IN THE SUPREME COURT OF FLORIDA CASE NO. SC ALVIN LEWIS, Petitioner. vs. STATE OF FLORIDA, Respondents. PETITIONER'S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC ALVIN LEWIS, Petitioner vs. STATE OF FLORIDA, Respondents. PETITIONER'S BRIEF ON JURISDICTION Seeking Discretionary Review from the District Court of Appeal, Fourth District, State of Florida Case No.: 4D JOHN D. MIDDLETON, ESQUIRE FL Bar No MIDDLETON & PRUGH, P.A. 303 State Road 26 Melrose, FL 32666

2 2 TEL: 352/ FAX: 352/

3 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS ii JURISDICTIONAL STATEMENT PRELIMINARY STATEMENT STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT. 6-9 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT IN McCOY v. STATE, 599 So.2d 645 (Fla.1992) and STATE V. ACOSTA, 506 So.2d 387 (Fla.1987). CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

4 TABLE OF CITATIONS CASES PAGES Amendments to Florida Rules of Criminal Procedure 3.170, 633 So.2d 1056 (Fla. 1994) 7 Ford v. State, 374 So.2d 496 (Fla. 1979) 4 Lewis v. State, 906 So.2d 1127 (Fla. 4 th DCA 2005) 3, 6, 9 Lewis v. State, 765 So.2d 717 (Table) (Fla. 4th DCA 2000) 2 McCoy v. State, 599 So.2d 645 (Fla. 1992) 6, 7, 8, 9 State v. Acosta, 506 So.2d 387 (Fla.1987) 6, 7, 8, 9 The Florida Star v. B.J.F, 530 So.2d 286, 288 (Fla. 1988) 7 CONSTITUTION Art. V s 3(b) (3), Fla. Const. (1980) 1 RULES Florida Rule of Criminal Procedure (g) 6 Fla. R. Crim. P Fla. R. App. P., (a) (2) (A) (iv) 1 ii

5 JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a 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 s 3(b) (3), Fla. Const. (1980) and Fla. R. App. P., (a) (2) (A) (iv). PRELIMINARY STATEMENT Petitioner was the Defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal. In this brief, the parties shall be referred to as they appear before this Court except that the Respondent may also be referred to as the State. In this brief, the symbol "A" followed by the appropriate number will be used to denote the appendix that accompanies present brief. All emphasis in this brief is supplied unless otherwise noted. 1

6 STATEMENT OF THE CASE AND FACTS A. Procedural History On September 19, 1974, the Petitioner, Alvin Ray Lewis entered a plea of guilty to murder in the second degree before the Honorable J. Cail Lee and was sentenced to life imprisonment on November 25, The Petitioner agreed to cooperate and testified for the State in exchange for pleading to a charge of second degree murder and an agreement by the State to make a favorable parole recommendation to the Florida Parole Commission concerning Petitioner s case. The Petitioner did not pursue a direct appeal challenging his conviction. The Petitioner filed his first motion for post conviction relief on July 20, He alleged the issue of the non-compliance with the plea bargain by the State Attorney's Office by its objecting to his parole or any favorable consideration by the Florida Parole Commission. The trial court summarily denied the Defendant's first application for post-conviction relief by its order dated May 7, 2000 finding that the motion was time-barred. The Petitioner appealed the lower court s order and the order was affirmed by the Fourth District Court of Appeal in Lewis v. State, 765 So.2d 717 (Table) (Fla. 4th DCA 2000). The Petitioner filed a Petition to Vacate Plea, Judgment and Sentence via Fla. R. Crim. P on in November The lower issued an order to respond and the State filed a response to that order. The trial court denied the Petitioner s 2

7 Petition to Vacate the Plea, Judgment and Sentence by its order dated December 13, In that order the Court adopted the State s Response to Order to Show Cause by attaching a copy of the State s response to the order. The Petitioner timely filed his notice of appeal on January 6, 2005 in the Fourth District Court of Appeal. On June 1, 2005 the Fourth District Court of Appeal issued a per curiam decision with an opinion. The opinion reads: Lewis argues the instant motion is not successive because although he raised this issue in a prior motion, the prior motion was denied as untimely; it was not decided on the merits. We agree with the defendant that this motion is not barred as successive, but not for the reason appellant urges. Because the alleged breach of the plea agreement did not occur until August 13, 2003, the appellant s motion is neither untimely nor impermissibly successive. On the merits, the defendant agrees that the state did not oppose his parole in 1982 and The state complied with the plea agreement and Lewis was released on parole in While he was on parole, he was charged and later convicted of a new offense, grand theft auto. His parole was revoked. Thereafter, in 1996, 1998 and 2003 the state has opposed his release on parole. The state sufficiently satisfied its obligations in 1982 and 1984 and Lewis was granted parole. The state did not breach the agreement by objecting to his release after he violated parole. The circumstances changed not as a result of anything the state did, but because the defendant committed a new crime. It is not reasonable for the defendant to believe that he can commit new offenses while on parole and that the state attorney and law enforcement are precluded from commenting on his suitability for subsequent parole release, where the state s agreement only pertained to the original 1974 sentence. Lewis v. State, 906 So.2d 1127 (Fla. 4 th DCA 2005). (A-1) 3

