument that the requests can be objected to because the
Court denied Defendant's Motion to Dismiss is legally and factually wrong. In other words,
Plaintiff contends that the denial of the Motion extinguishes any argument or defense as
to the Exoneration Defense. That is absolutely false. The Court did not enter judgment,
in whole or in part, on the Exoneration Defense. As such, Plaintiff's basis to object is
legally and factually incorrect.
The Plaintiff's objections to Defendant's Second Requests for Admissions are
legally and factually wrong. In addition, the Plaintiff should be compelled to pay the
Defendant, i.e., the requesting party, the reasonable expenses incurred in making that
proof, including its attorney's fees. Fla. R. Civ. P. 1.370(a).
Accordingly, this Honorable Court should Order that Defendant's Second
Requests for Admissions to Plaintiff be deemed as admitted, and, award Defendant its
reasonable attorneys’ fees in pursuit of this motion.
WHEREFORE, the Defendant, E. CLAYTON YATES, P.A., respectfully requests
that this Honorable Court enter an Order deeming Defendant's Second Requests forCASE NO. 312019CA00232
Admissions to Plaintiff as admitted, award Defendant its attorneys’ fees associated with
pursuit of this motion, and, for the Court to grant all other relief it deems just and proper.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy hereof has been furnished by service through the
eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966,
leahhubbard0706@gmail.com, this _17th day of __July , 2019.
CONROY SIMBERG
Attorney for Defendant, E. Clayton Yates, P.A.
1801 Centrepark Drive East, Suite 200
West Palm Beach, FL 33401
Telephone: 561-697-8088
Facsimile: 561-697-8664
Primary Email: eservicewpb@conroysimberg.com
Secondary Email: jrubin@conroysimberg.com
By: /s/ Jeffrey K. Rubin
John A. Lurvey, Esquire
Florida Bar No. 570222
Jeffrey K. Rubin, Esquire
Florida Bar No. 420841932201/3
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR INDIAN RIVER COUNTY,
FLORIDA
CASE NO. 312019CA000232
LEAH M. HUBBARD,
Plaintiff,
Vv.
E. CLAYTON YATES, P.A.,
Defendant.
/
SS
DEFENDANT, E. CLAYTON YATES P.A.’S SECOND REQUEST FOR ADMISSIONS
TO PLAINTIFF, LEAH M. HUBBARD
TO PLAINTEF, LEA Eee
Defendant, E. CLAYTON YATES P.A., by and through its undersigned counsel
and pursuant to Rules 1.280 and 1,370 of the Florida Rules of Civil Procedure, requests
that the Plaintiff, LEAH M. HUBBARD, admit or deny the following statements within 30
days of service hereof:
4. Admit that your full name is Leah Marie Hubbard.
2. Admit that on April 2, 2018, the Honorable Cynthia Cox entered the Order of
Community Control and Order of Probation, attached as Exhibit “A”.
3. Admit that on April 2, 2018, you entered a please of nolo contendere on a
charge of carrying a concealed firearm as identified on the Order of Community
Control and Order of Probation, attached as Exhibit “A”.
4, Admit that you signed the Felony Plea Form attached hereto as Exhibit “B’.
5, Admit that you read the Felony Plea Form attached hereto as Exhibit “B”
before signing that document.CASE NO. 312019CA000232
DEFENDANT'S SECOND REQUEST FOR ADMISSIONS TO PLAINTIFF
6. Admit that your signed your initials on page 4 of the Felony Plea Form
attached as Exhibit “B”.
7. Admit that your signed your initials on page 2 of the Felony Plea Form
attached as Exhibit “B”.
8. Admit that your signed your initials on page 3 of the Felony Plea Form
attached as Exhibit “B”.
9, Admit that your signed your initials on page 4 of the Felony Plea Form
attached as Exhibit “B”.
40. Admit that your signed your initials on page 5 of the Felony Plea Form
attached as Exhibit “B”. -
41. Admit that your signed your initials on page 6 of the Felony Plea Form
attached as Exhibit “B”,
42. Admit that you signed your full name on page 6 of the Felony Plea Form
attached as Exhibit “B”.
43, Admit that Bobby D. Guttridge, Esquire fully explained teyou the contents of
the Felony Plea Form attached as Exhibit “B”. Me
14.Admit that on April 2, 2018, the Honorable Cynthia Cox entered the Order of
Community Control and Probation attached as Exhibit “Cc”.
45. Admit that on April 2, 2018, you entered a plea of nolo contendere on a charge
of aggravated assault with a deadly weapon as identified on the Order of
Community Control and Order of Probation attached as Exhibit "C”.
|CASE NO. 312019CA000232
DEFENDANT'S SECOND REQUEST FOR ADMISSIONS TO PLAINTIFF
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy hereof has been furnished by service through the
eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL,,32966, Pro Se, Leah
Hubbard, leahhubbard0706@gmail.com, on this _10th day of July, 2019.
CONROY SIMBERG
Attorney for Defendant, E. Clayton Yates, P.A.
4801 Centrepark Drive East, Suite 200
West Palm Beach, FL 33401
Telephone: (561) 697-8088
Facsimile: (561) 697-8664
Primary Email: eservicewpb@conroysimberg.com
Secondary Email: jrubin@conroysimberg.com
By: _/s/ Jeffrey K. Rubin
John A. Lurvey, Esquire
Florida Bar No. 570222
Jeffrey K. Rubin, Esquire
Florida Bar No, 42084
%,
nnereempenetyes3120190022532 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL" ™
BK: 3107 PG: 2443, 4/13/2018 11:46 AM
Filing # 70547174 E-Filed 04/11/2018 11:24:59 AM
STATE OF FLORIDA TN THE NINETEENTH JUDICIAL
CIRCUIT COURT, IN AND FOR
vs INDIAN RIVER COUNTY
CASE NUMBER _312017CF001265A XXXXX
LEAH MARIE HUBBARD
Defendant DC NUMBER K93766
ORDER OF COMMUNITY CONTROL
AND
ORDER OF PROBATION
‘This cause coming before the Court to be heard, and you, the defendant, being now present before the court, and you
having
CO entered a plea of guilty to (1 been found guilty by jury verdict of *r,
BJ entered a plea of nolo contendere to been found guilty by the court trying the case without a jury of
COUNT I CARRYING ¢ ONCEALED FIREARM.
SECTION 1: ORDER WITHHOLDING ADJUDICATION
Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on
Community Control for a period of one 1) year, followed by twelve (12) months Probation, concurrent with
‘Case Number 312017CF 0009224 ‘under the supervision of the Department of Corre subject to Flo
ja law.
SECTION 2: INCARCERATION DURING PORTION OF SUPERVISION SENTENCE **. .
It is hereby ordered and adjudged that you be:
ba) confined in the County Jail
for a term of 179 days with credit for 179 days jail time, as a special condition of supervision.
{TIS FURTHER ORDERED that you shall comply with the following standard conditions of supervision as provided by Florida
law:
(1) You will report to the probation office as directed.
Q) You will pay the State of Florida the amount of $40.00 per month, as well as 4% surcharge, toward the cost of your supervision in
accordance with s, 948.09, F.S., unless otherwise exempted in compliance with Florida Statutes,
(3) You will remain in a specified place. You will not change your residence or employment orleave the county of your residence
without first procuring the consent of your officer,
(4) You will not possess, carry or own any firearm. You will not possess, carry, or own any weapon without first procuring the
consent of your officer.
Page | of 4 Revised 07/01/17
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ky
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tBK: 3107 PG: 2444 — . — —
a
(5) Yon wil live without violating any Taw. A convietion in a court of law is not necessary for such a violation of law to constitute a
violation of your probation, community control, or any ather form of court ordered supervision, °
‘You will not associate with any person engaged in any criminal activity,
©
(7) You will aot use intoxicants to excess or possess any drugs of narcotics unless prescribed by a physician, Nor will you visit
places where intoxicants, drugs or other dangerous substances are untawfully sold, dispensed or used,
(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the
best of your ability, as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in
yout home, at your employment site or elsewhere, and you will comply with al instructions your officer may give you.
(10) You will pay restitution, court costs, and/or fees in accordance with special conditions imposed or in accordance with the attached
orders,
(11) You will submit to random testing as directed by your officer or the professional staff of the treatment center where you are
reviving treatment to determine the presence or use of aleohol or controlled substances.
(12) You will submit a DNA sample, as directed by your officer, for DNA analysis as prescribed in'ss, 943.325 and 948.014, F.S,
(13) You will submit to the taking of a digitized photograph by the department, ‘This photograph may be displayed on the
department's website while you are on supervision, unless exempt from disclosure due to requirements of s, 119.07, F.S.
(14) You will report in person within 72 hours of your release from incarceration to the probation office in Indian River County,
Florida, unless otherwise instructed by the court or department, (This condition applies only if section 3 on the previous page is
checked.) Otherwise, you must report immediately to the probation office located at 1470 Old Dixie Highway, Vero Beach, FL
32960, telephone '772)778-S015.
ON COMMUNITY CONTROL, YOU WILL COMPLY WITH THE FOLLOWING CONDITIONS, IN ADDITION TO THE
STANDARD CONDITIONS LISTED ABOVE AND ANY OTHER SPECIAL CONDITIONS ORDERED BY THE COURT:
‘
(15) You will report to your officer as directed, at least one time a week, unless you have written consent otherwise.
(16) You will remain confined to your approved residence except for one half hour before and after your approved
employment, public service work, or any other spectal activities approved by your officer. |
(17) You will maintain an hourly accounting of all your activities on a daily log, which you will submit to your officer om
request.
(18) You will submit to electronic monitoring of your location at the discretion of the Florida Department of Corrections, and
‘will reimburse the State of Florida Electronic Monitoring Trust Fund as provided by Florida Statutes Section 948.09(2) at the
current per diem rate, plus a 4% surcharge. You are responsible for the care of the equipment used for monitoring, You will |
follow all rules of the Department of Corrections governing electronic monitoring. i
(19) You will attend and complete any specialized self-improvement, counseling, or cognitive behavioral programs based on
Nientified needs and compliance on supervision if directed to do so by your probation officer.
