IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC INITIAL BRIEF OF PETITIONER

Transcription

1 IN THE SUPREME COURT OF FLORIDA VANNA BUTH, Petitioner, v. CASE NO. SC STATE OF FLORIDA, Respondent. / INITIAL BRIEF OF PETITIONER CIRCUIT # DEFENDER COURTHOUSE STREET FLORIDA NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CARL S. McGINNES ASSISTANT PUBLIC LEON COUNTY SUITE SOUTH MONROE TALLAHASSEE, (850)

2 PETITIONER ATTORNEY FOR -2-

3 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS i TABLE OF CITATIONS ii I. PRELIMINARY STATEMENT 1 II. STATEMENT OF THE CASE AND FACTS 2 III. BASIS OF JURISDICTION 8 IV. SUMMARY OF THE ARGUMENT 10 V. ARGUMENT 12 ISSUE I: 12 SINCE NO PROPER NOTICE OF CROSS-APPEAL, TIMELY OR OTHERWISE, HAS EVER BEEN FILED IN THE TRIAL COURT, THE DISTRICT COURT WAS WITHOUT JURISDICTION OVER THE CROSS- APPEAL. ISSUE II: 17 BUTH S CONSECUTIVE 10-YEAR SENTENCES, AGGREGATING TWENTY YEARS, FOR ARMED BURGLARY AND ARMED ROBBERY ARE NOT ILLEGAL; THERE- FORE, SINCE BUTH S DIRECT APPEAL WAS DISMISSED, THE DISTRICT COURT DID NOT HAVE JURISDICTION TO RULE ON THE STATE S PURPORTED CROSS-APPEAL. ISSUE III: 23 SINCE BUTH HAS STARTED SERVING HIS SENTENCES, IT WOULD VIOLATE DOUBLE JEOPARDY TO INCREASE THEM PURSUANT TO THE PRISON RELEASEE REOFFENDER STATUTE. ISSUE IV: 26 THE ISSUE ARGUED ON APPEAL WAS NOT PROPERLY PRESERVED IN THE TRIAL COURT. ISSUE V: 31 BUTH CANNOT BE GIVEN A LIFE SENTENCES AS A PRISON RELEASEE REOFFENDER FOR ARMED BURGLARY AND ARMED ROBBERY. VI. CONCLUSION

4 32 -i- TABLE OF CONTENTS PAGE(S) CERTIFICATE OF SERVICE 32 CERTIFICATE OF FONT SIZE 33 APPENDIX

5 CASE PAGE(S) -ii- TABLE OF CITATIONS Angrand v. Key, So.2d 1146 (Fla. 1995) Beeks v. State, So.2d 1345 (Fla. 1 st DCA 1990) Bennett v. State, F.L.W. D1300 (Fla. 1 st DCA May 21, 2001) Brown v. State, 521 So.2d 110 (Fla.), cert. denied, 488 U.S. 912, 109 S.Ct. 270, 102 L.Ed.2d 258 (1988) 23,24,25 Buth v. State, 1,8,22,30 No. 1D (Fla. 1 st DCA Nov. 27, 2001) 31,32 Calixte v. State, So.2d 215 (Fla. 4 th DCA 2000) Carter v. State, 21, So.2d 1173 (Fla. 2001) Edmondson v. State, So.2d 533 (Fla. 1 st DCA 1999) Enmund v. Florida, U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) Gaines v. State, F.L.W. D516 (Fla. 1 st DCA Feb. 14, 2001) Hudson v. State, So.2d 244 (Fla. 1 st DCA 1998) Knight v. State, So.2d 490 (Fla. 1 st DCA 2000), rev. granted, 796 So.2d 537 (Fla. 2001) Lampkin-Asam v. District Court Of Appeal, So.2d 469 (Fla. 1978)

6 Lee v. State, So.2d 591 (Fla. 1987) Lopez v. State, So.2d 931 (Fla. 1994) -iii- TABLE OF CITATIONS CASE PAGE(S) McKnight v. State, So.2d 314 (Fla. 3d DCA 1999) Mesa v. Bank Of Miami, So.2d 989 (Fla. 3d DCA 1988) Schummer v. State, So.2d 1215 (Fla. 1 st DCA 1995) Stabile v. State, So.2d 1235 (Fla. 5 th DCA 2001) State v. Alexander, 29, So.2d 82 (Fla. 3d DCA 1999) State v. Ball, 28, So.2d 1028 (Fla. 3d DCA 1999) State v. Cotton, 728 So.2d 251 (Fla. 2d DCA 1998) 3,26,27,28 State v. Creighton, 18, So.2d 735 (Fla. 1985) State v. Huggins, F.L.W. S174 (Fla. Mar. 24, 2001) State v. Jones, 18, So.2d 527 (Fla. 1986) State v. Mae, So.2d 350 (Fla. 2d DCA 1998) State v. Ramos, 505 So.2d 418 (Fla. 1987) State v. Sloan, 751 So.2d 132 (Fla. 2d DCA 2000) 17,18,22 3,26,27,28

7 State v. Wise, 744 So.2d 1035 (Fla. 4 th DCA 1999) State v. Young, 766 So.2d 425 (Fla. 1 st DCA 2000) 26,27,28 19,20, iv-

