Petition for Writ of Certiorari — Thomas J. Kelly, Petitioner v. University of Florida Board of Trustees, et al.

Supreme Court briefApr 17, 2023

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22-1046

No.

ORIGINAL

RLED~“

APR f 7 2023

IN THE

Supreme Court of the United States

THOMAS J. KELLY,

PETITIONER,

UNIVERSITY OF FLORIDA BOARD OF

TRUSTEES as the public body corporate and

instrumentality of the University of Florida and

JOHN HINES in his official capacity as

University of Florida Director of Public Records,

RESPONDENTS.

On Petition For A Writ of Certiorari To The

Florida First District Court of Appeal

PETITION FOR A WRIT OF CERTIORARI

Thomas J. Kelly, pro se

3108 Moss Drive

Cocoa, FL 32922

(321) 507-4254

tkelly0962@gmail.com

Dated: April 17, 2023

QUESTION PRESENTED

Whether when considering a petition for a writ of

mandamus regarding a public records request,

can a state civil, not criminal, circuit trial court

judge at any time be allowed to, without notice of

any kind, host a criminal prosecution in chambers

without any party present and therefrom, without

having held a prior hearing of any kind, without a

jury ever being convened and upon written uncross-examined affidavits and statements,

adjudicate the petitioner in that case, this same

Petitioner, to be guilty of an unspecified crime or

crimes as was per curiam affirmed without a

written opinion by a state appellate court when

such a state civil circuit trial court judge’s

adjudication of criminal guilt was accomplished

without the petitioner, the solely accused, ever

being charged with any crime pursuant to the

State of Florida’s criminal laws, rules and

procedures and with the statute of limitations on

each and every crime petitioner was accused of

having run eight months prior to the petitioner’s

public records request, thus violating the State of

Florida’s separation of powers doctrine, namely

Art. II, § 3, Fla. Const., and the petitioner’s due

process presumption of innocence rights and other

state and federal constitutional rights such as the

petitioner’s each and every U.S. Const, amend. VI

right.

••

PARTIES TO THE PROCEEDING

Petitioner is Thomas J. Kelly, pro se, and is the

Appellant and Petitioner for a writ of mandamus

in the state courts below.

Respondents are,

UNIVERSITY OF FLORIDA BOARD OF

TRUSTEES as the public body corporate and

instrumentality of THE UNIVERSITY OF

FLORIDA and JOHN HINES in his official

capacity as University of Florida Director of

Public Records,

and are the Appellees and Respondents in the

state courts below.

RULE 29.6 DISCLOSURE STATEMENT

Rule 29.6 does not apply.

RELATED PROCEEDINGS

Florida First District Court of Appeal:

Thomas J. Kelly, Appellant, v. UNIVERSITY OF

FLORIDA BOARD OF TRUSTEES as the public

body corporate and instrumentality of the

University of Florida and JOHN HINES in his

•••

111

official capacity as University of Florida Director

of Public Records, Appellees, Case No. 1D21-2937

Per curiam affirmed without a written opinion on

January 18, 2023, Docket Date January 18, 2023.

Motion For Clarification denied on February 24,

2023, Docket Date February 24, 2023.

Eighth Judicial Circuit of Florida, Alachua

County’s Circuit Civil Division W Court:

Thomas J. Kelly, Petitioner, v. UNIVERSITY OF

FLORIDA BOARD OF TRUSTEES as the public

body corporate and instrumentality of the

University of Florida and JOHN HINES in his

official capacity as University of Florida Director

of Public Records, Respondents, Case No. 01-2021CA-1190 Final judgment granted Respondents their

Marsy’s Law claim thereby denying Petitioner his

public records request then concluded by directing

the clerk to close the case, decided on September

1, 2021, Docket List File Date, September 1, 2021.

TABLE OF CONTENTS

Page

Question Presented

Parties To The Proceeding

Rule 29.6 Disclosure Statement

Related Proceedings

Table Of Contents

Table Of Appendices

Table Of Cited Authorities

Petition For A Writ Of Certiorari

Opinions Below

Jurisdiction

Constitutional And Statutory Provisions Involved

Statement Of The Case

I: Preliminary Statement

II: Incident In Question

Part A

Part B

Page

III: Procedural History

Reasons For Granting The Petition

I: Opening Statement......................

II: Facts That The Parties Agree On

III: Petitioner’s U.S. Constitution 14th

Amendment and 6th Amendment rights

A. State civil circuit trial court judge’s U.S.

Constitution 6th Amendment “criminal

prosecution”

B. U.S. Constitution 6th Amendment Case

Law

IV: Petitioner’s U.S. Constitution 14th

Amendment rights, the presumption of innocence

and Florida’s Separation of Powers doctrine

V: Florida’s “Marsy’s Law” for the accused

VI: The “crimeless, crime victim”

Conclusion

TABLE OF APPENDICES

Page

Rule 14(1) (i) (i) Appendix A - Florida First District Court of

Appeal, January 18, 2023 Per Curiam Affirmed

A-l

without a written opinion

Appendix B - Eighth Judicial Circuit of Florida,

Alachua County’s Circuit Civil Division W Court,

B-l

September 1, 2021 final judgment

Rule 14(1) (i) (v) Appendix C - Pertinent verbatim excerpts of cited

state and federal constitutional provisions and

C-l

statutes

Appendix D - The entirety of Amended Initial

Briefs “Argument I - Lower tribunal violated the

D-l

separation of powers doctrine.”

Appendix E - The entirety of Amended Initial

Briefs “Argument II - Appellant’s state and federal

constitutional rights and the statute of limitations

implications for the lower tribunal’s, “Although

Plaintiff was not prosecuted for his acts against

E-l

them,

••

Vll

Page

Appendix F - The entirety of Trial Court Reply’s

F-l

“A. Separation of Powers”

Rule 14(1) (i) (vi) Docket activity Appendix G - Trial Court’s Order To Show

Cause .............................................................

G-l

Appendix H - In Appellate Court: Motion For

Oral Argument ................................................ H-l

Appendix I — In Appellate Court: Motion For

Clarification without exhibits ......................... 1-1

Appendix J - In Appellate Court: Response To

J-l

Motion For Clarification

Excerpts from the pleadings below Appendix K - Entirety of Appellate Court Reply

K-l

Briefs “D: What The Parties Agree On.”

Appendix L - A Refutation Of Respondents’ July

L-l

14, 2021 Trial Court Response

Appendix M - Respondents argue, not the trial

court’s unspecified “acts”, but False Imprisonment

M-l

And Criminal Trespass

•••

Vlll

Page

Appendix N - Petitioner’s Presumption Of

Innocence ......................................................

N-l

Appendix O - Respondents’ U.S. Const, amend.

VI “criminal prosecution” pleading with citations

from the record below

0-1

Appendix P - More “crimeless, crime victim”

rationalities from Respondents ..................... P-1

TABLE OF CITED AUTHORITIES

Page

Federal Cases

Baldwin v. New York, 399 U.S. 66 (1970)

Coffin v. United States, 156 U.S. 432 (1895)

35-36

Gideon v. Wainwright, 372 U. S. 335 (1963)

27, 29

In re Oliver, 333 U.S. 257 (1948)

• • • ■

30-31, 31-32

Klopfer v. North Carolina, 386 U.S. 213 (1967)

................................................................... 26-28,29

Pointer v. Texas, 380 U. S. 400 (1965)

26, 27

Florida Cases

Anderson v. State, 291 So.3d 531 (Fla. Sup Ct.