Page 2 of 4 Revised 07/01/17 iBK: 3107PG: 2445. - a — a
SPECIAL CONDITIONS
BJ 20. You must undergo a Substance Abuse and Mental Health evaluation within 20 days and, if treatment is deemed
necessary, you must successfully complete the treatment, and he responsible for the payment of any costs incurred
while receiving said evaluation and treatment, unless waived by the court.
BJ __21. You will not possess firearms or ammunition, during the period of supervision.
BJ 22. You will be required to perform community service hours in Indian River County at 4 worksite approved by the
Department of Corrections at the rate of minimum wage per hour, in Yew of Court Costs if unable to pay. (Excluding
Cost of Investigation and Cost of Prosecution, which must be paid).
PJ 23, Youwill have no contact with the victim, Cory Hagerman, during the period of supervision.
{J 24. Youwill have no contact with the victim, Nathan Russell, during the period of supervision.
ITIS FURTHER ORDERED that you pay:
Court Costs, Fees, and Fines, as imposed at sentencing, inthe total amount of, See Charges/Costs/Fees Sheet
Payments processed through the Departmeat of Corrections will be assessed 2 4% surcharge pursuant f0 945,31, FS.
Pursuant to s. 948,09, F.S:, you will be assessed an amount of $2.00 per month for each month of supervision for the Training Trust |
Fund Surcharge.
SPECIFIC INSTRUCTIONS FOR PAYMENT: ALL MONETARY OBLIGATIONS ARE TO BE PAID IN EQUAL
MONTHLY INSTALLMENTS.
MONTHLY INSTALLMES:
Effective for offenders whose crime was committed on or after September 1, 2005, there is hereby imposed, in additional to any
other provision in this section, mandatory electronic monitoring as a condition of supervision for those who:
= Are placed on supervision for a ‘violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827.071, ors. 847.0145 and the unlawful
soxtnl activity involved a vietim 15 years of age or younger and the offender is 18 years of age or older; or
+ Are designated as a sexual predator pursuant to s. 775.215 oF
= Has previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827,071, or s, 847.0145 and the
unlawful sexual activity involved a victim 15 years of age or younger and the offender ig 18 ‘years of age or older.
You are hereby placed on notice that should you violate your probatton or community control, and the conditions set forth in
+. 948,063(1) or Q) are satisfied, whether your probation or community conttol is revoked or not revéked, you shall be placed on
electronic monitoring in accordance with F.S. 948.063,
Effective for offenders who are subject to supervision for a crime that was committed on or after May 26, 2010, and who has
been convicted at any time of committing, ot attempting, soliciting, or conspiring to commit, any of the criminal offenses listed in s.
943,0435(1)(a)1.a.(1), or a similar offense in another jurisdiction, against a victim who was under the age of 18 at the time of the
offense; the following conditions are imposed in addition to all other conditions:
(a) A prohibition on visiting schools, child care facilities, parks, and playgrounds, without prior approval from the offender's
supervising officer. The court may also designate additional locations to protect a victim. ‘The-prohibition ordered under this paragraph
does not prohibit the offender from visiting a school, child care facility, park, or playground for the sole purpose of attending a
religious service as defined in s. 775.0861 or picking up or dropping off the offender's children or grandchildren at a child care facility
or school.
(0) A prohibition on distributing candy or other items to children on Halloween; s :
costume to appeal to children, on or preceding Christmas; wearing an Easter Bunny costume, or ofber costume to appeal to children,
on or preceding Easter; entertaining at children's parties; or wearing a clown costume; without prior approval from the court. !
wearing a Santa Claus costume, or other
Effective for offenders whose crime was committed on or after October 1, 2014, and who is placed on probation or community
control for a violation of chapter 794, 8. 00,04, s. 827.071, s. 847,0135(5), or s. 847.0145, in addition to all other conditions imposed,
Page 3 of 4 Revised 07/01/17is prohibited from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory
material unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program.
Visual or auditory material includes, but is not limited to, telephone, electronic media, computer programs, and computer services,
YOU ARE HEREBY PLACED ON NOTICE that the court may at any time rescind or modify any of the conditions of your
probation, or may extend the petiod of probation as authorized by lav, oF may discharge you from further supervision, If you violate
pay of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if
adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require
you to serve the balance of the sentence,
IT IS FURTHER ORDERED that when you have been instructed as to the conditions of probation, you shall be released from
custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This
paragraph applies only ifsection 1 or section 2 is checked.)
IT1S FURTHER ORDERED that the clerk of this court file this order in the clerk's office and provide certified copies of same to
the officer for use in compliance with the requirements of law.
DONE AND ORDERED ON THIS 11" DAY OF APRIL, 20181 NUNC PRO TUNC: APRIL 2, 2018.
Af Cynthia L. Cox
n
eee
CYNTHIA L. COX, CIRCUIT JUDGE "4.
‘acknowledge receipt of a copy of this order and that the conditions have been explained to me and | agree to abide by them.
Date:
Defendant
Instructed by:
Supervising Officer
LS/mg
Page 4 of 4 Revised 07/01/17
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1
|IN-THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER
COUNTY, STATE OF FLORIDA
STATE OF FLORIDA, * GASE NUMBER(S): 312017CF000922A_
Plaintiff. ., 31204 7CF001265A,
VS.
LEAH HUBBARD,
Defendant.
Bee
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_
FELONY PLEAFORM
Aid
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&
1am entering aplea as follows: we SE
() Guilty (X) No Contest | () Kamission “
4, . MY TRUE NAME IS: _Leah Hubbard oe .
2. lam __48__ years old. ,
3, \ have completed the c le és grade in school. 5
( X )toan read, write and understand the English language.
( ) | cannot read, However, this document has been completely read and
explained to me. . , /
(+ )Leannot read or understand English. However, an interpreter speaking
my language has fully read this document to me. :
4. 1am represented by an attorney whose name is Bobby D. Guttridge” .
5. ( 4-7) | have never been found to be insane or incompetent, or admitted to or
committed to a mental health facility, and have never been.a patient in any hospital fora mental
illness, disease or defect. .
Defendant's initials fu.
"
aos
rus
4 OF
3, ( : ) | was previously found to be insane or tiicompetent, or st admitted
to or committed to a mental health facility or | have been treated ‘Tor mental health
issues.
EXPLAIN: ao
6. | am not currently under the influence of drugs or alcohol Qe
DO NOT USE ABBREVIATIONS IN
COMPLETING THIS FORM.
74 understand that | am charged.with:
: 312017CF000922A; Aggravated Assault - Deadly Weapon _
3120147CF001265A: Carrying Concealed Firearin.
8. tam entering my plea of guilty, or-no contest to the charge(s) of, or my
admission to the violation of probation 0 or community control, as4 follows! -
WS Chen od Bl2o17e F G22
as Chany oof A261 7or(Zb5
9, tunderstand that the recommendation for sentencing t to the judge by both my
attorney and the State Attorney is as follows:
/80 day Co atyda' ( Vice Cn me ty canhal tl yen Meola: UA
w theol Ady she, ME peconty fk SgbCu pap os% 2
40. Check if a negotiated plea (~42) the Court will allow me to withdraw my mt iN the
Court rejects the plea agreement,
OR : . idle
. regardless of the vec rendations 6
Check if open. in plea to the court ( )
lawyer and the State Attorney, {he court may sentence me to any level sentence, ein
the maximum sentence allowed by law.
2 Defendant's initials ¢ J we \ :
i.
{
{41. Vunderstand-another Judge may impose the sentence in this case.
«» 12, Asofthe date of this plea | have ! 77% days credit.for time served:in jail. 1AM
_ WAIVING ALL OTHER CREDIT FOR TIME ALREADY SERVED. .
13, | agree to pay restitution as follows:
understand that-if | am placed on probation or community control, the restitution will be a
condition of that probation or community control.
44, . | understand that if | am convicted of sale, possession or trafficking in drugs;
conspiracy to sell, possess or traffic in drugs; a D.U.. offense; fleeing or eluding.a law enforcement
officer, theft of a motor vehicle; or theft of any parts.or components of a-motor vehicle, my drivers
license will be revokéd by the Court. If | have any questions about this or about the length of the
revocation, |-will ask the judge or my lawyer. .
| UNDERSTAND THAT NO‘ONE CAN ASSURE ME OF HOW MUCH GAIN TIME OR ANY
OTHER FORM OF EARLY RELEASE CREDIT | WILL RECEIVE ON A PRISON SENTENCE, NOR
MY ELIGIBILITY FOR ANY FORM -OF EARLY RELEASE. ANY REPRESENTATIONS °
REGARDING THOSE ISSUES ARE NOT BINDING ON THE COURT! UNDERSTAND | WILL
NOT BE.ABLE TO SET ASIDE THIS PLEA, THE JUDGMENT OR SENTENCE AS A RESULT OF
INCORRECT REPRESENTATIONS: TO ME CONCERNING THESE ISSUES. | UNDERSTAND
THAT | SHOULD ASSUME | ILL SERVE EVERY DAY OF ANY JAIL OR PRISON SENTENCE
IMPOSED.
If| am entering a pleatoa felony charge in this case, | understand that if! am later convicted
of another felony charge in the future, the felony charge in this case could be used to give me a
much longer sentence, and possibly a mandatory sentence, in the future criminal case.
45, The Criminal Punishment Code and the score sheet have been fully explained to me
by my lawyer. | understand | may also ask the Judge about them at tlie,time | enter this plea. -
46, If | am released from jail until sentencing and | fail to appear in Court when required
or if | commit a new criminaloffense, then |-will NOT bé able to withdraw, my plea, ‘and the State will
be free to-ask that | be sentenced to the maximum possible ‘sentence. Further, | could be
prosecuted for the new crime, and for failure to appear, and be subject to contempt of cout. | also
understand that if | do not appear for sentencing, the Court may sentence me in my absence and |
may receive the maximum sentence provided by law. « .
so 3 Defendant's initials _C y an
i,17. - | understand: :
a) that the mandatory minimum penalty for the charges | am pleading to is _-
WA
and the maximum is _6 yer Doc, B seas Fine x2.
