Motion for Modification of Bail

IN THE CIRCUIT COURT. SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY. FLORIC

CIVIL DIVISION

STATE OF FLORIDA

Plaintii.

UCN: 522001 CA009347XXXXCl REF: 01-009347-Cl-015 (Indirect Criminal Contempt) Case No. AB36199MM

VS.

MARK A. ADAMS,

Defendant. I

DEFENDANT'S MOTION FOR MODIFICATION OF BAIL

COMES NOW Mark A. Adams, Esquire and files this Motion for Modification of Bail

pursuant to Ela. R. Crim. P. 3.13 1(d) showing:

1. Florida Rule of Criminal Procedure 3.840 provides the procedure for the prosecution of

charges of indirect criminal contempt, and the Defendant has been charged with indirect

criminal contempt.

2. Florida Rule of Criminal Procedure 3.840(e) provides that when a judge has been

disqualified, "Another judge shall be designated by the chief justice of the supreme

court."

3. On December 20,2004, Judge Crockett Earnell entered an Order of Disqualification

disqualiing himself as judge in this action.

4. Since Judge Crockett Fame11 disqualified himself, no judge has been designated to hear

the trial of this action by the chiefjustice of the supreme court, and therefore, there is an

absence of the judge of the trial court

5. Florida Rule of Criminal Procedure 3.840(c) states, "The judge may issue an order of

arrest of the defendant if the judge has reason to believe the defendant will not appear in

response to the order to show cause. The defendant shaU be

manner provided by law in ctiminal cases."

6, Florida Rule of Criminal Procedure 3.13l(d)(l)@) provides that the chief judge of the

circuit may modify the conditions of pre-trial release. State v. Paterno, 478 So.2d 420,

421 (Fla. 3rd DCA 1985).

7. Florida Rule of Criminal Procedure 3.131(d)(l) states in part, "The motion shall be

determined promptly." A writ of mandamus will be granted if a wurt fails to promptly

rule on a motion for modification of the terms of pre-trial release. Dicolla v. State, 763

So.2d 1286,1286-1287 (Fla 5th DCA 2000).

8. Florida Rule of Criminal Procedure 3.13 l(dX2) provides that the defendant must give the

State at least 3 hours notice before a hearing on a motion for modification of bail. This

motion has been served by hand delivery to the State with far more than 3 hours notice.

9. On October 1,2003, Judge Crockett Farnell issued an Order to Show Cause Why Mark

A. Adams and Mark A. Adams, P.A., Should Not Be Held In Indirect Criminal Contempt

requiring the Defendant to appear on October 29,2003 at 235 PM. This order did not

require the arrest of the Defendant, and therefore, there was no reason for Judge Crockett

Farnell to believe that the Defendant would not appear in response to the order to show

cause.

10. On October 27,2003, the Defendant filed a Petition for a Writ of Prohibition with the

District Court of Appeal of the State of Florida for the Second District (hereinafter

referred to as the "Second District Court") which was assigned Case No. 2W3-4844, and

on October 29,2003 prior to 11:46 AM the Second District Court issued its order staying

proceedings in the trial court. See Exhibit A.

11. On November 24,2003, the Second District Court denied the Defendant's Petition for a

Writ of Prohibition without expressly vacating the stay. See Exhibit B.

12. Florida Rule of Appellate Procedure 9.02qi) states, "If any tirnely and authorized motion

under rules 9.330 or 9.33 1 is filed, the order shall not be deemed rendered as to any party

until all of the motions are either abandoned or resolved by the filing of a written order."

Therefore, the Second District Court's order dated November 24,2003 was not deemed

rendered or final until the 15 day time period for filing motions authorized under rules

9.330 or 9.331 had passed, or until such timely filed motions were determined.

13. Florida Rule of Appellate Procedure 9.310(e) provides that a stay shall remain in effect

until a mandate issues or the stay is otherwise modified or vacated. Moreover, the

comment to 9.310(e) states, "The stay is vacated by issuance of mandate or an order

vacating it." The Second District Court's order dated November 24.2003 did not

expressly vacate the Second District Court's prior order staying proceedings in the trial

court, and therefore, the order staying proceedings remained in 111 force and effkct.

