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Appeal Order Denying Motion To Withdraw Plea 5D23-2005
Appeal Order Denying Motion To Withdraw Plea 5D23-2005
from
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
Alert: Due to creation of Sixth DCA and other boundary changes, affected pending
cases will be transferred to the applicable DCA and assigned a new case number.
The recipient DCA will send an acknowledgement letter.
Case No: 5D Search
23-2005
Date
06/08/2023 Status: Closed Proceeding: Appeal Nature: Final
Filed:
Judgment and 5th Judicial
Type: Criminal Category: Circuit:
Sentence Circuit
1
TABLE OF CONTENTS - Section I
Section page
I 2 TABLE OF CONTENTS
II 3 TABLE OF CITATIONS
V 24-40 ARGUMENT
VI 41-43 CONCLUSION
IX 47 CERTIFICATE OF COMPLIANCE
2
TABLE OF CITATIONS - Section II
3
STATEMENT OF THE CASE - Section III
4
In the instant Motion, Defendant claims he wants to withdraw his
pleas because his "pleas were involuntary to get out of jail while held
on a no-bond order." The Court finds Defendant's Motion fails to
allege that withdrawal of his plea is necessary to correct a manifest
injustice. Therefore, Defendant's Motion to Withdraw Plea After
Sentencing is facially insufficient. See Powell v. State, 929 So. 2d 54
(Fla. 5th DCA 2006).
The Appellant contests the Order, and in particular the Court’s finding
that the “Defendant's Motion fails to allege that withdrawal of his plea is
(With Attached Evaluation) was Efiled April 19, 2023 by the Appellant-
5
violate his rights as a Defendant, are unjust, and resulted in unlawful
sentences. Gillespie's pleas were involuntary to get out of jail while
held on a no-bond order.
2. Separately and in addition, Gillespie asserts that the trial judge, the
Hon. Peter Brigham, lacked proper jurisdiction after Gillespie served
a meritorious motion to disqualify the Judge on January 3, 2023. That
issue and other issues are currently before the Fifth District Court of
Appeal in case nos. 5D23-0814, 5D23-0888, 5D23-0913 and 5D23-
1176.
6
(2017), the District Court of Appeal held that an evidentiary hearing
was required on a motion to withdraw a guilty plea.
7
nasal fistula and velar limits, Mr. Gillespie is utilizing extreme
measures to make his speech intelligible. He is applying undue
stress to the laryngeal and pharyngeal musculature a control
the normal air stream. Because of his extra effort in striving to
meet the demands of society, he is at risk for damaging his
larynx. Also, the unnatural openings between the nose and
mouth invite incidence of infection and irritation to sensitive
tissues that were never meant to associate in this way.
Exchange of food stuffs and secretions between the two
cavities must be stopped to promote complete healing and
maximal function ... "
8
the prosthesis was no longer viable, leaving Gillespie with his current
speech disability.
11. On April 14, 2023, Gillespie's primary care doctor in Ocala agreed
to refer him for additional surgery to correct velopharyngeal
insufficiency after hearing what happened in court.
January 25, 2023, for an alleged incident that did not happen on January
9
25, 2023, but was alleged to have occurred on January 3, 2023 at a prior
Judge Brigham a motion with affidavit to disqualify him as trial judge, see,
R 3022-3034.
Fla. Stat. sec. 38.10 states in relevant part that “whenever a party to
any action or proceeding makes and files an affidavit stating fear that he or
she will not receive a fair trial in the court where the suit is pending on
account of the prejudice of the judge of that court against the applicant or in
favor of the adverse party, the judge shall proceed no further...”. Once
Judge Brigham was served with a motion and affidavit to disqualify, the
Judge Brigham did not cancel the hearing on January 3, 2023 as the
law required he do under Fla. Stat. sec. 38.10. Instead, Judge Brigham
proceeded with the hearing. The Appellant appeared pro se, without
at him. The transcript (R 3304-3309) shows the Appellant said, “The State
10
3306. lines 13-15). Later on January 3, 2023 Judge Brigham accused the
The Order Finding Facts And Holding The Defendant In Direct Criminal
“At the beginning of the hearing the Defendant had an outburst of anger
and shouted at the Court. When challenged the defendant offered a
disingenuous excuse that the Court could not hear him because he had
a speech impediment. The Defendant does indeed have a speech
impediment, but this Court has never had any trouble understanding the
Defendant.”
The transcript (R 3307-3308) shows the Appellant never said that the
Court could not hear him because he had a speech impediment. The
and it’s hard for him to project his voice. This is due to an oral-nasal fistula
11
Criminal Contempt. White, inmate ID A0260475, appeared by video from
the Marion County Jail for a Faretta hearing. Seeing what just happened to
Mr. White, Mr. Klein warned the Appellant while outside the courtroom that
Judge Brigham does not like pro se defendants. Soon afterward Judge
because his prior appointed counsel D. Gary Lashley, Jr. was ineffective.
From that point forward, when the Appellant appeared pro se, the
record shows Judge Brigham acted rude and disrespectful toward him.
on page 2 (R 3398) that Judge Brigham put the Appellant last to be heard
at a hearing, after ASA Nixon tried to proceed with the ordinary schedule:
about a pending motion, and if it needed a hearing. The SAO did not object
12
17 THE COURT: Well, you have to, you have to set them
18 for hearing. Just because you file a motion is not
19 enough.
20 THE DEFENDANT: Well, I was going to ask you if you
21 need a hearing on that. That was –
22 THE COURT: Your, your – I don’t need anything.
23 This is what you need to do. You’re acting as your own
24 attorney.
Later during the hearing Judge Brigham, accused the Appellant of being
“hard to get along with”. Transcript page 4, October 26, 2022: (R 3400)
Judge Brigham has not explained his prejudice against the Appellant.
13
Oddly, since then the Appellant has heard Judge Brigham complain
in open court that he had to go to a state college, he said he could not get
has heard a lot. Not only in the Appellant’s cases, but in other cases.
reason he did not get into whatever school he wanted? Does he believe a
because Judge Brigham may hold that against him. For the record, the
the evening division. After high school the Appellant worked as a laborer at
U.S. Steel, Fairless Works. Eventually the Appellant owned and operated a
successful, but nothing was handed to him. The Appellant was not a
14
person of privilege. The Appellant supported his family, not a wife and
children, but his parents and sister. Fortunately many of the Appellant’s
clients were immigrants and more accepting of his imperfect speech and
https://www.nosue.org/facematters-org/
There is nothing wrong with a state school. In fact the last time the
Appellant saw his business law lecturer from PENN, he was in jail over
money missing from a client’s trust fund, and was later disbarred, see
496 U.S. 902, 110 S.Ct. 2582, Supreme Court of the United States In the
Jordan had also done paid legal work for the Appellant.
on page 5 (R 3393), that Judge Brigham made this comment, lines 21-23:
15
The Ocala Star-Banner newspaper reported a story on February 17,
"I'm not there because I'm the best attorney in the room," he said,
"I'm there because I went through the (selection) process.
It appears Judge Brigham may have an issue with his own competence.
https://www.ocala.com/story/news/crime/2017/02/17/assistant-state-
attorney-appointed-fifth-circuit-judge/22429955007/
Fifth Judicial Circuit. The record in this matter shows Defendant’s Notice of
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In prosecuting this case,
the State Attorney for the Fifth Judicial Circuit of the State of Florida, in and
for Marion County, and certain Assistant State Attorneys, violated the civil
16
due process under the Fifth Amendment to the U.S. Constitution, violated
State Attorney for the Fifth Judicial Circuit of the State of Florida, in and for
Marion County, and certain Assistant State Attorneys, violated the civil
due process under the Fifth Amendment to the U.S. Constitution, failed to
failed to provide zealous and competent representation, and that the State
Attorney's Office and the Court cooperated with Lashley in denying the
Appellant his right to counsel under the U.S. Six Amendment. Also see the
17
SUMMARY OF THE ARGUMENT - Section IV
The Appellant did not validly waive his right to counsel prior to
prejudice and manifest injustice. See Robles v. State, 336 So.3d 378
(2022). In Tubbs v. State, 229 So.3d 1256 (2017), the District Court of
The Appellant contends that while the Court has the power to punish
contempt as defined under law, in this case the Court lacked jurisdiction
over the Defendant on January 3, 2023 after Judge Brigham was served
Fla. Stat. sec. 38.10 states in relevant part that “whenever a party to
any action or proceeding makes and files an affidavit stating fear that he or
she will not receive a fair trial in the court where the suit is pending on
account of the prejudice of the judge of that court against the applicant or in
favor of the adverse party, the judge shall proceed no further...”. Once
18
Judge Brigham was served with a motion and affidavit to disqualify, the
motion and affidavit to disqualify him trail judge, Fla. Stat. sec. 38.10
failed to cancel the hearing January 3, 2023. Judge Brigham ignored 38.10
19
(a) Prior to the adjudication of guilt the judge shall inform
the defendant of the accusation against the defendant and inquire
as to whether the defendant has any cause to show why he or she
should not be adjudged guilty of contempt by the court and
sentenced therefor.
(d) The judgment shall be signed by the judge and entered of record.
In order to protect the due process rights of the defendant, this rule
and the statutory requirements must be strictly followed. For example, prior
accusation and give him/her the opportunity to show cause why her or she
20
The trial court’s direct contempt conviction is invalid if there is no
based. Morris v. State, 667 So. 2d 982, 987 (Fla. 4th DCA 1996).
Failure to strictly comply with the requirements of the rule for direct
and remand with instructions for a new contempt hearing that complies with
the rule.
be used only rarely and with circumspection. The provocation must never
real and necessary, not murky, and not ameliorated in some less formal
manner.” Woods v. State, 987 So. 2d 669, 676 (Fla. 2d DCA 2007), quoting
vexed. McRoy v. State, 31 So. 3d 273, 274 (Fla. 5th DCA 2010), citing Via
21
The exercise of the contempt power must “never be used by a judge
justice.” In re Inquiry Concerning Perry, 641 So. 2d 366, 368 (Fla. 1994);
Forbes v. State, 933 So. 2d 706, 715 (Fla. 4th DCA 2006).
on behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d
721 (1988); Braisted v. State, 614 So. 2d 639 (Fla. 4th DCA 1993). The
even for those that are the most resistant to the authority of the court.
