SUPREME COURT OF FLORIDA

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1 PROVIDED TO MARTIN CORRECTIONAL INSTITUTION FOR MAILING INTHE SUPREME COURT OF FLORIDA JOSEPH CARBONE, Petitioner, v. STATE OF FLORIDA, Respondent. Case No.: LT No.: 4D On Review from the District Court of Appeal Fourth District State of Florida PETITIONER'S JURISDICTIONAL BRIEF Submitted By: Joseph Carbone # Martin Correctional Institution 1150 S.W. Allapattah Road Indiantown, Florida 34956

2 TABLEOFCONTENTS Item Page No. TABLE OF CITATIONS...ii STATEMENT OF THE FACTS... 1 SOUMMARYF THE ARGUMENT... 2 OJ SDICTI N SATTE NT ,....,... THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE V. DIGUILIO, 491 SO.2D 1129 (FLA. 1986) COSION CLU N...5 CERSTIFI CATE O ERCVIE CERTIFICATEOFFONTCOMPLIANCE...6

3 TABLE OF CITATIONS Cases Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)... 4 State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)...3, 5 Other Authorities Article V, 3(b)(3), Fla. Const. (1980)...3 Fla.R.App.P (a)(2)(A)(iv)...3 Fla.R.App.P (a)

4 STATEMENT OF THE FACTS Petitioner, Joseph Carbone, was charged by information with attempted burglary of a dwelling (count one) and possession of burglary tools (count two). Petitioner's motion for judgment of acquittal was denied, as was the renewed motion in trial. During the course of trial, Deputy Gibson testified ad naseum to the burglary tools. The State utilized this to paint the Petitioner as a professional burglar to bolster the case on the attempted burglary of a dwelling. Andrew Jansky testified that Petitioner came to his door and lightly tapped on it. He saw the man leave the door, return to his car, take out a white handkerchief, walk back to the door and try to open the door. Jansky dressed and open the door quickly and startled the Petitioner. Petitioner asked if Carol Peterson lived there. Jansky said she did not, and Petitioner said that he had been told to come to the end at 1278 and pointed to a plaque with Jansky and Jansky told Petitioner that he had the wrong house, but there might be another 1278 in the development because this road ran through the community until it ended. Petitioner turned and walked to his car. j Jansky, a real estate agent, accessed MLS to fmd no Carol Peterson in the neighborhood. He called the police to report a suspicious person.

5 After the arrest, Sheriff's deputies brought the Petitioner to Jansky where Janksy identified him while he sat in a patrol car. Jansky testified to no 'for sale' signs being allowed in the development; that he did not actually see the Petitioner touch the handle with the handkerchief; that he did open the door "aggressively" startling the Petitioner. Jansky agreed that an individual would have to contact either a realtor or the association to get the exact address of a property for sale in the development. Petitioner told Deputy Gibson that he was looking for vacant houses and a house for sale. Not trusting his reasons, she searched the Petitioner finding "what we consider burglary tools." Petitioner went to trial where he was found guilty of attempted burglary of a dwelling and possession of burglary tools. After review from the Fourth District Court of Appeal, the burglary tools conviction was reversed, though the attempted burglary was affirmed. The denial of rehearing was made final by mandate on November 16, 2012, and the Petitioner's notice to invoke the discretionary jurisdiction of this Court was timely filed on December 14, SUMMARY OF THE ARGUMENT The District Court erred in affirming the attempted burglary when the State's case at trial depended on the foundation of Gibson's testimony that implements

6 found were burglary tools to prove Petitioner was at the residence with intent to commit a crime. The jury would not have found Petitioner guilty of attempted burglary without the prejudicial test of burglary tools to improperly contradict the Petitioner's reasonable hypothesis of innocence, expressly and directly conflicting with this Court's decision of State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). JURISDICTION STATEMENT The Florida Supreme Court has discretionary jurisdiction to review decisions of the Fourth District Court of Appeals that expressly and directly conflict with a decision of the Supreme Court or another District Court of Appeal on the same point of law. Article V, 3(b)(3), Fla. Const. (1980); Fla.R.App.P (a)(2)(A)(iv). ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE V DIGUILIO, 491 SO.2D 1129 (FLA. 1986). The District Court affirmed the conviction for attempted burglary after reversing the conviction for burglary tools. As explained below, the District Court conflicts with a decision of this Court holding that overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached, for the jury may have reached its 3