43, 44, D-l, D-2, E-8, F-12

2020)

Barnett v. Antonacci, 122 So.3d 400 (Fla.App 4

D-l, D-3, D-4, F-7, F-12

Dist. 2013)

Florida Police Benevolent Association, Inc., v. City

of Tallahassee, 314 So.3d 796 (Fla. 1st DCA 2021)

........................ :.......37, B-3, F-17,1-3,1-6,1-8, J-2

State v. Waters, 436 So. 2d 66, (Fla. Sup Ct. 1983)

Page

N-2

Constitutional Provisions And Statutes

Federal Constitution U.S. Constitution 5th Amendment

44, E-6

U.S. Constitution 6th Amendment • • • . i, 2, 4, 18,

19, 21, 24, 25, 26, 27, 28, 29, C-l, E-l, E-6, E-7, E8,

U.S. Constitution 14th Amendment

2, 4, 18,

21, 26, 27, 29, 31, 32, 34, 37, 40, C-l to C-2

Federal Statutes 28 U.S.C. § 1257(a)

2, C-2

State of California Constitution California Article I, Section 28(b)

State of Florida Constitution Florida Constitution Article I, Section 9 - Due

Process

. 34, C-2, E-l, E-5, E-6

Page

Florida Constitution Article I, Section 15(a) 34, C-3, E-l,

Prosecution For Crime

E-6, E-8

Florida Constitution Article I, Section 16 Rights of

38, D-4, F-7, J-2

accused and of victims

Florida Constitution Article I, Section 16(a)

18, 21, 38, 40, C-3 to C-4

Florida Constitution Article I, Section 16(b)

13, 37, 38, 40, 46, B-2, G-2,1-3, L-4

Florida Constitution Article I, Section 16(e) • • • •

D-5, E-5, F-l, H-3,1-2,1-4,1-5, J-2, L-l

Florida Constitution Article I, Section 24(a) 34, C-4, E-l,

Access to public records

E-5, E-6

Florida Constitution Article II, Section 3

2, 4, 16, 20, 33, C-4 to C-5, D-l, D-2, F-6, F-7, F-9,

F-ll, F-12, F-13

State of Florida Statutes Fla. Stat. 787.02 False Imprisonment ............ 21,

23, 29, D-3, E-2, E-3, F-10, F-ll, 1-6, M-2, N-2

••

Xll

Page

Fla. Stat. 810.08 Trespass In Structure

29, E-3, F-ll, F-16,1-6, M-2

Fla. Stat. 119.07(l)(f) Regarding Public Records

Fla. Stat. 775.15(2) Criminal Statute of

Limitations ...........................................

34, K2

PETITION FOR A WRIT OF CERTIORARI

Thomas J. Kelly respectfully petitions for a writ

of certiorari to review the judgment of the Florida

First District Court of Appeal who per curiam

affirmed without a written opinion a final

judgment by an Eighth Judicial Circuit of Florida

civil circuit trial court.

OPINIONS BELOW

The Florida First District Court of Appeal on

January 18, 2023 per curiam affirmed without a

written opinion a final judgment by an Eighth

Judicial Circuit of Florida civil circuit trial court,

Appendix A.

The final judgment in question by the Eighth

Judicial Circuit of Florida, Alachua County’s

Circuit Civil Division W Court was issued on

September 1, 2021, Appendix B.

JURISDICTION

The Florida First District Court of Appeal

issued its final opinion on January 18, 2023. The

jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth and Fourteenth Amendments to the

United States Constitution are involved in this case

as well as 28 U.S.C. § 1257(a) and the text to their

pertinent sections can be found at Appendix C.

STATEMENT OF THE CASE

I: Preliminary Statement

Citations to the documents in the trial court

record have been made using the abbreviation “R”

followed by a colon and the corresponding page

number(s) all within parenthesis.

To begin to satisfy this Court’s Rule 14(l)(g)(i),

Petitioner states that with the State of Florida’s

separation of powers doctrine, Art. II, § 3, Fla.

Const., entirely in Petitioner’s favor, see the Trial

Court Reply’s “A. Separation of Powers” in its

entirety at Appendix F, Petitioner had no reason to

expect that a civil court, namely the Alachua

County’s Circuit Civil Division W court within the

Eighth Judicial Circuit of Florida, when

considering a petition for a writ of mandamus

regarding a public record request in light of

Respondents’ Marsy’s Law claim would in the

course of such consideration, conduct a U.S. Const.

amend. VI “criminal proceeding” and therefrom

adjudicate Petitioner guilty of an

unspecified criminal offense, Petitioner’s “acts

against them”, Appendix B, to reach its final

judgment. Furthermore, the final judgment

ordered the clerk to close the case, consequently,

Petitioner’s first opportunity to raise a federal

question and fight against this criminal

adjudication and for his reputation came on

appeal and he did so fight such as at the ending of

his Amended Initial Briefs Conclusion,

“Appellant went to a civil court with a

mandamus petition for public records and

ended up being adjudicated a Marsy’s Law

perpetrator by an un-juried, in-chambers,

single-judge civil circuit court and

therefrom denied any mandamus relief

whatsoever and therefrom declared a

convicted criminal with BURNEY and

AUSTIN, as stated in the final order, his

“crime victims” without a single hearing,

evidentiary or otherwise, or conference of

any kind and upon un-cross-examined

written accusations. Appellant has a civic

duty, at first instance before a court of law,

to refute such adjudicated criminal guilt, to

substantiate his innocence and to defend

his reputation, constitutional public records

access rights and other rights from such an

outrageous abuse of judicial power from the

lower tribunal, a civil court.”,

and at his Amended Initial Briefs “Argument IIAppellant’s state and federal constitutional rights

and the statute of limitations implications for the

lower tribunal’s, “Although Plaintiff was not

prosecuted for his acts against them,

for its

entirety see Appendix E showing Petitioner’s U.S.

Const, amend. VI claims and state constitutional

claims, and also see the entirety of the Amended

Initial Brief s “Argument I - Lower tribunal

violated the separation of powers doctrine.” at

Appendix D which discusses the above cited State

of Florida’s separation of powers doctrine, Art. II, §

3, Fla. Const., which reaches Petitioner’s federal

rights, as do all of his federal and state

constitutional claims, via the U.S. Const, amend.

XIV due process clause, see Appendix C.

Petitioner also closed his appellate court Reply

Brief with,

“If the lower tribunal’s final order is

affirmed, not only will it obliterate the

separation of powers doctrine, nullify the

criminal statute of limitations and redefine

double jeopardy and the presumption of

innocence, it will also bring a reign of terror

upon the falsely accused who seek to

exonerate themselves by exercising their

Florida constitutional right to lawfully

request then receive public records.

The OTSC directed Appellees to

substantiate their Marsy’s Law claim,

“include the factual and legal basis and

address all issues contained in the

Petition.”, not for Appellant to subsequently

submit any further “verified” or Appelleeapproved “rebutting” evidence. As the

record and briefs show, Appellant is the

only one ever accused, he was never

charged and the statute of limitations has

run. This Court must reverse or remand as

pleaded by Appellant in his briefs.”, “OTSC”

standing for the Order To Show Cause

issued by the state civil circuit trial court,

Appendix G.

II: Incident In Question

Part A

Having set up a protest table at the University

of Florida’s College of Law for two consecutive

days during the Fall 2016 semester regarding a

Jim Crow-era University of Florida desegregation

issue, Petitioner, on April 9, 2017, informed the

University of Florida’s African American Studies

Program by email that he had documented

research which disproves their publicly promoted

version of how the University of Florida, a

southern public university, became desegregated

during the 1940’s and 1950’s and that he would be

on campus sometime that week with his research.

