09-3590 Initial Brief

IN THE DISTRICT COURT OF APPEAL
IN AND FOR THE STATE OF FLORIDA

FIFTH DISTRICT
5DCA CASE NO.: 5D09-3590
Theresa Marie MARTIN, ) in an appeal from summary denials

Petitioner/Appellant, ) of collateral relief from traffic court
)
v. ) Citrus County Circuit Court cases:
) 2009-AP-2088 & 2009-CA-3729
State of FLORIDA, )
Respondent/Appellee, ) The Honorables Yerman & Merritt,
) Fifth Judicial Circuit, at Inverness
_______________________________ ) ________________________________
Initial Brief of Appellant
On matters now coming to review from:

In the Circuit Court of the Fifth Judicial
Circuit in and for Citrus County, Florida
(Attorney for the Appellant): (Attorney for the Appellee):

Theresa M. Martin, pro se Office of the Attorney General
10918 Norwood Avenue 444 Seabreeze Blvd., 5th Floor
Port Richey, FL 34668 Daytona Beach, FL 32118
Betty Strifler, Clerk

Clerk of the Circuit Court
110 N. Apopka Avenue
Inverness, FL 34450
Table of Contents
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENTS:
I. The true and lawful facts of Theresa retaining actual legal child custody, of
never lawfully owing any child support, and of never having any lawful
arrearages cast upon her, are well and beyond any possible reasonable
dispute, as a matter of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II. Without valid arrearage, the administrative suspension was void and/or
voidable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III. Without the key element of a valid administrative suspension, the State had
no sufficiency of evidence for conviction on driving on a suspended license .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
IV. The trial court also violated Theresa’s right to face and confront all material
accusers, including those accusers who improperly either suspended, or
caused suspension of, her drivers license . . . . . . . . . . . . . . . . . . . . . . . . 21
V. Theresa’s public defender was strictly, categorically, and manifestly

ineffective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
VI. The sentence was illegal, as unconstitutionally in excess of maximum jail

time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
VII. Theresa was denied fair, competent and meaningful review on lower appeal .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
VIII. Theresa is entitled to various manner of relief, including vacating conviction

and sentence, reimbursement of all costs and direct expenses, and, via power
i
of writ(s), to further compel DOR and DMV remediation actions in her favor
and for justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
Table of Authorities
The United States Constitution
The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Sixth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article III, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Article IV, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
18 U.S.C. § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 U.S.C. § 241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18 U.S.C. § 242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States Cases
Adams v. Adminastar Defense Services, Inc., 901 F. Supp. 78, 79

(D. Conn. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). . . . . . . . . . . . . 41, 42
Daniels v. Connell, No. 08-CV-6335L, 2008 WL 4104578, at 1
(W.D.N.Y. Sept. 3, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Geiger v. Arctco Enters., Inc., 910 F. Supp. 130, 131 (S.D.N.Y. 1996) . . . . . . . 29
Goldberg v. Kelly, 397 U.S. 254 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) . . . . . . . . . . 36
Martin v. State, U.S. District Court at Tampa, #8:09-cv-474 . . . . . . . . . . . . . . . . 7
Pointer v. Texas, 380 U.S. 400, 404 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Sherrell v. Norstar Bank of Upstate New York, No. 97-CV-1560, 1998 WL
381330, at 1 (N.D.N.Y. June 30, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ii
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . 23, 24
United States v. Throckmorton, 98 U.S. 61, 68-72, 25 L.Ed. 93 (1878) . . . . . . . 15
Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 863 (2d Cir. 1988) . . . 29
Federal Statutory Law
28 USC § 1441. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
28 USC § 1443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 28
28 USC § 1446. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
42 USC § 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
42 USC § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
The Florida Constitution
Art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Art. I, § 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Art. I, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Art. I, § 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Art. I, § 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Art. I, § 22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Art. V, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Florida State Cases
Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . 30

Baldwin v. State, 558 So. 2d 173 (Fla. 5th DCA 1990) . . . . . . . . . . . . . . . . . . . . . 33
Belford v. Belford, 159 Fla. 547, 32 So. 2d 312 (Fla. 1947) . . . . . . . . . . . . . . . . . 13
Bennett v. Bennett, 73 So. 2d 274 (Fla. 1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994) . . . . . . . . . . . . . . . . . . . . . . 33
Carter v. State, 786 So. 2d 1173 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Colonel v. State, 723 So.2d 853 (Fla. 3d DCA 1998) . . . . . . . . . . . . . . . . . . . . . 36
DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984) . . . . . . . . . . . . . . . . . 14, 15
Downs v. State, 453 So. 2d 1102, 1108-09 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . 24
Fleck-Rubin v. Fleck, 933 So.2d 38, 39 (Fla. 2d DCA 2006) . . . . . . . . . . . . . . . . 17
Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (Fla. 1933) . . . . . . . . . . . . . . . . . . 12
Florida Power Corp. v. Silver Lake Homeowner’s Ass’n., 727 So. 2d 1149
(Fla. 5th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
iii
Ford v. State, 825 So.2d 358, 360-61 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . 25
Gallagher v. Dupont, 918 So.2d 342, 346 (Fla. 5th DCA 2005) . . . . . . . . . . . . . 17
State v. Griffith, 561 So.2d 528, 530 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 20
Hamilton v. State, 860 So.2d 1028 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . 25
Holl v. Talcott, 191 So.2d 40 (Fla. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
In re Gregory, 313 So.2d 735 (Fla. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. Dept. of Revenue ex rel. Lamontagne, 973 So.2d 1236
(Fla. 1st DCA 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
JQC: In re Renke, SC03-1846, (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Law v. State, 847 So.2d 599, 600 (Fla. 5th DCA 2003) . . . . . . . . . . . . . . . . . . . 25
Linning v. Duncan, 169 So.2d 862, 866 (Fla. 1st DCA 1964). . . . . . . . . . . . . . . 40
Newsom v. Newsom, 759 So. 2d 718, 719 (Fla. 2d DCA 2000) . . . . . . . . . . . . . . 13
Newport v. Culbreath, 162 So. 340 (Fla. 1935) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Ocer v. State, 840 So.2d 1162 (Fla. App. 5 Dist. 2003) . . . . . . . . . . . . . . . . . . . . 36
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pino v. Dist. Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla. 1992) . . . 40
Rinas v. Rinas, Etc., 847 So. 2d 555, 557 (Fla. 5th DCA 2003) . . . . . . . . . . . . . 18
Rodriguez v. State, 753 So. 2d 29 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Spellers v. State, 993 So.2d 1117, 1118 (Fla. 5th DCA 2008) . . . . . . . . . . . . . . . 25
Sterling Factors Corp. v. U.S. Bank Nat. Ass'n, 968 So.2d 658
(Fla. 2d DCA 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005) . . . . . . . . . . . . . . . . . . . . . . 12, 13
West v. State, 2001 WL 726004, *1 (Fla. 5th DCA June 29, 2001) . . . . . . . . . . 30
Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984) . . . . . . . . . . . . . . . . . . 13
Florida Statutory Law
§ 39.0139, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

§ 57.081, Fla. Stat. (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
§ 57.082, Fla. Stat. (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
§ 61.45, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 61.507, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
§ 61.515, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 61.13001, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
§ 316.187, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
§ 316.646, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
§ 320.07, Fla. Stat. (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 24, 27
§ 322.34, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 30, 31
iv
§ 775.082 Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
§ 775.083 Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
§ 787.03, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 787.04, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 836.05, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
§ 837.06, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§ 838.022, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
§ 843.0855, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Florida Rules of Court
Appellate Rules
Fla. R. App. P. 9.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fla. R. App. P. 9.040 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Criminal Rules
Fla. R. Crim. P. 3.850. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Other Authorities
Ashby v. White, (1703) 92 ER 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

Black's Law Dictionary, 5th Ed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Burnworth v. Hughes, 670 P.2d 917, 922 (Kan. 1983) . . . . . . . . . . . . . . . . . . . . . 42
v
FIFTH DISTRICT

)
) 2009-AP-2088 & 2009-CA-3729
State of FLORIDA, )
_______________________________ ) ________________________________
Initial Brief of Appellant

