5TATE DF FLDRIDA

\EHAEL_DM rieriAppe.Iiad

. D.LA. D61. NO.: TD)3- Db

SilPREM�254EDURT EASE ND.'.STATE OF FLORIDA ,

esporden+/Appealee.

TURI5DETIONAL SRIEFUNDF.R Fi HRIDA RulES DF

APPELLATE PROLEDURE 9.210:

9.12n; 9.nTn: 9.n10: ART \1 WL3

. . DF TH FLDRT.DA LONSTITUTION .. .. .

LEGAL MA LPROVIDED TO WAK

T Ncha.e) o. Kell

D4.# lÆoato/RÓR MAtLING

lloblie}aJem Dr

crasfedv&, FL¾ 7

TAERE BF UlNTENT5

Tabh 4 CMa15

S½merk A the. Cne.. ed Fad R

.,. .. .... . ... .. . s -. . - ,. . ++· -·, . -. , .. .. - - , -- ,. - - - - · - - - . . - - - - - - - - - -- �042" · "" " " " "

Swnm«ry & k bryurm) 4

Ar >e -- 1 e one

T ..ar b 5 T«.r 7 k sswd/2

a ry b etwdvh udi-dy whue

e been wr>ýy pre.dedwd,4

ad redem,si ke a. cnäe. smem. eJw

c.nøpVÜÁt M ffheÅtAl Í$c«thy b�254.,

eJoeÀ t4m elf c]ä Ad-J %mkene 3

.....,... .. ...,. ........ ,s_. n.,..... .. . ............=_ ..... . �042 - - - --- >, - . -s --"r - -"r - -+ , -- - + -

..,-. ., . ... ...,... . -, .-- +- - +-- - ---- - ----- ---.--- - .n.�042- . ... - - -----+- "·- "+'+· - "·'''' -·--""""- """·'- '"-'""""''" ' """'"'" '"''"" " """" '"""*-- ""

Th csar % T4n tre e/ Áuhee L .

ezded, csvà}edja r i e al whaed

re the. Tná/ Ourf 6e n a

e E leme.n in pr<u 1 n Vè

o p Þ¼�254.Îrue h 8

TAPLE OF EITATION

De.cwd,h V sfJe_, 13? So. ad 729 (Ph.¾ti ct4 per>6) / 7

î)osjherYf v. #dq lp ¼o. 3Å 177 CFk�042dh CtA ?«JÙ é

Þå:L v. 4kh,6île so.¼ tr71 (fir,7ed L%A 17tl

99ià v. 4fde, 179 . $c.2d 7t's U1«.7s4) 7,to

r>VrerX.�254_V· 4}%Í'�254.,11'I ¥ 7d 15? (fl *'l -

ILGv/) V, Sc·rtÇ .5''ll: 4o.?d toH'4(fk.19%D t-

tenÅs1.a..V, 4hdey 142 v.?d lopS Cfin.4 lxA'Jary) 6

re½ley 9 GWe, tri was ic39 (Jh. hk p a ®C> (1

6fern. v. î?> Sc.3d 174 CFie, 2-7) e, //

NÕe- V. 4'½ 5e·'ad FNs (fle .19 23 9

cèk¼} w'ahhgerz %& K >. ¡M Cid70 S¯

. I

5 TATFl%NT M THE EA5f AND FADS

Kelly fiiei hè. oriyina) kule 3.%o Mohors on May 2,aosal,

rabing Five gro×nh he relid, with P7ulhpie. Sidrclas ms wühCa.ch ol %><. F|veyrounds �042The, fkhèn war å enåÅ_ on Phy !b, Jo/2

Afhd . an _ Eddåry hescùy . K e Hy RøeJy _ appede} }he

dená), andJhe. Appes ) was Percurùm AW|czned udim<F oprair .

On JVovemben al,aoja, Kelly Piled a Mot|on b Herc and Rule

Mohèn Ae Le«« h Supplemed evdAr»end ibe orèùul l¼k YWo

ÊÎp/àn, and_ a. Ses.ond Amended _ Supplejoyejr/eÅ kule 3�042Wo/%h n

wdh ihe.. helà§pad Record . pnw¶ thdhk .or¼ù>d Aulen .wo

17)obbn hJ noLbeen ruled urn, on4/ oF the prerik oL e(rrowd, C laù>>, and_ Sakkb «J/eyed _wë),ús H,e or¼ú>d t¥h .

NL oL theve.. F6hha were eihee dhp»hed a s /M,ooder»ed

on -Decen>ber 5, 2ona. Kelly Cle<l a Emely Afohk a f Apped,foibwed

r Jbrid on.&c Merik, ¾¡s Apput w Pee c eûm M(icmen(as

Vkndale ]ssued -on ;Tune 1,»ts . _

rc _«Cc �040wo-(Y)aå1 far.h ûr . b%5_C«$c,}}d_a.//em thà cos<r

o _ uerche ik juràüd>6n over ¼© c e, H×y ane. adalbew :

Firsk, _Kaly -hJuturily 1nsentA the. aHegd crëe of Commm

Lw c)>eJ Flook s+d«k myt½>en. Kely was am employee o

Kaly Pw,hy ,· tjob the- owne.c. Epass L.I&as, I-2 . And .all of the skweir>esse> sÄ6)ùhedJhd KeJy contruded wëk H>ern,colleded riøme

and perP-cr>>ed wock . Ab _ h<sonbhy b s+de. Prúabam ó%,èer JU zel e

wa<- wi>d i<elty. wu adh-riud to peda.qwl..u .snus &c$<.<.-nL ceiwuk F<d, F kei<k 5+dde 817M hm.s no _ Elu»<-ds û1 N ebedy a fJhe., Stdide, so Even ik sw.,4päted cur+ of App×/

9-ws&h _v. skk,um:>htKFk.2,aoram? h4 l» reJy om odher Ehr,3

dJdes cmicer-1ò>µ the Eierish of ched,hy, H ey re1d upo

fk. std, &oI %D. As . &Md .l>y ¼<. Sex--A CWcid FI-ca sid«te

i17.os .146 ccpealed .in i157. In the presed cas.e.,%v ckepiy _

dmná bd was Üsid á . købsber /fv:2m, ¿es tid wh

e«ch 4e.tuy ekmed vi ½r_ alkyd %me,, Tk Fad å, he

Cou)A n hme- pmWy paparyl r paper Men× k H,,

unMind ofrieme_. Tkeske., KeJ½ Prods> has bw> MíakÁ

krek n tb Jon uàb Floc|k Lw, ad & rem/F bhew Funkr><.n/d /Vd¼rr¼ge. F5ushù causùy helly b he

ik3d dehèd.7 Cua+ h«s Hz Full »nödé¼ neas»<y h. cmred

e.rror nd _re<}a þ&e be «R y ad to rã

aL nm¼L oakes A & ¼l ært, espüly wkre +bAec

Abhci«J codce>H&wöh spuu skus-ad myor 7.Finally,because keJy em .sù>pfy u emphpc c>L Kei

ad &Me wrun W e- SMe pé.rmd Mere. charyes om

weery perw. Thrd-eg undec Ses< Vdu) ocum e

keJy kn benc yeds«dd, Fr W ¿c - eord sentmed facnirx s e ej k N comm ed.

..-,,- ~. ..= .-- . .., , _ _, ... .s .-.. n . ,.._.... ., ..... n.. . ,,-._ .. - .. . . . . . ., ,

- .----+-- .---. v.~.+ -..+.-- +...,,,, n. ......- , n- ...,...r . . n . n-,. ,.. ... nn. n. .... ..

L

SUMMARN DF THE ARLU/4ENT

. . __ . PBINT - DNE . . . . .

