CASE NO. SC L.T. CASE NO. 4D IN THE SUPREME COURT OF FLORIDA CATHERINE STANEK-COUSINS, Petitioner, STATE OF FLORIDA, Respondent.

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1 CASE NO. SC L.T. CASE NO. 4D ========================================================== IN THE SUPREME COURT OF FLORIDA CATHERINE STANEK-COUSINS, Petitioner, v. STATE OF FLORIDA, Respondent. On Petition For Discretionary Review From The District Court Of Appeal Of Florida, Fourth District PETITIONER S BRIEF ON JURISDICTION MICHAEL R. MORRIS MORRIS & MORRIS, P.A. Counsel for Petitioner 224 Datura St., Suite 300 West Palm Beach, FL Telephone: (561) Facsimile: (561) mrmorris@morris-morris.com Florida Bar No

2 TABLE OF CONTENTS PAGES TABLE OF CITATIONS...iii INTRODUCTION... 1 STATEMENT OF THE CASE AND OF THE FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 POINT I: THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT OF FLORIDA ON THE ISSUE OF THE EFFECT OF TRANSFER OF VENUE POINT II: THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT OF FLORIDA ON THE ISSUE OF THE ABILITY OF THE STATE ATTORNEY S OFFICE TO PROSECUTE CASES OUTSIDE ITS TERRITORIAL JURISDICTION POINT III: THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY, DIRECTLY AND ERRONEOUSLY INTERPRETS PROVISIONS OF THE FLORIDA CONSTITUTION CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

3 TABLE OF CITATIONS CASES Cottingham v. State 672 So.2d 28 (Fla. 1996)... 5, 6 Davis v. Florida Power Corporation 486 So.2d 34 (Fla. 2nd DCA 1986)... 5 Dugger v. State 351 So.2d 740 (Fla. 3rd DCA 1977)... 8 Hart v. State 198 So. 120 (Fla. 1940)...4, 7, 8 Leon v. State 695 So.2d 1265 (Fla. 4th DCA 1997)... 9 Metellus v. State 900 So.2d 491 (Fla. 2005)... 6 Stanek-Cousins v. State 896 So.2d 865 (Fla. 5 th DCA 2005)... 3 Vasilinda v. Lozano 631 So.2d 1082 (Fla. 1994)...3, 4, 7 Winter v. State 781 So.2d 1111 (Fla. 1st DCA 2001)... 8 CONSTITUTIONAL PROVISIONS Article 1, , 4, 9, 10 Article V, 3(b)(3) Article V, 7...4, 10 RULES Florida Rule of Criminal Procedure , 6, 7 STATUTES Florida Statute , 9 iii

4 INTRODUCTION Petitioner, CATHERINE STANEK-COUSINS, was the defendant in the trial court and the Appellee in the Fourth District Court of Appeal. Petitioner shall be referred to as Stanek-Cousins and Respondent shall be referred to as State. The designation app. refers to the appendix to this brief, which contains a conformed copy of the slip opinion of the Fourth District Court of Appeal in the instant cause. STATEMENT OF THE CASE AND OF THE FACTS Stanek-Cousins was charged, along with co-defendant Timothy Koile, with first degree murder in the death of her husband, Patrick Cousins ( Cousins ). After extensive investigation of the Cousins and Koile homes in Palm Beach County, and the area in which the body was discovered in Osceola County, law enforcement officers were unable to determine where Cousins had been killed. The Ninth Circuit State Attorney s Office brought charges by indictment alleging that the murder of Cousins occurred in the areas of Palm Beach; Martin; St. Lucie; Indian River; Brevard, and Osceola Counties. At arraignment, the State indicated that it would not be seeking the death penalty. After Stanek-Cousins refused to waive her right to a speedy trial, the State filed its notice of intent to seek the death penalty. A few days later, Stanek-Cousins exercised her right under the Constitution of the State of Florida, Article I, 16; 1

5 Florida Statute (1), and Florida Rule of Criminal Procedure to elect venue for trial in Palm Beach County. Trial was held in a Palm Beach County courtroom by a Ninth Circuit judge. 1 Stanek-Cousins objected to the involvement of prosecutors from the Ninth Circuit State Attorney s Office, in the absence of an order from the Governor allowing the Ninth Circuit State Attorney s Office to operate outside its territorial jurisdiction. This objection was denied. The trial judge brought with her a clerk from the Ninth Circuit, and refused to allow the court file to be received by the Fifteenth Circuit. During the trial, the trial court, which had already ruled that Ninth Circuit administrative rules were to be used during the trial, sua sponte issued an order that all matters were to be captioned as though the trial were being held in the Ninth Circuit. Stanek-Cousins was convicted of manslaughter and sentenced to fifteen years in prison. Following sentencing, Stanek-Cousins filed her notice of appeal. Because the trial judge had not allowed the case to be filed in the Fifteenth Circuit, the only case number available was that of the Ninth Circuit, which forced Stanek-Cousins to file her appeal in the Fifth District Court of Appeal. To preserve her rights, Stanek-Cousins also filed a petition for writ of habeas corpus in the Fourth District. 1 Stanek-Cousins does not object to the same judge trying the case in the Ninth and Fifteenth Circuits, but argues that the judge should have sat at trial as a Fifteenth Circuit judge; conducted the trial with a Fifteenth Circuit clerk, and abided by and enforced Fifteenth Circuit administrative rules. 2

