Petition — Nolan v. Florida

“ Supreme Court. U. Sw

FILED

| MAY 22 1078

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

JAMES THOMAS NOLAN,

Petitioner,

-vVs-

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEALS

OF FLORIDA, FOURTH DISTRICT

FRED HADDAD of

SANDSTROM & HADDAD

429 South Andrews Avenue

Fort Lauderdale, Florida

Counsel for Petitioner

AS

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT ONE

AMENDMENT FOURTEEN

FLORIDA STATUTE INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

POINT ONE

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

3. Petition for Writ of Certiorari

A-4

(i)

PAGE

Appendix (continued)

4. Petition for ReHearing

A-5

5. Order from Florida Supreme Court

Denying Rehearing

A-6

6. Florida Traffic Citation

A-7

7. Amended Information

A-8

8. Motion to Dismiss

A-9

9. Order denying Motion to Dismiss

A-10

TABLE OF CITATIONS

Bates v. City of Little Rock, 361 U.S. 516,

80 S.Ct. 412, 4 L.Ed.2d 480 (1960)

Baumgartner v. United States, 322 U.S. 665,

64 S.Ct. 1240, 88 L.Ed. 1525 (1944)

Blount v. Rizz, 400 U.S. 410, 91 S.Ct. 423,

27 L.Ed.2d 498 (1971)

Brandenburg v. Ohio, 395 U.S. 444,

89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)

California V. LaRue, 409 U.S. 109,

93 S.Ct 390, 34 L.Ed. 342 (1972)

Page

— + ——_——_- »

Table of Citations Continued

Page

Carroll v. President, 393 U.S. 175, 6

89 S.Ct. 347, L.Ed.2d 325 (1968)

City of Pasco v. Dixsen, $1 Wash. 2d 512, 6

503 P. 2d 76 (1972)

Cohen v.California, 91 S.Ct. 1780 (1971) 6

Edward v. South Carolina, 372 U.S. 229, 8

83 S.Ct. 680, 9 L.Ed.2d 697 (1963)

Garrison v. Louisiana, 379 U.S. 64, 6

85 S.Ct. 209, 13 L.Ed.2d 125 (1964)

Goodling v. Wiison, 495 U.S. 518, 7

92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)

Healy v. James, 408 U.S. 169, 6

92 S.Ct. 2338, 33 L.Ed.2d 266 (1972)

Hess v. Indiana, 414 U.S. 105, 7

94 S.Ct. 326, 38 L.Ed.2d 303 (1973)

Kingsley International Pictures Corp. v. 6

Regents of University of State of New

York, 360 U.S. 684, 79S.Ct. 1362,

3 L.Ed.2d 1512 (1959)

Lewis v. City of New Orleans, 415 U.S. 130 6

94 S.Ct 970, 39 L.Ed.2d 214 (1974)

Table of Citations (continued)

Norwell v. City of Shaker Heights, 414 U.S. 14,

94 S.Ct. 187, 38 L.Ed.2d 170 (1973)

apesh v. Board of Curators of University

of Missouri, 410 U.S. 667, 93 S.Ct. 1197,

35 L.Ed.2d 618 (1973)

Robinson v. Coopwood, 292 F. Supp. 926,

(D.C. Miss. 1962) Aff'd 415 F. 2d 1377,

(Sth Cir. 1968)

Rosenblatt v. Baer, 383 U.S. 75,

86 S.Ct. 669, 15 L.Ed.2d 597 (1966)

Spence v. Washington, 418 U.S. 405,

94 §.Ct. 2727, 41 L.Ed.2d 842 (1974)

Street v. New York, 394 U.S. 576,

89 S.Ct. 1354, 22 L.Ed.2d 572 (1969)

Terminiello v. City of Chicago, 337 U.S. 1,

69 S.Ct. 894, 93 L.Ed.2d 1131 (1949)

Tollett v. United States,

485 F.2d 1087 (Sth Cir. 1973)

Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

Case No:

JAMES THOMAS NOLAN,

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEALS

OF FLORIDA, FOURTH DISTRICT

The Petitioner, JAMES THOMAS NOLAN, moves that a

Writ of Certiorari issue to review the judgment of the District Court of

Appeals of Florida, affirming the felony Orders, judgment and sentence

Of the Circuit Court of the Seventeenth Judicial Circuit in and for

Broward County, Florida.

