IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D FRANTZY JEAN-MARIE, Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D FRANTZY JEAN-MARIE, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF RESPONDENT ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida RICHARD L. POLIN Bureau Chief Florida Bar No OLGA VILLA Assistant Attorney General Florida Bar No Attorneys for the State of Florida Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, Florida Telephone:(305) Facsimile: (305)

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT THE DISTRICT COURT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY CASE CITED BY PETITIONER....4 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPEFACE COMPLIANCE...10 i

3 TABLE OF CITATIONS FEDERAL CASES Blockburger v. United States, 284 U.S. 299 (U.S. 1932)...6 California v. Hodari D., 499 U.S. 621 (U.S. 1991)...7 STATE CASES Burgos v. State, 865 So.2d 622 (Fla. 3d DCA 2004)... 4, 8,9 J.R.P. v. State, 942 So.2d 452 (Fla. 2d DCA Nov. 29, 2006)... 4, 7 Jean-Marie v. State, 947 So. 2d 484 (Fla. 3d DCA 2006)... 1, 2, 3 Jean-Marie v. State, 2007 Fla. App. LEXIS 2914 (Fla. 3d DCA Feb. 13, 2007)...1 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...5 Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988)...6 McCall v. State, 941 So.2d 1280 (Fla. 4DCA 2006)... 4, 8 Reaves v. State, 485 So.2d 829 (Fla. 1986)...5 Shaffer v. State, 710 So.2d 79 (Fla. 4th DCA 1998)...4 State v. Craft, ii

4 685 So.2d 1292 (Fla. 1996)...6 Stearns v. State, 645 So.2d 417 (Fla. 1994)... 5, 6 Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999)... 4, 7 RULES AND STATE STATUTES Fla. R. App. P (a)(2)(A)(iv)...4 Fla. R. App. P (a)(2) Article V, 3(b)(3), Fla. Const. (1980)...4 iii

5 STATEMENT OF THE CASE AND FACTS Petitioner, Frantzy Jean-Marie, was the defendant at the trial court and Appellant in the District Court of Appeal, Third District. Respondent, the State of Florida, was the prosecution in the trial court and the Appellee in the district court. Petitioner directly appealed his conviction following a jury trial. He raised three grounds below, but seeks jurisdictional review based on the two grounds only: (1) the trial court erred in denying Petitioner s Motion for Acquittal as to the burglary charge as there was insufficient evidence to show an underlying offense, and (2) the trial court erred in allowing the State to introduce evidence of a stolen gun. The district court rejected Petitioner s claims of error and affirmed the trial court s ruling in a written opinion. Jean-Marie v. State, 947 So. 2d 484 (Fla. 3d DCA 2006). Petitioner s Appendix A. A motion for rehearing was denied, and the district court issued a corrected opinion. Jean-Marie v. State, 2007 Fla. App. LEXIS 2914 (Fla. 3d DCA Feb. 13, 2007). The facts contained in the Third District s opinion, Jean-Marie v. State, 947 So.2d 484 (Fla. 3d DCA 2006) were, verbatim: On March 19, 2003, in the evening, Miami-Dade Robbery Intervention Unit Detectives observed a car driving with its right front headlight out in the area of Northeast 160th Street. The detectives' vehicle turned behind the subject vehicle and activated its emergency equipment to effect a stop. When the subject's car came to a stop, the passenger door opened, the defendant jumped out of the car and ran east-bound through an alley. A detective ran after him on foot. The 1

6 defendant did not stop when ordered numerous times to do so, but only looked back at the detective who was wearing a polo shirt and vest with the word "police" written all over them. The defendant continued running away from the detective, and dove head first over a fence into the backyard of a residence. The detective followed him into the backyard with a flashlight. The detective yelled for the defendant to "stop," as he saw him reach with his hand to the front of his body and throw a firearm up against the fence. The defendant continued to run toward the gate, the detective chasing after him. The detective eventually apprehended him in the front of the yard. The gun was discovered approximately three to four feet inside the fenced property and three feet from the house. It was later learned that the gun was stolen in March of The serial numbers had been scratched off the gun. The defendant was charged with carrying a concealed firearm, unlawful possession, sale, or delivery of a firearm with an altered or removed serial number and armed burglary. At trial, an employee of a pawn shop testified that the gun found in the yard by the detective was the same gun which had been in the possession of the pawn shop until it was stolen in March of It was never shown that the defendant was the one who had stolen the gun. At the close of the State's case, the defendant moved for judgment of acquittal on grounds that the State failed to prove the crime of armed burglary because the requisite intent to commit the offense of carrying a concealed firearm when entering the property had not been demonstrated, and the predicate crime of resisting an officer without violence was legally insufficient. The trial judge denied the motion. The jury found the defendant guilty of carrying a concealed firearm, possessing a firearm with a removed or altered serial number and armed burglary. He was sentenced to five years for carrying a concealed firearm, 364 days for possession of a firearm with an altered serial number and fifteen years for armed burglary, to run concurrent with a ten-year minimum mandatory. He now appeals the convictions and sentences. Jean-Marie, at *3-4. 2

7 The Third District s opinion contained the following relevant holdings of law: We find that sufficient evidence of intent was presented to constitute the offense of carrying a concealed firearm, and as such, the defendant demonstrated the requisite intent to satisfy the intent-to-commit-acrime element for the offense of armed burglary. *** [W]e conclude that there was sufficient evidence of intent to convict the defendant of the crime of carrying a concealed firearm, (2), Fla. Stat. (2002); cf. Davis v. State, 761 So. 2d 1154 (Fla. 2d DCA 2000), and, as a matter of law, the offense of resisting an officer without violence was legally adequate for the jury's consideration , Fla. Stat. (2002); Mosley; Calliar; Britton (1)(b)(1), Fla. Stat. (2002). *** We find that the trial court did not err in admitting the evidence of the stolen gun as this fact was inextricably intertwined with the carrying a concealed firearm and armed burglary charges before the jury. This testimony was necessary to establish the entire context out of which these crimes arose , Fla. Stat. (2005); Griffin v. State, 639 So. 2d 966 (Fla. 1994). Jean-Marie, at *7-12. The Third District affirmed the convictions and sentences for armed burglary and possession of an altered firearm. The conviction and sentence for carrying a concealed firearm was vacated. SUMMARY OF THE ARGUMENT The decision below does not expressly and directly conflict with Petitioner s cited opinions. Consequently, conflict jurisdiction does not exist for the exercise of this Court s discretionary jurisdiction to review the decision below. This Court 3

8 should therefore deny Petitioner s petition to review the decision of the district court. ARGUMENT THE DISTRICT COURT S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY CASE CITED BY PETITIONER. Petitioner contends the district court s opinion in the instant case directly and expressly conflicts with: Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988); Shaffer v. State, 710 So.2d 79 (Fla. 4 th DCA 1998); Stearns v. State, 645 So.2d 417 (Fla. 1994); J.R.P. v. State, 942 So.2d 452 (Fla. 2d DCA Nov. 29, 2006); Wilson v. State, 734 So.2d 1107 (Fla. 4 th DCA 1999); McCall v. State, 941 So.2d 1280 (Fla. 4DCA 2006); and, Burgos v. State, 865 So.2d 622 (Fla. 3d DCA 2004). Petitioner claims the district court opinion conflicts as to the following three questions: (1) whether a court can affirm the charge of carrying a concealed firearm as an underlying crime for armed robbery, yet rule that the charge of carrying a concealed firearm constitutes double jeopardy; (2) whether the police officer had a basis to stop a passenger of a car during a traffic stop; and (3) whether the introduction of other crime evidence was presumptively harmful error. Article V, 3(b)(3), Fla. Const. (1980) and Fla. R. App. P (a)(2)(A)(iv), provide that this Court s discretionary jurisdiction may be sought to review a district court decision which expressly and directly conflicts 4

9 with a decision of another district court on the same question of law. Decisions are considered in express and direct conflict when the conflict appears within the four corners of the majority decisions. Reaves v. State, 485 So.2d 829 (Fla. 1986). The rationale for limiting this Court s jurisdiction is the recognition that district courts are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy. Jenkins v. State, 385 So. 2d 1356, 1358 (Fla. 1980). This Court cannot exercise its discretionary jurisdiction to review the decision below as it does not conflict with Petitioner s cited cases on the same questions of law. I. THE DISTRICT COURT S OPINION AFFIRMING THE CHARGE OF CARRYING A CONCEALED FIREARM AS AN UNDERLYING OFFENSE FOR ARMED ROBBERY, YET HOLDING THE CHARGE OF CARRYING A CONCEALED WEAPON CONSTITUTED DOUBLE JEOPARDY, DOES NOT CONFLICT WITH PETITIONER S CITED CASES. As to the first claim, Petitioner argues that his dual convictions for possession of an altered firearm and armed burglary are barred by double jeopardy principles on the basis of cases such as Stearns v. State, 645 So.2d 417 (Fla. 1994). First, as reflected in the Third District s decision, the only argument that was made in the lower court was that the dual convictions for carrying a concealed firearm 5

10 and armed burglary were improper. The Third District granted relief on the basis of that argument. As no further issue was raised regarding the possession of an altered firearm conviction, that issue can not form the basis for conflict jurisdiction, as it was neither raised nor addressed. Furthermore, there is not express and direct conflict between the lower court s decision and Stearns. While Stearns contained language which suggested that double jeopardy barred multiple convictions for firearm offenses during a single criminal episode, this Court subsequently clarified Stearns, in State v. Craft, 685 So.2d 1292, 1294 (Fla. 1996), when it held that the test for determining whether dual punishments are proper for firearm offenses committed during a single criminal episode is the Blockburger test 1, i.e., whether each offense contains an element not contained in the other offense. Thus, as Stearns addressed only armed burglary and carrying a concealed firearm, and not possession of an altered firearm, there can not possibly be a conflict between Stearns and the instant decision. Likewise, as Shaffer v. State, 710 So.2d 79 (Fla. 4 th DCA 1998) and Marion v. State, 526 So.2d 1077 (Fla. 2d DCA 1988) address only armed burglary and carrying a concealed firearm, and do not address possession of an altered firearm, there can not be an express and direct conflict regarding dual convictions for armed burglary and possession of an altered firearm. 1 Blockburger v. United States, 284 U.S. 299, 304 (U.S. 1932) 6

11 II. THE DISTRICT COURT S OPINION THAT THE POLICE OFFICER HAD A BASIS TO STOP PETITIONER WHO WAS THE PASSENFER OF A CAR DURING A TRAFFIC STOP, DOES NOT CONFLICT WITH PETITIONER S CITED CASES. In the instant case, the officer had probable cause to arrest Petitioner when he threw a concealed firearm away and continued running. Thus, Petitioner was not stopped until after the officer observed him remove a concealed firearm. Merely chasing a perpetrator or yelling stop does not effectuate a stop until such time as the individual is actually apprehended. California v. Hodari D., 499 U.S. 621 (U.S. 1991). Thus, the cases upon which Petitioner relies, based on whether there was reasonable suspicion or probable cause for a stop are irrelevant and distinguishable. The decision of the district court does not give rise to conflict with any of the opinions from the other district courts of appeal cited by Petitioner: J.R.P.(the State presented insufficient reasons to detain a juvenile who was a passenger during a traffic stop as he was detained on the unfounded suspicion that he robbed a convenience store); and Wilson (officer improperly ordered the passenger in a traffic stop to return to the vehicle after passenger exited the car to walk to a bar). The above referenced cases are limited to their facts. In the instant case, the district court noted Petitioner s flight upon seeing the police officer in a high crime area, knowing the officer had an intent to detain him, constituted a suspicion of 7

12 criminal activity. Furthermore, it indicated that even if the officer s pursuit initially lacked a reasonable suspicion or probable cause, the facts was similar to those in Mosley, supra, where flight in conjunction with probable cause to arrest were sufficient to establish the guilt of the charge of obstructing an officer without violence. In the instant case, the officer had probable cause to arrest Petitioner when he threw his gun away and continued to flee. Jean-Marie, *8-9. III. THE DISTRICT COURT S OPINION THAT THE INTRODUCTION OF EVIDENCE OF PETITIONER POSSESSING A STOLEN GUN WAS INEXTRICABLY INTERTWINED AND HARMLESS BEYOND REASONABLE DOUBT DOES NOT CONFLICT WITH PETITIONER S CITED CASES. The decision of the district court does not give rise to conflict with any of the opinions from the other district courts of appeal cited by Petitioner: McCall (that defendant was arrested in a stolen vehicle and that the firearm had obliterated serial numbers had no relevance to the charges of possession of a firearm by a convicted felon or carrying a concealed firearm, police found defendant sleeping in the vehicle, as the probative value of this evidence was substantially outweighed by the danger of unfair prejudice because of its cumulative effect and the failure to help explain the charge at issue); and Burgos (evidence of domestic violence in the form of graphic descriptions of the girlfriend's injuries, hammered home by photographic evidence, and her account of threats made by the defendant were 8

13 unnecessary to understanding the officers' encounter with defendant as the officers' presence was sufficiently explained by testimony in a resisting a police officer with violence case). These cases involve completely different factual circumstances. In the instant case, Petitioner was running away from the police while concealing a firearm. Evidence of the gun being stolen was inextricably intertwined with carrying a concealed firearm and the armed burglary. The district court held that even if the evidence was erroneously admitted, it was harmless because of the ample evidence against Petitioner, i.e., the officers testimony, the photographs, and the gun itself. Burgos is a decision originating in the Third District Court of Appeal, the same court which decided the instant case. Thus, a jurisdiction brief is inappropriate to determine any internal conflict within the same district. CONCLUSION There is no express or direct conflict between these cases and the district court s opinion below given the factual differences between the cases. As no conflict exists between the face of the district court s opinion below and the cases cited by Petitioner, discretionary review as to this matter should be denied. WHEREFORE, based on the preceding authorities and arguments, Respondent respectfully requests this Court decline jurisdiction to review this cause. 9

14 Respectfully Submitted, BILL McCOLLUM Attorney General RICHARD L. POLIN Bureau Chief OLGA VILLA Assistant Attorney General Florida Bar Number Attorneys for the State of Florida Office of the Attorney General 444 Brickell Avenue, Suite 650 Miami, Florida Telephone: (305) Facsimile: (305) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of Respondent was mailed to Frantzy Jean-Marie, pro se, D.C.# M46774, DeSoto Correctional Institution, S.E. Highway # 70, Arcadia, Florida , this 7 th day of May, OLGA VILLA Assistant Attorney General 10

15 CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the foregoing Brief was written using 14-point Times New Roman in compliance with Fla. R. App. P (a)(2). OLGA VILLA Assistant Attorney General 11