BY v. Case No.: SC13- L.T. Case No.: 1D STATE OF FLORIDA, Respondent. / PETITIONER'S JURISDICTIONAL BRIEF

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1 FILED IN THE SUPREME COURT OF FLORIDA T H OMA S D. H A L L 20l3MAR -8 PM I: 31 DAVIDE FORREST DELAFE, CLEiW. Suí REME COUR T Petitioner, BY v. Case No.: SC13- L.T. Case No.: 1D STATE OF FLORIDA, Respondent. / PETITIONER'S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District State of Florida Davide Forrest DeLaFé, DC# I Petitioner, pro se Calhoun Correctional Institution S.E. Institution Drive, Unit #1 2C 3 Blountstown, Florida

2 TABLE OF CONTENTS Title Page(s) Table of Contents...i Table of Citations...ii Statement of The Case and Facts...1 Summary ofthe Argument...2 Jurisdictional Statement...2 Argument...3 DIRECT CONFLICT BETWEEN AN APPEAL UNDER FLA.R.APP.P., 9.141(b)(2) (3.850 SUMMARILY DENIAL) AND THE AUTHORITY OF FLA.R.APP.P., 9.200(e) AND 9.200(f)(2) (SUPPLEMENTING THE RECORD ON APPEAL). CREATING THE QUESTION: DOES FLA.R.APP.P., 9.141(b)(2) LIMIT THE AUTHORITY TO CORRECT OR SUPPLEMENT THE RECORD UNDER RULE 9.200(e) and 9.200(f)? Conclusion...7 Certificate of Service...8 Certificate of Compliance...8 1

3 TABLE OF CITATIONS Case...Page(s) Apprendi v. New Jersey, 530 U.S. 466 (2000)...3,5,7 Blakely v. Washington, 542 U.S. 296 (2004)...3,5,7 Cirillo v. State, 732 So.2d 387 (Fla. 4* DCA) Rev. den. 751 So.2d 50 (Fla. 1999)...4 DeLaFé v. State, So.3d, 38 FLW D99a (Fla. 18' DCA January 4, 2013)...2 D.K.D. V. State, 470 So.2d 1387 (Fla. 1985)...6 Duggar v. State, 446 So.2d 222 (Fla. 18' DCA 1984)...6 Faotuas v. State, 745 So.2d 398 (Fla. 18'DCA 1984)...7 Galindez v. State, 955 So.2d 517 (Fla. 2007)...3 Moment v. State, 773 So.2d 577 (Fla. 4* DCA 2000)...4 Putt v. State, 527 So.2d 914 (Fla. 3rd DCA 1988)...6 State v. Viamari, 462 So.2d 1154 (Fla. 2nd DCA 1984)...6,7 Other Florida Constitution Art V, 3(b)(3)...2 Florida Rules of Court Fla.R.Crim.P., 3.702(18)(a)...4 Fla.R.Crim.P., 3.702(19)

4 TABLE OF CITATIONS (con.) Florida Rules of Court...Page(s) Fla.R.Crim.P., ,5 Fla.R.App.P., 9.030(a)(2)(A)(iv)...2 Fla.R.App.P., 9.140(i)...5 Fla.R.App.P., 9.141(b)(2)...1,2,5 Fla.R.App.P., 9.141(b)(2)(A)...1,2,3,4,5,6 Fla.R.App.P., 9.141(b)(2)(C)...1 Fla.R.App.P., Fla.R.App.P., 9.200(a)(3)...6 Fla.R.App.P., 9.200(e)...1,2,3,5,6 Fla.R.App.P., 9.200(f)...2,4,5,6,7 Fla.R.App.P., 9.200(f)(2)...1,2,3, Fla.R.App.P., 9.210(a)(2)

5 STATEMENT OF THE CASE AND FACTS This proceeding commenced with an appeal from a summary denial of a motion without an evidentiary hearing, pursuant to Fla.R.App.P., 9.141(b)(2). Petitioner filed a pro se initial brief, pursuant to Fla.R.App.P., 9.141(b)(2)(C) and the court issued a "Toler Order" to the State. It was during their response that Petitioner realized that the record on appeal was lacking the Sentencing Transcripts and the Sentencing Guidelines Scoresheet, not listed in Fla.R.App.P., 9.141(b)(2)(A). The State declared in their response: "As such, undersigned counsel and this Court cannot address Appellant's sentence." Petitioner immediately sought to cure this problem and filed a motion to supplement the record, pursuant to Fla.R.App.P., 9.200(e) and 9.200(f)(2). The appellate court denied Petitioner's motion to supplement the record reasoning that appeal was taken under Fla.R.App.P., 9.141(b)(2)(A). The district court rendered their opinion stating: "[...] Here, the record on appeal is not sufficient to conduct a harmless error analysis. [...]" It appears that there is a direct conflict between Petitioner's opinion and Fla.R.App.P., 9.200(e) and 9.200(f)(2). Leading to the question of: "Is an appeal under Fla.R.App.P., 9.141(b)(2) (3.850 summarily denial) excluded from the authority of Fla.R.App.P., 9.200(e) and 9.200(f)(2) (supplementing the record on appeal)? 1

6 SUMMARY OF THE ARGUMENT In this case, the district court of appeal held in DeLaFé v. State, So.3d, 38 FLW D99a at 100 (Fla. 1** DCA January 4, 2013) that, "[...] the record on appeal is not sufficient to conduct a harmless error analysis" after Petitioner had properly requested to supplement the record on appeal. However, court denied Petitioner's request because it was a Fla.R.App.P., 9.141(b)(2)(A) appeal, thus, causing a direct conflict between an appeal under Fla.R.App.P., 9.141(b)(2) (3.850 summarily denial) and the authority of Fla.R.App.P., 9.200(e) and 9.200(f)(2) (supplementing the record on appeal). Does Fla.R.App.P., 9.141(b)(2) limit the authority to correct or supplement the record under rule 9.200(f)? JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of the district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art. V, 3(b)(3) Fla.Const. (1980); Fla.R.App.P., 9.030(a)(2)(A)(iv). 2

7 ARGUMENT The First District Court of Appeal filed an affirmed in part/reversed in part - per curiam written opinion on January 4, 2013 partly stating the following (See Appendix: A): "[...] Generally, when a defendant demonstrates an Apprendi/Blakely [530 U.S. 466, 490 (2000)/542 U.S. 296 (2004)] error, the court must conduct a harmless error analysis. Galindez v. State, 955 So.2d 517 (Fla. 2007). The test is 'whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the facts at issue].' ¼ at 523. Here, the record on appeal is not sufficient to conduct a harmless error analysis. [...]" (Emphasis added). The Court overlooked the fact that Petitioner did indeed attempt to supplement the record, that would have allowed this Court to perform a harmless error analysis, with his "Motion to Supplement the Record," filed in the court on October 11, However, the district court denied the motion on October 25, 2012 citing the sole authority of Fla.R.App.P., 9.141(b)(2)(A). See, Appendix: B. Petitioner requested that the Sentencing Transcripts and the Sentencing Guidelines Scoresheet to be supplemented into the record on appeal so that a complete review of Petitioner's sentencing issue might be preformed. The motion relied on rules 9.200(e) and 9.200(f)(2) where it is the Petitioner's responsibility to ensure that the record is correct for review and if the record is incomplete, is required to request a party to supply the omitted parts of the record. In addition, no proceeding shall be determined, because of an incomplete record, and until an 3

8 opportunity to supplement the record has been given. Therefore, as in this instant situation, the State had pointed outi the deficiency in the record and Petitioner decided to move to supplement the record, falling within the compliance of rule Fla.R.App.P., 9.200(f)(2), hence it was not waived. See, Moment v. State, 773 So.2d 577 (Fla. 4th DCA 2000) (stating appellant waived right to supplement after deficiency pointed out in answer brief) and Cirillo v. Davis, 732 So.2d 387 (Fla. 4th DCA) rev. den. 751 So.2d 50 (Fla. 1999) (same). Rule 9.141(b)(2)(A) is simply an instruction guide to the clerk of the lower tribunal ensuring that the minimum records are included in the record on appeal. It is not a restrictive rule that limits the contents of the record on appeal. Rule 9.141(b)(2)(A) does not restrict an appellant from invoking Fla.R.App.P., Rules 1 Appellee's response to Toler Order was filed on October 1, Furthermore, Petitioner filed his Reply on October 25, 2012 and stated the page 2: The State avers in 8 in their response, quoting Florida Rule of Criminal Procedure 3.702(19). However, the State avoided 3.702(18)(a), which states: "[t]he reason for departure shall be orally articulated at the time the sentence is imposed." (Emphasis added). It is clear from the face of the record, as supplemented (Petitioner's "Motion to Supplement the Record" dated: October 5, 2012) that the trial judge did not orally articulate any reasons for departure. In addition, Petitioner supplemented the criminal score sheet indicating a range of to months, or a maximum of years incarceration as calculated by the State Attorney's Office. The sentence imposed at sentencing was years followed by years to run consecutive to each other. This is obviously an upward departure sentence. The State further articulated in their response also in 8 the following: "[t]he incarcerative portion combined for the two counts must not deviate more than 25% from the recommended guidelines prison sentence". (Emphasis added). Having quoted the above in their response, the State is apparently conceding to the fact that the sentence is double of what the guidelines permit, therefore, is an illegal sentence. 4

