Petition for Writ of Certiorari — Giovanni DePalma, Petitioner v. Florida

Supreme Court briefApr 28, 2024

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7

No.

• r

IN THE

Supreme Court of t&e ftfntteb States;

GIOVANNI DEPALMA,

Petitioner,

vs.

STATE OF FLORIDA, et al.,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

Giovanni DePalma

Appellant, pro se

(ORIGINAL COURT COPY)

FILED

APR 2 8 2024

LiS^^^uSl

Giovanni DePalma v. State ofFlorida, et al.

QUESTION PRESENTED

Whether the Petitioner is foreclosed from

presenting a lack of subject matter jurisdiction and double

jeopardy claim through an EMERGENCY PETITION

FOR PERMANENT INJUNCTION pursuant to 42 U.S.C.

§ 1981(a) under “full and equal benefit of all laws and

proceedings”, Younger v. Harris, 401 U.S. 37, 56, 19 S.

Ct. 746 (1971) and, pursuant to the United States

Constitution, Amendment I, “to petition the Government

for a redress of grievances” when all venues have been

exhausted.

ii

Giovanni DePalma v. State ofFlorida, et al.

PARTIES TO THE PROCEEDING

Giovanni DePalma (hereinafter “Mr. DePalma”) is

the Petitioner in the instant cause, and the State of Florida,

et al., is the Respondent.

iii

Giovanni DePalma v. State ofFlorida, et al.

RELATED PROCEEDINGS

DePalma v. State, et al., No. 22-14292 (11th Cir.) (opinion

issued on January 17, 2024 finding Per Curiam). Petition

for Rehearing Denied (opinion issue on March 5, 2024.

Mandate issued March 13, 2024).

DePalma v. State, et al., No. 8:22-cv-02745-CEH-CPT 2214292 (M.D. Tampa, Florida) (opinion issued on February

21, 2023 finding Denied. Mandate issued April 9, 2024).

Giovanni DePalma v. Ricky D. Dixon, No. SC22-1510

(SC of Fla.) (opinion issued on November 14, 2022

finding Petitioner has submitted an "Emergency Petition

for Permanent Injunction," which this Court has treated as

a petition for writ of habeas corpus. The petition is hereby

transferred to the Second District Court of Appeal for

consideration in the context of Case Number 2D22-3229).

iv

Giovanni DePalma v. State ofFlorida, et al.

TABLE OF CONTENTS

QUESTION PRESENTED

it

PARTIES TO THE PROCEEDING

m

RELATED PROCEEDINGS

IV

TABLE OF CONTENTS

v

TABLE OF AUTHORITIES

vi

OPINIONS BELOW

2

JURISDICTION

2

STATUTORY PROVISIONS AND CASE LAW INVOLVED

2

STATEMENT

3

A. Legal Background.

3

B. Factual and Procedural History

5

REASON FOR GRANTING THE PETITION

7

I.

Subject Matter Jurisdiction

7

II.

Double Jeopardy

11

Ill. The Question Is Exceptionally Important and Squarely Presented

16

IV The Decision Below Is Wrong

17

CONCLUSION

20

APPENDIX

USCA 11th Cir. Judgment Entry

App. 1

U.S. MD Dist. Ct. Judgment Entry

App. 2

e SC of Fla. Judgement Entry

6'

V

App. 3

Giovanni DePalma v. State ofFlorida, et al.

TABLE OF AUTHORITIES

Cases

Al-Saleh. 2012 WL 13012775, at *1......................................................................

Benton v. Maryland. 395 U.S. 784, 795 1969)........................................................

Bizzell v. State. 71 So. 2d 735 (Fla. 1954)..............................................................

Bohlinger v. Higginbotham. 70 So. 2d 911 (Fla. 1954)...........................................

Brown v. Ohio. 432 U.S. 161, 165 (1977)...............................................................

Crist v. Bretz. 437 U.S. 28 (1978)...........................................................................

David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against

Double Jeopardy. 14 Wm. & Mary Bill Rts. J. 193, 196-221 (2005).................

DeClaire v. Yohanon. 453 So. 2d 375 (Fla. 1984)...................................................

Denton v. Hernandez. 504 U.S. 25, 32, 112 S. Ct. 1728, 118 L. Ed. (1992)...........

