I,

IN THE SUPREME COURT OF FLORIDA

RICHARD ENGLAND,
Petitioner,

vs.

ROSEMARY CALHOUN, Assistant State Attorney,

BARBARA C. DAVIS, Assistant Attorney General,
RICHARD E. KILEY, ALLI A. SHAKOOR,
JAMESV. VIGGIANO, Assistant Capital
Collateral Regional Counsel,
Respondents.
/

PETITION FOR WRIT OF MANDAMUS

Pursuant to Fla.R.App.P. 9.100, the Petitioner, Richard England, respectfully

petitions this Court for a writ of mandamus compelling the Circuit Court of the

Seventh Judicial Circuit, in and for Volusia County Florida to strike unauthorized

pro se lTIotion for trial/legal nullity.

REQUIRED STATEMENT

The Petitioner is currently represented by the Office of the Capital Collateral

Regional Counsel - Middle Region (CCRC). Therefore, the following statement is

made for this petition to comply with the requirement of the Supreme Court of

Florida's ruling in Logan v. State, 846 So.2d 472, 478 (Fla. 2003); and Johnson v.

State, 974 So.2d 363 (Fla. 2008). In RE the exception to the nullity rule:
 I, the Petitioner, Richard England, hereby request to discharge CCRC due to'
their failure to file a motion to strike unauthorized pro se motion for trial in the
Circuit Court on my behalf while having lmowledge of the facts, and for
prosecuting a frivolous appeal.

I. BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction to issue a writ of mandamus under Article V,

Section 3(b)(8), of the Florida Constitution and Rule 9.030(a)(3), of the

Florida Rules of
. Appellate Procedure. Mandamus is the proper remedy since '
,

the duty to strike an unauthorized pro se motion is a ministerial duty. This

duty is mandated by appellate courts and the nullity rule. See Logan, and

Johnson, supra; also Whiting v. State, 929 So.2d 673 (Fla. 5th DCA 2006);

Sheppard v. State, 391 So.2d 346 (Fla. 5 th DCA 1980); and Christiansen v.

State, 993 So.2d 346 (Fla. 2nd DCA 2008).

II. STATEMENT OF FACTS

The matter before the Court is about an unauthorized motion for trial and the
,',

Trial Court's ministerial duty to strike the motion for trial because the motion is a

nullity.

On November 6th , 2003, the Petitioner was indicted for first-degree murder

and robbery. On December 2nd , 2003, the Trial Court appointed attorney Gerard

Keating to represent the Petitioner. On March 16t i1, 2004, Attorney Keating and the

2
Petitioner appeared in open court at the pre-trial hearing and made a motion to

continue and waived. speedy trial. The court granted the motion and set the next
. "'."

pre-trial in August 2004 (App. A).l

On April 16t\ 2004, at the status conference hearing and against Attorney

Keating's intentions the trial court allowed the Petitioner to make a motion for

trial. The motion for trial consisted of the Petitioner arguing why he was not ready

to continue trial and waive speedy trial. The Petitioner introduced and objected to

evidence, made a motion to release and a motion to recuse. Ultimately, the

Petitioner agreed to sign the motion to continue trial, Attorney Keating signed the

motion, and the court, for a second time, granted the motion and entered an order

granting the motion to continue trial. (App.B).

Subsequently thereafter, the Petitioner had another change of mind and made

another motion for trial as follows:

THE DEFENDANT: "YouLHonor, I change my mind. I'm going to go to

trial. I'm ready for the trial. I'm not going to wait anymore. I'm sorry."

This ore tenus motion for trial was insufficient to trigger a Nelson /

Hardwich hearing and therefore the motion for trial was a nullity. The trial court

mistakenly acted on this nullity and set the case for trial May 10tt, 2004, held trial,

and obtained a conviction and sentence there from.

I Reference to the Appendix is "App.", followed by letter.

3
 On November 15 th , 2010, the Petitioner filed a pro se Motion to Strike

Unauthorized Pro Se Motion for Trial. On November 1ih, 2010 the State in

response filed a Motion to Strike Unauthorized Pro Se Pleading.

On November 30t \ 2010 the Petitioner filed a reply to State's Motion to

Strike Unauthorized Pro Se Pleading. Also on November 30t \ 2010, but without

first taking into consideration the Petitioner's Reply to State's Motion, or its

ministerial duty, the trial court entered an Order striking Defendant's pro se

Motion to Strike Unauthorized Pro Se Motion and Order Granting State's Motion

to Strike Unauthorized Pro Se Pleading. (App. C).

III. NATURE OF RELIEF SOUGHT

The nature of the relief sought by this petition is a writ of mandamus

compelling James R. Clayton, Circuit Judge, Volusa County Courthouse, 101

North Alabama Avenue, Deland, Florida, 32724 to strike the April 16th , 2004

unauthorized pro se motion for trial because it's a nullity and reverse all actions

taken by the trial court therefrom that are also null and void. (App. D).

IV. ARGUMENT

On April 16th , 2004 the Petitioner was represented by Gerard Keating. On

that day the Petitioner made an unauthorized pro se ore tenus motion for trial. The

Petitioner's motion for trial does not dispute that he is represented by counsel. Nor

4
did Attorney Gerard Keating adopt the motion. In fact, Attorney Keating objected

to the motion (See excerpts of April 16th hearing App. C).

