casey anthony petition for writ of prohibitation aug 2011 by cugie

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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…………………………………………            ii-iii

BASIS FOR INVOKING JURISDICTION………………………      1

STATEMENT OF THE FACTS………………………………….          1

THE NATURE OF THE RELIEF SOUGHT……………………..     6

ARGUMENT……………………………………………………...               6

   LACK OF JURISDICTION………………….…………………..      7

   VIOLATION OF DOUBLE JEOPARDY…………………….      9

CERTIFICATE OF SERVICE……………………………………         13

CERTIFICATE OF COMPLIANCE…………………………… ….       13
                     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

D’Alessandro 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                 Page

Fla. R. Crim. P. 3.800……………………………………………….           8

Fla. R. Crim. P. 3.800(a)…………………………………………….         8

Fla. R. Crim. P. 3.800(c)……………………………………………          9
      Pursuant to rule 9.100, Casey Marie Anthony respectfully petitions the Court

for a writ of prohibition vacating Judge Belvin Perry’s Order on Defendant’s

Emergency Motion to Quash, Vacate, And Set Aside Court’s 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 Strickland’s oral pronouncement was that probation should begin
after the Defendant’s 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 Anthony’s, 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 Judge’s subsequent

public behavior has only stood to verify and reaffirm the fears of the Defendant as

to the Judge’s 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 Defendant’s 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/casey-

anthony-extended-coverage/28523567/video.html. In the interview, the Honorable

Stan Strickland criticized the jury’s acquittal of the Defendant by stating “[t]o this

day I am surprised…I just think, I try and think of why it occurred and I’m still not

sure. I think people don’t understand the nature of circumstantial evidence…[a]nd

then I’m 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 wasn’t a reasonable doubt.”

Emphasis added. Additionally, Judge Strickland granted an interview expressing
his “shock” with the Defendant’s acquittal with News Channel 13. See “The Other

Judge: Stan Strickland Shocked at Casey Anthony’s Acquittal” available at

http://www.cfnews13.com/article/news/2011/july/276805/The-other-judge:-Stan-

Strickland-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 48-2008-

0015606-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 Defendant’s 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 Strickland’s 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. Anthony’s 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 Defendant’s Emergency Motion. On August 12,

2011, Judge Belvin Perry denied the Defendant’s 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 Defendant’s Emergency Motion to Quash, Vacate, And Set

Aside Court’s 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 jury’s
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. D’Alessandro 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 court’s 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 48-

2008-0015606-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 Defendant’s 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 Defendant’s

Emergency Motion to Quash, Vacate, and Set Aside Court’s 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 court’s 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 alone—by name) for not

bringing this matter to the court’s 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 ANTHONY’S,
AMENDD MOTION TO DISQUALIFY TRIAL JUDGE……. B

ORDER ON DEFENDANT’S MOTION TO DISQUALIFY
TRIAL JUDGE…………………………………………………C

NANCY GRACE TRANSCRIPTS; AIRED JULY 6, 2011...…D

EMERGENCY MOTION FOR HEARING TO QUASH,
VACATE, & SET ASIDE COURT’S ORDER………………..F

								
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