Petitioner received no response to his email,

though later learned, via a University of Florida

(hereinafter may be referred to as “UF’) public

records request, how it was internally handled by

UF’s African American Studies Program. On April

12, 2017, Petitioner arrived on campus with his

research documents and began his protest on the

lawn in front of the main campus library. The

next day before continuing his protest, Petitioner

stopped by UF’s African American Studies

Program’s offices in Walker Hall to introduce

himself in person, since none of the professors

whom he emailed came to his protest table the

previous day even though the main campus

library front lawn is nearly directly across the

street from Walker Hall, and to discuss and offer

them a copy of the research he had mentioned in

his April 9, 2017 email. UF’s African American

Studies Program’s office manager Sharon Burney

(hereinafter may be referred to as “BURNEY’)

and UF’s African American Studies Program

Director Professor Sharon Austin (hereinafter

may be referred to as “AUSTIN”) were the only

persons at or around the main office at the time

and these are the two persons whose public record

employee files Petitioner is seeking in this case.

During the approximate 20 minute colloquy at

their main office regarding Petitioner’s research

on how UF became desegregated with mostly just

Petitioner and AUSTIN in discussion, BURNEY

left the colloquy, Petitioner at the time presumed

it was a silent form of protest indicating that she

did not agree with his research and views,

however, unbeknownst to Petitioner, BURNEY s

purpose, in fact, was to go upstairs to find a thirdparty to call 911 on Petitioner, the two eventual

third-party 911 calls from non-witness UF

Professor Sophia Acord are preserved in their

entirety on an audio CD a copy of which is on both

the trial and appellate court record below and

which Petitioner believes were critical pieces of

evidence in later convincing the UF Police

Department (hereinafter may be referred to as

“UFPD”), the State of Florida police agency who

responded to the 911 calls, to rescind his trespass

warning.

When the two dispatched UFPD police officers

arrived on the scene, BURNEY had a few minutes

earlier returned to her main office desk and

Petitioner had just a few moments earlier

voluntarily left this main office and was in the

lobby when the two UFPD police officers first

made contact with him.1 Upon determining via

1 During the second UFPD investigation, AUSTIN

persevered in trying to get the two responding UFPD police

officers to change their testimony to state that Petitioner

was at the African American Studies Program office in

Petitioner’s Florida driver’s license that Petitioner

was the person, i.e. “Tom Kelly”, they were

interested in, Petitioner was told by one of the

UFPD police officers that he was under arrest for

false imprisonment, assault and criminal

trespassing and that they were going to

investigate any other criminal offences he may

have committed. Though stunned, Petitioner

nevertheless fully cooperated with their

investigation which lasted about 35 minutes and

occurred with all witnesses present and with all

the accused present, namely BURNEY, AUSTIN

and Petitioner, the solely accused.

After the UFPD’s on-the-scene investigation

concluded, Petitioner, the solely accused, was not

charged with any crime and was allowed to leave

campus unescorted and without having to have

signed anything, but was issued a trespass

warning which was later rescinded by UFPD upon

a 48-page, not counting exhibits, petition from

this same Petitioner that also included the above

two 911 calls on an audio CD.

After driving back home that day to Cocoa,

Florida, about a three hour drive from the

Walker Hall, not in the lobby, when they first made contact

with him. AUSTIN’S attempt is documented in the record

below in a formerly confidential UFPD investigative report,

(R.-134-135). Petitioner could have gone to prison for five

years.

University of Florida, Petitioner would a few days

later on Monday, April 17, 2017, begin receiving

racist hate phone calls regarding his April 13,

2017 UF Walker Hall incident and was to soon

discover that on that same day, April 17, his

UFPD photograph taken at Walker Hall on April

13, 2017 was on a front-page, top of the fold article

titled, “Man trespassed after confronting UF

faculty”2, in the printed version of the UF student

newspaper, the Independent Florida Alligator.

Furthermore, Petitioner also soon discovered that

UF’s president, W. Kent Fuchs, had emailed every

faculty member, student and staff member

regarding Petitioner’s April 13, 2017 Walker Hall

incident and that UF President Fuchs’ social

media accounts were hosting discussions about

this incident, all or nearly all comments hostile

towards Petitioner, the “hater” and “racist”.

After several email attempts and two demand

letters to get both UF and the UF student

newspaper to retract their statements against

Petitioner, Petitioner, a few days or so before the

statute of limitations would have run on the

matter, filed two defamation lawsuits pro se, one

2 Early on the Independent Florida Alligator’s website

version, and therefore the more permanent and available

version, had its title changed to the more racially

provocative, “Man trespassed from UF after confronting

black faculty members”.

against UF, Case No.: 01-2019-CA-1260 at the

Eighth Judicial Circuit of Florida, and the other

against the UF student newspaper, Case No.: 012019-CA-1259 at the same court. Petitioner won

both lawsuits on settlement with UF and the UF

student newspaper agreeing to all of Petitioner’s

filed defamatory demands, namely for UF to take

down their official spokesperson’s April 14, 2017

statement titled, “Man Banned From Campus After

Racial Incident”, on their ufl.edu website and be a

party to, not a release, but a settlement agreement

signed by all parties and for the UF student

newspaper to publish on their website an April 17,

2017 article retraction and an April 18, 2017

editorial retraction fully satisfactory to Petitioner.

After three separate UFPD criminal

investigations into the April 13, 2017 UF Walker

Hall incident, the last one lasting a full month,

Petitioner was never charged with any crime

pursuant to the State of Florida’s criminal laws,

rules and procedures and in April 2020, eight

months prior to Petitioner’s public records request,

the statute of limitations, pursuant to the State of

Florida’s criminal laws, rules and procedures, had

run of each and every crime Petitioner was accused

of.

Part B

In 2018 Petitioner learned that as a

consequence to a pair of UF Jim Crow-era court

cases, the 1949-1958 state and federal Virgil D.

Hawkins cases which Petitioner had done much

research on and which many Floridians

incorrectly believe desegregated the public

universities in Florida, Florida’s other flagship

public university, Florida State University

(hereinafter may be referred to as “FSU”) in

Tallahassee, the state’s capital, had decided to try

to persuade the Florida Legislature during the

upcoming 2019 session to let them rename their

main law school building, B. K. Roberts Hall,

because in FSU’s view B. K. Roberts while on the

Florida Supreme Court during the 1940’s and

1950’s had written majority court opinions that

confounded and illegally prohibited for as long as

he possibly could the desegregation of Florida’s

public universities even after the Sweatt and

Brown cases had been decided.

Indeed there were bills filed in the Florida

Legislature for four consecutive sessions, 20192022, trying to accomplish this B. K. Roberts Hall

name change, but they all failed, and for the

current session it appears that no such bill has

been filed. Petitioner was the sole voice from

either the public or from UF or FSU who opposed

this name change and he spoke before not only the

Florida Legislature on this matter but also before

the FSU Board of Trustees during this 2019-2022

time period. However, it was while hosting a few

protests at FSU’s College of Law, protests similar

to the ones he had held at UF’s campus, that

Petitioner was told by several sets of FSU law

students, during 2019-2020, that they had been

alerted that Petitioner was a racist and a

troublemaker and that regardless of the veracity

of his research Petitioner was not welcomed and

was to be avoided and discouraged, their remarks

and gestures mixed with much ridicule and

bullying, although as at UF quite a few students

showed inquisitive interest and requested copies

of Petitioner’s handouts.

Wondering who had convinced these FSU law

students that Petitioner was a racist and a clever

troublemaker prompted Petitioner on December 3,

2020, prior to the 2021 Florida Legislative session,

to file a public records request for the employee

files of AUSTIN and BURNEY, Petitioner’s most

virulent UF critics, which developed into the legal

issue now before this Court.

Petitioner’s hunch was proven true by a

subsequent public records request, his July 2022

FSU public records request, a request whose

records were, unlike with UF in this case,

promptly provided by FSU, which revealed that

AUSTIN was indeed exchanging derogatory

emails with professors at FSU and UF and with a

member of the Florida Bar such collective emails

laden with racist and other innuendo against

Petitioner and falsely claiming, for example, that

Petitioner had been criminally trespassed from

UF, had numerous times threatened that member

of the Florida Bar and that his UF trespass

warning rescindment petition had been denied.

Petitioner included these emails and their

ramifications in his February 2, 2023 appellate

court Motion for Clarification, Appendix I though

without these email or other exhibits.

Ill: Procedural History

On December 3, 2020 Petitioner made a public

records request with Respondents, a state public

university in Florida, for AUSTIN’S and

BURNEY’S employee records and on March 4,

2021 the Respondents denied this public records

request citing the Florida Constitution’s Marsy’s

Law, Art. I, § 16(b), Fla. Const., which prohibits

the disclosure of information regarding victims of

crime, however, the Respondents did not provide

any specific information about the nature of the

crime such as what was the crime, when and

where did it occur, who were the victims and who

were the perpetrators. Consequently, Petitioner

tried to obtain this information from Respondents

with two entitling Florida Statutes 119.07(l)(f)

demands for such particularity of information, yet

all to no avail, (R:16-17, 28).

With no alternatives other than to quit,

Petitioner on April 29, 2021, with the scant

information he had been provided and not even

knowing if he was the claimed Marsy’s Law

criminal perpetrator, brought a petition for a writ

of mandamus to a state civil circuit trial court in

the Eighth Judicial Circuit of Florida regarding

his public records request denial and after the

state civil circuit trial court on June 3, 2021

ordered the Respondents to show cause for

denying Petitioner his public records,

Respondents on July 14, 2021 filed their Show

Cause Response then on August 5, 2021 Petitioner

filed his Reply and on September 1, 2021, that

state civil, not criminal, circuit trial court,

adjudicated Petitioner guilty of an unspecified

criminal offense, “[Petitioner’s] acts against

[BURNEY and AUSTIN]”, which caused

BURNEY and AUSTIN to be his “crime victims”,

thereby granting Respondents their Marsy’s Law

“crime victim” exemption and denying Petitioner

his requested public records, Appendix B.

On September 28, 2021, Petitioner filed a timely

appeal with the Florida First District Court of

Appeals, then filed his Court-Ordered Amended

Initial Brief on December 19, 2021. Respondents

filed their Answer Brief on March 3, 2022 and

Petitioner filed his Reply Brief on April 16, 2022

then on May 2, 2022 Petitioner filed a Motion For

Oral Argument, Appendix H, which Respondents

did not respond to, then the next week on May 13,

2022, the motion was denied. Finally, on January

18, 2023 the Florida First District Court of

Appeals per curiam affirmed without a written

opinion, Appendix A, though afterwards there was

one last party action in the case, Petitioner’s

February 2, 2023 Motion For Clarification,

Appendix I, since neither the trial court nor the

appellate court’s per curiam affirmation without a

written opinion revealed what specific and

requisite crime it predicated its Marsy’s Law

“crime victim” exemption upon, then on February

17, 2023 the Respondents’ filed their adverse

response to the motion, Appendix J, and on

February 24, 2024 the motion was denied.

Petitioner seeks review of the Florida First

District Court of Appeals January 18, 2023 per

curiam affirmed without a written opinion final

judgment and has timely filed this Petition For A

Writ Of Certiorari.

REASONS FOR GRANTING THE PETITION

I: Opening Statement

Petitioner made his public records request on

December 3, 2020 and eight months earlier, in

April 2020, the statute of limitations had run on

each and every crime Petitioner had been merely

accused of but was never charged with pursuant

to the State of Florida’s criminal laws, rules and

procedures, thus by determining in her final

judgment on September 1, 2021, Appendix B, that

Petitioner’s unspecified “acts” caused AUSTIN

and BURNEY to be “crime victims”,

“Although Plaintiff was not prosecuted for

his acts against them, there is no

requirement that a criminal proceeding

must have been initiated against Plaintiff

as a condition precedent to affording these

crime victims their constitutional rights.”,

the state civil circuit trial judge in violation of

Petitioner’s own “constitutional rights”, such as

his post-statute of limitations perpetual

presumption of innocence right, ignored the State

of Florida’s separation of powers doctrine, Art. II,

§ 3, Fla. Const., when she did indeed, absent a

prior “criminal proceeding” as noted in her order,

choose to remedy that circumstance by conducting

a criminal prosecution all on her own, which

happened to be in chambers without any party

present and which occurred without notice of any

kind, without having held a previous hearing of

any kind and without having convened a jury and

whose deliberations relied upon written, un-crossexamined statements and affidavits, wherefrom

Petitioner, in absentia waiting for a ruling on the

civil-court petition he filed, was criminally

accused upon AUSTIN9s and BURNEY9s April

2017 signed UFPD statements as well as the

pairs9 July 2021 affidavits, then civilly charged

with two crimes upon the July 2021 “prima facie99

affidavit3 of Eighth Judicial Circuit of Florida

State Attorney Brian S. Kramer (hereinafter may

be referred to as “KRAMER”), who first came into

that office in January 2021 after the statute of

limitations had run, tried in chambers and then

adjudicated guilty of an unspecified criminal

offense, such post-statute of limitations conviction

serving, as determined in the state civil circuit

trial court’s same final judgment, as the requisite

crime necessary to uphold Respondents Marsy s

Law “crime victim” pleadings.

Finally, in adjudicating so, the state civil circuit

trial court judge, an agent of the state, as well as

Petitioner’s non-witness accusers, namely both

Respondents and a sitting state attorney,

KRAMER, who are all likewise agents of the

state, did indeed collectively violate each and

3 See especially Paragraph 10 from KRAMER’s affidavit,

[Petitioner's] actions during the Incident establish a prima

facie case for the crimes of both [false imprisonment] and

[criminal trespassing].", Appendix M.

every one of Petitioner’s U.S. Const, amend. VI

rights and some of his various other constitutional

rights both state and federal.

Petitioner complained of this repeatedly in the

record below.

II: Facts That The Parties Agree On

Petitioner’s Appellate Court Reply Brief included

the following uncontested list of what the parties

factually agree upon and includes itemized

citations from the record below, see Appendix K “D: What The Parties Agree On”.

This list on its own should have vindicated

Petitioner’s cause, yet now before this Court,

Petitioner not only asserts the state and federal

constitutional rights and other rights he asserted

before the state civil circuit trial and appellate

courts, the most important rights being his each

and every U.S. Const, amend. VI right, but

Petitioner now in federal court also asserts his U.S.

Const, amend. XIV due process rights.