OPINION BELOW

The decision of the District Court of Appeals affirming the

Trial Court is a per curiam order issued without opinion and appears at

[A. 1] of Petitioner's Appendix to this Petition.

JURISDICTION

The judgment of the District Cour of Appeals of Florida,

Fourth District, was rendered on 26 July 1977 [A. 2], and on

2 September 1977, that Court denied Petitioner’s Petition for Rehearing

[A. 3]. Thereafter, on or about 16 September 1977, a Petition for Writ

of Certiorari was filed with the Supreme Court of the State of Florida

[A. 4], the Petition was denied on 8 December 1977. A Petition for

Rehearing was made to the Florida Supreme Court on or about 15

December 1977 [A. 5], and said Petition was denied by the Court on 21

February 1978 [A. 6] thusly leaving the decision of the District Court of

Appeals, Fourth District, the highest Court in which a decision could be

had. Pursuant to Florida Appellate Rules applicable at the time of filing

of the various Petitions after the Appellate Court decision of 26

July 1977, caused that decision to be automatically stayed. The

jurisdiction of this Court is invoked under Title 28 U.S.C. § 1257 (3).

QUESTION PRESENTED

1. WHETHER FLORIDA STATUTE 838.021

“CORRUPTION BY THREAT AGAINST

PUBLIC OFFICIAL” VIOLATES THE FREE

SPEECH CLAUSE OF THE UNITED STATES

CONSTITUTION AS WELL AS CREATING

(2)

A SPECIAL CLASS IN DEROGATION OF

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT ONE

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof, or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

AMENDMENT FOURTEEN

Section 1. All persons born or naturalized in the United States, and

subjects to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shali make or enforce any law

which shall abridge the privileges and immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,or

property without due process of law, nor deny to any person within its

jurisdiction the equal protection of laws.

FLORIDA STATUTE INVOLVED

838.021 Corruption By Threat Against Public Servant

(1) Whoever unlawfully harms or threatens unlawful harm to

any public servant, to his immediate family, or to any other person with

whose welfare he is interested, with the intent or purpose:

(a) To influence the performance of any act or omission

which the person believes to be, or the public servant represents as

(3)

being, within the official discretion of the public servant, in violation of a

public duty, or in performance of a public duty.

(b) To cause or induce him to use or exert, or procure the

use or exertion of, any influence upon or with any other public servant

regarding any act or omission which the person believes to be, or the

public servant represents as being, within the official discretion of the

public servant, in violation of a public duty, or in performance of a public

(2) Prosecution under this section shall not require any

allegation or proof that the public servant ultimately sought to be

unlawfully influenced was qualified to act in the desired way, that he had

assumed office, that the matter was properly pending before him or

might by law properly be brought before him, that he possessed

jurisdiction over the matter,or that his official action was necessary to

achieve the person’s purpose.

(3) (a) Whoever unlaw*ully harms any public servant or any

other person with whose welfare he is interested shall be guilty of a

felony of the second degree, punishable as provided in §775.082,

§775.083, or §775.084.

(b) Whoever threatens unlawful harm to any public

servant or to any other person with whose welfare he is in—

terested shall be guilty of a felony of the third degree,

punishable as provided in § 775.082, §775.083, or § 775.084.

STATEMENT OF THE CASE

The Petitioner was arrested on 14 October 1975, at 11:57

P.M., in Hollywood, Florida, by one Timothy Hunter, a policeman of

that city for the offense of driving while under the influence of alcoholic

beverages [A. 7]. Thereafter, an Information was filed by the State’s

Attorney of the Seventeenth Judicial Circuit, in and for Broward

County, Florida [A. 8], charging tnat Petition, on 14 October 1975,

“did unlawfully threaten unlawful harm

to a public servant, to-wit Timothy

Hunter, a duly authorized police officer

and public emloyee of the City of Holly-

wood, Florida, by threatening to kill him

if he arrested the said Defendant, James

(4)

Thomas Nolan, with the intent or purpose

to influence the performance of a public

duty of the said Timothy Hunter, to-wit:

the arrest and detention of the said James

Thomas Nolan for the offense of Driving

While Intoxicated, contrary to

F. S. 838.021.”

The Information did not allege, nor did the proofs establish that

Petitioner did any more than verbally accost the arresting policeman:

there were no allegations or offers of proof that Petitioner did any act to,

or had the present means whereby he could carry those threats to

fruition. The case proceeded upon mere speech. It was uncontroverted

that Petitioner was intoxicated.

