IN THE SUPREME COURT OF FLORIDA. v. Case No. SC- IAN MANUEL L.T. No. 2D ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL

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1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Petitioner, v. Case No. SC- IAN MANUEL L.T. No. 2D Respondent. ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF PETITIONER PAMELA JO BONDI ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No PATRICIA A. MCCARTHY Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 ISSUE... 6 WHETHER THIS COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION TO REVIEW THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN MANUEL v. STATE, 48 So. 3d 94 (Fla. 2d DCA 2010), rev. denied Dec. 3, CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

3 TABLE OF CITATIONS PAGE NO. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)... 4 Dykman v. State, 294 So. 2d 633 (Fla. 1973)... 6 Graham v. Florida, --- U.S. ---, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)... passim Graham v. Florida, ---U.S. ----, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009)... 3 Graham v. State, 982 So. 2d 43 (Fla. 1st DCA 2008)... 3 Jaimes v. State, 2010 WL (Fla. 2010)... 8 Manuel v. Florida, 537 U.S. 1114, 123 S.Ct. 870, 154 L.Ed.2d 789 (2003)... 2 Manuel v. State, 48 So. 3d 94 (Fla. 2d DCA 2010)... i, 4, 6 Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993)... 1 Manuel v. State, 674 So. 2d 134 (Fla. 2d DCA 1996)... 1 Manuel v. State, 765 So. 2d 709 (Fla. 2d DCA 2000)... 2 Manuel v. State, 825 So. 2d 386 (Fla. 2d DCA 2002)... 2 Manuel v. State, 880 So. 2d 1226 (Fla. 2d DCA 2004)... 3 Manuel v. State, 919 So. 2d 447 (Fla. 2d DCA 2006)... 3 ii

4 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 8 Rojas v. State, 288 So. 2d 234 (Fla. 1973)... 6 Standard Jury Instructions in Criminal Cases, 636 So. 2d 502 (Fla. 1994)... 8, 9 State v. Weaver, 957 So. 2d 586 (Fla. 2007)... 8 Tipton v. State, 97 So. 2d 277 (Fla. 1957)... 4, 8 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)... 8 Other Authorities Art. V 3(b), Fla. Const... 7 Art. V, 3(b)(3), Fla. Const... 6, 8 Fla. R. App. P (a)(2) Fla. R. Crim. P (b)... 2 Fla. R. Crim. P , 2, 3 Fla. R. Crim. P (a)... 3 iii

5 STATEMENT OF THE CASE AND FACTS On February 22, 1991, Ian Manuel pled guilty to robbery with a firearm (count one), attempted robbery (count two) attempted first degree murder (count three), and attempted murder in the first degree (count four) as charged in case no After securing a presentence investigation report, the trial court on April 11, 1991, sentenced Manuel to life in prison on the armed robbery, one attempted first degree murder offense (count three). A fifteen-year prison term was imposed on the attempted robbery count. The sentences ran concurrently with each other. A probationary term of life was imposed on the remaining attempted first degree murder offense (count four). On April 26, 1991, the trial court amended his sentences on counts one through three to include a three-year mandatory minimum prison term. Manuel did not appeal the original or amended judgment. Manuel unsuccessfully sought postconviction relief under Fla.R.Crim.P The summary denial of his 1993 rule motion was affirmed in part, Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993), and on remand, the postconviction court again denied relief. The ensuing appeal was dismissed on May 3, Manuel v. State, 674 So. 2d 134 (Fla. 2d DCA 1996)[table]. 1 On September 1, 1999, Manuel filed a pro se motion for 1 Manuel unsuccessfully challenged his judgment in a 28 U.S.C petition in case no Civ-T-23C in the Middle District of Florida. His appeal from the denial of his federal petition was dismissed on May 31, 2000, for want of prosecution. 1

