IN THE SUPREME COURT OF FLORIDA. PETITIONER, CASE NO.: SC11-~~ Lower Tribunal: 2D11-45~------_. MOTION TO STAY PROCEEDINGS

Transcription

1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, vs. PETITIONER, CASE NO.: SC11-~~ Lower Tribunal: 2D11-45~------_. -- LUKE JARROD ADKINS, et al., RESPONDENTS. 1 MOTION TO STAY PROCEEDINGS COMES NOW the Petitioner, State of Florida, pursuant to Florida Rule of Appellate Procedure 9.310(f), and requests this Court to stay proceedings in this case, as well as all other cases attacking the constitutionality of Section , Florida Statutes. As grounds therefore, the State shows: 1. On September 28, 2011, the Second District Court of Appeal certified, pursuant to Article V, section 3(b) (5) of the Constitution of Florida, a question of great public importance requiring immediate resolution by this Court. See State v. Adkins, 2011 WL (Fla. 2d DCA September 28, 2011). 2. Adkins concerns the State appeal of forty-six (46) separate criminal proceedings in which Circuit Court Judge Scott M. Brownell granted the defense motion to dismiss, finding Section unconstitutional. 3. On October 12, 2011, this Court accepted jurisdiction and 1

2 ordered expedited briefing, with Oral Argument scheduled for December 8, On October 14, 2011, the First District Court of Appeal issued its opinion in Flagg v. State, 2011 WL (Fla. 1 st DCA October 14, 2011). The First District specifically addressed and rejected the claim that Section was unconstitutional. 5. Prior to the issuance of the Flagg opinion, on October 6, 2011, Judge Brownell again granted defense motions to dismiss on ten (10) other cases finding Section unconstitutional as he had previously done in Adkins. However, the State filed a motion for rehearing in light of the decision in Flagg. The State's Emergency Motion for Rehearing on Defendant's Motion to Dismiss is attached hereto. 6. On October 20, 2011, Judge Brownell denied the State's Motion for Rehearing on Defendant's Motion to Dismiss. In his Order Denying Rehearing, attached hereto, Judge Brownell opined, in part: The Court respectfully notes that the Flagg opinion does not provide any new law that was not already previously considered by this Court when it issued its order granting motions to dismiss. Also, this Court granted the motions based on several legal determinations, none of which were that Shelton (fn omitted) was binding on this Court. To be clear, this Court's specific determinations, which led to the decision to grant motions to dismiss, were not made in contrast to any binding courts' decisions. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (recognizing that \\ in absence of interdistrict conflict, district court decisions bind all Florida trial courts".) Moreover, because the Court's determinations have raised issues 2

3 1 that are now under review by the Florida Supreme Court, and Flagg does not specifically address all of those issues, this Court finds no reason to depart from its previous rulings. 7. Petitioner is requesting an Order from this Court granting a stay of proceedings in all cases attacking the constitutionality of Section , Florida Statutes. Such an Order will obviate the disparate treatment this issue has engendered in the lower courts. Both the First and Second District Courts of Appeal have expressed concern that the instant issue needs a definitive ruling from this Honorable Court in order to remedy a situation where different circuits (or even different judges in the same circuit) may continue to take opposite positions on the issue. See Flagg, supra. Moreover, both the First and Second District have agreed that "the uncertainty caused by Shelton is affecting the administration of justice around the state and that an expeditious decision from the supreme court addressing the constitutionality of Section is needed.." Flagg, supra. WHEREFORE, Petitioner respectfully asks this Court to grant a stay of proceedings in all cases in which the issue as to the Constitutionality of Section is pending. 3

4 1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by and u.s. mail to Matthew Bernstein, Assistant Public Defender, P.O. Box 9000-Drawer PO, Bartow, Florida on this 24th day of October, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a} {2}. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL n1ef Assistant Attorney General Bureau Chief, Tampa Florida Bar No JOHN M. KLAWIKOFSKY Assistant Attorney General Florida Bar No DIANA K. BOCK Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida Telephone: (813} Facsimile: (813} COUNSEL FOR Appellant 4

5 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MA.:~ATEE COUNTY, FLORIDA STATE OF FLORIDA. Plaintiff. VS. CASE NO; ROBERT ALTOMONTE 2011 CF ALEX AMMIRATO 2011 CF RICKY ALLEN HAGEDORN 2011 CF BUDDY HALL 2011 CF DONALD EARL JA.\1ES 2011 CF KIERON W. JAMES 2010 CF JESUS.TIMEl\TEZ 2011 CF CHRISTOPHER MANN 2011 CF 00) i32 SHANNON MILLER 2011 CF JOSHUA MOORE 2011 CF Defendants. ~I STATE'S EMERGENCY MOTION FOR REHEARING ON DEFENDANT'S MOTION TQ.DIS}"flSS THE STATE OF FLORIDA., represented by Earl Moreland, State Attorney for the Twelfth Judicial Circuit, respectfully reque..~ this Honorable CC.lUrl for rehearing on Defendant'5 Motion to Dismiss, and as grounds therefore would show: 1n a series of orders filed OD or between Oclober 6, 2011 and October 17,2011 in be above-listed cases, the Honorable Scott BroVlrnell found Section , Florida Statute.s, to be unconsti~tional and dismissed charges fijed by the State of Florida in vlolation of said statute. 2 In the dismissal orders, the Court distinguished opinions issued by Florida appellate courts that previously found said statute constitutional by noting that "[njone of the distric1 court opinions have addressed the con.c;titutlonal limitations on the Jegislature for defining elements offclonies. where the legislature has ex.pressly slated its intention to remove the mens rea element, and as a [ sic] issue of flis( impression at the state court level. i1 is properly before the Court." 3 On October )4,2011, the First District Court of Appeal in Flam! v. State, 201l WL 1 E-Fled 2011 CF ( :37:12 PG 1 of 2

6 (Fla. 1;;'1 DCA 2011), specifically addressed a challenge to Section predicated on the argument that it is "'unconstitutional because the mens rea requirement in the statute was eliminated by section '" 4 In ~ the First District flatly rejected the constitutional challenge raised by the defe-.nse while announcing that it is providing a "defmitive statement... reaffirming the constitutionality of section " 5 Citing Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992), the appellate court ex.plained that its opinion showd preselve the "status quo" as to the validity of the statute in question until the Florida Supreme Court rules on the constitutional issue. 6 There is no Florida district court opinion in conflict with El!!gg. 7 "[1)n the absence ofioterdistrict conflict., district court decisions bind all Florida trial courts." Pardo v. State, 596 So. 2d at 666. WHERE'FORE, the State of Florida respectfully reque..<:ts that this Honorable Court revisit Defendant's Motion to Dismiss and deny same in light of the authority cited herein. EARL MORELAND, STATE ATTORl\r"EY TWELF1H JUDICIAI, CIRCUIT BY:~?~~~_ BRIA.l-.J A, ITEN Horida Bar No: Assistant State Attorney P.O. Box 1000 Bradenton, FL t ~ CERTIFICATE OF SERVICE 1 HEREBY CERT1FY that a true copy ofthe foregoing Motion bas been furnished by to: Mark Lipinksi, Esq.; Traci Dishman,. Assistant Public Defender~ Mary Stuart Lyall, Assistant Public Defender;.tume E. Hunter, Assistant Public Defender; Andrew Crav,.ford, Esq., Regional Counsel; and.1 oe Campoli, ESq.; Attorneys for Defendants, this.ll.f:oay of October, 201 J. BlU-W A. ITEN ASSISTANT STA'IE A ITORNEY 2 E-FIIed 2011 CF :37:12 PG 2 of 2

7 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. CASE NO(s).: ROBERT ALTOMONTE ALEX AMMIRATO RICKY ALLEN HAGEDORN BUDDY HALL DONALD EARL JAMES KIERON W. JAMES JESUS JIMENEZ CHRISTOPHER MANN SHANNON MILLER JOSHUA MOORE 2011-CF CF CF-OOl CF CF CF CF CF-001l CF CF Defendant(s ). ~I ORDER DENYING STATE'S EMERGENCY MOTION FOR REHEARING ON DEFENDANT'S MOTION TO DISMISS This matter is before the Court on the State's Emergency Motion for Rehearing on Defendant's Motion to Dismiss, filed on October 17, The Court held a hearing on the matter on October 20, Upon consideration ofarguments of counsel and the applicable law and being duly advised in the premises, the Court finds as follows. Previously. the Court granted the above-referenced Defendants' Motions to Dismiss based on a finding that , Florida Statutes, is facially unconstitutional. The State now moves for the Court to reconsider its decision citing to the recent First District Court of Appeal finding in Flagg v. State, 2011 WIA (Fla. 1 st DCA October 14, 2011). The State contends these particular Defendants' motions are ripe for rehearing because of the timing of the Court's orders in conjunction with the Flagg opinion. I

8 The Second District Court of Appeal recently certified this constitutional issue for the Florida Supreme Court~s review because the issue is one of great public importance and will have a great effect on the proper administration of justice throughout the state. See State v. Adkins, 2011 WL (Fla. 2d DCA September 28,2011).1 The Court respectfully notes that the Flagg opinion does not provide any new law that was not already previously considered by this Court when it issued its order granting motions to dismiss. Also, this Court granted the motions based on several legal determinations. none of which were that Sheltor? was binding on this Court. To be clear, this Court's specific determinations, which led to the decision to grant motiors to dismiss, were not made in contrast to any binding courts' decisions. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (recognizing that "in the absence of interdistrict conflict, district court decisions bind all Florida trial courts".) Moreover, because the Court's determinations have raised issues that are now under review by the Florida Supreme Court. and Flagg does not specifically address au ofthose issues, this Court finds no reason to depart from its previous fmdings. Additionally, the purpose of a motion for rehearing is to give the trial court an opportunity to consider matters that it failed to consider or overlooked the first time. See Pingree v. Quaintance, 394 So. 2d 161, 162 (Fla 1st DCA 1981). It is not intended as a procedure for rearguing the case merely because the losing party disagrees with the judgment or order. See Diamond Cab Co. ofmiami v. King, 146 So. 2d 889, 891 (Fla. 1962). Accordingly, it is 1 Also referred to as Second DCA Case No Sheltonv. Secretary. Department o/corrections,2011 WL (M.D. Fla. July 27, 2011) 2

9 ORDERED AND ADJUDGED that the State's Motion for Rehearing on Defendant's Motion to Dismiss is DENIED. DONE AND ORDERED in Chambers in Bradenton, Manatee County. Flori~a, this l) day ofoctober Copies to: Brian A. Iten, Assistant State Attorney Mark Upinski, Esq. Traci Dishman, Assistant Public Defender Mary Stuart Lyall, Assistant Public Defender Anne E. Hunter, Assistant Public Defender Andrew Crawford, Esq., Regional Counsel Joe Campoli, Esq. 3