IN THE SUPREME COURT OF FLORIDA. Petitioner, v. CASE NO.: SC STATE OF FLORIDA, ON REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHARLES EDWARD EUBANKS, Petitioner, v. CASE NO.: SC STATE OF FLORIDA, Respondent. / ON REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL APPELLEE S BRIEF ON THE MERITS CHARLES J. CRIST, JR. ATTORNEY GENERAL JEFFREY R. CASEY ASSISTANT ATTORNEY GENERAL FLORIDA BAR # KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR # FIFTH FLOOR 444 SEABREEZE BLVD. DAYTONA BEACH, FL (386) /FAX COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS SUMMARY OF ARGUMENT ARGUMENT POINT 1 PETITIONER DID NOT RAISE THIS ISSUE IN HIS RULE (a) MOTION. FURTHER, PETITIONER S CLAIMS ARE PROCEDURALLY BARRED, NOT COGNIZABLE IN A RULE 3.800(a) CONTEXT, AND MERITLESS POINT 2 THERE IS NO CONFLICT OF DECISIONS OF COURTS OF APPEAL AND THEREFORE THIS COURT DOES NOT HAVE JURISDICTION. WERE THERE JURISDICTION, THE FIFTH DISTRICT COURT OF APPEAL S DECISION WAS CORRECT CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i -

3 STATEMENT OF THE CASE AND FACTS Petitioner was charged with armed burglary and grand theft alleged to have occurred on December 13, Petitioner was convicted by a jury as charged in the information. (R ) The State filed notice to sentence Petitioner as a prison releasee re-offender (PRR) on the armed burglary count and the trial court sentenced Petitioner to life. (S. 6, 21) At sentencing, the State introduced evidence that Petitioner had been released on September 1, 1998, from the Florida Department of Corrections for felony convictions for burglary of a dwelling, attempted burglary of a dwelling, and felony petit theft. (S. 13, 17) Petitioner does not herein contest his concurrent five year sentence for the grand theft count. On direct appeal, Petitioner contended that the post-arrest, post-miranda 1 statements violated his right to counsel. Petitioner s convictions were per curiam affirmed on direct appeal. Eubanks v. State, 793 So. 2d 967 (Fla. 5th DCA 2001). Petitioner filed a habeas corpus petition alleging ineffective assistance of appellate counsel which was denied on September 27, Petitioner next filed a motion pursuant to Florida Rule of Criminal Procedure alleging several claims of ineffective assistance of trial counsel as well as a claim of vindictiveness by the prosecution. Counsel was appointed and an evidentiary hearing was held. The trial court denied all claims and the appeal from that 1 Miranda v. Arizona, 384 U.S. 436 (1966)

4 denial was per curiam affirmed. Eubanks v. State, 874 So. 2d 1266 (Fla. 5th DCA 2004). Petitioner s motion pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that his sentence was illegal was summarily denied. In that motion, Petitioner alleged that his life sentence as a prison releasee reoffender was illegal in that the allegations and proof at trial showed the dwelling was unoccupied at the time he burgled it. The trial court found that Petitioner s reliance on Bradshaw v. State, 891 So. 2d 1184 (Fla 2d DCA 2005), was misplaced. The trial court pointed out that the case law cited by Petitioner refers to a burglary occurring before July 1, 2001, and not to an armed burglary. The trial court determined that Petitioner s claims were therefore meritless and denied the motion. The denial was per curiam affirmed without appearance by the State. Petitioner sought rehearing or clarification arguing that another court had held a PRR sentence illegal in circumstances similar to his, citing Bradshaw, and a clarification was issued. Eubanks v. State, 917 So. 2d 898 (Fla. 5th DCA 2005). The Fifth District Court of Appeal noted that it had previously held that armed burglary is a qualifying offense for purposes of PRR without regard to whether the dwelling was occupied, citing Stabile v. State, 790 So. 2d 1235 (Fla. 5th DCA 2001), approved on other grounds, 838 So. 2d 557 (Fla. 2003).In addition, the Court observed that the State had conceded error in Bradshaw and that the Second District Court of Appeal had not made note of the differences between Sections (9)(a)1.p. and q., Florida - 2 -

