IN THE SUPREME COURT OF FLORIDA. DAPHNE ELAINE HENSON, Florida Second District Court of Appeal Case Appellee. Number: 2D /

Transcription

1 IN THE SUPREME COURT OF FLORIDA DOUGLAS LEE HENSON Appellant, Case Nos. SC v. DAPHNE ELAINE HENSON, Florida Second District Court of Appeal Case Appellee. Number: 2D / APPELLEE'S BRIEF ON JURISDICTION DEANE & HINTON, P.A. Charles D. Hinton, Esq., Florida Bar No Attorneys for the Appellee nd Avenue North St. Petersburg, Florida (727)

2 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS I II NOTE ON STATEMENT OF THE CASE AND OF THE FACTS 1 STATEMENT OF THE CASE AND OF THE FACTS 1 SUMMARY OF ARGUMENT 2 ARGUMENT 3 STANDARD OF REVIEW 3 BURDEN OF THE PETITIONER 3 LANE v. KANEY 4 GOSBY v. THIRD JUDICIAL CIRCUIT 4 CLARK v. STATE 7 AL-HAKIM v. STATE 9 CONCLUSION 10 APPELLEE S BRIEF ON JURISDICTION, PAGE I

3 TABLE OF CITATIONS CASE LAW PAGES Lane v. Kaney, 557 So.2d 210 (Fla. 5 th DCA 1990) 3, 4, 5, 6, 7, 8, 9, 10 Powell v. Watson, 565 So.2d 845, 846 (Fla. 5 th DCA 1990) 8 Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla. 1991) 2, 3, 4, 5, 6, 7, 8, 9, 10 Kaplan v. Dickey, 622 So.2d 141 (Fla. 5 th DCA 1993) 7 Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5 th DCA 2000) 8 Al-Hakim v. State, 783 So.2d 293 (Fla. 5 th DCA 2001) 7, 9 Clark v. State, 908 So.2d 597 (Fla. 4 th DCA 2005) 2, 3, 4, 7, 8, 9, 10 FLORIDA STATUTES 68.07, Florida Statutes (6), Florida Statutes (1978) 1 FLORIDA RULES OF PROCEDURE Florida Rule of Criminal Procedure , 8, 9 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) 3 Florida Rule of Appellate Procedure APPELLEE S BRIEF ON JURISDICTION, PAGE II

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5 NOTE ON THE STATEMENT OF THE CASE AND FACTS As the Record has not yet been prepared by the Clerk of the Second District Court of Appeal, this Brief on Jurisdiction contains no citations to the Record. However, the facts stated herein are all matters of public record, and it is requested that this Court take judicial notice thereof pursuant to (6), Florida Statutes (1978). STATEMENT OF THE CASE AND FACTS The Petitioner, Douglas Lee Henson and the Appellee, Daphne Elaine Paul, formerly known as Daphne Elaine Henson ( Daphne ), were divorced by final judgement entered on December 22, 2003 ( the Final Judgment ). The Final Judgment retained jurisdiction over the parties and the subject matter. In the Final Judgement, Daphne was awarded sole parental responsibility of the parties' minor child Connor Lee Henson, based upon the present incarceration of the Petitioner/Father. The Final Judgement went on to say that [t]he evidence established that the Petitioner is currently incarcerated serving a twelve (12) year sentence for lewd and lascivious conduct with a minor, the Respondent s minor child from another relationship. Since the entry of the Final Judgment, the Petitioner has APPELLEE S BRIEF ON JURISDICTION, PAGE 1

