NOTICE TO INVOKE DISCRETIONARY I I

IN THE DISTRICT COURTOF APPEAL OF FLORIDAFIRST DISTRICT

) Case No.: 1D11-4924James Richardson, ) .

Defendant/Petitioner, )

)v. ) NOTICE TO INVpKIR

) DISCRETIONARÝState ofFlorida, ) JURISDICTION T

Plaintiff/Respondent. ) a

PETITIONER'S JURISDICTIONAL BRIEF

NOTICE IS HEREBY GIVEN that James Richardson, Defendant/Petitioner,

pro se, invokes the discretionary jurisdiction of the Florida Supreme Court to

review the decision of this court rendered on July 3, 2012.

JURISDICTIONAL STATEMENT

The Florida Supreme Court has discretionary jurisdiction to review a

decision of a district court of appeal pursuant Art. V § 3(b)(3) and Fla. R. App. P.

9.030(a)(2)(A)(iv).

I CERTIFY TH BOVE TO BE A. EELER, CLE

F1 T T COURT OF e

BY:DEPUTY CLERK

QUESTION OF GREAT PUBLIC IMPORTANCE

WAS IT THE INTENTION OF THE FLORIDA SUPREME COURT INSPENCER V. STA TE, 751 SO. 2D 47 (FLA. 1999) AND MAGGARD V. STA TE,790 SO. 2D 506 (FLA. 5" DCA 2001)TO EFFECTIVELY BAN AN INDIGENTDEFENDANT/PETITIONER WHO IS MENTALLY CHALLENGED WITHMERITORIOUS COLORABLE ISSUE(S) FROM FILING ANY FURTHERACTIONS?

ARGUMENT

The court erred in dismissing the case as "frivolous" or "malicious" given

that this was the basis of the district court's ruling, dismissal should have been

without prejudice to filing any colorable issue(s).

SUPPORTING FACTS

There is no evidence that Petitioner's claims are frivolous or malicious. The

complaint should not have been dismissed merely because Petitioner is litigious.

While it is true that a district court shall dismiss a case filed in forma

pauperis at any time if the complaint is frivolous or malicious. 28 U.S.C. 1915(e);

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). It is equally true that

Petitioner has made no application nor has there been any ruling on Petitioner

being informa pauperis.

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A case is malicious if it is duplicative of a pending or previous lawsuit.

Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993); Bailey v. Johnson, 846 F.2d

1019, 1021 (5th Cir. 1988).

The court in this case, issued a show cause order pursuant to State v.

Spencer, 751 So. 2d 47 (Fla. 1999). In Spencer, the Florida Supreme Court stated

that "[i]t is important for courts to first provide notice and an opportunity to

respond before preventing a litigant from bringing further attacks upon his

conviction and sentence."

Petitioner maintains that he has filed all of his motions and petitions in good

faith, albeit, unintelligently, and begs that this court not block any further access

to which he may be entitled to. Petitioner understands that the order ultimately

issued by the appellate court may not completely bar the Petitioner from the courts,

just that Petitioner simply needs to have a valid legal claim, as recognized by a

responsible, licensed Florida attorney. Herein lies the issue. Petitioner is and has

been indigent. Petitioner has continued to raise the same issues. This redundancy

speaks volumes as to the mental faculties of Petitioner. Despite his previous

filings Petitioner maintains that he has colorable issues whose merits (through his

own inabilities) have never been ruled on. The totality of the circumstances to the

case at bar, beg for a systemic review of Defendant/Petitioner's conviction,

judgment and sentence.

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HISTORICAL FACTS

Petitioner has never had a court ordered competency determination.

Petitioner has a personal and familial history of mental illness. Petitioner has an 8*

grade education level. Additionally, these facts have been confirmed by the

Florida State Prison System, via induction tests and procedures, i.e., TABE Test

Scores, Mental Health Evaluation, Educational Placement, etc. These facts

substantiate that the system has failed this Defendant and Defendant is cruelly

suffering as a result thereof.

