Wednesday, May 18, 2011

Florida Motion to Dismiss for Lack of Speedy Trial

Grandmother Nancy Grant
Several years ago, an over-aggressive prosecutor, the infamous Donald Hartery, since forced from Florida's 12th judicial circuit State Attorney's Office, charged ineffable, lovable grandmother and political activist Nancy Grant of Arcadia, Florida with 38 counts of unauthorized practice of law for helping prisoners in the DeSoto County Florida jail file the below emergancy motion to dismiss.  The court should have interpreted the motion as a petition for writ of habeas corpus, but didn't.  A suborned jury convicted Nancy of 19 counts of UPL.  She received a sentence of 15 years probation and $30,500 fine, plus assorted costs.  She runs a small cattle ranch today and gets around without a driver license.

Typically, crooked, lazy, indifferent, or overworked public defenders con the prisoner into asking for a continuance without fully realizing that tends to stop the speedy trial clock.  State law mandates a trial within less than 45 or 90 days in order to comply with speedy trial right guarantee by constitutions.  Thus any such scheme by public defenders amounts to a ruse to deceive prisoners into waiving this right that they should never waive.

Every prisoner in a Florida county jail who has sat there for 90 days on a misdemeanor or 180 days on a felony charge, without a trial, should file this motion, in my opinion.  Read it and you'll see why I opine as I do.

Will this turn possible criminals loose?  Yes.  So what?  EVERYBODY should enjoy the exercise of constitutional rights.  If courts cannot try the prisoners within the time specified, then courts must let them go. Period.  And let us try to visualize the number of people in jail for political reasons on trumped up charges.  All should go free immediately.

An associate of mine with an excellent law background promised three years ago to convert this motion into a habeas petition.  He has, I suppose, forgotten all about it.  I guess he doesn't believe habeas has any value any more.  What do you think?



