Filing # 109911652 E-Filed 07/07/2020 11:43:27 PM

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR MARION COUNTY

THE STATE OF FLORIDA,

vs. CASE NO. 2019-CF-4193

NEIL JOSEPH GILLESPIE

__________________________________/

DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

Defendant NEIL JOSEPH GILLESPIE, a nonlawyer appearing pro se, here in the first

person, files Defendant’s Motion To Dismiss All Charges In Case No. 2019-CF-4193, and states:

1. On November 10, 2019, I was arrested and charged with two non-violent felony crimes,

and released on $4,000 bond.

Fla. Stat. sec. 934.03.1a Interception of Oral Communication; ($2,000 bond)

Fla. Stat. sec. 934.03.1c Disclosure of Communication ($2,000 bond)

2. My arrest was politically motivated, see

AFFIDAVIT OF NEIL J. GILLESPIE, Re: Marion Senior Services, Inc.

Filing # 109909167 E-Filed 07/07/2020 06:50:44 PM

3. At the time of my arrest on November 10, 2019 I was eligible for Recognizance Bond

based upon the following facts:

A. I had no criminal record.

B. I had a valid Florida driver’s license in good standing.
C. I lived at my Florida residential homestead property, 8092 SW 115th Loop, Ocala,
34481, Marion Co., Florida, continuously and uninterruptedly since February 5, 2005.
D. I was age 63 and suffering the infirmaries of aging, including type 2 diabetes.
E. My income was limited to Social Security disability payments.
F. I am educated, with undergraduate degrees in business and psychology.

4. On November 10, 2019 I refused to sign an application for criminal indigent status

presented to me at the Marion County Jail because it wrongly stated I was homeless, and it

wrongly stated “I am seeking the appointment of the public defender”. (Exhibit 1). I am not
DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

homeless. I have lived at the same address in Marion County since 2005. Also, I knew I had a

conflict with the Public Defender. I did not want the Public Defender to represent me.

5. Nonetheless, on December 16, 2019 the Public Defender filed a Notice of Appearance by

and through Kristina Belanger, FL Bar #1012137, Asst. Public Defender. On January 7, 2020 the

Public Defender/Ms. Belanger moved to withdrawal as counsel citing conflict. On January 13,

2020 Judge Tatti entered ORDER SUBSTITUTING COUNSEL (CONFLICT), that appointed

the Office of Criminal Counsel and Civil Regional Counsel for the 5th D.C.A. (“OCCCRC”) to

represent me, without following the safeguards established by 27.5303(1)(a).

6. During the pendency of this case, from my arrest on November 10, 2019 through today

July 7, 2020, a total of 7 months, 28 days (241 days), I have not completed and executed an

application for criminal indigent status under § 27.52 required for appointment of counsel. I was

not found indigent in this case under § 27.52. The appointment of the Public Defender and the

OCCCRC is without legal basis. The representation by counsel Zachary Glenn Phipps and the

OCCCRC has been a complete and utter abomination, see,

DEFENDANT’S MOTION TO DISQUALIFY AND REMOVE COUNSEL

ZACHARY GLENN PHIPPS AND THE OCCCRC FOR 5th D.C.A.
Filing # 109909167 E-Filed 07/07/2020 06:50:44 PM

7. In addition to bad appointed counsel in this case, I had to file a meritorious motion to

disqualify the trial judge in this case, see,

VERIFIED MOTION TO DISQUALIFY CIRCUIT JUDGE ANTHONY TATTI

This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)
Filing # 109217029 E-Filed 06/22/2020 03:28:46 PM

As of the time of this pleading Judge Tatti has not filed an order in response to my motion to

disqualify him as trial judge. (Note, my motion sought Judge Tatti’s disqualification in two

cases, 19-CF-4193 and 20-CF-2417). However Mr. Phipps advised me by email on June 24,

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DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

2020, "Judge Tatti has struck your Motion to Recuse in the 2019 case as you have Court

appointed Counsel, and therefore any motions in that case will have to filed by our office."

Notwithstanding § 27.40(9) that relates to the wrong appointment of Phipps, and provides,

27.40(9) Any interested person may advise the court of any circumstance affecting the
quality of representation, including, but not limited to, false or fraudulent billing,
misconduct, failure to meet continuing legal education requirements, solicitation to
receive compensation from the client the attorney is appointed to represent, or failure to
file appropriate motions in a timely manner.