Evers v. Dwyer. 358 U.S. 202 (1958)......................................................................

Florida Power & Light v. Canal Auth.. 423 So. 2d 421, 423 (Fla. 5th DCA1982)...

Garcia v. Stewart. 906 So. 2d 1117, 1122 (Fla. 4th DCA2005)...............................

Georgia v. Rachel. 384 U.S. 780, 86 S. Ct. 1783 (1966).........................................

Green v. United States. 355 U.S. 184, 187-88 (1957).............................................

Lovett v. Lovett. 93 Fla. 611, 112 So. 768, 776 (1927)...........................................

McElmurray v. Consol. Gov't of Augusta-Richmond County. 501 F.3d 1244, 1251

(11th Cir. 2007)..................................................................................................

Neitzke v. Williams. 490 U.S. 319. 327. 109 S. Ct. 1827,

104 L. Ed. 2d 338 (1989)...................................................................................

North Carolina v. Pearce. 395 U.S. 711, 717 (1969)...............................................

Paulucci v. General Dynamics Corn.. 842 So. 2d 797, 801 n.3 (Fla. 2003)............

Serfass v. United States. 420 U.S. 377, 388 (1975).................................................

State v. Anderson. 537 So. 2d 1373 (Fla. 1989)......................................................

State v. Belton. 468 So. 2d 495 (Fla. 5th DCA1985)..............................................

State v. Clements. 903 So. 2d 919 (Fla. 2005).........................................................

State v. Melendez. 244 So. 2d 137, 139 (Fla. 1971)................................................

State v. Singletary. 549 So. 2d 996, 998 (Fla. 1989)...............................................

United States v. Jorn. 400 U.S. 470, 479 (1971).....................................................

University of South Alabama v. American Tobacco Co..

168 F. 3d 405 (11th Cir. 1999)..........................................................................

White v. White. 886 F. 2d 721, 722-23 (4th Cir. 1989)...........................................

Wilcox v. State. 248 So. 2d 692 (Fla. 4th DCA1971).............................................

Younger v. Harris. 401 U.S. 37 (1971)...................................................................

Constitutional Provisions

United States Constitution

Flarida Constitution.........

11

14

18

10

15

18

14

10

16, 17

4, 17

10

10

5, 18

15

10

11

16

15

10

15

2, 4,18

18

2, 4,18

18

19

15

3,7,11

. 16, 17

18

ii, 2, 4, 17

ii, 16, 18, 19

19

Statutes

§ 1254...

§ 1981...

§ 2254...

2

ii, 2, 3, 4, 5, 16, 20

....................11,20

vi

IN THE

Supreme Court of tije ®mteb States;

GIOVANNI DEPALMA,

Petitioner,

vs.

STATE OF FLORIDA, et al.,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

Petitioner Giovanni DePalma respectfully petitions

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit.

Giovanni DePalma v. State ofFlorida, et al.

OPINIONS BELOW

The opinion of the Court of Appeals, Pet. App. 1, is

unreported. The opinion of the United States District Court

for the Middle District of Florida dismissing Mr

DePalma's petition, Pet. App. 2, is reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 17, 2024. Pet. App. la. The petition for

rehearing or rehearing en banc was denied on March 5,

2024. Pet. App. lb. This Court has jurisdiction under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS AND CASE LAW

INVOLVED

42 U.S.C. § 1981(a); State v. Anderson, 537 S. 2d

1373 (Fla. 1989); State v. Clements, 903 So. 2d 919 (Fla.

2005); Younger v. Harris, 401 U.S. 37, 56, 19 S. Ct. 746

(1971).

2

Giovanni DePalma v. State ofFlorida, et al.

STATEMENT

This cause arises from an EMERGENGY

PETITION FOR PERMANENT INJUNCTION to enjoin

the State of Florida from maintaining and unconstitutional

conviction, where the District Court failed to meet its

obligation to inquire into a valid claim of subject matter

jurisdiction where it cannot [never] be waived and may be

raised at any time in State of Federal Courts.

The USCA 11th Circuit (specifically held that

’’Federal Courts are obligated to inquire into subject

matter jurisdiction sua sponte whenever it may be

lacking." University of South Alabama v. American

Tobacco Co., 168 F. 3d 405, 410 (11th Cir. 1999).

The District Court failed to inquire into a valid

claim, where the State filed a New Infonnation on the

morning of trial, after the empaneled jury was sworn, in

which said Charging Document was not accepted or ruled

upon by the trial Court, thus never took effect and

additionally violating double jeopardy protections.

A. Legal Background

I express a belief, based on a reasoned judgment,

that this cause was properly filed pursuant 42 U.S.C. §

1981.

42 U.S.C. § 1981(a) memorializes as follows:

•

Statement of equal rights

All persons within the jurisdiction of the United

States shall have the same right in every State and

Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white'

citizens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions of

every kind, and to no other.

3

Giovanni DePalma v. State ofFlorida, et al.

Mr. DePalma filed his EMERGENCY PETITION

FOR PERMANENT INJUNCTION (in the District Court)

according to the specific criteria as outlined in 42 U.S.C.

§ 1981(a), where through evidence, and to the full and

equal benefit of all laws and proceedings, which were

afforded by the Florida Supreme Court in State v.

Anderson, 537 S. 2d 1373 (Fla. 1989), and, State v.

Clements, 903 So. 2d 919 (Fla. 2005), in which the Florida

Supreme Court held as follows:

We hold that once a trial commences, the State

cannot amend the information without leave of

court, and the court cannot grant leave to amend the

information during trial if doing so would "prejudice

the substantial rights of the

defendant." Anderson, 537 So.2d at 1375. Because

the trial court in this case concluded that the mid-trial

filing of the second amended information would

prejudice the defendant, that information never

took effect.

And, as the United States Supreme Court held in Younger

v. Harris, 401 U.S. 37, 56, 19 S. Ct. 746 (1971):

The Court confines itself to deciding the policy

considerations that in our federal system must

prevail when federal courts are asked to interfere

with pending state prosecutions. Within this area,

we hold that a federal court must not, save in

exceptional and extremely limited circumstances,

intervene by way of either injunction or

declaration in an existing state criminal prosecution,

circumstances exist only when there is a threat of

irreparable injury “both great and immediate.” A

threat of this nature might be shown if the state

criminal statute in question were patently and

flagrantly unconstitutional on its face, ante, at 5354, 27 L Ed 2d at 680, 681, cf Evers v. Dwyer, 358

US 202, 3 L Ed 2d 222, 79 S Ct 178, or if there has

been bad faith and harassment-official lawlessnessin a statute’s enforcement, ante, at 47-49, 27 L Ed at

677,678. In such circumstances the reasons of policy

for deferring to state adjudication are outweighed by

the injury flowing from the very bringing of the state

4

Giovanni DePalma v. State ofFlorida, et al.

proceedings, by the perversion of the very process

that is supposed to provide vindication, and by the

need for speedy and effective action to protect

federal rights. Cf. Georgia v. Rachel, 384 US 780,

16 L Ed 2d 925, 86 SCt 1783.

B. Factual and Procedural History

On July 14,2008, the arrest warrant was issued.

On July 20,2008, the Petitioner, Giovanni DePalma

(hereinafter “Mr. DePalma”) voluntarily surrendered for

arrest to the Hillsborough County Sheriffs Office.

On August 12, 2008, the State filed the original

Information charging three(3) counts:

•

Count One: Lewd and lascivious battery.

•

Count Two: Lewd and lascivious

molestation.

•

Count Three: Lewd and lascivious

molestation.

occurring ".. .between the 25th day of March, 2008

and the 20th day of April, 2008..." with the following

name caption:

STATE OF FLORIDA

v.

JAIME DEPALMA

AKA: GIOVANNI DEPALMA

On March 29, 2010, prior and during Voir Dire,

the State filed two(2) Amended Informations.

The first Amended Information was filed prior to

Voir Dire with the aforementioned name caption charging

the similar three(3) counts as the original Information,

occurring however, "...between the 4th day of March,

2008 and the 20th day of April, 2008...” thus expanding

5

Giovanni DePalma v. State ofFlorida, et al.

the offense date by twenty-one(21) days. The Defense

was never provided a copy of said first amendment.

The second Amended Information filed on the

same day (March 29,2010), during Voir Dire charged the

exact three(3) counts and offense date as the first

amendment, but however, was filed without leave of

court, while the Court stood in recess and in the

absence of the trial judge, with the original name caption

crossed-out, and, the changed name and date set in

handwritten form:

(assimilated)

STATE OF FLORIDA

v.

JAIME DEPALMA

AKA: GIOVANNI DEPALMA

The Voir Dire record does not reflect that the filed

second Amended Information was accepted, or that the

Court made a ruling on leave to file, thus said

Information never took effect.

On March 30, 2010, the morning of trial, after the

empaneled jury was sworn, the State filed ore tenus a

third amendment in the form of a new Information; the

trial record, also, does not reflect that the new

Information was accepted or that the Court granted

leave to file, thus additionally, the new Information never

took effect, divesting the Court of subject matter

jurisdiction.

On March 31,2010, Mr. DePalma was pronounced

guilty as follows:

6

Giovanni DePalma v. State ofFlorida, et al.

Count One: Guilty of lesser battery.

Count Two and Three: Guilty as charged.

REASONS FOR GRANTING THE PETITION

The District Court failed to meet its obligation to

inquire into a valid claim of subject matter jurisdiction

where it cannot [ever] be waived and may be raised at any

time in State of Federal Courts.

Moreover, the District Court failed to inquire into a

valid claim, where the State filed a New Information on

the morning of trial, after the empaneled jury was

sworn in which said Charging Document was not

accepted or ruled upon by the trial Court, thus never

took effect and violating double jeopardy protections.

The District Court, chose to overlook a valid claim

of lack of ’’subject matter jurisdiction” and forego its

obligation as held by the USCA 11th Circuit, where

’’Federal Courts are obligated to inquire into subject

matter jurisdiction sua sponte whenever it may be

lacking.” University of South Alabama v. American

Tobacco Co., 168 F. 3d 405, 410 (11th Cir. 1999).

I. Subject Matter Jurisdiction

In the instant cause, the State filed three(3)

amended Informations.

The first amendment was filed On March 29, 2010,

prior to the commencement of Voir Dire, in which the

charging dates were expanded by twenty-one(21) days

from:

".. .between the 25th day of March, 2008 and the 20th day

of April, 2008..."

to

".. .between the 4th day of March 2008 and the 20th day of

April, 2008..."

7

Giovanni DePalma v. State ofFlorida, et al.

*The Defense was not aware of said amendment, and.

no copy was provided.*

The second Amended Information filed on the

same day (March 29, 2010), during Voir Dire, charged

the exact three(3) counts and offense date as the first

amendment, but however, was filed without leave of

court, while the Court stood in recess, and, in the

absence of the trial judge, with the original name caption

crossed-out, and, the changed name and date set in

handwritten form:

(assimilated)

STATE OF FLORIDA

v.

JAIME DEPALMA

AKA: GIOVAMN-I-DEPA-LMA-

The record does not reflect that the second filed

Amended Information was accepted, or that the Court

made a ruling on leave to file, thus said information

never took effect.

The Voir Dior record, also plainly reflects the

filing of said second Amended Information:

MR. KUHN: Regard to the Information we

have it as Jamie Depalma. It needs to be

reversed Giovanni, a.k.a., Jamie so I’ll go

ahead and just—

* The Court nor the Defense was aware of said

amendment, and, no copy was provided.*

8

Giovanni DePalma v. State of Florida, et al.

The third Amended Information in the form of a

new Information was filed ore tenus on the next day

(March 30, 2010), the morning of trial, during a bench

hearing where the Court and the Defense were

[absolutely] oblivious to the State's filing:

MR. KUHN: One more pretrial matter, if we

could just address the Information. State

had amended yesterday prior to voir dire

regarding correcting of the time frame.

Apparently after we made that amendment,

there was a—it was pointed out his legal name

was Giovanni Depalma, not Jamie, aka Jamie

Depalma. So that’s a new information with

leave of court we’d like to file. I don’t

believe the defendant has an objection with

just the corrected name. I want to keep it

clean.

The Court and the Defense, during a bench

hearing, prior to the commencement of trial, were

[completely] oblivious to said ore tenus filing of the new

Information.

