IN THE SUPREME COURT OF FLORIDA. v. Case No. SC ON DISCRETIONARY REVIEW FROM THE THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA

Transcription

1 Filing # Electronically Filed 01/03/ :22:58 AM RECEIVED, 1/3/ :23:44, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA RAIMUNDO GOMEZ, Petitioner, v. Case No. SC STATE OF FLORIDA, Respondent. ON DISCRETIONARY REVIEW FROM THE THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL CELIA A. TERENZIO SENIOR ASSISTANT ATTORNEY GENERAL Fla. Bar No JEANINE GERMANOWICZ ASSISTANT ATTORNEY GENERAL Fla. Bar No Office of the Attorney General 1515 N. Flagler Drive, Ste. 900 West Palm Beach, FL Primary CrimAppWPB@myfloridalegal.com (561) (561) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE# TABLE OF CONTENTS... ii TABLE OF CITATIONS... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS NOT IN EXPRESS OR DIRECT CONFLICT WITH THE OPINION OF ANY OTHER DISTRICT COURT OR OF THIS COURT. (Restated)... 4 CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE ii

3 CASES TABLE OF CITATIONS PAGE# Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986)... 5 Gomez v. State, --- So. 3d ----, 38 Fla. L. Weekly D. 2362, 2013 WL (Fla. 4 th DCA 2013)... 1, 4, 7 Gusow v. State, 6 So. 3d 699, 705 (Fla. 4th DCA 2009)... 3 Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1998)... 2 Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)... 6 Marshall v. State, 983 So. 2d 680, (Fla. 4th DCA 2008). 3, 7 McCrae v. State, 437 So. 2d 1388 (Fla. 1983) Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)... 5, 6 Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002)... 3, 7, 8 State v. Green, 944 So. 2d 208 (Fla.2006)... 3, 4 State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993)... 3, 7 State v. S.S., 40 So. 3d 6 (Fla. 4 th DCA 2010)... 9 Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989)... 2 OTHER AUTHORITIES Article V, 3(b)(3) of the Florida Constitution... 5, 10 iii

4 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)... 5 iv

5 PRELIMINARY STATEMENT Respondent, the State of Florida, the appellee in the District Court of Appeal (DCA) and the prosecuting authority in the trial court, will be referenced in this brief as Respondent, the prosecution, or the State. Petitioner, Raimundo Gomez, the appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner or by proper name. "IB" will designate Petitioner's Initial Brief on Jurisdiction. That symbol will be followed by the appropriate page number. STATEMENT OF THE CASE AND FACTS The pertinent history and facts are set out in the decision of the lower tribunal which is included in the appendix to this brief. Gomez v. State, --- So. 3d ----, 38 Fla. L. Weekly D. 2362, 2013 WL (Fla. 4 th DCA 2013). The State cannot accept Petitioner's Statement of the Case and Facts as set forth in his brief on jurisdiction for purposes of this Court's decision on whether to accept or decline jurisdiction. The Statement of the Case and the Facts contains argument which is immaterial and impertinent to the controversy between the parties. E.g., Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989)(striking Williams' initial

6 brief because it was unduly argumentative and contained matters immaterial and impertinent to the controversy between the parties). Petitioner refers at length to a number of facts which are not encompassed within the four corners of the opinion of which Petitioner seeks review. See Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1998) ("[F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion"). The only relevant facts in deciding jurisdiction are those set forth in the opinion of the Fourth District in this case. The opinion in its entirety reads: We affirm the denial of appellant's untimely motion for postconviction relief. In it, appellant alleged that his attorney misadvised him as to the consequences to his immigration status of his plea and sentence. He pled no contest to sale or delivery of controlled pills (MDMA, known as ecstasy ) and received a withhold of adjudication with eighteen months of probation. When his green card, allowing him legal residency in this country, came up for renewal six years later, he discovered that, even though his attorney had advised him that a withhold of adjudication might prevent deportation, deportation for the crime was automatic, regardless of the withholding of adjudication. He moved for postconviction relief based upon his attorney's misadvice, which the trial court denied. His motion was untimely. See Marshall v. State, 983 So.2d 680, (Fla. 4th DCA 2008) (time for bringing a postconviction ineffective assistance claim based upon misadvice of counsel commences on the date conviction and sentence becomes final); see also Gusow v. State, 6 So.3d 699, 705 (Fla. 4th DCA 2009) (same). Those cases apply the rule of State v. Green, 944 So.2d 208 (Fla.2006), which holds that a 2

