Judge denies mother’s attempt to reverse plea, avoid deportation (Naples Daily News)

Judge denies mother’s attempt to reverse plea, avoid deportation
The teenage daughter claimed she lied in 2003 to retaliate against her mother for preventing her from dating a 24-year-old man

By AISLING SWIFT (Contact)
Originally published 1:59 p.m., Saturday, April 5, 2008
Updated 6:14 p.m., Saturday, April 5, 2008

A teenager’s attempt to have her mother’s criminal conviction thrown out and save her from being deported to Honduras failed after a judge ruled the daughter’s testimony wasn’t credible.
The daughter had testified that when she was a 14-year-old student at East Naples Middle School, she’d made up a story that her mother hit her, causing a black eye, to retaliate against her mother for ordering her to stop seeing her 24-year-old boyfriend and threatening to have him arrested.
Collier Circuit Judge Elizabeth Krier recently denied a motion by Bertha L. Martinez, 34, of Poinciana Village, to rescind her plea and 2004 conviction for child abuse. Krier only agreed to hold a hearing to determine whether the teen’s recanted statement was credible, and was new evidence.
“Timing and testimony reflect that both the defendant and the victim had and have strong motivation to change their statements,” Krier wrote in a five-page written order this month, citing the woman’s impending final deportation hearing in May. “... In this case, the court finds that the recantation is not true ...”
Krier noted that the daughter, Nohelia Fernandez, 18, accompanied her mother to an Immigration and Customs Enforcement hearing in April 2007 and the recanted statement was taken in July.
The daughter also isn’t a legal resident, Krier wrote.
Martinez’s new attorney, Michael Raheb of Cape Coral, said he plans to appeal and said his motion wasn’t filed due to the pending immigration hearing.
“This wasn’t some sort of immigration hustle,” Raheb said. “We’re doing it because the daughter lied. ... The problem today is you can’t discipline your kids and if you do, you get deported.”
He called the state’s original case weak and questioned why Martinez even agreed to plead no contest.
Martinez was arrested after the state Department of Children & Families was called to East Naples Middle School on Sept. 15, 2003, after Martinez’s 14-year-old daughter came to school with a black eye and said her mother had beaten her because she’d refused to clean offices with her mother on a Sunday.
She later admitted to a DCF investigator that her mother had hit her with a belt “on previous occasions.”
The teen said her mother grabbed her hair and hit her while pushing her to the floor, but then told her to lie and say her sister caused the black eye during a skirmish with her siblings. When the investigator went to Martinez’s home, she found her 6-year-old son, Victor, home alone without any ability to contact his mother by phone.
Martinez was interviewed by DCF and admitted she knew it was wrong to leave her son alone and that she put her daughter on the floor to control her because she was swinging at her; the son also corroborated that the mother and daughter had fought and his mother hit the teen as she was swinging at her mother.
Martinez was arrested on charges of child abuse and child neglect, third-degree felonies, and pleaded no contest in March 2004 to child abuse as part of a plea agreement that dropped the neglect charge. She was sentenced to two years of probation and ordered to complete a parenting class and comply with DCF orders. Her probation was terminated early, after 1½ years.
Fernandez testified she wanted to tell the truth now and clear her mother’s name. She denied her mother coerced her.
“She told me that she forgives me and that we were going to look for help to fix things,” Fernandez testified, denying she’d changed her story because her mother was now facing deportation.
Krier told her, “The court does not understand why you waited four years to come tell the truth.”