IN THE SUPREME COURT OF FLORIDA. v. Case No. SC LCN: 4D STATE OF FLORIDA, RESPONDENT'S AMENDED BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA WILLIE FRANK DAVIS, Petitioner, v. Case No. SC LCN: 4D STATE OF FLORIDA, Respondent. RESPONDENT'S AMENDED BRIEF ON JURISDICTION BILL MCCOLLUM ATTORNEY GENERAL CELIA A. TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No AUGUST A. BONAVITA Assistant Attorney General Florida Bar No North Flagler Drive Ninth Floor West Palm Beach,Florida (561) Fax (561) Counsel for Respondent

2 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS...ii TABLE OF CITATIONS...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT...4 ARGUMENT THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION SINCE THE LOWER COURT S UNPUBLISHED ORDER DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE CITED CASES(Restated). CONCLUSION...8 CERTIFICATE OF SERVICE...9 CERTIFICATE OF TYPE SIZE AND STYLE...9 ii

3 TABLE OF CITATIONS CASES Allen v. State, 743 So. 2d 599 (Fla. 3d DCA 1999)...2,6,7 Berry v. State, 668 So. 2d 967 (Fla. 1996)...2,6,7 Cole v. State, 942 So. 2d 1010 (Fla. 2d DCA 2006)...3,4,5,6,7,8 Davis v. Sec. for Department of Corrections, 286 F.3d 1066 (11th Cir 2001)...2 Davis v. Singletary, Case No (S.D. Fla. June 21, 2000)...2 Davis v. State, 487 So. 2d 1075 (Fla. 4th DCA 1986)...2 Davis v. State, 939 So. 2d 110 (Fla. 4th DCA 2006)...2 Davis v. State, Case No. 4D (January 14, 2009)...2 Faison v. State, 426 So. 2d 963 (Fla. 1983)...7 Frederick v. State, 931 So. 2d 967 (Fla. 3d DCA 2006)...3,4,5,6,7,8 Hemingway v. State, 889 So. 2d 921 (Fla. 4th DCA 2004)...2,6,7 Mancini v. State, 312 So. 2d 732 (Fla. 1975)...5 Sutton v. State, 975 So. 2d 1073 (Fla )...5 The Florida Bar v. B.J.F., 530 So. 2d 286 (Fla. 1988)...5 iii

4 MISCELLANEOUS Art. V, Fla. Const. 3(b)(3)...5 Fla. R. App. P (d)...6, 7 iv

5 PRELIMINARY STATEMENT Petitioner was the Defendant and Respondent was the Prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal. In this Brief, the parties shall be referred to as they appear before this Honorable Court except that Respondent may also be referred to as the State. 1

6 STATEMENT OF THE CASE AND FACTS The pertinent facts necessary to resolve the issue before this Court are succinctly set out in the unpublished order of the Fourth District Court of Appeal in Davis v. State, Case No. 4D (January 14, 2009): ORDERED that the petition for writ of habeas corpus is denied with prejudice. The refinement of the law announced in Berry v. State, 668 So.2d 967 (Fla. 1996), is not grounds for vacating petitioner s 1985 kidnapping convictions. Hemingway v. State, 889 So.2d 921 (Fla. 4th DCA 2004), cert. den., 546 U.S. 847 (2005)(citing Allen v. State, 743 So.2d 599 (Fla. 3d DCA 1999)). Petitioner has twice litigated this same issue in state courts. Davis v. State, 939 So.2d 110 (Fla. 4th DCA 2006); Davis v. State, 487 So.2d 1075 (Fla. 4th DCA 1986). No manifest justice is apparent. In addition, petitioner has fully litigated this issue through the federal court system which has also determined that Berry does not entitle petitioner to relief and that the kidnapping convictions in this case do not violate due process. Davis v. Sec. for Dept. of Corrections, 286 F.3d 1066 (11th Cir 2001), cert denied, 534 U.S (2001)(affirming the order in Davis v. Singletary, Case No (S.D. Fla. June 21, 2000)). (App. A). WARNER, POLEN, and STEVENSON, J.J., concur. Petitioner filed a Notice to Invoke Discretionary Jurisdiction of the Florida Supreme Court, claiming that the above-cited order of the lower court expressly and directly 2

