IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

GORDON WAYNE WATTS, Individually,			
As a Florida Citizen, Generally, on behalf of
similarly situated Citizens, and Specifically
on behalf of Theresa Marie Schindler-Schiavo,			Case No.: 2003-005071AP-88A
								UCN522003AP005071XXXXCV
Petitioner						

V.								

City of Pinellas Park, Florida
Police Dept., et al.,

	Respondents
__________________________________/

AUTHORIZED MOTIONS FOR CERTIFICATION and FOR CLARIFICATION

This cause comes before this court as authorized motions for certification and clarification of the Order of this Court, dated Dec 31, 2003, and authorized by RULE 9.330(a), Fla.R.App.P., which allows 15 days from Dec 31, 2003 to file such motions.

Preface: Petitioner fully acknowledges that this petition is being electronically signed on the date shown below - but not physically signed at the instant moment due to the lack of a printer; This technicality, if taken right, can dismiss this petition before it even gets started, however The Court shall receive this petition apparently within the time guidelines for service of briefs, in accord with RULE 9.420(d), Fla.R.App.P.

LIMITATIONS:
The rules might be interpreted to mean that Petitioner Gordon Watts has only 1 opportunity to file a motion for rehearing or clarification. However, the rules explicitly allow 1 motion for certification based on its plain and explicit language. "A party shall not file more than 1 motion for rehearing or clarification of decision and 1 motion for certification with respect to a particular decision." RULE 9.330(b), Fla.R.App.P. (Emphasis added)
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EFFECT ON PROCEEDINGS:
Effect A:
At least the explicit motion for certification of a question - and possibly also the clarification motion shall toll (suspend) the time-clock of the proceedings in the instant case. "Except as prescribed by subdivision (d) of this rule, service of a motion SHALL toll (suspend and stop) the time schedule of ANY proceeding in the court until disposition of the motion." RULE 9.300(b), Fla.R.App.P. (Emphasis added)

Effect B:
The decision by the lower tribunal, the Appellate Division, Section 88A, of the 6th Judicial Circuit, to ignore well-established case law and state laws has effectively clogged up the court system by necessitating additional proceedings, authorized and recognized by the court and law herein, when the case at bar could have properly been disposed of in the prior proceedings.

This cause is filed in a timely matter, in that the day of service, 15 Jan 2004, is not counted. (RULE 9.420(e), Computation), and this court shall allow 5 additional days after service by mail (RULE 9.420(d), Fla.R.App.P.).

The Motion for Certification:
Unlike the motion for clarification (RULE 9.330), the motion for certification need not be bound by the limitations that  mandate it "shall not present issues not previously raised in the proceeding." (RULE 9.330(a)) Nonetheless, Appellant shall apply the same standards to be consistent and equitable to This Court in its apprehension of the issues:

WHEREFORE Petitioner hereby respectfully petitions This Court to Certify the following QUESTION, under the authorities supra as well as RULE 9.030(b)(2), to the District Court of Appeal:

RULE 9.030(b)(2) Certiorari Jurisdiction. The certiorari jurisdiction of the district courts of appeal may be sought to review
	(A) non-final order of lower tribunals other than as prescribed by rule 9.130;
	(B) final orders of circuit courts acting in their review capacity.
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COMES NOW Petitioner, Gordon W. Watts, by authority of the rules and laws of this state, and respectfully moves This Court to certify the following question to the district court of appeal, of the second judicial district:

DOES MANDAMUS LIE TO COMPEL THE LOCAL POLICE, THE STATE ATTORNEY, OR THE STATE ADULT PROTECTIVE SERVICES OF FLORIDA TO INVESTIGATE THE ALLEGED ABUSES OF A STATE CITIZEN IN LIGHT OF SECTIONS 27.251, 27.255(1), 112.19, 415.104(1), 943.10, and 825.102(3)(a)1. and (b) OF STATE LAW, AND OASAM, CFR 35.130(e)(2) AND 42 CFR 418.22(b), FEDERAL LAW?

CITATIONS, with emphasis provided: 

27.251 Special organized crime investigators.--
The state attorney of each judicial circuit is authorized to employ any municipal or county police officer or sheriff's deputy on a full-time basis as an investigator for the state attorney's office with full powers of arrest throughout the judicial circuit provided such investigator serves on a special task force to investigate matters involving organized crime...

27.255 Investigators; authority to arrest, qualifications, rights, immunities, bond, and oath.--
(1) Each investigator employed on a full-time basis by a state attorney and each special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 is hereby declared to be a law enforcement officer of the state and a conservator of the peace, under the direction and control of the state attorney who employs him or her, with full powers of arrest...

112.19 Law enforcement, correctional, and correctional probation officers; death benefits.-- (1) Whenever used in this section, the term:
(b) "Law enforcement, correctional, or correctional probation officer" means any officer as defined in s. 943.10(14) or employee of the state or any political subdivision of the state, including any law enforcement officer, correctional officer, correctional probation officer, state attorney investigator, or public defender investigator, whose duties require such officer or employee to investigate, pursue, apprehend, arrest, transport, or maintain custody of persons who are charged with, suspected of committing, or convicted of a crime..." 

943.10 Definitions; ss. 943.085-943.255.--The following words and phrases as used in ss. 943.085-943.255 are defined as follows: 
(1) "Law enforcement officer" means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime..." 

825.102  Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties.--
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(3)(a)  "Neglect of an elderly person or disabled adult" means: 

1.  A caregiver's failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly person's or disabled adult's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult; or 

(b)  A person who willfully or by culpable negligence neglects an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. 

Also, In the OASAM Code of Federal Regulations, Part 35: NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES provides that necessary and appropriate rehabilitation services and physical motor skill therapy may not be denied a substantially disabled patient in the United States of America, Section 35.130(e)(2) states, “Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

Finally, please note that Schiavo’s decision to hold Terri at Hospice after it was clear that she was not "terminal" within Medicare guidelines was an improper use of the ward’s assets. In order to receive federal payment for hospice care, the facility must obtain a certification from the attending physician within two calendar days of initial admission that the patient’s "prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course." 42 C.F.R. § 418.22(b) (FEDERAL LAW) Terri has been in Hospice 3 years. Where are the physician certificates authorizing this?

The Motion for CLARIFICATION:
This motion is authorized: "A motion for clarification shall state with particularity the points of law or fact in the court's decision that in the opinion of the Movant are in need of clarification. A response may be served within 10 days of service of this motion." RULE 9.330(a), Fla.R.App.P. (Emphasis added)

Movant poses these questions - IN NEED OF CLARIFICATION:
POINT OF LAW:
In its decision dated Dec 31, 2003, what rules of the court or laws justify This Court in making the claim that the "Reply of Petitioner, opposing a motion to dismiss for lack of Jurisdiction, in re: Petition for Writs of Habeas Corpus, Quo Warranto, Prohibition, and Mandamus," should be treated as a motion for rehearing, when, in fact, this petition was clearly a motion opposing Woodside Hospice's petition to dismiss the instant cause before This Court?
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POINT OF FACT:
What material fact would justify This Court in making it apparent misclassification as described in the question supra?

POINT OF LAW:
What authority permitted This Court to untimely rule on the motion to dismiss by Movant, Woodside Hospice, when the time had not expired for Respondent, Gordon Watts to reply - as elucidated in the "Reply of Petitioner, opposing a motion to dismiss for lack of Jurisdiction...," signed and dated on 29th of Dec 2003? "The tenth day fell on 21 December 2003...However, This Court ruled on this motion in error prematurely, at approximately 5pm that evening (22 Dec), before time had expired to file a response by petitioner, and that portion of the ruling which states dismissal should temporarily be a nullity and void ab initio, until such time is allowed...This Court should not be swayed by the 'small' stature of petitioner..." (Reply Brief cited supra)

LAST POINT in need of Clarification:
In light of the laws and facts contained within the "four corners" of both this brief and also all prior briefs in this cause, including the case law cited infra, by what authority of law or finding of fact does This Court do the following three (3) acts:

(1) Issue its order dated Dec 19, 2003, making claims that petitioner lacks standing?

(2) Find in it Dec 31, 2003 decision that "the Petitioner has presented no points of law that were overlooked or misapprehended by This Court in its Order Dismissing Petition for Writ of Habeus (sic) Corpus, entered December 19, 2003?"

(3) Fail to acknowledge, consider, rule upon, or favorably rule upon the instant petitions for Mandamus, Quo Warranto, and Prohibition brought before this Appellate Division of this circuit court of the Florida Sixth Judiscial Circuit in the instant case at bar currently in this cause and before This Honorable Court?

Case Law, referenced supra:
State ex rel. Peacock v. Latham, 125 Fla. 69, 169 So. 597 (1936) makes quite clear that the mere availability of another remedy does not constitute a bar to mandamus. 