1:s co«cts T«odu¼r> uk-sh �040�042se. znsw>t azd cway akk uder

Ach te v. su¼ns, ysxp erb�523mo se vn,hd SWes cunhkJië. An

ah%e. 4 dåcrehë,, K teuåu.dk by ¼iv cært, wkce H,A. ake..,e c.moe

od-hud-Wh /Mvded-1^rijnshir, ad the debékk has dear

howrj (kce-rd evnlerif jul jfaf he à lkhan/pXaaac.ed,omL

He trui courk. bed- eálern ¼ Ad sør cm4>y

vujahbr> b fr>kh64, M .¼r cour+ drey lydø<d ,k Spea,a

a.. Tnki c#urh dderm,he±, th&x cl«ùn frï . w An/c 3.& m%u

Guk }o øæef ac jrwy 4 dnLkknd,The.. d«ûn is lydp úaud>L, nLral ¾e. Trål . crurf abw,er ik däcre3%r> by r?Æ allmùy «rj wnch

ofu2L to the irmA>LM ci-'rnGL Therders a. Tnd court and

m«lle . q.. f%«l tex)ù3 when, thc clairr7 oHxast¼e täÊëár1

PRINT - N/O

.Wcourts ]«risdùtån exhde to ¼�042x-parbù. Wiw hue bears

or»ëted o9 crime..w ¼+ m-brayer e»W,or, where. water ary setof c

w>û«rs eu é..cruL¼r> . would cue. a. Pac Praxn . vM£v1 wi e

th-_ If Arnedn×rib of hc 14ry;½Ê SMes corrshhch|vi, ar>L A rhèk /

9 L M Florúk GæKtubár> , TWs Type & t?«ë Promm v>bid,her 6

occard in.¼e_ preserpt c:mu,wkre. 14ellp vûl«hän A fM«hör>

anÅd _ uperi Elerraerst5 Oh : (..D wcec. nol- i h 1he.. dyryb3 Erhvertrah rj

L© are- /JoF wëhh Fion6. $hhöc VI1.MD hue- riet_oblad weM, >

F/mda. stóde. cìted by H>e.. se..cor.d ridník Ge.127.01) sirxe its?,be

brV ¼trtuj-c wn repeded a.ed .,b &lorspr ynd|wrj and ®1he.1~r

car¥ G<dle) Av posse½ $>«bjeh FAt)Ýer Turédèhár>, 11xråre, ökp//

ur>våbyctf ¼ thA .wic6cpd cnine, mal vi6My k, Prdán.

a k Mdt a->d ved uder lhøé ckc >sh-x .

wub V. d 751 So. 2d 79% G 19' -115 ( th. 2rd oc+ 9ect

L

T55DE DNF_

T¼¿ cauct he.<, ;rar&dú+ica to i>>ue all u¥rls.

ne.eenary b exe<.«k ik a-Ne.-Sy wi,e.rr_lkJfy'k

e.æn wms,nypewsecukd, conv#iiedy.,14se»k-ed far-

C rime» sorm»v;y_ ejs e. cp,em,hed, A,4 H,e Pîw4mt

e.r /nybc ræ½d wheæ. 14alfv clade+ Adued Isete,se_

1Ws court has ·Turisdkhrn aucezl,5y k Achèle V seJzév; 3(6H7~')a-.d

3 XT) of the. FJoridr c»ns h�040dén.In the prus<n).cm.e, the. Faff),

O eûk Court of Apped was, pres.e.m/d w/M ½ord £v,de.d Prwf

Trid C.ac{ -when rWihy on ½c onjpú>d Ruk 3D/YM --did

røt addrev, each and e«cf clù wëlùi the-r¾iûn, ned H× Trál&«d

æ ruk n the _ nierik of eacJ1 clank there.

The Trial CouîL r~ko rukd Kelly did Ad frke er'ptvn

n #>l _ S�570ràNivab waÅ«r

The.. Trial c»ur abusd e dkat n b nd aikwúr3 Kdy one

oppritun,y+» amed Jhe. e 2/y a d /V ,Ahd cla n

h ha e aL Du.seKon in dir d n0làL w,% ¼¿ cmrb

�254ni O A e 4 i C *- è

5tricJdv/d _ ¼ / héxjkn, . ute u on (j¶t9 . . _. .

5

L

ho ld¾y in Ner×\ H the. bia L Cnar,Furouheve albwed Ke)/

the oppr,tunity �040#amend the. }eyalf and �570wa ihsuff,kùd du;e

Ke))¥ uuld have. hun euWe. fa arne.nd ,;n god fwM ibe e>H,erw-Le

insÂèi<-Þ Clearns,, k> thi<, czart i+ well a.ware.,a 12«le 3.go

psi- br_ adIressed on e J, G·rowd, c le,'s, ad Sded«de, ade <h

r¼kÁ n H>eac j7)er6 hebre. +he. crder is Ç>;æl for Appee/

purpo j h suppbekd ±n a)/ Four ..orners. of the_law ..

Jhen Ihe.. Trú) C.ourt G h Io Poit-- H,¿ 3-×3 shvdhy . R,de_ e4

Law, .tk. Tr>J cmd nd only abuses. À dùred-ho, bd mere.

ùnødardif, they o#æ. an abuse. e¢ ¼e Pr oF Lnw .

EspeaWJy in k¼ c se. w>«e- NdR å AcJs/p r-nne-/- ef Ne

iVem hw vábrhon ,ond re_s«ibhy v&lahk o& Pr»bd¼ ..

e. skJe hol- e.vdenz proves. Xelf uuld ød have bee-r Me

pe.epetrab o tb oJieyed crùne of Common Lw> Ched .

$pera. y, S¼r}-e,, 'l a so,34 ¶AH (fla, Acc7),pagem y se.,y,5% sc.24 jostp(fiet 199

H.nley v.sMc, to'( se. sd soucriald ixA aoin J Lawrunex- v. skle.,117 s.2

l'E? Ú'l« d CtA Ace?) i Dåt.. vA fafe., b% Go, M 619 ( F/r . 3d Pe4 /7%) } ÅrÁz

9 �570AÂ loo5Ú9«'t'^]24 kWF.)| P4jh«ri·f 4sk /c sc3d /?AÚ¼54t4

se-.^ppendi><· (S) vûl-kn hu-r:ry Transcriph Ge.Pa+2.<linersTedärr

L

STANDARD OF REVIE\d

Whether the e+derx-e_ is s«G4 nf to suppor a

fe th<. r_rime.. cJ>ar'ged ue n o I w re 4 he

der)ovo Star>hruf.

Huy3Cos v. Sh�040w.,889 S�042ad7'13 (Fi<. 2w

7 ..

unr+ ha<- TurML) n where.Kelly ho been

penee>Jed, cmv> fe PrûJ kkdøds.x/wxd

whea He pú)c,urfund Mmyer ex6hey skhare

menh to pra & väld j vûkh a of l¼//p

e fra en r k

o . , -, - . . , . . . . . . . . ..

e e atz L E cor -y o Ior k Cr

c >b euk af ¼< rux-essary Runesh of he o e

Tm he pened cue, KeRy as ch-ryal wHh C-mm L ch

fk¼h mM . %&er Kdf Ch«r y hårmdre

817.'M Corstab adi« Ekraënh &c He n//egal offe ne ,

Shk V. (truy, 'iW soad SIMfla, p FLA.R .ppp.f 3.No

9

L

Therdere, Kelly ha n gueshk 4 gæd pubbi ,hpr .e

uh?hmt Elem-b !<WeÅ à eäher the. c}>ary E4c e e o

Flerék Stahk ft?K &w dül Hz. frù/ co,<,+ acy ëe. s e

aber Tarëààbör> Jer +)z c)xryq , proux.nD :>, và/d n o

h n, c.orm Àv1, ajd sæknez oG 25 yems i sbJre Pa

w h 4 viW-Ay Me)/ s. rìjke to Pue}nz.ers..

el herem H c_ourt hw 3kcëbahin k r p r h

/ rdet _Enjud uder A rhèk V, s,ezhw 3 c1Xz) ard XÞ

ad a) �042Arkde_ l ed n i et }+x Fþr$Whhdesw ..

