Filing # 174035595 E-Filed 05/25/2023 11:48:05 PM

IN THE DISTRICT COURT OF APPEAL

FIFTH DISTRICT OF FLORIDA

NEIL JOSEPH GILLESPIE

Petitioner, pro se,

v. CASE NO. 5D23-0814

LT NO. 2022-CF-1143
STATE OF FLORIDA 2021-CF-286
Respondent. 2019-CF-4193

PETITION FOR WRIT OF PROHIBITION

Date: May 25, 2023

NEIL JOSEPH GILLESPIE

Petitioner, pro se
2801 SW College Rd., STE 3
Ocala, FL 34474
Tel. 352-239-9037
Email: [email protected]

1
 The Petitioner pro se Neil Joseph Gillespie, pursuant to Florida Rules

of Appellate Procedure 9.100(e) and 9.030(b)(3), files this Petition for Writ

of Prohibition disqualifying the trial court judge, for an order remanding the

cases for reassignment to another judge, and in support would state:

TABLE OF CONTENTS

Section I 2 Jurisdiction of the Court

Section II 2 The undisputed facts on which the petitioner relies

Section III 8 The nature of the relief sought

Section IV 9 Argument in support of the petition and appropriate

citations of authority.

Section I Jurisdiction of the Court

This Court has jurisdiction to review a trial judge’s refusal to disqualify

himself. See Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (if a basis for

disqualification has been established "prohibition is both an appropriate

and necessary remedy"); Hill v. Feder, 564 So. 2d 609, 609 (Fla. 3d DCA

1990) (same); see also Fla. R. App. P. 9.030(3) (district courts of appeal

may issue writs of prohibition).

Section II The undisputed facts on which the petitioner relies

On January 3, 2023, the Petitioner served a motion to disqualify

Circuit Judge Peter M. Brigham ("Judge Brigham") who is the trial judge in

2
the Petitioner's criminal cases, nos. 2019-CF-4193, 2021-CF-0286 and

2022-CF-1143. (Appendix)

The Petitioner's motion to disqualify states in relevant part:

1. I hereby move to disqualify Judge Peter Brigham (Judge Brigham)

as judge in the above captioned cases under Fla. R. Jud. Admin.
2.330, Canon 3E(1) Code of Judicial Conduct for the State of Florida,
Fla. Stat. § 38.10, and State ex rel. Davis v. Parks because I fear I
will not receive a fair trial or hearing because of specifically described
prejudice or bias of the judge:

a. On December 29, 2022 Judge Brigham appointed attorney D. Gary

Lashley as standby counsel in this matter, see, Order Allowing the
Office of Criminal Conflict and Civil Regional Counsel to Withdrawal
Stand By Counsel, entered by Judge Brigham.

b. Judge Brigham knows Mr. Lashley [h]as an ethical conflict with me,
see, Motion for Attorney’s Fees, filed by Mr. Lashley on October 26,
2022, at paragraph 5: “The Defendant’s outlandish and threatening
conduct left the undersigned with no choice but to file a motion to
withdrawal due to an ethical conflict.”

c. Judge Brigham knows that under the U.S. Sixth Amendment, and
The Rules Regulating The Florida Bar, an attorney with an ethical
conflict is prohibited from representing a client.

d. Judge Brigham knows I filed a motion for a Nelson hearing on

February 10, 2022 to remove Mr. Lashley as my appointed counsel.
The motion is still pending.

e. Judge Brigham knows I filed a complaint against Mr. Lashley with

The Florida Bar.

f. Judge Brigham knows I stated in open court on several occasions

that I do not want Mr. Lashley to represent me because of Lashley’s
professional negligence that caused me harm.

3
 The motion to disqualify Judge Brigham was served prior to a 1:30

PM hearing in the Marion County Courthouse on January 3, 2023.

The motion to disqualify Judge Brigham shows on page 9,

"I served this Motion to Disqualify, with my affidavit, prior to filing on

the Portal, by U.S. Mail. Service by mail is complete upon mailing.
Rule 2.516 (b)(2), Fla. R. Jud. Admin."

The Certificate of Service on the motion to disqualify Judge Brigham

shows on page 10:

I Hereby Certify that on January 3, 2023 this motion and affidavit was
served by U.S. Mail, Tracking Number 9405 5036 9930 0446 8056 26
to,

Hon. Peter Brigham

Marion County Judicial Center
110 N.W. 1st Avenue
Ocala, FL 34475

by me personally taking the Priority Mail envelope to the Ocala Post

Office, 400 SW 1st Ave., Ocala, FL 34478. In addition, after service
by U.S. Mail to Judge Brigham, I returned to my office at Workspace
Cooperative and served the motion on the Portal to the names on the
Portal Notice of Service of Court Documents, including:

 The Hon. Peter Brigham, [email protected]

 State Attorney’s Office, 110 North West 1st Avenue, Suite 5000,
Ocala, FL 34475. [email protected]

U.S. Postal Service Click-N-Ship Payment Details email to the

Petitioner shows the postage to mail the motion to disqualify Judge

Brigham was purchased at 9:14 AM on January 3, 2023:

Click-N-Ship® Payment Details

4
 Acct #: 53003279
Transaction Number: 579725621
Transaction Date/Time: 01/03/2023 09:14 AM CST
Transaction Amount: $9.90
Payment Method: VISA-2586

The motion to disqualify Judge Brigham shows it was served on the

Florida Portal prior to the 1:30 PM hearing on January 3, 2023, as follows:

Filing # 163965610 E-Filed 01/03/2023 12:42:39 PM [2019-CF-4193]

Filing # 163965951 E-Filed 01/03/2023 12:45:34 PM [2021-CF-0286]
Filing # 163966234 E-Filed 01/03/2023 12:47:57 PM [2022-CF-1143]

Judge Brigham took the motion to disqualify him under advisement

during the hearing on January 3, 2023 that began at 1:30 PM.

Judge Brigham violated Florida law by failing to immediately rule on

the motion to disqualify him, as required by case law:

Once a motion for disqualification has been filed, no further action

can be taken by the trial court, even if the trial court is not aware of
the pending motion. Brown v. State, 863 So.2d 1274, Fla.App. 1
Dist., 2004.

A judge presented with a motion to disqualify him-or-herself must rule

upon the sufficiency of the motion immediately and may not consider
other matters before considering the disqualification motion. Brown v.
State, 863 So.2d 1274, Fla.App. 1 Dist., 2004.

The court is required to rule immediately on the motion to disqualify

the judge, even though the movant does not request a hearing.
Fuster-Escalona v. Wisotsky, 781 So.2d 1063, Fla., 2000.

The rule places the burden on the judge to rule immediately, the
movant is not required to nudge the judge nor petition for a writ of
mandamus. G.C. v. Department of Children and Families, 804 So.2d
525 Fla.App. 5 Dist., 2002.