8 On June 15, 2005 the Petitioner timely filed a Motion for Rehearing and Motion for Rehearing En Banc. On August 5, 2005, the Fourth District Court of Appeal denied the Motion for Rehearing and Motion for Rehearing En Banc. (A-2) B. Statement of the Facts. The underlying facts of the Defendant s conviction can be found at Ford v. State, 374 So.2d 496 (Fla. 1979). They are: On the morning of July 21, 1974, Ford and three others, who had decided to commit a robbery, went with weapons to a Red Lobster Restaurant in Fort Lauderdale, Florida. During the robbery, after two people had escaped from the restaurant, Ford's three accomplices realized the police would soon arrive and so left the scene of the crime. Ford remained in order to effectuate the theft of some $7,000 from the restaurant's vault and was confronted by Officer Dimitri Walter Ilyankoff of the Fort Lauderdale Police Department. Ford shot the policeman three times, wounding him fatally. Appellant [Ford] escaped in the decedent's police car, and his fingerprints were later found in the vehicle after it had been abandoned. As set forth in the Defendant s Motion, the facts not in dispute by the State are as follows: Mr. Lewis was arrested for his involvement in a botched robbery attempt that occurred in Broward County on July 21, Along with three other individuals, Mr. Lewis attempted to rob a Red Lobster Restaurant located at 5950 North Federal Highway in Ft. Lauderdale. Mr. Lewis drove to the scene but did not go inside the premises. Two of the co-defendants attempted to rob the restaurant while Mr. Lewis and the other co-defendant waited outside as lookouts. Mr. Lewis and two of the four defendants left the restaurant and fled in the car. Alvin Ford was left behind and was confronted by a police officer. The police officer was killed by Mr. Ford execution style. Mr. Ford was given a death sentence for his part in this killing. 4

9 Mr. Lewis entered into plea negotiations with the State of Florida. Those negotiations contemplated that the State of Florida reducing the first-degree murder charge to second-degree murder, a life sentence to be imposed upon the Petitioner, and the corresponding duty upon Mr. Lewis to cooperate with the State Attorney's office. The State agreed to inform the Parole Commission of the plea bargain and recommend that Mr. Lewis serve 7 to 10 years on his life sentence. Mr. Lewis cooperated with the State Attorney's office and as such fulfilled his end of the bargain. Mr. Lewis' attorney at the time explained to him if he entered his plea that the inclusion of this provision in the plea agreement acted as a ban on any negative recommendations from the State. Mr. Lewis was specifically told by his lawyer that this portion of the agreement prevented the State of Florida from filing negative information or speaking against parole eligibility before the Parole Commission. The State Attorney's Office twice ratified this agreement in 1982 and 1984 by not objecting to Mr. Lewis being granted parole and residing in the Broward County area. Beginning in December 1996 and in September 1998, the State Attorney's Office and law enforcement representatives began voicing their objections to the Mr. Lewis' parole. The State has not disputed these facts in its Response to Motion for Post- Conviction Relief. The State again appeared at the Defendant s parole hearing in opposition to Defendant s parole at his August 13, 2003 hearing before the Florida Parole Commission. At that hearing the following State representatives or groups appeared before the Florida Parole Commission: a. The Florida Sheriffs Association b. The Florida Police Chiefs Association 5

10 c. The Broward County State Attorney's Office d. The Ft. Lauderdale Police Department There were also four (4) letters from the Ft. Lauderdale Police Department read to the Florida Parole Commission. A copy of a transcript of the August 13, 2003 was submitted as an exhibit to the Petitioner s Petition to Vacate filed in the trial court. As noted in the transcript, the Florida Parole Commission was advised that all of these entities objected to any favorable parole consideration for Mr. Lewis despite his limited participation in this crime. The Florida Parole Commission voted to keep Mr. Lewis' presumptive parole release date of January 7, 1997 suspended and interview him in five (5) years in SUMMARY OF THE ARGUMENT This Court should accept jurisdiction to review the instant case because the opinion of the Fourth District Court of Appeal in Lewis v. State, 906 So.2d 1127 (Fla. 4 th DCA 2005) (A-1) conflicts with this Court s decision in McCoy v. State, 599 So.2d 645 (Fla.1992) and State v. Acosta, 506 So.2d 387 (Fla.1987). The District Court Opinion in Lewis v. State, modifies the Petitioner s plea bargain without due process as contemplated in McCoy v. State, 599 So.2d 645 (Fla.1992) and State v. Acosta, 506 So.2d 387 (Fla.1987). Though the opinion does not cite any authority, a fair reading of the opinion clearly creates a conflict with the 6