OTE: | understand that under the: Criminal Punishment Code, the statutory maximum.
penalty may not apply. The maximum possible penalty would depend on how my prior record and
present offenses are scored, and may be higher than the statutory maximum.)
48, | understand that if | am placed on probation, or community control, { must obey all
general and special conditions of probation or community control.’ “If | violate probation or
community control, even in a technical way, | can be rearrested and charged with the violation, Ata
hearing on that violation | understand: | will be tried by the Judge and not a‘jury and that the
standard of proof is. much lower than proof beyond a reasonable doubt. {f the Prosecution were to
satisfy the Court of a violation, [understand | could receive the maximum sentence provided by law
for the underlying offense. .
149, READ IN ALL CASES: The Jimmy Ryce Act
| understand if | am pleading to any “sexually violent offense” or a “sexually motivated
offense” the Jimmy Ryce Act will apply tome, dnd | can be held in confinement indefinitely after my
jail or prison sentence ends. :
J also understand that even If the offense | am entering a plea to is not a “sexually violent _
offense” or a "sexually motivated offense,” | can still be’held In confinement indefinitely after my jail
or prison sentence ends if it is determined later that | have been convicted previously of such
qualifying offense.
| understand that if | am sentenced for a sex offense that my name; address, photograph,
and other personal information may be posted on the Internet and in other public places as part ofa
community notification of where | ami living and working.
20.° [understand that no statement made in connection with this plea will be admissible in
any civil or criminal proceeding against me except as a basis for perjury.
21. | agree that there is a factual basis for the charges against me. | understand that
once the plea Is accepted by the Court, there will not be a trial orfurtherdetermination of my guilt or
innocence of these charges.
22. {understand that { have the right to be represented by a lawyer at every stage of the
. proceedings, and that if t cannot afford a lawyer, one would be appointed for me.
4 Defendant's tania.
|
|
|. 23. . Junderstand that by pleading Guilty, or No Contest, or by entering an Admission,
| am giving up the following constitutional rights: .
a) . lam giving up my right toa trial and to have my case decided by a jury or :
a judge and my right of assistance of counsel at trial. . (If this Is a violation of probation or
community control - | am giving up my tight to a hearing before the Judge).- . .
. b) ~ | am giving up my tight to confront, cross-examine and-ask questions of
the State's witnesses. so
°c) | am giving up my right to call witnesses and make them come to court
and testify for me. .
d) | am giving up my.right to. testify if | choose, and also-my right to remain
silent and not to testify or incriminate myself. | realize if I did not testify, that fact could not be
used against me. me .
e) {am giving up my right to make the State prove me guilty by: presenting
evidence. beyond a reasonable doubt. (in violation of probation or community control cases, the
standard of proof is the greater weight of the evidence.) | realize that ata trial, | would not need
to prove my innocence, or testify, or call any witnesses.
|am giving up my-right to appeal all matters connected with the judgment
and sentence, including the issue of guilt or innocence. | understand that | am not waiving my
right to appeal a void or voidable judgment and my right to review by appropriate collateral
attack.
1am not waiving my right to appeal any sentence in violation of the
“Sentencing Guidelines, or criminal punishment code, unless specifically contained within the
plea agreement. : ‘
| WISH TO GIVE UP THESE RIGHTS AND ENTER THIS PLEA.
24. No one has tricked me, coerced me, pressured me, or has made any threats
against me to get me to give up these rights and enter this plea. No one has made any
promises or representations tome, other than those in this document to get me to give up these
rights. The only promises or representations made to me are those listed in this document, and
any other promises or representations are not binding on the Court or.the Prosecution. ~
25. | specifically . oS ; .
( ) admit that | am guilty of the charge or charges | am pleading Guilty/No
Contest/or admitting.
( X) believe the plea is in my best interest even though | am innocent of the -
charge, charges, or violations; or may have defenses to them.
26. | have discussed this case.and everything in this document with my attorney, and
| amsatisfied with the representation | have received from my attorney. | have told my attorney .
all the facts and circumstances known to me about the charges. My attorney counseled and
5 Defendant's initials Awa —advised me on the nature of each charge, on any and all.lesser included charges, and on all
possible defenses that | may have in this.case. .
27. “| offer my plea freely and voluntarily with full understaiding of all the matters in
the Information/Indictment/Violation Affidavit and in this document.
28, If tam not.an American citizen, | understand that this plea could be used by the:
United States Government as a basis to deport me, prevent me from becoming a U.S. citizen,
prevent me from obtaining or retaining my alien status or prevent me from obtaining or retaining
a Permanent Resident Card (Green Card), whether or not | any adjudicated guilty or whether
adjudication of guilt is withheld, and whether the crime Is a misdemeanor or felony.
29, _ \fl amon probation or community contro! in another case, this plea can form the
basis of a violation of that probation of community control. .
30.° | understand a conviction of a crime-may cause me to lose local, State or. Federal
licenses, and can prevent me from getting certain licenses. A conviction of a felony will cause
me to lose the right to vote, and my right to own or possess a firearm or ammunition. .
31, | understand that both mandatory and discretionary fees and costs may be
imposed by the court at the time of sentencing. My attorney and | can object at sentencing to
any fees and costs. | understand that if | fail to object at the time of sentencing, | will be waiving
the ability to appeal the imposition of the fees and costs, . :
Iflam placed on probation or community control, the repayment of public defender fees,
special.public defender fees, costs, fines, surcharges and the public defender application fee,
will be a condition of my probation or community control whether or not | am adjudicated guilty.
_ Myattorney has explained all of the contents of this plea form to me. | have no questions
and | understand what! am doing. | wish to enter. my plea and not have a trial or hearing in this
case. | fully understand everything in this document. | ‘
DATED on April 4, 2018.
\ certify thatas an interpreter fluentin the _.'__language, that:
| have interpreted this document in.its entirety to the Defendant who understands the’
language. The Defendant states he/she fully
- understands the contents of this document and that he/she signed it freely and‘voluntarily. -
INTERPRETER *- Printed name. . Signature
6 Defendant's ito PMSA|, BOBBY D. GUTTRIDGE _. ,am the attorney for the Defendant. -
[ll have read the contents of this document word-for-word to the Defendant,
and explained It fully to him/her.
OR
[ X ] Ihave not read this document to the Defendant, but | have fully explained
the contents of this document to him/her. .
{ have fully explained the allegations contained, in the charging document(s). | have
explained the maximum penalty for each count pled to by the Defendant. | consider him/her
competent to understand the charges against him/her and the effect of this plea entered by this
document. Lhave explained to him/her the right of appeal and the difference between a direct
appeal and a collateral attack. | have reviewed the discovery disclosed by: the State of Florida
and discussed the issues of the case with the Defendant. | am not awaré of any physical
evidence disclosed by the State of Florida in which DNA may éxoneraté thé Defendant or if any
such evidence exists, it has been examined and determined that no further examination is
needed.
ATTORNEY
The State of Florida believes that this plea is in the best interest of the State of Florida
and therefore recommends the plea be accepted by the Court. The, State of Florida .has
discussed the plea terms with the victim and the arresting authority and they are in agreement
with the plea or have been informed of their right to appear tencing: in order to spéak with
the Court. The State of Florida is not aware of any physical nce for which DNA testing may
exonerate the Defendant. . :
E ATTORNEY
The Court determines that the plea Is freely and voluntarily entered, upon a knowing and:
intelligent waiver of the Defendant's rights, and that there is a fa ual basis for the Court to,
accept the plea to each charge and/or the violation of probation or cor unity control. The
plea is accepted. . . %
DONE AND ORDERED on April a, 2048.
3 FSLARG AR!
gu0d3y Yos SNS
felony plea form 11/02/07 at oy,
. 7 Defendant's initials: ‘3120180022531 RECORDED INT
BK: 3107 PG: 2439, 4/13/2018 11:44 AM
Filing # 70547099 E-Filed 04/11/2018 11:24:20 AM
STATE OF FLORIDA IN THE NINETEENTH JUDICIAL
CIRCUIT COURT, IN AND FOR
vs INDIAN RIVER COUNTY
CASE NUMBER _312017CF000922AXXXXX
LEAH MARIE HUBBARD m
Defendant DC NUMBER K93766
ORDER OF COMMUNITY CONTROL
AND
ORDER OF PROBATION
This cause coming before the Court to be heard, and you, the defendant, being now present before the court, and you
having
C1 entered a plea of guilty to (1 been found guilty by jury verdict of,
BI entered a plea of nolo contendere to C1 __ been found'guilty by the court trying the case without a jury of
COUNT I AGGRAVATED ASSAULT — DEADLY WEAPON
SECTION 1: ORDER WITHHOLDING ADJUDICATION
14] Now, therefore, it is ord od
control f
and adjudged that the adjud
eriod of one (1 HH
‘under the supervision of the Depart
on of guilt is hereby withheld and that you be placed on
‘1) year Probation, concurre! it with Case
SECTION 2: INCARCERATION DURING PORTION OF SUPERVISION SENTENCE «
Itis hereby ordered and adjudged that you be: .
BI confined in the County Jail
fora term of 181 days with credit for 181 days jail time, as a special condition of supervision.
TPIS FURTHER ORDERED that you shall comply with the following standard conditions of supervision as provided by Florida
law:
(1). You will report to the probation office as directed,
You will pay the State of Florida the amount of $40.00 per month, as well as 4% surcharge, toward the cost of your supervision in
@
accordance with s. 948.09, F.S., unless otherwise exempted in compliance with Florida Statutes.
@) You will remain in a specified place, You will not change your residence or employment or Teave the county of your residence
without first procuring the consent of your officer.
(4) You will not possess, carry or own any firearm. You will not possess, carry, or own any weapon without first procuring the
consent of your officer.
Page 1 of 4 Revised 07/01/17
HE RECORDS OF JEFFREY R, SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER COFE-
i
|BK: 3107 PG: 2440 tN
(5) You will live without violating any law, A conviction in a court of law is not necessary for such a violation of law to constitute a
violation of your probation, community control, or any other form of court ordered supervision.