Petitioner has a sub-standard IQ; which has been defined as being

significantly of sub-average general intellectual functioning, existing concurrently

with deficits in adaptive behavior, manifested during the period from conception

to age 18 . "Significantly sub-average general intellectual functioning," has been

held to mean performance that is two or more standard deviations from the mean

score on a standardized intelligence test and the term "adaptive behavior," has been

held to mean the effectiveness or degree with which an individual meets the

standards of personal independence and social responsibility expected of his or her

age, cultural group, and community.

Defendant is mentally impaired. Defendant has a right to present any

evidence that is germane to the issue(s) involving this claim and further must have

opportunity to present any relevant evidence to the court. Defense Counsel and

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Trial Court failed to have Defendant tested and evaluated pursuant to Fla. R. Crim.

P. 3.203, and subsequent case law, which states in pertinent part that the Court

must carefully evaluate the testimony of two experts who have examined

Defendant's mental abilities.

What is mental competency or diminished capacity? Does it mean only '[t]o

have the criminal intent to commit a crime." Is it intended just to "exclude trial or

sentences of imprisonment?" Or is it also intended to cover competency in

decision making abilities. Defendant/Petitioner maintains and a wide array of

courts have also maintained, the latter.

What competent person would live a life cycle of addiction, crimes to

support addiction, imprisonment and then do it all over again? What competent

person would let inmates at the jail (not even certified law clerks) tell him how to

proceed with his plea or defense(s)? What competent person would accept a plea

deal not fully understanding the consequences thereof? Petitioner has attempted

suicide in the past, and was even admitted for psychiatric observation for talking

about killing himself.

In Martinez v. State, 712 So. 2d 818 (2nd DCA 1998) the 2nd DCA set forth

a standard for determining competency stating: "...[T]he test for whether a

Defendant/Petitioner is competent... is whether the Defendant/Petitioner has

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sufficient present ability... and a reasonable degree of rational understanding, as

well as factual, understanding of the pending proceedings."

Why should the determination of competency as set forth above be any

different than a determination of competency in this case? Yet no competency

hearing was ever had.

Defendant/Petitioner has exemplified his incompetency and irrational

thinking, both pre and post-conviction. Defendant/Petitioner has addictive

behavioral and mental health issues. He never gets treatment(s)/medication(s) and

then goes on to self-medicate and continued to commit more crimes. He then

agrees to a plea that he does not understand.

In Greer v. State, 804 So. 2d 620 (3rd DCA 2002);

"...[T]he trial court erred when it precluded testimony... concerning

Defendant/Petitioner's mental capacity ... he (Defendant/Petitioner in that case)

asserts he should have been allowed to testify not only that he was bipolar with

persistent symptoms of manic depression, but also his recent consumption of

alcohol resulted in his diminished capacity. Although Florida does not generally

recognize diminished capacity, there are exceptions for extenuating

circumstances." See also Chestnut v. State, 538 So. 2d 820 (Fla. 1989); Stephens

v. State, 513 So. 2d 1275, 1276 (Fla. 3d DCA1987).

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Defendant/Petitioner herein was and still is suffering from addictive and

mental health issues. Having grown up severely disadvantaged, he lives a life of

self-medication to alleviate his pain (illegal). He has lived a roller-coaster life,

addiction, depression, pain, more addictions, incarceration, etc.

Fla. Stat.§ 916.12(1) (1995); and Fla. R. Crim. P. 3.211(a)(1) state, in

pertinent part:

"...[I]n making a competency determination, the trial court must consider all

relevant evidence. In order for an expert's psychological evaluation to constitute

evidence adequate to support a trial court's competency determination, it must

include a discussion of each of the specific factors which Fla. R. Crim. P. 3.211(a)

entails."

These factors are the Defendant/Petitioner's capacities to:

1) Defendant/Petitioner's ability to appreciate the charges or allegations

against the Defendant/Petitioner;

2) Defendant/Petitioner's ability to appreciate the range and nature ofpossible penalties, if applicable, that may be imposed in the

proceedings against the Defendant/Petitioner;

3) Defendant/Petitioner's ability to understand the adversary nature ofthe legal process;

4) Defendant/Petitioner's ability to fully disclose to counsel factspertinent to the proceedings at issue; manifest appropriate courtroombehavior; and testify relevantly.

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5) See Fla. R. Crim. P. 3.211(a)(2)(A).

6) These discussion were never had with Defendant/Petitioner.

Here we have extenuating circumstances. Defendant/Petitioner is himself a

victim. Defendant/Petitioner suffered/suffers from undiagnosed or misdiagnosed

mental illness(es) and addictive behavioral problems yet he has never received

adequate treatment for same and Defense Counsel failed to adequately inform

Defendant/Petitioner of his rights prior to having him open plea to the court. Not

only that but the court also failed Petitioner in not advising him of his rights to a

competency determination. Had these procedures been adhered to, the outcome of

these proceeding most probably would have been completely different.

Once a trial court has reasonable grounds to believe that a criminal

Defendant/Petitioner is not competent to proceed, it has no choice but to conduct a

competency hearing. Cochran v. State, 925 So. 2d 370 (5th DCA 2006).

Generally the trial court has no independent obligation to hold a competency

hearing if there is nothing to alert the court that the Defendant/Petitioner may lack

competency, but this case is different. It was incumbent upon the court that once

the court found that it has a reasonable ground to believe that the

Defendant/Petitioner lacked the requisite competency to proceed, it was encumbent

upon the court to stop the proceedings and have the necessary mental evaluation(s)

8

completed. The court should have immediately entered an order setting a time for a

hearing to determine the Defendant/Petitioner's mental condition.

During a competency hearing, the experts preparing the reports may be

called by either party or the court, and additional evidence may be introduced by

either party. The experts appointed by the court shall be deemed court witnesses

whether called by the court or either party and may be examined as such by either

party.

Fla. R. Crim. P. 3.212(a) provides procedures to follow. They were not

followed. Defendant/Petitioner maintains that at such a hearing, not only will

doctors testify to his emotional issues but Defendant/Petitioner's will have

corroborating witness(es) who will testify to Defendant/Petitioner's mental

instability and life-long behavioral and addictive problems.

Cochran, supra; Under Fla. R. Crim. P. 3.210:

"[I]f at any material stage of a criminal proceeding, the court, on its own

motion or on motion of counsel for the Defendant/Petitioner or the State, has

reasonable ground to believe that Defendant/Petitioner is not mentally competent

to proceed, the court shall immediately enter an order setting a time for a hearing

to determine the Defendant/Petitioner's mental condition. The court must order the

Defendant/Petitioner to be examined by no more than three, nor fewer than two,

experts prior to the date of the hearing. '[T]he failure to conduct a competency

9

hearing requires reversal and remand for retrial after a determination of

competency is made.' '[T]here is no discretion on the part of the trial court.' The

court must conduct a competency hearing, and the failure to hold such a hearing

deprives the Defendant/Petitioner of his constitutional right to a fair trial, in

violation of the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. A judge's subsequent extemporaneous evaluation of

competency is insufficient to ensure that a Defendant/Petitioner is not deprived of

his due process right to a fair trial.'"

Thus, if the trial court is made aware by a motion for continuance that a

competency hearing has not been conducted, the trial should not proceed until the

competency hearing is conducted. The procedure described in the criminal rules

makes it the trial court's responsibility to appoint the experts and to schedule the

competency hearing. Fla. R. Crim. P. 3.210(b) and 3.211(a). In the case at hand

defense counsel failed to not only do this but never even explained to

Defendant/Petitioner this defense which was ineffective assistance as set forth in

Strickland.

Florida Statutes specifically provide that a person accused of an offense

who is mentally incompetent to proceed at any material stage of a criminal

proceeding shall not be proceeded against while incompetent. A "material stage of

a criminal proceeding" shall include the trial of the case, pretrial hearings involving

10

questions of fact on which the Defendant/Petitioner might be expected to testify,

entry of a plea, sentencing or other matters where the mental competence of the

Defendant/Petitioner is necessary for a just resolution of the issues being

considered.

The terms "competent," "competence," "incompetent," and "incompetence,"

as used in rules 3.210-3.219, shall refer to mental competence or incompetence to

proceed at a material stage of a criminal proceeding. If, at any material stage of a

criminal proceeding, the court of its own motion, or on motion of counsel for the

Defendant/Petitioner or for the state, has reasonable ground to believe that the

Defendant/Petitioner is not mentally competent to proceed, the court shall

immediately enter its order setting a time for a hearing to determine the

Defendant/Petitioner's mental condition.