Jy, He_ Ek#xwh Hd were relied cpu by Me Te

C M/e/ Ñ�254pee i /F.C7 ThereÅory., fÅe¼ Be»

r> d circstésbrx_e

Datwè,k V. Shk., ¶Y/ so.24 181 ( Fir 2rid ptA AcetD

5'T A NDARD OF REVIE

Whuh r ¼ eviÀuu._. . i su14ëien pd a

ConVidibri Îor ih Cnäe_ dørgeÅ i e u w

60

(bVèwed b 7E e/AJ S 2 rt ,

huyins v. St«ke, 889 so.ad 7't3 ( fk.2ao

10

EllNT W51BN

Kel\y rea3he.s +ho urake normal circumskrae.es Mä court a«.eph

3«risW<hion Ar only a l»vihd number oV rerwq 64 xeJy Humblejr Prap ½

c.ourt will ençarxl ik scope. oV rev)ë«-, kedly Kled a ¼ey Ruic 5Mo

øonn,+h+ was summmyr desùd. Tn Mh¼ h#m ver, aw- #4 ru/d en

H>e_rsterik Á ê,rdi cJaabr r¼6ed , mal tsønt irspelwff, one, A He F.

3 con,×k Aied k r>1ed ¼« pe,mp of sinäkl«rd,7krel-re tkch

we«, leyky ih+uff>ùèrj} ac edøy Iv ik sto,bed <4 by Mé cmed

irn Spen, Ard bec+ oi arv +herr+J auri-owid ød rzJ, H

/21enh of }be. c)«à, ard Mey abi&ed }-heir div-rdë« byrk'ba/6n

Abif' /r arnenÁ lb>e ørrhsv7, .'Ihò . >½ . « lAblahä . of Pue, Pazw>L ,

A Iso , The �042Trå) caark reb4 ugjaa . EleJ>2rp/> oC ¿L cfúrja_ }/:n]' r/e

impr . eråf& , h cor>aL}- j¼)/q, «nd t/åjæh bib Fr#bthán , Th e Ade

best- e.4derxe froveÅ l¼// Adualf z'ndcwrb of H* a)(eged

cn'er>c ard Váidú>m, tho, Jed- rajushie kw caured cvd

Ibflf asks, Hjé cour é for ficpr reJù# Tohk prwks.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document(s)

has been placed in the hands of institutional official to be furnished and forwarded

by prepaid First Class U.S. Mail delivery on this day of ^Ê ,- ,

20Ütothe following: Cle.c¥ A Fkrk 5<yrwe cært, ryreme ourt

(ka'th sa> saJh ou& 5ind,7'«J)Jmu.«, fL 72·599

S//Zfy/rref V.

Wakulla Corr. Ins Annex110 Melaleuca DriveCrawfordville, Florida 32327

1% TM. SUPREME LDURTST AT E DF FLDRT.DA

MEHALL O. KELW .

PeH¼ner / appeJksi ,

D.C.A. EASE NO.: 5DB- DbE

_v4.. 5.E. CASE ND.:

STATE DE FLORIDA ,RespondenWAppeike .

APPENDIA TO

TuR15DIT.TT.RNAL f5RIEF

Màba.cl O. Kell

D.c--$F (4.systa

a.kulla cart.%rx): Anax

I I0 /}1ek/e.u.cn TX'.

Cra.wfordv,)h., FL 323v

APPENDIX

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUITIN AND FOR CITRUS COUNTY, FLORIDA N

STATE OF FLORIDA NCASE NOS.: 2003-CF-1170

vs. 2006-CF-7432006-CF-1029

MICHAEL O. KELLY, 2007-CF-835Defendant. 2009-CF-1910

ORDER ON MOTION FOR POST-CONVICTION RELIEF 3.850 [sic]

THIS COURT having considered Defendant's pro se Motion for Post-Conviction Relief

3.850 [sic}, having reviewed the records of these cases and all documents pertinent to Defendant's

motion, and being otherwise fully advised in the premises finds as follows:

1. On February 24, 2004, Defendant entered a no contest plea in case number 2003-

CF-1107 to one count of Unlawful Sexual Activity with a Minor. Defendant was sentenced to 48

months ofSex Offender Probation. Defendant was required to complete 250 hours ofcommunity

service, submit to DNA testing, have no contact with the victim, and subjected to the Jimmy Ryce

Act. He was assessed financial requirements of$500.00 fines, $342.85 Costs, $240.00 Public

Defender fee and $50.00 per day cost of incarceration. On December 13, 2007, Defendant

admitted to violation ofprobation and was sentenced to 15 years in the Department ofCorrections

(DOC) suspended upon successful completion of 15 years Sex Offender Probation. This sentence

was to run consecutive with case numbers 2006-CF-1029, 2007-CF-835, and 2006-CF-743. He

was subjected to the Jimmy Ryce Act and the Jessica Lunsford Act. Defendant's previous

probation was revoked. On December 14, 2009, Defendant was found guilty on violation of

probation and was sentenced to 15 years in DOC. Defendant was subjected to DNA testing and

the Jimmy Ryce Act. He was also assessed financial obligations of$100.00 COPR, $100.00

COD and $50.00 per day cost of incarceration in addition to $120.00 outstanding Public Defender

1

Application fee. Defendant's previous probation was revoked. Defendant's judgment and

sentence was per curiam affirmed by the Fifth District Court ofAppeal in a Mandate issues

November 24, 2010.

2. On December 13, 2007, Defendant entered a no contest plea in case number

2006-CF-743 to one count of Grand Theft. Defendant was sentenced to 5 years in DOC

suspended upon successful completion of 5 years ofprobation. This sentence was to run

consecutive with case numbers 2003-CF-1170 however his probation was to run concurrent to 15

years ofSex Offender Probation. Defendant was assessed $373.00 costs and $40.00 outstanding

Public Defender application fee. Restitution in the amount of$785.00 was also ordered by the

Court. On December 14, 2009, Defendant was found guilty on violation ofprobation and was

sentenced to 5 years in DOC to run consecutive to case numbers 2003-CF-1170. Defendant was

subjected to DNA testing. He was also assessed financial obligations of$100.00 COPR, $100.00

COD and $50.00 per day cost of incarceration in addition to $80.00 outstanding Public Defender

Application fee. Defendant's previous probation was revoked. Defendant's judgment and

sentence was per curiam affirmed by the Fifth District Court ofAppeal in a Mandate issues

November 24, 2010.

3. On December 13, 2007, Defendant entered a no contest plea in case number

2006-CF-1029 to one count ofFailure to Register as a Sexual Offender. Defendant .was

sentenced to 5 years in DOC suspended upon successful cornpletion of 15 years Sex Offender

Probation. This sentence was to mn concurrent with case numbers 2003-CF-1170, 2007-CF-835,

and 2006-CF-743. He was subjected to the Jimmy Ryce Act and the Jessica Lunsford Act.

Defendant was assessed $373.00 costs and $40.00 outstanding Public Defender application fee.

On December 14, 2009, Defendant was found guilty on violation ofprobation and was sentenced

2

to 5 years in DOC to run concurrent to case numbers 2003-CF-1170, 2007-CF-835, and 2006-CF-

743. Defendant was subjected to DNA testing and the Jimmy Ryce Act. He was also assessed

financial obligations of$100.00 COPR, $100.00 COD and $50.00 per day cost of incarceration in

addition to $80.00 outstanding Public Defender Application fee. Defendant's previous probation

was revoked. Defendant's judgment and sentence was per curiam affirmed by the Fifth Distiict

Court ofAppeal in a Mandate issues November 24, 2010.

4. On December 13, 2007, Defendant entered a no contest plea in case number

2007-CF-835 to count I, Failure to Register as a Sex Offender, count II, Grand Theft, and count

III, Alter/l'amper with Electronic Monitoring Device. Defendant was sentenced to 5 years in

DOC suspended upon successful completion of 15 years of Sex Offender Probation as to each

count to run consecutive to each count. Moreover, this sentence was to run consecutive with case

numbers 2006-CF-743, and 2006-CF-1029. He was subjected to the Jimmy Ryce Act and the

Jessica Lunsford Act. Defendant was assessed $373.00 costs and $40.00 outstanding Public

Defender application fee. On December 14, 2009, Defendant was found guilty on violation of

probation and was sentenced to 5 years in DOC to run consecutive to case numbers 2006-CF-743.

