CarlosMillerAppealBrief(1)

8/14/2019 CarlosMillerAppealBrief(1)

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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,IN AND FOR MIAMI-DADE COUNTY FLORIDA

CARLOS MILLER, pro se

CASE NO. 08-326 AC

L.T. Case No. M0710544

Appellant/Petitioner,

v.

STATE OF FLORIDA,

Appellee/Respondent.

_________________________/

_____________________________________________________________

APPELLANTS INITIAL BRIEF (CORRECTED)

_____________________________________________________________


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TABLE OF CONTENTS

Table of Contents i

Table of Citations ii, iii

Statements of Facts and the Case 1-5

Summary of the Argument 5-8

Argument

I. The lower tribunal erred when it allowed the jury tohand down inconsistent verdicts in the fact that they

found Miller guilty of resisting arrest without violence

yet found him innocent of refusing to obey a lawful

order and disorderly conduct because all three

charges are inextricably intertwined.

II. The lower tribunal erred when the State was allowed toenter inadmissible evidence during cross-examination

resulting in improper character evidence such that it wasunfairly prejudicial, irrelevant and intended to

inflame the jury.1

III. The lower tribunal erred when Judge Jose L. Fernandezunconstitutionally sentenced Miller to a harsher sentence

than sought by the State on the basis that Miller had

maintained his innocence throughout the trial.

Conclusion 24

1 Argument II was corrected after scrivener inadvertently repeated Argument I in

original brief

813

1318

1923


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Certificate of Service 25

Certificate of Font Size and Type 26

Table to Citations

Page

A.K. v. State, 898 So. 2d 1112, 1116 (Fla. 4th DCA 2005) 18

Barry v. State 934 So. 2d 656 (Fla. App. 2 Dist., 2006) 18

Dyes v. Spick, 606 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 1992) 11

Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983) 9

Holton v. State, 573 So.2d 284, 292 (Fla.1990) 20, 22

Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984) 21

Huntley v State, 575 So. 2nd 285 (Fla. Dist. Ct. App. 5th Dist. 1991) 11-12

K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th DCA 2001) 22

Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999) 21

Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986) 21

Ritter v. State, 885 So. 2d 413 (Fla. 2004) 21-22


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Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1st Dist. 1999) 10-12

Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004) 22

State v. Nova, 361 So. 2d 411, 412 (Fla. 1978)2

10

State v. Powell, 674 So. 2d 731, 733 (Fla. 1996) 9

Other Authorities Page

Florida Statute 316.072(3) 4, 5, 8

Florida Statute 316.2045(1) 4

Florida Statute 843.02 4-5, 9, 11

Florida Statute 877.03 3, 5, 8

Florida Evidence Code Section 90.403 6, 15

Florida Evidence Code Section 90.404 6, 14

Florida Jur 2d, Appellate Review, 341 11

Florida Jur 2d, Criminal Law, 4124 12

2 Citation was inadvertently omitted in original brief


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STATEMENT OF FACTS OF CASE

On February 21, 2007, Miami-based photojournalist Carlos Miller

[A.4, page 4, lines 10-14] was working on an assignment on Biscayne Blvd

in the area of NE 67 St. [A.5, page 4, lines 9-12]. Miller, who operates a

one-man business called Magic City Media where he offers writing,

photography and video services to magazines, websites and companies, was

working on an article about the positive transition undergoing Biscayne

Blvd, including the increase in property values, the rise of new restaurants

and businesses, and the reduction of crime. [A. 5, page 4, lines 13-19]

At about 7 p.m., Miller came across a group of five Miami police

officers who were conducting an accident investigation inside a construction

zone on the west side of Biscayne Blvd, just south of NE 67 St. [A.1, page 6,

lines 2-16] At the time, because it was going through renovations, Biscayne

Blvd was limited to two lanes; one going north, one going south. [A.1, page

7, lines 7-10] What is now an additional two lanes was a gravel construction

area separated by barricades [A.13, page 7, line 13] [A.11].

This matter was tried before a jury from June 16, 2008 though June

17, 2008 with Miller testifying that he had been standing inside the

construction zone, where no cars were allowed, about 20 feet from the


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officers, when he took a couple of photographs for his article using a

telephoto and wide-angle lens [A.12]. Miller also testified that when police

spotted him, they told him to leave the area because they were dealing with

a private matter [A.6, page 5, line 4], but he asserted his First Amendment

rights to photograph the police officers. That led to all five officers

approaching him with Sergeant Ronald Rahming grasping Millers arm and

escorting him across Biscayne Blvd to the east sidewalk [A.6, pages 8-9,

lines 10-7] [A.13][A.14] and releasing him.

Miller also testified that once he was on the east sidewalk, police

continued to order him to leave the area, but he once again asserted his First

Amendment rights to stand on a public sidewalk and document the officers

[A.6, pages 8-9, lines]. He also continued taking photographs, which

angered the officers [A.6, page10, lines 2-7]. The evidence showed that

police officers then pounced on Miller and arrested him, charging him with

nine misdemeanors, including five counts of failure to obey a lawful order

and one count each of obstruction of traffic, obstruction of justice, disorderly

conduct and resisting arrest without violence. [A.8]

According to the arrest affidavit, police claimed Miller was not

standing inside the construction zone, but standing in the middle of a busy

street, blocking the traffic when they first spotted him. [A.8]. However, the


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arrest affidavit also claimed that police escorted the defendant to the middle

of the street and told him to cross to the sidewalk,[A.8] making the affidavit

contradict itself because of the inconsistent statements.

Miami police officer Anthonius Kurver, who wrote and signed the

sworn affidavit, later testified that he had made a mistake when he wrote that

[A.1, page 41, lines 16-18], and instead meant to write that police escorted

Miller to the east sidewalk. Sergeant Rahming also testified that this

statement was a mistake [A.3, page 5, lines 11-18], confirming that he did

escort Miller to the sidewalk, even though as commanding officer, he had

approved the affidavit at the time of the arrest.

Rahming also testified that even though he escorted Miller to the

sidewalk, [A.3, page 6, lines 7-14],Miller somehow remained in the street,

refusing to leave, which is why they arrested him. Miller testified that he

was only arrested after he snapped a couple of photos from the sidewalk, one

which was admitted into evidence during the trial and shows the street

behind the officers. [A.13][A.14]

The State reduced the original nine charges to four counts, including

three misdemeanors and one traffic infraction, i.e, one count of disorderly

conduct [Florida Statute 877.03],one count of resisting arrest without


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violence [Florida Statute 843.02],one count of failure to obey a lawful

order [Florida Statute 316.072(3)],and one count of obstructing traffic

[Florida Statute 316.2045(1)],which was the traffic infraction and not

brought before the jury.

While awaiting trial, Miller launched a blog titledPhotography is Not

a Crime (www.carlosmiller.com), where he used his journalistic skills and

First Amendment rights to maintain his innocence, document developments

in his case and report on violations against other photographers and

journalists throughout the country. [A.2, page 4, lines 5-14]. Portions of this

site, which were published two months after the arrest and did not pertain to

the arrest, were allowed by the judge as evidence, resulting in improper

character evidence, which ended up inflaming the jury thereby unfairly

prejudicing Miller.

After hearing all the evidence and the judges jury instructions, the

jury acquitted Miller of failure to obey a lawful order and disorderly

conduct, but convicted him of resisting arrest without violence.

Judge Jose L. Fernandez then ruled that Miller was guilty of

obstructing traffic, which was the traffic infraction.


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The judge sentenced Miller to one-year probation, 100 community

hours and anger management class. At the sentencing, the judge stated that

he was shocked at Millers lack of remorse, and revealed that he did not

appreciate Miller using his blog as a way to maintain his innocence. He also

accused Miller of trying to be some kind of hero for maintaining his

innocence on a public forum and suggested he go visit Arlington to see

real heroes. [A.1, pages 70-71, lines 19-13]

SUMMARY OF THE ARGUMENT

I.