(6) You will not associate with any person engaged in any criminal activity
(7) You will not use intoxicants to excess or possess any drugs or narvotics unless presotibed”by a physician, Nor will you visit
places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used,
(8) You will work diligently ata lawful occupation, advise your employer of your probation status, and support any dependents to the
best of your ability, as directed by your officer.
(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in
your home, at your employment site or elsewhere, and you will comply ‘with all instructions your officer may give you.
(10) You will pay restitution, court costs, and/or fees in accordance with special conditions imposed or in accordance with the attached
orders.
(11) You will submit to random testing as directed by your officer or the professional staff of the treatment center where you are
receiving treatment to determine the presence or use of ‘alcohol or controlled substances.
(12) You will submit a DNA sample, as directed by your officer, for DNA analysis as prescribed in,ss, 943.325 and 948.014, F.S.
(13) You will submit to the taking of a digitized photograph by the department, This photograph may be displayed on the
department's website while you are on supervision, unless exempt from disclosure due to requirements of s. 119.07, F.S.
(14) You will report in person within 72 hours of your release from incarceration to the probation office in Indian River County,
Florida, unless otherwise instructed by the court or department, (This condition applies only if section 3 on the previous page is
checkes) Otherwise, you must report immediately to the probation office located at 1470 Old Dixie Highway, Vero Beach, FL
32960, telephone (772)778-5015.
ON COMMUNITY. CONTROL, YOU WILL COMPLY WITH THE FOLLOWING CONDITIONS, IN ADDITION TO THE
STANDARD CONDITIONS LISTED ABOVE AND ANY OTHER SPECIAL CONDITIONS ORDERED BY THE COURT:
(15) You will report to your officer as directed, at least one time a week, unless you have written consent otherwise.
(16) You will remain confined to your approved residence except for one half hour before and after your approved
employment, public service work, or any other special activities approved by your officer.
(17) You will maintain an hourly accounting of all your activities on a daily log, which you will submit to your officer on
request.
(18) You will submit to electronic monitoring of your location at the discretion of the Florida Department of Corrections, and
itt reimburse the State of Florida Electronic Monitoring Trust Fund as provided by Florida Statutes Section 948.09(2) at the
Turrent per diem rate, plus a 4% sureharge. You are responsible for the care of the equipment used for monitoring, You will
follow all rules of the Department of Corrections governing electronic monitoring.
(19) You will attend and complete any specialized self-improvement, counseling, or cognitive behavioral programs based on
Identified needs and compliance on supervision if directed to do so by your probation officer.
SPECIAL CONDITIONS
ry
FJ 20. You'must undergo a Substance Abuse and Mental Health evaluation within 20°days and, if treatment is deemed
revessary, you must successfully complete the treatment, and be responsible for the payment of any costs incurred
While receiving said evaluation and treatment, unless waived by the court,
4 24. You will have no contact with the victim, Cory Hagerman, during the period of supervision.
Page 2-0f 4 Revised 07/01/17BK: 3107 PG: 2441 — — = —
DJ 22. You will have no contact with the victim, Nathan Russell, during the perlod of supervision,
[J 23. You wil be required to perform community service hours in Indian River County at a worksite approved by the
Department of Corrections at the rate of minimum wage per hour, in lieu of Court Costs if unable to pay. (Excluding
Cost of Investigation and Cost of Prosecution, which must be paid).
i
|
t
\
1
|
IT IS FURTHER ORDERED that you pay: |
Court Costs, Fees, and Fines, as imposed at sentencing, in the total amount of: See Charges/Costs/F ees Sheet |
Payments processed through the Department of Corrections will be assessed a 4% surcharge pursuant to s. 945,31, FS.
Pursuant to s, 948.09, F.S., you will be assessed an amount of $2.00 per month for each month of supervision for the Training Trust |
Fund Surcharge. :
SPECIFIC INSTRUCTIONS FOR PAYMENT: ALL MONETARY OBLIGATIONS ARE TO BY PAID IN EQUAL
MONTHBLY INSTALLMENTS.
Effective for offenders whose crime was committed on or after September 1, 2005, there is hereby imposed, in additional to any
other provision in this section, mandatory electronic monitoring as @ condition of supervision for those who:
1 Ate placed on supervision for a violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827.071, or s. 847.0145 and the unlawful \
Sextal activity involved a victim 15 years of age or younger and the offender is 18 years of age or older; or |
+ Are designated as a sexual predator pursuant fo s, 775.215 or ‘ i
+ Has previously been convicted of a violation of chapter 794, 8. 800.04(4), (5), or (6), 8. 837,071, or s. 847.0145 and the
intaerful sexual activity involved a victim 15 years of age or younger and the offender is 18°years of age or older.
You are hereby placed on notice that should you violate your probation or community control, and the conditions set forth in
5, 948.063(1) or (2) are satisfied, whether your probation or community control is revoked or not revoked, you shall be placed on
electronic monitoring in accordance with F.S. 948.063.
Effective for offenders who are subject to supervision for a crime that wat committed on or after May 26, 2010, and who has
been convicted at any time of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses listed in s.
943,0435(1)(a)1.a.(), or a similar offense in another jurisdiction, against a victim who was under the age of 18 at the time of the
offense; the following conditions are imposed in addition to all other conditions;
(@) A prohibition on visiting schools, child care facilities, parks, and playgrounds, without prior approval from the offender's
supervising officer. The court may also designate additional locations fo protect a victim, The probibition ordered under this paragraph
does not prohibit the offender from visiting a school, child care facility, park, or playground for the sole purpose of attending a
religious service as defined in s. 775.0861 or picking up or dropping off the offender's children or grandchildren at a child care facility
or school, \
(b) A prohibition on distributing candy or other items to children on Halloween; wearing a Santa Claus costume, or other
costume to appeal to children, on or preceding Christmas; ‘wearing an Baster Bunny costume, or other costume to appeal to children,
on or preceding aster, entertaining at children's parties; or wearing a clown costume; without prior approval from the court.
Effective for offenders whose crime was committed on or after October 1, 2014, and who is placed on probation or community
control for a violation of chapter 794, s. 800,04, s, 827.071, s. 847.0135(5), or s, 847.0145, in addition to all other conditions imposed,
is prohibited from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory
uaterial unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program.
Visual or auditory material includes, but is not limited to, telephone, electronic media, computer programs, and computer services.
YOU ARE HEREBY PLACED ON NOTICE that the court may at any time rescind or modify any of the conditions of your
probation, or may extend the period of probation as + torized by law, or may discharge you from further supervision. If you violate
Phy of the conditions of your probation, you may be arrested tind the court may revoke your probation, adjudicate you guilty if
adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require
you to serve the balance of the sentence, ..
TIS FURTHER ORDERED that when you have been instructed as to the conditions of probation, you shall be released from
custody if you are in custody, and if you are at liberty on bond, the sureties thereon sball stand discharged from liability. (This
paragraph applies only ifsection 1 or section 2 is checked.) |
Page 3 of 4 Revised 07/01/17BK; 3107 PG: 2442 = oe
IT IS FURTHER ORDERED that the clerk of this court file this order in the clerk’s office and provide certified copies of same to
the officer for use in compliance with the requirements of law.
DONE AND ORDERED ON THIS 11th DAY OF APRIL, 2018 NUNC PRO TUNC: APRIL 2, 2018,
is/ Cynthia L. Cox
ee
CYNTHIA L. COX, CIRCUIT JUDGE
Lacknowledge receipt of a copy of this order and that the conditions have been explained to me and I agree fo abide by them,
_ Date:
Defendant
Instructed by:
Supervising Officer
LS/mg
Revised 07/01/17
Page 4 of 4Filing # 92700201 E-Filed 07/17/2019 01:06:07 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
LEAH M. HUBBARD CASE NO. 312019CA000232
Plaintiff
CIVIL DIVISION
vs.
E. CLAYTON YATES, P.A.
Defendant(s).
/
RESPONSE TO SECOND REQUEST FOR ADMISSIONS
Pursuant to Florida Rule of Civil Procedure 1.370, Plaintiff, LEAH M. HUBBARD
hereby responds to Defendant, E. CLAYTON YATES, P.A.’s Second Request for Admissions.
\. Admit that your full name is Leah Marie Hubbard.
RESPONSE: Admit
2. Admit that on April 2, 2018 the Honorable Cynthia Cox entered the Order of community
control and order of probation, attached as exhibit “A”.
RESPONSE: Objection, the Defendant’s defense of the Plaintiff's “conviction” and the
circumstances surrounding the outcome of the arrests in question have been raised in the
Defendant’s Motion to Dismiss which has been decided by Judge Janet Carney Croom in
her Order denying the Defendants’ Motion to Dismiss dated June 24, 2019. See Exhibit
“A”. Further, the information requested for the Plaintiff to admit has already been.