7 verdict because of the error without considering other reasons untainted by error that would have supported the same result. The Petitioner respectfully submits that this Court should grant discretionary review and resolve the conflict by quashing the decision of the District Court. In the decision of the District Court, styled as Joseph Carbone v. State of Florida (Fla. 4th DCA 2012) (Appendix A), the initial decision of the trial court was reversed to burglary tools but affirmed to attempted burglary of a dwelling because: If the dead bolt had not been locked, Carbone would have been able to open the door. The District Court expressly failed to consider the prejudicial effect of the error of allowing the burglary tools to influence the charge of attempted burglary of a dwelling. In the State v. DiGuilio, 491 So.2d 1129 (Fla. 1986), this Court agreed with and quoted Chief Justice Traynor in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) in the above quote given in 136. As to whether the error of admitting burglary tools was so harmless as to remain moot on their prejudicial and minimally probative value, DiGuilio further stated: "The harmless error test, as set forth in Chapman, and progeny, places the burden on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not 4

8 contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. This Court correctly foresaw that reasonable fairness in trial requires diligence of the courts, and gave proper awareness to the district courts to be on alert to protect this right. The Court should now reaffirm this decision by accepting discretionary review and quashing the contrary decision of the district court below. CONCLUSION This Court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the merits of Petitioner's arguments. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petitioner's "Jurisdiction Brief" and Appendix in Support has been furnished by first class U.S. Mail to: Attorney General Office, PL-01, The Capitol, Tallahassee, FL on this / ct day of December, seph arbone EC'D DE C Petitionerpro se Martin Correctional Institution 1150 S.W. Allapattah Road Indiantown, Florida

9 CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the foregoing Jurisdiction Brief of Petitioner is formatted in Times New Roman 14 Point Font in compliance with Fla.R.App.P (a). Jo h C rbone

10 IN THE SUPREME COURT OF FLORIDA JOSEPH CARBONE, Petitioner, v. Case No.: LT No.: 4D STATE OF FLORIDA, Respondent. / APPENDIX Submitted By: Joseph Carbone Martin Correctional Institution 1150 S.W. Allapattah Road Indiantown, Florida

11 HAZOURI, J. DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2012 JOSEPH CARBONE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D [September 27, 2012] Joseph Carbone appeals from his convictions for attempted burglary of a dwelling and possession of burglary tools. We affirm the conviction for attempted burglary but reverse the conviction for possession of burglary tools. The state failed to present sufficient evidence to support the charge of possession of burglary tools. At the time of the attempted burglary the homeowner observed Carbone approach the front door and lightly tap on the door. After tapping, the homeowner observed Carbone walking back to his car. At that point the homeowner believed that Carbone was leaving, but instead saw Carbone open the back driver's side door of his car and reach into the back for "some sort of bag and got out a white handkerchief." Carbone then walked back to the front door and the homeowner observed Carbone use the handkerchief to try to open the door. The door had a single deadbolt plus a door handle which on the outside was a handle which you grasp and push the button down, which is what Carbone did with the handkerchief. If the deadbolt had not been locked, Carbone would have been able to open the door. The homeowner became upset and approached the front door to confront Carbone. The homeowner asked if he could help him and what he was doing at his front door. Carbone seemed stunned and caught off guard. Carbone quickly put the handkerchief in his right pocket and then advised the homeowner that he was looking for a person named Carol Peterson, whose address was 1278, the same address of the homeowner. The homeowner told Carbone that no one named Carol

12 Peterson lived at this address. Furthermore, on the wall next to the front door was the street number with a plaque which identified the last name of the homeowner which was not Peterson. At that point, Carbone returned to his car and drove away. Becoming suspicious of Carbone, the homeowner contacted law enforcement who ultimately arrested Carbone near the exit from the homeowner's development. During the search pursuant to the arrest they found tools in the back seat of the car and in a fanny pack which the state claims were burglary tools. Carbone was charged with possession of burglary tools under section , Florida Statutes (2009). That section states: "Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree...." In order to prove the crime of possession of burglary tools, the state must prove that (1) the defendant intended to commit a burglary or trespass; (2) the defendant had in his possession a tool, machine, or implement that he intended to use, or allow to be used, in the commission of the burglary or trespass; and (3) the defendant did some overt act toward the commission of a burglary or trespass. Fla. Std. Jury Inst. (Crim.) In Thomas v. State, 531 So. 2d 708 (Fla. 1988), the supreme court held: Where a person is accused of possessing "burglary" tools, the state must prove beyond every reasonable doubt not merely that the accused intended to commit a burglary or trespass while those tools were in his possession, but that the accused actually intended to use those tools to perpetrate the crime. The statute is specific on this point: Thus, the statute criminalizes the intent to use an item in an illegal way. Mere possession standing alone will not constitute a crime. Id. at 709. "No crime is committed until the [tools] are in the actual or constructive possession of a person who is using or attempting to use the objects as burglary tools." Id. at 711 n. 5 (quoting State v. Thomas, 362 So. 2d 1348, 1350 (Fla. 1978)). 2

13 In Burke v. State, 672 So. 2d 829 (Fla. 1st DCA 1995), the defendant was charged with attempted burglary of a structure and possession of burglary tools. While closing a restaurant at 10:30 P.M., a restaurant manager saw the defendant drive by. Five to ten minutes later, he drove by again with his car lights off. A short time later, an employee called the assistant.manager to the rear of the building where the defendant was standing on crates with his hands raised and reaching toward the roof. The defendant said he was looking for food. He walked toward the assistant manager and then turned and ran. The police were called. Because it had been such a short time since the defendant drove away and then walked to the restaurant, his car was located at a motel as little as two blocks away or as much as a half mile away. Inside the car there was a cutting torch, crow bars, pliers, and bolt cutters. The defendant was found and arrested forty-five minutes later. At the close of the state's case, the defense moved for judgment of acquittal on the possession of burglary tools charge arguing that the evidence failed to establish that the tools were in his immediate possession because they were a half mile from the structure to be burgled. In reversing the conviction, the First District first stated that "[s]uch proof necessarily requires a showing that appellant had the ability to use the items alleged to be burglary tools to perpetrate the burglary or trespass." Id. at 831. The court concluded: The evidence in this case is clear that appellant was not using or attempting to use the items in his automobile as burglary tools when he engaged in the conduct for which he subsequently was convicted, nor is there anything in the record to support an inference that he had the ability to do so in perpetration of a burglary or trespass... The record is devoid of evidence that appellant had any of the items in question available to him when he was observed reaching toward the roof of the restaurant. Id. at The state failed to present sufficient evidence to support Carbone's conviction for possession of burglary tools. According to the homeowner, the only item that Carbone possessed when he approached the house was a handkerchief. There was no evidence presented that Carbone was using or attempting to use the items in the car or in the fanny pack as burglary tools at the time he was attempting to commit the burglary. The state failed to prove that the crime of possession of burglary tools was committed. We reverse the denial of Carbone's motion for judgment 3

14 of acquittal on the charge of possession of burglary tools and direct the trial court to vacate that conviction. Affirmed in Part, Reversed in Part, and Remanded for Further Proceedings. WARNER and CIKLIN, JJ., concur. * * * Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert L. Pegg, Judge; L.T. Case No CF1537A. Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee. Not final until disposition of timely filed motion for rehearing. 4

15 M A N D A T E from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion; YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida. WITNESS the Honorable Melanie G. May, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day. DATE: November 16, 2012 CASE NO.: 4D COUNTY OF ORIGIN: T.C. CASE NO.: Indian River CF1537A STYLE: JOSEPH CARBONE v. STATE OF FLORIDA COURT. ARil'YN BEUTTENMULLER, clerk Fourth District Court ofappeal OF ORIGINAL TO: cc: Public Defender-P.B. Jeffrey R. Smith, Clerk Attorney General-W.P.B. sp