IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. SC (4th DCA Case No. 4D ) RICHARD MUCCIO, Petitioner, vs.

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC (4th DCA Case No. 4D ) RICHARD MUCCIO, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION BILL MCCOLLUM Attorney General Tallahassee, Florida Bureau CELIA A. TERENZIO Assistant Attorney General Chief, West Palm Beach Florida Bar No MELYNDA L. MELEAR Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES.... iii PRELIMINARY STATEMENT STATEMENT OF THE CASE AND FACTS SUMMARY OF THE ARGUMENT ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS CITED BY PETITIONER. CONCLUSION CERTIFICATE OF SERVICE.....8

3 TABLE OF AUTHORITIES CASES Cordes v. State, 842 So. 2d 874 (Fla. 2d DCA 2003) Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 4 Gaskin v. State, 737 So. 2d 509 (Fla. 1999) Greene v. Massey, 384 So. 2d 24, 27 (Fla. 1980) Lang v. State, 826 So. 2d 433 (Fla. 2d DCA 2002) Mancini v. State, 312 So. 2d 732 (Fla. 1975)... 4 Rameriz v. State, 854 So. 2d 805 (Fla. 2d DCA 2003) Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986) The Florida Bar v. B.J.F., 530 So. 2d 286 (Fla. 1988)... 4 Other Authorities Cited Article V, section 3(b)(3) of the Florida Constitution.... 4

4 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 Honorable Court except that Petitioner may also be referred to as the State. In this brief, the symbol "A" will be used to denote the appendix attached hereto. All emphasis in this brief is supplied by Respondent unless otherwise indicated. 1

5 STATEMENT OF THE CASE AND FACTS Respondent moves to strike Petitioner s Statement of the Case and Facts, or at the very least requests this court to disregard the facts given in Petitioner s statement that are not contained within the opinion. In the Fourth District s opinion, the court limited its facts to a brief summary of the victim s allegations against Petitioner (A.). In a jurisdictional brief, the only facts that may be referenced are those referred to in the majority opinion. See Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986)(only relevant facts are those contained within the four corners of the opinion); Greene v. Massey, 384 So. 2d 24, 27 (Fla. 1980)(majority opinion constituted the only opinion of the court). The Fourth District stated in its opinion that Petitioner filed a motion, that the trial court granted the request for an evidentiary hearing and appointed counsel, that Petitioner s counsel adopted Petitioner s pro se amended motion, that after the hearing but before the ruling Petitioner filed a second amendment to the motion, and that the trial court denied the original motion and amendment but did not address the second amendment (A. 2). The Fourth 2

6 District agreed that the second amendment was a nullity since counsel did not adopt it and Petitioner filed it pro se despite having counsel (A. 2). The Fourth District also found that Petitioner was not prejudiced by counsel s failure to dismiss a count for failure to meet notice requirements (A. 2). It determined that there was substantial competent evidence to support the trial court s rejection of Petitioner s claim that he would not have pled to the offenses if he had known that the count could be dismissed (A. 2). It explained that Petitioner, a thirteentime convicted felon, was offered a package deal of fifteen years imprisonment on all three counts pending against him even though he faced thirty years as a habitual offender on one of the counts that would not be dismissed (A. 2). 3

7 SUMMARY OF ARGUMENT The opinion of the district court is not in direct and express conflict with the decisions cited by Petitioner. Petitioner has failed to show that this court has jurisdiction to review the opinion of the district court. This court should decline to review this cause on the merits. 4

8 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS CITED BY PETITIONER. This Honorable Court has authority pursuant to Article V, Section 3(b)(3) of the Florida Constitution (1980) to review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. See The Florida Bar v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988). This Court in Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975) made it clear that its jurisdiction to review decisions of courts of appeal because of alleged conflicts is invoked by (1) the announcement of a rule of law to produce a different result in a case which conflicts with a rule previously announced by this court or another district, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same facts as a prior case. In this second situation, the facts of the case are of the utmost importance. [emphasis added]. See also Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983) 5

9 ( cases which are cited for conflict that are distinguishable on their facts will not vest this Court with jurisdiction ). The State maintains that the opinion of the Fourth District in this case is not in direct and express conflict with the decisions cited by Petitioner. In Rameriz v. State, 854 So. 2d 805 (Fla. 2d DCA 2003), the defendant s appointed counsel filed and adopted the amendment in open court. Gaskin v. State, 737 So. 2d 509 (Fla. 1999) and Lang v. State, 826 So. 2d 433 (Fla. 2d DCA 2002) do not even address whether the defendants had the benefit of counsel or not, much less whether the defendants filed the amendments pro se despite being represented by counsel. The Fourth District did not find the amendment in this case to be a nullity because it was untimely, but, instead, because it was unauthorized for not being filed or adopted by counsel. Finally, in Cordes v. State, 842 So. 2d 874 (Fla. 2d DCA 2003), there is no indication that the defendant entered a plea in exchange for a package deal like the one in this case. Instead, the defendant in Cordes pled to crimes all of which might have been time barred under applicable statutes of limitation. 6

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11 CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Respondent respectfully requests this Court DENY Petitioner s request for discretionary review over the instant cause. Respectfully submitted, BILL MCCOLLUM Attorney General Tallahassee, Florida CELIA A. TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No MELYNDA L. MELEAR Assistant Attorney General Florida Bar No North Flager Drive Suite 900 West Palm Beach, FL (561) Counsel for Respondent 8

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Respondent s Brief on Jurisdiction" has been furnished to: Richard Muccio, DC #183156, Hamilton Correctional Institution, SW County Road #249, Jasper, Florida , on June 25, CERTIFICATE OF TYPEFACE MELYNDA L. MELEAR Counsel for Respondent Counsel for the Sate of Florida hereby certifies, in accordance with Rule 9.210, Florida Rules of Appellate Procedure, that the instant brief has been prepared with 12 point Courier New type. MELYNDA L. MELEAR Counsel for Respondent 9