------------------------------------------------------------------Start of Motion, Certificate, Order ------------------------------------------------------
. IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT,
IN AND FOR ______________ COUNTY, FLORIDA
CRIMINAL DIVISION
______________________
Defendant
Vs. Case No.:(s)_
STATE OF FLORIDA
Respondent.
EMERGENCY MOTION TO DISMISS
Defendant, Pro-se, pursuant to Florida Rules of Civil Procedure Rule 1.420 (e); and Florida Rules of Criminal Procedure Rule3.191 (D)(3), moves this Court to dismiss the instant case and to discharge Defendant from any further prosecution or custody in instant case. Defendant presents the following for review in support of the action:
FACTUAL BASIS
  1. Defendant was arrested on: ______________________________________________.
  2. Defendant was charged with: ____________________________________________.
  3. The Government has imprisoned Defendant within the County Jail for approximately __________ days since the date of ____________________________ (day, month, year).
  4. Defendant has obtained the effective assistance of legal counsel, as constitutionally guaranteed, in the form of: a court-appointed Public Defender; a special appointed attorney; a private attorney; no one (Defendant has checked the appropriate box).
  5. Defendant has the absolute constitutional right to speedy trial without demand within the Time Frame of 175 days after a felony arrest and 90 days after a misdemeanor arrest.
  6. The Government failed to initiate the trial within said Time Frame.
  7. The failure to prosecute resulted from a Government-caused, unusual, and insufficiently justified Delay between arrest and trial.
  8. Said Delay seriously injured and prejudiced the Defendant by violating the Defendant's constitutionally guaranteed rights to due process and speedy trial.
  9. Said Delay has critically impaired the Defendant's defense by dimming memories and directly causing the potential loss of exculpatory evidence, thereby subjecting Defendant to oppressive pre-trial detention and reflecting prejudice against Defendant.
  10. Regardless of any contention by Government minions that said delay arose as a result of Defendant's continuances or tactical defense decisions, the Government bears the burden to avoid prosecutorial neglect by initiating prosecution within said Time Frame.
  11. Defendant did; did not cause or contribute to said delay by unavailability for trial, by requesting a continuance, by lack of investigation, or by lack of preparation for trial (Defendant has checked the appropriate box).
  12. Any continuance requested by Defendant arose as a result of the Government's obstruction of due process through direct and intentional obfuscation, incompetence, disorganization, negligence, or constructive lack of cooperation; said obstruction made it impossible for Defendant to obtain a speedy trial and just treatment by the Government..
  13. The Government has the obligation to dismiss with prejudice all charges against Defendant, and immediately to release Defendant from custody in the instant case; Defendant has the absolute right to a dismissal with prejudice and to immediate and complete liberation.
  14. Failure to dismiss and discharge Defendant would seriously undermine the constitutional principles of a fair and impartial trial without delay, thus creating a miscarriage of justice.
ARGUMENT AND MEMORANDUM OF LAW
The Constitutions of the United States of America (Amendment VI) and Florida (Article I Section 16), guarantee a speedy trial to everyone charged with a crime.
Florida Statute 918.015  "Right to speedy trial" provides "(1)  In all criminal prosecutions the state and the defendant shall each have the right to a speedy trial. (2)  The Supreme Court shall, by rule of said court, provide procedures through which the right to a speedy trial as guaranteed by subsection (1) and by s. 16, Art. I of the State Constitution, shall be realized."
The Florida Supreme Court obeyed Florida Statue 918.015 by issuing the Florida Rules of Judicial Administration which requires in Rule 2.250 (a)(1)(A) that the Trial Court Time Standard allow 180 days from arrest to final disposition for criminal felony cases.
Florida Rules of Criminal Procedure provides in Rule 3.191 (a) "Speedy trial without demand" that "(a): Every person charged with a crime by indictment or information, shall be brought to trial within 175 days if the crime charged is a felony. If trial is not commenced within this time period, the Defendant shall be entitled to the appropriate remedy as set forth in subdivision (p) below."
Rule 3.191 (p) provides "A Defendant not brought to trial within the specified time period, on motion of Defendant or the court, shall be forever discharged from the crime."
Florida Rules of Civil Procedure requires in Rule 1.420 that when the Government fails to prosecute a case within the lawful time frame, the court shall upon motion of any interested party, whether or not a party to the action, dismiss the case with prejudice for failure to prosecute (emphasis added).
In the instant case, the post-arrest pre-trial Delay during which the Government oppressively incarcerated Defendant clearly demonstrates a serious Time Standard violation which provides complete cause for immediate dismissal of all charges for lack of speedy trial. Hedgepeth v. United States , 124 U.S. App. D.C. 291, 294, 364 F.2d 684, 687 (1966); and Dickey v. Florida, 398 U.S. 30, 48, 90 S. ct. 1564, 26 L. Ed 2d 26 (1970). The portion of the delay attributable to the Government or the Defendant has no relevance. The extreme duration of delay, the deprivation of Defendant's right to a speedy trial, the total lack of justification, and the prejudicial effects require dismissal.
See Coleman v. United States, 442 F.2d 150 (1971); and United States v. Reed, 285 F. Supp. 738, 741 (D.D.C. 1968) ("Clearly there can be no waiver of right to speedy trial, where (the Defendant) is powerless to assert his right because of incarceration, ignorance, and lack of sufficient legal advice.").
The presumption that pretrial delay has prejudiced the Defendant intensifies over time substantially triggering a Barker inquiry. Doggett v. United States, 505 U.S. 647, 652, n.l, 112 S.CT. 2686, 120 L.Ed. 2d 520 (1992); and violates sixth amendment speedy trial Right as guaranteed. U.S.C.A. Constitution. Amend. 6.; and article 1, section 9, Florida Constitution.
The Supreme Court has repeatedly held that the prosecutor and the court have an affirmative Constitutional obligation to try the Defendant in a timely manner; and that this duty requires good faith and diligent effort to bring him to trial quickly. See Moore v. Arizona, 414 U.S. 25, 26, 94, S.CT. 188, 38, L.Ed. 2d 183 (1973) quoting Smith v. Hooey, 393 U.S. 374, 384, 89 S.CT. 575, 21 L.Ed. 2d 607 (1969).
In the instant case the State and the Court neglected their duties to try Defendant in a timely manner. They failed to show good faith and diligent effort to bring Defendant to trial quickly, as displayed by their oppressive incarceration of Defendant during the lengthy and wrongful Delay in the instant case. United States v. Graham, 128 F. 3d 372, 374, (6th cir.1997). A mere presence of court backlog or overcrowded case load is insufficient to justify delay by prosecution.
United States v. Goeltz, 513 F. 2d 193, 197, (10th cir. 1975) To the extent that the Defendant's counsel waived time or had Defendant request continuances, this would not be attributed to Defendant, due to counsel's actions contradicting the best interest of Defendant, regardless of Defendant being bound by counsel's actions, defense continuances don't excuse lengthy delays in the disposition of a case. United States v. Lam, 251 F. 3d 852 (9th Cir. 2001).
The actions of the Government to delay trial of Defendant, has led directly, prejudicially, and unlawfully to a denial of right to speedy trial in the instant case. Through said Delay the Government seriously and intentionally infringed upon the right of due process of law, under the 14th amendment to the United States Constitution; and Article 1, section 9, Florida Constitution, which the Supreme Court has held to be the "The law of the land." In the instant case, the Court has no prerogative. The Court must immediately order an immediate dismissal of all charges against the Defendant with prejudice
State v. Dowling, 110 So. 2d. 522, 523 (FLA. 1926) Therefore, petitioner should be released from custody immediately; and charges dismissed with prejudice to bar any re-prosecution of the criminal charges. Whereas, a violation of Sixth Amendment right to speedy trial or failure to prosecute requires dismissal.
Strunk v. United States, 412 U.S. 434, 439 - 40, 93S.CT. 2260 (1973); McNeely v. Blanas, 336 F. 3d 822 (9th cir. 2003). Any denial of dismissal would be void, being inconsistent with due process of law. Omer v. Shalala, 30 F.3d 1307, 1308 (1994), and Bass v. Hoagland,172 F.2d 205,209 (1949).
All public employees in Florida, having sworn and bound themselves by oaths of loyalty to the Constitutions of the USA and Florida pursuant to Florida Statute 876.05, have the obligation actively and assiduously to protect the rights of the people when circumstances permit, especially when required by job descriptions or when jobs place public employees in proximity to the people.
Failure immediately to dismiss the charges against the Defendant would constitute an egregious violation of the Public Employees Oath of loyalty to the US and Florida constitutions under Florida Statute 876.05, under the Florida Constitution Article II Section 5(b), and the US Constitution Article VI Clause 2 and 3, and the Bill of Rights and Amendments 13 and 14. Said failure would invoke the protections by numerous state and federal laws, including but not limited to 18 USC 242, "Deprivation of Rights Under Color of Law," 18 USC 241 "Conspiracy Against Rights," Florida Statute 760.51 "Violation of Constitutional Rights," Florida Statute 839.24 "Penalty for failure to perform the duty of a public officer in criminal proceedings," and Florida Statute 843.0855 (2) "Obstruction of justice under color of law." All Government employees involved directly or indirectly would thereby become subject to serious civil and criminal litigation for their respective roles in the violations of numerous Constitutional rights of Defendant. Thus, this honorable Court must immediately and with prejudice dismiss all charges against Defendant in the instant case.
PUBLIC EMPLOYEES BOUND TO LOYALTY OATHS
Pursuant to Florida Statute 876.05 and contract law, Defendant hereby accepts the Public Employee Oath and all other oaths, including bar oaths, of loyalty to the Constitutions of the USA and Florida sworn or affirmed by all attorneys and public employees associated in any way with the Defendant or the instant case as a pre-condition of obtaining their jobs and receiving associated compensation. Defendant binds the aforesaid public employees and attorneys to their loyalty oaths and admonishes them to protect Defendant's God-given, Constitution-guaranteed rights assiduously and diligently at all times, under penalty of numerous state and federal laws including, but not limited to those cited herein.
CONCLUSION
WHEREFORE, Defendant based upon the foregoing facts and authorities, moves this court to enter order dismissing the charges in this case with prejudice; and Order the immediate release of Defendant, in the best interest of Justice and Due Process.
Respectfully Submitted;

