IN THE SUPREME COURT OF FLORIDA CASE NO. Third District Case No. 3D LEONARDO DIAZ, Petitioner, THE STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. Third District Case No. 3D LEONARDO DIAZ, Petitioner, v. THE STATE OF FLORIDA, Respondent ON REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITIONER S BRIEF ON JURISDICTION PAUL MORRIS ROBERT A. ROSENBLATT, Esq. Law Offices of 7695 S.W. 104 th Street Paul Morris, P.A. Pinecrest, FL S. Dadeland Blvd., Ste (305) Miami, FL (305) Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 APPENDIX... App. 1

3 -i- TABLE OF CITATIONS Cases Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963) Lebron v. State, 799 So. 2d 997 (Fla.2001)...-3-, -4- Morris v. Matthews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986) ,-7- O Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) Persaud v. State, 838 So. 2d 529 (Fla.2003) Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970)...-1-, -6- United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) United States v. Perez, 22 U.S. (9 Wheat). 579, 6 L.Ed. 165 (1824) OTHER AUTHORITIES 28 U.S.C U.S. Const. amend V... passim

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5 STATEMENT OF THE CASE AND FACTS The petitioner, Leonardo Diaz [Diaz], was tried by jury for first degree murder. The jury was instructed that it could consider the lesser included offenses of second degree murder or manslaughter, but only if there was reasonable doubt on the charge of first degree murder. When the jury announced it was deadlocked between the lesser offenses of second degree murder and manslaughter, Diaz requested that the trial judge poll the jury and/or receive a verdict on the charge of first degree murder. The judge refused and sua sponte declared a mistrial on all of the charges. The prosecution recharged first degree murder. Diaz claimed that the trial judge lacked manifest necessity for the declaration of the mistrial on the charge of first degree murder because there was an alternative to mistrial, namely, receiving a verdict on that charge. Therefore, Diaz moved for dismissal of that charge based upon the violation of the Double Jeopardy Clause, claiming that the highest offense he could face on retrial was second degree murder. The motion was denied. Diaz was retried on the charge of first degree murder and the jury returned a verdict of guilty as to manslaughter. On appeal to the Third District, Diaz argued that because the retrial on the firstdegree murder charge violated his rights under the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States, he was entitled to a new trial pursuant to Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The Third District entered per curiam affirmance without opinion which cited Morris v. Matthews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). (App. 1). -2-

6 Diaz s requests for rehearing and rehearing en banc were denied by the Third District and he timely filed a notice to invoke the discretionary jurisdiction of this Court. SUMMARY OF ARGUMENT Diaz was charged with first degree murder and claimed self-defense. The jurors were instructed not to consider lesser included offenses unless there was reasonable doubt as to the charge of first degree murder. Following deliberations, the jurors announced they were deadlocked, but only as to the lesser included offenses of second degree murder and manslaughter. In view of the jury instruction, Diaz requested that the trial judge receive a verdict on the first degree murder charge or at least inquire whether the jury reached a verdict on that charge. The trial judge refused and sua sponte declared a mistrial on the charge of first degree murder. Diaz was retried on the charge of first degree murder (following denial of his motion to dismiss that charge on double jeopardy grounds). Following deliberations, the second jury returned an apparent compromise verdict of guilt as to manslaughter. The trial judge, by failing to inquire into whether the jury reached a verdict on the charge of first degree murder, lacked any manifest necessity to declare a mistrial as to that charge and thereby violated Diaz s federal constitutional rights as guaranteed by the Double Jeopardy Clause of the Fifth Amendment. It is fundamental that a defendant has a valued right to have his trial completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978), (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1940)). A high degree of necessity is required to justify a mistrial declared without the consent of the -3-

7 defendant. 434 U.S. at 506. Because the trial judge erred in declaring a mistrial on the charge of first degree murder, Diaz is entitled to a new trial upon the highest charge possible (that being manslaughter, the offense for which the jury convicted) pursuant to the indistinguishable and controlling authority of Price v. Georgia. In affirming, the decision of the Third District conflicts with the rule of law announced by this Court in Lebron v. State, 799 So. 2d 997, 1010 (Fla.2001), that where a defendant objects to a mistrial, the burden is on the prosecution to show that there was a manifest necessity for the trial court s declaration; otherwise, double jeopardy attaches. The prosecution was not at all held to this burden and the record reflects that the burden could not be met. ARGUMENT DIAZ S RETRIAL ON THE CHARGE OF FIRST DEGREE MURDER VIOLATED HIS RIGHTS AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND THE DECISION OF THE THIRD DISTRICT CONFLICTS WITH THE RULE OF LAW ANNOUNCED IN LEBRON v. STATE, 799 So. 2d 997 (Fla.2001). Diaz intends to seek habeas relief from the federal courts pursuant to 28 U.S.C Before the federal court may grant such relief, Diaz must exhaust his state remedies by raising his federal constitutional claims before this Court even if he does not have the right to review by this Court. See O Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Diaz is aware that this Court does not review per curiam decisions of the district courts of appeal which only affirm the lower courts rulings with citations to opinions -4-

8 that are not pending before this Court, have not been reversed, and do not note a contrary holding. See Persaud v. State, 838 So. 2d 529 (Fla.2003). Nevertheless, in order to avoid a claim by the State in federal court that Diaz did not exhaust state remedies pursuant to Boerckel, Diaz does hereby raise before this Court his federal constitutional claims. Furthermore, Diaz alleges that the decision of the Third District conflicts with this Court s decision in Lebron which held that where a defendant objects to a mistrial, the burden is on the prosecution to show that there was a manifest necessity for the trial court s declaration; otherwise, double jeopardy attaches. Here, the Third District affirmed even though the prosecution was not at all held to this burden and the record reflects that the burden could not be met. THE STATE OF FLORIDA VIOLATED DIAZ S RIGHTS AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT AS APPLIED TO FLORIDA THROUGH THE FOURTEENTH AMENDMENT. The protection of an accused against being twice placed in jeopardy for the same offense is guaranteed by the Double Jeopardy Clauses of the Constitution of the United States. See U.S. Const. amend V. The Double Jeopardy Clause provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. Id. The Clause applies to the States via the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Clause protects not only the right of a defendant against retrial after an acquittal and against multiple punishments for the same offense, but also a defendant s valued right to have -5-

9 his trial completed by a particular tribunal. Wade v. Hunter, 336 U.S. at 689. See also Arizona v. Washington. When a jury is truly deadlocked, the trial court may declare a mistrial. In that event, the defendant s valued right to have a particular jury decide his fate becomes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Arizona v Washington, 434 U.S. at 505, 98 S.Ct However, because of the countervailing constitutional right of the defendant, the prosecution must demonstrate manifest necessity for any mistrial declared over the objection of the defendant, and the burden is a heavy one. Id. A mistrial should not be declared sua sponte or upon the request of the prosecution except under urgent circumstances and for very plain and obvious causes. United States v. Perez, 22 U.S. (9 Wheat.) 579,580, 6 L.Ed. 165 (1824); accord Washington, 434 U.S. at 506 n. 18, 98 S.Ct. 824.Accordingly, a judge is prohibited from declaring sua sponte a mistrial unless a scrupulous exercise of judicial discretion compels the conclusion that no worthwhile purpose would be served by an alternative to mistrial. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). Unless there is a manifest necessity for declaring a mistrial without the defendant s consent, a retrial is barred under the Double Jeopardy Clause. Perez, supra. Manifest necessity for declaring a mistrial without the defendant s concurrence may be demonstrated only if the trial court has considered and rejected all possible alternatives. Id. Any doubts about whether an offense is jeopardy-barred must be resolved in favor of the liberty of the citizen. Downum v. United States, 372 U.S. -6-

10 734, 738, 83 S.Ct. 1033, 1036, 10 L.Ed.2d 100 (1963). Another consideration is whether the granting of the mistrial denied the defendant the right to retain primary control of the course to be followed at trial. See United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Here, the trial court improperly declared a mistrial without first granting, much less exploring, the alternatives requested by Diaz, namely, polling the jury and/or receiving a verdict on the charge of first degree murder. The trial court s denial of the alternatives to mistrial was an abuse of discretion, particularly in view of the jury s announcement that it was deadlocked as to the lesser included offenses after the jury had been instructed not to consider the lesser included offenses unless there was reasonable doubt as to the defendant s guilt of first degree murder. In Price, the Supreme Court of the United States ruled that the relief required in such a case is a new trial. In Price, the defendant was charged with murder and the jury found him guilty of the lesser offense of manslaughter. The manslaughter conviction was reversed. Price was retried for murder and reconvicted of manslaughter. The Supreme Court of the United States held that the retrial for murder violated the Double Jeopardy Clause. The state argued that the error was harmless because the jury convicted Price of manslaughter rather than the jeopardy-barred offense of murder. The Supreme Court rejected the state s argument. The following reasoning from Price is directly on point with the case at bar: The Double Jeopardy Clause... is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree -7-

11 murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. Id. at 331, 90 S.Ct. at 1762 (emphasis supplied). The Supreme Court vacated Price s manslaughter conviction and ordered a retrial on the manslaughter charge only. Prior to oral argument in the Third District, the attorneys in this case received a notice from that court directing their attention to Morris v. Mathews. Much of the oral argument concerned whether the claimed double jeopardy violation was effectively cured or rendered harmless pursuant to Mathews. As noted, the Third District affirmed, citing Mathews. In Mathews, the defendant appealed a conviction of aggravated murder, claiming his prosecution for the crime following a separate conviction for the underlying crime of aggravated robbery violated double jeopardy principles. The Ohio Court of Appeals agreed with the defendant but entered judgment against him on the lesser included offense of murder in accordance with an Ohio rule of criminal procedure. The Supreme Court of the United States found no constitutional infirmity to the Ohio practice because the defendant failed to demonstrate a reasonable probability that he would not have been convicted of the non-jeopardy-barred offense absent the presence of the jeopardy-barred offense. 475 U.S. at 247, 106 S.Ct. at The Supreme Court explained that the presumption of prejudice that was present in Price was absent in Mathews case because [t]he jury did not acquit Mathews of the greater offense of aggravated murder, but found him guilty of that charge and, a fortiori, of the lesser -8-

12 offense of murder as well. Based upon that distinction, the Price presumption of prejudice applies here as well because Diaz was not found guilty of the greater offense but was found guilty of manslaughter (which was improperly tried with the jeopardy-barred greater offense of first degree murder). A new trial is the required relief to remedy the denial of Diaz s constitutional rights under the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. Price, supra. CONCLUSION Based upon the foregoing, Diaz respectfully requests that this Court quash the decision of the Third District which is contrary to controlling precedent of the Supreme Court of the United States, is violative of Diaz s rights as ensured by the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States, constitutes an unreasonable application of the precedent of the Supreme Court of the United States, and conflicts with this Court s decision in Lebron. -9-

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing brief was mailed to Melissa Rubin, Office of the Attorney General, 110 S.E. 6th Street, Ft. Lauderdale, FL 33301, this day of June, Respectfully submitted, PAUL MORRIS ROBERT A. ROSENBLATT, Esq. Law Offices of 7695 S.W. 104th Street Paul Morris, P.A. Pinecrest, FL S. Dadeland Blvd. (305) Suite 1528 Miami, FL (305) PAUL MORRIS Counsel for Petitioner Leonardo Diaz CERTIFICATE OF COMPLIANCE This brief complies with the font requirements of Fla.R.App PAUL MORRIS -10-