IN THE SUPREME COURT OF FLORIDA. v. Case No. SC STATE OF FLORIDA, DCA NO.: 2D

Transcription

1 IN THE SUPREME COURT OF FLORIDA TODD A. HATFIELD, Petitioner, v. Case No. SC STATE OF FLORIDA, DCA NO.: 2D Respondent CFANO ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL HA THU DAO Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 6 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF FONT COMPLIANCE... 6 i

3 TABLE OF CITATIONS Cases The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)... 3 Forster v. Durham, 566 So.2d 256 (Fla.1990)... 4 Hatfield v. State, 46 So.3d 654 (Fla. 2d DCA 2010)... 1 Holter v. Dohmansky, 917 So.2d 242 (Fla. 5th DCA 2005)... 1, 4 Reaves v. State, 485 So. 2d 829 (Fla.1986)... 3 Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003)... 1, 3, 4 Wainwright v. Taylor, 476 So. 2d 669 (Fla. 1985)... 3 Rules Fla. R. App. P (a)(2)... 6 Florida Rule of Civil Procedure 1.080(b)... 3 Florida Rule of Civil Procedure 1.090(e)... 1 ii

4 STATEMENT OF THE CASE AND FACTS Petitioner claims the Second District Court s opinion in Hatfield v. State, 46 So.3d 654 (Fla. 2d DCA 2010)(Appendix 1), conflicts with the status of the law on the time allotted the trial court to rule upon a motion for disqualification; he is wrong. The district court s opinion fully complies with court rules and case law and as such, this Court should not exercise jurisdiction based on conflict. Petitioner claims he filed the motion to disqualify Circuit Judge Federico by placing it in the hands of prison officials on November 5, Petitioner contends that the trial court s denial of his motion issued on December 10, 2009, violated Florida Rule of Judicial Administration 2.330(j), allowing only 30 days for the court to rule upon said motion. Since the circuit court took 35 days to rule upon his motion, the 5-day delay, argued the Petitioner, should result in his motion being deemed granted. The district court considered Petitioner s claim and issued the subject opinion holding simply that the trial court has up to 35 days to rule on a motion for disqualification under Florida Rule of Judicial Administration 2.330(c)(4) and Florida Rule of Civil Procedure 1.090(e). This holding is entirely consistent with Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003), and Holter v. Dohmansky, 917 So.2d 242 (Fla. 5th DCA 2005). 1

5 SUMMARY OF THE ARGUMENT The subject opinion rendered by the Second District Court of Appeal does not conflict with either court rules or a decision rendered by this Court. Therefore, this Court has no jurisdiction to review the district court s opinion. 2

6 ARGUMENT This Court has discretionary jurisdiction to review questions of subject matter jurisdiction, as well as a district court s opinion that "expressly and directly conflicts with the decision of another district court of appeal, or with the supreme court on the same issue of law", and where the conflict appears on the face of the opinion. Fla. Const. Art. V, sec. 3(b) (3); The Florida Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988); Reaves v. State, 485 So. 2d 829, 830 (Fla.1986). Jurisdiction is exercised only to prevent the precedential effect of a decision which is incorrect and conflict with decisions reflecting the correct rule of law. Wainwright v. Taylor, 476 So. 2d 669, 670 (Fla. 1985). The subject opinion issued by the Second District Court does not fall into this category because it reflects the correct rule of law and is consistent with this Court s mandate as well as court rules. Here, the district court started out with Tableau Fine Art Group, Inc., v. Jacoboni, 853 So.2d 299 (Fla.2003) for the basic premise that the trial court has 30 days to rule upon a motion for judicial disqualification under Florida Rule of Judicial Administration (currently rule 2.330). The same provision, however, refers to subdivision (c) which refers to Florida Rule of Civil Procedure 1.080(b) governing service by mail. The district court concluded that when service is made by mail, 5 days shall be added to the prescribed period pursuant to Florida Rule of Civil 3

7 Procedure 1.090(e)(Appendix 1). The conclusion reached by the district court is that the denial issued by the trial court on the 35 th day fully complied with the law. In Holter v. Dohnansky, 917 So.2d 242 (Fla. 5th DCA 2005), the Fifth District Court of Appeal engaged in the same analysis to arrive at the conclusion that the Judicial Administration Rule s reference to the Civil Procedure Rule invokes its application resulting in the extension of the period allowed for filing a motion to disqualify. Id. at 243. Since the Second District Court of Appeal applied the same analysis, under the same court rules, on the same question of law, and stayed consistent with Florida law, there is no conflict. Forster v. Durham, 566 So.2d 256 (Fla.1990)(where the result reached by the district court below was consistent with the analysis utilized by the supreme court in a published opinion, there was no conflict); Robinson v. State, 770 So.2d 1167(Fla.2000)(The supreme court lacked jurisdiction over conflict as to proper role of appellate courts in evaluating weight and sufficiency of newly discovered evidence, for purposes of new trial, where district courts of appeal decisions involved factually distinguishable cases, and there was no conflict). The district court s opinion does not detract from the immediacy requirement enunciated by Tableau, supra, and it does not violate the mailbox rule expressed in Haag v. State, 591 so.2d 614 (Fla.1992). The district court simply engaged in a straight 4

8 forward analysis of the rules using the date that Petitioner placed his motion in the hands of prison officials as the filing date, and held that the trial court timely issued its ruling upon Petitioner s motion for disqualification pursuant to the civil procedure rule: As such, because Hatfield served his motion by mail, the circuit court had five additional days to rule on Hatfield s motion to disqualify, or a total of thirty-five days from the date of mailing. In sum, the district court s opinion does not conflict with the rule of law set forth by this Court, or employs an analysis that is inconsistent with another district court of appeal, on the same question of law. 5

9 CONCLUSION Petitioner has failed to show any conflict or inconsistency presented by the subject opinion issued by the Second District Court of Appeal. The State therefore respectfully requests that this Honorable Court dismiss the petition. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail Todd A. Hatfield, DC# , Gainesville CI, 2845 NE 39 th Avenue, Gainesville, FL 32609, this 24 th day of February, 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 ATTORNEY GENERAL HA THU DAO Assistant Attorney General Florida Bar No Concourse Center E. Frontage Road, Suite 200 Tampa, Florida (813) Fax (813) COUNSEL FOR RESPONDENT 6