6 correction of sentence. The trial court granted resentencing to correct an aspect of his sentence not raised by Manuel. On June 29, 2000, the circuit court vacated the disposition of life probation on count four, attempted first degree murder, and resentenced Manuel thereon to 40 years in prison, to run concurrently with his other sentences. On appeal, his appellate counsel raised, via Fla.R.Crim.P (b), a claim that his remaining life sentence for attempted first degree murder was cruel and unusual. Following briefing, the Second District affirmed without written decision on June 21, 2002, in case no. 2D Manuel v. State, 825 So. 2d 386 (Fla. 2d DCA 2002)[table]. Manuel then pursued certiorari review in the United States Supreme Court in a petition raising whether the imposition of a sentence of life without the possibility of parole for offenses committed when he was thirteen years old was cruel and/or unusual. After securing a response from the state, the Supreme Court denied Manuel s petition without elaboration on January 13, Manuel v. Florida, 537 U.S. 1114, 123 S.Ct. 870, 154 L.Ed.2d 789 (2003). 2 Manuel filed another pro se rule 3.800(a) motion, which was 2 Thereafter, Manuel sought plea withdrawal collaterally. His motion to withdraw his negotiated guilty plea was denied as untimely, a ruling which was affirmed in case no. 2D without written decision on June 23, Manuel v. State, 765 So. 2d 709 (Fla. 2d DCA 2000)[table]. By then, Manuel had also filed a pro se notice of fundamental error, which was treated and denied as a rule motion by order rendered October 30,

7 denied by order rendered October 3, Manuel appealed the rule 3.800(a) order, and on June 23, 2004, the Second District silently affirmed the denial in case no. 2D Manuel v. State, 880 So. 2d 1226 (Fla. 2d DCA 2004)[table]. On October 8, 2004, Manuel filed another pro se rule motion, which was summarily denied. On January 13, 2006, the summary denial was affirmed without written decision in case no. 2D Manuel v. State, 919 So. 2d 447 (Fla. 2d DCA 2006)[table]. On July 25, 2007, Manuel through retained collateral counsel filed another rule motion challenging his sentences on grounds that life imprisonment without possibility of parole is unconstitutional for a 13-year old who does not commit murder. The postconviction court by order rendered June 4, 2008, summarily denied the rule motion as successive and untimely. While his ensuing appeal was pending on appeal, the United States Supreme Court granted certiorari to review Graham v. State, 982 So. 2d 43 (Fla. 1st DCA 2008). See Graham v. Florida, ---U.S. ----, 129 S.Ct. 2157, 173 L.Ed.2d 1155 (2009). The Second District stayed review pending the Supreme Court's decision in Graham. After securing responses from the parties, addressing Graham v. Florida, --- U.S. ----, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Second 3 Manuel also filed a pro se petition for writ of habeas corpus seeking permission to file a rule motion, which was denied by order rendered October 3,

8 District vacated Manuel's sentences and remanded for resentencing. Manuel v. State, 48 So.3d 94 (Fla. 2d DCA 2010), finding that in keeping with the new bright-line rule in Graham, Manuel's sentences of natural life are unconstitutional as a violation of the Eighth Amendment. Id. Rejecting the state s position that under Graham, Manuel s attempted first degree murder is a homicide and cannot be relegated to the nonhomicide category, the Second District reasoned as follows: The Florida Supreme Court has stated that under the definition of homicide, [i]t is necessary for the act to result in the death of a human being. Tipton v. State, 97 So.2d 277, 281 (Fla.1957). And as the Graham Court explained, [l]ife is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life... is not over and normally is not beyond repair. Graham, 130 S.Ct. at 2027 (quoting Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion)). The Coker decision, relied upon in Graham, also stated that while other very serious crimes may be deserving of serious punishment;... in terms of moral depravity and of the injury to the person and to the public, [they do] not compare with murder, which does involve the unjustified taking of human life. 433 U.S. at 598, 97 S.Ct (plurality opinion). Hence, simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred. Manuel, supra. The Second District concluded Manuel's attempted murder conviction is a nonhomicide offense under both Tipton and Graham. Id. The state filed a timely motion for rehearing, which was denied on December 3, The state filed a timely notice to invoke the discretionary jurisdiction of this Honorable Court on December 29,

9 SUMMARY OF THE ARGUMENT The decision of the Second District expressly construes a provision of the United States Constitution. Additionally, said decision is in express and direct conflict with a decision of this Honorable Court. Accordingly, this Honorable Court should exercise its discretionary jurisdiction to review the District Court s decision. 5