5
 On January 5, 2023, Judge Brigham entered Order Denying

Defendant's Motion To Disqualify Judge. The Order states: (Appendix)

THIS CAUSE is before the Court on Defendant's Motion to Disqualify

Judge Peter Brigham, filed on January 3, 2022. When a court is
presented with a motion to disqualify the court, the court shall not
pass judgment on the truth of the allegations but shall only determine
the legal sufficiency of the motion. Rule 2.330(h), Fla. R. Jud. Admin.
When determining the legal sufficiency, the court should determine
''whether the alleged facts would create in a reasonably prudent
person a well-founded fear of not receiving a fair and impartial trial."
Rodriguez v. State, 919 So.2d 1252, 1274 (Fla. 2005). The Court
finds a reasonably prudent person would not have a well-founded
fear of not receiving a fair and impartial trial in the above-styled
cases. Therefore, Defendant's Motion is legally insufficient. It is

ORDERED: Defendant's Motion to Disqualify Judge Peter Brigham is

DENIED.

Judge Brigham's Order shows he improperly ruled on the merits

when he denied the motion to disqualify him. In determining whether the

allegations that movant will not receive a fair trial so as to disqualify a judge

are sufficient, the facts alleged must be taken as true. Frengel v. Frengel,

880 So.2d 763, Fla.App. 2 Dist.,2004, and must be viewed from the

movant's perspective. Siegel v. State, 861 So.2d 90, Fla.App. 4 Dist., 2003.

From the Petitioner's perspective, the facts alleged are true: Judge

Brigham appointed attorney D. Gary Lashley as standby counsel. Case law

forbids trial judges to refute facts set forth in a motion to disqualify, and

their doing so will result in judicial disqualification irrespective of the facial

6
sufficiency of the underlying claim. Brinson v. State, 789 So.2d 1125,

Fla.App. 2 Dist., 2001.

A trial judge's attempt to refute charges of partiality thus exceeds the

scope of inquiry on a motion to disqualify and alone establishes grounds for

disqualification. J & J Industries, Inc. v. Carpet Showcase of Tampa Bay,

Inc., 723 So.2d 281, Fla.App. 2 Dist., 1998. Whether the motion is legally

sufficient is a pure question of law; it follows that the proper standard of

review is the de novo standard (Sume v. State, 773 So.2d 600 Fla.App. 1

Dist., 2000) and an order denying a motion to disqualify a trial judge is

reviewed for abuse of discretion. King v. State, 840 So.2d 1047, Fla., 2003.

Therefore, Judge Brigham's Order Denying

Defendant's Motion To Disqualify Judge established grounds

for disqualification; Judge Brigham failed to immediately rule on

the motion, and then two days later the Judge ruled on the

merits. Judge Brigham lost jurisdiction over the Petitioner when

the motion to disqualify was served him prior to a hearing at

1:30 PM January 3, 2023.

7
Section III The Nature Of The Relief Sought

The Petitioner contends that Judge Brigham lacked jurisdiction over

the Petitioner in case nos. 2019-CF-4193, 2021-CF-0286, and 2022-CF-

1143, after the Petitioner served a meritorious motion to disqualify the

Judge on January 3, 2023. Therefore, the Petitioner seeks to overturn or

void the subsequent Orders entered by Judge Brigham in Marion County

case nos. 2019-CF-4193, 2021-CF-0286, and 2022-CF-1143:

 Order Denying Defendant's Motion To Disqualify Judge, entered

January 5, 2023 by Judge Brigham

 Order Finding Facts and Holding The Defendant In Direct Criminal

Contempt, entered January 25, 2023 by Judge Brigham

 Order Dismissing Defendant's Petition For Writ Of Habeas Corpus,

entered February 27, 2023 by Judge Brigham

 Order to Revoke Bond, entered February 20, 2023 by Judge Brigham

 Plea agreement and sentence, entered March 20, 2023 by Judge Brigham

 Order Denying Defendant's Motion To Withdrawal Plea After Sentencing

entered May 9, 2023 by Judge Brigham

8
Section IV Argument In Support Of The Petition And
Appropriate Citations Of Authority

Judge Brigham lost jurisdiction over the Petitioner when a timely motion to

disqualify was served on him prior to a hearing at 1:30 PM January 3, 2023.

Judge Brigham wrongly took issue with the motion and ruled on its merits.

Case law forbids trial judges to refute facts set forth in a motion to disqualify,

and their doing so will result in judicial disqualification irrespective of the facial

sufficiency of the underlying claim. Brinson v. State, 789 So.2d 1125, Fla.App. 2

Dist., 2001. A trial judge's attempt to refute charges of partiality thus exceeds

the scope of inquiry on a motion to disqualify and alone establishes grounds for

disqualification. J & J Industries, Inc. v. Carpet Showcase of Tampa Bay, Inc.,

723 So.2d 281, Fla.App. 2 Dist., 1998.

LEGAL ARGUMENT FOR DISQUALIFICATION OF JUDGE BRIGHAM

“In the American judicial system, few more serious threats to individual
liberty can be imagined than a corrupt judge. Clothed with the power of
the state and authorized to pass judgment on the most basic aspects of
everyday life, a judge can deprive citizens of liberty and property in
complete disregard of the Constitution. The injuries inflicted may be
severe and enduring....”

Judicial Immunity vs. Due Process: When Should A Judge Be Subject to

Suit? Robert Craig Walters, Cato Journal, Vol.7, No.2 (Fall 1987)

It has long been said in the courts of this state that “every litigant is

entitled to nothing less than the cold neutrality of an impartial judge.” State ex

rel. Davis v. Parks, 194 So. 613, 615 (Fla. 1939).

9
 Fla. R. Jud. Admin. 2.330(b) “Parties. Any party, including the state, may

move to disqualify the trial judge assigned to the case on grounds provided by

rule, by statute, or by the Code of Judicial Conduct.

Under Canon 3E(1) of the Code of Judicial Conduct for the State of
Florida,

“A judge shall disqualify himself or herself where his or her

impartiality might reasonably be questioned, including but not limited to...”.
Canon 3E(1)

Commentary for Canon 3E(1)

Canon 3E(1). Under this rule, a judge is disqualified whenever the judge's
impartiality might reasonably be questioned, regardless of whether any of
the specific rules in Section 3E(1) apply.

Disqualification under Canon 3E(1) does not require actual bias or actual

prejudice, but “whenever the judge's impartiality might reasonably be

questioned”.

Rule 2.330. Disqualification of Trial Judges. Fla. R. Jud. Admin. states in

relevant part,

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

(c) Motion. A motion to disqualify shall:
(1) be in writing;
(2) allege specifically the facts and reasons upon which the movant
relies as the grounds for disqualification;
(3) be sworn to by the party by signing the motion under oath or by
a separate affidavit; and

(d) Grounds. A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or
hearing because of specifically described prejudice or bias of the judge; or

10
 (e) Time. A motion to disqualify shall be filed within a reasonable time not
to exceed 10 days after discovery of the facts constituting the grounds for
the motion and shall be promptly presented to the court for an immediate
ruling...