* The Court nor the Defense was aware of said filing,

and, no copy was provided.*

The trial record does not reflect that the new

Information was accepted or ruled upon or that the trial

Court granted leave to file, thus additionally, the new

Information never took effect, divesting the Court of

subject matter jurisdiction.

Florida’s concept of subject-matter jurisdiction is

far different from the focus of standing. Jurisdiction is

concerned not with the dispute or the parties to it, but with

the court’s power to adjudicate the controversy presented,

and whether the court has been properly asked to

adjudicate it. As Florida courts have made clear, subject

matter jurisdiction comprises two essential aspects. First,

9

Giovanni DePalma v. State ofFlorida, et al.

a trial court must have “power to adjudicate the class of

cases to which such case belongs.” Lovett v. Lovett, 93

Fla. 611, 631, 112 So. 768, 776 (1927) (emphasis added);

Paulucci v. General Dynamics Corp., 842 So. 2d 797, 801

n.3 (Fla. 2003); Garcia v. Stewart, 906 So. 2d 1117, 1122

(Fla. 4th DCA 2005). Second, a court’s jurisdiction must

be “lawfully invoked by the filing of a proper pleading.”

Garcia, 906 So. 2d at 1122 (emphasis added); Florida

Power & Light v. Canal Auth., 423 So. 2d 421, 423 (Fla.

5th DCA 1982).

The Court in Lovett made clear that the first aspect

regarding the court’s power over the class of cases, is

“power conferred on the court by the sovereign .. .to deal

with the general abstract question.” 93 Fla. at 629-30, 112

So. at 775. Lovett also explained the second aspect lawful invocation of the court’s jurisdiction

as a

requirement to file a pleading or other document to

actually commence the case. 93 Fla. at 630; 112 So. at 775.

Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.

1954) (The trial court's lack of subject matter jurisdiction

may be raised at any time).

Subject matter jurisdiction has never been

established on the record. The jurisdictional question can

be raised at any time and can never be time-barred.

DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984).

In resolving a facial challenge to subject matter

jurisdiction, a court takes the allegations in the complaint

as true and looks to see if the plaintiff has alleged a basis

for jurisdiction. McElmurray v. Consol. Gov’t of AugustaRichmond County, 501 F.3d 1244, 1251 (11th Cir. 2007);

Al-Saleh, 2012 WL 13012775, at *1.

e

A court must have jurisdiction to enter a valid,

enforceable judgment on a claim. Where jurisdiction is

lacking, litigants,

through

various

procedural

10

Giovanni DePalma v. State of Florida, et al.

mechanisms, may retroactively challenge the validity of a

judgment.

II. Double Jeopardy

On March 30,2010, the morning of trial, after the

empaneled jury was sworn, the State filed ore tenus a

third amendment in the form of a new Information; the

trial record, also, does not reflect that the new

Information was accepted or that the Court granted

leave to file.

On March 31, 2010, Mr. DePalma was found guilty

on a new Information that never took effect, which was

filed after the empaneled jury was sworn.

Mr. DePalma, a pro se litigant, challenged his

unconstitutional conviction through an EMERGENCY

PETITION FOR PERMANENT INJUNCTION, and the

District Court for the purpose of DISMISSING Mr.

DePalma's said petition treated his cause as a Habeas

Corpus § 2254.

In the instant cause, the State filed three(3)

amended Informations.

The first amendment was filed On March 29, 2010,

prior to the commencement of Voir Dire, in which the

charging dates were expanded by twenty-one(21) days

from:

".. .between the 25th day of March, 2008 and the 20th

day of April, 2008..."

to

".. .between the 4th day of March 2008 and the 20th day

of April, 2008..."

*The Defense was not aware of said amendment, and.

no copy was provided.*

li

Giovanni DePalma v. State ofFlorida, et al.

The second Amended Information filed on the

same day (March 29, 2010), during Voir Dire, charged

the exact three(3) counts and offense date as the first

amendment, but however, was filed without leave of

court, while the Court stood in recess, and, in the

absence of the trial judge, with the original name caption

crossed-out, and, the changed name and date set in

handwritten form:

(assimilated)

STATE OF FLORIDA

v.

JAIME DEPALMA

AKA: GIOVANNI DEPALMA

The record does not reflect that the second filed

Amended Information was accepted, or that the Court

made a ruling on leave to file, thus said information

never took effect.

The Voir Dior record, also plainly reflects the

filing of said second Amended Information:

MR. KUHN: Regard to the Information we

have it as Jamie Depalma. It needs to be

reversed Giovanni, a.k.a., Jamie so I’ll go

ahead and just-* The Court nor the Defense was aware of said

amendment, and, no copy was provided.*

The third Amended Information in the form of a

new Information was filed ore tenus on the next day

(March 30, 2010), the morning of trial, during a bench

hearing:

12

Giovanni DePalma v. State of Florida, et al.

MR. KUHN: One more pretrial matter, if we

could just address the Information. State

had amended yesterday prior to voir dire

regarding correcting of the time frame.

Apparently after we made that amendment,

there was a—it was pointed out his legal name

was Giovanni Depalma, not Jamie, aka Jamie

Depalma. So that’s a new information with

leave of court we’d like to file. I don’t

believe the defendant has an objection with

just the corrected name. I want to keep it

clean.

The Court and the Defense, during a bench

hearing, prior to the commencement of trial, were

[completely] oblivious to said ore tenus filing of the new

Information.

* The Court nor the Defense was aware of said filing,

and, no copy was provided.*

Moreover, on March 30, 2010, the morning of

trial, after the empaneled jury was sworn, the State filed

ore tenus a third amendment in the form of a new

Information, thus violating Mr. DePalma's double

jeopardy protection.

The trial record, also, does not reflect that the new

Information was accepted or that the Court granted leave

to file.

On March 31, 2010, Mr. DePalma was found guilty

on a new Information that never took effect.

The Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution directs that

“[n]o person shall be . . . subject for the same offence to

be twice put in jeopardy of life or limb.” This provision

was ratified and incorporated into the text of the United

13

Giovanni DePalma v. State ofFlorida, et al.

States Constitution along with the rest of the Bill of Rights

on December 15, 1791. But it has been recognized that the

protections preserved by the Double Jeopardy Clause have

far older roots in the common law of England, the JudeoChristian legal tradition, and even the law of the GrecoRoman period. Benton v. Maryland, 395 U.S. 784, 795

(1969); David S. Rudstein, A Brief History of the Fifth

Amendment Guarantee Against Double Jeopardy, 14 Wm.

& Mary Bill Rts. J. 193, 196-221 (2005). Protections

against being twice put in jeopardy of criminal punishment

made their way into the codified laws of some of the

British colonies and several of the early state constitutions,

which served as a model for the Double Jeopardy Clause

of the United States Constitution. Rudstein at 221-26. The

right is now regarded as fundamental, and the Double

Jeopardy Clause has been incorporated through the

Fourteenth Amendment to the United States Constitution

11 and rendered applicable against the states. Benton at

795-96. The constitutional provision finds several

applications:

The Double Jeopardy Clause “protects

against a second prosecution for the same

offense after acquittal. It protects against a

second prosecution for the same offense after

conviction. And it protects against multiple

punishments for the same offense.”

Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969)).

This Court has explained the longstanding conceptual

underpinning of the protections preserved by the Double

Jeopardy Clause:

The underlying idea, one that is deeply

ingrained in at least the Anglo-American

system of jurisprudence, is that tfie State with

all its resources and power should not be

allowed to make repeated attempts to convict

an individual for an alleged offense, thereby

14

Giovanni DePalma v. State ofFlorida, et al.

subjecting him to embarrassment, expense

and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as

well as enhancing the possibility that even

though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). The

rule “represents a constitutional policy of finality for the

defendant's benefit.” United States v. Jom, 400 U.S. 470,

479 (1971). The “heavy personal strain which a criminal

trial represents for the individual defendant” has justified

defining “jeopardy” with significant breadth: “These

considerations have led this Court to conclude that a

defendant is placed in jeopardy in a criminal proceeding

once the defendant is put to trial before the trier of the

facts, whether the trier be a jury or a judge.” Id. 12

To the end of securing the finality of a prosecution,

“courts have found it useful to define a point in criminal

proceedings at which the constitutional purposes and

policies are implicated by resort to the concept of

‘attachment of jeopardy.’ ” Serfass v. United States, 420

U.S. 377,388 (1975) (quoting Jom at 480). This Court has

decided that for “a jury trial, jeopardy attaches when a jury

is empaneled and sworn,” and for “a nonjury trial,

jeopardy attaches when the court begins to hear evidence.”

