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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

circumstances

circumstances surrounding her original trial testimony. Roberts, 840 So. 2d at 971 (emphasis added). Certainly, the most basic principles of due process are notice and opportunity to be heard. The opportunity to be heard must include the right to compel the presence of those witnesses necessary to support the claim upon which this Court ordered the evidentiary hearing. 50 To deny Mr. Riechmann a right that has been extended to other identically situated 3.850 petitioners would constitute an equal protection violation, as well as a violation of due process. Judge Bagley erred in denying Mr. Riechmann’s motion to depose Smykowski, and then subsequently in precluding the introduction of Smykowski’s affidavit and oral statements that his testimony at Mr. Riechmann’s was false. 51 This Court must reverse and remand for evidentiary hearing at which Mr. 50 In Garcia v. State, 816 So. 2d 554, 565 (Fla. 2002), Judge Bagley demonstrated a similar failure to appreciate a criminal defendant’s right to present favorable evidence. There, this Court reversed the conviction because Judge Bagley refused to admit the prior sworn testimony of a former codefendant that was “critical in assessing Garcia’s guilt.” 51 Because Mr. Riechmann was left with no means of presenting Smykowski as a witness, Judge Bagley sustained the State’s objection to Loretta Stitzer’s testimony because of a failure to establish relevancy (Supp. PC-R2. 246-48). Likewise, the circuit court refused to reopen the evidentiary hearing to allow oral statements given by Smykowski to German police which corroborated his affidavit. 60

Riechmann is provided the tools necessary to obtain a material witness’s testimony who is outside the jurisdiction of a Florida court. ARGUMENT III THE CIRCUIT COURT JUDGE ENGAGED IN EX PARTE COMMUNICATION WITH THE STATE WHILE PREPARING HIS ORDER DENYING MR. RIECHMANN’S MOTION TO VACATE, SOUGHT TO OBTAIN EVIDENCE NOT INTRODUCED INTO EVIDENCE, AND DID IN FACT RELY UPON KNOWLEDGE OF INTERNAL OFFICE PROCEDURE NOT OBTAINED THROUGH ANY EVIDENCE PRESENTED AT THE EVIDENTIARY HEARING. THE CIRCUIT COURT’S ACTIONS DEPRIVED MR. RIECHMANN OF DUE PROCESS AND A FULL AND FAIR PROCEEDING. A. Ex Parte On February 27, 2003, one of the prosecutors handling the collateral proceedings, Joel Rosenblatt, sent a letter to Judge Bagley, the presiding judge, and copied Mr. Riechmann’s counsel. In this letter, Mr. Rosenblatt indicated that the secretary for the lead prosecutor, Reid Rubin, had advised Mr. Rosenblatt that Judge Bagley’s judicial assistant had “contacted her in an effort to obtain copies of the depositions of Doreen Bezner, Donald Williams and Det. Hanlon and Matthews.” Because Mr. Rubin was out of town, Mr. Rosenblatt was notified and responded to the request by writing the letter and declining to provide the requested material (Supp PC-R2. 75-76). On February 28, 2003, Judge Bagley entered his order 61

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