IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY FLORIDA

CARLOS MILLER, pro se CASE NO. 08-326 AC L.T. Case No. M0710544 Appellant/Petitioner,

v.

STATE OF FLORIDA,

Appellee/Respondent. _________________________/

_____________________________________________________________ APPELLANT’S INITIAL BRIEF (CORRECTED) _____________________________________________________________

 

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TABLE OF CONTENTS Table of Contents Table of Citations Statements of Facts and the Case Summary of the Argument Argument I. The lower tribunal erred when it allowed the jury to hand down inconsistent verdicts in the fact that they found Miller guilty of resisting arrest without violence yet found him innocent of refusing to obey a lawful order and disorderly conduct because all three charges are inextricably intertwined. II. The lower tribunal erred when the State was allowed to enter inadmissible evidence during cross-examination resulting in improper character evidence such that it was unfairly prejudicial, irrelevant and intended to inflame the jury.1 III. The lower tribunal erred when Judge Jose L. Fernandez unconstitutionally sentenced Miller to a harsher sentence than sought by the State on the basis that Miller had maintained his innocence throughout the trial.

i ii, iii 1-5 5-8

      8‐13 

13‐18 

19‐23 

Conclusion
                                                        

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1 Argument II was corrected after scrivener inadvertently repeated Argument I in 

original brief 

 

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Certificate of Service Certificate of Font Size and Type

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Table to Citations Page A.K. v. State, 898 So. 2d 1112, 1116 (Fla. 4th DCA 2005) Barry v. State 934 So. 2d 656 (Fla. App. 2 Dist., 2006) Dyes v. Spick, 606 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 1992) Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983) Holton v. State, 573 So.2d 284, 292 (Fla.1990) Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984) Huntley v State, 575 So. 2nd 285 (Fla. Dist. Ct. App. 5th Dist. 1991) K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th DCA 2001) Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999) Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986) Ritter v. State, 885 So. 2d 413 (Fla. 2004) 18 18 11 9 20, 22 21 11-12 22 21 21 21-22

 

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Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1st Dist. 1999) Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004) State v. Nova, 361 So. 2d 411, 412 (Fla. 1978)2 State v. Powell, 674 So. 2d 731, 733 (Fla. 1996) Other Authorities Florida Statute §316.072(3) Florida Statute §316.2045(1) Florida Statute §843.02 Florida Statute §877.03 Florida Evidence Code Section 90.403 Florida Evidence Code Section 90.404 Florida Jur 2d, Appellate Review, §341 Florida Jur 2d, Criminal Law, §4124

10-12 22 10 9 Page 4, 5, 8 4 4-5, 9, 11 3, 5, 8 6, 15 6, 14 11 12

                                                        
2 Citation was inadvertently omitted in original brief 

 

