IN THE DISTRICT COURT OF
OF THE STATE OF FLORIDA, IN AND
FOR THE FIFTH JUDICIAL DISTRICT
CASE NO.: 5D11-2588
MARK SCHMIDTER, and
STATE OF FLORIDA,
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:
FOR PURPOSE OF SUPPLEMENTING RECORD ON APPEAL
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.
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:
SUDBURY LAW, PL
424 E Central Blvd # 307
Orlando, FL 32801
P: (407) 395-4111
F: (407) 395-4023
By:/s/ ADAM H SUDBURY
COURT OF APPEAL OF FLORIDA
DISTRICT: FIFTH JUDICIAL DISTRICT
COUNTY: ON APPEAL FROM ORANGE COUNTY,
CASE STYLE: SCHMIDTER, et al. v. STATE
CASE NO.: 5D11-2588; 5D11-3036
DOCUMENT: MOTION TO
that a copy of the referenced document(s)
and of this certificate was furnished by E-MAIL to:
JULIAN P. HEICKLEN
Rachel Immenu #2, Jerusalem, Israel 93228
I CERTIFY that a copy of the referenced document(s)
and of this certificate was furnished by E-MAIL to:
ATTORNEY: WESLEY HEIDT,
OFFICE: Office of the Attorney General
ATTORNEY: KRISTEN DAVENPORT, ESQUIRE
OFFICE: Office of the Attorney
Fax: (386) 238-4997
SERVICE: Thursday, December 06, 2012
NO FACSIMILE NO MAIL
BY: /s/ ADAM H SUDBURY
ADAM H. SUDBURY
Florida Bar No. 783951