IN THE SUPREME COURT OF FLORIDA. V CASE No. SCl ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT

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1 Filing # Electronically Filed 10/02/ :09:43 PM RECEIVED, 10/2/ :14:26, John A. Tornasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA TIMOTHY HARRIS. Petitioner, V CASE No. SCl 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 CRAIG R. ATACK ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO Seabreeze Boulevard, Suite 210 Daytona Beach, Florida (386) Atack.craig@pd7.org COUNSEL FOR PETITIONER

2 TABLEOFCONTENTS TABLE OF CONTENTS. i TABLE OF CITATIONS 11 STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 4 ARGUMENT 5 THIS COURT HAS DISCRETIONARY JURISDICTION TO ACCEPT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL BELOW FOR REVIEW UNDER JOLLIE v. STATE, 405 So. 2d 418 (Fla. 1981). CONCLUSION 7 CERTIFICATE OF SERVICE 8 CERTIFICATE OF FONT 8

3 TABLE OF CITATIONS CASES CITED: PAGE NO. Graham v. Florida 3, 5, U.S. 48, 130 S.Ct L.Ed.2d 825 (2010) Henry v. State 3, 5 82 So.3d 1084 (Fla. 5* DCA 2012) review granted, 107 So.3d 405 (Fla. 2012) Jackson v. State 6 64 So. 3d 1209 (Fla Jollie v. State 5, So. 2d 418 (Fla. 1981) 11

4 IN THE SUPREME COURT OF FLORIDA TIMOTHY HARRIS, Petitioner, v. CASE No. SC STATE OF FLORIDA, Respondent. STATEMENT OF THE CASE AND FACTS Appellant, Timothy Harris, was charged by an information in the Circuit Court of Seminole County, Florida, with Sexual Battery with use of Threat; Burglary of a Structure with Battery; Kidnapping with a Firearm; Robbery with a Firearm and Aggravated Battery with a Firearm. He was 17 at the time of his offenses. On February 13, 2002, a jury returned verdicts fmding Appellant guilty as charged and Appellant was sentenced to fifteen years in Department of Corrections to be served concurrent with 4 life sentences (R 10). On May 10, 2013, the trial court re-sentenced Appellant. Before imposing sentence, in summary, the trial court stated the intention of the sentence was for 1

5 Appellant to spend the rest of his life in prison. (R 56-58) "Judge Gallluzzo and I reviewed Graham. We tried to figure out what it means, and I agree with you, Mr. Caudill, there is not a bright line. There's nothing in there that shows us, so it's anticipated what's in the pipeline, and what may occur as far as what is that, and I'm not being facetious when I say that magic range that they're looking for that will survive court scrutiny, and that yet it's appropriate. It's not say, and I don't thinkyou're supposed to say, well, I want to get as close to hfe as Ipossibly can becauseithink that's disingenuous (emphasis added). They want you to go back and review these sentences in light of what the case law actually is and consider it reasonable and rationally in light of Graham, not just try to get as close to life as you possibly can. And consider the factors of the case and consider the age of the individual, that he was a young man. I have done that. I've taken into account the circumstances in not only this case, but what transpired as far as Brevard County only as a bench mark to use that for considering that this was not a random event. Ifthis was a random event, I think it would be a much different situation asfar as how I could consider this, but this was a situation where he's chosen this hfe, and he's decided this way to live, andi think it's appropriate that the original sentence still could be imposed (emphasis added). You needed to go away for life, that was my intention. I wanted you to spend the rest of your life in prison. I wanted you to die within the prison walls, never to be released to terrorize other people, that was my intention. They decided that that's not appropriate because you were seventeen years old, they are correct in that sense, and I abide by their decision, and I agreed with them, but nonetheless, an appropriate sentence should be meted out in this particular situation." This court then imposed a sentence of sixty-five years on each count, to be run concurrent with each other (R 57). Defense counsel did not object to the new 2