Statement of the Case and Facts
This is an appeal from the denials of basic due process and collateral relief by
criminal traffic court and reviewing circuit court, on both lower appeal and related
petitions for extraordinary writ(s). Defendant-Appellant, Theresa, was prosecuted
and “convicted” by affirmatively coerced guilty plea, with various sentencing, over
driving while suspended. The administrative suspension came solely from alleged
child support arrearage, but this was a legally-impossible status, as there is and was
no possible way under the established law for Theresa to not have full and primary
child custody, ergo, there is and was no possible way under the established law for
Theresa to ever owe any child support as alleged. Hence, the central issues are the
base validity of the administrative suspension, itself, and the co-existent rights to
1
challenge that alleged invalidity, either directly and/or collaterally, and for Theresa
to directly confront her accuser, i.e., the whole and totality of the State, especially
as pertains to its own accusers who are directly material to the issues at bar, i.e., the
Florida Department of Highway Safety and Motor Vehicles (hereinafter “DMV”),
the Florida Department of Revenue (hereinafter “DOR”), its own Child Support
Enforcement agency (hereinafter “CSE”), and/or any official, employee or agent of
the State of Florida who is and/or was involved with compliance and certification
on matters of Title IV-D, child support, support arrearages, garnishments, and the
secondary and tertiary enforcements of those base matters, such as administrative
suspension of Theresa’s drivers license for any alleged child support arrearage.
On or about 14 November 2008, Theresa was charged by Citrus County with a
total of four (4) alleged violations: (1) F.S. § 316.187(2)(C), Speed/Roadways 6-29
above; (2) F.S. § 316.646(1)A, Proof of Insurance Required; the first two charged
as mere Infractions, and the latter two charged as Second Degree Misdemeanors,
namely; (3) F.S. § 322.34(2A)1, Drive While License Suspended First Conviction;
and, (4) F.S. § 320.07(3C), Expired Motor Vehicle Registration Over 6 Months,
Second Or Subsequent Offense. See Citrus County Docket ## 2008 TR 015731,
2008 TR 015733, and, of the primary case at bar, # 2008 CT 003440, respectively.
The two Infractions were handled early by fines and remediation, while the two
Misdemeanors proceeded towards trial, with appointment of public defender. Id.
2
Theresa’s ‘child support’ nightmares, plus other related unlawful actions by the
State of Florida against her, began after she had already solidified primary custody
of both of her teenage daughters – not once, but twice, in the Pasco County courts.
Theresa’s ex-husband, Stephen, had been previously convicted of multiple child
molestation felonies (App. 1). As such, Stephen could never be granted primary,
residential custody of any child, anywhere, under any American jurisdiction, ever.
Upon their separation and divorce proceedings, Theresa’s child custody award,
therefore, was a foregone conclusion, and the convicted ex-husband acquiesced to
multiple default custody and support orders, under Pasco County #5104DR101WS
(App. 2), and under Pasco County #5103DR2537WS (App. 3), and was duly
ordered on custody and support yet again later (App. 4), while he also participated
within the directly-related Quit Claim proceedings, granted to Theresa (App. 5).
Within a week later, mid-June of 2004, the Pasco County family court found the
ex-husband to be over ten thousand dollars ($10,000+) in willful support arrears,
also that he failed to appear for duly noticed hearing, and recommended a bench
warrant to be issued (App. 6), all of which the Circuit Judge approved (App. 7).
However, within one (1) month later, the ex-husband, now being under an active
Florida felony support warrant, and being a four-time convicted molester, suddenly
absconded with the parties’ two minor children out of the State of Florida, back to
his relocated residence in the State of Michigan, and then proceeded to have a local
3
Pasco County attorney file a brand new “second divorce” action against Theresa,
ostensibly for child custody, support, division of debts and assets, and everything
else, like none of the prior, res judicata proceedings had even occurred (App. 8).
Within one (1) week later, Theresa had an emergency order to pick-up the two
children and get them back (App. 9), but it was never enforced, and Pasco County
failed to do anything else about returning the children, even allowing the convicted
molester ex-husband to retain the children pending his ludicrous “second divorce”
action, which the ex-husband’s attorney was only just getting around to amending,
even an entire year later (App. 10). Even still then, the ex-husband owed Theresa
well over ten thousand dollars ($10,000+) in child support arrears (App. 11).
However, every responsible Florida official dropped the ball. Every inquiry and
demand for investigation into the matter was either ignored or whitewashed. The
two children were never returned to their rightful home. Although the embroiled
Pasco County family court judge was removed from the bench by unusual action of
the Florida Supreme Court (JQC: In re Renke, SC03-1846), the court system never
corrected any of these flagrant violations of due process against our Constitutions.
Child support was then actually issued against Theresa, who was forced to pay
ongoing ransom to the molester and kidnapper with absolutely no legal claim or
right to the children. More fraud added by erasing the ex-husband’s entire support
debt, in willful violations of 42 USC § 666(a)(9)(c), i.e., the Bradley Amendment.
4
In June of 2007, Theresa even filed petition for termination of support over her
legally emancipated older daughter of the two, but that was never addressed, either.
A large swath of communications, in fact, were eventually directed towards all
manner of Florida officials, departments, agencies, employees and units of all three
branches of Florida Government, but not a single one ever corrected the problem,
and several of those were directly responsible, under law, for ensuring corrections.
Both children are, now, adults of age, and on their own, the child molester was
never held accountable, the State of Florida screwed Theresa and her rights really
bad, never getting the children back to her, actually allowing incredible amounts
of fraud and buffoonery, garnishing her income, instead of his, intercepting her tax
refunds, fraudulently erasing over $10,000 in back child support that was, and still
is, owed to her by law, and has even proceeded, somehow, to conclude there was
any possible lawful right to administratively suspend her drivers license, then even
to think, on top of that, that there was any legal right to criminal charging her for
driving with a license that was still legally, factually, and perfectly good and valid.
Upon arraignment in the instant Citrus County court case # 2008 CT 003440, the
trial judge, Yerman, appointed a public defender for Theresa (Record, Supp1Vol3,
at 10, lines 11-21). Theresa tried diligently to get the public defender, Baghdadi,
up to speed on her various statutory, due process, and constitutional issues, but at
the pre-trial hearing, P.D. Baghdadi suddenly “torpedoed” Theresa as feigning no
5
known defense for her at all (Record, Supp1Vol3, at 14, lines 7-14), at which point
Theresa immediately engaged trial judge Yerman on her own behalf, and the two
of them had a lengthy discussion as to the underlying nature of the sought defense,
throughout the rest of that entire pre-trial hearing (Record, Supp1Vol3, at 14, line
15, through 22, line 15). Judge Yerman clearly understood the nature of Theresa’s
defense argument, i.e., that the validity of the administration suspension against her
drivers license was in dispute, yet refused to allow any consideration of the defense
evidence, stating: “In this court, that’s gonna be irrelevant. That’s
not even going to be evidence.” (Record, Supp1Vol3, at 15, line 24, to 16,
line 1), nor would allow any notion of collateral attack upon same administrative
suspension (Record, Supp1Vol3, at 17, lines 1-10 and 13-19), also repeated several
times that he would not allow Theresa’s defense issues to reach the Jury (Record,
Supp1Vol3, at 12-22, generally), and even threatened Theresa with direct contempt
and immediate jailing, on the spot, if she dared persist in defending herself via the
challenge to a key and material element of the State’s case, to-wit: the very validity
of the administrative suspension order, itself (Record, Supp1Vol3, at 21, line 25, to
22, line 2); and, the trial judge abruptly ended the proceedings quickly thereafter.
Faced with an ineffective public defender, who provided absolutely no defense,
whatsoever, and a judge who refused to allow any facts or evidence in challenging
the key suspension element, Theresa knew she would not get justice in that court.
6
Because Theresa had nowhere near the sufficient funds to hire actual competent
defense counsel, she was stuck “in between a rock and a hard place” as it were, and
faced full criminal jury trial upcoming on 16 March 2009, but without any defense
either as offered or provided, nor allowed, in any way, shape or form, whatsoever,
upon two (2) completely bogus criminal charges, the aforementioned driving on a
“suspended” drivers license, which could never have been lawfully suspended over
any alleged child support arrearage, plus the other Second Degree Misdemeanor, a
charge unlawful on its face, made under F.S. § 320.07(3C), Expired Motor Vehicle
Registration Over 6 Months, Second Or Subsequent Offense, for Theresa had never
been prosecuted for that offense before, let alone have a previous conviction for it.
But, none of it appeared to matter to the totally and flagrantly unconstitutional
proceedings that were being allowed to transpire within the Citrus County court in
question – bogus criminal charges that were flatly unlawful on their face, an utterly
and strictly ineffective, incompetent “public defender” that couldn’t even challenge
such same ridiculously bogus charge, nor did anything else in “defense”, ever, and
a trial court judge that affirmatively wanted to turn a blind eye to an acknowledged
fraud upon the court, hell bent on denying Theresa her right to collateral attack and
her right to directly face her accusers – indeed, a total and manifest cry of injustice.
So, just days before ominously-false trial, Theresa filed her removal of the state
proceedings to the U.S. District Court at Tampa, #8:09-cv-474, via 28 USC §1443.
7
P.D. Baghdadi received his courtesy copy of Theresa’s federal removal filings,
and on Saturday, 14 March 2009, he called to inquire of Theresa as to the nature
and ramifications of said removal, and discussed the same issues with Theresa and
one of her multiple counsel, on the telephone. There is sufficient documentation to
further confirm the same fact, as needed. P.D. Baghdadi was duly advised as to the
legal ramifications, i.e., that while the removal filing did not arrest the jurisdiction
