IN THE SUPREME COURT OF THE STATE OF FLORIDA

WILLIAM VAN POYCK,

Appellant, Case No. SC13-xxx CLEnn.SUPR C RTDirect Appeal Case . 73, 662

v. ACTIVE DEATH WARRANT ..._EXECUTION SET FOR

STATE OF FLORIDA, JUNE 12, 2013

Appellee.

STATE'S MOTION TO DISMISS APPELLANT'SMAY 15, 2013 NOTICE OF APPEAL

COMES NOW Appellee, the State of Florida, by and

through undersigned counsel, and hereby requests this Court

enter an Order dismissing Appellant's May 15, 2013 Notice

of Appeal and as grounds states:

1. Appellant, William Van Poyck ("Van Poyck") Notice

of Appeal should be dismissed as he has failed to invoke

this Court's jurisdiction properly as set forth in Rule

9.142 (c) Fla. Rule. App. P. The Notice of Appeal sets

forth counsel, Gerald Bettman' s mere disagreamant with the

trial court's factual findings contained in its May 13,

2013 Order, not with the law. In the May 13th Order, the

trial court was merely following this Court's May 10th

order in which it found that the firm Quarles & Brady, and

the lawyers attached, which included Mr. Bettman were

Poyck's lawyers unless there had been a prior order

releasing counsel from representation. The legal issue had

been decided by this Court, i.e., that the listed attorneys

were Van Poyck's counsel. The Order directed the trial

court make a factual finding as to the appropriate counsel

to litigate Van Poyck' s case based on "counsel' s history

and experience involving Mr. Van Poyck's claims attacking

his murder conviction and sentence of death." Van Poyck

has failed to establish that mere disagreement with the

trial court's order is an appropriate basis for invoking an

interlocutory review under Rule 9.142 and requires

dismissal of the Notice of Appeal.

2. Van Poyck is under an active death warrant which

the Governor signed on May 3, 2013. The date of the

execution is set for June 12, 2013 at 6:00 p.m.

3. The instant Notice of Appeal filed May 15, 2013

is the fourth attempt, not including an ora tenus motion

for rehearing and continued argument following this Court's

May 10, 2013 Order, that counsel, Gerald Bettman, has

sought removal from Van Poyck's case.

4. On Monday 6, 2013, this Court set an expedited

schedule which requires that all proceedings pending in the

trial court, if any, be completed and orders entered by May

22, 2013, 4:00 p.m.

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5. On May 7, 2013, the state filed a notice to the

lower court requesting a status conference. Shortly

thereafter, the lower court filed an order setting a status

conference for May 9, 2013.

6. Later that same day, counsel Gerald Bettman filed

in the lower court and with this Court a "Notice of Non-

Representation of William Van Poyck for Purposes of Death

Warrant Signing and Schedule of Execution, and Suggestion

that the Supreme Court of Florida Issue an Order Appointing

the Appropriate Office of the Capital Collateral Regional

Counsel for Representation." Also on May 7, 2013, the lower

court treated the "Notice" as a "Motion to Withdraw" and

denied same.

7. The following day, May 8, 2013, this Court also

treated the "Notice" as a "Motion to Withdraw" and denied

that request.

8. At the scheduled status hearing on May 9, 2013,

Van Poyck's attorney, Gerald Bettman, raised an ore tenus

motion for rehearing regarding the lower court's denial of

the Motion to Withdraw. After hearing argument of counsel,

the motion was denied and the lower court ordered the

following:

All motions to be filed on behalf ofthe Defendant shall be filed by 4:00p.m. Tuesday May 14, 2013. The state

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shall respond by 4:00 p.m. Thursday,May 16, 2013. Should an evidentiaryhearing be necessary, such will takeplace on Friday May 17, 2013.

9. Later on May 9, 2013, Van Poyck filed a Notice of

Appeal challenging the trial court's May 7, 2013 denial of

his "Notice of Non-Representation of William Van Poyck for

Purposes of Death Warrant Signing and Schedule of

Execution, and Suggestion that the Supreme Court of Florida

Issue an Order Appointing the Appropriate Office of the

Capital Collateral Regional Counsel for Representation"

which had been treated as a motion to withdraw and the May

9, 2013 denial of his ora tenus motion for rehearing. On

May 10, 2013, the State's Motion to Dismiss Notice of

Appeal was filed.

10. As a result of the Notice of Appeal, on May 10,

2013, this Court issued an Order remanding:

We remand to the trial court forconsideration of appropriate counsel inthis case based on counsel's historyand experience involving Mr. VanPoyck's claims attacking his murderconviction and sentence of death.Attached hereto is an appendixoutlining Mr. Van Poyck's litigationhistory and the lawyers who haverepresented him in these proceedings.The firm Quarles & Brady, and thelawyers attached, continue to be Mr.Poyck's lawyers unless they havepreviously obtained a court orderreleasing them from representation.

Significant here was that the list of counsel included

Gerald Bettman, Jeff Davis of Quarles and Brady, and Mark

Olive.

11. As ordered, on May, 13, 2013, the trial court

held a hearing to determine counsel and inquired

extensively into which counsel had the best understanding

of the case facts and history. The court also heard

argument as to what is typically done once a death warrant

is signed and which counsel had experience with such

litigation. As a result of this inquiry, the trial court

excused some counsel and determined that Jeff Davis of

Quarles and Brady and Gerald Bettman were "the most

knowledgeable about the facts and history of this case and

that Mark Olive, Esquire and Martin McClain, Esquire1 have

been involved in this litigation and are the most

knowledgeable about death warrant litigation and are the

lawyers who shall remain as [counsel] for Mr. Van Poyck."

(May 13, 2013 Order attached).

12. The trial court then extended the time for filing

any postconviction motion to Friday, May 17, 2013 at 3:00

i However, upon Mr. McClain's disclosure of an allegedconflict of interest with Van Poyck due to Mr. McClain'sprior representation of co-defendant, Frank Valdes, Mr.McClain was permitted to withdraw. Such was done afterValdes and Mr. McClain had had on opportunity to conversein private on the telephone and Van Poyck informed thetrial court that he was not waiving such conflict.

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p.m. and gave the State until Monday, May 20, 2013 at 3:00

p.m. to respond.

13. On May 15, 2013, Gerald Bettman filed yet another

challenge to his continued representation of Van Poyck. As

he has done previously, Mr. Bettman initiated this

challenge through a Notice of Appeal. However, such is the

improper vehicle for invoking this Court's jurisdiction

during postconviction proceedings.

14. Van Poyck's Appeal should be dismissed as he has

failed to comply with Rule 9.142 (c), Fla. R. App. P. which

governs challenges to nonfinal orders in death penalty

postconviction proceedings. Such rule provides:

(1) Applicability. This rule applies toproceedings that invoke thejurisdiction of the supreme court forreview of nonfinal orders issued inpostconviction proceedings followingthe imposition of the death penalty.

* * *

( 3 ) Commencemen t ; Par tles .

(A) Jurisdiction of the supremecourt shall be invoked by filing apetition with the clerk of thesupreme court within 30 days ofrendition of the nonfinal order tobe reviewed. A copy of thepetition shall be served on theopposing party and furnished tothe judge who issued the order tobe reviewed.

* * *

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(4) Contents. The petition shall be inthe form prescribed by rule 9.100, andshall contain

(A) the basis for invoking thejurisdiction of the court;

(B) the date and nature of theorder sought to be reviewed;

(C) the name of the lower tribunalrendering the order;

(D) the name, disposition, anddates of all previous trial,appellate, and postconvictionproceedings relating to theconviction and death sentence thatare the subject of the proceedingsin which the order sought to bereviewed was entered;

(E) the facts on which thepetitioner relies, with referencesto the appropriate pages of thesupporting appendix;

(F) argument in support of thepetition, including an explanationof why the order departs from theessential requirements of law andhow the order may cause materialinjury for which there is noadequate remedy on appeal, andappropriate citations ofauthority; and

(G) the nature of the reliefsought.