6 The Fourth District did not act on the writ for almost a year, by which time the Fifth District had ruled that Stanek-Cousins appeal should be transferred to the Fourth District. Stanek-Cousins v. State, 896 So.2d 865 (Fla. 5 th DCA 2005). Following the submission of briefs by parties and oral argument, the Fourth District issued its opinion in this cause. The Fourth District held that Stanek- Cousins was required to show prejudice from the failure of the trial court to follow this Court s ruling that a transfer of venue becomes effective only upon transfer of the file. Vasilinda v. Lozano, 631 So.2d 1082 (Fla. 1994). Ruling that she had not shown such prejudice, the Fourth District denied her appeal. (app., p. 5). The Fourth District also denied, without comment, her subsequent motion for rehearing. Stanek-Cousins thereafter timely filed her notice to invoke this Court s discretionary jurisdiction to review this cause, and this jurisdictional brief follows. SUMMARY OF ARGUMENT Point I: This Court should exercise its discretionary review jurisdiction because of the express and direct conflict between the Fourth District Court of Appeal s holding in this case and this Court s holding in Vasilinda, supra. It is uncontested that the file was not transferred to the Fifteenth Circuit. The court that tried Stanek-Cousins was thus without subject matter jurisdiction. 3

7 Point II: The Fourth District Court of Appeal erred in its interpretation of this Court s decision in Hart, citing Hart for the proposition that a prosecutor might be sent into a foreign jurisdiction. Hart v. State, 198 So. 120 (Fla. 1940). As Hart expressly requires a Governor s order before a prosecuting attorney may act extraterritorially (which the Fourth District held unnecessary), the Fourth District Court of Appeal brought itself into direct conflict with this Court. Point III: The Fourth District Court of Appeal expressly construed provisions of the Constitution of the State of Florida, namely Article 1, 16 and Article V, 7. The trial court s actions in transferring venue effectively denied Stanek-Cousins her rights under the Florida Constitution by allowing a Ninth Circuit court to operate without authority in the Fifteenth Circuit. ARGUMENT POINT I THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT OF FLORIDA ON THE ISSUE OF THE EFFECT OF TRANSFER OF VENUE. This Court ruled in Vasilinda, supra, that a transfer of venue become effective only upon transfer of the file. Vasilinda v. Lozano, 631 So.2d 1082 (Fla. 1994). The decision of the Fourth District Court of Appeal in this case directly conflicts with Vasilinda, as it held that venue is effective without transfer of the 4

8 file so long as the trial occurs within the territorial jurisdiction of the court to which a defendant sought to have the case transferred. There is no basis for the Fourth District to suggest that this Court did not mean exactly what it so plainly said in Vasilinda: Changes of venue in criminal cases do not become effective until the court file has been received in the transferee court. 631 So.2d at While there are relatively few cases interpreting Vasilinda, those that do all point to a very strict construction of the Vasilinda rule, rather than the extraordinarily loose interpretation suggested by the Fourth District. Indeed, the Fourth District s interpretation conflicts not only with Vasilinda on its face, but also with this Court s interpretation of Vasilinda in Cottingham v. State, 672 So.2d 28 (Fla. 1996). In Cottingham, this Court was faced with the issue of when venue transfer became effective in the civil context, and held that receipt of payment of costs and fees by the clerk was controlling, rather than the mailing date of such costs and fees. In so holding, this Court emphasized that importance of knowing exactly when venue was transferred. See id at 29. In Stanek-Cousins case, the decision of the Fourth District makes it impossible to know when venue was transferred: it might have been when the trial court signed the order; the Ninth Circuit clerk swore the venire panel, or at some other date. The Fourth District s decision not only makes this determination impossible, but conflicts with the decision of the Second District in Davis v. Florida Power Corporation, 486 So.2d 5

9 34 (Fla. 2 nd DCA 1986), that upon a change of venue the transferor court loses the power to rule upon other matters pending in the case. In this case, the transferor court never gave up its power, but continued to act and rule throughout the case. Not only does the Fourth District s interpretation directly conflict with Vasilinda, it also conflicts with this Court s decision in Metellus v. State, 900 So.2d 491 (Fla. 2005), to the effect that a jurisdictional rule cannot be altered by the court or by agreement of the parties. The only method by which a court in Palm Beach County would have jurisdiction to try Stanek-Cousins is by operation of jurisdictional rules. In this case, the relevant rule is Florida Rule of Criminal Procedure The cause was not actually removed as required by Rule 3.240(e); the record was not transferred as per Rule 3.240(f), and the indictment was not modified as required by Rule 3.240(j). Indeed, the Ninth Circuit judge came with the case, as is allowed, but brought with her the Ninth Circuit Clerk, the Ninth Circuit State Attorney s Office and, by her direct order, the Ninth Circuit Administrative Rules. Even if this Court were to allow Vasilinda to be interpreted so flexibly, the use of Ninth Circuit Administrative Rules in a Fifteenth Circuit courtroom and the order that all pleadings be captioned and filed in the Ninth Circuit that shows that no true transfer of jurisdiction occurred. 6

