IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC JAMES THOMPSON, Petitioner, vs. STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC JAMES THOMPSON, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief Florida Bar No DON M. ROGERS Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT...3 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS NOT IN CONFLICT WITH THE NUMEROUS DECISIONS PETITIONER CITES IN THE BRIEF ON JURISDICTION CONCLUSION...9 CERTIFICATE OF SERVICE...9 CERTIFICATE OF COMPLIANCE...9

3 TABLE OF AUTHORITIES STATE CASES Allied Fidelity Insurance v. State, 406 So. 2d 756 (Fla. 3d DCA 1982)... 7 Cordero v. State, 686 So. 2d 737 (Fla. 3d DCA 1997)... 7 Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 1 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 4 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 4 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 4 Morningstar v. State, 405 So. 2d 778 (Fla. 4th DCA 1982)... 5 Puzio v. State, 969 So. 2d 1197 (Fla. 1st DCA 2007)... 7, 8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 5 Singletary v. State, 322 So. 2d 551 (Fla. 1975)... 5 State Department of Health v. National Adoption Counseling Service, Inc., 498 So. 2d 888(Fla. 1986)... 5 State v. Collie, 390 So. 2d 441 (Fla. 5th DCA 1980)... 6 State v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978)... 5, 6 Thompson v. State, 1 So. 3d 1107 (Fla. 4th DCA 2009)... 3, 4

4 STATEMENT OF THE CASE AND FACTS Noting that in determining jurisdiction this Court is limited to the facts apparent on the face of the opinion, Hardee v. State, 534 So. 2d 706, 708 n.1 (Fla. 1988), respondent will present the facts as they appear in the opinion below: James Thompson petitions this court for a writ of prohibition to prevent his further prosecution for felony driving under the influence (DUI). He contends that the trial court erred in denying his motion for discharge on speedy trial grounds. Specifically, petitioner, who initially faced a misdemeanor DUI charge that was dismissed and upgraded to a felony, argues that, because he was not served with a summons or formally arrested for the felony charge until after the speedy trial period had run, he is entitled to discharge and the state is not entitled to the fifteen-day recapture window of the speedy trial rule. We deny the petition because petitioner received actual notice of the felony filed by the state before the speedy trial period ran; he was not misled into believing that the charge had been abandoned and precluded from timely filing a notice of expiration of speedy trial time. On July 30, 2007, the petitioner was arrested for felony DUI. The felony charge was filed in Case Number CF10A. On August 23, 2007, the state filed an information charging misdemeanor DUI for this offense in Case Number MM10A. On August 30, 2007, the state filed an information charging petitioner with felony DUI for the same offense in Case No CF10A and announced a "no information" on the original felony case (Case No CF10A). An arrest warrant issued for this case on that day. On September 26, 2007, counsel for petitioner filed a notice of appearance in the misdemeanor DUI case. At a calendar call for that case, which was held on October 18, 2007 and attended by counsel for the petitioner,

5 the state announced a nolle prosequi of the misdemeanor DUI and advised that the case had been "upfiled" to a felony DUI. The state also advised that the petitioner was scheduled for an arraignment on the felony charge on October 26. Petitioner was not personally served with a summons or formally arrested on the warrant for the "upfiled" felony. However, on October 11, 2007 a notice of the arraignment date was mailed to petitioner's home address. Because the petitioner failed to appear at arraignment, the trial court issued a "no bond" capias. On February 6, 2008, petitioner surrendered on the capias at the Broward County Jail. On February 8, 2008, petitioner's counsel successfully argued that the petitioner's failure to appear at arraignment was not willful, as he had not been personally served with a summons. The trial court released petitioner on his own recognizance with special conditions. On March 4, 2008, the petitioner moved for immediate discharge, asserting that the speedy trial period expired before the state arrested him or served him with sufficient legal notice. According to the petitioner, the speedy trial period expired on January 21, 2008, 175 days from his arrest on July 30, Petitioner further argued that, because he was not served with process or formally arrested on the "upfiled" felony DUI until after the speedy trial period had run, the state was not entitled to the "recapture window" of rule 3.191(p)(3). The trial court denied petitioner's motion, whereupon he filed this petition for writ of prohibition. In response to our order to show cause, the state argued that the petitioner had notice of the filing of the felony charge and notice of the arraignment date. The state attached exhibits to its response showing that the petitioner was sent written notice and that his attorney was given verbal notice of the filing of the felony charge and arraignment date in open court. According to the state, these facts distinguish this case from cases relied upon by petitioner, because in those cases the defendant was not notified in any manner that the state had re-filed charges.

