IN THE SUPREME COURT OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT

Transcription

1 IN THE SUPREME COURT OF FLORIDA MYRA VAIVADA, Petitioner, CASE NO. SC v. STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO THOMAS D. WINOKUR ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL (850) (850) (FAX) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CITATIONS...ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 THE DECISION BELOW DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DEVERS-LOPEZ V. STATE, CARTER V. STATE, BRANCACCIO V. STATE, OR BOSWELL V. STATE. CONCLUSION... 7 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE i -

3 TABLE OF CITATIONS CASES PAGE(S) Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 4 Boswell v. State, 610 So. 2d 670 (Fla. 4th DCA 1992)... 4 Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997) 4,5,6 Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998)... 2 Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998);... 4 Department of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 3 Devers-Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998) 4,5,6 Fleming v. Peoples First Financial Savings and Loan Association, 667 So. 2d 273 (Fla. 1st DCA 1995)... 2 Mora v. State, 814 So. 2d 322 (Fla. 2002)... 2,5,6 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 3 Kornegay v. State, 826 So. 2d 1081 (Fla. 1st DCA 2002).. 1 Persaud v. State, 838 So. 2d 529 (Fla. 2003)... 4 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 Vaivada v. State, 870 So. 2d 197 (Fla. 1st DCA 2004).. 1,2 OTHER Fla. R. App. P (a)(2)(A)(iv) ii -

4 PRELIMINARY STATEMENT Respondent, the State of Florida, the Appellee in the District Court of Appeal (hereinafter DCA ) and the prosecuting authority in the trial court, will be referenced in this brief as Respondent, the prosecution, or the State. Petitioner, MYRA VAIVADA, the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner. PJB will designate Petitioner s Jurisdictional Brief. That symbol is followed by the appropriate page number. A bold typeface will be used to add emphasis. Italics appeared in original quotations. STATEMENT OF THE CASE AND FACTS The pertinent history and facts are set out in the decision of the lower tribunal, attached in slip opinion form [hereinafter referenced as slip op. ] to this brief. The opinion is reported as Vaivada v. State, 870 So.2d 197 (Fla. 1st DCA 2004). The opinion reads as follows: Myra S. Vaivada seeks review of the non-summary denial of her post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein she raises a claim of ineffective assistance of counsel for defense counsel s failure to investigate and pursue the defense of involuntary intoxication. After consideration of the record and briefs, we must affirm as each of the trial court s findings are supported by competent, substantial evidence. See Kornegay v. State, 826 So.2d 1081 (Fla. 1st DCA 2002) (holding when reviewing the non-summary denial of a rule motion, - 1 -

5 the appellate court must give deference to the trial court's finding of facts that are supported by competent, substantial evidence and review the findings of law de novo). We decline to address the issue of whether the defense of involuntary intoxication exists under Florida law, see Mora v. State, 814 So.2d 322, 330 (Fla. 2002); Carter v. State, 710 So.2d 110, 111 (Fla. 4th DCA 1998), because the issue was not addressed below. See Fleming v. Peoples First Financial Savings and Loan Ass n, 667 So.2d 273, 274 (Fla. 1st DCA 1995). Vaivada at SUMMARY OF ARGUMENT The operative facts, as contained within the four corners of the DCA s decision, reveal no express and direct conflict with the decisions of the Fourth District. The DCA made two decisions in its opinion: first, that the trial court s findings were supported by competent, substantial evidence; and second, that the issue of the existence of the involuntary-intoxication defense in Florida was not addressed below, which precluded the DCA from addressing it in its opinion. The Fourth District cases Petitioner cites ruled that a trial court erred in refusing to instruct the jury on the defense of involuntary intoxication. Comparing the holdings of these cases to the case under review, it is clear the decisions do not conflict. Declining to address whether a defense exists is not tantamount to ruling that it does not exist

6 ARGUMENT THE DECISION BELOW DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DEVERS-LOPEZ V. STATE, CARTER V. STATE, BRANCACCIO V. STATE, OR BOSWELL V. STATE. Jurisdictional Criteria Petitioner contends that this Court has jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv), which effectuates Article V, 3(b)(3), Fla. Const. The constitution provides: The supreme court... [m]ay review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal... on the same question of law. The conflict between decisions must be express and direct and must appear within the four corners of the majority decision. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative Services v. Nat l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected inherent or implied conflict; dismissed petition). Neither a dissenting opinion nor the record itself can be used to establish jurisdiction. Reaves at 830. In addition, it is the conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari. Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980). A district court of appeal opinion that is devoid of facts contains no holding that could conflict with another district court of appeal opinion: - 3 -

7 [I]n those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by this Court. Persaud v. State, 838 So.2d 529, 532 (Fla. 2003). In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958), this Court explained: It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute. Accordingly, the determination of conflict jurisdiction distills to whether the District Court s decision reached a result opposite that of Devers-Lopez v. State, 710 So.2d 720 (Fla. 4th DCA 1998); Carter v. State, 710 So.2d 110 (Fla. 4th DCA 1998); Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997); or Boswell v. State, 610 So.2d 670 (Fla. 4th DCA 1992). The decision below is not in express and direct conflict with these Fourth District cases. Petitioner raised a claim of ineffective assistance of counsel for her trial counsel s failure to investigate and pursue the defense of involuntary intoxication. Slip op. at