14. On December 9,2004, the Defendant timely filed a Motion for Rehearing, Request for

Written Opinion, and Request for Rehearing En Banc in Case No. 2D03-4844 as

authorized under Florida Rules of Appellate Procedure 9.330 and 9.331, and therefore,

pursuant to Florida Rule of Appellate Procedure 9.MO(i) the Second District Court's

order dated November 24,2003 was not deemed rendered and was not final. See the

o n l i i docket of District Court of Appeal of the State of Florida for the Second Dishict

which is attached as Exhibit C.

15. On or about December 9,2003, Timothy W. Weber, Esquire, willllly violated the

Second District Court's order staying proceedings in the trial court by Ning a notice of

hearing scheduling a hearing for January 7,2004 at 2:30 PM in the trial court for a

contempt trial on the order to show cause why Mark A. Adams and Mark A. Adams,

P.A., should not be held in indirect criminal contempt. See Exhibit D.

16. No order to show cause was issued requiting the appearance of the Defendant on January

7,2004 as r e q d by Florida Rule of Criminal Procedure 3.840(a), but of course, if one

had been issued by Judge Crockett Farnell, it would have been issued without jurisdiction

as the Second District Court's order staying proceedings in the trial court was still in full

force and effect. "A court's failure to comply with rule 3.840 is fundamental error and no

objection is required." Mix v. State, 827 So.2d 397,399 (Fla. 2d DCA 2002).

17. Prior to the hearing on January 7,2004, the Defendant ffifed Mark A. Adams' Motion to

Dismiss Order to Show Cause Why Mark A. Adams and Mark A. Adams, P.A., Should

Not Be Held in Indirect Criminal Contempt, Motion to Quash Notice of Hearing on

Contempt Trial, Amended Motion to Vacate Order Granting Defendants' Amended

Renewed Motion for Fees and Sanctions Against Plaintiffs, J e f i y S. Smith and Sharon

P. Smith, and Plaintiffs' Former Counsel, Mark A. Adams and Marlc A. Adams, P.A.,

Pursuant to 5 57.105 Fla Stat. (2001) and the Trial Court's Inherent Authority to

Sanction and the Judgment on E x p s e s on Motions to Compel, Motion to Quash Notices

of Deposition, and Motion for Protective Order (hereinafter Motion to Dismiss Order to

Show Cause) and hand delivmd a copy of this motion to Judge Crockett Farnell's

judicial assistant. This motion showed that the Second District Court's order staying

proceedings in the trial court was still in full force and effect. Also, on January 7,2004,

the Defendant tried to appear by phone to point out the fact that the Second District

Court's order staying proceedings in the trial court was still in full force and effect;

however, Judge Crockett FameU refused to allow the Defendant to appear by phone in

spite of Florida Rule of Judicial Administration 2.071(c).

18. On January 12,2004, Judge Crockett Farnell willfully violated the Second District

Court's order staying pmwedings in the trial court when he issued an order for the arrest

of the Defendant, Mark A. Adams, for failure to appear at the improperly scheduled

hearing on January 7,2004, and in this order, Judge Crockett Farnell set conditions for

the Defendant's pre-trial release by requiring a bond of $2625,000.00 to secure the

appearance of the Defendant at a hearing on the order to show cause which was set for

February 17,2004 at 1 1:00 AM.' See Exhibit E.

19. On January 27,2004, the Second District Court of Appeal denied the Defendant's Motion

for Rehearing, Request for Written Opinion, and Request for Rehearing En Banc in Case

No. 2D03-4844. See Exhibit F.

20. On February 10,2004, the Second District Court issued an order in Case No. 2W3-4844

vacating its order staying proceedings in the trial court dated October 29,2003. See

Exhibit G.

21. On February 16,2004, the Second District Court issued an order in Case No. 2D03-4844

vacating its order of February 10,2004 which falsely stated that "the stay was lifted

concurrently with the order denying the petition for writ of prohibition on November 24,

2003." See Exhibit. H.

22. Florida Rule of Appellate l'rodure 9.340(b) states, "If a timely motion for rehearing,

clarification, or certification has been filed, the time for issuance of the mandate or other

process shall be extended until 15 days after rendition of the order denying the motion,

or, if granted, until IS days after the cause has been fully determined."

' This order was not served on the Defendant until he was arrested at his home in h n t of his family on the morning of February 19,2004, and he was released on bond at appr0ximatei.i 10:30 PM on that date.

