IN THE SUPREME COURT OF FLORIDA L.T. CASE NO. 2D ROBERT RODRIGUEZ-CAYRO. Petitioner, STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA L.T. CASE NO. 2D ROBERT RODRIGUEZ-CAYRO Petitioner, v. STATE OF FLORIDA, Respondent. BRIEF ON JURISDICTION OF ROBERT RODRIGUEZ-CAYRO ON PETITION INVOKING DISCRETIONARY JURISDICTION TO REVIEW THE DECISION OF THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA A. RENEE POBJECKY, ESQ. FLORIDA BAR NO AVENUE C. S.W. WINTER HAVEN, FLORIDA TELEPHONE: (863) (863)

2 Attorney for Robert Rodriguez-Cayro TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 POINT ON APPEAL THIS COURT HAS JURISDICTION TO REVIEW RODRIGUEZ-CAYRO v. STATE, 2002 Fla. App. LEXIS (FLA 2 ND DCA OCT. 23, 2002), WHERE THE DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE OF ANOTHER DISTRICT COURT, CONSTITUTION OF THE STATE OF FLORIDA AND THE UNITED STATES CONSTITUTION. CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX i

3 AUTHORITIES CITED CASES CITED PAGE Butler v. State, 715 So.2d 339 (Fla. 4 th DCA 1998) 7-8 Combs v. State, 436 So2.d 93 (Fla. 1983) 6 State of Florida vs. Diaz. 27 Fla. L. Weekly D383 (2002) 7 Toussie V. United States, 397 U.S. 112 (1970) 6-7 United States v. Jaynes, 75 F.3d 1493 (10th Cir.1996) 7,8 FLORIDA STATUE Fla. Stat (4) 8 ii

4 STATEMENT OF THE FACTS The Petitioner, Robert Rodriguez-Cayro (hereinafter referred to as Rodriguez- Cayro ), and the alleged Victim, Lucille Chambliss (hereinafter referred to as Chambliss ), were once neighbors in Little Lake Court; Chambliss has since moved out of said neighborhood. Chambliss has accused Rodriguez-Cayro of stalking her over the course of a six (6) year period, pursuant to Fla. Stat Before the current criminal charges were brought against Rodriguez-Cayro, Chambliss on several occasions, as cited throughout her journal, sought the aid of law enforcement officers, private attorneys, and even State Attorneys. However, on each occasion, Chambliss was told that Rodriguez-Cayro had not committed any crimes since he never verbally or physically threatened Chambliss with physical violence or any other harm. Furthermore, Chambliss admits that Rodriguez-Cayro came to her house on only one occasion in 1996 to ask if they could put their differences aside and get along as neighbors. In her journal she details such activities as when Rodriguez-Cayro takes his dogs for a walk, goes on family vacations and even the names and detailed physical descriptions of the friends and family members Rodriguez-Cayro invites over to his house. Over the course of several years, Chambliss called law enforcement officers to her home on numerous occasions to file 3

5 various complaints against Rodriguez-Cayro. Chambliss admits that on these occasions she told the officers that she kept a detailed journal of all of Rodriguez- Cayro s daily activities. Despite numerous visits to his home by law enforcement agents, Rodriguez-Cayro was never reprimanded or arrested. More importantly he was never informed that his neighbor, Chambliss, was keeping a journal and that it might be in his best interest to keep a journal of his activities in the event he would one day be charged with criminal stalking. On September 27, 2000, the State Attorney for the Tenth Judicial Circuit filed an Information charging Rodriguez-Cayro with Stalking for events occurring between December 1, 1995 and September 26, 2000, inclusive. The Information states that Rodriguez-Cayro did willfully, maliciously, and repeatedly follow or harass LUCILLE CHAMBLISS, contrary to Fla. Stat , a first degree misdemeanor. Attached to the Information was a Probable Cause Narrative which cited only the following three events, all occurring in the year 2000, where Rodriguez-Cayro allegedly stalks Chambliss: 3. The Victim stated that on she was watering her front yard, when the suspect drove up, put a camera out the window and took her picture. 4. The Victim stated that on , she received a postcard from the suspect while he was on vacation. The card advised that he was heading home and that he would see her soon. 5. The Victim stated that on , the suspect yelled How Ya Doin 4