8 The trial court entered a non-summary denial of the claim. Id. Petitioner appealed the denial, and the DCA affirmed on the ground that each of the trial court s findings are supported by competent, substantial evidence. Slip op. at 2. The court added that it was not addressing whether the defense of involuntary intoxication exists under Florida law,... because the issue was not addressed below. Id. Thus, the DCA made two decisions in its opinion: first, that the trial court s findings were supported by competent, substantial evidence; and second, that the issue of the existence of the involuntary-intoxication defense in Florida was not addressed below, which precluded the court from addressing the issue in its opinion. 1 These are the only decisions made by the DCA. These decisions do not in any way in conflict with the decisions in Devers-Lopez v. State, Carter v. State, Brancaccio v. State, or Boswell v. State, much less expressly and directly conflict with these decisions. Accordingly, 1 In his brief, Petitioner devotes a page-long footnote to disputing the DCA s decision that issue of the existence of the involuntary-intoxication defense was not raised in the trial court (PJB 8-9). This Court is not a proper forum to raise that dispute. Petitioner is invoking this Court s jurisdiction because she is claiming that the DCA decision conflicts with decisions of another DCA. Petitioner s disagreement with the DCA s ruling in this respect does not allege that the ruling conflicts with another decision, and should not be raised in this petition. In any event, the State agrees with the DCA that the trial simply ruled that counsel had adequately investigated an involuntaryintoxication defense, and therefore did not address the legal viability of such a defense, similar to this Court s action in Mora v. State, 814 So.2d 322, 330 (Fla. 2002)

9 Petitioner has failed to demonstrate that this Court has jurisdiction to consider this petition. In Boswell v. State, the court ruled that the trial court erred in refusing to instruct the jury on involuntary intoxication, where there was evidence that the defendant was inebriated at the time of the offense due primarily to the taking of prescribed psychotropic medications. Boswell was followed by other the Fourth District case Petitioner cites, Brancaccio v. State, Devers-Lopez v. State, and Carter v. State, all of which also reversed convictions because the trial court had refused to instruct the jury on involuntary intoxication in spite of evidence that the defendant unknowingly ingested a substance that caused him to become impaired. The decisions in these cases bear no resemblance to the decision in the case below. The only ruling that could directly and expressly conflict with these Fourth District cases is one that rejects involuntary intoxication as a defense, or affirms a trial court s denial of an involuntary-intoxication instruction on facts similar to one of the Fourth District cases. The DCA here did nothing of the sort. The DCA merely ruled that the trial court s finding of facts were supported by the evidence and that the existence of the involuntaryintoxication defense was not raised in the trial court. Neither of these rulings conflict with the cited Fourth District cases. 2 2 It is worth noting that the issue Petitioner attempts to raise here is wholly inappropriate in the context of a post

10 Petitioner claims that the issue of whether involuntary intoxication exists as a defense in Florida is the key issue in [her] case (PJB 8). The State disagrees with this statement on its face (see note 2 above), but more importantly, asserts that because the DCA did not decide whether involuntary intoxication exists as a defense in Florida, Petitioner fails to demonstrate that this Court possesses jurisdiction to hear this case. Moreover, Petitioner s recitation of record facts to support this claim (PJB 9-10), is improper and should not be considered within the four corners of the majority decision; Petitioner cannot resort to the record to attempt to establish jurisdiction. Reaves v. State. Petitioner has failed to demonstrate that this Court has jurisdiction over this cause. Accordingly, this Court should decline to exercise its discretionary conflict jurisdiction here. conviction proceeding alleging ineffective assistance of counsel for failure to raise the defense of involuntary intoxication. If the viability of the involuntaryintoxication defense is not even settled in Florida, see Mora v. State, supra n.1 (declining to decide whether the defense of involuntary intoxication does exist in Florida), the State submits that Appellant could not possibly demonstrate that his counsel s performance was constitutionally deficient for failing to pursue such a defense

11 CONCLUSION Based on the foregoing reason, the State respectfully requests this Honorable Court decline to exercise jurisdiction. SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to Robert Augustus Harper, Esq., and Michael Robert Ufferman, Esq., 325 West Park Avenue, Tallahassee, FL , by MAIL on June 21, Respectfully submitted and served, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER Tallahassee Bureau Chief, Criminal Appeals Florida Bar No THOMAS D. WINOKUR Assistant Attorney General Florida Bar No Attorneys for State of Florida Office of the Attorney General Pl-01, the Capitol Tallahassee, Fl (850) (850) (Fax) [AGO# L ] - 8 -

12 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P Thomas D. Winokur Attorney for State of Florida [T:\BRIEFS\Briefs pdf'd\04-867_jurisans.wpd --- 6/22/04,4:14 pm] - 9 -