Professional Documents
Culture Documents
v.
STATE OF FLORIDA,
Appellee/Respondent.
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_____________________________________________________________
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Table to Contents
Page
Table of Contents ii
Table of Citations iii, ii
Summary of the Argument 1-2
Argument 3-15
Conclusion 15
Certificate of Service 16
ii
Table to Citations Page
6
B.L.M. v. State, App. 5 Dist., 684 So.2d 893 (1998)
Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984) 12
In Interest of T.M.M., App. 4 Dist., 560 So.2d 80 (1990) 6
J.G.D. v. State, App. 3 Dist., 724 So.2d 711(1999)
6
5
Jay v. State, App. 4 Dist., 731 So. 2nd 774 (1999)
Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986) 12
Ritter v. State, 885 So. 2d 413 (Fla. 2004) 12
Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997)
10
Wilson v. State, App. 2 Dist., 707 So.2d 893 (1998) 6
iii
Other Authorities Page
6
§843.02, Florida Statute
12
§924.06, Florida Statute
Florida Jur 2d Appellate Review, §179 12‐13
Florida Rule of Appellate Procedure 9.200
13, 15
iv
SUMMARY OF ARGUMENT
The five officers had already concluded their investigation into the
traffic accident, which is why all five officers were able to walk away from
the scene and approach the lone photographer, the Appellant, who was
allowed.
sidewalk on the other side of the street, the State contradicts itself in its
answer brief by placing the Appellant back on the street, which is the only
But after the Appellant was escorted across the street, he was lawfully
else, and was arrested only because he exercised his First Amendment right
1
Using evidence that came into existence after the arrest and in one
case, more than a year after the arrest, the State attempted to prove
predisposed bias and motive that lead to the arrest, which is an impossibility.
In the process, the State used the words “Nazi” and “Gestapo”, which
inflamed the jury to the point where they convicted the Appellant of
appealable despite the fact that failed to preserve the record in the lower
tribunal.
And finally, the Appellant has provided the relevant and adequate
2
ARGUMENT
middle of the street when he was arrested even though police officer
the Appellant was escorted to the sidewalk but then somehow was arrested
3
The State’s contradiction mirrors the contradiction on the initial arrest
report when police wrote that they first spotted Appellant in the middle of
the street, yet later escorted Appellant to the middle of the street, a detail
that two police officers admitted was a mistake through testimony. [A.1,
These contradictions are noteworthy because the only way the State
(and police) can justify the arrest is to place the Appellant in the middle of
Further contradicting this allegation are the photos that the Appellant
snapped in the seconds before he was arrested which shows the street
behind the officers, making it a physical impossibility for him to have been
standing in the middle street taking photos when he was arrested. [A.13]
[A.14]
The truth is, the Appellant was never standing in the middle of the
street but in the construction zone on the west side of the street, which was
The truth is, police escorted the Appellant from the construction zone
on the west side of Biscayne Blvd to the sidewalk on the east side of
Biscayne Blvd.
4
The truth is, police had already concluded their accident investigation,
which is why all five officers were able confront the Appellant after he
The truth is, police arrested the Appellant on the east sidewalk after
they escorted and released him because he continued to snap photos while
they were ordering him to leave an area where he was lawfully standing.
The truth is, police did not have probable cause to arrest Appellant.
The truth is, police were not acting in the lawful execution of a legal
violence conviction.
According to Jay v. State, App. 4 Dist., 731 So. 2nd 774 (1999), the law
In the instant case, the officers were merely on the job, having
5
As pointed out by the State, a police officer must be engaged in a
State, App. 3 Dist., 724 So.2d 711(1999); Wilson v. State, App. 2 Dist.,
707 So.2d 893 (1998); and T.M.M., App. 4 Dist., 560 So.2d 80 (1990).
order and disorderly conduct, the most relevant case is Lee v. State, App. 3
II. THE STATE’S INTRODUCTION OF THE BLOG WHICH
WAS CREATED AFTER THE ALLEGED INCIDENT WAS
IMPROPER EVIDENCE OF BIAS AND MOTIVE WHOSE
SOLE PURPOSE WAS TO INFLAME AND UNFAIRLY
PREJUDICE THE JURY
While the court is given broad discretion in the use of
evidence to show bias or motive, it was inadmissible in the
6
instant case because the State was depending on evidence
that occurred after the Appellant was arrested.
