IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, FLORIDA CRIMINAL DIVISION James

Gray, Jr. Defendant Vs. STATE OF FLORIDA Respondent. ) : ) : )

Case No.: 53-2009-CF-00258101

EMERGENCY MOTION TO DISMISS INEFFECTIVE ASSISTANCE OF COUNSEL AND TO DISMISS CHARGES FOR FAILURE TO PROSECUTE Comes now, the Defendant, Pro-se, pursuant to Rules 1.420 (e), Florida Rules of Civil Procedure; RULE 3.133. PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY PRELIMINARY HEARINGS, and 3.191 (D) (3) Florida Rules of Criminal Procedure. Herein, moves this Honorable Court to grant dismissal in the above - styled case, therein discharging Defendant from any further prosecution in this case at bar. In support of this action, Defendant hereby presents the following for review: FACTUAL BASIS 1. Defendant was arrested on: April 10, 2009. 2. Defendant Bonded out for medical reason incurred in the arrest and beating by Lakeland Police Officer Clint Harris badge # 142, and never went to a first appearance hearing. 3. Defendant has never been even asked to enter a plea to a single charge alleged in the Police Report. 4. Prosecutor filed the information according to the progress report in the clerk¶s office, but the Defendant has never been arraigned on any charges. 5. Defendant was arrested without a warrant, and there in no probable cause determination recorded to Defendant¶s knowledge.

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6. Defendant has repeatedly brought the denial of Due Process to the attention of the ineffective assistance of counsel, but they have refused to acknowledge that this is not normal procedures or that there is anything wrong with it. 7. Defendant was not arraigned in OPEN COURT on any charges alleged in the arrest of April 10, 2009, and there is NO record of same and NO WAIVER on the record and the ineffective assistance of counsel has been unwilling to assist with Defendant¶s due process rights. 8. Defendant was never allowed to have a Probable Cause Hearing or an Adversarial Preliminary Hearing but the ineffective assistance of counsel told the Defendant that she would not file a frivolous motion because she, Beth Arreguin, wanted to keep her Bar Card. This again is ineffective assistance of counsel when there is no probable cause determination in the file signed by anyone. 9. Defendant was not formally charged with a crime in OPEN Court, and this can be verified by the Electronic Court Reporter causing the Court to be in want of both subject matter and In Persona Jurisdiction in this case because there is no Service of Process on the Record, but the ineffective assistance of counsel refuses to point that out to the Court, and prevents Defendant from doing so while he appears to be Counsel of record. 10. Defendant has not received service of process from this Court made pursuant to statutes and Supreme Court Rules, Janove v. Bacon, 6 111. 2d 245, 249,218 N.E. 2d 706, 708 (1953) There is NO OBJECTIONS from the ineffective assistance of counsel. 11. Defendant was denied Due Process in that the prerequisites for trial have been omitted like first appearance, probable cause hearing, adversarial preliminary hearing, arraignment, or appointment of counsel in OPEN COURT, and there is no Court Reporter¶s record for verification to the contrary. Court Employee (Sue) in the official court reporter¶s office has verified that no record of the proceedings mentioned above exist in the office of the court reporter. 12. The ineffective assistance of counsel has refused to advice Defendant that a ³Notice of Expiration of Speedy Trial´ could have been filed when Defendant filed his first Pro se Motion

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on the 179th day, second on the 326 day, third on the 423rd day, and fourth on the 502nd day after arrest. 13. There is really nothing to dismiss because the Court has never been properly set in this case. 14. The charges have never been presented and the plea has never been entered, and there is no record to the contrary since the filing on May 18, 2009. 15. The ineffective assistance of counsel has continued to insist that Defendant has waiver his rights to speedy trial while knowing that there is no Court Record to support any waiver by Defendant to any of his rights. 16. It has been 517 days since Defendant was brutally beaten and arrested without cause and charged only to cover up the without probable cause arrest, but the ineffective assistance of counsel has repeated refused to assist in preventing the denial of due process. 17. It has been 338 days since Defendant filed his first pro se motion to dismiss for failure to grant him a speedy trial as per Florida Rules of Criminal Procedures 3.191, but the ineffective assistance of counsel has not tried to protect Defendant¶s rights to a Speedy Trial. 18. It has been 141 days since defendant filed his 2nd pro se motion to dismiss for failure to grant him a speedy trial as per Florida Rules of Criminal Procedures 3.191 and a denial of Due Process in violations of the Fifth and Fourteenth Amendment to the U. S. Constitution, but appointed counsel has done nothing to assist with getting a dismissal of the charges. 19. It has been 93 days since Defendant filed his 3rd pro se motion to dismiss for failure to grant him a speedy trial, and not one time has either of defendant¶s ineffective assistance of counsel filed or even told him to file a ³Notice of Expiration of Speedy Trial´ as defendant learned this Week of August 22, 2010, is required. 20. Defendant has constitutionally guaranteed rights to ³effective assistance of legal counsel,´ but it has been denied thus far, and all Defendant has had available have been ineffective.