Signature: _____________________________Pro se Date:_______________

Address: ___________________________________

City/State/Zip: ______________________________

Printed name: _______________________________

CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing has herein been furnished, to the office of the State Attorney for ________ County, on this____day of__________, 2007. via hand delivery
Respectfully Submitted,
Signature __________________ ____________ Date: ______________
Printed Name _______________________________

. IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT,
IN AND FOR ______________ COUNTY, FLORIDA
CRIMINAL DIVISION
­­­­­­­­­­­­­­­­­­­­ STATE OF FLORIDA
Plaintiff
Vs. Case No.:(s)_
______________________
Defendant
ORDER TO DISMISS

Having found that Plaintiff failed to bring the instant case to conclusion of trial within the time allowed by law and Judicial Rules, this Court acknowledges that Plaintiff denied Defendant's right to a speedy trial. This Court therefore now orders the immediate dismissal with prejudice of all charges in the instant case against the Defendant, the immediate discharge and liberation of the Defendant from incarceration, the return of all of Defendant's property, the immediate repair at Plaintiff's expense of all damage done to Defendant and Defendant's property during or consequent to the arrest and incarceration, immediate payment by the Plaintiff of all storage, impound, and other fees for Defendant's vehicle and other property encumbered as a consequence of Defendant's arrest and incarceration, the transportation of Defendant by Defendant's choice of public or private automobile, or other public conveyance to Defendant's dwelling place at Plaintiff's sole expense, the immediate writing and hand delivery to Defendant of a formal apology by Plaintiff's prosecutor in the instant case for violating Defendant's Constitutionally guaranteed right to a speedy trial, for which let execution issue forthwith.

