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THERESA M. MARTIN )
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Petitioner )
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vs. ) CASE NO. 2009-AP-2088
)
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STATE OF FLORIDA )
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Respondent
pectfully petitions this Court for a writ of prohibition restraining Mark J. Yerman,
from presiding as a county court judge in Case No: 08-CT-003440, and additional-
ly for this Court to quash Judge Yerman‟s Order On Motion For Review Of Stay
Order, and his Order on Motion For Stay Pending Appeal. Judge Yerman‟s Orders
were issued on June 3, 2009 to this petitioner and further shows this Court as fol-
lows:
I.
This Court has jurisdiction to issue a writ of prohibition under Article V sec-
tion 5(b) of the Florida Constitution, and Rule 9.030(c)(3) of the Florida Rules
of Appellate Procedure. Prohibition is the proper remedy to test the validity of
the denial of a motion for disqualification of a judge. Rollins v. baker, 683 So.2d
1138 (Fla. 5th DCA 1996); State v. Shaw, 643 So.2d 1163(Fla. 4th DCA 1994).
Prohibition is also the proper remedy to test the validity of a court‟s lack of juris-
v. State, 964 So.2d 816 (Fla. App. 4 Dist. 2007); (quoting) English v. McCrary,
348 So.2d 293 (Fla. 1977). This Court should accept jurisdiction.
II.
On March 16, 2009 this petitioner entered a plea of no contest before the trial
court. The plea agreement with the State was on the advice of my trial counsel. The
trial court accepted my plea and adjudicated me guilty and sentenced me to six (6)
months probation, ordered to obtain a valid driver‟s license if applicable, and not
drive until obtaining a valid license, to complete thirty (30) hours of community
service, assessed financial requirements of a $100 fine, $203 court costs, 5% fee,
$20 Crime Stopper Trust Fund and a $50 COPR, and was ordered to pay a $50
I filed a motion for new trial claiming ineffective assistance of counsel based
1175 (Fla. 2004) and was denied by the trial court without a hearing on April 1,
2
2009.
(1984); Grosvenor v. State, 874 So.2d 1175 (Fla. 2004) [April 15, 2009 Mt. to
Withdraw Plea After Sentencing, at App. A-1] and was denied by the trial court
without a due process hearing on April 23, 2009. [April 23, 2009 Cts. Order On
On May 4, 2009 I filed a Motion for Stay Pending Appeal citing Younghans v.
Florida, 90 So.2d 308 (Fla. 1956); Childer’s v. State, 847 so.2d 1120 (Fla. 1st DCA
2003); McGlade v. State, 941 So.2d 1185 (Fla. App. 2 Dist. 2006). [May 6, 2009
Mt. For Stay Pending Appeal, at A-3]. In my motion before the trial court I stated:
(1) that my appeal was in good faith, (2) it was not frivolous; and (3) my appeal
contained fairly debatable issues. The trial court on May 12, 2009 denied my mo-
tion for stay pending appeal. [May 12, 2009 Order On Mt. For Stay Pending Ap-
peal, at A-4]. The court cited in its Order that it had reviewed the records of the
case and all documents pertinent to the Defendant‟s motion, and being otherwise
On May 28, 2009 I filed a Motion for Review of Stay Order in circuit court
acting in appellate capacity. [May 28, 2009 Mt. For Review Of Stay Order, at A-
5]. This motion asked the circuit court to grant a stay of this appellant‟s sentence
3
which was given by the lower trial court on March 16, 2009. Instead this motion
supposedly filed to the circuit court was rerouted to the trial court. The trial court
denied (a second time) the motion to review the stay citing there is no procedure to
Fla. R. App. P. 9.140. Further, the court cited that it does not appear that Fla. R.
Crim. P. 3.691 for “posttrial release” applies because the defendant is not “in cus-
tody” and cannot be “released”. [June 3, 2009 Order On Mt. For Review Of Stay
The trial court concluded by holding that if it were to apply the principles
enunciated in Younghans v. State, 90 So.2d (Fla. 1956), and the defendant‟s argu-
ment is not “fairly debatable.” The trial court‟s conclusion that the defendant‟s ar-
gument was not debatable was that the County Court of Citrus County did not have
the jurisdiction or authority to deem the Child Support Orders of a Pasco County
This appellant filed a motion to disqualify the Honorable Judge Mark Yerman
on May 28, 2009.[ May 28, 2009 Mt. To Disqualify Judge Yerman, at A-7]. The
lower court denied on June 6, 2009 and in its Order cited that my motion was le-
gally insufficient according to Fla. Admin. Jud. R. 2.330. The trial court further
stated that I wanted Judge Yerman recused because I was dissatisfied with the
court‟s April 23, 2009 Order. [June 6, 2009 Order On Mt. To Disqualify Judge
4
Yerman, at A-8].