22
“Scrupulous compliance with rule 3.830 is required because its
provisions constitute the essence of due process.” Peters v. State, 626 So.
2d 1048, 1050 (Fla. 4th DCA 1993); see also J.A.H. v. State, 20 So. 3d 425
of even the most refractory are protected.” Cook v. State, 636 So. 2d 895,
Double Jeopardy: “[A] later criminal prosecution for the same conduct
1217 (Fla. 5th DCA 1994) (citing U.S. v. Dixon, 509 U.S. 688, 113 S.Ct.
23
ARGUMENT - Section V
The Appellant did not validly waive his right to counsel prior to
prejudice and manifest injustice. See Robles v. State, 336 So.3d 378
(2022). In Tubbs v. State, 229 So.3d 1256 (2017), the District Court of
"The Clerk's office (Mr. Harrell) contends "the procedural path of Rule
2.330(c)>Rule l.080>Rule 2.516 can still be adhered to and done in a
manner consistent with A-2012-25-B, if the filer of such a motion
mails a copy of the motion to the judge." Therefore, I served this
Motion to Disqualify, with my affidavit, prior to filing on the Portal, by
U.S. Mail. Service by mail is complete upon mailing. Rule 2.516
24
(b)(2), Fla. R. Jud. Admin. Therefore, the subject Judge is served
prior to filing on the Portal, because Service by mail is complete upon
mailing. Rule 2.516 (b)(2).."
I Hereby Certify that on January 3, 2023 this motion and affidavit was
served by U.S. Mail, Tracking Number 9405 5036 9930 0446 8056 26 to,
25
The motion to disqualify Judge Brigham shows it was served on the
The Record shows the Court Minutes for January 3, 2023, for case
Fla. Stat. sec. 38.10 states in relevant part that “whenever a party to
any action or proceeding makes and files an affidavit stating fear that he or
she will not receive a fair trial in the court where the suit is pending on
account of the prejudice of the judge of that court against the applicant or in
favor of the adverse party, the judge shall proceed no further...”. Once
Judge Brigham violated Fla. Stat. sec. 38.10 by his misconduct once
the motion to disqualify him was served PRIOR to the 1:30 PM hearing on
26
Judge Brigham broke the law in FIVE ways:
being served a motion to disqualify him prior to the 1:30 PM hearing. Once
a motion for disqualification has been filed, no further action can be taken
by the trial court, even if the trial court is not aware of the pending motion.
the sufficiency of the motion immediately and may not consider other
immediately and may not consider other matters before considering the
the judge, even though the movant does not request a hearing. Fuster-
27
4. Judge Brigham waited until January 5, 2023 to rule on the motion to
The rule places the burden on the judge to rule immediately, the movant is
not required to nudge the judge nor petition for a writ of mandamus. G.C. v.
Department of Children and Families, 804 So.2d 525 Fla.App. 5 Dist., 2002.
and then denied the motion. Case law forbids trial judges to refute facts set
28
DENIED.
Here, the Court issued a finding that took issue with the motion to
disqualify: “The Court finds a reasonably prudent person would not have a
well-founded fear of not receiving a fair and impartial trial in the above-
Harrison, Esquire, granting the petition for writ of prohibition. Petition for
WALLIS, J., EISNAUGLE, J., concurs., SOUD, J., concurs, with opinion.
29
facts alleged nor adjudicate the question of disqualification.” When a
judge has looked beyond the mere legal sufficiency of a suggestion
of prejudice and attempted to refute the charges of partiality, he has
then exceeded the proper scope of his inquiry and on that basis
alone established grounds for his disqualification.
The concurring opinion by Judge Soud sums it up, last sentence: “It cannot
be reiterated too strongly to the esteemed trial judges in this State that,
Brigham before January 3, 2023, but other factors prevented him from
doing so. First, the Appellant did not yet have transcripts due to a lack of
work on his pleadings. The Appellant did not get office space (a desk at
Workspace Collective) until December 6, 2022, past the time to file a timely
jurisdiction over the Appellant without lawful authority. In doing so, Judge
30
Amend. V, U.S. Const.; Amend. XIV, U.S. Const.
DUE PROCESS, Legal Information Institute
WEX article Author: Peter Strauss
https://www.law.cornell.edu/wex/due_process
proceeding. Pelle v. Diners Club, 287 So. 2d 737 (Fla. Dist. Ct. App. 3d
Dist. 1974); Tomayko v. Thomas, 143 So. 2d 227 (Fla. Dist. Ct. App. 3d
Dist. 1962). Whenever life, liberty, or property rights are involved in any
497 (Fla. 1961); Williams v. Kelly, 133 Fla. 244, 182 So. 881 (1938) or a
31
Barancik v. Gates. The constitutional guaranty of due process of law
legislative acts. Williams v. U.S., 179 F.2d 644 (5th Cir. 1950), cert.
granted, 340 U.S. 849, 71 S. Ct. 77, 95 L. Ed. 622 (1950) and judgment
aff'd, 341 U.S. 70, 71 S. Ct. 581, 95 L. Ed. 758 (1951) (implied overruling
on other grounds recognized by, U.S. v. McDermott, 918 F.2d 319 (2d Cir.
Virginia Polytechnic Institute and State University, 169 F.3d 820, 136 Ed.
process. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994); M.W. v. Davis,
756 So. 2d 90, 25 Fla. L. Weekly S334 (Fla. 2000); State v. O.C., 748 So.
reasonable doubt.
Failure to strictly comply with the requirements of the rule for direct
32
criminal contempt proceedings constitutes a fundamental error. Bonet v.
Appellant said, “The State already submitted an order to you." The Court
court’s authority or dignity”. The Appellant was assisting the court in the
Where the court had given no prior warnings or explicit directions not
to display reaction to verdict, an attorney who pounded his fist and
yelled “yes” upon receiving a favorable verdict could not be held in
contempt. Berman v. State, 751 So. 2d 612 (Fla. 4th DCA 1999).
Use of the single word “sh--” uttered in frustration while the defendant
was leaving the courtroom, without further developed record, did not
constitute contempt. Woods v. State, 987 So. 2d 669 (Fla. 2d DCA
2007), disapproved on other grounds, Plank v. State, 190 So. 3d 594
(Fla. 2016) (isolated remark will be considered contemptuous only if it
constitutes imminent threat to administration of justice).
33
24 THE COURT: Well, you already have.
25 THE DEFENDANT: I, I just tried to speak up. I
1 have a speech impairment. It’s hard for me to project
2 my voice.
The Order Finding Facts And Holding The Defendant In Direct Criminal
“At the beginning of the hearing the Defendant had an outburst of anger
and shouted at the Court. When challenged the defendant offered a
disingenuous excuse that the Court could not hear him because he had
a speech impediment. The Defendant does indeed have a speech
impediment, but this Court has never had any trouble understanding the
Defendant.”
The transcript (R 3307-3308) shows the Appellant never said that the
Court could not hear him because he had a speech impediment. The
and it’s hard for him to project his voice. This is due to an oral-nasal fistula
and velar limits. See R 3299-3301: The Appellant was evaluated by Dr. Jane
34
intact, he retains several incomplete elements of the sequelae of this
congenital dysmorphology. Because of the oro-nasal fistula and velar
limits, Mr. Gillespie is utilizing extreme measures to make his speech
intelligible. He is applying undue stress to the laryngeal and
pharyngeal musculature a control the normal air stream. Because of
his extra effort in striving to meet the demands of society, he is at risk
for damaging his larynx. Also, the unnatural openings between the
nose and mouth invite incidence of infection and irritation to sensitive
tissues that were never meant to associate in this way. Exchange of
food stuffs and secretions between the two cavities must be stopped
to promote complete healing and maximal function…"
The Appellant reiterated his defense on January 25, 2023. From the
35
23 that to you?
24 THE DEFENDANT: It was unintentional. There was no
25 intent to yell at you, Your Honor. I was just
1 projecting my voice.
2 THE COURT: I've already told you twice: That's a
3 bunch of garbage. You were angry and you yelled at me.
The fact that the Court described the Appellant’s defense as a “bunch
pro se Defendant. The Appellant was also denied due process. Given the
Court’s anger at the moment, it is unlikely that such evidence would have
The record on January 3, 2023 does not show Judge Brigham was startled.
the Marion County Jail for a Faretta hearing. Mr. White has five cases
36
before Judge Brigham: 2020-CF-5067, 2020-CF-5068, 2020-CF-5069,
Tribunal in Fifth DCA Case no. 5D22-2668 for Prohibition. Mr. White’s
Florida Supreme Court case SC23-241 was dismissed February 14, 2023.
Seeing what just happened to Mr. White, Mr. Klein warned the
Appellant while outside the courtroom that Judge Brigham does not like pro
Criminal Contempt.
37
Pursuant to Fla. Stat. 92.525(2), under the penalty of perjury, I
declare that I have read the foregoing Declaration of Neil Joseph
Gillespie and that the facts stated in it are true to the best of my
knowledge and belief. Signed Neil Joseph Gillespie.
38
judiciary into disrepute. Facial expression and body language, in
addition to oral communication, can give to parties or lawyers in the
proceeding, jurors, the media and others an appearance of judicial
bias. A judge must be alert to avoid behavior that may be perceived
as prejudicial.
E. Disqualification.
39
“[A] later criminal prosecution for the same conduct which gave rise to a
criminal contempt prosecution can violate a defendant’s double jeopardy
rights.” McCray v. State, 640 So. 2d 1215, 1217 (Fla. 5th DCA 1994) (citing
U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)).