9 9.200(e) and 9.200(f) especially where it is the Appellant's responsibility to ensure that the record is prepared and transmitted in accordance with the rules. Had the court granted Petitioner's motion to Supplement the Record, the court would have been able to perform a complete and thorough review enabling it to comply with the demands of an Apprendi/Blakely error, carrying out the required harmless error analysis. Thus, conserving the valuable judicial resources. Petitioner filed a motion for rehearing where the court had a divided decision, two judges concurred in the denial of the motion and one judge dissented. (See Appendix: C). DIRECT CONFLICT BETWEEN AN APPEAL UNDER FLA.R.APP.P., 9.141(b)(2) (3.850 SUMMARILY DENIAL) AND THE AUTHORITY OF FLA.R.APP.P., 9.200(e) AND 9.200(f)(2) (SUPPLEMENTING THE RECORD ON APPEAL). CREATING THE QUESTION: DOES FLA.R.APP.P., 9.141(b)(2) LIMIT THE AUTHORITY TO CORRECT OR SUPPLEMENT THE RECORD UNDER RULE 9.200(e) and 9.200(f)? In reviewing the history of Fla.R.App.P., 9.141(b)(2), 9.200(e), and 9.200(f) it becomes apparent that prior to the creation of Fla.R.App.P., 9.141(b)(2)(A) the topics were formerly covered in Fla.R.App.P., 9.140(i) under the Committee Notes Amendments, where the Committee explicitly expressed the following: [...] Therefore, an error or inadequacy in the statement should not be relevant to the disposition of any case. In such circumstances, the appropriate procedure would be to supplement the record under rule 9.200(f) to cure any potential or actual prejudice. Either party may move in the lower tribunal to strike unnecessary portions before they are prepared or to expand the transcript. The ruling of 5

10 the lower tribunal on such motion is reviewable by motion to the court under rule 9.200(f) if a party asserts additional portions are required. Furthermore, Fla.R.App.P., 9.200(f) also appears in the Committee Notes - under the 2009 Amendment for Fla.R.App.P., and states: [...] This rule does not limit the authority to file directions under rule 9.200(a)(3), or to correct or supplement the record under rule 9.200(f). (Emphasis added). It appears that the First District Court of Appeal has applied Fla.R.App.P., 9.141(b)(2)(A) as an authority that restricts the enactment of Fla.R.App.P., 9.200(e) and 9.200(f). Petitioner has found no authority that substantiates the First's application of this restrictive measure. Petitioner understands that the Committee Notes to the Florida Rules of Court generally are not adopted or approved by the Supreme Court2 and are not binding.3 However, the First District Court of Appeal has found that Committee Notes are highly persuasive in determining the proper construction of the rules, see Duggar v. State, 446 So.2d 222, 223 (Fla. l ' DCA 1984). Committee Notes are also a valuable aid in the application of the rules.4 Additionally, Petitioner, as a 2 State v. Viamari, 462 So.2d 1154 (Fla. 2nd DCA 1984). 3 D.K.D. v. State, 470 So.2d 1387 (Fla. 1985). 4 Putt v. State, 527 So.2d 914 (Fla. 3rd DCA 1988). 6

11 pro se litigant, recognizes that the Committee Notes provide "helpful hints" to attorneys.5 Since this instant matter involves an unwritten policy or practice that obviously changes from time to time depending on the courts and clerks involved, it should be discontinued as an unwritten policy or practice. See, Faoutas v. State, 745 So.2d 398, 399 (Fla. 18' DCA 1999) Petitioner followed the proper procedure that was available to him in his attempt to have the appellate court completely address his Apprendi/Blakely error and requested the court to perform a harmless error analysis. Petitioner now suffers prejudice from this action. Once again, he is placed at the peril of the trial court regarding his enhanced sentence. Had the appellate court granted his motion to supplement the record, pursuant to Fla.R.App.P., 9.200(f), the court could have directed the trial court with specific instructions as to how to resentence Petitioner after completing their harmless error analysis. Also in jeopardy once again is judicial economy, in that Petitioner may have to return to the appellate court. CONCLUSION This court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of the petitioner's argument. 5 State v. Viamari, 462 So.2d 1154 (Fla. 2"d DCA 1984). 7

12 CERTIFICATE OF SERVICE I Certify that I placed this document in the hands of Calhoun Correctional Institution official for mailing to Office of the Attorney General. Department of Legal Affairs, PL-01, The Capitol, Tallahassee, Florida on February 28, CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Fla.R.App.P., 9.210(a)(2) of the Florida Rules of Appellate Procedure. Respectfully submitted, Davide Forrest DeLaFé, DC # I09494 Petitioner, pro se Calhoun Correctional Institution S.E. Institution Drive, Unit# 1 Blountstown, Florida