The Petitioner filed a ““Motion to Dismiss” before the Trial Court

[A. 9] attacking not only the vagueness of the Statute but also its

unconstitutionality as being in derogation of the First Amendment to the

Constitution of the United States. After hearing, the Motion was denied

by the Court [A. 10].

The case proceeded to jury trial, Petitioner was convicted and

sentenced to the custody of the Division of Correction of the State of

Florida for a term of five (5) years. The reviewing State Courts upheld

the Orders, judgment and sentence.

REASONS FOR GRANTING THE WRIT

1. Florida Statute 838.021 either facially or as applied to Petitioner is

such as to be in derogation of the safeguards afforded the Petitioner

by virtue of the Constitution of the United States, Amendments One

and Fourteen.

Florida Statute 838.021 is a Subchapter of Chapter 838 of the

Florida Statutes which bear the general heading “Bribery; Misuse of

Public Office”, and denounce inter alia the bribery of various officials

within the State government and its subdivisions, and from its very

reading addresses “crimes” relative to “political” officials.

The Florida Statutes have various statutes which embrace crimes

t . the * ti isa Li or the Li ’s j ti are hi i j

(5)

by a citizen of the State of Florida, to-wit:

F.S. 843.01 - “Resisting Arrest With Violence”

F.S. 843.02 - “Resisting Arrest Without Violence”

as well as the other offenses enumerated in Florida Statutes Chapter.

843, entitled “Obstructing Justice”’.

Florida Statute 838.021 is a Statute with its derivation in 1975, and

it does not appear that any cases have been decided thereunder. Under

the peculiarities of the case sub judice, the Petitioner would allege that

its being applied in a criminal prosecution against him is uncon-

stitutional.

The Petitioner, while drunk, threatened to kill a policeman after his

actual arrest; only mere words were spoken and Petitioner did nothing at

any time to carry out this threat, nor did he have the ability to do so at the

ume.

The Court has long recognized the right of the citizens of this

country to exercise their guaranteed free speech, no matter how

offensive the same may be to others [See, i.e., Spence v. Washington,

418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Cohen v.

California, 91 S.Ct. 1780 (1971); Street v. New York, 394 U.S. 576,

89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Kingsley International

Pictures Corp. v. Regents of University of State of New York, 360 U.S.

684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Baumgartner v. United

States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944);

Terminiello v. City of Chicago, 337 U.S.1, 69 S.Ct.894, 93 L.Ed.2d

1131 (1949)], subject, of course, to protecting the public from imminent

danger such as riot [See: Carroll v. President, 393 U.S. 175, 89 S.Ct.

347, 21 L.Ed.2d 325 (1969); Blount v. Rizz, 400 U.S. 410, 91 S.Ct.

423, 27 L.Ed.2d 498 (1971); Bates v. City of Little Rock, 361 U.S.

516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); See also: Healy v. James,

408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972)).

And this Court has had to confront the situation of irate irresponsible

“speech” being directed to agents of law enforcement [See: Lewis v.

City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214

(1974); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d

125 (1964); Rosenblatt v. Baer, 383 U.S. 75, 86S8.Ct. 669, 15 L.Ed.2d

59 (1966); cf: Papesh v. Board of Curators of University of Missouri,

410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); City of Pasco v.

(6)

a

Dixson, 81 Wash. 2d 512, 503 P.2d 76 (1972).

In this vein, the Court has held that words amounting to nothing

more than advocacy of illegal action [i.c., “off the pigs”] at some

indefinite future time does not come within the narrowly limited classes

of speech which the State may punish [See: Hess v. Indiana, 414 U.S.

105, 95 S.Ct. 326, 38 L.Ed.2d 303 (1973)]. Clearly, the idle remarks of

Even assuming the State has a legitimate interest in protecting its

public officials, perhaps including the police, from the intempera.e

threatening remarks that occur in the normal course of business, the

Petitioner would submit, as is existed at common law, mere words are

never sufficient. The Florida Statute, as applied in this instance, causes

a substantial term of incarceration for the expression of what most

persons would feel like expressing at the time of an arrest and the

punishing of the naked expression to a policeman cannot pass

constitutional muster | See: Norwell v. City of Shaker Heights, 414 U.S.