8. The Sixth Amendment to the United States Constitution sets forth rights related to

criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The U.S.

Supreme Court has applied most of the protections of this amendment to the states through the

Due Process Clause of the Fourteenth Amendment. The text of Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.

The right to the Assistance of Counsel under the Sixth Amendment has been upheld by the U.S.

Supreme Court, see Gideon v. Wainwright, 372 U.S. 335, and Powell v. Alabama, 287 U.S. 45.

9. Fla. Stat. sec. 29.007(1) Court-appointed counsel (2019), provides.

For purposes of implementing s. 14, Art. V of the State Constitution, the elements of
court-appointed counsel to be provided from state revenues appropriated by general law
are as follows: (1) Private attorneys appointed by the court to handle cases where the
defendant is indigent and cannot be represented by the public defender or the office of
criminal conflict and civil regional counsel...This section applies in any situation in
which the court appoints counsel to protect a litigant’s due process rights...

10. A litigant has a right to conflict-free counsel. Whether counsel is retained or appointed,

the defendant has a right to counsel without a conflict of interest *. If an actual conflict of

interest is present, and that conflict results in any adverse effect on the representation, the result

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DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

is automatic reversal.[17] The general rule is that conflicts can be knowingly and intelligently

waived,[18] but some conflicts are unwaivable. [19] *Wheat v. United States, 486 U.S. 153

(1988), conflicts of interest, see http://en.wikipedia.org/wiki/Right_to_counsel

[17] Burger v. Kemp, 483 U.S. 776 (1987); Cuyler v. Sullivan, 446 U.S. 335 (1980);
Holloway v. Arkansas, 435 U.S. 475 (1978).
[18] See United States v. Curcio, 680 F.2d 881 (2d Cir. 1982).
[19] See, e.g., United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002); United States v.
Fulton, 5 F.3d 605 (2d Cir. 1993).

11. On March 11, 2020, Mr. Phipps waived speedy trial in this case. I now believe the waiver

of speedy trial is void or voidable because I have not completed and executed an application for

criminal indigent status under § 27.52 required for appointment of counsel. I was not found

indigent in this case under § 27.52. The appointment of the Public Defender and the OCCCRC is

without legal basis. I am concerned the counsel appointments are based on fraud upon the court.

“Fraud upon the court is an egregious offense against the integrity of the judicial system
and is more than a simple assertion of facts in a pleading which might later fail for lack
of proof.” Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012).

"In Florida what constitutes 'Fraud upon the Court'." This occurs when, "...a party has
sentiently set in motion some unconscionable scheme calculated to interfere with the
judicial system's ability impartially to adjudicate a matter by improperly influencing the
trier of fact or unfairly hampering the presentation of the opposing party's claim or
defense." Cox v. Burke, 706 So.2d 43, 46 (Fla. 5 th DCA 1998) (quoting Aoude v. Mobil
Oil Corp., 892 F.2d 1115, 1118 (1 st Cir. 1989).

12. Fla. R. Crim. P. 3.191 governs Speedy Trial, and provides in part,

(a) Speedy Trial without Demand. Except as otherwise provided by this rule, and subject
to the limitations imposed under subdivisions (e) and (f), every person charged with a
crime shall be brought to trial within 90 days of arrest if the crime charged is a
misdemeanor, or within 175 days of arrest if the crime charged is a felony. If trial is not
commenced within these time periods, the defendant shall be entitled to the appropriate
remedy as set forth in subdivision (p)...

13. As of today, 241 days have passed since I was arrested on November 10, 2019. The

Speedy Trial date of May 3, 2020, 175 days for a felony, is long past, 66 days late.

4
DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

ROLE OF THE STATE ATTORNEY

http://sao5.org/about-us-2.html

14. As set forth on the website of State Attorney for the Fifth Judicial Circuit of Florida,

“The State Attorney represents the people of the State of Florida in all criminal matters.
The State Attorney and appointed Assistant State Attorneys work with the law
enforcement agencies within the Fifth Circuit to investigate allegations of criminal
conduct, determine if there is sufficient evidence to bring charges, and determine what
charges are appropriate. The State Attorney then files those charges with the court and
presents the evidence to the court or a jury.”

