IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR CITRUS COUNTY FLORIDA

THERESA M. MARTIN )
)
Petitioner )
)
)
vs. ) CASE NO. 2009-AP-2088
)
)
)
STATE OF FLORIDA )
)
Respondent

PETITION FOR WRIT OF PROHIBITION

Pursuant to Fla. R. App. P. 9.030(c)(3), the Petitioner, Theresa M. Martin res-

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.

BASIS FOR INVOKING JURISDICTION

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-

diction or an attempt to act in excess of jurisdiction in a criminal case. McFarlane

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.

STATEMENT OF THE CASE AND FACTS

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

Public Defender application fee.

I filed a motion for new trial claiming ineffective assistance of counsel based

on Strickland v. Washington, 466 U. S. 668 (1984); Grosvenor v. State, 874 So.2d

1175 (Fla. 2004) and was denied by the trial court without a hearing on April 1,
2
2009.

I filed a motion to withdraw my plea after sentencing again claiming ineffec-

tive assistance of counsel based on Strickland v. Washington, 466 U. S. 668

(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

Mt. To Withdraw Plea After Sentencing, at App. A-2]

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

fully advised in the premises; found that my motion should be denied.

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

“stay” or “defer” a misdemeanor probationary sentence pending appeal pursuant 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

Order And Order On Mt. For Stay Pending Appeal, at A-6].

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

Court Judge null and void.

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.

NATURE OF THE RELIEF SOUGHT

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

excess of his jurisdiction.

STANDARD OF REVIEW

The Petitioner submits that the issue presented in this case is a pure question

of law subject to the de novo standard of review. See D’Angelo v. Fitzmaurice,

863 So. 2d 311, 314 (Fla. 2003) (stating that standard of review for pure ques-

tions of law is de novo).

IV.

ARGUMENT
5
 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)

A. THE PETITIONER‟S RIGHT TO CLEAR HER

RECORD BY FILING POSTTRIAL MOTIONS

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

counsel on appeal. On my motion to withdraw my plea after sentencing, I claimed

ineffective assistance of counsel based on Strickland v. Washington, 466 U. S. 668

(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-

geous Government Conduct Defense” (“OGCD”) by the avenue of a criminal mo-

tion to dismiss. I further argued that it was a due process violation of my rights for

my court-appointed counsel not to pursue a motion to dismiss the States charges

based on the (OGCD). I cited all the relevant cases to support ineffective counsel

based on the first prong of Strickland relating to trial counsel‟s performance. In

6
Spencer v. State, 889 So.2d 868 (Fla. App. 2 Dist. 2004), as proof, if a Florida

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-

fense, it will be reversed. [Mt. To Withdraw Plea After Sentencing pgs.2-8, at

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

in incarcerative sentence, and therefore; urged me to plead no contest to avoid jail

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

7
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

paralegal unlicensed to practice law, is frivolous, an abuse of the process, consti-

tutes a waste of judicial resources, and could subject me to sanctions. [Cts. Order

Denying Withdraw Of Plea Pgs 1-2 App. A-2].

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

of the facts, as contained in my motion and my allegations of ineffective counsel

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

Appeal CD recording attached as Ex. “A” App. A-3].

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

in denying me an evidentiary hearing. Further, to add insult to injury the court

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].

B. THE TRAIL COURT‟S DUTY TO PETITIONER

Florida Code of Judicial Conduct Canon 3E(1)(a) simply states: that a

judge shall disqualify himself or herself in a proceeding in which the judge's im-

partiality might reasonably be questioned, including but not limited to instances

9
where the judge has a personal bias or prejudice concerning a party or a party's

lawyer, or personal knowledge of disputed evidentiary facts concerning the pro-

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-

cific rules in Section 3E(1) apply. (emphasis added)

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

be shown or proven to an appellate court? [Order on Mt. to Withdraw Plea after

Sentencing pg 2-3, ¶4 App. A-2].

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

Florida Statutes provides in pertinent part:

(6) It is declared to be the policy of the state that public

officers and employees, state and local, are agents of
the people and hold their positions for the benefit of
the public. They are bound to uphold the Constitution
of the United States and the State Constitution and to
perform efficiently and faithfully their duties under the
laws of the federal, state, and local governments. Such
officers and employees are bound to observe, in their
official acts, the highest standards of ethics consistent
with this code and advisory opinions rendered with re-
spect hereto regardless of personal considerations, re-
cognizing that promoting the public interest and
maintaining the rest of the people in their govern-
10
 ment must be of foremost concern. (emphasis add-
ed)

C. THE CORRECT LEGAL STANDARD TO BE APPLIED IN

DISQUALIFICATION MOTIONS IN FLORIDA COURTS

According to Fla. R. Jud. Admin. 2.330(f) a motion is legally sufficient if it

involves a determination as to whether the alleged facts would give a reasonable

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 when looking at a review of a denied motion to disqualify a circuit court

judge stated “the importance of the litigant‟s perspective as compared to the

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).
11
 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

no further in the action” Fla. R. Jud. Admin. 2.330(f).

My motion to disqualify Judge Yerman complied with Fla. R. Jud. Admin.

2.330 and Florida Statute 38.10. Judge Yerman‟s April 23, 2009 Order denied my

12
due process right to be granted an evidentiary hearing based, on Fla. R. Crim. P.

3.850(d). My motion to withdraw my plea after sentencing was based on Florida

case law as well as Fla. R. Crim. P. 3.850(d) therefore; I was to have a due process

hearing as cited in Rule 3.850(d)

If the motion, files, and records in the case conclu-

sively show that the movant is entitled to no relief, the
motion shall be denied without a hearing. In those in-
stances when the denial is not predicated on the legal in-
sufficiency of the motion on its face, a copy of that por-
tion of the files and records that conclusively shows that
the movant is entitled to no relief shall be attached to the
order. (emphasis added)

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

above this writ should be granted.

V.

ARGUMENT

THE TRIAL COURT LACKED OR EXCEEDED

ITS JURISDICTION TO REVIEW MY MOTION
THAT WAS OR SUPPOSEDLY TO BE FILED IN
13
 CIRCUIT COURT IN ORDER FOR THIS COURT
TO REVIEW THE TRIAL COURT‟S ORDER DE-
NYING MY STAY PENDING APPEAL

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

wasn‟t directed to his court.

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:

Where, on a suggestion of disqualification the judge

enters an order declaring himself or herself qualified, the

14
 orders, judgments, and decrees entered therein by the

said judge SHALL NOT BE VOID and SHALL NOT be

subject to collateral attack. (emphasis added).

At common law, acts of a disqualified judge were subject to vacation or recusal,

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-

lid and not subject to collateral attack.

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

right to hear or to rule on my motion. Furthermore, Jurisdiction was granted only

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

reviewing the trial court‟s (county court) denial for a stay.

A motion filed to circuit court that is specifically DIRECTED TO THAT

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

granted when it is shown that a lower court is without jurisdiction or attempting to

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.

County Court‟s have some limited jurisdiction in ruling on certain motions

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-

16
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

Review of Stay Order to be filed in the Citrus County Circuit Court.

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-

tion, as a petition for writ of certiorari and granted the petition.

17
 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

should grant this writ of prohibition based on this argument.

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

is a violation of due process of law to this petitioner to be judged by a trial court

that even appears biased.

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
18
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

violated these standards, harassed, and intimidated this petitioner to a point

where I have almost concluded that there is no real justice for a pro se litigant in

our judicial system.

“[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

2004). The importance of impartiality by Florida‟s judges is best stated by our

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-

CATION OF NEED FOR ADDITIONAL JUDGES. 34 Fla. L. Weekly S 223(a).

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

additionally failed to provide me with a peaceful resolution. Therefore, the honora-

19
ble decision for this Circuit Court of Citrus County is to enter an order to quash the

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

the States favor.

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

had legal jurisdiction.

Furthermore, the Canons of Judicial Ethics require that judges disqualify

themselves whenever their impartiality may reasonably be questioned. Finally, and

most importantly, a fair and impartial hearing in any trial court is an essential com-

ponent of due process, to which a pro se litigant is clearly entitled to in a Florida

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-

sued, so I can receive a fair trial and/or hearings in the future.

20
 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

County Prosecutors office located at 110 N. Apopka Avenue, Inverness, Florida on

this 18th Day of June 2009.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this petition complies with the font requirements be-

ing Rule 9.100 (l) of the Florida Rules of Appellate Procedure.

Respectfully submitted,

_______________________

Theresa M. Martin
10918 Norwood Avenue
Port Richey, Fl. 34668
Hm. ph. (727) 857-4193
amothersfight@yahoo.com

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