40
CONCLUSION - Section VI
The Appellant did not validly waive his right to counsel prior to
prejudice and manifest injustice. See Robles v. State, 336 So.3d 378
(2022). In Tubbs v. State, 229 So.3d 1256 (2017), the District Court of
when he failed to cancel the motion hearing set for 1:30 PM after being
41
38.10. Had Judge Brigham acted lawfully, the hearing would have been
United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated
"Fraud upon the court is fraud which is directed to the judicial machinery
itself and is not fraud between the parties or fraudulent documents, false
his judicial function --- thus where the impartial functions of the court have
been directly corrupted." "Fraud upon the court" has been defined by the
7th Circuit Court of Appeals to "embrace that species of fraud which does,
the court so that the judicial machinery can not perform in the usual
manner its impartial task of adjudging cases that are presented for
Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision
produced by fraud upon the court is not in essence a decision at all, and
42
The Order Denying Defendant’s Motion To Withdraw Plea After
43
AMENDED NOTICE TO ATTORNEY GENERAL - Section VII
RULE 9.900 (m) Notice of Constitutional Question
44
communications prohibited: Neil Joseph Gillespie v. State of Florida,
U.S. District Court, Middle District of Florida, Ocala Division, case no.
5:21-cv-00416-PGB-PRL.
and contends the failure of Mr. Lashley to acknowledge that fact, or assist
2021-CF-286 has not provided the accused a fair and sufficient opportunity
the Order (DOC 23) of United States District Judge Paul G. Byron.
45
CERTIFICATE OF SERVICE - Section VIII
46
CERTIFICATE OF COMPLIANCE - Section IX
FOR COMPUTER-GENERATED BRIEFS
using Arial 14-point font (FRAP 9.045(b)), and is in compliance with the
47
Filing # 182766078 E-Filed 09/27/2023 11:44:34 PM
General for the State of Florida, and William Gladson, State Attorney for
the Fifth Judicial Circuit, with a waiver of service summons and complaint
States District Court, Middle District of Florida, Ocala Division, Neil Joseph
A Return of Service for William Gladson, State Attorney for the Fifth
AM at Marion County Judicial Center, 110 NW 1st Ave Ste 5000 Ocala, FL
the attached Order of Dismissal (DOC 23) without prejudice under the
that ordinarily a pending state prosecution provides the accused a fair and
v. Att’y Gen. of Fla., 377 F.3d 1258, 1264 n. 7 (11th Cir. 2004).
2
AMENDED NOTICE TO ATTORNEY GENERAL
RULE 9.900 (m) Notice of Constitutional Question
and contends the failure of Mr. Lashley to acknowledge that fact, or assist
3
AMENDED NOTICE TO ATTORNEY GENERAL
RULE 9.900 (m) Notice of Constitutional Question
2021-CF-286 has not provided the accused a fair and sufficient opportunity
the Order (DOC 23) of United States District Judge Paul G. Byron.
CERTIFICATE OF SERVICE
4
Court Stamp Here
RETURN OF SERVICE
Plaintiff Case #
NEIL JOSEPH GILLESPIE
5:21-CV-00416-PGB-PRL
SUMMONS;COMPLAINT
$75.00
On 11/05/2021 at:
107 W Gaines Street, Tallahassee, FL 32399 I served Ashley Moody, Florida State Attorney by:
Personally leaving 1 copy(ies) of SUMMONS and COMPLAINT at his/her usual place of abode with Regia Mompeller ,
who is 15 years of age or older, a person residing therein of who confirmed the Defendant resides at the above address
and informed that person of the contents thereof, with the date and hour of service endorsed thereon by me.
THE DESCRIPTION OF THE PERSON WITH WHOM THE COPY OF THIS PROCESS WAS LEFT IS AS FOLLOWS:
I delivered the documents to Regia Mompeller who indicated they were the agency clerk, co-resident with
identity confirmed by subject stating their name. The individual accepted service with direct delivery. The
individual appeared to be a black-haired white female contact 45-55 years of age, 5'6"-5'8" tall and weighing 140-
160 lbs with glasses
RETURN OF SERVICE
Plaintiff Case #
NEIL JOSEPH GILLESPIE
5:21-CV-00416-PGB-PRL
On 11/05/2021 at:
Marion County Judicial Center, 110 NW 1st Ave Ste 5000 Ocala, FL 34475-6614 I served William McDonald
Gladson, 5th Judicial District State Attorney by:
Personally leaving 1 copy(ies) of COMPLAINT and NOTICE OF A LAWSUIT AND REQUEST TO WAIVE SERVICE OF
A SUMMONS at his/her usual place of abode with KATHY DELTORO, ADMINISTRATIVE ASSISTANT, who is 15 years
of age or older, a person residing therein of who confirmed the Defendant resides at the above address and informed that
person of the contents thereof, with the date and hour of service endorsed thereon by me.
THE DESCRIPTION OF THE PERSON WITH WHOM THE COPY OF THIS PROCESS WAS LEFT IS AS FOLLOWS:
I delivered the documents to KATHY DELTORO, ADMINISTRATIVE ASSISTANT who indicated they were the
authorized employee with identity confirmed by subject stating their name. The individual accepted service with
direct delivery. The individual appeared to be a brown-haired white female contact 45-55 years of age, 5'4"-5'6"
tall and weighing 140-160 lbs with glasses
03-4-14
11/08/2021
Kenneth Kelley Process Server ID Date Executed
Plaintiff,
STATE OF FLORIDA,
Defendant.
________________________________
ORDER OF DISMISSAL
Plaintiff, a pre-trial detainee at the Marion County Jail proceeding pro se, initiated
this action by filing a civil rights complaint. (Doc. 1.) Plaintiff complains that the statute
The case is currently before the Court for screening pursuant to the Prison
Litigation Reform Act (PLRA). The PLRA requires the Court to dismiss a case if the Court
determines that the action is frivolous, malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915A. The Court must liberally construe a pro se Plaintiff’s
allegations. See Haines v. Kerner, 404 U.S. 519 (1972); see also Miller v. Stanmore, 636 F. 2d
This Court must abstain from passing on Plaintiff’s claims pursuant to the Younger
v. Harris abstention doctrine. 401 U.S. 37 (1971). “Under Younger v. Harris and its
1
Case 5:21-cv-00416-PGB-PRL Document 23 Filed 04/04/22 Page 2 of 3 PageID 311
progeny, federal district courts must refrain from enjoining pending state court
proceedings except under special circumstances.” Old Republic Union Ins. Co. v. Tillis
Trucking Co., Inc., 124 F.3d 1258, 1261 (11th Cir. 1997). “The policy of equitable restraint
prosecution provides the accused a fair and sufficient opportunity for vindication of
federal constitutional rights.” Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1264 n. 7 (11th
Cir. 2004).
The exceptions to Younger are very narrow and apply only if there is evidence of
state proceedings motivated by bad faith, irreparable injury would occur, or there is no
adequate alternative state forum where the plaintiff’s constitutional issues can be raised.
Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1263 (11th Cir. 2004). In his most recent filing,
received by the Court on March 10, 2022, Plaintiff has communicated that his state
criminal case is ongoing. (Doc. 22.) None of the Younger exceptions apply in the present
case.
For the reasons stated herein, the complaint (Doc. 1) is DISMISSED without
prejudice. The Clerk is directed to enter judgment accordingly, terminate any pending
IT IS SO ORDERED.
no. 5D23-1176, and Neil Joseph Gillespie v. State of Florida, case no.
5D23-0888, both pending in the Fifth District Court of Appeal, are related to
this matter because the same facts from which the matters arise are similar
CERTIFICATE OF SERVICE
2
Filing # 184880816 E-Filed 10/27/2023 08:54:26 AM
Appellant,
RECEIVED, 10/27/2023 08:55:21 AM, Clerk, Fifth District Court of Appeal
STATE OF FLORIDA,
Appellee.
_______________________/
ASHLEY MOODY
ATTORNEY GENERAL
DOUGLAS T. SQUIRE
ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0088730
PAGE(S)
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUE
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i
TABLE OF CITATIONS
CASES PAGES
Canakaris v. Canakaris,
382 So.2d 1197 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Caso v. State,
524 So.2d 422 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Daniels v. State,
177 So.3d 101 (Fla. 1st DCA 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Knight v. State,
770 So.2d 663 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lopez v. State,
536 So.2d 226 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Powell v. State,
929 So.2d 54 (Fla. 5th DCA 2006) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Savage v. State,
156 So.2d 566 (Fla. 1st DCA 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State v. Barber,
301 So.2d 7 (Fla. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Stewart v. State,
315 So.3d 756 (Fla. 4th DCA 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
OTHER
ii
STATEMENT OF THE CASE AND FACTS
because he was not indigent, and a motion to refuse counsel and appear
pro se, Appellant filed at least six (6) waivers of his right to a lawyer. (R. at
counsel, and that it would be an attorney that he “hire[d] and paid for.”
The trial court informed Appellant that Appellant was free to do that at any
time, and that the trial court did not control that. (R. at p. 3340). Finally, the
Marcus Murden, Esquire, at the March 20, 2023, change of plea hearing.
Appellant was asked whether counsel, who was “standing right next to”
Appellant, had answered Appellant’s questions and had done what was
1
SUMMARY OF ARGUMENT
It was not an abuse of discretion for the trial court to summarily deny
facially insufficient.
2
ARGUMENT
ISSUE
Standard of Review
plea is abuse of discretion. Stewart v. State, 315 So.3d 756, 758 (Fla. 4th
DCA 2021). However, this standard of review only applies if the issue or
argument which appellant makes here was properly presented to the trial
court for resolution. State v. Barber, 301 So.2d 7 (Fla. 1974). Below,
Appellant filed a motion to withdraw plea after sentencing. (R. at pp. 3293-
3303).
Abuse of Discretion
Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir.
following manner:
3
taken by the trial court, then the action is not unreasonable and
there can be no finding of an abuse of discretion.
take the view adopted by the trial court." Id. The appellate court must fully
recognize the superior vantage point of the trial judge and should apply the
discretion. Id. The discretionary ruling of the trial judge should be disturbed
State, 156 So.2d 566 (Fla. 1st DCA 1963). Section 924.051(7) of the
any basis in the record for doing so. Caso v. State, 524 So.2d 422, 424
(Fla. 1988).