6 Lucy from the neighbors yard, then whistled at her. In addition to the Narrative, the State included a Fifty-three (53) page journal which was kept by Chambliss to document alleged incidents of stalking committed by Rodriguez-Cayro. Said journal begins with an entry date of November-December 1995 when Rodriguez-Cayro and his family moved into Chambliss neighborhood. The Petitioner, Rodriguez-Cayro, through his own investigation uncovered an Offense Incident Report made by Detective C. Hicks, dated June 26, 1996, pursuant to his investigation of complaints made by the Victim. On page 4 of said Report, Detective Hicks states that he spoke with Assistant State Attorneys K. Spoto and K. Trussle and together they determined that Rodriguez-Cayro was not stalking Chambliss and there was no criminal offense for which Rodriguez-Cayro could be charged. In fact, Detective Hicks states in his report, on page 4, that the case is closed. During a hearing, in open court, the Assistant State Attorney admitted that in 1996 and 1998 the State Attorney reviewed the allegations made by Chambliss against the Rodriguez-Cayro. However, the State Attorney on both occasions determined that the Rodriguez-Cayro was not stalking Chambliss and there was no criminal offense for which Rodriguez-Cayro could be charged. 5

7 On October 15, 2001, a Rodriguez-Cayro filed a Writ of Prohibition restraining the Honorable Mary Catherine Green, from engaging in further criminal proceedings arising from events which occurred prior to September 28, On January 9, 2002, Honorable Charles B. Curry entered an order denying Rodriguez-Cayro s Writ of Prohibition and a Notice of Appeal was timely filed on January 23, Appellant Rodriguez-Cayro appealed the decision of the Trial Court to the Second District Court of Appeal which rendered its opinion on October 23, 2002, affirming the Trial Court. SUMMARY OF THE ARGUMENT In the present case, this Court should exercise jurisdiction and grant certiorari since the Circuit Court s ruling violates a clearly established principle of law resulting in a miscarriage of justice. See, Combs v. State, 436 So2.d 93 (Fla. 1983). Failure for this Court to refuse to exercise its discretion in favor of granting certiorari in this instance would result in a miscarriage of justice because the Appellant, Rodriguez-Cayro would be forced to stand trial for alleged instances which are barred by the statute of limitations. If found guilty of misdemeanor stalking Rodriguez-Cayro would be forced to appeal his conviction and if said conviction is overturned as a result of a violation of the statute of limitations, Rodriguez-Cayro would be compelled 6

8 to withstand another trial based on the alleged instances not in violation of said statute of limitations. The Circuit Court only touched the Continuing Offense Doctrine enunciated in the United States Supreme Court s decision, Toussie V. United States, 397 U.S. 112 (1970), which provides guidance on classifying continuing offense statutes. In addition, the Circuit Court s opinion fails to address the Supreme Court s decision, United States v. Jaynes, 75 F.3d 1493 (10th Cir.1996), where the Court discusses the continuing offense doctrine and how separate offenses may be part of a common scheme without being continuing for limitations purposes. Id at In Butler v. State, the Court held that two incidents of harassment committed six months apart is insufficient to establish that the conduct was engaged in repeatedly. See 715 So.2d 339 (Fla. 4 th DCA 1998). Finally, in the State of Florida vs. Diaz. 27 Fla. L. Weekly D383 (Fla. February 13, 2002) statute is silent on the issue of continuing offenses, with no suggestion that the legislature intended to make grand theft a continuing offense. As stated above, Rodriguez-Cayro would be subjected to material injury if he is forced to stand trial for alleged acts which are in violation of the two-year statute of limitations for stalking. ARGUMENT THIS COURT HAS JURISDICTION TO REVIEW RODRIGUEZ- CAYRO v. STATE, 2002 Fla. App. LEXIS (FLA 2 ND DCA OCT. 23, 2002), WHERE THE DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH THOSE OF ANOTHER DISTRICT COURT, CONSTITUTION OF THE STATE OF FLORIDA AND THE UNITED STATES CONSTITUTION. The two (2) year statute of limitations for first degree misdemeanors prevents 7

