its discretionary jurisdiction in this Family Law (divorce)

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO-: SC Lower Tribunal No(s).: 4D , VALERIE DENISE KNOWLES, F/K/A VALERIE DENISE POPE, Petitioner, vs. DONALD POPS, Respondent. I PETITIONER'S BRIEF ON JURISDICTION Valerie Denise Knowles is the Petitioner in this proceeding, is proceeding without the representation of counsel and is invoking the rule established in Haines v. Kerner, 404 U.S. 516 (1971). Mrs. Knowles has filed a petition to invoke the jurisdiction of this Court to review the decision of the District Court of Appeals for the Fourth District of Florida. Petitioner relies upon Florida Rules of Appellate Procedures 9.030(a)(2)(A)(iv), and/or 9.030(a)(2)(B)(i), or (ii). POINT ONE Petitioner contends that this Court has authority to invoke its discretionary jurisdiction in this Family Law (divorce) proceeding because the decision of the District Court of Appeals offends, and is in direct conflict with, decisions from the United States Supreme Court, and other federal Courts of Appeals on the same ground utilized by the District Court to dismiss Petitioner's appeal without addressing the merits of the claims.

2 L POINT TWO Petitioner contends that the issue presented herein must be considered "to be one of great public importance," or one "to have a great effect on the proper administration of justice" because the District Court's reading, and/or application, of the laws will not only affect Petitioner's constitutional rights to Due Process of law and Access to the Courts, but will affect, and infect, the rights of those to follow, leaving a void in a person's right to petition for any injury unconstitutionally and unlawfully applied to them, yet without any recourse. ' ~ STATEMENT OF THE KKLEV&HT FACTS 1. On February 19, 2009, after divorce proceedings were initiated by the Petitioner, a Hearing was conducted before a General Magistrate Judge for the dissolution of marriage between the parties. 2. On March 11, 2009, the General Magistrate Judge ("Magistrate"), after hearing live testimony on February 19, 2009, made "findings" and prepared her Report and Recommendations ("R&R") for the Circuit Judge's considerations (See Exhibit A). 3. On March 30, 2009, the Honorable Susan J. Aramony, Circuit Court Judge for the 17th Judicial Circuit in and for Broward County, Florida, entered an Order "adopt[ing] each and every recommendation of the General Magistrate Judge (See Exhibit B). 4. On April 14, 2009, Petitioner filed a timely Notice of Appeal, pro se after her retained attorney withdrew as counsel

3 of record. 5. On June 9, 2010, approximately fourteen (14) months later, the Fourth District Court of Appeals entered an Order "Per Curiam Affirm [ing] the trial court's Order (See Exhibit C). 6. On August 11, 2010, pursuant to Petitioner's Motion for Rehearing, the Fourth District Court of Appeals denied Petitioner's Motion for Rehearing and stated that "[tjhe issues raised by [Petitioner] were not properly preserved at the trial level (See Exhibit D). 7. On September 7, 2010, Petitioner filed, in the Fourth District Court of Appeals, a notice to Invoke [this Court's] Discretionary Jurisdiction, and on September 14, 2010, this Court acknowledged Petitioner's case and directed Petitioner to pay the $ filing fee or to [obtain] an Order of insolvency from the District Court (See Exhibit B). Petitioner, after being denied leave to proceed in forma pauper is by the District Court, paid the filing fee (Exhibit F)(denying Informal Pauperis). 8. On October 2 1, 2010, this Court advised Petitioner to comply with Florida Rules of Appellate Procedure 9.120(d) regarding the filing of a "brief on jurisdiction'1 within 15 days of its Order (See Exhibit G). Petitioner has complied with this Court's Order. B9SRS0WS TO GKBMT DISCBKTIOMARY JURISDICTION The District Court's reliance on this Court's decision, as reflected in Exhibit D, is misplaced and violates Petitioner's constitutional rights, under the Florida and Federal Constitutions, to Due Process and Access to the Courts. The

4 District Court's decision is also in direct conflict with decisions from the federal courts including the United States Supreme Court on the same issue of law involved in this appeal. In the event this Court determines that it has certiorari jurisdiction in this appeal, this Court should decide the merits so as to set a precedent, one way or the other, for the State of Florida to be governed with respect to the application of the "plain error" standard of review in Family Law proceedings. That is, whether, and to what extent, a party to a divorce, or other Family Law, proceeding is protected by the Florida Constitution's due process rights and the right to "plain" rather than "preserved" appellate review in the appropriate case as implied by the Supreme Court of the United States precedent in U.S. v. Olano, 507 U.S. 525 (1993). JURISDICTTOHAL ARGUMENT ONE The District Court of Appeals, in this case, refused to address the merits of Petitioner's appellate issues stating that "[t]he issues raised by [Petitioner] were not properly preserved at the trial level" (See Exhibit D). Consequently, however, Petitioner would argue that the District Court's failure to apply the Supreme Court's decision in Olano, supra, in and of itself, provides this Court with jurisdiction to grant certiorari jurisdiction to review the decision of the District Court. Petitioner does not imply or suggest that the District Court's decision is correct. To the contrary. Petitioner asserts that the district court misapplied the law to the facts of this case, and does not waive any rights by virtue of this brief.