(f) Determination — Initial Motion. The judge against whom an initial

motion to disqualify under subdivision (d)(1) is directed shall determine
only the legal sufficiency of the motion and shall not pass on the truth of
the facts alleged. If the motion is legally sufficient, the judge shall
immediately enter an order granting disqualification and proceed no
further in the action. If any motion is legally insufficient, an order denying
the motion shall immediately be entered. No other reason for denial shall
be stated, and an order of denial shall not take issue with the motion.

The importance of the duty of rendering a righteous judgment is that of

doing it in such a manner as would raise no suspicion of the fairness and

integrity of the judge. State ex rel. Arnold v. Revels, 113 So.2d 218, Fla.App. 1

Dist., 1959.

Every litigant is entitled to nothing less than the cold neutrality of an

impartial judge, (Mathew v. State, 837 So.2d 1167, Fla.App. 4 Dist., 2003) and

the law intends that no judge will preside in a case in which he or she is not

wholly free, disinterested, impartial, and independent. State v. Steele, 348

So.2d 398, Fla.App. 1977.

When a judge enters into the proceedings and becomes a participant, a

shadow is cast upon judicial neutrality so that his or her disqualification is

required. Evans v. State, 831 So.2d 808, Fla.App. 4 Dist., 2002.

11
 The basic tenet for the disqualification of a judge is that a judge must

satisfy the appearance of justice. Hewitt v. State, 839 So.2d 763, Fla.App. 4

Dist., 2003.

The question of disqualification focuses on those matters from which a

litigant may reasonably question a judge's impartiality rather than the judge's

perception of his or her ability to act fairly and impartially. Wargo v. Wargo, 669

So.2d 1123, Fla.App. 4 Dist., 1996.

Question whether disqualification of a judge is required focuses on those

matters from which a litigant may reasonably question a judge's impartiality

rather than the judge's perception of his ability to act fairly and impartially.

West’s F.S.A. Code of Jud. Conduct, Canon 3(E)(1), Stevens v. Americana

Healthcare Corp. of Naples, 919 So.2d 713 (Fla. Dist. Ct. App. 2d Dist. 2006).

Question of disqualification of a trial judge focuses on those matters from

which a litigant may reasonably question a judge's impartiality rather than the

court's own perception of its ability to act fairly and impartially. West’s F.S.A. §

38.10, Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214, Fla.App. 3 Dist., 2005 reh'g

denied, (Feb. 17, 2005).

12
 Sufficiency of motion or affidavit of prejudice

A motion to disqualify must show that the party fears that he or she will

not receive a fair trial or hearing because: (1) of a specifically described

prejudice or bias of the judge; Fla. R. Jud. Admin., Rule 2.330(d)(1).

Generally, the critical determination in deciding the legal sufficiency of a

motion to disqualify has been whether the facts alleged would prompt a

reasonably prudent person to fear he or she would not receive a fair trial,

Barnhill v. State, 834 So.2d 836 Fla., 2002.

If a motion to recuse is technically sufficient and the facts alleged therein

also would prompt a reasonably prudent person to fear that he or she could not

get a fair and impartial trial from the judge, the motion is legally sufficient and

should be granted. Coleman v. State, 866 So.2d 209, Fla.App. 4 Dist., 2004.

The motion to disqualify a judge should contain facts germane to the

judge's undue bias, prejudice, or sympathy. Chamberlain v. State, 881 So.2d

1087, Fla., 2004.

Whether a motion to disqualify a judge is legally sufficient requires a

determination as to whether the alleged facts would create in a reasonably

prudent person a well-founded fear of not receiving a fair and impartial trial. Fla.

R. Jud. Admin., Rule 2.160 (f), Rodriguez v. State, 919 So.2d 1252, Fla., 2005,

as revised on denial of reh'g, (Jan. 19, 2006).

13
 The primary consideration in determining whether motion to disqualify trial

judge should be granted is whether the facts alleged, if true, would place a

reasonably prudent person in fear of not receiving a fair and impartial trial.

Arbelaez v. State, 898 So.2d 25, Fla., 2005, reh'g denied, (Mar. 18, 2005).

A motion for disqualification must be granted if the alleged facts would

cause a reasonably prudent person to have a well-founded fear that he/she

would not receive a fair and impartial trial. Jarp v. Jarp, 919 So.2d 614, Fla.App.

3 Dist., 2006.

The test a trial court must use in determining whether a motion to

disqualify a judge is legally sufficient is whether the facts alleged would place a

reasonably prudent person in fear of not receiving a fair and impartial trial. Scott

v. State, 909 So.2d 364, Fla.App. 5 Dist., 2005, reh'g denied, (Sept. 2, 2005).

The motion to disqualify a judge must be well-founded and contain facts

germane to the judge's undue bias, prejudice, or sympathy. Scott v. State, 909

So.2d 364, Fla.App. 5 Dist., 2005, reh'g denied, (Sept. 2, 2005).

Disqualification is required when litigants demonstrate reasonable, well-

grounded fear that they will not receive fair and impartial trial, or that judge has

pre-judged case. Williams v. Balch, 897 So.2d 498, Fla.App. 4 Dist., 2005.

14
 Time for filing motion; waiver of objection

A motion to disqualify shall be filed within a reasonable time not to exceed

10 days after discovery of the facts constituting the grounds for the motion and

shall be promptly presented to the court for an immediate ruling. Fla. R. Jud.

Admin., Rule 2.160(e).

Judicial determination of initial motion.

The judge against whom an initial motion to disqualify us directed shall

determine only the legal sufficiency if the motion an shall not pass on the truth

of the facts alleged. Fla. R. Judicial Admin. 2.330(f).

No other reason for denial shall be stated, and an order of denial shall not

take issue with the motion. Fla. R. Judicial Admin. 2.330(f).

Accordingly, a judge may not rule on the truth of the facts alleged or

address the substantive issues raised by the motion but may only determine the

legal sufficiency of the motion. Knarich v. State, 866 So.2d 165 (Fla. Dist. Ct.

App. 2d Dist. 2004).

In determining whether the allegations that movant will not receive a fair

trial so as to disqualify a judge are sufficient, the facts alleged must be taken as

true (Frengel v. Frengel, 880 So.2d 763, Fla.App. 2 Dist.,2004), and must be

viewed from the movant's perspective. Siegel v. State, 861 So.2d 90, Fla.App. 4

Dist., 2003.

15
 Whether the motion is legally sufficient is a pure question of law; it follows

that the proper standard of review is the de novo standard (Sume v. State, 773

So.2d 600 Fla.App. 1 Dist., 2000) and an order denying a motion to disqualify a

trial judge is reviewed for abuse of discretion. King v. State, 840 So.2d 1047,

Fla., 2003.

Once a motion for disqualification has been filed, no further action can be

taken by the trial court, even if the trial court is not aware of the pending motion.

Brown v. State 863 So.2d 1274, Fla.App. 1 Dist., 2004.

