IN THE DISTRICT COURT OF APPEAL
OF THE STATE OF FLORIDA, IN AND
FOR THE FIFTH JUDICIAL DISTRICT

CASE NO.: 5D11-2588
 5D11-3036


MARK SCHMIDTER, and
JULIAN HEICKLEN,
Appellants,

v.

STATE OF FLORIDA,
Appellee.



MOTION TO RELINQUISH JURISDICTION
FOR PURPOSE OF SUPPLEMENTING RECORD ON APPEAL

COMES NOW the Appellant(s), MARK E. SCHMIDTER and JULIAN P. HEICKLEN, by and through the undersigned attorney, to move to relinquish jurisdiction to the trial court in order to supplement the record on appeal. As grounds therefor, the Appellants state:

1.    This Court heard oral argument on December 4, 2012.

2.    Appellee, in its answer brief, conceded that the Orange County Courthouse is a traditional public forum for purposes of First Amendment analysis, for the purposes of this case, which is an appeal of a criminal conviction and sentence of a term of imprisonment.

3.    The Appellant relied upon this concession not only in preparing for oral argument, but also in its litigation of this appeal. Throughout the history of this case, there has been no dispute between the parties that the Orange County Courthouse outside grounds and plaza, excluding the interior of the buildings (“Courthouse”) is a traditional public forum.

4.    Based upon common factual knowledge of the activities that regularly occur and have occurred at the Courthouse, there was and should be no meaningful dispute as to whether or not the Courthouse complex grounds is a traditional public forum.

5.    Approximately two minutes before the beginning of oral argument, opposing counsel informed Appellants’ counsel that she would be arguing that despite their concession in their answer brief, that she believed the concession to be in error and would ask the Court not to accept said concession.

6.    The Appellants were seriously disadvantaged by this especially considering there was no Notice of Supplemental Authority filed by Appellee prior to the oral argument.

7.    In addition, based upon questions and comments from the bench at oral argument, it appears that the issue of whether or not the Courthouse grounds is a traditional public forum is a serious concern to the Court.

8.  As a matter of decisional precedent, it is important for this Court to make a correct legal determination as to whether or not the Courthouse grounds is a public forum.

9.   There is record evidence that supports the position that the Courthouse is a traditional public forum. However, in the interest of justice the litigants should be permitted to present this Court with a complete factual record upon which to base its analysis and decision.

10.     Considering that the State previously conceded this point and it was not in contention either in the trial court or on appeal, the Appellants should be afforded an opportunity to properly present the issue to the Court for determination. The question is collateral to the issue of contempt and the criminal convictions therefor, and as such there could be no reasonable

11. The State should be held to the same standard as other litigants when it comes to raising issues for the first time on appeal. Reversing a critical concession at oral argument is tantamount to raising an issue for the first time on appeal.

12. Whether or not a property is a traditional public forum is highly fact-specific and requires an analysis which evaluates and balances the questions of “whether the forum has been traditionally made available for speech, whether the primary purpose of the forum is for expressive activity, and finally, the extent to which speech is incompatible with the usual functioning of the forum.” Comfort v. MacLaughlin, 473 F. Supp. 2d 1026 (C.D. Cal. 2006) citing United States v. Kokinda, 497 U.S. 720 (1990). The Appellants believe that this analysis strongly favors a determination that the Courthouse complex is a traditional public forum.

13. As an issue with far-reaching implications, the Court should have the fullest availability of record evidence with which to make a determination of this issue. Accordingly, the Appellants request the opportunity to develop a record on the question before the Court and to supplemental the record on appeal therewith.

14. The Appellants request that the Court relinquish jurisdiction to the trial court for this purpose for a period of 90 days to develop a factual record on and to file a supplemental record with the clerk.

    WHEREFORE, the undersigned respectfully requests that the Court grant the foregoing motion, relinquish jurisdiction for 90 days for the purpose of developing a supplemental record on the issue described above, and permit the filing of a supplemental record within 120 days.

CERTIFICATE OF GOOD FAITH

        I CERTIFY that the undersigned has conferred with counsel for the opposing party and represents that s/he: OBJECTS to the Court granting the relief requested herein.

Dated: December 6, 2012
E-Mail Service Addresses:
Primary: inbox@sudburylaw.net
Secondary: adam@sudburylaw.net

SUDBURY LAW, PL
424 E Central Blvd # 307
Orlando, FL 32801
P: (407) 395-4111
 F: (407) 395-4023
 By:/s/ ADAM H SUDBURY

CERTIFICATE OF SERVICE

COURT:     DISTRICT COURT OF APPEAL OF FLORIDA
DISTRICT: FIFTH JUDICIAL DISTRICT
COUNTY:  ON APPEAL FROM ORANGE COUNTY, FLORIDA

CASE STYLE:
SCHMIDTER, et al. v. STATE
CASE NO.:      5D11-2588; 5D11-3036
DOCUMENT: MOTION TO RELINQUISH JURISDICTION

        I CERTIFY that a copy of the referenced document(s)
and of this certificate was furnished by E-MAIL to:

PARTY:     JULIAN P. HEICKLEN
E-Mail:     jph13@psu.edu
Mail:
        36 Rachel Immenu #2, Jerusalem, Israel 93228
Fax:         N/A


 I CERTIFY that a copy of the referenced document(s) and of this certificate was furnished by E-MAIL to:

ATTORNEY: WESLEY HEIDT, ESQUIRE
OFFICE: Office of the Attorney General
Primary: CrimAppDAB@MyFloridaLegal.com
Secondary: Wesley.Heidt@MyFloridaLegal.com
Fax: (386) 238-4997

ATTORNEY:
KRISTEN DAVENPORT, ESQUIRE
OFFICE: Office of the Attorney General
Primary: crimappdab@myfloridalegal.com
Secondary:
Fax:
(386) 238-4997
DATE OF
SERVICE:
Thursday, December 06, 2012

METHOD:     YES E-MAIL        NO FACSIMILE        NO MAIL

BY: /s/ ADAM H SUDBURY


ADAM H. SUDBURY
 Florida Bar No. 783951
adam@sudburylaw.net