IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D VINCENT MARGIOTTI. Petitioner, -vs- STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D VINCENT MARGIOTTI Petitioner, -vs- STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT ON JURISDICTION CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida RICHARD POLIN Bureau Chief MARNI A. BRYSON Assistant Attorney General Florida Bar No Office of the Attorney General 110 S.E. 6th Street 9th Floor Fort Lauderdale, FL Telephone:(954) Facsimile:(954)

2 TABLE OF CONTENTS PAGES TABLE OF CITATIONS...ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 QUESTION PRESENTED... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE FIRST DISTRICT COURT OF APPEAL S DECISION IN T.T. v. STATE, 459 So.2d 471 (Fla. 1 st DCA 1984), ON THE SAME QUESTION OF LAW. CONCLUSION... 7 CERTIFICATE OF SERVICE... 7 CERTIFICATE OF COMPLIANCE... 8 i

3 TABLE OF CITATIONS STATE CASES Margiotti v. State, 844 So.2d 829 (Fla. 3d DCA 2003)... 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...5, 6 T.T. v. State, 459 So.2d 471 (Fla. 1 st DCA 1984)... 5, 6 OTHER AUTHORITIES Article V, Section 3(b)(3), Fla. Const Rule 9.030(a) (2)(A)(iv), F.R.App.P... 5 ii

4 INTRODUCTION The Petitioner, VINCENT MARGIOTTI, was the Defendant in the trial court and the Appellant in the Third District Court of Appeal. THE STATE OF FLORIDA, was the prosecution in the trial court and Appellee in the Third District Court of Appeal. The parties shall be referred to as Petitioner and Respondent in this brief. The symbol "App." followed by a letter, colon and page number refers to the appendix to this brief, containing a conformed copy of the slip opinion of the Third District Court of Appeal in the instant cause and cases cited in conflict. STATEMENT OF THE CASE AND FACTS At the Petitioner s sentencing hearing, Petitioner was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged offenses. (App. A:2). During the burglary, the Petitioner used an antique, inoperable firearm. (App. A:2). The Petitioner appealed arguing that under the ten-twentylife law, an antique firearm is excluded and the mandatory minimum sentence must be vacated. The Third District Court of Appeal affirmed the Petitioner s sentence. Margiotti v. State, 844 So.2d 829 (Fla. 3d DCA 2003). The Third District specifically held that the possession of a firearm can be established by circumstantial evidence. Id. The Third District Court found 1

5 that the victim s testimony plus the location of the gun after the crime adequately support the conclusion that the antique firearm was used in this case. Therefore, the court held that the trial court was entirely correct in denying postconviction relief. 2

6 QUESTION PRESENTED WHETHER THE THIRD DISTRICT COURT OF APPEAL S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FIRST DISTRICT COURT OF APPEAL S DECISION IN T.T. v. STATE, 459 So.2d 471 (Fla. 1 st DCA 1984), ON THE SAME QUESTION OF LAW? 3

7 SUMMARY OF THE ARGUMENT In the instant cause, the Third District Court of Appeal issued an opinion which is not in express and direct conflict with the First District Court of Appeal. Petitioner contends that conflict arises where the Third District Court failed to apply the law established by T.T. v. State, 459 So.2d 471 (Fla. 1 st DCA 1984). Petitioner is mistaken as the Third District Court of Appeal merely reiterated the law set forth in T.T. by holding that the possession or use of a firearm can be established by circumstantial evidence. Therefore, on the authority of Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) this Honorable Court should deny discretionary jurisdiction. 4

8 ARGUMENT THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE FIRST DISTRICT COURT OF APPEAL S DECISION IN T.T. v. STATE, 459 So.2d 471 (Fla. 1 st DCA 1984), ON THE SAME QUESTION OF LAW. Discretionary jurisdiction of this Honorable Court may be exercised to review, among other matters, decisions of district courts of appeal which expressly and directly conflict with a decision of this Court or of another district court of appeal on the same question of law. Article V, Section 3(b)(3), Fla. Const.; Fla. R, App. P (a) (2)(A)(iv). Decisions are considered to be in express and direct conflict when the conflict appears within the four corners of the majority decisions. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Neither the record itself nor the dissenting opinion may be used to establish jurisdiction. Id. Respondent respectfully requests this Honorable Court to decline to accept jurisdiction in this case, since Petitioner presents no legitimate basis for the invocation of this Court s discretionary jurisdiction. Petitioner asserts conflict on grounds that when the Third District Court determined in Margiotti v. State, 844 So.2d 829 (Fla. 3d DCA 2003) that possession or use of a firearm can be established by circumstantial evidence, the court failed to apply the law set forth in T.T. v. State, 459 So.2d 471 (Fla. 1 st DCA 1984). (Petitioner s Brief at pp. 1). In T.T. the First District Court of Appeal held that circumstantial evidence, including the testimony of victims that the defendant held an object which appeared to be a gun when threatening them, supported the trial court s finding 5

9 that the defendant used a firearm in the robbery for which he was adjudicated delinquent. In this case, Petitioner was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged offenses. (App. A:2). During the burglary, the Petitioner used an antique, inoperable firearm. (App. A:2). The Third District found that under subsection (6), Florida Statutes, The term firearm does not include an antique firearm unless the antique firearm is used in the commission of a crime. (App. A:3). In this case the elderly victim testified that the Defendant held an object to his head which he believed to be a gun. (App. A:3). After the crime, the antique firearm was found on the victim s bed. (App. A:3). It had previously been in a drawer by the bed. (App. A:3). The Third District Court of Appeal reiterated that the possession or use of a firearm can be established by circumstantial evidence and cited to T.T. v. State, 459 So.2d 471 (Fla. 1 st DCA 1984). Therefore, the T.T. decision does not conflict expressly or directly in this case. Petitioner has failed to demonstrate that discretionary review of this Honorable Court may be invoked pursuant to the standard of review requiring that an express and direct conflict exist between the decisions of district courts of appeal on the same question of law. See Reaves v. State, 485 So. 2d 829 (Fla. 1986). 6

10 CONCLUSION WHEREFORE, the State respectfully requests that the petition for discretionary review be denied as there is no express and direct conflict between the decisions of this Court. Respectfully Submitted, CHARLES J. CRIST, JR. Attorney General RICHARD POLIN Bureau Chief MARNI A. BRYSON Assistant Attorney General Florida Bar Number Office of the Attorney General Criminal Appeals Division 110 SE 6th Street - 10th Floor Fort Lauderdale, FL (954) Fax CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing BRIEF OF RESPONDENT was furnished by mail to VINCENT MARGIOTTI, Pro Se, DOC# C12039, Florida State Prison, 7819 N.W. 228 th Street, Raiford, Florida on this day of April, MARNI A. BRYSON Assistant Attorney General 7

11 CERTIFICATE OF COMPLIANCE I hereby certify that this brief is type in Courier New 12- point font and is in compliance with Fla. R. App. P (a)(2). MARNI A. BRYSON Assistant Attorney General 8

12 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D VINCENT MARGIOTTI, Petitioner, -vs- STATE OF FLORIDA, Respondent. APPENDIX TO BRIEF OF RESPONDENT ON JURISDICTION INDEX Margiotti v. State, 844 So.2d 829 (Fla. 3d DCA 2003)...App. A

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing APPENDIX TO BRIEF OF RESPONDENT was furnished by mail to VINCENT MARGIOTTI, Pro Se, DOC# C12039, Florida State Prison, 7819 N.W. 228 th Street, Raiford, Florida on this day of April, MARNI A. BRYSON Assistant Attorney General Florida Bar Number Office of the Attorney General Criminal Appeals Division 110 SE 6th Street - 10th Floor Fort Lauderdale, FL (954) Fax