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21. On June 7, 2010, at the time the Public Defender, Beth Arreguin, was allowed to withdraw, Regional Counsel Walton Wilson was appointed to replace her even though there is no record of her ever being appointed to represent defendant. 22. Attorney Walton Wilson has told the Court that he is ready for trial, but he has never discussed the facts of the case with the Defendant. 23. How can Attorney Wilson claim to be ready for trial to represent someone that he doesn¶t know, nor does he even know what law or laws the defendant have been accused of violating. 24. The Defendant has an absolute right to effective assistance of counsel, but he has been denied by the Court with the appointment of Attorney Walton Wilson Regional Counsel, Polk County. 25. The Defendant has an absolute constitutional right to speedy trial without demand within the time frame of 175 days after a felony arrest and 90 days after a misdemeanor arrest, and it has been 517 days as of today, September 9, 2010. 26. The Government has failed to process the trial within said time frame of 175 days, and the only remedy it has available to it is DISMISSAL. 27. The failure to prosecute resulted from sources other than the Defendant, and he should not be penalized for the omissions or the insufficiently justified delays between arrest and trial. 28. Said delays seriously injured and prejudiced the Defendant by violating the Defendant¶s constitutionally guaranteed rights to due process and speedy trial, and the ineffective assistance of appointed counsel has not attempted to protect Defendant¶s rights. 29. Said delays have critically impaired the Defendant's defense by dimming memories and directly causing the potential loss of exculpatory evidence, thereby subjecting Defendant to oppressive pre-trial conferences and mandatory docketing and reflecting prejudice against Defendant. 30. Regardless of any contentions by Government minions that said delay arose as a result of Defendant continuances or tactical defense decisions, the Government bears the burden to avoid prosecutorial neglect by initiating prosecution within said time frame.

