Circuit Judge J. David Walsh on Tuesday granted Higgins’s motion to withdraw his plea, presented through Higgins’s attorney, Josh Davis. Walsh warned Davis that the move carried significant risk, as Higgins is now again exposed to the possibility of prison time. But Davis said it was the best approach for his client, who was re-arraigned Tuesday. He pleaded not guilty, and is scheduled for a pre-trial on March 2, by which time Walsh will have retired. Higgins is likely to appear before Judge Matthew Foxman.
“One of the way you can withdraw a plea is if it violates the plea agreement,” Davis said in a brief interview, explaining that Higgins had agreed to plead no contest to two misdemeanor charges in exchange for the judge withholding adjudication—which would have meant that he would not have been found guilty. Instead, Walsh found him guilty on two counts. Higgins, a truck driver, lost his job as a result, since his company does not employ individuals who have a criminal conviction of any sort. Higgins had never had a record before.
Higgins’s case dates back to last October 3. He had previously dated Laura Kita, 54, and lived with her for about a year, but they had split, and Kita had filed for an injunction against him, according to his original arrest report—but the injunction had not been served at the time of the altercation. So Higgins was not barred from having contact with Kita.
The afternoon of October 3, Higgins went to Kita’s P-Section house on Pebble Stone Lane and asked her roommate to leave so he could speak with Kita alone. Kita told him of the injunction, saying he should leave. He proposed they have dinner out, to which she agreed. She met him at a local restaurant later that evening then she returned home. She was driving separately.
Immediately after entering her garage, Higgins followed her in, ducking under the closing door, according to the arrest report. Just then Kita’s 9-month-old dog sauntered into the garage from the house and went up to Higgins, who picked it up.
“Laura then began begging Shawn to put the dog down because she ‘knew the look in his eyes,’” according to the arrest report, begging him for three to four minutes to let the dog go and not hurt it over being mad at her.
“At some point during this, he said ok and forcefully threw the dog down in front of him, causing the dog to ‘scream.’ Shawn then told her that this was her fault for not teaching the dog manners and to not run up to him. She then went over to the dog and went to console it at which time Shawn pushed her and held her down on top of the dog.”
The report states she told deputies that she began to kick and punch at Higgins as he told her he’d never get off her and she’d never get rid of him, though in short order he went to his car and started to leave.
A second confrontation allegedly ensued when Kita went out front just as Higgins was starting to leave. She told deputies he brought her down to the grass and damaged her cell phone, and that she took a ladder and threw it against his vehicle. She called police. Higgins was gone by the time deputies arrived, though he was calling Kita as they investigated, but refusing to meet with deputies.
He denied, however, hurting the dog, which was found to have a hind-leg fracture at Flagler Animal Hospital later. When Higgins turned up at the animal hospital to see Kita and the dog, deputies were there, and arrested him, charging him with domestic battery by strangulation and cruelty to animals, both third-degree felonies, and criminal mischief, a misdemeanor.
At that point, a different odyssey began for Higgins, though one not unlike the kind many people with little or no money face when they’re arrested: he could not bond himself out of jail, even though bond was set at just $4,500, according to court records. He was barred from using his own credit card to post bond, Davis, his attorney—whom Higgins hired several weeks later, after a public defender was appointed for him—said.
So rather than sit in jail, Davis said, Higgins agreed to a motion for conditional release, with conditions to be set by the court: that is, what turned out to be the plea deal offered by the state attorney’s office. The plea deal, in other words, was Higgins’s way out of jail.
On Oct. 26, Higgins entered a plea of no contest. The criminal mischief charge was dropped. The two other charges were reduced to first-degree misdemeanors. The plea form he signed clearly indicated that he would have 12 months’ probation—no jail time—and pay restitution of $2,639.43, attend a 26-week “batterers’ intervention class,” and have no alcohol or drugs or any contact with Kita.
The agreement just as clearly indicated that “Adjudication of guilt will be withheld.” It was signed by Higgins’ court-appointed attorney,
It was not.
When Judge Walsh entered the sentencing order, Higgins was found guilty on both counts, albeit as misdemeanors.
“The difference between being convicted and adjudication withheld is you can answer you’ve never been convicted in a crime,” Davis said, referring to an individual’s prospective job application.
In late November, Davis filed a motion to withdraw the plea and set aside the judgment, which would lead to the case being restarted anew. He said Higgins will maintain that he “absolutely, 100 percent” did not commit the crimes alleged against him, though the charges are now again on the books as two third-degree felonies, with a possibility prison time and steep fines.
Davis meanwhile has filed a motion to modify the no-contact order against Higgins, regarding Kita, requesting that the order apply only to “violent contact,” not any contact at all.
(Flagler Live - Jan 27, 2016)
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