In order to avoid the operation of the general rule that pro se motions are a

nullity and should be stricken, a defendant must make specific allegations that he

wishes to discharge his court appointed attorney, and have new counsel appointed,

or to represent himself. However, the Petitioner's April 16th , pro se motion for trial

is not sufficient to warrant a hearing pursuant to Nelson v. State, 247 So.2d 256

(Fla 4th DCA 1973) or Hardwich v. State, 527 So.2d 1071, 1074-75 (Fla. 1988).

Because the Petitioner's Motion for Trial is facially insufficient to trigger a

NelsonlHardwich inquiry, it is a nullity and the Petitioner moves that the Motion

for Trial, along with all action taken by the trial court in response thereto be

stricken.

The Petitioner made an express, distinct, demand for the trial court to strike

as a nullity, the April 16th , 2004 unauthorized pro se motion for trial on November

15 th , 2010.

Instead of the trial court recognizing its duty to strike the April 16th , 2004

unauthorized pro se motion, the trial court instead struck as a legal nullity the

Petitioner's November 15 th , 2010 motion based on the State's November 17t\ 2010

Motion to Strike Unauthorized Pro Se Pleading.

5
 The State's motion is frivolous for two reasons; 1. The November 5t \ 2010

NelsonlFareta inquiry did not address the Petitioner's November 15 th , 2010

Motion to Strike Unauthorized Pro Se Motion for Trial, and , 2. The Petitioner's

November 15 th , 2010 Motion is sufficient to trigger a NelsonlFaretta inquiry, and

also sufficiently litigated for the trial court to recognize its duty to strike April 16th ,

2004 unauthorized pro se motion for trial sua sponte.

The Petitioner is left with no other remedy but to seek the assistance of the

Supreme Court of Florida to compel the trial court to strike, as a nullity, the

unauthorized pro se motion of April 16th , 2004. And, since this case involves a

death sentence, and appeal from that is technically null and void as result of the

unauthorized motion.

Because the trial court is required to strike, as a nullity, a defendant's pro se

motion where the defendant is represented by counsel, and motion does not include

a clear request to discharge counsel, this Court should issue a writ of mandamus.

See Logan and Johnson, supra.

The trial court should be directed to strike the Petitioner's April 16th , 2004

pro se motion for trial.

Respectfully Submitted

"C> --.Q~.Q)
Richard England#ll574

6
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of this petition was

furnished by U.S. Mail, first-class, to: The Honorable James R. Clayton, Circuit

Court Judge, Volusia County Courthouse, 101 N. Alabama Ave., Deland, Florida

32724; Richard. E. Kiley, Ali A. Shakoor, and James V. Viggiano, Assistant

Capital Collateral Regional Counsel, 3801 Coporex Park Drive, Suite 210, Tampa,

Florida 33619; Rosemary Calhoun, Assistant State Attorney, 251 N. Ridgewood

Ave., Daytona Beach, Florida 32114; Barbara C. Davis, Assistant Attorney

General, 444 Seabreeze Blvd., Suite 500, Daytona Beach, Florida 32118, this q-\h-

day of December, 2010

Richard England # 115

Union Correctional Institution
7819 N.W. 228th Street
Raiford, Florida 32026-4410

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY, that this petition complies with the font