A judge presented with a motion to disqualify him-or-herself must rule

upon the sufficiency of the motion immediately and may not consider other

matters before considering the disqualification motion. Brown v. State 863

So.2d 1274, Fla.App. 1 Dist., 2004.

The court is required to rule immediately on the motion to disqualify the

judge, even though the movant does not request a hearing. Fuster-Escalona v.

Wisotsky, 781 So.2d 1063, Fla., 2000.

The rule places the burden on the judge to rule immediately, the movant is

not required to nudge the judge nor petition for a writ of mandamus. G.C. v.

Department of Children and Families, 804 So.2d 525 Fla.App. 5 Dist., 2002.

16
 Prayer For Relief

The Petitioner prays the Court grants the petition and orders

the relief requested.

NEIL JOSEPH GILLESPIE

Petitioner, pro se
2801 SW College Road, STE 3
Ocala, FL 34474
Tel: 352-239-9037
Email: [email protected]

17
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished

on May 25, 2023 to the names below on the Florida Portal.

Office of the Attorney General

444 Seabreeze Blvd.
5th Floor
Daytona Beach, FL 32118
[email protected]

NEIL JOSEPH GILLESPIE

Petitioner, pro se
2801 SW College Road, STE 3
Ocala, FL 34474
Tel: 352-239-9037
Email: [email protected]

CERTIFICATE OF COMPLIANCE FRAP 9.045(e)

I HEREBY CERTIFY that this document was computer-generated

using Arial 14-point font (FRAP 9.045(b)), and is in compliance with the
word count limits of FRAP 9.100(g).

NEIL JOSEPH GILLESPIE

Petitioner, pro se

18
Filing # 174044680
174035595 E-Filed 05/26/2023
05/25/2023 09:02:52
11:48:05 AM
PM

IN THE DISTRICT COURT OF APPEAL

FIFTH DISTRICT OF FLORIDA

NEIL JOSEPH GILLESPIE

Petitioner, pro se,

v. CASE NO. 5D23-0814

LT NO. 2022-CF-1143
STATE OF FLORIDA 2021-CF-286
Respondent. 2019-CF-4193

APPENDIX TO THE PETITION

NEIL JOSEPH GILLESPIE

Petitioner pro se
2801 SW College Road, STE 3
Ocala, FL 34474
Tel: 352-239-9037
Email: [email protected]

1
 INDEX TO THE PETITION

Date Pleading

Jan-03-2023 Motion To Disqualify Judge Peter Brigham

Jan-05-2023 Order Denying Defendant's Motion To Disqualify Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished

on May 25, 2023 to the names below on the Florida Portal.

Office of the Attorney General

444 Seabreeze Blvd.
5th Floor
Daytona Beach, FL 32118
[email protected]

Neil Joseph Gillespie

Petitioner, pro se
2801 SW College Road, Ste 3
Ocala, FL 34474
Tel: 352-239-9037
Email: [email protected]

2
Filing # 163965610 E-Filed 01/03/2023 12:42:39 PM

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR MARION COUNTY

THE STATE OF FLORIDA,

CASE NO. 2022-CF-1141
vs. CASE NO. 2021-CF-286
CASE NO. 2019-CF-4193
NEIL JOSEPH GILLESPIE
_ _ _ _ _ _ _ _ _ _ _ _ ___,!

MOTION TO DISQUALIFY JUDGE PETER BRIGHAM

This Motion is Verified by Neil Joseph Gillespie F.S. § 92.525(2)

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

person, files a Motion To Disqualify Judge Peter Brigham, and states:

1. I hereby move to disqualify Judge Peter Brigham (Judge Brigham) as judge in the above

captioned cases under Fla. R. Jud. Admin. 2.330, Canon 3E(l) Code of Judicial Conduct for the

State of Florida, Fla. Stat. § 38.10, and State ex rel. Davis v. Parks because I fear I will not

receive a fair trial or hearing because of specifically described prejudice or bias of the judge:

a. On December 29, 2022 Judge Brigham appointed attorney D. Gary Lashley as standby

counsel in this matter, see, Order Allowing the Office of Criminal Conflict and Civil Regional

Counsel to Withdrawal Stand By Counsel, entered by Judge Brigham.

b. Judge Brigham knows Mr. Lashley as an ethical conflict with me, see, Motion for

Attorney's Fees, filed by Mr. Lashley on October 26, 2022, at paragraph 5: "The Defendant's

outlandish and threatening conduct left the undersigned with no choice but to file a motion to

withdrawal due to an ethical conflict."

c. Judge Brigham knows that under the U.S. Sixth Amendment, and The Rules Regulating

The Florida Bar, an attorney with an ethical conflict is prohibited from representing a client.

3
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

d. Judge Brigham knows I filed a motion for a Nelson hearing on February 10, 2022 to

remove Mr. Lashley as my appointed counsel. The motion is still pending.

e. Judge Brigham knows I filed a complaint against Mr. Lashley with The Florida Bar.

f. Judge Brigham knows I stated in open court on several occasions that I do not want Mr.

Lashley to represent me because of Lashley's professional negligence that caused me harm.

LEGAL ARGUMENT FOR DISQUALIFICATION OF JUDGE BRIGHAM

• Section A Legal Argument

2. It has long been said in the courts of this state that "every litigant is entitled to nothing

less than the cold neutrality of an impartial judge." State ex rel. Davis v. Parks, 194 So. 613,615

(Fla. 1939). (Opening citation in the Opinion filed December 17, 2014, Third District Court of

Appeal, No. 3D14-2625, Lower Tribunal No. 14-8506, Great American Insurance Company of

New York, Petitioner, vs. 2000 Island Boulevard Condominium Association, Inc., et al.,

Respondents. A Case of Original Jurisdiction -Prohibition.)

3. Fla. R. Jud. Admin. 2.330(b) "Parties. Any party, including the state, may move to

disqualify the trial judge assigned to the case on grounds provided by rule, by statute, or by the

Code of Judicial Conduct. (Emphasis added).

4. Under Canon 3E(l) of the Code of Judicial Conduct for the State of Florida,

"A judge shall disqualify himself or herself where his or her impartiality
might reasonably be questioned, including but not limited to ... ". Canon 3E(l)

Commentary for Canon 3E(l)

Canon 3E(l ). Under this rule, a judge is disqualified whenever the judge's
impartiality might reasonably be questioned, regardless of whether any of
the specific rules in Section 3E(l) apply.

2
4
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

5. Disqualification under Canon 3E(l) does not require actual bias or actual prejudice, but

"whenever the judge's impartiality might reasonably be questioned".

6. Rule 2.330. Disqualification of Trial Judges. Fla. R. Jud. Admin. states in relevant part,

RULE 2.330. DISQUALIFICATION OF TRIAL JUDGES

(c) Motion. A motion to disqualify shall:
(1) be in writing;
(2) allege specifically the facts and reasons upon which the movant
relies as the grounds for disqualification;
(3) be sworn to by the party by signing the motion under oath or by
a separate affidavit; and

(d) Grounds. A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or
hearing because of specifically described prejudice or bias of the judge; or

(e) Time. A motion to disqualify shall be filed within a reasonable time

not to exceed 10 days after discovery of the facts constituting the grounds for the
motion and shall be promptly presented to the court for an immediate ruling ...