Id. This rule “prevents a prosecutor or judge from

subjecting a defendant to a second prosecution by

discontinuing the trial when it appears that the jury might

not convict.” Green at 188.

III. The Question Presented Is Exceptionally Important

and Squarely Presented

At bar, Mr. DePalma filed a valid claim before the

District Court and properly appealed to the USCA 11th

Circuit

his

EMERGENCY

PETITION

FOR

PERMANENT INJUNCTION pursuant to 42 U.S.C. §

1981, to give evidence, and to the full and equal benefit

15

Giovanni DePalma v. State ofFlorida, et al.

of all laws and proceedings as afforded to all persons

residing in the United States.

In the instant cause, the Court should not overlook

a valid claim of lack of subject matter jurisdiction,

where Mr. DePalma is exercising his right under the

United States Constitution, Amend. /, to redress his

grievance before the government.

Mr. DePalma, a pro se litigant, should be afforded

full and equal benefit of all laws and proceedings

pursuant to 42 U.S.C. § 1981(a).

Moreover,

Mr.

DePalma's

EMERGENCY

PETITITON FOR PERMANENT INJUNCTION, should

have been properly reviewed to where a pro se plaintiffs

pleadings are held to “less stringent standards” than

those drafted by attorneys. White v. White, 886 F. 2d 721,

722-23 (4th Cir. 1989). Nonetheless, the Court is not

required to accept a pro se plaintiffs’ contentions as true.

Denton v. Hernandez, 504 U.S. 25, 32, 112 S. Ct. 1728,

118 L. Ed. (1992). Instead, the Court is permitted to

“pierce the veil of the complaint’s factual allegations and

dismiss those claims whose factual allegations are clearly

baseless.” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.

Ct. 1827, 104 L. Ed. 2d 338 (1989). Such baseless claims

include those that describe “fantastic or delusional

scenarios. Id. At 328. Provided that plaintiffs’ claims are

not clearly baseless, the Court must weigh the factual

allegations in plaintiffs favor in its frivolity analysis,

Denton, 504 U.S. at 32. The Court must read the complaint

carefully to determine if a plaintiff has alleged specific

facts sufficient to support claims asserted. White, 886 F.

2d at 724.

The Court failed to meet its obligation to inquire

into a valid claim of subject matter jurisdiction where it

cannot be waived and may be raised at any time in State

or Federal Courts.

16

Giovanni DePalma v. State ofFlorida, et al.

IV The Decision Below Is Wrong

The Second Circuit’s decision is manifestly

incorrect.

As aforementioned, Mr. DePalma filed a valid claim

through

an

EMERGENCY

PETITION

FOR

PERMANENT INJUNCTION pursuant to Younger v.

Harris, 401 U.S. 37, 56, 19 S. Ct. 746 (1971):

The Court confines itself to deciding the policy

considerations that in our federal system must

prevail when federal courts are asked to interfere

with pending state prosecutions. Within this area,

we hold that a federal court must not, save in

exceptional and extremely limited circumstances,

intervene by way of either injunction or

declaration in an existing state criminal prosecution,

circumstances exist only when there is a threat of

irreparable injury “both great and immediate.” A

threat of this nature might be shown if the state

criminal statute in question were patently and

flagrantly unconstitutional on its face, ante, at 5354, 27 L Ed 2d at 680, 681, cf Evers v. Dwyer, 358

US 202, 3 L Ed 2d 222, 79 S Ct 178, or if there has

been bad faith and harassment-official lawlessnessin a statute’s enforcement, ante, at 47-49, 27 L Ed at

677,678. In such circumstances the reasons of policy

for deferring to state adjudication are outweighed by

the injury flowing from the very bringing of the state

proceedings, by the perversion of the very process

that is supposed to provide vindication, and by the

need for speedy and effective action to protect

federal rights. Cf. Georgia v. Rachel, 384 US 780,

16 L Ed 2d 925, 86 SCt 1783.

In the instant cause, the Court should not overlook

a valid claim of lack of subject matter jurisdiction,

where Mr. DePalma is exercising his right under the

United States Constitution, Amend. /, to redress his

grievance before the government.