of the state court in proceeding to hold trial, it did preclude entering of convictions.
On the day of and before trial, 16 March 2009, P.D. Baghdadi took Theresa to a
closed room in the courthouse, where an apparent superior of his was also present.
During this private “defense conference”, P.D. Baghdadi and his companion did
falsely lie, defraud and criminally intimidate Theresa, by stating and arguing that a
federal removal could not be filed by a Defendant, but only be filed by the State,
and so, ostensibly, that her own federal removal filing would mean nothing in this
Citrus County court, that full trial would proceed as scheduled, that she would have
no defense to prosecution, and that she was certainly going to jail, “today”, under
both Second Degree Misdemeanors, including under the one totally unlawful from
the beginning, right on its very face, unless she took the plea bargain offered, now.
Upon this final coercing, and no other reasonable remedy available, Theresa was
forced to plead “no contest” under extreme duress, to avoid certain jail, but still
maintained her absolute position, for the record, that she was being affirmatively
8
coerced into accepting the conviction, by stating: “Your Honor, I just don’t
think that I’ll have a fair jury trial in this court, so I’m
gonna take the plea in hope that I can move it to appeal myself.”
(Record, Supp1Vol3, at 28, lines 16-21). The trial court sentenced Theresa with a
fine and court costs, an order to revalidate her drivers license, six (6) months of
probation, thirty (30) hours of community service, clerk’s payment plan, and thirty
(30) days to appeal as acknowledged (Record, Supp1Vol3, at 29, lines 11-17).
Motions for new trial and for withdraw of guilty plea were subsequently filed by
Theresa in and with the same Citrus County trial court, along with notice of appeal,
motions for stay pending appeal, motions to disqualify the trial court judge, more
filings on insolvency/indigency, various affidavits, and petitions for extraordinary
writ(s), some filed within the trial court under Yerman, and others filed within the
reviewing Circuit court under Merritt (see Indexes to Record, Volumes 1 and 2).
Neither Yerman nor Merritt granted any form of relief to the unlawfully-coerced
conviction, and both consistently denied Theresa relief on obtaining transcripts. Id.
Under an unusually-derived, dual framework of inextricably-intertwined appeal
by discretion, and of appeal as by right, this formal appeal did ensue. See Docket.
Summary of the Argument
The original child custody and support judgments in Theresa’s legal favor are,
were, and still are, the only lawful possibility under both Florida and Federal law.
9
Because Theresa’s ex-husband could never lawfully obtain child custody, under
any set of circumstances available to his status, it is a definitive, absolute certainty
that Theresa could never lose her res judicata custody awards to him, and, hence, it
is also a legal impossibility that Theresa could ever be ordered to pay him support.
Because Theresa could never be lawfully ordered to pay child support to him, it
is also a legal impossibility that any of the child support garnishments against her
income, any of the child support interceptions of her annual tax refunds, nor any of
the subsequent child support enforcement actions, such as the DMV administrative
suspension of her otherwise-unrelated drivers license, could ever be valid or legal.
Because the administrative suspension of her drivers license, based solely upon
falsely-alleged child support arrearage, is utterly void and/or voidable, Theresa had
every legal and constitutional right to both directly and collaterally attack the same,
as well as an absolute right to face and confront her (false) accusers, especially the
various State of Florida entities and officials who all consistently failed their duties
to correct the catastrophic errors and frauds routinely occurring in these matters.
Without a valid suspension of her drivers license, an obviously material and key
element of “driving on a suspended license”, the State had no criminal case left, in
consideration of the State’s other Misdemeanor charge being fatal on its own face.
The State also violated Theresa’s due process, in failing to provide her with any
competent counsel for defense. Indeed, “defense” counsel was strictly ineffective.
10
The State also violated Theresa’s due process, in failing to provide her with fair
and competent tribunal, in also failing to provide her with meaningful initial review
from direct criminal conviction, and in plea negotiations and sentencing involving
probation for six (6) months – three (3) times the maximum allowable punishment
of jail time under any single conviction for a Second Degree Misdemeanor within
the State of Florida – in other words: an illegal sentence, brazenly unconstitutional.
Theresa is entitled by law to have the instant Citrus County criminal conviction
promptly vacated, even expunged, and to be reimbursed for all direct costs, direct
expenses, fines, and court costs paid because of same matters, plus have remedial
orders promptly issued in concerns to both the Florida DOR and the Florida DMV.
Argument I
The true and lawful facts of Theresa retaining actual legal child custody, of never
lawfully owing any child support, and of never having any lawful arrearages cast
upon her, are well and beyond any possible reasonable dispute, as a matter of law.
Since these issues are dispositive as a strict matter of very well-established law,
the standard of review is de novo. Pure questions of law are reviewed de novo and
are therefore afforded the least deference. See Florida Power Corp. v. Silver Lake
Homeowners Ass'n, 727 So.2d 1149 (Fla. 5th DCA 1999).
Theresa’s ex-husband already had four (4) prior felony convictions regarding his
sexual assaults of children (App. 1). Every legal jurisdiction in this entire Nation
11
has various statutes on the books specifically limiting and restricting forms of child
custodial time and access for such perpetrators. Florida is no exception. Indeed,
because of those convictions, and the rebuttable presumption of detriment to a
child created thereby, all Florida courts were required to specifically supervise his
parenting time. See, e.g., F.S. § 39.0139(4)(d), and also ¶¶ (5) and (6) thereunder.
This fact, alone, precluded Theresa from ever as losing her established primary,
residential custody to the convicted ex-husband. Moreover, the ex-husband both
participated in the prior domestic relations cases, yet also never moved to alter the
judgments, nor took any appeals from those judgments. Accordingly, the multiple
judgments of child custody and child support against him were all res judicata.
The Florida Supreme Court recently explained the binding nature of res judicata
within child custody matters, in Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005):
A final divorce decree providing for the custody of a child can be materially
modified only if (1) there are facts concerning the welfare of the child that the
court did not know at the time the decree was entered, or (2) there has been a
change in circumstances shown to have arisen since the decree. Belford v.
Belford, 159 Fla. 547, 32 So. 2d 312, 314 (Fla. 1947). This rule promotes the
finality of the judicial determination of the custody of children. After the trial
court enters the original final judgment decree, it is res judicata of the facts and
circumstances at the time the judgment became final. Thus, there is a
presumption in favor of the reasonableness of the original decree. Id. This
presumption may be overcome when changes in circumstances have arisen
which warrant and justify modification of the original decree. See In re
Gregory, 313 So. 2d 735, 738 (Fla. 1975); Frazier v. Frazier, 109 Fla. 164, 147
So. 464, 466 (Fla. 1933). To modify such judgments, the trial court must decide
whether there is a "factual basis sufficient to show that conditions have become
materially altered since the entry of the previous decree." Id. at 467. The degree
of change in the conditions and circumstances since the date of the previous
12
decree must be of a substantial character. Bennett v. Bennett, 73 So. 2d 274,
278 (Fla. 1954).
Wade, 903 So. 2d, at 936-937.
Florida statutory law mandates the exact same res judicata effect on prior child
custody determinations. See F.S. § 61.507. Res judicata so attached to Theresa’s
prior custody determinations and those same determinations could not be modified
without satisfying the substantial change test. See, e.g., Belford v. Belford, 159 Fla.
547, 32 So. 2d 312 (Fla. 1947); Newsom v. Newsom, 759 So. 2d 718, 719 (Fla. 2d
DCA 2000); Zediker v. Zediker, 444 So. 2d 1034 (Fla. 1st DCA 1984).
Independent of molestation and res judicata issues, his various statutory failures
in process for lawfully relocating minor children were multiple and unambiguous.
For, to even begin to consider relocating the minor children out of the State of
Florida away from Theresa and the court, the ex-husband would first have had to:
a) file an appropriate pleading in the same Pasco County family court case
[51-2003-DR-2537WS] where final judgment of custody had been awarded to
Theresa already, asking to modify that final judgment, which he did not do;
b) file and serve Notice of his intent to relocate the children more than 50
miles away, as per § 61.13001(3)(a), which he also did not do;
c) wait at least for the allowed thirty (30) days with which the other parent,
in this case, Theresa, could have responded to his any such required Notice,
as per § 61.13001(3)(a)(7), which he of course also did not do; and,
13
d) appear and prevail at the hearing regarding such proposed relocation,
required under § 61.13001(10), after such Notice and Response would have
been first done by law, which he also – you guessed it – did not do.
Further, the ex-husband’s actions to unilaterally remove the children from the
State, and to deprive Theresa of her custody, also violated other sections of Florida
family law, including § 61.45 [bond for risk of flight with minor children out of
state in violation of custody], § 61.515 [court of initial custody determination has
continuing, exclusive jurisdiction], and etc., and sections of the Florida penal code,
including § 787.03(1) [interference with custody], § 787.04(2)&(4) [removing
minors from state or concealing minors contrary to court order], § 837.06 [false
official statements], § 843.0855(3) [criminal actions under color of law or through
use of simulated legal process], and various other civil and criminal statutes.
Moreover, F.S. § 61.13001(3)(f) required an immediate return of the children.
Child Molestation. Res Judicata. Failed Relocation Process. Willful violations
of numerous other civil, and even of several criminal, laws of the State of Florida.
Extrinsic fraud is considered “fraud on the court.” DeClaire v. Yohanan, 453 So.
2d 375, 377 (Fla. 1984). The rules do not limit the power of a Florida court to
entertain an independent action to relieve a party from a judgment, decree, order,
or proceeding, or to set aside a judgment or decree, for fraud upon the court. See
DeClaire, 453 So. 2d at 378. See Black's Law Dictionary 595 (rev. 5th ed. 1979).