Ill: Petitioner’s U.S. Constitution 14th

Amendment and 6th Amendment rights

A. State civil circuit trial court judge’s

U.S. Constitution 6th Amendment

“criminal prosecution” In June 2021, the state civil circuit trial court

judge issued an “Order To Show Cause” directing

the Respondents to substantiate their Marsy’s

Law claim, not with a hearing or with in-court

testimony which could be cross-examined or any

other method of fact-finding borrowed from

criminal procedure but rather, merely in writing,

“1.Respondents shall have thirty (30) days

in which to show cause in writing why the

relief Petitioner requests should not be

granted. Such response should include the

factual and legal basis and address all

issues contained in the Petition.”, Appendix

The above, Appendix K - “D: What The Parties

Agree On.”, shows irrefutably from the record

below that Petitioner, the solely accused, was

never charged pursuant to the State of Florida’s

criminal laws, rules and procedures, shows that

his trespass warning was rescinded and that eight

months prior to his public records request the

statute of limitations had run of each and every

crime he had been merely accused of.

After Respondents filed their Response on July

14, 2021, Petitioner, the solely accused, on August

5, 2021 filed his Trial Court Reply which opened

with a direct refutation of the Response by laying

out the requirements for a Marsy’s Law

exemption, asserting the State of Florida’s

separation of powers doctrine and emphasizing

that the trial court’s “Order To Show Cause”,

Appendix G, placed the burden upon the

Respondents, without any expectations from or

demands upon the Petitioner, to substantiate

their Marsy’s Law “crime victim” claim, see

Appendix L - “A Refutation Of Respondents’ July

14, 2021 Trial Court Response” which contains

excerpts from both the Trial Court Reply and

Appellate Court Reply.

With the record below all in Petitioner’s Art. II,

§ 3, Fla. Const., the separation of powers doctrine,

favor, it became quite clear that Respondents’ only

hope was to lure the state civil circuit trial court

judge into staging a criminal prosecution

wherefrom the Respondents could be granted

their requisite Marsy’s Law “crime victim” which

the State of Florida’s criminal laws, rules and

procedures had determined did not exist,

“Despite the “bedrock” doctrine of the

separation of powers, Respondents

throughout their RESPONSE are trying to

lure the Court into usurping the powers of

the executive branch of the government

who determined that no crime was

committed by Petitioner at UFs Walker

Hall on April 13, 2017 and, moreover,

Respondents are trying to lure the Court

into making such a determination today

even after the statute of limitations has run

on the most severe, and therefore all, of the

alleged crimes, namely False

Imprisonment, F.S. 787.02, which is a third

degree felony with a statute of limitations

of three years.”, from the Trial Court

Reply’s Page 8, (R:312).

Such procedural maneuverings directly

implicate Petitioner’s U.S. Const, amend. VI

rights which reach him via the U.S. Const, amend.

XIV due process clause and here is the evidence,

emphasis added, showing that the Respondents

quite openly lured then successfully persuaded

the state civil circuit trial court judge into

conducting a U.S. Const, amend. VI “criminal

prosecution” which included the weighing of

evidence regarding allegations of crime followed

by the civil court’s adjudication of criminal guilt,

“THIS CAUSE came before the Court for

review upon the Petition for Writ of

Mandamus filed by Plaintiff, and the Court

having reviewed the specifics of said

petition, Defendants' Response to the Court's

Order to Show Cause, the Plaintiff’s Reply to

Defendant's Response, and the supporting

affidavits, audio recordings, and other

documents submitted in support or

objection to the petition, the Court

FINDS:

opening to the state civil circuit

trial court’s final judgment, Appendix B,

“Subsequently, on April 29, 2021, Appellant

filed his unverified Petition for a Writ of

Mandamus (the “Petition”). [R. 7-88].”, from

the Answer Briefs Page 2,

“On July 13, 2021, Appellees filed their

Response to the Order to Show Cause (the

“Show Cause Response”), which included the

Affidavits of Dr. Sharon Austin, Ms. Sharon

Burney, and the State Attorney for the

Eighth Judicial Circuit, Brian S. Kramer. [R.

105-230]. In the Show Cause Response,

Appellees detailed why the requested records

were protected from disclosure under

Marsy’s Law and why mandamus was

inappropriate under the circumstances. [R.

105-230]. The vast majority of the facts

detailed in the Show Cause Response

were set forth in the Affidavits of Dr. Austin

and Ms. Burney

(collectively, the “Austin/Burney

Affidavits”).

The Austin/Burney Affidavits recount the

events of April 13, 2017, and the resulting

psychological and/or physiological effects of

those events. [R. 150-160]. The events of

April 13, 2017, as sworn to by Dr. Austin

and Ms. Burney, are as follows:

“As for the toll that the events of April 13,

2017 had on her, Dr. Austin swore as

follows:

“Ms. Burney similarly testified in her

Affidavit that • • •

“In his Affidavit, State Attorney Kramer

swore: • • • 10. Based on my experience,

training and review of records mentioned

above, I have concluded that Petitioner

Kelly’s actions during the Incident establish

a prima facie case for the crimes of both

False Imprisonment, Section 787.02,

Florida Statutes and Trespass of an

Occupied Structure, Section

810.08(2)(b), Florida Statutes.”

and

“On August 5, 2021, Appellant filed his

unverified Reply to Appellees’ Show

Cause Response. [R. 246-383]. Notably,

Appellant did not file any affidavits or

present any other evidence to the trial

court rebutting or disputing the events

described in the Austin/Burney Affidavits.

After reviewing the submissions of the

parties, including the unrebutted

affidavits submitted by Appellees, the trial

court entered an Order denying the

Petition. [R. 384-86]. Specifically, the trial

court held:

(5) Based on the record before this court, • • •

(6) Under the facts and circumstances of

this case, ... [R. 384-85].

This appeal followed.”, all from the

Answer’s Pages 2-8,

with more such U.S. Const, amend. VI

“criminal prosecution” pleading from

Respondents listed at Appendix 0.

Thus as collectively shown by the civil trial

court’s “Order To Show Cause”, Appendix G,

Respondents’ preceding appellate court especially

but also trial court pleadings, the civil trial court’s

final judgment itself, Appendix B, and the case’s

docket, the state civil circuit trial court judge

while in-chambers, without any party present,

without notice of any kind regarding her

procedural intentions or any other intentions,

without having held a prior hearing of any kind

and without having convened a jury did indeed

render her final judgment based upon one-sided,

criminal accusations, i.e. written, un-crossexamined affidavits and statements deemed

“unrebutted” criminal evidence by Respondents,

upon which that court consequently ruled in its

final judgment, Appendix B, that Petitioner’s acts,

“his acts against them”, caused BURNEY and

AUSTIN to become Petitioner’s “crime victims”,

proof positive from both the Respondents

themselves and the state civil circuit trial court

that a U.S. Const, amend. VI “criminal

prosecution” did indeed occur in that civil court

and that Respondents were its Marsy’s Law

“crime victim” beneficiaries and Petitioner its

adjudicated criminal.

Petitioner most prominently, regarding his U.S.

Const, amend. VI rights, complained of this state

civil circuit trial court’s criminal prosecution in

his Amended Initial Brief at Page 44 under

“Argument II- Appellant's state and federal

constitutional rights ... ”, see Appendix E.

B. U.S. Constitution 6th Amendment Case

Law In Klopfer v. North Carolina, 386 U.S. 213

(1967), the U.S. Supreme Court unanimously held

that the Due Process Clause of the U.S. Const,

amend. XIV bound the state courts to enforce the

U.S. Const, amend. VI and that consequently

those persons criminally accused by a state, in

this case the state being State Attorney for the

Eighth Judicial Circuit, Brian S. Kramer and the

Respondent University of Florida Board of

Trustees and its agent Respondent John Hines,

are entitled to a speedy trial and that per Pointer

v. Texas, 380 U. S. 400 (1965), the criminally

accused are also entitled to confront the witnesses

against them,

“By indefinitely prolonging this oppression,

as well as the "anxiety and concern

accompanying public accusation,", United

States v. Ewell, 383 U. S. 116, 383 U. S. 120

(1966), the criminal procedure condoned in

this case by the Supreme Court of North

Carolina clearly denies the petitioner the

right to a speedy trial which we hold is

guaranteed to him by the Sixth

Amendment of the Constitution of the

United States.