(5) Appendix. The petition shall beaccompanied by an appendix, asprescribed by rule 9.220, which shallcontain the portions of the recordnecessary for a determination of theissues presented.

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* * *

(7) Response. No response shall bepermitted unless ordered by the court.

* * *

(9) Stay.

(A) A stay of proceedings under thisrule is not automatic; the partyseeking a stay must petition thesupreme court for a stay ofproceedings.

(B) During the pendency of a review ofa nonfinal order, unless a stay isgranted by the supreme court, the lowertribunal may proceed with all matters,except that the lower tribunal may notrender a final order disposing of thecause pending review of the nonfinalorder.

(emphasis supplied)

15. Van Poyck has failed to comply with this rule and

has attempted to invoke this Court's jurisdiction in an

improper and ineffectual manner. Not only has Van Poyck

failed to file a petition in conformity with Rule 9.100

Fla. R. App. P as required by Rule 9.142 (c) (4) setting

forth his basis for invoking this Court's jurisdiction and

basis for relief, but he has failed to file an appendix

containing all of the necessary pleadings, orders, and

hearing transcripts addressing the matter upon which Van

Poyck seeks review. This Court should dismiss the instant

appeal for failure to comply with Rule 9.142 (c) .

16. However, if this Court resolves to treat the

Notice of Appeal as a petition under Rule 9.142 (c), the

matter should be denied as Van Poyck has not carried his

burden. He has not offered how the trial court's May 13th

Order "departs from the essential requirements of law2 and

. In Haines City Community Dev. v. Heggs, 658 So. 2d 523,527 (Fla. 1995), then Chief Justice Boyd captured theessence of the standard for certiorari relief when hewrote:

The required "departure from theessential requirements of law" meanssomething far beyond legal error. Itmeans an inherent illegality orirregularity, an abuse of judicialpower, an act of judicial tyrannyperpetrated with disregard ofprocedural requirements, resulting in agross miscarriage of justice. The writof certiorari properly issues tocorrect essential illegality but notlegal error.

Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C. J.,concurring specially), quoted in Haines City Community Dev.v. Heggs, supra. (emphasis added) . Additionally, indefining the term, "departure from the essentialrequirements of the law, " this Court has stated:

[T]he phrase "departure from theessential requirements of law" shouldnot be narrowly construed so as toapply only [t]o violations whicheffectively deny appellate review orwhich pertain to the regularity ofprocedure. In granting writs of common-law certiorari, the district courts of

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how the order may cause material injury for which there is

not adequate remedy on appeal" as required by Rule

9.142(c) (4) (F) which is a prerequisite for litigation under

rule 9.142.

17. What Mr. Bettman included in his Notice of Appeal

was mere disagreement with the trial court's factual

findings, not with the law. However, the trial court was

merely following this Court's May 10th order which had

determined that "[t]he firm Quarles & Brady, and the

lawyers attached, continue to be Mr. Poyck's lawyers unless

they have previously obtained a court order releasing them

from representation" and directed the trial court to select

the appropriate counsel to litigate Van Poyck's case under

active death warrant based on "counsel's history and

experience involving Mr. Van Poyck's claims attacking his

appeal should not be as concerned withthe mere existence of legal error asmuch as with the seriousness of theerror. Since it is impossible to listall possible legal errors seriousenough to constitute a departure fromthe essential requirements of law, thedistrict courts must be allowed a largedegree of discretion so that they mayjudge each case individually. Thedistrict courts should exercise thisdiscretion only when there has been aviolation of a clearly establishedprinciple of law resulting in amiscarriage of justice.

Combs v. State, 436 So.2d 93, 95-6 (Fla. 1983).

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murder conviction and sentence of death." The legal issue

had been decided by this Court, i.e., that the listed

attorneys were Van Poyck's counsel. The remand was for a

selecting the most appropriate counsel out of the

approximate 14 attorneys who had handled the case over the

last 22 years based on factual findings of which counsel

had the best knowledge of the case facts and history.

