Petition for Writ of Certiorari — Jesus C. More, Petitioner v. Florida

5480

No. fe*

IN THE

SUPREME COURT OF THE UNITED STATES

Supre

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JESUS CAPELLAN MORE - PETITIONER

VS.

STATE OF FLORIDA - RESPONDENT

ON APPEAL FROM THE 2nd DISTRICT COURT OF APPEALS,

STATE OF FLORIDA

PETITION FOR A WRIT OR CERTIORARI

Jesus C. More DC# 167496

South Bay Correctional

& Rehabilitation Facility

600 U.S. Highway 27 South

South Bay, Florida 33493

561-992-9505

i

-W

QUESTION(S) PRESENTED

1.) IN LIGHT OF ALEXANDER HAMILTON’S ASSERTED SEPARATION OF

POWERS PRINCIPLES IN “THE FEDERALIST PAPES” NO. 78 AND 81, IS TRIAL

PROCEDURAL JURISDICTION AN INSEPERABLE ASPECT OF SUBJECT

MATTER

JURISDICTION

WHEREAS

LEGISLATIVELY

ENACTED

PROCEDURAL RULES OF COURT MUST BE STRICTLY ADHERED TO IN

ORDER FOR A COURT TO OBTAIN JURISDICTION TO DECIDE A CASE?

2.) IS A LEGISLATIVELY MANDATED COMPETENCY HEARING DEPRIVATION

THE TYPE OF PROCEDURAL RULE DEPRIVATION THAT DIVESTS THE

COURT OF JURISDICTION TO ACCEPT A PLEA AND/OR ADJUDICATE A

CASE?

3.) CAN APPELLATE “PROCEDURAL RULE BARS” BE USED TO AVOID

ADDRESSING “PROCEDURAL RULE” DEPRIVATION CLAIMS THAT

QUESTION THE TRIAL COURTS JURISDICTION TO ADJUDICATE THE CASE

TO BEGIN WITH?

4.) IS AN ORDER SENDING THE CASE BACK TO THE TRIAL COURT TO

FOLLOW THE PROPER PROCEDURE THE ONLY REMEDY FOR A

COMPETENCY HEARING PROCEDURE DEPRIVATION?

ii

{

LIST OF PARTIES

[ x ] All parties do not appear in the caption of the case of the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition is as

follows:

1. Athan, Deeann, Public Defender, 13th Judicial Circuit

2.Cerese, Crawford Taylor, Florida Assistant Attorney General

3. Casanueva, Honorable Appellate Judge, 2nd District Court of Appeals

4. Harb, Jalal, Assistant State Attorney

5. Pompouto, Honorable Circuit Judge, 13 Judicial Circuit

6. Rossomondo, Suzy, Assistant State Attorney

7. Rothstein, Youakim, 2nd District Court of Appeals

8. Sisco, Michelle, Honorable Judge, 13th Judicial Circuit

9. Stuart, Cindy, Clerk, Tampa Office, Florida Attorney General

10. Tomasino, John ., Clerk, Florida Supreme Court

11. Villanti, Honorable Appellate Judge, 2nd District Court of Appeals

iii

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TABLE OF CONTENTS

OPINIONS BELOW.

(1)

JURISDICTION

(2)

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED

(3)

STATEMENT OF CASE AND FACTS

(4)

REASON FOR GRANTING PETITION

(6)

(26)

CONCLUSION.

iv

i

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Arcadia Citrus..., V. Hollingsworth, 185 So2d431 (FI. 1938) @433

Blakely V. Washington, 124 S.Ct. 2531 (2004).................................

Dougherty V. State, 149 So3d 672 (Fla. 2014)...................................

Garcia V. Stewart, 906 So2d 1117 (Fla. 4th DCA 2005) @1123......

Gibson V. State, 721 So2d 363, (FI. 2nd DCA 1998)..........................

Lovett V. Lovett, 112 So 768 (Fla. 1927) @ 776................................

Massey V. David 979 So2d 93 (FI. 2008)...........................................

Merriel V. State 169 So3d 1287(Fla. 1 DCA 2015)...........................

Rosier V. State, 276 So3d 403 (Fla. 1 DCA 2019)............................

Rubino V. State, 6th DCA Case No. 6D23-0180 (2023).....................

Simmons V. State 160 So2d 626 (FI. 1948).......................................

Sparf V. U.S. 156 U.S. 51 (1895)......................................................

Teague V. Lane 489 U.S. 298 (1989)............ .....................................

T.D. V. K.D. 747 So2d 456 (Fla. 4th DCA 1999).............................

5

13,20

7

5, 22

14

5

18,21

7

7

8

14, 17,21

....13,’19

15

5

STATUTES AND RULES

F.S. 916.12......................

F.S. 916.13.......................

F.S. 918.10(1)....... ..........

Fla.R.Crim.Proc. 3.212....

Fla.R.Crim.Proc. 3.216....

Fla.R.Crim.Proc. 3.390(a)

3,4

4,8

9, 10

3

3

10

OTHER

The Federalist Papers No. 51,78, and 81.....................................

FI. HB Ch. 2012-116 Committee Substitute for HB 7055 Sect. 16

U.S. HB 100-889............ ..............................................................

14th Amendment.............................................................................

Art. IV, Sect. 4, U.S.C.A................................................................

vi

i

3,7, 16,21

3, 23

24

3

3,5

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

i

OPINIONS BELOW

[X] For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix A_ to the

petition and is unpublished.

The opinion of the Thirteenth Judicial Circuit court appears as Appendix B to the

petition and is unpublished.

The opinion of the State Supreme Court appears at Appendix D to the petition and is

unpublished.

1

4

JURISDICTION

[X ] For cases from state courts:

The date on which the highest state court decided my case was March 22, 2023.

A copy of that decision appears at Appendix A

The date on which the state trial court decided my case was July 7, 2022.

A copy of that decision appears at Appendix B

The date on which the state supreme court decided my case was May 16, 2023.

A copy of that decision appears at Appendix D

2

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1.) Article IV Section 4, United States Constitution “The Guarantee”.

“The United States shall guarantee to every state in this Union a Republican form of

government, ”

2.) Republican Government principles of Separation of Powers;

“The Federalist Papers” No. 78 "... to avoid an arbitrary discretion in the courts, it is

indispensable that they should be bound down by strict rules and precedents which serve

to define and point out their duty in every particular case that comes before them..." And

in Paper No.' 81, at par. 8: " A legislature, without exceeding its province, cannot reverse

a determination once made in a particular case; though it may prescribe a new rule for

future cases. This is the principle and it applies in all its consequences, exactly in the

same manner and extent, to the state governments, as to the national government now

under consideration. Not the least difference can be pointed out in any view of the

subject."

3.) 14th Amendment, Section 1;

” ...nor shall any state deprive any person oflife, liberty ...without Due Process of

Law... ”

4.) F.S. 916.12(b)...

The court shall enter its order so findings ofcompetency and proceed... ”

(See also F.S. 916.13, Fla.R.Crim.Proc. 3.212(b), Fla.R.Crim.Proc. 3.216)

3

STATEMENT OF CASE AND FACTS

.Jesus More’s counsel filed an insanity defense notice triggering the state statutes

F.S. 916.12, and F.S. 916.13 requiring psychiatric evaluations and a competency hearing

*

before the court can proceed. Judicial rules Fla.R.Crim.Proc. 3.212, and Fla.R.Crim.Proc.

3.216, and Fla. Judicial Admin. Proc. Sect. VIII, all clearly define the requirement for a

competency Rearing where the court can record its reasoning for findings of competency

so that an appellate court has a record for review. This hearing was not performed before

the court accepted the mentally challenged defendants nolo contendere plea. When the

defendant recovered from the trauma of killing the woman he loved he believed he lyas

guilty only of a crime of passion and wanted to retract his nolo contendere plea for first

degree murder because he was in no competent state of mind to tender it. He filed a

habeas corpus claim that the procedural deprivation rendered his plea illegal but the trial

court ruled that his claim should have been raised on direct appeal and refused to address

the ground. Mr. More argued to the appellate court that there was nothing preserved for

him to argue on direct appeal because no record was established for review according to

procedural law. The court Per Curium Affirmed the lower court’s ruling. This decision is

in direct conflict with Alexander Hamilton’s assertions that under a republican form of

government proposed the judicial branch would be bound down by strict rules governing

4

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every case that came before them. The courts decisions in this case are the result of their

refusal to recognize their legal obligation to strictly adhere to procedural rules. The courts

used an appellate procedural rule bar to avoid addressing a trial procedural rule

deprivation claim. This is a blatant violation of the Due Process of law.

FLORIDA'S THIRD SPECIES OF JURISDICTION

THE FLORIDA BAR JOURNAL; MARCH 2008

By Judge Scott Stephens

As a practical matter, rules of procedural jurisdiction have more in common with routine procedural law than

with subject matter jurisdiction. If a procedural error is fundamental it can be raised at any time. And though

procedural jurisdiction is not subject matter jurisdiction it remains a legitimately jurisdictional concept in that it

directly addresses the Court's authority to hear and decide a dispute.

Jurisdiction of subject matter means that the Court's authority over a particular incident, transaction, or

circumstances that constitutes the subject matter of the case has been activated, as required by "Procedural"

Law. The applicable procedural law affords the Court a green light to proceed under the circumstances. This is a

distinct category in Florida under the Subject Matter Jurisdiction Doctrine. All that remains is to formally

recognize procedural jurisdiction as a distinct existence within the Doctrine.

Subject Matter Jurisdiction, based upon a fundamental procedural law defect, at any time, voids the judgment

ab initio.

A Court's authority to render the judgment was identified as one of the three judicial elements as long ago as

Arcadia Citrus...V. Hollingsworth. 185 So. 431 @ 433 (Fla. 1938), with the other two being subject matter

jurisdiction and personal jurisdiction. Along with subject matter jurisdiction was the distinction of procedural

jurisdictional concepts. See: T.D. V. K.D.. 747 So2d 456 (Fla. 4 DCA 1999), which recognizes "Case Jurisdiction"

under subject matter or personal jurisdiction. And under Garcia V. Stewart. 906 So2d 1117 @ 1123 (Fla. 4 DCA

2005), the court revived the Lovett notion that procedural defects can overcome bars as they constitute

essential aspects of subject matter jurisdiction.

The Lovett Rule Doctrine that a court's jurisdiction must be properly invoked before it can be exercised is still

good law today. Lovett V. Lovett. 112 So 768 @776 Fla. 1927)

1 Article IV, Section 4; "The Federalist Papers" No. 78 and par. 8 of No. 81

5

REASON FOR GRANTING PETITION

Most of our Honorable legislators are chained by conscience to the thankless task

of creating rules the majority of their constituents will agree to live under. They show up

every day, rain or shine, to fight the good fight. But moral dilemmas can exist within

laws that are crafted narrowly enough to protect people, but so broadly that they ensnare

the innocent. Luckily we have a trial system where the jury protects the public when

legislators err. Jurors can simply refuse to convict in the face of guilt to prevent

persecution.

This is the reason why the American system of due process of law is the envy of

less fortunate people around the globe. The reason we must jealously protect our system

Trom eroslon. Xn^ why"we need legislators who, by virtue of their personal integrity,

understand that the only sound "louder" than their call to duty is the "whisper" of

someone suffering injustice from their errors.

If people were angels we wouldn't need laws; but laws can cut two ways. Laws like

the Florida Burglary Statute that transforms a misdemeanor trespass into a felony

burglary if a person "enters or attempts to enter a residence with the intent to commit an

offense therein". Hundreds of first time offenders are charged and convicted of

burglarizing their own homes in violation of a domestic battery restraining order because

of this overbroad terminology. Battery may seem like a formidable offence but in Florida

6

battery means unwanted touching. Thus, ostensibly citizens are imprisoned for offending

someone's sensitivities.

Citizens like Miami resident Gerard Bonet whose love interest violated the

domestic battery restraining order herself by calling him to fix her mother's roof. After

helping her she once again ended the relationship. When this heartbroken SOB drunkenly

showed up banging on her apartment door at 3 AM to speak with her, she called the

police. They promptly arrested Mr. Bonet for attempted Burglary of an occupied

dwelling; a second degree felony, even though he never attempted to enter the home.

At his trial the prosecutor told the jury that the violation of the restraining order

was the intended offense needed to qualify for the crime of Burglary, and because he

would’ve entered if the door were unlocked the attempt was justified under the law. Mr.

Bonet was convicted and sentenced to 10 years in prison and 5 years’ probation at a cost

to taxpayers of over $270,000.00. If the jury knew of the difference in penalties between

attempted burglary of an occupied dwelling (15 years in prison) versus trespassing (60

days in jail) they assuredly would never have voted guilty for it!

The recent case of Ron Rubino is another example of our justice system gone

rogue. He was exercising his legal right to obtain possession of an abandoned,

uninhabitable trailer home under Florida Statute §95.18, Adverse possession law. Under

sect. F.S.§95.18 (9) and (10) of this law it clearly states that: " trespass is the only

criminal charge that can be pursued if a person occupies or attempts to occupy a

residential structure solely by claim of adverse possession, prior to making a return to the

property appraiser."

This law was enacted to help prevent blight from infecting residential

neighborhoods. When Rubino was cleaning up the property the police came along and,

even though he told them he was squatting under the adverse possession law, they

arrested him for burglary because he stacked some of the junk he cleaned up in the back

of a tmck.

The owner of the abandoned property passed away and the relative who was tasked

with cleaning out the personal possessions testified at trial that the only items left behind

were discarded junk. Yet, the prosecutor instructed the jury that the "junk" property had

value over $50.00 at a flea market, thus, theft was the intent that supported the charge of

burglary. The appellate court upheld the conviction. Rubino is now serving a 15 year

sentence for Burglary and petty theft for obeying the adverse possession law simply

because the judge prevented a reasonable assessment of the actual crime by those tasked

with determining guilt.2

As part of the preliminary jury instruction the judge informed them that they could

face sanctions including jail if they didn't follow the law and rules he laid out. The final

2 See: Rubino v State 6th DCA case no: 6D23-0180 (2023).

8

instruction forbid using sympathy, which is a nefarious way of preventing the use of

reason.

If Rubio's jury was properly instructed on the penalty in accordance with

procedural law F.S. 918.10(1), they would have been encouraged to state emphatically;

this is the line, this nonsense stops right here! They would've used their pardon powers to

prevent injustice by not convicting him, or finding him only guilty of trespass.

And therein lies the root of the issue that is filling our state prisons with lengthy,

unwarranted sentences. Criminal juries are censored, forbidden from receiving penalty

instructions, even though the law mandates giving one. And then they are told they will

be jailed if they don't obey the court’s interpretation of the law. Would the average

citizen, those who the laws are designed to protect, understand a restraining order is the

kind of offence referenced in the burglary statute, or that cleaning up junk in an attempt

to adversely possess a residence under the statute would make it a burglary? These are

determinations a jury is supposed to make, not a judge!

Any credible civics instructor will explain that in our Republican Form of

Government, as articulated by its Constitutional Framers, The courts cannot force juries

to render verdicts in accordance with the judicial interpretation of a law. Verdicts are to

be rendered in accordance with the juror’s conscience. It’s an individual assessment in

accordance with case circumstances.

9

It s a shocking fact that Florida actually has a procedural law ordering trial judges

to give juries a penalty instruction. An instruction meant to encourage the use of reason

and common sense, but the Florida supreme court amended their corresponding rule to

forbid doing so. We currently have a law and a rule in conflict. I was taught in civics

class that in our Republican government the legislative authority predominated. What is

going on in Florida? Are our legislators sleeping?

Criminal Procedure Law Chapter 900 to 925; section 918.10(1): "...The trial judge

must instruct the jury on the penalty for the offenses charged"....

and contradicting

judicial rule 3.390(a), "...The trial judge must not instruct the jury on the penalty for the

offenses charged..."

This law was first adopted in its entirety, 3 but then judicially amended becausejt

encouraged jury pardons. 4 There now exists a conflict in violation of the due process of

law. The state supreme court amended their rule regardless of the separation of powers

principles that forbid doing so.

In America, under the principles of separation of powers, the courts are

empowered to hold the law challenged beside the constitutional article invoked and

decide if it is constitutional or unconstitutional, and after having done so the courts duty

ends. The courts cannot abrogate duly enacted laws. Laws can only be amended by

3 In Re:3.390fal: 272 So2d 65(F1 1971)

|n_Re:3.390(a ;416 So2d 1126(F1 1982); lnRe:3.390(a 462 So2d 386(F1 1984)

10

revisers Bills, repealed, or found unconstitutional in a court of law. But even then the

courts can't obtain jurisdiction unless the law is challenged by someone with standing.

The courts cannot strike down a law on their own volition. This would lead to chaos!

In its mling the recommending committee complained the amendment was

necessary to..." discourage that deplorable phenomenon known as a jury pardon." At the

time Chief justice Boyd warned that it was improper because the rule was adopted from a

law, but he was out-voted by the other justices who wanted to wrest control of state

courts from the legislature. Obviously none of those justices read " The Federalist Papers

" regarding the principles of separation of powers that specifically forbid legislating from

the bench.

This power bestowed upon the court by the court has allowed Florida to lead the

nation in the amount of prisoners serving life without parole sentences; nearly 14/100 and

growing. A distinction that would be laudable if not for the suffering it causes. Not to

mention the cost to taxpayers of over $27,000.00 annually per prisoner. A cost that grows

exponentially as they age over 65 and require more medical care. This illegal practice of

jury censorship has Florida's prison system on course to becoming the largest hospice

chain in the world.

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THE BOTTOM LINE

In a republican government the legislative authority necessarily predominates;

period.

Nobody is saying the judiciary cannot create their own procedural rules,

as long as those mles are consistent with acts of Congress; period.

The judiciary can only declare acts of Congress unconstitutional. They cannot

amend or alter laws in any way; period.

The Florida Supreme Court justices who voted to abrogate legislatively enacted

rules committed an impeachable offense; period.

They simply did not have the jurisdiction to do so.

When the Oklahoma Supreme Court issued a stay of execution for convicted

murderer Clayton Lockett, after his appeals were exhausted, Governor Mary Fallen

issued an executive order overriding the stay to execute him on schedule. The legislature

issued articles of impeachment against the Justices who voted for the stay because they

violated separation of powers by acting after their jurisdiction expired. The court

immediately reconvened and withdrew their stay. This is how the people protect

themselves from judicial branch oppression.

This is justice; period.

12

The standard jury instruction threatening to jail any juror who violates the rules,

and then stating that the rules forbid using sympathy, is dictating the role of the jury, and

may in fact be abridging a defendant's 6th amendment right to their impartiality.

The courts cannot dictate the role of the jury; period.

Hmmmm.... Didn't the United States Supreme Court say in 1895 that defendants

were entitled to verdicts ofconscience? And didn't Antonin Scalia say in his 2004 Blakely

dictum that the judiciary could not dictate the role of the jury? 5

THE EMPIRE OF REASON:

(Why This Emperor Has No Clothes)

There's a big difference between hard core criminality and crimes committed as a

result of a victim's culpability. This is essentially because most people behave in direct

response to actions; they react to stimuli. If the victims hadn't been misbehaving or acting

aggressively to begin with, the defendants wouldn't have responded the way they did. The

charges and sentences are supposed to reflect the distinguishing characteristics of the

criminal circumstances. For this reason the Florida legislature enacted the Criminal

Procedure Law Chapter 900 to 925. Section 918.10(1), requires a penalty instruction to

encourage the juror's to use their compassionate sense of empathy and reason in order to

assure that prison sentences fit the circumstances of the crime. For instance:

5 (See: SparfVU.S. 156 U.S. 51 (1895); Blakelv V. Washington 124 S.Ct. 2531 (2004).)

13

Mark Gibson was a first time offender. The 22 year old was on trial for a non­

violent capital crime based solely on the victim accusation a crime even occurred. The

jury was hesitant to convict solely on the accusation of an obviously hostile victim, but

just to be safe they voted guilt, later claiming they did so just so the alleged victim could

get the help they felt was needed. As they were exiting the courtroom they overheard the

judge and prosecutor discussing the mandatory life sentence. They stopped in the middle

of their departure and after consulting with each other, approached the judge: "Your

honor did we just hear you correctly? Is this young man going to get a life sentence?

Because if we had known that sentence we would not have voted guilty for it!"

Didn’t the Florida Supreme Court call the penalty instruction a meaningless act they

couldn’t be forced to perform? 6

A meaningless act indeed!

I believe it's safe to assume that Mark Gibson did not get the impartial verdict of

conscience he is constitutionally entitled to.

n

So, there you have it, the 64.5 year average sentence meted out by Florida Courts

is directly related to the illegal abrogation of this duly enacted procedural law. This is

why there are nearly 14p00 life without parole sentences. It’s because our jurors are

6 See: Simmons V. State. 160 So2d 626 (Fla. 1948).

7 See: Gibson v State. 721 So2d 363 (Fla. 2 DCA 1998)

14

censored to discourage the use of their pardon powers by depriving them of their

procedural right to know the penalty. They do not know they are sending their fellow

citizens to languish suffering in prisons under excessive penalties they would never

agree to, Thus, this court should recognize procedural jurisdiction as an inseparable part

of the subject matter jurisdiction Doctrine. If legal procedures are not followed the court

cannot get the "Green Lighted Jurisdiction" required to adjudicate the case; period!

This will allow State prisoner's procedural deprivation claims to be exempt from

tolling provisions. This is so that Florida prisoners can bring these claims in Habeas

Corpus petitions to the trial courts for relief at any time. It will enable prisoners like Mark

Gibson to get relief under the Teague Retroactivity Doctrine, where if a procedure like

the amended rule 3.390(a) is found to be invalid, and the invalidated procedure led to the

conviction, or if the proper procedure would have resulted in an acquittal; relief can be

retroactively applied.

Q

This will encourage State Appellate Courts to do their duty and

address the claims before they reach the federal courts.

The comments from the jury in the Gibson case, that if they had known the

mandatory life sentence they would never have voted guilt for it, proves the procedure's

deprivation was a substantive error. If the courts agree that the amended rule 3.390(a)

contradicting the penalty instruction mandate is invalid, they can order a new trial where

the right to the penalty instruction procedural law 918.10(1) would be enforced. In most

Teague v Lane. 489 US 298 (1989).

15

cases the prosecutors will offer plea deals that would be commensurate with the

circumstances of the crime. Thousands of prisoners serving unwarranted sentences,

because of the over indicting efforts of prosecutors to gain leverage in plea negotiations,

will finally see justice served.

(MEMORANDUM OF LAW)

SUMMARY OF ARGUMENT

Article IV, Sect. 4 of the United States Constitution guarantees every citizen of

every State a Republican form of government. A government consisting of three separate

branches; The Executive, Legislative, and Judicial. Our Constitution's Framers,

Alexander Hamilton, James Madison, and John Jay, struggled against fierce opposition

from Anti-Federalists who enjoyed power and wealth under the articles of confederacy.

Pamphleteer Abraham Yates published Anti-Federalist Paper No. XI warning:

"Under the new government proposed there is nothing to prevent the judicial

branch from seizingjurisdiction over any act of the legislature and nullifying it. With this

power these unelected officials can mold the government into any form they pleased!"

In answer to this challenge James Madison noted in "The Federalist Papers" No.

51: "In a Republican Government the legislative authority necessarily predominates".

Followed by Alexander Hamilton who published "The Federalist Papers" No. 78

asserting that:

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be

bound down by strict rules and precedents which serve to define and point out their duty

in every particular case that comes before them".

This means judges must strictly adhere to rules of practice and procedure; period.

And in Paper No. 81, at par. 8: " A legislature, without exceeding it's province,

cannot reverse a determination once made in a particular case; though it may prescribe

a new rule for future cases. This is the principle and it applies in all its consequences,

exactly in the same manner and extent, to the state governments, as to the national

16

government now under consideration. Not the least difference can be pointed out in any

view of the subject."

This means the Federal and States legislatures have the power to make rules of court;

period.

And at par. 9 "It may in the last place be observed that the supposed danger of

judiciary encroachments on the legislative authority which has been upon many

occasions reiterated is in reality a phantom... While this ought to remove all

apprehensions on the subject it affords, at the same time, a cogent argument for

constituting in the Senate a court for the trial of impeachments."

This means if appointed judicial officials violate their oaths to obey the constitution they

can be impeached; period.

In 1948 the Florida Supreme court stated: "If the court is required to depart from

its course, and discuss matters having no bearing on the true function of the jury, the trial

is disconcerted and impeded. The penalty instruction is a meaningless procedure this

court cannot be forced to perform." 9

The court's dictating the true function of the jury is no different than dictating the

role of the jury. Claiming the legislature cannot force the court to perform a procedure

because they feel its meaningless is wrong.

This opinion is antithetical to Republican Government separation of powers principles;

period.

This opinion is an impeachable offense; period.

Nonetheless, in 1971 the legislature enacted the Criminal Procedure Law Chapter

900 to 925, at sect. 918.10(1) reaffirming the people's desire to codify a jury penalty

instruction. Essentially enacting a "No, we really mean it" statute. The Supreme court

9 See: Simmons V. State. 160 So2d 626 (Fla. 1948).

17

exercised their authority under FI. Const. Art. V, Sect. 2(a): "The Supreme court shall

adopt rules for the practice and procedure in all courts including the time for seeking

appellate review." The key word here being adopt. They adopted Sect. 918.10(1) in its

entirety as their corresponding rule 3.390(a). 10

In 1984 the Supreme court ruled to adopt the recommendation of their procedural mles

committee and amended their rule 3.390(a) to forbid the penalty instruction because 17

out of 20 committee members felt it unfairly encouraged the jury to use their pardon

powers. 1'They've bestowed upon themselves the power to adopt their own committee

rules by distorting the Constitutions meaning so that they can nullify legislative acts

contrary to separation of powers principles. This was made clear in their 2008 decision

in Massey V David: "Legislated procedural laws cannot encroach on this courts rule

making authority." This case was wrongly decided. It is antithetical to republican

government principles of separation of powers. This opinion was an impeachable

offence; period.

The United States Supreme court determined that: " We must holdfirmly to the doctrine

that in the courts of the United States it is the duty of the juries in criminal cases to take

the law from the courts and apply the law to the facts as they find them to be from the

evidence. From the courts rests the responsibility of declaring the law. Upon the jury the

responsibility of applying the law so declared, to the facts as they, upon their conscience,

10 See: Re: 3.390(a), 272 So2d 65 (Fla. 1971).

11 See: In Re:3.390(a). 416 So2d 1126 (Fla. 982): 462 So2d 386 (Fla. 1984); See: Massey V David 979 So2d 93 (Fla.2008).

18

1

believe them to be. A court cannot give advance instruction to find a verdict in

accordance with the court's opinion of the law." 12

In their dictum the justices noted how English courts would jail juries that didn't render

verdicts in accordance with the courts opinions or until they rendered a unanimous

verdict, a practice forbidden in America.

In this country the court declares a mistrial if the jury can't reach a unanimous

decision. However, Florida judges threaten to jail any jurors who violate the rules of

deliberation and then instructs them on the court’s interpretation of the law. Laws are

supposed to be self-evident by their language so that citizens of common intelligence can

decipher their meanings. If it takes a lawyer to explain what behavior a law proscribes it

is either unconstitutionally overbroad or void for vagueness.

Florida judges go further to tell jurors how to think and feel when deliberating. Is

this any less intimidating than the forbidden act of threatening to jail jurors if they don't

reach a verdict? Jurors need to know the penal jeopardy that would be the result of their

decisions. This is the only leverage a defendant has to encourage his fellow citizens who

have the sole power to convict him to base their verdicts upon contemporary standards of

virtue and justice.

It was only recently that Governor Scott repealed the cohabitation statute that had

been on the books since 1898. This law made living together out of wedlock punishable

12 Sparfv, US. 156 US 51 (1895)

19

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by a 500 dollar fine and 60 days in jail. Floridian's have the legal right to have their jurors

informed of the jeopardy they would face as a result of a guilty verdict under this

Draconian law, or any law! They could find innocence in the face of guilt to reflect their

moral sense of justice based upon their contemporary community standards. We must not

forget that it is the jury, once duly sworn and seated, that has the sole power to do so.

Americans escaped the perplexities over which rights they were individually

entitled to -Natural Law or English Common Law- by giving two rights pre-eminent

importance. If the right to representation and to trial by jury were left to operate in full

force, they would shelter nearly all other rights and liberties of the people. Meaning the

people must maintain control in two forums: the jury box and the ballot box.

Justice Antonin Scalia articulated in the dictum of Blakely:

"The very reason the framers put jury trial guarantee into the constitution is that

they were unwilling to trust government to mark the role of the jury... the 6th amendment

by its terms is not a limitation on judicial power, but a reservation ofjury power. It limits

judicial power only to the extent that the claimedjudicial power infringes on the province

of the jury. The court cannot force a jury to render a verdict against their conscience

based upon the court’s opinion of the law." 13

Compare these legal principles to the Florida supreme court's concepts of a

republican form of government and the judicial branch power to abrogate laws. As they

stated in the Simmons dictum;

13 (Thomas Greene: Verdict According to Conscience, Perspectives on the English Criminal Trial By Jury; 1200 to 1800,

Chicago 1985.1: Blakelv v Washington. 124 Set. 2531 (2004)

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"If the court is required to depart from its course and discuss matters having no

bearing on the true function of the jury, the trial is disconcerted and impeded. The

penalty instruction is a meaningless procedure that this court cannot be forced to

perform." 14

And the dictum of Massey: "Generally the legislature is empowered to enact

procedural law. Statute 57.01(2) is a procedural law that impermissibly encroaches on

this courts rule making authority."15

The Florida constitution gives the supreme court the power to adopt rules of court,

not create them! This claimed authority does not exist! The Simmons court is not only

committing the forbidden act of marking the role of the jury but challenging the authority

of the legislature to enact rules of court as well..

The Simmons case calling the penalty instruction a meaningless act was wrongly

decided. The court’s decision places the Florida judicial branch in opposition to

Alexander Hamilton's separation of powers principles which he clearly defined:

“ No man can be sure that he may not be tomorrow the victim of a spirit of

injustice, by which he may be a gainer today." 16 And: "... to avoid an arbitrary discretion

in the courts, it is indispensable that they should be bound down by strict rules and

precedents which serve to define and point out their duty in every particular case that

comes before them..." 17

The federal courts are obligated to correct the Florida supreme court's obvious

encroachments onto the legislative branches powers to enact rules of court in this manner

by virtue of the power bestowed in the United State Constitution's Art. IV, Sect. 4's

guarantee to a republican form of government.

14 Simmons V State, 160 So2d 626,(FI. 1948)

15 Massey V David 979 So2d 93 (Fla. 2008):

16 "THE FEDERALIST PAPERS": No. 78 at paragraph 19 ":

17 par. 21

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V

The mandate of judicial compliance to procedural rules gives weight to the

procedural jurisdiction concept as a principle of subject matter jurisdiction in that the

courts authority over a particular incident, transaction or circumstance that constitutes the

subject matter of the case must be activated as required by procedural law, in order to

give it the green light to proceed. In the absence of that green light the court loses the

jurisdiction to adjudicate ab initio. 18

Justice Clarence Thomas equated the standard for competency for pleading guilty

or waiving the right to counsel with the competency standard for standing trial, and in

“44 Liquormart” showed his willingness to abandon precedent. In fact, late Justice

Antonin Scalia stated: “Justice Thomas doesn’t believe in stare decisis, period. If a

constitutional line of authority is wrong, he would say ‘Let’s get it right’.” With his

willingness to reexamine constitutional doctrines, including the “Political Question

Doctrine” that seems to attach to any Art. IV Sect. 4 claims, this court would be well

within its jurisdictional authority to rule on this claim presented. 19

Antonin Scalia was very vocal with his theories that constitutional language should

be interpreted according to the original meaning the relevant words had when they were

enacted into law. His common sense approach is required in cases such as this where trial

rules are disregarded but appellate rules are strictly adhered to.

18 Garcia v Stewart, 906 So2d 1117(4DCA 2005)@1123.

19 Scott Douglas Gerber, First Principles: The Jurisprudence of Clarence Thomas. (2002): Godinez V. Moran (1993):

"Originalism: The Lesser Evil" A Matter of Interpretation. Antonin Scalia 1988 lecture.; Federal Courts and The Law (1997);

"The Rule of Law is a Law of Rules"; (1989 article)

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i

A

Tunis Wartman declared in his 1800 Treatise concerning censorship:

"Society isn't the instrument of government created for the purpose of affording

grandeur and consequence to the latter. Government is, strictly speaking, the creature of

society originating in is discretion, and dependent upon its will. Society must, therefore,

necessarily possess the unlimited right to examine and to investigate. Knowledge is the

only guardian which can prevent us from becoming the vassals of tyranny and the dupes

of imposture."

Through jury censorship the Florida Supreme Court appears to have duped the

citizens out of their ability to control the courts. A practice that has led to innocents being

falsely convicted, and exposing many others to the bullying practices of prosecutors who

routinely over-indict criminal defendants in order to gain leverage in plea negotiations.

And make no mistake, the legislature fully intended that the jurors participate in this

process through the enactment of the penalty instruction procedural law.

It's important to note that the State's Supersession law F.S. 25.371 was repealed in

2012.

This supersession law once allowed judicial rules to supersede legislated rules of

court. When it was pointed out that this law allowed the judicial branch to legislate from

the bench it was repealed for violating the non-delegation doctrine.

Likewise, U. S.

House Representative Kastenmeier attacked the federal

supersession law, arguing to have the clause removed for violating the non-delegation

doctrine, a separation of powers abridgment. This argument was voted down in the

20 HB Ch. 2012-116 Committee substitute for HB7055; sect. 16: as of July 1 2012

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Senate. The senators noted that the judiciary would not attempt to override legislative

acts.21

State delegate Theophilus Parsons expressed the importance of having a defense

against arbitrary government oppression when he lectured the conventioneers at the 1788

Massachusetts convention:

" The people themselves have in their power effectually to resist government oppression

without being driven to an appeal to arms. Let him be considered a criminal by the

general government; yet only his fellow citizens can convict him. They are his jury, and,

if they pronounce him Innocent, not all the powers of Congress can hurt him. And

Innocent they certainly will pronounce it the supposed law he resisted or violated was an

act of oppression.”

Alexander Hamilton was very specific about how the people were protected from

judicial branch oppression. The courts would be bound down by strict rules governing

every case that came before them. Therefore it's a straight forward course correction

when appellate courts are presented with procedural violation claims;

Send them back to the trial courts for the proper procedure; period.

The courts are currently standing behind Appellate Procedural tolling bars to avoid

addressing procedural deprivation claims. Appellate procedural tolls can only apply when

a trial court has legally obtained jurisdiction to begin with. This is the very essence of our

14th amendment due process of law guarantees.

21 See: U.S. HB 100-889, Pg 3, Aug 26 1988, re: Title 28 part V Ch. 31, § 2072(b), with further comments on

pages 27 & 28, U.S.; (2 Elliot. Deb. 94;2 Bancroft, Hist. Const. 267)

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Thomas Jefferson cited Judicial abuses from the British King in our declaration of

independence as compelling reasons for gaining independence from his rule, each of

which mirrors what the Florida Judicial branch has done with the powers they've

bestowed upon themselves:

(1). He has refused his assent to laws the most wholesome and necessary for the public

good.

(The judge refuses to obey the competency hearing law in this case and the Judiciary the

Penalty Instruction law)

(2). He has forbidden his governors to pass laws of immediate and pressing importance.

(The judiciary forbids the legislature from passing trial procedure laws of immediate and

pressing importance by abrogating them after their adoption)

(8). He has obstructed the administration ofjustice by refusing his assent to laws for

establishing judiciary powers.

(Claiming the legislature doesn't have the judicial power to mandate court rules under the

state constitution)

(18). For depriving us in many cases of the benefits of trial by jury.

(Censoring juries in order to control their powers)

(22). For suspending our own legislatures, and declaring themselves invested with power

to legislate for us in all cases whatsoever.

(By negating legislative mle making authority and making their rules supersede enacted

rules they've suspended the legislatures power and made themselves junior varsity

legislators with the power to rule from the bench)

An outlaw judiciary is irreconcilable with the American concept of independence.

Just as the executive branch cannot break the law to enforce the law, the courts cannot

violate the law to process the law. Judicial branch impropriety is a serious threat to the

integrity of our union. Not from outright illegal conduct, such as the obvious procedural

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law abrogation practices noted here, but from its erosion of republican principles. The

slow chipping away over time. No court has ever had the power to call an act of Congress

meaningless when it involves liberty; period.

Patriot blood waters that tree, and the vainglorious vaporing’s of intellectual elitists in

robes will never uproot it. People will only tolerate abuse until they draw the line and

revolt. One needs only to study our past to see that future.

Alexander Hamilton was very specific about how the people were protected from

judicial branch oppression. The courts would be bound down by strict rules governing

every case that came before them. Therefore it's a straight forward course correction

when appellate courts are presented with procedural violation claims;

Send them back to the trial courts for the proper procedure; period.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

dsT

/s/

Jesus C. More DC# 167496

South Bay Correctional

& Rehabilitation Facility

600 U.S. Highway 27 South

South Bay, Florida 33493

561-992-9505

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