14
Intrinsic fraud, on the other hand, applies to fraudulent conduct that arises within
a proceeding and pertains to the issues in the case that have been tried or could
have been tried. The Florida Supreme Court expressly held that false testimony
given in a proceeding is intrinsic fraud. See DeClaire, 453 So. 2d at 377.
Indeed, at least as far back as 1878, the United States Supreme Court explained:
There is no question of the general doctrine that fraud vitiates the most solemn
contracts, documents, and even judgments. . . . Where the unsuccessful party has
been prevented from exhibiting fully his case, by fraud or deception practised on
him by his opponent, as by keeping him away from court, a false promise of a
compromise; or where the defendant never had knowledge of the suit, being
kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently
or without authority assumes to represent a party and connives at his defeat; or
where the attorney regularly employed corruptly sells out his client's interest to
the other side, -- these, and similar cases which show that there has never been a
real contest in the trial or hearing of the case, are reasons for which a new suit
may be sustained to set aside and annul the former judgment or decree, and open
the case for a new and a fair hearing. See Wells, Res Adjudicata, sect. 499;
Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 7 Ill. 385; Kent v. Ricards,
3 Md. Ch. 392; Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320; De Louis et al. v.
Meek et al., 2 Iowa, 55.
United States v. Throckmorton, 98 U.S. 61, 68-72, 25 L.Ed. 93 (1878).
Again, the State of Florida cannot possibly take the position that Theresa was
under any lawful obligation or duty to pay child support to her ex-husband, ever,
and the same is flatly null and void for total lack of due process, and a position that
would be, affirmatively and criminally, violating written law, caselaw, and at least
the following Constitutional protections: Article I, §§ 2, 9, 12 and 21 of the Florida
Constitution, the Full Faith and Credit Clauses of both the Florida and Federal
15
Constitutions, and at least the First, Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution. Theresa was, and is still, fully entitled to all manner
of wide-sweeping judicial relief, throughout the entirety of the family court matter.
Because, in fact, that there was never any actual, valid and lawful obligation by
Theresa to pay child support as fraudulently ordered and administratively enforced,
there also, correspondingly, never could have existed any lawful or true suspension
of her drivers license, as based solely upon her any alleged child support arrearage.
The above matters are well established by public and official record, in regards
to the well established, written law. It is well beyond any reasonable dispute that
the State of Florida could never lawfully: (a) take Theresa’s previous child custody
away and give it to her ex-husband, under any circumstances; (b) use that fraud on
the law to order Theresa to pay child support to her ex-husband, again, under any
circumstances; or (c) claim any amounts of valid arrearage for the same frauds,
alleged ever, upon Theresa. Again, that’s under any circumstances, whatsoever…
Argument II
Without valid arrearage, the administrative suspension was void and/or voidable.
Since this issue is also dispositive as a simple matter of well established law, the
standard of review is, once again, de novo. Pure questions of law are reviewed de
novo and are therefore afforded the least deference. See Florida Power Corp. v.
Silver Lake Homeowners Ass'n, 727 So.2d 1149 (Fla. 5th DCA 1999).
16
Even within the midst of mere contractual documents, and no controlling law on
point, the issues often rise to the interpretation of law, itself, and so the standard of
review is still de novo. See, e.g.; Fleck-Rubin v. Fleck, 933 So.2d 38, 39 (Fla. 2d
DCA 2006); Gallagher v. Dupont, 918 So.2d 342, 346 (Fla. 5th DCA 2005); etc.
Theresa hereby now incorporates all stated facts, history, arguments, paragraphs
and material, supra, the same as if set forth here in their entirety, all again. (H.I.).
Again, and as a matter of law, the State of Florida never actually obtained any
true, lawful and valid child support order(s) against Theresa (Brief, supra, 11-16).
Without any lawful support obligation, there can be no valid arrearage. Id.
Accordingly, and also as a dispositive matter of law, there was, in fact, no valid
administrative suspension performed upon her drivers license, and any suspension
so done was and is a clear fraud, also violated Theresa’s legal rights, is also further
void and/or voidable, and it can be, and should be, challenged in any court of law.
On proper motion, trial courts must set aside void judgments. Johnson v. State,
Dept. of Revenue ex rel. Lamontagne, 973 So.2d 1236 (Fla. 1st DCA 2008).
However, a distinction exists between a judgment that is void and one that is
voidable; a “void judgment” is so defective that it is deemed never to have had
legal force and effect, while a “voidable judgment” is a judgment that has been
entered based upon some error in procedure that allows a party to have the
judgment vacated, but the judgment has legal force and effect unless and until it is
17
vacated. Sterling Factors Corp. v. U.S. Bank Nat. Ass'n, 968 So.2d 658 (Fla. 2d
DCA 2007). Indeed, this Fifth District Court of Appeal opined not long ago:
Judgments which are void at the outset, may on motion at any time be
vacated. See Fla.R.Civ.P. 1.540 (b). This court in Greisel v. Browne, 733 So. 2d
1119, 1121 (Fla. 5th DCA 1999), found that "a judgment alleged to be void may
be attacked at any time because the [void] judgment creates no binding
obligations on the parties (and) is legally ineffective and is a nullity." In Greisel,
seven years had passed since the entry of a judgment, yet the debtor there was
not barred from seeking relief because the final judgment was void. In Wigham
v. Wigham, 464 So. 2d 674 (Fla. 5th DCA 1985), this court in a dissolution of
marriage action found that a seven year delay in the filing for relief alleged to
have been granted in the absence of the court having subject matter jurisdiction
to distribute marital property was void at its rendition. This court reversed the
trial court's decision with instruction to the trial court to partially vacate the final
judgment in Wigham. Therefore, when a final judgment is void from the outset,
the requirement to file an appeal within 30 days of the rendition of the final
judgment does not apply.
Rinas v. Rinas, Etc., 847 So. 2d 555, 557 (Fla. 5th DCA 2003).
In either case, ‘void’ or ‘voidable’, the instant Florida administrative suspension
performed upon Theresa’s drivers license is and was unlawfully done, it must be
set aside, there is no question Theresa has right to challenge it, nor was there any
question that the first court wanting to make it into an issue would get exactly that.
Argument III
Without the key element of a valid administrative suspension, the State had
no sufficiency of evidence for conviction on driving on a suspended license.
As another matter-of-law question, the applicable standard of review is de novo.
Contrary to the trial judge’s soliloquies, there are more elements to be proven by
18
the State than merely the act of suspension and notice thereof – there must be also
satisfactorily proven by the State, if timely challenged by the Defendant, the true
validity of the pre-requisite judgment or status: in this case, validity of suspension.
In the instant matter, the State would be required to prove at least the following
elements for any conviction of Theresa upon a charge of “driving on a suspended
license”, i.e., that: (a) Theresa was (b) driving an (c) automobile or other highway
vehicle, of the type normally requiring standard individual operating licensure, and
(d) had such an operating license associated with her at the same time in question,
but (e), she was driving while her operating license was (f) under an administrative
suspension that was (g) valid and properly done, by (h) the proper authorities.
Unfortunately for the State, Theresa can easily slam-dunk element (g), over and
over, and the State’s case falls apart. While admittedly the State may have had a
perfectly-acceptable, initial prima facie case, special conditions existed in rarity,
and the State never expected any validity of the suspension to become an element.
This Court must review the evidence to determine if the trial court was in error
by improperly “awarding” above element “(g)” – the fact of validity – to the favor
of the State at pre-trial hearing, without allowing any jury fact-finding process on
that question of invalidity, as was often raised by criminal Defendant Theresa, and
without making the State do anything to prove that necessary element. A de novo
standard of review applies. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
19
Indeed, the trial court judge, by affirmatively “deciding” – repeatedly – that the
key element over disputed validity of administrative suspension would never even
reach the Jury, the trial court also did affirmatively violate Theresa’s rights to Jury
under Art. I, § 22, Fla. Const; see also Art. I, § 16, Fla. Const. (providing that the
accused shall “have a speedy and public trial by impartial jury”). “[A] defendant’s
right to a jury trial is indisputably one of the most basic rights guaranteed by our
constitution....” State v. Griffith, 561 So.2d 528, 530 (Fla. 1990). This guarantee
is also contained in the United States Constitution. U.S. Const. Art. III, § 2, cl. 3;
See also U.S. Const., Amend. VI.
Moreover, by sua sponte deciding to remove the disputed validity of suspension
from the key elements that the State must otherwise prove, the trial court judge not
only did affirmatively advocate on behalf of the State, plus show indisputable and
beyond-all-extreme bias and prejudice in clear favoritism on behalf of the State,
but also blatantly and criminally violated numerous Federal and Florida laws over
protection of Theresa’s due process rights in this matter, and created himself one
large self-mess of hardcore civil, criminal and professional accountabilities, now
coming upon him. See, e.g., 18 U.S.C. § 4 (“Misprision of Felony”), 18 U.S.C. §
241 (“Conspiracy Against Rights”), 18 U.S.C. § 242 (“Deprivation of Rights
Under Color of Law”), etc., as well as F.S. § 836.05 (“Threats; Extortion”), F.S. §
838.022 (“Official Misconduct”), F.S. Chp. 843 (“Obstruction of Justice”), and etc.
20
Of course, it was fundamental and reversible error for the trial court judge to
wave his magic wand and simply remove the main, focal, and highly-disputed key
element of proof – suddenly, on his own, without any Jury involvement – from the
State’s list of element burdens to overcome. Indeed, he is no longer fit to sit on the
bench, and should be removed from office as fast as formal process may provide,
as this was, in fact, a willful, knowing and intentional criminal act by Mr. Yerman,
to affirmatively deprive Theresa of the most rudimentary aspects of due process.