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STATEMENT OF FACTS OF CASE On February 21, 2007, Miami-based photojournalist Carlos Miller [A.4, page 4, lines 10-14] was working on an assignment on Biscayne Blvd in the area of NE 67 St. [A.5, page 4, lines 9-12]. Miller, who operates a one-man business called Magic City Media where he offers writing, photography and video services to magazines, websites and companies, was working on an article about the positive transition undergoing Biscayne Blvd, including the increase in property values, the rise of new restaurants and businesses, and the reduction of crime. [A. 5, page 4, lines 13-19] At about 7 p.m., Miller came across a group of five Miami police officers who were conducting an accident investigation inside a construction zone on the west side of Biscayne Blvd, just south of NE 67 St. [A.1, page 6, lines 2-16] At the time, because it was going through renovations, Biscayne Blvd was limited to two lanes; one going north, one going south. [A.1, page 7, lines 7-10] What is now an additional two lanes was a gravel construction area separated by barricades [A.13, page 7, line 13] [A.11]. This matter was tried before a jury from June 16, 2008 though June 17, 2008 with Miller testifying that he had been standing inside the construction zone, where no cars were allowed, about 20 feet from the
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officers, when he took a couple of photographs for his article using a telephoto and wide-angle lens [A.12]. Miller also testified that when police spotted him, they told him to leave the area because they were dealing with “a private matter” [A.6, page 5, line 4], but he asserted his First Amendment rights to photograph the police officers. That led to all five officers approaching him with Sergeant Ronald Rahming grasping Miller’s arm and escorting him across Biscayne Blvd to the east sidewalk [A.6, pages 8-9, lines 10-7] [A.13][A.14] and releasing him. Miller also testified that once he was on the east sidewalk, police continued to order him to leave the area, but he once again asserted his First Amendment rights to stand on a public sidewalk and document the officers [A.6, pages 8-9, lines]. He also continued taking photographs, which angered the officers [A.6, page10, lines 2-7]. The evidence showed that police officers then pounced on Miller and arrested him, charging him with nine misdemeanors, including five counts of failure to obey a lawful order and one count each of obstruction of traffic, obstruction of justice, disorderly conduct and resisting arrest without violence. [A.8] According to the arrest affidavit, police claimed Miller was not standing inside the construction zone, but “standing in the middle of a busy street, blocking the traffic” when they first spotted him. [A.8]. However, the
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arrest affidavit also claimed that police “escorted the defendant to the middle of the street and told him to cross to the sidewalk,”[A.8] making the affidavit contradict itself because of the inconsistent statements. Miami police officer Anthonius Kurver, who wrote and signed the sworn affidavit, later testified that he had made a mistake when he wrote that [A.1, page 41, lines 16-18], and instead meant to write that police escorted Miller to the east sidewalk. Sergeant Rahming also testified that this statement was a mistake [A.3, page 5, lines 11-18], confirming that he did escort Miller to the sidewalk, even though as commanding officer, he had approved the affidavit at the time of the arrest. Rahming also testified that even though he escorted Miller to the sidewalk, [A.3, page 6, lines 7-14], Miller somehow remained in the street, refusing to leave, which is why they arrested him. Miller testified that he was only arrested after he snapped a couple of photos from the sidewalk, one which was admitted into evidence during the trial and shows the street behind the officers. [A.13][A.14] The State reduced the original nine charges to four counts, including three misdemeanors and one traffic infraction, i.e, one count of disorderly conduct [Florida Statute §877.03], one count of resisting arrest without
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violence [Florida Statute §843.02], one count of failure to obey a lawful order [Florida Statute §316.072(3)], and one count of obstructing traffic [Florida Statute §316.2045(1)], which was the traffic infraction and not brought before the jury. While awaiting trial, Miller launched a blog titled Photography is Not a Crime (www.carlosmiller.com), where he used his journalistic skills and First Amendment rights to maintain his innocence, document developments in his case and report on violations against other photographers and journalists throughout the country. [A.2, page 4, lines 5-14]. Portions of this site, which were published two months after the arrest and did not pertain to the arrest, were allowed by the judge as evidence, resulting in improper character evidence, which ended up inflaming the jury thereby unfairly prejudicing Miller. After hearing all the evidence and the judge’s jury instructions, the jury acquitted Miller of failure to obey a lawful order and disorderly conduct, but convicted him of resisting arrest without violence. Judge Jose L. Fernandez then ruled that Miller was guilty of obstructing traffic, which was the traffic infraction.

 

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The judge sentenced Miller to one-year probation, 100 community hours and anger management class. At the sentencing, the judge stated that he was “shocked” at Miller’s “lack of remorse”, and revealed that he did not appreciate Miller using his blog as a way to maintain his innocence. He also accused Miller of trying to be “some kind of hero” for maintaining his innocence on a public forum and suggested he “go visit Arlington” to see real heroes. [A.1, pages 70-71, lines 19-13] SUMMARY OF THE ARGUMENT I. The jury handed down an inconsistent verdict when it acquitted Miller of failure to obey a lawful order [Florida Statute §316.072(3)] and disorderly conduct [Florida Statute §877.03], but finding him guilty of resisting arrest without violence [Florida Statute §843.02], which are all legally interlocking charges. The judge contributed to this inconsistent verdict by finding Miller guilty of obstructing traffic, the traffic infraction, notwithstanding the fact that the jury had already determined that Miller was not obstructing traffic when it acquitted him of the two charges. This inconsistency as a matter of law renders the conviction a nullity. Thus, Miller is entitled to a judgment of

 

