IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,

IN AND FOR MIAMI-DADE COUNTY FLORIDA

CARLOS MILLER, pro se

CASE NO. 08-326 AC

L.T. Case No. M0710544
Appellant/Petitioner,

v.

STATE OF FLORIDA,

Appellee/Respondent.
_________________________/

_____________________________________________________________

APPELLANT’S REPLY BRIEF

_____________________________________________________________
 Table to Contents
Page

Table of Contents ii
Table of Citations iii, ii
Summary of the Argument 1-2
Argument 3-15

I. POLICE WERE NOT ACTING IN THE LAWFUL

EXECUTION OF A LEGAL DUTY 3-6
II. THE STATE’S INTRODUCTION OF THE BLOG
CREATED AFTER THE ALLEGED INCIDENT WAS
IMPROPER EVIDENCE OF BIAS AND MOTIVE 6-10
WHOSE SOLE PURPOSE WAS TO INFLAME AND
UNFAIRLY PREJUDICE THE JURY.
10-12
III. THE TRIAL COURT SENTENCE VIOLATED THE DUE
PROCESS RIGHTS OF THE DEFENDANT.
IV. APPELLANT HAS PROVIDED THE RELEVANT AND 12-15
ADEQUATE PORTIONS OF RECORD TO SUPPORT
HIS ARGUMENTS.

Conclusion 15

Certificate of Service 16

Certificate of Font Size and Type 17

  ii
 Table to Citations Page

6 
B.L.M. v. State, App. 5 Dist., 684 So.2d 893 (1998)
 

Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984) 12 
 
In Interest of T.M.M., App. 4 Dist., 560 So.2d 80 (1990) 6 
 
J.G.D. v. State, App. 3 Dist., 724 So.2d 711(1999)
6 
5 
Jay v. State, App. 4 Dist., 731 So. 2nd 774 (1999)
 

Lee v. State, App. 3 Dist., 368 So.2d 395 (1979) 6 

 
Lee v. State, App. 3 Dist., 422 So.2d 928 (1982) 9 
 
Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999)
12 
 
Melton v. State, 949 So. 2d 994 at 1015 (Fla. 2006)
10 

Perper v. Edell, 44 So.2d 78 (1949) 9 

 
Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986) 12 
 
Ritter v. State, 885 So. 2d 413 (Fla. 2004) 12 
 
Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997)
10 
Wilson v. State, App. 2 Dist., 707 So.2d 893 (1998) 6 

  iii
Other Authorities Page

6 
§843.02, Florida Statute
 

12 
§924.06, Florida Statute
 

Florida Jur 2d Appellate Review, §101. 12 

 
Florida Jur 2d Appellate Review, §179 12‐13 
 
Florida Rule of Appellate Procedure 9.200
13, 15 

  iv
 SUMMARY OF ARGUMENT

The Trial Court’s conviction of resisting an officer without violence

needs to be overturned because police were not acting in the lawful

execution of a legal duty when they arrested Appellant.

The five officers had already concluded their investigation into the

traffic accident, which is why all five officers were able to walk away from

the scene and approach the lone photographer, the Appellant, who was

standing inside a barricaded construction zone where traffic was not

allowed.

Although the State acknowledges that police escorted Appellant to the

sidewalk on the other side of the street, the State contradicts itself in its

answer brief by placing the Appellant back on the street, which is the only

way to justify the arrest.

But after the Appellant was escorted across the street, he was lawfully

standing on a public sidewalk, neither endangering himself nor anybody

else, and was arrested only because he exercised his First Amendment right

to photograph the officers.

The State also introduced improper character evidence that was

legally unreliable and had absolutely no relevancy to the case on trial.

  1
 Using evidence that came into existence after the arrest and in one

case, more than a year after the arrest, the State attempted to prove

predisposed bias and motive that lead to the arrest, which is an impossibility.

In the process, the State used the words “Nazi” and “Gestapo”, which

inflamed the jury to the point where they convicted the Appellant of

resisting without violence while acquitting him of refusing a lawful

command and disorderly conduct, making it a true inconsistent verdict.

Ultimately, the State failed to prove how the evidence’s probative

value substantially outweighed its unfair prejudice on the Defendant.

The Trial Court also committed fundamental reversible error by issuing

an illegal sentence based on the Appellant’s maintenance of innocence

throughout the trial, which is constitutionally impermissible and a violation

of the Appellant’s due process rights, which is why this argument is

appealable despite the fact that failed to preserve the record in the lower

tribunal.

And finally, the Appellant has provided the relevant and adequate

portions of the transcript that must necessarily be considered to prove that

prejudicial error was actually committed.

  2
 ARGUMENT

I. POLICE WERE NOT ACTING IN THE LAWFUL

EXECUTION OF A LEGAL DUTY
The State continues to assert that the Appellant was standing in the

middle of the street when he was arrested even though police officer

testimony confirmed that he had been escorted to the sidewalk before he

was arrested. [A. 3, page 5, line 14]

In fact, the State contradicts itself in its argument by confirming that

the Appellant was escorted to the sidewalk but then somehow was arrested

on the roadway. In its answer brief, the State wrote:

As a result of the Appellant’s actions, Miami Police

officials were forced to diver their attention from the bus
accident and attend to the Appellant, ultimately
escorting him to a sidewalk in direct vicinity of the
accident.

The State then followed this sentence up with:

Following the Appellant’s multiple refusals to obey

commands to step out of the roadway, an initial attempt
to arrest was made. However, the Appellant continued to
disregard police authority by physically resisting the
arrest. Ultimately, the officers were able to subdue the
Appellant and effectuate arrest.

  3
 The State’s contradiction mirrors the contradiction on the initial arrest

report when police wrote that they first spotted Appellant in the middle of

the street, yet later escorted Appellant to the middle of the street, a detail

that two police officers admitted was a mistake through testimony. [A.1,

page 41, lines 16-18] [A.6, page 5, line 16]

These contradictions are noteworthy because the only way the State

(and police) can justify the arrest is to place the Appellant in the middle of

the street and claim he refused to leave when ordered to do so.

Further contradicting this allegation are the photos that the Appellant

snapped in the seconds before he was arrested which shows the street

behind the officers, making it a physical impossibility for him to have been

standing in the middle street taking photos when he was arrested. [A.13]

[A.14]

The truth is, the Appellant was never standing in the middle of the

street but in the construction zone on the west side of the street, which was

blocked by barricades from incoming traffic. 

The truth is, police escorted the Appellant from the construction zone

on the west side of Biscayne Blvd to the sidewalk on the east side of

Biscayne Blvd.

  4
 The truth is, police had already concluded their accident investigation,

which is why all five officers were able confront the Appellant after he

took photos of the officers. [A.1, page 13, line 14-16]

The truth is, police arrested the Appellant on the east sidewalk after

they escorted and released him because he continued to snap photos while

they were ordering him to leave an area where he was lawfully standing.

The truth is, police did not have probable cause to arrest Appellant.

The truth is, police were not acting in the lawful execution of a legal

duty, nulling the legal requirements for a resisting an officer without

violence conviction.

According to Jay v. State, App. 4 Dist., 731 So. 2nd 774 (1999), the law

distinguishes between a “police officer in the lawful execution of any legal

duty and a police officer who is merely on the job.”

In the instant case, the officers were merely on the job, having

concluded an investigation before getting annoyed at a journalist who was

taking their photos in public.

  5
 As pointed out by the State, a police officer must be engaged in a

lawful execution of a legal duty in order to convict a person of resisting an

officer without violence, (F.S. 843.02).

Otherwise, a person is entitled to resist arrest without violence, as

settled in B.L.M. v. State, App. 5 Dist., 684 So.2d 893 (1998).

This fact is confirmed by a multitude of other cases, including J.G.D. v.

State, App. 3 Dist., 724 So.2d 711(1999); Wilson v. State, App. 2 Dist.,

707 So.2d 893 (1998); and T.M.M., App. 4 Dist., 560 So.2d 80 (1990).

But considering that the Appellant was acquitted of refusing a lawful

order and disorderly conduct, the most relevant case is Lee v. State, App. 3

Dist., 368 So.2d 395 (1979), which states the following:

Where prosecution did not prove the legality of the arrest

which defendant resisted, an essential element of the
crime of resisting an officer without violence was not
established and the omission required reversal of
defendant’s conviction.

II. THE STATE’S INTRODUCTION OF THE BLOG WHICH 
WAS CREATED AFTER THE ALLEGED INCIDENT WAS 
IMPROPER EVIDENCE OF BIAS AND MOTIVE WHOSE 
SOLE PURPOSE WAS TO INFLAME AND UNFAIRLY 
PREJUDICE THE JURY 
 
While  the  court  is  given  broad  discretion  in  the  use  of 

evidence  to  show  bias  or  motive,  it  was  inadmissible  in  the 

  6
 instant  case  because  the  State  was  depending  on  evidence 

that occurred after the Appellant was arrested. 

The State would like the Court to believe that the Appellant purposely

got himself arrested in order to launch a successful website

(www.carlosmiller.com) and produce a Hollywood blockbuster film, which

would enable him to cash in on all the “pecuniary gain or notoriety” that

comes with such an arrest. [Appellee’s brief, page 11]

The State would also like the Court to believe that the Appellant

harbors such deep resentment against police officers, that he would risk

vehicular homicide by standing in the middle of a busy street to take photos

of police in defiance of their commands.

But the State has been unable to proof that the Appellant had

premeditated his arrest in order to pursue the above projects.

The truth is, the Appellant did not launch his blog until April 28th,

2007, more than two months after his arrest. And he only did so because

there had been a plethora of misinformation about his arrest on the internet

through blogs and news articles.

The Appellant wanted to do what any journalist would do in that

position. Set the record straight through his writing. He also planned to

  7
 document his trial, but his trial dates were continually delayed for a variety

of different reasons.

During this time, he began documenting allegations of police abuse

against journalists and photographers throughout the country because his

own arrest had put him on the forefront of what he perceived were an

onslaught of First Amendment violations running rampant.

In the incident introduced by the State that resulted in improper

character evidence, a group of Los Angeles police officers were caught on

video bashing the legs of Mexican children with nightsticks as well as

trampling over news videographers.

In only two articles in the entire blog, the Appellant used the words

“Gestapo” and “Nazis” as metaphors to describe what he believed were

serious civil rights violations conducted by the LAPD.

As it turned out, the City of Los Angeles ended up paying more than

$13 million in settlements as a result of these incidents. [A.17, A. 18]

The State also mentioned an article that the Appellant posted on June

5th, 2008 – more than 15 months after his arrest - where he stated that he

was working on a documentary film about photographers getting their civil

rights violated. [Appellee’s brief, page 11] It is perverse for the State to

  8
 argue that there is a scintilla of relevance in this evidence to show a motive

for resisting arrest. Moreover, the State has not shown how this evidence’s

probative value substantially outweighs its unfair prejudice on the

Defendant.

According to Lee v. State, App. 3 Dist., 422 So.2d 928 (1982):

Evidence of bias may be inadmissible when it creates a

danger of unfair prejudice, confusion of the issues,
misleading of the jury or results in needless
presentation of cumulative evidence and, for example,
should the trial court find the form of a proffered
questions is designed to elicit bias which may be too
remote in time from the incident in question, he may
properly conclude that the probative value of an answer
thereto might be outweighed by the tendency of the
answer to confuse the issues or mislead the jury.

In the instance case, the evidence did not even come into existence until

after the arrest, which makes it impossible for it to have been a motive for

the Appellant to get himself arrested or to prove that he harbored bias

against police officers at the time of his arrest. It is a pure impossibility.

It did nothing but mislead, inflame and confuse the jurors to the point

where they convicted the Appellant for resisting without violence, despite

acquitting him of refusing a lawful order and disorderly conduct.

As stated in Perper v. Edell, 44 So.2d 78 (1949):

  9
 If the introduction of certain evidence tends in actual
operation to produce a confusion in the minds of the
jurors in excess of legitimate probative effect of such
evidence and tends to obscure rather than illuminate the
true issue before the jury, such evidence should be
excluded.

III. THE TRIAL COURT SENTENCE VIOLATED THE

DUE PROCESS RIGHTS OF THE DEFENDANT

The State argues that the Appellant’s sentence must stand because he

failed to object during the trial, therefore failing to preserve the record.

The State also argues that even if the Appellant had preserved the

record, he would not have a valid argument because the Trial Court’s

sentence fell within the legal guidelines.

However, when the Trial Court handed down a harsher sentence than

sought by the State, basing it on the Appellant’s “lack of remorse”, the

Trial Court committed fundamental REVERSIBLE error by issuing an

illegal sentence, meaning the Appellant had every right to appeal the issue

despite him failing to object to it during the trial.

The State argues that the Trial Court’s mention of Appellant’s “lack of

remorse” was merely a passing reference, basing this argument on two

cited cases; Melton v. State, 949 So. 2d 994 at 1015 (Fla. 2006) and

Shellito v. State, 701 So. 2d 837, 842 (Fla. 1997).

  10
 But in the former case, the lack of remorse reference was made during

the Trial Court, not during the sentencing, which is why the Appellate

Court affirmed the conviction.

And in the latter case, the mention of lack of remorse came from the

prosecutor, not the judge, meaning it really had no bearing on the actual

sentence.

However, in the instant case, the judge not only stated he was

“shocked” at Appellant’s “lack of remorse” during the sentencing phase of

the trial, he stated those words immediately before sentencing the

Appellant, as demonstrated below:

I’m shocked at your lack of remorse.

The jury, having found you guilty, I’m adjudicating you
guilty, imposing a $250 fine plus court costs and
surcharges. I’m placing you on one year reporting
probation; special condition, anger course; special
condition, 100 hours of community service at a rate of
ten hours, minimum, per month, and all conditions to be
completed within ten months of today.
The fact that the Trial Court based its sentence on the Appellant’s

maintenance of innocence was constitutionally impermissible and a

violation of the Appellant’s due process rights.

  11
 This is confirmed by numerous court rulings and case law, including

Ritter v. State, 885 So. 2d 413 (Fla. 2004); Lyons v. State, 730 So. 2d 833

(Fla. 4th DCA 1999); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986);

and Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984).

Furthermore, the fact the Appellant’s due process rights were violated

constitutes fundamental error as well as illegal sentencing, which are

appealable without having to preserve the record, according to F.S. 924.06

and Section 101 of the Florida Jur 2d Appellate Review.

IV. APPELLANT HAS PROVIDED THE RELEVANT AND

ADEQUATE PORTIONS OF RECORD TO SUPPORT
HIS ARGUMENTS.

The State argues that the Appellant has failed to provide an adequate

record of the testimony and findings rendered during trial.

However, the Appellant provided the necessary and relevant portions of

the transcript to support his three arguments, including seven excerpts

totaling more than 100 pages.

Thus, he has provided the “adequate record” which is all that is asked

for. See Section 179. Florida Jur2d Appellate Review.

  12
 Nowhere in the Rules of Appellate Procedure is it required that the

Appellant must provide the entire transcript of the trial. The law

specifically states that the Appellant is required to provide only the

adequate portions of the transcript or “every phase of the trial proceedings

that must necessarily be considered in order that it may be determined

whether prejudicial error was actually committed. ” Id.

And while the State cites Florida Rule of Appellate Procedure 9.200 to

support its argument, it fails to point out that the first section of the rule

specifically states the following:

“Except as otherwise designated by the parties, the

record shall consist of the original documents, exhibits, and
transcripts of proceedings, if any, filed in the lower
tribunal, except summonses, praecipes, subpoenas, returns,
notices of hearing or of taking deposition, depositions,
other discovery, and physical evidence.”

The key phrase here is “if any” because in the instant case, there was no

transcript filed in the Lower Tribunal

When the Appellant inquired where he could get a copy of the

transcript, he was directed to a private court reporting company called

Absolute Video, 168 SE 1st St., # 707, Miami, FL 33131. Because it was a

  13
 two-day trial, the Appellant was told it would cost $3,000 to get the entire

trial transcribed.

Therefore, when faced with a $3,000 fee to transcribe the entire trial,

the Appellant instead purchased a $25 audio CD of the trial and spent

several days listening for the relevant and adequate portions that pertained

to his arguments, which he then ordered transcribed to include in the record

of appeal.

Furthermore, the State filed for two 45-day motions for extension since

the Appellant filed the initial brief, meaning it had more than three months

to either come up with the entire transcript if it so desired or at least advise

the Appellant to do so.

But the State would not even notify the Appellant when it was filing

these motions for extension, which goes against proper procedure,

justifying these refusals by pointing out that the Appellant is pro se.

However, if the court believes the submitted transcript is inadequate to

prove that prejudicial error was committed, then the Appellant respectfully

requests that the lower tribunal be ordered to transcribe the trial.

  14
 But if that is not possible, then the Appellant requests that he be given

the opportunity to come up with the transcript under Fla. R. App. P. 9.200

(f) (2), which states the following:

If the court finds the record is incomplete, it shall direct

a party to supply the omitted parts of the record. No
proceeding shall be determined, because of an
incomplete record, until an opportunity to supplement the
record has been given.

This rule was enacted to prevent the State from using a legal

technicality to affirm a conviction against a pro se appellant instead of an

actual legal argument based on the merits of the case, according to Fla. R.

App. P. 9.200 (Committee Note, 1977 Amendment).

We believe that strict compliance with the rule is

particularly important in cases such as this, where a pro
se litigant is not likely to be familiar with the intricacies
of appellate practice.

CONCLUSION

The Appellant respectfully requests this court overturn the conviction

and enter a directed verdict in favor of the defendant as a matter of law

towards his resisting an officer without violence charge.

Alternatively, appellant seeks that the conviction for resisting without

violence be overturned and that he be given a new trial on the charge.

  15