IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC STATE OF FLORIDA, Petitioner, vs. MISAEL CORNEJO, a/k/a, MIGUEL SANCHEZ, Respondent.

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC STATE OF FLORIDA, Petitioner, vs. MISAEL CORNEJO, a/k/a, MIGUEL SANCHEZ, Respondent. RESPONDENT S BRIEF ON JURISDICTION CAREY HAUGHWOUT Public Defender 15th Judicial Circuit of Florida Criminal Justice Building/6th Floor 421 3rd Street West Palm Beach, Florida (561) JOSEPH R. CHLOUPEK Assistant Public Defender Florida Bar No Counsel for Respondent

2 TABLE OF CONTENTS CONTENTS PAGE TABLE OF CONTENTS...i AUTHORITIES CITED... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT CORNEJO V. STATE, 30 FLW D272 (Fla. 4 th DCA, January 26, 2005) NEITHER EXPRESSLY NOR DIRECTLY CONFLICTS WITH ORME V. STATE, 677 So. 2d 258 (Fla. 1996), PRECLUDING THIS COURT S EXERCISE OF DISCRETIONARY REVIEW OF CORNEJO... 4 CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF FONT SIZE i

3 AUTHORITIES CITED CASES PAGE Commerce National Bank in Lake Worth v. Safeco Insurance Company of America, 284 So. 2d 205 (Fla. 1973)... 5, 7 Cornejo v. State, 30 FLW D272 (Fla. 4th DCA, January 26, 2005) Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 5, 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 5, 7 Long v. State, 679 So. 2d 1055 (Fla. 1997) cert. denied, 510 U.S. 832, 114 S.Ct. 104, 126 L.Ed. 62 (1997)... 8 M.L.K. v. State, 454 So. 2d 753 (Fla. 1st DCA 1984)... 8 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 4, 7 Orme v. State, 677 So. 2d 258 (Fla. 1996) cert. denied, 519 U.S. 1079, 117 S. Ct 742, 136 L. Ed 630 (1997)... 6, 8 Pagan v. State, 830 So. 2d 792 (Fla. 2002) cert. denied, 559 So. 2d 919, 123 S. Ct. 2278, 156 L.Ed. 137 ii

4 (2003)... 7 FLORIDA CONSTITUTION Article V, Section (3)(b)(3)... 4, 5 iii

5 PRELIMINARY STATEMENT Petitioner was the prosecution and Respondent was the defendant in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. In this brief, the parties shall be referred to as they appear before the Honorable Court of Appeal. 1

6 STATEMENT OF THE CASE AND FACTS Respondent accepts Petitioner s statement of the case and facts as found on page two of Petitioner s brief on jurisdiction. 2

7 SUMMARY OF THE ARGUMENT This Court must decline to exercise conflict jurisdiction under Article V, Section (3)(b)(3) of the Florida Constitution, since no part of the Fourth District Court of Appeals opinion in Cornejo v. State, 30 FLW D272 (Fla. 4th DCA, January 26, 2005)(rehearing denied February 25, 2005) conflicts with this Court s decision in Orme v. State, 677 So. 2d 258, 261 (Fla. 1996) cert. denied 519 U.S. 1059, 117 S.Ct 742, 136 L.Ed. 630 (1997). 3

8 ARGUMENT CORNEJO V. STATE, 30 FLW D272 (Fla. 4 th DCA, January 26, 2005) NEITHER EXPRESSLY NOR DIRECTLY CONFLICTS WITH ORME V. STATE, 677 So. 2d 258 (Fla. 1996), PRECLUDING THIS COURT S EXERCISE OF DISCRETIONARY REVIEW OF CORNEJO. Petitioner s brief discussion of the legal standards governing this Court s exercise of conflict jurisdiction under Article V, Section (3)(b)(3) of the Florida Constitution, Petitioner s Brief on Jurisdiction at p. 4, is correct but incomplete. In Nielsen v. City of Sarasota, 117 So. 2d 731, (Fla. 1960), this Court comprehensively specified the principle situations justifying the application of [this Court s] jurisdiction to review decisions of Courts of Appeal because of alleged conflicts: (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as the prior case disposed of by this Court. Under the first situation, the facts are immaterial. It is the announcement of the conflicting rule of law that conveys jurisdiction to [this Court] to review the decision of the Court of Appeal. Under the second situation, the controlling facts become vital and [this Court s] jurisdiction may be asserted only when the court of appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in the allegedly conflicting prior decision of 4

9 this Court. (citation omitted). Importantly, for purposes of determining conflict jurisdiction, this Court is limited to the facts appearing in the face of the opinion at issue, Hardee v. State, 534 So. 2d 706, 708, n.1 (Fla. 1988)(citation omitted). More specifically, the language and expressions found in the dissenting...opinion cannot support jurisdiction under section (3)(b)(3) because they are not the decision of the District Court of Appeal; conflict jurisdiction can be established only as to decisions between a District Court of Appeal and this Court, Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). The rationale for this limitation is found in Commerce National Bank in Lake Worth v. Safeco Insurance Company of America, 284 So. 2d 205, 207 (Fla. 1973) overruled on other grounds in Jenkins, supra at 1358: When facts and testimony are set forth in the majority opinion, they are assumed to be an accurate presentation upon which the judgment of the court is based. However, [a dissenting opinion] does not rise to a similar level of dignity and is not considered as precedent... by definition, a dissent contains information, interpretations, or legal analysis which has been rejected, in whole or in part, by the majority... the presumption would be that any factual presentation by the majority would supercede, in terms of prima facie validity, any factual presentation in the dissent if both were in contest... jurisdiction is granted on the record and not on mere assertions of conflict. Lastly, in Commerce National Bank v. Safeco, this Court held that testimony would not be considered as part of the record proper [for purposes of considering conflict 5