8 TABLE OF CITATIONS CASE PAGE(S) Steinhorst v. State, So.2d 332 (Fla. 1982) Tillman v. State, So.2d 32 (Fla. 1985) Trushin v. State, So.2d 1126 (Fla. 1982) Vargas v. State, So.2d 1030 (Fla. 4 th DCA 2001) Walker v. State, So.2d 1136 (Fla. 1 st DCA 1984) Williams v. State, 595 So.2d 936 (Fla. 1992) 23,24,25 Winter v. State, So.2d 1111 (Fla. 1 st DCA 2001) Woods v. State, 3,26, So.2d 20 (Fla. 1 st DCA 1999) Zimmerman v. State, 19, So.2d 1119 (Fla. 1 st DCA 1985) STATUTES Section 27.51(4), Florida Statutes (2000) 5,13 Section (8), Florida Statutes (1999) 2 Section (2)(a), Florida Statutes (1999) 2 Section , Florida Statutes (1999) 19 Section (2)(b), Florida Statutes (1999) 2 Section , Florida Statutes (1999) 19 Section (1)(d), Florida Statutes (2000) 13 Section (1)(e), Florida Statutes (1999) 18,19,22 Section (1)(b), Florida Statutes (2000) 27

9 -v- TABLE OF CITATIONS RULES PAGE(S) Florida Rule of Appellate Procedure 9.110(d) 14 Florida Rule Of Appellate Procedure 9.140(c)(1)(I) 13 Florida Rule Of Appellate Procedure 9.140(c)(3) 13 AMENDMENTS AND CONSTITUTIONS Article V, Section (3)(b)(3), Florida Constitution 8 Article V, Section (3)(b)(4), Florida Constitution 8

10 -1- -vi- IN THE SUPREME COURT OF FLORIDA VANNA BUTH, Petitioner, v. CASE NO. SC STATE OF FLORIDA, Respondent. / I. PRELIMINARY STATEMENT Vanna Buth was the defendant in the trial court, petitioner in the District Court of Appeal, First District of Florida, and will be referred to in this brief as petitioner, defendant, or by his proper name. Reference to the record on appeal will be by use of the volume number (in roman numerals) followed by the appropriate page number in parentheses. Attached to this brief is an appendix containing a copy of the district court s decision in Buth v. State, No. 1D (Fla. 1 st DCA Nov. 27, 2001), the state s purported Notice Of Cross-Appeal dated March 23, 2000, and other pleadings pertinent to the issues involved in the case. Reference to the appendix will be by use of the symbol A followed by the appropriate page number in parentheses.

11 II. STATEMENT OF THE CASE AND FACTS Count I of an amended information containing six charges alleged that petitioner, on March 17, 1999, while armed with a firearm, a shotgun, burglarized a dwelling owned by James Hope, contrary to Sections (2)(a) and (2)(b), Florida Statutes (1999). Count II alleged that petitioner, on March 17, 1999, with a shotgun, robbed firearms, a computer, jewelry, and other items, owned by and from the person or custody of James Hope (I-12). Counts III, IV, V, and VI are not pertinent this case as they were severed from Counts I and II (I-15-17). Petitioner proceeded to a trial by jury; on November 16, 1999, the jury found Buth guilty of armed burglary and armed robbery as charged (I-41-42). A sentencing hearing was conducted February 18, Defense counsel argued that the court had discretion to not sentence Buth pursuant to Section (8), Florida Statutes (1999), the Prison Releasee Reoffender Act ( PRR ). Counsel noted that the First, Third, and Fifth DCAs had ruled the statute mandatory, while the Second and Fourth DCAs had ruled PRR sentencing was discretionary with the sentencing judge. Defense counsel requested the sentencing court to first rule whether it had discretion and, if so, then determine whether any of the exceptions to PRR sentence apply (IV ). -2-

12 The prosecutor responded that, since both offenses are first degree felonies punishable by life, the proper PRR sentence on both would be life. The prosecutor cited case law for that proposition (IV ). The prosecutor then addressed the issue of whether PRR sentencing was mandatory or discretionary with the trial court. The prosecutor cited the decision in Woods v. State, 740 So.2d 20 (Fla. 1 st DCA 1999), holding PRR sentencing mandatory (IV ). The prosecutor also relied upon McKnight v. State, 727 So.2d 314 (Fla. 3d DCA 1999), which also held PRR sentencing was mandatory (IV ). The prosecutor then cited State v. Cotton, 728 So.2d 251 (Fla. 2d DCA 1998) and State v. Sloan, 751 So.2d 132 (Fla. 2d DCA 2000), both of which held PRR sentencing was discretionary (IV ). The trial court inquired whether the issue of the availability of discretion was then pending in the Supreme Court of Florida, the prosecutor agreed that it was, but pointed out the first district had ruled there was no discretion (IV-242). The trial court placed petitioner under oath and questioned him (IV ). After further argument of counsel (IV ), the trial court stated: THE COURT: The law is settled as far as the First District Court is concerned. But, as I have been informed by counsel, the matter is now before the Supreme -3-

13 (IV ). Court of Florida on a conflict of decision between the various district courts. I m going to find that there are the following extenuating circumstances in this case, based upon the record and upon the testimony of this defendant: One is youthful age. He s 27 or 28 years of age, which means that he would be in prison for the rest of his life without any opportunity for early release in any form. Second, that he is not, apparently, of the language and of American customs. He is a native of another county of Cambodia; is that right? THE DEFENDANT: Yes, sir. THE COURT: And, although he s been in this country for a number of years, he apparently has not learned to adapt himself to the American language, particularly. He s difficult to understand. With further extenuating circumstance that he has a minor child born out of legal wedlock, if not another type of wedlock. And based upon the further consideration that the matter is now on appeal to be ultimately decided by the Supreme Court of Florida. Therefore, the Court is not going to apply the Section in this case. The trial court then proceeded to sentence petitioner to two, consecutive, 10-year terms of imprisonment, for a total of twenty years (IV-250). Not until after petitioner was sentenced did the prosecutor file a Notice Of Intent To Seek Enhanced Penalties As Prison Releasee Reoffender (I-60), a letter -4-

14 from the Department Of Corrections that Buth was released from custody on February 1, 1998 (I-61), a letter from the Office Of Executive Clemency that petitioner s civil rights had not be restored nor had he been pardoned (I-62), and a Judgment And Sentence that Buth was convicted of escape and sentenced to 30 months in prison on November 28, 1995 (I-63-67). Once these documents were filed, the prosecutor remarked: (IV-253). THE PROSECUTOR:...I believe the Second DCA s opinion is not proper law in this state I believe the First DCA, the Third DCA, and Fifth DCA have taken a proper position in this case, and I would respectfully disagree with the Court s sentence in this case. THE COURT: I understand. Buth filed a timely Notice Of Appeal March 16, 2000 (I- 85), he was adjudged insolvent, and the Public Defender of the Eighth Judicial Circuit was appointed to represent appellant on appeal (I-90). The state filed a Notice Of Cross-Appeal in the District Court of Appeal, First District (not the trial court), dated March 23, 2000(A-4-5). This notice was not served on the defendant but was instead served on the Public Defender of the Second Judicial Circuit. The notice does not contain the docket number of the lower tribunal nor does it contain a date of rendition. As of the date of this writing, -5-

15 neither a copy of the notice filed in the district court nor any other type of notice of cross-appeal has ever been filed in the trial court. On or about April 25, 2000, the Office of the Public Defender of the Second Judicial Circuit was designated to handle Buth s direct appeal pursuant to Section 27.51(4), Florida Statutes (2000). Petitioner filed a Notice Of Voluntary Dismissal of his direct appeal on August 16, By Order dated August 30, 2000, the Court dismissed Buth s direct appeal and noted, Cross-appeal still pending. Prompted by an Order to show cause dated March 19, 2001, the state filed an Answer & Cross-Appeal Brief Of Appellant dated April 6, Buth filed a Motion To Dismiss the state s cross-appeal on April 24, 2001, arguing the cross-appeal should be dismissed because there was no proper notice of crossappeal, there was a failure to file a timely initial brief of cross-appellant, and because the issue argued on appeal was not properly preserved in the trial court. The state filed a Response To Order To Show Cause & Motion For Leave To File Cross-Appeal dated May 9, By Order dated May 23, 2000, Buth s motion to dismiss was denied. The Order provided further that petitioner s arguments that the issue is not preserved for appeal can be argued in his brief. And -6-

16 since a timely notice of cross-appeal was filed, crossappellant s motion for leave to cross-appeal is denied as moot. In the Answer Brief Of Cross-Appellee, Buth raised the following five legal issues before the district court: ISSUE I: SINCE NO PROPER NOTICE OF CROSS-APPEAL, TIMELY OR OTHERWISE, HAS EVER BEEN FILED IN THE TRIAL COURT, THIS COURT [THE 1 ST DCA] IS WITHOUT JURISDICTION OVER THE CROSS-APPEAL. ISSUE II: BUTH S CONSECUTIVE 10-YEAR SENTENCES, AGGREGATING TWENTY YEARS, FOR ARMED BURGLARY AND ARMED ROBBERY ARE NOT ILLEGAL; THEREFORE, SINCE BUTH S DIRECT APPEAL HAS BEEN DISMISSED THIS COURT [THE 1 ST DCA] IS WITHOUT JURISDICTION. ISSUE III: SINCE BUTH HAS STARTED SERVING HIS SENTENCES, IT WOULD VIOLATE DOUBLE JEOPARDY TO INCREASE THEM PURSUANT TO THE PRISON RELEASEE REOFFENDER STATUTE. ISSUE IV: THE ISSUE ARGUED ON APPEAL WAS NOT PROPERLY PRESERVED IN THE TRIAL COURT. ISSUE V: BUTH CANNOT BE GIVEN A LIFE SENTENCE AS A PRISON RELEASEE REOFFENDER FOR ARMED BURGLARY AND ARMED ROBBERY. By opinion filed November 27, 2001, the district court reversed and remanded with directions to sentence petitioner as a prison releasee reoffender. The district court certified to this Court the following issue as a question of great public importance: -7-

17 DOES SECTION (9)(a)(3)(a), FLORIDA STATUTES (1999), WHICH MANDATES A LIFE SENTENCE FOR PRISON RELEASEE REOFFENDERS WHO COMMIT A FELONY PUNISHABLE BY LIFE, APPLY BOTH TO LIFE FELONIES AND FIRST DEGREE FELONIES PUNISHABLE BY IMPRISONMENT FOR A TERM OF YEARS NOT EXCEEDING LIFE? (A-1-2). A Notice To Invoke Discretionary Jurisdiction was timely filed November 30, 2001 (A-3). This brief on the merits follows. III. BASIS OF JURISDICTION As noted, the district court in Buth v. State, certified an issue to the Court as a question of great public importance; therefore, the Court has jurisdiction pursuant to Article V, Section (3)(b)(4), Florida Constitution. Petitioner contends that, in addition to the certified question, the district court s decision directly and expressly conflicts with decisions of other district courts or of the supreme court on the same question of law; therefore, the Court also has jurisdiction pursuant to Article V, Section (3)(b)(3), Florida Constitution. Since petitioner is not allowed to file a brief on jurisdiction, petitioner will identify the conflicting cases during the argument with respect to each issue. Moreover, it is well-established that the Court has -8-

18 discretion to consider issues ancillary to those certified to the Court. Angrand v. Key, 657 So.2d 1146 (Fla. 1995); Lee v. State, 501 So.2d 591 (Fla. 1987); and Trushin v. State, 425 So.2d 1126 (Fla. 1982). Petitioner will establish that the district court was without jurisdiction to even rule on the state s purported cross-appeal, given that he voluntarily dismissed his direct appeal, and that the sentencing issue was not properly preserved for review by the state in the trial court. Petitioner respectfully suggests that a district court ruling over non-preserved issues over which it has no jurisdiction should persuade this Court to exercise its discretion and reach the issues ancillary to that certified to the Court in this case. -9-

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20 IV. SUMMARY OF THE ARGUMENT Issue I: After Buth filed a notice of direct appeal, the state filed a Notice Of Cross-Appeal in the district court, not the trial court. Buth voluntarily dismissed his direct appeal. As of this date, no notice of cross-appeal has ever been filed in the trial court. The notice filed in the appellate court suffers from other defects in addition to the fact that it was filed in the wrong court. In Issue I, Buth contends that, while the time limits for filing a notice of cross-appeal are not jurisdictional, the utter failure to file any notice of cross-appeal, timely or otherwise, deprives the Court of jurisdiction of a crossappeal after the main appeal has been dismissed. Issue II: Buth s current sentences for robbery and burglary are not illegal under the definition of illegal sentence enunciated by the court. That being the case, since Buth voluntarily dismissed his direct appeal, the district court was without jurisdiction over the crossappeal. It was not until after the trial court already imposed the challenged sentences did the state offer any proof of reoffender status. Issue III: Because Buth has already started serving the sentences imposed for robbery and burglary, even assuming the trial judge erred with respect to his construction of -11-

21 the prison releasee reoffender statute, it would violate principles of double jeopardy to seek to now increase Buth s sentences. Issue IV: The prosecutor below (as well as defense counsel) cited two lines of case law authority to the trial judge, one line holding the prison releasee reoffender statute was mandatory, the other discretionary. At no time did the prosecutor specifically argue the trial court was bound by the decision of this Court, as contrasted to those of other districts. The ruled upon by the district court, Buth contends, was not preserved for review. Issue V: Both offenses for which Buth was convicted are first degree felonies punishable by life. The issue of the proper prison releasee reoffender sentence for such offenses, life or 30 years, is presently before the Court in other cases. -12-

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23 V. ARGUMENT ISSUE I: SINCE NO PROPER NOTICE OF CROSS-APPEAL, TIMELY OR OTHERWISE, HAS EVER BEEN FILED IN THE TRIAL COURT, THE DISTRICT COURT WAS WITHOUT JURISDICTION OVER THE CROSS- APPEAL. Petitioner raised this issue by way of a Motion To Dismiss filed in the district court, and again in his answer brief. The standard of review is de novo. The record shows that no notice of cross-appeal, timely or otherwise, has ever been filed in the proper court. Secondly, it is well established that lack of jurisdiction can be raised at any time. Winter v. State, 781 So.2d 1111 (Fla. 1 st DCA 2001). Buth filed a Notice Of Appeal on March 16, 2000 (I-85). Appellate counsel for the state filed in this Court a document dated March 23, 2000, entitled Notice Of Cross- Appeal. This document contains no case number whatsoever, fails to identify the date of the order appealed from, fails to identify the date of rendition, and was not served on Mr. Buth, but was instead served on Public Defender Nancy Daniels at the Leon County Courthouse. A copy of this document is attached to this brief as an appendix (A-4-5). On March 27, 2000, the trial judge filed an Order Of Insolvency that appointed the Public Defender of the Eighth Judicial Circuit to represent Mr. Buth on appeal (I-89). On -14-

24 or about April 25, 2000, the Public Defender of the Eighth Judicial Circuit designated Nancy Daniels, the Public Defender of the Second Judicial Circuit, to handle the direct appeal pursuant to Section 27.51(4), Florida Statutes (2000). Buth voluntarily dismissed his direct appeal and it was dismissed by Order dated August 30, Over seven months later, and over a year after filing the so-called Notice Of Cross-Appeal, the state filed a brief dated April 6, The state s right to appeal in a criminal case is a matter of legislative grace. Hudson v. State, 711 So.2d 244 (Fla. 1 st DCA 1998). Section (1)(d), Florida Statutes (2000) authorizes the state to appeal a legal issue...when the defendant is convicted and appeals from the judgment. Florida Rule Of Appellate Procedure 9.140(c)(1)(I) governs state cross-appeals. Rule 9.140(c)(3) provides, in pertinent part: Commencement. The state shall file the notice prescribed by rule 9.110(d) with the clerk of the lower tribunal within 15 days of rendition of the order to be reviewed; provided that in an appeal by the state under rule 9.140(c)(1)(I), the state s notice of cross-appeal shall be filed within 10 days of service of defendant s notice... Copies shall be served on the defendant and the attorney of record. (emphasis supplied). The state s Notice Of Cross-Appeal in the instant case -15-