Summary judgment is improper where there is a genuine issue of material fact.
Holl v. Talcott, 191 So.2d 40 (Fla. 1966). There can be no doubt that “a genuine
issue of material fact” existed in regards to the validity of the license suspension.
Argument IV
The trial court also violated Theresa’s right to face and confront
all material accusers, including those accusers who improperly
either suspended, or caused suspension of, her drivers license.
As another matter-of-law question, the applicable standard of review is de novo.
Again, and as a matter of law, the State of Florida never actually obtained any
true, lawful and valid child support order(s) against Theresa (Brief, supra, 11-16).
Again, without a lawful support obligation, there can be no valid arrearage. Id.
21
Again, without any valid arrearage, there could never be any valid suspension of
Theresa’s drivers license, if suspension be based solely upon an invalid arrearage.
Independent of also being a must-prove key element of the charged crime, see
Argument III, supra, the validity of suspension, itself, was also a prime subject for
direct and cross examination of various witnesses, called to the stand to testify, by
subpoenae if necessary, due to the fact of being false accusers against her. In other
words, each witness called to the stand – the various State of Florida officials and
employees who had all consistently failed their express duties to correct the errors,
lies and frauds occurring in these same matters, and leading up to and causing the
alleged administrative suspension – would be directly examined, and/or crossed, as
appropriate, on these matters: actions taken, actions omitted, relevant facts, and
etc., in order to properly determine – in the presence of the Jury – whether or not
the State of Florida’s administrative action taken upon Theresa’s license was valid.
Theresa had absolutely-established, constitutional rights to confront her accusers
within a criminal trial. See Pointer v. Texas, 380 U.S. 400, 404 (1965) (declaring
that the right of cross-examination is one of the safeguards essential to a fair trial).
Like as in contempt proceedings, the finding of a willful violation of a previous
judgment depends, sometimes, on whether or not the previous judgment was valid.
By improperly removing the key element of validity of suspension, and denying
“any” validity-related evidence, the trial court violated Theresa’s right to confront.
22
In Goldberg v. Kelly, 397 U.S. 254 (1970), a civil action involving the rights of
one whose welfare benefits had been terminated, the United States Supreme Court
held that the failure to permit the welfare recipient the opportunity to confront the
witnesses against him denied the recipient of his due process rights.
Therefore, through all ways in which ‘out-of-court witnesses’ were permitted to
‘testify’ through causing or performing the administrative suspension, Theresa had
no previous opportunity to confront the ‘witnesses’ and challenge their extremely
prejudicial ‘testimony’. Confronting the messenger does not meet the due process
requirement; cross-examining the messenger is insufficient. See Rodriguez v. State,
753 So. 2d 29 (Fla. 2000). Theresa was certainly entitled to file subpoena or other
discovery on, and otherwise confront anyone involved with suspending her license.
On this violation of due process, alone, Theresa would be entitled to reversal of
conviction and remand for new trial. However, it is clear the suspension was never
valid, and that the State does not really have a case for “driving on a suspended.”
Accordingly, this Court should vacate the conviction and provide related relief.
Argument V
Theresa’s public defender was strictly, categorically, and manifestly ineffective.
As more matter-of-law questions, the level of review is essentially de novo, as is
applied through the well-known standard of review for any/all claims of ineffective
assistance of counsel, i.e., under Strickland v. Washington, 466 U.S. 668 (1984).
23
This is one of those rarer cases, where counsel’s deficient performance is clear
from the face of the record on direct appeal. This Court should also find prejudice
apparent on the face of the record. To show prejudice in this context, a defendant
“need not show that counsel's deficient conduct more likely than not altered the
outcome in the case.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Rather,
prejudice is demonstrated where there is a “reasonable probability” that counsel's
deficient performance altered the outcome of the trial. Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
A court’s concern should be “whether the result of a particular proceeding is
unreliable because of a breakdown in the adversarial process.” Downs v. State, 453
So. 2d 1102, 1108-09 (Fla. 1984).
A review of the record reveals that Theresa’s public defender, Baghdadi:
a) failed to take defense of Theresa seriously, actually doing nothing, at all;
b) failed to consider or submit any listing of defense witnesses, whatsoever;
c) failed to enter any evidence of any of the four (4) relevant Michigan felony
sexual predator convictions of Theresa’s ex-husband, regarding legal custody;
d) failed to enter any motion to quash or dismiss, or otherwise, on the clearly
bogus charge made under F.S. § 320.07(3C), second or subsequent offense;
24
e) failed to even begin any discovery, whatsoever, let alone the kinds needed
to explore validity of administrative suspension of drivers license;
f) openly admitted, in pre-trial court hearing, that he apparently still had not
prepared for any defense for Theresa, whatsoever, because he felt there was no
known defense for her, anyway (Record, Supp1Vol3, at 14, lines 7-14); and,
g) even criminally defrauded, coerced and intimidated his own defense client,
Theresa, and willfully obstructed the justice of his own client, in regards to the
180° off “legal advice” regarding her filing federal removal (Brief, at 7-8).
Indeed, it is not only clear, from the face of the record, that defense counsel’s
performance was incredibly deficient, it is also clear that same counsel willfully
participated in even defrauding the justice of his own appointed defense client.
The failure to call a witness can constitute ineffective assistance of counsel if the
witness might be able to cast doubt on the defendant's guilt. Ford v. State, 825
So.2d 358, 360-61 (Fla. 2002); Spellers v. State, 993 So.2d 1117, 1118 (Fla. 5th
DCA 2008).
In Law v. State, 847 So.2d 599, 600 (Fla. 5th DCA 2003), this same Court
reversed an order denying post-conviction relief where a defendant claimed his
counsel was ineffective in failing to call two alibi witnesses. Likewise, in
Hamilton v. State, 860 So.2d 1028 (Fla. 5th DCA 2003), this same Court reversed
the summary denial of a claim that counsel failed to call a witness.
25
Herein, any number of witnesses, properly called by P.D. Baghdadi, could have
been put on the stand, and compelled to testify, under oath, about the mandatory
custody ruling results of Florida courts in the instant situation, to testify under oath
about certifications and attestations of child support arrearages, and any number of
other aspects of the shadow of doubt of validity of license suspension, and the utter
failure by P.D. Baghdadi to perform any of the foundational work on preparing for
that line of defense was fundamentally prejudicial to the Defendant, Theresa, and
reasonably was instrumental and pivotal on whether there would even be any trial.
Again, the issue of actual validity of the administrative suspension to Theresa’s
drivers license was the primal key to the entire case – if valid, then Theresa has
nothing, and the State has everything, but if not valid, then the State has no case.
Accordingly, anything and everything that P.D. Baghdadi would have been able
to do to promote discovery and provide compelling evidence in Theresa’s favor,
i.e., of the facts towards an invalidity of that suspension, was what he needed to do,
and he could have easily submitted official Michigan evidence of the molestation
convictions against Theresa’s ex-husband, called witnesses from the officials and
employees of the Pasco County family court system and related support agency, as
well as brought forth numerous mandatory Florida Statutes, various Rules, cases,
regulations, and etc., and P.D. Baghdadi could have even produced laws, rules and
regulations from the Federal system, especially pertaining to Title IV-D processes.
26
Theresa’s public defender was, in fact, so incompetent and deficient, that he did
not even challenge, in any way, shape or form, whatsoever, the other Second
Degree Misdemeanor that the State was falsely charging Theresa with herein.
Besides the driving on suspended license, the State of Florida had also charged
Theresa with a violation of F.S. § 320.07(3C), Expired Motor Vehicle Registration
Over 6 Months, Second Or Subsequent Offense. See Citrus County Docket # 2008
CT 003440. This charge was facially invalid as against Theresa, for the very idea
required a predicate offense conviction of the same type, and Theresa had never
even been prosecuted for anything like that, let alone have a prior conviction of it.
In this situation, it was plain error, and strict ineffectiveness of defense counsel,
to not file any immediate motion to dismiss that charge for non-applicability, etc.
Even worse, this patent and fundamental omission clearly shows the dearth of
defense counsel’s attempt at protecting Theresa’s rights under law, and his total
and utter disdain for his own client. There is no question that Theresa was denied
having an effective counsel in and for defense of the (bogus) charges against her.
Moreover, and as if not enough harpooning of his own client, P.D. Baghdadi did
also affirmatively engage in knowing, willful false advice, threat and intimidation,
and other generally unlawful coercing and duress upon his own client, when he and
his likely superior in Citrus County, then privately “advised” Theresa falsely about
federal law and the expected ramifications of her federal removal (Brief, at 7-8).
27
Of course, the singular truth is just the exact opposite, and instead of what the
public defender and his likely superior falsely advised Theresa about, within the
context of a state criminal case, and potential removal of that state case into the
appropriate United States District Court, the only true possibility is removal filed
by the state Defendant, and never can the State file removal of their own criminal
case into the appropriate United States District Court, under any circumstances.
In fact, they lied. They both affirmatively lied to Theresa, in order to obstruct
justice in the case, and give the State what the State wanted – a conviction against
Theresa, regardless of the written law or applicable facts of the true situation.
Indeed, from being duly advised, already previously on the prior Saturday (Brief
at 8), until the full jury trial date on the next Monday morning, P.D. Baghdadi had
ample time in which to read a single federal statute, the removal statute at issue,
i.e., 28 U.S.C. § 1443, which clearly states:
Any of the following civil actions or criminal prosecutions,

commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in

the courts of such State a right under any law providing
for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any
law providing for equal rights, or for refusing to do any
act on the ground that it would be inconsistent with such
law.
(emphasis added)
28
Indeed, had P.D. Baghdadi done even one iota of federal research on the topic
of removals of state cases into federal courts, he would have found the relevant
federal statutes, and numerous federal cases directly on point, in Theresa’s favor.
A plaintiff is not allowed to remove a state court action to federal court. Only a
defendant can remove. See 28 U.S.C. §§ 1441(a) and 1446(a), Yonkers Racing
Corp. v. City of Yonkers, 858 F.2d 855, 863 (2d Cir. 1988) (“Quite simply, a party
who is in the position of a plaintiff cannot remove.”); Daniels v. Connell, No. 08-
CV-6335L, 2008 WL 4104578, at 1 (W.D.N.Y. Sept. 3, 2008) (“The law is clear,
however, that a plaintiff cannot remove his own action from state to federal
court.”); Geiger v. Arctco Enters., Inc., 910 F. Supp. 130, 131 (S.D.N.Y. 1996) (“It
is clear beyond peradventure of a doubt that the right of removal is vested
exclusively in defendants. A plaintiff simply may not remove an action from a
state court pursuant to 28 U.S.C. §§ 1441(a) and 1446(a)”); Adams v. Adminastar
Defense Services, Inc., 901 F. Supp. 78, 79 (D. Conn. 1995) (“removal can be
achieved only by a defendant”). “[T]here is no mechanism in the law by which [the
plaintiff] may remove or transfer [his] state case to federal court.” Sherrell v.
Norstar Bank of Upstate New York, No. 97-CV-1560, 1998 WL 381330, at 1
(N.D.N.Y. June 30, 1998). Accordingly, P.D. Baghdadi was expressly ineffective
as defense counsel, by affirmatively advising Theresa in 180 degrees against the
written law, that her removal was moot and only the State could file a removal.
29
Indeed, because the federal removal HAD been filed prior, and with the fact that
all of the relevant persons in the state court were all aware of the same removal to
federal court as filed, P.D. Baghdadi, pursuant to the various Professional Conduct
Rules, was under an affirmative duty to disclose to the state court of its at least
temporary loss of jurisdiction to enter any judgment(s) of conviction, on that day.
Theresa’s defense counsel was, in fact and horror, not only strictly ineffective,
but is even also caught in affirmative conspiracy to defraud her of justice and law.
There can be no question, whatsoever, that Theresa’s due process was denied by
depriving her of even adequate, basic effective representation per the Constitution.
Argument VI
The sentence was illegal, as unconstitutionally in excess of maximum jail time.
The standard of review for a challenge to a procedural or statutory bar is de
novo. West v. State, 2001 WL 726004, *1 (Fla. 5th DCA June 29, 2001) (citing
Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)).
An illegal sentence is one that no judge under the entire body of sentencing
statutes could legally impose under any set of factual circumstances. See Carter v.
State, 786 So. 2d 1173 (Fla. 2001).
By unlawfully coerced plea, and manifestly so done, Theresa was “convicted”
under F.S. § 322.34(2A)1, Drive While License Suspended First Conviction. This
conviction represents a violation of a Second Degree Misdemeanor as stated. Id.
30
However, there is, in fact, no such existing Florida Statute as “322.34(2A)1”, yet
another due process issue, but it is surely intended as the base “322.34(2A)”, i.e., a
first conviction of this type is a second degree misdemeanor, and punishable “as
provided in s. 775.082 or s. 775.083.” F.S. § 775.083 merely lists fines.
F.S. § 775.082(4)(b) specifies the punishment for a second degree misdemeanor
as: “For a misdemeanor of the second degree, by a definite term of
imprisonment not exceeding 60 days.” However, Theresa was sentenced to
a term of six (6) months of probation, with early termination available, but not as
guaranteed, among other sentencing provisions included. Six (6) months exceeds
the statutory maximum punishment for a second degree misdemeanor in the State
of Florida, by a factor of three (3) times over.
The entire reason that the total term of probation cannot exceed the maximum
aggregate time for all included convictions is because the convicted defendant can
also not be compelled, under a violation of probation resulting in revocation, to
serve a total time that exceeded the maximum time punishable under statute. To do
so any other way would be fundamental, manifest violation of our Constitutions.
Because the sentence imposed was for a time well exceeding the maximum days
of jail time punishable by statute for the single conviction, the sentence is illegal.
However, the issue of an illegal sentence then gets even deeper and darker, due
to the fact the trial court is and was a COUNTY court – not a CIRCUIT court…
31
The local Salvation Army Corrections Department is the officially-sanctioned
probation management “department” for Citrus County offenders. Theresa was, in
fact, placed under the control and management of the very same SAC Department.
The Florida Association of Community Corrections includes, in its official list
of one-per-county Florida Misdemeanant Probation Programs, the particular entity
of each Florida County that handles misdemeanor probation. Some of them are by
the local sheriff’s departments, some of them are by self-contained county offices,
several counties’ probation needs are handled by Judicial Corrections Services, and
several counties’ official misdemeanor probation needs, such as Citrus County, are
handled by The Salvation Army Correctional Services. For Citrus County, every
misdemeanor offender placed on probation is handled by the officially-sanctioned
Salvation Army Corrections Department, i.e., “the department” for legal purposes.
However, while F.S. § 948.01(2) allows any court of record to dispense a term
of probation in connection with sentencing (“If the defendant is found
guilty of a nonfelony offense as the result of a trial or entry
of a plea of guilty or nolo contendere, regardless of whether
adjudication is withheld, the court may place the defendant on
probation.”), that same section also limits WHICH courts may place convicted
offenders upon probation with “the department” (“However, a defendant who
is placed on probation for a misdemeanor may not be placed under
the supervision of the department unless the circuit court was
32
the court of original jurisdiction.”). And, because the trial court was,
and is, a COUNTY court, and not the circuit court – see the Certified Copy of
each of the Record transcripts, all noting “IN THE COUNTY COURT” at the very
top of them (Record, Supp1Vol3, at 1, 12 and 24), the trial court had no authority
under the law to place Theresa under probation with “the department” whatsoever.
There is no question that the sentence was illegal for exceeding the maximum
statutory jail time provided under law. Indeed, this same Court ruled, in Baldwin
v. State, 558 So. 2d 173 (Fla. 5th DCA 1990), that the total penalty of probation
and incarceration cannot exceed the statutory maximum (without qualification of
the rule under former subsection 3(d), which previously, but unconstitutionally, did
allow exceeding the maximum limits under certain conditions). That same correct
constitutional logic was extended to probation revocation cases by the First District
in Bragg v. State, 644 So. 2d 586 (Fla. 1st DCA 1994), which held that:
"In imposing a sentence following a revocation of probation, the combination