4
Merits
Appellant argues that the trial court erred by denying his motion to
injustice." Lopez v. State, 536 So.2d 226, 229 (Fla. 1988)(internal citations
omitted).
Appellant spends much of his initial brief challenging the trial court’s
2023, motion to disqualify, was denied on the merits by this Court on June
28, 2023. (Case No. 5D23-814). “Because this same claim was earlier
considered by the court and rejected on the merits, the present [challenge]
is procedurally barred under the doctrine of law of the case ....” Daniels v.
plea after sentencing, Appellant argues that he had a right to counsel prior
to entering his plea, and that he did not validly waive his right to counsel
5
prior to entering his plea. Appellant’s claim(s) are belied by the record on
appeal.
because he was not indigent, and a motion to refuse counsel and appear
pro se, Appellant filed at least six (6) waivers of his right to a lawyer. (R. at
counsel, and that it would be an attorney that he “hire[d] and paid for.”
The trial court informed Appellant that Appellant was free to do that at any
time, and that the trial court did not control that. (R. at p. 3340). Finally, the
Marcus Murden, Esquire, at the March 20, 2023, change of plea hearing.
Appellant was asked whether counsel, who was “standing right next to”
Appellant, had answered Appellant’s questions and had done what was
the affirmative. (R. at pp. 3352-3353). Clearly, the record shows that
Appellant was well aware of his right to appointed counsel, and that the
trial court had made every effort to see that the assistance of counsel was
6
Appellant’s allegation that he was denied the assistance of counsel without
a valid waiver was without supporting proof and failed to show that his plea
was not voluntarily entered; therefore, the trial court properly denied
See, e.g., Powell v. State, 929 So.2d 54 (Fla. 5th DCA 2006) (held that
also Knight v. State, 770 So.2d 663, 670 (Fla. 2000) (“Standby counsel is a
appeal in this Court in Case No. 5D23-888, and is not properly addressed
in this case.
7
CONCLUSION
this case.
8
SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished by e-mail to: Neil
Respectfully submitted,
ASHLEY MOODY
ATTORNEY GENERAL
/s/Douglas T. Squire
DOUGLAS T. SQUIRE
ASSISTANT ATTORNEY GENERAL
Florida Bar No. 0088730
9
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the applicable font and word
/s/Douglas T. Squire
Douglas T. Squire
Attorney for State of Florida
this proceeding:
10
Filing # 187223371 E-Filed 12/01/2023 11:41:45 PM
PAGE
TABLE OF CONTENTS ................................................................ i
ARGUMENT .................................................................................... 8
ISSUES
CONCLUSION ................................................................................... 13
i
TABLE OF CITATIONS
page
ii
STATEMENT OF THE CASE AND FACTS
no contest made on March 20, 2023 while held in the Marion County Jail
1
Tellingly, the Appellant’s Motion to Withdraw Plea after Sentencing
The Initial Brief (13-15) shows the trial judge is biased against the
The Initial Brief (36-38) shows the trial judge is biased against pro se
The Initial Brief (16) shows the trial judge is a former Assistant State
2
The State violated the civil rights of the Appellant, including his right
filed in case 2022CF1143 (R 3464-3487). The State violated the civil rights
of the Appellant including his right to due process under the Fifth
that the State Attorney's Office and the Court cooperated with Lashley in
denying the Appellant his right to counsel under the U.S. Six Amendment.
The Appellant did not validly waive his right to counsel prior to
3
to assistance of counsel without valid waiver was sufficient to constitute
prejudice and manifest injustice. Robles v. State, 336 So.3d 378 (2022).
in its Answer, the Appellant prudently waived ineffective counsel who were
Finally, the record shows that Appellant had the assistance of “stand-
by” counsel, Marcus Murden, Esquire, at the March 20, 2023, change
of plea hearing. Appellant was asked whether counsel, who was
“standing right next to” Appellant, had answered Appellant’s
questions and had done what was asked by Appellant to Appellant’s
satisfaction, and Appellant answered in the affirmative. (R. at pp.
3352-3353).
Mr. Murden did not appear as “stand-by” counsel for the Appellant.
Appellant did not discuss any legal matters with Mr. Murden.
The only question Mr. Murden answered for the Appellant was to inform
4
SUMMARY OF THE ARGUMENT
2023 while held in the Marion County Jail on no bond violated his rights as
sentences. (R 3294). Separately the Appellant alleged that the trial judge
November 9, 2023, with instructions that the trial court enter a judgment of
motions to dismiss, and instruct the trial court to enter a judgment of not
Grim of The Intercept about his time in the Marion County Jail, see
https://theintercept.com/2023/02/05/ron-desantis-florida-villages-oren-miller/
5
The last 74 days had been an ordeal. There are about 1,800 people
in the county’s lockup facility; Miller was in a pod with 80, he said, but
there were just 56 seats for meals. On his first day, a jailmate offered
to adopt him and get him a seat at meals in exchange for some of his
food, a bargain he eagerly accepted. On the second day, he said, he
won protection from a gang leader. “Oren Miller, you are protected in
here because you’re a senior citizen,” the man said, according to
Miller. “‘But understand, don’t cross any lines.’ … And so I minded my
p’s and q’s.” Violence broke out regularly, Miller recounted, and he
watched two men beaten nearly to death. He moved to try to break
up the first fight, but two men held him back, explaining that if he got
involved, he’d be called later as a witness, and you don’t want to be a
witness against somebody who sleeps in the same open room as
you. So he let them fight.
Miller went days without his heart or thyroid medication, and grew
weak and dizzy. Complaining of chest pain, he was eventually given
an EKG, which the staff told him showed no problems. “My EKG
hasn’t been good in 15 years,” he said. “I will never have a good
EKG. I’ve got an irregular heartbeat all the time.” He said they gave
him medication despite claiming to detect no heart trouble — the
same type of heart medication he’d been prescribed but hadn’t been
getting.
in federal court for the wrongful death of inmate Cory Merchant, see
6
The Plaintiff is represented by:
On November 27, 2023, Marion County Sheriff Billy Woods was sued
in federal court for the wrongful death of inmate Scott L. Whitley, III, see,
Michael Evan Levine, Stewart, Tilghman, Fox & Bianchi, PA, Miami, FL
James Murray Slater, Slater Legal PLLC, Tallahassee, FL
7
ARGUMENT
in its Answer, the Appellant prudently waived ineffective counsel who were
The Appellant appeared pro se on March 20, 2023. Mr. Murden did
not appear as “stand-by” counsel for the Appellant. Mr. Murden was in
8
3. Four ( 4) counts of one-part consent telephone recording in two
cases (2019-CF-4193 and 2021-CF-0286) are lawfully permitted, so
any sentence in those cases is unlawful. Judge Brigham is bound by
the rule of law to dismiss each case as shown in Gillespie's Amended
Motions To Dismiss, under Article VI, Clause 2 of the U.S.
Constitution, the Supremacy Clause, and 18 USC 2511 (2)( d),
Interception and disclosure of wire, oral, or electronic
communications prohibited. Gillespie was a party to the
communication and not acting under color of law, pursuant to the
one-party consent federal statute, 18 USC 2511 (2)( d), which is the
Law of the Land in Florida. Separately and in addition, Gillespie
moved to dismiss each case under the U.S. Sixth Amendment
because a witness favorable to him in each case is deceased.
available to him under the constitution and laws of the United States.
2511(2)(d)) Under F.S. 934.02(22) Definitions, “state” means any state of the
The Constitution and laws of the United States are the “Supreme Law
of the Land”, Art. VI, cl. 2, U.S. Const., the “Supremacy Clause”:
Thus Constitution, and the Laws of the United States which shall be
made in pursuance thereof, and all Treaties made or which shall be
made, under the authority of the United States, shall be the Supreme
Law of the Land; and the Judges in every Sate shall be bound
thereby, any thing in the Constitution or laws of any state to the
contrary not withstanding.
9
Under Art. VI, cl. 3, U.S. Const., “All...judicial officers, both of the
Title 18, Chapter 119 of the United States Code (U.S.C.) states at 18
U.S.C.(2)(d):
It shall not be unlawful under this chapter for a person not acting
under color of law to intercept a wire, oral, or electronic
communication where such person is a party to the communication or
where one of the parties to the communication has given prior
consent to such interception unless such communication is
intercepted for the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United States or of any
state.
Under the U.S. Supremacy Clause, Art. VI, cl. 2, U.S. Const., 18
U.S.C. 2511(2)(d) is the Supreme Law of the Land, and must be followed
by every state court judge in the United States, including every judge in
10
Because 18 U.S.C. 2511(2)(d) is the Supreme Law of the Land in the
United States, and must be followed by every state court judge, Appellant
and case 2021CF286 fail to establish a prima facie case of guilt against the
filed in case 2022CF1143 (R 3464-3487). The State violated the civil rights
of the Appellant including his right to due process under the Fifth
11
The Initial Brief (13-15) shows the trial judge is biased against the
The Initial Brief (36-38) shows the trial judge is biased against pro se
12
CONCLUSION
dismiss, and instruct the trial court to enter a judgment of not guilty in favor
2022-CF-1143, grant him immunity from prosecution, and instruct the trial
2022-CF-1143.
direct criminal contempt, and instruct the trial court to enter a judgment of
13
CERTIFICATE OF SERVICE
DOUGLAS T. SQUIRE
Assistant Attorney General
Florida Bar No. 0088730
Office of the Attorney General
444 Seabreeze Blvd.
5th Floor
Daytona Beach, FL 32118
douglas.squire@myfloridalegal.com
CrimAppDAB@MyFloridaLegal.com
14
CERTIFICATE OF COMPLIANCE
FOR COMPUTER-GENERATED BRIEFS
using Arial 14-point font (FRAP 9.045(b)), and is in compliance with the
15
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
Appellant,
v. CASE NO. 5D23-2005
LT CASE NO. 2022-CF-1143,
2019-CF-4193, 2021-CF-286
STATE OF FLORIDA,
Appellee.