requrirements of rule 9.100(1) of the Florida Rules of Appellate Procedure.

~~~Q
Richard England # 11 74

Petitioner, pro se

7
 APPENDIX

INDEX

A. Transcript of Proceedings held on March 16th, 2004

B. Motion to Continue Trial

Order Granting Motion to Continue Trial

c. Motion to Strike Unauthorized Pro Se Motion and Exhibits

State's Motion to Strike Unauthorized Pro Se Pleading

Reply to State's Motion to Strike Unauthorized Pro Se Pleading

Order Striking Defendant's Pro Se Motion to Strike

Unauthorized Pro Se Pleading

Order Granting State's Motion to Strike Unauthorized Pro Se

Pleading

D. Order of Assignment
APPENDIX A

2
 1

•
1
IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT OF
2 FLORIDA, IN AND FOR VOLUSIA COUNTY, FLORIDA
3 CASE NO.: 03-3S769-CFAES
4

5
STATE OF FLORIDA,
6
Plaintiff,
7
-vs-
8
RICHARD ENGLAND,
9
Defendant.
10
--------------------------/
11

12
101 North Alabama Avenue
13 DeLand, Florida
March 16, 2004
14 8:30 a.m.
15

16

17 TRANSCRIPT OF PROCEEDINGS
18

19 The above-styled case came on to be heard

20 before the Honorable S. JAMES FOXMAN, Circuit Judge, at

21 the time and place above indicated.

22

23

24

25

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 2

• APPEARANCES:
1

2
ED DAVIS, ESQUIRE
3 ASSISTANT STATE ATTORNEY
101 North Alabama Ave~ue
4 DeLand, Florida 32724
5 On behalf of the Plaintiff
6

7 GERARD F. KEATING, ESQUIRE

GERARD F. KEATING, P.A.
8 318 Silver Beach Avenue
Daytona Beach, Florida 32118
9
On behalf of the Defendant
10

11

12

•
13

14

15

16

17

18

19

20

21

22

23

24

25

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 4

• 1

3
THEREUPON,

THE COURT:

England, page 19.

State of Florida versus Richard

Mr. Keating is here. Mr. Davis.

MR. KEATING: Motion to continue, waive speedy

5 trial. Mr. England is over here to my left.

6 MR. DAVIS: No objection, Your Honor. We were

7 talking about possibly rolling it up a few months.

8 Do you have trial? If possible roll it a couple

9 few months.
10 THE COURT: How many months? We can roll it as

11 long as as you want.

12 MR. KEATING: 11m in McDuffy in July. Actually

13 roll off then.

MR. DAVIS: Criminal trial in August, Your

15 Honor, just to see where we are.

16 THE COURT: Continued. Waive pretrial in

17 August. Jerry, you put it in writing.

18 MR. KEATING: Yes, sir.
19 THE COURT: Get me an order.
20 MR. KEATING: That motior. to continue signed by
21 ~he client.

22 THE COURT: I think it should be.

23 MR. KEATING: 1111 send England a copy and get

24 it to the Court.
25

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•
1 CERTIFICATE OF REPORTER
2

3 STATE OF FLORIDA

4 COUNTY OF ORANGE
5

6 I, Kara Eo Reynolds, do hereby certify I was

7 authorized to and did report in Stenotypy

8 and electronically the foregoing proceedings and

9 evidence in the captioned case and that the foregoing

10 pages constitute a true and correct transcription of my

11 recordings thereof.
12

'. 13

14

15
IN WITNESS WHEREOF, I have hereunto affixed my

hand DATED THIS fu..tm!Jtv 5,:ltoS

Orange County, Florida.
, at Orlando

16

17

18

19

20 Kara E. Reynols
21 SCLAFANI WILLIAMS COURT REPORTERS, INC.
22

23

24

• 25

Sclafani Williams Court Reportersl Inc.

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APPENDIXB

3
"

IN THE CIRCUIT COURT SEVENTH

JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA

CASE NO.; 2003- 35769 CFAES

STATE OF FLORIDA,

vs.

RICHARD ENGLAND

Defendant.
----------------~/
MOTION TO CONTINUE TRIAL

COMES NO'V the Defendant, RlCHARD ENGLAND, by and through the undersigned
counsel, and respectfully moves this Honorable Court enter its Order continuing the trial
scheduled for April 5, 2004, this cause. And as grounds therefore would show:

1. On March 16, 2004, the attorney for the defendant and the defendant appeared in

open court at the pre trial on this case. The defendant and his attorney requested. a continuance

and waived speedy trial.

2 .. Continuance is necessary in order to conduct discovery in order to take numerous

depositions in this death penalty case.

3. This motion is not intended to delay any proceedings..

4. The Assistant State Attorney, Ed Davis has no objection to this motion. P" .....,
5. The defendant requests that the Court set the next pre trial in August sin~J ,the ~:i:~
:n:"
nl'-
........ .-:;'" .'l')

undersigned attorney will be in a month long trial in July in State vs. Roy McDu:t:q~~~ ;.1:1 .. ,
r.i_: . ,"", :
• '-"'Z''''',. ..,..,
WHEREFORE, Defendant, RICHARD ENGLAND, moves this Honora_imd:~~~> .- .. '.!

.' ~t.-
;
its order continuing the trial in 1h~ above styled case. "-.:
....c. , '.''.
~

...,r-
~ "

.O~ 83
t

~~~.DE.9fJ
RlCHARD ENGLAND .
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy hereof has been furnished by HAND

delivery to: ED DAVIS, Assistant State Attorney, 251 N. Ridgewood Avenue, Daytona Beach,

~y of~2004.
.. tr;fIA G
FL 32114 this

GERARD F. KEATING, P.A.

By:_ _ _~-b4''--------
Gerar . Keating, Esquire
Flori Bar No.: 328571
318 Silver Beach Avenue
Daytona Beach~ Florida 32118
(386) 2522501
Attorney for Defendant

.~. 84
 ( ('

IN THE CIRCUIT COURT SEVENTH

mDrCIAL COURT, IN AND FOR
VOLUSIA COUNTY, FLORIDA

CASE NO.: 2003- 35769 CFAES

STATE OF FLORIDA~

vs.

RlCHARD ENGLAND,

Defendant.
. /

ORDER GRANTING MOTION TO CONTINUE TRIAL

THIS CAUSE came before this Court on Tuesday, March 16,2004, at the pre trial up'on

the Defendant's Motion to Continue Trial and the Court having heard argument and·1:?eip.g duly

advised in the premises it is thereupon,

ORDERED A..ND ADJUDGED

. as
. follows:
1. The Court finds that the defendant has waived his right to speedy trial.

2. The Motion To Continue Trial is hereby Granted.

2. The Clerk is hereby directed to set the nex"! pre triai in August 2004.

DONE and ORDERED in Chambers at DeLand, Volusia County, Florida this

.
day of March. 2004. ' . / (p
/l
/Ttyv
vLOY'
~_'___' _ _--::;::_

CIRCUITCOU
S. JAMES FO
I 85
cc: Gerard F. Keating, Esquire /
Ed Davis, Esquire
FU.:f'D IN THE OFFICE OF THE
CLERK OF THE CIRCUIT COURT
VOLlJSIf\ GI'lIINTY. F1.O~JO"

APR 19 2004
CLER»(
*, Dipl\t)I o.1IIt
-
___d .
• ..,_

~------.,- ..... , .. ..-.

