IN THE DISTRICT COURT OF APPEAL 2 9 FOURTH DISTRICT. TIMOTHY M. JOHNSON, 7 Defendant/Petitioner, v. CASE NO.: 4D L.T.C.

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1 PNOVIDED TO JACKSON Ct ON MAY FOR MAILINf7 IN THE DISTRICT COURT OF APPEAL 2 9 OF THE STATE OF FLORIDA FOURTH DISTRICT TIMOTHY M. JOHNSON, 7 Defendant/Petitioner, v. CASE NO.: 4D L.T.C CF10B STATE OF FLORIDA, Plaintiff/Respondent. / JURISDICTIONAL BRIEF TIMOTHY JOHNSON DC# Jackson Correctional Institution th Street Malone, Florida

2 TABLEOFCONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii RODUCTIOINTN...1 STATEMENT OF CASE...2 SUMMARY OF ARGUMENT...3 ARGUMENT...4 POINT 1 AUTHORITY AUTHORIZING FLORIDA SUPREME COURT TO INVOKE JURISDICTION...4 SCONCLUION...5 CERTIFICATE OF SERVICE...6 CERTIFICATE OF COMPLIANCE...6 1

3 TABLE OF AUTHORITIES Florida Constitutional Provisions Article V, Sec. 3(b)(3),Fla. Const. (1998)...4 Florida Statutes Section , Fla. Stat.(1945)...4 Florida Supreme Court Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)

4 INTRODUCTION Pursuant to Fla. R. App. P (a) and (b), Defendant/Petitioner, TIMOTHY JOHNSON, files this Jurisdictional Brief. Petitioner will be referred to throughout this brief as defendant or petitioner and the State of Florida will be referred to as the State or prosecution. All emphasis has been added unless otherwise indicated. The following symbols will be used: "T"-Transcript of Trial Testimony "ST"- Supplemental Transcript of Hearing of February 18, 2010 "R"- Pleadings filed as of record 1

5 STATEMENT OF CASE Defendant, along with co-defendant, DEITRICK JOHNSON, was charged by information with eight (8) counts of robbery with a firearm arising out of three (24) hour pharmacies on October 8, (R l-4). The state filed a motion in Limine to determine the admissibility of collateral crimes evidence. (R 17-29). Defendant filed a motion to adopt co-defendants motion to exclude Williams Rule Evidence. (R 33-34). The court conducted a hearing on all pending motions on February 18, The court allowed the State to admit collateral crimes evidence regarding a September 4, 2007 robbery of a 24 hour pharmacy in Pompano Beach. (R 58-60). Both defendant and co-defendant were tried simultaneously with separate juries. Trial by jury commenced.on December 2, 2010 and ended on December 7, Jury found Defendant guilty of eight (8) counts of robbery with a firearm. (R ). Defendant filed motion for new trial on December 14, (R ). The Court denied Defendants motion for new trial December 20, Defendant received eight concurrent life sentences as a habitual felony offender January 7, (R ). Defendant filed a notice of appeal on January 14, (R 218, 219). Fourth District Court Affirmed defendant's direct appeal April 10, 2013 with reason and this notice to invoke discretionary jurisdiction follows: 2

6 SUMMARY OF ARGUMENT POINT 1 When seeking to invoke discretionary jurisdiction of the state Supreme Court the defendant will have to show that the district court of appeals declares a state statute and/or expressly and directly conflicts with a decision of another district court of appeal. The Supreme Court has the constitutional authority to review any opinion that is in direct conflict with the Supreme Court on the same question of law. The defendant has exhausted appeal in lower tribunal. 3

7 ARGUMENT POINT 1 AUTHORITY AUTHORIZING FLORIDA SUPREME COURT TO INVOKE JURISDICTION. Argument Article V, Sec. 3(b)(3), Constitution of the State of Florida states; the Supreme Court: may review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or 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. When the district court of appeals opinion on a matter of law that expressly and directly conflicts with another district court of appeals. The Supreme Court has the power to make uniform rules of court. Section , Fla. Stat. states: The Supreme Court of this state is hereby authorized and empowered to collaborate with any and all other courts of last resort, of other states and of the United States, in preparation and approval of uniform rules of court to make effective this and similar laws. In addition the State Supreme Court has the f~mal and inherent power to determine what constitutes express and direct conflict. 4

8 Finally, when district courts opinion cites a statute the defendant can seek discretionary review. See, Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988): Where the court held that: State Supreme Court had subject matter jurisdiction over appeal of decision of intermediate appellate court expressly citing statute, even though statute was only quoted and was neither discussed nor expressly upheld against appellant's constitutional challenge; Supreme Court's constitutional authority to review any appellate decision establishing point of law only required that there be some statement or citation in opinion that hypothetically could create conflict if there were another opinion reaching contrary results. CONCLUSION Based on the foregoing argument and the authorities cited therein, defendant/petitioner, TIMOTHY JOHNSON, respectfully requests this Honorable Court to enter an order to invoke discretionary jurisdiction and review the statute authority cited by the district court. Res ectfully s mitted, TIMOTH 570 ÓHNSON DC# Jackson Correctional Institution th Street Malone, Florida