________________________
This is to advise you that this cause has been assigned to the
following panel of judges, listed in their order of seniority:
cc:
Douglas T. Squire Neil Joseph Gillespie
Filing # 188888158 E-Filed 01/02/2024 10:07:47 AM
4. The Certificate of Service for the Order (R: 3045-3046) shows it was
served November 28, 2022, a date prior to when the Order was signed on
December 5, 2023 by Judge Brigham.
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
6. The Certificate of Service for the Order (R: 3045-3046) dated November
28, 2022 is evidence of either fraud on the court, or incompetence.
preparing to post the Order and related court documents online. The
Appellant is legally blind in his left eye (20/400), shown on the attached eye
11100 SW 93rd Court Road, #203, Ocala, FL 34481. The Appellant’s vision
disability prevented him from noticing this issue with the Order sooner.
because the Order (R: 3045-3046) shows Judge Brigham had previously
Evaluation (R: 2983-3000) and had already signed the Order on December
5, 2022, almost a month prior to the hearing on the motion held January 3,
2023, prior to the hearing. (R. 3022-3034). Fla. Stat. 38.10, Disqualification
proceeding makes and files an affidavit stating fear that he or she will not
2
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
receive a fair trial in the court where the suit is pending on account of the
prejudice of the judge of that court against the applicant or in favor of the
adverse party, the judge shall proceed no further...”. Once Judge Brigham
was served with a motion and affidavit to disqualify, the Judge was
required to “proceed no further” and cancel the hearing, as he had not yet
ruled on the motion to disqualify him. (Judge Brigham later denied the
Judge Brigham did not cancel the hearing on January 3, 2023 as the
law required he do under Fla. Stat. sec. 38.10. Instead, Judge Brigham
proceeded with the hearing. Then, 22 days later on January 25, 2023,
Judge Brigham held the Appellant in direct criminal contempt for allegedly
contempt, and to incarcerate him for 30 days in the Marion County Jail.
3
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
• On March 20, 2023, the Defendant, a nonlawyer appearing pro se, pled
make his car payment, and get medical care not provided in jail.
• On April 19, 2023, the Defendant, a nonlawyer appearing pro se, filed a
Notice of Appeal to the Florida Fifth District Court of Appeal of the Order
4
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
“He described his time in jail, losing weight, some of his medical
illnesses subsiding because he lost over 100 pounds.” (R. 2973)
5
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
the Defendant Neil Joseph Gillespie in his criminal cases after a motion to
disqualify the trial judge was served January 3, 2023, prior to a hearing that
day at 1:30 PM. Without jurisdiction, the Court would lack the authority to
would be prohibited 22 days later, after the fact on January 25, 2023, to
his incarceration on no bond. The petition was a new civil action to test the
6
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
• The Certificate of Service for the Order (R: 3045-3046) shows it was
served November 28, 2022, a date prior to when the Order was signed
on December 5, 2023 by Judge Brigham.
• The Certificate of Service for the Order (R: 3045-3046) dated November
28, 2022 is evidence of either fraud on the court, or incompetence.
pleading which might later fail for lack of proof.” Wells Fargo Bank, N.A. v.
where the trial court is and should be vested with discretion to fashion the
apt remedy.” Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998).
7
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
Suit?, Cato Journal, Vol.7, No.2 (Fall 1987), cited in the Appellant’s Initial
"In Florida what constitutes 'Fraud upon the Court'." This occurs
when, "...a party has sentiently set in motion some unconscionable scheme
v. Burke, 706 So.2d 43, 46 (Fla. 5 th DCA 1998) (quoting Aoude v. Mobil
United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated
"Fraud upon the court is fraud which is directed to the judicial machinery
itself and is not fraud between the parties or fraudulent documents, false
his judicial function --- thus where the impartial functions of the court have
8
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
been directly corrupted." "Fraud upon the court" has been defined by the
7th Circuit Court of Appeals to "embrace that species of fraud which does,
the court so that the judicial machinery can not perform in the usual
manner its impartial task of adjudging cases that are presented for
Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision
produced by fraud upon the court is not in essence a decision at all, and
Oil Products Co. v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90
before us.” See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
238, 64 S.Ct. 997, 88 L.Ed. 1250; Sprague v. Ticonic National Bank, 307
U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; and United States v. Throckmorton,
9
NOTICE OF SUPPLEMENTAL AUTHORITY, RULE 9.900(j)
Ocala, FL 34474
Tel: 352-239-9037
Email: celticein@yahoo.com
CERTIFICATE OF SERVICE
DOUGLAS T. SQUIRE
Assistant Attorney General
Florida Bar No. 0088730
Office of the Attorney General Marion County Clerk
444 Seabreeze Blvd. Marion County Courthouse
5th Floor P.O. Box 1030
Daytona Beach, FL 32118 Ocala, FL 34478-1030
CrimAppDAB@MyFloridaLegal.com Appeals@marioncountyclerk.org
douglas.squire@myfloridalegal.com
10
Filing# 164229700 E-Filed 01/06/2023 12:02:34 PM
vs
NEIL JOSEPH GILLESPIE
7/L
December, 2022.
Page 3045
CER'ITFICATE OP SERVICE
I HEREBY CERTIFY that a copy ofthc above has been furnished to NEIL GILLESPIB 8092
SW 115TH LOOP OCALA, FL 344813567, Office of the State Attorney 110 NW 1 Ave, Suite 5000
Ocala, FL 34475 eservicemarion@sao5.org, by hand or mail delivery or electronic service, this 28th day
of November, 2022.
~io91ftllill'ill'1"r.tr.""'3-a----
Judicial Assistanl/Ilspu1y Clerk
M-2019-50323-A
Page 3046
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JOSEPH
Filing Information
Filing #: 164229700
Filing Time: 01/06/2023 12:02:34 PM ET
Filer: Peter Matthew Brigham 352-401-7810
Court: Fifth Judicial Circuit in and for Marion County, Florida
Case #: 422019CF004193CFAXXX
Court Case #: 19CF004193AX
Case Style: STATE OF FLORIDA VS GILLESPIE, NEIL JOSEPH
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FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
_____________________________
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
PER CURIAM.
AFFIRMED.
2
Florida Search Find My District Court (/Find-My-District-Court) Fifth DCA
Fifth District Court Of Appeal
Accessible | Fair | Effective | Responsive | Accountable
(/)
Judge Scott Makar was appointed to the First District Court of Appeal by Governor Rick Scott on February 6, 2012, and recommissioned to the Fifth District Court of Appeal by Governor Ron DeSantis on
January 1, 2023.
Born October 1959, in Mahopac, New York; Florida resident since 1969.
Degrees:
• Ph.D. (economics), University of Florida, 1993.
• J.D. (upper 10%), University of Florida College of Law, 1987.University of Florida Law Review
◦ Gertrude Brick Law Review Award, Best Note, Fall 1985
◦ University of Florida Journal of Law and Public Policy, Founder & Editor-in-Chief
◦ Book Awards: Antitrust & Florida Constitutional Law
Manager of the Year, Office of the Attorney General (2009); Distinguished Service Award, Office of the Attorney General (2010)
Barbara W. Sanders Writing Competition Award (annual award for best legal writing), The Florida Bar, 1994-95 (1st Place); 1992-93 (2nd Place); 1991-92 (2nd Place).
• Adjunct Professor, University of Florida College of Law (2011-present). Courses/times taught: Appellate Law and Policy (9); Florida, The Constitution & The United States Supreme Court.
• Richard W. Ervin Chair, FSU College of Law (2007-2011). Courses/times taught: Appellate Law and Policy (2); Judicial Opinion Writing; Florida, The Constitution & The United States Supreme Court;Famous
Florida Trials; Amicus Briefs; Topics in Florida Constitutional Law; & Solicitors General and Appellate Policy.
• Adjunct Professor, Florida Coastal School of Law (2000-2007). Courses/times taught: Florida Constitutional Law (9); Florida, The Constitution & The United States Supreme Court (2); Education and the
Constitution (2); Civil Rights; Antitrust Law; & Media Law and Ethics.
• Adjunct Instructor, University of North Florida, Department of Communications and Visual Arts. Course: Ethics and Law of Communications (Spring 1999, Fall 1999, & Spring 2000).
• Lecturer, Jacksonville University. Course: Education and Constitutional Law (Summer 1995).
• Adjunct Instructor, University of North Florida, Department of Political Science & Public Administration. Course: The United States Supreme Court and the Constitution (1993).
• Adjunct Instructor/Visiting Assistant Professor, University of Florida, College of Business Administration. Course/times taught: Legal Environment of Business. (1984-87)(6)/(1987-88)(2).
• Teaching Assistant, University of Florida, College of Business Administration, Courses: Introductory Finance; Macroeconomics; & Microeconomics.
Other Articles
• Litigious Students and Academic Disputes, The Chronicle of Higher Education, B20 (Nov. 8, 2002) (discussing trends in student litigation).
• Litigating the Amount of Attorneys’ Fees: A Proposal For Reform, 73 Florida Bar Journal 16 (October 1999) (with Judge James C. Hauser).
• In Praise of Older Judges: Raise the Mandatory Retirement Age?, 71 Florida Bar Journal 48 (April 1997).
• Post-Judgment Motions For Attorneys’ Fees: Time For A Bright-Line Rule, 71 Florida Bar Journal 4 (February 1997) (lead article).
• Geographic Information Systems: Legal and Policy Implications, 70 Florida Bar Journal 44 (November 1995) (with Michael R. Makar, Jr.), reprinted in 3 GIS Law 12 (1996).
• Vanishing Precedent: Settlement Vacatur on Appeal, 69 Florida Bar Journal 18 (November 1994) (lead article & Sanders Award).
• Local Government, Privatization, and Antitrust Immunity, 68 Florida Bar Journal 38 (April 1994).
• Professionalism, Civility, and Aspirational Conduct, 68 Florida Bar Journal 14 (March 1994) (lead article with Ray Ehrlich).
• Judicial Staff and Ethical Conduct, 66 Florida Bar Journal 10 (Nov. 1992) (lead article).
• “Honey I Shrunk the First Amendment”: Free Speech on High School and University Campuses, 66 Florida Bar Journal 13 (June 1992) (lead article & Sanders Award), reprinted in 14 Children’s Legal
Rights Journal 29 (Winter/Spring 1993).