10 jurisdiction] except to the extent it is set forth in the record proper... [such as] the appellate decision, 284 So. 2d at 207, n.2. Judged by these legally-complete standards, the fourth DCA decision in Cornejo does not conflict with this Court s prior decision in Orme v. State, 677 So. 2d 258 (Fla. 1996) cert. denied, 519 U.S. 1079, 117 S. Ct 742, 136 L. Ed 630 (1997). Petitioner s assertion of conflict between Cornejo and Orme is based on the claim that the facts underlying appellant s conviction for second degree murder, as outlined by the dissenting opinion in Cornejo, 30 FLW at D , includes both direct and circumstantial evidence; specifically, petitioner claims that certain statements subsequent to the crime charged allegedly made by respondent constitutes a confession or admission of criminal intent to participate in the charged crime, rendering appellant liable as a principal for the crime committed by the co-defendant, id. at D274, see petitioner s brief on jurisdiction pp However, review of Cornejo and Orme discloses no basis for conflict jurisdiction, due to any announced rule of law by the fourth DCA in Cornejo that is at odds with the applicable rule of law from Orme; a comparison of the language used in both cases in discussing the circumstantial evidence rule shows no misstatement or misconstruction of said rule by the fourth DCA in Cornejo, compare 30 FLW at D273 with 677 So. 2d at 261, n.1. Petitioner s premise that the lower court s decision in this case misstated or 6

11 misapplied the law in reviewing respondent s sufficiency claim rests on petitioner s factual assertions, as found in its brief on jurisdiction at pp. 7-8, of respondent s allegedly inculpatory statements subsequent to the crime charged, and precrime discussions of what action to take seeking revenge, as constituting direct evidence of respondent s guilt sufficient to disentitle respondent to appellate review under the circumstantial evidence standard. Unfortunately for petitioner, these factual claims are all based on evidence presented in the dissenting opinion of Judge Gross below, Cornejo, supra. at D However, as this Court noted in Hardee, Jenkins, and Commerce National Bank of Lake Worth v. Safeco, it is only the facts that appear on the face of the majority opinion under review that determine conflict jurisdiction; neither the factual claims found under the dissenting opinion nor reference to testimony presented at trial may be utilized to establish conflict sufficient to involve this Court s discretionary jurisdiction. Under these circumstances, the factual predicate for respondent s conviction as described in the majority opinion in Cornejo suffices to bring this case within the circumstantial evidence rule of appellate sufficiency review, rendering Orme inapplicable legally or factually. Moreover, even considering the facts as postulated by the dissenting opinion and/or petitioner s brief on jurisdiction at pp. 7-8, no conflict jurisdiction is established under Nielson in terms of applying the rule of law on substantially similar controlling facts to produce a disparate result, since the statements of the defendant 7

12 at issue in Orme and the cases recited by petitioner, Pagan v. State, 830 So. 2d 792, (Fla. 2002) cert. denied, 559 So. 2d 919, 123 S. Ct. 2278, 156 L.Ed. 137 (2003) and M.L.K. v. State, 454 So. 2d 753, 756 (Fla. 1st DCA 1984) involved specific actions of those defendants. In contrast, in this case, statements attributed to respondent involved the actions of the charged co-defendant, and cannot be said to be directly or even inferentially inculpatory as to respondent s criminal intent involving the charged crime. Instead, his vague statements of alleged criminal intent as an accessory after the fact in this case would be legally insufficient in combination with the remaining facts, as stated in the majority opinion in Cornejo, to establish respondent s criminal liability as direct evidence of guilt, e.g. Long v. State, 679 So. 2d 1055, 1057 (Fla. 1997) cert. denied, 510 U.S. 832, 114 S.Ct. 104, 126 L.Ed. 62 (1997)(murder prosecution; evidence of hair and carpet fibers identified with victim, coupled with the defendant s vague statements to the effect that he had killed others, insufficient to support criminal conviction). Accordingly, since the fourth DCA decision in Cornejo below conflicts neither legally nor factually with this Court s prior decision in Orme, no basis for this Court s exercise of conflict jurisdiction to review Cornejo exists on this record. In conclusion, this Court must decline to exercise discretionary review of respondent s direct appeal in the fourth DCA in Cornejo v. State, 30 FLW D272 (Fla. 4th DCA, January 26, 2005). 8

13 CONCLUSION Based on the foregoing arguments, and the authorities cited therein, this Court must decline to exercise its discretionary jurisdiction under Article V, Section (3)(b)(3), Florida Constitution, to review the decision of the fourth DCA in Cornejo v. State, 30 FLW D272 (Fla. 4 th DCA 2005). Respectfully submitted, CAREY HAUGHWOUT Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 3rd Street/6th Floor West Palm Beach, Florida (561) JOSEPH R. CHLOUPEK Assistant Public Defender Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to CLAUDINE LAFRANCE, Assistant Attorney General, Office of the Attorney General, Ninth Floor, 1515 N. Flagler Drive, West Palm Beach, Florida , by courier this day of MARCH, Of Counsel 9

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15 CERTIFICATE OF FONT SIZE I HEREBY CERTIFY the instant brief has been prepared with 14 point Times New Roman type, in compliance with a R. App. P (a)(2), this day of MARCH, JOSEPH R. CHLOUPEK Assistant Public Defender 11