6 sentence. On direct appeal to the Fifth District Court of Appeal, Petitioner contended that his 65 years prison sentence for a non-homicide offense amounted to a de facto life sentence and violated the prohibition against cruel and unusual punishment for juveniles sentenced to life in prison, without parole, under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). On September 23, 2014, the Fifth District Court of Appeal issued aper curiam decision affirming Petitioner's judgments and sentences, citing Henry v. State, 82 So.3d 1084 (Fla. 58' DCA 2012). A copy of the decision at issue from the Fifth District is attached as an appendix. Petitioner filed a timely notice to invoke the discretionary jurisdiction of this Court on September 23, This brief follows. 3

7 SUMMARY OF THE ARGUMENT Where a district court of appeal cites as controlling authority for its affirmance, a decision of a district court of appeal which is currently pending review in this Court, this Court has jurisdiction to accept the case for review. 4

8 ARGUMENT THIS COURT HAS DISCRETIONARY JURISDICTION TO ACCEPT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL BELOW FOR REVIEW UNDER JOLLIE v. STATE, 405 So. 2d 418 (Fla. 1981). Petitioner raised below on appeal a constitutional violation of cruel and unusual punishment that his sentence of 65 years prison amounted to a defacto life sentence without parole under the United States Supreme Court decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Finh District Court of Appeal issued an opinion in the instant case on September 23, 2014, affirming Petitioner's sentence and thereby rejecting his Graham challenge to his sentence. In doing so, the Fifth District cited to and relied on another decision from the Fifth District in Henry v. State, 82 So. 3d 1084, 1089 (Fla. 5* DCA 2012), review granted, 107 So.3d 405 (Fla. 2012) (Florida Supreme Court Case SC12-578), wherein the Fifth District held there was no Graham violation for that defendant's "term of years" aggregate sentences. Henry is currently pending in this Court. In Jollie v. State, 405 So. 2d 418 (Fla. 1981), this Court held that a district court of appeal opinion, which cites as controlling authority a decision that is either pending review in or has been reversed by the Supreme Court, continues to 5

9 constitute primafacie express conflict and allows the Supreme Court of Florida to exercise its jurisdiction. This Court continues to adhere to the Jollie principle. See Jackson v. State, 64 So. 3d 1209 (Fla. 2011). Therefore, this Honorable Court has the jurisdiction to accept the instant case for discretionary review. 6

10 CONCLUSION Based on the foregoing reasons and authorities cited herein, this Honorable Court should accept the instant case for review, quash the decision of the Fifth District Court of Appeal, and remand with instructions to resentence the Petitioner in conformity with Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Respectfully submitted, JAMES S. PURDY PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT (aata R ifracá CRAIG R. ATACK ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO Seabreeze Boulevard, Suite 210 Daytona Beach, Florida (386) Atack.craig@pd7.org COUNSEL FOR PETITIONER 7

11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been ed to the Office of the Attorney General, 444 Seabreeze Blvd., 5* Floor, Daytona Beach, Florida, 32118, crimappdab@myfloridaleaal.com and mailed to Timothy Harris, DOC #E12300, Dade Correctional Institution, S.W. 377* Street, Florida City, FL 33034, on this 2"d day of October, CERTIFICATE OF FONT I HEREBY CERTIFY that the size and style of type used in the brief is 14 point proportionally spaced Times New Roman. (PM R AtacA CRAIG R. ATACK ASSISTANT PUBLIC DEFENDER 8

12 IN THE SUPREME COURT OF FLORIDA TIMOTHY HARRIS, Petitioner, v. Case No. SC STATE OF FLORIDA, Respondent. APPENDIX

13 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT TIMOTHY HARRIS, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appellant, v. Case No. 5D STATE OF FLORIDA, Appellee. Opinion filed September 23, 2014 Appeal from the Circuit Court for Seminole County, Kenneth R. Lester, Jr., Judge. James S. Purdy, Public Defender, and Craig R. Atack, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. Henry v. State, 82 So. 3d 1084 (Fla. 5th DCA 2012), review granted, 107 So. 3d 405 (Fla. 2012). TORPY, C.J., EVANDER and COHEN, JJ., concur.