IN THE SUPREME COURT OF FLORIDA. v. Case No. SC ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA BRIAN SPAULDING, Petitioner, v. Case No. SC STATE OF FLORIDA, Re spondent. ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL ROBERT J. KRAUSS Chief-Assistant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No SUSAN D. DUNLEVY Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) Cr imapptpa@my f lor idalegal. com Susan. Dunlevy@myf loridalegal. Com C COUNSEL FOR RESPONDENT

2 TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT WHETHER PETITIONER HAS FAILED TO ESTABLISH THAT CONFLICT EXISTS BETWEEN THE INSTANT DECISION AND A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT ON THE ISSUE OF WHETHER THE TRIAL COURT CORRECTLY REFUSED TO ADMIT COMMON LAW CERTIORARI LIES TO REVIEW A TRIAL COURT'S ORDER DENYING A MOTION FOR CLARIFICATION OF A LAWFUL AND DIS-- CRETIONARY ORDER CONCLUSION...6 CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE

3 TABLE OF CITATIONS Banks v. State, CASES 732 So. 2d 1065 (Fla. 1999)...4 Belair v. Drew, 770 So. 2d 1164 (Fla. 2000)...passim Fulton v. State, 66 So. 3d 950 (Fla. 3d DCA 2011)...passim Spaulding v. State, 69 So. 3d 287 (Fla. 2d DCA 2011)...5 Spaulding v. State, 93 So. 3d 473, (Fla. 2d DCA 2012)...1,3 C CONSTITUTIONAL PROVISIONS AND RULES Article V, Section 3, Florida Constitution...2 Rule 9.030, Florida Rules of Appellate Procedure

4 STATEMENT OF THE CASE AND FACTS The opinion of the Second District Court of Appeal, Spaulding v. State, 93 So. 3d 473 (Fla. 2d DCA 2012), a copy of which is appended hereto, outlines the relevant facts at this stage of the proceedings. SUMMARY OF THE ARGUMENT Petitioner seeks discretionary review in this case based on asserted conflict between the decision in the instant case and the decisions in Fulton v. State, 66 So. 3d 950 (Fla. 3d DCA 2011), and Belair v. Drew, 770 So. 2d 1164 (Fla. 2000). However, the instant decision involves the denial of a writ of common law certiorari to review a trial court order denying a motion for clarification of a lawful discretionary order denying a motion to reduce Petitioner's prison sentence, while the Fulton case involves a direct appeal, not common law certiorari, and the Belair case, a civil case, addresses the issue of whether an order constituting an alleged continuing violation of constitutional privacy rights during the trial court proceedings can be reviewed by a district court of appeal interlocutorily via common law certiorari. No conflict between the instant decision and either of these cases is discernible. Petitioner has therefore failed to establish that conflict exists between the instant decision and a decision of this Court or another district court on the issue he is complaining about, and this Court should, accordingly, deny review in this case. 1

5 ARGUMENT PETITIONER HAS FAILED TO ESTABLISH THAT CON- FLICT EXISTS BETWEEN THE INSTANT DECISION AND A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT ON THE ISSUE OF WHETHER COMMON LAW CER- TIORARI LIES TO REVIEW A TRIAL COURT'S ORDER DENYING A MOTION FOR CLARIFICATION OF A LAWFUL AND DISCRETIONARY ORDER DENYING A SENTENCE REDUCTION. The parameters of this Court's discretionary jurisdiction are set forth in Article V, Section 3 of the Florida Constitution and Rule (a) (2), Florida Rules of Appellate Procedure. Petitioner asserts that the decision below expressly and directly conflicts with a decision of another district court of appeal and/or with a decision of this Court and that this Court therefore has discretionary jurisdiction in the instant case pursuant to Rule (a) (2) (A) (iv). Respondent disagrees. What case was the Second District Court of Appeal held in the instant that Petitioner was not entitled to clarification by the trial court of its order denying Petitioner's motion for reduction of his sentence on revocation of his probation because the trial court's order denying a reduction in Petitioner's sentence was sufficiently clear: Orders on motions to modify or reduce sentences are often very short and usually contain little reasoning to explain the basis for the denial. We decline to use our certiorari power to order this trial court to better explain its ruling. In this case, the trial court's reasoning is evident. 2