The jury handed down an inconsistent verdict when it acquitted Miller

of failure to obey a lawful order [Florida Statute 316.072(3)]and disorderly

conduct [Florida Statute 877.03],but finding him guilty of resisting arrest

without violence [Florida Statute 843.02], which are all legally interlocking

charges. The judge contributed to this inconsistent verdict by finding Miller

guilty of obstructing traffic, the traffic infraction, notwithstanding the fact

that the jury had already determined that Miller was not obstructing traffic

when it acquitted him of the two charges. This inconsistency as a matter of

law renders the conviction a nullity. Thus, Miller is entitled to a judgment of


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acquittal as a matter of law as to Count 2, of resisting arrest without

violence.

II.

The State was allowed to enter evidence under objection that was

unfairly prejudicial, irrelevant and intended to inflame the jury in violation

of Fla.R.Evid. 90.403 and Fla.R.Evid. 90.404.

As the State was cross-examining Miller, the prosecutor brought up an

article that Miller had written on his blog two months after his arrest in

which he compared a group of Los Angeles police officers to Gestapo

soldiers because they had been caught on video using excessive force against

journalists and children in a highly controversial incident that resulted in

lawsuits against the police department. [A.2, pages 4-9]

Although Millers attorney argued that this article was irrelevant [A.2,

page 4, lines 25] and unfairly prejudicial, the judge committed fundamental

error by allowing the prosecutor to proceed with his questions, even refusing

to allow Miller to explain the context of the article. In fact, the State even

twisted Millers written words into saying he had stated that alllaw

enforcement officers were Gestapo soldiers [A.2, page 8, lines 23-24],

therefore characterizing Miller as extremely biased against police officers


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and inflaming the jury to the point where they found him guilty of resisting

arrest without violence, even though the rest of the evidence forced them to

acquit him on the other charges. The judge abused his discretion and

committed fundamental error in allowing this evidence at trial.

III.

Judge Fernandez issued Miller a harsher sentence than sought by the

State because Miller had maintained his innocence throughout the trial, and

due to the consideration of irrelevant and unfairly prejudicial evidence,

namely the contents of Millers website. This was evidenced during the

sentencing when the judge told Miller, I am shocked at your lack of

remorse.

Prosecutor Ignacio Vasquez recommended that Miller be sentenced to

three months probation, fifty hours community service, anger management

classes and court fees for his conviction of resisting arrest without violence.

However, Judge Fernandez more than doubled this sentence,

sentencing Miller to one year probation, 100 hours of community service,

anger management classes and court fees.

In issuing a harsher sentence than was sought by the state, Judge

Fernandez declared that he was shocked at Millers lack of remorse and


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insinuated that Miller purposely got himself arrested to become some kind

of hero.

The judge also revealed that he was upset that Miller had launched a

blog after his arrest where he maintained his innocence, documented

developments in his case, including the trial, and reported on violations

against other photographers and journalists throughout the country.

The sentence thus violated Millers due process rights and constitutes

an abuse of discretion and should be overturned.

Argument

I. The lower tribunal erred when it allowed the jury to handdown inconsistent verdicts in the fact that they found Miller

guilty of resisting arrest without violence yet found him

innocent of refusing to obey a lawful order and disorderlyconduct because all three charges are inextricably

intertwined.

When the jury acquitted Miller for failure to obey a lawful order

[Florida Statute 316.072(3)]and disorderly conduct [Florida Statute

877.03],but found him guilty of resisting arrest without violence [Florida

Statute 843.02], it essentially handed down an inconsistent verdict

mandating that Miller be acquitted as a matter of law on the underlying

count of resisting arrest without violence as the resisting arrest is buttressed


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on the same facts which underlie the refusing to obey a lawful order and

disorderly conduct counts.

Although the general rule in Florida is that inconsistent verdicts are

permissible, the Florida Supreme Court has recognized one exception; the

true inconsistent verdict. As defined in State v. Powell, 674 So. 2d 731,

733 (Fla. 1996), "[a] true inconsistent verdict occurs when verdicts against

one defendant on legally interlocking charges are truly inconsistent." Such

verdicts are permissible.