■*)

While there has been a difference of opinion

as to what provisions of this Amendment to

the Constitution apply to the States

through the Fourteenth Amendment, that

question has been settled as to some of

them in the recent cases of Gideon v.

Wainwright, 372 U. S. 335 (1963), and

Pointer v. Texas, 380 U. S. 400 (1965). In

the latter case, which dealt with the

"confrontation of witnesses" provision, we

said:

"In the light of Gideon, Malloy, and other

cases cited in those opinions holding

various provisions of the Bill of Rights

applicable to the States by virtue of the

Fourteenth Amendment, the statements

made in West and similar cases generally

declaring that the Sixth Amendment does

not apply to the States can no longer be

regarded as the law. We hold that

petitioner was entitled to be tried in

accordance with the protection of the

confrontation guarantee of the Sixth

Amendment, and that that guarantee, like

the right against compelled self

incrimination, is"

"to be enforced against the States under the

Fourteenth Amendment according to the

same standards that protect those personal

rights against federal encroachment."

"Malloy v. Hogan, supra, 378 U.S. at 378 U.

S. 10., 380 U.S. at 380 U. S. 406."

We hold here that the right to a speedy trial

is as fundamental as any of the rights

secured by the Sixth Amendment. That

right has its roots at the very foundation of

our English law heritage. Its first

articulation in modern jurisprudence

appears to have been made in Magna Carta

(1215), ...”, 386 U.S. 213, 222-223,

Petitioner’s U.S. Const, amend. VI right to a

speedy trial became violated when the state civil

circuit trial court adjudicated him guilty of a

criminal offense on September 1, 2021after the

statu te of limitations had run on each and every

crime he was merely accused of but never charged

with under the State of Florida’s criminal laws,

rules and procedures and, furthermore, the single

judge presiding never afforded him an opportunity

to confront the witnesses against him, but rather

relied upon written, un-cross-examined affidavits

and statements, all unfavorable to Petitioner, as

she made her ruling in-chambers and without

ever having held a hearing, without ever having

summoned a jury and without ever having

provided notice of her procedural intentions and

without any party present.

Klopfer also cites Gideon v. Wainwright, 372 U.

S. 335 (1963), a landmark U.S. Const, amend. VI

case which guarantees to the criminally accused

in state courts the right to assistance of counsel by

way of the U.S. Const, amend. XIV due process

clause and requires courts to provide counsel for

the accused unable to hire counsel unless the

right was competently and intelligently waived,

yet, Petitioner in this case was unable to

‘competently and intelligently waive [d]” counsel

because neither he nor any other party was ever

notified, see the docket, that the single-judge,

state civil circuit trial court was preparing to

conduct a criminal prosecution which also

happened to be in-chambers and without a jury

having ever been convened.

As shown in the record below, Respondents

never receded from their profuse accusations that

Petitioner committed false imprisonment, Florida

Statute 787.02, and criminal trespass of an

occupied structure, Florida Statute 810.08(2)(b),

as evidenced, see Appendix M, by Paragraph 10

from State Attorney for the Eighth Judicial

Circuit, Brian S. Kramer’s affidavit at the Trial

Court Response’s Appendix Page 39-41, (R:161-

163), and the Response’s Page 8-9, (R: 112-113)4,

to substantiate their Marsy’s Law “crime victim”

claim and as shown by the statutes these crimes

carry a penalty of imprisonment of up to five years

for false imprisonment and up to one year for

criminal trespass of an occupied structure, both

exceeding the “right to trial by jury where the

possible penalty exceeds six months'

imprisonment.”, as enunciated in Baldwin v. New

York, 399 U.S. 66 (1970),

“We cannot, however, conclude that these

administrative conveniences, in light of the

practices that now exist in every one of the

50 States, as well as in the federal courts,

can similarly justify denying an accused the

important right to trial by jury where the

possible penalty exceeds six months'

imprisonment. The conviction is Reversed.”,

399 U.S. 66 (1970), 73-74.

Petitioner’s remaining U.S. Const, amend. VI

rights have been upheld by the U.S. Supreme

Court in In re Oliver, 333 U.S. 257 (1948),

4 The state civil circuit trial court’s final judgment,

Appendix B, makes no mention of Respondents’ “false

imprisonment” or “criminal trespassing” accusations, but

rather in their stead the judge utilized unspecified “acts”, a

term never used by Respondents, to accomplish her Marsy’s

Law “crime victim” ruling.

“The secrecy of petitioner's trial for criminal

contempt violated the due process clause of

the Fourteenth Amendment.”,

“An accused is entitled to a public trial, at

least to the extent of having his friends,

relatives and counsel present -- no matter

with what offense he may be charged.”,

“As a minimum, due process requires that

an accused be given reasonable notice of the

charge against him, the right to examine

the witnesses against him, the right to

testify in his own behalf, and the right to be

represented by counsel.”, 333 U.S. 257

(1948).

and

“Under these circumstances of haste and

secrecy, petitioner, of course, had no chance

to enjoy the benefits of counsel, no chance

to prepare his defense, and no opportunity

either to cross examine the other grand jury

witness or to summon witnesses to refute

the charge against him.” 333 U.S. 257

(1948), 259.

}

Further to In re Oliver, the U.S. Supreme Court

also provides historical context for a criminal trial

court conducting an in-chambers, “in camera”,

criminal prosecution whereas in this case,

something even more inconceptual and

unprecedented occurred, a civil trial court held

such an “in camera” criminal prosecution,

“First. Counsel have not cited, and we have

been unable to find, a single instance of a

criminal trial conducted in camera in any

federal, [Footnote 12] state, or municipal

court during the history of this country. Nor

have we found any record of even one such

secret criminal trial in England since

abolition of the Court of Star Chamber in

1641, and whether that court ever convicted

people secretly is in dispute.”, In re Oliver,

333 U.S. 257 (1948), 266.

IV: Petitioner’s U.S. Constitution 14th

Amendment rights, the presumption of

innocence and Florida’s Separation of

Powers doctrine

The only benefits Petitioner recognizes from

being adjudicated guilty of a criminal offense by a

state civil circuit trial court is that the civil court

was powerless to sentence then incarcerate

Petitioner and that Petitioner’s criminal record

with the Florida Department of Law Enforcement,

a state agency under the executive, not judicial,

branch of the government, is still perfectly clean

as he alleges at Paragraph 25, (R:14), in his April

2021 petition for a writ of mandamus, a

redemptive paragraph which he also refers to in

his Appellant Reply Brief on Page 17. These two

“benefits” were due solely to Art. II, § 3, Fla.

Const., Florida’s separation of powers doctrine,

not any clemency from the state civil circuit trial

court judge who as a member of the judicial

branch of government had no control over the

executive machinery of the state namely its jails,

prisons and record keeping.

Petitioner profusely argues in the record below

that the civil trial court’s September 1, 2021 final

judgment violated the State of Florida’s

separation of powers doctrine, Art. II, § 3, Fla.