“When citizens are victims of a crime, the State Attorney’s Office provides services to
them to assist the citizen as they go through the process of the prosecution of the case.
While the State Attorney’s Office does not represent individuals and cannot provide legal
advice to them, it is charged with the responsibility to see that the rights of victims are
protected, that they are advised of the various stages of the prosecution, and are given an
opportunity to have their opinion considered by the court in any sentencing.”

15. State Attorneys in Florida are governed by the Florida Statutes, Chapter 27, Part II.

Section 27.01 provides, State attorneys; number, election, terms.—There shall be a state
attorney for each of the judicial circuits, who shall be elected at the general election by
the qualified electors of their respective judicial circuits as other state officials are
elected, and who shall serve for a term of 4 years.

On information and belief, “shall be elected at the general election by the qualified electors of

their respective judicial circuits as other state officials are elected” is compromised in Florida by

and through practices reported by Ballotpedia: (Exhibit 2)

“Unopposed races and the practice of post-dating judicial resignations to block elections
highlighted questions about the role of democracy in Florida's circuit and county judicial
seats in the 2016 election cycle. Only the 60 opposed seats out of the total 252 seats up
for election on these courts saw a vote on August 30, 2016. All unopposed candidates
were automatically elected without ever appearing on a ballot or facing a public vote.”
https://ballotpedia.org/Florida_local_trial_court_judicial_elections,_2016

The State Attorney and the Public Defender also utilize unopposed races to block elections, as do

judges. The Fla. Const., Art. V, Sec. 10(b)(1) provides “The election of circuit judges shall be

preserved”; Art. VI, Sec. 1. Regulation of elections, provides, “All elections by the people shall

be by direct and secret vote”. However, it was brought to my attention that Judge Tatti was

5
DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

appointed March 25, 2011 by Governor Rick Scott to fill the vacancy created by the resignation

of Stephen Rushing. Although the term Judge Tatti was appointed to expired in December of

2012, he never faced a voter due to unopposed races to block elections.

CASE LAW AND THE STATE ATTORNEY

16. The state attorney acts as a one person grand jury in carrying out investigations into

noncapital criminal conduct, and the state attorney must be granted reasonable latitude in that

role,. West's F.S.A. § 27.04. State v. Gibson, 935 So. 2d 611 (Fla. Dist. Ct. App. 3d Dist. 2006)

17. Decision to charge and prosecute criminal offenses is an executive responsibility over

which the state attorney has complete discretion. West's F.S.A. § 27.04. State v. Gibson, 935 So.

2d 611 (Fla. Dist. Ct. App. 3d Dist. 2006).

18. State attorney, while being quasi judicial officer, also shares some attributes of

.executive; judicial attempt to interfere with decision of whether and how to 'prosecute violates

executive component of state attorney's office. Office of State Attorney for Eleventh Judicial

Circuit v. Polites, 904 So. 2d 527 (Fla. Dist. Ct. App. 3d Dist. 2005), reh'g denied, (June 22,

2005).

19. By the nature of their position, prosecutors direct the power of the' government against an

accused person, and thus, prosecutors must be ever mindful of their awesome power and

concomitant responsibility to reflect a scrupulous adherence to the highest standards of

professional conduct. The Florida Bar v. Cox, 794 So. 2d 1278, 26 Fla. L. Weekly

S331 (Fla. 2001).

20. Trial court interfered with prosecutorial discretion when it sua sponte dismissed petition

for delinquency after the arrest report had been read into the record but before state had entered

its case; judge exceeded his authority because only prosecutor had the authority to make

6
DEFENDANT’S MOTION TO DISMISS ALL CHARGES IN CASE NO. 2019-CF-4193

decisions relating to the allocation of prosecutorial resources. State v. D.W., 821 So. 2d 1179, 27

Fla. L. Weekly D1676 (Fla. Dist. Ct. App. 3d Dist. 2002).

21. State has a strong interest in gathering information relevant to an initial inquiry into

suspected criminal activity; a judicial limit to this discretion arises where constitutional

constraints are implicated. State v. Gibson,' 935 So.2d 611 (Fla. Dist. Ct. App. 3d Dist. 2006).

WHEREFORE, the bench and the bar are compromised in this case. As held in The

Florida Bar v. Cox, 794 So. 2d 1278, 26 Fla. L. Weekly S331 (Fla. 2001), “By the nature of their

position, prosecutors direct the power of the' government against an accused person, and thus,

prosecutors must be ever mindful of their awesome power and concomitant responsibility to

reflect a scrupulous adherence to the highest standards of professional conduct.” While this

motion to dismiss is not brought under Rule 3.191 Speedy Trial, 241 days have passed since my

arrest on November 10, 2019. Instead, this motion to dismiss rests on the Sixth Amendment to

the United States Constitution and rights related to criminal prosecutions, as applied by the U.S.

Supreme Court through the Due Process Clause of the Fourteenth Amendment.

RESPECTFULLY SUBMITTED July 7, 2020.

Neil J. Gillespie
8092 SW 115th Loop Tel. 352-854-7807
Ocala, FL 34481 Email: neilgillespie@mfi.net

CERTIFICATE OF SERVICE. I HEREBY CERTIFY that copy of the foregoing has been
furnished July 7, 2020 to Zachary Glenn Phipps, OCCCRC for 5th D.C.A., 307 NW 3rd St.,
Ocala, FL 34475-6638 at RCCMarion@rc5state.com, and the State Attorney’s Office, 110 North
West 1st Avenue, Suite 5000 (Eservicemarion@Sao5.Org), Ocala, FL 34475, by e-service July
7, 2020, and to all the names on the Portal Notice of Service of Court Documents.

Neil J. Gillespie, Defendant

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Florida local trial court judicial elections,

2016
Unopposed races and the practice of post-dating judicial
resignations to block elections highlighted questions about the
role of democracy in Florida's circuit and county judicial seats in
the 2016 election cycle. Only the 60 opposed seats out of the
total 252 seats up for election on these courts saw a vote on
August 30, 2016. All unopposed candidates were automatically
elected without ever appearing on a ballot or facing a public vote.
Three judges used advance notice of their resignations to serve
almost the entirety of their elected terms before leaving the 2016 Local Judicial
bench, which effectively blocked the election of their successors. Elections

HIGHLIGHTS
View judicial elections by state:
The state was sued by prospective candidate Steve
Select a state:
Pincket over the practice of canceling elections for judicial
offices due to post-dated judicial resignations that create
short vacancies in the offices. Select court type:

Florida voters rejected replacing contested judicial

elections with a merit selection alternative in 2000. Reset
Beyond elections canceled by vacancies, over three-
quarters of the seats up for election in 2016 were canceled
because only one candidate filed for a seat. Elections Information
Election dates • State judicial
Legal precedent required vacancies as short as one business elections
day in a judicial office to be filled by a gubernatorial appointment, Poll opening and closing times
no matter how far in advance the resignation is known Join and the Ballotpedia Team as
regardless of whether or not a scheduled election couldthey review the most important
be held
before the resignation would take effect. Judges who have aspects of the Supreme Court's 2
utilized this method have explicitly stated their intention2019-2020…
to prevent

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elections in favor of an appointed judiciary system. One potential judicial candidate, Steve Pincket, sued
the state over the matter, arguing that these methods usurped the will of the voters and the state's
constitution.
The low candidacy interest in these races and practice of post-dated resignations to force appointments
by sitting judges conflicted with voter resistance to ending the practice of contested elections. Voters
could have ended the practice of contested elections for county and circuit court judges in 2000, but all
of the counties and circuits voted to reject a switch to merit appointments with retention elections.

Issues Election analysis Circuit court County court Election rules Recent news

Democracy and the courts

HIGHLIGHTS
Steve Pincket challenged a precedent of canceling elections when vacancies as short as
one day occur.
The Florida Supreme Court rejected Pincket's petition, but a majority of the court voiced
opposition to the practice of post-dating resignations to avoid elections.
Voters rejected one alternative to contested elections for county and circuit court judges in
2000.
The Florida Constitution provides for regularly scheduled
elections of county and circuit court judges, which allow for
newcomers to file to join the courts, whether or not they are
elected automatically in an unopposed race. It also requires
vacancies in those offices to be filled by gubernatorial
appointments. Rulings from the state’s high court have
supported an interpretation of these provisions to use
gubernatorial appointments to prevent gaps of service in the
offices, even when those gaps are as short as one business
day.
Steve Pincket filed a petition for writ of mandamus with the
state’s supreme court on May 5, 2016. A writ of mandamus
seeks to compel a public officer to perform a duty required by
law. Pincket sought to convince the court in his filing that the law
required the election to be held. If accepted by the court, the
petition would have forced the secretary of state to hold an Steve Pincket sued the state of
election for a judicial post with a post-dated vacancy.[1] Florida over the secretary of state's
decision not to place a judicial seat
In his petition, Pincket argued that post-dated resignations were
on the ballot following a post-dated
being used to circumvent court precedent and the state
resignation in the office.
constitution that call for circuit court judges to be elected. The
high court, however, ruled against the claim. A mandamus can

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only be used to enforce rights already "clearly and certainly established in the law," and the supreme
court ruled that the law did not provide a basis to enforce Pincket's request. The court approved the use
of a gubernatorial appointment and accepted no motions for rehearing.[1][2]
Despite a unanimous vote by the court, four of the seven supreme court justices wrote or joined in
independent opinions that indicated sympathy to Pincket’s arguments. Following the rejection of his
mandamus claim, Pincket filed a complaint for declaratory and injunctive relief against the state in the
2nd Circuit Court.[3][4][5]

Pincket's argument

Judge Olin W. Shinholser (left) served in the Group 6 seat on the 10th Circuit Court until his resignation took
effect on December 26, 2016, a week before his term was set to end. While his resignation was announced in
April 2016, prior to the candidacy filing deadline for the seat's election, the state argued the vacancy must be
filled by gubernatorial appointment rather than election. Judge Scott M. Brownell (middle) of the 12th Circuit
Court Group 4 seat and Judge Joseph G. Will (right) of the 7th Circuit Court Group 8 seat also announced
post-dated resignations from their seats for the stated purpose of avoiding having their successor chosen by
election.

Pincket had hoped to succeed retiring Judge Olin W. Shinholser, serving in the Group 6 seat on the 10th
Circuit Court. Shinholser’s seat was set for election in 2016. In a letter dated April 1, 2016, Shinholser
notified Gov. Rick Scott (R) that he would resign from office on December 26, 2016, rather than serve
until his term's expiration on January 2, 2017. Shinholser explicitly stated his purpose in resigning early
rather than not seeking re-election in the 2016 cycle, saying in the letter:

It is my desire and request that my successor be appointed by you. While there are certainly
“ debateable points as to the pros and cons of succession by appointment verses election, it is
my belief based upon year of observation that the appointment process is superior to the
election process in the judicial context.[6]
”
—Judge Olin W. Shinholser (April 1, 2016)[1]

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If Shinholser had not sought re-election, the regular election for the Group 6 would have carried forward
according to plan. By post-dating his resignation to a week before his term was set to end, however,
Shinholser created a vacancy in the office. Pincket filed to run for the seat on May 4, 2016. He received
a letter from Florida Secretary of State’s Deputy Chief of Election Records Kristi Reid Bronson saying
that the secretary declined the filing because the seat required a gubernatorial appointment.[1]
Pincket stated in his petition to the supreme court, “Whether a judge can properly submit a resignation
in such a way as to avoid an election is not only a question of constitutional law but also a question of
judicial administration.” He further argued that the secretary of state did not have the legal authority to
cancel the 10th Circuit Court Group 6 election and that the secretary “had a ministerial duty to accept
[his] qualifying papers and place him on the ballot.”[1]
In the filing, Pincket noted Shinholser’s reason for resigning—to avoid having the seat filled by election.
He also noted two other seats in which similar reasoning was given by resigning judges: Judge Scott M.
Brownell of the 12th Circuit Court Group 4 seat and Judge Joseph G. Will of the 7th Circuit Court Group
8 seat. Both Brownell and Will announced post-dated resignations to take effect on December 28,
2016. According to Pincket’s petition, “In each of these cases, including this one, the resigning judge
expressly stated the purpose of resigning with an effective date so far off in the future was to ensure that
his successor would be selected by an appointment rather than an election.” Candidates did file for both
seats' elections and were refused in the same manner as Pincket: Elizabeth M. Boyle for the 12th
Circuit Court and Linda Gaustad for the 7th Circuit Court.[1]
Pincket argued the following in his petition:

There is no reason why the seat that will be vacated by Judge Shinholser should not be filled by
“ an election in accordance with this provision. It is true that a resignation before the qualifying
period would ordinarily require an appointment. But a resignation that is post-dated this far in
the future to a point of just a few days before the end of the term is really nothing more than a
decision not to seek election for another term.[6]
”
—Steve Pincket (May 5, 2016)[1]

Precedent from Spector v. Glisson prioritizes electoral process for judicial

offices when possible
Pincket referred to the precedent set in Spector v. Glisson, 305 So. 2d 777 (Fla. 1974). In that case, a
judge announced a post-dated resignation for the end of his term for the purpose of giving lawyers a
notice that he would not seek re-election and that the seat would be open in the upcoming election cycle.
Candidates who filed for the seat, however, were rejected on the basis that the resignation created a
vacancy that required an appointment, according to the secretary of state. The state supreme court,
however, rejected that argument and stated that an election was required. In the case, the court argued:

We feel that it necessarily follows from this consistent view and steadfast public policy of this
“ state as expressed above, that if the elective process is available, and if it is not expressly
precluded by the applicable language, it should be utilized to fill any available office by vote of
the people at the earliest date possible.[6]
”
—Florida Supreme Court (1974)[1]
The court also clarified that when a resignation is “clearly and unconditionally fixed” and an election is
scheduled to occur before it takes effect, the vacancy should be “filled by the intervening elective
machinery.”[1]

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Pincket argued in his petition that his case was essentially the same and that the 10th Circuit Court
vacancy created by Shinholser’s resignation could have been filed by the 2016 election cycle before it
took effect; “Judge Shinholser resigned before the start of the qualifying period. Therefore, any
candidate who is interested in running for his seat could easily qualify.”[1]
Anyone elected to succeed Shinholser would not take office until a week after his resignation, leaving a
one week vacancy in the office. Pincket addressed this point in his petition, pointing to an advisory
opinion issued after Spector vs. Glisson, which clarified that gubernatorial appointments were still
necessary to prevent “unreasonable vacancy” in a judicial office. Pincket argued that this precedent was
then applied in several other cases, but always to avoid a physical or actual vacancy in the office.[1]
Precedent from Trotti v. Detzner empowers judges to force appointment,
rather than election, of successors
The case of Trotti v. Detzner, 147 So. 3d 641 (Fla. 1st DCA 2014), however, extended the argument to
say that a physical vacancy of any length required a gubernatorial appointment and could not be
replaced by an election. In that case, a resignation was announced before the candidate filing period but
post-dated to take effect one business day before the end of the judge’s term. The Florida First District
Court of Appeal ruled that this one day physical vacancy required a gubernatorial appointment.[1]
Pincket argued that judges in the case of Trotti and his own were using post-dated resignations with a
“nominal physical vacancy" to avoid the rule in Spector. He pointed to the Trotti decision as flipping the
previous application of Spector:

We are no longer using a physical vacancy in the office as the reason to appoint a person to fill
“ a large gap in service, as was the case in all the post-Spector decisions. Now we are using it ”
as an excuse to justify the need for an appointment.[6]
—Steve Pincket (May 5, 2016)[1]
The refused candidate went on to critique the power to choose a successor the Trotti had given sitting
judges. Referring to the original case of Spector, he stated, “Justice Ervin’s noble gesture (to give notice
to all interested candidates that the seat will be open for an election) became a tool that can be used to
defeat the constitutional right of voters to choose their circuit judge in an election.”[1]
The maximum time period for the appointment process is 120 days. Pincket stated that Shinholser’s
resignation nine months in advance meant that if the governor appointed his replacement according to
the timeline “we will have a judge-in-waiting for a period of five months.”[1]

Supreme court rejects petition, but majority criticize practice

All seven of the state's supreme court justices rejected Pincket's mandamus claim
against the secretary of state, stating that he had not made the case that the Florida
existing law "clearly and certainly" established the right to the election that he Supreme
sought. The court's order upheld the secretary of state's decision to have the
vacancy filled by gubernatorial appointment and did not allow for motions for Court
rehearing.[2]
A majority of the court, however, made clear that the case raised concerns that
could not be addressed by a writ of mandamus. Justices Fred Lewis and Barbara
Pariente wrote separate opinions and Justices Peggy Quince and James E.C.
Perry concurred with Pariente's opinion.[2]

Court

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Pariente reluctantly upheld the precedent set by Trotti that requires vacancies of Information
even one day to be filled by appointment but criticized the court that formed that Justice s: 7
decision, saying it was not "faithful to the true purpose of the Florida Constitution
Founde d: 1845
and the voters' preference for election of their circuit and county court judges." She
voiced a similar critique to Pincket's and argued that, "The personal preferences of Location:
individual judges, however well-motivated their intentions, should not be the basis Salary
for determining whether a vacancy exists that can be filled by election or
Chief: $162,000
appointment."[2]
Associates:
Lewis expressed a similar view to Pariente and stated that if he "were writing on a $162,000
clean slate" he would defer to the ruling of Spector. He also highlighted that the
state's constitution allows for a vote of the citizens of each circuit court to change Judicial
the method of election from a contested election system to a merit selection and Selection
retention election system, but voters had previously rejected this option. "It
M e thod: Assisted
therefore defies both logic and common sense that an elected judge in the last
year of a term could unilaterally effect such a change by simply resigning before the appointment
statutory qualifying period with an effective date just days before the end of the Te rm: 6 years
term," Lewis stated in his opinion. He went on to say: Active justices
While I may even agree that the merit selection and retention of judges is C. Alan Lawson

“ far superior to the election of judges, the citizens of Florida clearly Carlos Muñiz
Charles Canady
disagree. Thus, it is truly a sad day for Floridians when their trial court
Jorge Labarga
judges may manipulate the electoral process and prioritize their personal
Ricky Polston
preferences over those espoused in the very Constitution they swore to
defend. In any event, such is the state of our law and this is a Court of law,
not one of personal preferences.[6]
”
—Justice Fred Lewis (June 3, 2016)[2]

Debating elected versus appointed judges

Pincket stated in his petition for writ of mandamus, “Whether a judicial vacancy should be filled an
appointment or by an election should be determined by an objective legal standard. It should not be left
to the discretion of the departing judge.” Additionally, he criticized Shinholser’s resignation stating,
“Whether the appointment process is superior to the elective process, as Judge Shinholser believes, is
simply not a matter for the departing judge to decide.”[1]
One alternative method of judicial selection was previously put
before voters. In 1998, a Amendment 7 modified the state's
constitution to allow each county and circuit to hold a vote on
Methods of judicial
switching to a method of merit selection and retention election. In
this system, judges would have been appointed to their initial term selection
on a court by the governor. After serving their first term, the judges
would be subject to a retention vote. In a retention election, voters
either approve of the judge staying in office for another term or
remove them from office. If removed, the seat is filled by a new
gubernatorial appointment, and the process begins anew.
After the amendment was approved, the votes were set for the
general election two years later on November 7, 2000. The
alternative selection system was defeated in all counties and all
circuits.
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The defeat of the alternative, however, did not necessarily indicate

satisfaction with the existing system. States across the country
utilize a range of judicial selection methods, including options
besides contested elections and retention elections. Additionally,
how to handle vacancies in any elected or appointed office vary
from state to state and office to office. In some states, certain
timelines in vacancy determine whether an appointment or election
process will be used to fill the office. Pincket suggested in his
petition for writ of mandamus, “If this Court [the state supreme Assisted appointment
court] were so inclined, it could prohibit judges from resigning Gubernatorial appointment
more than 120 days in the future,” in line with the appointment Legislative election
process timeline.[1] Partisan elections
With most races going unopposed, however, the question Nonpartisan elections
remained to what degree using an electoral process provided Retention election
voters with real choice. The system of canceling unopposed
elections meant voters did not have the option of casting write-in votes against unopposed candidates.

See also
Judicial elections, 2016
Florida judicial elections
Judicial selection in Florida

Footnotes
1. Steve Pincket, "Steve Pincket v. Ken Detzner, as Secretary of State of the State of Florida:
Petition for Writ of Mandamus to the Florida Supreme Court," May 5, 2016

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2. Florida Supreme Court, Steve Pincket v. Ken Detzner, as Secretary of State of the State of
Florida, June 3, 2016
3. Steve Pincket, "Steve Pincket v. Ken Detzner, as Secretary of State of the State of Florida:
Only the first few references on this page are shown above. Click to show more.

Florida courts

Federal courts:
Eleventh Circuit Court of Appeals • U.S. District Court: Middle District of Florida, Northern District of
Florida, Southern District of Florida • U.S. Bankruptcy Court: Middle District of Florida, Northern
District of Florida, Southern District of Florida
State courts:
Florida Supreme Court • Florida District Courts of Appeal • Florida Circuit Court • Florida County
Court
State resources:
Courts in Florida • Florida judicial elections • Judicial selection in Florida

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