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acquittal as a matter of law as to Count 2, of resisting arrest without violence. II. The State was allowed to enter evidence under objection that was unfairly prejudicial, irrelevant and intended to inflame the jury in violation of Fla.R.Evid. 90.403 and Fla.R.Evid. 90.404. As the State was cross-examining Miller, the prosecutor brought up an article that Miller had written on his blog two months after his arrest in which he compared a group of Los Angeles police officers to Gestapo soldiers because they had been caught on video using excessive force against journalists and children in a highly controversial incident that resulted in lawsuits against the police department. [A.2, pages 4-9] Although Miller’s attorney argued that this article was irrelevant [A.2, page 4, lines 25] and unfairly prejudicial, the judge committed fundamental error by allowing the prosecutor to proceed with his questions, even refusing to allow Miller to explain the context of the article. In fact, the State even twisted Miller’s written words into saying he had stated that all law enforcement officers were Gestapo soldiers [A.2, page 8, lines 23-24], therefore characterizing Miller as extremely biased against police officers
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and inflaming the jury to the point where they found him guilty of resisting arrest without violence, even though the rest of the evidence forced them to acquit him on the other charges. The judge abused his discretion and committed fundamental error in allowing this evidence at trial. III. Judge Fernandez issued Miller a harsher sentence than sought by the State because Miller had maintained his innocence throughout the trial, and due to the consideration of irrelevant and unfairly prejudicial evidence, namely the contents of Miller’s website. This was evidenced during the sentencing when the judge told Miller, “I am shocked at your lack of remorse.” Prosecutor Ignacio Vasquez recommended that Miller be sentenced to three months probation, fifty hours community service, anger management classes and court fees for his conviction of resisting arrest without violence. However, Judge Fernandez more than doubled this sentence, sentencing Miller to one year probation, 100 hours of community service, anger management classes and court fees. In issuing a harsher sentence than was sought by the state, Judge Fernandez declared that he was “shocked” at Miller’s “lack of remorse” and
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insinuated that Miller purposely got himself arrested to become “some kind of hero”. The judge also revealed that he was upset that Miller had launched a blog after his arrest where he maintained his innocence, documented developments in his case, including the trial, and reported on violations against other photographers and journalists throughout the country. The sentence thus violated Miller’s due process rights and constitutes an abuse of discretion and should be overturned. Argument I. The lower tribunal erred when it allowed the jury to hand down inconsistent verdicts in the fact that they found Miller guilty of resisting arrest without violence yet found him innocent of refusing to obey a lawful order and disorderly conduct because all three charges are inextricably intertwined. When the jury acquitted Miller for failure to obey a lawful order [Florida Statute §316.072(3)] and disorderly conduct [Florida Statute §877.03], but found him guilty of resisting arrest without violence [Florida Statute §843.02], it essentially handed down an inconsistent verdict mandating that Miller be acquitted as a matter of law on the underlying count of resisting arrest without violence as the resisting arrest is buttressed

 

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on the same facts which underlie the refusing to obey a lawful order and disorderly conduct counts. Although the general rule in Florida is that inconsistent verdicts are permissible, the Florida Supreme Court has recognized one exception; the “true inconsistent” verdict. As defined in State v. Powell, 674 So. 2d 731, 733 (Fla. 1996), "[a] ‘true’ inconsistent verdict occurs when verdicts against one defendant on legally interlocking charges are truly inconsistent." Such verdicts are permissible. Also, as Justice Anstead explained when writing for the Fourth District Court of Appeal in Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983), true inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count.” In this case, it was proven that Miller had not refused a lawful order and had not committed disorderly conduct, the underlying basis of the resisting arrest Count. Thus, there was no probable cause or reasonable suspicion of basis for the officers to arrest Miller in the first place. The only reason the officers even approached Miller was because he was photographing them while they were conducting an accident investigation,

 

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which is not only inconsistent with criminal activity, but it is his First Amendment right to do so. Sgt Rahming even testified that he had “made the decision to arrest him after we were on the other side of the street,” [A.3, page 6, lines 10-11] which proves that Miller was not standing in the middle of the road as police claimed. Sgt. Rahming also acknowledged that even though police were testifying that Miller was refusing to get on the sidewalk once he was escorted across the street, that detail was never mentioned in the arrest affidavit. [A.3, page 7, lines 17-20] So not only is it clear that there was never any probable cause to arrest Miller, it is clear that police violated Miller’s Fourth Amendment rights in detaining him illegally. And although trial courts findings of fact are entitled to deference, as stated in State v. Nova, 361 So. 2d 411, 412 (Fla. 1978), “appellate courts also have a role to play in ensuring that Constitutional prohibitions against unreasonable searches and seizures are observed,” as stated in Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst Dist. 1999). And the fact that probable cause must be proven in order to justify a resisting without violence charge has already been settled in Florida appeal
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courts, including Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst Dist. 1999) and Huntley v. State, 575 So. 2d 285 (Fla. Dist. Ct. App. 5th Dist. 1991). Moreover, since Miller was acquitted of refusing to obey a lawful order, it makes the commission of the act of resisting arrest based on the failure to follow a lawful order an impossibility thereby warranting that the conviction be overturned and that a judgment of acquittal be entered in favor of Miller. As stated in Florida Jur 2d, Appellate Review, §341, which cites Dyes v. Spick, 606 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 1992): A reviewing court has the obligation to set aside a verdict where the verdict is against the manifest weight of the evidence.