• Anticompetitive Actions in the Administrative Forum: Antitrust and State Law Remedies, 66 Florida Bar Journal 33 (Feb. 1992) (Sanders Award).
Chambers Staff:
Abigail Pafford, Law Clerk (University of Florida)
Katryna Santa Cruz, Law Clerk (Florida International University College of Law)
Judges
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Judge F. Rand Wallis (/Judges/Judge-F.-Rand-Wallis)
Judge Brian D. Lambert (/Judges/Judge-Brian-D.-Lambert)
Judge Harvey L. Jay (/Judges/Judge-Harvey-L.-Jay)
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Judge Adrian G. Soud (/Judges/Judge-Adrian-G.-Soud)
Judge John M. Harris (/Judges/Judge-John-M.-Harris)
Judge Joe Boatwright (/Judges/Judge-Joe-Boatwright)
Judge Paige Kilbane (/Judges/Judge-Paige-Kilbane)
Judge John MacIver (/Judges/Judge-John-MacIver)
Judge Jordan E. Pratt (/Judges/Judge-Jordan-E.-Pratt)
Former Judges (/Judges/Former-Judges)
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Fifth District Court Of Appeal
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Judge Harvey L. Jay was recommissioned to the Fifth District Court of Appeal on January 1, 2023 by Governor Ron Desantis.
Judge Harvey Jay was appointed to the First District Court of Appeal in February of 2016 by Governor Rick Scott. Prior to this appointment, Judge Jay served as a circuit judge in Duval County, having been
appointed to that position in 2011.
During his tenure as a circuit judge, Judge Jay served in the family and civil divisions of the Fourth Judicial Circuit. As a trial judge, he presided over numerous bench and jury trials and conducted hundreds
of evidentiary hearings involving petitions for protective injunctions. In 2015, Judge Jay received the Jurist of the Year Award from the Jacksonville Chapter of the American Board of Trial Advocates.
Before taking the bench, Judge Jay was an equity partner at the law firm of Saalfield Shad where he provided trial and appellate representation to parties involved in complex litigation. As a civil trial lawyer for
over twenty years, Judge Jay tried a broad spectrum of cases including actions for medical malpractice, false arrest, maritime negligence, and wrongful death. He also represented hospitals, physicians, and
nurses in administrative proceedings. While practicing law, he received an AV Preeminent rating from Martindale-Hubbell, the highest peer rating for legal knowledge and ethics.
Judge Jay was born in Jacksonville, Florida. He received his bachelor’s degree from Stetson University and his law degree from the University of Florida. He is married and has two daughters.
Judges
Chief Judge James A. Edwards (/Judges/Chief-Judge-James-A.-Edwards)
Judge Scott Makar (/Judges/Judge-Scott-Makar)
Judge F. Rand Wallis (/Judges/Judge-F.-Rand-Wallis)
Judge Brian D. Lambert (/Judges/Judge-Brian-D.-Lambert)
Judge Harvey L. Jay (/Judges/Judge-Harvey-L.-Jay)
Judge Eric J. Eisnaugle (/Judges/Judge-Eric-J.-Eisnaugle)
Judge Adrian G. Soud (/Judges/Judge-Adrian-G.-Soud)
Judge John M. Harris (/Judges/Judge-John-M.-Harris)
Judge Joe Boatwright (/Judges/Judge-Joe-Boatwright)
Judge Paige Kilbane (/Judges/Judge-Paige-Kilbane)
Judge John MacIver (/Judges/Judge-John-MacIver)
Judge Jordan E. Pratt (/Judges/Judge-Jordan-E.-Pratt)
Former Judges (/Judges/Former-Judges)
Senior Judges (/Judges/Senior-Judges)
View Larger Judges Photo (https://cc-flcourts-storage.s3.amazonaws.com/flcourts-master/images/3/9/5/2/9702593-1-eng-US/CJ-Edwards.jpg)
Court Resources
Florida Courts
Using this Site (/Using-this-Site) | Privacy Policy (/Privacy-Policy) | Accessibility Statement (/Accessibility-Statement)
Florida Courts
Florida Search Find My District Court (/Find-My-District-Court) Fifth DCA
Fifth District Court Of Appeal
Accessible | Fair | Effective | Responsive | Accountable
(/)
Judge Adrian G. Soud was appointed to the Fifth District Court of Appeal by Governor Ron DeSantis on January 1, 2023.
Before his appointment, Judge Soud served on the Fourth Judicial Circuit of Florida from 2009-2022, having been first elected in August 2008. In this capacity, Judge Soud presided over cases in every
division of the Fourth Circuit. Judge Soud served as Administrative Judge of the Circuit Felony divisions in Duval County from 2020-2022. Previously, Judge Soud presided in civil, family, felony and appellate
divisions of the Fourth Circuit, in Duval County. From 2015-2016, Judge Soud presided over Division A of the Fourth Judicial Circuit in Nassau County, hearing civil cases, probate and guardianship cases,
juvenile cases, family law cases and appeals from the Nassau County Court. Judge Soud also served as a Mentor Judge in the Judicial Mentor Program, which is designed to guide new judges on matters such
as judicial administration, proper professionalism and decorum, compliance with judicial canons, and other practical matters to service on the bench.
In 2021, Judge Soud was appointed to the State Council for Interstate Adult Offender Supervision. In 2017, Judge Soud was appointed as the State Courts System’s representative on the Commission for
Florida Law Enforcement Accreditation, an independent organization overseeing the accreditation of law enforcement agencies throughout the State of Florida. Additionally, in 2013, Judge Soud was
recognized with the Judicial Award by the Victim Assistance Advisory Council of the City of Jacksonville for ensuring the due process rights of victims of crime.
Judge Soud began his legal career at Holland & Knight LLP. His general litigation practice included work in the areas of medical malpractice defense, commercial litigation, product liability, maritime law and
others. In late 2002, he joined his brother in legal practice as a partner in The Soud Law Firm, specializing in representing individuals in civil matters in state and federal court.
In the community, Judge Soud actively serves as a lecturer and curriculum contributor with The University of US, an organization providing scholarships to achieving high school students in Northeast Florida
who participate in a six-month educational program teaching the foundational principles of our Constitution and the founding of our country. Judge Soud has provided lectures on such topics as the Bill of
Rights and the constitutional pillars of federalism and the separation of powers (as set forth in The Federalist papers). Judge Soud also is a member of The Federalist Society.
Judge Soud has long served in his local Church, including service as a Sunday school teacher, trustee and deacon. While a young lawyer, Judge Soud served as a member of the Discovery Board of The
Ronald McDonald House, an organization offering care, lodging and other support for families with critically ill, chronically ill or seriously injured children being treated in Jacksonville.
Judge Soud was born and raised in Jacksonville, Florida. He obtained his bachelor’s degree in 1996 from the University of Florida and his law degree, cum laude, in 1999 from Stetson University College of
Law, where he was a member of the nationally recognized trial team.
Judge Soud and his wife Marcie have two children, Emily and Elizabeth.
Judges
Chief Judge James A. Edwards (/Judges/Chief-Judge-James-A.-Edwards)
Judge Scott Makar (/Judges/Judge-Scott-Makar)
Judge F. Rand Wallis (/Judges/Judge-F.-Rand-Wallis)
Judge Brian D. Lambert (/Judges/Judge-Brian-D.-Lambert)
Judge Harvey L. Jay (/Judges/Judge-Harvey-L.-Jay)
Judge Eric J. Eisnaugle (/Judges/Judge-Eric-J.-Eisnaugle)
Judge Adrian G. Soud (/Judges/Judge-Adrian-G.-Soud)
Judge John M. Harris (/Judges/Judge-John-M.-Harris)
Judge Joe Boatwright (/Judges/Judge-Joe-Boatwright)
Judge Paige Kilbane (/Judges/Judge-Paige-Kilbane)
Judge John MacIver (/Judges/Judge-John-MacIver)
Judge Jordan E. Pratt (/Judges/Judge-Jordan-E.-Pratt)
Former Judges (/Judges/Former-Judges)
Senior Judges (/Judges/Senior-Judges)
Court Resources
Florida Courts
Using this Site (/Using-this-Site) | Privacy Policy (/Privacy-Policy) | Accessibility Statement (/Accessibility-Statement)
Florida Courts
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
FIFTH DISTRICT
CERTIFICATE OF CLERK
WITNESS my hand and the seal of said Court on 25th of August, 2023
Gregory C. Harrell
Clerk of Court and Comptroller
BY: - - - - - - - - - -
A McHenry, Deputy Clerk
Page 4152
Filing # 180493296 E-Filed 08/25/2023 05:18:50 AM
2. The Appellant has instructed the Marion County Clerk to transmit the
for Clerk Greg Harrell, says the record will not include the Appellant’s
4. The email of Mr. Davis is attached, along with the Appellant’s Notice
appeal should also include case no. 2020-CF-2417, which was not
prosecuted due to the death of Sarah Thompson. At this time the Appellant
do not know if the Clerk’s record will include case no. 2020-CF-2417 or not.
6. Governor Ron DeSantis has suspended and removed from office two
Monique H. Worrell (9th Judicial Circuit). The Appellant believes that State
Attorney William Gladson should also be removed from office for misusing
the criminal justice system against the Appellant, and for Gladson’s role in
the death of Sarah Thompson on May 12, 2021. Below is the essence of a
2
7. The Appellant believes the record on appeal should include his
Notice of Filing Transcript of Motions Hearing January 20, 2021, with the
Appendix of Exhibits and the Motions Hearing transcript, and case no.
CERTIFICATE OF SERVICE
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Filing # 180463641 E-Filed 08/24/2023 03:51:07 PM
The Defendant, NEIL JOSEPH GILLESPIE, a nonlawyer appearing pro se, gives Notice
1. The Defendant hereby files a transcript of a Motions Hearing held on January 20, 2021
before Circuit Judge Gary Sanders. Assistant State Attorney Alicia Winterkorn appeared for the
State of Florida. Brenda Smith is alleged to be the attorney for the Defendant.
