IN THE SUPREME COURT OF THE STATE OF FLORIDA. CASE NO. (4th DCA Case No. 4D ) STATE OF FLORIDA, Petitioner, vs. JESSIE HILL, Respondent.

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. (4th DCA Case No. 4D ) STATE OF FLORIDA, Petitioner, vs. JESSIE HILL, Respondent. PETITIONER'S BRIEF ON JURISDICTION CHARLES J. CRIST JR., Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No CLAUDINE M. LaFRANCE Assistant Attorney General Florida Bar No N. Flagler Ave, Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Petitioner

2 TABLE OF CONTENTS TABLE OF CITATIONS...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE CONFLICTS WITH THIS COURT S DECISION IN GRANT v. STATE, 770 SO. 2D 655, 659 (FLA. 2000). CONCLUSION...8 CERTIFICATE OF SERVICE...8 CERTIFICATE OF TYPE SIZE AND STYLE...9 ii

3 TABLE OF AUTHORITIES STATE CASES Acensio v. State, 497 So. 2d 640 (Fla. 1986)... 4 Department of Transport v. Anglin, 502 So. 2d 896 (Fla. 1987) 5 Gibson v. Avis Rent-ACar System, Inc., 386 So. 2d 520 (Fla. 1980)... 5 Grant v. State, 770 So. 2d 655 (Fla. 2000)...3, 4, 6, 7 Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 5 Hill v. State, --- So. 2d, Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 4 Smith v. State, 813 So. 2d 1002 (Fla. 4th DCA 2002)..2, 5 iii

4 PRELIMINARY STATEMENT Respondent was the Defendant and Petitioner was the prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Respondent was the Appellant and Petitioner was the Appellee in the Fourth District Court of Appeal. In this brief, the parties shall be referred to as they appear before this Honorable Court except that Petitioner may also be referred to as the State. In this brief, the symbol "A" will be used to denote the appendix attached hereto. All emphasis in this brief is supplied by Petitioner unless otherwise indicated. 1

5 STATEMENT OF THE CASE AND FACTS Respondent was convicted of one count of robbery with a firearm. The trial court sentenced Respondent to life in prison without parole under the Prison Releasee Re-offender Punishment Act ( PRRPA ) and also imposed a ten-year mandatory minimum sentence for the use of a firearm under section (2) and (3). Respondent appealed attacking his judgment and sentence. The District Court of Appeal affirmed Respondent s conviction; however, it reversed Respondent s sentence in its opinion issued on January 21, 2004, Hill v. State, --- So.2d, 2004 WL (Fla. 4 th DCA 2004). The District Court held:... it is improper to sentence a defendant who meets the requirements for sentencing under the PRRPA under another sentencing statute where the sentence imposed under the other statute is not greater than that imposed under the PRRPA. Smith v. State, 813 So. 2d 1002, 1003 (Fla. 4th DCA 2002)(citing Grant v. State, 770 So. 2d 655, 659 (Fla. 2000)). As in Hill, the ten-year mandatory minimum was not greater than the life sentence imposed under the PRRPA. Therefore, Hill's sentence was improper. Accordingly, we reverse Hill's ten-year mandatory minimum sentence and remand this case with instructions to resentence Hill to a life sentence without parole under the PRRPA. The Notice to Invoke Discretionary Jurisdiction was filed with the District Court on January 27,

6 SUMMARY OF THE ARGUMENT This Court has discretionary jurisdiction pursuant to Article V, Section 3 of the Florida Constitution and Rule 9.030(a)(2)(A)(iv), to review the instant case. The opinion of the Fourth District Court of Appeal conflicts with this Court s decision in Grant v. State, 770 So. 2d 655, 659 (Fla. 2000). Thus, this Court has and should exercise its jurisdiction to review this case. 3

7 ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THE INSTANT CASE CONFLICTS WITH THIS COURT S DECISION IN GRANT v. STATE, 770 So. 2D 655, 659 (FLA. 2000). Petitioner seeks review of the decision in Hill v. State, --- So.2d, 2004 WL (Fla. 4 th DCA 2004), in order to resolve the conflict created by that decision and the decision of this Court in Grant v. State, 770 So. 2d 655, 659 (Fla. 2000). Under Article V, Section 3(b)(3) of the Florida Constitution, this Court may review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)[Emphasis added]. Thus, conflict jurisdiction is properly invoked when the district court of appeal relies on but misinterprets a decision of the Supreme Court as controlling precedent which results in the creation of a conflict of opinion. At bar, the Fourth District Court of Appeal expressly relied on Grant v. State, 770 So. 2d 655, 659 (Fla. 2000), but misinterpreted the decision as controlling precedent which resulted in a conflict of opinion. Based on the conflict created by this misapplication of law, this Court has jurisdiction under article. V, section 3(b)(3), Florida 4

8 Constitution; see also, Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986)( The court expressly relied on State v. Abreau, 363 So. 2d 1063 (Fla. 1978), a decision involving a factual situation materially at variance with the facts of the instant case. Based on the conflict created by this misapplication of law, we have jurisdiction under article V, section 3(b)(3), Florida Constitution; ) Gibson v. Avis Rent-ACar System, Inc., 386 So.2d 520, 521 (Fla. 1980)(The Florida Supreme Court has certiorari jurisdiction based on conflict when a district court of appeal misapplies the law by relying on a decision which involves a situation materially at variance with the one under review;) Department of Transp. v. Anglin, 502 So. 2d 896, 897 (Fla. 1987)(wherein the district court relies on a Florida Supreme Court decision which involves a materially different factual situation in arriving at its conclusion the Florida Supreme Court has jurisdiction under, article V, section 3(b)(3), Florida Constitution.) Jurisdiction founded on "express and direct conflict" does not require that the district court below certify or even directly recognize the conflict. The "express and direct" requirement is met if it can be shown that the holding of the district court is in conflict with another district court or the supreme court. See Hardee v. State, 534 So. 2d 706 (Fla. 5

9 1988). The decision of the Fourth District in this case holds: it is improper to sentence a defendant who meets the requirements for sentencing under the PRRPA under another sentencing statue where the sentence imposed under the other statute is not greater than that imposed under the PRRPA. Smith v. State, 813 So.2d 1002, 1003 (Fla. 4 th DCA 2002)(citing Grant v. State, 770 So. 2d 655, 659 (Fla. 2000)). As in Hill, the ten-year mandatory minimum was not greater than the life sentence imposed under the PRRPA. Therefore, Hill s sentence was improper. (Appendix). The above language is in direct conflict and misapplies this Court s holding in Grant. The district court has read this Court s decision in Grant too broadly and has applied it to a materially different factual situation. In Grant, the Court held that concurrent fifteen-year sentences as a prison releasee re-offender and as a habitual felony offender did not violate double jeopardy principles; however, it did, nonetheless violated the express provisions of the prison releasee re-offender act. Grant, 770 So. 2d at 659. It violated the prison releasee re-offender act because section (8)(c) only authorized the court to deviate from the Act s sentencing scheme to impose a greater sentence of incarceration. Id. At bar, the District Court committed error in reversing the trial court s sentencing relying on the authority of Grant, as 6

10 Grant does not support the decision of the district court in this case. Grant involved a wholly different situation than this case. At bar, the case dealt with different statutory sections. It involved Section the minimum mandatory sentence for a firearm and the prison releasee re-offender act. By applying Grant, to the factually situation at bar the Court misapplied Grant and failed to take in to account the portion of the minimum mandatory firearm statute (2)(a)3(c) (2002) which states: If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s , s , or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s , s , or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. By applying the rationale and holding in Grant v. State, 770 So. 2d 655, 659 (2000), to the factual situation at bar the District Court created conflict with this Court s decision in Grant, infra. Thus, since it is apparent that the opinion in the 7

11 instant case is in direct conflict and misconstrues this Court s interpretation of Rule (9)(c) in Grant, 770 So. 2d at 659, the State urges this Court to accept jurisdiction to review the District Court s opinion and set the case law straight. CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Petitioner respectfully requests this Court ACCEPT discretionary jurisdiction in the instant case. Respectfully submitted, CHARLES J. CRIST JR., Attorney General Tallahassee, Florida 8 CLAUDINE M. LaFRANCE Assistant Attorney General Florida Bar No N. Flagler Ave. Suite 900 West Palm Beach, FL (561) Facsimile (561)

12 Counsel for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Jurisdictional Brief of Petitioner" has been furnished by courier to: ANTHONY CAVELLO, Assistant Public Defender, 421 Third Street, Sixth Floor, West Palm Beach, FL on January, Of Counsel CERTIFICATE OF TYPE SIZE AND STYLE The undersigned counsel for the State of Florida, Respondent herein, hereby certifies that the instant brief has been prepared with 12 point Courier New type, a font that is not spaced proportionately. CLAUDINE M. LaFRANE Assistant Attorney General Florida Bar No

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14 APPENDIX A