Resisting without violence is governed by Florida Statutes § 843.02 and requires proof of resisting, obstructing, or opposing a law enforcement officer performing a “lawful execution of any legal duty”. Therefore, lawful arrest is an element that the State must prove in order to establish that the defendant resisted arrest without violence. However, the State failed to prove this essential element thereby mandating that Miller be found not guilty as a matter of law as to Count 2.
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This point is further emphasized in Florida Jur 2d, Criminal Law, §4124, which cites Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst Dist. 1999) and Huntley v. State, 575 So. 2d 285 (Fla. Dist. Ct. App. 5th Dist. 1991): “A person is not justified in using force to resist arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer, but nonviolent resistance to an unlawful arrest is no crime. In fact, a lawful arrest is an essential element of the offense of resisting arrest without violence.” To further see how inextricably intertwined these charges are, read how the State described these charges in court documents contained in the Record on Appeal [A.9] [A.10]: In Count 1, the disorderly conduct charge, the State accused Miller of “BLOCKING STREET AND RESISTING OFFICER CAUSING DELAY IN ACCIDENT INVESTIGATION.” In Count 2, the resisting arrest without violence charge, the State accused Miller of “REFUSING TO OBEY LAWFUL COMMANDS.” In Count 3, the failure to obey a lawful order charge, the State accused Miller of refusing to “MOVE OUT OF STREET” when the officers ordered him to.

 

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In Count 4, the obstructing traffic charge, which was reduced to a traffic infraction, the State accused Miller of standing or approaching motor vehicles thereon”. If Miller was acquitted of disorderly conduct, that means that he was not “blocking street and resisting officer” as the State alleged. Therefore, by convicting him of resisting arrest without violence, the jury returned with a true inconsistent verdict. And if he was acquitted of failure to obey a lawful order, then that means the officers were giving him an unlawful order or not order at all. The standard of review is de novo. II. The lower tribunal erred when the State was allowed to enter inadmissible evidence during cross-examination resulting in improper character evidence such that it was unfairly prejudicial, irrelevant and intended to inflame the jury.

During Miller’s testimony, the State brought up an article that Miller had published on his blog on May 5th3, 2007 about an incident in Los Angeles that occurred on May 1st, 2007 where several LAPD police officers dressed in indistinguishable riot gear were caught on video shooting rubber
                                                        
3 Date was inadvertently incorrect in original brief  

 

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bullets and using batons against children and journalists who had gathered at a public park for a non-violent immigration protest. [A.2, page 4] [A.16] The highly controversial incident sparked several lawsuits and investigations against the Los Angeles Police Department and eventually resulted in 15 officers being disciplined, including four who were terminated, and recently resulted in the City of Los Angeles agreeing to pay a $13 million settlement to protesters and bystanders, with more payouts expecting to go towards journalists. [A.17] [A.18] In his article, Miller compared these LAPD officers to the Gestapo as a metaphor to describe the extent of their overly aggressiveness. The State brought up this article during cross-examination in an attempt to create a pattern of conformity that Miller was biased against police officers as well as to inflame the jury. However, according to Fla.R.Evid. 90.404, character evidence is not admissible to prove that a person acted in conformity with his or her character. When the State initially brought up this article during Miller’s testimony, Miller’s attorney asked to go into sidebar to discuss the merits of these questions. Miller’s attorney argued that the article was irrelevant to the

 

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case, especially considering that it was written more than two months after Miller’s arrest. In the sidebar, the State argued that the article proved that Miller had “a history of hating police” [A.2, page 5, line 11]4 and accused Miller of “reliving a fantasy world where he’s being kicked down or he’s the oppressed person by the Nazis” [A.2, page 6, lines 19-21]5 and that Miller was doing this “to the detriment of these officers.” [A.2, page 6, lines 2324]6 In the sidebar, Judge Fernandez agreed that this article “shows a bias against police officers” [A.2, page 7, lines 23-24]7 and allowed the State to continue with these questions. Notwithstanding that the evidence had no probative value whatsoever, even if it did, the probative value was outweighed by the unfair prejudice to Miller. As this evidence was unfairly prejudicial, it should have been excluded under Fla.R.Evid. 90.403.