2. The Defendant did not appear at the hearing and had gone to Philadelphia for retina
surgery at Wills Eye Hospital. On November 1, 2020 the Defendant filed a motion to cancel or
continue all hearings until further notice because he had a detached retina needing surgery,
3. On January 23, 2023 Mr. Rob Davis, General Counsel for the Marion County Clerk,
provided an email confirming the Defendant’s motion (DOC 226) had been “locked” on the
docket as confidential, which was wrong. The Defendant’s motion states in part,
3. I am currently disabled with a detached retina, an eyesight disability, and cannot attend
any hearings now. Detached retina is an urgent and serious medical condition that could
result in blindness if not promptly treated. My medical records with Dr. Parrot appear at
Exhibit 4.
7. I live in Ocala Florida. Dr. Parrot does surgery only in Gaineville at an out-patient only
surgical pavilion which requires a family member drive the patient to and from the
surgery and wait for the patient during the surgery and recovery, about 5 hours plus travel
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
time. Transport by Uber or taxi is prohibited. This is the protocol I found at other
ophthalmologists. I do not have family in Florida to accompany me. So Dr. Parrot cannot
do the surgery I need. Retina surgery is not done in Ocala, they say. The other option is
to have retina surgery done in-patient at UF Health Shands in Gainesville. Dr. Parrot does
not have practice privileges at UF Health Shands in Gainesville. I was unable to find a
suitable doctor at Shands. So I am still trying to arrange surgery with a competent doctor.
I am considering options in Miami and Philadelphia.
4. The Defendant’s motion was served on the Court, the State Attorney’s Office, Brenda
Smith, Esq. and the names indicated on the Portal service of court documents.
5. Judge Sanders scheduled a motions hearing anyway for January 20, 2021.
6. Judge Sanders had planned to bring the Defendant into Court to arrest him on another
one-party consent phone call recording crime, which became case no. 2021-CF-286. Previously
the Defendant was arrested for one-party consent phone call recording in case no. 2019-CF-
4193. One-party consent phone call recording is lawful under 18 USC 2511(2)(d) when not
acting under color of law, and is the Law of the Land in Florida under the Supremacy Clause of
the U.S. Constitution, Article VI, Clause 2. In addition, all calls on the Defendant’s home office
telephone extension (352) 854-7807 were recorded for quality assurance purposes pursuant to
the business use exemption of Fla. Stat. sec. 934.02(4)(a)(1) and the holding of Royal Health
Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991), as publicly
7. Circuit Judge R. Gregg Jerald signed the arrest warrant for the Defendant in case no.
2021-CF-286. Prior to his appointment to the bench, Mr. Jerald was General Counsel to the
Marion County Sheriff’s office, and in that role knew the Defendant lawfully recorded calls.
8. The arrest affidavit by Corporal Billy Burleson, #5542, Marion County Sheriff’s Office,
dated January 20, 2021, report number MCSO55ARR00431S, falsely described the calls.
2
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
9. Judge Sanders and the Fifth Judicial Circuit had a conflict with the Defendant. On
December 1, 2020, Circuit Judge Edward Scott had entered an Order granting the Defendant
leave to amend his civil rights complaint in case no. 2018-CA-2640 against Judge Ann Melinda
Craggs and the Fifth Judicial Circuit in the wrongful foreclosure of the Defendant’s home on a
federal Home Equity Conversion Mortgage, also called a HECM reverse mortgage. (Exhibit 1)
10. Furthermore, on November 18, 2020, the Defendant, as Plaintiff in case no. 2020-CA-
934 filed SECOND NOTICE PURSUANT TO F.S. § 768.28 WAIVER OF IMMUNITY, in his
As a proximate cause of the state’s negligence, I was diagnosed October 22, 2020
with detached retina that needs immediate surgery. I am now partially blind....
11. The Defendant commenced this lawsuit at the suggestion of Marion County Sheriff’s
Deputy Nicholas Austin, after he refused to remove Sarah Thompson from the Defendant’s
home. Sarah was addicted to illegal drugs. After getting kicked out of her boyfriend’s home on
June 7, 2020, Sarah tried to establish residency with the Defendant. The Defendant offered to
pay for a motel room for a week to help Sarah, and get a storage unit for her belongings. While
3
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
under the influence of illegal drugs, Sarah smashed a glass window and door of the Defendant’s
home, while deputies of the Sheriff’s Office stood by and failed to assist him.
12. On June 13, 2020, Judge Ann Melinda Craggs signed a search warrant against the
Defendant in case 2020-CF-2417 allowing the Marion County Sheriff’s Office to smash open the
door to his home and search the property related to the incident with Sarah on June 7, 2020. The
Conflict and Civil Regional Counsel, told the Defendant his arrest in 2020-CF-2417 was an
abuse of discretion. From the transcript, July 30, 2020, page 12, line 15:
4
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
13. Sarah Thompson was arrested for drugs in Sumter County, Florida on August 31, 2020
case no. 2020-CF-971. Sarah’s cell mate wrote to the Defendant from jail saying she was sorry.
14. Sarah Thompson was arrested for domestic violence in Marion County, Florida on
January 8, 2021, case no. 2021-MM-171. Sarah wrote to the Defendant from jail as follows:
Dear Neil,
Well as you can see my sister really got me this time or I guess I got me, not really sure, I
was hoping my charges would be dropped by now, but in order for that to happen
Johanna would have to go to the state attorney’s office and recount her statement. I’m not
sure if she even knows how to do that because I’m not allowed any contact with her
directly or indirectly. I have been thinking about you a lot wishing/dreaming I was there
cooking food now. I’m constantly starving. I’m hoping you can figure out how to get me
out of here. When I ask your help something always seems to happen so I hope to be able
to spend Valentine’s day face to face. My next court date is 02/08 my PD is Sean Gravel,
30 yr old new attorney and my Sumter PD is Greg Williams. I miss you, Love Sarah.
Help me plz
5
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
Hey Neil. (hearts) (star) I hope you are alive (star) and well. I haven’t heard anything
from you or received any books so my imagination is starting to get the best of me. As
you can see I am still sitting in Marion County Jail, still have no idea what is going on in
my Sumter case, and I’m still the happiest I have been in a long time!! (smile) I now have
70 days sobriety and I have no desire to ever go back to that life again!! This “vacation”
is just what I needed to start getting my life on the right track and realizing frankly fuck
every1! HaHa I just gotta start doing what’s best for me all the time and not worry about
everyone else. My new slogan, not my pussy, not my problem. I must love you. Sarah.
15. Sarah Thompson died of a drug overdose in Ocala on May 12, 2021, just 21 days after
16 The Defendant had retina surgery at Wills Eye Hospital in Philadelphia, see the records
at Exhibit 3. The “Preparations for Retina Surgery” shows on the logistics and details page:
“You may not drive yourself to or from surgery. Please make sure you have arranged for
transportation. Please be aware that Uber/Lyft and taxicabs are not acceptable modes of
transportation.”
The Defendant believes this is a ridiculous rule that serves no legitimate purpose. Instead, this
requirement is a barrier to getting timely retina surgery for certain patients like the Defendant
who do not have family in the area. Marion Senior Services transportation refused to go to
Gainesville, which is outside Marion County. The Defendant’s elderly neighbors in his 55+
community were unable to travel that far or agree to an all-day commitment of time. The
Defendant’s old friend and business associate in Pennsylvania drove him to the surgery, but later
17. Judge Sanders denied the Defendant assistance of counsel; Brenda H. Smith, FL Bar No.:
717657, was appointed to represent the Defendant she but refused to enter her appearance or
accept the appointment. Judge Sanders failed to appoint another lawyer who would represent the
Defendant. Instead, Judge Sanders struck a number of the Defendant’s pro se filings because Ms.
Smith was his alleged counsel of record, but did not represent him. Ms. Smith testified at the
hearing before Judge Sander as follows, see the transcript, page 5, lines 20-24:
6
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
18. The Defendant denies the testimony of Ms. Smith. Last week the Defendant made a
public records request to Jessica Burnham, Records Custodian for the City of Umatilla, for
records of Ms. Smith’s call to the Umatilla Police. Ms. Burnham responded by email on August
23, 2023: No records were found in regards to Neil Gillespie. Please see below for the record
found with the name Brenda Smith. The record appears at Exhibit 4, and shows Ms. Smith
complained on December 12, 2020 about another man who was “hanging around each night” and
drove a Red Kia Sol. The Defendant does not own or drive a Red Kia Sol. The Defendant
believes Ms. Smith lied to Judge Sanders to excuse her own professional negligence.
19. Previously Ms. Smith told the Defendant that she did not have access to her office
because of something to do with her estranged husband in a divorce proceeding. Smith also
claimed her office was closed under COVID-19 quarantine. In 2020 a lone sign on the property
for “Shear Grace”, showed an image of a pair of scissors, suggests a hair salon, not a law office.
20. The Defendant attempted to hire attorney David Oscar Markus, FL Bar No. 119318, of
Miami, but he declined. The Defendant wants to be represented by counsel who will provide him
21. Judge Sander complained on the record about Defendant’s Motion To Cancel Lynching
Today At 3:00 PM Today, which Judge Sanders said “Hopefully, that was meant to be
hyperbole” (transcript page 7, line 6). The Defendant’s motion explained, at paragraph 2:
2. The Court has scheduled a court event today at 3:00 PM best described as a lynching, a
depravation of rights under color of law, against the Defendant, Neil Joseph Gillespie, in
violation of, inter alai, 18 USC 242, 42 USC 1983, and the ADA Amendments Act 2008.
7
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
22. Judge Sanders also stated on the record: (transcript, pp 8-9, beginning at line 23)
23. The Defendant’s written response cited by Judge Sander stated he “was not served notice
24. On February 23, 2021, Circuit Judge Edward Scott GRANTED the Defendant’s
Amended Motion for a 60 Day Stay For Eye Surgery in case no. 2018-CA-2640. (Exhibit 5).
Counsel for the State of Florida, Assistant Attorney General Brittany Quinlan, did not object.