The State would like the Court to believe that the Appellant purposely
would enable him to cash in on all the “pecuniary gain or notoriety” that
The State would also like the Court to believe that the Appellant
harbors such deep resentment against police officers, that he would risk
But the State has been unable to proof that the Appellant had
The truth is, the Appellant did not launch his blog until April 28th,
2007, more than two months after his arrest. And he only did so because
there had been a plethora of misinformation about his arrest on the internet
position. Set the record straight through his writing. He also planned to
7
document his trial, but his trial dates were continually delayed for a variety
of different reasons.
own arrest had put him on the forefront of what he perceived were an
In only two articles in the entire blog, the Appellant used the words
As it turned out, the City of Los Angeles ended up paying more than
The State also mentioned an article that the Appellant posted on June
5th, 2008 – more than 15 months after his arrest - where he stated that he
rights violated. [Appellee’s brief, page 11] It is perverse for the State to
8
argue that there is a scintilla of relevance in this evidence to show a motive
for resisting arrest. Moreover, the State has not shown how this evidence’s
Defendant.
In the instance case, the evidence did not even come into existence until
after the arrest, which makes it impossible for it to have been a motive for
It did nothing but mislead, inflame and confuse the jurors to the point
where they convicted the Appellant for resisting without violence, despite
9
If the introduction of certain evidence tends in actual
operation to produce a confusion in the minds of the
jurors in excess of legitimate probative effect of such
evidence and tends to obscure rather than illuminate the
true issue before the jury, such evidence should be
excluded.
The State argues that the Appellant’s sentence must stand because he
failed to object during the trial, therefore failing to preserve the record.
The State also argues that even if the Appellant had preserved the
record, he would not have a valid argument because the Trial Court’s
However, when the Trial Court handed down a harsher sentence than
illegal sentence, meaning the Appellant had every right to appeal the issue
The State argues that the Trial Court’s mention of Appellant’s “lack of
cited cases; Melton v. State, 949 So. 2d 994 at 1015 (Fla. 2006) and
10
But in the former case, the lack of remorse reference was made during
the Trial Court, not during the sentencing, which is why the Appellate
And in the latter case, the mention of lack of remorse came from the
prosecutor, not the judge, meaning it really had no bearing on the actual
sentence.
However, in the instant case, the judge not only stated he was
11
This is confirmed by numerous court rulings and case law, including
Ritter v. State, 885 So. 2d 413 (Fla. 2004); Lyons v. State, 730 So. 2d 833
(Fla. 4th DCA 1999); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986);
and Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984).
Furthermore, the fact the Appellant’s due process rights were violated
The State argues that the Appellant has failed to provide an adequate
Thus, he has provided the “adequate record” which is all that is asked
12
Nowhere in the Rules of Appellate Procedure is it required that the
Appellant must provide the entire transcript of the trial. The law
And while the State cites Florida Rule of Appellate Procedure 9.200 to
support its argument, it fails to point out that the first section of the rule
The key phrase here is “if any” because in the instant case, there was no
Absolute Video, 168 SE 1st St., # 707, Miami, FL 33131. Because it was a
13
two-day trial, the Appellant was told it would cost $3,000 to get the entire
trial transcribed.
Therefore, when faced with a $3,000 fee to transcribe the entire trial,
the Appellant instead purchased a $25 audio CD of the trial and spent
several days listening for the relevant and adequate portions that pertained
of appeal.
Furthermore, the State filed for two 45-day motions for extension since
the Appellant filed the initial brief, meaning it had more than three months
But the State would not even notify the Appellant when it was filing
justifying these refusals by pointing out that the Appellant is pro se.
prove that prejudicial error was committed, then the Appellant respectfully
14
But if that is not possible, then the Appellant requests that he be given
the opportunity to come up with the transcript under Fla. R. App. P. 9.200
This rule was enacted to prevent the State from using a legal
actual legal argument based on the merits of the case, according to Fla. R.
CONCLUSION
15