14, 94 S.Ct 187, 38 L.Ed 2d 170(1973)], were the same words uttered

to a councilman relative to his vote on a zoning matter, the Petitioner

would better understand the State’s interest [cf: California v. LaRue,

409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 342 (1972); Goodling v. Wilson,

405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Tollett v. United

States, 485 F.2d 1087 (Sth Cir.1973)].

Petitioner merely expressed, verbally, his immediate reaction to the

situation within which he found himself. His statement should not and

cannot validly form the basis of the instant conviction, for such falls

within the purview of “protected speech” as provided for and guaranteed

by the First Amendmeut. Street v. New York, supra; Norwell v. City of

Shaker Heights, supra. The mere fact that Petitioner’s statement could

indicate a future disturbance will not destroy the actual, protected and

legitimate nature of Petitioner’s words to the officer. See: Brandenburg

v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

Petitioner is cognizant of the fact that the First Amendment does

not provide for an absolute protection to every individual to so speak

whatever, whenever and wherever he pleases. Cohen v. California, 403

U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, (1971). However, the right to

freedom of speech does encompass and protect the right of the public to

reasonably express their thoughts, ideas and opinions without fear of

reprisal when such speech does not constitute imminent danger. Clearly,

[7]

free speech may not be restricted on the mere possibility that some

breach of the peace might occur at some future time. Robinson v.

Coopwood, 292 F.Supp. 926 (D.C. Miss. 1962), affirmed 415 F.2d

1377 (Sth Cir. 1968).

Instantly, Petitioner was convicted of an offense by merely uttering

words describing a potential future act. Such statements were not

“fighting words” or speech constituting an imminent danger. Petitioner’s

constitutional right to freedom of speech has been violated by the State

of Florida, as he has been punished for mere statements that are

protected by the First Amendment. See: Edward v. South Carolina,

372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).

[8]

CONCLUSION

On the basis of this and for all of the foregoing, the Petition for Writ

of Certiorari ought be granted.

Respectfully submitted,

SANDSTROM & HADDAD

Attorneys for Petitioner

429 South Andrews Avenue

Fort Lauderdale, FL 33301

Telephone: (305) 467-6767

BY:

FRED HADDAD

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a copy of the foregoing Petition for

Writ of Certiorari has been furnished to the Office of the Attorney

General, 225 Pan American Building, West Palm Beach, Florida, this

16 May 1978.

BY:

FRED HADDAD

[9]

APPENDIX

from Circuit Court

A-1 and A-2

Order from District Court of Appeal,

ne Sa

ee ae ee ee

ye | denying Motion to Dismiss

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 1977

JAMES THOMAS NOLAN,

Appellant,

v.

CASE NO. 76-999

STATE OF FLORIDA,

Appellee.

i

Decision filed July 26, 1977

Appeal from the Circuit Court for

Broward County; Robert W. Tyson, Jr.,

Judge.

Robert T. Adams, Jr., Fort Lauderdale,

for appellant.

Robert L. Shevin, Attorney General, Tallahassee,

and Paul H. Zacks, Assistant Attorney General,

and Benedict P. Kuehne, Legal Intern, West Palm

Beach, for appellee.

PER CURIAM.

AFFIRMED.

CROSS, ALDERMAN, and DAUKSCH, JJ., concur.

A-1 & A-2

IN THE DISTRICT COURT OF APPEAL IN THE SUPREME COURT OF THE

OF THE STATE OF FLORIDA STATE OF FLORIDA

FOURTH DISTRICT

JAMES THOMAS NOLAN, :_ peTITION FOR A WRIT OF

JAMES THOMAS NOLAN . CERTIORARI TO THE DISTRICT

Petitioner, ° COURT OF APPEAL, FOURTH

Appellant. ; DISTRICT

vs.

; CASE NO. 76-999. ) i

; STATE OF FLORIDA,

STATE OF FLORIDA

Respondent.

Appellee.

September 2, 1977

TO THE SUPREME COURT OF THE STATE OF FLORIDA:

Petitioner, JAMES THOMAS NOLAN, presents this, his

ORDERED that the petition for rehearing filed August 3, 1977 petition for a writ of certiorari and states:

is hereby denied. 1. Petitioner seeks to review the decision of the District court of

Appeal, Fourth District, dated the 26th of July, 1977, and filed in the

records of the said District Court on the 26th of July, 1977, in Book 43,

Page 346, and the Order denying a Petition for Rehearing filed in the

said District Court on September 2, 1977, in Book 44, Page 413.