                                                        
4 Citation was inadvertently omitted in original brief.  5 Citation was inadvertently omitted in original brief  6  Citation was inadvertently omitted in original brief  7  Citation was inadvertently omitted in original brief 

 

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The prosecutor continued his cross-examination, resulting in improper and unfairly prejudicial inadmissible character evidence against Miller. The cross examination went as follows: [A.2, pages 8-9, lines 23-6] Iglesias: “On the same website, you also described law enforcement as Gestapo. What is the Gestapo, sir?’ Miller: “In that case, it was um …” Iglesias: “Objection, non responsive, please answer my questions, what is the Gestapo?” Judge: “Answer the questions and you need to explain it.” Miller: “Well, Gestapo is the Nazi police.”

In the actual article, which was never admitted into evidence, Miller was clearly referring to the group of LAPD officers who were caught on video using excessive force against journalists and children. This had nothing to do with the claims before the jury and bear not even the slightest bit of relevance toward the elements of the charges brought against Miller. The prosecutor’s introduction of this evidence is clearly prosecutorial misconduct with the sole intent of inflaming the jury. Furthermore, the prosecutor misrepresented the evidence by insinuating that Miller was referring to all police officers by using the phrase

 

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“law enforcement”[A.2, page 8 lines 23-24]8 instead of “LAPD”, which was what Miller actually wrote in the article. When Miller tried to clarify the context of the prosecutor’s questions, he was immediately cut off and forced to define the word “Gestapo.” By injecting the Nazi’s into this trial, the Prosecutor crossed the line and clearly violated Rules 401 and 403. This evidence should have been excluded by the Judge and the Court should have instructed the jury to disregard the questions by the Prosecutor. It is obvious the State introduced this evidence to inflame and influence the jury into believing that Miller harbored bias against all police officers and therefore would resist arrest. Considering the jury acquitted Miller of failure to obey a lawful order and disorderly conduct, but found him guilty of resisting arrest without violence, it is clear this evidence played a key role in influencing their decision on convicting him of resisting arrest. However, because Miller wrote this article more than two months after his arrest, and it did not even pertain to the officers who arrested him, the prosecutor’s statements were irrelevant and unfairly prejudicial, and further demonstrate the inconsistent verdict.
                                                        
8  Citation was inadvertently omitted in original brief 

 

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Furthermore, it is telling that this trial was far from fair in the fact that the State was allowed to enter improper character evidence yet when Miller’s attorney attempted to admit a document into jury instruction that would have clarified the disorderly conduct charge, the judge struck it down. The forbidden memo [A.15] was a citation from Barry v. State 934 So. 2d 656 (Fla. App. 2 Dist., 2006) that stated: Words alone do not constitute disorderly conduct. Defendant must engage in physical contact towards an officer that affects the officers (sic) ability to do his or her job, or breach peace or otherwise incite others to act. The standard of review is an obvious abuse of discretion because it is clear that the prejudicial effect outweighed the probative value and the judge should have excluded it. As stated in A.K. v. State, 898 So. 2d 1112, 1116 (Fla. 4th DCA 2005): "The state cannot introduce evidence attacking the character of the accused during its case in chief, since the accused must first put his good character in issue."

 

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III. The lower tribunal erred when Judge Jose L. Fernandez unconstitutionally sentenced Miller to a harsher sentence than sought by the State on the basis that Miller had maintained his innocence throughout the trial. When Miller was convicted of resisting arrest without violence, the State recommended he be sentenced to three months probation, 50 hours of community service and anger management class. [A.1, page 69] However, Judge Fernandez more than doubled this recommendation by sentencing Miller to one-year probation, 100 hours of community service and anger management courses based on his consideration of inadmissible evidence. Judge Fernandez’s exact words during his sentencing were as stated below: [A. 1, pages 70-71, lines 19-13] All right. Mr. Miller, I know that this isn’t even important enough for you to stand up while you’re being sentenced on a criminal offense. And frankly, I don’t – you know, your attitude, in my opinion, is like you’re glad that this all happened. You’ve had a pretty cavalier attitude these last two days: the way you’ve been sitting in your chair, the way you’ve been chitchatting with the people that are here with you, talking on the phone during trial. I can’t imagine why you thought this situation was worth getting arrested for. I can’t imagine for the life of me. I don’t know if you think you’re some kind of hero or something like that, but if you want to see a
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hero, go visit Arlington. All right? I don’t think any of those people that are back here are those people that are giving you the — the thumbs up on your blog. If I were to sentence you to jail, none of those people would volunteer to go in there to serve the time with you. They might say they would, but I guarantee you they wouldn’t. I’m shocked at your lack of remorse. The jury, having found you guilty, I’m adjudicating you guilty, imposing a $250 fine plus court costs and surcharges. I’m placing you on one year reporting probation; special condition, anger course; special condition, 100 hours of community service at a rate of ten hours, minimum, per month, and all conditions to be completed within ten months of today.