6 ...it is not obvious to this court that the trial court's order was based on any departure from the essential requirements of the law. In the order, the trial court appears to be explaining that it knew there were grounds for a downward departure because it had already granted such a sentence. The trial court's decision appears to be based on its conclusion that Mr. Spaulding had been given an opportunity for a lesser sentence, but having squandered that opportunity by violating his probation, there was little justification to give him a second chance at a reduced sentence. That decision is one within the trial court's discretion, and we have no basis to quash it in this proceeding. Spaulding v. State, 93 So. 3d 473, (Fla. 2d DCA 2012). Petitioner seeks discretionary review in this case based on asserted conflict between the decision in the instant case and the C decisions in Fulton v. State, 66 So. 3d 950 (Fla. 3d DCA 2011), and Belair v. Drew, 770 So. 2d 1164 (Fla. 2000). Neither of these cases suggests that a writ of certiorari can be issued to require clarification of a lawful order by a trial judge that is within that judge's discretion and that does not depart from the essential requirements of the law. C 3

7 Belair addressed the question of whether common certiorari could be used to interlocutorily review a challenge to the constitutionality of a state statute where one of the parties' constitutional right to privacy might be abridged by the continuance of the proceedings below and where, therefore, any such abridgement could not be remedied on appeal from the final disposition of those proceedings. Here there is no constitutional issue; the trial court's ruling is supported by the settled law that, assuming that there are valid legal grounds for a downward departure sentence (as the trial court found that there were in departing downward in sentencing Petitioner originally), the decision whether to depart downward "is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion," Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999); and the petition for writ of certiorari did not seek review of an interlocutory order. How the decision below conflicts with Belair Petitioner does not make clear. Petitioner's reliance on Fulton for conflict with the Second District's decision below is even more confusing. Fulton was a direct appeal, not a petition for writ of common law certiorari to review a refusal to depart downward on a motion for sentence reduction following affirmance on direct appeal of a revocation of probation and the prison sentence imposed on revocation. How it relates to a certiorari petition is not shown by Petitioner. 4

8 It does appear, however, that Petitioner may be relying on Fulton for the proposition that a criminal defendant should not be penalized for failing to do something that he was not able to do at the relevant time and that Petitioner is suggesting that his violation of probation was unintentional and therefore not willful-see p. 2 of Petitioner's jurisdictional brief. But that issue was not before the Second District in this case and therefore cannot possibly be before this Court now. Rather, that issue was vigorously litigated both at the probation revocation hearing in the trial court and in the Second District on direct appeal. It has never been disputed in Petitioner's case that, if a violation of probation is not willful, the probation cannot be revoked based on that violation. Unfortunately for Petitioner, the trial court found that Petitioner's violation was willful, and the Second District, in affirming the revocation of Petitioner's probation, Spaulding v. State, 69 So. 3d 287 (Fla. 2d DCA 2011), must have concluded that this finding by the trial court was supported by the record. Thus, the decision below does not conflict with Belair, Fulton, or any other decision of this Court or another district court of appeal. Because the decision below does not expressly and directly conflict with a decision of this Court or another district court of appeal, C 5 there is no basis for this Court to exercise its discretionary jurisdiction in Petitioner's case. Accordingly, this Court

9 should deny review. CONCLUSION Respondent respectfully requests that this Court deny review in the instant case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by to Michael. R.N. McDonnell at @mctrial.com this 16th day of October, CERTIFICATE OF FONT 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). Respectfully submitted, PAMELA JO BONDI AT Y GENE RO ERT KMAUSS Chief-A istant Attorney General Bureau Chief, Tampa Criminal Appeals Florida Bar No /^ /M A+1 1r-7 / ŠÛSAIT D. DUNLEVY Ass1stant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) CrimAppTpa@myfloridalegal.com Susan.Dunlevy@myfloridalegal.com COUNSEL FOR RESPONDENT

