Petition for Writ of Certiorari — Ines Colleen Robinson, Petitioner v. Florida

No.____________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2021

____________

INES COLLEEN ROBINSON, Petitioner

v.

FLORIDA, Respondent.

On Petition for a Writ of Certiorari

to the Florida Fifth District Court of Appeal

PETITION FOR A WRIT OF CERTIORARI

WILLIAM MALLORY KENT

Kent & McFarland

Attorneys at Law

24 North Market Street

Suite 300

Jacksonville, Florida 32202

(904) 398-8000 Office Telephone

(904) 662-4419 Kent Cell Phone

(904) 348-3124 Office Fax

kent@williamkent.com email

Counsel for Petitioner Robinson

QUESTION PRESENTED

ROBINSON WAS DENIED DUE PROCESS WHEN THE

FLORIDA COURT OF APPEAL REFUSED TO GRANT HER A

RESENTENCING AFTER THE SAME FLORIDA COURT HAD

GRANTED A WRIT OF PROHIBITION AND DISQUALIFIED

HER SENTENCING JUDGE DUE TO HIS JUDICIAL BIAS IN

HER SENTENCING.

i

TABLE OF CONTENTS

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ROBINSON WAS DENIED DUE PROCESS WHEN THE FLORIDA COURT OF

APPEAL REFUSED TO GRANT HER A RESENTENCING AFTER THE

SAME FLORIDA COURT HAD GRANTED A WRIT OF PROHIBITION

AND DISQUALIFIED HER SENTENCING JUDGE DUE TO HIS JUDICIAL

BIAS IN HER SENTENCING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

TABLE OF CITATIONS

CASES

Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th DCA 2011). . . . . . . . . . . . . . . . . . 22

Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Akron v. Ragsdale, 61 Ohio App.2d 107, 399 N.E.2d 119 (1978) . . . . . . 13

Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cromartie v. State, 70 So. 3d 559 (Fla. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Davis v. State, 268 So. 3d 958, 967 (Fla. 1st DCA 2019) . . . . . . . . . . . . . . . . . . . 11

Dorszynski v. United States, 418 U.S. 424, 443, 41 L. Ed. 2d 855, 94 S. Ct. 3042

(1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Foy v. State, 818 So. 2d 704, 706 (Fla. 5th DCA 2002) . . . . . . . . . . . . . . . . . . . . 22

Fraser v. State, 201 So. 3d 847 (Fla. 4th DCA 2016). . . . . . . . . . . . . . . . . . . . . . . 12

Gonzalez v. Goldstein,

633 So.2d 1183, 1184 (Fla. 4th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Gonzalez v. State, 156 So.3d 550 (Fla. 3d DCA 2015) . . . . . . . . . . . . . . . . . . . . 19

Hayes v. State, 686 So. 2d 694 (Fla. 4 th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . 21

In re Guardianship of O.A.M., 124 So. 3d 1031, 1032 (Fla. 3d DCA 2013) . . . . 22

Inquiry Concerning a Judge (Kinsey), 842 So.2d 77 (Fla. 2003) . . . . . . . . . . . . . 17

N. Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.E.2d 162, fn.11 (1970)

iii

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Jasper, 984 P.2d 1185 (Colo. Ct. App. 1999) . . . . . . . . . . . . . . . . . . . . 13

Rinaldi v. United States, 434 U.S. 22, 30, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977) (per

curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Sandy v. Fifth Judicial Dist. Court, 113 Nev. 435 (Nevada 1997) . . . . . . . . . . . . 13

Stack v. Boyle, 342 U.S. 1, 5, 96 L. Ed. 3, 72 S. Ct. 1 (1951) . . . . . . . . . . . . . . . . 14

State ex rel. Shelton v. Sepe, 254 So.2d 12, 13 (Fla. 3d DCA 1971) . . . . . . . . . . 22

State v. Dixon, 217 So.3d 1115, 1123 (Fla. 3d DCA 2017) . . . . . . . . . . . . . . . . . 20

State v. Hern, 133 Haw. 59, 323 P.3d 1241 (Haw. Ct. App. 2013). . . . . . . . . . . . 13

State v. Jenkins, 15 Ohio St.3d 164, 222-223, 15 Ohio B. 311, 473 N.E.2d 264 (1984)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Loveless, 2010 UT 24, 232 P.3d 510 (Utah 2010) . . . . . . . . . . . . . . . . . . 13

State v. Sears, 208 W.Va. 700 (Sup. Ct. App. W.Va. 2000) . . . . . . . . . . . . . . . . . 13

State v. Switzer, 2010-Ohio-2473, 2010 Ohio App. LEXIS 2039 ** | 2010 WL

2206399 (Ohio Ct. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Torres v. State, 697 So.2d 175 (Fla. 4 th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . 22

Tyson v. State, 228 So. 3d 652 (Fla. 1st DCA 2017 . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Ammidown, 162 U.S. App. D.C. 28, 497 F.2d 615, 623 (D.C.Cir.

1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 16

United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975), cert. denied, 425 U.S.

