IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA KEVIN TRACY. v. Petitioner, Case No. SC STATE OF FLORIDA, Respondent. / JURISDICTIONAL BRIEF OF RESPONDENT BILL MCCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF CRIMINAL APPEALS FLORIDA BAR NO JOSHUA R. HELLER 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 PAY THE FILING FEE OR PROVIDE AN ORDER OF INDIGENCY (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 Art. V, 3, FLA. CONST....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 to the Florida First District Court of Appeal on June 14, On June 18, 2007, the First District issued its standard Order requiring Petitioner to pay the $300 filing fee or provide an Order of Insolvency from the Lower Tribunal. Having received no response by July 9, 2007, the First District dismissed Petitioner s appeal. On August 28, 2007, Petitioner filed a motion for rehearing with the First District, without filing proof of service upon the Attorney General. On September 14, 2007, the First District ordered Petitioner to provide proof of service of his Motion for Rehearing on the Attorney General. On October 4, 2007, Petitioner filed a notice of appeal to this Court. 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. 1

5 November 9, 2007, the First District issued an Order that stated, Having received no response to this court's order dated September 14, 2007, directing appellant to serve a copy of the motion for rehearing on the Attorney General, appellant's motion for rehearing, filed August 28, 2007, is denied. On December 28, 2007, Petitioner moved for reinstatement of his appeal in the First District. On January 16, 2008, the First District issued an Order stating, Appellant's motion to reinstate motion for rehearing filed December 28, 2007, is denied. This disposition is without prejudice to appellant's right to file within 30 days of the date of this order a motion to reinstate the appeal accompanied by the filing fee or a certificate of indigency from the lower tribunal. To date, the First District docket does not reflect the filing of the filing fee or an Order of Indigency from the lower tribunal. Petitioner s Notice of Appeal filed of October 4, 2007 appeals the First District s Order requiring Appellant to serve a lower tribunal order of insolvency," which is an apparent reference to the First District s Order of July 9, This Court construed Petitioner s notice of appeal as a notice to invoke discretionary jurisdiction. 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 failed to comply with the Court s order to provide a filing fee or an Order of Indigency from the Lower Tribunal. 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 PAY THE FILING FEE OR PROVIDE AN ORDER OF INDIGENCY (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 July 9, 2007, the First District Court dismissed Petitioner s appeal after he failed to pay the filing fee or provide an Order of Indigency from the lower tribunal. 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. 4

8 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 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 July 9, 2007, 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 5

9 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 Kevin Tracy, Lake Correctional Institution, U.S. Highway 27, Clermont, Florida 34715, by MAIL on this 31st day of July, Respectfully submitted and served, BILL McCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF CRIMINAL APPEALS FLORIDA BAR NO JOSHUA R. HELLER 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 JOSHUA R. HELLER Attorney for State of Florida 7

11 IN THE SUPREME COURT OF FLORIDA KEVIN TRACY, v. Petitioner, Case No. SC STATE OF FLORIDA, Respondent. / APPENDIX Order of the First District Court of Appeal dated July 9, 2007