25. Judge Sanders got reassigned to case no. 2018-CA-2640 and dismissed the case on April
14, 2021 while the Defendant was held in the Marion County Jail on no bond.
26. The Defendant’s amended motion to dismiss case 2021-CF-286 appears at Exhibit 6.
8
NOTICE OF FILING TRANSCRIPT OF MOTIONS HEARING JANUARY 20, 2021
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 24, 2023 the Defendant’s Notice of Filing
Transcript of Motions Hearing January 21, 2021, was filed on the Florida Portal and served to,
and to the names on the Florida Portal Notice of Service of Court Documents.
9
Filing # 180952131 E-Filed 08/31/2023 08:36:29 PM
pro se, moves to correct or supplement the Record on Appeal, and states:
1. On Monday, August 28, 2023, at 10:23 AM, the Appellant was served
2021 was filed on the Florida Portal on August 24, 2023 as follows:
Notice of Filing Transcript of Motions Hearing January 20, 2021, with the
Notice shows that the State of Florida knew the Appellant’s lawful one-
party consent phone recording was not a crime, but charged him anyway,
not once, but twice, Case No. 2019-CF-4193 and Case No. 2021-CF-286.
on no bond for 428 days, and evidence of retaliation by the Fifth Judicial
Circuit, et al, for filing a civil rights case over the wrongful foreclosure of his
2
Case No. 2020-CA-934, the failure to protect the Appellant, and the failure
to protect Sarah Thompson, who died May 12, 2021 of a drug overdose.
7. On Monday, August 28, 2023 at 6:33 AM, the Appellant emailed Mr.
Mr. Davis,
Actually Judge Scott dismissed the case on April 14, 2021. For some
reason the Clerk’s online docket in case 2018-CA-2640 did not
appear fully functional last Thursday and I was only able to view the
docket entries and not the actual records. A docket entry shows the
case was dismissed on April 14, 2021 but does not show the judge.
Over the weekend I found the Order of Dismissal by Judge Scott that
was also filed in federal case 5:21-cv-00416-PGB-PRL as Exhibit 13,
see attached.
Judge Sanders was on the case by July 29, 2021 when he entered
ORDER DENYING PLAINTIFF'S MOTION TO REINSTATE CASE
Filing # 131691198 E-Filed 07/29/2021 04:16:40 PM
"7. Circuit Judge R. Gregg Jerald signed the arrest warrant for the
Defendant in case no. 2021-CF-286. Prior to his appointment to the
bench, Mr. Jerald was General Counsel to the Marion County
3
Sheriff’s office, and in that role knew the Defendant lawfully recorded
calls."
"I rely on the holding in Royal Health Care Servs., Inc. v. Jefferson-
Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991). In my view Florida
law prohibits "interception" of certain communication, but not all
recording. The U.S. Eleventh Circuit Court of Appeals has held that
because only interceptions made through an "electronic, mechanical
or other device" are illegal under Florida law, telephones used in the
ordinary course of business to record conversations do not violate
the law. In other words, the telephone set "intercepts" the call, not the
recording device, and the phone call is lawfully recorded after lawful
interception. This is in contrast to a court-ordered wiretap where a
call is "intercepted" before it reaches the telephone set. The land-line
home office telephone that I use lawfully intercepts a call before
lawfully recording the call. See enclosed my letter to Special Agent
Paul Wysopal, FBI Tampa Re-Telephone Recording."
4
http://www.scribd.com/doc/237040363/Paul-Wysopal-FBI-Tampa-
Special-Agent-in-Charge
Cc: Brad King, State Attorney; Cc: Sheriff Chris Blair MCSO
Cc: Marion County BOCC; Cc: Captain Bill Sowder MCSO
Cc: Guy Minter, County Attorney; Cc: Detective Erik B. Dice MCSO
Cc: David R. Ellspermann, Marion County
Clerk of Court & Comptroller
Cc: Gregory C. Harrell, General Counsel
Cc: Lt. Ryan Robbins, Public Information Officer; Lauren Lettelier,
Public Information Officer
so during the phone call with Detective Dice on November 17, 2015, I
asked him if he heard the Telephone Recording Announcer, see the
transcript and what ensued.
5
under color of law, and is the Law of the Land in Florida under the
Supremacy Clause of the U.S. Constitution, Article VI, Clause 2." as
shown in Paragraph 6 of NOTICE OF FILING TRANSCRIPT OF
MOTIONS HEARING JANUARY 20, 2021, and my letter to the FBI.
So I can file a corrected Notice if you like. BTW, was there a problem
with the Clerk’s online docket on Thursday, August 24, 2023? Thank
you.
Neil J. Gillespie
Thank you for your email. Your filings from 8/24/23 are still in the
process of being reviewed for redactions and will be made available
on the public-facing docket once that takes place.
Any documents that you wish to have filed to your cases will need to
be mailed in, submitted over the counter, or e-filed.
Thank you,
Rob Davis
10. On August 29, 2023, the Appellant filed an Amended Notice of Filing
6
January 20, 2021, with the Appendix and Transcript, filed August 29, 2023,
CERTIFICATE OF SERVICE
7
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Filing # 180867828 E-Filed 08/31/2023 07:44:38 AM
pro se, gives Second Notice of Incomplete Record on Appeal, and states:
1. On Monday, August 28, 2023, at 10:23 AM, the Appellant was served
2021 was filed on the Florida Portal on August 24, 2023 as follows:
Notice of Filing Transcript of Motions Hearing January 20, 2021, with the
Notice shows that the State of Florida knew the Appellant’s lawful one-
party consent phone recording was not a crime, but charged him anyway,
not once, but twice, Case No. 2019-CF-4193 and Case No. 2021-CF-286.
on no bond for 428 days, and evidence of retaliation by the Fifth Judicial
Circuit, et al, for filing a civil rights case over the wrongful foreclosure of his
Case No. 2020-CA-934, the failure to protect the Appellant, and the failure
to protect Sarah Thompson, who died May 12, 2021 of a drug overdose.
2
7. On Monday, August 28, 2023 at 6:33 AM, the Appellant emailed Mr.
Mr. Davis,
Actually Judge Scott dismissed the case on April 14, 2021. For some
reason the Clerk’s online docket in case 2018-CA-2640 did not
appear fully functional last Thursday and I was only able to view the
docket entries and not the actual records. A docket entry shows the
case was dismissed on April 14, 2021 but does not show the judge.
Over the weekend I found the Order of Dismissal by Judge Scott that
was also filed in federal case 5:21-cv-00416-PGB-PRL as Exhibit 13,
see attached.
Judge Sanders was on the case by July 29, 2021 when he entered
ORDER DENYING PLAINTIFF'S MOTION TO REINSTATE CASE
Filing # 131691198 E-Filed 07/29/2021 04:16:40 PM
"7. Circuit Judge R. Gregg Jerald signed the arrest warrant for the
Defendant in case no. 2021-CF-286. Prior to his appointment to the
bench, Mr. Jerald was General Counsel to the Marion County
Sheriff’s office, and in that role knew the Defendant lawfully recorded
calls."
3
please see attached my letter to Mr. Gregg Jerald, General Counsel,
Marion County Sheriff’s Office (MCSO), January 21, 2016 regarding
Detective Erik B. Dice assigned to investigate Elder Abuse and
financial crimes in 2006, see the letter beginning at the bottom of
page 2, continued on page 3:
"I rely on the holding in Royal Health Care Servs., Inc. v. Jefferson-
Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991). In my view Florida
law prohibits "interception" of certain communication, but not all
recording. The U.S. Eleventh Circuit Court of Appeals has held that
because only interceptions made through an "electronic, mechanical
or other device" are illegal under Florida law, telephones used in the
ordinary course of business to record conversations do not violate
the law. In other words, the telephone set "intercepts" the call, not the
recording device, and the phone call is lawfully recorded after lawful
interception. This is in contrast to a court-ordered wiretap where a
call is "intercepted" before it reaches the telephone set. The land-line
home office telephone that I use lawfully intercepts a call before
lawfully recording the call. See enclosed my letter to Special Agent
Paul Wysopal, FBI Tampa Re-Telephone Recording."
4
Please note the Appendix of Exhibits provided, which are available.
Cc: Brad King, State Attorney; Cc: Sheriff Chris Blair MCSO
Cc: Marion County BOCC; Cc: Captain Bill Sowder MCSO
Cc: Guy Minter, County Attorney; Cc: Detective Erik B. Dice MCSO
Cc: David R. Ellspermann, Marion County
Clerk of Court & Comptroller
Cc: Gregory C. Harrell, General Counsel
Cc: Lt. Ryan Robbins, Public Information Officer; Lauren Lettelier,
Public Information Officer
so during the phone call with Detective Dice on November 17, 2015, I
asked him if he heard the Telephone Recording Announcer, see the
transcript and what ensued.
5
shown in Paragraph 6 of NOTICE OF FILING TRANSCRIPT OF
MOTIONS HEARING JANUARY 20, 2021, and my letter to the FBI.
So I can file a corrected Notice if you like. BTW, was there a problem
with the Clerk’s online docket on Thursday, August 24, 2023? Thank
you.
Neil J. Gillespie
Thank you for your email. Your filings from 8/24/23 are still in the
process of being reviewed for redactions and will be made available
on the public-facing docket once that takes place.
Any documents that you wish to have filed to your cases will need to
be mailed in, submitted over the counter, or e-filed.
Thank you,
Rob Davis
10. On August 29, 2023, the Appellant filed an Amended Notice of Filing
11. The Appellant believes the Record on Appeal should include his
Notice of Filing Transcript of Motions Hearing January 20, 2021, with the
Appendix and Transcript, filed August 24, 2023 or the Amended Notice.
6
RESPECTFULLY SUBMITTED August 31, 2023
CERTIFICATE OF SERVICE
7
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
Appellant,
v. CASE NO. 5D23-2005
LT CASE NOS. 2019-CF-4193
2021-CF-286
2022-CF-1143
STATE OF FLORIDA,
Appellee.
________________________/
cc:
Appellant,
STATE OF FLORIDA,
Appellee.
________________________/
cc: