IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC DCA CASE NO. 1D STATE OF FLORIDA,

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1 IN THE SUPREME COURT OF FLORIDA FRANK SALONKO, Petitioner, v. CASE NO. SC DCA CASE NO. 1D STATE OF FLORIDA, Respondent. / ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL FIRST DISTRICT OF FLORIDA PETITIONER'S BRIEF ON JURISDICTION NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT STEVEN L. SELIGER ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO LEON COUNTY COURTHOUSE 301 SOUTH MONROE STREET SUITE 401 TALLAHASSEE, FLORIDA (850) ATTORNEY FOR PETITIONER

2 TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT 1 STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 4 ARGUMENT 5 ISSUE I: THIS COURT SHOULD ACCEPT THIS 5 CASE TO RESOLVE THE CONFLICT BETWEEN THIS COURT S DECISION IN MONTGOMERY AND THE FIRST DISTRICT S APPLICATION OF THAT DECISION IN MR. SALONKO S CASE. CONCLUSION 9 CERTIFICATE OF SERVICE 9 CERTIFICATE OF FONT SIZE 9 APPENDIX 10 i

3 TABLE OF CITATIONS CASE(S) PAGE(S) State v. Delva, So.2d 643 (Fla. 1991), quoting Stewart v. State, 420 So.2d 862 (Fla. 1982) State v. Montgomery, 4,5,7 35 Fla. L. Weekly S204 (Fla. April 8, 2010) Wimberly v. State, So.2d 929 (Fla. 1986) STATUTES Section (1), Florida Statutes 6 AMENDMENTS AND CONSTITUTIONS Article V, Section 3(b)(3), Florida Constitution 4 ii

4 IN THE SUPREME COURT OF FLORIDA FRANK SALONKO, Petitioner, v. CASE NO. SC10- DCA CASE NO. 1D STATE OF FLORIDA, Respondent. / PETITIONER'S BRIEF ON JURISDICTION PRELIMINARY STATEMENT Petitioner was the defendant in the trial court. He was the Apellant in the First District Court of Appeal. Attached to this petition, as Appendix, is the decision of the district court. The case is reported at 35 Fla. L. Weekly D376. Mr. Salonko filed a timely notice to invoke this Court s discretionary jurisdiction on April 28, STATEMENT OF THE CASE AND FACTS Mr. Salonko was indicted for the first-degree murder of Erik Schulz and the attempted first degree murder of Jeremy Larson. The crimes were committed with a firearm. The jury found Mr. Salonko guilty of the lesser included offense of second-degree murder as to Mr. Schulz and the lesser included offense of aggravated assault on Mr. Larson. 1

5 This review deals primarily with the facts surrounding the death of Mr. Larson. Mr. Larson owned a construction company for which Mr. Salonko worked for a period of time. About a week before the shooting took place, Mr. Larson either fired Mr. Salonko or Mr. Salonko quit. On the day of the shooting, Mr. Salonko called Mr. Larson to tell him he wanted to pick up his final paycheck and some tools. Mr. Larson told Mr. Salonko that he understood he had already gotten his tools. In addition, Mr. Larson had decided not to pay Mr. Salonko all of the money owed him because Mr. Larson believed Mr. Salonko had stolen a compressor from one of the job sites. Mr. Salonko was scheduled to pick up his paycheck at the job site so others would be present. Mr. Larson was concerned that Mr. Salonko might act out. However, Mr. Larson had not told Mr. Salonko of his decision to withhold a portion of the paycheck. Mr. Larson and Mr. Schulz arrived at the job sit at about the same time Mr. Salonko drove up. Mr. Larson thought that Mr. Salonko was in a fighting mood. Mr. Schulz got between Mr. Larson and Mr. Salonko and asked Mr. Salonko if there was a problem. Mr. Salonko then pulled a gun out of his waistband and started shooting. According to Mr. Larson, no words were exchanged. Mr. Schulz was initially hit by a bullet but still was able to chase after Mr. Salonko. Other people joined the effort to take the gun away from Mr. 2

6 Salonko. Eventually they did just that, in part by giving Mr. Salonko a beatdown. There was disputed evidence about whether Mr. Sculz acted aggressively toward Mr. Salonko before he shot first. In addition, there was evidence introduced that Mr. Salonko s first shot was fired into the ground. The police found seven (7) shell casings at the crime scene, two fired bullets, two divots in the asphalt, and a handgun. On Mr. Salonko s person, the police seized two brass knuckles and a knife. There was a fully loaded shotgun and shotgun shells in the trunk of Mr. Salonko s car. Mr. Schulz received four gunshot wounds. One penetrated the left abdomen; one went into the his upper left back; the third entered his right thigh; and the fourth passed through his right leg. The wound to the abdomen was the one that caused Mr. Schulz s death. 3

7 SUMMARY OF THE ARGUMENT The First District s opinion creates a conflict with this Court s decision in State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. April 8, 2010) This case deals with the propriety of the jury instruction for manslaughter. That case dealt explicitly with the effect of an erroneous instruction of manslaughter by act. Mr. Salonko s case contains the same erroneous instruction. However, the First District choose to distinguish Mr. Salonko s case because Mr. Salonko s jury was also instructed on the culpable negligence portion of the manslaughter instruction. Discretionary review is warranted in this case. This Court should resolve the conflict between the First District and this Court on whether the inclusion of the culpable negligence portion of the manslaughter instruction eliminates any error created by the erroneous manslaughter by act instruction. This Court should exercise jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. 4

8 ARGUMENT ISSUE I: THIS COURT SHOULD ACCEPT THIS CASE TO RESOLVE THE CONFLICT BETWEEN THIS COURT S DECISION IN MONTGOMERY AND THE FIRST DISTRICT S APPLICATION OF THAT DECISION IN MR. SALONKO S CASE. This Court s decision in State v. Montgomery, 35 Fla. L. Weekly S204 (Fla. 2010) makes it clear that the manslaughter by act instruction is fundamentally wrong. Mr. Salonko s case suffers from the same infirmity. Charged with firstdegree murder, the jury found Mr. Salonko guilty of second-degree murder. Mr. Salonko s jury was also instructed erroneously on manslaughter by act. On appeal, the State conceded error before the First District. The First District declined to accept that concession of error. Instead, the First District distinguished its Montgomery decision (this Court s decision had not yet been released) because We explained that the fundamental nature of this error resulted from the fact that because the jury found that the defendant did not intend to kill the victim, the instructions the trial court gave essentially directed a verdict for second-degree murder, precluding the jury from choosing the lesser-included offense one step removed.... This situation does not exist when the trial court gives an instruction on manslaughter by culpable negligence. 5

9 The First District found that giving the culpable negligence removed the fundamental error label attached to the manslaughter by act instruction. Here, the trial court s erroneous instruction did not interfere with the jury s deliberative process in a way that tainted the underlying fairness of the entire proceeding because it instructed the jury on culpable negligence. Although the jury found, by its second-degree murder verdict, that [Mr. Salonko] did not intend to kill the victim, based on the instructions given, it could have returned a verdicrt for the less-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill. Unlike in Montgomery, the jury in the instant case was not directed to choose the greater offense simply because the lesser offense would have improperly required a more depraved level of intent. This reasoning directly conflicts with this Court s decision in State v. Montgomery. By statute, manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another... Section (1), Florida Statutes. In this case, Mr. Salonko requested giving the culpable negligence portion of the manslaughter instruction. (R5-531) It would not be clear why this is true because, as the prosecutor pointed out, there was no evidence to suggest that Mr. Salonko s shooting was anything but intentional. This is particularly true because Mr. Salonkso s theory of defense was self-defense. The case presented the classic circumstance of the prosecution saying that Mr. Salonko came to the job 6

10 site armed and ready to kill (R5-632) while Mr. Salonko said he came armed to protect himself and the circumstances that evolved caused him to shoot. There is no indication in this record that either party relied on the culpable negligence portion of the manslaughter jury instruction. Therefore, the jury would not have relied on it either. The confusion that existed by the erroneous manslaughter instruction given would cause a jury to engage in the same problematic exercise condemned in State v. Montgomery. The First District s conclusion that somehow giving the culpable negligence portion of the manslaughter instruction cures the fundamental nature of the error is belied what actually occurred. The Salonko jury was in the same posture as the Montgomery jury. This is especially true because this Court held that the manslaughter instruction s inclusion iof the component that it is not necessary for the State to prove that the defendant had a premeditated intent to cause death was not sufficient to erode the import of the second element: that the jury must find that the defendant intended to cause the death of the victim. This Court held that Montgomery was entitled to an accurate instruction on the lesser included offense of manslaughter. Mr. Salonko also was entitled to an accurate instruction. The error is fundamental because the error is pertinent or material to what the jury must consider to convict. State v. Delva, 575 So.2d 643 (Fla. 1991), quoting Stewart v. State, 420 So.2d 862 (Fla. 1982) The culpable 7

11 negligence aspect of the manslaughter instruction played no role in the actual decision of the case. Manslaughter is a category one lesser of first-degree murder, which means it must be given in all cases. Wimberly v. State, 498 So.2d 929 (Fla. 1986) Mr. Salonko s case should be treated the same as Mr. Montgomery, that is, it was fundamental error where Mr. Salonko was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter. 8

12 CONCLUSION Based on the arguments contained in this jurisdictional brief, Mr. Salonko requests this Court to accept this case for discretionary review and briefing on the merits. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U. S. Mail to Ms. Giselle Lylen, Assistant Attorney General, The Capitol, PL-01, Tallahassee, FL ; and Mr. Frank Salonko, DC# G03941, NWFRC, 4455 Sam Mitchell Drive, Chipley, Florida 32428, on this day of May, CERTIFICATE OF FONT SIZE I hereby certify that this brief has been prepared using Times New Roman 14 point font in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). Respectfully submitted, NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT STEVEN L. SELIGER # ASSISTANT PUBLIC DEFENDER LEON COUNTY COURTHOUSE 301 S. MONROE ST., SUITE 401 TALLAHASSEE, FLORIDA (850) Seligers@leoncountyfl.gov 9

13 IN THE SUPREME COURT OF FLORIDA FRANK SALONKO, Petitioner, v. CASE NO. SC10- DCA CASE NO. 1D STATE OF FLORIDA, Respondent. / APPENDIX PAGE(S) Salonko v. State, 35 Fla. L. Weekly D376 (Fla. 1st DCA February 12, 2010)