25 does not even remotely comply with the requirements of such documents. The rule requires that the notice be filed with the clerk of the lower tribunal. The state has yet to comply with this requirement as the notice was filed in the district court, not in the circuit court. The rule also says copies of the notice shall be served on both the defendant and his attorney of record. Here, the notice was not served on either. It was instead served on Nancy Daniels, Public Defender of the Second Judicial Circuit. At the time the so-called notice was filed, counsel of record was Ms. Alfreda Coward, Assistant Public Defender, Eighth Judicial Circuit (I-85). Ms. Daniels did not become counsel of record until April 25, The rule also requires that the notice comply with Florida Rule Of Appellate Procedure 9.110(d). Rule 9.110(d) says that the notice shall contain the name of the lower tribunal. The notice in this case does not. Rule 9.110(d) also requires that the notice shall contain...the case number in the lower tribunal. As noted, no case number from any court is contained in the state s notice. Florida Rule Of Appellate Procedure 9.110(d) also requires the notice to contain the date of rendition...of the order to be reviewed Here, the notice does not contain -16-

26 the date of rendition. Since the notice was filed in the wrong court, served on the wrong people, fails to identify the lower tribunal, and fails to include the date of rendition, Buth contends the state s notice was insufficient to confer jurisdiction of the court independent of the defendant s direct appeal. And because the direct appeal has been dismissed, this imperfect cross-appeal must also be dismissed. Buth relies upon Lampkin-Asam v. District Court Of Appeal, 364 So.2d 469 (Fla. 1978) and Beeks v. State, 569 So.2d 1345 (Fla. 1 st DCA 1990). In both cases, notices of appeal were timely filed in the appellate court, but not in the trial court. In both cases, the courts held that the failure to timely file a notice in the correct court defeated jurisdiction. As applied to the facts of this case, under Lampkin-Asam and Beeks the state s notice of crossappeal, while timely in the district court, has never been filed, timely or otherwise, in the trial court. Petitioner accordingly contends that the district court s decision in Buth directly and expressly conflicts with Lampkin-Asam. Petitioner is aware that the filing period for a notice of cross-appeal is not jurisdictional. Lopez v. State, 638 So.2d 931 (Fla. 1994) and Walker v. State, 457 So.2d 1136 (Fla. 1 st DCA 1984). But in the instant case, the state has -17-

27 yet to file any proper notice! The state s brief should not be treated as a notice. Mesa v. Bank Of Miami, 525 So.2d 989 (Fla. 3d DCA 1988). While the filing period for a notice of cross-appeal is not jurisdictional, Buth contends that, at a minimum, some sort of notice of cross-appeal must be filed in the correct court, timely or not. Here, no notice whatsoever has ever been filed in the trial court. Buth s research has discovered no case that holds that the state is entirely relieved on its obligation to file some sort of notice (even an untimely one) in the lower tribunal when seeking to cross-appeal when the defendant directly appeals. The state has certainly not cited such a case. As the jurisdiction of the Court can be raised at any time, and because no notice of cross-appeal has ever been filed in this case, the district court was without jurisdiction. -18-

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29 ISSUE II: BUTH S CONSECUTIVE 10-YEAR SENTENCES, AGGREGATING TWENTY YEARS, FOR ARMED BURGLARY AND ARMED ROBBERY ARE NOT ILLEGAL; THEREFORE, SINCE BUTH S DIRECT APPEAL WAS DISMISSED, THE DISTRICT COURT DID NOT HAVE JURISDICTION TO RULE ON THE STATE S PURPORTED CROSS-APPEAL. Petitioner argues that, since he dismissed his direct appeal, the district court was without jurisdiction to rule on the state s purported cross-appeal. The standard of review is de novo. In State v. Ramos, 505 So.2d 418 (Fla. 1987), the defendant took a direct appeal of his conviction and sentence for second degree murder and the state crossappealed the trial court s ruling acquitting Ramos of first degree murder and entering judgment of second degree murder. Ramos took a voluntarily dismissal of his direct appeal. Because the jurisdiction of the cross-appeal was predicated solely on the existence of the direct appeal, the supreme court held that once Ramos dismissed his direct appeal and state s cross-appeal must be dismissed also: The state argues that a crossappeal...survives the dismissal of the main appeal. The state relies on Florida Rule of Appellate Procedure 9.350, which provides that a voluntary dismissal by an appellant does not affect proceedings brought by means of a timely perfected cross-appeal. Although the state is correct in asserting that the appellate rules apply in criminal as well as civil cases, this argument overlooks the fact that in criminal cases the state has only -20-

30 those rights of appeal as are expressly conferred by statute. Substantive rights conferred by law can neither be diminished nor enlarged by procedural rules adopted by this Court. State v. Furen, 118 So.2d 6 (Fla. 1960). Although the state had a statutory right to take the cross-appeal, we agree with the district court, for the reasons stated in its opinion, that a crossappeal by the state cannot survive the main appellant s voluntary dismissal of the main appeal. [W]here the crossappellant could not have initially appealed...the cross-appeal depends entirely on the existence of an appeal. Ramos v. State, 469 So.2d at ; 505 So.2d at 421(emphasis supplied). Petitioner asserts that the state s cross-appeal must fall because the rule of Ramos applies only where the crossappeal has been timely perfected. Here, it has not been timely perfected for the reasons outlined under Issue I. More importantly, Buth argues that, putting aside the fact that the cross-appeal has not been timely perfected, the state s cross-appeal must fall because the state cannot directly appeal Buth s current sentences for burglary and robbery. The state s right to appeal is solely dependent on statute and must be strictly construed. State v. Jones, 488 So.2d 527 (Fla. 1986) and State v. Creighton, 469 So.2d 735 (Fla. 1985). Under Section (1)(e), Florida Statutes (1999), the state can appeal from a...sentence, on the ground that it is illegal. -21-

31 In the instant case, for the view that the Court has jurisdiction, the state in the district court relied upon State v. Young, 766 So.2d 425 (Fla. 1 st DCA 2000) and Zimmerman v. State, 467 So.2d 1119 (Fla. 1 st DCA 1985). The state s reliance on these decisions is misplaced. In Zimmerman, the Court held that, although the defendant voluntarily dismissed his direct appeal, the Court retained jurisdiction to rule on the state s cross-appeal predicated on the failure of the trial court to impose a mandatory fine for drug trafficking. In the instant case, unlike the drug trafficking statute at issue in Zimmerman, the statutes relating to burglary and robbery do not themselves require any type of mandatory minimum sentence. In other words, Buth s present sentences are completely within the parameters of Section , Florida Statutes (1999), proscribing burglary, and Section , Florida Statutes (1999), proscribing robbery. Thus, the failure to impose a mandatory fine does give rise to an illegal sentence under Section (1)(e), because the illegality can be recognized from a simple reading of the trafficking statute. However, one searches the robbery and burglary statutes in vain to determine that the failure to impose a PRR sentence is illegal. Zimmerman is therefore not on point. As will be established during the -22-

32 following discussion of Young, the state, unlike the mandatory fine issue in Zimmerman, cannot appeal the imposition of a 10-year sentence for burglary and a consecutive 10-year sentence for robbery. Buth contends Young is likewise inapplicable for three reasons. First of all, Buth notes that the life of Young is in peril because in all likelihood the Court is going to quash Young on authority of State v. Huggins, 20 F.L.W. S174 (Fla. Mar. 24, 2001). Secondly, Young is factually distinguishable from this case. In Young, the state proved the defendant fit the statutory criteria for a PRR sentence and, only after that was done was Mr. Young then sentenced: The trial court found that the defendant did qualify for sentencing as a prison releasee reoffender... The defendant was then sentenced...with the sentences on the burglary counts not being in accordance with the PRR statute. 766 So.2d at 426 (emphasis supplied). In this case, by contrast, the defendant was sentenced for burglary and robbery (IV ). After defendant was sentenced, the prosecutor recognized that he had failed to go through what the statute requires as to prove...the defendant is a Prison Releasee Re-offender (IV-251). Thus, in Young, not only had the defendant been convicted for burglary, but the state had also proved Mr. Young fit the criteria for a PRR sentence before the time he -23-

33 was sentenced. On appeal the Court viewed Young as a case where a statutorily required mandatory sentence was not imposed at the time the sentences were imposed. Here, since the proof followed the sentencing, it cannot be said that at the time Buth was sentenced the sentencing judge failed to impose a required mandatory minimum sentence. The third reason why Buth asserts Young is not controlling is that Young cannot be squared with Carter v. State, 786 So.2d 1173 (Fla. 2001). Buth argues Carter has implicitly overruled Young. In this regard, Buth notes that Young does not reveal what sentences were actually imposed. But on the assumption they were proper guideline or code sentences, Buth asserts Carter has implicitly overruled Young. In Carter, the Court ruled that a sentence is illegal only if it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. Here, as noted, Buth s present non-prr sentences are unquestionably proper under either the guidelines or the code. Thus, they are not illegal and, therefore, are not appealable by the state. Carter was decided on appeal from the denial of a Motion To Correct Sentence filed under Florida Rule of Criminal Procedure 3.800(a), which allows the correction at -24-

34 any time of an illegal sentence. Buth asserts that the Carter definition of an illegal sentence is also applicable to the state s right to appeal a sentence on the ground that it is illegal under Section (1)(e), Florida Statutes (1999). This would appear to be especially true since the statute is required to be strictly construed. Jones and Creighton. Based upon the foregoing, petitioner contends that his present sentences are not illegal under Carter and therefore cannot be appealed by the state. Since they cannot be directly appealed by the state, the instant Buth voluntarily dismissed his direct appeal, the Court lost jurisdiction over the state s cross appeal. Ramos. Accordingly, petitioner asserts the district court s decision in Buth directly and expressly conflicts with Ramos, Carter, Jones, and Creighton. -25-

35 ISSUE III: SINCE BUTH HAS STARTED SERVING HIS SENTENCES, IT WOULD VIOLATE DOUBLE JEOPARDY TO INCREASE THEM PURSUANT TO THE PRISON RELEASEE REOFFENDER STATUTE. Buth was sentenced February 18, 2000, and immediately began serving them (IV-250). For the reasons that follow, Buth argues that principles of double jeopardy prevent an increase in his present sentences pursuant to the PRR statute. On point and controlling, Buth contends, are Brown v. State, 521 So.2d 110 (Fla.), cert. denied, 488 U.S. 912, 109 S.Ct. 270, 102 L.Ed.2d 258 (1988), and Williams v. State, 595 So.2d 936 (Fla. 1992). The standard of review is de novo. In Brown, the sentencing judge ruled that he could not impose the death penalty because of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which the judge ruled required a life sentence. The district court affirmed the conviction but found the trial judge has misapplied Enmund and remanded the cause for a new sentencing hearing. The Florida Supreme Court quashed the district court, holding that even though the trial court had improperly applied Enmund, it was error to remand for a new penalty phase. The Court in Brown ruled that, although the trial judge had erred, it would be a violation of double jeopardy to vacate the life sentence and remand for a penalty hearing that could result in the imposition of the -26-

36 death penalty. In Williams, after the defendant was found guilty of first-degree murder, at the penalty phase the trial judge stated that he would not impose the death penalty because of his view that, in light of the mitigating circumstances, a death sentence would be reversed. Williams was allowed to waive the jury for the penalty phase and he was given a life sentence. When Williams appealed, the state crossappealed the trial court s actions in stating he would not impose the death penalty and in allowing Williams to waive the penalty phase jury. The district court affirmed the conviction but agreed with the state s position on crossappeal. The case was remanded for a new penalty proceeding before a new jury. The supreme court in Williams quashed the district court s ruling on authority of Brown: 595 So.2d at 938. As in Brown, even though the trial judge may have made an erroneous ruling concerning the penalty phase, Williams can no longer be put in jeopardy of receiving the death penalty. The Double Jeopardy Clause prevents a new penalty phase proceeding before a new jury that could subject him to an increased penalty. Here, since the Buth has already begun serving the sentences imposed February 18, 2000, to remand for even the possibility of an increased penalty under Brown and Williams -27-

37 violates the Double Jeopardy Clause, even assuming the trial court erred in not originally imposing a PRR sentence. Petitioner accordingly contends the district court s decision in Buth expressly and directly conflicts on the same question of law with Brown and Williams. -28-

38 -29-

39 ISSUE IV: THE ISSUE ARGUED ON APPEAL WAS NOT PROPERLY PRESERVED IN THE TRIAL COURT. Buth argues that it was improper for the district court to reach the merits of the state s cross-appeal because it was not properly preserved in the trial court. The standard of review is de novo. At the sentencing hearing February 18, 2000, defense counsel noted that at that time the first district, as well as the third and fifth district courts, had held the PRR sentencing was mandatory if the predicate for such a sentence was proved, while the second and fourth districts had held the sentencing court had discretion to not impose a PRR sentence, even if the predicate had been proved (IV ). The prosecutor cited to the opinions in Woods v. State, 740 So.2d 20 (Fla. 1 st DCA 1999), holding the PRR statute mandatory (IV-236). But the prosecutor also cited State v. Cotton, 728 So.2d 251 (Fla. 2d DCA 1998), State v. Wise, 744 So.2d 1035 (Fla. 4 th DCA 1999), and State v. Sloan, 751 So.2d 132 (Fla. 2d DCA 2000), all of which held the PRR sentencing was discretionary with the sentencing judge (IV ). Thus, while the prosecutor noted the conflict between the district courts that then existed, and that the district court in Woods had held the statute was mandatory, on the issue of the sentencing court s discretion the state never -30-

40 argued to the judge that he was bound by Woods rather than Cotton, Wise, or Sloan. Indeed, the state advised the Court that the issue was then pending before the supreme court (IV-242). After the trial court ruled it did have discretion (IV ) and imposed a 20-year sentence, the prosecutor stated: (IV-253). PROSECUTOR:...I believe the Second DCA s opinion is not the proper law in this state I believe the First DCA, the Third DCA and Fifth DCA have taken a proper position in this case, and I would respectfully disagree with the Court s sentence in this case. At no time did the prosecutor below ever argue that the trial judge was bound by the first district s precedent in Woods and had no authority to opt to follow Sloan, Cotton, or Wise instead of Woods. On the contrary, both the prosecutor and defense counsel noted the conflict among the various district courts on the issue of discretion that existed at the time Mr. Buth was sentenced. In other words, although the state urged Woods was the proper position on the issue, the state never advised the judge that he could not follow Cotton or Woods in light of Woods. In order to be preserved for further review by a higher court, the issue must first be presented to the lower court and the specific legal argument urged on appeal must be a -31-

41 part of that presentation. Tillman v. State, 471 So.2d 32 (Fla. 1985) and Steinhorst v. State, 412 So.2d 332 (Fla. 1982). Similarly, Section (1)(b), Florida Statutes (2000), provides that an issue is not preserved for appeal unless the argument presented to the trial judge...was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor. Here, both the prosecutor and defense counsel in effect presented the judge with an array of decisions from which to choose, with the state urging the sentencing court to follow the decisions that favored the state, and the defense urging the court to follow the decisions that favored Mr. Buth. In no way did the state tell the judge he could not follow Cotton, Wise, and Sloan. Indeed, it was the prosecutor, not defense counsel, who cited those cases to the trial court! As noted above, after the trial court ruled it had discretion and imposed a 20-year sentence on the defendant, the prosecutor respectfully disagreed with the sentence (IV-253). This is not sufficient to preserve the issue for appeal. See Schummer v. State, 654 So.2d 1215 (Fla. 1 st DCA 1995)(counsel is required to do more than merely express disagreement on the record at the time the court rules in order to preserve issue for review). Similarly, in State v. Ball, 747 So.2d 1028 (Fla. 3d DCA 1999), after the defendant was sentenced as a habitual -32-