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31. Defendant did not cause or contribute to the delay by unavailability for trial, by requesting a continuance, by failure to charge and arraign in OPEN COURT as the court reporter of this court will verify. August 27, 2010, is the 15th time Defendant has appeared in Court, and it still is not properly set. 32. Any continuance requested by Defendant arose as a result of the ineffective assistance of counsel¶s request and not the Defendant¶s. The obstruction of due process either through direct and intentional obfuscation, incompetence, disorganization, negligence, or constructive lack of cooperation, and said obstruction made it impossible for Defendant to obtain either just treatment procedural due process, or a speedy trial by the Government. 33. The Government has the obligation to dismiss with prejudice the charge(s) against Defendant, and immediately to release Defendant from this complaint in the instant case; Defendant has the absolute right to a dismissal with prejudice and to immediate and complete liberation. 34. Failure to dismiss and discharge Defendant would seriously undermine the constitutional principles of a fair and impartial trial without delay, thus creating a miscarriage of justice. 35. Defendant¶s attendance at a pretrial conference before Judge Mark Hofstad for the very first time on August 10, 2010, raised questions in Defendant¶s mind as to his fairness and impartiality when he ordered the Defendant removed from the courtroom for telling the truth and pointing out the due process violations. 36. Defendant¶s ineffective assistance of counsel did nothing to address the obvious bias in favor of the prosecution attitude demonstrated by Judge Hofstad when he after giving the Defendant permission to ask questions cut him short and ordered him removed from the Courtroom on August 10, 2010, the very first time that the Defendant had appeared before him. This indicated that the Judge had had some previous conversation with someone prior to the hearing about the case because of the statement about having looked over the case. 37. On August 10, 2010, the ineffective assistance of counsel stated that the Defendant had waived his rights to a Speedy Trial because someone put a document in the file. The Court Record is silent to first appearance, arraignment, probable cause hearing, adversarial preliminary
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hearing, or any motions on behalf of the Defendant to obtain any of the procedural due process requirements by either of the appointed assistance of counsels. 38. Judge Hofstad stated on August 10, 2010, that Defendant had gone through all of the processes to resolve the matter and that all of the processes had failed to resolve it, and now it is time to go to trial. There is NO Court record to support any part of the statement made by Judge Hofstad. His statement was based completely on hearsay evidence and not of his personal knowledge. 39. The Sixth Amendment to the Constitution provides the authority and power for a Court to deprive an accused of procedural due process only when the waiver can be verified on the record, and not when the waiver of the right is only presumed. 40. Defendant¶s ineffective assistance of counsel has also presumed that the rights to a Speedy Trial have been waived because someone has told him, but the Sixth Amendment does not allow the wavier to be presumed from a silent record, and must be determined by the trial court before proceeding. 41. Defendant¶s ineffective assistance of counsel would not adopt Defendant¶s motion to dismiss for failure to grant a speedy trial because he believed in error that Defendant has waived his rights because of the hearsay evidence he has received. The record does not support his belief. ARGUMENT AND MEMORANDUM OF LAW Amendment 6 to the United States Constitution, Amendment 6, and the Florida Constitution, Article I Section 16, guarantee a speedy trial to every person charged with a crime. Attorney Walton Wilson has been and is ineffective assistance of counsel and doesn¶t believe in anything told to him by the Defendant. Defendant can¶t tell if he doesn¶t believe because he doesn¶t believe, or that he has been told not to believe. He is ineffective regardless of his reasons for his beliefs. Defendant wants him replaced with someone that can be effective in insuring procedural due process, or removed without replacement. Defendant does not believe that he can do any worst all by himself. Defendant is of the opinion that nothing plus nothing equals nothing, and as of this moment Defendant has been appointed nothing.
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The Defendant¶s rights to an effective assistance of counsel have failed to provide counsel that has been willing or able to insure him due process. Florida Statute 918.015 ³Right to speedy trial´ provides ³(1) in all criminal prosecutions the state and the defendant shall each have the right to a speedy trial. (2) The Supreme Court shall, by rule of said court, provide procedures through which the right to a speedy trial as guaranteed by subsection (1) and by s. 16, Art. I of the State Constitution shall be realized. The Florida Supreme Court obeyed Florida Statue 918.015 by issuing the Florida Rules of Judicial Administration which requires in Rule 2.250 (a)(1)(A) that the Trial Court Time Standard allow 180 days from arrest to final disposition for criminal felony cases. Florida Rules of Criminal Procedure provides in Rule 3.191 (a) "Speedy trial without demand" that ³(a): Every person charged with a crime by indictment or information, shall be brought to trial within 175 days if the crime charged is a felony. If trial is not commenced within this time period, the Defendant shall be entitled to the appropriate remedy as set forth in subdivision (p) below.´ Rule 3.191 (p) provides ³A Defendant not brought to trial within the specified time period, on motion of Defendant or the court, shall be forever discharged from the crime.´ Florida Rules of Civil Procedure requires in Rule 1.420 that when the Government fails to prosecute a case within the lawful time frame, the court shall upon motion of any interested party, whether or not a party to the action, dismiss the case with prejudice for failure to prosecute. In the instant case, the period of pre-trial delay, and oppressive incarceration that has elapsed since arrest clearly demonstrates a serious time standard violation which provides complete cause for immediate dismissal of all charges for lack of speedy trial. Hedgepeth v. United States, 124 U.S. App. D.C. 291, 294, 364 F.2d 684, 687 (1966); and Dickey v. Florida, 398 U.S. 30, 48, 90 S. ct. 1564, 26 L. Ed 2d 26 (1970). The portion of the delay attributable to the Government or the Defendant has no relevance. The extreme duration of delay, the deprivation of Defendant's right to a speedy trial, the total lack of justification and the prejudicial effects requires dismissal.

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Coleman v. United States, 442 F.2d 150 (1971); and United States v. Reed, 285 F. Supp. 738, 741 (D.D.C. 1968) ("Clearly there can be no waiver of right to speedy trial, where (the Defendant) is powerless to assert his right because of incarceration, ignorance, and lack of sufficient legal advice."). The presumption that pretrial delay has prejudiced the Defendant intensifies over time substantially triggering a Barker inquiry. Doggett v. United States, 505 U.S. 647, 652, n.l, 112 S.CT. 2686, 120 L.Ed. 2d 520 (1992); and violates sixth amendment speedy trial Right as guaranteed. U.S.C.A. Constitution. Amend. 6.; and article 1, section 9, Florida Constitution. The Supreme Court has repeatedly held that the prosecutor and the court have an affirmative Constitutional obligation to try the Defendant in a timely manner; and that this duty requires good faith and diligent effort to bring him to trial quickly. See Moore v. Arizona, 414 U.S. 25, 26, 94, S.CT. 188, 38, L.Ed. 2d 183 (1973) quoting Smith v. Hooey, 393 U.S. 374, 384, 89 S.CT. 575, 21 L.Ed. 2d 607 (1969). In this instant case the state or the court was negligent in their duties to try Defendant in a timely manner. Moreover, they have failed to show good faith or diligent effort, to bring Defendant to trial quickly. As displayed by the lengthy undue delay, and incarceration of the Defendant in this instant case. United States v. Graham, 128 F. 3d 372, 374, (6th cir.1997). A mere presence of court backlog or overcrowded case load is insufficient to justify delay by prosecution. United States v. Goeltz, 513 F. 2d 193, 197, (10th cir. 1975) To the extent that the Defendant's counsel waived time or had Defendant request continuances. This would not be attributed to Defendant, due to counselor¶s actions contradicting the best interest of Defendant, regardless of Defendant being bound by counselor¶s actions; defense continuances don't excuse lengthy delays in the disposition of a case. United States v. Lam, 251 F. 3d 852 (9th Cir. 2001). The actions of the Government to delay trial of Defendant, has led directly, prejudicially, and unlawfully to a denial of right to speedy trial in this case. Through said delay the Government seriously and intentionally infringed upon the right of due process of law, under the 14th amendment to the United States Constitution; and Article 1, section 9, Florida Constitution, which the Supreme Court has held to be the "The law of the land." In the instant case, the Court

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has no prerogative. The Court must immediately order an immediate dismissal of all charges against the Defendant with prejudice State v. Dowling, 110 So. 2d. 522, 523 (FLA. 1926) Therefore, petitioner should be released from custody immediately; and charges dismissed with prejudice to bar any re-prosecution of the criminal charges. Whereas, a violation of Sixth Amendment right to speedy trial or failure to prosecute requires dismissal. Strunk v. United States, 412 U.S. 434, 439 - 40, 93S.CT. 2260 (1973); McNeely v. Blanas, 336 F. 3d 822 (9th cir. 2003). Any denial of dismissal would be void being inconsistent with due process of law. Omer v. Shalala, 30 F.3d 1307, 1308 (1994), and Bass v. Hoagland,172 F.2d 205,209 (1949). All public employees in Florida have the obligation actively and assiduously to protect the rights of the people when circumstances permit, especially when required by job descriptions or jobs place public employees in proximity to the people. Public employees accepted that obligation when they swore their sacred oaths of loyalty to the constitutions of both the United States and Florida. Failure immediately to dismiss the charges against the Defendant would constitute an egregious violation of the Public Employees Oath of loyalty to the US and Florida constitutions under Florida Statute 876.05, under the Florida Constitution Article II Section 5(b), and the US Constitution Article VI Clause 2 and 3, and the Bill of Rights and Amendments 13 and 14. Said failure would invoke the protections by numerous state and federal laws, including but not limited to 18 USC 242, ³Deprivation of Rights Under Color of Law,´ 18 USC 241 ³Conspiracy Against Rights,´ Florida Statute 760.51 ³Violation of Constitutional Rights,´ Florida Statute 839.24 ³Penalty for failure to perform the duty of a public officer,´ and Florida Statute 843.0855 (2) ³Obstruction of justice under color of law.´ All Government employees involved directly or indirectly would thereby become subject to serious civil and criminal litigation for their respective roles in the violations of numerous Constitutional rights of Defendant. Thus, this honorable Court must immediately dismiss all charges against Defendant with prejudice. PUBLIC EMPLOYEES BOUND TO LOYALTY OATHS

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Pursuant to Florida Statute 876.05 and contract law, Defendant hereby accepts the Public Employee Oath and all other oaths of loyalty to the US and Florida Constitutions sworn or affirmed by all attorneys and public employees associated in any way with the Defendant or the instant case as a condition of obtaining their jobs and professions. Defendant binds the aforesaid public employees and attorneys to their loyalty oaths and admonishes them to protect assiduously Defendant¶s God-given, Constitution-guaranteed rights at all times, under penalty of numerous state and federal laws including, but not limited to those cited herein. CONCLUSION WHEREFORE, Defendant based upon the foregoing facts and authorities, moves this court to enter order dismissing the ineffective assistance of counsel, and then the charges in this case with prejudice; and Order the immediate release of Defendant, in the best interest of Justice and Due Process.

Respectfully Submitted; Signature: _____________________________Pro se Address: ___________________________________ City/State/Zip: ______________________________ Printed name: _______________________________ Date:_______________

CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing has herein been furnished, to the office of the State Attorney for POLK County, on this 8th day of September, 2010. via hand delivery to courthouse mail box. Respectfully Submitted, Signature __________________ ____________ Date: ______________

Printed Name _______________________________

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ORDER TO DISMISS

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

_______________________________________ ____________ Judge Date Ordered

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