971, 96 S. Ct. 2168, 48 L. Ed. 2d 795 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iv

United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 14 L.

Ed. 2d 700, 85 S. Ct. 1767 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Delegal, 678 F.2d 47, 50 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . 13

United States v. Hartford, 489 F.2d 652 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . 12

United States v. Lopez-Gonzales, 688 F.2d 1275, 1276-77 (9th Cir. 1982) . . . . . 14

United States v. Lovasco, 431 U.S. 783, 793-94, 52 L. Ed. 2d 752, 97 S. Ct. 2044

(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Maddox, 310 U.S. App. D.C. 379, 48 F.3d 555, 558 (D.C.Cir. 1995)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Miller, 722 F.2d 562, 566 (9th Cir. 1983) . . . . . . . . . . . . . . . 13, 16

United States v. Moore, 916 F.2d 1131, 1135-1136 (6th Cir. 1990). . . . . . . . . . . 13

United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995). . . . . . . . . . . . . . . . . . 12

Woolsey v. United States, 478 F.2d 139 (8th Cir. 1973). . . . . . . . . . . . . . . . . . . . . 12

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 921.0026(2)(a), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RULES

Fed. R. Crim. P. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Crim. P. 48(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fla. R. Crim. P. 3.171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

v

Rule 3.800(b) , Fla. R. Crim. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

CODE OF JUDICIAL CONDUCT

Canon 3B(10) , Florida Code of Judicial Conduct . . . . . . . . . . . . . . . . . . . . . 16, 17

Canon 3B(9), Florida Code of Judicial Conduct . . . . . . . . . . . . . . . . . . . . . . 16, 17

CONSTITUTIONAL PROVISIONS

Due Process Clause of the Fifth Amendment to the United States Constitution . 2,

7, 11, 12, 14, 19, 20, 22, 24

OTHER AUTHORITIES

Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1547

(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vi

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM

2021

INES COLLEEN ROBINSON, Petitioner

v.

FLORIDA, Respondent.

On Petition for a Writ of Certiorari to the

Florida Fifth District Court of Appeals

___________________________________

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, INES COLLEEN ROBINSON, respectfully prays that a writ of

certiorari be issued to review the decision of the Florida Fifth District Court of

Appeals in this case.

OPINION BELOW

The Florida Fifth District Court of Appeals decision, Robinson v. Florida, is

reported at 307 So. 3d 697. The decision, similar to over 90% of all Florida appellate

decisions, is simply a written order stating “affirmed” without any written opinion or

citation of authority. The decision entered December 8, 2020. Rehearing en banc was

denied by decision entered January 12, 2021. Copies of the two orders are included

1

in the attached appendix as Appendix A and Appendix B, respectively.

JURISDICTION

This Court has jurisdiction to review the decision of the Florida Fifth District

Court of Appeals pursuant to Title 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process Clause of the Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous

crime . . . without due process of law.

2

STATEMENT OF THE CASE

The Judge who presided over this case at the trial court level through and

including sentencing was Judge Howard M. Maltz. Counsel for Robinson had heard

rumors that Judge Maltz had a sentencing policy that he applied to all drug cases.

Robinson’s case was a drug case.1 Counsel emailed Attorney Norma Wendt, a

Division Chief in the Public Defender’s Office in St. Augustine, to ask whether she

knew what Judge Maltz’s policy was with respect to drug cases, and if she knew the

policy, whether she could provide an affidavit to counsel stating what the Judge’s

sentencing policy in drug cases was. July 23, 2019 Attorney Wendt emailed counsel

1

On November 15, 2017 Robinson was charged in a six-count information

alleging trespass, possession of methamphetamine with intent to sell, and four counts

of possession of a controlled substance in case number CF 17-1660. On January 4,

2018 a one count information was filed alleging a sale of methamphetamine within

1000 feet of a child care facility or school. R-195 Also on January 4, 2018 a one

count information was filed alleging a sale of hydromorphone within 1000 feet of a

child care facility of school.

After initially entering pleas of not guilty on all charges, on June 15, 2018 Robinson

entered no-contest open pleas to Count I of case CF 17-1901, sale of hydromorphone

within a thousand feet of a school; Count I of case CF 17-1899, sale of

methamphetamine; and Counts II and III of case CF 17-1660, possession of

methamphetamine with intent to sell or deliver and possession of hydromorphone.

R-137. The remaining charges were nolle prossed. Id.

On November 28, 2018 Robinson was sentenced to 15 years in the custody of the

department of corrections on Count I of CF 17-1901, Count II of CF 17-1660 and

Count I of CF 17-1899, concurrent to 5 years in the custody of the department of

corrections on Count III of CF 17-1660.

3

two items, a written Memorandum authored by Judge Maltz dated November 17,

2017 addressed to the Office of the State Attorney and the Office of the Public

Defender titled “Plea Bargains on Sale, Manufacture, Delivery and Trafficking in

Opiate Cases,” [Appendix C], and a newspaper article of an interview with Judge

Maltz published in the St. Augustine Record newspaper November 20, 2017 in which

Judge Maltz made statements consistent with those in the Plea Bargain Memorandum.