(f) Determination - Initial Motion. The judge against whom an initial

motion to disqualify under subdivision (d)(l) is directed shall determine only the
legal sufficiency of the motion and shall not pass on the truth of the facts alleged.
If the motion is legally sufficient, the judge shall immediately enter an order
granting disqualification and proceed no further in the action. If any motion is
legally insufficient, an order denying the motion shall immediately be entered. No
other reason for denial shall be stated, and an order of denial shall not take issue
with the motion.

7. The importance of the duty of rendering a righteous judgment is that of doing it in such a

manner as would raise no suspicion of the fairness and integrity of the judge. State ex rel. Arnold

v. Revels, 113 So.2d 218, Fla.App. 1 Dist., 1959.

8. Every litigant is entitled to nothing less than the cold neutrality of an impartial judge,

(Mathew v. State, 837 So.2d 1167, Fla.App. 4 Dist., 2003) and the law intends that no judge will

preside in a case in which he or she is not wholly free, disinterested, impartial, and independent.

State v. Steele, 348 So.2d 398, Fla.App. 1977.

3
5
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

9. When a judge enters into the proceedings and becomes a participant, a shadow is cast

upon judicial neutrality so that his or her disqualification is required. Evans v. State, 831 So.2d

808, Fla.App. 4 Dist., 2002. The conditions requiring the disqualification of the judge to act in

that particular case are prescribed by statute. § 38.02 Fla. Stat.

10. The basic tenet for the disqualification of a judge is that a judge must satisfy the

appearance of justice. Hewitt v. State, 839 So.2d 763, Fla.App. 4 Dist., 2003.

11. The question of disqualification focuses on those matters from which a litigant may

reasonably question a judge's impartiality rather than the judge's perception of his or her ability

to act fairly and impartially. Wargo v. Wargo, 669 So.2d 1123, Fla.App. 4 Dist., 1996.

12. The term "recusal" is most often used to signify a voluntary action to remove oneself as a

judge; however, the term "disqualification" refers to the process by which a litigant may seek to

remove a judge from a·particular case. Sume v. State, 773 So.2d 600, Fla.App. 1 Dist., 2000.

13. Question whether disqualification of a judge is required focuses on those matters from

which a litigant may reasonably question a judge's impartiality rather than the judge's perception

of his ability to act fairly and impartially. West's F.S.A. Code of Jud. Conduct, Canon 3(E)(l),

Stevens v. Americana Healthcare Corp. of Naples, 919 So.2d 713 (Fla. Dist. Ct. App. 2d Dist.

2006).

14. Question of disqualification of a trial judge focuses on those matters from which a

litigant may reasonably question a judge's impartiality rather than the court's own perception of

its ability to act fairly and impartially. West's F.S.A. § 38.10, Valdes-Faull v. Valdes-Faull, 903

So.2d 214, Fla.App. 3 Dist.,2005 reh'g denied, (Feb. 17, 2005).

4
6
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

• Section B Sufficiency of motion or affidavit of prejudice.

15. A motion to disqualify must show that the party fears that he or she will not receive a fair

trial or hearing because: (1) of a specifically described prejudice or bias of the judge; Fla. R. Jud.

Admin., Rule 2.330(d)(l).

16. Generally, the critical determination in deciding the legal sufficiency of a motion to

disqualify has been whether the facts alleged would prompt a reasonably prudent person to fear

he or she would not receive a fair trial, Barnhill v. State, 834 So.2d 836 Fla., 2002.

17. If a motion to recuse is technically sufficient and the facts alleged therein also would

prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial

from the judge, the motion is legally sufficient and should be granted. Coleman v. State, 866

So.2d 209, Fla.App. 4 Dist., 2004.

18. The motion to disqualify a judge should contain facts gerrp_ane to the judge's undue bias,

prejudice, or sympathy. Chamberlain v. State, 881 So.2d 1087, Fla., 2004.

19. Whether a motion to disqualify a judge is legally sufficient requires a determination as to

whether the alleged facts would create in a reasonably prudent person a well-founded fear of not

receiving a fair and impartial trial. Fla. R. Jud. Admin., Rule 2.160 (t), Rodriguez v. State, 919

So.2d 1252, Fla., 2005, as revised on denial of reh'g, (Jan. 19, 2006).

20. The primary consideration in determining whether motion to disqualify trial judge should

be granted is whether the facts alleged, if true, would place a reasonably prudent person in fear

of not receiving a fair and impartial trial. Arbelaez v. State, 898 So.2d 25, Fla., 2005, reh'g

denied, (Mar. 18, 2005).

5
7
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

21. A motion for disqualification must be granted if the alleged facts would cause a

reasonably prudent person to have a well-founded fear that he/she would not receive a fair and

impartial trial. Jarp v. Jarp, 919 So.2d 614, Fla.App. 3 Dist., 2006.

22. The test a trial court must use in determining whether a motion to disqualify a judge is

legally sufficient is whether the facts alleged would place a reasonably prudent person in fear of

not receiving a fair and impartial trial. Scott v. State, 909 So.2d 364, Fla.App. 5 Dist., 2005,

reh'g denied, (Sept. 2, 2005).

23. The motion to disqualify a judge must be well-founded an.d contain facts germane to the

judge's undue bias, prejudice, or sympathy. Scott v. State, 909 So.2d 364, Fla.App. 5 Dist., 2005,

reh'g denied, (Sept. 2, 2005).

24. Disqualification is required when litigants demonstrate reasonable, well-grounded fear

that they will not receive fair and impartial trial, or that judge has pre-judged case. Williams v.

Balch, 897 So.2d 498, Fla.App. 4 Dist., 2005.

• Section C Time for filing motion; waiver of objection.

25. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after

discovery of the facts constituting the grounds for the motion and shall be promptly presented to

the court for an immediate ruling. Fla. R. Jud. Admin., Rule 2.160(e).

26. Although a petition to disqualify a judge is not timely filed, extraordinary circumstances

may warrant the grant of an untimely motion to recuse. Klapper-Barrett v. Nurell, 742 So.2d

851, Fla.App. 5 Dist., 1999. I believe extraordinary circumstances warrant the grant of an

untimely motion to recuse in this case, given the amount of time The Florida Bar spent on the

Investigation of UPL for Marty Stone, File No. 20191041 (17A).

6
8
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

• Section D Judicial determination of initial motion.

27. The judge against whom an initial motion to disqualify us.directed shall determine only

the legal sufficiency if the motion an shall not pass on the truth of the facts alleged. Fla. R.

Judicial Admin. 2.330(f).

28. No other reason for denial shall be stated, and an order of denial shall not take issue with

the motion. Fla. R. Judicial Admin. 2.330(f).