Defendant was subjected to DNA testing. He was also assessed financial obligations of$100.00

COPR, $100.00 COD and $50.00 per day cost of incarceration in addition to $80.00 outstanding

Public Defender Application fee. Defendant's previous probation was revoked. Defendant's

judgment and sentence was per curiam affirmed by the Fifth District Court ofAppeal in a

Mandate issues November 24, 2010.

5. On December 14, 2009, Defendant entered a no contest plea in case number

2009-CF-1010 to one count ofCommon Law Cheat. Defendant was sentenced to 5 years in the

Department ofCorrections to run concurrent with the sentences in 2003-CF-1170, 2006-CF-0743,

3

2006-CF-1029 and 2007-CF-0835. He as assessed financial obligations of$398.00 costs,

$100.00 COPR, $100.00 COD, $200.00 Public Defender fee, $50.00 outstanding Public Defender

application fee and $50.00 per day cost of incarceration. Defendant's judgment and sentence was

per curiam affirmed by the Fifth District Court ofAppeal in a Mandate issues November 24,

2010.

6. On January 4, 2010, Defendant filed a Petition for Mitigation ofSentence in all of

the above mentioned cases. After a hearing this Court denied his motion on January 5, 2010. On

January 3, 2011, Defendant filed a Motion to Reduce or Modify Sentence which the Court denied

on January 12, 2011. On March 3, 2011, Defendant filed a Petition for Writ ofHabeas Corpus .

which this Court denied on March 9, 2011. On October 31, 2011 and December 12, 2011,

Defendant motioned the Court to allow him to file a Motion for Post-Conviction that exceeds the

50 page limit. The Court denied both motions.

7. Defendant's motion is predicated on the following grounds:

al Ground One - that the charging document is defective for failing to chargehim with a crime;

b. Ground Two - that trial counsel was ineffective for failing to move todismiss the Infonnation;

c. Ground Three - that trial counsel was ineffective for failing to preserveDefendant's right to appeal the violation ofprobation;

d. Ground Four - that Defendant cannot be prosecuted for a common lawcrime; and

e. Ground Five - that trial counsel was ineffective for not disclosing theconsequences ofDefendant's plea.

In relief, Defendant requests this Court to vacate his sentences and reinstate his probation.

8. Regarding post-conviction relief, the Supreme Court of Florida has repeatedly

held that under Rule 3.850, a movant is entitled to an evidentiary hearing unless the motion, files,

and records conclusively show that the movant is not entitled to relief. Anderson v. State, 627

So.2d 1170, 1171 (Fla. 1993)(citing Fla. R. Crim. P. 3.850(d)). Further, a court may properly

4

deny claims without an evidentiary hearing if they were either raised or could have been raised

on direct appeal. Maharaj v. State, 684 So.2d 726, 728 (Fla. 1996). A convicted defendant

making.a claim of ineffective assistance must identify the acts or omissions ofcounsel that are

alleged not to have been the result ofreasonable professional judgment. Downs v. State, 453

So.2d 1102, 1108 (Fla. 1984). Mere conclusory allegations are insufficient to meet this burden.

Sée Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989).

9. The Supreme Court ofFlorida has reiterated the standard to be applied to claims

of ineffective assistance of counsel:

A claim of ineffective assistance of counsel, to be considered meritorious, mustinclude two general components. First, the claimant must identify particular actsor omissions of the lawyer that are shown to be outside the broad range ofreasonably competent performance under prevailing professional standards.Second, the clear, substantial deficiency shown must further be demonstrated tohave so affected the fairness and reliability of the proceeding that confidence inthe outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986) (citing Strickland v. Washington, 466

U.S. 668 (1984); Downs v. State, 453 So.2d 1102, 1108-09 (Fla. 1984)).

10. In reviewing counsel's conduct, "[a] fair assessment of an attorney's performance

requires that every effort be made to eliminate the distorting effects ofhindsight to reconstruct

the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's

perspective at the time." Francis v. State, 529 So.2d 670, 672 n. 4 (Fla. 1988) (quoting

Strickland, 466 U.S. at 689). "[S]trategic choices made after a thorough investigation of the law

and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at

690. Additionally, in Downs v. State, 453 So.2d 1102, 1108 (Fla. 1984), the Court explained

"that counsel is strongly presumed to have rendered adequate assistance and to have made all

significant decisions in the exercise of reasonable professional judgment." Furthermore, "[a]

5

defendant is not entitled to perfect error-free counsel, only to reasonably effective counsel."

Waterhouse v. State, 522 So.2d 341, 343 (Fla. 1988).

11. In the context of a guilty plea a defendant must show a reasonable probability that

"but for counsel's errors, he would not have pleaded guilty and would have insisted on going to

trial." Brazeail v. State, 821 So.2d 364, 367-68 (Fla. I st DCA 2001). In detennining whether a

defendant would have insisted on going to trial, the court will "consider the credibility of the

defendant's assertion that he would have insisted on going to trial. If the defense was meritless,

the defendant's claim canies much less weight." Grosvenor v. State, 874 So.2d 1176 (Fla.

2004). Moreover, "a court should consider the totality of the circumstances surrounding the

plea, including such factors as whether a particular defense was likely to succeed at trial, the

colloquy between the defendant and the trial court at the time ofplea, and the difference between

the sentence imposed under the plea and the maximum possible sentence the defendant faced at a

trial." ¼ at 1181-82.

12. In Grounds One and Four ofDefendant's motion, he challenges the validity of the

crime he was charged. Defendant alleges that the Information is defective in that the crime for

which he was charged "Common Law Cheat" does not exist and the Information failed to

include specific elements ofthe crime. Defendant claims that the Information omitted the name

of the victim, intent to deprive, and theft. Defendant also claims the statute under which he was

charged, §817.29, Florida Statutes, does not define a crime.

Pursuant to §817.29, Florida Statutes (2009), a person convicted of "any gross fraud or

cheat at common law shall be guilty of a felony of the third degree." The offense ofcheating is

recognized in the State ofFlorida and §817.29 is not unconstitutionally vague. S_ee State v.

Vikhlyantsev, 622 So. 2d 1365 (Fla. 2d DCA 1993). Moreover, §923.03, Florida Statutes

6

(2000), outlines the format to be used when charging a criminal defendant by Information. The

format outlined in §923.03, Florida Statutes are deemed to be legally sufficient. Fla. Stat.

§923.03(1)(2009). The forms allow the use ofwords containing "unlawfully." Fla. Stat.

§923.03(1)(b)-(d)(2009).

In the instant case, Defendant entered a negotiated plea as to the charge of Common Law

Cheat in case number 2009-CF-1010. _S_ee attached Written Waiver ofRights and Open Plea to

the Court. Under §817.29 and §923.03, Florida Statutes, the Information that formed the basis of

Defendant's offense is legally valid. _S_ee attached Information. Therefore, Defendant's Grounds

One and Four are without merit as a matter of law.

13. In Defendant's Ground Two, he alleges his trial counsel (Counsel) was ineffective

for failing to move for dismissal of the Information. Defendant contends that due to the charging

information failing to "charge Defendant with any crime." Because the Court found the

Information to be legally sufficient Counsel had no basis to seek the dismissal of the charging

information. Therefore, Defendant's Ground Two is without merit as a matter of law.

14. In Ground Three ofDefendant's motion, he argues that his Counsel was

ineffective for failing to preserve his right to appeal. Defendant claims Counsel advised him that

he had preserved his right to appeal the violation ofprobation however his rights were not

preserved. This claim is without merit. At the Violation ofProbation hearing Defendant was

advised ofhis right to appeal after his plea to case number 2009-CA-1010. See Violation of

Probation Hearing on December 14, 2009 Transcript pp. 262-68. Defendant was again reminded

his right to appeal after sentencing on his violation ofprobation. Id. at 278-80. Defendant's

Ground Three is conclusively refuted by the record.