This review is being sought on the Trial Court‟s Order denying recus-
al/disqualification as the sitting judge in Case No: 08-CT-003440 and to quash the
court‟s June 6, 2009 Order because it was without jurisdiction or attempted to act
in excess of jurisdiction and the available remedy to correct the injustice is a writ
of prohibition. This Court should cure the injustice of the lower court‟s decisions.
III.
The nature of the relief sought by this petition is a writ of prohibition restrain-
ing Judge Mark J. Yerman from presiding as the trial judge in case 08-CT-3440
and to quash his June 6, 2009 Order on Motion For Review of Stay Order and on
Motion for Stay Pending Appeal for lack of jurisdiction or in the alternative in
STANDARD OF REVIEW
The Petitioner submits that the issue presented in this case is a pure question
863 So. 2d 311, 314 (Fla. 2003) (stating that standard of review for pure ques-
IV.
ARGUMENT
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THE TRAIL COURT SUMMARIALY DENIED THIS
PETITIONER‟S MOTION FOR DISQUALIFICATION
BY MISAPPLYING THE LEGAL SUFFICIENCEY
STANDARD IN FLORIDA RULES OF JUDICIAL
ADMINISTRATION RULE 2.330(f)
After I pled no contest on the advice of my legal counsel I realized it was not
a voluntary decision, based on my court appointed lawyer‟s bad legal advice, and I
also knew I was not guilty. I decided to file several posttrial motions to correct this
injustice and in order to keep a criminal free record. First, I filed a motion for new
trial and second, I filed a motion to withdraw my plea in order to claim ineffective
(1984); Grosvenor v. State, 874 So.2d 1175 (Fla. 2004). My argument was stan-
dard under Strickland; I claimed that my trial counsel failed to pursue the “Outra-
tion to dismiss. I further argued that it was a due process violation of my rights for
based on the (OGCD). I cited all the relevant cases to support ineffective counsel
Lawyer presents and/or states there is no valid legal defense to a person‟s charges
by first misinforming them, then later it is proven that there was an available de-
App. A-1]
Judge Mark Yerman as the trail court judge denied my motion without a
hearing, and ruled the following: (1) that my defense was (OGCD), and my coun-
sel refused to assert it as my defense, (2) I claimed that my final divorce decree
was illegal and void and that was, what lead to my driver‟s license being revoked
for nonpayment of child support, (3) court held that my counsel was not ineffective
for failing to file a motion to dismiss, (4) that I wanted to remove my case to feder-
al court to assert the (OGCD), (5) the court then states that my counsel strongly
advised that this defense was not possible, that going to trial would certainly result
time, (6) the defendant requests a conflict- free counsel to be appointed and an evi-
dentiary hearing held to determine the merits of her motion, (7) the court con-
tended that since, my final judgment for divorce in Pasco County was by a judge
that was removed from the bench, that my final judgment was null and void. The
court cites In Re Renke, 933 So.2d 382 (Fla. 2006) that nothing in the Court‟s opi-
nion indicates that his rulings while on the bench are null and void, (8) the Yerman
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Court explains further, that it has reviewed the Outrageous Government Conduct
(“OGC”) claim and that upon a state court judge‟s misconduct in Ortiz v. Almager,
2008 WL 789746, *6(C. D. Cal. 2008) (“Government misconduct rises to the level
of a constitutional violation only where it „so infected the trial with unfairness as to
make the resulting conviction a denial of due process.”, and (9) the Yerman Court
comments that my counsels advice that, such a claim would not work was excep-
tionally prudent, (10) the court stated that since I admitted that I was driving in Ci-
trus County without a valid license that my claim of ineffective assistance of coun-
sel was without merit, (11) lastly, the Yerman Court excoriated this petitioner by
stating without any scintilla of evidence that my motion was obviously filed by a
tutes a waste of judicial resources, and could subject me to sanctions. [Cts. Order
It can be well argued that some of the trial court‟s comments in its order
were not alleged in my motion to withdraw my plea. The court passed on the truth
were not supported by the record. Furthermore, the trial court, in fact, proved that
my trial counsel (by refusing to believe that a state judge could be the government
in the (OGCD)) was wrong. I gave the court proof of his statement, by a CD re-
8
cording to that fact in my Motion for Stay Pending Appeal. [ Mt. for Stay Pending
For the trial court to blatantly distort and misrepresent the facts that were
within the four corners of my motion, and then refuse to grant me an evidentiary
hearing when the court knew full well that the record did not disprove my allega-
tions as stated. The court concluded in support of its findings that since I admitted
I was driving while my license was suspended that my claim of ineffective assis-
tance of counsel was without merit. [Order on Mt. to Withdraw Plea after Sentenc-
ing pg 2, ¶4 App. A-2]. This ruling by the trial court falls down the slippery slope
made the unjustified comments in ¶ four of its order. I believe this was done to
scare me into thinking my appeal was not valid and I would drop my appeal. The
Yerman Court had a preconceived and fixed view, as to why it made these prejudi-
cial comments. Furthermore, these comments were made contrary to the Florida
Rules of Evidence, and these horrendous allegations were without any factual ba-
sis. [Order on Mt. to Withdraw Plea after Sentencing pg 2-3, ¶4 App. A-2].
judge shall disqualify himself or herself in a proceeding in which the judge's im-
ceeding. In the comment section under this rule a judge is disqualified whenever
the judge‟s impartiality might be reasonable questioned, whether any of the spe-
If Judge Yerman‟s biased and prejudicial comments in his Order do not consti-
tute a showing of a trial judge‟s impartiality against this petitioner then what must
A Florida Judge is also bound by the Code of Ethics for Public Officers and
Employees written for the benefit of the public. Florida‟s Code of Ethics for
Public Officers and Employees is even more explicit. Section 112.311 of the
prudent person a well-founded fear of not receiving a fair and impartial trial.
MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332 (Fla. 1990). “The term
“legal sufficiency” encompasses more than just technical compliance with the rule
and the statute; the court must also determine if the facts alleged (which must be
taken as true) would prompt a reasonable prudent person to fear that he/she could
not get a fair and impartial trial.” Hayslip v. Douglass, 400 So.2d 553, 556 (Fla.
4th DCA 1981). “It is not a question how the judge feels; it is a question what feel-
ing resides in the affiant‟s mind, and the basis for such feeling.” State ex rel,
Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-698 (1938). The Second District
court‟s impartiality” by the following: Moreover, the court must review the motion
from the litigant‟s perspective questioning the “judge‟s impartiality rather than
[from] the judge‟s [perspective] of his ability to act fairly and impartially.”: Jime-
nez v. Ratine, 954 So.2d 706, 707 (Fla. 2 Dist. App. 2007).
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In considering a motion to disqualify, the trial court is limited to “determining
the legal sufficiency of the motion itself and may not pass on the truth of the facts
alleged.” Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); Fla. R. Jud. Ad-
min. 2.330(f). In determining legal sufficiency, the question is whether the alleged
facts would “create in a reasonably prudent person a well-founded fear of not re-
ceiving a fair and impartial trial.” Id.at1274. In the case at bar, this petitioner has
adequately proved that she had a reasonable well-founded fear of not receiving a
fair and impartial hearing /and or trial by the written comments that Judge Yerman
quoted in his April 23, 2009 Order. [Order denying Mt. to Withdraw Plea pg. 2-3
App. A-2].
When I filed this Motion to Disqualify Judge Mark Yerman his role as a trial
court judge was limited to determining whether the motion was sufficient on its
face. The trial court has no authority to pass on the truth of the facts alleged in the
motion, or to make any other decision concerning the merits of the motion. Fla. R.
Jud. Admin. 2.330; Lake v. Edwards, 501 So.2d 759 (Fla. 5th DCA 1987); Bundy
v. Rudd, 386 So.2d 440 (Fla. 1968). If the motion is sufficient on its face, then the
trial judge must “immediately enter an order granting disqualification and proceed
2.330 and Florida Statute 38.10. Judge Yerman‟s April 23, 2009 Order denied my
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due process right to be granted an evidentiary hearing based, on Fla. R. Crim. P.
case law as well as Fla. R. Crim. P. 3.850(d) therefore; I was to have a due process
My motion cited evidence of my counsel refusing to use the (OGCD) and how I
was coerced into accepting a plea offer by the State. In Judge Yerman denying me
a due process hearing this started the ball rolling, for the court clearly begin de-
monstrating its bias and prejudice by its inappropriate and repulsive comments,
that clearly show, the court violated several Canons of Florida‟s Judicial Conduct.