10 Page 1 of 4 WeÑaw. 93 So.3d 473, 37 Fla. L. Weekly D1730 Page 1 (Cite as: 93 So.3d 473) H 350HXII(A) In General District Court of Appeal of Florida, 350Hk2232 k. Discretion of court. Most Second District. Cited Cases Brian SPAULDING, Petitioner, Motions for correction, reduction, and modificv. ation of sentence are subject to the trial court's dis- STATE of Florida, Respondent. cretion. West's F.S.A. RCrP Rule 3.800(c). No. 2D July 20, Background: Petitioner sought certiorari relief from sentence imposed by the Circuit Court, Collier County, Franklin G. Baker, J., following conviction for lewd and lascivious molestation and sexual battery for conduct involving an adopted child. Holding: The District Court of Appeal, Altenbernd, J., held that trial court did not abuse its discretion in refusing to impose downward departure sentence. Denied. West Headnotes [1] Criminal Law 110 => Criminal Law 110XXIV Review 110XXIV(A) Nature and Form of Remedy 110kl006 Proper Mode of Review 110kl011 k. Certiorari. Most Cited Cases Although denial of motions for correction, reduction, and modification of sentence is not appealable, some trial court errors that occur when considering such motions may be reviewed by petition for writ of common law certiorari. West's F.S.A. RCrP Rule 3.800(c). [2] Sentencing and Punishment 350H >> H Sentencing and Punishment 350HXII Reconsideration and Sentence Modification of [3] Sentencing and Punishment 350H => H Sentencing and Punishment 350HXII Reconsideration and Modification of Sentence 350HXII(C) Proceedings 350HXII(C)3 Hearing and Determination 350Hk2302 k. In general. Most Cited Cases Subido two-step process for determining whether downward departure is warranted is not required when considering motions for correction, reduction, and modification of sentence. West's F.S.A. RCrP Rule 3.800(c). [4] Sentencing and Punishment 350H => H Sentencing and Punishment 350HIV Sentencing Guidelines 350HIV(F) Departures 350HIV(F)3 Downward Departures 350Hk870 k. Other particular grounds. Most Cited Cases Trial court did not abuse its discretion in refusing to impose downward departure sentence on defendant who was convicted of lewd and lascivious molestation and sexual battery for conduct involving an adopted child, where he was initially sentenced due to mitigating circumstances to sex offender probation, which defendant violated. [5] Criminal Law 110 => Criminal Law 110XXIV Review 110XXIV(A) Nature and Form of Remedy 110kl006 Proper Mode of Review 110kl011 k. Certiorari. Most Cited 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 10/15/2012

11 Page 2 of 4 93 So.3d 473, 37 Fla. L. Weekly D1730 (Cite as: 93 So.3d 473) Page 2 Cases Court of Appeals will typically limit certiorari review of orders denying relief under rule allowing motions for correction, reduction, and modification of sentence to errors involving jurisdiction, violations of due process, patent applications of the wrong law, and other clear deprivations of constitutionally guaranteed rights. West's F.S.A. RCrP Rule 3.800(c). *473 Michael R.N. McDonnell of McDonnell Trial Law, Naples, for Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Respondent. ALTENBERND, Judge. Brian Spaulding files a petition for writ of certiorari seeking review of the trial court's order denying his motion for reduction or modification of sentence under Florida Rule of Criminal Procedure 3.800(c). We conclude that Mr. Spaulding is not entitled to relief under the limited review available by certiorari for such discretionary rulings. In September 2009, Mr. Spaulding pleaded guilty to lewd and lascivious molestation and sexual battery for conduct involving an adopted child. Allegedly as a result of mitigating circumstances, the trial court placed Mr. Spaulding on sex offender probation. Mr. Spaulding violated probation in July The trial court *474 sentenced him to months' incarceration at a sentencing hearing on July 15, This court affinned the order revoking probation and the resulting sentence in Spaulding v. State, 69 So.3d 287 (Fla. 2d DCA 2011) (table decision). In this certiorari proceeding, Mr. Spaulding admits that months' incarceration was the minimum sentence authorized by the Criminal Punishment Code and that the trial court could not impose a shorter sentence at the sentencing hearing unless that sentence was an authorized downward depar- ture. Our record contains the transcript of the sentencing hearing. No evidence was presented at the hearing, but counsel and the court had a discussion about the possibility of a downward departure sentence. The trial court expressed doubt at the hearing as to its authority to grant a downward departure sentence. Ultimately, the court imposed the minimum guidelines sentence explaining: The Court is going to revoke, terminate probation and readjudicate you and sentence you to the minimum under the guidelines. You have 60 days-i maintain jurisdiction for 60 days to mitigate if you can give me lawful reasons why I should-why I should consider it. As stated above, Mr. Spaulding appealed this ruling. Our record from the direct appeal reflects that Mr. Spaulding did not raise a sentencing issue in that appeal. Once jurisdiction returned to the trial court, Mr. Spaulding accepted the trial court's offer to consider the issue of a downward departure by filing a motion to reduce or modify sentence under rule 3.800(c). The motion alleged various grounds for a downward departure. The accompanying memorandum explained that granting a downward departure sentence was a two-step process by which the court first decides whether there is a legal ground for a departure that is supported by competent, substantial evidence. If such a ground exists, in the second step the trial court exercises sound discretion under the totality of the circumstances to either grant or deny the request for a downward departure sentence. See Banks v. State, 732 So.2d 1065, 1067 (Fla.1999); State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006). The trial court entered an order denying the motion, finding that it had jurisdiction to rule on the motion, but concluding that because the original term of probation was a downward departure, it was denying any reduction in the current sentence. Thereafter, the trial court denied a motion to clarify this order, and Mr. Spaulding filed this timely peti Thomson Reuters. No Claim to Orig. US Gov. Works. 10/15/2012