11 principles set forth in McCoy v. State, 599 So.2d 645 (Fla. 1992) that govern the procedures courts are to follow when it is alleged a defendant has breached a plea agreement and whether terms of a plea bargain must be specific and on the record. ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE IS IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT IN McCOY v. STATE, 599 So.2d 645 (Fla.1992) and STATE V. ACOSTA, 506 So.2d 387 (Fla.1987). This Court's has jurisdiction to review decisions of the district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. This court stated in The Florida Star v. B.J.F, 530 So.2d 286, 288 (Fla. 1988): Thus, it is not necessary that conflict actually exist for this Court to possess subject-matter jurisdiction, only that there be some statement or citation in the opinion that hypothetically could create conflict if there were another opinion reaching a contrary result. This is the only reasonable interpretation of this constitutional provision. As the final authority on the meaning of the Florida Constitution, see Art. IV, 1(c), and Art. V, 3(b)(1), (3), Fla. Const., this Court has the final and inherent power to determine what constitutes express and direct conflict. This Court has further clarified its jurisdiction to include cases where there is no citation of law as follows: 7

12 [I]n those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by the Court. Persaud v. State, 838 So.2d 529, 532 (Fla. 2003)(citing Reaves v. State, 485 So.2d 829, 830 (Fla.1986), and Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981)). In the instant case, the District Court of Appeal announced a rule of law which directly conflicts with the rule of law announced by this Court in McCoy v. State, 599 So.2d 645 (Fla. 1992) and State v. Acosta, 506 So.2d 387 (Fla.1987). This court in McCoy at 649 held: [W]hen entering into a plea agreement, the State must make sure that the specific terms of the agreement are made part of the plea agreement and the record. As a result of McCoy, Florida Rule of Criminal Procedure (g) was promulgated and became effective March 10, Amendments to Florida Rules of Criminal Procedure 3.170, 633 So.2d 1056 (Fla. 1994). The opinion written by the Fourth District Court of Appeal in Lewis v. State deprives the defendant of any due process. This is in direct conflict with McCoy v. State, 599 So.2d 645, (Fla. 1992). This Court, citing State v. Acosta, 506 So.2d 387 (Fla.1987), in McCoy v. State, 599 So.2d 645, (Fla. 1992) held: First, the terms of the plea agreement that are the subject of noncompliance must be expressly made a part of the plea entered into in open court. Second, the State, in moving to vacate the plea agreement on grounds of noncompliance, must file the motion seeking vacation of the plea and sentence within sixty days of the time of the defendant's noncompliance with the specific terms of that agreement. Third, the defendant must have a full opportunity to be heard at an 8

13 evidentiary hearing on the issue. Fourth, to vacate the plea and sentence, the court must find that there has been substantial noncompliance with the express plea agreement. Finally, upon vacating the plea, the cause must be set for trial within ninety days of the order vacating the plea. The Fourth District Court of Appeal in Lewis v. State, is also in conflict with State v. Acosta, 506 So.2d 387 (Fla.1987) because it relieves the State from its good faith obligation to perform pursuant to the terms of plea bargain without any requirement that the subject of a defendant s noncompliance be expressly made part of the plea entered into in open court. The Fourth District Court of Appeal s opinion in Lewis v. State injects conditions to a plea bargain that were not announced on the record contrary to State v. Acosta, 506 So.2d 387 (Fla.1987) and further denies a defendant his due process rights set forth in McCoy v. State, 599 So.2d 645, (Fla. 1992) including the right to be heard at an evidentiary hearing. The Fourth District Court of Appeals decision found that the Petitioner s future law violation could be a basis for the State s non-compliance with the plea agreement though it was not an announced condition of the plea agreement. Last the Fourth District Court of Appeal opinion in Lewis v. State deprives a defendant of the right to have a judge specifically find after taking evidence that there has been non-compliance of the plea bargain by a defendant to justify the State s non-compliance. CONCLUSION 9

14 Based on the foregoing facts, authorities and arguments, Petitioner requests this Court exercise its discretionary jurisdiction to review the decision of the Fourth District Court of Appeal in Lewis v. State, 906 So.2d 1127 (Fla. 4 th DCA 2005). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to JOEL SILVERSHEIN, ESQ., Assistant State Attorney, Room 675, 201 S.E. 6 th Street, Ft. Lauderdale, FL and Office of the Attorney General, 1515 N. Flagler Drive, Suite 900, W. Palm Beach, FL by U.S. mail on this 12 th day of September, JOHN D. MIDDLETON, ESQUIRE FL Bar No Middleton & Prugh, P.A. 303 State Road 26 Melrose, FL Tel: 352/ Fax: 352/ Midprugh@alltel.net CERTIFICATE OF FONT COMPLIANCE I, JOHN D. MIDDLETON, Esquire, Attorney for Petitioner, ALVIN LEWIS, hereby certify that the size and style of type used in the Jurisdictional Brief of Petitioner is Times New Roman 14-point font as per Fla. R. App. P (a) (2). 10

15 JOHN D. MIDDLETON, ESQUIRE 11