18. Van Poyck has failed to offer any explanation or

legal for support for an interlocutory challenge under Rule

9. 412 to the factual findings of the trial court. Hence,

Van Poyck has failed to show a legal basis for invoking

this Court's jurisdiction at this juncture and the Notice

of Appeal should be dismissed, or alternately denied on the

merits as Van Poyck's assertions are not supported by the

law or facts.

19. Mr. Bettman references his previously filed

Notice of Appeal when he states his "unwillingness and

inability to be considered and comply in a meaningful

fashion as counsel of record for William Van Poyck" and now

offers that the trial court's order is "insufficient in

fact and law to force the undersigned into this

undertaking" of Van Poyck's representation. However, the

trial court was merely following this Court's May 10th

order to select the appropriate counsel from those listed

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to litigate Van Poyck's case under active death warrant

based on "counsel' s history and experience involving Mr .

Van Poyck's claims attacking his murder conviction and

sentence of death."

20. The assertion that Mr. Bettman "has no history in

attacking Mr. Van Poyck' s murder conviction and sentence"

is specious. Mr. Bettman has averred that "Jeffrey O.

Davis, esquire and Gerald S. Bettman, Esq., on a pro bono

basis, assisted Mr. Van Poyck after it was evident that he

received ineffective assistance of trial counsel at the

trial of his cause and at the sentencing phase, wherein he

was sentenced to death."3

21. Mr. Bettman has represented Van Poyck in no less

than three collateral cases where the conviction and

sentence were challenged. The first case was a 1998 state

habeas petition, case number SC60-89870, challenging guilt

and penalty phase issues.4 Clearly, Mr. Bettman would have

3 Page 3, paragraph 12 of the May 7, 2013 Notice of Non-Representation of William Van Poyck for Purposes of PostDeath Warrant Signing and Schedule of Execution, andSuggestion that the Supreme Court of Florida Issue andOrder Appointing the Appropriate Office of the CapitalCollateral Regional Counsel for Representation signed byGerald Bettman.

4 This Court identified the issues raised as:

Van Poyck now files this petition for awrit of habeas corpus claiming that:

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had to be familiar with the facts and history of Van

Poyck's case to make such arguments and in signing such

postconviction/collateral pleading. See Fla. R. Jud. Adm.

2.515(a) (providing "[t]he signature of an attorney shall

constitute a certificate by the attorney that the attorney

has read the pleading or other document; that to the best

of the attorney's knowledge, information, and belief there

is good ground to support it; and that it is not interposed

for delay.") .

22. The second collateral case in which Mr. Bettman

represented Van Poyck was case number SC60-94200, which was

(1) his appellate counsel wasineffective for failing to properlyraise the issue of the trial court'swrongfully forcing him to exhaust hisperemptory challenges; (2) his deathsentence is unconstitutional becausethe judge and jury weighed the invalidaggravators that the murder waspremeditated or that Van Poyck was theshooter; and (3) he was charged withand convicted of criminal offenses thatdid not exist as a matter of law.Issues one and three warrantdiscussion. Issue two is procedurallybarred. FN1

FN1. This claim was raised and rejectedon direct appeal, Van Poyck, 564 So.2dat 1070-71, and also rejected asprocedurally barred on the rule 3.850appeal. Van Poyck, 694 So.2d at 698.

Van Poyck v. Singletary, 715 So.2d 930, 931 (Fla. 1998) .

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summarily resolved. Van Poyck v. Singletary, 728 So. 2d

206 (Fla. 1998) (denying habeas relief in an unpublished

order) .

23. Mr. Bettman's latest involvement in Van Poyck's

capital case commenced in December of 2010, with Mr.

Bettman filing Van Poyck's most recent state collateral

challenge to his sentence. There, Van Poyck, through Mr.

