IN THE SUPREME COURT OF THE STATE OF FLORIDA. Petitioner, DCA Case No.: 5D

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA LORENZO WILLIAMS, Petitioner, DCA Case No.: 5D v. S. Ct. Case No. STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT PETITIONER S BRIEF ON JURISDICTION JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT MEGHAN ANN COLLINS ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO ORANGE AVENUE DAYTONA BEACH, FLORIDA (386) COUNSEL FOR PETITIONER

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3 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS TABLE OF CITATIONS i ii PRELIMINARY STATEMENT 1 STATEMENT OF THE CASE AND FACTS 2 SUMMARY OF ARGUMENT 5 ARGUMENT 6 (A) THE OPINION OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT, ON THE FIRST GROUND IS FOUNDED UPON A DIRECT AND EXPRESS INTERPRETATION OF THE SIXTH AMENDMENT CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION. THE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT MAY THEREFORE BE INVOKED UNDER Fla. R. App. Pro (a)(2)(A)(ii). (B) THE OPINION OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT, ON THE SECOND GROUND IS FOUNDED UPON A DIRECT AND EXPRESS INTERPRETATION OF THE RIGHT TO TRIAL BY JURY AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. THE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT MAY THEREFORE BE INVOKED UNDER Fla. R. App. Pro (a)(2)(A)(ii). i

4 TABLE OF CONTENTS CONTINUED PAGE NO. CONCLUSION 9 CERTIFICATE OF SERVICE 10 CERTIFICATE OF FONT 10 ii

5 TABLE OF CITATIONS CASES CITED: Apprendi v. New Jersey, U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) 4 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) 2, 7 Frumenti v. State, 885 So.2d 924 (Fla. 5 th DCA 2004) 4, 8 Towbridge v. State, 898 So.2d 1205 (Fla. 3 rd DCA 2005) 7 Williams v. State, 909 So.2d 599 (Fla. 5 th DCA 2005) 3, 4, 7, 8 OTHER AUTHORITIES CITED: U.S.CONST. amend. VI. 2, 3, 5, 6, 7 Fla. CONST. art. I, 16(a) 5 Fla. R. App. P (a)(2)(A)(ii) 5, 6, 7 iii

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7 PRELIMINARY STATEMENT In this brief the following symbols will be used: T transcript of the jury trial, volume three of the record on appeal and transcript of the sentencing hearing, volume one of the record on appeal; R volume two of the record on appeal; and S volumes one and two of the supplemental record on appeal. 1

8 STATEMENT OF THE CASE AND FACTS Based upon a jury verdict, the Petitioner was adjudicated guilty of the lesser included offense of robbery with a weapon (R62;Vol.2). The Honorable Frank N. Kaney, circuit court judge, found the Petitioner to be both a habitual felony offender and a prison releasee reoffender, and sentenced him to forty-five years in the Department of Corrections, the first thirty years as a prison releasee reoffender (R65-69;Vol.2). On the first day of trial, shortly before jury selection, the State informed the Court that the State intended to introduce into evidence an audiotape of a 911 call allegedly made by an older couple who witnessed the robbery (T8;Vol.3). The Petitioner objected to the admission on grounds that the tape was inadmissible hearsay and that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), admission of the tape would violate the Petitioner s right to confront the witnesses against him as guaranteed by the Sixth Amendment to the U.S. Constitution (T8-10;Vol.3). Defense counsel said that he had never had an opportunity to question the caller, since the State had never disclosed the caller s name (T8-10;Vol.3). The trial judge overruled the objection and stated that the audiotape could be admitted into evidence (T10;Vol.3). 2

9 The State played the audiotape of the 911 call for the jury (T81-85;Vol.3). In the tape, the caller accuses the Petitioner of starting the incident, saying, Cause (sic) I seen the Hispanic guy coming down the road and then all at once I turned around, I looked, and the guy grabbed him (T81-82;Vol.3). Later in the call, the caller also says, But see, that black guy came out of nowhere. And this guy was walking down the street, minding his own business, and he s hollering help. (T84;Vol.3). The caller also accused the Petitioner of going through Mr. Morales, the alleged victim s, pockets (T81;Vol.3). Timely appeal was taken from the conviction and the Petitioner argued two grounds on appeal: 1) that the trial judge erred in admitting the tape of the 911 call in violation of the Confrontation Clause, 2) the Petitioner s habitual felony offender sentence violated the Appellant s right to a trial by jury, guaranteed by the Sixth Amendment to the U.S. Constitution. Williams v. State, 909 So.2d 599 (Fla. 5 th DCA 2005). As to the second ground, the Petitioner argued that the determination of whether or not a habitual offender sentence is actually imposed on a defendant is based, in part, on a factual determination by a trial judge that the sentence is necessary for the protection of the public (S ;Vol.2). The 3