7 conflicts with decisions rendered by other District Courts of Appeal, namely, Cole v. State, 942 So.2d 1010, 1013 (Fla. 2d DCA 2006) and Frederick v. State, 931 So.2d 967 (Fla. 3d DCA 2006). Petitioner filed his Brief on Jurisdiction. This brief follows. 3

8 SUMMARY OF THE ARGUMENT This Court should decline to accept jurisdiction since the lower court s order does not expressly and directly conflict with Cole and Frederick. 4

9 ARGUMENT THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION SINCE THE LOWER COURT S UNPUBLISHED ORDER DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE CITED CASES(Restated). Petitioner contends that the Fourth District's decision in the instant case is in express and direct conflict with Cole and Frederick. Respondent asserts that conflict does not exist. This Honorable Court has authority pursuant to Art. V, 3(b)(3), Fla. Const. to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. 1 See The Florida Bar v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988). In Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975), the Court made it clear that its jurisdiction to review decisions of courts of appeal because of alleged conflicts is invoked by (1) the announcement of a rule of law which conflicts with a rule previously announced by this court or another district, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same facts as 1 Unpublished orders without table citation, such as the one at bar, constitute decisions for discretionary jurisdiction purposes. See, Sutton v. State 975 So.2d 1073, 1075, fn. 1 (Fla. 2008). 5

10 a prior case. In this second situation, the facts of the case are of the utmost importance. In the case sub judice, the Fourth District Court of Appeal denied with prejudice Davis petition for a writ of habeas corpus essentially finding that the claim has been litigated multiple times in both the state and federal courts. The lower court likewise found that no manifest injustice is apparent. Finally, the lower court opined that the refinement of the law announced in Berry, is not grounds for vacating petitioner s 1985 kidnapping convictions. Hemingway; Allen. Petitioner makes an extensive merits argument that he was wrongfully convicted without setting forth any argument that the lower court s order expressly and directly conflicts with Cole and Frederick, as he claims as a basis for jurisdiction in this Court. Respondent submits this is improper. See, Fla. R. App. P (d)(Briefs on jurisdiction should be limited solely to the issue of the supreme court's jurisdiction). Apart from this, no conflict exists. Unlike this case, both Cole and Frederick involved direct appeals from convictions in the trial court, both of which occurred after the Berry decision. In Cole the Second District Court of Appeal held that the evidence did not support a separate conviction for armed kidnapping. Id. at While committing an armed robbery, 6

11 the defendant ordered the victim at gunpoint into a bathroom and told her to remain there. The victim walked 10 feet into the room and closed the door without locking it. Similarly, in Frederick the Third District Court of Appeal held the evidence was insufficient to support a separate kidnapping conviction. During the course of an armed robbery of a restaurant, the defendant ordered the victims to get inside the freezer and remain there. After fleeing the restaurant, the victims were let out of the freezer. Id. at In setting aside the kidnapping convictions, both the Frederick and Cole courts applied the three-part test adopted by this Court in Faison v. State, 426 So.2d 963 (Fla. 1983) and later adjusted in Berry, finding that the confinements were slight, inconsequential, and incidental to the other felony of robbery. Here, on the other hand, the lower court denied the Petition for habeas corpus in which Petitioner argues successively that the Berry decision should be applied in a similar manner retroactively to his 1985 conviction. The order cites to Hemingway which in turn cites to Allen for the proposition that the adjustments made to the Faison test for offense of kidnapping in Berry would not apply retroactively. Thus, the lower court s order in no directly and expressly conflicts with Cole and Frederick. 7 It follows that the lower

12 court s order does not directly and expressly conflict with the decision in Frederick and Cole. CONCLUSION Based on the foregoing argument and citations, Respondent respectfully requests this Court to DECLINE to accept jurisdiction to review the instant case. Respectfully submitted, BILL MCCOLLUM ATTORNEY GENERAL CELIA A. TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No AUGUST A. BONAVITA Assistant Attorney General Florida Bar No North Flagler Drive Ninth Floor West Palm Beach, FL (561) (561) Facsimile Counsel for Respondent 8

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Respondent's Amended Brief On Jurisdiction" has been furnished by U.S. Mail to: WILLIE FRANK DAVIS, Pro Se, DC # , Everglades C.I., Post Office Box , Miami, Florida, , this 21st day of April, Of Counsel CERTIFICATE OF TYPE SIZE AND STYLE The undersigned hereby certified that the instant brief has been prepared with 12 point Courier New type, a font that is not proportionately spaced. AUGUST A. BONAVITA Assistant Attorney General 9