7

15. Finally, in Ground Five ofDefendant's motion he alleges his Counsel was

ineffective for failing to disclose "all the consequences of signing the open plea on the new

charge ofCommon Law Cheat 817.29." Defendant claims Counsel hid "key information" from

him to induce him to sign an open. Defendant contends Counsel failed to disclose that the State

did not have the necessary element to prove the crime of Common Law Cheat and that no crime

existed.

An attorney is obligated to ensure that the defendant understands "the direct

consequences ofhis plea" which "encompass only those consequences of the sentence which the

trial court can impose." Major v. State, 814 So. 2d 424, 431 (Fla. 2002). While the defendant

must be advised ofthe factors set for in Florida Rules ofCriminal Procedure 3.172(c), there is no

duty to advise him of the collateral consequences. Idn

In the instant case, Defendant entered a negotiated plea in case number 2009-CF-1010.

See attached Written Waiver ofRights and Open Plea to the Court. Moreover, Defendant

testified at the hearing that he understood the plea and sentence. See attached Violation of

Probatiorr Hearing on December 14, 2009 Transcript pp. 262-68. Subsequently, at a hearing on

Defendant's motion to withdraw his plea, he testified he was not coerced into entering a plea.

See Motion Hearing Transcript pp. 4-6. Defendant's claim that the Information was legally

insufficient was determined to be without merit as a matter of law. Therefore, Defendant has

failed to meet the Strikland standard of review. Defendant's Ground Five is conclusively refuted

by the record. Based upon the foregoing, it is thereupon:

ORDERED AND ADJUDGED:

1. Defendant's pro se Motion for Post-Conviction Relief3.850 [sic] is DENIED.

8

2. Defendant shall have thirty (30) days from the date of this Order to file a written

notice of appeal.

DONE AND ORDERED in Chambers at Inverness, Citrus County, Flohda this

dayof ,2012.

CHARD A. WARDCIRCUIT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the for o' has b to thefollowing by U.S. Mail/courthouse mailbox delivery this .-day of , 2012.

Michael O. Kelly, DC# UO4012, Wakulla Correctional Institution and Annex, 110Melaleuca Drive, Crawfordville, Florida 32327-4963

Jud ° Assistan

M A N D A T Efrom

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

TH1S CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL OR BY PETITION, AND

AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION OR DECISION:

YOU ARE HEREBY COMMANDED THAT FURTHER PROCEEDINGS AS MAY BE REQUIRED

BE HAD IN SAID CAUSE IN ACCORDANCE WITH THE RULING OF THIS COURT ATTACHED HERE

TO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE

AND LAWS OF THE STATE OF FLORIDA.

WITNESS THE HONORABLE RICHARD B. ORFINGER, CHIEF JUDGE OF THE DISTRICT

COURT OF APPEAL OF THE STATE OF FLORIDA, FIFTH DISTRICT, AND THE SEAL OF THE SAID

COURT AT DAYTONA BEACH, FLORIDA ON THIS DAY.

DATE: November 16, 2012

FIFTH DCA CASE NO.: 5D12-2289

CASE STYLE: MICHAEL O. KELLY v. STATE OF FLORIDA

COUNTY OF ORIGIN: Citrus

TRIAL COURT CASE NO.: 2003-CF-1170, 2006-CF-1029, 2006-CF-743, 2007-CF-835, 2009-CF4010

I hereby certify that the foregoing is(a true copy of) the original Court mandate.

PAlYÌËLA R. MASTERS, ÖLERK o, *

cc:

Office OfAttomey General Michael O.Kelly Clerk Citrus

#2012051004 11/19/2012 01:10:07 PM PGS 2 .Receipt #48090 SK 2610 PG 1630ReconNng fee $0.00 Dead DocumentaryTax $0.00mortgage Tax s0.00 intangageTax s0.00

ElectronicaHy Recorded, Citrus County FLsetty striner, clerk of the circuit court

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JULY TERM 2012

NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILED

MICHAEL O. KELLY,

Appellant,

v. Case No. 5D12-2289

STATE OF FLORIDA,

Appellee.

Decision filed October 23, 2012

3.850 Appeal from the CircuitCourt for Citrus County,Richard A. Howard, Judge.

Michael O. Kelly, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General,Tallahassee, and Wesley Heidt, AssistantAttorney General, Daytona Beach, forAppellee.

PER CURIAM.

AFFIRMED.

GRIFFIN, COHEN and BERGER, JJ., concur.

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUITIN AND FOR CITRUS COUNTY, A

CERTIFIED TO BE A TRUE COPYANGELA VICK s ...,..

MICHAEL O. KELLY, CLER IT COURTC.

THis 6 DAYOF MM 20

V. Case No.: 2009-CF-10102003-CF-1170

STATE OF FLORIDA, 2006-CF-0743INTIF/. 2006-CF-1029

2007-CF-0835

MOTION FOR POST-CONVICTION RELIEF 3.850

COMES NOW, the Defendant, Michael O. Kelly, pro-se, and respectfully

files this Motion for Post-Conviction Reliefpursuant to Fla. R. C5im. P. 3.850.

In support thereof, and in compliance with Fla. R. Crim. P. 3. o, the

Defendant states as follows:

FACTS UPON TVHICH THE DEFENDANT REHES . . .

On December 13, 2007, the Defendant was sentenced to 15 years probation

on case number(s) 2003-CF-1170, 2006-CF-0743, 2006-CF-1029, and 2007-CF-

0835, with 15 years D.O.C. for case no. 2003-CF-1170, 5 years D.O.C. for case no.

2006-CF-0743, 5 years D.O.C. for case no. 2007-CF-0835, suspended until

completion of probation or a violation of probation, whichever comes first; On

September 18, 2009, an information alleging common law cheat Fla. Statute No.

817.29 was filed in the Circuit Court in and for Citrus County, Florida and a capias

was issued the same day based on the information filed by the State Attorney, case

no. 2009-CF-1010, the Defendant was arrested on September 21, 2009 and booked

into the Citrus County Detention Facility, while being booked in, the arresting

officer Thomas Peruche, was contacted by State Probation Officer Pat Zellner, who

requested that, due to the fact that Defendant was being charged vvith new law

violation, he placed Defendant under arrest for violation of probation, Defendant

went to a violation of probation hearing on December 14, 2009. Defendant was

represented by Public Defender Michael Lambertti, Defendant, at this hearing was

sentenced to the suspended portion of his sentence of 25 years D.O.C with the

2009-CF-1010 new case .time of 5 years to be run concurrent to the 25 years

D.O.C., the Defendant's charge of common law cheat 817.29, Defendant then on

December 23, 2009 tried to withdraw his plea on new charge but was denied by

Court, Defendant then attempted to mitigate this sentence on January 5, 2010, but

was also denied. The Defendant then filed a Direct Appeal, and this was affirmed

and the Mandate received on November 24, 2010, Defendant then filed a 3.800(c)

Motion to Modify or Reduce Sentence, this Motion was denied. The Defendant

also filed a Writ of Habeas Corpus that was dismissed. The Defendant appealed

this ruling, and the appeal was per curiam affirmed on 10/4/2011. The Defendant

filed a Motion to Seek Leave to file over 50 pages on the 3.850. This was denied

on 12/22/2011, the Defendant appealed on 1/9/2012, the Defendant sent a Motion

to Dismiss the appeal on 2/7/12.

