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IN THE DISTRICT COURT OF APPEAL FOR THE FIFTH DISTRICT STATE OF FLORIDA CASE NO.

: 48-08-CF-013331-O EXPEDITED REVIEW RESPECTFULLY REQUESTED CASEY MARIE ANTHONY, Petitioner, vs. STATE OF FLORIDA Respondent, _______________________________/

EMERGENCY PETITION FOR WRIT OF PROHIBITION

J. CHENEY MASON, ESQ. Florida Bar No.: 131982 J. CHENEY MASON, P.A. 390 N. Orange Avenue, Suite 2100 Orlando, Florida 32801 Telephone: 407-843-5785 Facsimile: 407-422-6858 and LISABETH FRYER, ESQ. Florida Bar No.: 89035 390 N. Orange Avenue, Suite 2100 Orlando, Florida 32801 Telephone: 407-426-2333 Facsimile: 407-422-6858 Attorneys for the Defendant, CASEY MARIE ANTHONY

TABLE OF CONTENTS Page

TABLE OF CITATIONS BASIS FOR INVOKING JURISDICTION STATEMENT OF THE FACTS. THE NATURE OF THE RELIEF SOUGHT.. ARGUMENT... LACK OF JURISDICTION... VIOLATION OF DOUBLE JEOPARDY. CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE .

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TABLE OF CITATIONS

FEDERAL CONSTITUION

Page

U.S. Const., amend. V 10 U.S. Const., amend. XIV... 10 STATE CONSTITUTION Page

Fla. Const., art. I, 9 10 CASES Page

DAlessandro v. Tippins, 124 So. 455 (Fla. 1929) 7 Jones v. State, 964 So. 2d 167 (Fla. 5th DCA 2007) 8 Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004). 10 Luther v. State, 661 So. 2d 906 (Fla. 2d DCA 1995) 1 Reile v. State, 901 So. 2d 196 (Fla. 4th DCA 2005) 9 Savage v. State, 589 So. 2d 1016 (Fla. 5th DCA 1991). 8 Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009). 10 State v. Farmer,

384 So. 2d 311(Fla. 5th DCA 1980) 1, 9 CASES Page

Sneed v. State, 749 So. 2d 545 (Fla. 4th DCA 2000) 7, 9 Venuti v. State, 437 So. 2d 238 (Fla. 5th DCA 1983) 7

FLORIDA CRIMINAL RULES OF PROCEDURE Fla. R. Crim. P. 3.800. Fla. R. Crim. P. 3.800(a). Fla. R. Crim. P. 3.800(c)

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Pursuant to rule 9.100, Casey Marie Anthony respectfully petitions the Court for a writ of prohibition vacating Judge Belvin Perrys Order on Defendants Emergency Motion to Quash, Vacate, And Set Aside Courts Order in this case and shows the Court as follows: I. BASIS FOR INVOKING JURISDICTION This Court has jurisdiction to issue a writ of prohibition under Article V Section 4(b)(3) of the Florida Constitution, and Rule 9.030(b)(3) of the Florida Rules of Appellate Procedure. Prohibition is the proper remedy to address the denial for a motion to quash, vacate, or set aside an order based on lack of jurisdiction and in violation of double jeopardy. State v. Farmer, 384 So. 2d 311 (Fla. 5th DCA 1980); Luther v. State, 661 So. 2d 906 (Fla. 2d DCA 1995). Prohibition must be granted in order to avoid an illegal sentence scheduled to begin August 26, 2011 and to prevent the continued unlawful exercise of jurisdiction by the lower court. II. STATEMENT OF THE FACTS The Honorable Stan Strickland was the original judge presiding over two cases involving the Defendant. In the first case, the Defendant pled to several counts and was sentenced by Judge Strickland to time served (412 days) and one year of probation. Judge Stricklands oral pronouncement was that probation should begin

after the Defendants release from incarceration. Afterwards, when the Court reduced his sentence to writing, same reflected that probation would commence immediately. The Defendant began her term of probation while in jail pending other charges, but not while serving a sentence. Ms. Anthony was subject to the terms of probation for one year and ultimately was terminated from probation, as evidenced by her records with the Florida Department of Corrections. Appendix (App.) A. Judge Strickland was then slated to act as the presiding judge in the subsequent proceedings. Before trial on the second case, the Defendant filed an Amended Motion To Disqualify Trial Judge, based on her reasonable fear that she would not receive a fair trial because of the conduct and apparent prejudice and bias of the judge, the Honorable Stan Strickland in Case Number 48-2008-0015606-O (See Defendant, Casey Marie Anthonys, Amended Motion to Disqualify Trial Judge). App. B. As a result of the aforementioned motion and attached evidence and memorandum of law, the Honorable Stan Strickland did, in fact, disqualify himself. The Honorable Stan Strickland memorialized his recusal in a standard Order of Recusal. Additionally, the Judge filed a non-standard three page statement on his recusal. App. C. Case Number 48-2008-0015606-O was subsequently reassigned to the Honorable Chief Judge Belvin Perry, Jr.

