incarceration was ordered for indigent defendant without requiring the fundamental fairness test as required in

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA <9 JOHN LAWRENCE, Non Custodial Parent, Pro se, Not by Choice / Petitioner, Vs. ATTORNEY WILLIAM BRANCH, FLORIDA ATTORNEY GENERAL'S OFFICE On behalf of STATE OF FLORIDA DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT on behalf of ELENA TANGEL RODRIQUEZ LAW FIRM, Vendor for Child Support Enforcement, Attorney John Dudley Boulden on behalf of MELISSA RENEE WALKER, Custodial Parent Respondents APPEAL CASE NO: 5D L.T.No. 09-DR-5254, Ninth Judicial Circuit GCF , Tenth Judicial Circuit NOTICE TO INVOKE DISCRETIONARY JURISDICTION FIFTH DCA OPINIONS ATTACHED BELOW - APPENDIX A The final opinion denying the appointment an attorney in < civil/indirect criminal contempt of court of the Fifth District Court of Appeal dated November 2, 2011 when incarceration was ordered for indigent defendant without requiring the fundamental fairness test as required in Turner va. Rogers, Cfc (2011

2 4 TABLE OF CONTENTS Table of Citations 1,2 Statement of the Case 3 Summary of the Argument 4 Argument 4 Conclusion 10 Certificate of Service 11 Compliance with font size: 11 Appendix 12

3 TABLE OF CITA TIONS: Bowen v. Bowen. 471 So 2d 1274 (Flo. 1985) Hicks v. Faiock, 485 U.S. 624, 638, n.9. Harvey v. Stats, 2008 WL, (Fla 2d. and Paris! jr. Broward County, 769 So. 2d 359, 364 (Fla 2009) Gldden v. State, 613 So. 2d 457, 460 (Fla 1993 Turner vs. Rogers, 131 S. Ct (2011) and Otton v.zaboroc, 525 P.2d 537, (Alaska 1974);People v. Lucero, 584 P.2d 1208,1214 (Colo. 1978);Black v. Division of Child Support Enforcement, 686 A. 2d 164,168 (Del 1996); Sanders v. Shepard, 645 N.E. 2d 900,906 (IlL 1994) (approving Sanders v. Shephard, 541 N.E 2dll50, (IlL Ct App. 1989); McNabb v. Osmundson, 315N.W. 2d 9,11-14 (Iowa 1982); Rutherford v. Rutherford, 464A.2d228, (Md. 1983); Meadv. Batchlor, 460 N.W. 2d (Mich. 1990); Allen v. Sheriffof Lancaster County, 511N. W. 2d 125,127 (Neb.1994), overruled on other grounds by Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661,684 (Apr ); McBride v. McBride, 431 S.E. 2d 14,19 (N.C. 1993); Peters-Riemers v. Riermers, 663N.W. 2d657, (N.D.2003); Wold Family Farms, Inc. v. Heartland Organic Foods, Inc. 661 N.W. 2d 719, & n.3 (S.D. 2003); Choiniere v. Brooks, 660A. 2d289 (Vt 1995); Tetro v. Tetro, 544 P.2d 17,19 (Wash. 1975); Ferris v. State ex rel Maass, 249 N. W. 2d 789,791 (Wis. 1977)

4 Florida Rule of Criminal Procedure Florida Rule of Civil Procedure Florida Statute Florida Statute Florida Statute (11)

5 NOTICE IS GIVEN that Petitioner, John Jay Lawrence invokes the mandatory/discretionary jurisdiction of the Supreme Court to review the decision of the Fifth DCA rendered on November 2, STATEMENT OF THE CASE Indirect criminal contempt should be given protections of any other criminal proceeding. This includes the assistance of counsel. Lack of intent to violate a court order is a valid defense to contempt. Indirect criminal contempt proceedings must fully comply with Rule and a defendant is entitled to a court appointed lawyer if indigent. Harvey v. Stats, 2008 WL, (Fla 2d. Petitioner did not willfully refuse to pay child support. The court refused to specifically identify the source of funds available to pay such a child support obligation, and refused to modify it. The court refused to state the source of funds for the purge amount or show what assets could be used to pay arrearages. The court refused to admit evidence proving his inability to pay prior to throwing him in jail. The court refused to consider affidavits and modifications as required by FS and FS The court intentionally refused to compel the Florida Department of Revenue, Child Support Enforcement to comply 3

6 with FS to review and modify court orders when they cannot be reconciled with FS (2)(a)3. Business Income from self employment, and other related business income affidavits. Appendix C,D filed 12/3/2010. SUMMARY OF THE ARGUMENT Petitioner has been denied assistance of counsel for an incorrect child support obligation and endured long suspensions of his driver's license, and has been taken to jail many times over the past 16 years. The state has furnished the custodial parent with all the resources of the Florida Department of Revenue and the Florida Attorney General's Office, while failing to comply with the Florida Statutes and the federal regulations on collecting a correct child support. Appendix H, C,D ARGUMENT 1. The 5th DCA decision conflicts with other district court of appeal, such as Haxvay v. State, 2008 WL, (Fla 2d. DCA October 22, 2009) relating to testifying against oneself and civil contempt becoming indirect criminal contempt when threatened with incarceration recognized in Paris! v. Bxovard County, 769 So. 2d 359, 364 (Fla 2009) and Gidden v. Stats, 613 So. 2d 457, 460 (Fla

7 1993) The decision conflicts with Bowen v. Bowen, 472 So 2d 1274 (Flo, 1985) in "civil" contempt resulting in incarceration when defendant is indigent. The decision also conflicts with several federal circuit courts and state courts of last resort which held that indigent defendants in civil contempt proceedings have a right to appointed counsel if they face incarceration. Only a handful of states have ruled otherwise. Fifteen state courts of last resort have concluded that an indigent person must be advised of his right to appointed counsel at a civil contempt proceeding that could lead to incarceration." Otton v. Zaborac, 525 P.2d 537, (Alaska. 1974) /People v. Lucero, 584 P.2d 1208, 1214 (Colo. 1978);Black v. Division o Child Support Enforcement, 686 A. 2d 164 f 168 (Del. 1996); Sanders v. Shepard, 645 N.E. 2d 900,906 ( ) (approving Sanders v. Shephard, 541 N.E. 2d 1150, (111. Ct. App. 1989); McNabb v. Osmandson, 315 N.W. 2d 9,11-14 (Iowa 1982); Rutherford v. Rutherford, 464 A.2d 228, (Md. 1983); Mead v. Batchlor, 460 N.W. 2d (Mich. 1990); Allen v. Sheriff of Lancaster County, 511 N.W. 2d 125, 127 (Neb. 1994), overruled on other grounds by Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661,684 (Apr ); McBride v. McBride, 431 S.E. 2d 14,19 (N.C. 1993);

8 Peters-Riemers v. Riermers, 663 N.W. 2d 657, (N.D.2003); Wold Family Farms, Inc. v. Heartland Organic Foods, Inc. 661 N.W. 2d 719, & n.3 (S.D. 2003); Choiniera v. Brooks, 660 A. 2d 289 (Vt 1995); Tatro v. Tetro, 544 P.2d 17,19 (Wash. 1975); Ferris v. State ex rel. Maass, 249 N.W. 2d 789,791 (Wis. 1977) 2. The decision also conflicts with the Supreme Court Case of Turner vs. Rogers, 131 S. Ct (2011) in that the court did not require the use of a form or the equivalent to elicit relevant financial information regarding ability to pay child support and denied defendant the right to be heard in a meaningful way because the court ignored all of the Florida Supreme Court forms for modification and financial affidavits that were provided by Lawrence before and during the hearing and refused to provide any "form" that would list assets that would prove that defendant had the "ability to pay." 3. The Vendor attorney, John Dudley Boulden from the Vendor, Tangel Rodriquiz Law Office, obviously defrauded the court to be of the opinion that John Lawrence had not been paying child support, because the Order of Commitment

9 for Contempt stated, "The Respondent, (John Lawrence) has earned money, but is not paying child support. The Respondent (John Lawrence) is voluntarily underemployed." Appendix E(l) But the fact is, John Lawrence had been paying child support, as agreed, since the previous May of 2010, when the Lakeland Child Support Office reinstated his driver's license. John Lawrence is self employed as he has been throughout his entire life. The Court stated, "PURGE ASSETS: The "Respondent (John Lawrence) has present assets from which to purge from this contempt. Those assets are as follows: Respondent's testimony lacks credibility. Cash $69.00 ("for next weeks child support"), TV, Computer, and cell phone worth $ Funds available from family." Appendix E (1) With no findings of fact or conclusions of law, the court raised Lawrence's child support another $80.00 per month. FS child support guidelines were ignored, as they have been from the beginning. E (1) Lawrence was unlawfully taken directly to jail before he had a chance to sell his shovel, tv, and cell phone. 4. The Ninth Judicial Circuit, Judge Tim Shea, intentionally misclassified and mislabeled an "indirect 7

10 criminal contempt" as a "civil contempt" even though incarceration was threatened. Assistance of counsel was denied to defendant when incarceration was threatened. This resulted in Lawrence being unlawfully handcuffed, shackled and led off to jail. After 8 hours, his friend paid his purge, Dog Law fashion, which is unlawful. 5. The decision expressly affects a class of constitutional or state officers in the Florida Department of Revenue, without standing to enter John Lawrence complaint for paternity against Melissa Walker, GCF , Polk County, as this is not a Title IV-D case so they did not have standing to intervene, Liebert v. Liebert v. Dept of Revenue, 2DCA, , and their vendors for child support enforcement and lower court judges, statewide. Appendix 6 6. The question that has been decided long ago "Does the indigent defendant have the right to assistance of counsel when threatened with incarceration in a "civil" or "indirect criminal contempt proceeding" is a question of great public importance and continues to be misunderstood. 7. The 5th DCA decision to deny assistance of counsel when Petitioner was threatened with incarceration conflicts

11 with Turner vs. Rogers in that there were no "alternative procedural safeguards" in place for defendant. There was no "standard forms" given to defendants to fill out prior to the contempt hearing to prove his ability, or inability, to pay. The court intentionally ignored all of Lawrence's affidavits, and Florida Family Law modification forms that were submitted to the court, prior to, and at the contempt hearing. Also, the clerk tried to unlawfully charge Lawrence $50 to file the hard copy of a modification form that had been faxed to the clerk prior to the contempt hearing. Also, the forms had been mailed and filed with the Florida Department of Revenue, Child Support Enforcement prior to the hearing. 8. The 5th DCA decision violates the "ability to pay" standard: A court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order." Hicks v. Feiock, 485 U.S. 624, 638, n.9. Although Petitioner has been complying with the order, it leaves him without a self support reserve and is not correct based on FS and violations of fed eral Fair Labor regulations. 9

12 CONCLUSION WHEREFORE, Petitioner, John J. Lawrence respectfully petitions to invoke discretionary jurisdiction of the Florida Supreme court and mandate that an appellate attorney be appointed to prepare a writ of certiorari brief based on Turner v. Rogers, and all other relevant cases, regarding contempt of court and Incarceration when defendant is indigent in Florida. Petitioner also requests that an attorney be appointed to protect his sixth and fourteenth amendment rights pursuant to state and federal statutes involving fraud upon the court Rule 1.540, the contested standing of the Dept of Revenue to intervene in Petitioners own paternity complaint, correct child support obligations dating back to the beginning, FS 61.30, and Modification and Enforcement FS 61.14, along with FS (11), and the Rules of Evidence, because the Court and the agents in the Florida Department of Revenue have refused to be fair and reasonable in collecting a correct child support obligation from a pro se litigant from the beginning. fohn J. Lawrence Farmettes Road Lakeland, Florida /o

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing, without attachments, has been furnished to William Branch, Assist. Attorney General, Office of the Capitol, Plaza 01, Tallahassee, Fl , Attorney f! **9*1 Rodri*uea5' Vendor attorney for MELISSA RENEE OF REVENUE, BY C Lawrence Farmettes Road Lakeland, Florida Certificate of Compliance with Font size - Courier New 12