6 filed over one hundred papers with the Clerk of the Pinellas County Circuit Court. Since June of 2005, the Petitioner has filed four appeals (all dismissed), and ten Petitions seeking a writ of mandamus, most recently on April 24, All of the Petitions have been denied. On February 23, 2006, Petitioner served his eighth Petition for Writ of Mandamus, seeking to have the Second District Court of Appeal compel the Pinellas Court take action on forty-five (45) Notices to Take Judicial Action filed by the Petitioner with the Pinellas Clerk between September 7, 2005, and November 17, This Petition was assigned Case No. 2D On March 17, 2006, the Appellate Court denied the Petition without prejudice. On March 31, 2006, the Petitioner filed a Motion for Rehearing, which was denied on April 20, On May 17, 2006, the Petitioner served his Notice to Invoke Discretionary Jurisdiction, seeking to have this Court review the March 17, 2006, decision, alleging that such decision expressly and directly conflicts with a decision of another District Court of Appeal and the Supreme Court of Florida on the same question of law within the four corners of the opinion itself with Clark v. State 908 So.2d 597 (Fla. 4 th DCA 2005) and Gosby v. Third Judicial Circuit 586 So.2d 1056 (Fla. 1991). On May 24, 2006, this Court acknowledged the filing of the APPELLEE S BRIEF ON JURISDICTION, PAGE 2

7 Notice. The Petitioner requested and was granted an extension to file his Brief on Jurisdiction until June 15, The Petitioner served his Jurisdictional Brief on June 14, SUMMARY OF ARGUMENT The Jurisdictional Brief of the Petitioner fails to demonstrate that there is an express and direct conflict on the same question of law between the decision of the lower tribunal and the decisions of other districts and this Supreme Court, as required for this Court to invoke its discretionary jurisdiction to review pursuant to Florida Rule of Appellate Procedure On the face of Clark, Gosby, and Lane, those decisions involve different questions of law, thus precluding any possibility of conflict with Henson. Moreover, the rulings in Lane and Clark are not in conflict with the ruling in Henson, as all three Appellate Courts declined to issue a writ. The Petitioner first argues that the conflict with Clark, Gosby and Lane is within the four corners of the Henson opinion, then argues that facts which he alleges underlie the Henson opinion form the basis for the conflict. Such argument is inappropriate for a Brief on Jurisdiction. ARGUMENT STANDARD OF REVIEW

8 This Court s standard of review in this case on whether or not to invoke its discretionary jurisdiction pursuant to Florida Rules of Appellate Procedure and is limited to a determination that, on its face, the ruling in Henson: (1) deals with the same questions of law as Clark, Gosby, and Lane; and (2) expressly and directly conflicts with those cases. BURDEN OF THE PETITIONER While the Petitioner, in his Jurisdictional Brief, alleges that the March 17, 2006, decision in Henson, expressly and directly conflicts with Clark, Gosby, and Lane, his burden, pursuant to Fla. R. App. P (a)(2)(A)(iv), in order to have this Court invoke its discretionary review, is to establish that the decision in Henson expressly and directly conflict[s] with a decision of another district court of appeal or of the supreme court on the same question of law (emphasis added). An analysis of the decisions in Clark, Gosby, and Lane reveals that those cases address different questions of law and are not conflict with the decision in Henson. LANE v. KANEY Lane v. Kaney involved an inmate who filed a name change petition, which the trial court failed or refused to rule on. Inmate then filed a writ of mandamus. While the appellate APPELLEE S BRIEF ON JURISDICTION, PAGE 4

9 opinion merely says, without explanation, that the trial judge should rule on the name change one way or another, it declined, just as in Henson, to issue the writ. Given that the rulings were the same, the Petitioner s Jurisdictional Brief fails to show that there is any conflict between the decisions of Lane and Henson. In addition to this absence of conflict in the decision of the court, it will be demonstrated below that Lane and Henson do not involve the same question of law. GOSBY v. THIRD JUDICIAL CIRCUIT The case of Gosby v. Third Judicial Circuit significantly illuminates the decision in Lane. Like Lane, Gosby involves an inmate s petition for a name change. This Court, in Gosby, focused first on the fact that the judge wrote Gosby that name change petitions are not granted without a hearing and that he could not act upon the petition without Gosby's presence at a hearing, which would be difficult or impossible for Gosby since he was incarcerated. Gosby at In his Jurisdictional Brief, the Petitioner has failed to allege or demonstrate that the trial court has entered any similar ruling, or sent any such letter. This alone is sufficient to show that the ruling in Henson does not expressly and directly conflict with a decision in Gosby on the same question of law, because Henson and Gosby