12 Page 3 of 4 93 So.3d 473, 37 Fla. L. Weekly D1730 (Cite as: 93 So.3d 473) Page 3 tion for writ of certiorari. It is well established that an order denying a motion under rule 3.800(c) is not appealable. See Pillajo v. State, 60 So.3d 565, 566 (Fla. 2d DCA 2011); Smith v. State, 471 So.2d 1347, 1348 (Fla. 2d DCA 1985); "» Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968). FN1. Note that in 1985 when Smith was decided, what is now Florida Rule of Criminal Procedure 3.800(c) was rule 3.800(b). Rule 3.800(b) became rule 3.800(c) effective July 1, See Amendments to Fla. R. App. P (g) & Fla. R. Crim. P , 675 So.2d 1374, 1375 (Fla.1996). FN2, Although the case law holding that orders denying motions filed pursuant to Florida Rule of Criminal Procedure 3.800(c) is without conflict, it may be worthy of reexamination. The current rule began its life in Florida in 1961 as section , Florida Statutes (1961). See Ch , 2, Laws of Fla. It was modeled on the version of Federal Rule of Criminal Procedure 35 that existed at that time. Under the appellate rules prior to 1977, there was no provision for appeals from orders entered after final judgment in criminal cases. See rules 4.2 and 6.2 of the Florida Appellate Rules (1962 Revision). Since 1977, the Florida Rules of Appellate Procedure have contained a rule allowing for appeal of "orders entered after final judgment" in criminal cases. See Fla. R.App. P (b)(1)(D) (formerly rule 9.140(b)(1)(C)). It is arguable that orders denying motions filed pursuant to rule 3.800(c) are now appealable. But even if that were true, any discretionary ruling by the trial court would be subject to review only for an abuse of discretion. See, e.g., United States v. Lacey, 661 F.2d 1021, 1022 (5th Cir.1981) ("Further, insofar as the defendant complains of the trial court's denial of a reduction of sentence, under Fed.R.Crim.P. 35 such a motion is addressed to the discretion of the trial judge, and it will be reversed on review only for illegality or a gross abuse of discretion."); United States v. Yates, 553 F.2d 502, (5th Cir.1977). In this case, however, we do not recede from our case law holding that these orders may be reviewed only by petition for writ of certiorarl. [1][2] The appellate courts, however, have recognized that some trial court errors that occur when considering rule 3.800(c) motions may be reviewed by petition*475 for writ of common law certiorari. See Kwapil v. State, 44 So.3d 229, 230 (Fla. 2d DCA 2010); Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996). These motions are subject to the trial court's discretion. See Schlabach v. State, 37 So.3d 230, 237 (Fla.2010). In part because the ruling on 3.800(c) motions is discretionary, the writ of certiorari has been used sparingly to correct only a very narrow range of mistakes. Most decisions granting certiorari relief from such orders have done so because the trial court erroneously concluded that it lacked jurisdiction to consider the motion. See, e.g., Lancaster v. State, 821 So.2d 416 (Fla. 2d DCA 2002). On at least one occasion, this court has granted relief because the trial court expressly ruled that it did not have authority to modify a condition of probation in such a proceeding. See Wesner v. State, 843 So.2d 1039 (Fla. 2d DCA 2003). We have once granted certiorari relief on the State's concession because the defendant's motion was denied when he failed to attend a hearing that was not properly noticed. See Alexander v. State, 816 So.2d 778 (Fla. 2d DCA 2002). The First District has granted relief on the State's concession when the trial court erroneously treated the motion as if it were filed pursuant to rule 3.800(a). See Thomas v. State, 751 So.2d 764 (Fla. 1st DCA 2000). In that situation, the trial 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 10/15/2012