“When facts are to be considered and determined in the administration of statutes, there must be provisions prescribed for due notice to interested parties as to time and place of hearings with appropriate opportunity to be heard in orderly procedure sufficient to afford due process and equal protection of the laws…” Declaration of Rights, $$ 1,12. McRae v. Robbins, 9 So.2d 284, 151 Fla. 109.
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“Delay in the prosecution of a suit is sufficiently excused, where occasioned solely by the official negligence of the referee [Trial Court, in the instant case], without contributory negligence of the plaintiff, especially where no steps were taken by defendant [Dept of State] to expedite the case.” Robertson v. Wilson, 51 So. 849, 59 Fla. 400, 138 Am.St.Rep. 128. 

These petitions are respectfully brought before This Honorable Court and seek justice and resolution in the name of the State Laws of Florida.

Respectfully submitted,
Gordon Wayne Watts
Gordon Wayne Watts

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent to the following parties by FIRST CLASS US POSTAL MAIL, this _15th_ day of January 2004, Certified with Return Receipt, in some cases where there is a question of delivery or other anomolies:

* Circuit Court, Sixth Judicial Circuit, Florida - APPELLATE DIVISION - Room 170 - 315 Court Street North - Clearwater, FL 33756-5165

* Patricia Fields Anderson, Esq. - 447 Third Avenue North, STE 405 - St. Petersburg, FL 33701

* George J. Felos, Esq. - 595 Main Street - Dunedin, FL 34698

* Deborah A. Bushnell, Esq. - 204 Scotland Street - Dunedin, FL 34698

* Christina Calamas, Esq. - 400 S. Monroe St., STE 209 - Tallahassee, FL 32399-6536

* George LeMieux, Esq. - Office of the Attorney General - Plaza Level 01 - 400 S. Monroe Street - Tallahassee, 

* Jay Alan Sekulow, Esq. - American Center for Law and Justice - 201 Maryland Ave., NE - Washington, DC 20002

* Randall C. Marshall, Esq. - American Civil Liberties Union of Fla. - 4500 Biscayne Blvd., STE 340 - Miami, FL 33137

* Thomas J. Perrelli, Esq., Robert M. Portman, Esq., Nicole G. Berner, Esq. - 601 13th Street, NW, STE 1200 - Washington, DC 20005

* City of Pinellas Police Department - 7700 59th Street North - Pinellas Park, FL 33781-3247
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* Woodside Hospice House - 6770 102nd Ave. - North Pinellas Park, FL 33782-2909

* Michael D. Malfitano, Esq., John W. Campbell, Esq., and Monica J. Williams, Esq., Attorneys for Woodside Hospice House, Pinellas Park Florida c/o Costangy, Brooks, & Smith, LLC
(100 West Kennedy Boulevard, STE 500) Post Office Box 1840 - Tampa, FL 33601-1840

* Hon. George W. Greer, Judge, c/o Florida Sixth Judicial Circuit Court - Rm. 484
315 Court Street, Clearwater, FL 33756-5165

* Hon. W. Douglas Baird, Judge, c/o Florida Sixth Judicial Circuit Court - Rm. 468
315 Court Street, Clearwater, FL 33756-5165

* Kenneth L. Connor, Esq., Counsel for Respondent Governor Jeb Bush - c/o Wilkes & McHugh, P.A., One North Dale Mabry, STE 800 Tampa, FL 33609-2755
* Kenneth L. Connor, Esq., Counsel for Respondent Governor Jeb Bush - 19928 Evergreen Mill Road - Leesburg, VA 20175-8741

* The Florida Department of ADULT PROTECTIVE SERVICES c/o
Florida Department of Children and Families-APS
1317 Winewood Blvd. - Bldg. 6 Room 366
Tallahassee, FL 32399-0700

* Bernie McCabe,
State Attorney for Pinellas County Florida
 PO Box 5028 Clearwater, FL 33758 

* Bernie McCabe, 
State Attorney for the Sixth Judicial Circuit
Room 100
14250 49th Street - Clearwater, FL 33760

				Respectfully submitted,
				
				Gordon Wayne Watts
				GORDON W. WATTS, Petitioner / Plaintiff / Appellant
				821 Alicia Road - Lakeland, Florida 33801-2113
				Home Phone: 863-688-9880
				Work Phones: 863-686-3411 and 863-687-6141
				Electronic Mail: Gww1210@aol.com

				Acting Attorney for the Appellant:
				         Gordon W. Watts, PRO SE
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