`IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR CITRUS COUNTY FLORIDA

STATE OF FLORIDA )
)
Plaintiff/ Appellee )
)
) CASE NO.: 2009-AP-2088
vs. )
)
THERESA M. MARTIN )
)
Defendant/Appellant )

MOTION FOR REVIEW OF ORDER

DENYING TRANSCRIPTS OF HEARINGS

Pursuant to Fla. R. App. P. 9.140(b)(1)(d), the appellant seeks review of an

order of the trail court denying posttrial motion for transcripts pending the appeal

of her conviction. In support of the motion, the appellant states:

I. STATEMENT OF THE CASE

1. This appellant was charged by the State with driving without a valid license

that was suspended or revoked and having expired motor vehicle registration over

six months. This defendant, based on the advice of the public defender pled no

contest on March 16, 2009 and the court accepted the plea and found defendant

guilty, sentenced to a term of probation, and was required to pay fines and other

costs.
2. Within the ten day period of being found guilty by the trial court this appellant

filed a motion for new trial claiming ineffective counsel. This appellant claimed

that her counsel failed to investigate and prepare a meaningful defense of “Outra-

geous Government Conduct”. This appellant cited Washington v. Strickland, 466

U. S. 668 (1984) as the guidelines for her counsel’s poor performance. The lower

court denied the motion without granting a hearing and concluded that the defen-

dant was not entitled to error- free counsel, only to reasonable effective counsel.

Waterhouse v. State, 341 So.2d (Fla. 1988). The court concluded its denial by rul-

ing that the record conclusively refuted defendant’s allegations and as proof

attached the Waiver of Rights and Plea Agreement in support.

3. On April 14, 2009 this appellant filed a motion to withdraw the plea after

sentencing citing the same defensive allegations as in ¶ two. The trial court again

summarily denied this defendant’s motion without a hearing. The court cited as its

reason for denial of a hearing, was the defendant’s counsel gave the right advice on

pleading no contest, my claim of ineffective counsel was without merit, and that

the trial counsel’s claim of “Outrageous Government Conduct Defense” (“OGCD”)

wouldn’t work was exceptionally prudent on his part.

4. A timely appeal and a motion for Insolvency were filed. On May 1, 2009 I

filed a motion for transcripts of the pretrial hearing on January 26, 2009 and for the

trial date of March 16, 2009 pertaining to the plea and sentence by the trial court
attached as (Ex. “A”). The court’s order on insolvency was incorporated in my mo-

tion for transcripts on May 12, 2009. In the court’s order it granted me the right to

be declared indigent for the purpose of my appeal only, citing Fla. R. App. P.

9.430. The court further clarified its order by ruling that my indigency applies only

to costs, not to free copies of transcripts as attached (Ex. “B”).

II. ARGUMENT

A. THE TRIAL COURT FAILED TO FOLLOW THE

CORRECTAPPELLATE RULE OF PROCEDURE

5. The trial court in its order cites Rule 9.430 as follows: (a) Appeals. A party

who has the right to seek review by appeal without payment of costs shall, unless

the court directs otherwise, file a signed application for determination of indigent

status with the clerk of the lower tribunal, using an application form approved by

the Supreme Court for use by circuit court clerks. The clerk of the lower tribunal’s

reasons for denying the application shall be stated in writing and are reviewable by

the lower tribunal. Review of decisions by the lower tribunal shall be by motion

filed in the court. In this Rule there are three sections (a), (b), and (c). Section (a)

Deals with indigents seeking review in the appellate courts without costs. Section

(b) deals with indigents who are seeking review of original proceeding under Rule

9.100. Section (c) deals with special procedures that apply to litigants who are in-

carcerated at the time of the appellate proceeding are started. In review of this issue
I’m only concerned with Rule 9.430(a) that deals when a person files an appeal and

wants to proceed with the appeal and is not required to pay the initial filing fee.

6. In Florida it is a right that has been granted by our legislature that any party

whether in a civil or a criminal case, has a right to seek review in the appellate

courts without any payment of fees or costs. According to Rule 9.430(a) it states

that “[a] party who has the right to seek review by appeal without payment of costs

shall, unless the trial court states otherwise, file a motion in the trial court, includ-

ing an affidavit showing the litigant’s incapacity to pay fees and costs or able to

give security. If the trial court grants the litigant hardship status, the litigant may

go forward as indigent status in their appeal as a matter of right.

7. In the present case, this appellant filed notice of appeal and simultaneously

filed the new Florida Supreme Courts directive that was effective on March 19,

2009 instituting the new form renamed as an Application for Criminal Indigent

Status. This requires the trial court to grant or deny an order for insolvency. Rule

9.430 sole purpose is for granting a party, whether incarcerated or not the right to

be declared indigent for the purpose to seek review in the appellate court with no

costs or fees assessed to the appealing party.

II. B. THE COURT REFUSING TO GRANT MY MOTION FOR TRANS-

CRIPTS WAS A VIOLATION OF APPELLATE RULE 9.141(b)(3)(A,B)

8. Judge, Mark Yerman granted the motion for insolvency; but denied the mo-
tion for transcripts. In Ocer v. State of Florida, 840 So.2d 1162 ((Fla. App. 5 Dist.

2003), the Court dealt with the very same issue of whether it was right to deny a

defendant the right to have posttrial transcripts without costs. In Ocer the trial

court, based its decision on Ridge v. Adams, 643 So.2d 116 (Fla. 5 th DCA 1994)

holding that the request for a transcript of a preliminary hearing was made before

there were any motions for postconviction relief in the trial court. The Ocer Court

held that Mr. Ocer was seeking a transcript for a postconviction evidentiary hear-

ing, which was to be filed as part of the record on appeal of his denial on his

postconviction motion. Florida Rules of Appellate Procedure in Rule

9.141(b)(3)(A) & (B) require that transcripts be ordered by the clerk of the lower

tribunal in indigent appeals when a postconviction rule 3.850 motion is denied af-

ter an evidentiary hearing. The Ocer Court held that Mr. Ocer was entitled to the

transcript of the postconviction evidentiary hearing at public expense. (quoting)

Colonel v. State, 723 So.2d 853 (Fla. 3d DCA 1998).

9. The only difference between the Ocer decision and this case is in Ocer he was

granted a Rule 3.850 evidentiary hearing, but the lower court denied his request.

Here, in this case a Rule 3.850 evidentiary hearing was requested but the trial court

denied the hearing. The underlying principle in the appellate court’s decision was

due process which requires, if a person is found indigent by the trial court for the

purpose of an appeal, the appeal can’t be accomplished without a record in which

to appeal from. Therefore, an indigent must have a transcript in order for the appel-

late court to fully understand what transpired in the lower court. The courts have

stated over and over that they want an indigent to be like the person that can easily

afford it, in order to balance justice for everyone.

10. This court should follow the wisdom of our United States Supreme Court, by

pursuing the standards they developed in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct.

585, 100 L .Ed. 891. There the High Court considered a state law which denied

persons convicted of a crime full appellate review if they were unable to pay for a

transcript of the trial. Mr. Justice Black's opinion announcing the judgment of the

Court stated:

‘Such a denial is a misfit in a country dedicated to afford-

ing equal justice to all and special privileges to none in
the administration of its criminal law. There can be no
equal justice where the kind of a trial a man gets
depends on the amount of money he has. Destitute de-
fendants must be afforded as adequate appellate review
as defendants who have money enough to buy
transcripts.’ Id. at 19, 76 S.Ct. at 591. (emphasis added).
This appellant, respectfully requests that this Court consider her arguments, and

the lower court’s unpersuasive argument for its ruling in my case and recognize

Ocer, Griffin, and Florida Rules of Appellate Procedure in Rule 9.141(b)(3)(A) &

(B) are highly persuasive and binding on this court in granting my right to the
hearing transcripts as applied to the facts of my case.

III. CONCLUSION

11. The trial court incorrectly applied the wrong Rule of Appellate Procedure to

deny this appellant, the right to have the two court hearings transcribed at no cost

to me, in order that they can be used in my appeal. This appellant is entitled to the

transcripts of the two hearings at no cost, according to Fla. App. R. P.

9.141(b)(3)(A) & (B). This Rule clearly states when, a defendant files a posttrial

Criminal Rule of Procedure 3.850 motion and it is denied after an evidentiary hear-

ing that person is entitled to the hearing transcripts to aid in their appeal and no

cost is assessed to them. This Rule is there to comport with due process and

whether they have a hearing or not an indigent pro se litigant should have the same

rights on appeal to transcripts as those that can afford to purchase the transcripts

for themselves as held in Ocer and Griffin.

WHEREFORE, the appellant respectfully submits that the order of the trial

court denying this appellant the pretrial hearing transcript on January 26, 2009 and

the trial hearing transcript on March 16, 2009 should be reversed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of my Motion for Review of Order Denying

Hearing Transcripts will be sent by regular U. S. Mail to the Clerk of Circuit Court,

110 Apopka Avenue, Inverness, Florida 34450. And by regular U. S. Mail to

Joshua Houston of the Citrus County Prosecutors office located at 110 N. Apopka

Avenue, Inverness, Florida on this 26th Day of May 2009.