SUPREME COURT OF FLORIDA PETITIONER'S JURISDICTIONAL INITIAL BRIEF. COMESNOW, the petitioner, Santiago Mendoza and files this instant

Transcription

1 PROVIDED T%. /f 0ÉÕ' FOR MAILING" SUPREME COURT OF FLORIDA Santiago Mendoza Appellant/Petitioner, State of Florida Plaintiff/Respondent. Case No. 4D Lt No.: CF000960A PETITIONER'S JURISDICTIONAL INITIAL BRIEF COMESNOW, the petitioner, Santiago Mendoza and files this instant Jurisdictional Brief in support of the acceptance ofjurisdiction by the Florida Supreme Court. The Florida has and should accept jurisdiction in the instant case based upon the following facts: 1. The decision of the Fourth District Court of Appeal conflicts with the holdings of this Court's ruling in Montgomery v. State 39 So.3d 252 (Fla. 2010). In Montgomery, the Florida Supreme Court held that it was not only error, but that it wasfundamental error for a trial judge to instruct a jury that in order to find a defendant guilty of manslaughter, it was necessary for the State to prove that a defendant intentionally caused the death of the victim. See: Montgomery,

2 "The lesser included offense of manslaughter is just one step removed from second-degree murder. Because Montgomery's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under > Pena, fundamental error occurred in his case vvhich was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis. >(FN5) In conclusion, we approve the decision of the First District Court of Appeal to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error. We answer the certified question in the negative and hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim. We further hold that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was notjustified or excusable, which caused the death of the victim. Moreover, we conclude that the use of the standard jury instruction on manslaughter constituted fundamental, reversible error in > Montgomery's case and requires that Montgomery receive a new trial." Numerous courts throughout the State of Florida including the 1", 2nd rd 4th & 5th District Courts of Appeal have consistently held that this error was "per' se reversible error". Sullivan v. State 50 So.3d 33 (Fla. 1" DCA, 2010) "> [2]> [3] Pursuant to > State v. Montgomery, 39 So.3d 252, 257 (Fla.2010), the relevant intent in the charge of manslaughter by act "is the intent to commit an act which caused death, [not] that the defendant intended to kill the victim." > Montgomery states any instruction that includes intent to kill as an element of manslaughter by act is fundamental error. > Id. at 258. A narrow exception exists when the trial court gives the erroneous instruction on manslaughter by act in combination with the instruction on manslaughter by culpable negligence. See > Joyner v. State, 41 So.3d 306, (Fla. 1st DCA 2010). Fundamental error does not occur in such - 2 -

3 circumstances because it is possible the jury will base its decision only upon the elements of manslaughter by culpable negligence, which do not require a finding of intent to kill. > Id. at 306; see also > Riesel v. State, 48 So.3d 885, (Fla. 1st DCA 2010); > Jackson v. State, 49 So.3d 271, (Fla. 1st DCA 2010); > Salonko v. State, 42 So.3d 801, 803 (Fla. 1st DCA 2010). Here, the trial court instructed the jury that manslaughter by act required an intent to kill, and gave no instruction on manslaughter by culpable negligence. Accordingly, under > Montgomery, the jury instruction was fundamental error. Therefore, we reverse Sullivan's conviction for second-degree murder and remand for a new trial on that charge." Banek v. State 75 So.3d 762 (Fla. 2"d DCA, 2011) "...alleging solely that appellate counsel was ineffective for failing to argue that the standard jury instruction for attempted manslaughter by act, also known as attempted voluntary manslaughter, constituted. fundamental error because it improperly imposed an additional element of an intent to kill. We agree, and we reverse Banek's attempted second-degree murder conviction, vacate the sentence, and remand for new trial." Bass v. State 45 So.3d 970 (Fla.3'd DCA, 2010) "The District Court of Appeal held that erroneous instruction, suggesting that State was required to prove intent to kill to prove lesser-included offense of manslaughter, was fundamental error. Reversed and remanded for new trial." Henry v. State 2011 WL (Fla. 4* DCA, 2011) "The District Court of Appeal, Gerber, J., held that trial court's error in using standard jury instruction on manslaughter by act, which required jury to find that defendant intentionally caused death of victim, was harmful." Lopez v. State 68 So.3d 332 (Fla. 5* DCA, 2011) - 3 -

