~STATEMENT OF PARTICULARS APPELLANTS INITIAL BRIEF~

Transcription

1 FRANK SIMONELLI Appellant/Petitioner IN THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, STATE OF FLORIDA v. Case Number 3D L.T. Case No.: STATE OF FLORIDA Appellee/Respondent ~STATEMENT OF PARTICULARS APPELLANTS INITIAL BRIEF~ COMES NOW Appellant, Frank Simonelli, moves this Honorable Court in the above-styled cause, Statement of Particulars, accordance with Rule. The undersigned shows this court: The Appellant litigant states with particularity the points of law and facts presented that this Honorable Court may have misapprehended as to the following grounds to support the claims made in the Initial Direct Appeal Brief, and cannot emphasize enough to plead to review these points of Particulars. Preserved for the record. 1

2 Ground One In controlling case law, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct 792, 9 L. Ed. 799 (1963). The Petitioner had renewed his pre-trial and trial request that a substitute counsel be re-appointed back. This, also attempting to obtain a lawyer during these pre-trial hearings as his constitutional guarantee of an effective assistance of counsel, as not to go to trial with and legal representation. There was no objection during sentencing to re-appoint the Public Defender's Office Hani Demetrious, back on this case, even when he was unprepared requesting more time to present mitigating,and a new trial. The Court: Thank you. Okay. So, Mr. Demetrious, are you ready to proceed on those motions? Mr. Demetrious: No. Your Honor. I'm not. Mr. Demetrious: I'm just telling you why I haven't had adequate time. I would like for atleast appellate purposes, that this is----. (Volume 2, page 6), (Sentencing Hearing, October 25, 2011). 2

3 GROUND TWO The trial court should have conducted an inquiry relating to counsel's availability to provide effective assistance of counsel to the defendant in rule (J) (1) (k), Florida Rules of Criminal Procedure, F.S. (2010). There is no record in this case that there wás a hearing to determine the availability to effective legal representation. No appointment should have been made of an attorney who may be unable to provide legal representation thirty-four months the still was no comprehensive strategies, the Honorable Judge had stated that the amount of time that the Public Defender had taking on this case. See excerpts from Briefs, page 15, 16. 3

4 GROUND THREE The appellant made an attempt to obtain standby counsel, he had also requested a continuance so that he could obtain a lawyer. During the hearings, it had been clearly established that Mr. Simonelli is unable to represent himself, where he had been trying no to go to trial without any representation, where a continuous presence of counsel would satisfy the statutory requirements shall be an aid to willing defendants. The requirements of both Faretta at S. Ct and the provisions of Rule 3.11 (d) (5), Florida Rules of Criminal Procedure, which requires defendants to present their case exclusively through counsel. U.S.C.A. Const. Amend 6. Please see Brief, Pages 8, 9, 10, 11, and 12. 4

5 GROUND FOUR The trial court held a hearing to determine whether the Defendant's waiver of the-ríght-o counsel isaisjreewill and isanowing andanderstanding, eyes-open During this Faretta hearing, the Defendant had stated he was being forced to represent himself that that he had never been arrested. The judge had questioned Mr. Simonelli if he could represent himself in a civil matter. The Defendant in this case had stated: "No, Sir." At points he could not understand certain rudimentary questions to determine the Defendant's substantive understanding many times the Defendant had made statements at every hearing that he was trying to obtain a lawyer and that it was unfortunate that he was being forced to represent himself. The Defendant was and still is taking medication associated with hypothyroidism. One of the most alarming aspects with this case is that the Defendant has never been in a courtroom. See Faretta v. California, 422 U.S. 806, 95 S. Ct (1975). See Brief pages 6, 7, 8, and 42.

6 GROUND FIVE Respect to this Honorable Court, the Petitioner submitted a Demand for Speedy Trial whic+wasebmitted en February The4;ourt should have held a calendar call with notice in open court of this demand, thus setting the case for trial guaranteed by Article I, Subsection 16 Florida Constitution, and (a) Florida Rule of Criminal Procedure. There was no waiver on record, only up until March 2011, when this Petitioner was forced to represent himself, had a waiver presented, "to delay", to have time to attempt to obtain a lawyer. As the record will reflect in testimony of pre-trial conference hearings, he had requested every month in pre-trial in 2010 that he had "demand" to go to trial under the Sixth Amendment of the United States Constitution as implemented by Title 18 U.S.C et. seq. and Rule 50 Federal Rules of Criminal Procedure. Please see Brief pages 18 and 27. 6