17

Giovanni DePalma v. State ofFlorida, et al.

Furthermore, the District Court failed to inquire into

a valid claim, where the State on March 30, 2010 (the

morning of trial) filed a new Information on the morning

of trial, after the empaneled jury was sworn, in which

said Charging Document was not accepted or ruled upon

by the trial Court, thus never took effect, thus double

jeopardy attached. Crist v. Bretz, 437 U.S. 28, 98 S. Ct.

2156, 57 L. Ed. 2d 24 (1978); Bizzell v. State, 71 So. 2d

735 (Fla. 1954).

The several liberal filed amendments by the State

affected the future of the instant case, where every filed

Information vitiated the previously filed amendments as if

they had been dismissed, and thus, the abandonment of

every previously filed Information left the State without a

charge pending against Mr. DePalma. State v. Anderson,

537 So. 2d 1373 (Fla. 1989); State v. Belton, 468 So. 2d

495 (Fla. 5th DCA1985); Wilcox v. State, 248 So. 2d 692

(Fla. 4th DCA1971); State v. Clements, 903 So. 2d 919

(Fla. 2005).

Mr. DePalma’s due process of law and double

jeopardy immunity was violated against the protections as

guaranteed by the U.S. Const. Amend. I, V, VIII & XIV.

[I]t is settled law that trial begins when the selection

of a jury to try a case commences.” State v. Melendez, 244

So. 2d 137, 139 (Fla. 1971). The selection of a jury to try

a case is the beginning of trial.” State v. Singletary, 549

So. 2d 996, 998 (Fla. 1989).

The new Information filed ore tenus, on the

morning of trial, without leave of court had more

serious consequences for the State because it was filed

after the empaneled jury was sworn:

MR. KUHN: One more pretrial matter, if we

could just address the Information. State had

amended yesterday prior to voir dire

regarding correcting of the time frame.

18

Giovanni DePalma v. State ofFlorida, et al.

Apparently after we made that amendment,

there was a—it was pointed out his legal name

was Giovanni Depalma, not Jamie, aka Jamie

Depalma. So that’s a new information with

leave of court we’d like to file. I don’t

believe the defendant has an objection with

just the corrected name. I want to keep it

clean.

Upon the State filing ore tenus said new

Information, on the morning of trial, with the exact name

caption, charges, and date as the abandoned second

Amended Information, caused double jeopardy to

attach, thus triggering Mr. DePalma’s protection under

the U.S. Const. Amend. V, where no person shall “be twice

put in jeopardy of life and limb,” and as a result Mr.

DePalma suffers irreparable injury.

Mr. DePalma’s right of Due Process and protection

against double jeopardy were violated upon the filing of

the second Amended Information and the new

Information, and he cannot again be tried for any of the

charges contained in the aforementioned Informations.

U.S. Const. Amends. V & XIV; Fla. Const. Art. I, § 9

& 17.

Mr. DePalma, in the U.S. District Court filed an

EMERGENCY PETITION FOR PERMANENT

INJUNCTION to enjoin the State of Florida from

maintaining an unconstitutional conviction pursuant 42

U.S.C. § 1981.

The District Court erred when it treated said petition

as a Habeas Corpus pursuant to § 2254 and overlooked a

valid claim of lack of subject matter jurisdiction, thus

foregoing its Federal Court obligation to inquire into

subject matter jurisdiction sua sponte whenever it may

be lacking.

19

Giovanni DePalma v. State ofFlorida, et al.

Moreover, the District Court overlooked a double

jeopardy violation, which is apparent on the face of the

record.

From start to finish, the District Circuit misapplied

basic principles of statutory construction and overlooked

well standing State and Federal case law, and, egregious

United States Constitutional violation.

This Court’s immediate intervention is warranted to

prevent an apparent miscarriage of justice.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Executed on this 29th day of April, 2024.

Respectfully submitted,

/s/ Giovanni DePalma

Giovanni DePalma

c/o Frank Verity

4901 Melrow Court

Tampa, FL 33624

20

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.

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