provided and spelled out ad nauseum by the Plaintiff in the Plaintiff's Complaint for
Legal Malpractice against the
Preview
Filing # 92755904 E-Filed 07/18/2019 10:24:10 AM 1932201/4 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 312019CA00232 LEAH M. HUBBARD, Plaintiff, v. E. CLAYTON YATES, P.A., Defendant. / DEFENDANT, E. CLAYTON YATES, P.A.’S, MOTION TO DEEM DEFENDANT’S SECOND REQUESTS FOR ADMISSIONS TO PLAINTIFF AS ADMITTED AND MOTION FOR SANCTIONS The Defendant, E. CLAYTON YATES, P.A., pursuant to Rule 1.370 of the Florida Rules of Civil Procedure, requests that this Honorable Court enter an Order to deem Defendant's Second Requests for Admissions to Plaintiff as admitted, and, for the Court to enter an award of sanctions for the cost associated with the pursuit of this motion, for the reasons stated further below. 4 / MEMORANDUM OF LAW AND ARGUMENT I. Background This is a legal malpractice action brought by the Plaintiff, Leah Marie Hubbard, against her former criminal defense attorney, E. Clayton Yates, P.A. In the first underlying criminal action, Plaintiff entered a plea of nolo contendere on April 2, 2018 to aggravated assault with a deadly weapon and was sentenced to 181 days of community control and one year of probation. In the second underlying criminal action, which occurred when Plaintiff was out on bond for her initial offense, she was ordered to be confined to theCASE NO, 312019CA00232 county jail for 181 days, placed on community control for one year, and placed on probation for one year due to her second plea of nolo contendere on April 2, 2018. (Defendant's Second Requests for Admissions to Plaintiff, Exhibit “A”, with attachments thereto). To prevail on a claim of legal malpractice against a criminal defense attorney, the Plaintiff, as part of the causation element of the cause of action, must prove by the greater weight of the evidence that he or she was innocent of the crimes charged in the underlying criminal proceeding. Rowe v. Schrieber, 725 So. 2d 1245 (Fla. 4th DCA 1999). Stated differently, unless the Plaintiff demonstrates that she was actually innocent of the underlying crimes she was charged with, she is barred from recovery in a legal malpractice case against the Defendant. Id. The Plaintiff has failed to make such a showing and as such the Defendant has asserted such a defense. Also, in legal malpractice actions arising out of criminal cases, the criminal defendant must obtain appellate or post-conviction relief as a precondition to maintaining the action. Steele v. Kehoe, 747 So. 2d 931, 933 (Fla.1999). This is often referred to as the exoneration requirement. Cocco v. Pritcher, 1 So. 3d 1246, 1248 (Fla. 1st DCA 2009). The defendant must also “establish the final disposition of the underlying criminal case in his or her favor.” Cira v. Dillinger, 903 So. 2d 367, 371 (Fla. 2d DCA 2005). Where the defendant was granted post-conviction relief but subsequently pled no contest to the charges, he or she cannot meet the exoneration requirement. Id. As such, the Exoneration Defense has been asserted by the Defendant due to the Plaintiff's pleas of nolo contendere in the underlying criminal actions.CASE NO. 312019CA00232 i. The Court Should Deem that Defendant’s Second Requests_for Admissions to Plaintiff Be Admitted A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Fla. R. Civ. P. 1.370(a). The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. Id. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Id. Unless the court determines that an objection is justified, it shall order that an answer be served. Id. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. Id. The provisions of Fla. R. Civ. P. 1.380(a)(4) apply to the award of expenses incurred in relation to the motion. Id. First, the Plaintiff's objections to Defendant's Second Requests for Admissions (Exhibit “B”) to on the bases that they are not reasonably calculated to lead to the discovery of admissible evidence and/or to narrow the issues is legally and factually wrong. On July 12, 2019, Defendant propounded its Second Requests for Admissions onto Plaintiff pertaining to her pleas of nolo contendere in the underlying criminal actions. Defendant has sought to confirm, in accordance with Fla. R. Civ. P. 1.370 that the Plaintiff pleaded nolo contendere to the charges, that the Plaintiff signed plea forms with the Court pertaining to pleas of nolo contendere, and that she and read ‘and understood those documents. The foregoing is absolutely relevant to the Plaintiffs claims that the Defendant's negligence proximately caused her damages.CASE NO. 312019CA00232 The discovery sought in Defendant's Second Requests for Admissions is discoverable as it goes to the very heart of this case: whether or not the Plaintiff pleaded nolo contendere and is precluded from asserting any claims for legal malpractice under the Exoneration Defense. The discovery sought also seeks to narrow the issues before the Court, Nevertheless, Plaintiff objected, without a valid legal basis to do so, to all of the requests except the one asking for her to admit her name. As such, the Requests for Admissions comply with Fla. R. Civ. P. 1.370. Second, the Plaintiff's argument that the requests can be objected to because the Court denied Defendant's Motion to Dismiss is legally and factually wrong. In other words, Plaintiff contends that the denial of the Motion extinguishes any argument or defense as to the Exoneration Defense. That is absolutely false. The Court did not enter judgment, in whole or in part, on the Exoneration Defense. As such, Plaintiff's basis to object is legally and factually incorrect. The Plaintiff's objections to Defendant's Second Requests for Admissions are legally and factually wrong. In addition, the Plaintiff should be compelled to pay the Defendant, i.e., the requesting party, the reasonable expenses incurred in making that proof, including its attorney's fees. Fla. R. Civ. P. 1.370(a). Accordingly, this Honorable Court should Order that Defendant's Second Requests for Admissions to Plaintiff be deemed as admitted, and, award Defendant its reasonable attorneys’ fees in pursuit of this motion. WHEREFORE, the Defendant, E. CLAYTON YATES, P.A., respectfully requests that this Honorable Court enter an Order deeming Defendant's Second Requests forCASE NO. 312019CA00232 Admissions to Plaintiff as admitted, award Defendant its attorneys’ fees associated with pursuit of this motion, and, for the Court to grant all other relief it deems just and proper. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy hereof has been furnished by service through the eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, leahhubbard0706@gmail.com, this _17th day of __July , 2019. CONROY SIMBERG Attorney for Defendant, E. Clayton Yates, P.A. 1801 Centrepark Drive East, Suite 200 West Palm Beach, FL 33401 Telephone: 561-697-8088 Facsimile: 561-697-8664 Primary Email: eservicewpb@conroysimberg.com Secondary Email: jrubin@conroysimberg.com By: /s/ Jeffrey K. Rubin John A. Lurvey, Esquire Florida Bar No. 570222 Jeffrey K. Rubin, Esquire Florida Bar No. 420841932201/3 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA CASE NO. 312019CA000232 LEAH M. HUBBARD, Plaintiff, Vv. E. CLAYTON YATES, P.A., Defendant. / SS DEFENDANT, E. CLAYTON YATES P.A.’S SECOND REQUEST FOR ADMISSIONS TO PLAINTIFF, LEAH M. HUBBARD TO PLAINTEF, LEA Eee Defendant, E. CLAYTON YATES P.A., by and through its undersigned counsel and pursuant to Rules 1.280 and 1,370 of the Florida Rules of Civil Procedure, requests that the Plaintiff, LEAH M. HUBBARD, admit or deny the following statements within 30 days of service hereof: 4. Admit that your full name is Leah Marie Hubbard. 2. Admit that on April 2, 2018, the Honorable Cynthia Cox entered the Order of Community Control and Order of Probation, attached as Exhibit “A”. 3. Admit that on April 2, 2018, you entered a please of nolo contendere on a charge of carrying a concealed firearm as identified on the Order of Community Control and Order of Probation, attached as Exhibit “A”. 4, Admit that you signed the Felony Plea Form attached hereto as Exhibit “B’. 5, Admit that you read the Felony Plea Form attached hereto as Exhibit “B” before signing that document.CASE NO. 312019CA000232 DEFENDANT'S SECOND REQUEST FOR ADMISSIONS TO PLAINTIFF 6. Admit that your signed your initials on page 4 of the Felony Plea Form attached as Exhibit “B”. 7. Admit that your signed your initials on page 2 of the Felony Plea Form attached as Exhibit “B”. 8. Admit that your signed your initials on page 3 of the Felony Plea Form attached as Exhibit “B”. 9, Admit that your signed your initials on page 4 of the Felony Plea Form attached as Exhibit “B”. 40. Admit that your signed your initials on page 5 of the Felony Plea Form attached as Exhibit “B”. - 41. Admit that your signed your initials on page 6 of the Felony Plea Form attached as Exhibit “B”, 42. Admit that you signed your full name on page 6 of the Felony Plea Form attached as Exhibit “B”. 43, Admit that Bobby D. Guttridge, Esquire fully explained teyou the contents of the Felony Plea Form attached as Exhibit “B”. Me 14.Admit that on April 2, 2018, the Honorable Cynthia Cox entered the Order of Community Control and Probation attached as Exhibit “Cc”. 45. Admit that on April 2, 2018, you entered a plea of nolo contendere on a charge of aggravated assault with a deadly weapon as identified on the Order of Community Control and Order of Probation attached as Exhibit "C”. |CASE NO. 312019CA000232 DEFENDANT'S SECOND REQUEST FOR ADMISSIONS TO PLAINTIFF CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy hereof has been furnished by service through the eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL,,32966, Pro Se, Leah Hubbard, leahhubbard0706@gmail.com, on this _10th day of July, 2019. CONROY SIMBERG Attorney for Defendant, E. Clayton Yates, P.A. 4801 Centrepark Drive East, Suite 200 West Palm Beach, FL 33401 Telephone: (561) 697-8088 Facsimile: (561) 697-8664 Primary Email: eservicewpb@conroysimberg.com Secondary Email: jrubin@conroysimberg.com By: _/s/ Jeffrey K. Rubin John A. Lurvey, Esquire Florida Bar No. 570222 Jeffrey K. Rubin, Esquire Florida Bar No, 42084 %, nnereempenetyes3120190022532 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL" ™ BK: 3107 PG: 2443, 4/13/2018 11:46 AM Filing # 70547174 E-Filed 04/11/2018 11:24:59 AM STATE OF FLORIDA TN THE NINETEENTH JUDICIAL CIRCUIT COURT, IN AND FOR vs INDIAN RIVER COUNTY CASE NUMBER _312017CF001265A XXXXX LEAH MARIE HUBBARD Defendant DC NUMBER K93766 ORDER OF COMMUNITY CONTROL AND ORDER OF PROBATION ‘This cause coming before the Court to be heard, and you, the defendant, being now present before the court, and you having CO entered a plea of guilty to (1 been found guilty by jury verdict of *r, BJ entered a plea of nolo contendere to been found guilty by the court trying the case without a jury of COUNT I CARRYING ¢ ONCEALED FIREARM. SECTION 1: ORDER WITHHOLDING ADJUDICATION Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of one 1) year, followed by twelve (12) months Probation, concurrent with ‘Case Number 312017CF 0009224 ‘under the supervision of the Department of Corre subject to Flo ja law. SECTION 2: INCARCERATION DURING PORTION OF SUPERVISION SENTENCE **. . It is hereby ordered and adjudged that you be: ba) confined in the County Jail for a term of 179 days with credit for 179 days jail time, as a special condition of supervision. {TIS FURTHER ORDERED that you shall comply with the following standard conditions of supervision as provided by Florida law: (1) You will report to the probation office as directed. Q) You will