[Appendix D]

In the Memorandum Judge Maltz made the following statements:

Due to the heroin and opioid crisis plaguing this community, this Court

will,as a general rule, no longer accept plea bargains in cases in which

a Defendant is charged with the sale, manufacture, delivery or

trafficking in heroin or opioids. The President of the United States and

Florida's Governor Scott have recently declared the opioid epidemic

constitutes a public health emergency. The Florida Legislature is

addressing multiple proposals to deal with the opioid crisis, including

but not limited to limits of opioid prescriptions. While the executive and

legislative branches of our government have taken significant steps to

address this crisis, it is imperative the judicial branch also take certain

steps to assure public confidence in addressing this crisis. . . .

St. Johns County had approximately 2000 felony cases last year. That

number is only expected to increase with our rapidly increasing

population. Without plea bargaining a significant increase in the limited

resources of the judicial branch would be needed. Plea bargaining

typically takes place behind closed doors between prosecutors and

defense counsel addressing issues in a case outside of the public's view.

The public never sees or hears what went into the decision, but merely

sees the end result. However, there comes a time when efficiency must

take a backseat to transparency and the public's need to observe the

4

entire process. Such is the case when our society is facing the current

opioid crisis. Because this issue is such a problem in our society today,

the public must have the confidence that the criminal justice system is

doing its part to address this problem. Public confidence can be achieved

by sentences decided by evidence presented and arguments made in the

fully transparent setting of a public courtroom.

It is for this reason that I will generally no longer accept plea bargains

in cases in which a Defendant is charged with sale, manufacture,

delivery, or trafficking in heroin or opioids. Defendants facing such

charges may open plea to the court or proceed to trial. Upon an open

plea or conviction following trial, the Court will consider all legally

permissible aggravating and mitigating circumstances and impose the

sentence it deems appropriate. The Court acknowledges there may be

situations in which a negotiated plea bargain may be appropriate, for

example where a Defendant has provided substantial assistance to law

enforcement, in which case safety of those involved may dictate a

negotiated disposition. The Court will address those situations on a

case-by-case basis. The Court will continue to entertain negotiated plea

agreements for those defendants charged only with possession of heroin

or opioids.

[Appendix C, pp. 1-2, 5-6]

In the St. Augustine Record newspaper interview Judge Maltz was quoted as

saying:

With the nation, state and county reeling from the ongoing opioid

epidemic, a local circuit judge says he will no longer accept plea deals

in cases against people accused of selling the powerful drugs that

include heroin and fentanyl. . . .

Maltz rattled off a few statistics - some of which are included in a memo

from him about the decision, released Friday evening - about the number

of deaths throughout the state caused by the powerful drugs. . . .

And with Florida Gov. Rick Scott, and even President Donald Trump,

5

having declared the epidemic a health emergency, as well as the state

Legislature set to consider new laws to help with the problem, Maltz

said it was time for him to do something as well.

"While the executive and legislative branches of our government have

taken significant steps to address this crisis," his memo says, "it is

imperative the judicial branch also take certain steps to assure public

confidence in addressing this crisis."

Maltz said plea deals are an important part of the criminal justice system

as they help many cases clear busy courtrooms, but because they often

get made behind closed doors between the assistant state attorneys,

defense teams and defendants, very little is ever learned about the

circumstances of the alleged crimes.

"In the overwhelming majority, the judge goes along with it because he

or she doesn't know much about the case," he said.

Refusing to accept a deal in the sale or manufacturing cases will force

defendants either to go to trial or to enter an open plea to the court. If

they opt for a trial, guilt or innocence will be decided by a jury. If they

plead guilty in front of Maltz, each side will have the opportunity to

argue mitigating and aggravating factors before he imposes sentence.

. . .

His new rule, he said, will apply to any case involving the sale, delivery,

manufacturing or trafficking of any opioid but there will be room for

some exceptions, including for those who are cooperating with

authorities as informants.

It also won't apply to the addicts who find themselves caught up in the

epidemic.

Undersigned counsel for Robinson had been retained by Robinson to take over

her pending appeal of her plea and sentencing, the appeal being taken to the Florida

6

Fifth District Court of Appeal, Case Number 5D18-3978. The Fifth District Court of

Appeal entered an order permitting undersigned counsel to be substituted for the

Regional Conflict Counsel on June 14, 2019.

Counsel determined that under Florida’s rules of criminal procedure a Rule

3.800(b) motion was required to be filed at the lower tribunal before proceeding with

the direct appeal to first request the trial court to vacate the sentencing order based

on Judge Maltz’s bias. At the same time, counsel filed a motion to disqualify Judge

Maltz.

Robinson argued that Judge Maltz’s judicial bias expressed in his policy

memorandum and interview with the press required him to be disqualified from any

further proceedings and required the sentence he had imposed on Rohinson to be

vacated and for Robinson to be resentenced before a neutral and detached judicial

officer. Robinson argued that Judge Maltz’s policy and press interview violated Due

Process and various canons of judicial ethics and that it was obvious that the Judge

who created the Due Process sentencing error could not be the judge to rule on a

motion challenging the error.

Robinson was charged among other matters with sale of an opiate. Because of

the Court’s policy, Robinson’s prior trial counsel was not permitted to negotiate a

plea agreement (under Florida law, a negotiated plea agreement permits a sentence

7

below the otherwise binding state sentencing guidelines and so long as the plea

agreement is accepted by the court, binds the court to impose the sentence agreed to

in the plea agreement), but was required to either go to trial or plea Robinson guilty

without benefit of a plea agreement in which case under Florida sentencing law the

judge in his absolute discretion could impose any sentence up to the statutory

maximum. Judge Maltz’s policy deprived Robinson of the opportunity for a below

guideline sentence without having otherwise to establish a basis for a downward

departure.

Florida’s legislature created a policy whereby defendants such as Robinson

have a statutorily created opportunity to negotiate a reduced or specified sentence,

one which may be lower than after trial and lower than required by the Florida

Sentencing Guidelines.

The Judge’s policy forced Robinson to attempt to provide substantial assistance

as a cooperating informant, endangering herself and possibly others in an effort to get

around the Court’s policy of no plea agreements. Additionally, the Judge’s blanket

policy constituted an improper involvement of the Court in the plea bargaining

process.

As noted above, Robinson promptly filed a motion to disqualify Judge Maltz

on this basis within ten days of counsel and Robinson learning of the no plea

8

agreement policy. Judge Maltz promptly denied the motion to disqualify.

After Judge Maltz denied the motion to disqualify, Robinson filed the

anticipated Rule 3.800(b) sentencing correction motion asking that her sentence

imposed by Judge Maltz be vacated and that she be given a de novo resentencing

before an impartial judge.

Robinson also filed a Petition for Writ of Prohibition and Request for Stay of

Proceedings with the Florida Fifth District Court of Appeal in case number 19-2372

seeking to have Judge Maltz removed from Robinson's case based on his bias.

On August 28, 2019 the Fifth District Court of Appeal issued an opinion

granting Robinson's Petition for Writ of Prohibition removing Judge Maltz from

Robinson's case.

September 19, 2019, after being reassigned to a new judge, Robinson's

sentencing correction motion was denied leaving the sentence imposed by the judge

who had been disqualified for bias to stand.

Robinson then appealed that order to the Florida Fifth District Court of Appeal

which affirmed without any written opinion or explanation. This petition for

certiorari followed in a timely manner challenging that decision.

9

REASONS FOR GRANTING THE WRIT

ROBINSON WAS DENIED DUE PROCESS WHEN THE

FLORIDA COURT OF APPEAL REFUSED TO GRANT HER A

RESENTENCING AFTER THE SAME FLORIDA COURT HAD

GRANTED A WRIT OF PROHIBITION AND DISQUALIFIED

HER SENTENCING JUDGE DUE TO HIS JUDICIAL BIAS IN

HER SENTENCING.

Robinson was charged among other matters with sale of an opiate. Her plea

and sentencing judge had a blanket policy of no plea agreements (without substantial

assistance) in opiate cases. Because of the Court’s policy, Robinson’s counsel was

required to plea Robinson guilty without benefit of a plea agreement. This in turn

deprived Robinson of the opportunity for a below guideline sentence without having

otherwise to establish a basis for a downward departure.

Florida’s legislature created a policy whereby defendants such as Robinson

have a statutorily created opportunity to negotiate a reduced or specified sentence,

one which may be lower than after trial and lower than required by the Sentencing

Guidelines. As the Florida First District Court of Appeal recently noted in an en banc

decision:

The United States Supreme Court has "squarely held that a State may

encourage a guilty plea by offering substantial benefits in return for the

plea." Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed.

2d 466 (1978). These substantial benefits can include sentences lower

than what would be possible after trial, or even sentences lower than

would be required after trial. Id.; cf. also § 921.0026(2)(a) (authorizing

10

downward departure if it "results from a legitimate, uncoerced plea

bargain").

Davis v. State, 268 So. 3d 958, 967 (Fla. 1st DCA 2019).

It is contrary to public policy and violates Due Process for an individual judge

to predetermine that an entire class of defendants will not be permitted to even

attempt to negotiate such an agreement and if they do so, their agreement will not be

considered by the Court, not because of the facts of the case, but as a matter of

blanket policy by the Judge. Due Process prohibits judges from establishing blanket

policies which affect sentencing.

Upon learning of Judge Maltz’s policy, Robinson promptly filed a motion to

disqualify Judge Maltz. After he denied the disqalification motion, the Florida Fifth

District Court of Appeals granted a writ of prohibition removing him from the case.

The Judge’s policy forced Robinson to attempt to provide substantial assistance

as a cooperating informant, endangering herself and possibly others in an effort to get

around the Court’s policy of no plea agreements.