6 ... In petitioner's case, the state did not mislead him into believing the charges had been abandoned. To the contrary, petitioner's counsel was given express and specific notice on the record that the charge had been "upfiled" and that an arraignment was scheduled on the felony charge. Although the record does not reflect whether petitioner was present at the hearing when his counsel was so advised, notice to counsel is imputed to his client.... In addition, petitioner was mailed a notice to appear for arraignment on the felony charge. [] Hence, the state did not lull petitioner into believing that the charges against him had been abandoned, and the state did not interfere with his ability to file a notice of expiration of the speedy trial time. Thus, the state is entitled to the benefit of the recapture period. Thompson v. State, 1 So. 3d 1107 (Fla. 4th DCA 2009). The State would also note that the case arose from a petition for writ of prohibition filed by Thompson in the district court. The only trial court documents before the Fourth District were provided by the parties in appendices attached to the petition and the state s response. SUMMARY OF THE ARGUMENT This Court should decline to accept jurisdiction to review the instant case because the opinion of the Fourth District Court of Appeal is not in conflict with the numerous decisions cited in the amended initial brief on jurisdiction.

7 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS NOT IN CONFLICT WITH THE NUMEROUS DECISIONS PETITIONER CITES IN THE BRIEF ON JURISDICTION Petitioner contends that the Fourth District's decision in Thompson v. State, 1 So. 3d 1107 (Fla. 4th DCA 2009) is in conflict with numerous decisions cited in petitioner s amended brief on jurisdiction. The State of Florida asserts that conflict does not exist. In order for two decisions to be in express and direct conflict for the purpose of invoking this Court's discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), the decisions should speak to the same point of law, in factual contexts of sufficient similarity to permit the inference that the result in each case would have been different had the deciding court employed the reasoning of the other court as mandatory authority. See generally Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980); Mancini v. State, 312 So. 2d 732 (Fla. 1975). The conflict must be of such magnitude that if both decisions were rendered by the same court, the later decision would have the effect of overruling the earlier decision. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). Conflict between decisions must be express and direct, i.e., it

8 must appear within the four corners of the majority decision. Inherent or so called implied conflict may no longer serve as a basis for this Court's jurisdiction. State Department of Health v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986) (quoting Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). However, "[if] the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, then conflict cannot arise." Id. at 887. "Obviously, two cases cannot be in conflict if they can be validly distinguished." Morningstar v. State, 405 So. 2d 778, 783 (Fla. 4th DCA 1982)(Anstead, J., concurring) Since all the cases petitioner cites are easily distinguishable and very factually different from Thompson, the State asserts no conflict is presented. The first case appellant cites, Singletary v. State, 322 So. 2d 551 (Fla. 1975), is a direct appeal which simply holds that in the absence of a formal arrest the service of a summons in a welfare fraud case starts the running of the 90 day misdemeanor speedy trial time period. In contrast, at bar, there was a formal arrest for DUI which started the speedy trial period. Also, Singletary does not involve the 15 day recapture period of the modern speedy trial rule. The entitlement to the 15 day recapture period is central to the present case.

