IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC LOWER COURT NO.: 4D JACK LIEBMAN. Petitioner. vs.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC LOWER COURT NO.: 4D JACK LIEBMAN Petitioner vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION CHARLES J. CRIST, Jr. Attorney General Tallahassee, Florida CELIA TERENZIO Bureau Chief, West Palm Beach Florida Bar No AUGUST A. BONAVITA Assistant Attorney General Florida Bar No North Flagler Drive 9th Floor West Palm Beach, FL Telephone: (561)

2 Counsel for Respondent TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION SINCE THE LOWER COURT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OF THIS COURT IN BLANCO V. WAINWRIGHT, 507 SO.2D 1377 (FLA. 1987) (Restated). CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF TYPE SIZE AND STYLE... 8 i

3 TABLE OF AUTHORITIES STATE CASES Barrientos v. State, 825 So. 2d 1065 (Fla. 4th DCA 2002), rev. den., 845 So. 2d 887 (Fla. 2003)... 5 Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987)... 3 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 4 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 4 Liebman v. State, 853 So. 2d 514 (4th DCA 2003)... 2,5,10 Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 4 Nielson v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 4 ii

4 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 of Appeal except that Respondent may also be referred to as the State. All emphasis in this brief is supplied by Respondent unless otherwise indicated. 1

5 STATEMENT OF THE CASE AND FACTS Respondent hereby adopts and relies upon the detailed factual recitation set forth in the opinion of the Fourth District Court of Appeal in Liebman v. State, 853 So.2d 514 (4th DCA 2003)(App. A) as well as those contained in the argument portion of this brief, which are necessary for a complete understanding of the limited issue presented in this Brief. 2

6 SUMMARY OF THE ARGUMENT This court should decline to accept jurisdiction since there is no express and direct conflict with the decisions of any other district court of appeal and/or this Court. The decision of the Fourth District Court of Appeal does not expressly and directly conflict with the decisions of this Court in Blanco v. Wainwright, 507 So.2d 1377 (Fla. 1987) 3

7 ARGUMENT THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION SINCE THE LOWER COURT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OF THIS COURT IN BLANCO V. WAINWRIGHT, 507 SO.2D 1377 (FLA. 1987) (Restated). Pursuant to Art. V, 3(b)(3), Fla. Const., this Court has the jurisdiction to review a decision of a district court of appeal which expressly and directly conflicts with a decision of this Court or another district court of appeal. Kyle v. Kyle, 139 So.2d 885, 887 (Fla. 1962); Nielson v. City of Sarasota, 117 So.2d 731 (Fla. 1960); Mancini v. State, 312 So.2d 732, 733 (Fla. 1975). It is well settled that in order to establish conflict jurisdiction, the decision sought to be reviewed must expressly and directly create conflict with a decision of another District Court of Appeal or of the Supreme Court on the same question of law. Art. V, Sect. 3(b)(3) Fla. Const.; Jenkins v. State, 385 So.2d 1356 (Fla. 1980). Thus, conflict jurisdiction is properly invoked when the district court announces a rule of law which conflicts with another district's, or when the district court applies a rule of law to produce a different result in a case which involves substantially the same facts of another case. Mancini. Petitioner argues that the decision of the Fourth District Court of Appeal expressly and directly conflicts with this Court s decision in Blanco Respondent 4

8 disagrees. The lower court held that Petitioner was precluded from directly appealing his plea because he voluntarily withdrew his motion to withdraw the plea in the trial court and otherwise did not reserve any issues for appeal at the time he entered the plea. Liebman. Nonetheless, the court affirmed without prejudice to allow Petitioner to pursue his claim in a timely filed Rule Motion. Id. The court cited its decision in Barrientos v. State, 825 So.2d 1065 (Fla. 4th DCA 2002), rev. den., 845 So.2d 887 (Fla. 2003) which in turn cites this Court s decision in Blanco for the proposition that in the vast majority of cases, claims of ineffective assistance of counsel cannot be raised on direct appeal and must first be pursued in the trial court. Liebman, 853 So.2d at 515. In Blanco, this Court reiterated the well-settled rule that generally, ineffective assistance of counsel claims are not cognizable on direct appeal unless and until they are raised in the trial court via a Rule Motion. Id. at Only in the rare exception where the claim is apparent on the face of the record and collateral litigation would amount to a waste of judicial resources, may such a claim be first raised on direct appeal. Id. At bar, the lower court followed this rule in affirming without prejudice Petitioner s ineffective assistance of counsel claim. Appellant argued on direct appeal that his appointed counsel was ineffective as a matter of law because he failed to adequately advise Appellant that by withdrawing his motion, then this would 5

9 effectively waive his right to appeal his guilty pleas. The lower court found the facts underlying this claim are not apparent on the face of the record. Thus, the lower court concluded that Petitioner must first pursue it in a Rule Motion. Liebman. Respondent submits this decision does not conflict with Blanco. In fact, the lower court followed the principle announced in Blanco that generally, claims of ineffective assistance of trial counsel must be first pursued in a collateral proceeding in the trial courts. Since this is not in conflict with Blanco, this Court should decline jurisdiction in this case. Art. V, 3(b)(3), Fla. Const; Kyle; Nielson; Mancini; Jenkins. 6

10 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, CHARLES J. CRIST, Jr. Attorney General Tallahassee, Florida CELIA TERENZIO Bureau Chief, West Palm Beach Florida Bar No AUGUST A. BONAVITA Assistant Attorney General Florida Bar No North Flagler Drive 9th Floor West Palm Beach, FL (561) Counsel for Respondent 7

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent's Brief on Jurisdiction has been furnished by U.S. Mail to: JACK LIEBMAN, Pro Se, DC # , F3-1220, Glades C.I., 500 Orange Avenue Circle, Belle Glade, Florida, , this 18th day of November, AUGUST A. BONAVITA 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 8

12 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO.: SC LOWER COURT NO.: 4D JACK LIEBMAN Petitioner vs. STATE OF FLORIDA, Respondent. RESPONDENT'S APPENDIX

13 App. A Liebman v. State, 853 So.2d 514 (Fla. 4th DCA 2003).