A TRUE COPY 2. This petition is presented under and pursuant to Article 5,

Sections 3 and 4, of the Florida Constitution, and Rule 4.5c of the

Is/ 1 3. Accompanying this Petition conformed copies of

. ying are copies of so

CLYDE L. HEATH much of the record of the proceedings as is necessary to show

clerk jurisdiction including the decision the Petitioner seeks to have reviewed

and a supporting brief.

ce: Robert T. Adams, Jr., Esq. 4. The following are the facts of the case:

Paul H. Zacks, Esq. A. The Petitioner was charged by way of an

Information and an Amended Information charging an alleged

y violation of Florida Statute 838.021 (copies attached as

Exhibits | and 2, respectively).

B. That Motions to Dismiss the Information

A-3 A-4

and Amended Information were filed attacking among other

things, the constitutionality of the Statute (copies of said

Motions attached as Exhibits 3 and 4, respectively), the

Defendant standing mute to the alleged Amended Information.

C. That the Trial Court specifically ruled on

the constitutionality of the Statute and other grounds in denying

the said Motions to Dismiss without a written order, but said

denial is reflected in the Minutes, Book 315, Page 95, dated

February 4, 1976, (copies attached as Exhibit 5).

D. That Florida Rule of Criminal Procedure

3.400 specifically states what materials may be taken to a jury

room during deliberation and there was a direct violation of this

Rule by a juror having with him during deliberation a magazine

with the lead article entitled ““ ‘Revolving Door’ Justice - Why

Criminals Go Free”. That a copy of the magazine was accepted

as a Court Exhibit and made part of the Record on Appeal, said

magazine being U.S. News and Worid Report, May 10,1976,

and copies of portions of that magazine with portions of the

articles contained therein are attached hereto as Exhibit 6. The

Trial Court denied a Motion for a Mistrial and did not conduct a

hearing regarding prejudice. (See Exhibit 7, which is portions of

the Transcript, pages 388 through 391.)

E. That Florida Statue 838.021 is a Statute

requiring a “specific “intent and that even though written

requested jury instructions were presented the Trial Court

the Statute to be read to the jury, the Trial Court denied the

instructions and did not read the Statute. (See Exhibits 8, 9 and

10 which are copies of written requested jury instructions |

through 3 and portions of the transcript of testimony, pages 343

through 345, and pages 384 and 385, respectively.) The

Petitioner also relied upon Rule 3.390 of the Florida Rules of

Criminal Procedure regarding jury instructions, but

acknowledged that the penalty need not be given.

F. That a Motion to Impose Sanctions was

filed and denied when a State witness did not respond to a

Discovery Deposition Subpoena (See attached Exhibit 11),

said Motion to Impose Sanctions being part of the record on

2

appeal (R 12).

G. That a Motion for Bill of Particulars was

filed (Exhibit 12) and answered (Exhibit 13) with the Petitioner

clearly notifying the State and the Court prior to jeopardy that

they were relying on the answer. (See Exhibit 14, which is in the

transcript, pages 16 and 17.)

H. That the Petitioner was not allowed to call

a defense witness even though the witness was available for

interview by the prosecution and Rule 3.220 F) of the Florida

Rules of Criminal Procedure was complied with. (See Exhibit

15, which is in the transcript, pages 186 through 188.)

I. That the Trial Court denied a Motion for

Judgment of Acquittal which cited as one of the grounds a

material variance in that the Information and Bill of Particulars

supplied allege that the Petitioner was charged with “driving

while intoxicated” but the proof was only that he was charged

with “driving while under the influence”. This distinction is of

paramount importance because if there were proof of intoxi-

cation, intoxication could have been a defense to a “specific

intent” crime. (See Exhibit 16, which was a defense Exhibit at

the trial and is part of the Record on Appeal.)

J. That during final argument the prosecutor

committed fundamental error by improperly arguing:

1. That he was going to tell about

statements the Petitioner made but were not

heard by the jury because they were blocked

by objections of defense counsel, reiterating

that he was going to comment on those

statements and he knew that there would be

grounds for a mistrial or a motion for a mistrial

(See Exhibit 17, transcript Page 379).