In the intervening time period between the between the filing of the Motion to Disqualify (App. A) on April 18, 2010 and the present the Judges subsequent public behavior has only stood to verify and reaffirm the fears of the Defendant as to the Judges bias and prejudice. In particular, The Honorable Stan Strickland has engaged in televised interviews with tabloid entertainment programs, such as The Nancy Grace Show, in which he stated on national television that that he was shocked at the result of the trial in which the defendant was acquitted of First Degree Murder, Aggravated Child Abuse, and Aggravated Manslaughter of a Child. App. D. This interview occurred after the verdict, but before sentencing. Further, the Judge engaged in an interview to discuss the Defendants trial, the jury, and resulting verdict with local NBC affiliate WESH. Full Interview: Former Casey Judge Talks Verdict, Jury available at http://www.wesh.com/caseyanthony-extended-coverage/28523567/video.html. In the interview, the Honorable Stan Strickland criticized the jurys acquittal of the Defendant by stating [t]o this day I am surprisedI just think, I try and think of why it occurred and Im still not sure. I think people dont understand the nature of circumstantial evidence[a]nd then Im not sure we spend enough time on reasonable doubt. Further, Judge Strickland stated I think the prosecution presented their case beautifully. I think if you followed the dots and connected them there wasnt a reasonable doubt. Emphasis added. Additionally, Judge Strickland granted an interview expressing

his shock with the Defendants acquittal with News Channel 13. See The Other Judge: Stan Strickland Shocked at Casey Anthonys Acquittal available at http://www.cfnews13.com/article/news/2011/july/276805/The-other-judge:-StanStrickland-shocked-at-Casey-Anthonys-acquittal. After the Defendant was released from her sentence on four misdemeanor charges imposed by the Honorable Belvin Perry for Case Number 48-20080015606-O, Judge Strickland, sua sponte, amended his original order to reflect that the Defendant serve her probation on her release in the present case. However, this action was taken 562 days after the Defendants probation began and without request from the State of Florida, with no notice to the Defendant or her counsel, and without regard for the fact that the Defendant had successfully completed the terms of her probation. (App. A). Further, this action was taken after the previously disqualified judge participated in multiple media interviews in which demonstrating unquestionable bias against the Defendant. Judge Strickland made statements related to his actions to the press then was unavailable for immediate legal issues on this matter, as he went on vacation. The Defendant was given 72 hours to report to supervised probation in Orange County. On August 2, 2011, Judge Strickland recused himself before the Defendant had an opportunity to file her Motion to Disqualify Previously Disqualified Judge. The same day, Defendant filed a Motion for an Emergency Hearing to Quash, Vacate, and Set Aside the

Order. (App. E). The Honorable Chief Judge Belvin Perry was subsequently assigned the case, a stay of Judge Stricklands amended order was entered, and a hearing was held August 5, 2011. (Transcripts from the hearing have been ordered and will be filed as an additional Appendix Document when available). At the hearing, Susan Finigan, a probation supervisor from the Florida Department of Corrections, testified that Ms. Anthony had completed her probation and would have faced violation of probation had she violated any of the terms of probation, such as contacting the victim or engaging in any physical attacks against another inmate or correctional officer. Further, Ms. Finigan stated that the issue of tolling Ms. Anthonys probation had been considered, but it was deemed that her probation could not be tolled, as Ms. Anthony was not serving a sentence but was awaiting trial on separate charges. (App. A). After extensive legal arguments on the validity of an order by a previously recused judge, a lack of jurisdiction, a lack of both procedural and substantive due process, a violation of double jeopardy, and a violation of the separation of powers, Judge Perry reserved ruling on the Defendants Emergency Motion. On August 12, 2011, Judge Belvin Perry denied the Defendants Motion. (App. F). The order requires the Defendant to begin a second term of probation for the same offense August 26, 2011.

