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.