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.
_________________________/

_____________________________________________________________

APPELLANT’S INITIAL BRIEF (CORRECTED)

_____________________________________________________________

  i
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 to

hand down inconsistent verdicts in the fact that they       8‐13 
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 to
enter inadmissible evidence during cross-examination 13‐18 
resulting in improper character evidence such that it was
unfairly prejudicial, irrelevant and intended to
inflame the jury.1

III. The lower tribunal erred when Judge Jose L. Fernandez

unconstitutionally sentenced Miller to a harsher sentence 19‐23 
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 

  ii
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

  iii
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 

  iv
 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

  1
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 Miller’s 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
  2
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

  3
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 titled Photography 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 judge’s 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.

  4
 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 Miller’s “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

  5
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 Miller’s 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 Miller’s written words into saying he had stated that all law

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

therefore characterizing Miller as extremely biased against police officers

  6
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 Miller’s 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 Miller’s “lack of remorse” and

  7
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 Miller’s 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 hand

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.
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

  8
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,

  9
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 Miller’s 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

  10
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. 5th 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 verdict

where 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.

  11
 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. 5th Dist.

1991):

“A person is not justified in using force to resist arrest by a law

enforcement officer who is known, or reasonably appears, to be
a law enforcement officer, but nonviolent resistance to an
unlawful arrest is no crime. In fact, a lawful arrest is an
essential 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.

  12
 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 to
enter inadmissible evidence during cross-examination
resulting in improper character evidence such that it was
unfairly prejudicial, irrelevant and intended to inflame the
jury.

During Miller’s 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  

  13
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 Miller’s

testimony, Miller’s attorney asked to go into sidebar to discuss the merits of

these questions. Miller’s attorney argued that the article was irrelevant to the

  14
case, especially considering that it was written more than two months after

Miller’s 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 he’s being kicked down or he’s 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. 

5 Citation was inadvertently omitted in original brief 

6  Citation was inadvertently omitted in original brief 

7  Citation was inadvertently omitted in original brief 

  15
 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 enforcement
as 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 prosecutor’s 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 all police officers by using the phrase

  16
“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 prosecutor’s questions,

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

injecting the Nazi’s 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 prosecutor’s statements were irrelevant and unfairly prejudicial, and

further demonstrate the inconsistent verdict.

                                                        
8  Citation was inadvertently omitted in original brief 

  17
 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

Miller’s 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."

  18
 III. The lower tribunal erred when Judge Jose L. Fernandez
unconstitutionally 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 Fernandez’s 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 isn’t even

important enough for you to stand up while you’re
being sentenced on a criminal offense. And
frankly, I don’t – you know, your attitude, in my
opinion, is like you’re glad that this all happened.
You’ve had a pretty cavalier attitude these last two
days: the way you’ve been sitting in your chair, the
way you’ve been chitchatting with the people that
are here with you, talking on the phone during
trial. I can’t imagine why you thought this
situation was worth getting arrested for. I can’t
imagine for the life of me.
I don’t know if you think you’re some kind of hero
or something like that, but if you want to see a

  19
 hero, go visit Arlington. All right? I don’t think
any of those people that are back here are those
people that are giving you the — the thumbs up on
your blog.
If I were to sentence you to jail, none of those
people would volunteer to go in there to serve the
time with you. They might say they would, but I
guarantee you they wouldn’t. I’m shocked at your
lack of remorse.
The jury, having found you guilty, I’m
adjudicating you guilty, imposing a $250 fine plus
court costs and surcharges. I’m placing you on one
year reporting probation; special condition, anger
course; special condition, 100 hours of community
service at a rate of ten hours, minimum, per month,
and all conditions to be completed within ten
months of today.

While the entire passage reveals the judge’s personal animus and bias

against Miller, the key sentence here is, “I’m 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, Miller’s due process rights have been violated.

This was a violation of Miller’s Fifth Amendment rights, as explained

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

  20
(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 protection
provided by the Fifth Amendment to the United States
Constitution guarantees an accused the right against self-
incrimination. The fact that a defendant has pled not guilty
cannot be used against him or her during any stage of the
proceedings because due process guarantees an individual the
right to maintain innocence even when faced with evidence of
overwhelming guilt. A trial court violates due process by using
a protestation of innocence against a defendant. This applies to
the 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 defendant’s lack of remorse or continual maintenance of his

innocence.

While a sentencing court has wide discretion as to

the factors it may consider in imposing a sentence,
it is constitutionally impermissible for it to
consider the fact that a defendant continues to
maintain his innocence and is unwilling to admit
guilt. 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 may

be grounds for mitigation of sentence, the opposite

  21
 is not true. See K.N.M. v. State, 793 So. 2d 1195
(Fla. 5th DCA 2001). Reliance on these
impermissible factors violates the defendant’s due
process rights. See Holton v. State, 573 So. 2d 284
(Fla. 1990); Soto v. State, 874 So. 2d 1215 (Fla. 3d
DCA 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 judge’s 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 one

count of lewd and lascivious or indecent act upon a
child by a jury on September 14, 2000. The court
is terribly disturbed that I think you still maintain
you did not do anything. This jury has in fact
determined to the contrary and I am accepting the
jury’s verdict having heard the testimony.

I have not seen any indication of remorse in this

matter. I understand a lot of pain and suffering has
been caused to a lot of people, but I have
not seen any indication of admission that
something was done wrong on your part or
remorse on your part for something having been
done as opposed to the terrible tragedy you have
inflicted on the entire family.

Based upon that, sir, the court hereby sentences

you to a term of 120 months in the Department of
Corrections to be followed by a three-year term of
sex offender probation.

  22
 The key sentence here is, ‘”I have not seen any indication of remorse

in this matter”, which contains the same context as the judge’s 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 don’t 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

photographer’s 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.

  23
 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.

  24
 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, State
Attorney, Miami-Dade County.

By Carlos Miller
Pro se

  25
 CERTIFICATE OF FONT SIZE AND TYPE

I HEREBY CERTIFY that this brief complies with the font requirements of Florida Rule
of Appellate Procedure 9.21(a)(2) in that the brief is Times New Roman 14-point font.

By Carlos Miller
Pro se

  26