pay the State of Florida the amount of $40.00 per month, as well as 4% surcharge, toward the cost of your supervision in accordance with s, 948.09, F.S., unless otherwise exempted in compliance with Florida Statutes, (3) You will remain in a specified place. You will not change your residence or employment orleave the county of your residence without first procuring the consent of your officer, (4) You will not possess, carry or own any firearm. You will not possess, carry, or own any weapon without first procuring the consent of your officer. Page | of 4 Revised 07/01/17 t \ ky | tBK: 3107 PG: 2444 — . — — a (5) Yon wil live without violating any Taw. A convietion in a court of law is not necessary for such a violation of law to constitute a violation of your probation, community control, or any ather form of court ordered supervision, ° ‘You will not associate with any person engaged in any criminal activity, © (7) You will aot use intoxicants to excess or possess any drugs of narcotics unless prescribed by a physician, Nor will you visit places where intoxicants, drugs or other dangerous substances are untawfully sold, dispensed or used, (8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer. (9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in yout home, at your employment site or elsewhere, and you will comply with al instructions your officer may give you. (10) You will pay restitution, court costs, and/or fees in accordance with special conditions imposed or in accordance with the attached orders, (11) You will submit to random testing as directed by your officer or the professional staff of the treatment center where you are reviving treatment to determine the presence or use of aleohol or controlled substances. (12) You will submit a DNA sample, as directed by your officer, for DNA analysis as prescribed in'ss, 943.325 and 948.014, F.S, (13) You will submit to the taking of a digitized photograph by the department, ‘This photograph may be displayed on the department's website while you are on supervision, unless exempt from disclosure due to requirements of s, 119.07, F.S. (14) You will report in person within 72 hours of your release from incarceration to the probation office in Indian River County, Florida, unless otherwise instructed by the court or department, (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at 1470 Old Dixie Highway, Vero Beach, FL 32960, telephone '772)778-S015. ON COMMUNITY CONTROL, YOU WILL COMPLY WITH THE FOLLOWING CONDITIONS, IN ADDITION TO THE STANDARD CONDITIONS LISTED ABOVE AND ANY OTHER SPECIAL CONDITIONS ORDERED BY THE COURT: ‘ (15) You will report to your officer as directed, at least one time a week, unless you have written consent otherwise. (16) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other spectal activities approved by your officer. | (17) You will maintain an hourly accounting of all your activities on a daily log, which you will submit to your officer om request. (18) You will submit to electronic monitoring of your location at the discretion of the Florida Department of Corrections, and ‘will reimburse the State of Florida Electronic Monitoring Trust Fund as provided by Florida Statutes Section 948.09(2) at the current per diem rate, plus a 4% surcharge. You are responsible for the care of the equipment used for monitoring, You will | follow all rules of the Department of Corrections governing electronic monitoring. i (19) You will attend and complete any specialized self-improvement, counseling, or cognitive behavioral programs based on Nientified needs and compliance on supervision if directed to do so by your probation officer. Page 2 of 4 Revised 07/01/17 iBK: 3107PG: 2445. - a — a SPECIAL CONDITIONS BJ 20. You must undergo a Substance Abuse and Mental Health evaluation within 20 days and, if treatment is deemed necessary, you must successfully complete the treatment, and he responsible for the payment of any costs incurred while receiving said evaluation and treatment, unless waived by the court. BJ __21. You will not possess firearms or ammunition, during the period of supervision. BJ 22. You will be required to perform community service hours in Indian River County at 4 worksite approved by the Department of Corrections at the rate of minimum wage per hour, in Yew of Court Costs if unable to pay. (Excluding Cost of Investigation and Cost of Prosecution, which must be paid). PJ 23, Youwill have no contact with the victim, Cory Hagerman, during the period of supervision. {J 24. Youwill have no contact with the victim, Nathan Russell, during the period of supervision. ITIS FURTHER ORDERED that you pay: Court Costs, Fees, and Fines, as imposed at sentencing, inthe total amount of, See Charges/Costs/Fees Sheet Payments processed through the Departmeat of Corrections will be assessed 2 4% surcharge pursuant f0 945,31, FS. Pursuant to s. 948,09, F.S:, you will be assessed an amount of $2.00 per month for each month of supervision for the Training Trust | Fund Surcharge. SPECIFIC INSTRUCTIONS FOR PAYMENT: ALL MONETARY OBLIGATIONS ARE TO BE PAID IN EQUAL MONTHLY INSTALLMENTS. MONTHLY INSTALLMES: Effective for offenders whose crime was committed on or after September 1, 2005, there is hereby imposed, in additional to any other provision in this section, mandatory electronic monitoring as a condition of supervision for those who: = Are placed on supervision for a ‘violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827.071, ors. 847.0145 and the unlawful soxtnl activity involved a vietim 15 years of age or younger and the offender is 18 years of age or older; or + Are designated as a sexual predator pursuant to s. 775.215 oF = Has previously been convicted of a violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827,071, or s, 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender ig 18 ‘years of age or older. You are hereby placed on notice that should you violate your probatton or community control, and the conditions set forth in +. 948,063(1) or Q) are satisfied, whether your probation or community conttol is revoked or not revéked, you shall be placed on electronic monitoring in accordance with F.S. 948.063, Effective for offenders who are subject to supervision for a crime that was committed on or after May 26, 2010, and who has been convicted at any time of committing, ot attempting, soliciting, or conspiring to commit, any of the criminal offenses listed in s. 943,0435(1)(a)1.a.(1), or a similar offense in another jurisdiction, against a victim who was under the age of 18 at the time of the offense; the following conditions are imposed in addition to all other conditions: (a) A prohibition on visiting schools, child care facilities, parks, and playgrounds, without prior approval from the offender's supervising officer. The court may also designate additional locations to protect a victim. ‘The-prohibition ordered under this paragraph does not prohibit the offender from visiting a school, child care facility, park, or playground for the sole purpose of attending a religious service as defined in s. 775.0861 or picking up or dropping off the offender's children or grandchildren at a child care facility or school. (0) A prohibition on distributing candy or other items to children on Halloween; s : costume to appeal to children, on or preceding Christmas; wearing an Easter Bunny costume, or ofber costume to appeal to children, on or preceding Easter; entertaining at children's parties; or wearing a clown costume; without prior approval from the court. ! wearing a Santa Claus costume, or other Effective for offenders whose crime was committed on or after October 1, 2014, and who is placed on probation or community control for a violation of chapter 794, 8. 00,04, s. 827.071, s. 847,0135(5), or s. 847.0145, in addition to all other conditions imposed, Page 3 of 4 Revised 07/01/17is prohibited from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program. Visual or auditory material includes, but is not limited to, telephone, electronic media, computer programs, and computer services, YOU ARE HEREBY PLACED ON NOTICE that the court may at any time rescind or modify any of the conditions of your probation, or may extend the petiod of probation as authorized by lav, oF may discharge you from further supervision, If you violate pay of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence, IT IS FURTHER ORDERED that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only ifsection 1 or section 2 is checked.) IT1S FURTHER ORDERED that the clerk of this court file this order in the clerk's office and provide certified copies of same to the officer for use in compliance with the requirements of law. DONE AND ORDERED ON THIS 11" DAY OF APRIL, 20181 NUNC PRO TUNC: APRIL 2, 2018. Af Cynthia L. Cox n eee CYNTHIA L. COX, CIRCUIT JUDGE "4. ‘acknowledge receipt of a copy of this order and that the conditions have been explained to me and | agree to abide by them. Date: Defendant Instructed by: Supervising Officer LS/mg Page 4 of 4 Revised 07/01/17 | 1 |IN-THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, STATE OF FLORIDA STATE OF FLORIDA, * GASE NUMBER(S): 312017CF000922A_ Plaintiff. ., 31204 7CF001265A, VS. LEAH HUBBARD, Defendant. Bee oO aD ‘ nm o “gk an AHO /. _ FELONY PLEAFORM Aid re & 1am entering aplea as follows: we SE () Guilty (X) No Contest | () Kamission “ 4, . MY TRUE NAME IS: _Leah Hubbard oe . 2. lam __48__ years old. , 3, \ have completed the c le és grade in school. 5 ( X )toan read, write and understand the English language. ( ) | cannot read, However, this document has been completely read and explained to me. . , / (+ )Leannot read or understand English. However, an interpreter speaking my language has fully read this document to me. : 4. 1am represented by an attorney whose name is Bobby D. Guttridge” . 5. ( 4-7) | have never been found to be insane or incompetent, or admitted to or committed to a mental health facility, and have never been.a patient in any hospital fora mental illness, disease or defect. . Defendant's initials fu. " aos rus 4 OF 3, ( : ) | was previously found to be insane or tiicompetent, or st admitted to or committed to a mental health facility or | have been treated ‘Tor mental health issues. EXPLAIN: ao 6. | am not currently under the influence of drugs or alcohol Qe DO NOT USE ABBREVIATIONS IN COMPLETING THIS FORM. 74 understand that | am charged.with: : 312017CF000922A; Aggravated Assault - Deadly Weapon _ 3120147CF001265A: Carrying Concealed Firearin. 8. tam entering my plea of guilty, or-no contest to the charge(s) of, or my admission to the violation of probation 0 or community control, as4 follows! - WS Chen od Bl2o17e F G22 as Chany oof A261 7or(Zb5 9, tunderstand that the recommendation for sentencing t to the judge by both my attorney and the State Attorney is as follows: /80 day Co atyda' ( Vice Cn me ty canhal tl yen Meola: UA w theol Ady she, ME peconty fk SgbCu pap os% 2 40. Check if a negotiated plea (~42) the Court will allow me to withdraw my mt iN the Court rejects the plea agreement, OR : . idle . regardless of the vec rendations 6 Check if open. in plea to the court ( ) lawyer and the State Attorney, {he court may sentence me to any level sentence, ein the maximum sentence allowed by law. 2 Defendant's initials ¢ J we \ : i. { {41. Vunderstand-another Judge may impose the sentence in this case. «» 12, Asofthe date of this plea | have ! 77% days credit.for time served:in jail. 1AM _ WAIVING ALL OTHER CREDIT FOR TIME ALREADY SERVED. . 13, | agree to pay restitution as follows: understand that-if | am placed on probation or community control, the restitution will be a condition of that probation or community control. 