'~~"'-

V".
APPENDIXC

4
 11\i THE Cll~CU1T COURT, SEVENTH
JUDICiAL CIRCUli} iN AND FOR
VOLUSIA COU\\ITY'j FLORIDA

C/\SE. NO.: 2003- 357<Og-CFAES

STATE OF FLORIDA)

vs.

Defendant.
----------------~/
MOTIONTO STRlKE UNAUTHORIZED PROSE MOTION

COlVIES NOW) +he De.fe.ndcn+ RICHARD E.NGLA"ID, C1r.d here.b y moves +his Honorable.

Cour'~ +0 s+ri ke. }he. De.,fendcmt-'s ?ro s;'ivlo+ion for Tric{' Qnd in support would show +he 'follow'rI19~

1. On Apr'll \G:,) Zo04 during +he.s-f-a-tlls c.onfe,e.nce. he.o.rifl<j the. DetendC:d_-\- ·wo.S

motions;

I). \.vny De.-re.ndo.n+ WQS n',l- re~y +0 en+e.ro. de.c'l sian +0. cOl'l'hllue. und waive. speedy
+ricL(Sp01.dy+rlc,! IN(IS e{,te.drw.ly waived on Horch ib. 2004. See a++achd hearin9)
oJ, M 0+1 on +0 ReJease

2), O:~ner I-eason why Def~ndD.nt hnd 00+ si9ned '~he. meA-ionic con-l-;nue. nnd 'wa.v'e,
£'pe.ed y tr'lo.l.
b). 1"'10+1 on to Rec.usl:' (DAR V4-,P~Sl-0(0)

2, The.. De.,te.ndan+ uli-in,ah.ly cl<jre.e.d +0 sign molion TO c:on+in\Je.-o.f+orn~y sI9"r,; mdholl;

THE DEFENDANT: You. Honor" I cho.n.!je m'\j mind. I'm ~oin9'\-c <jck\-r\c.\\.
I'm re.a.ciy tor the. ,hi 0.\ . Trn flO'\- go\ns+o wni,ranyrnore.lrn sen-y,
 o.s '~c\\cvv'<;;:

o rde.red eQ.Se se:\- for +\10.\ on \V\Q.y 'to, 2004,. held +\"'10-.\ und ob+'Dined u. Ccnv'\choll

u.f\d Sel"'l't-enc'e, -\-hel'e:~l'om. (Se~o.+ta.che.d NO+·lce.o·f Filing).

4. 1n orde:r +0 o.vo\d ·t-he. oper o '\- ion at the. '3 e.ne\-a\ ,ul~ +ha.+ pro se moTions cir.~·o..

null i+y o.nd s\,ouid be s+ricken,/ a de.fendCln+ muS+ n,o..ke. spe.cific a.\\ego..+ions -/-hat he wishest-6

discho.rtje. his cal.ll'·\- a.ppo·ln+ed o.:r+orney Ge.ro.\-d l<ec.:l-in9 and hove !"lew counse.\ a:ppc\''Y'rec\ or·to

'1epre.sen-\- himse.\f, Howe.v~, .. the. Dete.ndantS "Ivlc'hen Fer T ric.1 ,. is nd" suffi ci e.n+ +c wa.l"rQ.nt

0. heo..ri f\<;j pursUQ.n+ -\-0 N 12.1 Son v. Stc+e J 247 So. 2d 251o(F-\o...4·jh DCA.ICJ(3) 0\ Horch'lJlc:.h v. S·hire..j

S27 So.2d 1071) !074 ..75(F1a., Iq'CS)· 'be.cci,u'se. -the Defenc\a.nH Mc·l-ion Fer Tried is ·t-o.c'Ia.\\y

insuf·tic:'ren+ '1'0 tri9:l~\ 0. Nel £'on/Ha.rclwlch :lnquiry, i·t- is 0. nuH \·ry .of\cl the De.·fe.nclc,n+

move';) t-hc..'~ +he jv\ohon forT,lo\ C'.I.\on~ wlt-h cd\ C\<:+ian ta.ken by th.e. Cour-\- in re.sponse..

+he.:re.+o be 'btl'le Ken,

REQUIRED STATEMENT

Ine. Dde.nc\un·~ is c.urre.n+ Iy \~e..pre.se.(\ red by +h.e. OUlr:e o·~ +h.e Ca..p; 1-0.\ C'G \ lo..l;"€'I"'l\ \

Re.C;I,onol Cc:unse\ IVliddle Re~ion(CCRC). The.re·fore, '\he+o\\cw~n9 s+o.-t-e.men+ jr; rnc.ck .for

+his motion +0 compl)' 'V\;'I l-h \-he re.qYICoerne.nt o·~ the. SiJpre.lne CCV'I't ot- Fio,,'\c\q'S I-uli,,'j in

lCCJa..nv StCl:re) 84~ So.2.d 472.(FIc... 2003); o.nd JohnsoTlV. Src..·'re.) q74 So.2d 3b3LFIa..20o~).