Also, as Justice Anstead explained when writing for the Fourth

District Court of Appeal in Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA

1983), true inconsistent verdicts are "those in which an acquittal on one

count negates a necessary element for conviction on another count.

In this case, it was proven that Miller had not refused a lawful order

and had not committed disorderly conduct, the underlying basis of the

resisting arrest Count. Thus, there was no probable cause or reasonable

suspicion of basis for the officers to arrest Miller in the first place. The only

reason the officers even approached Miller was because he was

photographing them while they were conducting an accident investigation,


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which is not only inconsistent with criminal activity, but it is his First

Amendment right to do so.

Sgt Rahming even testified that he had made the decision to arrest

him after we were on the other side of the street, [A.3, page 6, lines 10-11]

which proves that Miller was not standing in the middle of the road as police

claimed.

Sgt. Rahming also acknowledged that even though police were

testifying that Miller was refusing to get on the sidewalk once he was

escorted across the street, that detail was never mentioned in the arrest

affidavit. [A.3, page 7, lines 17-20]

So not only is it clear that there was never any probable cause to arrest

Miller, it is clear that police violated Millers Fourth Amendment rights in

detaining him illegally. And although trial courts findings of fact are entitled

to deference, as stated in State v. Nova, 361 So. 2d 411, 412 (Fla. 1978),

appellate courts also have a role to play in ensuring that Constitutional

prohibitions against unreasonable searches and seizures are observed, as

stated in Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst Dist. 1999).

And the fact that probable cause must be proven in order to justify a

resisting without violence charge has already been settled in Florida appeal


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courts, including Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst Dist.

1999) and Huntley v. State, 575 So. 2d 285 (Fla. Dist. Ct. App. 5 th Dist.

1991).

Moreover, since Miller was acquitted of refusing to obey a lawful

order, it makes the commission of the act of resisting arrest based on the

failure to follow a lawful order an impossibility thereby warranting that the

conviction be overturned and that a judgment of acquittal be entered in favor

of Miller.

As stated in Florida Jur 2d, Appellate Review, 341, which cites Dyes

v. Spick, 606 So. 2d 700 (Fla. Dist. Ct. App. 1st Dist. 1992):

A reviewing court has the obligation to set aside a verdictwhere the verdict is against the manifest weight of the evidence.

Resisting without violence is governed by Florida Statutes 843.02

and requires proof of resisting, obstructing, or opposing a law enforcement

officer performing a lawful execution of any legal duty. Therefore, lawful

arrest is an element that the State must prove in order to establish that the

defendant resisted arrest without violence. However, the State failed to

prove this essential element thereby mandating that Miller be found not

guilty as a matter of law as to Count 2.


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This point is further emphasized in Florida Jur 2d, Criminal Law,

4124, which cites Sims v. State, 743 So. 2d 97 (Fla. Dist. Ct. App. 1sst

Dist. 1999) and Huntley v. State, 575 So. 2d 285 (Fla. Dist. Ct. App. 5 th Dist.

1991):

A person is not justified in using force to resist arrest by a lawenforcement officer who is known, or reasonably appears, to bea law enforcement officer, but nonviolent resistance to an

unlawful arrest is no crime. In fact, a lawful arrest is anessential element of the offense of resisting arrest without

violence.

To further see how inextricably intertwined these charges are, read

how the State described these charges in court documents contained in the

Record on Appeal [A.9] [A.10]:

In Count 1, the disorderly conduct charge, the State accused Miller of

BLOCKING STREET AND RESISTING OFFICER CAUSING DELAY

IN ACCIDENT INVESTIGATION.

In Count 2, the resisting arrest without violence charge, the State

accused Miller of REFUSING TO OBEY LAWFUL COMMANDS.

In Count 3, the failure to obey a lawful order charge, the State accused

Miller of refusing to MOVE OUT OF STREET when the officers ordered

him to.


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In Count 4, the obstructing traffic charge, which was reduced to a

traffic infraction, the State accused Miller of standing or approaching motor

vehicles thereon.