[Order denying Mt. to Withdraw Plea pg. 2-3 App. A-2]. Based on the arguments
V.
ARGUMENT
This appellant filed a motion for stay to the county court to be ruled on by
Judge Yerman on May 6, 2009. Judge Yerman denied the motion on May 12,
2009. In accordance with appellate rules, this appellant filed a motion to circuit
court acting in appellate capacity to review the lower court‟s denial for a valid due
process stay on May 28, 2009. This appellant‟s motion for review of the stay was
captioned to the Circuit Court of Citrus County, to be ruled on by the judge presid-
ing over this appeal. Instead, it was somehow rerouted to Citrus County Court to
be ruled on a second time by Judge Yerman. Judge Mark Yerman doesn‟t get two
or three bites at the same apple. Judge Yerman has one time to rule on any particu-
lar motion in this case then, it directly goes to circuit court acting in appellate ca-
pacity, and if necessary to the Fifth District Court of Appeal. The lower court does
not have the right to rule twice on the same motion especially when the motion
Judge Yerman might argue that based on §38.06 this petitioner is not allowed
by statute to challenge his second attempt to deny my request for a stay as codified
in pertinent part:
were generously had to be available rather than void, and were not subject to colla-
teral attack. Dickson v. Raichl, 120 Fla. 907, 163 So. 217 (1935). Since we are
guided by statutory law not common law in §38.06 which makes it very clear that
once a judge refuses to disqualify himself or herself that any order is presumed va-
The argument by this petitioner is: If this argument is put forth by Judge Yer-
man referring to §38.06, he could argue that I cannot challenge his second Order
Denying my Stay Pending Appeal and/or his Order on Motion for Review of Stay
order based on this Florida Statute. I would argue that this is not a correct render-
ing of the legal problem. The distinguishable issue is, that Judge Yerman did not
have legal jurisdiction to even rule on my motion by reviewing his order a second
time, nevertheless a motion for stay pending appeal. My motion was to be ruled on
by a circuit court judge, having only authority to hear cases in their realms of cir-
cuit court‟s jurisdiction, as granted by the Florida Constitution and certain State
Statutes.
This petitioner, by filing a motion in circuit court was actually seeking appel-
15
late jurisdiction. Appellate jurisdiction as defined in Black’s Law Dictionary (8th
ed. 2004). is “The power of a court to review and revise a lower court‟s decision” .
Since the motion was captioned to circuit court, only circuit court would have any
to circuit court not just by the caption, but by the prayer, and the certificate of ser-
vice which, was directed to circuit court seeking relief for a stay pending appeal by
COURT, acting in appellate capacity, cannot relinquish its authority to the county
court to rule on this petitioner‟s motion for review of its previous order that it had
already denied relief to this petitioner a few days earlier. In denying a writ of pro-
hibition the Fourth District Court of Appeal (stated that “[p]rohibition may only be
act in excess of jurisdiction”). McFarlane v. State, 816, 817 So.2d 813 (Fla. App.4
Dist. 2007). In the instant case the trial court was without or exceeded its jurisdic-
tion to rule on this petitioner‟s motion that was specifically directed to the circuit
court to review the lower court‟s denial of a valid due process stay.
pertaining to cases on appeal when circuit courts are acting in appellate capacity.
