IN THE SUPREME COURT OF THE STATE OF FLORIDA MICHAEL M. ROMAN, STATE OF FLORIDA, RESPONDENT'S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC MICHAEL M. ROMAN, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION BILL MCCOLLUM Attorney General Tallahassee, Florida DANIEL P. HYNDMAN Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...6 ARGUMENT...6 THIS COURT SHOULD DECLINE JURISDICTION IN THE INSTANT CASE; THE DECISION OF THE FOURTH DISTRICT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW (RESTATED) CONCLUSION...9 CERTIFICATE OF TYPE SIZE...10 CERTIFICATE OF SERVICE...10 i

3 TABLE OF AUTHORITIES CASELAW Florida v. Nixon, 543 U.S S. Ct. 551, 160 L. Ed. 2d 565 (2004) Hill v. Lockhart, 474 U.S S. Ct. 366, 88 L. Ed. 2d 203 (1985) Roman v. State, 33 Fla. L. Weekly D 922 (Fla. 4 th DCA Apr. 2, 2008) passim Reaves v. State, 485 So. 2d 829 (Fla. 1986) Reynolds v. State, 837 So. 2d 1044 (Fla. 4 th DCA 2002) Spera v. State, 971 So. 2d 754 (Fla. 2007) Stano v. State, 520 So. 2d 278 (Fla. 1988) Williams v. State, 717 So. 2d 1066 (Fla. 1998) FLORIDA CONSTITUTION Article V, Section 3(b)(3) RULES Rule 3.850(d), Fla. R. Crim. P Rule 9.030(2)(A)(iv), Fla. R. App. P ii

4 PRELIMINARY STATEMENT Petitioner was the defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal ( Fourth District ). In this brief, the parties shall be referred to as they appear before this Honorable Court. STATEMENT OF THE CASE AND FACTS The facts appear in the opinion of the Fourth District. Roman v. State, 33 Fla. L. Weekly D 922 (Fla. 4 th DCA Apr. 2, 2008), On Motion for Rehearing and Motion for Rehearing En Banc. The only facts relevant to our decision to accept or reject [conflict] petitions are those facts contained within the four corners of the decisions allegedly in conflict. Reaves v. State, 485 So. 2d 829, 830 FN3 (Fla. 1986). In December 2004, Michael Roman pleaded guilty to five counts for first-degree murder. In exchange, the state agreed not to seek the death penalty. In June 2006, Roman filed his postconviction motion, and in November 2006, he filed an Addendum which raised an additional claim. In his motion, Roman sought to withdraw his plea. Roman, 33 Fla. L. Weekly at D 922. The Fourth District noted that: Appellant should be made aware that, if he were 1

5 permitted to withdraw his plea, the state could seek the death penalty against him. Id. at D 922 FN1. In his first claim, appellant argued the counsel was ineffective in failing to investigate alleged due process violations in the manner in which an arrest affidavit issued. Id. at D 922. Citing this Court s decision in Stano v. State, 520 So. 2d 278 (Fla. 1988), the Fourth District held that: This claim is an improper attempt to go behind the plea and raise an issue that was known to Roman at the time he entered the plea. Id. at D 922. Roman identified no deficiency in counsel s performance, and even if he had, he failed to show a reasonable probability that but for counsel s alleged deficiency he would not have entered a plea and would have insisted on going to trial. Id., citing, Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Furthermore, the Fourth District concluded that the arrest affidavit in this case was, in fact, proper. Id. at D 922, D 933. The Fourth District also rejected the Appellant s second claim that counsel was ineffective for failing to adequately inform him of an insanity defense and pressuring him to waive that defense: Roman expressly waived any insanity claim on the record during the plea colloquy. Further, the state explained that it would present evidence that would refute any insanity claim in this case. Id. at D 923. Roman detailed the murders in two confessions to police. One of the victims was shot in the 2

6 head and found sitting in the passenger seat of a pickup truck which had been covered in a tarp. Roman admitted covering the truck with a tarp after shooting this victim. He explained how he stole the gun which he used in some of the murders from an apartment in Orlando and then drove down to Lake Worth in order to kill the victims. Roman told police that he test fired the gun on I-95 on his way to kill the victims. Upon returning to Orange County after the murders, Roman admitted hiding the gun in his girlfriend s purse. Inside the home where three of the victims were located, police found a note that Roman had written which stated that he had been at the house earlier in the day, that no one was home, and that he removed some of his personal belongings before going to Miami. Roman confessed that he wrote this note pretending to be worried about the family and acting as if he did not know what was going on. One of the victims was found inside a locked closet covered with clothing. Two of the female victims (one of whom was pregnant) were found in the closet of the middle bedroom. These bodies had been covered by some bedding. Roman confessed to hiding the bodies in the closets and covering them. The pregnant victim had her hands bound in front of her and her throat had been slashed. The other victims at the residence had been shot in the head. The fifth victim was found lying in the street nearby. Roman stated that he killed the victims one by one because they had allegedly laughed when he confronted them about one of the victims allegedly molesting Roman s six-year-old stepdaughter. Roman also believed that the victim found shot in the pickup truck had molested his eighteen-month-old daughter. Roman explained that the victim found lying in the street jumped out of the van after he shot at her. He stated that both these victims had acknowledged the sexual abuse of his daughters before he killed them. After the state had 3

7 completed reciting the grisly factual basis for the pleas, Roman acknowledged under oath that he was pleading guilty because these facts were true. Id. at D 923. The Fourth District then held that Roman understood the consequences of his actions and knew what he was doing was wrong as evidenced by his premeditation and attempts to conceal the crime after the fact. Id. The Court cited its decision in Reynolds v. State, 837 So. 2d 1044, 1048 (Fla. 4 th DCA 2002), which explained that Florida s test for insanity is the M Naughton Rule which provides that a defendant is not criminally responsible for his actions if at the time of the offense, by reason of mental disease or defect, the defendant: (1) did not know of the nature of the consequences of his act; or (2) is unable to distinguish right from wrong[]. 33 Fla. L. Weekly at D 933. Considering the overwhelming weight of the evidence refuting any insanity defense, Roman cannot establish that he had a valid insanity defense in this case. After driving down from Orlando, test firing the weapon, and slaughtering this family, Roman hid the bodies and took measured and deliberate steps to try to conceal the murders and set up an alibi for himself. He then drove back up to Orlando and hid the murder weapon. Clearly, Roman understood the consequences of his conduct and appreciated its criminality. He took the time to write a note which he thought would clear him of any involvement. An insanity defense was not a reasonable option as this was a cold, calculated mass murder that Roman planned and attempted to conceal. Roman admitted bringing extra bullets with him and 4

8 stated that, if he had to kill them again, he would. Id. Therefore, the Fourth District held: Under these circumstances, counsel was not ineffective in advising Roman to waive any potential insanity defense and enter a guilty plea in order to avoid the death penalty. Id., citing, Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). Finally, the Fourth District held that while it may have true that the trial court failed to address the Addendum to the Petitioner s motion, the Petitioner was not entitled to relief because he failed to establish reversible error. Id. The Petitioner had argued that the Miranda warnings used by the police were insufficient; however, the record showed that Roman was properly advised prior to both confessions of the right to have counsel present during questioning and the right to consult with counsel before any questioning. Id. Since the claim was refuted by the record, the Petitioner failed to establish reversible error in the trial court failing to address the Addendum; any error was harmless. Id. 5

9 SUMMARY OF THE ARGUMENT This Court should decline jurisdiction. The decision of the Fourth District does not expressly and directly conflict with the decisions of other district courts or with this Court on the same question of law. The Petitioner argues that there is conflict between the instant decision and the decision of the Second District of Appeal ( Second District ) in Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998). However, these decisions are completely distinguishable. Therefore, jurisdiction should be declined. ARGUMENT THIS COURT SHOULD DECLINE JURISDICTION IN THE INSTANT CASE; THE DECISION OF THE FOURTH DISTRICT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW (RESTATED) The Petitioner has invoked the discretionary jurisdiction of this Court pursuant to Rule 9.030(a)(2)(A)(iv), Fla. R. App. P, and Article V, Section 3(b)(3), Constitution of the State of Florida. He asserts that the decision of the Fourth District is in express and direct conflict with the decision of the Second District in Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998). However, these decisions are completely distinguishable, and not in conflict. Therefore, this Court should decline to accept jurisdiction. 6

10 In Williams, the Court reversed the trial court s denial of the defendant s motion for postconviction relief which alleged ineffectiveness of trial counsel for failing to move to suppress evidence against him which prompted counsel to advise him to enter guilty pleas to armed robbery, attempted armed robbery, and attempted first-degree murder. Id. at The Court concluded that: Id. A trial attorney s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction. There is nothing in the instant decision which is inconsistent with this holding. Moreover, the cases are clearly distinguishable. In Williams, the Second District, without fully analyzing the merits of a claim, reversed a summary denial for further consideration by the trial court. Id. at In the instant case, the Fourth District fully analyzed the Petitioner s claims and affirmed the trial court s summary denial because his claims were refuted by the record. Roman, 33 Fla. L. Weekly at D 922, D 923. This is consistent with Rule 3.850(d), Fla. R. Crim. P., which, in pertinent part, provides: If the motion, files, and records in the case conclusively show that the movement is entitled to no relief, the motion shall be denied without a hearing. The rule also distinguishes between motions denied for legal 7

11 insufficiency, and those denied on other basis. Id. In those instances when the denial is not predicated on the legal insufficiency of the motion... ). See, Spera v. State, 971 So. 2d 754, 758 (Fla. 2007). Furthermore, in Williams, the trial court apparently denied the defendant s claim based on an incorrect application of the principle that defendants may only appeal (rather than challenge in a postconviction motion) errors which would invalidate the plea itself. Id. at There was no such apparent error by the trial court in the instant case, and, if there was, the Fourth District, after thorough analysis, concluded that any error was harmless. 33 Fla. L. Weekly at D 922, D 933. This thorough review of the record, and analysis, distinguishes the instant case from Williams. Certainly as to the facts (except for the nature of the charges, and description of one of the defendant s claims, Williams is devoid of facts) these cases are completely distinguishable. Moreover, given the nature of the evidence against the Petitioner, as well as the fact that he was facing the death penalty, his plea of guilty could hardly be characterized as illadvised, as described in Williams at Finally, in Spera, this Court reviewed the multistep process that a trial court should follow when presented with a motion for postconviction relief. First, the court must determine if the motion is facially sufficient ; next, the court reviews the record 8

12 for evidence refuting the claim. Id. at 758. The Williams decision apparently only addressed the first step (legal sufficiency); the instant decision involves a thorough review of the record, which, the Fourth District held, refuted the Petitioner s claim (second step). Since the decisions address different steps of postconviction trial court review process, they are clearly not in conflict. Consequently, there is no basis for conflict jurisdiction in the instant case. CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Respondent respectfully requests that this Court decline discretionary review. Respectfully submitted, BILL MCCOLLUM Attorney General Tallahassee, Florida Daniel P. Hyndman Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, FL (561) Counsel for Respondent 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing "Respondent s Brief on Jurisdiction" has been furnished by mail on August 11, 2008, to Michael M. Roman, Pro Se, DC # X22304, Cross City C.I., 568 N.E. 255 th Street, Cross City, FL DANIEL P. HYNDMAN CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R. App. P , the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type. DANIEL P. HYNDMAN 10