_______________________________________ ____________
Judge Date Ordered


------------------------ Start of Law Referenced -----------------------

Law References (not part of motion)

U.S. Constitution, Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Constitution, Amendment XIV.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.


Florida Constitution Article I Section 16.  Rights of accused and of victims.

(a)  In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.

Florida Rules of Civil Procedure 1.420 Dismissal of Action

(b) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

RULE 3.191. SPEEDY TRIAL

  1. Speedy Trial without Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (f), every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony. If trial is not commenced within these time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d). A person charged with a crime is entitled to the benefits of this rule whether the person is in custody in a jail or correctional institution of this state or a political subdivision thereof or is at liberty on bail or recognizance or other pretrial release condition. This subdivision shall cease to apply whenever a person files a valid demand for speedy trial under subdivision (b).
  2. Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled "Demand for Speedy Trial," and serving a copy on the prosecuting authority.
  1. No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.
  2. At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call.
  3. The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision.
  4. If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p).
  1. Commencement of Trial. A person shall be considered to have been brought to trial if the trial commences within the time herein provided. The trial is considered to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination or, on waiver of a jury trial, when the trial proceedings begin before the
judge.
  1. Custody. For purposes of this rule, a person is taken into custody (1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or (2) when the person is served with a notice to appear in lieu of physical arrest.
  2. Prisoners outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this state, is not entitled to the benefit of this rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person's return is filed with the court and served on the prosecutor. For these persons, the time period under subdivision (a) commences on the date the last act required under this subdivision occurs. For these persons the time period under subdivision (b) commences when the demand is filed so long as the acts required under this subdivision occur before the filing of the demand. If the acts required under this subdivision do not precede the filing of the demand, the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing in this rule shall affect a prisoner's right to speedy trial under law.
  3. Consolidation of Felony and Misdemeanor. When a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.
  4. Demand for Speedy Trial; Accused Is Bound. A demand for speedy trial binds the accused and the state. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be considered a pleading that the accused is available for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated the case or who is not timely prepared for trial shall be stricken as invalid on motion of the prosecuting attorney. A demand may not be withdrawn by the accused except on order of the court, with consent of the state or on good cause shown. Good cause for continuances or delay on behalf of the accused thereafter shall not include nonreadiness for trial, except as to matters that may arise after the demand for trial is filed and that reasonably could not have been anticipated by the accused or counsel for the accused. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this rule.
  5. Notice of Expiration of Time for Speedy Trial; When Timely. A notice of expiration of speedy trial time shall be timely if filed and served on or after the expiration of the periods of time for trial provided in this rule. However, a notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid and shall be stricken on motion of the prosecuting attorney.
  6. When Time May Be Extended. The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:
  1. stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced;
  2. written or recorded order of the court on the court's own motion or motion by either party in exceptional circumstances as hereafter defined in subdivision (l);
  3. written or recorded order of the court with good cause shown by the accused; or
  4. written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, and for trial of other pending criminal charges against the accused.
(j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:
  1. a time extension has been ordered under subdivision (i) and that extension has not expired;
  2. the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
  3. the accused was unavailable for trial under subdivision (k); or
  4. the demand referred to in subdivision (g) is invalid.
If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (3), or (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial.
(k) Availability for Trial. A person is unavailable for trial if the person or the person's counsel fails to attend a proceeding at which either's presence is required by these rules, or the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for in this rule is not entitled to be discharged. No presumption of nonavailability attaches, but if the state objects to discharge and presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability during the term.
(l) Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include:
  1. unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;
  2. a showing by the state that the case is so unusual and so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;
  3. a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time;
  4. a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial;
  5. a showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant; and
  6. a showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.
(m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate,
order, or notice of whatever form from a reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).
  1. Discharge from Crime; Effect. Discharge from a crime under this rule shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and that were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.
  2. Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.
  3. Remedy for Failure to Try Defendant within the Specified Time.
  1. No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
  2. At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled "Notice of Expiration of Speedy Trial Time," and serve a copy on the prosecuting authority.
  3. No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.
US Constitution Article VI
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Florida Constitution Article II Section 5.  Public officers.--

(a)  No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.
(b)  Each state and county officer, before entering upon the duties of the office, shall give bond as required by law, and shall swear or affirm:
"I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and of the State of Florida; that I am duly qualified to hold office under the Constitution of the state; and that I will well and faithfully perform the duties of  (title of office)  on which I am now about to enter. So help me God.",

and thereafter shall devote personal attention to the duties of the office, and continue in office until a successor qualifies.
(c)  The powers, duties, compensation and method of payment of state and county officers shall be fixed by law.