. . '

29. Accordingly, a judge may not.rule on the truth of the fapts, alleged or address the
• - t ' • ~ •• ~ • , , ' . '

substantive issues raised by the motipn but may only qetermine the legal sufficiency of the
. .~.'

motion. Knarich v. State, 866 So.2d 165 ,(Fla. Dist. Ct. App. 2d Dist. 2004).
. . .; : . :·~ - ;" - .
' _,.:. ~' ~ •". ~

30. In determining whether the allegations that movant will not receive a fair trial so as to

disqualify a judge are sufficient, the facts alleged must be taken as true (Frengel v. Frengel, 880

So.2d 763, Fla.App. 2 Dist.,2004), and ~ust be viewed from the movant's perspective. Siegel v.
',. .' .

State, 861 So.2d 90, Fla.App. 4 Dis~., 2003.

31. Case law forbids trial judges to refute facts set forth in a motion to disqualify, and their

doing so will result in judicial disqualification irrespective of the facial sufficiency of the

underlying claim. Brinson v. State, 789 So.2d q2s, Fla.App. 2 Dist., 2001.

32. A trial judge's attempt to refute charges of partiality thus exceeds the scope of inquiry on

a motion to disqualify and alone establishes grounds for disqualification. J & J Industries, Inc. v.

Carpet Showcase of Tampa Bay, Inc., 723 So.2d 281, Fla.App. 2 Dist., 1998.

33. Whether the motion is legally sufficient is a pure question of law; it follows that the

proper standard of review is the de novo standard (Sume v. State, 773 So.2d 600 Fla.App. 1

Dist., 2000) and an order denying a motion to disqualify a trial judge is reviewed for abuse of

7
9
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

discretion. King v. State, 840 So.2d 1047, Fla., 2003.

34. Once a motion for disqualification has been filed, no further action can be taken by the

trial court, even if the trial court is not aware of the pending motion. Brown v. State 863 So.2d

1274, Fla.App. 1 Dist., 2004.

35. A judge presented with a motion to disqualify him-or-herself must rule upon the

sufficiency of the motion immediately and may not consider other matters before considering the

disqualification motion. Brown v. State 863 So.2d 1274, Fla.App. 1 Dist., 2004.

36. The court is required to rule immediately on the motion to disqualify the judge, even

though the movant does not request a hearing. Fuster-Escalona v. Wisotsky, 781 So.2d 1063,

Fla., 2000.

37. The rule places the burden on the judge to rule immediately, the movant is not required to

nudge the judge nor petition for a writ of mandamus. G.C. v. Department of Children and

Families, 804 So.2d 525 Fla.App. 5 Dist., 2002.

38. Certification. The undersigned movant certifies that the motion and the movant's

statements are made in good faith.

39. NOTICE: Fifth Judicial Circuit Florida Administrative Order AO A-2012-25-B

undermines Rule 2.330(c)(4) service of a motion to disqualify a judge on the Florida Portal.

Per AO A-2012-25-B, no attorney or prose litigant is authorized to send any unsolicited

correspondence, motion, or proposed email to a presiding judge on a particular case. Fla. R. Jud.

Admin. 2.330 governs Disqualification of Trial Judges (along with F.S. ch 38, the Florida Code

of Judicial Conduct, and case law). Therefore, I believe A-2012-25-B is unconstitutional to the

extent it undermines well-established law on judicial disqualification. The procedural path on

8
10
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

service of a motion to disqualify is established by Rule 2.330(c)>Rule l.080>Rule 2.516>Rule

2.520>2.525. In particular, Rule 2.330(c)(4) mandates immediate service on the judge, see

"In addition to filing with the clerk, the movant shall immediately serve a copy of the
motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080."

The Clerk's office (Mr. Harrell) contends "the procedural path of Rule 2.330(c)>Rule

l.080>Rule 2.516 can still be adhered to and done in a manner consistent with A-2012-25-B, if

the filer of such a motion mails a copy of the motion to the judge." Therefore, I served this

Motion to Disqualify, with my affidavit, prior to filing on the Portal, by U.S. Mail. Service by

mail is complete upon mailing. Rule 2.516 (b)(2), Fla. R. Jud. Admin. Therefore, the subject

Judge is served prior to filing on the Portal, because Service by mail is complete upon mailing.

Rule 2.516 (b)(2). It does not matter if the Judge rejects the mail, returns the mail, or anything

else, because service by mail is complete upon mailing. Rule 2.516 (b)(2).

VERIFICATION OF NEIL J. GILLESPIE

F.S. § 92.525(2) Verification of documents

Under penalties of perjury, I declare that I have read the foregoing document and that the

facts stated in it are true. My affidavit pursuant to Fla. Stat. § 38.10 accompanies this Motion To

Disqualify Judge Peter Brigham. .

~rcJ,s-Zo2-_3
Date

9
11
MOTION TO DISQUALIFY JUDGE PETER BRIGHAM
This Motion is Verified by Neil J. Gillespie F.S. § 92.525(2)

CERTIFICATE OF SERVICE

I Hereby Certify that on January 3, 2023 this motion and affidavit was served by U.S.

Mail, Tracking Number 9405 5036 9930 0446 8056 26 to,

Hon. Peter Brigham

Marion County Judicial Center
110 N.W. 1st Avenue
Ocala, FL 34475

by me personally taking the Priority Mail envelope to the Ocala Post Office, 400 SW 1st Ave.,

Ocala, FL 34478. In addition, after service by U.S. Mail to Judge Brigham, I returned to my

office at Workspace Cooperative and served the motion on the Portal to the names on the Portal

Notice of Service of Court Documents, including:

• The Hon. Peter Brigham, [email protected]

• State Attorney's Office, 110 North West 1st Avenue, Suite 5000, Ocala, FL 34475.
Eservicemarion@Sao5 .Org

RESPECTFULLY SUBMITTED January 3, 2023.

Email: [email protected]

10
12
 Click-N-Ship®
P
usps.com 9405 5036 9930 0446 8056 26 0099 0000 0013 4475
$9.90
US POSTAGE
Flat Rate Env
01/03/2023 Mailed from 34481 986770212625838
PRIORITY MAIL®
NEIL J GILLESPIE Expected Delivery Date: 01/05/23
11100 SW 93RD COURT RD STE 10-220
OCALA FL 34481-5187 0000
C029

13
Cut on dotted line.
HON. PETER BRIGHAM
MARION COUNTY JUDICIAL CENTER
110 NW 1ST AVE
OCALA FL 34475-6601
USPS TRACKING #
9405 5036 9930 0446 8056 26
Electronic Rate Approved #038555749
 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR MARION COUNTY

THE STATE OF FLORIDA,

CASE NO. 2022-CF-1143
vs. CASE NO. 2021-CF-286
CASE NO. 2019-CF-4193
NEIL JOSEPH GILLESPIE.
_ _ _ _ _ _ _ _ _ _ _ _ _ ___,!

