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Statement of Facts


Statement of Facts

RE-STATEMENT OF STATEMENT OF FACTS

      Mr. Daiak testified that he believed that someone was breaking into his home, at

one-in-the-morning, during Hurricane Frances, on September 5, 2004 in Holiday,

Florida. He yelled and screamed at them to go away, then in fear and desperation, he

fired two warning shots from his legal revolver into his sofa and one of his bookcases.

The unseen intruders fled into the hurricane night, into a night where thousands of

homes, two blocks away (but not Mr. Daiak's concrete-block home), were under

mandatory evacuation orders, as the winds of Hurricane Frances neared the 40 mile-per-

hour mark at which all police response would cease. Not “martial law,” but “no law;” you

would be on your own. The State’s N.O.A.A. hurricane map showed 39 M.P.H. winds.


      Mr. Daiak found out two days later, from the hospital, that it was Pasco County

Deputies who had been sneaking around his home that hurricane night; with no patrol cars,

no sirens, no lights, or loudspeakers, to alert Mr. Daiak that it was anyone except

looters or intruders, at one-in-the-morning. The deputies opened his front screened

entry-door, without a warrant, in “order to see better inside,” about a minute before the

two warning shots into a sofa were heard at 1:07 A.M. This was some fifty-six (56)

minutes after the initial response of the deputies at 12:11 A.M.; a response that Mr. Daiak

knew nothing about. The deputies testified that they thought they were responding to a

possible suicide threat, based solely on Mr. Daiak’s fiancée’s statement that in a split-

second glance, without a word being said, thought she saw Mr. Daiak pointing a

handgun at his head. Mr. Daiak testified at length, and demonstrated for the jury, that

he was not suicidal; that he had simply taken his legal revolver out of his Brink’s safe,

and done a quick safety inspection, including opening the cylinder, and glancing at the

barrel to check for any blockage. Mr. Daiak had had a concealed weapons permit

since 1987.


      The deputies testified that they believed that they were at Mr. Daiak’s home, to

“help” what they wrongly believed could be a suicidal situation. Yet, the deputies

waited 56 minutes, to “help,” from the 12:11 AM initial response, unknown to Mr.

Daiak, until they opened his front entry door at 1:07 AM, without a warrant, a minute

before Mr. Daiak’s warning shots, as he believed someone was breaking into his home.

The deputies testified that they had “exigent circumstances,” and a “barricade situation,”

so that they did not need a warrant before opening his front door. However, they waited

56 minutes, and had time to bring machine-guns with them, to “help” a man who knew

nothing about the situation at all, and had gone to sleep about 12:15 AM, during

Hurricane Frances.


      Mr. Daiak testified that at, what turned out to be 3:30 AM, he woke up when a

bomb, a flash-bang bomb, went off two feet from his head; then he was beaten by men-

in-black in military commando clothing, all with machine guns pointed at him. They

hand-cuffed him, and they hog-tied him, but they did not “arrest” him, until 18 days

later, when he got out of the hospital, with a $38,000 bill. Instead, “in-lieu-of-arrest,” a

deputy who never had seen him or talked to him, signed a Baker-Act form, saying that

Mr. Daiak was possibly suicidal, because he had shot at deputies, and that someone

thought he had pointed a gun at his head. However, the deputies never told the

hospital or doctor that a heavily-armed SWAT team had just bombed, beaten, hand-

cuffed, and hog-tied Mr. Daiak: It was not until two days later that the doctors

believed Mr. Daiak, that a bomb had gone off next to his head, then men-in-black-

with-machine-guns came into his home.


      The deputies did not have a warrant at 3:30 AM, either; some two-and-a-half

hours after the 1:07 AM shots were heard. Although they had 2 ½ hours to seek a

warrant, they chose not to do so, before using a battering ram to destroy a solid-wood

front door, then broke out a back window with a hooligan-tool, then set off a bomb, a

flash-bang bomb, two feet from Mr. Daiak’s head; and then rushed into his home to beat,

hand-cuff, and hog-tie him; all without a warrant.

      The evidence technician failed to find any bullet slugs, despite an hours long,

destructive search, tearing apart Mr. Daiak’s walls, drywall over 8” concrete block.

The State also failed to test for gun-powder residue on Mr. Daiak’s hands, or to test the

Smith & Wesson revolver found, to see if it had recently, or ever, been fired, or was

capable of being fired. Before Mr. Daiak testified, the only proof the State presented

was that the deputies heard what sounded like two gunshots, and that they saw the

second of what could have been a muzzle flash. They never saw Mr. Daiak, or a gun,

even though they testified that deputies with machine-guns in hand, were standing

directly in front of what they said was a wide-open front door; a door they said did

not slam shut until they heard what sounded like gun shots, at 1:07 AM; a minute after

they had opened his front screened door, without a warrant, “in order to see better

inside.”


      Mr. Daiak was a 52-year-old citizen, a lawyer from the University of Florida

College of Law (1994); and had been an International Petroleum Economist for the

Department of Defense, buying crude oil and military jet fuel. He had moved to

Florida in 1980, and had opened and operated a retail picture-framing store; then had

become a real-estate broker, before starting law school, on a merit scholarship (top 2%

LSAT), at 38 years old.


      Mr. Daiak is now “Unknown Prisoner No. C00407,” imprisoned for twenty

years, mandatory, for firing two warning shots into his sofa to avoid harming the

persons that he believed were breaking into his home, at one-in-the-morning, during

Hurricane Frances.



      WHEREFORE, Appellant Joe Frank Daiak, Jr., begs this Court to grant his

Motion for Rehearing pursuant to rule 9.330(a).


X________________________________

Joe Frank Daiak, Jr.
C00407
Madison C.I.
382 S.W. MCI Way
Madison, FL 32340