876.05  Public employees; oath.--

(1)  All persons who now or hereafter are employed by or who now or hereafter are on the payroll of the state, or any of its departments and agencies, subdivisions, counties, cities, school boards and districts of the free public school system of the state or counties, or institutions of higher learning, and all candidates for public office, except candidates for federal office, are required to take an oath before any person duly authorized to take acknowledgments of instruments for public record in the state in the following form:
I, _____, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of _____ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.
(2)  Said oath shall be filed with the records of the governing official or employing governmental agency prior to the approval of any voucher for the payment of salary, expenses, or other compensation.

760.51  Violations of constitutional rights, civil action by the Attorney General; civil penalty.--

(1)  Whenever any person, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any other person of rights secured by the State Constitution or laws of this state, the Attorney General may bring a civil or administrative action for damages, and for injunctive or other appropriate relief for violations of the rights secured. Any damages recovered under this section shall accrue to the injured person. The civil action shall be brought in the name of the state and may be brought on behalf of the injured person. The Attorney General is entitled to an award of reasonable attorney's fees and costs if the Department of Legal Affairs prevails in an action brought under this section.
(2)  Any person who interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any other person of rights secured by the State Constitution or laws of this state is liable for a civil penalty of not more than $10,000 for each violation. This penalty may be recovered in any action brought under this section by the Attorney General. A civil penalty so collected shall accrue to the state and shall be deposited as received into the General Revenue Fund unallocated.

18 USC § 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 USC § 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Florida Statute 839.24  Penalty for failure to perform duty required of officer.

A sheriff, county court judge, prosecuting officer, court reporter, stenographer, interpreter, or other officer required to perform any duty under the criminal procedure law who willfully fails to perform his or her duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

843.0855  Criminal actions under color of law or through use of simulated legal process.--

(1)  As used in this section:
(a)  The term "legal process" means a document or order issued by a court or filed or recorded for the purpose of exercising jurisdiction or representing a claim against a person or property, or for the purpose of directing a person to appear before a court or tribunal, or to perform or refrain from performing a specified act. "Legal process" includes, but is not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading, subpoena, or order.
(b)  The term "person" means an individual, public or private group incorporated or otherwise, legitimate or illegitimate legal tribunal or entity, informal organization, official or unofficial agency or body, or any assemblage of individuals.
(c)  The term "public officer" means a public officer as defined by s. 112.061.
(d)  The term "public employee" means a public employee as defined by s. 112.061.
(2)  Any person who deliberately impersonates or falsely acts as a public officer or tribunal, public employee or utility employee, including, but not limited to, marshals, judges, prosecutors, sheriffs, deputies, court personnel, or any law enforcement authority in connection with or relating to any legal process affecting persons and property, or otherwise takes any action under color of law against persons or property, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(3)  Any person who simulates legal process, including, but not limited to, actions affecting title to real estate or personal property, indictments, subpoenas, warrants, injunctions, liens, orders, judgments, or any legal documents or proceedings, knowing or having reason to know the contents of any such documents or proceedings or the basis for any action to be fraudulent, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(4)  Any person who falsely under color of law attempts in any way to influence, intimidate, or hinder a public officer or law enforcement officer in the discharge of his or her official duties by means of, but not limited to, threats of or actual physical abuse or harassment, or through the use of simulated legal process, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.
(5)(a)  Nothing in this section shall make unlawful any act of any law enforcement officer or legal tribunal which is performed under lawful authority.
(b)  Nothing in this section shall prohibit individuals from assembling freely to express opinions or designate group affiliation or association.
(c)  Nothing in this section shall prohibit or in any way limit a person's lawful and legitimate access to the courts or prevent a person from instituting or responding to legitimate and lawful legal process.







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3 comments:

Nathan said...

You asked if a Habeas means anything anymore.

The answer is clearly: only if a judge(s) that rules upon it provides consideration properly due, and that in Florida is highly unlikely. While Habeas is supposed to be treated as an emergency motion, case history will find that often months pass before any action is taken, and when sufficient time passes, the court often dismisses it as now moot.

Nathan said...

One other thing:
If the defendant has been appointed counsel, the habeas writ pro-se will be treated as a nullity.

The defendant, must at the same time within this habeas, demand his attorney to be discharged on the basis of incompetency stating sufficient reasons to compel the reviewing court to find that before consideration of the habeas itself.

It almost impossible to do pro-se.

Bob Hurt said...

Mightn't a competent attorney file the habeas on behalf of the defendant?

What law or rule empowers the court to ignore the petition just because an attorney represents the defendant?