STATE OF FLORIDA ) SS.:

COUNTY OF MARION )

AFFIDAVIT OF NEIL JOSEPH GILLESPIE

BEFORE ME, this day personally appeared NEIL JOSEPH GILLESPIE, who upon oath
deposes upon personal knowledge and states:

1. My name is Neil Joseph Gillespie. I am over the age of eighteen and competent to testify

as to the facts and matters set forth herein.

2. This Affidavit is in support of my Motion To Disqualify Judge Peter Brigham because I

fear I will not receive a fair trial or hearing because of specifically described prejudice or bias of

the judge:

a. On December 29, 2022 Judge Brigham appointed attorney D. Gary Lashley as standby

counsel in this matter, see, Order Allowing the Office of Criminal Conflict and Civil Regional

Counsel to Withdrawal Stand By Counsel, entered by Judge Brigham.

b. Judge Brigham knows Mr. Lashley as an ethical conflict with me, see, Motion for

Attorney's Fees, filed by Mr. Lashley on October 26, 2022, at paragraph 5: "The Defendant's

outlandish and threatening conduct left the undersigned with no choice but to file a motion to

withdrawal due to an ethical conflict."

c. Judge Brigham knows that under the U.S. Sixth Amendment, and The Rules Regulating

The Florida Bar, an attorney with an ethical conflict is prohibited from representing a client.

d. Judge Brigham knows I filed a motion for a Nelson hearing on February 10, 2022 to

remove Mr. Lashley as my appointed counsel. The motion is still pending.

14
i

I
I e. Judge Brigham knows I filed a complaint against Mr. Lashley with The Florida Bar.
I
I f. Judge Brigham knows I stated in open court on several occasions that I do not want Mr.

I Lashley to represent me because of Lashley' s professional negligence that caused me harm.

3. Because of the foregoing specifically described prejudice or bias of Judge Brigham, I fear

I I will not receive a fair trial or hearing in any case where he presides as trial judge.

I! FURTHER AFFIANT SAYETH NOT.

The foregoing instrument was sworn to and acknowledged before me, this 3rd day of January,

2023, by Neil Joseph Gillespie, ~ personally known ~ r who has produced

_ _ _ _ _ as identification and states that he is the person who made this affidavit and that its

contents are truthful to the best of his knowledge, information and belief.

2
15
Filing # 164166839 E-Filed 01/05/2023 03:16:36 PM

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR MARION COUNTY, FLORIDA

STATE OF FLORIDA,

vs. CASE NO.: 2019-CF-4193

2021-CF-0286
NEIL JOSEPH GILLESPIE, 2022-CF-11'
Defendant.
- - - - - - - - - -I
0 RD ER DENYING DEFENDANT'S MOTION TO DISQUALIFY JUDGE

TIDS CAUSE is before the Court on Defendant's Motion to Disqualify Judge

Peter Brigham, filed on January 3, 2022. When a court is presented with a motion to

disqualify the court, the court shall not pass judgment on the truth of the allegations but

shall only determine the legal sufficiency of the motion. Rule 2.330(h), Fla. R. Jud

Admin. When determining the legal sufficiency, the court should determine "whether

the alleged facts would create in a reasonably prudent person a well-founded fear of not

receiving a fair and impartial trial." Rodriguez v. State, 919 So.2d 1252, 1274 (Fla.

2005). The Court finds a reasonably prudent person would not have a well-founded

fear of not receiving a fair and impartial trial in the above-styled cases. Therefore,

Defendant's Motion is legally insufficient. It is

ORDERED: Defendant's Motion to Disqualify Judge Peter Brigham 1s

DENIED.

ORDERED in Ocala, Florida, this~day of January 2023.

~~=--=-----
PETER M. BRIGHAM
Circuit Judge

Page 1 of 2
16
 CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing has been
provided by U.S. mail/Florida Court's e-portal this ~day of January 2023, to the
following:

Office of the State Attorney

[email protected]

Neil Gillespie
11100 SW 93rd Court Road
Ocala, FL 34481
[email protected]

Judicial Assistant

Page 2 of 2
17
Filing # 178396376 E-Filed 07/27/2023 03:48:06 PM

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NEIL JOSEPH GILLESPIE,

Petitioner,
v. CASE NO. 5D23-0814
STATE OF FLORIDA, LT CASE NOS. 2022-CF-1143
RECEIVED, 07/27/2023 03:48:22 PM, Clerk, Fifth District Court of Appeal

Respondent. 2019-CF-4193
___________________________/ 2021-CF-286

NOTICE OF APPEAL

The Petitioner pro se, Neil Joseph Gillespie, gives Notice of Appeal to

the Florida Supreme Court of the attached Order denying the Petition for

Writ of Prohibition on the merits entered June 28, 2023 in this case.

RESPECTFULLY SUBMITTED July 27, 2023

NEIL JOSEPH GILLESPIE

2801 SW College Road, Ste 3 Tel: 352-239-9037
Ocala, FL 34474 Email: [email protected]

CERTIFICATE OF SERVICE
I HEREBY CERTIFY I provided this document on July 27, 2023 to the
names below on the Florida Portal.

Office of the Attorney General Hon. Peter Matthew Brigham

444 Seabreeze Blvd. Marion County Courthouse
5th Floor 110 N.W. 1st Avenue
Daytona Beach, FL 32118 Ocala, FL 34474
[email protected] [email protected]

Neil Joseph Gillespie

 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NEIL JOSEPH GILLESPIE,

Petitioner,

v. CASE NO. 5D23-0814

LT CASE NOS. 2022-CF-1143
2019-CF-4193
2021-CF-286
STATE OF FLORIDA,

Respondent.
________________________/

DATE: June 28, 2023

BY ORDER OF THE COURT:

ORDERED that the Petition for Writ of Prohibition, filed February 1,

2023 (certificate of service), and the Amended Petition for Writ of

Prohibition, filed May 25, 2023, are denied on the merits.

I hereby certify that the foregoing is

(a true copy of) the original Court order.

Panel: Judges Makar, Edwards and Kilbane

cc:

Office of the Attorney Neil Joseph Gillespie Hon. Peter Matthew

General Brigham
 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NEIL JOSEPH GILLESPIE,

Petitioner,

v. CASE NO. 5D23-0814

LT CASE NOS. 2022-CF-1143
2019-CF-4193
2021-CF-286
STATE OF FLORIDA,

Respondent.
________________________/

DATE: June 28, 2023

BY ORDER OF THE COURT:

ORDERED that the Petition for Writ of Prohibition, filed February 1,

2023 (certificate of service), and the Amended Petition for Writ of

Prohibition, filed May 25, 2023, are denied on the merits.

I hereby certify that the foregoing is

(a true copy of) the original Court order.

Panel: Judges Makar, Edwards and Kilbane

cc:

Office of the Attorney Neil Joseph Gillespie Hon. Peter Matthew

General Brigham
 5DCA CERTIFICATION

I hereby certify that the foregoing is a true and correct copy of the

instrument(s) filed in this office.