III. THE NATURE OF THE RELIEF SOUGHT The nature of the relief sought by this petition is a writ of prohibition vacating the Order On Defendants Emergency Motion to Quash, Vacate, And Set Aside Courts Order based on a lack of jurisdiction by the court and as a violation of Double Jeopardy. Prohibition must be granted in order to avoid an illegal sentence scheduled to begin August 26, 2011 and to prevent the continued unlawful exercise of jurisdiction by the lower court. IV. ARGUMENT The facts in this matter are not in dispute. Judge Stan Strickland made an oral pronouncement that the Defendant begin her probation after her release.The written order did not reflect the requirement that Ms. Anthony begin her probation upon release. The Judge was then disqualified from further proceedings based on his demonstrated bias. (App. B, App. C). Ms. Anthony did, in fact, serve a one year term of probation while awaiting trial, but not while serving a sentence on any charge and the State of Florida was given formal notice of the commencement of her probation on February 2, 2010. (App. A). The Defendant had been sentenced to time served in the present case and she subsequently served one year of probation until terminated on January 25, 2011. (App. A). The disqualified Judge then engaged in multiple media interviews expressing his disapproval of the jurys

verdict. (App. D). On August 1, 2011, Judge Strickland, sua sponte, amended his original order to require that Ms. Anthony serve probation after her release from incarceration and then ordered Ms. Anthony to a second term of probation. (App. A). This amended order was subsequently upheld. (App. F). It is well settled law that the oral pronouncement of a sentence controls over the written document. Venuti v. State, 437 So. 2d 238 (Fla. 5th DCA 1983). Further, the court may correct a clerical error in situations in which a sentence has begun, but is not yet completed. DAlessandro v. Tippins, 124 So. 455, 456 (Fla. 1929). However, once a sentence has been fully served, even if it an illegal sentence, the court lacks jurisdiction and would violate double jeopardy by resentencing the defendant to an increased sentence. Sneed v. State, 749 So. 2d 545 (Fla. 4th DCA 2000). In the present case, the Defendant has actually served her entire sentence, as evidenced by her Department of Corrections records and letter of termination of supervision (App. A). Further, Ms. Anthony had been released from any sentence of incarceration and was in custody awaiting trial. Lack of Jurisdiction Although Ms. Anthony served her probation while in custody, she had been released from any term of incarceration in the present case and was awaiting trial, rather than serving a sentence for a second case. This fact was confirmed by Judge Perry during a subsequent hearing on the matter. (Transcripts from the hearing

have been ordered and will be filed as an additional Appendix Document when available). Because Ms. Anthony was not serving a prison term, and had not incur[red] new prison time as a result of a separate and distinct offense, her probation was not automatically tolled during the period she was awaiting trial. Jones v. State, 964 So. 2d 167, 170-71 (Fla. 5th DCA 2007); Savage v. State, 589 So. 2d 1016, 1018 (Fla. 5th DCA 1991). Moreover, the trial courts reliance on the notion that the Defendant was somehow serving a sentence in justifying the order in question flies in the face of the findings of both the jury in Case Number 482008-0015606-O and the Department of Corrections. (See case notes finding Offender has remained in OCJ pending trial on murder charges her entire period of supervision. Case could not be tolled as additional charges have not been disposed.) (App. A). (Emphasis added). Further, there is no procedural basis for allowing a court to amend an order after a sentence has been completed six months prior which would support jurisdiction. Specifically, Fla. R. Crim. P. 3.800 sets the perimeters for amending an order. Fla. R. Crim. P. 3.800(a), which would allow a correction by the court at any time, is inapplicable because the correction in the present case does not involve an illegal sentence, an incorrect calculation on a score sheet, or a sentence which does not grant proper credit for time served, as required under the rule. However, even if any of the above conditions had been at issue, the court would

still have lacked jurisdiction, as the sentence had been fully served. Sneed, 749 So. 2d 545. Instead, Fla. R. Crim. P. 3.800(c) controls. Under this rule, the trial court loses jurisdiction 60 days after the imposition of a legal sentence. Reile v. State, 901 So. 2d 196 (Fla. 4th DCA 2005). This rule divests the trial court of jurisdiction by any calculation of time involved in this particular case. Additionally, this rule presupposes that a motion has been filed challenging a sentence. Here, the amended order was a sua sponte act by the lower court which can best be characterized as a boot-strap assumption of jurisdiction. State v. Farmer, 384 So. 2d 311 (Fla. 5th DCA 1980). Clearly, if a trial court lacks jurisdiction after an illegal sentence has been served, a legal sentence resulting from a clerical error cannot produce a situation in which the court has retained jurisdiction. The State of Florida and the trial court received notice from the Florida Department of Corrections that the Defendant Corrections that the Defendant began her term of probation while awaiting trial. Any corrections to the written order should and could have been addressed during the Defendants probationary period. Violation of Double Jeopardy Three basic protections emanate from the Double Jeopardy Clauses of the Federal and the Florida Constitutions: 1) protection against a subsequent prosecution for the same offense; 2) protection against a subsequent prosecution

