SUPREME COURT OF FLORIDA Ñe Tallahassee, Florida

KEVIN DEMERS CASE NO. SC13-2510 Defendant/Petitioner LOWER TRIBUNAL: 2D12-164

v. TRIAL COURT 10-CF-16056

STATE OF FLORIDA JURISDICTION BRIEF Plaintiff/Respondent OF PETITIONER

On Appeal from the Second District Court of Appeals of the State of Florida.

KEVIN DEMERS 23350 Janice Ave Port Charlotte, Florida 33980 Pro se Cell phone number 727.488.5546 Office number 941.625.7278

STATE OF FLORIDA ATTORNEY GENERAL'S OFFICE Concourse Center 4 3507 East Frontage Road Tampa, Florida 33607 Attorney for the Prosecutor/State of Florida

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TABLEOFCONTENTS

PAGE TABLE OF AUTHORITIES 2

STATEMENT OF THE CASE AND FACTS 2

SUMMARY OF ARGUMENT 8

ARGUMENT 9 THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE SUPREME COURT OF THE STATE OF FLORIDA DECISIONS AND FROM ANOTHER DISTRICT COURT OF APPEAL DECISION

CONCLUSION 14

CERTIFICATE OF SERVICE 15

CERTIFICATE OF TYPE SIZE AND STYLE 15

TABLE OF AUTHORITIES

PAGE

CASES

Macarthy v. United States 394 US 464 11

Aravena v. Miami-Dade County, 928 So. 2"d 1163, 1166-67 (Fla.2006) 13

Counts v. State 376 So. 2d 59 (Fla. 1979) 14

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Hall v. State 316 So. 2d 279 (Fla. 1975) 11

Williams v. State, 316 So. 2"°267 (1975 Fla.) 4,8,10

Ross v. State, 566 So. 2"d 356 (4th 1990) 4,8

OTHER AUTHORTIES

Art V., section (b)(3), Fla. Const. 4

Criminal Procedure Rule 3.172 5

CPR 3.171(b)(2)(B): 6,7

STATEMENT OF THE CASE AND FACTS

This case comes to this Court following a 3-0 decision by the

Second District Court of Appeals sustaining the Trial Courts denial of

Demers' Motion to Withdraw Plea. The decision stated that the plea

was voluntary because the Defendant knew he had entered a guilty

plea due to two tangential mention of the word 'guilty'. This decision

was despite the colloquy not being a model of clarity: the Court never

asked the Defendant if the underlying facts were what he was

pleading to; the Court never asked the Defendant what he was

pleading; and finally, the Defendant never entered an oral

pronouncement of any form of plea (guilty, nolo contendere nor

Alford).

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Petitioner argues that this Court has discretionary jurisdiction to

review the decision by the Second District Appellate Court (possibly a

case of first impression), as it expressly and directly coriflicts with

many decisions by this Supreme Court on the same question of law

(what defines a voluntary plea) in Williams v. State, 316 So. 2"d 267

(1975 Fla.) and subsequently the Forth District Appellate Court in

Ross v. State, 566 So. 2"d 356 (4th 1990). See Art V., section (b)(3),

Fla. Const.

The Second District Court decision states that two tangential

mentions of the word 'guilty' in the plea colloquy by judge is sufficient

to satisfy the standard of a voluntary plea despite the Defendant

never being asked what plea he is entering and the Defendant never

makes an open oral pronouncement in open court of guilt in direct

and express conflict with the decision of this Court in Williams (supra)

and its subsequent application in Ross. (supra). The conflict lays

with the difference in how the Supreme Court defines 'voluntary plea'

and the scant indifference the Court yields to that standard in the

instant case. The Ross Court employs the Standard set in Williams

and the Second District in this matter employs no known standard

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seemingly pulled from the air since the Second District makes

absolutely no citations of case law, or statutory law in its decision.

Under Criminal Procedure Rule 3.172: Acceptance of Guilty

or Nolo Contendere Plea, (a)(b)(c) and (e) it in part states:

(a) Voluntariness; Factual basis. Before accepting a plea of

guilty or nolo contendere, the Trial judge shall determine

that the plea is voluntarily entered and that a factual basis

for the plea exists. Counsel for the prosecution and the

defense shall assist the trial judge in the function.

(b) Open Court. All pleas shall be taken in open court, except

that when good cause is shown a plea may be taken in

camera.

(c) Determination of Voluntariness. Except when a

defendant is not present for a plea, pursuant to the

provisions of rule 3.180(d), the trial judge should, when

determining voluntariness, place the defendant under oath

and shall address the defendant personally and shall

determine that he or she understands:

(3) that upon a plea of guilty, or nolo contendere without

express reservation of the right to appeal, he or she gives

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up the right to appeal all matters relating to the judgment,

including the issue of guilt or innocence, but does not

impair the right to review by appropriate collateral attack;

(e) Acknowledgment by Defendant. Before the trial judge

accepts a guilty or nolo contendere plea, the judge must

determine that the defendant either (1) acknowledges his or her

guilt or (2) acknowledges that he or she feels the plea to be in

his or her best interest, while maintaining his or her innocence.