While the entire passage reveals the judge’s personal animus and bias against Miller, the key sentence here is, “I’m shocked at your lack of remorse.” And in issuing Miller a harsher sentence than was sought by the State simply because Miller maintained his innocence and because he exercised his First Amendment rights in publishing a blog unrelated to the underlying facts of this case, Miller’s due process rights have been violated. This was a violation of Miller’s Fifth Amendment rights, as explained by the Florida Supreme Court in Holton v. State, 573 So.2d 284, 292

 

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(Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991): A defendant has the right to maintain his or her innocence and have a trial by jury. Art. I, § 22, Fla. Const. The protection provided by the Fifth Amendment to the United States Constitution guarantees an accused the right against selfincrimination. The fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase under article I, section 9 of the Florida Constitution. Also, according to Ritter v. State, 885 So. 2d 413 (Fla. 2004) it is “Constitutionally impermissible” for a judge to issue a harsher sentence based on the defendant’s lack of remorse or continual maintenance of his innocence. While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. See, e.g., Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite
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is not true. See K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th DCA 2001). Reliance on these impermissible factors violates the defendant’s due process rights. See Holton v. State, 573 So. 2d 284 (Fla. 1990); Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004). The Ritter case is precisely on point with the instant case. As in Ritter, the trial judge here used impermissible aggravating factors in sentencing Miller. This is evidenced by the trial judge’s use of the word “remorse”, or lack of, in issuing a harsher sentence than recommended by the state. In Ritter, supra, the judge told the defendant the following: Mr. Ritter, you have been found guilty of one count of lewd and lascivious or indecent act upon a child by a jury on September 14, 2000. The court is terribly disturbed that I think you still maintain you did not do anything. This jury has in fact determined to the contrary and I am accepting the jury’s verdict having heard the testimony. I have not seen any indication of remorse in this matter. I understand a lot of pain and suffering has been caused to a lot of people, but I have not seen any indication of admission that something was done wrong on your part or remorse on your part for something having been done as opposed to the terrible tragedy you have inflicted on the entire family. Based upon that, sir, the court hereby sentences you to a term of 120 months in the Department of Corrections to be followed by a three-year term of sex offender probation.
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The key sentence here is, ‘”I have not seen any indication of remorse in this matter”, which contains the same context as the judge’s comment in the instant case of “I am shocked at your lack of remorse.” Furthermore, by accusing Miller of trying to be “a hero” and suggesting he “go visit Arlington”, then referring to his family members attending the trial by saying, “I don’t think any of those people that are back here are those people that are giving you the — the thumbs up on your blog,” the judge revealed that he had been bothered by the fact that Miller had exercised his First Amendment rights by maintaining his innocence on a public forum and by writing about matters of public concern concerning photographer’s rights and abuses by the police. This obvious bias, which was also revealed in Argument II when the judge allowed the State to enter improper character evidence during crossexamination, reveals that Miller did not receive a fair trial. And even though he was not guaranteed a perfect trial, he was guaranteed a fair trial. The standard of review is abuse of discretion.

 

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Conclusion The appellant respectfully requests that this court overturn the conviction and enter a directed verdict in favor of the defendant as a matter of law as to Count 2 for resisting arrest. Alternatively, appellant seeks that the conviction for resisting arrest without violence be overturned and that he be given a new trial on the charge. Alternatively, appellant seeks a new sentence.

 

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. Mail on the 24th day of November, 2008 to Katherine Fernandez Rundle, State Attorney, Miami-Dade County. By Carlos Miller Pro se

 

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CERTIFICATE OF FONT SIZE AND TYPE I HEREBY CERTIFY that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.21(a)(2) in that the brief is Times New Roman 14-point font. By Carlos Miller Pro se

 

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