IN THE SUPREME COURT STATE OF FLORIDA CASE NO: SC RESPONDENT S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO: SC JACK WATKINS HUNTER, BERNIE SIMPKINS, ET AL, Petitioners, v. SCOTT ELLIS AS BREVARD COUNTY CLERK OF COURT, Respondent. / RESPONDENT S BRIEF ON JURISDICTION ON REQUESTED DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL RICHARD E. STADLER STADLER & HARRIS, P.A Garden Street TITUSVILLE, FLORIDA (321) Fla. Bar No Attorney for Respondent Scott Ellis, Brevard County Clerk of Court

2 TABLE OF CONTENTS TABLE OF CITATIONS...i-ii PRELIMINARY STATEMENT STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT THIS COURT SHOULD DECLINE TO INVOKE ITS DISCRETIONARY JURISDICTION CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 Case Page Biddle v. Ellis, 976 So. 2d 103(Fla. 5 th DCA 2008)...6 Biddle v. Ellis, 987 So. 2d 79 (Fla. 2008)...4, 5 Scott Ellis as Brevard County Clerk of Court v. Hunter, 34 Fla. L. Weekly D 165 (Fla. 5 th DCA 2009)...4, 5 State v. Iglesias, 517 N.W. 2d 175 (Wis. 1994)...6 State v. Iglesias, 513 U.S. 1045; 115 S. Ct. 641, 130 L.Ed.2d 547 (1994)...6 United States v. Cannistraro, 871 F. 2d 1210 (3rd Cir. 1989), cert. denied, 500 U.S. 916, 114 L. Ed. 2d 98, 111 S. Ct. 2011(1989)...6 U.S. v. Higgins, 987 F. 2d 543 (8 th Cir. 1993)...7 OTHER AUTHORITIES PAGE Florida Constitution Article V, Section 3(b)...5 Fla. R. App. Procedure 9.030(a(2)(A)...5 Florida Statute , 2, 4, 5, 6 28 U.S.C ii

4 PRELIMINARY STATEMENT Petitioner, BERNIE SIMPKINS, shall be referred to as the Petitioner. Defendant, JACK WATKINS HUNTER, shall be referred to as The Defendant. Respondent, SCOTT ELLIS, AS BREVARD COUNTY CLERK OF COURT, shall be referred to as the Clerk of Court or the Respondent. STATEMENT OF THE CASE AND FACTS The present action was originally a criminal prosecution of JACK WATKINS HUNTER, for driving under the influence. Bail was set at $5, and Petitioner, BERNIE SIMPKINS, posted the bond for the Defendant by depositing the entire cash sum with the Clerk of Court. The bond form signed by the Petitioner specifically states that the deposit was subject to the application of Florida Statute and that A refund will only be made if the cash bond is more than what is owed on ALL of the defendant s cases. The Defendant was adjudicated guilty and the Respondent, CLERK OF COURT, used the Petitioner s cash bond deposit to pay $1, in fines, fees and costs in the DUI case and applied the balance of the deposit to outstanding fines, costs and criminal penalties in three 1

5 other cases in which the Defendant had been adjudicated guilty and which were unpaid at the time of disbursement of the funds. Petitioner objected to the use of the bond funds to pay the Defendant s obligations and moved to intervene in the trial court case for the purpose of contesting the Clerk s distribution. Intervention was granted by consent. Petitioner argued that the statute was unconstitutional and that all of his deposited funds should be returned. After hearing, the trial court ruled that Florida Statute was constitutional but interpreted the statute to limit its application to fines, fees and penalties arising from the case in which the bond was deposited. He allowed the Clerk to apply the $1, that had been assessed in the DUI case but ordered the return to the Petitioner of the remaining portion of the $5, cash bond deposit. The trial court also certified to the Fifth District Court of Appeal both the issue of whether the statute was constitutional and whether its interpretation of the statute was correct. Respondent appealed this decision to the Fifth District Court of Appeal which resulted in the opinion which Petitioner seeks to have this Court review. The Fifth affirmed that the statute was constitutional but 2

6 reversed the statutory interpretation made by the trial court. The opinion held that the use of the language any and all in the statute showed a clear intent on the part of the legislature for the statute to apply to all of a Defendant s outstanding and unpaid fines, fees and penalties, including those incurred in cases other than the case for which the bond was deposited. The Mandate to the trial court was issued on February 4, 2009 and no motion to stay the mandate was filed or is pending. Petitioner served its Notice to Invoke Discretionary Jurisdiction of the Supreme Court on February 6, 2009 which was docketed in the Fifth District Court of Appeal on February 9,

7 SUMMARY OF THE ARGUMENT Respondent, SCOTT ELLIS as BREVARD COUNTY CLERK OF COURT, requests that this honorable Court decline to invoke its discretionary authority to review the opinion of the Fifth District Court of Appeal in Scott Ellis as Brevard County Clerk of Court v. Hunter, 34 Fla. L. Weekly D 165 (Fla. 5 th DCA 2009). While this opinion did hold that Florida Statute was constitutional, the constitutional issues argued are well settled and this Court has already declined jurisdiction to review same in Biddle v. Ellis, 987 So. 2d 79 (Fla. 2008). The constitutionality of similar statutes have been consistently upheld and the U.S. Supreme Court has refused to accept jurisdiction to review the constitutionality on more than one occasion. With regard to the other two grounds upon which Petitioner seeks discretionary review they are without merit. The opinion of the Fifth District Court of Appeal does not directly affect a class of constitutional officers and the Fifth did not certify to this court any issues of great public importance. 4

8 ISSUE THIS COURT SHOULD DECLINE TO INVOKE ITS DISCRETIONARY JURISDICTION Petitioners, JACK WATKINS HUNTER and BERNIE SIMPKINS, seek to invoke the discretionary jurisdiction of this Court under Article V, Section 3(b) of the Florida Constitution and Fla. R. App. Procedure 9.030(a(2)(A). These provisions allow, but do not require the Supreme Court to review decisions of district courts of appeal that (i)expressly declare valid a state statute, (ii)expressly construe a provision of the state or federal constitution, (iii)expressly affect a class of constitutional officers, or (v)pass upon a question certified to be of great public importance. Respondent respectfully submits that this Court should decline to accept jurisdiction under any of the cited provisions of Rule 9.030(a)(2)(A). Respondent concedes that the opinion of the Fifth District Court of Appeal in Scott Ellis as Brevard County Clerk of Court v. Hunter, 34 Fla. L. Weekly D 165 (Fla. 5 th DCA 2009) expressly held Florida Statute to be valid under the United States and Florida constitutions, and in so doing construed various constitutional provisions as they applied to the statute. However, it does not appear that the constitutional issue is of sufficient 5

9 significance for this Court to invoke its discretionary jurisdiction. In fact, this Court has already declined to accept discretionary jurisdiction on this exact same issue. The Fifth District Court of Appeal previously denied a challenge to the constitutionality of Florida Statute Biddle v. Ellis, 976 So. 2d 103(Fla. 5 th DCA 2008). The Appellant sought review of that decision on the same grounds as have been put forward by Petitioner and this Court declined to accept jurisdiction. Biddle v. Ellis, 987 So. 2d 79 (Fla. 2008). Furthermore, a review of the opinion issued by the Fifth District Court of Appeal in this case shows that the constitutional issues were decided based on long standing precedents and no novel or new arguments were presented that would necessitate review or further interpretation by this Court. A similar statute was upheld against constitutional attack in State v. Iglesias, 517 N.W. 2d 175 (Wis. 1994) and the United States Supreme Court denied certiorari. State v. Iglesias, 513 U.S. 1045; 115 S. Ct. 641, 130 L.Ed.2d 547 (1994). A similar Federal rule was determined to be constitutional and again the United States Supreme Court denied certiorari review. United States v. Cannistraro, 871 F. 2d 1210 (3rd Cir. 1989), cert. denied, 500 U.S. 916, 114 L. Ed. 2d 98, 111 S. Ct. 2011(1989). The 6

10 Federal version of the statute allowing the application of cash bonds to pay a Defendant s fees and fines (28 U.S.C. 2044) was found to be constitutional. U.S. v. Higgins, 987 F. 2d 543 (8 th Cir. 1993). Based on the long line of precedent consistently upholding the constitutionality of statutes that apply cash bonds to the payment of a Defendant s fines, fees and costs, the issue appears to be well settled and does not require further review. With regard to the other two grounds urged by the Petitioner as the basis for this Court to accept jurisdiction, these arguments are without merit. The statute does not affect a class of constitutional officers directly. It affects a class of bond depositors and the only role of the clerk is that of the party responsible for collecting the unpaid fines, fees and costs from the cash bond depositor. Furthermore, the opinion of the Fifth District under review in this case does not certify any issues to this Court as being of great public importance. The trial court s certificate of issues to the Fifth District Court of Appeal was to invoke their jurisdiction and cannot afford the basis for review in this Court. What Petitioner really seeks is for this Court to review the statutory interpretation made by the Fifth District Court of Appeal. As that interpretation was not 7

11 based on any constitutional issue or application of constitutional provision, there is no basis for this Court to invoke its discretionary jurisdiction based on that interpretation. The Fifth s interpretation of the statute is not in conflict with any opinion of this Court or any of the other District Courts of Appeal. 8

12 CONCLUSION Respondent respectfully submits that there is not sufficient legal basis for this Court to invoke its discretionary jurisdiction to review the Opinion of the Fifth District Court of Appeal, and review should be denied. 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Robert R. Berry, Esquire, 5450 Village Drive, Viera, FL by U.S. Mail this 26th day of February Richard E. Stadler, Esq. Stadler & Harris, P.A Garden Street Titusville, Florida (321) Florida Bar No.: Attorney for Respondent CERTIFICATE OF COMPLIANCE WITH RULE 9.210(a)(2) I HEREBY CERTIFY that this Respondent s Jurisdiction Answer Brief has been prepared in compliance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure, using 12 point Courier New. Richard E. Stadler, Esquire Stadler & Harris, P.A Garden Street Titusville, Florida (321) Florida Bar No.: Attorney for Respondent 10