In contrast to the Supreme Court decisions, the Second

District decision has a complete absence of case law in its less than 2

page decision. It does give the Trial Court a slight admonishment of

the importance of clarity and completeness of a plea colloquy (noting

CPR 3.172) Where the court does mention the two tangential

mentions of the word 'guilty' they do not mention that Defendant did

not actually enter any plea at all; Defendant was never asked to

acknowledge the facts underlying the plea; Defendant was not asked

what plea was being entered; nor did the Court make an oral

pronouncement of they were accepting a guilty.

Finally, Second District was silent on the fact the State did not

fully state what the full plea bargain was, in that it omitted what the

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agreed on plea was to assist the Court as require by CPR 3.172(e)

(supra) as well as CPR 3.171(b)(2)(B).

CPR 3.171(b)(2)(B): Plea Discussions and

Agreements; [in part] If Defendant represents himself, all

discussions between the defendant and the prosecuting

attorney shall be of record. Responsibility of the Prosecuting

Attorney; (2) The prosecuting Attorney SHALL (emphasis

added) (B) maintain the record of direct discussions with a

defendant who represents himself and make the record

available to the trial judge upon the entry of a plea arising from

these discussions.

On the 5th of July 2011, the Defendant appeared in the Trial

Court for a plea hearing. During the lengthy plea colloquy, which the

Trial Court admits and the Appellate Court admonished, was 'not a

model of clarity', the Court never asked the Defendant what he is

pleading; the Defendant never entered a plea.

The best indicia of a plea being voluntary is for the Court to ask

the Defendant what he/she is pleading and is she/he pleading to a

stated set of facts, and then the Defendant responding with a

yes/guilty (no contest or Alford). Macarthy v. United States 394 US

464 If that occurred in this case it would seem that the Second

District Court would have said so; but it did not, thus if maybe inferred

that Defendant did not enter a plea nor did he acknowledge a set of

facts underlying a voluntary plea. The same inference can be made

for whether the State prosecutor complied with the Criminal

Procedure Rules and read into the record the complete plea

agreement (specifically what the agreed plea was).

Further the Appellate Court states, 'We are confident however,

that a more carefully crafted plea colloquy and an examination of the

completed form (plea form) would have made a motion to withdraw

plea unnecessary.' The Trial Court never reviewed the plea form to

see if it was consistent with the plea the Court admitted assumed the

Defendant was entering. The Trial Court admits an inadequate plea

colloquy, the Appellate Court asserts that the colloquy was

inadequate and was the cause of misunderstanding, yet, both Court

place the blame on the Defendant and each assert an assumption

that the Defendant knew he was pleading guilty despite the lack of

any indicia of a voluntary plea.

The Appellate Court assumed that the Defendant erred in

checking the "nolo contendere" box instead of the guilty box, never

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considering that that was a true and voluntary act, not a mistake and

to the best of his knowledge and understanding of the proceeding,

nolo contendere was the plea he was entering: the plea form is the

only indicia of what Defendant intended. Defendant never intended

to enter a guilty plea.

Demers filed a timely notice to invoke, and this jurisdictional

brief follows.

SUMMARY OF ARGUMENT

The unanimous decision by the Second District Appeals Court,

expressly and directly conflicts with Williams (SC)and Ross (4*

District). (supra) Demers was never asked to enter a plea and never

entered an oral plea in open court. The Second District's unanimous

decision is unprecedented in scope and in its implications: Courts

could quash a Defendant's Due Process Rights (especially pro se

Defendants) with colloquies that lack clarity and integrity, where the

Defendant is never ask what the Defendant pleads and thereby thrust

an unknowing involuntary guilty plea upon the Defendant while

addled in the newness with a frightened and confusing frame of mind

of the moment.

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The State and the Court has Duties; the Defendant has Rights.

This is not giving the pro se or any Defendant any special

considerations. These assignments of duty and guarantee of rights

are promulgated in the Rules of Criminal Procedure and assured in

Case Law up to the U.S. Supreme Court.

ARGUMENT

THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM THE SUPREME

COURT CASES AND OTHER DISTRICT COURTS OF APPEAL

lt is impossible to determine what precisely the Second

District's legal reasoning was in formulating its decision due to the

fact that they fail to make a legal argument by its failure to cite any

case law and only mention one Criminal Procedure Rule 3.172(c) and

no other statutory rule or law. What we can compare are decisions

and what legal reasoning is absent in the Second District's opinion

and what is present in other District Courts.