Bettman, alleged newly discovered evidence, in the form of

juror affidavits entitling him to a new sentencing hearing

based on Van Poyck' s "non-triggerman status . " Mr . Bettman

was sole counsel of record in the subsequent appeal where

this Court affirmed the denial of relief. See Van Poyck v.

State, 91 So.3d 125, 126-127 (Fla. 2012).5 It is

5 This Court resolved the last postconviction appealstating:

As recounted above, in every statepostconviction motion filed since hissentence became final, Van Poyck,through counsel, has raised a variantof a claim regarding his non-triggermanstatus. While these affidavits aretechnically "new, " in that they weredrafted and sworn to in 2010, theinformation upon which they are basedexisted as early as September 1990,when this Court's direct-appealdecision became final, or at least asearly as March 2005, when inmateEnrique Diaz executed the affidavitthat spurred the Van Poyck Vlitigation. Van Poyck himself concedesthat the very reason counsel neversecured such affidavits is because

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disingenuous for Mr. Bettman to allege that he does not

have knowledge of the facts and history or that he has not

challenged the conviction and sentence in Van Poyck's death

penalty collateral litigation given that the "trigger-man"

issue has been used repeatedly to challenge both the

conviction and sentence.

24. While Mr. Bettman claims he is not qualified

under Chapter 27 and seeks to be removed as counsel from a

case that spans over two decades of postconviction attacks

to the conviction and sentence, only now that an active

death warrant is in place, would completely eviscerate the

intent of chapter 27. As expressly stated in 27.7001

(emphasis added) .

It is the intent of the Legislature...to providefor the collateral representation of any personconvicted and sentenced to death in this state,so that collateral legal proceedings to challengeany Florida capital conviction and sentence maybe cnmmanced in a timely manner and so as toassure the people of this state that thejudgments of its courts may be regarded with thefinality to which they are entitled in theinterests of justice. It is the further intent ofthe Legislature that collateral representationshall not include representation during retrials,

counsel was prohibited from doing sounder Rule Regulating the Florida Bar4-3.5(d) (4). Accordingly, we affirm thecircuit court's finding that this claimwas procedurally barred.

Van Poyck v. State, 91 So.3d 125, 128 (Fla. 2012) .

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resentencings, proceedings commenced underchapter 940, or civil litigation.

The appointment of counsel under this chapter was intended

to ensure that all death penalty defendants following

direct appeal, receive postconviction counsel so that the

initial collateral process commence orderly and timely.

Likewise, the qualifications of anticipated counsel

detailed in §27.704 are aimed at new counsel in the initial

proceedings. See also 27.704. Consequently, application of

this statute to this case when the initial postconviction

proceedings were completed in 1998 and when the capital

defendant since then has litigated additional collateral

challenges, the latest concluding in September 2012,' would

directly and intentionally create the very delay that the

statute was intended to avoid. F'la R. of Crim Pro. 3.112

(k) (which permits a court to waive minimum requirements

for capital attorneys in exceptional circumstances).

25. Mr. Bettman's invocation of §27.710, Fla. Stat.

to bar his representation of Van Poyck at the eleventh

hour, is nothing more than a fourth attempt to gain removal

from this case and to delay the execution of the warrant.

In Van Poyck v. State, 91 So.3d 125 (Fla. 2012), GeraldBettman was sole counsel of record.

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Section 27.710 not apply7 as Mr. Bettman was not appointed

under Chapter 27 and is not under contract via that

statutory section. While Chapter 27 is instructive as

noted above, the trial court was under orders from this

Court.

26. During the May 13th hearing called as a result of

this Court's May 10th Order of remand, the trial court

received an accounting of the cases on which each counsel

represented Van Poyck. Mr. Bettman was counsel of record

on three matters and Mr. Davis was counsel of record on ten

of the eleven collateral cases in Van Poyck's twenty-plus

year challenge to his conviction and death sentence. The

trial court considered allegations of inexperience with

death warrant litigation and determined that Mark Olive had

the requisite knowledge and history with Van Poyck's case,

and therefore, appointed Mr. Olive as the third member of

Van Poyck's defense team.