5 Statutes (1999). To the extent there was conflict, the Fifth District Court of Appeal certified a conflict exists. Petitioner filed notice seeking to invoke discretionary review by this Court based on that claimed conflict. Appointed counsel has requested that this Court take judicial notice of the trial and sentencing transcript. Danny Weaver, Sr., (Weaver, Sr.), testified that he and his son, Danny Weaver, Jr., (Weaver, Jr.), worked together installing the lath on houses in preparation for stucco. (R. 27) On December 13, 1999, Petitioner started working with them. (R. 27) In the van on the way home from the job, Petitioner offered to sell Weaver, Jr. a.22 caliber rifle. (R. 28) Their boss, the van s driver, let the Weavers and Petitioner out at the top of the dirt road that led to the Weaver house. (R. 29) Weaver, Sr. testified that Petitioner s wife was waiting for him there in a green 4x4. (R. 30) Petitioner stated that he would have to retrieve the rifle and would bring it as soon as possible to show to Weaver, Jr.. (R. 30) Weaver, Sr. testified that he and his son left his house to go to dinner at 5:00 p.m. and returned at 6:30 p.m. to find that his front door had been kicked in and several items, including a shotgun, had been taken. (R ) Weaver, Sr. was able to identify the Mossberg 12 gauge shotgun which had been recovered by the sheriff s office. (R. 35) Richard Baldree (Baldree) testified that Petitioner came to his house in the evening on Monday, December 13, 1999, and offered - 3 -

6 to sell him two guns, a 12 gauge shotgun and a.22 caliber rifle. (R ) Baldree said that he bought the guns from Petitioner. (R. 67) Baldree said that he called the sheriff who came out to his house and took the guns as evidence. (R. 69) Baldree stated that Petitioner told him the guns belonged to his grandfather. (R. 72) Putnam County Sheriff s Detective Cecil Manning testified that he recovered the shotgun and that Weaver, Sr. remarked that it was loaded when it was stolen. (R. 77) Manning also stated that he interviewed Petitioner following his arrest and that Petitioner stated that he sold the gun but denied stealing it. (R. 86) The State read into the record a stipulation that the shotgun was an operable firearm as defined by Florida law and rested. (R. 105) Following argument of counsel, the jury found Petitioner guilty of armed burglary of a dwelling as charged in the information. (R. 157) - 4 -

7 SUMMARY OF ARGUMENT POINT 1 Petitioner makes several interconnected arguments all contending that he was improperly sentenced to life in prison. Petitioner asserts that he did not arm himself in the course of the burglary because there was no testimony that the shotgun was a dangerous weapon. First, Petitioner failed to assert in his Rule 3.800(a) motion his present claim that he did not arm himself in the course of the burglary. In that motion, he argued only that the dwelling was unoccupied and therefore the prison releasee reoffender statute was inapplicable. Petitioner cannot make this claim for the first time here. Second, this is a claim that should have been raised on direct appeal and as such is procedurally barred in post conviction proceedings. Third, as this was urged in the context of a Rule 3.800(a) motion, it must be noted that the court records do not on their face show an entitlement to relief. Petitioner s argument requires a review of the evidence and therefore is not properly presented by a Rule 3.800(a) motion. Regardless, a firearm is a deadly weapon and therefore, contrary to Petitioner s assertions, no proof is necessary to show the character of the weapon by proof of the manner and means in which it was used. POINT 2 Petitioner also contends that his sentence is illegal in that the PRR should not apply to him because the dwelling was not occupied at the time he burgled it. It is the State s position - 5 -

8 that there is no conflict of decisions and therefore this Court does not have jurisdiction. Further, armed burglary is specifically listed as a qualifying offense for purposes of the prison releasee re-offender statute. No interpretation is necessary. The decision on which Petitioner relies, Bradshaw v. State, 891 So. 2d 1184 (Fla 2d DCA 2005) was wrongly decided. As the Fifth District Court of Appeal pointed out below, Bradshaw clearly failed to address the distinction between the two subsections. Lastly, Petitioner incorrectly assumes that subsections p. and q. of Section (9)(a)1, Florida Statutes, must be read together in order to determine eligibility for the application of the PRR sentencing. A prison releasee re-offender is defined as a defendant who commits any of the listed offenses within three years of release from prison for a felony conviction. Petitioner s conviction for armed burglary within three years of his release from prison met the definition. Armed burglary is a qualifying offense under the PRR statute

9 ARGUMENT POINT 1 PETITIONER S CLAIMS ARE PROCEDURALLY BARRED, NOT COGNIZABLE IN A RULE 3.800(a) CONTEXT, NOT RAISED IN HIS RULE (a) MOTION, AND MERITLESS. Petitioner s argument is there was not sufficient proof to show the shotgun stolen in the burglary was a dangerous weapon for purposes of (2)(b), Florida Statutes (1999). Petitioner s claim that he did not arm himself in the course of committing the burglary was not raised in his Rule 3.800(a) motion below and is therefore not preserved for review. This Court has clearly stated that: In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved. Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). Petitioner s argument presents an insufficiency of the evidence claim which should have been raised on direct appeal. Claims which could have been raised on direct appeal are not appropriately considered on post-conviction attack. Maharaj v. State, 684 So. 2d 726 (Fla. 1996). Even if it could somehow be considered in a post-conviction proceeding, and was properly preserved, Petitioner s insufficient evidence claim is not appropriately presented in a rule motion. This Court has explained that rule motions are limited to those sentencing issues that can be resolved as a - 7 -