7 postconviction claim of an involuntary plea based upon failure to advise of deportation consequences must be brought within two years of the conviction becoming final. In Marshall, we found that the reasoning of Green should also apply in cases of misadvice. In Marshall, we certified conflict with Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002), and State v. Johnson, 615 So.2d 179 (Fla. 3d DCA 1993). This conflict has never been resolved, although Rodriguez and Johnson were both decided prior to Green, which we conclude controls this issue. Affirmed. Gomez, 38 Fla. L. Weekly D2362, *1. SUMMARY OF ARGUMENT Petitioner's brief on jurisdiction argues that there remains a conflict between the Third and Fourth Districts. (IB 4) Petitioner further suggests that this Court should accept jurisdiction to resolve an important issue concerning the time limitations for filing a motion to vacate a plea based upon affirmative misadvice concerning the deportation consequences of a plea. (IB 5) Petitioner essentially appears to be concluding that 1) this Court did not resolve this issue in State v. Green, 944 So. 2d 208 (Fla. 2006), and 2) there should be no time limitations for bringing claims of affirmative misadvice. Petitioner s argument is fallacious on all counts. Green resolved the issue and rendered any prior certification of conflict moot. Therefore, there is no express and direct 3

8 conflict, and this Court must dismiss this case for lack of jurisdiction. ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS NOT IN EXPRESS OR DIRECT CONFLICT WITH THE OPINION OF ANY OTHER DISTRICT COURT OR OF THIS COURT. (RESTATED) Petitioner appears to contend that this Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), which parallels Article V, 3(b)(3) of the Florida Constitution. This particular provision of the Constitution provides: "The supreme court... [m]ay review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." The conflict between decisions "must be express and direct" and "must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986)(rejected "inherent" or "implied" conflict; dismissed petition). In addition, it is the "conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari." Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). Neither the record, nor a concurring opinion, nor a 4

9 dissenting opinion can be used to establish jurisdiction. Reaves; Jenkins, 385 So. 2d at 1359 ("regardless of whether they are accompanied by a dissenting or concurring opinion"). Accordingly, the determination of conflict jurisdiction distills to whether the District Court's decision reached a result opposite that of this Court or of any other district court of appeal. Here, the decision below is not in "express and direct" conflict with the decision of any other appellate court or of this Court. Initially, with regard to Petitioner's claim that there remains a conflict between the Third and Fourth District, the State submits that is not the case. Admittedly, the Fourth District mentioned in the opinion in the instant case, Gomez v. State, --- So. 3d ----, 38 Fla. L. Weekly D. 2362, 2013 WL (Fla. 4 th DCA 2013), that it had previously certified conflict with Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002), and State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993), in Marshall v. State, 983 So. 2d 680, (Fla. 4th DCA 2008). However, the Fourth District acknowledged in Gomez that the conflict between Marshall and Rodriguez and Johnson was rendered moot by this Court s decision in Green. Therefore, the Fourth District did not again certify conflict. Additionally, Johnson and Rodriguez are easily distinguished from the instant case. It is true that the Johnson opinion shows 5

10 the motion in Johnson was filed two years and four months after Johnson first learned of the adverse civil consequences of the plea and it shows the court rejected the State s contention that the defendant be required to show due diligence in learning of the consequences of the plea. But, Johnson did not involve the consequence of deportation which has now been delineated by this Court in Green as an area of law having a very specific time limitation. Further, Johnson was a pre-green decision which was decided upon a standard that was squarely rejected by Green. Johnson would not be decided the same way today in light of this Court s decision in Green establishing a two year limitation for raising such claims, explaining that this two years would run from the date of Green or the date the conviction and sentences became final, and defining due diligence differently from the Johnson court for purposes of the timeliness of a deportation motion. Moreover, in Johnson, there was nothing in the record which suggested that the defendant should not have relied on the advice of his attorney that, with an withhold of adjudication, he would definitely be able to maintain his certification as a Corrections Officer; counsel assured the defendant his employment would not be jeopardized. But, here, the record shows that counsel did not advise the defendant that he definitely 6