'in re. e.xc.e.ptioll to -\-he \1\.,;11'1 I-y cu\e =

or, I-he D.e.tenc\o.rrt, Ric:hard Enq)a.nd h<2,e.by \-eq:.ue..o:>t- +0 d',s e.\.o.rlje.. CeRe:. due.

t-Cl S~vere. cOII~iic+ o·~ ;nte.re.~·\- unci eleCtr cnd c:anv'ln<:'liI<j in<:oTT\'P<2:ter.c.~.

ihe Severe con~\ict- ot- I"'\-eres+ i:; rho,\- CeRe "va.", pr'u"v';c\e, i"FcT''f''I\c'1-,c:m o..bCGt

+he uncu·)-hc,j·z..e.d pro Se. mel-ion/lege.\ nul \ I l-y +ho.+ d ernons.rro.tes 0.\\ .\-he. do.:I1"Y'\s rQ'\sQJ
S'ltuoA-ion is c\ecLI Cind convIncing incompetence. An clppel jq:re o..-H-o,ney hos 0.0 ·e+hica.\

ddy n01- +0 prose.cute 0. bC\.se\ess Ot- hivatc;vs o.ppeo.\ - We.s-\-'s F.S_ A_ Bet. Rule 4-3. \.

-WHERE.FORE; .t-he. D-ehndecnt Richard Enljlond move.s H,ls Honr;ra6le (our+

to S'I-r'l l<e the. De.fe.ndant's pro Sg" fvlo+lcn .for Tr'iCiI" o.nd ClI'\ actions loken 1n re.spon.5e. by' +he.

Respe.dtuH y su6rni-H-e.d)

~~-S)~~
Rlcho.rd EnglctI")d =# 11'5574
U,,'ion Correction.o.\ Institu'hon
781Cf NW2.2Sl-hStree-l-
R.aj-Ford, Florido. 32.02~-44-2.0

CERTIFlCATE OF SERVICE

1 HEREBY CERT1F'( thC\'\- CL 'h"ve ond c.oned eopl' he.reof hC\'ii be.-<Il furn:lshed by

~~-\:j,~~~
. }; a:::::::::::,
RiC\")C\\-dEng\c\ild fl 115574
Union Corre.diolla\ i nST,1-u'hon
78 \q N W 2..28 th S+ree:r
Ro.'fon:l, Floridc:t 32.02b-Li420
M

•
1
IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT OF
2 FLORIDA, IN AND FOR VOLUSIA COUNTY, FLORIDA
3 CASE NO.: 03-3S769-CFAES
4

5
STATE OF FLORIDA,
6
Plaintiff,
7
-vs-
8
RICHARD ENGLAND,
9
Defendant.
10
--------------------------/
11

12
101 North Alabama Avenue
13 DeLand, Florida
t 14
March 16, 2004
8:30 a.m.

15

16

17 TRANSCRIPT OF PROCEEDINGS
18

19 The above-styled case came on to be heard

20 before the Honorable S. JAMES FOX¥Ulli, Circuit Judge, at
21 the time and place above indicated.
22

23

24

25

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•
1 THEREUPON,

2 THE COURT: state of Florida versus Richard

3 England, page 19. Mr. Keating is here. Mr. Davis.

4 MR. KEATING: Motion to continue, waive speedy

5 trial. Mr. England is over here to my left.
6 MR. DAVIS: No objection, Your Honor. We were
7 talking about possibly rolling it up a few months.

8 Do you have trial? If possible roll it a couple

9 few months.
10 THE COURT: How many months? We can roll it as
11 long as as you want.

12 MR. KEATING: 11m in McDuffy in July. Actually

13 roll off then.

14 MR. DAVIS: Criminal trial in August, Your

15 Honor, just to see where we are.

16 THE COURT: Continued. Waive pretrial in

17 August. Jerry, you put it in writing.

18 MR. KEATING: Yes, sir.

19 THE COURT: Get me an order.

20 MR. KEATING: That motion to continue signed by

21 t.he client.
22 THE COURT: I think it should be.
23 MR. KEATING: 1111 send England a copy and get
24 it to the Court.

25

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r-------------------------------------~~~~~~~------------------------------~---~

1 IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR VOLUSIA COUNTY
2 CASE NO. 2003-35769CFAES, DIVISION FOX~ffiN

4
STATE OF FLORIDA
5
FILED IN THE OFFICE OFTHE
vs. CLERK OF THE CIRCUIT COURT
6 VOl USIA COUNTY FLORIDA '
RICHARD ALLEN ENGLAND,
7 AUG 102004
Defendant.
8 CLERK
By , . Dopu!y Clork
9

10
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13 \ r" PPl
~ -".. ~
101 North Alabama Avenu~ m tl ..----
"].';':1
( 14 DeLand, Florida 'J. ("?
'
,......
0
April 16, 2004 'I
,~
c:
~.

'r
j
;u ......,f:'
15 8:40 a.m. j ~q1 -~

16

17

18

19 TRANSCRIPT OF PROCEEDINGS

20 The above-styled cause carne on to be heard before

21 the Honorable S. James Foxman, Circuit Judge, at the

22 time and place above indicated, for the purpose of

23 taking testimony and evidence in said cause.

24
'.:'~'"

.:::jl\;·~~r~,:
WHEREUPON the following proceedings were had:
25
';~!i~~£~/
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 27
1 THE COURT: You make the decision. I

2 think you should be listening to your attorney.

3 THE DEFENDANT: I mean, with respect to

4 you and ·what you've told me and .what ... I

5 don't want to lose Mr. Keating. He's great.

6 He knows what he's doing. So I'm going to have

7 to sign it. I'll sign the continuance.

8 THE COURT: Okay.

9 THE DEFENDANT: I will sign it.

10 THE COURT: Okay. Sign.

11 THE DEFENDANT: And ...

12 MR. KEATING: Mr. England just signed the

13 motion. I'm going to present it to the. court.

") 14 And I just signed the motion.