4 "The District Court of Appeal, Orfinger, C.J., held that appellate counsel was ineffective for failing to argue that trial court committed fundamental error in giving the then-standard jury instruction for manslaughter by act." In the instant case, the petitioner did in fact receive the exact type ofjury instruction that this Honorable Court held to be fundamental error in Montgomery, supra and yet despite attempts to have this injustice corrected in both the Circuit Court, Nineteenth Judicial Circuit, Martin County, and in the Fourth District Court of Appeals, each of these courts has refused to honor this courts controlling precedent in Montgomery, supra. The Florida Supreme Court has the inherent authority, granted by the Florida Constitution and Florida Rule of Appellate Procedure, Rule to review : "Rule Jurisdiction of Courts (a) Jurisdiction of Supreme Court. (1) Appeal Jurisdiction. (A) The supreme court shall review, by appeal (i) final orders of courts imposing sentences of death; (ii) decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution. (B) If provided by general law, the supreme court shall review (i) by appeal final orders entered in proceedings for the validation of bonds or certificates of indebtedness; (ii) action of statewide agencies relating to rates or service of utilities providing electric, gas, or telephone service. (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that >[FN5] (i) expressly declare valid a state statute; (ii) expressly construe a provision of the state or federal constitution; - 4 -

5 (iii) expressly affect a class of constitutional or state officers; (iv) expressly and directly conflict with a decision ofanother district court ofappeal or ofthe supreme court on the same question oflaw; (v) pass upon a question certified to be of great public importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal; The refusal by the Circuit Court, Nineteenth Judicial Circuit, Martin County, and in the Fourth District Court of Appeals is in direct conflict with this Honorable Court's controlling decision in Montgomery and as such, this Honorable Court should accept jurisdiction and review the decisions of the Circuit Court, Nineteenth Judicial Circuit, Martin County, and the Fourth District Court of Appeals. X sårfa&9c e thza Santiago Mendoza DC# C.F.R.C. Main Unit 7000 H.C. Kelly Road Orlando, Florida CERTIFICATE OF SERVICE I, Santiago Mendoza, certify that a true and correct copy of the foregoing: Initial Brief on Jurisdiction has been provided to the office of the Attorney General whose address is: 400 South Monroe Street, Tallahassee, Florida via U.S. mail, postage pre-paid on this the a day of October, X sœhapc3 Jima(2za Santiago Mendoza DC#

6 APPENDIX TO PETITIONER'S JURISDICTIONAL INITIAL BRIEF I. Copy of Decision of the Florida Fourth District Court of Appeal in case # 4D dated July 18, II. Copy of petitioner's Initial Brief on Appeal filed with the Fourth District Court of Appeal on the 18* day of August Respectfully, ISI Sarthbpo»zartdFJ_a Santiago Mendoza DC# Central Florida Reception Center 7000 H.C. Kelly road Orlando, Florida

7 PER CURIAM. DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2012 SANTIAGO MENDOZA, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D [July 18, 2012] We affirm the circuit court's denial of the defendant's motion for postconviction relief primarily seeking to apply retroactively State v. Montgomery, 39 So. 3d 252, (Fla. 2010) (standard jury instruction on manslaughter, which required the jury to find that the defendant intended to kill the victim, constituted fundamental error). We already have held that Montgomery "does not apply retroactively to convictions which were final before our supreme court issued that decision." Ross v. State, 82 So. 3d 975, 976 (Fla. 4th DCA 2011). Our sister courts have held likewise. Harricharan v. State, 59 So. 3d 1162, 1163 (Fla. 5th DCA 2011), rev. denied, No. SC11-846, 2012 WL (Fla. June 8, 2012) (table); Rozzelle v. State, 29 So. 3d 1141, 1142 (Fla. 1st DCA 2009), rev. denied, No. SC10-127, 2012 WL (Fla. June 8, 2012) (table). Further, Montgomery does not apply substantively here because the defendant was convicted of first-degree rñurder, an offense two steps removed from the lesser-included offense of voluntary manslaughter. Montgomery, 39 So. 3d at 259; Joseph v. State, 42 So. 3d 323, (Fla. 4th DCA 2010). The circuit court did not address appellant's second claim which alleged ineffective assistance of counsel. This claim is procedurally barred as untimely and successive. Fla. Crim. P (b); Fla. R. Crim. P (f). Affirmed. POLEN, DAMOORGIAN and GERBER, JJ., concur.