Witness my hand and official seal this July 28, 2023 .

Sandra B. Williams, Clerk of the Fifth District Court of Appeal.

By: /s/ Kathy Palmere

JAMES A. EDWARDS
CHIEF JUDGE SANDRA B. WILLIAMS
CLERK

SCOTT MAKAR SHEILA N. STANBRO

CHIEF DEPUTY CLERK
F. RAND WALLIS
BRIAN D. LAMBERT
AARON R. SOLTZ
HARVEY L. JAY
MARSHAL
ERIC J. EISNAUGLE
JOHN M. HARRIS DISTRICT COURT OF APPEAL JUSTINE HORLER
ADRIAN G. SOUD FIFTH DISTRICT CHIEF DEPUTY MARSHAL
JOE BOATWRIGHT 300 SOUTH BEACH STREET
PAIGE KILBANE SHARON SERRA
DAYTONA BEACH, FLORIDA 32114
JOHN MACIVER DIRECTOR OF CENTRAL STAFF
JORDAN E. PRATT (386) 947-1500 COURT

JUDGES

July 28, 2023

Hon. John A. Tomasino, Clerk

Supreme Court of Florida
Supreme Court Building
Tallahassee, Florida 32399

Re: Gillespie Appeal No. 5D23-814

v. Trial Court No. 2019-CF-4193; 2021-CF-286
State 2022-CF-1143
Trial Court Judge: PETER M. BRIGHAM

Dear Hon. Tomasino:

Attached is a certified copy of the Notice of Appeal pursuant to Rule 9.120, Florida Rules
of Appellate Procedure, along with a copy of this Court's opinion or decision relevant to
this case.
The filing fee prescribed by Section 25.241(3), Florida Statutes, was received by
this court via e-portal MFC # 3456833.
The filing fee prescribed by Section 25.241(3), Florida Statutes, was not received
by this Court.
Petitioner/Appellant has been previously determined insolvent by this Circuit Court
or our court.

No filing fee is required because:

Summary Appeal (Rule 9.141)
Unemployment Appeals Commission
Habeas Corpus (Petition- Ineffective Assistance of Counsel Criminal)
Juvenile case
Other- Petition

Sincerely,
SANDRA B. WILLIAMS, CLERK
By: /s/ Kathy Palmere
Deputy Clerk
Attachments
cc: Neil Joseph Gillespie, Office of the Attorney General, John A. Tomasino

FAX NUMBER (386) 947-1562

E MAIL ADDRESS [email protected]
 Supreme Court of Florida
FRIDAY, JULY 28, 2023

Neil J. Gillespie, SC2023-1065

Petitioner(s) Lower Tribunal No(s).:
v. 5D23-814;
422019CF004193CFAXXX;
State of Florida, 422021CF000286CFAXXX;
Respondent(s) 422022CF001143CFAXXX

Petitioner’s Notice to Invoke Discretionary Jurisdiction,

seeking review of the order or opinion issued by the Fifth District
Court of Appeal on June 28, 2023, is hereby dismissed. This Court
lacks jurisdiction to review an unelaborated decision from a district
court of appeal that is issued without opinion or explanation or that
merely cites to an authority that is not a case pending review in, or
reversed or quashed by, this Court. See Wheeler v. State, 296 So. 3d
895 (Fla. 2020); Wells v. State, 132 So. 3d 1110 (Fla. 2014);
Jackson v. State, 926 So. 2d 1262 (Fla. 2006); Gandy v. State, 846
So. 2d 1141 (Fla. 2003); Stallworth v. Moore, 827 So. 2d 974 (Fla.
2002); Harrison v. Hyster Co., 515 So. 2d 1279 (Fla. 1987); Dodi
Publ’g Co. v. Editorial Am. S.A., 385 So. 2d 1369 (Fla. 1980); Jenkins
v. State, 385 So. 2d 1356 (Fla. 1980).
No motion for rehearing or reinstatement will be entertained
by the Court.

A True Copy
Test:

SC2023-1065 7/28/2023
CASE NO.: SC2023-1065
Page Two

SC2023-1065 7/28/2023

TD

Served:

HON. PETER M. BRIGHAM

5DCA CLERK
MARION CLERK
NEIL J. GILLESPIE
REBECCA ROCK MCGUIGAN
 Fifth District Court of Appeal
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The recipient DCA will send an acknowledgement letter.
Case No: 5D Search
23-0814

NEIL JOSEPH GILLESPIE

vs
STATE OF FLORIDA

Date Filed: 02/06/2023 Status: Closed Proceeding: Petition Nature:

Type: Prohibition Category: Criminal Circuit: 5th Judicial Circuit

Date Type Pleading Note

Supreme Court SC23-1065 CASE
07/28/2023 SC Event
Disposition DISMISSED
Review Sent to Supreme
07/28/2023 SC Event
Court
07/27/2023 SC NOTICE OF APPEAL Filed by: Neil Gillespie
07/17/2023 Brief/Record Returned Records NO RECORD EFILED
07/17/2023 Mandate Disp. w/o Mandate
06/28/2023 Disposition Denied ON THE MERITS
Order Denying Original
06/28/2023 Order
Petition
05/26/2023 Brief/Record Appendix to Petition
Miscellaneous Docket AMENDED PETITION
05/25/2023 Event
Entry PER 5/16/2023 ORDER -
MOT GRANTED;
05/16/2023 Order Order Grant EOT AMENDED PET/APX BY
5/25/23
: Receipt: 2023-2040730
05/11/2023 Receipt Filing Fee $300
Amount: 300
Motion for Extension of TO FILE AMENDED PET
05/02/2023 Motion
Time & APX
 Order Denying Indigency
04/26/2023 Order
-Pet.
OF INSOLVENCY;
04/26/2023 Event Affidavit
DENIED
FILING FEE OR
AFFIDAVIT OF
04/20/2023 Order ORD-Reinstatement
INDIGENCY BY 4/25;
AMEN
04/10/2023 Motion Motion For Reinstatement
03/27/2023 Brief/Record Returned Records NO RECORD EFILED
03/27/2023 Mandate Disp. w/o Mandate
03/08/2023 Disposition Dismissed
NO RESPONSE TO THIS
03/08/2023 Order Dism. Filing Fee - Pet. COURT'S 2/23 OTSC
REQUIRED
Order - Show Cause for
02/23/2023 Order failure to file amended PT W/IN 15 DYS
Petition
PT W/IN 15 DYS FILE
ORD-NOA Treated as
02/07/2023 Order AMENDED PET AND
Writ
APX
Order to pay filing fee -
02/06/2023 Order AMENDED
Writ (300)
Acknowledgement Letter
02/06/2023 Letter AMENDED
1
Order to pay filing fee -
02/06/2023 Order
Writ (300)
Acknowledgement Letter
02/06/2023 Letter
1
: Invoice: 2023-1019211
02/06/2023 Invoice Filing Fee $300
Amount: 300
02/06/2023 Petition Petition Filed CRT OF SVC 2/1/2023