The main reasoning, absent in the Second Appellate Court

decision, is that found in Williams (supra) [also a Second District

Appellate case] the ruling Supreme Court case for determining the

voluntariness of a plea. In Williams the Court ruled [Citing US

Supreme Court case Macarthy v. United States 394 US 464] "The

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plea in McCarthy was entered without any inquiry of the defendant

concerning the offense. He was not even asked the standard

question 'Are you entering this plea of guilty to the offense because

you are guilty and for no other reason."(Williams @ 273) Like

Williams, this Court never asked that standard question; never asked

if the facts recited by the State were the facts he was pleading

(anything) to.

The Williams Court outlined the Standard for Voluntariness of

a Plea:

1. No plea

shall be accepted by a court without first in open court

without first determining . . . that the circumstances

surrounding the plea reflect a full understanding of the

significance of the plea and its voluntariness and that there

is a factual basis for the plea;

2. Three

essential requirements for taking a plea:

a.The plea must be voluntary

b. Defendant must understand the charge

c. Must be a factual basis

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3. The trial

court may satisfy itself that there is a factual basis for a guilty

plea by statements and admissions made by the defendant

in Hall v. State 316 So. 2d 279 (Fla. 1975) that Court reviewed

a guilty plea: "Court: Now you plead guilty to this charge. Did

anybody threaten you in any way to force you to plead guilty?

Defendant: No Sir. Court: Did anybody promise you any reward or

any leniency, or special consideration by this Court to induce you to

tender this plea of guilty? Defendant: No, sir. Court: Did you plead

guilty freely and voluntarily? Defendant: Yes, sir. Court: Do you

know of any reason why the Court should not accept your tendered

plea of guilty and sentence you according to law? Defendant: No,

sir." The Florida Supreme Court stated, "this was not a model guilty

plea inquiry, and it did not comply with Rule 3.170 . . . the

responsibility to see that proper procedural steps are followed does

not rest solely with the trial judge: both trial counsel are ethically

bound to share this responsibility. . . the guilty plea procedures are

designed to protect the defendant. (@280)

In the brief colloquy in Hall, the trial court states the word guilty

5 times. In the instant case the Court uses the word guilty twice and

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never asks Appellant a direct question regarding what Appellant is

pleading, and as evidenced by the plea agreement /plea form,

Appellant only desired to enter a nolo contendere plea.

The Second District Court, in the instant case, only addressed

the two tangential statements that contain the word 'guilty' The

Decision is void of any discussion as to what indicia of a voluntary

plea as stated in Williams. Jurisdictional conflict exists. See Aravena

v. Miami-Dade County, 928 So. 2"d 1163, 1166-67 (Fla.2006) [one

test for conflicting jurisdiction is whether the holdings of two cases

"are irreconcilable".

The best indicia of a plea being voluntary is for the Court to ask

the Defendant what he/she is pleading and is she/he pleading to a

stated set of facts, and then the Defendant responding with a

yes/guilty (no contest or Alford). If that occurred in this case it would

seem that the Second District Court would have said cited the Trial

Court doing so; but it did not, thus it may be inferred that Demers did

not enter a plea nor did he acknowledge a set of facts underlying the

charge he was not pleading to.

In Ross v State 566 So.2d 356 (4th District 1990)_after the

State and defense counsel informed the Trial Court that the

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Defendant would enter a nolo contendere plea, the Court immediately

took a guilty plea. The Ross Court aske d directly "And you're

pleading guilty freely and voluntarily?" Defendant Rossresponded

"Yes." That reviewing Court cited Williams v State 316 So.2d 267

(Fla.1975), which said, "the taking of a guilty [nolo contendere] plea

is one of the most important tasks of a trial judge. As many as ninety

percent of the criminal felony cases in a particular jurisdiction may be

disposed of by a guilty plea. Ross served an admonishment to the

trial court that it was a mistake of the Court and the Attorneys stating

that they were "asleep at the wheel".

The Second Appellate Court was asleep at the wheel in the

instant case in that on one of the statements containing the word

guilty: "if you enter a guilty plea and receive a withhold of

adjudication, you won't have the right to take an appeal." is not quite

accurate. In Counts v. State 376 So. 2d 59 (Fla. 1979) the Court

states, "gives up right to appeal all matters relating to the judgment,

including the issue of guilt or innocence, but does not impair his right

to review by appropriate collateral attack." Thus, one use of the word

guilty is a misstatement of law.

CONCLUSION

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It is respectfully requested that this Court accept jurisdiction to resolve the conflict between the Second District Appellate Court and this Court and the Fourth District Appellate Court, where only two mentions of the word 'guilty' in tangential matters in a plea colloquy and where the Defendant orally makes no open court plea and does not admit to any underlying facts in the case, as to whether that is a voluntary plea.