If Miller was acquitted of disorderly conduct, that means that he was

not blocking street and resisting officer as the State alleged. Therefore, by

convicting him of resisting arrest without violence, the jury returned with a

true inconsistent verdict.

And if he was acquitted of failure to obey a lawful order, then that

means the officers were giving him an unlawful order or not order at all.

The standard of review is de novo.

II. The lower tribunal erred when the State was allowed toenter inadmissible evidence during cross-examinationresulting in improper character evidence such that it was

unfairly prejudicial, irrelevant and intended to inflame the

jury.

During Millers testimony, the State brought up an article that Miller

had published on his blog on May 5th3

, 2007 about an incident in Los

Angeles that occurred on May 1st, 2007 where several LAPD police officers

dressed in indistinguishable riot gear were caught on video shooting rubber

3 Date was inadvertently incorrect in original brief


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bullets and using batons against children and journalists who had gathered at

a public park for a non-violent immigration protest. [A.2, page 4] [A.16]

The highly controversial incident sparked several lawsuits and

investigations against the Los Angeles Police Department and eventually

resulted in 15 officers being disciplined, including four who were

terminated, and recently resulted in the City of Los Angeles agreeing to pay

a $13 million settlement to protesters and bystanders, with more payouts

expecting to go towards journalists. [A.17] [A.18]

In his article, Miller compared these LAPD officers to the Gestapo as

a metaphor to describe the extent of their overly aggressiveness.

The State brought up this article during cross-examination in an

attempt to create a pattern of conformity that Miller was biased against

police officers as well as to inflame the jury.

However, according to Fla.R.Evid. 90.404, character evidence is not

admissible to prove that a person acted in conformity with his or her

character. When the State initially brought up this article during Millers

testimony, Millers attorney asked to go into sidebar to discuss the merits of

these questions. Millers attorney argued that the article was irrelevant to the


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case, especially considering that it was written more than two months after

Millers arrest.

In the sidebar, the State argued that the article proved that Miller had

a history of hating police [A.2, page 5, line 11]4 and accused Miller of

reliving a fantasy world where hes being kicked down or hes the

oppressed person by the Nazis [A.2, page 6, lines 19-21]5 and that Miller

was doing this to the detriment of these officers. [A.2, page 6, lines 23-

24]6

In the sidebar, Judge Fernandez agreed that this article shows a bias

against police officers [A.2, page 7, lines 23-24]7 and allowed the State to

continue with these questions. Notwithstanding that the evidence had no

probative value whatsoever, even if it did, the probative value was

outweighed by the unfair prejudice to Miller. As this evidence was unfairly

prejudicial, it should have been excluded under Fla.R.Evid. 90.403.

4 Citation was inadvertently omitted in original brief.





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The prosecutor continued his cross-examination, resulting in improper

and unfairly prejudicial inadmissible character evidence against Miller. The

cross examination went as follows: [A.2, pages 8-9, lines 23-6]

Iglesias: On the same website, you also described law enforcementas Gestapo. What is the Gestapo, sir?

Miller: In that case, it was um

Iglesias: Objection, non responsive, please answer my questions,what is the Gestapo?

Judge: Answer the questions and you need to explain it.

Miller: Well, Gestapo is the Nazi police.

In the actual article, which was never admitted into evidence, Miller

was clearly referring to the group of LAPD officers who were caught on

video using excessive force against journalists and children. This had

nothing to do with the claims before the jury and bear not even the slightest

bit of relevance toward the elements of the charges brought against Miller.

The prosecutors introduction of this evidence is clearly prosecutorial

misconduct with the sole intent of inflaming the jury.

Furthermore, the prosecutor misrepresented the evidence by

insinuating that Miller was referring to allpolice officers by using the phrase


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law enforcement[A.2, page 8 lines 23-24]8 instead of LAPD, which was

what Miller actually wrote in the article.

When Miller tried to clarify the context of the prosecutors questions,

he was immediately cut off and forced to define the word Gestapo. By

injecting the Nazis into this trial, the Prosecutor crossed the line and clearly

violated Rules 401 and 403. This evidence should have been excluded by

the Judge and the Court should have instructed the jury to disregard the

questions by the Prosecutor.