13 Page 4 of 4 93 So.3d 473, 37 Fla. L. Weekly D1730 (Cite as: 93 So.3d 473) Page 4 court simply applied the wrong law." tencing hearing, that error could have been preserved for review on direct appeal. The trial court's FN3. The Third District has reversed a willingness to reconsider the downward departure "sentence" because the trial court denied a at a hearing on a motion for modification under rule motion to mitigate. The reversal was based 3.800(c) did not transform that hearing into a on the trial court's error in relying hearsay evidence. See Fulton v. State, on 66 second sentencing hearing. So.3d 950 (Fla. 3d DCA 2011). We sus- [4] Second, it is not obvious to this court that pect that the procedural status of the case is not correctly stated in the opinion, but the trial court's order was based on any departure from the essential requirements of the law. In the the Third District would not have had ap- order, the trial court appears to be explaining that it peal jurisdiction over an order denying a knew there were grounds for a downward departure motion under 3.800(c), and such an order because it had already granted such a sentence. The is typically not reviewable on a direct ap- trial court's decision appears to be based on its conpeal of the sentence. We doubt that the er- clusion that Mr. Spaulding had been given an opror described in Fulton would have justi- portunity for a lesser sentence, but having fied relief by certiorari. We decline to ex- squandered that opportunity by violating his probapress conflict with this case, which simply tion, there was little justification to give him a appears to be poorly explained. second chance at a reduced sentence. That decision is one within the trial court's discretion, and we The question in this proceeding is whether certiorari review of orders on motions pursuant to rule have no basis to quash it in this proceeding (c) extends to a broader range of issues than [5] Accordingly, we deny this petition and those described in the preceding paragraph. The errors that have been corrected so far in these certiorwrite to emphasize that this court will typically lim- it certiorari review of orders denying relief under ari proceedings have been errors in jurisdiction, rule 3.800(c) to errors involving jurisdiction, violaclear violations of due process, and applications of tions of due process, patent applications of the what is obviously the wrong law. This case does wrong law, and other clear deprivations of constitunot appear to fall within any of these serious errors. tionally guaranteed rights. On the other hand, the State admits in this case that the trial court should have better explained its rul- Petition for writ of certiorari denied. ing and that it may have failed to follow the twostep process described in Subido. KELLY and VILLANTI, JJ., Concur. Orders on motions to modify or reduce sentences are often very short and usually contain little reasoning to explain the basis for the denial. We decline to use our certiorari power to order this trial court to better explain its ruling. In this case, the trial court's reasoning is evident. Fla.App. 2 Dist.,2012. Spaulding v. State 93 So.3d 473, 37 Fla. L. Weekly D1730 END OF DOCUMENT *476 [3] First, the two-step procedure contemplated by Subido is a procedure for use at sentencing hearings. There is no law mandating a similar process for use in hearings under rule 3.800(c). If the trial court did not adequately conduct the sen Thomson Reuters. No Claim to Orig. US Gov. Works. 10/15/2012