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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