10 matter of law without an evidentiary determination. State v. Mancino, 705 So. 2d 1379, 1381 (Fla. 1998)(quoting State v. Callaway, 658 So. 2d 983, 988 (Fla. 1995)). In the instant case, Petitioner asks this Court to review the transcript to determine the sufficiency of the evidence to support a finding that the 12 gauge shotgun was a dangerous weapon for purposes of (2)(b), Florida Statutes (1999). Brought in context of a Rule 3.800(a) motion, as this requires an evidentiary determination and not solely one of law, this issue is not properly before this Court. Were the issue properly before this Court, a firearm, in this case a 12 gauge shotgun, is a deadly weapon, without regard to whether it was loaded or ready to be fired. Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988). This Court acknowledged in excess of 100 years ago that dangerous weapon is but a milder version of deadly weapon yet otherwise of the same meaning. Clemons v. State, 37 So. 647, 650 (Fla. 1904). A weapon capable of causing death must by definition also be a weapon capable of causing death or great bodily harm

11 POINT 2 THERE IS NO CONFLICT OF DECISIONS OF COURTS OF APPEAL AND THEREFORE THIS COURT DOES NOT HAVE JURISDICTION. WERE THERE JURISDICTION, THE FIFTH DISTRICT COURT OF APPEAL S DECISION WAS CORRECT. This petition was brought alleging there was a conflict between the decisions in Bradshaw v. State, 891 So. 2d 1184 (Fla 2d DCA 2005), and Eubanks v. State, 917 So. 2d 898 (Fla. 5th DCA 2005). It is the State s position that there is no conflict between the decisions and therefore this Court is without jurisdiction. This Court recently explained conflict jurisdiction: Article V, section 3(b)(3), Florida Constitution, provides the basis for the Court's direct conflict jurisdiction. Section 3(b)(3) states that, in order to meet jurisdictional requirements, the decisional conflict must be both express and direct: (b) JURISDICTION.-- The supreme court:.... (3) May review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Art. V, 3(b)(3), Fla. Const. Tippens v. State, 897 So. 2d 1278, 1280 (Fla. 2005). In Bradshaw, the Court was presented with facts similar to those in the instant case, a burglary in which firearms were taken when the homeowner was away. Bradshaw was convicted of armed burglary and sentenced as a prison releasee re-offender. On appeal, Bradshaw urged that there was no showing that the home was occupied at the time of the burglary and therefore he should not have been sentenced as a PRR. At the time of the offense, the - 9 -

12 prison releasee reoffender statute, section (9)(a)1, Florida Statutes, provided, in pertinent part: Prison releasee reoffender means any defendant who commits, or attempts to commit:... p. Armed burglary; q. Burglary of an occupied structure or dwelling; or... (emphasis added). The Second District Court of Appeal accepted the State s concession of error in Bradshaw, acknowledging that as subsection q. required proof that the dwelling was occupied at the time of the burglary, Bradshaw should not have been sentenced as a PRR. Although the statute clearly shows that the several subsections are alternative means by which a defendant could be sentenced as a PRR, the Court did not consider whether Bradshaw was properly sentenced as a PRR pursuant to subsection p. In contrast to the decision in Bradshaw, the Fifth District Court of Appeal in Eubanks specifically held that Section (9)(a)1.p. lists armed burglary as a qualifying offense and held Petitioner was properly sentenced as a PRR under that subsection. Consequently, the decisions are not in express and direct conflict. Fla. R. App. P (a)(2)(A)(vi). Should this Court conclude that it has jurisdiction, the question presented is whether armed burglary is a qualifying offense for a PRR sentence. Under the plain language of the statute, the answer is yes

