IN THE SUPREME COURT OF FLORIDA. Petitioner, Case No. SC ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA DALIA FIGUEROA, v. Petitioner, Case No. SC STATE OF FLORIDA, Respondent. ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT BILL McCOLLUM ATTORNEY GENERAL ROBERT J. KRAUSS Senior Assistant Attorney general Chief of Criminal Law, Tampa Florida Bar No CHANDRA W. DASRAT Assistant Attorney General Florida Bar No Office of the Attorney General 3507 E. Frontage Road, Suite 200 Tampa, Florida Telephone:(813) Facsimile:(813) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS... 1 PRELIMINARY STATEMENT... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 ISSUE... 5 WHETHER THIS COURT SHOULD ACCEPT DISCRETIONARY REVIEW OF THE DECISION FROM THE SECOND DISTRICT COURT OF APPEAL? CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE ii

3 TABLE OF AUTHORITIES Page Nos. Figueroa v. State, 956 So. 2d 1248 (Fla. 2nd DCA 2007)... 6,7,9 Jackson v. State, 926 So. 2d 1262 (Fla. 2006)... 8,9 R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004)... 7 Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983)... 8 OTHER AUTHORITIES: Article V, section 3(b)(3)... 8 Florida Rule of Criminal Procedure Florida Rule of Appellate Procedure (a)(2)(a)... 5 Fla. R. App. P (a)(2)(b)... 5 Florida Rule of Criminal Procedure 9.210(a)(2) iii

4 STATEMENT OF THE CASE AND FACTS On May 23, 2005, the State Attorney in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida filed a nine-count information charging Petitioner and her co-defendant, Hector Ramos, with the commission of the following offenses: Count One: Kidnapping (discharge) in violation of section (1)(a)/ (2), Florida Statutes (2005) Count Two: Armed Burglary of a Dwelling (discharge) in violation of section (1)&(2)(b)/ (2), Florida Statutes (2005) Count Three: DEFENDANT RAMOS ONLY Count Four: Robbery (firearm $300 or more; less than $20,000) (discharge) in violation of section (1)&(2)(a)/ (2), Florida Statutes (2005) Count Five: Robbery (firearm $300 or more; less than $20,000) (discharge) in violation of section (1)&(2)(a)/ (2), Florida Statutes (2005) Count Six: Attempted Robbery (firearm $300 or more; less than $20,000) (discharge) in violation of section (1)&(2)(a)/ (2), Florida Statutes (2005) Count Seven: Attempted Robbery (firearm $300 or more; less than $20,000) (discharge) in violation of section (1)&(2)(a)/ (2), Florida Statutes (2005) Count Eight: Aggravated Battery (Firearm) in violation of section (1)(a)/ (2), Florida Statutes (2005) Count Nine: DEFENDANT RAMOS ONLY (R28-33). The information superceded a prior information filed on January 18, (R28). 1

5 On August 22 and 23, 2005, a jury trial was held before the Honorable Circuit Court Judge Nick Nazaretian. (Vol. I-IV: TR1-383). At the conclusion of the trial, the jury returned the following verdict against Petitioner: Count One: Guilty of Armed Kidnapping with a Firearm, as charged Count Two: Guilty of Armed Burglary of a Dwelling with a Firearm, as charged Count Three: Guilty of Armed Robbery with a Firearm, as charged Count Four: Guilty of Armed Robbery with a Firearm, as charged Count Five: Guilty of Attempted Armed Robbery with a Firearm, as charged Count Six: Guilty of Attempted Armed Robbery with a Firearm, as charged Count Seven: Guilty of Aggravated Battery with a Firearm, as charged (R69-71). On January 9, 2006, a judgment was entered reflecting Petitioner had been tried and found guilty by jury verdict of the commission of counts 1, 2, 4, 5, 6, 7, and 8. (R87). Petitioner was sentenced to 25 years imprisonment as to counts 1, 2, 4, and 5 and 15 years imprisonment as to counts 6, 7, and 8. (R90 & 95). The imposed sentences were to each run concurrently. (R91). On direct appeal, Petitioner argued to the Second District Court of Appeal during briefing and oral argument that the trial 2

6 court amended the jury s verdict. It was alleged this error resulted in the entry of convictions for offenses that were either not charged in the information or contrary to the jury s verdict. On May 25, 2007, the Second District entered its written opinion affirming the trial court s judgment and sentence but wrote briefly to address a scrivener's error in the judgment. The Second District remanded with instructions for the trial court to make corrections to the judgment so as to reflect count one was punishable by a term of years not exceeding life. Figueroa v. State, 956 So. 2d 1248 (Fla. 2nd DCA 2007). This instant appeal followed. PRELIMINARY STATEMENT Citations to the record on appeal will be referred to by the symbol (R) followed by the appropriate page number. 3

7 SUMMARY OF THE ARGUMENT Petitioner requests this Court to exercise discretionary jurisdiction to correct an alleged error committed by the trial court. Petitioner claims the trial court entered judgments of convictions that were not in accordance with the State s amended information and the exact wording of the verdict, and in doing so, violated Petitioner s constitutional rights. Respondent submits Petitioner s stated basis for review by this Court is not accordance with requirements of Article V, 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure (a)(2) upon which this Court may invoke its power of discretionary jurisdiction. Accordingly, Respondent respectfully requests this Honorable Court decline to exercise jurisdiction over the instant case. 4