10 Petitioner asserted that under Apprendi 1 and Blakely 2, it is unconstitutional for his sentence to be increased, beyond the sentence that a jury verdict alone would permit, based on a factual determination, which was neither admitted by the Petitioner nor determined by a jury (S ;Vol.2). In an opinion issued on September 2, 2005, the Fifth District Court of Appeal affirmed the judgment and sentence of the trial judge, Williams v. State, 909 So.2d 599 (Fla. 5 th DCA 2005). On the first ground, the Court held, that the statements, which were clearly in the nature of excited utterances, were not testimonial in nature, and concluded that the admission of the statements did not violate Petitioner s right to confront the declarant. Id. On the second ground, the Court held that the Petitioner did not have a right to a jury trial to determine whether he should be sentenced as a habitual offender, citing to Frumenti v. State, 885 So.2d 924 (Fla. 5 th DCA 2004). Id. The Petitioner filed his notice to invoke the discretionary jurisdiction of this Court on October 3, This brief on jurisdiction follows. 1 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 2 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). 4

11 SUMMARY OF THE ARGUMENT The Petitioner invokes the discretionary jurisdiction of this Court to review the decision of the Fifth District Court of Appeal. Jurisdiction of the Florida Supreme Court is invoked pursuant to Fla. R. App. P (a)(2)(A)(ii). The decision of the district court on the first ground raised on appeal expressly construes the Confrontation Clause3- a provision of both the state and federal constitutions. The decision of the district court on the second ground raised on appeal expressly construes the right to trial by jury, which is guaranteed by Sixth Amendment to the United States Constitution. 3 U.S. Const. Amend. VI; and Art. I, 16(a), Fla. Const. 5

12 ARGUMENT (A) THE OPINION OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT, ON THE FIRST GROUND IS FOUNDED UPON A DIRECT AND EXPRESS INTERPRETATION OF THE SIXTH AMENDMENT CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION. THE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT MAY THEREFORE BE INVOKED UNDER Fla. R. App. Pro (a)(2)(A)(ii). (B) THE OPINION OF THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT, ON THE SECOND GROUND IS FOUNDED UPON A DIRECT AND EXPRESS INTERPRETATION OF THE RIGHT TO TRIAL BY JURY AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. THE DISCRETIONARY JURISDICTION OF THE FLORIDA SUPREME COURT MAY THEREFORE BE INVOKED UNDER Fla. R. App. Pro (a)(2)(A)(ii). (A) The Confrontation Clause This court has the discretion to review the decision of the district that was appealed under Fla. R. App. Pro (a)(2)(A)(ii); because in denying the first ground argued on appeal the Fifth District Court s decision expressly construes the Confrontation Clause. The district court stated the first issue on appeal as follows: Appellant challenges his conviction for robbery with a weapon on two grounds: First, that the lower court improperly admitted as evidence a 911 tape in violation 6

13 of the Appellant s right of confrontation under the United States Constitution, Williams, 909 So.2d at The district court then concluded: The disposition of Appellant s Confrontation Clause argument turn on whether the statements made to a 911 operator by a witness to the crime were testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude that the statements, which were clearly in the nature of excited utterances, were not testimonial in nature. Therefore, the admission of the statements did not violate Appellant s constitutional right to confront the declarant. Towbridge v. State, 898 So.2d 1205 (Fla. 3 rd DCA 2005). These excerpts from the district court s ruling in this case demonstrate that the decision to affirm the trial court on the first ground was founded upon the district court determining that excited utterances are exempt from the requirements of the Confrontation Clause. Therefore, the district court s decision is subject to discretionary review by this Court. (B) The Right to Trial by Jury This court has the discretion to review the decision of the district that was appealed under Fla. R. App. Pro (a)(2)(A)(ii); because in denying the second ground argued on appeal the Fifth District Court s decision expressly construes the right to a jury trial, which is guaranteed by the Sixth Amendment. The district court stated the second issue on appeal as follows, Appellant 7

14 challenges his conviction for robbery with a weapon on two grounds: second, that his Sixth Amendment right to a jury trial was infringed when the court sentenced him as an habitual offender. Williams, 909 So.2d The district court later conclude, As to Appellant s second point, we concluded that Appellant did not have a right to jury trial to determine whether he should be sentenced as an habitual offender. Frumenti v. State, 885 So.2d 924 (Fla. 5 th DCA 2004). These excerpts from the district court s ruling in this case demonstrate that the decision to affirm the trial court on the second ground was founded upon the district court construing that the right to trial by jury does not apply to habitual felony offender sentences. Hence, the district court s decision is subject to discretionary review by this Court. 8

15 CONCLUSION The petitioner requests that this Honorable Court accept jurisdiction in this case to review the ruling of the district court. Respectfully submitted, JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT MEGHAN ANN COLLINS ASSISTANT PUBLIC DEFENDER Florida Bar No Orange Avenue Daytona Beach, Florida (386)

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been hand delivered to: The Honorable Charles J. Crist, Jr., 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32118, via his basket at the Fifth District Court of Appeal, and mailed to Lorenzo Williams, DOC #750709, Mayo Correctional Institution, 8784 West U.S. 27, Mayo, Florida 32066, on this date, October 14, MEGHAN ANN COLLINS ASSISTANT PUBLIC DEFENDER CERTIFICATE OF FONT I hereby certify that the size and style of type used in this brief is 14 point Times New Roman font. MEGHAN ANN COLLINS ASSISTANT PUBLIC DEFENDER 10