IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D JAMAR ANTWAN HILL, Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D JAMAR ANTWAN HILL, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida RICHARD L. POLIN Bureau Chief Florida Bar No ANGEL L. FLEMING Assistant Attorney General Florida Bar No Attorneys for the State of Florida Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, FL Telephone:(305) Facsimile: (305)

2 TABLE OF CONTENTS PAGES TABLE OF CITATIONS... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 QUESTION PRESENTED... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 THE PETITIONER S APPLICATION FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT DIRECTLY OR EXPRESSLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OR THIS COURT. CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE i

3 TABLE OF CITATIONS CASES PAGES FEDERAL CASES Middleton v. McNeil, 541 U.S. 433, 124 S. Ct. 1830, 158 L. Ed. 2d 701 (2004)... 2 STATE CASES Hernandez v. State, 842 So. 2d 1049 (Fla. 4th DCA 2003)... 2 Hill v. State, 979 So. 2d 1134 (Fla. 3d DCA 2008)... 2, 3 Johnson v. State, 718 So. 2d 848 (Fla. 5th DCA 1998)... 2, 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 7 Reimel v. State, 532 So. 2d 16 (Fla. 5th DCA 1988)... 3 Rodgers v. State, 948 So. 2d 655 (Fla. 2006)... 7 Sims v. State, 967 So. 2d 148 (Fla. 2007)... 7 ii

4 INTRODUCTION Petitioner, Jamar Antwan Hill, was the defendant in the trial court and the appellant in the Third District Court of Appeal. Respondent, the State of Florida, was the prosecution in the trial court and the appellee in the Third District Court of Appeal. The parties shall be referred to as they stand in this Court. 1

5 STATEMENT OF THE CASE AND FACTS Petitioner was convicted and sentenced for two counts of first degree murder. The Third District Court of Appeal affirmed his conviction and sentence with a written opinion. Hill v. State, 979 So. 2d 1134 (Fla. 3d DCA 2008). The district court found in pertinent part as follows: Defendant-appellant Hill contended that he had shot and killed both of the victims because he feared they were about to kill him. He shot both in the back of the head. Both men turned out to be unarmed. The jury was given the standard jury instruction on self-defense. By statute, a person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony , Fla. Stat. (2000) (emphasis added). The defendant also requested an instruction on imperfect self-defense. Imperfect self-defense is [t]he use of force by one who makes an honest but unreasonable mistake that force is necessary to repel an attack. Black's Law Dictionary 1390 (8th ed. 2004). The defendant relied on a California jury instruction regarding imperfect self-defense. Under California law, Where that fear [of imminent peril] is unreasonable (but nevertheless genuine), it reduces the crime from murder to voluntary manslaughter-a doctrine known as imperfect self-defense. Middleton v. McNeil, 541 U.S. 433, 434, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004). The defendant asked the trial *1135 court to give the California instruction quoted in Middleton. We conclude that the requested instruction is contrary to the Florida statute, which requires a reasonable belief in the necessity to use deadly force. The Florida statute does not contain a provision on imperfect self-defense. The trial court correctly rejected the defense request. See Hernandez v. State, 842 So.2d 1049, 1051 (Fla. 4th DCA 2003); Johnson v. State, 718 So.2d 848, (Fla. 5th DCA 1998); 2

6 Reimel v. State, 532 So.2d 16, 18 (Fla. 5th DCA 1988). See generally Wayne R. LaFave, Substantive Criminal Law 10.4(i) (2d ed. 2003). Hill, 979 So. 2d at (footnotes omitted). The requested jury instruction is quoted in the opinion and states, in part, The specific intent for manslaughter, as opposed to murder, may arise from the following circumstance: An honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. Petitioner s motion for rehearing was denied on June 5, Petitioner now seeks discretionary review in this Court. 3

7 QUESTION PRESENTED WHETHER THIS COURT SHOULD DECLINE DISCRETIONARY JURISDICTION TO REVIEW THE THIRD DISTRICT COURT OF APPEAL S OPINION THAT DOES NOT DIRECTLY OR EXPRESSLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OR THIS COURT. 4