9 State v. Nesbitt, 355 So. 2d 202 (Fla. 3d DCA 1978) also involved the old speedy trial rule wherein one charged with a felony and who is continually available for trial is automatically discharged if trial does not begin within 180 days of being taken into custody. In Nesbitt the Third District phrased the issue presented as whether a criminal defendant arrested and later charged by information with certain offenses is unavailable for trial sufficient to toll the speedy trial limits... if he does not appear in court pursuant to written notice to answer such charges. Id. at 204. The Third District held that Nesbitt was entitled to discharge under the specific facts of that case. Nesbitt did not involve the question of whether the State was entitled to the 15 day recapture period under the modern speedy trial rule. In State v. Collie, 390 So. 2d 441 (Fla. 5th DCA 1980), the State sent notice of the arraignment date to Collie s bondsman. Collie did not appear at the arraignment. The district court concluded that the notice of arraignment sent to the bondsman and Collie s nonappearance at the arraignment did not toll the fixed 180 day speedy trial period. The court concluded Collie had been continually available for trial during the 180 day period and upheld the grant of the speedy trial discharge. Again Collie did not involve the application of the modern 15

10 day recapture period. Also, Collie did not involve notice to the defendant s attorney in open court of the up-filed charges and mailing of the notice of arraignment on the up-filed charges to the defendant, which happened here. Allied Fidelity Insurance v. State, 406 So. 2d 756 (Fla. 3d DCA 1982) simply holds that when the State brings a no action or a nolle prosequi in a case it acts to discharges the surety in the case. The case has nothing to do with the modern speedy trial rule or the recapture period associated with the speedy trial rule. In Cordero v. State, 686 So. 2d 737 (Fla. 3d DCA 1997) the defendant was arrested in June 1993, and the state entered a no action in July 1993 and Cordera was formally released from all obligations. Then in August 1993 the State filed an information based on the same events and an arrest warrant issued. The State took no further action until June 1994 when the Cordero was arrested. The district court reversed the trial judge and held that the State was not entitled to the 15 day recapture period under the modern speed trial rule as the State did nothing to notify Cordera of the pending charges from August 1993 until his arrest in June In contrast, at bar, the felony DUI charge was filed before the misdemeanor was dismissed. Thompson s attorney was advised of the up-filing of the DUI charge in open court and was advised of the arraignment

11 date and time. Notice of the arraignment was mailed to Thompson. These facts clearly distinguish the cases. In Puzio v. State, 969 So. 2d 1197 (Fla. 1st DCA 2007), after being arrested for misdemeanor theft Puzio was issued a notice to appear at an arraignment on July 9, Four days after his arrest Puzio s attorney filed numerous papers with the clerk of the court, including a notice of appearance and a waiver of arraignment. However, the clerk had no record of any pending charges and advised the attorney of this fact in response to several phone inquiries. On July 16, 1996 the clerk advised the attorney that no cases had been filed against Puzio and the clerk returned all the papers to the attorney. Then on September 25, 2003 an information was filed charging petit theft. In April 2004, Puzio was first notified of the theft charges filed in September The district court directed that Puzio be discharged. The opinion in Puzio is very fact specific. The district court opinion concludes that Puzio had been mislead by the clerk and the state and lulled into believing that the charges against him had been dropped. Id. at Puzio does not involve what happened here where actual notice of the charges being up-filed occurred in open court before petitioner s attorney and the State mailed a notice of the date of arraignment to the defendant. Indeed in Thompson,

12 the Fourth District specifically stated: the state did not lull petitioner into believing that the charges against him had been abandoned, and the state did not interfere with his ability to file a notice of expiration of the speed trial time. Thompson v. State, 1 So. 3d 1107 (Fla. 4th DCA 2009). This court should decline to accept discretionary jurisdiction as the cases petitioner cites are all distinguishable. There is no conflict presented.

13 CONCLUSION Wherefore, based on the foregoing arguments and the authorities cited therein, The State of Florida respectfully requests this Court decline to accept jurisdiction in this case. Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL Tallahassee, Florida CELIA TERENZIO Assist. Attorney General Bureau Chief Florida Bar No DON M. ROGERS Assist. Attorney General Florida Bar No N. Flagler Dr. Suite 900 W.Palm Beach, FL (561) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Respondent's Brief of Jurisdiction" has been furnished by mail to: Robert Malove, Esquire, 1 East Broward Blvd., Suite 700, Ft. Lauderdale, FL on May, Don M. Rogers

14 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New type. Don M. Rogers

15 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC JAMES THOMPSON, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S APPENDIX BILL MCCOLLUM Attorney General Tallahassee, Florida DON M. ROGERS Assistant Attorney General Florida Bar No N. Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent