IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA STERLING R. LANIER, JR. v. Petitioner, Case No. SC08-19 STATE OF FLORIDA, Respondent. / AMENDED JURISDICTIONAL BRIEF OF RESPONDENT BILL MCCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF CRIMINAL APPEALS FLORIDA BAR NO ANNE C. CONLEY ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL (850) (850) (FAX) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT- ISSUE I... 4 WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE ORDER OF THE FIRST DISTRICT COURT DISMISSING PETITIONER S APPEAL FOR FAILURE TO COMPLY WITH THE COURT S ORDERS DIRECTING HIM TO SERVE COPIES OF HIS PLEADINGS ON THE STATE? (Restated)... 4 CONCLUSION... 6 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE... 7 CERTIFICATE OF COMPLIANCE... 7 i

3 TABLE OF CITATIONS CASES PAGE(S) Pena v. Tampa Federal Savings & Loan Ass n, 385 So. 2d 1370 (Fla. 1980)...5 Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007)...5 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)...5 FLORIDA CONSTITUTIONAL PROVISIONS Article V, 3...4, 5, 6 OTHER Fla. R. App. P (a)(2)(A)(iv)...4 ii

4 PRELIMINARY STATEMENT Respondent, the State of Florida, the Appellee in the District Court of Appeal and the prosecuting authority in the trial court, will be referenced in this brief as the State. Petitioner, Sterling R. Lanier, Jr., the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner. STATEMENT OF THE CASE AND FACTS Petitioner filed a notice of appeal and a motion for extension of time to file initial brief with the First District Court of Appeal, challenging the circuit court s denial of his motion for postconviction relief. 1 The District Court ordered Petitioner to file an amended notice of appeal with certificate of service on the State and to serve a copy of his motion for extension of time on the State, and to file a supplemental certificate of service within 10 days which so demonstrates. In this same order, the Court admonished Petitioner that the failure to comply with the order may result in the imposition of sanctions including dismissal of the case. Thereafter, on 1 The docket references may be found on the First District Court website under Case No. 1D All references herein are to documents filed with that court. To date, the State has not been served any pleadings by Petitioner, either in the District Court or Supreme Court proceedings. 1

5 December 14, 2007, the District Court entered an order dismissing the appeal for failure of Petitioner to file an amended notice of appeal and certificate of service. Petitioner filed a motion for rehearing. On January 16, 2008, the District Court ordered Petitioner to serve a copy of the motion for rehearing on the Attorney General. On March 4, 2008, the District Court entered the following order: Appellant has failed to comply with the order of January 16, 2008, which required the filing of a supplemental certificate of service reflecting that a copy of the motion for rehearing had been served on the Attorney General of Florida. Accordingly, appellant s motion for rehearing is denied and this proceeding stands dismissed. Petitioner has now filed in this Court a notice of appeal which the Court has construed as a notice to invoke discretionary jurisdiction. In his initial brief, Petitioner requests that the Court grant him the sentencing relief requested in his rule postconviction motion. 2

6 SUMMARY OF ARGUMENT Petitioner has attempted to invoke the discretionary jurisdiction of this Court where there is no possibility of express and direct conflict of decisions and no basis for mandatory appellate or pass through jurisdiction. There has been no decision entered in this case within the meaning of the Florida Constitution or rules of this Court. The First District Court dismissed Petitioner s appeal after he repeatedly failed to comply with the Court s orders directing him to serve copies of his pleadings on the State. As there exists no decision to review, the petition must be dismissed for lack of jurisdiction. 3

7 ARGUMENT- ISSUE I WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE ORDER OF THE FIRST DISTRICT COURT DISMISSING PETITIONER S APPEAL FOR FAILURE TO COMPLY WITH THE COURT S ORDERS DIRECTING HIM TO SERVE COPIES OF HIS PLEADINGS ON THE STATE? (Restated) This Court does not have jurisdiction to review the order of the First District Court dismissing Petitioner s appeal. Petitioner seeks discretionary review presumably pursuant to Fla. R. App. P (a)(2)(A)(iv), which parallels Article V, 3(b)(3), Fla. Const. 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. Here, there has been no decision below within the meaning of the Florida Constitution and the rules of appellate procedure, and therefore, there can be no express and direct conflict of decisions. In its order of December 14, 2007, the First District Court dismissed Petitioner s appeal after he failed to serve the State with copies of his pleadings as ordered. Petitioner filed a motion for rehearing but did not serve the State with a copy of the motion. The Court ordered Petitioner to serve the motion for rehearing on the Attorney General. In its subsequent order of March 4, 2008, the District Court denied Petitioner s motion for rehearing and ruled that 4

8 the earlier dismissal would stand due to Petitioner s failure to comply with the Court s order to serve a copy of the motion for rehearing on the Attorney General as ordered. An order of dismissal is not a decision within the meaning of the Florida Constitution or the rules of this Court. See Pena v. Tampa Federal Savings & Loan Ass n, 385 So. 2d 1370 (Fla. 1980); Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)(citing Pena for proposition that an order of the district court which merely dismisses an appeal does not present the Supreme Court with a decision in which express and direct conflict can be found). In Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832 (Fla. 2007), this Court explained with respect to its certified question jurisdiction that: there must be a district court decision to review. See art. V, 3(b)(4), Fla. Const. For instance, where a district court is unable to reach a clear majority decision on an issue and elects to certify a question without resolving the merits, we are without jurisdiction to answer such a question under article V, section 3(b)(4) of the Florida Constitution. See Boler v. State, 678 So. 2d 319, 320 n. 2 (Fla. 1996)(stating that if a district court is evenly split on a legal issue and specifically withholds a decision on the merits, there is no decision on which to base certified conflict review under article V, section 3(b)(4). The logic and reasoning of this court s decision in Floridians for a Level Playing Field indicates that this Court does not 5

9 have the power to review the instant order of the First District Court herein because there is no decision. Even if the First District Court s order of March 4, 2008, could be construed as a decision, Petitioner has cited no decision with which the First District s order conflicts. To any extent that Petitioner seeks mandatory or pass through appellate review, no jurisdiction exists where he is neither appealing a final judgment imposing a sentence of death (Art. V, section 3(b)(1), Fla. Const.) nor challenging an opinion of the district court declaring a state statute or provision of the Florida Constitution invalid (Art. V, section 3(b)(1), Fla. Const.), nor has the district court certified that immediate resolution by the Supreme Court is required (Art. V, section 3(b)(5), Fla. Const.). CONCLUSION The State respectfully requests this Honorable Court dismiss or deny the petition to invoke the jurisdiction of this Court. 6

10 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to Sterling R. Lanier, Jr., Union Correctional Institution, 7819 N.W. 228 th Street, Raiford, Florida 32026, by MAIL on this 31 ST day of July, Respectfully submitted and served, BILL McCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF CRIMINAL APPEALS FLORIDA BAR NO ANNE C. CONLEY Assistant Attorney General Florida Bar No Attorneys for State of Florida Office of the Attorney General Pl-01, the Capitol Tallahassee, Fl (850) (850) (Fax) [L ] CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P ANNE C. CONLEY Attorney for State of Florida 7

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