2. That the Petitioner had sexual relations

with his brothers (See Exhibit 18, transcript

Page 354).

5. On the foregoing facts the Court was presented with the

following points of law:

A. Whether the violation of Rule 3.400 by

reversible error, warranted at least a full hearing as to its

prejudicial effect and whose burden it becomes to show

prejudice or non-prejudice when there is a violation of a Rule of

Criminal Procedure.

B. Whether there was reversible error and

denial of equal protection for the Petitioner and the State when

the Petitioner (Defendant) complied with Rule 3.220 of the

Florida Rules of Criminal Procedure and the State did not.

C. Whether the Court erred in denying

written requested jury instructions and in failing to read the

Statute allegedly violated.

D. Whether the Trial Court erred in denying a

Motion for Judgment of Acquittal and in failing to recognize the

material variance between “Driving while under the influence”

and“ Driving while intoxicated”.

E. Whether the Court erred in failure to

uphold strict standards of conduct for a prosecutor's final

argument.

6. The affirmance of the Trial Court by the Fourth District

Supreme Court decision, Richardson v. State, 246 So.2d 771

(Fla., 1971), which is also in conflict with the Fourth District.

C. The District Court in failing to recognize

the difference between “Driving while intoxicated” and

“Driving while under the influence” is in conflict with the

Supreme Court in the case of Ingram v. Pettit, 340 So.2d 922.

D. The Fourth District Court is also in

conflict with the Second District regarding guidelines for

improper final argument by a prosecuting attorney as set forth

in Chavez v. State, 215 So.2d 750, and the principles of the

Supreme Court as shown in Fulton v. State, 335 So. 2d 280

(1976).

7. The Petitioner would further contend that a constitutional

question has been preserved by filing the Motion to Dismiss in the Trial

Court and its being specifically denied where the constitutionality of the

Statute involved was questioned as to vagueness and an individual’s

rights under the First Amendment.

WHEREFORE Petitioner requests this Court grant a Writ of

Certiorari and enter its Order quashing the decision and Order of the

Fourth District Court of Appeal, affirming the decisions of the Supreme

Court of Florida and the Second District Court of Appeal and further to

Court of Appeal is in conflict with decisions of the Supreme Court of rule upon the constitutionality of the new Statute in question.

Florida and the Second District Court of Appeal in the following Respectfully submitted,

respects.

A. The Supreme Court, even prior to the

Rules of Criminal Procedure, reversed for the allowing of a

dictionary in the jury room without informing defense counsel.

(See Smith v. State, 95 So.2d 525 (Florida, 1957). (signed) =

B. Rule 3.400 itself clearly delineates what ROBERT T. ADAMS, JR.

materials may be authorized to be taken into the jury room. Attorney for Petitioner

Rule 3.220 clearly sets forth the rules of discovery regarding the P. O. Box 981

continuing duty to disclose and sanctions available for non- 103 South Madison

compliance. The Supreme Court of Florida recently in Cumbie Marianna, Florida 32446

v. State, 345 So.2d 1061 (Fia., 1977) reversed and reiterated Telephone: 904-526-3796

that violation of the Rules of Criminal Procedure are error

unless an inquiry is conducted by the Trial Court regarding the

surrounding circumstances under the guidelines of another

4 5

CERTIFICATE OF SERVICE IN THE SUPREME COURT OF THE

, - STATE OF FLORIDA

I HEREBY CERTIFY that copies of the foregoing Petition for

a Writ of Certiorari were served upon ROBERT L. SHEVIN, CASE NO. 52,438

ESQUIRE, Attorney General, State of Florida, Tallahassee, Florida,

and the Clerk of the District Court of Appeal, Fourth District, West FOURTH DISTRICT COURT OF APPEAL

Palm Beach, Florida, by mail delivery this 16 day of September, 1977. CASE NO. 76-999

(signed) JAMES THOMAS NOLAN, ~

ROBERT T. ADAMS, JR. Petitioner,

as PETITION FOR RE-HEARING

STATE OF FLORIDA,

Respondent.

COMES NOW the Petitioner and petitions this Honorable

Court for a rehearing in the above cause and as grounds therefor would

respectfully show:

1. That an Order dated December 8, 1977, was entered by this

Honorable Court denying Certiorari in the above cause.

