IN THE SUPREME COURT OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA MICHAEL JACKSON, Petitioner, DCA CASE NO. 5D versus STATE OF FLORIDA, S.CT. CASE NO. Respondent. ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL PETITIONER'S BRIEF ON JURISDICTION JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT TABLE OF CONTENTS ANNE MOORMAN REEVES Assistant Public Defender Florida Bar No Orange Avenue, Suite A Daytona Beach, Florida Phone: 386/ COUNSEL FOR PETITIONER

2 PAGE NO: TABLE OF CITATIONS ii STATEMENT OF THE CASE 1 STATEMENT OF THE FACTS 3 SUMMARY OF THE ARGUMENT 4 ARGUMEN T PRESENTED THE DISTRICT COURT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN MUZZO v. STATE, 773 SO. 2d 1271 (FLA. 4th DCA 2000, CONCERNING THE EXPRESS LANGUAGE OF SECTION (5, FLORIDA STATUTES. 5 CONCLUSION 7 CERTIFICATE OF SERVICE 7 CERTIFICATE OF FONT 8 ii

3 TABLE OF CITATIONS CASES CITED PAGE NO. Holmes v. State 866 So. 2d 144 (Fla. 1st DCA Muzzo v. State, 773 So. 2d 1271 (Fla. 4th DCA , 5, 6 Queen v. State, 832 So. 2d 956 (Fla. 5th DCA , 5 OTHER AUTHORITIES CITED Article V, section 3(b(3, Florida Constitution 4 Section , Florida Statutes ( Section (5, Florida Statutes (2001 1, 3, 5 Section (5(10, Florida Statutes (2001 3, 5 Rule 9.030(a(2(iv, Florida Rules of Appellate Procedure 4 iii

5 IN THE SUPREME COURT OF FLORIDA MICHAEL JACKSON, Petitioner, DCA CASE NO. 5D versus S.CT. CASE NO. STATE OF FLORIDA, Respondent. STATEMENT OF THE CASE On April 1, 2005, the Fifth District Court of Appeal reversed as to two of the complained-of special conditions of probation, and affirmed as to the third, relying on Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002, which holds that the warrantless search condition authorized by section (5 applies even to those convicted of a nonenumerated offense, without the need for oral pronouncement. (Appendix A. Jackson s motion for rehearing, clarification, and/or certification of conflict with Muzzo v. State, 773 So. 2d 1271 (Fla. 4th DCA 2000 (section (5 not a standard condition with respect to nonenumerated of- 1

6 fenses, but is valid only if orally announced, was denied on May 23, (Appendix B. Jackson's notice to invoke this honorable court's discretionary jurisdiction was filed in the district court on June 22,

7 STATEMENT OF THE FACTS Michael Jackson was found guilty of and convicted of burglary of an occupied structure, defined in section , Florida Statutes, and was sentenced as a habitual felony offender to twenty years in prison, to be followed by ten years of probation, whose written order includes three unpronounced special conditions, which were the subject of an Anders footnote, on the authority of Holmes v. State, 866 So. 2d 144 (Fla. 1st DCA 2004 (appellant properly filed Anders brief and presented issue of unpronounced special conditions through Anders footnote. The Fifth District Court of Appeal ordered the state to answer and the appellant to reply, concerning the Anders footnote. It subsequently issued a decision by which it reversed two of the offending conditions, but affirmed the third. The court opined that this third condition, that the probationer submit to warrantless searches of his person, residence[,] and property, is statutorily authorized and does not have to be orally pronounced at the sentencing hearing to be validly imposed. (FN5 See, e.g., Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002 (holding that the requirement that a probationer submit to warrantless searches is valid even though it is not pronounced at sentencing, because section (5 authorizes the condition, and provides the necessary notice. FN5. See s (5(10, Fla. Stat. 3

8 SUMMARY OF ARGUMENT The supreme court has jurisdiction to review the decision of the Fifth District Court of Appeal in this cause, pursuant to rule 9.030(a(2(iv, Florida Rules of Appellate Procedure, and article V, section 3(b(3, of the Florida Constitution, because the district court s decision expressly and directly conflicts with the decision of another district court. 4

9 ARGUMENT THE DISTRICT COURT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN MUZZO v. STATE, 773 SO. 2d 1271 (FLA. 4th DCA 2000, CONCERNING THE EXPRESS LANGUAGE OF SECTION (5, FLORIDA STATUTES. In its opinion in Jackson v. State, 2005 WL , 30 Fla. L. Weekly D891 (Fla. 5th DCA April 1, 2005, affirming the validity of the unpronounced condition of probation that Jackson submit to warrantless searches, the Fifth District Court of Appeal relied on Queen v. State, 832 So. 2d 956 (Fla. 5th DCA 2002, noting Queen s holding that submission to warrantless searches is a valid condition even if not orally announced, because section (5 authorizes the condition, and provides the necessary notice. The court s assertion in Jackson that this condition [warrantless search] is statutorily authorized and does not have to be orally pronounced at the sentencing hearing to be validly imposed is footnoted with a reference to section (5(a10, Florida Statutes. Sections (5 and (5(a10 read as follows: (5 Conditions imposed pursuant to this subsection, as specified in paragraphs (a and (b, do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this subsection. 5

10 (a Effective for probationers or community controllees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s , s , or s , the court must impose the following conditions in addition to all other standard and special conditions imposed: Submission to a warrantless search by the community control or probation officer of the probationer s or community controllee s person, residence, or vehicle. (Emphasis added. (Subsection (b sets out mandatory conditions for persons placed on sex offender supervision, and is not applicable here. The decision of the Fifth District Court of Appeal conflicts expressly and directly with that of the Fourth District Court of Appeal s Muzzo v. State, 773 So. 2d 1271 (Fla. 4th DCA 2000, which holds that section (5(a does not apply to nonenumerated offenses. This conflict provides jurisdiction for this honorable court s review. 6

11 CONCLUSION For the reasons expressed herein, the petitioner respectfully requests that this honorable court exercise its discretionary jurisdiction and grant review of the Fifth District Court of Appeal's decision in this cause. Respectfully submitted, JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT ANNE MOORMAN REEVES Assistant Public Defender Florida Bar No A Orange Avenue Daytona Beach, Florida Phone: 386/ COUNSEL FOR PETITIONER CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been furnished to the Honorable Charles J. Crist, Jr., Attorney General, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32118, by delivery to his basket at the Fifth District Court of Appeal, Daytona Beach, Florida 32114, and by mail to Mr. Michael Jackson, DC# , Hamilton Correctional Institution, S. W. 46th Street, Jasper, Florida 32052, on this 5th day of July,

12 CERTIFICATE OF FONT I CERTIFY that the size and style of type used in this brief is 14- point Times New Roman. ANNE MOORMAN REEVES Assistant Public Defender Florida Bar No Orange Avenue, Suite A Daytona Beach, Florida Phone: 386/

13 IN THE SUPREME COURT OF FLORIDA MICHAEL JACKSON, Petitioner, DCA CASE NO. 5D versus STATE OF FLORIDA, S.CT. CASE NO. Respondent. A P P E N D I X A 9

14 IN THE SUPREME COURT OF FLORIDA MICHAEL JACKSON, Petitioner, DCA CASE NO. 5D versus STATE OF FLORIDA, S. CT. CASE NO. Respondent. A P P E N D I X B

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

IN THE SUPREME COURT OF THE STATE OF FLORIDA LORENZO WILLIAMS, Petitioner, DCA Case No.: 5D04-1704 v. S. Ct. Case No. STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF