CC-Motion for Review of Transcripts
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Transcript of CC-Motion for Review of Transcripts
8/14/2019 CC-Motion for Review of Transcripts
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`IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR CITRUS COUNTY FLORIDA
STATE OF FLORIDA
Plaintiff/ Appellee
vs.
THERESA M. MARTIN
Defendant/Appellant
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CASE NO.: 2009-AP-2088
MOTION FOR REVIEW OF ORDER
DENYING TRANSCRIPTS OF HEARINGS
Pursuant to Fla. R. App. P. 9.140(b)(1)(d), the appellant seeks review of an
order of the trail court denying posttrial motion for transcripts pending the appeal
of her conviction. In support of the motion, the appellant states:
I. STATEMENT OF THE CASE
1. This appellant was charged by the State with driving without a valid license
that was suspended or revoked and having expired motor vehicle registration over
six months. This defendant, based on the advice of the public defender pled no
contest on March 16, 2009 and the court accepted the plea and found defendant
guilty, sentenced to a term of probation, and was required to pay fines and other
costs.
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2. Within the ten day period of being found guilty by the trial court this appellant
filed a motion for new trial claiming ineffective counsel. This appellant claimed
that her counsel failed to investigate and prepare a meaningful defense of “Outra-
geous Government Conduct”. This appellant cited Washington v. Strickland, 466
U. S. 668 (1984) as the guidelines for her counsel’s poor performance. The lower
court denied the motion without granting a hearing and concluded that the defen-
dant was not entitled to error- free counsel, only to reasonable effective counsel.
Waterhouse v. State, 341 So.2d (Fla. 1988). The court concluded its denial by rul-
ing that the record conclusively refuted defendant’s allegations and as proof
attached the Waiver of Rights and Plea Agreement in support.
3. On April 14, 2009 this appellant filed a motion to withdraw the plea after
sentencing citing the same defensive allegations as in ¶ two. The trial court again
summarily denied this defendant’s motion without a hearing. The court cited as its
reason for denial of a hearing, was the defendant’s counsel gave the right advice on
pleading no contest, my claim of ineffective counsel was without merit, and that
the trial counsel’s claim of “Outrageous Government Conduct Defense” (“OGCD”)
wouldn’t work was exceptionally prudent on his part.
4. A timely appeal and a motion for Insolvency were filed. On May 1, 2009 I
filed a motion for transcripts of the pretrial hearing on January 26, 2009 and for the
trial date of March 16, 2009 pertaining to the plea and sentence by the trial court
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attached as (Ex. “A”). The court’s order on insolvency was incorporated in my mo-
tion for transcripts on May 12, 2009. In the court’s order it granted me the right to
be declared indigent for the purpose of my appeal only, citing Fla. R. App. P.
9.430. The court further clarified its order by ruling that my indigency applies only
to costs, not to free copies of transcripts as attached (Ex. “B”).
II. ARGUMENT
A. THE TRIAL COURT FAILED TO FOLLOW THE
CORRECTAPPELLATE RULE OF PROCEDURE
5. The trial court in its order cites Rule 9.430 as follows: (a) Appeals. A party
who has the right to seek review by appeal without payment of costs shall, unless
the court directs otherwise, file a signed application for determination of indigent
status with the clerk of the lower tribunal, using an application form approved by
the Supreme Court for use by circuit court clerks. The clerk of the lower tribunal’s
reasons for denying the application shall be stated in writing and are reviewable by
the lower tribunal. Review of decisions by the lower tribunal shall be by motion
filed in the court. In this Rule there are three sections (a), (b), and (c). Section (a)
Deals with indigents seeking review in the appellate courts without costs. Section
(b) deals with indigents who are seeking review of original proceeding under Rule
9.100. Section (c) deals with special procedures that apply to litigants who are in-
carcerated at the time of the appellate proceeding are started. In review of this issue
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I’m only concerned with Rule 9.430(a) that deals when a person files an appeal and
wants to proceed with the appeal and is not required to pay the initial filing fee.
6. In Florida it is a right that has been granted by our legislature that any party
whether in a civil or a criminal case, has a right to seek review in the appellate
courts without any payment of fees or costs. According to Rule 9.430(a) it states
that “[a] party who has the right to seek review by appeal without payment of costs
shall, unless the trial court states otherwise, file a motion in the trial court, includ-
ing an affidavit showing the litigant’s incapacity to pay fees and costs or able to
give security. If the trial court grants the litigant hardship status, the litigant may
go forward as indigent status in their appeal as a matter of right.
7. In the present case, this appellant filed notice of appeal and simultaneously
filed the new Florida Supreme Courts directive that was effective on March 19,
2009 instituting the new form renamed as an Application for Criminal Indigent
Status. This requires the trial court to grant or deny an order for insolvency. Rule
9.430 sole purpose is for granting a party, whether incarcerated or not the right to
be declared indigent for the purpose to seek review in the appellate court with no
costs or fees assessed to the appealing party.
II. B. THE COURT REFUSING TO GRANT MY MOTION FOR TRANS-
CRIPTS WAS A VIOLATION OF APPELLATE RULE 9.141(b)(3)(A,B)
8. Judge, Mark Yerman granted the motion for insolvency; but denied the mo-
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tion for transcripts. In Ocer v. State of Florida, 840 So.2d 1162 ((Fla. App. 5 Dist.
2003), the Court dealt with the very same issue of whether it was right to deny a
defendant the right to have posttrial transcripts without costs. In Ocer the trial
court, based its decision on Ridge v. Adams, 643 So.2d 116 (Fla. 5 DCA 1994)th
holding that the request for a transcript of a preliminary hearing was made before
there were any motions for postconviction relief in the trial court. The Ocer Court
held that Mr. Ocer was seeking a transcript for a postconviction evidentiary hear-
ing, which was to be filed as part of the record on appeal of his denial on his
postconviction motion. Florida Rules of Appellate Procedure in Rule
9.141(b)(3)(A) & (B) require that transcripts be ordered by the clerk of the lower
tribunal in indigent appeals when a postconviction rule 3.850 motion is denied af-
ter an evidentiary hearing. The Ocer Court held that Mr. Ocer was entitled to the
transcript of the postconviction evidentiary hearing at public expense. (quoting)
Colonel v. State, 723 So.2d 853 (Fla. 3d DCA 1998).
9. The only difference between the Ocer decision and this case is in Ocer he was
granted a Rule 3.850 evidentiary hearing, but the lower court denied his request.
Here, in this case a Rule 3.850 evidentiary hearing was requested but the trial court
denied the hearing. The underlying principle in the appellate court’s decision was
due process which requires, if a person is found indigent by the trial court for the
purpose of an appeal, the appeal can’t be accomplished without a record in which
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to appeal from. Therefore, an indigent must have a transcript in order for the appel-
late court to fully understand what transpired in the lower court. The courts have
stated over and over that they want an indigent to be like the person that can easily
afford it, in order to balance justice for everyone.
10. This court should follow the wisdom of our United States Supreme Court, by
pursuing the standards they developed in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct.
585, 100 L .Ed. 891. There the High Court considered a state law which denied
persons convicted of a crime full appellate review if they were unable to pay for a
transcript of the trial. Mr. Justice Black's opinion announcing the judgment of the
Court stated:
‘Such a denial is a misfit in a country dedicated to afford-
ing equal justice to all and special privileges to none in
the administration of its criminal law. There can be no
equal justice where the kind of a trial a man gets
depends on the amount of money he has . Destitute de-
fendants must be afforded as adequate appellate review
as defendants who have money enough to buy
transcripts.’ Id. at 19, 76 S.Ct. at 591. (emphasis added).
This appellant, respectfully requests that this Court consider her arguments, and
the lower court’s unpersuasive argument for its ruling in my case and recognize
Ocer, Griffin, and Florida Rules of Appellate Procedure in Rule 9.141(b)(3)(A) &
(B) are highly persuasive and binding on this court in granting my right to the
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hearing transcripts as applied to the facts of my case.
III. CONCLUSION
11. The trial court incorrectly applied the wrong Rule of Appellate Procedure to
deny this appellant, the right to have the two court hearings transcribed at no cost
to me, in order that they can be used in my appeal. This appellant is entitled to the
transcripts of the two hearings at no cost, according to Fla. App. R. P.
9.141(b)(3)(A) & (B). This Rule clearly states when, a defendant files a posttrial
Criminal Rule of Procedure 3.850 motion and it is denied after an evidentiary hear-
ing that person is entitled to the hearing transcripts to aid in their appeal and no
cost is assessed to them. This Rule is there to comport with due process and
whether they have a hearing or not an indigent pro se litigant should have the same
rights on appeal to transcripts as those that can afford to purchase the transcripts
for themselves as held in Ocer and Griffin.
WHEREFORE, the appellant respectfully submits that the order of the trial
court denying this appellant the pretrial hearing transcript on January 26, 2009 and
the trial hearing transcript on March 16, 2009 should be reversed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of my Motion for Review of Order Denying
Hearing Transcripts will be sent by regular U. S. Mail to the Clerk of Circuit Court,
110 Apopka Avenue, Inverness, Florida 34450. And by regular U. S. Mail to