9 the prosecution of events which occurred more than two years prior to the filing of the Information by the State. This has been affirmed by the Third District Court of Appeal in the State of Florida vs. Diaz. 27 Fla. L. Weekly D383 (Fla. February 13, 2002). In this case, Mr. Diaz was charged on May 5, 1999 with grand theft in violation of Fla. Stat for events occurring between July 7, 1994 through May 22, 1995 in connection with twenty-three invoices of payment. Id. The State contended that the twenty-three invoices were part of a common scheme or plan to defraud... and should be treated as a continuing offense within the five-year statute. Id. The State basis its argument on Fla. Stat (4) which provides: An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant s complicity therein is terminated. Time starts to run on the day after the offense is committed. However, the Third District disagreed with the State s reasoning and held that the statute is silent on the issue of continuing offenses, with no suggestion that the legislature intended to make grand theft a continuing offense. Id. In the United States Supreme Court case United States v. Jaynes, 75 F.3d 1493 (10th Cir.1996), the Court discusses the continuing offense doctrine and how separate offenses may be part of a common scheme without being continuing for limitations purposes. Id at Furthermore, in Butler v. State, the Court held that two incidents of harassment committed six months apart is insufficient to establish that the conduct was engaged in repeatedly. See 715 So.2d 339 (Fla. 4 th DCA 1998). The State contends that there was no delay in filing charges against Petitioner. However the State waited five (5) years before charging the Petitioner with misdemeanor stalking. Such delay was made by the State despite it having reviewed the evidence against Petitioner both in 1996 and The evidence further shows 8

10 that from July 1998 until April 2000 there were no instances of alleged stalking committed by Petitioner. Hence for almost two years there are no allegations of the victim being harassed or otherwise stalked by Petitioner. The state further contends that even if there had been a delay in filing charges, Petitioner would not be entitled to relief because he has failed to establish prejudice. However, the claim for prejudice is supported by substantial evidence. Such substantial evidence of prejudice consists of the inability to test the poisoned grass for the cause, inability of neighbors to pinpoint an exact year and/or month of a dry spell and a mini drought, inability of the State to furnish cigarette butts which were allegedly thrown in Victim s yard by Petitioner. Finally, as a direct result of the State s delay, the Petitioner is forced to reconstruct his activities and rely on his memory and the memories of his neighbors, family and friends to reconstruct his whereabouts and activities over the course of five (5) years. Such a burden is fundamentally unfair and certainly negates the intent of the Florida Legislature which enacted a two year limitation period for first degree misdemeanors. The State finally argues that even if the Petitioner meets the initial burden of establishing prejudices the delays in prosecuting Petitioner were reasonable, not fundamentally unfair, and did not violate Petitioner s due process rights. Yet, a delay is not reasonable when the prosecution, on two separate occasions, determined there was insufficient evidence to charge the Petitioner with stalking. By refusing to file the stalking charges within the two-year period, the State allowed evidence to become stale and/or lost, memories have faded and witnesses have moved. Furthermore, if Petitioner s alleged harassment of victim was so severe as to constitute first-degree stalking it is not reasonable to wait five years and force the victim to move from her home before filing stalking charges. Thus, the State s delay in filing charges against Petitioner violate his due process 9

11 rights under both the Florida and United States Constitution. CONCLUSION The Court is respectfully requested to accept jurisdiction. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by courier to Assistant Attorney General, 2002 North Lois Avenue, Tampa, Florida this 3 rd day of December, A. RENEE POBJECKY Counsel for Petitioner CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure and is submitted in Times New Roman 14-point font. A. RENEE POBJECKY 10