5 Assuming, arguendo, that the District Court's refusal to address the merits of Petitioner's appellate claims, under preserved error was proper, the decision is in direct conflict with the Supreme law of the Land. Olano, supra; see also U.S. v. Slay, 714 F. 2d 1093 (11th Cir. 1983) (holding that "appellate review will be limited to plain error review absent objections to a Report and Recommendation"). In the instant case, the District Court's refusal to address Petitioner's appellate claims is predicated on Petitioner's alleged failure to properly object to the Magistrate Judge's Report and Recommendations. Additionally, the Court of Appeals has manifested that "plain error" review does, in fact, apply, and is tantamount to the federal due process inquiry. There, the Court held, in relevant part, that: 11 The State's appellate court's plain error review is essentially the same as the federal due process inquiry." See Thornburg v. Mullin, 422 F. 3d 1113, 1125 (10th Cir. 2005). Therefore, even if Petitioner failed to properly preserve her issues at the trial level, the "plain error" standard of review must be applied in order for the court's decision to pass constitutional muster. Because the District Court failed to do so, its decision is in direct conflict with Article VI (Supremacy Clause) of the Federal Constitution and Olano. JURISDICTIONAI. ARGUMENT TWO The Florida Constitution, Art. 1, 21, guarantees Petitioner the right to access to the courts for redress of any injury; and this Constitution also guarantees that "[n]o person

6 shall be deprived of... property without due process of law." (Art. 1, 9). This guarantee is likewise guaranteed by the United States Constitution, Amendment V. By virtue of the District Court's failure to comply with the Supreme law of the Land, that court deprived Petitioner of her protected rights which, without this Court's intervention, will forever be lost, therefore, this Court is urged to intervene into this matter because the District Court's decision stands to operate as a mandate requiring Petitioner to lose a great portion of her retirement account and other property, for which she alone earned, based upon a misapplication of the law and Petitioner's rights. CONCLUSION For all of the above reasons, Petitioner respectfully urge this Court to grant certiorari review in this cause, and to set a standard, or require the District Court to follow the law, for Family Law matters as they, too, are embraced by the protections of the Florida and Federal Constitutions. CERTIFICATE OF SERVICE Petitioner certifies that a true and correct copy of the foregoing brief on jurisdiction was served upon counsel for the Respondent, Mr. Andrew D. Washor, P. A., on this * $»* day of MttUhfti*, 2010, by First Class U.S. Mail at the following address: The Courthouse Square, 200 S.E. 6th Street, Suite 201, Fort Lauderdale, Florida,

7 Valerie Denise Knowles 2251 N.W. 49th Avenue Lauderhill, Florida Pro se >». -

8 APPENDIX

9 District Court Of Appeal Of The State Of Florida Fourth District January Term VALERIE DENISE POPE, Appellant, v. DONALD POPE, Appellee. No. 4D [June 9, 2010] PerCuriam. Affirmed Warner, Damoorgian and Levine, JJ., concur. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan J. Aramony, Judge; L.T. Case No (40/93). Valerie Denise Pope, Lauderhill, pro se. No appearance filed for appellee. Not final until disposition of timely filed motion for rehearing. EXHIBIT

10 issas.^ District Court Of Appeal Of The State Of Florida Fourth District July Term 2010 VALERIE DENISE POPE, Appellant, v. DONALD POPE, Appellee. No. 4D [August 11, 2010] On Motion for Rehearing PerCuriam. The motion for rehearing is denied. The issues raised by appellant were not properly preserved at the trial level. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) ("In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved."1 (quoting Tittman v. State, 471 So. 2d 32, 35 (Fla. 1985)) (emphasis added); see also Simmons v. Simmons, 979 So. 2d 1063, 1064 (Fla. 1st DCA 2008) ("The findings required by section (3)(b) help to facilitate the right of appellate review. However, that objective would not be advanced if we were to ask trial judges to fill gaps in the evidence by making their best estimate of value. We do not think that a trial judge should guess at the value of an item of property merely to satisfy a statutory requirement of form."). Warner, Damoorgian and Levine, JJ., concur. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan J. Aramony, Judge; L.T. Case No (40/93). Valerie Denise Pope, Lauderhill, pro se. EXHIBIT D