8 SUMMARY OF THE ARGUMENT There is no basis upon which discretionary review can be granted in this case. The Third District Court s opinion does not conflict with any case of this Court or of any other district court in Florida. Consequently, conflict jurisdiction does not exist for the exercise of this Court s discretionary jurisdiction to review the decision below. This Court should therefore deny Petitioner s petition to review the decision of the district court. 5

9 ARGUMENT PETITIONER S APPLICATION FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT OF APPEAL S DECISION DOES NOT DIRECTLY OR EXPRESSLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OR THIS COURT. Petitioner contends this Court should invoke its discretionary review power to review the Third District Court of Appeal s decision in the instant case. Petitioner claims the district court s decision expressly and directly conflicts with decisions from this Court and other district courts by holding that the State of Florida does not recognize the imperfect self-defense doctrine. (Petitioner s Brief on Jurisdiction, p. 3). Respondent submits this Court does not have any jurisdiction to review the Third District Court s opinion, because, contrary to Petitioner s claim, the decision below is not in express or direct conflict with any decision from this Court or any other district court on the same question of law. Petitioner argues that Florida law recognizes perfect self-defense, but that does not mean it cannot also recognize the theory of imperfect self-defense; the two are not mutually exclusive. Petitioner then cites several cases in support of the argument that Florida courts have recognized the existence of the imperfect self- defense theory. 6

10 None of the cases cited by Petitioner hold that a defendant is entitled to a jury instruction on imperfect self-defense. Petitioner cites Justice Anstead s concurring and dissenting opinion in Rodgers v. State, 948 So. 2d 655 (Fla. 2006), for the proposition that this Court recognized the jury s ability to find that the defendant had established imperfect self-defense even though the jury had rejected the defendant s standard (i.e. perfect ) self-defense claim. (Petitioner s Brief on Jurisdiction, p. 7). This Court in Rodgers did not hold that a defendant is entitled to a jury instruction on imperfect self-defense. Further, a dissenting opinion cannot form the basis of this Court s jurisdiction. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Petitioner cites Sims v. State, 967 So. 2d 148 (Fla. 2007) as an instance where this Court recognized the viability of the imperfect selfdefense doctrine. (Petitioner s brief on jurisdiction, p. 7). Sims does not hold that a defendant is entitled to an instruction on imperfect self-defense. This Court merely stated in a footnote that on Sims s direct appeal it had rejected a claim of error in refusing to consider evidence of imperfect self-defense as a mitigating factor. Petitioner also cites Johnson v. State, 718 So. 2d 848 (Fla. 5th DCA 1998), as a district court decision that recognizes the existence of the imperfect selfdefense doctrine in Florida. In Johnson, the court found no error in refusing the defendant s requested special instructions on battered child syndrome and imperfect self defense, finding generally that the instructions were not supported 7

11 by the evidence. The opinion does not discuss whether an instruction on imperfect self-defense would ever be appropriate. None of these cases conflicts expressly or directly with the district court s opinion in this case. They do not hold, or even discuss, a defendant s entitlement to a jury instruction on imperfect self-defense. The Third District Court concluded that Petitioner s requested jury instruction was contrary to , Fla. Stat. (2000), which states that a person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. The Third District Court s opinion does not certify conflict with any case or certify a question to this Court. There is no express and direct conflict with Petitioner s cited cases, or any decision from this Court or any other district court on the same question of law. Therefore, the Third District Court s opinion does not give rise to any express conflict and this petition to invoke discretionary review must be denied. 8

12 CONCLUSION WHEREFORE, based on the preceding authorities and arguments, Respondent respectfully requests that this Court decline jurisdiction to review this cause. Respectfully Submitted, BILL McCOLLUM Attorney General RICHARD L. POLIN Bureau Chief ANGEL L. FLEMING Assistant Attorney General Florida Bar Number Attorneys for the State of Florida Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, FL Telephone: (305) Facsimile: (305)

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of Respondent was mailed to Gwendolyn Powell Braswell, Assistant Public Defender, 1320 NW 14 th Street, Miami, FL on this day of June, ANGEL L. FLEMING Assistant Attorney General CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the foregoing Response was written using 14 point Times New Roman in compliance with Fla. R. App. P (a)(2). ANGEL L. FLEMING Assistant Attorney General 10

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