23. 'The mandate in any case hct ions to end the jurisdiction of the appellate court and to

return full jurisdiction of the case to the trial court." State v. Miyasato, 805 So.2d 818,

824 (Fla 2d DCA 2001). If a stay has been entered, the mandate typically causes the stay

to end. Id

24. "The mandate of an appellate court is the official method of communicating its judgment

to the inferior tribunal." Colonel v. Reed 379 So.2d 1297,1298 (Fla 4th DCA 1980).

25. "There can be no twilight zone in jurisdiction nor v~cuum in its application. It is either

effective full of force or not at all." Id quoting State ex rel. Davis v. City of Clearwater,

146 So. 836,836 (Fla. 1933).

26. In light of the foregoing, it is clear that the Second District Court's order staying

proceedings was still in 111 force and effect in January of 2004 and that no order to show

cause had been issued requiring the Defendant to appear before the trial court on January

7,2004, and therefore, it was unreasonable for Judge Cmkett Farnell to set bond for the

Defendant at $25,000.00 in the order for arrest issued on January 12,2004 for the

Defendant's failure to appear at an improperly scheduled hearing before the trial court in

violation of the Second District Court's order staying proceedings in the tTid court.

Unless this court believes that an order for arrest can be entered &om the twilight zone,

the order for arrest of the Defendant in this action should be vacated.

27. Furthermore, Florida Rule of Judicial Administration 2.050@)(2) provides that the chief

judge of the circuit s W I exercise administrative supervision over all judges and officers

of the courts within the judicial circuit. Florida Rule of Judicial Administration 2.0500

provides that the failure of any judge or attorney to comply with an order shall be

reported to the chief justice of the supreme court. As this motion and the record clearly

demonstrate that Timothy W. Weber, Esquire and Judge Crockett Fame11 have failed to

comply with the Second District Court's order entered in Case No.: 2D03-4844 staying

pmxedhgs in this action, the Honorable David A. Demers, Chief Judge of the Sixth

Judicial Circuit, should report Timothy W. Webw, Esquire and Judge Crockett Farnell to

the chief justice of the Supreme Court of Florida and request an investigation of their

actions by the Judicial Qualifications Commission and the Florida Bar.

WHEREFORE, the Defendant respectfully requests that the Honorable David A.

Demers, Chief Judge, vacate the improperly issued order for arrest of the Defendant and report

Timothy W. Weber, Esquire and Judge Crockett Famell to the chief justice of the Supreme Court

of Florida and request an investigation of theiu actions by the Judicial Qualifications Commission

and the Florida Bar.

CERTIFICATE OF SERVICE

I HEREBY CERTlFY that a copy hereof has been furnished by hand delivery to Rene

Marie Bauer, Esquire of the State Attorney's Office at P.O. Box 5028; Clearwater, FL 33758 and

to the attorney for the Defendant, Gregory L. Olney 11, Esquire at P.O. Box 27; St. Petersburg,

EL 33731 on this zq '>day of September, 2005.

Mark A. Adams, Esquire Co-counsel for Defendant Fla Bar No. 0193178 P.O. Box 1078 Valrico, FL 33595 Telephone: 81 3-654-1235 Facsimile: 813-654-1390

i0/29/03 VED ll:4B FAX 883 499 2277 SECOND D . C . A . W d .

IN THE DISTRICT COURT OF APPEAL QF THE STATE OF FLORIDA SECOND DISTRICT, POST OFF lCE BOX 327, L A K E W D , FL 338024327

October 29.2003

CASE NO.: 2D03-4844 L.T. NO. : 01-9347-Cl

Mark A Adams v. Jeffrey S. Smith, Et Al.,

Appellant I Petitioner(s), Appellee I ResponUent(s).

BY ORDER OF THE COURT:

Within ten days of the date of this order, petitianer shall tile with this court and serve on respondent an amended petition and amended appendix in compliance with Florida Rules of Appellate Procedure 9.100(~) and 9.220. The amended appendix shall include a conformed copy of all orders entered in the circuit court ruling on any of petitjonei's motions to disqualify the Honorable Crockett Famell.

Trial court proceedings are stayed pending further order of this court.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

Sewed:

Mark A. Adams. Esq. Ricardo A. Roig, Esq. Timothy W. Weber, Esq. Karleen DeBlaker, Clerk Honorable Crockett Famell

James Birkhold e

12/04/03 TBCi 1U:57 FAX 2nd DCA CLERK

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327

November 24.2003

CASE NO.: 2D03-4844 L.T. No. : 01-9347-Cl

Mark A. ad am^ v. Jeffrey S. Smith, Et A\.,

Appellant / Petisoner(s), Appeliee I Respondent(s).

F3Y ORDER OF THE COURT:

The petition for writ of prohibition is denied with prejudice. See Sumner, 707 So. 2d 934 (Fla. 2d DCA 1998).

NORTHCUTT, SALCINES and COVINGTON, JJ., Concur.

I HEREBY CERTIFY that the foregoing is a true copy ofthe original court order.

Served:

Mark A. Adarns, Esq. Ricardo A Roig, Esq. Timothy W. Weber, Esq. Karleen F. DeBlaker, Clerk Honorabfe Crockett Farnell

Post-ir Fa* Note 7671

/I< AU ,-- ca

Second District Court of Appeal Case Docket Page 1 of 2

Second District Court of Appeal Case Docket

Case Number: 21103-4844

Civil Prohibition Petition from Pinellas County

MARK A. ADAMS vs. JEFFREY S. SMITH, ET AL.,

Lower Tribunal Case@): 01-934743

09/29/2005 01 :49

Second D i c t Court of Appeal Case Docket Page 2 of 2

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA

CIVIL DIVISION

JEFFREY S. SMITH and SHARON P. SMITH,

Plaintiffs,

CORPORATE SPORTS MARKETING GROUP, INC., CHRISTOPHER C. KING, and DWAYNE MARTINS,

Defendants.

CORPORATE SPORTS MARKETING GROUP, INC..

CASE NO.: 01-9347-Cl-015

JEFFREY S. SMITH, JOHN D. KERIN, and LAFAYETTE MARKETING GROUP, INC., a Florida Corporation,

Counterdefendants.

NOTICE OF HEARING

YOU WILL PLEASE TAKE NOTICE that on the 7th day of January, 2004 at

2:30 p.m.. or as soon thereafter as this matter can be heard. before the Honorable

Crodcett Famell, Circuit Court Judge, 315 Court Street, Room 421, Clearwater. Florida,

the undersigned will call up the following:

Contempt trial on the Order to Show Cause Why Mark A. Adams and Mark A Adams, P.A. Should Not Be Held in Indirect Criminal Contempt

TIME RESERVED: 1 HOUR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a m e and correct copy of the Notice of Heating for

January 7, 2004 has been furnished via Facsimile and U.S. Mail to Mark A. Adams,

Esquire. Post Office Box 1078. Valrico, Rolida 3 v 5 this '&ay of December, 2003.

B A ~ G L I A ROSS DlCUS II, WEIN, P.A. First Union National Bank Building 980 Tyrone Boulevard (33710) P.O. Box 41 100 St. Petersbutg, FL 33743 Telephone No.: (727) 381-2300 Facsimile No.: (727) 343-4059 Attorney for DefendanWCounter-plaintiff

cc: Robert Dempster & Associates

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR WNEUAS CCHINTY. FLORIDA

cwlt DMSTON

JEFFREY S. SMITH and SHARON P. SMITH.

CORPORATE SPORTs MARKETING GROUP. INC.. CHRISTOPHER C. KING. and DWAYNE MARTINS,

Defendants.

CORPORATE SPORTS MARKETING GROUP, INC.,

VS. CASE NO.: 01-9347x1-015

JEFFREY S. SMITH, JOHN D. KERIN. and LAFAYFITE MARKETfNG GROUP, INC.. a Florida CorpoWbn.

ORDER FOR ARREST. NOTICE OF HEARING. WD NOTICE OF RIGHT TO COUNSEL

TO ALL AND SIN(3ULAR THE SHERIFFS OF THE STATE OF FLORIDA:

THIS CAUSE came befwe the Court on January 7,2004 on the Court's Order to

Show Cause Why Merk A. Adam and Ma& A. .Adams. PA. Should Not be Hekl in

indirect Criminal Cantempt. The Court finds that Mark A Adams and Mark A Adarns.

P.A. were pidckd suffident notb of the hearing and had actual notice of the hearing.

Upon me failure of Mark A. Adam and Mark A. Adams. P.A. to appear for pnx;eedings

an the onler to show cause, and the halls being duly aoumled for them witbut

~ ~ 8 , t h e C o u r t ~ t h e t ~ K I O r d e r o f ~ t s r e g s o n a M y n e c e s a a r y t o s e c u r e ~

appeerance of Mark A. Adewns for pramdings on the order to show cause.

THEREFORE. YOU ARE HEREBY COblWUWED to am& Mark A. Adam8 and

Inca- him in the Pinellas County Jail pendlng a hearing on tMs CouKs OKfer to

Show Cause Why Ma& A. Adams w Merk A ACIWS, P.A. Should Nol: Be Held In Mirect

Criminal Contempt, which heating is hereby sdleduled to oocur at 315 Court Street. Rmm

421. Ckwakr . Florida at II :*a &p.m. on the day of 3~ b~~ 2004. Mark A.

Adams may sewre his release from mcarceration befora the hea- by posting a cash or

swety bond in the amount of S25,OOO conditkned on his personal appearance at the

hearing and any wbsspec~t jmceedimg ar the order to show cause. In the event Mark A.

Adams does not seam his mfmw Wtm hearing, tMs Order snail mwtMe suficlmt

authori(y to transport hbn for the hearing.

YOU .ARE FURTHER COMMANDED to provide Mark A Adams a mpy of this

Oldar,wMd,shgUwnatiMesulficientnolicebMsnkA.AdmdMarkk~.PA.

ol the hearing. Mark A. Adems and Mark A. Aderns. PA., by receipt of a copy of this

0rder.erefurthernotitiedihattheyhavea rigMtotocwnrPelinthescsproceedin@sandthat

the Cowt wig appoint counsel if they are W i and unable to &mi txwnd. If Mark A.

Adarrts or Mark A. Adams, PA. request the of counsel. they shoukJ do so in

wiWng and schedule a hearing beqrwe the throe set ibr the hearing on the order to show

cause. Mark A. Adams and Mark A. Adaim, PA. shMlkl submit sppraprlate ~~ or

other sworn proof warding their financial ab i l i i kt suppart of any such s p p l i i .

MARK A ADAMS AND MARK A. ADAMS. PA ARE FURTHER NOTIFIED THAT


January 27,2004

CASE NO.: 2003-4844 L.T. NO. : 01-9347-Cl

Mark A. Adams v. Jeffrey S. Smith, Et Al.,

Appellant I Petitioner(s). Appellee / Respondent(s).


Petitioner's motion for rehearing, request for written opinion, and request for rehearing en banc are denied.


Sewed:

Mark A. Adams, Esq. Ricardo A. Roig, Esq. Timothy W. Weber, Esq. Karleen F. Deblaker, Clerk Honorable Crockett Famell

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORID& SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327

February 10,2004

CASE NO.: 2D034844 L.T. NO. : 01-9347-Cl

Mark A. Adams v. Jeffrey S. Smith, Et Al.,

Appellant I Petitioner(s), Appellee I Respondent(s).


Non-party Michael L. Adams' motion to vacate stay is granted; the stay entered by this court on October 29, 2003, is hereby liied.


Served:

Mark A. Adams, Esq. Timothy W. Weber, Esq. Ricardo A. Roig, Esq. Honorable Crockett Famell Karleen F. DeBlaker, Clerk William J. Fuller. Ill, Esq.

James Birkhold Clerk


February 16,2004

CASE NO.: 2D03-4844 L.T. NO. : 01-9347-Cl

Mark A. Adams v. JefFrey S. Smith, Et Al.,

Appellant I Petitioner@), Appellee I Respondent(s).


Respondents' motion for clarification or reconsideration of the February 10,2004, order of this court is granted. We vacate the February 10, 2004, order. Non-party Michael L. Adarns' February 10,2004, motion to vacate the stay is denied as unnecessary because the stay was lifted concurrently with the order denying the petition for writ of prohibition on November 24, 2003.

Petitioners' motion for stay of mandate is denied.


Mark A. Adams, Esq. Timothy W. Weber, Esq. Ricardo A. Roig, Esq. Honorable Crockett Farnell Karleen F. DeBlaker, Clerk William J. Fuller, ill, Esq.

Documents

Motion for Modification of Bail