Const., such as in his Amended Initial Brief at

Page 28 which references his Trial Court Reply’s

10-page, “A. Separation Of Powers”, see Appendix

F for the 10-page entirety, and see also Appendix

D for the entirety of “Argument I - Lower tribunal

violated the separation of powers doctrine” from

the same Amended Initial Brief.

Furthermore, Florida has ample separation of

powers case law rulings which conclude that only

the executive branch of the government, typically

through a state attorney, can charge or prosecute

someone for an alleged criminal offense which

Petitioner lists in the record below such as in his

Amended Initial Brief at Pages 37-38, see again

Appendix D but specifically Pages D1-D2.

Indeed the eagerness to prosecute shown in

sitting Eighth Judicial Circuit of Florida State

Attorney Brian S. Kramer’s affidavit, Appendix

M, is in fact bright-line evidence favoring

Petitioner since only the statute of limitations,

specifically Florida Statutes 775.15(2)(b) and

775.15(2)(c), could have prevented such an eager

state attorney from charging Petitioner pursuant

to the State of Florida’s criminal laws, rules and

procedures.

This case’s facts and circumstances of elapsed

time, i.e. the statute of limitations having run,

and the failure by the executive branch of the

State of Florida to either charge or prosecute

within that time window implicates Petitioner’s

U.S. Const, amend. XIV due process presumption

of innocence rights via Art. I, § 15(a), Fla. Const.,

titled “Prosecution for crime”, and Art. I, § 9, Fla.

Const., Florida’s due process and double jeopardy

clause, when it is paired with Petitioner’s Art. I, §

24(a), Fla. Const, right to access and acquire

public records which are his rightful property

which Petitioner, like all who have been

criminally accused, hopes will contain further

evidence to exonerate his reputation, see Pages

40-45 from the Amended Initial Brief which is the

entirety of “Argument II- Appellant’s state and

federal constitutional rights ...”, Appendix E.

Petitioner further fought for his due process

presumption of innocence rights as shown in the

record below such as at Pages 35-36 of his

Amended Initial Brief, see Appendix N.

Finally, this Court in Coffin v. United States,

156 U.S. 432 (1895), recognizes that an accused’s

presumption of innocence is foundational and has

a long tradition in Western culture,

“The principle that there is a presumption

of innocence in favor of the accused is the

undoubted law, axiomatic and elementary,

and its enforcement lies at the foundation

of the administration of our criminal law.

It is stated as unquestioned in the

textbooks, and has been referred to as a

matter of course in the decisions of this

Court and in the courts of the several

states.”,

“Greenleaf traces this presumption to

Deuteronomy, and quotes Mascardius Do

Probationibus to show that it was

substantially embodied in the laws of

Sparta and Athens. Greenl.Ev. part 5,

section 29, note. Whether Greenleaf is

correct or not in this view, there can be no

question that the Roman law was pervaded

with the results of this maxim of criminal

administration, as the following extracts

show: • • • ”, 156 U.S. 432 (1895), 453-454,

and

“Ammianus Marcellinus relates an

anecdote of the Emperor Julian which

illustrates the enforcement of this principle

in the Roman law. Numerius, the Governor

of Narbonensis, was on trial before the

emperor, and, contrary to the usage in

criminal cases, the trial was public.

Numerius contented himself with denying

his guilt, and there was not sufficient proof

against him. His adversary, Delphidius, "a

passionate man," seeing that the failure of

the accusation was inevitable, could not

restrain himself, and exclaimed, "Oh,

illustrious Caesar, if it is sufficient to deny,

what hereafter will become of the guilty?"

to which Julian replied, "If it suffices to

accuse, what will become of the innocent?"

Rerum Gestarum, L. XVIII, c. 1. The rule

thus found in the Roman law was, along

with many other fundamental and human

maxims of that system, preserved for

mankind by the canon law.”, 156 U.S. 432

(1895), 455.

V: Florida’s “Marsy’s Law” for the accused

As immediately evidenced by its short

September 1, 2021 final judgment, Appendix B,

which was per curiam affirmed without a written

opinion by the state appellate court, Appendix A,

the state civil circuit trial court relied entirely

upon Florida Police Benevolent Association, Inc.,

v. City of Tallahassee, 314 So.3d 796 (Fla. 1st

DCA 2021), (hereinafter may be referred to as

“FPBA”), and Marsy’s Law when imposing its

verdict, i.e. an adjudication of criminal guilt, upon

Petitioner which thereby denied him his public

records request. FPBA, the first pillar of this final

judgment, has been on appeal since July 2020

which is prior to Petitioner’s December 2020

public records request and as pointed out by

Petitioner in his February 2, 2023 Motion For

Clarification, Appendix I, the case is still pending

before the Florida Supreme Court, SC2021-0651.

Petitioner notified the state appellate court of

FPBA’s status in his mandatory state appellate

court docketing statement filed on October 12,

2021.

Marsy’s Law, the second of the two September 1,

2021 trial court pillars, replaced the prior Art. I, §

16(b), Fla. Const, as a result of a November 2018

statewide general election ballot amendment5, thus

Marsy’s Law is not as often colloquially misstated

the entirely of Art. I, § 16, Fla. Const. see

Respondents’ “References to “Marsy’s Law” refer to

Art. 1, § 16, Fla. Const.” at Page V of their Answer,

but rather only 16(b). Specifically, Art. I, § 16, Fla.

Const, is titled “Rights of accused and of victims.”

with 16(a) being a recitation of the rights of a

criminally accused such as Petitioner and 16(b)

those of a crime victim. Upon review, one can

readily see that 16(a) is the State of Florida’s

reiteration of the U.S. Const, amend. VI. 16(a) s

enactment well precedes that of the present 16(b)

and the entirety of Art. I, § 16(a), Fla. Const, is

provided at Appendix C.

Though not directly raised below, both the

state civil circuit trial court and the state appellate

court ignored all of the 16(a) enumerated rights

supposedly to be enjoyed by Petitioner, the

criminally accused, while at the same time those

courts granted the Respondents the entirety of

their 16(b) claims, such a selective weaponization of

the law has, so far, imposed a stark injustice upon

Petitioner and a grim and dire future for all.

5 Petitioner voted for Marsy’s Law at this election and is still

a proponent, though only when “properly” applied by the

courts.

For example, whenever Petitioner asserted his

specific 16(a) “In all criminal prosecutions the

accused shall, upon demand, be informed of the

nature and cause of the accusation,...” right via

its mirroring U.S. Const, amend. VI right, he was

routinely deprived such as on May 2, 20222 when

he motioned the state appellate court, Motion For

Oral Argument, Appendix H, to determine the

single issue of whether the record below showed

probable cause of a crime,

“Did the University of Florida Police

Department, the state attorney during the

statute of limitations or any other arm of

the executive branch of government ever

find probable cause that a crime was either

committed or attempted during the incident

in question, namely the April 13, 2017

University of Florida Walker Hall

incident?”,

yet was promptly denied with the Respondents

never even filing a response. Furthermore,

instead of filing a ubiquitous motion for rehearing,

Petitioner on February 2, 2023 filed a Motion For

Clarification6, Appendix I, requesting to be told

6 Petitioner was prohibited from filing with the trial court a

similarly available motion, Fla. R. Civ. P. 1.530(g), since the

trial court’s final judgment ordered the clerk to, “The Clerk

what specific Florida Statute-based crime did the

state civil circuit trial court and then state

appellate court rely upon to satisfy the requisite

Marsy’s Law crime that they predicated their

rulings upon. Petitioner was again promptly

denied, though this time Respondents did file a

response, Appendix J.

Similar to Petitioner’s U.S. Const, amend. VI

claims for a fair trial when appealing an

adjudication of criminal guilt before a state

appellate court who is bent on affirming a

judgment which required the state civil circuit trial

court to on its own substitute the Respondents’

false imprisonment and criminal trespass

accusations into “[Petitioner’s] acts”, Petitioner,

having not directly raised or asserted his Art. I, §

16(a), Fla. Const, rights below only its mirroring

U.S. Const, amend. VI rights, nevertheless wants

to document before the highest court of the land

what often faces pro se litigants who as in this case

received no discretionary benefit regarding 16(a)

whereas the same judgment in citing 16(b),

proactively found a way to grant Respondents

everything that they had asked for.

VI: The “crimeless, crime victim”

of Court is requested to CLOSE this action as there is no

further judicial labor required, Appendix B.

Since the demise of the ecclesiastical courts,

Western intellectuals have been allowed to pose

as reformers by debating the concept of the

“victimless crime”, whereas the two courts below

have ushered in an entirely new paradigm of

enlightenment, the “crimeless, crime victim”.

The state civil circuit trial court’s “Order on

Appeal”, its final judgment, Appendix B, cites no

crime at all, not even the Respondents claims of

false imprisonment and criminal trespassing, but

merely refers to unspecified “acts” committed by

Petitioner, the solely accused, which caused,

according to the judgment, BURNEY and

AUSTIN to become “crime victims”, consequently,

such as in their Answer Brief and Response To

Motion For Clarification, Appendix J,

Respondents were allowed to prevail with the

argument that you can have a Marsy’s Law crime

victim without either a Marsy’s Law crime or an

accused charged with such a Marsy’s Law crime,

emphasis and bracketed words to the following

have been added,

“Summary Of Argument - The Order on

Appeal should be affirmed because

Appellant is not entitled to mandamus

relief. The Record amply demonstrates that

Dr. Austin and Ms. Burney are “[crime]

victims” as defined by Marsy’s Law. As

[crime] victims, Dr. Austin and Ms.

Burney are entitled to the protections

enumerated in the law. These protections

apply even though Appellant f. the

solely accused.l has not been charged

with or convicted of a crime [and the

statute of limitations has run].”, the

Answer’s “Summary Of Argument” at Pages

8-9,

“Appellant seems to believe that the trial

court’s ruling that Dr. Austin and Ms.

Burney are “crime victims” equates to the

court convicting him f. the solely

accused.! of a crime. Such a belief is

nonsensical.”, the Answer’s Pages 21-22,

with more examples at Appendix P,

Indeed, preface any of Respondents’ arguments

with the following and it will fall apart,

“After three separate UFPD investigations,

Petitioner, the solely accused, was never

charged by any arm of the executive branch

of the government pursuant to the State of

Florida’s criminal laws, rules and

procedures and, furthermore, the statute of

limitations on all crimes Petitioner was

merely accused of had run eight months

prior to his public records request,

see

Appendix K - “What The Parties Agree On”

for the substantiating evidence.

The helter-skelter implications of a civil trial

court’s adjudication of criminal guilt were

contemplated by the Florida Supreme Court in

Anderson v. State, 291 So.3d 531 (291 So.3d 531

(Fla. Sup Ct. 2020), which Petitioner cites to

throughout the record below such as at Page 45 of

the Amended Initial Brief, specifically see the last

sentence of Appendix E, and at the Amended

Initial Brief‘s Conclusion,

“The U.S. Constitution Amendment VI

speaks of “criminal prosecutions” and indeed

once a civil court adjudicates someone guilty

of a crime, a possibility contemplated by

Anderson v. State's “would constitute a

substantive change in Florida law” at 535,

many legal terms and phrases and their

former presumptions fall into question. For

example, Black’s Law Dictionary, 11th

Edition, gives one definition of “criminal

proceeding” as,

“A judicial hearing, session or prosecution

in which a court adjudicates whether a

person has committed a crime or, having

already fixed guilt, decides on the offender’s

punishment,” (emphasis added),

with no mention of a criminal court and

similarly one of its definitions of “conviction”

has, “The act or process of judicially finding

someone guilty of a crime;”.”.

Thus this case before the Court along with Black’s

Law Dictionary show, as anticipated by Anderson,

that it is to be expected that one day a state civil

circuit trial court may, on its own, conduct then

enforce the results of its own “criminal

prosecution” and especially since the U.S. Const,

amend. V requires a “criminal case”, yet the U.S.

Const, amend. VI has no such requirement and

begins with,

“In all criminal prosecutions, the accused shall

enjoy the right to

At trial and on appeal, Respondents were

routinely allowed to argue when establishing their

Marsy’s Law claims that Marsy’s Law still applies

even though the accused in this case, the solely

accused Petitioner, had not been prosecuted or

convicted, yet such arguing presumes that the

accused had at least been charged, yet as the

record below plainly shows, see Appendix K - “D:

What The Parties Agree On”, Petitioner, the solely

accused, was never charged pursuant to the State

of Florida’s criminal laws, rules and procedures

and the statute of limitations had run eight

months prior to his public records request.

Petitioner complained of this deceptive arguing at

both trial and appeal,

“ARGUMENT

A. Appellees Agree That Appellant Was

Never Charged.

The Response’s alluring “never arrested or

prosecuted” SEQUENCE, so labeled and

discussed in the Initial Brief on Pages 41-42

and 46, carried the presumption that

Appellant had at least been charged with a

crime and that the University of Florida

Police Department (may be referred to as

“UFPD”) had found probable cause that a

crime was committed or attempted on April

13, 2017 at the University of Florida’s

Walker Hall, the incident in question, now

however, Appellees for the first time in this

litigation agree with Appellant that he was

never even charged,

“These [Marsy’s Law] protections apply

even though Appellant has not been

charged with or convicted of a crime.”, from

the Answer Briefs opening paragraph to

“Summary Of Argument” on Page 8.”, the

opening to the Appellant Reply Briefs “A.

Appellees Agree That Appellant Was Never

Charged.”.

Finally, another irksome practice was

Respondents’ falsifying Petitioner’s argument

such as at,

“Contrary to Appellant’s suggestion, there

simply is no requirement of a criminal

conviction, or even a criminal prosecution,

before a crime victim may invoke the law’s

protections.”, from the Answer’s Page 18.

Petitioner never argued that either a prosecution

or a conviction was necessary to be granted a

Marsy’s Law exemption but rather that he, the

solely accused, had to at least have been charged

pursuant to the State of Florida’s criminal laws,

rules and procedures and as the record below

shows Petitioner was never so charged.

CONCLUSION

Many of our states, including our most populous

state, California, have enacted Marsy’s Law

provisions, see California Constitution, Article I,

Section 28(b) which mirrors many of the Florida

Constitution, Article I, Section 16(b), Marsy’s Law

provisions and issues central to this case,

consequently, many criminally accused who were

criminally exonerated by their state’s criminal

laws, rules and procedures, i.e. the presumed

innocent, may nevertheless in the future, even

after the statute of limitations has run, become

adjudicated guilty of a criminal offense by a state

civil trial court if they dare to subsequently

request a public record that may implicate one of

their accusers, i.e. show him or her to be a “false

accuser”, as has happened in this case to

Petitioner.

For all of the foregoing reasons, Petitioner

respectfully requests that the Court grant this

Petition For A Writ Of Certiorari.

Respectfully submitted,

Thomas J. Kelly, pro se

3108 Moss Drive

Cocoa, FL 32922

(321) 507-4254

tkelly0962@gmail.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.