9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing motion has been placed in the hands of prison officials for mailing to the Clerk of the Court of the Fourth District Court of Appeals, 1525 Palm Beach Lakes Blvd., West Palm Beach, FL Date: T //- 20 jytån TIMOTH HNSON DC# CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing JURISDICTIONAL BRIEF complies with the font requirements of rule 9.210(a)(2) of the Florida Rule of Appellate Procedure. TIMOTHÝÏOHNSON DC#

10 PROVIDED TO JACKSON Cl ON ÑÂÏ OR MAILING A

11 POLEN, J. DIsTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2013 TIMOTHY JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D [April 10, 2013] The defendant, Timothy Johnson, appeals his convictions for eight counts of robbery with a firearm. He was sentenced to life in prison on each count, to be served concurrently. We affirm on both issues raised by the defendant, and write to address only his argument that the trial court erred by admitting evidence of a collateral robbery at his trial. In the early hours of September 4, 2007, two men robbed a CVS Pharmacy in Pompano Beach. One month later, on October 8, 2007, two men robbed three chain pharmacies in a single night-each occurring in the early morning hours in northwestern Broward County. The defendant and a codefendant, Deitrick Johnson, were arrested and both men were charged with eight counts of robbery with a firearm stemming from the four robberies. The codefendant was alleged to have physically committed the robberies inside the chain pharmacies while the defendant participated as a lookout. Thereafter, the State filed a pre-trial motion in limine seeking a ruling on whether the September robbery was admissible as collateral crime evidence during the defendants' trial for the October robberies. In Johnson v. State, No. 4D11-95, 2013 WL (Fla. 4th DCA Mar. 6, 2013), where we affirmed the codefendant's convictions in his related case, we noted that during a hearing on the motion, the State presented evidence showing numerous similarities between the four robberies. Id. at *1. Upon hearing that evidence, the trial court granted the State's motion, finding that evidence of the September robbery was admissible to prove material facts associated with the October robberies. Accordingly,

12 the court denied the defendants' motion to exclude Williams1 rule evidence. The defendant also moved to suppress confessions, admissions, and statements that he made during a taped interview with police. The court denied his motion, finding that his statements were freely and voluntarily made after a knowing and intelligent waiver of his rights. This evidence would later be used against him at trial. A jury ultimately found the defendant guilty of robbery with a firearm as charged on all eight counts, and this appeal followed. The defendant argues that the trial court reversibly erred by admitting collateral crime evidence of the September robbery. We reject his argument because the evidence was sufficiently similar to the October robberies for which he was on trial, it was relevant, and it was not unduly prejudicial. We review a trial court's admission of collateral crime evidence, including Williams rule evidence, for an abuse of discretion. Pulcini v. State, 41 So. 3d 338, 344 (Fla. 4th DCA 2010). Similar-fact evidence, otherwise known as Williams rule evidence, is "admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." DeLuise v. State, 72 So. 3d 248, 251 (Fla. 4th DCA 2011); (2)(a), Fla. Stat. (2010). Prior to admitting evidence of the September robbery, "the trial court had to make two determinations: (1) whether the evidence is relevant or material to some aspect of the offense being tried, and (2) whether the probative value is substantially outweighed by any prejudice." Alsfield v. State, 22 So. 3d 619, 621 (Fla. 4th DCA 2009); see also , , (2), Fla. Stat. (2010). Here, the September robbery was relevant to prove the State's contention that the defendant, by his own later admission, was there as a lookout - not by accident or mistake as he had originally maintained and the defense argued at trial. During the robbery, cell phone records indicated that he was in contact with the codefendant whose DNA linked him to the crime scene. Moreover, as we noted when rejecting the codefendant's argument on this issue, based on the numerous similarities between the robberies, the trial court acted within its 1 Williams v. State, 110 So. 2d 654 (Fla. 1959). -2-

13 discretion when it determined that this Williams rule evidence was admissible. See Johnson, 2013 WL , at *2. "The evidence was sufficiently similar to the charged crimes, relevant on the issues of modus operandi and identity, was not unduly prejudicial, and did not become a feature of the trial." Id. Accordingly, we affirm the defendant's convictions and sentence. Affirmed.. DAMOORGIAN and LEVINE, JJ., concur. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No CF10B. Carey Haughwout, Public Defender, and Alan T. Public Defender, West Palm Beach, for appellant. Lipson, Assistant Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timelyfiled motion for rehearing. -3-