7 GROUND SIX Factors which the Sixteenth Judicial District should have assessed to rules and regulations and proceeding in these particular criminal cases under Florida Conduct of Trial Section F.S. (2008) The Expeditious of a Disposition Involving a Child Under the Age of 16., Every criminal case prosecuted under Chapter 800, 827, 847, 782, 784, 794, and 796, which involves the abuse of a child or unlawful sexual contacts or acts performed, in the presence of, with, or upon a child under-age shall "be heard and disposed of as expeditiously as possible. Enumerated Section, History 1, eg , Child Abuse or Unlawful Sexual Contacts, Speedy trial, See (2008) F.S.,Applies to speedy trial in expeditious handling of sensitive matters. See Brief pages Thus, imposing excessive hardship and is (was) prejudicial to the Defendant. 7

8 GROUND SEVEN The Sixteenth judicial Circuit forbidding consultation with his attorney denied this Petitioner the assistance of counsel constitutes a violation of this Sixth Amendment, the denial of due process. Mr. Demetrious had been on vacation. The Court: I'm not sure what you're telling. I've made my ruling. Mr. Demetrious: I'm just telling you why I haven't had adequate time. I would like for at least you know appellate purposes that this is----- The Defendant: I would like to talk to my counsel before making any kind of statement. The Court: No, Sir. It is difficult to conceive any circumstance that wouldjustify a Court's ruling to limiting a the attorney's opportunity to serve his client, which constitutes a departure from the essential requirement of law. This was during sentencing hearing, counsel had asked for a continuance due to mitigation and a Motion for a New Trial. At this time, Public Defender; Mr. Demetrious had attempted to reuse the Court in and showing that this Court was biased and prejudicial and/or could not be unbiased. See excerpts from Initial Brief, pages 36, 37, 44 and 48.

9 GROUND EIGHT A behind doors, off the record, one on one interview was taken a year and a half later, with only the Chief Assistant State Attorney. Mr. Manuel Madruga present with under-aged alleged victim(s). See Rule (h) (4) Intimidation Tactics, new Subsection, Florida Rules of Criminal Procedure F.S. (2008), Testimony ofvictims or Underage Victims. (Filed with the Florida Bar) This was hours before the Public Defenders's Office, Hani Demetrious was to do videotaped depositions in early the next morning. Mr. Madrugam tainting the alleged victim to where new allegations arose after the prosecutor went to their place of residence, and had an off the record interview, tainting the videotaped depositions. Statements that were never made anywhere in the record. Filed for the record. (Fla Bar, Preserved) Please see Brief, pages 14, 36. Trial testimony by Hani Demetrious Sentencing, Volume 2. Volume 4, page 421.

10 GROUND NINE The information sought was specific the material cannot be obtained by this Petitioner despite the best efforts. Evidence to be reviewed before trial, "Motion to Compel was submitted a Subpoena for Production several times, as to be i.e. used at trial to impeach witness(es). The records (w)ill reflect in Volumes One, Two, Three, records on Appeal. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 110 L. Ed. 2d. 215 (1963), and also United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d. 342 (1976). The Supreme Court has determined that the prosecutorial failure to reply to a specific defense request for information in its possession but (un)obtainable by the defense (Petitioner) constituted a Denial of Due Process.

11 CONCLUSION Based on legal analysis of the statues, we can glean from the authorities, it is paradoxical that from a whole and not in parts that this Petitioner has been very probative in establishing the validity, as supplying this Honorable Court with evidence to support its firm principles, in conjunction with the principles of law. Wherefore, this Petitioner ever so prays that this Honorable Court grant this hear said rehearing and thus said Points of Interest, that this Court might have misapprehended, and that this Disposition(s) to disposing. OATH AND VERIFICATION I affirm and swear that I prepared and have read this Statement of Particulars and the particulars stated and described are true and correct, and complete. I further affirm that the basis of this precision instrument is of my own and direct knowledge of the contents found in the Records of this most pressing matter. So help me God. PROVIDED TO DESOTO C.l. F ILING 4fCER IN!TlALS 4Af M I/1 Proper Person Frank Simonelli DeSoto Correctional Institution SE Highway 70 Arcadia, Florida Done in DeSoto County, Florida this?m day of, Please respond accordingly, Thank you.

12 CERTIFICATE OF SERVICE This is to certify a true and correct copy of the foregoing has been forwarded to the following parties by placing this document in the hands of institutional officials for the purpose of mailing to: 042 Pamela Jo Bondi, esq. 042 Thomas D. Hall, Clerk Office of the Attorney General Supreme Court of Florida 444 Brickell Avenue 500 South Duval Street Miami, Florida Tallahassee, Florida Mary Cay Blanks, Clerk 2001 S.W. 117th Avenue Miami, Florida Frank Simonelli, In Proper Person. Done in DeSoto County on this Ý- day, September, cc: Frank Simonelli, Please Respond Accordingly, Preserved for the Record. 12