13 In interpreting a statute, this Court has consistently looked first to the plain meaning of the text of the statute. As we have long held, "when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (Fla. 1931)). Maddox v. State, 31 Fla. L. Weekly S 24 (Fla. Jan. 12, 2006). As set forth above, the prison releasee re-offender statute in effect at the time of the offense specifically listed armed burglary as a qualifying offense (9)(a)1 p, Fla. Stat. (1999). The plain and obvious meaning of the statute is that armed burglary is a qualifying offense. In addition, the State contends that Bradshaw v. State, 891 So. 2d 1184 (Fla. 2d DCA 2005), was wrongly decided in that it considered only the applicability of (9)(a)1.q. and failed to consider the applicability of (9)(a)1.p. Bradshaw was convicted of armed burglary. See (2)(b), Fla. Stat. (1999). The Court stated that the PRR statute only applied to burglaries of occupied dwellings. Id. Had Bradshaw been convicted of violating sections (3)(a) or (b), Florida Statutes (1999), this would have been the correct inquiry. As the Fifth District Court of Appeal explained in Stabile v. State, 790 So. 2d 1235 (Fla. 5th DCA 2001), and reiterated in Eubanks: Under the Prison Releasee Reoffender Act, armed burglary is a qualifying offense without regard to whether the place burgled is occupied or unoccupied (9)(a)1.p., Fla. Stat. Stabile

14 v. State, 790 So. 2d at Based apparently on the State s concession of error, the Court in Bradshaw failed to consider the impact of a statute which clearly applied to the facts presented, and relied instead on a statute which was not applicable. The State submits that for this reason Bradshaw was wrongly decided and therefore not controlling. Lastly, Petitioner contends that the sentencing court must determine whether the burglary was committed in an occupied or unoccupied dwelling and, if occupied, only then proceed to consider whether the defendant was armed. Respondent disagrees with this construction. Armed burglary is a first degree felony punishable by life in prison if committed in a dwelling, a structure, or a conveyance (2)(b), Fla. Stat. (1999). Burglary of a dwelling is a second degree felony if the offender, unarmed and committing no assault or battery therein, burgles a dwelling, whether or not occupied (a)-(b), Fla. Stat. (1999). At the time of the instant burglary, the statute in effect listed eighteen distinct subparts, sixteen specific listed crimes and two any felony in certain chapters, the conviction for any of which would subject a defendant to punishment as a PRR (9)(a)1 a-r, Fla. Stat. (1999). Section (9)(a)1.p. lists armed burglary and (9)(a)1.q. lists burglary of an occupied structure or dwelling. In State v. Huggins, 802 So. 2d 276 (Fla. 2001), this Court noted the apparent ambiguity in the language of subsection q, that is, whether the legislature intended for the word occupied

15 to modify structure alone or both structure and dwelling. 2 Restated, this Court found two readings of the statute equally possible, that the legislature intended to subject to greater punishment those convicted of burgling dwellings or occupied structures or that the legislature intended to greater punish those that burgled occupied dwellings or occupied structures. Applying, as it must, the rule of lenity, this Court held that, if based on subsection q, an offender could only be sentenced as a PRR if the dwelling or structure burgled was at the time occupied. Id. at 279. Notably, the facts of that case did not necessitate consideration of subsection p. Petitioner cites Huggins, and Zook v. State, 883 So. 2d 332 (Fla. 2d DCA 2004), as support for his proposition that the PRR statute applied only to occupied dwellings. Petitioner s approach is at best illogical. Armed burglary can be committed in a dwelling, a structure, or a conveyance (2)(b), Fla. Stat. (1999). Since conveyance is not listed in section (9)(a)1. p., Florida Statutes, Petitioner s construction would either completely remove armed burglary of a conveyance as a possible PRR qualifying offense or lead to the absurd result that an armed repeat offender would be dealt with less harshly should he decide to burgle an unoccupied dwelling rather than choose to burgle the unoccupied minivan parked in the home s driveway. Under this 2 Although subsection q has been since amended to remedy the ambiguity, that amendment took place after the date of the offense in the present case and therefore the prior version of the statute is at issue here

16 approach, an armed felon fresh from prison would receive a mandatory life sentence for burgling the minivan. Had he chosen to burgle the home instead, he would be subject only to a guidelines sentence

17 CONCLUSION Based on the arguments and authorities presented above, the State respectfully prays this Honorable Court affirm the decision of the Fifth District Court of Appeal. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL JEFFREY R. CASEY ASSISTANT ATTORNEY GENERAL FLORIDA BAR # FIFTH FLOOR 444 SEABREEZE BLVD DAYTONA BEACH, FL (386) /Fax KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR # COUNSEL FOR RESPONDENT

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Merits Brief has been furnished by United States Mail to Mary E. Adkins, counsel for the Petitioner, 303 State Road 26, Melrose, FL 32666, this the day of May JEFFREY R. CASEY ASSISTANT ATTORNEY GENERAL COUNSEL FOR RESPONDENT CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). JEFFREY R. CASEY ASSISTANT ATTORNEY GENERAL COUNSEL FOR RESPONDENT