44, . | understand that if | am convicted of sale, possession or trafficking in drugs; conspiracy to sell, possess or traffic in drugs; a D.U.. offense; fleeing or eluding.a law enforcement officer, theft of a motor vehicle; or theft of any parts.or components of a-motor vehicle, my drivers license will be revokéd by the Court. If | have any questions about this or about the length of the revocation, |-will ask the judge or my lawyer. . | UNDERSTAND THAT NO‘ONE CAN ASSURE ME OF HOW MUCH GAIN TIME OR ANY OTHER FORM OF EARLY RELEASE CREDIT | WILL RECEIVE ON A PRISON SENTENCE, NOR MY ELIGIBILITY FOR ANY FORM -OF EARLY RELEASE. ANY REPRESENTATIONS ° REGARDING THOSE ISSUES ARE NOT BINDING ON THE COURT! UNDERSTAND | WILL NOT BE.ABLE TO SET ASIDE THIS PLEA, THE JUDGMENT OR SENTENCE AS A RESULT OF INCORRECT REPRESENTATIONS: TO ME CONCERNING THESE ISSUES. | UNDERSTAND THAT | SHOULD ASSUME | ILL SERVE EVERY DAY OF ANY JAIL OR PRISON SENTENCE IMPOSED. If| am entering a pleatoa felony charge in this case, | understand that if! am later convicted of another felony charge in the future, the felony charge in this case could be used to give me a much longer sentence, and possibly a mandatory sentence, in the future criminal case. 45, The Criminal Punishment Code and the score sheet have been fully explained to me by my lawyer. | understand | may also ask the Judge about them at tlie,time | enter this plea. - 46, If | am released from jail until sentencing and | fail to appear in Court when required or if | commit a new criminaloffense, then |-will NOT bé able to withdraw, my plea, ‘and the State will be free to-ask that | be sentenced to the maximum possible ‘sentence. Further, | could be prosecuted for the new crime, and for failure to appear, and be subject to contempt of cout. | also understand that if | do not appear for sentencing, the Court may sentence me in my absence and | may receive the maximum sentence provided by law. « . so 3 Defendant's initials _C y an i,17. - | understand: : a) that the mandatory minimum penalty for the charges | am pleading to is _- WA and the maximum is _6 yer Doc, B seas Fine x2. OTE: | understand that under the: Criminal Punishment Code, the statutory maximum. penalty may not apply. The maximum possible penalty would depend on how my prior record and present offenses are scored, and may be higher than the statutory maximum.) 48, | understand that if | am placed on probation, or community control, { must obey all general and special conditions of probation or community control.’ “If | violate probation or community control, even in a technical way, | can be rearrested and charged with the violation, Ata hearing on that violation | understand: | will be tried by the Judge and not a‘jury and that the standard of proof is. much lower than proof beyond a reasonable doubt. {f the Prosecution were to satisfy the Court of a violation, [understand | could receive the maximum sentence provided by law for the underlying offense. . 149, READ IN ALL CASES: The Jimmy Ryce Act | understand if | am pleading to any “sexually violent offense” or a “sexually motivated offense” the Jimmy Ryce Act will apply tome, dnd | can be held in confinement indefinitely after my jail or prison sentence ends. : J also understand that even If the offense | am entering a plea to is not a “sexually violent _ offense” or a "sexually motivated offense,” | can still be’held In confinement indefinitely after my jail or prison sentence ends if it is determined later that | have been convicted previously of such qualifying offense. | understand that if | am sentenced for a sex offense that my name; address, photograph, and other personal information may be posted on the Internet and in other public places as part ofa community notification of where | ami living and working. 20.° [understand that no statement made in connection with this plea will be admissible in any civil or criminal proceeding against me except as a basis for perjury. 21. | agree that there is a factual basis for the charges against me. | understand that once the plea Is accepted by the Court, there will not be a trial orfurtherdetermination of my guilt or innocence of these charges. 22. {understand that { have the right to be represented by a lawyer at every stage of the . proceedings, and that if t cannot afford a lawyer, one would be appointed for me. 4 Defendant's tania. | | |. 23. . Junderstand that by pleading Guilty, or No Contest, or by entering an Admission, | am giving up the following constitutional rights: . a) . lam giving up my right toa trial and to have my case decided by a jury or : a judge and my right of assistance of counsel at trial. . (If this Is a violation of probation or community control - | am giving up my tight to a hearing before the Judge).- . . . b) ~ | am giving up my tight to confront, cross-examine and-ask questions of the State's witnesses. so °c) | am giving up my right to call witnesses and make them come to court and testify for me. . d) | am giving up my.right to. testify if | choose, and also-my right to remain silent and not to testify or incriminate myself. | realize if I did not testify, that fact could not be used against me. me . e) {am giving up my right to make the State prove me guilty by: presenting evidence. beyond a reasonable doubt. (in violation of probation or community control cases, the standard of proof is the greater weight of the evidence.) | realize that ata trial, | would not need to prove my innocence, or testify, or call any witnesses. |am giving up my-right to appeal all matters connected with the judgment and sentence, including the issue of guilt or innocence. | understand that | am not waiving my right to appeal a void or voidable judgment and my right to review by appropriate collateral attack. 1am not waiving my right to appeal any sentence in violation of the “Sentencing Guidelines, or criminal punishment code, unless specifically contained within the plea agreement. : ‘ | WISH TO GIVE UP THESE RIGHTS AND ENTER THIS PLEA. 24. No one has tricked me, coerced me, pressured me, or has made any threats against me to get me to give up these rights and enter this plea. No one has made any promises or representations tome, other than those in this document to get me to give up these rights. The only promises or representations made to me are those listed in this document, and any other promises or representations are not binding on the Court or.the Prosecution. ~ 25. | specifically . oS ; . ( ) admit that | am guilty of the charge or charges | am pleading Guilty/No Contest/or admitting. ( X) believe the plea is in my best interest even though | am innocent of the - charge, charges, or violations; or may have defenses to them. 26. | have discussed this case.and everything in this document with my attorney, and | amsatisfied with the representation | have received from my attorney. | have told my attorney . all the facts and circumstances known to me about the charges. My attorney counseled and 5 Defendant's initials Awa —advised me on the nature of each charge, on any and all.lesser included charges, and on all possible defenses that | may have in this.case. . 27. “| offer my plea freely and voluntarily with full understaiding of all the matters in the Information/Indictment/Violation Affidavit and in this document. 28, If tam not.an American citizen, | understand that this plea could be used by the: United States Government as a basis to deport me, prevent me from becoming a U.S. citizen, prevent me from obtaining or retaining my alien status or prevent me from obtaining or retaining a Permanent Resident Card (Green Card), whether or not | any adjudicated guilty or whether adjudication of guilt is withheld, and whether the crime Is a misdemeanor or felony. 29, _ \fl amon probation or community contro! in another case, this plea can form the basis of a violation of that probation of community control. . 30.° | understand a conviction of a crime-may cause me to lose local, State or. Federal licenses, and can prevent me from getting certain licenses. A conviction of a felony will cause me to lose the right to vote, and my right to own or possess a firearm or ammunition. . 31, | understand that both mandatory and discretionary fees and costs may be imposed by the court at the time of sentencing. My attorney and | can object at sentencing to any fees and costs. | understand that if | fail to object at the time of sentencing, | will be waiving the ability to appeal the imposition of the fees and costs, . : Iflam placed on probation or community control, the repayment of public defender fees, special.public defender fees, costs, fines, surcharges and the public defender application fee, will be a condition of my probation or community control whether or not | am adjudicated guilty. _ Myattorney has explained all of the contents of this plea form to me. | have no questions and | understand what! am doing. | wish to enter. my plea and not have a trial or hearing in this case. | fully understand everything in this document. | ‘ DATED on April 4, 2018. \ certify thatas an interpreter fluentin the _.'__language, that: | have interpreted this document in.its entirety to the Defendant who understands the’ language. The Defendant states he/she fully - understands the contents of this document and that he/she signed it freely and‘voluntarily. - INTERPRETER *- Printed name. . Signature 6 Defendant's ito PMSA|, BOBBY D. GUTTRIDGE _. ,am the attorney for the Defendant. - [ll have read the contents of this document word-for-word to the Defendant, and explained It fully to him/her. OR [ X ] Ihave not read this document to the Defendant, but | have fully explained the contents of this document to him/her. . { have fully explained the allegations contained, in the charging document(s). | have explained the maximum penalty for each count pled to by the Defendant. | consider him/her competent to understand the charges against him/her and the effect of this plea entered by this document. Lhave explained to him/her the right of appeal and the difference between a direct appeal and a collateral attack. | have reviewed the discovery disclosed by: the State of Florida and discussed the issues of the case with the Defendant. | am not awaré of any physical evidence disclosed by the State of Florida in which DNA may éxoneraté thé Defendant or if any such evidence exists, it has been examined and determined that no further examination is needed. ATTORNEY The State of Florida believes that this plea is in the best interest of the State of Florida and therefore recommends the plea be accepted by the Court. The, State of Florida .has discussed the plea terms with the victim and the arresting authority and they are in agreement with the plea or have been informed of their right to appear tencing: in order to spéak with the Court. The State of Florida is not aware of any physical nce for which DNA testing may exonerate the Defendant. . : E ATTORNEY The Court determines that the plea Is freely and voluntarily entered, upon a knowing and: intelligent waiver of the Defendant's rights, and that there is a fa ual basis for the Court to, accept the plea to each charge and/or the violation of probation or cor unity control. The plea is accepted. . . % DONE AND ORDERED on April a, 2048. 3 FSLARG AR! gu0d3y Yos SNS felony plea form 11/02/07 at oy, . 7 Defendant's initials: ‘3120180022531 RECORDED INT BK: 3107 PG: 2439, 4/13/2018 11:44 AM Filing # 70547099 E-Filed 04/11/2018 11:24:20 AM STATE OF FLORIDA IN THE NINETEENTH JUDICIAL CIRCUIT COURT, IN AND FOR vs INDIAN RIVER COUNTY CASE NUMBER _312017CF000922AXXXXX LEAH MARIE HUBBARD m Defendant DC NUMBER K93766 ORDER OF COMMUNITY CONTROL AND ORDER OF PROBATION This cause coming before the Court to be heard, and you, the defendant, being now present before the court, and you having C1 entered a plea of guilty to (1 been found guilty by jury verdict of, BI entered a plea of nolo contendere to C1 __ been found'guilty by the court trying the case without a jury of COUNT I AGGRAVATED ASSAULT — DEADLY WEAPON SECTION 1: ORDER WITHHOLDING ADJUDICATION 14] Now, therefore, it is ord od control f and adjudged that the adjud eriod of one (1 HH ‘under the supervision of the Depart on of guilt is hereby withheld and that you be placed on ‘1) year Probation, concurre! it with Case SECTION 2: INCARCERATION DURING PORTION OF SUPERVISION SENTENCE « Itis hereby ordered and adjudged that you be: . BI confined in the County Jail fora term of 181 days with credit for 181 days jail time, as a special condition of supervision. TPIS FURTHER ORDERED that you shall comply with the following standard conditions of supervision as provided by Florida law: (1). You will report to the probation office as directed, You will pay the State of Florida the amount of $40.00 per month, as well as 4% surcharge, toward the cost of your supervision in @ accordance with s. 948.09, F.S., unless otherwise exempted in compliance with Florida Statutes. @) You will remain in a specified place, You will not change your residence or employment or Teave the county of your residence without first procuring the consent of your officer. (4) You will not possess, carry or own any firearm. You will not possess, carry, or own any weapon without first procuring the consent of your officer. Page 1 of 4 Revised 07/01/17 HE RECORDS OF JEFFREY R, SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER COFE- i |BK: 3107 PG: 2440 tN (5) You will live without violating any law, A conviction in a court of law is not necessary for such a violation of law to constitute a violation of your probation, community control, or any other form of court ordered supervision. (6) You will not associate with any person engaged in any criminal activity (7) You will not use intoxicants to excess or possess any drugs or narvotics unless presotibed”by a physician, Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used, (8) You will work diligently ata lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer. (9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply ‘with all instructions your officer may give you. (10) You will pay restitution, court costs, and/or fees in accordance with special conditions imposed or in accordance with the attached orders. (11) You will submit to random testing as directed by your officer or the professional staff of the treatment center where you are receiving treatment to determine the presence or use of ‘alcohol or controlled substances. (12) You will submit a DNA sample, as directed by your officer, for DNA analysis as prescribed in,ss, 943.325 and 948.014, F.S. (13) You will submit to the taking of a digitized photograph by the department, This photograph may be displayed on the department's website while you are on supervision, unless exempt from disclosure due to requirements of s. 119.07, F.S. (14) You will report in person within 72 hours of your release from incarceration to the probation office in Indian River County, Florida, unless otherwise instructed by the court or department, (This condition applies only if section 3 on the previous page is checkes) Otherwise, you must report immediately to the probation office located at 1470 Old Dixie Highway, Vero Beach, FL 32960, telephone (772)778-5015. ON COMMUNITY. CONTROL, YOU WILL COMPLY WITH THE FOLLOWING CONDITIONS, IN ADDITION TO THE STANDARD CONDITIONS LISTED ABOVE AND ANY OTHER SPECIAL CONDITIONS ORDERED BY THE COURT: (15) You will report to your officer as directed, at least one time a week, unless you have written consent otherwise. (16) You will remain confined to your approved residence except for one half hour before and after your approved employment, public service work, or any other special activities approved by your officer. (17) You will maintain an hourly accounting of all your activities on a daily log, which you will submit to your officer on request. (18) You will submit to electronic monitoring of your location at the discretion of the Florida Department of Corrections, and itt reimburse the State of Florida Electronic Monitoring Trust Fund as provided by Florida Statutes Section 948.09(2) at the Turrent per diem rate, plus a 4% sureharge. You are responsible for the care of the equipment used for monitoring, You will follow all rules of the Department of Corrections governing electronic monitoring. (19) You will attend and complete any specialized self-improvement, counseling, or cognitive behavioral programs based on Identified needs and compliance on supervision if directed to do so by your probation officer. SPECIAL CONDITIONS ry FJ 20. You'must undergo a Substance Abuse and Mental Health evaluation within 20°days and, if treatment is deemed revessary, you must successfully complete the treatment, and be responsible for the payment of any costs incurred While receiving said evaluation and treatment, unless waived by the court, 4 24. You will have no contact with the victim, Cory Hagerman, during the period of supervision. Page 2-0f 4 Revised 07/01/17BK: 3107 PG: 2441 — — = — DJ 22. You will have no contact with the victim, Nathan Russell, during the perlod of supervision, [J 23. You wil be required to perform community service hours in Indian River County at a worksite approved by the Department of Corrections at the rate of minimum wage per hour, in lieu of Court Costs if unable to pay. (Excluding Cost of Investigation and Cost of Prosecution, which must be paid). i | t \ 1 | IT IS FURTHER ORDERED that you pay: | Court Costs, Fees, and Fines, as imposed at sentencing, in the total amount of: See Charges/Costs/F ees Sheet | Payments processed through the Department of Corrections will be assessed a 4% surcharge pursuant to s. 945,31, FS. Pursuant to s, 948.09, F.S., you will be assessed an amount of $2.00 per month for each month of supervision for the Training Trust | Fund Surcharge. : SPECIFIC INSTRUCTIONS FOR PAYMENT: ALL MONETARY OBLIGATIONS ARE TO BY PAID IN EQUAL MONTHBLY INSTALLMENTS. Effective for offenders whose crime was committed on or after September 1, 2005, there is hereby imposed, in additional to any other provision in this section, mandatory electronic monitoring as @ condition of supervision for those who: 1 Ate placed on supervision for a violation of chapter 794, s. 800.04(4), (5), or (6), 8. 827.071, or s. 847.0145 and the unlawful \ Sextal activity involved a victim 15 years of age or younger and the offender is 18 years of age or older; or | + Are designated as a sexual predator pursuant fo s, 775.215 or ‘ i + Has previously been convicted of a violation of chapter 794, 8. 800.04(4), (5), or (6), 8. 837,071, or s. 847.0145 and the intaerful sexual activity involved a victim 15 years of age or younger and the offender is 18°years of age or older. You are hereby placed on notice that should you violate your probation or community control, and the conditions set forth in 5, 948.063(1) or (2) are satisfied, whether your probation or community control is revoked or not revoked, you shall be placed on electronic monitoring in accordance with F.S. 948.063. Effective for offenders who are subject to supervision for a crime that wat committed on or after May 26, 2010, and who has been convicted at any time of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses listed in s. 943,0435(1)(a)1.a.(), or a similar offense in another jurisdiction, against a victim who was under the age of 18 at the time of the offense; the following conditions are imposed in addition to all other conditions; (@) A prohibition on visiting schools, child care facilities, parks, and playgrounds, without prior approval from the offender's supervising officer. The court may also designate additional locations fo protect a victim, The probibition ordered under this paragraph does not prohibit the offender from visiting a school, child care facility, park, or playground for the sole purpose of attending a religious service as defined in s. 775.0861 or picking up or dropping off the offender's children or grandchildren at a child care facility or school, \ (b) A prohibition on distributing candy or other items to children on Halloween; wearing a Santa Claus costume, or other costume to appeal to children, on or preceding Christmas; ‘wearing an Baster Bunny costume, or other costume to appeal to children, on or preceding aster, entertaining at children's parties; or wearing a clown costume; without prior approval from the court. Effective for offenders whose crime was committed on or after October 1, 2014, and who is placed on probation or community control for a violation of chapter 794, s. 800,04, s, 827.071, s. 847.0135(5), or s, 847.0145, in addition to all other conditions imposed, is prohibited from viewing, accessing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory uaterial unless otherwise indicated in the treatment plan provided by a qualified practitioner in the sexual offender treatment program. Visual or auditory material includes, but is not limited to, telephone, electronic media, computer programs, and computer services. YOU ARE HEREBY PLACED ON NOTICE that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as + torized by law, or may discharge you from further supervision. If you violate Phy of the conditions of your probation, you may be arrested tind the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence, .. TIS FURTHER ORDERED that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon sball stand discharged from liability. (This paragraph applies only ifsection 1 or section 2 is checked.) | Page 3 of 4 Revised 07/01/17BK; 3107 PG: 2442 = oe IT IS FURTHER ORDERED that the clerk of this court file this order in the clerk’s office and provide certified copies of same to the officer for use in compliance with the requirements of law. DONE AND ORDERED ON THIS 11th DAY OF APRIL, 2018 NUNC PRO TUNC: APRIL 2, 2018, is/ Cynthia L. Cox ee CYNTHIA L. COX, CIRCUIT JUDGE Lacknowledge receipt of a copy of this order and that the conditions have been explained to me and I agree fo abide by them, _ Date: Defendant Instructed by: Supervising Officer LS/mg Revised 07/01/17 Page 4 of 4Filing # 92700201 E-Filed 07/17/2019 01:06:07 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA LEAH M. HUBBARD CASE NO. 312019CA000232 Plaintiff CIVIL DIVISION vs. E. CLAYTON YATES, P.A. Defendant(s). / RESPONSE TO SECOND REQUEST FOR ADMISSIONS Pursuant to Florida Rule of Civil Procedure 1.370, Plaintiff, LEAH M. HUBBARD hereby responds to Defendant, E. CLAYTON YATES, P.A.’s Second Request for Admissions. \. Admit that your full name is Leah Marie Hubbard. RESPONSE: Admit 2. Admit that on April 2, 2018 the Honorable Cynthia Cox entered the Order of community control and order of probation, attached as exhibit “A”. RESPONSE: Objection, the Defendant’s defense of the Plaintiff's “conviction” and the circumstances surrounding the outcome of the arrests in question have been raised in the Defendant’s Motion to Dismiss which has been decided by Judge Janet Carney Croom in her Order denying the Defendants’ Motion to Dismiss dated June 24, 2019. See Exhibit “A”. Further, the information requested for the Plaintiff to admit has already been. provided and spelled out ad nauseum by the Plaintiff in the Plaintiff's Complaint for Legal Malpractice against the