2

GROUND ONE

THE CHARGING INFORMATION FILED ONSEPTEMBER 18, 2009, FAILS TO CHARGE ANYCRIMINAL OFFENSE UNDER FLA. STAT. 817.29,THUS THE VIOLATION OF DEFENDANT'SPROBATION IS UNFOUNDED AND MUST BEREVERSED

ARGUMENT

Defendant by the exercise of reasonable diligence, later discovered that the

charging information for new charge of common law cheat, was fundamentally

defective on its face due to omissions of the offense of: common law cheat. The

information substantially omitted the words...intent and or endeavor, the name of

victim(s) or owner(s) of said property, the information failed to allege without

owners consent and failed to allege market value of $100.00 or more, the

information wholly omitted to allege a specific averment of theft, a core offense by

false pretenses, Defendant was not adequately appraised of statutes contents, under

law of Florida. Defendant suffered prejudice and manifest injustice that deprived

Defendant of his substantive due process rights to a fair trial. Defendant alleges

that the Trial Court clearly departed from the essential requirements of the law,

when said Court adjudicated him guilty and sentenced him to a'total of 25 years

D.O.C., based on a violation hearing from a fundamentally defective information

for the offense of common law cheat 817.29. On its face omitting the following

3

essential elements that specifically avers the core offense by taking money or

property by false pretense. This argument is supported by the following case(s):

without owners consent and with intent permanently to deprive owner of his/her

property therein and convert it to the use of the taker or of some person other than

owner, see, Canada v. State, (App.) 139 So.2d 753 (1962) (larceny at common

law) the crime of obtaining property by false pretenses has been merged into

larceny statute, see, Darwish v. State, 937 So.2d 789 (2006).

Steal commonly means to larceny, see, Addison v. State, 116 So.2d 629

(1928).

Since the information also alleges gross fraud it is synonymous with grand

larceny and must allege the taking of property with a market value of $100.00 or

more at time of theft, see, Hays v. State, 844 So.2d 705 (2003).

Theft is a specific intent crime. See, Daniel v. State, 570 So.2d 319 (2"*

DCA 1990); Spivey v. State, 680 So.2d 565 (l'' DCA 1996); Morgan v. State, 13

Fla. 671 (1869).

Also, there is the omission of the word endeavor; therefore, State v. Allen,

362 So.2d 10 (Fla. 1978) would be rnisplaced.

The information wholly omitted the name(s) of the owner of stolen property.

The allegation of the name of owner of stolen property in an information charging

larceny is made to show ownership to be in one other than the accused and as a

4

part of the description of the property. See, Byrd v. State, 146 Fla. 686 1 So.2d 624

(1941).

Where essential element of crime results in complete failure to allege felony,

such defect cannot be waived and felony Court is without jurisdiction over it and

any order that was entered is a nullity and must be reversed, see, Paee v. State, 376

So.2d 901 (2nd DCA 1979).

Each count of information stands upon its own, is the only vehicle by which

a Court obtains its jurisdiction and is a limit upon that jurisdiction, see, Colwell v.

State, 448 So.2d 540 (5'" DCA 1984).

Defendant was irrevocably prejudiced by the omission of the non-existent

offense. In the absence of his nolo contendre plea, the common law cheat statute

was not vague, this was a fundamental deficient information lacking specific

averment of some overt act under Florida Law,.clear on the face of the record.

Defendant was misled to his prejudice because the information was so

worded as to mislead a person of average intelligence as to the nature of the

charge, and insufficient to put Defendant on notice to prepare an adequate defense,

see, Brewer v. State, 443 So.2d 1217 (3"d DCA 1982); Kane v. State, 392 So.2d

1012 (5* DCA 1981).

Defendant is entitled to raise this defect at any time, and is not waived

because the information wholly fails to charge a crime, see, Haselson v. State, 386

5

So.2d 624 (1980); Barragan v. State, 957 So.2d 696 (5* DCA 2007) and Alhin v.

State, 436 So.2d 30 (Fla. 1982).

Omission meaning not clear from context and Defendant was misled, E__ge

v. State, 128 So. 820 (1930).

The Florida Supreme Court held; where information or indictment wholly

omits to allege one or more essential elements of crime it fails to charge crime

under the laws of the State, see, State v. Gray, 435 So.2d 816 (Fla. 1983).

Conviction on charge not made by information or indictment is denial of due

process, 14'" Amend ment U.S.C.A., see, Thornhill v. Alabama, 60 S. Ct. 736

(1990); DeJonge v. Oregon, 57 S. Ct. 255 (1937). The fact that the Defendant

entered a plea in this case and thereby avoided trial is not dispositive. It is clearly

shown within Florida law that a person cannot accept a plea to a non-existent

crime. Neither is it possible to plea to an illegal sentence. Said plea must be

deemed null and void. See Moore, v. State, 924 So.2d 840, 841 (Fla. 4* DCA

2006) stating in pertinent part: [1-2] Moore entered a negotiated guilty plea to

various offenses, including attempted aggravated assault on a law enforcement

officer. Attempted aggravated assault on a law enforcement officer is not a crime

in Florida. Merritt v. State, 712 So.2d 384 (Fla. 1998). A conviction for a non-

existent crime is fundamental error that can be raised at any time, even if the error

was "invited" by acceptance of a negotiated plea or by a request for jury

6

instructions. Mundell v. State, 739 So.2d.1201 (Fla. 5* DCA 1999); Fredericks v.

State, 675 So.2d 989 (Fla. 1" DCA 1996).

Defendant's claim that he was misled to his prejudice is a likelihood or

probability not a mere possibility, see, Penton v. State, 548 So.2d 273 (1* DCA

1989).

Defendant has not waived right to challenge conviction, see, Halev v. State,

315 So.2d 525 (1975). And waiver cannot be presumed, see, Briggs v. State, 929

So.2d 1131 (5* DCA 2006).

Defendant suffered irrevocable prejudice, see, State v. Vinson, 320 So.2d 50

(2"d DCA 1975) by way of strong analogy, slFF. D7 345 So.2d 711. In determining

prejudice the ultimate focus of inquiry must be on the fundamental fairness of the

proceeding whose result is challenged, see, Caratelli v. State, 961 So.2d 312 (Fla.

2007).

The prejudice inquiry in the post conviction context is equally applicable

under the specific facts of the case, this is; Fundamental error where a

jurisdictional error appears or where the interest of justice presents a compelling

demand for its application, see, F.B. v. State, 852 So.2d 226 (Fla. 2003).

Defendant's substantial and or procedural rights to due process were unduly

prejudicial and fundamentally unfair, see, Darden v. Wainwright, 106 S. Ct. 2464.

7

Defendant has also suffered manifest injustice, see, Harvard v. Singletary,

733 So.2d 1020 (Fla. 1999). Admonished the courts to remain alert to claims of

manifest injustice and that it would remain vigilant to ensure that no fundamental

injustice occur, see, Adams v. State, 957 So.2d 1183 (3rd DCA 2006); Miguellages

v. State, 33 Fla. L. Weekly, 656 (3'd DCA 2006). (The law of case will not be

applied to defeat the ends of justice). See, Lewis v. Jennings, 64 So.2d 275. the

Florida Supreme Court held: to prevent manifest injustice there must be a clear

showing of special or peculiar circumstances, a Court can not vacate, modify, or

set-aside, this cannot be invoked as a matter of rights. When established or

admitted would clearly warrant the alteration of the judgment, after sentence is

imposed the burden is on the Defendant to prove that a manifest injustice or

prejudice has occurred, see, State v. Thompson, 735 So.2d 482 (Fla. 1999).

There has been a palpable abuse of discretion to the manifest injury of the

Defendant against whom it has been exercised, see, Hall v. State, 9 So.2d 692 (Fla.

1915). The claim presents a pure question of law, see, State v. Klyman, 835 So.2d

248 (Fla. 2002).

The serious omission of the essential element of the offense of common law

cheat was not a mutual mistake of material fact like a plea bargain contract, see,

Handlev v. State, 890 So.2d 529 (2"d DCA 2005).

8

The value of property must be alleged in information. See, Pereria v. State,

35 Fla. L. Weekly D572 (5th DCA 2010). When a Court lacks subject matter

jurisdiction it has no power to decide the case and any judgment entered is

absolutely null and void can be set aside and stricken from the record on motion at

any time and may be collaterally attacked. See, Malone v. Meres, 91 Fla. 709 109

So. 677 (1926).

Due process principles mandate that a charging document inform the

accused of the offense he is charged with committing the severity of the possible

penalty, and the elements which the State must establish before he may be lawfully

convicted and punished for the prohibited conduct. U.S.C.A. Const. Amend. 5 and

14.

Defendant's arguments rest on Federal Constitutional grounds and not on

State statutory or constitutional grounds. See, 14*' Amend. U.S.C.A., New York v.