of sanctions imposed must not exceed the statutory maximum for the
underlying offense. If the trial court includes probation as part of a sentence
upon revocation of probation, the trial court must give credit for any time
previously served on probation if the new period of probation together with
other sanctions (including jail and prison credit) and the time previously served
on probation total more than the statutory maximum for the underlying offense."
(emphasis added)
Not only was the sentence constitutionally illegal for having a term of probation
exceeding the maximum jail time possible under the aggregate of all statutes, but
33
the sentence is also illegal, independently, because the trial court – a county court –
had no authority to place Theresa under probation with “the department” as placed.
Because the imposed sentence was, and is, twice illegal, it must be vacated.
Argument VII
Theresa was denied fair, competent and meaningful review on lower appeal.
The standard(s) of review for this Argument should be an appropriate mixture of
abuse of discretion, for consideration on subjective aspects of the reviewing circuit
court’s discretionary functions, de novo, for the majority of issues involved, since
most aspects in this case rise either to fundamental miscarriages, and/or to direct
and pure interpretations of law, and manifest injustice, avoiding any harmless error
analysis on any issues that rise to review of “structural” violations of due process.
In summary, the reviewing circuit court, under Merritt, Sr., either already knew,
was directly made aware of, or reasonably should have known, the following:
a) Yerman runs a Citrus County county court, not his own circuit court;
b) Yerman did not have any statutory authority, whatsoever, to place Theresa
on probation with “the department” as part of valid terms of sentencing;
c) Theresa was convicted of one (1) single second degree misdemeanor;
d) Maximum sentence on a second degree misdemeanor is sixty (60) days;
34
e) Sentencing Theresa to six (6) months on probation exceeded the law;
f) Theresa had made repeated claims about validity of suspension, and had
sufficiently explained legal impossibility on support, arrears, and that validity;
g) Validity of suspension is obviously the key element to the entire case, and
practically mandates victory to whichever side that issue be found in favor of;
h) Void and/or voidable judgments can be, and even should be, directly and/or
collaterally attacked, at any time, and can be attacked using different devices;
i) That if Theresa was making repeated claims about a key element also being
a void and/or voidable judgment, then she was entitled to present her evidence;
j) That Yerman, the judge he was reviewing, also either already knew, was
certainly made aware of, and/or reasonably should have known, all the above;
k) Theresa had, further, made more than enough and various claims about the
violations of due process by Yerman, including filing motion(s) for recusal and
petition(s) for extraordinary relief by nature of writ(s) against Yerman;
l) Theresa had made claims about Yerman accepting a coerced plea;
m) Theresa had made claims about Yerman’s threats and intimidation of her;
n) Theresa had made claims on Yerman denying her only (validity) defense;
o) Theresa had, further, made claims about Baghdadi’s ineffectiveness;
p) That all four (4) above violations are easily determined via transcripts;
q) Theresa had made multiple requests for transcripts, pursuant to law;
35
r) Theresa had been – twice – already adjudged as in forma pauperis status;
s) The law that Theresa gave Merritt, Sr., for her claims to indigent transcripts
also included then-newly-enacted F.S. §§ 57.081 and 57.082, which required
his court to immediately grant Theresa’s transcripts requests1; and,
t) That he, Merritt, Sr., still denied Theresa’s multiple transcripts requests.
Theresa’s clear legal in forma pauperis right to getting written transcripts of the
hearings was also confirmed by the United States Supreme Court, via its decision
in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and further
established by the State of Florida, via its own decisions, such as Ocer v. State of
Florida, 840 So.2d 1162 (Fla. App. 5 Dist. 2003), also Colonel v. State, 723 So.2d
853 (Fla. 3d DCA 1998), and etc. These all happened years before the instant case.
Accordingly, the initial reviewing court, the circuit court, under Merritt, Sr.:
1) knew it was violating Theresa’s due process rights to obtain transcripts;
2) knew Theresa’s claims of coerced plea, denial of only defense, threats and
intimidation by trial judge, and ineffectiveness could be checked by transcripts;
1
F.S. § 57.081(1) states, in relevant parts: “Any indigent person, ..., who is a party
or intervenor in any judicial ... proceeding or who initiates such proceeding shall
receive the services of the courts, sheriffs, and clerks, with respect to such
proceedings, despite his or her present inability to pay for these services. Such
services are limited to filing fees ... and any other cost or service arising out of
pending litigation. .... Prepayment of costs to any court, clerk, or sheriff is not
required and payment of filing fees is not required in any action if the party has
obtained in each proceeding a certification of indigence in accordance with s.
27.52 or s. 57.082. (Theresa, in fact, had multiple such certifications of indigency).
36
3) knew it had an affirmative duty to investigate such claims by transcript;
4) knew the trial court had also violated Theresa’s rights to transcripts;
5) knew it was acting as a knowing criminal co-conspirator with Yerman to
willfully defraud Theresa of her same express rights to indigent transcripts;
6) knew Theresa had been sentenced to an illegal sentence, twice-illegal;
7) knew it was acting as a knowing criminal co-conspirator with Yerman to
willfully defraud Theresa of her right to be free from unlawful sentencing;
8) knew that Yerman had somehow defrauded Theresa of her clear right to
challenge the key element of validity as a void and/or voidable judgment;
9) knew it was acting as a knowing criminal co-conspirator with Yerman in
obstructing Theresa’s justice of her right to challenge that key validity element;
10) knew that Theresa had somehow been unconstitutionally convicted;
11) knew it was acting as a knowing criminal co-conspirator with Yerman in
obstructing Theresa’s justice of right to be free from fraudulent convictions;
12) knew it – or, he, Merritt, Sr. – was absolutely required, under both the
Judicial Conduct Canons, as well as also under the Professional Conduct Rules,
to quickly report Yerman to the various and proper authorities, without delay;
13) knew, considering all the above, that defense counsel must be ineffective;
14) knew it/he was willfully violating all manner of rule and law; and, also
15) knew it/he would be subject to all manner of discipline and liability, too.
37
Indeed, the only thing even more manifest than the circuit court’s knowing and
willful allowance and participation in defrauding many aspects of Theresa’s justice
was the fact that, as judge of a Florida Circuit Court, Merritt, Sr., had practically
plenary power to correct the numerous injustices perceived herein, with his usage
of administrative supervisory position over Yerman, with his available “All Writs”
powers that Yerman does not have, with his longer experience on the bench, and so
forth and so on, and yet still did not use any of those available resources to work a
set of reasonably fair and just results for Theresa within the underlying matters.
In fact, this Honorable Court well ought to just skip the abuse of discretion
standard of review, use de novo as required, but get right on to manifest injustices.
In any event, there can be no doubt that Theresa was not afforded a meaningful
review of her need for justice and correction in the reviewing circuit court, either,
and that Theresa is now entitled to have the conviction vacated with relevant relief.
Argument VIII
Theresa is entitled to various manner of relief, including vacating conviction and
sentence, reimbursement of all costs and direct expenses, and, via power of writ(s),
to further compel DOR and DMV remediation actions in her favor and for justice.
Not “Argument” per se, but as treated similar, a ‘standard of review’ is cordially
offered for the Court’s understanding, as a triplet of relevant legal maxims, to-wit:
Equity will not suffer a wrong to be without a remedy; Equity will take jurisdiction
38
to avoid a multiplicity of suits; and, Equity will not allow a statute to be used as a
cloak for fraud. Samples of this Honorable Court’s power to correct are given as:
District courts of appeal may issue writs of mandamus, prohibition, quo
warranto, and common law certiorari, and all writs necessary to the complete
exercise of the courts’ jurisdiction; or any judge thereof may issue writs of habeas
corpus returnable before the court or any judge thereof, or before any circuit judge
within the territorial jurisdiction of the court.” Fla. R. App. P. 9.030(b); Materials
may be amended in the interest of justice. Fla. R. App. P. 9.030(d); If a party
seeks an inappropriate remedy the case shall be treated as if the appropriate remedy
had been sought. Fla. R. App. P. 9.040(c); And, there are plenty of provisions
under the Rules of Civil Procedure and the Rules of Criminal Procedure that give
this Court ample justification, and authorized powers, to effect justice as it sees fit.
For example, Fla. R. Crim. P. 3.850(A) lists a total of six (6) grounds justifying
relief for any petitioner that can show good cause therefore. Theresa submits that
she has, conclusively, shown and demonstrated five (5) of those six (6) grounds,
even beyond reasonable doubt, and is therefore, again, entitled to substantial relief.
This Court's discretionary original jurisdiction involves a class of legal “writs”
that, with some exceptions, originated centuries ago in the English common law.
Most Floridians know little about these writs, with the possible exception of habeas
corpus, and even some lawyers tend to lose sight of the creative ways the writs can
39
be used. In some circumstances, one of these so-called “extraordinary writs” may
provide jurisdiction when nothing else can.
The terms “state officers and state agencies” as used in the Florida Constitution
also include judges and courts. See Fla. Const. art. V, § 3. In these such cases, one
specialized use of extraordinary writ is to require the respondent-judges to exercise
jurisdiction that has been wrongly denied in the lower court. At earlier common
law, this device was known as the writ of procedendo, see Linning v. Duncan, 169
So.2d 862, 866 (Fla. 1st DCA 1964) (citing Newport v. Culbreath, 162 So. 340
(Fla. 1935)), though today the same concept has been subsumed under mandamus.
E.g., Pino v. Dist. Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla. 1992).
To ask special pardon for the vulgar vernacular, simply because there seems to
be no other appropriate and complete method to express it, the State of Florida
has, without doubt, “royally fucked” Theresa, her children, her family, and her
various and numerous due process and other similar rights, over the pending years.
This latest secondary or tertiary ‘enforcement’ upon the legal frauds of her being
stripped of her minor children unlawfully, forced to pay child support to a person
who could never possibly hold and have any rightful custody of her children, have
her income fraudulently garnished, let alone willfully violate express and strict law
of the United States (‘Bradley Amendment’, see Brief, at 4) to fraudulently erase
over $10,000 in non-dischargeable support owed to her, intercept her tax refunds,
40
in apparent decision that she was not being destroyed maliciously enough, to also
falsely “suspend” her drivers license, fraudulently impact her official credit ratings,
both of same affirmatively impairing her abilities and rights to travel, seek gainful
employment, tend to necessary shopping and repairs, and the list goes on and on…
Indeed, the State of Florida, itself, is so replete with totality of “unclean hands”
throughout this entire matter, that equity absolutely dictates this Honorable Court
now take up arms in vigor and determination, utilize all available powers at its own
disposal, and issue orders compelling dramatic correction of the manifest injustice.
Equity will not suffer a wrong to be without a remedy.
When seeking an equitable relief, the stronger hand is that which has been
wronged. The stronger hand is that hand which has the capacity to ask for a legal
remedy (judicial relief). In equity, this form of remedy is usually one of specific
performance or an injunction (injunctive relief). These are superior remedies to
those administered at common law such as damages. The Latin legal maxim is ubi
jus ibi remedium ("where there is a right, there must be a remedy").
The maxim is necessarily subordinate to positive principles and cannot be
applied either to subvert established rules of law or to give the courts a jurisdiction
hitherto unknown, and it is only in a general not in a literal sense that maxim has
force. Case law dealing with this maxim includes Ashby v. White and Bivens v. Six
Unknown Named Agents. Ashby v. White, (1703) 92 ER 126, is a foundational
41
case in UK constitutional law and English tort law. It concerns the right to vote
and misfeasance of a public officer. Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), was a case in which the United States Supreme Court ruled that
an implied cause of action existed for an individual whose Fourth Amendment
freedom from unreasonable search and seizures had been violated by federal
agents. The victim of such deprivation could sue for violation of the Amendment
itself, despite the lack of any federal statute authorizing such a suit. The existence
of a remedy for the violation was implied from the importance of the right violated.
Bivens has been subsequently interpreted to create a cause of action against the
Federal government similar to the one 42 U.S.C. § 1983 creates against the states.
Equity will take jurisdiction to avoid a multiplicity of suits.
Thus, "where a court of equity has all the parties before it, it will adjudicate
upon all of the rights of the parties connected with the subject matter of the action,
so as to avoid a multiplicity of suits." Burnworth v. Hughes, 670 P.2d 917, 922
(Kan. 1983). This is the basis for the procedures of interpleader and the more
rarely used bill of peace.
Simply put, there are facets to this matter that require justice done within the
underlying matters, such as immediate corrections and remedial actions compelled
in regards to Theresa’s relationships with the Florida DOR and the Florida DMV,
or, otherwise, all the parties could just end right back up here, again, without a fix.
42
Moreover, there are still pending issues requiring resolution in regards to the ten
thousand dollars ($10,000) owed to Theresa by her ex-husband, and any necessary
enforcement actions thereupon, and return of all unlawful garnishments from
Theresa’s income checks and tax refund checks, which therefore implicate the
necessary presence and action of and by Florida DOR, and likely also the FL-CSE.
There is no possible legal plausibility or reasonableness to force re-litigation of
these very same underlying – and directly material – matters, in yet another never-
ending selection and happenstance of forums, nor is there reasonable function to
force either Theresa, or another one or more Florida courts, to have to deal with all
of these same issues, all over again, from the beginning, as a waste of taxdollars.
This Honorable Court should, in fact, use any and all power deemed necessary
to put an utter end to, at least, all potential sources for this situation to arise again,
by taking the plenary jurisdiction it has, under both equity and the law, including
by way of rules, doctrines, or whatever else, and so fashion the appropriate justice.
Equity will not allow a statute to be used as a cloak for fraud.
Equity prevents a party from relying upon an absence of a statutory formality if
to do so would be unconscionable and unfair. This can occur in secret trusts and
also constructive trusts and so on. To sanction this misrepresentation and deceit
would be to go against the policy so ingrained in our legal system that it needs very
little allusion: the principle of good faith. It is not licit or fair for anyone to profit
43
from making others believe what he has no intention of fulfilling. A civilized legal
system will not allow such antics. Again, the State of Florida, itself, comes into
this matter being utterly replete with numerous “unclean hands” actions, of its own
volition and history documented, and cannot be allowed to profit from its injustice.
Theresa prays this gracious and Honorable Court promptly now:
1. does Order generalized annulment, voidance, or other legal device, in order
to vacate any outstanding Pasco County family court orders that do not provide
Theresa as the last known primary, residential, custodial parent of her children;
2. does Order generalized annulment, voidance, or other legal device, in order
to vacate any and all child support, income withholding, and such other related
orders heretofore existing against her name, with particularity to Florida CSE
case # 1222601991, Payor: Theresa M. Martin, Payee: Stephen P. Martin;
3. does Order the Florida Department of Revenue, and via the assistance of its
own Child Support Enforcement and other Title IV-D personnel, as all may be
required, to ameliorate the damages inflicted unlawfully upon Theresa, by no
less than total refund of all monies garnished, intercepted, or otherwise taken
from her through any ‘child support’ process of either Florida or Federal use;
4. does Order the Florida Department of Revenue, and via the assistance of its
own Child Support Enforcement and other Title IV-D personnel, as all may be
required, to ameliorate the damages inflicted unlawfully upon Theresa, by no
44
less than reinstating her ex-husband’s Title IV-D balance owed to Theresa, and
also thereafter promptly following through with necessary enforcement action,
with particular attention to Florida CSE case # 1196182477, Payor: Stephen P.
Martin, Payee: Theresa M. Martin;
5. does Order the County of Citrus, and/or the State of Florida, to reimburse
Theresa in full for her direct costs and expenses in defending against the traffic
matters herein, and all such same costs and expenses in pursuing review;
6. does Order the Florida Department of Highway Safety and Motor Vehicles
to reimburse Theresa for any extraordinary costs and expenses associated with
her drivers license being improperly, or, at very least, prematurely, suspended;
7. does Order that each of the above reimbursements shall also be made with
the legally appropriate simple annualized interest, typically at eight (8) per cent
annum or at six (6) per cent annum, as Florida law provides, thereupon; and,
8. does Order any other monetary or other remedial awards or actions as this
Honorable Court may well and best see fit, given totality of the circumstances;
Conclusion
Clearly, Theresa has experienced a singular, one-of-a-kind nightmare, at the
“unclean hands” of the State of Florida, of injustices so manifest as to boggle the
very mind of any reasonable person or jurist. Indeed, no reasonable person would
ever consider the notion of changing custody to a kidnapping, four-time convicted
45
child molester, nor the other subsequent calamities thrust unlawfully upon Theresa
to be the sort of thing that any legal system, anywhere, would ever allow to happen
to any American Family under its own watch. The sheer amount of manifest types
of injustice, the sheer amount of fraudulent actions, the sheer amount of utterly
gross incompetence to the written law, and the sheer amount of “ball-dropping” by
the State of Florida is practically beyond the comprehension of most of civilized
society, simply because the nightmarish “Keystone Cops” injustice of episodes that
Theresa has been forced to continually endure are almost too numerous to count.
Instead, let us leave this Honorable Court with the most appropriate conclusion,
found as another well-known, and often-used, legal maxim: Res ipsa loquitur.
WHEREFORE, your undersigned hopeful Appellant, Theresa M. Martin, prays
and moves this Honorable Court to simply grant her true and lawful justice and
equity, and so now moves for all appropriate relief deemed wise and proper herein.
Respectfully submitted,
/s/ Theresa M. Martin

_______________________
Theresa M. Martin
10918 Norwood Avenue
Port Richey, FL 34668
727-857-4193
amothersfight@yahoo.com
46
FIFTH DISTRICT

)
) 2009-AP-2088 & 2009-CA-3729
State of FLORIDA, )
_______________________________ ) ________________________________
CERTIFICATE OF SERVICE
I hereby certify: that on this __15__ day of February, 2010, a true and complete
copy of the foregoing initial brief of appellant, by depositing the same in the
United States mail, first class postage preaffixed, has been duly served upon:
(Attorney for the Appellee):

Office of the Attorney General
State of Florida
444 Seabreeze Blvd., 5th Floor
Daytona Beach, FL 32118
____________________________
Theresa M. Martin
Appellant pro se
Theresa M. Martin
727-857-4193
FIFTH DISTRICT

)
) 2009-AP-2088 & 2009-CA-3729
State of FLORIDA, )
_______________________________ ) ________________________________
CERTIFICATE OF COMPLIANCE
I hereby certify that the lettering in this brief is Times New Roman 14-point font
and complies with the font requirements of Florida Rule of Appellate Procedure
9.210(a)(2).

____________________________
Theresa M. Martin
Appellant pro se
Theresa M. Martin
727-857-4193

09-3590 Initial Brief

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09-3590 Initial Brief

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IN THE DISTRICT COURT OF APPEAL

IN AND FOR THE STATE OF FLORIDA

5DCA CASE NO.: 5D09-3590

Theresa Marie MARTIN, ) in an appeal from summary denials

Initial Brief of Appellant

On matters now coming to review from:

(Attorney for the Appellant): (Attorney for the Appellee):

Betty Strifler, Clerk

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

V. Theresa’s public defender was strictly, categorically, and manifestly

VI. The sentence was illegal, as unconstitutionally in excess of maximum jail

VIII. Theresa is entitled to various manner of relief, including vacating conviction

The United States Constitution

The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States Cases

Adams v. Adminastar Defense Services, Inc., 901 F. Supp. 78, 79

Federal Statutory Law

The Florida Constitution

Florida State Cases

Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . 30

Florida Statutory Law

§ 39.0139, Fla. Stat. (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Florida Rules of Court

Fla. R. App. P. 9.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fla. R. Crim. P. 3.850. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Ashby v. White, (1703) 92 ER 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

5DCA CASE NO.: 5D09-3590

Theresa Marie MARTIN, ) in an appeal from summary denials

Initial Brief of Appellant

petitions for extraordinary writ(s). Defendant-Appellant, Theresa, was prosecuted

Florida Department of Highway Safety and Motor Vehicles (hereinafter “DMV”),

Enforcement agency (hereinafter “CSE”), and/or any official, employee or agent of

secondary and tertiary enforcements of those base matters, such as administrative

On or about 14 November 2008, Theresa was charged by Citrus County with a

Second Or Subsequent Offense. See Citrus County Docket ## 2008 TR 015731,

Misdemeanors proceeded towards trial, with appointment of public defender. Id.

Theresa’s ex-husband, Stephen, had been previously convicted of multiple child

therefore, was a foregone conclusion, and the convicted ex-husband acquiesced to

ex-husband to be over ten thousand dollars ($10,000+) in willful support arrears,

debt, in willful violations of 42 USC § 666(a)(9)(c), i.e., the Bradley Amendment.

A large swath of communications, in fact, were eventually directed towards all

the pre-trial hearing, P.D. Baghdadi suddenly “torpedoed” Theresa as feigning no

evidence, stating: “In this court, that’s gonna be irrelevant. That’s

Faced with an ineffective public defender, who provided absolutely no defense,

But, none of it appeared to matter to the totally and flagrantly unconstitutional

and on Saturday, 14 March 2009, he called to inquire of Theresa as to the nature

one of her multiple counsel, on the telephone. There is sufficient documentation to

(30) days to appeal as acknowledged (Record, Supp1Vol3, at 29, lines 11-17).

filings on insolvency/indigency, various affidavits, and petitions for extraordinary

Under an unusually-derived, dual framework of inextricably-intertwined appeal

Summary of the Argument

any set of circumstances available to his status, it is a definitive, absolute certainty

suspension of her otherwise-unrelated drivers license, could ever be valid or legal.

the State of Florida – in other words: an illegal sentence, brazenly unconstitutional.

Homeowners Ass'n, 727 So.2d 1149 (Fla. 5th DCA 1999).

because of those convictions, and the rebuttable presumption of detriment to a

residential custody to the convicted ex-husband. Moreover, the ex-husband both

Wade, 903 So. 2d, at 936-937.

custody determinations. See F.S. § 61.507. Res judicata so attached to Theresa’s

[51-2003-DR-2537WS] where final judgment of custody had been awarded to

miles away, as per § 61.13001(3)(a), which he also did not do;

as per § 61.13001(3)(a)(7), which he of course also did not do; and,

state in violation of custody], § 61.515 [court of initial custody determination has