It is obvious the State introduced this evidence to inflame and

influence the jury into believing that Miller harbored bias against all police

officers and therefore would resist arrest. Considering the jury acquitted

Miller of failure to obey a lawful order and disorderly conduct, but found

him guilty of resisting arrest without violence, it is clear this evidence played

a key role in influencing their decision on convicting him of resisting arrest.

However, because Miller wrote this article more than two months

after his arrest, and it did not even pertain to the officers who arrested him,

the prosecutors statements were irrelevant and unfairly prejudicial, and

further demonstrate the inconsistent verdict.



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Furthermore, it is telling that this trial was far from fair in the fact that

the State was allowed to enter improper character evidence yet when

Millers attorney attempted to admit a document into jury instruction that

would have clarified the disorderly conduct charge, the judge struck it down.

The forbidden memo [A.15] was a citation from Barry v. State 934 So. 2d

656 (Fla. App. 2 Dist., 2006) that stated:

Words alone do not constitute disorderly conduct. Defendant must

engage in physical contact towards an officer that affects the officers (sic)

ability to do his or her job, or breach peace or otherwise incite others to act.

The standard of review is an obvious abuse of discretion because it is

clear that the prejudicial effect outweighed the probative value and the judge

should have excluded it.

As stated in A.K. v. State, 898 So. 2d 1112, 1116 (Fla. 4th DCA

2005): "The state cannot introduce evidence attacking the character of the

accused during its case in chief, since the accused must first put his good

character in issue."


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III. The lower tribunal erred when Judge Jose L. Fernandezunconstitutionally sentenced Miller to a harsher sentence

than sought by the State on the basis that Miller had

maintained his innocence throughout the trial.

When Miller was convicted of resisting arrest without violence, the

State recommended he be sentenced to three months probation, 50 hours of

community service and anger management class. [A.1, page 69]

However, Judge Fernandez more than doubled this recommendation

by sentencing Miller to one-year probation, 100 hours of community service

and anger management courses based on his consideration of inadmissible

evidence.

Judge Fernandezs exact words during his sentencing were as stated

below: [A. 1, pages 70-71, lines 19-13]

All right. Mr. Miller, I know that this isnt even

important enough for you to stand up while yourebeing sentenced on a criminal offense. Andfrankly, I dont you know, your attitude, in myopinion, is like youre glad that this all happened.Youve had a pretty cavalier attitude these last twodays: the way youve been sitting in your chair, theway youve been chitchatting with the people thatare here with you, talking on the phone duringtrial. I cant imagine why you thought thissituation was worth getting arrested for. I cantimagine for the life of me.

I dont know if you think youre some kind of heroor something like that, but if you want to see a


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hero, go visit Arlington. All right? I dont thinkany of those people that are back here are those

people that are giving you the the thumbs up onyour blog.

If I were to sentence you to jail, none of thosepeople would volunteer to go in there to serve thetime with you. They might say they would, but Iguarantee you they wouldnt. Im shocked at yourlack of remorse.

The jury, having found you guilty, Imadjudicating you guilty, imposing a $250 fine pluscourt costs and surcharges. Im placing you on oneyear reporting probation; special condition, anger

course; special condition, 100 hours of communityservice at a rate of ten hours, minimum, per month,and all conditions to be completed within tenmonths of today.

While the entire passage reveals the judges personal animus and bias

against Miller, the key sentence here is, Im shocked at your lack of

remorse.

And in issuing Miller a harsher sentence than was sought by the State

simply because Miller maintained his innocence and because he exercised

his First Amendment rights in publishing a blog unrelated to the underlying

facts of this case, Millers due process rights have been violated.

This was a violation of Millers Fifth Amendment rights, as explained

by the Florida Supreme Court in Holton v. State, 573 So.2d 284, 292


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(Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726

(1991):

A defendant has the right to maintain his or her innocence and

have a trial by jury. Art. I, 22, Fla. Const. The protectionprovided by the Fifth Amendment to the United StatesConstitution guarantees an accused the right against self-incrimination. The fact that a defendant has pled not guiltycannot be used against him or her during any stage of the

proceedings because due process guarantees an individual theright to maintain innocence even when faced with evidence ofoverwhelming guilt. A trial court violates due process by using

a protestation of innocence against a defendant. This applies tothe penalty phase as well as to the guilt phase under article I,section 9 of the Florida Constitution.