Class, 106 S. Ct. 960 (1986). Defendant has met his burden of establishing a prima

facia case based upon a legally valid claim, see, Freeman v. State, 761 So.2d 1055

(Fla. 2000).

A Trial Court's discretion is constrained by interest of justice, see Watson v.

State, 667 So.2d 247 (18' DCA 1995).

All facts alleged not specifically denied are admitted to be true, see, State Ex

Rel. Arnold v. Mallicon, 250 So.2d 874 (1941). Defendant's claim is not frivolous

9

and has a reasonable basis in fact or law, Anders v. Calf, 87 S. Ct. 1396 (1967). A

favorable construction applies only to Motion to Dismiss, decisions of other

District Court's are binding on Trial Court's. See, Pardo v. State, 596 So.2d 665

(Fla. 1992).

GROUND TWO

COUNSEL WAS INEFFECTIVE FOR FAILING TOMOVE FOR DISMISSAL OF THE CHARGINGINFORMATION FILED ON SEPTEMBER 18, 2009,WHERE CHARGING INFORMATION FAILED TOCHARGE DEFENDANT WITH ANY CRIME

ARGUMENT

Trial counsel had adequate time and knowledge to properly prepare the case

at bar. In his preparation counsel had access to any and all documentation

pertaining to this case, including but not limited to the "Charging Information".

Trial counsel's obligation is to represent the Defendant to the'best of his

ability, however, counsel's ineffectiveness has prejudiced the Defendant at the

hearing held on December 14, 2009, thus, the outcome would have been different

without the ineffectiveness of counsel. The results of this hearing can not be relied

upon as having produced a just result.

10

It is clear on the face of the record that counsel was not functioning as the

counsel guaranteed by the Sixth Amendment of the United States Constitution.

Counsel could have and should have moved for Dismissal of the faulty Charging

Information. Counsel failed to properly investigate any and all possible defenses

available. Counsel's performance was unreasonable under prevailing professional

norms. This is a case ofwillful neglect. It is impossible to believe that professional

counsel would have willfully allowed the Defendant to be tried for a crime not

charged.

It is glaringly clear that the Defendant was prejudiced by counsel's

inactions, when counsel chose this line ofdefense. Prejudice ensued to the point

that a fundamental error has been the only possible outcome, the outcome of the

hearing, in every way possible has prejudiced the Defendant.

Furthermore, counsel is obligated to conduct a reasonable investigation and

the failure to do so, causes the Defendant to be prejudiced in every way possible.

In the present case, it is impossible to believe that the outcome ofhearing

held on December 14, 2009 would have produced the same results if not for the

fundamental error created by the State and than allowed to continue to exist by

Defendant's trial counsel.

11

Had counsel moved to dismiss the information, this Motion may have been

granted and the information may have been refiled or quashed. This has resulted In

a manifest injustice on the Defendant that could have been completely avoided.

Even though the Defendant pled to the new charge, this is not dispositive to

his claims. These claims of ineffective assistance of counsel can not be waived due

to the constitutional violations and the reasons why the information does not state a

crime are alleged in Ground One of this Motion.

The Defendant would not have pled to the charge had the Motion to Dismiss

been granted and had it been denied the Defendant would not have pled without it

first being preserved for appellate review, as the issue would have been dispositive.

GROUND THREE

COUNSEL WAS INEFFECTIVE FOR FAILING TOPRESERVE THE RIGHT TO. APPEAL THEVIOLATION OF PROBATION, COUNSELERRONEOUSLY ADVISED THE DEFENDANTTHAT HE HAD PRESERVED HIS RIGHT.BECAUSE OF THIS FALSE ADVICE AND THEDEFENDANT'S NEW SENTENCE BEING RUNCONCURRENT WITH MORE PROMISES FROMCOUNSEL THAT THIS TO WAS PRESERVEDFOR APPELLATE REVIEW, THE DEFENDANTSIGNED A PLEA ON THE NEW CHARGE OFCOMMON LAW CHEAT 817.29, IF NOT FORTHESE FALSE STATEMENTS, THE DEFENDANTWOULD HAVE NEVER SIGNED A PLEA TO THENEW CHARGE AND HE WOULD HAVE OPTED

FOR TRIAL.

12

ARGUMENT

At the violation hearing held on December 14, 2009, counsel advised

Defendant that he had preserved the right to appeal the violation of probation.

Counsel also advised the Defendant that he had the right to appeal the new charge

of common law cheat 817.29. Obviously, this was not the case. Defendant relied

on counsel to represent him to the best of his professional ability,but not even the

lowest standards allowed by this Court can excuse this ineffectiveness!

Counsel has violated the Defendant's Sixth Amendment right of the United

States Constitution. The failure to preserve an issue for appellate review may be

sufficient to constitute ineffective assistance of counsel. See, Merkison v. State, 1

So.3d 279 (Fla. 1" DCA 2009).

Also cited in Merkison v. State, 1 So.3d 279 (Fla. 1"' DCA 2009), "we have

determined that this issue warrants a reversal).

A post-conviction claim that a Defendant was induced to enter a plea upon

counsel's erroneous advice that an issue was preserved for appeal is facially

sufficient. See, Shade v. State, S9 So.3d 1214 (Fla. 5th DCA 2011) citing also

Hawley v. State, 822 So.2d 552 (Fla. 1" DCA 2002).

It is clear that the Defendant would have never pled, without the hope of

seeking an appeal on these issues, counsel's advice was erroneous and misleading,

13

and "the voluntariness of a plea can be undercut if the decision to plead is

influenced by erroneous advice regarding the defendant's appellate rights". Helms

v. State, 573 So.2d 116 (Fla. 2"d DCA 1991).

It is clear that this was the case with the Defendant, it has been established

that counsel does not have to have a perfect representation but a competent

representation is required.

This was obviously not the case. Counsel simply turned his back on the

Defendant and literally left the Defendant at the mercy of the Court.

The Defendant would have never signed the plea had counsel clearly

informed him of the unpreserved issues in his case. The plea is involuntary based

on these circumstances, and the Defendant would have gone to trial on the new

charge, but for counsel ineffectiveness.

GROUND FOUR

A DEFENDANT CAN NOT BE PROSECUTED INFLORIDA FOR THE COMMON LAW CRIMES OFGROSS FRAUD AND/OR CHEAT. SINCE THEDEFENDANT WAS CHARGED, CONVICTED,AND SENTENCED FOR THESE CRIMES, HISCONVICTION AND SENTENCE AS WELL ASTHE VIOLATION OF PROBATION SHOULD BEVACATED

14

ARGUMENT

In the present case, the Defendant was charged with the common law crime

of Cheat Fla. Stat. 817.29. This statute does not define a crime, instead what it says

is anyone who is convicted of the common law crimes of Gross Fraud or Cheat has

committed a Third Degree Felony. In Florida common law crimes as opposed to

statutorily defined crimes, are unconstitutional, and Florida does not recognize

such a crime. See, B.H. v. State, 645 So.2d 987 (Fla. 1994). The Constitution itself

states: The term "felony" as used herein and in the laws of this State shall mean

any criminal offense that is punishable if committed under the laws of the State, or

that would be punishable if committed in this State, by death or by imprisonment

in the State penitentiary. Art. X, § 10, Fla. Const. (emphasis added).

In sum, no felony can exist under Florida law unless created by valid statute

properly approved by legislature. Thus, Florida recognizes no common law

felonies. Accord., § 775.02 Fla. Stat. (1989) (no common law crime may be treated

as a felony).

Therefore the Defendant's probation should be reinstated, since the State had

no ground to seek an arrest for the new charge of common law cheat, and

thereafter expose the Defendant to a possible prosecution for this non existent

crime and the State's admission that they could not prove all necessary elements of

this crime to establish that a crime had taken place. This was a civil Fraud at best,

15

and the criminal Court -lacked jurisdiction to pursue any charges and/or

p.rosecution.

In this case no violation has occurred, as alleged by Judge Richard Howard.

No evidence of a criminal offense has been shown, and the Defendant should be

released from unlawful custody and reinstated on his probation.