8 ARGUMENT ISSUE WHETHER THIS COURT SHOULD ACCEPT DISCRETIONARY REVIEW OF THE DECISION FROM THE SECOND DISTRICT COURT OF APPEAL? Florida Rule of Criminal Procedure provides a number of circumstances upon which this Court may invoke discretionary jurisdiction. Section (a)(2)(a) states the Florida Supreme Court s discretionary jurisdiction may be sought to review decisions of district courts of appeal that: (i) expressly declares valid a state statute; (ii) expressly construes a provision of the state or federal constitution; (iii) expressly affects a class of constitutional or state officers; (iv) expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law; (v) that pass upon a question certified to be of great public importance; or, (vi) are certified to be in direct conflict with decisions of other district courts of appeal. The rule further states discretionary jurisdiction may be sought over orders and judgments of trial courts provided it is certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and (i) to be of great public importance, or (ii) to have a great effect 5

9 on the proper administration of justice. Fla. R. App. P (a)(2)(b). Here, Petitioner argues his constitutional rights were violated by the trial court and that the Second District of Appeal failed to grant relief on his claim on direct appeal. The error is alleged to reside in the judgment, which, according to Petitioner, was not in accordance with the amended information and the exact wording of the verdict. In doing so, Petitioner argues the trial court violated his Fifth Amendment right to due process of law as well as the Sixth Amendment accusation clause of the United States Constitution and the corresponding rights found in Articles 9 and 16 of the Florida Constitution. He now claims the Second District Court of Appeal s written opinion did not address his claim of error. Petitioner requests this Court invoke discretionary jurisdiction over Figueroa v. State, 956 So. 2d 1248 (Fla. 2nd DCA 2007) and review the opinion of the Second District. In Figueroa, the Second District issued a written opinion affirming the trial court s judgment and sentence but wrote only to address a scrivener's error in the judgment. It remanded with instructions for the trial court to make corrections to the judgment so as to reflect count one was punishable by a term of years not exceeding life. Figueroa v. State, 956 So. 2d 1248, (Fla. 2nd DCA 2007). 6

10 Respondent submits Petitioner s stated basis for review by this Court does not conform with the requirements of Florida Rule of Criminal Procedure upon which this Court may exercise discretionary jurisdiction. Petitioner has failed to allege, as a condition precedent to invoking this Court s discretionary jurisdiction, that the Second District s opinion Figueroa v. State either expressly declared valid a state statute, expressly construed a provision of the state or federal constitution, expressly affected a class of constitutional or state officers, expressly and directly conflicted with a decision of another district court of appeal or of the supreme court on the same question of law, that the district court passed upon a question certified to be of great public importance, or that it certified Figueroa v. State to be in direct conflict with one or more decisions of other district courts of appeal. Furthermore, Petitioner s claim that discretionary review should be granted on the basis that the Second District declined to write about a specific issue fails in light of this Court s holding in R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004). In that case, this Court recognized it lacked authority to order a district court to write an opinion. It was specifically stated that district courts have an "inherent discretion" to decide whether to write an opinion. R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 at 989. If a district court has discretion to write an opinion, 7

11 Respondent submits that it follows that that district court also has discretion over which issues are to be elaborated upon in a written opinion, especially, one affirming a judgment and sentence. Additionally, a Petitioner s right to access courts is not thwarted by a district court's unelaborated affirmance because the constitution's guarantee of a right to review does not extend to review by the Florida Supreme Court. Whipple v. State, 431 So. 2d 1011, (Fla. 2d DCA 1983). In Jackson v. State, 926 So. 2d 1262, 1265 (Fla. 2006), this Court reiterated the long-held rule that it lacks jurisdiction to review claims set forth in unelaborated per curiam decisions. It was recognized that unelaborated per curiam decisions do not constitute a decision of the district court of appeal sufficient to warrant discretionary review jurisdiction. Id. This was based on the language of article V, section 3(b)(3), which limits its jurisdiction to district court opinions that "expressly" conflicts with another district court of appeal. Jackson v. State, 926 So. 2d 1262 at 1263 at The framers of the constitutional provision never intended that the district courts of appeal should be intermediate courts." Id. at The district courts were established to preserve the Florida Supreme Court's function 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 8

12 preservation of uniformity of principle and practice. Jackson v. State, 926 So. 2d 1262 at Accordingly, this Court should decline to accept discretionary jurisdiction over Figueroa v. State, 956 So. 2d 1248 (Fla. 2nd DCA 2007). 9

13 CONCLUSION Respondent respectfully requests that this Court deny review in the instant case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to Joseph N. D Achille Jr., Special Assistant Public Defender, P.O. Box 9000, - - Drawer PD, Bartow, Florida on this 16th day of July CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL ROBERT J. KRAUSS Senior Assistant Attorney General Chief of Criminal Law, Tampa Florida Bar No CHANDRA WAITE DASRAT Assistant Attorney General Florida Bar No Tampa Criminal Appeals Division Concourse Center IV 3507 E. Frontage Road, Suite 200 Tampa, Florida Telephone:(813) COUNSEL FOR RESPONDENT 10