15 THE COURT: Okay. Continued with waiver.

16 MR. KEATING: Thank you.

17 THE COURT: Okay. As to the ... again, as

18 to the oral motion .,. to the extent it's

19 considered a motion to recuse, oral, denied.

20 As to the motion to release that he argued

21 this morning, denied.

22 State, I just need just two short

23 motions (sic) on that.

24 Again, I know there's a motion for a bond

25 pending. I'm going to treat that. completely

)
Sclafani Williams Court Reporters, Inc. GG8
(866) SET-DEPO (738-3376)
 28
1 ·separately and we'll have that hearing. I'll

2 consider whatever they have.

3 All right. Let me do this.

4 Mr. Keating, want to say anything else,

5 sir?

6 THE DEFENDANT: We need copies '" you

7· said that you approved copies of the transcript

8 and

9 MR. KEATING: Yeah, the court .reporter

10 will type that stuff up.

11 THE DEFENDANT: Your Honor, I change my

12 mind. I'm going to go to trial. I'm ready for

13 the trial. I'm not going to wait anymore. I'm

14 sorry.

15 MR. DAVIS: The state's ready, Your Honor.

16 MR. KEATING: I'm not.

17 THE DEFENDANT: I've changed it. I'm

··18 going in; .. __. _.- _....

19 MR. KEATING: He's going without me.

20 Your Honor, I'd like to withdraw from the

21 case. I think Mr. England's making a mistake.

22 He's making that mistake without me. I can't

23 be ready for a May trial. And, unfortunately,

24 I think I've got to get out of the case.

25 THE DEFENDANT: I'm not going to wait

Sclafani Williams Court Reporters, Inc.

G7U (866) SET-DEPO (738-3376)
 29
1 another year. I've been locked up too long.

2 I'm not guilty of this charge; simple as that.

3 THE COURT: State.

4 MR. DA'VIS: Yes, sir.

5' THE COURT: I have his written signature

6 waiving. I could stand on that. I suspect a

7 better course is to, let's just crank it up and

8 do it.

9 MR. DAVIS: Yes, sir. We're prepared to

10 go.

11 THE COURT: I'm not going to stand on

12 ceremony, although I have a written signature

13 waiving.
) 14 THE DEFENDANT: Thank you.

15 THE COURT: I'll file that now.

16 Mr. ~eating, I hate to do it to you, but

17 I'm not going to let you out. He's demanding.

18 it. He's got a right to do it. I agree with

19 you, that he ought to listen to you. I've

20 tried my best to talk to him here this morning

21 and tell him that ... tell him to let you do it

22 the right way. But once he makes those

23 decisions, I think we're all bound by it and I

24 think we've got to go.

25 I'}} just make all the arrangements

)
Sclafani Williams Court Reporters, Inc.
(866) SET-DEPO (738-3376) G71
 ( r"
:~

"
IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN A.},1J) FOR
VOLUSLJ\ COUNTY, FLORIDA.

CASE NO. 2003-35769-CFAES

STATE OF FLORIDA

vs.

RICHARD ENGLAND,

Defendant.
--------------------./
. NOTICE OF FJLING

The Court files its Notice of Filing Defendant's Motion to Continue Trial dated .
Apri116, 2004, and the Court's Order thereto Granting the Motion to Continue, which are
attached hereto. In Open Court, and subsequent to the Order Granting the Motion to
Continue having been signed by the Court, Defendant announced he did not wish to
continue the trial. The Court rescinded the order Granting the Motion to Continue Trial
and set the instant case for trial on May 10, 2004.

. DONE AND ORDERED in Open Court this 16th day of April, 2004, at DeLand,
Volusia County, Florida.

, CIRCUIT JUDGE

COPIES TO:
Ed Davis, Assistant State Attorney
Gerard F. Keating, Attorney for Defendant

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 IN THE CIRCUIT COURT; SEVENTII
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA
STATE OF FLORIDA

vs. ~ASE NO: 2003-35.769 c:FAEREcEfVED BY.

RICHARD ALLEN ENGLAND, NOV 1''0 20m
DEFENDANT.
__________________ ~I
CCRG~MIDOLl:'

STATE'S MOTION TO -STR.1K£ UNAtrpIOBlZED7:RtrSE 'PLEADING

COMES NOW the State of Florida, by and through its UIidersigned counsel; arid hereby files
this motion to strike the Defendant's November 15, 2010 pro se motion to strike his prior ore
tenus motion for trial on April 16, as unauthorized pleadings filed by a litigant wp.o is
represented by counsel. In support the State would show:

That England is a death-sentenced inmate who is currently represented by the Office of the
Capital Collateral Regional Counsel- Middle Region (CCRC). This Court conducted a lengthy
Nelson hearing and a Faretta inquiry attended by Mr. England on November 5, 20 1O~ which
resuited .ip, the determination by this Court that Mr. England's Collateral counsel is providing
effective representation, that there is no conflict between Mr. England and
.
his collateral counsel,
.
and that 1l~ is n(}t entitled to represent himself in the pending Rule 3.851 litigation before this
. . ,'.
~ ':" . ' ,
:'~!. .. -:.. . . . - .