10 ARGUMENT ISSUE WHETHER THIS COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION TO REVIEW THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN MANUEL v. STATE, 48 So. 3d 94 (Fla. 2d DCA 2010), rev. denied Dec. 3, This Court has jurisdiction to review any decision in which a district court expressly construes a provision of the state or federal constitution. See Art. V, 3(b)(3), Fla. Const. Jurisdiction is not properly invoked merely because the district court may apply a constitutional provision to the facts before it; rather, such is properly invoked as to construction of a constitutional provision only where the court has expressly construed the constitutional provision involved. Dykman v. State, 294 So. 2d 633, 635 (Fla. 1973). The decision must explain or amplify some identifiable constitutional provision in a way that is an evolutionary development in the law or that expresses doubt about some legal point. Rojas v. State, 288 So.2d 234, 236 (Fla. 1973). In holding that Manuel s sentences are unconstitutional in violation of the Eighth Amendment under Graham v. Florida, --- U.S. ----, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Second District has expressly construed the Cruel and Unusual Punishment Clause of the Eighth Amendment of the United States Constitution. Graham involved a prosecution for armed robbery by a sixteen year old who was on probation at the time and tried as an adult. The Supreme Court in Graham concluded that the Constitution 6

11 prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. Graham, --- U.S. ----, 130 S.Ct. at The Graham Court did not hold that attempted first degree murder must be considered a nonhomicide offense under the Eighth Amendment. The Second District in holding that attempted first degree murder is a nonhomicide offense under Graham has not merely applied a federal constitutional provision to the facts of Manuel s case. Rather, the Second District has interpreted the constitutional rule announced in Graham in such manner as to amplify and extend the Cruel and Unusual Punishment Clause to ban the imposition of a sentence of life imprisonment without parole for attempted first degree murder committed by a juvenile offender. Furthermore, the Second District s decision is in express and direct conflict with a decision of this Honorable Court. See Art. V 3(b), Fla. Const. This Honorable Court has identified two basic forms of decisional conflict which properly justify the exercise of jurisdiction under section 3(b)(3) of the Florida Constitution. Either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves "substantially the same controlling facts as a prior case...." 7

12 Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). The Second District found that attempted first degree murder is a nonhomicide offense. The Second District s decision limits the use of the homicide category to cases where there is a death and is in express and direct conflict with this Court s decision in Standard Jury Instructions in Criminal Cases, 636 So. 2d 502, (Fla. 1994), in which attempted homicide instructions were adopted. There, this Court adopted new instructions on attempted murder which describe said offense as an attempted homicide. Not only does the Introduction to Attempted Homicide set forth therein describe the crime of attempted murder as a homicide offense, such introduction contains instructions for justifiable as well as excusable attempted homicide. Id., 636 So. 2d at 503; Fla. Std. Jury Instr. (Crim.) 6.1. The Second District relied on Tipton v. State, 97 So. 2d 277, 281 (Fla. 1957) Tipton did not address the crime of attempted first degree murder, and the Second District misapplied Tipton to conclude attempted first degree murder is a nonhomicide offense. As a result, this Court has conflict jurisdiction. See Jaimes v. State, 2010 WL (Fla. 2010) ( We have jurisdiction based on a misapplication of our decision in Weaver State v. Weaver, 957 So.2d 586 (Fla. 2007)], See Art. V, 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So. 3d 1035, 1040 (Fla. 2009) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, section 3(b)(3)) ). 8

13 Moreover, this Court s decision in Standard Jury Instructions in Criminal Cases, supra, was issued long after Tipton was decided. The Second District s holding that Manuel s attempted first degree murder is a non-homicide is in direct and express conflict with Standard Jury Instructions in Criminal Cases, supra, which adopts instructions specifically setting forth the crime of attempted murder as attempted homicide. CONCLUSION Petitioner respectfully requests this Honorable Court accept jurisdiction to review this case. 9

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to Marc R. Shapiro and Bryan A. Stevenson, Esqs., of Equal Justice Initiative of Alabama, 122 Commerce Street, Montgomery, AL 36104, Brittney Horstman and Lynn Overmann, Esqs. of Kubiliun & Associates, P.A., 1 Southeast 3rd Avenue, Suite 1700, Miami, FL this 6th day of January, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL ROBERT J. KRAUSS Chief Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No PATRICIA A. MCCARTHY Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) COUNSEL FOR PETITIONER 10