As an example, county courts can rule on motions for stays pending appeals ac-
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cording to Fla. R. App. P. 9.310(a). Once the trial court (COUNTY COURT) de-
nies a motion for stay made by a movant, the proper procedure is to appeal that or-
der to the circuit court acting in appellate capacity. In the instant case this was ap-
propriately done by this petitioner and the motion was correctly titled Motion for
If a court receives a motion that is filed in the wrong court and that court does
not have jurisdiction to hear/rule on that legal matter then that court will file an or-
der stating that the court lacks jurisdiction and the order will state without jurisdic-
tion. Courts don‟t send a motion that is filed in the wrong court and send it to the
right court. Court‟s are not given that power or authority, that power is only
granted by the person filing the document, to which court they are seeking redress
from. It is common knowledge that court‟s will often accept a motion that is titled
wrong and hear or rule on it, after issuing an order that correctly titles the motion
as it should have been filed. This was correctly applied in State v. Sehnert, 826
So.2d 1039 (Fla. 5th Dist. 2002), where Mr. Sehnert filed a petition for writ of
prohibition in the circuit court asserting that the county court lacked jurisdiction to
hear a violation of probation because the six months probationary period original-
ly imposed was improper. Seminole County Circuit Court Judge acting in appel-
late capacity entered an order treating Mr. Sehnert‟s petition for writ of prohibi-
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Therefore, how can a county court review its own order, it has previously de-
nied? Does Judge Yerman allow attorneys that appear in front of him to refile a
second motion once he denies their first motion on a particular legal matter? I be-
lieve not. This appellant didn‟t ask the county court judge to reconsider its pre-
vious order but rather, asked the circuit court to review the lower court‟s order and
grant a due process stay in accordance with prevailing Florida case law. This court
CONCLUSION
As the U.S. Supreme Court similarly noted, “[j]ustice must satisfy the appear-
ance of justice.” It is axiomatic that “[a] fair trial in a fair tribunal is a basic re-
quirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). In fact, it
In Pinardi v. State, 718 So.2d 242 (Fla. 5th DCA 1998), the district court held
that the presence on the bench of a judge who is not impartial constitutes a struc-
tural defect in the constitution of the trial mechanism, which defy analysis by
harmless error standards. This trial court created a structural defect to this peti-
tioner by violating its sworn oath to uphold the United States and Florida Constitu-
tions and to abide by Florida‟s Laws. More importantly Judge Yerman, at my ini-
tial appearance, pretrial hearing, during the trial proceedings (that resulted in my
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no contest plea), and all posttrial motions was obligated by his sworn oath to ab-
ide by Florida‟s Code of Judicial Conduct and Florida‟s Code of Ethics for Pub-
lic Officers and Employees. Judge Yerman was not to violate these two public
ethical standards that were designed to protect the public. Instead Judge Yerman
where I have almost concluded that there is no real justice for a pro se litigant in
“[E]very litigant is entitled to nothing less than the cold neutrality of an im-
partial judge.” State v. Parks, 194 So. 613, 615 (Fla. 1939); see Seay v. State, 286
So. 2d 532, 544 (Fla. 1973); Brown v. State, 885 So. 2d 391, 393 (Fla. 5th DCA
Florida Supreme Court‟s defining statement: “In the American system of govern-
ment, it is the court system that protects rights and liberties, upholds and interprets
the law, and provides for the peaceful resolution of disputes”. IN RE: CERTIFI-
I think that the above citation is best explained by the mere fact that the trial court
did not followed this premise as stated by our supreme court. The lower trial
court has not adhered to my protection of rights, liberties, nor interpreted our law
as he was taught at the University of Akron, School of Law, and Judge Yerman has
trail court‟s original order denying his recusal. This will allow for an unbiased and
unprejudiced judge to decide the legal issues in the trial court, and additionally al-
low lady justice to have her eyes completely covered with the blindfold, and then
the scales will be evenly balanced for both sides rather than previously tipped in
This court, if it grants this writ, should also quash Judge Yerman‟s June 6,
2009 Order denying this appellant, her right to seek judicial review of her stay that
was originally directed to this Court. This Court should hold that (1) that Judge
Yerman had no right to rule on the appellant‟s motion to review the lower court‟s
denial of a stay and (2) that Judge Yerman should have disqualified himself and
then he wouldn‟t have been allowed to rule on the motion, even if he would have
most importantly, a fair and impartial hearing in any trial court is an essential com-
Court. Florida and federal due process require that hearings be untainted by even
the shadow of bias in all court proceedings. Therefore, this writ should be is-
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Petition For Writ Of Prohibition will
be sent by regular U. S. Mail to the Clerk of Circuit Court, 110 Apopka Avenue,
Inverness, Florida 34450; The Honorable Mark Yerman, 110 Apopka Avenue, In-
verness, Florida 34450; and by regular U. S. Mail to Joshua Houston of the Citrus
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this petition complies with the font requirements be-
Respectfully submitted,
_______________________
Theresa M. Martin
10918 Norwood Avenue
Port Richey, Fl. 34668
Hm. ph. (727) 857-4193
amothersfight@yahoo.com
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