Defendant/Petitioner seeks a nuncpro tunc competency evaluation ; that is,

having done now, what defense counsel failed to request before. No per se rule

exists in Florida forbidding a nunc pro tune competency determination regardless

of the surrounding circumstances.

In Rodgers v. State, 16 So. 3d 928 (1st DCA 2009) the appellate court

reversed the conviction and remanded because the Circuit Court had erred in

failing to conduct a hearing on her competence to proceed under Fla. R. Crim. P.

3.210. On remand, trial court was ordered to conduct hearing nunc pro tunc and

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declaring retroactively that Defendant/Petitioner was or was not competent at an

earlier time.

"Overturning a conviction...is not an unusual remedy for lack of a necessary

pretrial determination of competency to proceed or for a trial court's failure to

conduct a proper competency hearing."The Supreme Court of Florida has,

"..[R]emanded for a retrospective determination of a Defendant/Petitioner's

competence."

A wealth of United States Supreme Court cases attest to the fact that an

incompetent person can not be criminally prosecuted, to wit: Pate v. Robinson, 383

U. S. 375, 385 (1966) holding in part:

"[Although ... an indigent represented by court-appointed counsel, had

failed to demand a hearing as to his competency to stand trial, his counsel

contended throughout the trial that the respondent was insane both at the time of

the crime, .... relatives and a family friend testified in support of his being

insane,....respondent had been deprived of due process of law under the Fourteenth

Amendment, and finding that no hearing on mental capacity to stand trial had been

requested and that the evidence failed to raise sufficient doubt as to his competency

to require the trial court to conduct a hearing on its own motion. The Court of

Appeals for the Seventh Circuit held that the respondent was convicted in an

unduly hurried trial without a fair opportunity to obtain expert psychiatric

12

testimony and without sufficient development of the facts on the issue of his

competency to stand trial; and the Court of Appeals remanded the case to the

District Court with directions to hold a hearing as to whether the respondent had

been denied due process by the state court's failure to conduct a hearing upon his

competency to stand trial," Pate v. Robinson, supra. On certiorari, the United

States Supreme Court affirmed, except as to the Court of Appeals' direction that

the District Court hold a hearing involving the respondent's competency. The court

found that the respondent was constitutionally entitled to a hearing on the issue of

his competency to stand trial, but that since it was too late for the District Court to

conduct a meaningful hearing on that issue, the case would be remanded to the

District Court with directions that it order the respondent discharged after affording

the state an opportunity to try him again within a reasonable time.

And, Drope v. Missouri, 420 U. S. 162, 180 (1995) the court on certiorari,

reversed and remanded. In the unanimous view of the court, it was held in

pertinent part that:

(1) the defendant's due process right were violated by the trial court's

failure to ........ a psychiatric examination to determine the defendant's

competency to proceed....,

13

(2) the trial court's failure to inquire into the defendant's mental competency

left no basis for determining whether the defendant had effectively waived

his right and ,

(3) the defendant's due process rights could not be adequately protected by

merely remanding for a psychiatric examination aimed at establishing

whether the defendant was in fact competent at the time of the trial

approximately 6 1/2 years earlier, the state being free to retry the defendant

if he is competent at the time of such trial.

In determining whether an accused is incompetent to stand trial, the test is

whether the accused has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and whether he has a rational as well

as actual understanding of the proceedings against him.

In the case at hand there was substantial evidence of the accused's prior history

of irrational behavior, in support of the accused's "insanity" sufficiently to raise

issues of his incompetency to stand trial and entitles him as a matter of due process

to a hearing on such issue. The accused's demeanor at his colloquy with the trial

judge, clearly rose the question of his competency to plea. Despite that fact, the

judge's failure to sua sponte order a hearing on the issue of competency has

deprived Petitioner of his constitutional right to a fair trial process.

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Petitioner herein has never had a competency evaluation despite the

numerous "red flags" presented to trial counsel and the trial court.

CONCLUSION

This court has discretionary jurisdiction to review its decision in the above

styled cause and the court should exercise that jurisdiction to consider the merits of

Petitioners argument.

Defendant/Petitioner prays that this Honorable, Florida Supreme Court

accept jurisdiction and order the lower court to conduct a nunc pro tunc

competency determination after which, accept Petitioner's pro se filings any

meritorious colorable issue(s).

Respectfully submitted,Isl(Ža/

fendant/Petitioner, pro se

Graceville, CF

5168 Ezell RdGraceville, Fl 32440

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UNNOTARIZED OATH

I HEREBY CERTIFY, under the penalties of perjury and pursuant to

§92.525, Fla. Stat., and State v. Shearer, 628 So. 2d 1102 (Fla. 1993), that I have

read the foregoing document and that the facts stated in it are true and correct.

Executed this M day of , 2012.

Respectfullysubmitted,Is/ £µQ

Uefendant/Petitioner, pro seGraceville, CF5168 Ezell RdGraceville, F1 32440

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that I placed the foregoing document in the hands of

mailroom officials at Graceville C.F. for mailing by U.S. Mail to: on this

6 day of ,2012., to The State Attorney, The Clerk of the Court

and the Attorney General.

Provided to Graceville Correctional Facility on Respectfully submitted,7 - 426e " /2 .. .... . for mailing /s

efendant/Petitioner, pro seGraceville, CF

5168 Ezell RdGraceville, Fl 32440

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing complies with font requirements of

rule 9.210(a)(2) of the Fla. R. App. P.

Re ctfully submitted,

/s s /Ag,

fendant/Petitioner, pro se

Graceville, CF5168 Ezell RdGraceville, F1 32440

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IN THE DISTRICT COURT OF APPEALFIRST DISTRICT, STATE OF FLORIDA

JAMES RICHARDSON, NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D11-4924

STATE OF FLORIDA,

Appellee.

I

Opinion filed May 23, 2012.

An appeal from the Circuit Court for Escambia County.Michael G. Allen, Judge.

James Richardson, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant AttorneyGeneral, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

LEWIS, CLARK, and MARSTILLER, JJ., CONCUR.

DISTRICT COURT OF APPEAL, FIRST DISTRICT2000 Drayton Drive

Tallahassee, Florida 32399-0950Telephone No. (850)488-6151

July 03, 2012

CASE NO.: 1D11-4924L.T. No.: 2001 CF 005027-A

2001 CF 005028-A2002 CF 00155-a

James Richardson v. State of Florida

Appellant / Petitioner(s), Appellee / Respondent(s)

BY ORDER OF THE COURT:

Appellant's motion filed June 8, 2012, for rehearing, rehearing en banc and written opinion is denied.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order.

Served:

Hon.Pamela Jo Bondi, A.G. Giselle D.Lylen, A.A.G. James Richardson, Jr.

jm

J S. WHEELER, CLERK

eDISTRICT oOURT OF APPEAL

FIRST DISTRICTSTATE OF FLORIDA

301 a. MARTIN LUTHER KING, JR. BLVD.TALLAHASSEE, FLORIDA 32399-1850

JON S. WHEELER (850) 488-6151

cLERK OF THE cOURT

SO 20 2

Re: ÅQJoeb f. LL( SOAppeal No.: 1D þ) 1Trial Court No.: 200 / --Trial Court Judge:

KAREWROBERTS~~~CHIEF DEPUTY CLERK

Dear Mr. Hall:

Attached is a certified copy of the Notice invoking the Discretionary Jurisdiction of theSupreme Court, pursuant to Rule 9.120, Florida Rules of Appellate Procedure. Attached alsois this Court's opinion or decision relevant to this case.

The filing fee prescribed by Section 25.241(3), Florida Statutes, was received bythis court and is attached.

The filing fee prescribed by Section 25.241(3), Florida Statutes, was not receivedthis ööurt.

Petitioner/Appellant has previously been determined insolvent by the circuit courtor our court in the underlying case.

Petitioner/Appellant has already filed, and this court has granted,petitioner/appellant's motion to proceed without payment of costs in this case.

No filing fee was required in the underlying case in this court because it was:A summary Appeal, pursuant to Rule 9.141From the Unemployment Appeals ComrnissionA Habeas Corpus proceedingA Juvenile caseOther

if there are any questions regarding this matter, please do not hesitate to contact thisOffice.

Sincerely yours,

Jon S. WheelerClerk of the urt

B ·Deputy Clerk