8 Appeal of order denying rule motion from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; William L. Roby, Judge; L.T. Case No CF000960A. Santiago Mendoza, Orlando, pro se. No appearance required for appellee. Not final until disposition of timely filed motion for rehearing. 2

9 IN THE DISTRICT COURT OF APPEAL FOR THE FOURTH DISTRICT STATE OF FLORIDA Santiago Mendoza, Appellant, DCANo.: EPf'73Ø$ v. LT. Nos.: 97CF State of Florida, Appellee, INITIAL BRIEF OF APPELLANT Petitioner, Santiago Mendoza Appeals from the Summary Denial of his Motion for Post Conviction Relief pursuant to Florida Rule of Criminal Procedure 3.850, 19* Judicial Circuit Court, Martin County, Florida, Honorable Judge William L. Roby, Circuit Court Judge. ISI SayfNaßn mp,vf/2f?7r. Santiago Mendoza DC# Petitioner, Pro'se 1

10 INDEX Cover Page 1 Index 2 Citation of Authorities 3 Statement of Case & Facts 4 Summary of Arguments 4-5 Argument I 5-6 Argument II 6-8 Conclusion 9 Certificate of Service 10 2

11 CITATION OF AUTHORITIES Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992) Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) Brown v. State, 124 So.2d 481, 484 (Fla.1960) Harrell v. State, 894 So.2d 935 at 941 (Fla.2005) Jackson v. Dugger, 547 So.2d 1197 (Fla.1989) James v. State, 615 So.2d 668 (Fla.1993) Ray v. State, 403 So.2d 956, 960 (Fla.1981) Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970) Smiley v. State, 966 So.2d 330 (Fla.2007) Thompson v. Dugger, 515 So.2d 173 (Fla.1987) Witt v. State, 387 So.2d 922 (Fla.1980) Barber v. State 851 So.2d 911 (Fla. 3rd DCA, 2003) Currelly v. State, 801 So.2d 1000 (Fla. 2d DCA, 2001) Dawson v. State 951 So.2d 933 (Fla. 4* DCA, 2007) Gomez v. State, 948 So.2d 911 (Fla. 2d DCA, 2007) Harricharan v. State 59 So.3d 1162 (Fla. 5* DCA, 2011) Hurley v. State, 779 So.2d 608 (Fla. 1st DCA, 2001) McNulty v. State 16 So.3d 879 (Fla. 4* DCA, 2009) Regan v. State 787 So.2d 265 (Fla. l'' DCA, 2001) Rozzelle v. State 29 So.3d 1141 (Fla. l'* DCA, 2009) Schrack v. State 958 So.2d 985 (Fla. 4* DCA, 2007) 3

12 STATEMENT OF CASE & FACTS In 2000, the Appellee was charged by felony indictment with one count of First degree Murder for the murder of Jose Fuentes which had occurred in The Appellee was tried and found guilty by a jury and sentenced to life in prison. The Appellee filed a direct appeal which was Per Curium Affirmed by this Honorable Court on October 16, See: Mendoza v. State 829 So.2d 230 (Fla. 4'h DCA, 2002). Appellee proceeded to file a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, an appeal of the denial of the which was Per Curium Affirmed on October See: Mendoza v. State 968 So.2d 575 (Fla. 4* DCA, 2007). Appellee ultimately sought relief through a petition pursuant to 42 U.S.C which was also ultimately denied. Subsequently, the Appellee, on July 1, 2011 filed a Motion for Post Conviction Relief pursuant to Florida Rule of Criminal Procedure, Rule raising two additional grounds of fundamental error which have not been previously raised or been heard by the trial court. On July 28, 2011, the trial court, Honorable Judge William L. Roby, Circuit Court Judge, 19* Judicial Circuit, Martin County issued an order denying the appellee's Motion for Post Conviction Relief. This appeal follows. SUMMARY OF ARGUMENTS 1.) The trial court erred in denying the appellee's Motion for Post Conviction Relief because the trial court completely failed to address the appellee's second claim, a claim that counsel rendered fundamentally ineffective assistance. The trial court completely neglected to even address this claim and the failure to address each claim in a Motion for Post conviction Relief requires reversal by the reviewing court. 4

13 2.) The trial court's determination that Montgomery v. State 39 so.3d 252 (Fla. 2010) did not apply retroactively was in error. While the circuit court is bound by the controlling cases of the First and the Fifth Districts due to this Honorable Court's silence on this matter, appellee never the less asserts herein that the decision of the Florida Supreme Court in Montgomery, supra, is controlling and applies retroactively to cases in which the fundamentally faulty jury instruction was used. ARGUMENT I This Honorable Court is required to reverse the trial court's order denying the appellee's Motion for Post Conviction Relief because the trial court failed to address the appellee's second claim for relief. The appellee filed a motion for post conviction relief raising TWO claims for relief and the trial court's order only addresses a single claim. When a lower court issues an order denying an appellee's Motion for Post Conviction Relief, it must address each and every claim raised by the defendant. See: Currelly v. State 801 So.2d 1000 (Fla. 2"d CDA, 2001) "Trial court's failure to address all claims in "motion for clarification," treated as a petition for postconviction relief, warranted reversal and remand for further proceedings. > West's F.S.A. RCrP Rule " Schrack v. State 958 So.2d 985 (Fla. 4 ' DCA, 2007) "A trial court order that does not address all of the claims for post-conviction relief will be remanded for entry of an order that does. See > Barber v. State, 851 So.2d 911 (Fla. 3d DCA 2003); > Currelly v. State, 801 So.2d 1000 (Fla. 2d DCA 2001); see also > Gomez v. State, 948 So.2d 911 (Fla. 2d DCA 2007) (affirming summary denial of defendant's > rule motion, but reversing with respect to supplemental motion-- which the trial court apparently failed to rule on--and remanding for post-conviction court to consider such). We therefore remand so that the trial court may address claims 10, 13 and 14 of Schrack's amended post-conviction motion." Barber v. State 851 So.2d 911 (Fla. 3'd DCA, 2003) 5

14 "However, in its order denying the motion, the trial court only addressed three issues. We therefore remand so that the trial court may address Barber's fourth issue, ineffective assistance of counsel for failure to request a jury instruction pertaining to guilty knowledge ofthe controlled substance. See > Currelly v. State, 801 So.2d 1000 (Fla. 2d DCA 2001); > Hurley v. State, 779 So.2d 608 (Fla. 1st DCA 2001) (trial court orders which do not address all of the claims for post-conviction relief will be remanded for entry of an order which does)." Without herein arguing the merits of claim two of the appellee's Motion for Post Conviction Relief, appellee asserts for this Honorable Court's consideration the fact that the trial court completely failed to address this claim, and the failure to address a claim as shown by the authorities cited above, requires reversal. This Honorable Court should reverse the lower court's order and remand for that court to address the appellee's remaining claim. ARGUMENT H The trial court erred in holding that Montgomery v. State 39 So.3d 252 (Fla. 2010) does not apply retroactively. In his Motion for Post Conviction Relief, the appellee argued that the trial court's use of the then standard jury instruction regarding Manslaughter resulted in fundamental error. See: Trial Transcript, page 620, line 11 thru page 621 line 2; "The third charge you are to consider, the lesser included offense of manslaughter. Before you can find the Defendant guilty of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, that Jose Fuentes is dead, and two, that Santiago Mendoza intentionally caused the death of Jose Fuentes. However, the Defendant...terms. In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the Defendant had a premeditated intent to cause death." The Florida Supreme Court in Montgomery v. State 39 So.3d 252 (Fla. 2010) Held that the giving of this very jury instruction, which improperly includes the "Premeditated intent to cause death" is fundamentally flawed. The appellee's trial took place in 2001, he was sentenced in 6

15 2002 and his direct appeal was decided in The appellee does not contest the fact that his sentence became final well before to the Supreme Court's Montgomery decision. What the appellee does contest is the assertion that the Montgomery decision does not apply retroactively. The Montgomery decision: (1) emanates from the state Supreme Court, (2) is constitutional in nature, and (3) constitutes a development of fundamental significance. These three (3) factors have been held to be the deciding factors on whether or not a new law or decision shall be applied retroactively. See: Regan v. State 787 So.2d 265 (Fla. 1** DCA, 2001) "A change in the law will not apply retroactively to provide exception to two-year time limit for filing motion for postconviction relief unless the change: (1) emanates from the state supreme court or the United States Supreme Court, (2) is constitutional in nature, and (3) constitutes a development of fundamental significance. > West's F.S.A. RCrP Rule " "Florida Rule ofcriminal Procedure 3.850(b) specifies that a motion filed pursuant to this section must be filed within two years of the date that the conviction and sentence become final. The rule further provides for two exceptions relevant to the analysis in this case: (1) when the claims asserted in the motion are based on newly discovered facts that were unknown to both the movant and movant's counsel, and could not have been ascertained through due diligence, and (2) when the claims asserted are based on a fundamental, constitutional right that was not established within the two-year time period provided by the rule, and which has been held to apply retroactively. See id. Retroactivity is determined by subjecting the change oflaw to the three-part test of> Witt v. State, 387 So.2d 922 (Fla.1980)." Dawson v. State 951 So.2d 933 (Fla. 4* DCA, 2007) "Fundamental error" is the sole exception to the preservation requirement. > Harrell v..sjtate, 894 So.2d [935] at 941 [ (Fla.2005) ]. To be fundamental, an error must "reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." > Id. (quoting > Brown v. State, 124 So.2d 481, 484 (Fla.1960)). We have also defined it as "error which goes to the foundation of the case." > Ray v. State, 403 So.2d 956, 960 (Fla.1981) (quoting > Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)). We have cautioned appellate courts to "exercise their discretion concerning fundamental error 'very guardedly.' " > Id. "[F]undamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests ofjustice present a compelling demand for its application." McNulty v. State 16 So.3d 879 (Fla. 4* DCA, 2009) 7

