36 Rachel Immenu #2
 Jerusalem, Israel 93228
 jph13@psu.edu

November 5, 2012

Clerk of Court
Fifth District Court of Appeal
300 South Beach Street
Daytona Beach, FL 32114
Telephone: (386) 255-8600
FAX (386) 947-1562

Heicklen and Schmidter v. State of Florida
Appellate Case # 5D113036

Re: Ninth Judicial Circuit Court of FL,
 in and for Orange and Osceola Counties

Case # 48–2011–CF–8856–O


Dear Clerk:

    As Counsel Pro Se, Appellant Julian Heicklen is now resubmitting his APPEAL OF APPELLANT of May 21, 3012, which you refused to accept when it was submitted on that date in violation of Amendment VI of the U. S. Constitution and Article I, Sec. 16(a) of the Florida Constitution.  You also have the submissions of Adam Sudbury when he was acting as both Appellants’ counsel.    Appellant Heicklen notes that the sole Appellee has two attorneys, but you wish to deny the same to two Appellants.

There are two legal issues involved here:


Time and place of the distribution of literature.
Can a judge legally prevent distribution by court order on courthouse grounds?

    The content of the distributed material is not an issue, because it is protected by Amendment I of the U. S. Constitution and Article I, Section 4 of the Florida Constitution.  Furthermore Chief Judge Belvin Perry, Jr. agrees, since he permitted distribution in the “free speech zones.”

    The time and place issue is discussed in both Mr. Sudbury’s (Mark Schmidter’s counsel) and Appellant Heicklen’s submissions.  The most recent thorough discussion is that issued by U. S. District Judge Kimba Wood in her 27 page OPINION AND ORDER when she dismissed the U. S. government case # 10 CR 1154 (KMW) against Appellant Heicklen for jury tampering.  She made it plain and clear that pamphlet distribution on courthouse plazas and all courthouse grounds outside the courthouse building are free speech zones and a Constitutionally protected right. The Opinion and Dismissal Order, U. S. v. Julian Heicklen 10 CR 1154 (KMW) can be found at: http://constitution.org/jury/pj/10-cr-01154-KMW_order.pdf

    Prohibition of pamphlet distribution by court order is discussed in U. S. Court decisions as mentioned in the resubmitted APPEAL OF APPELLANT.  Judge Perry claims that his order is legal based on Title 40 U.S.C. 13k.  However in U. S. v. Grace, 461 U. S. 171, 177–178 (1983), the U. S. Supreme Court ruled that statute unconstitutional, because it violates Amendment I.  According to the decision, the time place, and manner restrictions must be made by statute or by regulations issued pursuant to 40 U. S. C. 13l, not by court order.

    To further justify his position that courthouses and their surroundings grounds cannot be used for expressive activities, Judge Perry refers to Huminski v. Corsones, 396 F. 3d 53 (2d Cir. 2005).  However both the district and appellate courts upheld Huminski’s right to expressive activities, but the appeals court overturned the decision of the district court and ruled in favor of Corsones, because she had judicial immunity.

    It is interesting that Judge Perry cited two court cases and misunderstood, or lied about, both of them.  Is this the standard for Chief Judges in Florida?

    In addition to the legal arguments, Appellant was denied his Constitutional  right to a jury trial, even though he was tried for a criminal offense, and made 3 such requests to the judge from the Orange County jail prior to the bench trial.  A jury trial is mandatory according to Amendment VI of the U. S. Constitution and Article I, Sections 16 and 22 of the Florida State Constitution.

    Appellant was held in jail for 22 days without bail being set.  He did not receive legal counsel until after the trial.  On the day of entry to jail his legal documents were confiscated and destroyed by the prison guards. Also he was  denied access to the law library during his entire stay.  At the bench trial, Judge Perry was the judge and prosecutor, even though he was the injured party.

    Appellant Heicklen looks forward to receiving all correspondence between the court and the attorneys for the State of Florida.  He intends to send a written reply to their RESPONSE and correspondence.  

    Thank you for your understanding and the requested information before November 20, 2012.

Sincerely yours,

_________________
Julian Heicklen
Appellant
Counsel Pro Se

Encl: Original Appeal document, Certificate of Service

CC via E-mail to:
JOHN EDWIN FISHER, Counsel for the State of Florida
JAMIE BILLOTTE MOSES, Counsel for the State of Florida
Adam Sudbury, Counsel for Appellant Schmidter
Mark Schmidter, Appellant

CERTIFICATE OF SERVICE

    Appellant Julian Heicklen certifies that copies of the letter of November 5, 2012, and APPEAL OF APPELLANT for:

Heicklen and Schmidter v. State of Florida
Appellate Case # 5D113036

Re: Ninth Judicial Circuit Court of FL,
 in and for Orange and Osceola Counties

Case # 48–2011–CF–8856–O


have been sent by E-mail to the following:

JOHN EDWIN FISHER, ESQUIRE Fisher Rushmer, P.A.
jfisher@fisherlawfirm.com


JAMIE BILLOTTE MOSES, ESQUIRE Fisher Rushmer, P.A.
jmoses@fisherlawfirm.com

Adam Sudbury
Adam.Sudbury@SudburyLaw.net

Mark Schmidter
mschmidter@gmail.com

________________
Julian Heicklen
Appellant
Counsel Pro Se

November 5, 2012
Date