GROUND FIVE

COUNSEL WAS INEFFECTIVE FOR NOT FULLYDISCLOSING ALL OF THE CONSEQUENCES OFSIGNING THE OPEN PLEA ON THE ·NEWCHARGE OF COMMON LAW CHEAT 817.29,THIS OMISSION CAUSED THE DEFENDANT TOBE MISLEAD IN THE CIRCUMSTANCES OF THEVIOLATION OF PROBATION, AND COUNSELFAILED TO DISCLOSE THAT EVAN IF THEDEFENDANT WOULD NOT HAVE SIGNED THEOPEN PLEA AND INSTEAD HAD GONE TOTRIAL AND WON, HE WOULD STILL HAVE APOSSIBLE VIOLATION OF PROBATION.

ARGUMENT

When counsel chose this line of representation, he willfully hid key

information from the Defendant. This so the Defendant would sign an open plea to

the new charge of common law cheat 817.29, Counsel represented that the

Defendant may as well sign on the new charge, since he has been found to be in

violation ofhis probation.

16

The Defendant has the burden to show that this specific, serious deficiency,

when considered under the circumstances of this individual case was substantial

enough to demonstrate a prejudice to the defendant to the extent that there is

likelihood that the deficient conduct affected the outcome of the court proceedings,

Knight v. State, 394 So.2d 997 (Fla. 1981), as it has in the present case at bar.

When counsel did not disclose that the state had not provide all the elements

necessary to prove the crime of common law cheat 817.29, counsel created a

seemingly helpless situation for the Defendant, had counsel completely disclosed

any and all of the real consequences of signing a Plea to this charge, the Defendant

would have not signed the Plea, instead Defendant would have opted for trial.

Counsel clearly decided not to tell the Defendant that when the state did not

prove all necessary elements of this alleged crime, no crime can exist, and no

violation can exist without a crime having been committed, Counsel also failed to

disclose that a mere arrest will not cause a violation of probation, nor will the

execution of an arrest warrant.

But when counsel chose not to disclose these facts, counsel created a

hopeless situation.

Counsel continued to allow the court to continue with its unfounded

violation of probation hearing without complete and total disclosure of all the

consequences unfolding in the courtroom.

17

This ineffectiveness has clearly caused the Defendant to be Prejudiced,

cheated , and Frauded out of his Untied States Constitutional Right to Due Process

14* Amendment Rights, that is guaranteed to each and every Defendant in this

state and country, and the Defendant was deprived of his rights to effective

assistance of counsel, that is also guaranteed by the 6* Amendment of the United

States Constitution.

Both Prongs of "Strickland" have been clearly shown in each and every

ground herein.

Affirmative misadvise of counsel regarding the collateral consequences of

entering a Plea can constitute ineffective counsel. See Columbo v. State, 972 So.2d

1101 (Fla. 1" DCA 2008). As it is clear the advice of counsel was contrary with the

consequences of entering a signed Plea, Because of the Defendants lack of

knowledge at that time, the Defendant was cheated when he was allowed to plea to

this non-existent crime, that was not preserved, the Plea is and was involuntary.

And this inaction has caused a Fundamental Error to arise.

This error must be addressed 4dealt with Accordingly, and the Defendant

should be reinstated on his Probation immediately to prevent any further manifest

injury or injustice.

18

RELIEF SOUGHT

The Defendant humbly prays that any and all sentences be vacated, set aside,

and reversed and the Defendant be reinstated on his probation, due to no crime

having been shown by the State's lack of evidence and no crime being charged in

the information and/or these claims be set for an Evidentiary Hearing to establish

the facts of this case. This so prayed.

Respectfu Submitte

/s/ - ~ �042Michael Obrien Kelly 2Wakulla Corr. Inst. ( )110 Melaleuca DriveCrawfordville, Florida 32327

19

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT

MICHAEL O. KELLY ,

Appellant,

v. CASE NO. 5D13-0625

STATE OF FLORIDA ,

Appellee.I

DATE: March 06, 2013

BY ORDER OF THE COURT:

ORDERED that Appellant's Motion to Supplement the Record, filed March

1, 2013, is granted. Accordingly, Appellant shall cause the record to be supplemented

with the April 2, 2012, rule 3.850 motion and transmitted to this Court by March 21,

2013.

I hereby certify that the foregoing is(a true copy of) the original Court order.

PAMELA R. MASTERS, CLERK

cc:

Office Of Attorney General Michael O.Kelly Clerk Citrus(03-CF-1170, 06-CF-743,1029, 07-CF-835, 09-CF-1010)

CERTIFIED TO BE A TRUE COPY

A GELA VICK ...

CLERK H IRCU T COURT

BY D.C.

THIS Ó DAY OF Áf 20

M A N D A T Efrom

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL OR BY PETITION, AND

AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION OR DECISION;

YOU ARE HEREBY COMMANDED THAT FURTHER PROCEEDINGS AS MAY BE REQUIRED

BE HAD IN SAID CAUSE IN ACCORDANCE WITH THE RULING OF THIS COURT ATTACHED HERE

TO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE

AND LAWS OF THE STATE OF FLORIDA.

WITNESS THE HONORABLE RICHARD B. ORFINGER, CHIEF JUDGE OF THE DISTRICT

COURT OF APPEAL OF THE STATE OF FLORIDA, FIFTH DISTRICT, AND THE SEAL OF THE SAID

COURT AT DAYTONA BEACH, FLORIDA ON THIS DAY.

DATE: June 07, 2013

FIFTH DCA CASE NO.: 5D 13-0625

CASE STYLE: MICHAEL O. KELLY v. STATE OF FLORIDA

COUNTY OF ORIGIN: Citrus

TRIAL COURT CASE NO.: 03-CF-1170, 06-CF-1029 06-CF-743, 07-CF-835, 09-CF-1010

I hereby certify that the foregoing is(a true copy of) the original Court mandate.

PAMELA R. MASTERS. CLERK

cc:

Office Of Attorney General Ann M.Phillips Michael O.KellyClerk Citrus

APPENDIX

15.

1 fraud, cheating a gross fraud, or common law cheat

2 on certain dates in 2009; is that correct?

3 A That is correct.

4 Q Okay. And if I was.to read them to you,

5 can you check your report to make sure that those

6 are the ones that you have on all of the pages?

7 A Sure.

8 Q March 12th 2009, June 6th 2009, July 17th

9 2009, July 18th 2009, and September 11, 2009?

10 A Yes.

11 Q Okay. And prior to this probation

12 violation affidavit you indicated that you and

13 Mr. Kelly spoke about his business, the paving

14 business?

15 A Yes.

16 Q Did he tell you that it was his business

17 or that it was his brother's business?

18 A He told me that it was his -- actually

19 J.D. Kelly is his cousin. He told me that it was

20 his cousin's business but that he was more or less

21 in the process of taking it over, um, because

22 Mr. Kelly was having -- his cousin was having some

23 problems.

24 Q Okay. Would it be fair to say that

25 Mr. Kelly indicated to you that he was an employee

16

1 of that business?

2 A Yes, he did.

3 Q Okay. Did he indicate to you what his

4 authorizations were by his employer·as to what he

5 was supposed to do in the business or what he was

6 allowed to do?

7 A Yes, he did.

8 Q What did he say?

9 A Well, pretty much he told me that he had

10 control of it. He went out and contracted with

11 these folks, he took their money, he did the work.

12 Q All for the --·for his benefit or for the

13 benefit of J.D. Kelly, or do you know?

14 A Well, I think J.D. Kelly had the --

15 initially had the equipment that was necessary but

16 Mr. Kelly, the defendant, has -- was getting the

17 benefits. And I think probably the cousin was,

18 also. I didn't get into how much he was giving J.D.

19 Kelly.

20 Q Okay. Did you have an opportunity to

21 discuss with any of the alleged customers of J.D.

22 Kelly, in regard to this, the specifics of their

23 complaints with the business?

24 A Well, one in particular -- I think her

25 name was Reed -- that's not really a part of this,