# Petition — Nolan v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 830

## Text

“ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1102%3A1. Public record. Not legal advice.