10 POINT II THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT OF FLORIDA ON THE ISSUE OF THE ABILITY OF THE STATE ATTORNEY S OFFICE TO PROSECUTE CASES OUTSIDE ITS TERRITORIAL JURISDICTION. The Fourth District held that the trial court committed no error in allowing the Ninth Circuit State Attorney s Office to try the case in the Fifteenth Circuit and, in so doing, came into direct conflict with decisions of this Court. Specifically, the Fourth District cited to this Court s decision in Hart v. State, 198 So. 120 (Fla. 1940), stating that a state attorney may be sent into another circuit because qualified from his experience to prosecute a particular offense, or he may be assigned to another circuit to insure a speedy trial, where the docket has become burdensome. App. at 5. This is almost a direct quotation from Hart, but the Fourth District omitted the rest of the paragraph: A state attorney might be sent into another circuit because better qualified from his experience to prosecute a particular offense. One might be assigned to insure a speedy trial where the docket had become burdensome. In the abundance of caution, a resident state attorney might ask that he be relieved from the prosecution of a case where he felt he might, because of circumstances which would not justify a disqualification, be embarrassed in discharging the duties of his office. These and many other circumstances could motivate the Governor in issuing an order for the assignment, and reciting in it in all good faith that justice would be subserved by its issuance. 198 So.2d at 125; emphasis added. 7

11 There is no question in this case but that no such order from the Governor was ever sought, much less granted. It is also abundantly clear that Stanek-Cousins made consistent and clear objection to the involvement of the Ninth Circuit State Attorney s Office, including filing a writ in the Fifth Circuit and moving to dismiss the information. See Winter v. State, 781 So.2d 1111 (Fla. 1 st DCA 2001) (motion to dismiss rather than writ pro quo warranto proper procedure where defendant challenges jurisdiction of State Attorney s Office, rather than authority of individual prosecutor). In holding that the Ninth Circuit State Attorney s Office could travel to the Fifteenth Circuit without a Governor s order, the Fourth Circuit directly and expressly conflicts with both the Florida Supreme Court in Hart; the First District in Winter, and the Third District in Dugger v. State, 351 So.2d 740 (Fla. 3 rd DCA 1977) (Governor s order required for assistant state attorney to work outside territorial jurisdiction). 8

12 POINT III THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY, DIRECTLY AND ERRONEOUSLY INTERPRETS PROVISIONS OF THE FLORIDA CONSTITUTION. In deciding this case, the Fourth District expressly construed Article 1, Section 16 of the Constitution of the State of Florida. Few courts have commented upon this provision, which allows a defendant to elect venue. 2 Election of venue, a constitutional right, is implemented through Florida Statute which states election shall have the force and effect of the granting of an application of the accused for change of venue from the county in which the offense was committed to the county in which the case is tried. No provision of statute, rule or Constitution allows a court to change venue as required by the Constitution by simply moving to another county. Instead, the court must transfer the file and the judge sits in the transferee county as a judge of the transferee county, rather than of the originating county. In this cause, the trial court expressly and by written order moved the trial to Palm Beach County, but insisted that the administrative rules of the Ninth Circuit be used, and 2 The only case that specifically addressed this provision in the context of a defendant s election of venue is Leon v. State, 695 So.2d 1265 (Fla. 4 th DCA 1997) (information alleging crime was committed in one county and/or another was conjunctive). 9

13 that all pleadings in the case be captioned as though trial were taking place in the Ninth Circuit. By approving this action, the Fourth District not only misinterpreted Article I, Section 16, but also Article V, Section 7 of the Florida Constitution, which expressly limits courts to their territorial jurisdiction. There is no reported case (other than Stanek-Cousins case) which allows a trial court to operate outside its territorial jurisdiction. CONCLUSION Based on the foregoing argument and citations of authority, Petitioner, Catherine Stanek-Cousins, respectfully requests that this Honorable Court accept jurisdiction to review the decision of the Fourth District Court of Appeal pursuant to Article V, 3(b)(3) of the Florida Constitution, and ultimately quash the Fourth District s opinion. Respectfully submitted, MICHAEL MORRIS Counsel for Petitioner 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petitioner s Brief on Jurisdiction has been furnished by U.S. Mail to Laura Fisher Zibura, Office of the Florida Attorney General, 1515 N. Flagler Drive, 9 th Floor, West Palm Beach, Florida , this day of November, Michael Morris Counsel for Petitioner 224 Datura Street, Suite 300 West Palm Beach, Florida Tel.: ; Fax: Florida Bar Number: CERTIFICATION OF COMPLIANCE I CERTIFY that this brief complies with the font requirements of Florida Rule Appellate Procedure 9.210(a)(2) and was typed in Times New Roman 14- point font. Michael Morris 11