Also, according to Ritter v. State, 885 So. 2d 413 (Fla. 2004) it is

Constitutionally impermissible for a judge to issue a harsher sentence

based on the defendants lack of remorse or continual maintenance of his

innocence.

While a sentencing court has wide discretion as tothe factors it may consider in imposing a sentence,it is constitutionally impermissible for it toconsider the fact that a defendant continues tomaintain his innocence and is unwilling to admitguilt. See, e.g., Lyons v. State, 730 So. 2d 833(Fla. 4th DCA 1999); Peters v. State, 485 So. 2d

30 (Fla. 3d DCA 1986); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984).

Although remorse and an admission of guilt maybe grounds for mitigation of sentence, the opposite


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is not true. See K.N.M. v. State, 793 So. 2d 1195(Fla. 5th DCA 2001). Reliance on theseimpermissible factors violates the defendants due

process rights. See Holton v. State, 573 So. 2d 284(Fla. 1990); Soto v. State, 874 So. 2d 1215 (Fla. 3dDCA 2004).

The Ritter case is precisely on point with the instant case. As in

Ritter, the trial judge here used impermissible aggravating factors in

sentencing Miller. This is evidenced by the trial judges use of the word

remorse, or lack of, in issuing a harsher sentence than recommended by

the state. In Ritter, supra, the judge told the defendant the following:

Mr. Ritter, you have been found guilty of onecount of lewd and lascivious or indecent act upon achild by a jury on September 14, 2000. The court

is terribly disturbed that I think you still maintainyou did not do anything. This jury has in fact

determined to the contrary and I am accepting thejurys verdict having heard the testimony.

I have not seen any indication of remorse in thismatter. I understand a lot of pain and suffering has

been caused to a lot of people, but I havenot seen any indication of admission thatsomething was done wrong on your part orremorse on your part for something having beendone as opposed to the terrible tragedy you have

inflicted on the entire family.

Based upon that, sir, the court hereby sentencesyou to a term of 120 months in the Department ofCorrections to be followed by a three-year term ofsex offender probation.


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The key sentence here is, Ihave not seen any indication of remorse

in this matter, which contains the same context as the judges comment in

the instant case of I am shocked at your lack of remorse.

Furthermore, by accusing Miller of trying to be a hero and

suggesting he go visit Arlington, then referring to his family members

attending the trial by saying, I dont think any of those people that are back

here are those people that are giving you the the thumbs up on your

blog, the judge revealed that he had been bothered by the fact that Miller

had exercised his First Amendment rights by maintaining his innocence on a

public forum and by writing about matters of public concern concerning

photographers rights and abuses by the police.

This obvious bias, which was also revealed in Argument II when the

judge allowed the State to enter improper character evidence during cross-

examination, reveals that Miller did not receive a fair trial. And even though

he was not guaranteed a perfect trial, he was guaranteed a fair trial.

The standard of review is abuse of discretion.


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Conclusion

The appellant respectfully requests that this court overturn the

conviction and enter a directed verdict in favor of the defendant as a matter

of law as to Count 2 for resisting arrest.

Alternatively, appellant seeks that the conviction for resisting arrest

without violence be overturned and that he be given a new trial on the

charge.

Alternatively, appellant seeks a new sentence.


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by

U. S. Mail on the 24th day of November, 2008 to Katherine Fernandez Rundle, StateAttorney, Miami-Dade County.

By Carlos MillerPro se


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CERTIFICATE OF FONT SIZE AND TYPEI HEREBY CERTIFY that this brief complies with the font requirements of Florida Ruleof Appellate Procedure 9.21(a)(2) in that the brief is Times New Roman 14-point font.

By Carlos MillerPro se

Documents

CarlosMillerAppealBrief(1)