K S. De ers

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing document was served on the State of Florida Attorney General's office for the 2"d District by ordinary mail to Concourse Center 4, 3507 East Frontage Road, Tampa, Florida 33607 on or before filing date of document.

CERTIFICATEOF TYPE SIZE AND STYLE

The undersigned certifies that this brief was submitted to the Supreme Court in accordance with R le of Appellate Procedure Rule 9.2210(a)(2) in that it employed Ariel point font.

. Demers

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING . . . . . ,. . MOTION AND IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLOR1DA

SECOND DIST CT

KEVIN S. DEMERS,

Appellant,. ) r . So

) ase No. 2D12- 647

STATE OF FLORiDA .

Appellee.

Opinion filed November 8, 2013.

Appeal.from.the Circuit Court for e . . Ifflisborough County; Scott stephens, Judge.

Kevin $. Demers, pro se.

Pamela Jo Bondi, Attomey General, Tallahassee, and Dawn A. Tiffin,.Assistant Attomey General, Tampa, for Appellee.

LaRQGE, Jtrdge.

Kevin Demers appeals an order denying his rnotion to.withdraw a guilty

plea. We affirm on all issues but-write toismphasize the importance of c arity.and

completeness in the plea colloqúy. §eee_ Fla. 1 Örim. P. 1172(c).

The State charged Mr. Demers with two count of bayefy on a law

or ement officer an¢one count of trespass He represented himself. Mr De ers

entered a negotiated plea to one count of battery on a law enforcement officer in

exchange for the State's noll prosse of the other two counts, ä withhold of adjud cation

hd a sëntánce of eighteêh ò1onths of protiétát r Øemèrs nãw arguê t a uilty

pies was involuntary because he thought he was pleading no contest. Allegedly he

oûlà t t ve pleaded guilty because it wåuld foreclose arciÝil suit fo wrong ul rrest

and vould affect adverseiy his business opportunities.

The trial court conducted a lengthy plea colloquy, during which it

repeatedly used the words "the plea," but farely in connection with the word "dulty "

w however, the trial court referred to a gtility plea telling Mr. Demets, "Y don't

taple% guilty(instead, you could have Altriah. . f youenter a guilty a

eceive a withhold of adjudication, you won't have the right to take art appeal." he trial

court never used the words "no contest" or "nolo contendere." After the colloquy Mr.

Demers completed the plea form himself, signed it, and told the trial court that

eyep/thing on the form was correct. However, he checked the-"colo contehdere box

tather than the "guilty" bóx. Apparently, the trial court did not review the completed

form. The judgment and sentence reflect a guilty plea.

According to Mr. Demers, he believeil he lád pleaded no contes it he

received a copy of his judgment and sentence. He filed a motion to withdraw Ns plea,

setting that he never enteFed a guilty plea. Ailer a hearing, the trial court found that

while the plea colloquy "is not a model of clarity " Mr. Demers knew he was eMering a

guilty plea. The trial court dènied the motion to withdraw the plea.

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The hearing tränäcript confirms t a ibedrial co rfs p eä c 04uy, though

acking in precision, twice mentioned plead ng guilty Cònsequent y emers knew

that the trial court was accepting a guilty p ea. We e to er t e déd of the

motion. We are confident, however, th t a räofe a eful y cranedpfea colloquy and an

examination of the completed plea form.wou d have m de a not ón to ithdraw the pl

Unnecessary.. . . �042 . .

Affirmed.

cutS

ALTENBERND, Judge, Concurring. ..

I conpur irt thé decisiòn to afårm the denial of Nlr en è postc nyict on

motion to withdraw his plea. I write to cornment that it1s not obvioub föme thát Mr.

Deiners would have had a better chance in a lawsuit alleging fáise arrest against the

police officer who arrestèd him for battery on a law enforcement officer if he had

leaded'no.ciontest as esinpareddo guilty. The difference between these twö pleas1n

modern practiöe is slight. Sge Behm v. Carnpbell, 925 So 2d Ö70, 107 (Fla. 5th DCA

2006)lhdiding that arrestee who pleaded no contest to iesi til a ëst was for o d

- from collaterally attacking the legality of that arrest in a civil act dn); see also

Montgomery v. Étate, Ó97'So. �575<l (Fla. 20Ó�540).1�57682 JÅr; Demersiusiness opportun ties

are undoubtedly most affected by the fact that the trial court withh~eld adjudication,

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reyentirig h m from being t eate¼as a conviated felon his e cuded as t e . t042 r,. .

was ready tô be woñïfor ñal ¡À which Mr. Derners änned td epre ent rùse ... .. . .;;;q. . :..;· .... . . . ... .

. The trial court prudently tged thejtate t make a fin I effort to gotjgte a plea and

Caf9fU e ained tGW Demetirthe benefit of the State a offer t snowtheir a öurt

hhO adjÜdication .

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