10 do not deal with the same question of law. While the Gosby court focused on the incorrectness of the trial judge s decision to refuse to enter a ruling without the inmate s appearance at a hearing, the Petitioner has failed to establish how the decision of the Second District Court of Appeal in Henson involves the same or any similar issue. Moreover, in Gosby, this Court found a prisoner's facially sufficient name change petition should be granted where there is no evidence to support any ulterior or illegal purpose. [Citations omitted]. Id. The Supreme Court s ruling in Gosby, as with the ruling in Lane, is limited in scope to cases dealing with petitions for change of name. As indicated by the analysis of this Court in Gosby, and by a review of 68.07, Florida Statutes, in a name change case, the judge must decide whether or not to simply grant the petition, or require an evidentiary hearing on the petition. 1 As there is normally no adversary in a name change case, the burden is upon the assigned trial judge to determine how much or how little evidence in support of the petition must be presented by 1 Note, for example, the statement at 68.07(3), Fla. Stat. (2005) that, [t]he hearing on the petition may be immediately after it is filed. APPELLEE S BRIEF ON JURISDICTION, PAGE 6

11 the petitioner. Gosby correctly stands, in part, for the proposition that a trial court may not arbitrarily deny a facially sufficient name change petition. In his Jurisdictional Brief, the Petitioner has failed to allege or demonstrate that Henson involves a name change. Unlike an uncontested name change petition, Mr. Henson s case is a contested post-dissolution dispute with his former spouse. As such Henson and Gosby do not involve the same question of law. As further evidence of the limited application of the Gosby decision, the Supreme Court stated in Gosby that [t]he real issue in this case is whether the trial court can make Gosby's physical presence at a hearing a condition precedent to granting a name change under section 68.07, Florida Statutes (1987). Id. This once again shows that the decisions in Lane and Gosby are limited in application to name change cases and cases where the issue is whether or not the physical presence of an incarcerated party is necessary or whether participation of the incarcerated party can be accomplished by telephonic or other means. The only Florida cases which discuss the decision in Gosby deal either with name change petitions, or the issue of appearance of

12 an inmate at a hearing. 2 In his Jurisdictional Brief, the Petitioner has failed to allege or demonstrate that Henson involves either of these issues. Within the four corners of the Henson opinion, there is no suggestion that the decision in Henson should be made applicable to name change petitions, or affect the issue of the necessity of the physical appearance of an inmate at court hearings. CLARK v. STATE Unlike Lane and Gosby, the decision in Clark v. State does not involve a petition by an inmate for change of name. In Clark, as in Al-Hakim v. State 783 So.2d 293 (Fla. 5 th DCA 2001) (the case cited in the Henson court s decision), the central issue is whether or not a trial court judge s failure to take action upon a Florida Rule of Criminal Procedure motion is grounds for issuance of a writ of mandamus. In his Jurisdictional Brief, the Petitioner has failed to allege or demonstrate that Henson involves Rule Given that Henson is not a criminal case, it is manifest that such Rule of 2 The only discussion of the decision in Lane, outside of Gosby, is Kaplan v. Dickey 622 So.2d 141 (Fla. 5 th DCA 1993), where the court, as in Lane, declined to issue the writ, which is obviously not in conflict with the Henson court s decision not to issue the writ. APPELLEE S BRIEF ON JURISDICTION, PAGE 8

13 Criminal Procedure is not applicable. It is important to first note that as with a name change petition (but unlike the applicable law in the Henson case), Florida Rule of Criminal Procedure imposes upon the trial judge certain specific obligations to take action on a motion filed. A review of Rule shows that the trial judge is an active participant in the proceedings, taking the initiative in: reviewing the motion prior to any hearing, reviewing the file, making preliminary rulings on its sufficiency based upon such review, ordering a response by the state attorney, determining the necessity of a hearing, and actually setting the hearing. These are exceptional requirements for a trial judge, and are well outside the realistic burdens placed on a trial judge in most cases. See Powell v. Watson 565 So.2d 845, 846 (Fla. 5 th DCA 1990) and Smartt v. First Union National Bank 771 So.2d 1232 (Fla. 5 th DCA 2000) for a discussion of a trial judge s role in managing cases. In his Jurisdictional Brief, the Petitioner has failed to allege or demonstrate that Henson involves any Rule of Procedure, or statute, similar to Rule 3.850, requiring such initiative by the trial judge. Instead, he has merely stated that the decision in Henson, on its face, conflicts with Clark,

14 Gosby, and Lane. Given that those three cases involve very different areas of the law, it can not be concluded that the decision in Henson expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Moreover, it is important to note that even where, as in Clark, the appellate court found that Rule was involved, the Clark court still denied the petition for writ of mandamus without prejudice. Even assuming, arguendo, that Henson did involve the same questions of law as Clark, Gosby, and Lane (which it most certainly does not), the Petitioner has failed to demonstrate that the Henson decision expressly and directly conflicts with Clark or Lane in that in all three decisions the District Courts of Appeal refused to grant the petitions for writ of mandamus. AL-HAKIM v. STATE The Henson decision, on its face, specifically relies upon Al-Hakim v. State, 783 So.2d 293 (Fla. 5 th DCA 2001) and based thereupon states that the Petitioner is required to set the matter for hearing before the trial court is obligated to rule. The Petitioner s Jurisdictional Brief fails to show that Al- Hakim conflicts with Clark, Gosby, and Lane. Additionally, the APPELLEE S BRIEF ON JURISDICTION, PAGE 10

15 Jurisdictional Brief contains argument that the Henson appellate court failed to recognize the quality of his efforts to set a hearing, based on facts outside of the appropriate confines of a Brief on Jurisdiction 3. The Henson court determined that the Petitioner had failed to set the matter for hearing. The Henson court did not rule, as Petitioner is now attempting to argue, that Petitioner s efforts were insufficient. Such facts were for the Second District Court of Appeal to determine, not for this Court to review in a Brief on Jurisdiction. While first stating that the conflict exists within the four corners of the opinion itself, the Petitioner then tries to expand, by reference, the substance of the decision to create an artificial conflict that does not exist. CONCLUSION The Respondent asks that this Court decline to invoke its discretionary jurisdiction to review the decision of the Second District Court of Appeal in Henson v. Henson. The Petitioner s 3 See, for example, page 3 of the Jurisdictional Brief, first sentence, final paragraph: In the decision of the District Court, Henson v. Henson (Appendix A), the District Court does not acknowledge the facts provided with the Petitioner s Petition for Writ of Mandamus.

16 Jurisdictional Brief fails to establish any basis for this Court to conclude that there is an express and direct conflict on the same question of law between the decision of March 17, 2006, in Henson and the statements of the law contained in Clark, Gosby, and Lane. Accordingly, it is appropriate for this Court to decline to review the Henson decision. APPELLEE S BRIEF ON JURISDICTION, PAGE 12

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief on Jurisdiction was mailed to Douglas Lee Henson, A121485, Hamilton C1 Main, H2124S, SW 46 th Street, Jasper, FL 32052, on this the 26 th day of June, Charles D. Hinton, Esq. of DEANE & HINTON, P.A nd Avenue North St. Petersburg, Florida (727) FBN / SPN Attorneys for Appellee CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Brief on Jurisdiction is in Courier New 12-point font, in compliance with the font requirements of Rule 9.210(a)(2). Charles D. Hinton, Esq. Attorneys for Appellee