for the same offense after conviction; and 3) protection against multiple punishments for the same offense. Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004). In the present case, Ms. Anthony has formally served her probationary period. A second period of probation would violate her protections against multiple punishments for the same offense. U.S. Const., amends. V & XIV; Fla. Const., art. I, 9. While the probationary period actually served by Ms. Anthony does not reflect the oral pronouncement, a requirement that she serve a second sentence would run afoul of the protections against double jeopardy. Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009) (finding that a trial court may not rescind jail credit that was properly awarded, even if the initial award was improper, because such actions violates Double Jeopardy). In addressing the issue of Double Jeopardy, the Order on Defendants Emergency Motion to Quash, Vacate, and Set Aside Courts Order states [t]his case does not involve additional punishment proscribed by the double jeopardy clause nor does it involve a punitive effect by requiring the Defendant to serve probation twice. (App. F). However, this finding ignores the fact that the Defendant did, in fact, actually serve her term of probation and was subject to the threat of violation of probation if she, for instances, wrote a letter of apology to the victim, had a physical altercation with a correctional officer or another inmate, or

was in the possession of contraband. The Department of Corrections determined that the Defendant was on probation and subject to an intake interview, monthly verifications, restitution to the victim, a waiver of probation fees based on her indigent status and, ultimately, termination on completion. (App. A). The Department of Corrections supervised Ms. Anthony and deemed that her probation could not be tolled. (App. A). The courts finding that the Department of Corrections determination that Ms. Anthony was unable to meet the goals and requirements of the probationary sentence in serving probation while awaiting trial in jail is in direct conflict with the express findings of the Department of Corrections. (App. A). Further, the court asserts that the constitutional prohibition against double jeopardy should not be used to turn sentencing into a game in which the wrong move by the judge means immunity for the prisoner. (App. F) (Quoting Bozza v. United States, 330 U.S. 160, 166-67 (1947). The present case is not one in which the Defendant received immunity. Instead, the Defendant was subject to the supervision of the Department of Corrections and the anxiety associated with a probationary period. While the court expresses some of the philosophical reasoning behind probation, any suggestion that a period of probation cannot be served by one in jail, but serving no sentence (even though the Department of Corrections has proper procedures in place for just such an event) is

an argument to be made to the legislature and not a justification to impose a second sentence in violation of Double Jeopardy. Setting aside the issue that the original order was entered by a previously disqualified judge who participated in publicly criticizing the jury and their verdict subsequent to his disqualification based on prejudice, the trial court engages in three pages of moralizing about the responsibility of the defense counsel in candor to the tribunal, as if somehow this entire mess was the responsibility of the defense, rather than a vindictive act by a glaringly biased judge. (App. F). For the record, this was not a case in which the defense was in possession of information that neither the court, nor the State of Florida lacked. Instead, defense counsel only learned of the probation informally, whereas the State of Florida received formal notice of the commencement of probation. (App. F). Further, the former disqualified judge actually signed the original order which established probation while the Defendant was awaiting trial on a different set of charges. That the court feels it necessary to chastise the defense (and the defense aloneby name) for not bringing this matter to the courts attention is, at best, misplaced.

___________/S/________________ Respectfully Submitted, One of the Attorneys for the Defendant LISABETH FRYER Florida Bar No.: 89035

390 North Orange Avenue, Suite 2100 Orlando, Florida 32801 Telephone: 407-426-2333 Facsimile: 407-422-6858

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this petition was furnished to Frank George, Esq. at the Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida, 32801, Office of the Attorney General, 44 Seabreeze Boulevard, Suite 50, Daytona Beach, Florida 32118, The Honorable Chief Judge Belvin Perry, Orange County Courthouse, 425 North Orange Avenue, Orlando, Florida 32801, Circuit Court, Ninth Judicial Circuit this 17th day of August, 2011.

_______/S /__________ Lisabeth Fryer

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this petition complies with the font requirements of Rule 9.100(l) of the Florida Rules of Appellate Procedure. ____________/S/___________ Lisabeth Fryer

INDEX TO THE APPENDIX DOCUMENT Appendix

PROBATION RECORDS.. A DEFENDANT, CASEY MARIE ANTHONYS, AMENDD MOTION TO DISQUALIFY TRIAL JUDGE. B ORDER ON DEFENDANTS MOTION TO DISQUALIFY TRIAL JUDGEC NANCY GRACE TRANSCRIPTS; AIRED JULY 6, 2011...D EMERGENCY MOTION FOR HEARING TO QUASH, VACATE, & SET ASIDE COURTS ORDER..F