11 would not be deported; rather, the defendant was on notice that he might well be deported. Petitioner also cites Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002), but it is distinguishable for reasons similar to Johnson. As for Green, the State would submit that Petitioner has cited no good reason this case should be distinguished from Green and excused from the two year time limitation of Green. This is especially so where Petitioner was put on notice by his counsel at the time of the plea that he might well be subject to deportation and, yet, Petitioner waited six years to find out and to file a motion to withdraw his plea on the basis of misadvice of counsel. Petitioner's attempt to cast all the blame on his attorney, and on ignorance of the law, is not well taken. Finally, Petitioner cites State v. S.S., 40 So. 3d 6 (Fla. 4 th DCA 2010), as evidence that the rule is not being administered evenly. (IB 6) First, it must be noted that S.S. is distinguishable because in S.S., the plea colloquy of the defendant, a juvenile, was woefully inadequate and almost nonexistent; her counsel affirmatively misadvised her about whether she would have a criminal record; the juvenile had no idea that there might even be a problem with the criminal record; and the juvenile moved for relief within one year of discovering the error, pursuant to the relevant rule of juvenile procedure. But 7

12 here, it is evident from the opinion, Petitioner was put on notice that he might well be subject to deportation, and it was therefore incumbent upon him to act with due diligence to discover the facts regarding deportation, and to file the appropriate motion, within the two year time limitations of the rule as this Court mandated in Green. But, even if S.S. showed that the Fourth District itself was not administering the two year time limitations of Rule evenly, this would not create the kind of conflict over which this Court should exercise jurisdiction. That is, this would be an intra-district conflict, rather than an inter-district conflict. Art. V, 3(b)(3), Fla. Const. ("The supreme court... [m]ay review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal."). Nor, as Petitioner suggests, is the present rule unduly harsh. As this Court has noted, the two year time limitation for raising deportation claims was instituted precisely because there is no reason why a defendant, through the exercise of due diligence, cannot determine his basis for collateral attack during that time. Green, 944 So. 2d at 217, citing Chief Justice Alderman s concurring opinion in McCrae v. State, 437 So. 2d 1388 (Fla. 1983). The Court eliminated the need to wait until there was a threat of deportation, saying. Whether the plea 8

13 subjects the defendant to deportation is an existent fact on the date of the plea which is either known or ascertainable by the defendant. Green, 944 So. 2d at 218 (emphasis added). Two years is ample time to educate oneself and confirm or deny the deportation consequences of a plea, especially where, as here, the defendant has been advised that the plea might indeed subject them to deportation. In sum, there is no express and direct conflict between Johnson and Rodriguez which would justify this Court s accepting jurisdiction. Nor should this Court accept Petitioner's invitation to do away with the time limitations of the rule altogether. This Court must dismiss this case for lack of jurisdiction. CONCLUSION Based on the foregoing reason, the State respectfully requests this Honorable Court decline to exercise jurisdiction. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to the following by on January 3, 2014: Charles Wender, Esquire 190 West Palmetto Park Road Boca Raton, FL wenderlaw@aol.com 9

14 CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using Courier New 12 point font. Respectfully submitted and certified, PAMELA JO BONDI ATTORNEY GENERAL /s/ Celia A. Terenzio SENIOR ASSISTANT ATTORNEY GENERAL Fla. Bar No /s/ Jeanine Germanowicz By: JEANINE GERMANOWICZ ASSISTANT ATTORNEY GENERAL Fla. Bar No Attorney for Respondent, State of Fla. Office of the Attorney General 1515 N. Flagler Drive, Ste. 900 West Palm Beach, FL Primary CrimAppWPB@myfloridalegal.com (561) (561)