42 felony offender, the prosecutor perfunctorily objected on the basis that the defendant qualified to be sentenced as a violent career criminal. 747 So.2d at On appeal, the court held that the state had not properly preserved the issue for review. Indeed, in order to properly preserve alleged sentencing errors for review, the objection must be made after the alleged improper sentence is imposed. As pointed out in Issue II, supra, the state did not even prove Buth qualified for PRR sentencing until after he had already been sentenced. In Edmondson v. State, 745 So.2d 533 (Fla. 1 st DCA 1999), the defendant received a sentence which was in excess of that recommended by the sentencing guidelines. Although he objected to the judge s oral reasons for departure as the judge announced them, he failed to object to the failure of the judge to enter a written order of departure after the sentence was imposed. This Court held the departure issue was not properly preserved, citing to Section (3), Florida Statutes (1997). See also Calixte v. State, 770 So.2d 215 (Fla. 4 th DCA 2000)(defendant did not object that his prior record did not show escalating pattern and did not move to correct sentence). In State v. Alexander, 731 So.2d 82 (Fla. 3d DCA 1999), the prosecutor announced at arraignment that the defendant -33-

43 fit the criteria for a violent career criminal. The defendant entered a plea and received a guidelines sentence, over a state objection that the sentence was at the bottom of the guidelines. On appeal, the state argued the trial court had erred: On this appeal, the state argues that the trial court erred in accepting Alexander s plea at the arraignment and sentencing him to a guideline sentence after the state orally informed the court that Alexander qualified as a violent career criminal under the Gort Act. Alexander correctly counters that this issue was not properly preserved for appellate review by an objection asserting this argument below. 731 So.2d at 83 (emphasis supplied). In State v. Mae, 706 So.2d 350 (Fla. 2d DCA 1998), the court strictly construed the Criminal Appeal Reform Act to bar the state from presenting two arguments on appeal, not made by the prosecutor on the trial level, which would have overturned the judge s order suppressing evidence. In the instant case, the state requested the sentencing judge to pick from a line cases holding PRR sentencing mandatory, rather than another line of cases holding PRR sentencing discretionary. The state never advised the judge he had no authority to pick from the discretionary line of cases and, once the trial court ruled it had sentencing discretion and imposed a 20-year sentence, the state never properly objected. The issue is simply not preserved for -34-

44 appellate review. Accordingly, petitioner asserts the decision in Buth directly and expressly conflicts on the same question of law with Ball, Alexander, and Mae. ISSUE V: BUTH CANNOT BE GIVEN A LIFE SENTENCES AS A PRISON RELEASEE REOFFENDER FOR ARMED BURGLARY AND ARMED ROBBERY. This is the issue presented by the question certified in Buth. Petitioner contends that the prison releasee reoffender statute does not require that life sentences be imposed for armed burglary or armed robbery, which are first degree felonies punishable by life. The standard of view is de novo. The same issue is presently pending before the Court in Stabile v. State, 790 So.2d 1235 (Fla. 5 th DCA 2001); Bennett v. State, 26 F.L.W. D1300 (Fla. 1 st DCA May 21, 2001); Vargas v. State, 789 So.2d 1030 (Fla. 4 th DCA 2001); Gaines v. State, 26 F.L.W. D516 (Fla. 1 st DCA Feb. 14, 2001); and, Knight v. State, 791 So.2d 490 (Fla. 1 st DCA 2000)(on motion for rehearing), rev. granted, 796 So.2d 537 (Fla. 2001). As those cases have been pending for a lengthy period of time, petitioner simply notes that the Court s disposition in -35-

45 those cases will control the disposition on the instant case. -36-

46 VI. CONCLUSION Based upon the foregoing, petitioner asserts that, for the reasons expressed under Issues I, and II, supra, the district court was without jurisdiction to rule on the merits of the state s purported cross-appeal. In the alternative, Buth argues that the district court s decision in Buth must be quashed and the trial court affirmed for the reasons argued under either Issue III or IV, or both. Should Buth s arguments on the first four issues be rejected, for the reasons set forth under Issue V, Buth argues that the Court should rule that the prison releasee reoffender statute does not require the imposition of a life sentence for first degree felonies punishable by life. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to Charmaine Millsaps, Assistant Attorney General, by U.S. mail to The Capitol, Criminal Appeals Division, Plaza Level, Tallahassee, FL 32301, and Vanna Buth, DOC# , Santa Rosa Corr. Inst., 5850 E. Milton Road, Milton, FL 32583, on this day of December, CERTIFICATE OF FONT SIZE I hereby certify that this brief has been prepared using Courier New 12 point font in compliance with the font require- ments of Florida Rule of Appellate Procedure 9.210(a)(2). -37-

47 Respectfully submitted, NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT CARL S. McGINNES ASSISTANT PUBLIC DEFENDER FLA. BAR # LEON COUNTY COURTHOUSE 301 SOUTH MONROE STREET SUITE 401 TALLAHASSEE, FLORIDA (850) ATTORNEY FOR APPELLANT