27. The trial court dutifully followed this Court's

legal determination that Bettman, along with the other 13

counsel listed in this Court's May 10th order, were Van

Poyck's attorneys of record unless they had been removed

7 Due to the nature of capital litigation, the legislaturehas made it abundantly clear that any counsel who isrepresenting a death row inmate is not permitted towithdraw from representation until the case is actuallycompleted.

17

previously and that the trial court should make a factual

determination which of those listed counsel would be

appropriate to continue their representation of Van Poyck's

warrant litigation "based on counsel's history and

experience involving Mr. Van Poyck's claims attacking his

murder conviction and sentence of death." Bettman has

failed to show the trial court's May 13th Order in light of

the 22-year litigation history of this case departed from

the essential requirements of law. The trial court was

doing nothing more than following this Court's

determination that Bettman was Van Poyck's attorney and

selecting him, along with Jeff Davis of Quareles & Brady,

as counsel who was "most knowledgeable of the history and

fact of this case." (trial court's Order of May 13, 2013).

As provided by Rule 9.142(c) (4) (F), Van Poyck is required,

but failed to establish, how the trial court's May 13th

order, under the facts of this case, is a departure from

the essential requirements of the law. As noted above, Mr.

Bettman merely disagrees with the trial court's factual

findings which is an improper basis for invoking this

Court's jurisdiction under Rule 9.142.

28. Even so, Van Poyck has neglected to include

relevant authority which is negative to his position. As

this Court has opined:

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Fourth, Howell argues that the trialcourt erred in its ruling becauseappointed registry counsel wereinsufficiently prepared to representHowell in the warrant proceedings.However, as the trial court correctlyrecognized and we have observed, theissue before this Court is not whetherretained counsel Ufferman andRudenstine may join the case as counselof record, but whether the trial courtwas required to remove the appointedregistry counsel. In its written orderdenying the motion to remove appointedregistry counsel, the trial court notedthat it was required to make a findingof good cause to allow registry counselto withdraw under the registry statute,citing section 27.710(3), FloridaStatutes (2012).

Critical to our analysis here, retainedcounsel have not specificallyidentified any non-procedurally barredclaim that they could have, but wereunable to, raise in the trial court andto this Court, based on appointedregistry counsel's alleged inadequaterepresentation in this proceeding.Rather, the claim of retained counselappears to be that they have not hadadequate time to review the record,including the public records, todetermine what additional claims couldbe raised. In this case, however,Howell is under an active deathwarrant, and we conclude that there isno basis for the trial court to haveremoved the only counsel who werefamiliar with this case.

As to this last point, this Courtemphasizes that if Howell was unhappywith the representation of his registrycounsel Taylor, he had from 2000 untilthe time that the death warrant wassigned to seek other counsel. To the

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extent Howell alleges that registrycounsel should have raised issuesrelating to mitigation in thepostconviction proceedings, theseclaims are nothing more than aspeculative attempt to raise anassertion of ineffective assistance ofpostconviction counsel at this latetime. If this Court were to allow thelast minute substitution of counsel tocreate a situation in which the entirecase could be relitigated at the timethe death warrant was signed, as theState correctly points out, this couldbecome a standard delay tactic in anydeath warrant case. While this Courthas an obligation to ensure that thedeath penalty is administered withintegrity and within constitutionalboundaries, this Court will also notcondone tactics that would delay a casewhere all proceedings in this Courtwere completed in 2004.

Because Howell has not shown thatappointed registry counsel have aconflict of interest that would haverequired the removal of registrycounsel in the warrant proceedings orotherwise demonstrated that the trialcourt abused its discretion in denyingthe motion to remove appointed registrycounsel, we deny this claim.

Howell v. State, 109 So.3d 763, 775 (Fla. 2013).

29. Similarly, Van Poyck failed to address Boudreau

v. Carlisle, 549 So.2d 1073, 1078 (4th DCA 1989) where the

district court found that there was no departure from the

essential requirements of the law where the trial court

denied counsel's motion to withdraw even where the

defendant had filed a malpractice complaint/grievance

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alleging incompetence of counsel. There, there district

court also rejected counsel's reliance on Rule of

Professional Conduct 4-1.16(a) noting the application

section 4-1.16(c): "a lawyer shall continue representation

notwithstanding good cause for terminating the

representation."

30. It is well settled that a capital case continues

until a final disposition has occurred regarding the death

sentence. Again §27.7001 is instructive as are §27.710 (3)

§27.711(8) and §27.702. Due to the nature of capital

litigation, the legislature has made it abundantly clear

that any counsel who is representing a death row inmate is

not permitted to withdraw from representation until the

case is actually completed. Such completion encompasses

disposition of the sentence, whether it be reversed,

reduced, or carried out. See §27.710 (3). Short of those

dispositions, there are very limited circumstances under

which counsel is permitted to withdraw. See §27.710 (3)

§27.711(8); 27.703. and §27.702. None of those

circumstances applies here. cf. Howell, 109 So.3d at 176

(explaining that removal of registry counsel must be done

at time grounds for removal are known and not after a death

warrant is signed.); cf. Harbison v. Bell, 556 U.S. 180,

185 (2007) (recognizing that clemency proceedings are a

21

continuation of the state collateral proceedings in capital

cases, thereby, justifying payment of counsel) .

31. As a result of the unique nature of capital

litigation, Rule 2.505(f)(1)e requires that a court order

was required to be obtained by any counsel seeking removal

from Van Poyck's litgation team. Mr. Bettman's failure to

obtain such an order before the death warrant was signed

resulted in his continued representation of Van Poyck as

counsel of record. This was recognized by this Court in

its May 10, 2013 Order and followed by the trial court in

its May 13th Order. Van Poyck has not show that the trial

court's Order was a "departure for the essential

requirements of the law" as is necessary to invoke this

Court's jurisdiction under Rule 9.142. Van Poyck's

disagreement with the trial court's factual findings is not

a valid basis for obtaining an interlocutory review, thus,

the Notice of Appeal should be dismissed or, if treated as

a petition, denied on the merits.

8 Rule 2.505(f) (1) Fla. R. Jud. Adm. Provides:

(1) Withdrawal of Attorney. By order ofcourt, where the proceeding iscontinuing, upon motion and hearing, onnotice to all parties and the client,such motion setting forth the reasonsfor withdrawal and the client's lastknown address, telephone number,including area code, and email address.

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WHEREFORE, based upon the foregoing, Appellee, the

State of Florida requests respectfully that this Honorable

Court DISMISS the Notice of Appeal, or in the alternative,

DENY the pleading on the merits.

Respectfully submitted,

PAMELA JO BONDIAttorney General

s/Celia TerenzioCELIA A. TERENZIOSr. Asst. Attorney GeneralBureau ChiefFlorida Bar No.: 06568791515 N. Flagler Drive9th FloorWest Palm Beach, FL 33401Office: (561) 837-5000Facsimile (561) 837-5108celia.terenzio@myfloridalegal.com

Counsel for Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing pleading was sent via electronic mail to: Gerald

S. Bettman, Esq., geraldbettmanlaw@yahoo.com; 5515 Philips

Highway, Jacksonville, FL 32207; The Honorable Charles

Burton, Circuit Court Judge, cburton@pbcgov.org; 205 N.

Dixie Highway, West Palm Beach, FL 33401; Terri Skiles,

Esq., tskiles@sa15.org, 401 North Dixie Highway, West Palm

Beach, FL 33401; and The Supreme Court of Florida,

warrant@flcourts.org,

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allyson dulac@flsd. uscourts . gov, mbeardsl@pbcgov. com,

jeffrey.davis@quarles.com, meolive@aol.com

david.strifling@guarles.com this 16th day of May, 2013.

s/Celia Terenzio

Celia A. Terenzio

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