The judge’s policy further violated Due Process because it constituted an

improper involvement of the Court in the plea bargaining process. Although Courts

have the discretion, upon learning the terms of a plea agreement to reject a plea

agreement, it is a violation of Due Process for a Court to have a flat policy of

11

rejecting all plea agreements for an entire class of cases without knowing any of the

facts of the case or defendant and without exercising individualized discretion based

on the particular facts of the case and defendant before deciding whether to accept a

plea agreement or not.

The Court’s announcement in advance of Robinson’s case of a policy to apply

to all such cases violates fundamental Due Process. See, e.g., Cromartie v. State, 70

So. 3d 559 (Fla. 2011), Fraser v. State, 201 So. 3d 847 (Fla. 4th DCA 2016), Tyson

v. State, 228 So. 3d 652 (Fla. 1st DCA 2017), Woolsey v. United States, 478 F.2d 139

(8th Cir. 1973), and United States v. Hartford, 489 F.2d 652 (5th Cir. 1974).

In United States v. Robertson, 45 F.3d 1423 (10th Cir. 1995), the trial court

rejected a last minute plea agreement pursuant to a local rule that required all plea

negotiations be presented no later than 10 days prior to trial. The local ruled provided

that if a plea agreement was not presented timely, the defendant had the option to

either plead guilty to the indictment or go to trial. On appeal, the Tenth Circuit held

that the rejection of the plea agreement on that basis was an abuse of discretion.

Robertson 45 F.3d at 1438- 1439.The court in Robertson additionally held that "in

order to insure [courts] exercise sound judicial discretion . . . courts must set forth,

on the record, the prosecution's reasons for framing the bargain and the court's

justification for rejecting it." The Court in Robertson joined other federal courts that

12

require trial court to articulate their reasons for rejecting a plea agreement on the

record. See United States v. Moore, 916 F.2d 1131, 1135-1136 (6th Cir. 1990);

United States v. Miller, 722 F.2d 562, 566 (9th Cir. 1983); United States v. Delegal,

678 F.2d 47, 50 (7th Cir. 1982); United States v. Ammidown, 162 U.S. App. D.C. 28,

497 F.2d 615, 623 (D.C.Cir. 1973); United States v. Maddox, 310 U.S. App. D.C.

379, 48 F.3d 555, 558 (D.C.Cir. 1995).

Other States have found such a policy an abuse of discretion:

A defendant does not have an absolute right under the United States

Constitution to have the court accept his guilty plea. N. Carolina v.

Alford (1970), 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.E.2d 162, fn.11.

Rather, the decision to accept or reject a guilty plea is within the sound

discretion of the trial court. City of Akron v. Ragsdale (1978), 61 Ohio

App.2d 107, 399 N.E.2d 119, paragraph one of syllabus. Accordingly,

this court may not reverse a trial court's rejection of a plea agreement

absent an abuse of that discretion. State v. Jenkins (1984), 15 Ohio St.3d

164, 222-223, 15 Ohio B. 311, 473 N.E.2d 264. A trial court, however,

abuses its discretion when it rejects a plea agreement by relying on a

blanket policy rather than considering the facts and circumstances of the

particular case.

State v. Switzer, 2010-Ohio-2473, 2010 Ohio App. LEXIS 2039 ** | 2010 WL

2206399 (Ohio Ct. App. 2010). See also People v. Jasper, 984 P.2d 1185 (Colo. Ct.

App. 1999), State v. Hern, 133 Haw. 59, 323 P.3d 1241 (Haw. Ct. App. 2013), Sandy

v. Fifth Judicial Dist. Court, 113 Nev. 435 (Nevada 1997), State v. Loveless, 2010 UT

24, 232 P.3d 510 (Utah 2010), and State v. Sears, 208 W.Va. 700 (Sup. Ct. App.

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W.Va. 2000).

Judge Maltz’s policy violates Due Process and the Constitutional principle of

separation of powers. The Due Process concern is the lack of proper, individualized

exercise of discretion in sentencing:

The proper judicial role in the sentence bargaining process is not raised

by this case. Additionally, the extent of judicial discretion over

individual charge bargains is not at issue. Rather, we need only decide

whether a court may implement a categorical rule limiting the types of

charge bargains it will accept. In the case at bar, the district court

sought to preserve its sentencing power by refusing to accept any charge

bargains that left standing only one count of a multiple count indictment.

We hold that such categorical rules to govern charge bargaining are

impermissible. There are three bases for our holding.

First, as a general rule, the existence of discretion requires its exercise.

E.g., Dorszynski v. United States, 418 U.S. 424, 443, 41 L. Ed. 2d 855,

94 S. Ct. 3042 (1974). Categorical rules for setting bail are improper,

e.g., Stack v. Boyle, 342 U.S. 1, 5, 96 L. Ed. 3, 72 S. Ct. 1 (1951),

categorical rules for sentencing are improper, United States v.

Lopez-Gonzales, 688 F.2d 1275, 1276-77 (9th Cir. 1982), and we hold

that categorical rules limiting charge bargains are improper. Rule 11

permits district courts to assess the wisdom of plea bargains; this grant

of power carries with it the duty to exercise it responsibly. When a court

establishes a broad policy based on events unrelated to the individual

case before it, no discretion has been exercised. When dealing with

issues as fundamental as a person's freedom or imprisonment, our

judicial system can -- and must -- give every case independent

consideration.

Second, separation of powers requires that the judiciary remain

independent of executive affairs. See, e.g., United States v. Cox, 342

F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 14 L. Ed. 2d 700,

85 S. Ct. 1767 (1965). Charging decisions are generally within the

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prosecutor's exclusive domain. Prosecutors -- representatives of the

executive branch of the government -- are not mere servants of the

judiciary. The tradition of prosecutorial independence is recognized

both by case law, see, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364,

54 L. Ed. 2d 604, 98 S. Ct. 663 (1978), and the Federal Rules of

Criminal Procedure, see Fed. R. Crim. P. 48(a).

Although courts are free to accept or reject individual charge bargains,

they should avoid creating broad rules that limit traditional prosecutorial

independence. Generally, courts should be wary of second-guessing

prosecutorial choices. Courts do not know which charges are best

initiated at which time, United States v. Lovasco, 431 U.S. 783, 793-94,

52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977), which allocation of

prosecutorial resources is most efficient, United States v. Ammidown,

162 U.S. App. D.C. 28, 497 F.2d 615, 621 (D.C. Cir. 1973), or the

relative strengths of various cases and charges. See Vorenberg, Decent

Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1547 (1981).

Categorical limitations on charge bargains may force prosecutors to

bring charges they ordinarily would not, or to maintain charges they

would ordinarily dismiss as on-going investigations uncover more

information. Such rules thus constitute an impermissible intrusion into

what is properly the executive's exclusive domain.

Third, the Federal Rules themselves suggest that courts must show

proper respect for prosecutorial choices. Although the general rule

governing plea bargaining grants courts broad discretion, Fed. R. Crim.

P. 11, the specific rule governing prosecutorial charging decisions gives

courts only a limited supervisory power over such decisions. Fed. R.

Crim. P. 48(a). That rule requires courts to grant prosecutors leave to

dismiss charges unless a dismissal is "clearly contrary to manifest public

interest." Rinaldi v. United States, 434 U.S. 22, 30, 54 L. Ed. 2d 207, 98

S. Ct. 81 (1977) (per curiam). Many of the policies underlying Rule 48

are equally applicable to judicial consideration of charge bargains.

Although Rule 48 antedates Rule 11, we should not refuse its guidance

when we interpret the Federal Rules.

To assure that judicial discretion is exercised with due regard for

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prosecutorial independence, we hold that courts must review

individually every charge bargain placed before them. They must set

forth, on the record, both the prosecutor's reasons for framing the

bargain as he did and the court's justification for rejecting the bargain.

See United States v. Ammidown, 162 U.S. App. D.C. 28, 497 F.2d 615,

623 (D.C. Cir. 1973) (trial judge must state reasons on the record for

rejecting plea bargain).

By requiring that rejection of a charge bargain be accompanied by a

more complete trial court record, we uphold the separation of powers in

two ways. First, we guarantee that the trial court is aware of and gives

due deference to the prosecutorial choices reflected in a particular plea

bargain. Second, we facilitate appellate review of rejected plea bargains.

If the prosecutorial decisions reflected in specific charge bargains

deserve broad deference, the discretion of the trial court to reject these

bargains is fairly narrow. By requiring a more complete statement of the

trial court's basis for rejecting a bargain, we make it possible to apply

more careful appellate review. See United States v. Cowan, 524 F.2d

504, 513 (5th Cir. 1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2168, 48

L. Ed. 2d 795 (1976).

United States v. Miller, 722 F.2d 562, 564-66 (9th Cir. 1983).

The Court’s announcement in the Memorandum and the Court’s statements

made to a journalist for publication in advance of Robinson’s case violate Canon 3

of the Florida Code of Judicial Conduct. In particular Canon 3B(9) provides:

(9) A judge shall not, while a proceeding is pending or impending in any

court, make any public comment that might reasonably be expected to

affect its outcome or impair its fairness or make any nonpublic comment

that might substantially interfere with a fair trial or hearing.

and Canon 3B(10) provides:

(10) A judge shall not, with respect to parties or classes of parties, cases,

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controversies or issues likely to come before the court, make pledges,

promises or commitments that are inconsistent with the impartial

performance of the adjudicative duties of the office.

Impartial performance of judicial duties prohibits a judge from establishing a

judicial policy as to a class of cases and defendants without consideration on a case

by case basis what the appropriate decision should be. The comments and statements

in the Memorandum and newspaper article would cause a reasonable person to

believe that Judge Maltz would not accept a plea agreement in a opiate drug sale case

irrespective of the facts of the particular case or circumstances of the particular

defendant. The comments and statements made by Judge Maltz in the Memorandum

and newspaper article would cause a reasonable person to believe that if charged with

sale of an opiate, that Judge Maltz would interfere in the plea bargaining process by

prohibiting any plea agreement no matter what its terms were and no matter what the

circumstances of the case and defendant were. These comments and statements made

by Judge Maltz thereby violate Cannon 3B(9) and (10) of the Florida Code of Judicial

Conduct. See, e.g., Inquiry Concerning a Judge (Kinsey), 842 So.2d 77 (Fla. 2003).

Based on Judge Maltz’s policy memorandum and media interview, Judge Maltz

has preemptively rejected all negotiated pleas in a discreet class of cases rather than

exercising individualized discretion in determining whether to accept or reject a

negotiated plea. This policy objectively demonstrates a clear prejudice towards those

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accused of the class of crimes involving the of sale, delivery, and trafficking of heroin

and fentanyl. The demonstrated prejudice to those facing such an offense (and

Robinson is a member of that class of defendants) certainly and logically gives rise

to the fear they will ultimately be sentenced more harshly. It is clear that Robinson

was deprived of the opportunity for a downward departure based on the statutory

basis of an agreed sentence under a plea agreement constituting a legally valid

downward departure.

A judge’s public pronouncement indicating that he will reject all negotiated

plea agreements involving a category of charges without the exercise of

individualized discretion, is contrary to Fla. R. Crim. P. 3.171, which expressly states

“...the prosecuting attorney and the defense attorney, or the defendant when

representing himself or herself, are encouraged to discuss and to agree on pleas that

may be entered by a defendant.”

Pursuant to Rule 3.171(b)(1)(A), a prosecutor is encouraged to engage in plea

negotiations with the goal of the defendant entering a plea to a charged offense or to

a lesser or related offense. Once a prosecutor reaches an agreement with a defendant,

the prosecutor is required to provide the trial judge with “all the material facts known

to the attorney regarding the offense and the defendant’s background prior to

acceptance of a plea by the trial judge;” Fla. R. Crim. P. 3.171(b)(2)(A). “After an

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agreement on a plea has been reached, the trial judge may have made known to him

or her the agreement and reasons therefor prior to the acceptance of the plea.

Thereafter, the trial judge shall advise the parties whether other factors (unknown at

the time) may make his or her concurrence impossible.” Fla. R. Crim. P. 3.171(d).

Therefore, although the rules clearly indicate that a trial judge has discretion to reject

a negotiated plea agreement and there is no constitutional right to a judge accepting

a negotiated outcome in any case, the rules also clearly contemplate that a trial judge

be made aware of all the reasons for the plea agreement before deciding whether to

accept it. Only after being made aware of those reasons, and after considering the

specific facts of the case and the defendant’s personal history and characteristics, is

it proper for a trial judge to reject a plea agreement because the judge concludes that

the proposed resolution is not appropriate. See e.g. Gonzalez v. State, 156 So.3d 550

(Fla. 3d DCA 2015) (trial court properly rejected State’s plea offer where it explicitly

considered the defendant’s prior record, the specific facts of the case, and the State’s

ability to prove the case against the defendant).

Before a negotiated plea has even been raised by either party and without the

due process requirement that both sides have the opportunity to be heard, Judge Maltz

has established a policy which excludes a negotiated sentence. “Judicial comments

revealing a determination to rule a particular way prior to hearing any evidence or

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argument have been found to be sufficient grounds for disqualification." Thompson

v. State, 990 So.2d 482, 490 (Fla. 2008). "A trial judge's announced intention before

a scheduled hearing to make a specific ruling, regardless of any evidence or argument

to the contrary, is the paradigm of judicial bias and prejudice." Gonzalez v. Goldstein,

633 So.2d 1183, 1184 (Fla. 4th DCA 1994). Further, “[A] judge’s announced policy

or predisposition to rule in a particular manner is grounds for disqualification.” State

v. Dixon, 217 So.3d 1115, 1123 (Fla. 3d DCA 2017). “...a motion to disqualify a trial

judge may rely on the judge's announcement of his policy in other cases in order to

establish a well-founded fear that the judge will not be impartial in the case in which

the motion to disqualify was filed.” Id. at 1122.

Here, Judge Maltz has publicly stated his policy, through a media interview and

written memorandum of law, of refusing to accept all negotiated plea agreements

based on his independent research and strong personal feelings regarding offenses

involving the sale, delivery, manufacturing, or trafficking in opioids.

Further, Judge Maltz demonstrated a strong personal opinion and

predisposition of prejudice toward those facing accusations of distribution of opioids

without regard to the individualized facts of the case. This publicly-stated policy,

along with Judge Maltz’ corresponding personal opinion, denied Robinson a fair

sentencing and denied her fundamental Due Process.

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Judge Maltz made it clear that he will not exercise individualized judicial discretion.

Instead, he has preemptively rejected all negotiated plea bargains for anyone accused

of an offense that involves the sale, manufacture, delivery, or trafficking in heroin or

opioids. While a judge may form mental impressions and opinions, he may not

prejudge the case. Barnett, 727 So. 2d at 312 (granting writ of prohibition where trial

judge’s comments could be reasonably interpreted to show that judge had prejudged

the issue prior to the conclusion of the trial). Although, Judge Maltz has carved out

a limited exception for this public policy for those willing to provide substantial

assistance to law enforcement, as addressed below, this is an exception that proves

the rule.

The Trial Court has Publicly Expressed Strong Personal Feelings and

Opinions Regarding the Charged Offense.

Judge Maltz’s memorandum includes a salvo that leaves no room for

interpretation as to his personal prejudice in cases involving allegations present in the

instant case: “The heroin and opioid crisis is a cancer that has grown and metastasized

in the body politic of the United States.” Judge Maltz further explained: “The heroin

and opioid epidemic is one of the greatest health problems of our time.” “When a

public statement so made is such as to indicate bias of the judge it can operate to

disqualify him from hearing those matters...” See Hayes v. State, 686 So. 2d 694 (Fla.

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4 th DCA 1996) (citing State ex rel. Shelton v. Sepe, 254 So.2d 12, 13 (Fla. 3d DCA

1971)). Additionally, “every litigant is entitled to nothing less than the cold neutrality

of an impartial judge.” Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th DCA 2011).

Buttressed by his own independent research, Judge Maltz has developed and publicly

expressed his strong negative personal views on the subject. See In re Guardianship

of O.A.M., 124 So. 3d 1031, 1032 (Fla. 3d DCA 2013)(“A judge’s neutrality is

destroyed when the judge himself becomes part of the fact-gathering process”).

Unlike cases where a trial court has commented on the nature of a charged offense,

but has not implemented a policy regarding those offenses, Judge Maltz has done

both. Compare Foy v. State, 818 So. 2d 704, 706 (Fla. 5th DCA 2002) (judge’s

statements at sentencing) with Torres v. State, 697 So.2d 175 (Fla. 4 th DCA 1997)

(judge’s pre-announced policy). Judge Maltz has determined, based on his research

and strongly expressed personal views in cases involving accusations of sale,

manufacture, delivery, or trafficking in heroin or opioids, that he will reject all

negotiated plea agreements unless the defendant engages in substantial assistance.

This is a policy based on a predisposition of prejudice in a class of cases, not a mere

trial court observation, and denied Robinson Due Process at her sentencing.

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The Trial Court has Abandoned his Neutral Role and Become an

Advocate in a Discreet Category of Cases that Includes the Defendant’s

Charges.

In cases involving sale, manufacture, delivery, or trafficking in heroin or

opioids, Judge Maltz, in his zeal, has abandoned his role as a neutral arbitrator and

become an advocate. Judge Maltz has stated: “While the executive and legislative

branches of our government have taken significant steps to address this crisis, it is

imperative the judicial branch also take certain steps to assure confidence in

addressing this crisis.”

Additionally, Judge Maltz stated the following:

Plea bargaining typically takes place behind closed doors between

prosecutors and defense counsel addressing issues in a case outside of

the public’s view. The public never sees or hears what went into that

decision, but merely sees the end result. However, there comes a time

when efficiency must take a backseat to transparency and the public’s

need to observe the entire process. Such is the case when our society is

facing the current opioid crisis. Because this issue is such a problem in

our society today, the public must have confidence that the criminal

justice system is doing its part to address the problem.

Judge Maltz clearly cares deeply about this issue. However, by inserting

himself into the negotiation process and pre-ruling that such a process is precluded

because the trial court must “do its part,” Judge Maltz has become an advocate in

cases involving allegations of sale, manufacture, delivery, or trafficking in heroin or

opioids.

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Judge Maltz also states: “The Court acknowledges there may be situations in

which a negotiated plea bargain may be appropriate, for example where a Defendant

has provided substantial assistance to law enforcement, in which case safety of those

involved may dictate a negotiated disposition.” This exception proves Judge Maltz’s

rule. Not only has Judge Maltz required defendant’s cooperation with law

enforcement in order to have the ability to avail herself or himself of the opportunity

to enter into a negotiated plea (evidencing a clear pro-State bias), it is only in cases

where a defendant joins the cause and commits to the fight against opioids at great

risk to their own safety that Judge Maltz deems a defendant worthy of a resolution

available to every other defendant facing any criminal charge other than those

involving the sale, manufacture, delivery, or trafficking in heroin or opioids. This is

the definition of advocacy.

In light of Judge Maltz’s advocacy on this issue, Robinson was denied Due

Process throughout the litigation of this case and at sentencing.

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CONCLUSION

Based on the foregoing argument, Petitioner Robinson respectfully requests

this Honorable Court grant certiorari to decide the above question.

Respectfully submitted,

KENT & McFARLAND

ATTORNEYS AT LAW

WILLIAM MALLORY KENT

s/ William Mallory Kent

William Mallory Kent

Florida Bar No. 0260738

24 North Market Street. Suite 300

Jacksonville, Florida 32202

(904) 398-8000 Telephone Office

(904) 662-4419 Cell Phone

(904) 348-3124 Fax

kent@williamkent.com

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