2. That the Petition for Writ of Certiorari was timely filed,

together with the Brief in support of the Petition.

3. That Rule 3.14 of the Appellate Rules provides for Petitions

for Rehearing within fifteen days of the filing of the decision or Order of

the Court so that this Petition is timely filed.

4. The Petitioner respectfully submits that by omission or

unintended oversight, the Court erred in denying the Petition for Writ of

Certiorari in that this Honorable Court should exercise its jurisdiction

pursuant to Rule 4.5(c) by reason of conflicting decisions of both this

Honorable Court (Supreme Court) and other District Courts of Apeal,

particularly as to the following matters:

6 A-5

A. Violation of Rule 3.400 of the CERTIFICATE OF SERVICE

Florida Rules of Criminal Procedure and the “full inquiry”

required as set forth in Cumbie v. State, 345 So.2d 1061 (Fla. I HEREBY CERTIFY that a copy of the foregoing Petition for

S.Ct., 1977). Rehearing was furnished by mail to ROBERT L. SHEVIN,

eal eS Seine ee ESQUIRE, Attorney General, State of Florida, Tallahassee, Florida:

B. That differentiation between “driving while

under the influence” and “driving while intoxicated” as PAUL H. ZACKS, ESQUIRE, Assistant Attorney General, 225 Pan

enunciated in Ingram v. Pettit, 340 So. 2d 922 (Fla. S.Ct, American Building, West Palm Beach, Florida) CLYDE HEATH,

1976) was a material allegation in view of the Information Clerk, Fourth District Court of Appeal, West Palm Beach, Florida; and

snentend t) alleging “driving while intoxicated”. The MARY ANDERSON, Deputy Clerk, Circuit Court, Broward County

matter was also properly before this Honorable Court as part of Courthouse, Fort Lauderdale, Florida, this 15th day of December,

the Record as shown in Exhibits 1, 2 and 16 of the Brief. 1977.

C. Improper final argument by the Prosecuting

Attorney 2d the Trial Court’s duty as reflected in Chavez v.

State, 215 So.2d 750 (2 DCA, 1962) and Pait v. State, 112 a ae

So.24, 380 (Fla. S.Ct, 1959). ROBERT T. ADAMS, JR.

WHEREFORE the Petitioner respectfully petitions this

Honorable Court for a Rehearing.

ROBERT T. ADAMS, JR.

Attomey for Petitioner

P. O. Box 981

Marianna, Florida 32446

904-526-3775

IN THE SUPREME COURT OF FLORIDA

TUESDAY, FEBRUARY 21, 1978

JAMES THOMAS NOLAN,

Petitioner, +

vs.

STATE OF FLORIDA,

ee CASE NO. 52,438

DCA CASE NO. 76-999

Respondent.

On consideration of the petition for rehearing filed by attorney

for petitioner,

IT IS ORDERED by the Court that said petition be and the

same is hereby denied.

A True Copy ce:

TEST:

Sid J. White

Clerk Supreme Court

By: /s/Dublin Causseaux

Deputy Clerk

Hon. Clyde L. Heath, Clerk

Hon. Robert E. Lockwood, Clerk

Hon. Robert W. Tyson, Jr., Judge

Robert T. Adams, Jr., Esquire

Paul H. Zacks, Esquire

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A-7

Def Ex. No. 1

Filed May 3 1976

CLYDE L. HEATH,

Clerk

By /s/ Carol Hanna

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY, FLORIDA

THE STATE OF FLORIDA || AMENDED INFORMATION FOR

vs.

CORRUPTION BY THREAT AGAINST A

JAMES THOMAS NOLAN

on PUBLIC SERVANT

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

PHILIP S. SHAILER, State Attorney of the Seventeenth Judical Circuit of Florida, as Prosecuting

Attorney for the State of Florida in the County of Broward, charges that

JAMES THOMAS NOLAN

on the 14th dayof October AD. 1975, in the County and State aforesaid,did

unlawfully threaten unlawful harm to a public servant, to-wit: Timothy

Hunter, a duly authorized police officer and public emloyee ofthe City of

Hollywood, Florida, by threatening to kill him if he arrested the said

Defendant, James Thomas Nolan, with the intent or purpose to

influence the performance of a public duty of the said Timothy Hunter,

to-wit: the arrest and detention of the said James Thomas Nolan for the

offense of Driving While Intoxicated, contrary to F.S. 838.021,

LCR/be

A-8

FILED FOR RECORD

COUNTY OF BROWARD CLERK. CIRCUIT COURT

STATE OF FLORIDA BROWARD COUNTY, FLA.

Personally appeared before me, PHILIP S. Shailer, State Attorney

ofthe Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney

for the State of Florida in the County of Broward, who being first duly

sworn, says that the allegations as set forth in the foregoing Information

are based upon facts that have been sworn to as true and which, if true,

would constitute the offense therein charged; and that he has instituted

this prosecution in good faith.

/s/ Philip S. Shailer

State Attomey, 17th Judicial Circuit of Florida

Sworn to and subscribed before me this 10th day of November, A.D., 1975

CLYDE L. HEATH

Clerk of the Circuit Court of the 17th Judicial

Circuit in and for Broward County, Florida

By /s/ C V Lang

Deputy Clerk

Jan 13 1976

To the within Information, Defendant StOOd mute in open Court and a plea of not guilty

was entered by the court.

CLYDE L HEATH

Clerk of the Circuit Court of the 17th Judicial

Circuit in and for Broward County, Florida

py _/s/ Carol Hanna

Deputy Clerk

Case No. 75-4229CF

IN THE

CIRCUIT COURT

Seventeenth Judicial Circuit of Florida

In and For Broward County

STATE OF FLORIDA

THE STATE OF FLORIDA

vs.

JAMES THOMAS NOLAN

Information for

CORRUPTION BY THREAT AGAINST

A PUBLIC SERVANT

Presented by State Attorney and Filed

Nov 10 1975

CLYDE L. HEATH

Clerk of the Circuit Court

PHILIP S. SHAILER

State Attorney

at eet ew eee ~~

ee ae

Nw oe ee te

IN THE CIRCUIT COURT OF THE 17TH

JUDICIAL CIRCUIT, IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 75-4229CF Tyson

STATE OF FLORIDA,

- MOTION TO DISMISS

JAMES T. NOLAN,

Defendant

COMES NOW the Deferdant by and through his undersigned

attorney and respectfully moves this Honorable Court to dismiss and

quash the arrest, affidavit, warrant or capias and the Amended

Information in the above cause and as grounds therefore would show:

1. That the Amended Information fails to set forth any offense

under the Laws of the State of Florida.

2. That the Amended Information is sovague, indistinct and

indefinite as to hinder or embarrass the Defendant in the preparation of

his defense and might cause him to be twice put in jeopardy for the same

alleged act.

3. That the Affidavit and Amended Information fail to set forth

and allege essential and ultimate facts.

4. That the Florida Rules of Criminal Procedure were not

5. That the Statute is unconstitutionally vague.

6. That the Statute is unconstitutional in that it is in violation of

the First Amendment of the Constitution of the United States.

7. That the Amended Information was filed without leave of

Court and in violation of the Florida Rules of Criminal

A-9

Procedure, and contrary to the case law appertaining.

WHEREFORE the Defendant respectfully moves this

Honorable Court to dismiss and quash the arrest, affidavit,

warrant or capias and the Amended Information in the above

cause.

/s/ ROBERT T. ADAMS, JR.

Attorney for the Defendant

1040 Bayview Drive

Fort Lauderdale, Florida 33304

565-4858

I HEREBY CERTIFY that a copy of the foregoing Motion to

Dismiss was furnished the State Attorney's Office, Broward

County Courthouse, Fort Lauderdale, Florida, by mail

delivery, this 13 day of January, 1976.

/s/

ROBERT T. ADAMS, JR.

~

Pca ott

Book 315

95

February 4, 1976

STATE OF FLORIDA

VS

JAMES THOMAS NOLAN

CASE NO. 75-4229CF

CORRUPTION BY THREAT AGAINST A PUBLIC SERVANT

This case being called for Hear ng on Defense Motion to

Dismiss. The defendant was not present in open Court but was

represented by Counsel, The Hon. Robert Adams. The Hon. Lawrence

Roberts, Assistant State Attorney represented the State and Connie

Miller was the official Court Reporter. After due consideration to

statements of respective Counsel, the Court proceeded as follows: It is,

Ordered and Adjudged that the Defense Motion to Dismiss

be and the same is hereby Denied.

ROBERT W. TYSON, JR.

Judge

A-10