16 "> (FN1.) Trial courts apply the decisional law that is in effect at the time of a hearing under certain circumstances. See > Witt v. State, 387 So.2d 922 (Fla.1980); Smiley v. State, 966 So.2d 330 (Fla.2007), which holds that for decisional law to be applied retroactively it must: 1) originate in the Supreme Court of Florida or the U.S. Supreme Court; 2) be constitutional in nature; and 3) represent a development of fundamental significance. > Kelly was a Florida Supreme Court decision, dealing with right to counsel and was thus constitutional in nature, and it represents a development of fundamental significance. Thus, on remand > Kelly applies." Bottoson v. Moore 833 So.2d 693 (Fla. 2002) "> (FN50.) See, e.g., James v. State, 615 So.2d 668 (Fla.1993) (applying retroactively > Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), wherein Florida's jury instruction on the "heinous, atrocious, or cruel" aggravating circumstance was held to be impermissibly vague under the Eighth Amendment); > Jackson v. Dugger, 547 So.2d 1197 (Fla.1989) (applying retroactively > Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), wherein the use of victim impact evidence in a capital trial was held to be irrelevant and impermissibly inflammatory in violation of the Eighth Amendment; the United States Supreme Court later receded from Booth in > Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)); > Thompson v. Dugger, 515 So.2d 173 (Fla.1987) (applying retroactively > Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), wherein Florida's jury instructions in capital cases were held to impermissibly limit the sentencer's consideration of nonstatutory mitigating circumstances in violation of the Eighth Amendment)." It is unquestioned that the decision of the Florida Supreme Court in Montgomery has all the halhnarks of necessity for retroactive application and as such the decisions to the contrary are in error and this Honorable Court should issue an opinion certifying conflict with those cases. The trial court's denial was based on the premise that Montgomery, supra does not apply retroactively, which premise was based on the decisions of the First and Fifth District Courts of appeal in Rozzelle v. State 29 So.3d 1141 (Fla. 1" DCA, 2009); Harricharan v. State 59 So.3d 1162 (Fla. 5* DCA, 2011), respectively. This Honorable Court should reverse the order of the Trial Court and Certify Conflict with the separate opinions of the First and Fifth Districts.

17 CONCLUSION For the reasons stated herein, the Trial Court committed reversible error in denying the claim 1 of the defendant's Motion for Post Conviction Relief. The trial court committed further reversible error when it completely failed to address the defendant's second claim for relief in it's order denying appellee relief. The failure of the trial court to address each of the claims raised in a Motion for Post Conviction Relief filed pursuant to Florida Rule of Criminal Procedure, Rule requires reversal by the reviewing court so that the trial court may properly address each of the previously unaddressed claims. This Honorable Court should issue an order reversing and remanding the trial court's order denying appellee's Motion for Post Conviction Relief. Respectfully, ISI $2;rfÑ 29f) 1728 /f2 37A Santiago Mendoza DC# Appellant Pro'se 9

18 CERTIFICATE OF SERVICE I, Santiago Mendoza hereby certify that a true and correct copy of the foregoing Appellant's Initial Brief has been provided to the office of the Assistant Attorney General for the 4* District whose address is: 1515 Flagler Avenue Suite 900, Florida via U.S. mail, postage pre-paid on this the /# day of August, X$'ag½ Fjg,9 gg/pyry Santiago Mendoza DC# C.F.R.C. Main Unit 7000 H.C. Kelly Road Orlando, Florida