Co~ MI. England has rePeatedly acknowi~ged that he 'is not.perIIlitiM to file pro. se plead~gs .
w-hile represented by counsei and that the Court acted properly in s.triking his unauthorized pro
se pleadings:
WHEREFORE, the State of Florida moves that the Defendant's pro se "Motion for
Rehearing" be stricken, for 1:he reason set forth above.
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy hereofhas been furnished by
faxlmail/hand delivery to the Honorable James R Clayton, Circuit Court Judge, Volusia County
Courthouse, 101 North Alabama Avenue, DeLand, Florida 32724; to Barbara C. Davis, Assistant
• • • ." •• •• ~" • M __ ", • .., •• • ' . • _ .,'. • • _, _ • • . ' _ ." • • ••

th
Attorney General, 444 Seabreeze Boulevard, 5 Floor, Daytona Beach"F1orida 32118; and to
Richard Kiley, Ali Shako or, and James Viggiano, Assistant CCRC, Office of CCRe-Middle
Region, 3801 Corporex Park Drive, Suite 210, Tamp~, Florida 33619, this 11-1tiy of
November,201O.

'M='-~~'; /. -', •

....
..~ " ''',

ASSISTANT STATE ATTORNEY

Florida Bar No.: 0611700
251 N. Ridgewood Avenue
Daytona Beach, FL 32114
(386) 239-7710

'~. " ..' ':~"yy.;: .. 1 • . ,:..\.:.

 IN "THE CIRCUIT COURT, SEVEI--JTH
JUDI C I,L\L CIRCUIT) IN /~r-..\D FDR
\/OLUSIA COUNTy) FLORIDA
STATE OF "FLORIDA

vs. CASE l\Jo.:2003-3S7b9 CFAES

RICHARD E:NGLAND,
De:fe.ndOon+
_________________1

REPLY TO STATE'S MOTION TO STRIKE UNAUTHORIZED PROSE

PLEADING

COlvlES NOVY! +h~ D efe.nda[)+; RICHARD EI',,J GLAI'I! D J Qnd hl:!.re.b y ·files +his Reply +0 S+a+e's
l\lovem6er 17) 20"/0 /Vic'hon To S+r'Ii{e Una.\)·~hCl,-·rz.e.cl Pro Se PI-€.ac\'!ng, Ctnd ;n suppDd }h e

Defenclctn+ wouid show:

The Ddenc:\Gf\+ rece'\vecl c,copy G'P ·~he. Sh\"\e"s Novembe.r 17) 2.010 1'16:hon Te S-tnKe U[)C\ul-hcr;-z.;ad

?ro Se PI ead l"~ OJ, N Dve.mbe., 24,2010. Due -1-0 +he ThQ1"IKss'lv\n9 hCllidClY; ·~he. D",f~du.n:\- fi les +hi ~
rep\')' ·\-oc\C.'I' Wi·th due respect '\-0 ·\-he. Stute, the. S+a+e's November 17, '2.010 IV! o+icn To S'hlke +h~

Defe.n.c\an+'S ~ovelY\be.r '5 . '2010 !vlol'lon To S+ri ke. UnCtulhori'Z..e:d Pro Se. MDf-ion Fer TriQI is frivolous.

"The. D€.fe.ndan+s l''1otior. To S'h-'Ike Unau+hcr·\'z.ed Pre Se. Me'hon Fo,-Trial;s In comp"\c<nce 'VVTth +he.

1-e9:.",\,e.n'1en+ o·~ ·\-he Supre..N'le. Coud o·r 1=1 ori do.'s ,-u\; ":lIn: LO<j0..n v, S+a:+ej 84Gb S't,. 2:c{'47'Z'

(Flo- :2.003); and John son v· S ta t-e , q74 So.2.d 3<03 (r-Io. .200s).1 n re the. excep\-~on h the. nu II i+y

ru le.

'vV'i--IEREFORE) lhe Defe.ndary.j. Rlchaccl En'3lonc\ n"\ove.s +hls \-lonoro.bl", Cc>u'+'~o sl-nk~

+he Defendo.,,-t s Uno.u·H,cr·\ z.€d F're Se Mohon FOI- Tria.l .for- -I1-te reo.son sed -Fadh in +he. D·efendanl-S
Nov·embe.r i5, 2010 l'1dlDn To S+n Ke. Unauthori·z..ed Pre Se tvI,,-\-IO\"'l.
 REOU1RED STATEMENT

1 the De tendon+) Ri chcu-d E 119 \C\nd hf::!..l-eb/ I-e~u~s+ +0 d I se:hol'::)€' CC RC -For '~he',r
j

-ro.i Iur€: +0 ,L Ie the tvl<d-l on To S+,'l ke Unou+horl zed (VI 0+1 on Fo c TI-j'nl on -the De. ~e."c\o.f'\+s
b<'!'hC;>..\-F· c.nd '~Ol- prosee:.Ld-inS 0- {',..';volous appeal,

CERTIF' CATE OF SERVICE

I HEREBY CERTf FY th",+ (L hue and corred- copy hereof hQ,s be"-n 'fun,"shed by 'Fi 1-5+
cia sc.; n.cu I +0 -t-he Honorc,ble Jo.n1e.s R. C I nylon) Ci I-cu',-f Cou.-+ Judge. Vol uS iG.. County COLwthouSeJ

io\ Nor+h Ala.bama AvenuQ) Oe lo.nd, Ffor'ldct 32724; +0 B a.cbo.rc:. C, Do.v; s, A £,"'1 s+o.r\'~A++on'\ey

Genera.l) 444 Sea.brene Blvd., S-rhFloo,) Dc,)"rone..Beoc.h J Floridq, 32fI8~'~o RosemQry L.

Co,lhoun ,A.ssi s-l-on+ S+Ct+e..A~+o'-ne.y') 251 N, R id:Jewoocl AVe.nue,) Oay+01)a. Beac:J."lj nor-Ide.. 3 2 \ \4;

ond h, Ric\-'C.\d ki ley, AI; Shc:U<oor-Jc.ndJu.n\e'2,Vi9'jiCl.noJ~,ssis-l-C\r>+ C'CRC; 3BOi COt-pore"" Po!'\<..

,\oj..,
Drive.J S\J\·\-e. 2/0, T ampo,) Flo,'cIa 336\ Ci, .\.-h;$ 30C:fC..'1 of: Novcm'b€." '2.0\0,

RECEIVED
UNION CORRECTIONAL INSTITUTION

NOV 3 0 2010
BY__~~~~~____
FOR MAILING
 IN THE CIRCUIT COURT, SEVENTH
nmICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO: 2003-35769-CFAES

v.

RICHARD ENGLAND,

Defendant.
------------------~/
ORDER STRIKING DEFENDANT'S PRO SE MOTION TO STRIKE
UNA UTHORlZED PRO SE MOTION

THIS MATTER came on to be heard before the Court upon the Defendant's pro se
"Motion to Strike Unauthorized Pro Se Motion." The Court having reviewed the motion, and
being otherwise fully advised of the premises, fmds as follows:

The Defendant is a death-sentenced inmate who is currently represented by the Office

of the Capital Collateral Regional Counsel Middle Region (CCRC). The Defendant was
represented by counsel throughout the evidentiary hearing on his Rule 3.851 motion and the
submission of written closing arguments. The Defendant's Rule 3.851 motion is currently
pending a ruling by the Court. On November 5, 2010, the Court held a status conference and
motion hearing, during which the Court conducted a Nelson and a Faretta inquiry. At the
conclusion of the hearing, the Court found that the Defendant had failed to establish that
CCRC acted incompetently or ineffectively and the Defendant's request to discharge court-
appointed counsel and represent himself was denied. CCRC has not adopted the instant
motion and thus, the Court finds that it is a legal nUllity.
For the foregoing reasons, it is

ORDERED AND ADJUDGED that the Defendant's pro se motion is STRICKEN.

DONE AND ORDERED in Chambers, in DeLand, Volusia County, Florida, this

;J(J day of November 2010.
I "tI;
,

cc: Rosemary Calhoun, Assistant State Attorney

Barbara C. Davis, Assistant Attorney General, 444 Seabreeze Blvd., Suite 500,
Daytona Beach, Florida.

Richard B. Kiley, Ali A. Shako or, and James B. Viggiano Jr., Assistant CCRCs,
Office ofCCRC-Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619

Richard England, DC# 115574, Union Correctional Institution, 7819 N.W. 228th
Street, Raiford, Florida 32026-4000

2
.t.
.1

IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO: 2003-35769-CFAES

v.

RICHARD ENGLAND,

Defendant.
------------------~/
ORDER GRANTING STATE'S MOTION TO STRIKE
UNAUTHORIZED PRO SE PLEADING

THIS MATTER came on to be heard before the Court upon the State's "Motion to
Strike Unauthorized Pro Se Pleading." The Court having reviewed the motion, and being
otherwise fully advised of the premises, hereby:

ORDERS AND ADJUDGES that the State's motion is GRANTED.

DONE AND ORDERED in Chambers, in DeLand, Volusia County, Florida, this

:i?Oday of November 2010.
-"

cc: Rosemary Calhoun, Assistant State Attorney

Barbara C. Davis, Assistant Attorney General, 444 Seabreeze Blvd., Suite 500,
Daytona Beach, Florida.

Richard B. Kiley, Ali A. Shakoor, and James B. Viggiano Jr., Assistant CCRCs,
Office ofCCRC-Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619

Richard England, DC# 115574, Union Correctional Institution, 7819 N.W. 228th
Street, Raiford, Florida 32026-4000
APPENDIXD

5
 IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA

CASE NO. 2004-35769-CFAES

STATE OF FLORIDA

vs.

RIcHARD ENGLAND

Defendant.
----------------------~/

ORDER OF ASSIGNMENT

PURSUANT TO the direction of the Supreme Court of Florida as

well as the Amendments to Florida Rules of Criminal Procedure, 3.851,
3.852, and 3.991, as well as Florida Rules of Judicial Administration, 2.215,
the handling of this case is hereby assigned to Judge James R. Clayton for
purposes of handling any and all matters to come before him in regard to any
post judgment proceedings held in this cause.

DONE AND ORDERED in Chambers at Daytona Beach, V olusia

County, Florida, this P-day of November, 2006'r\

LIAM A. PARSONS
CHIEF JUDGE
r
,

Copy to:

Honorable James R. Clayton, Circuit Judge

Ed Davis, Assistant State Attorney

Thomas D. Hall, Clerk

Supreme Court of Florida
500 South Duval Street
Tallahassee, Florida 32399

Barbara C. Davis, Esquire

Assistant Attorney General
444 Seabreeze Blvd., Suite 500
Daytona Beach, Florida 32118

Capital Collateral Regional Counsel - Middle

3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619-1136

Richard England, #115574

Union Correctional Institution
7819 NW 228 th Street
Raiford, Florida 32026-4000