IN THE SUPREME COURT OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT

Transcription

1 IN THE SUPREME COURT OF FLORIDA WILLIAM MURPHY ALLEN JR., v. Petitioner, STATE OF FLORIDA, CASE NO. SC L.T. CASE NO. 1D Respondent. JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO BRYAN JORDAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL (850) (850) (FAX) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2 ISSUE WHETHER THERE IS DIRECT AND EXPRESS CONFLICT BETWEEN THE DECISION OF THIS COURT IN ASHLEY v. STATE, 850 So.2d 1265 (Fla. 2003), THE DECISIONS OF THE DISTRICT COURTS IN BRAGGS v. STATE, 789 So.2d 1151 (Fla. 3d DCA 2001), and BLAKELY v. STATE, 746 So.2d 1182 (Fla. 4th DCA 1999), AND THAT OF THE FIRST DISTRICT COURT OF APPEAL IN ALLEN v. STATE, 929 So.2d 667 (Fla. 1st DCA 2006). (Restated)... 2 CONCLUSION SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX ii

3 TABLE OF CITATIONS CASES PAGE(S) Allen v. State, 929 So.2d 667 (Fla. 1st DCA 2006)... 1, 2, 4, 5, 6, 8, 9, 10 Ansin v. Thurston, 101 So.2d 808 (Fla. 1958) , 4, 5 Armstrong v. Harris, 773 So.2d 7 (Fla. 2000) Ashley v. State, 850 So.2d 1265 (Fla. 2003) , 4, 7, 8, 9, 10 Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000) Blakely v. State, 746 So.2d 1182 (Fla. 4th DCA 1999) , 4, 7, 8, 9 Braggs v. State, 789 So.2d 1151 (Fla. 3d DCA 2001) , 4, 5 Breedlove v. Singletary, 595 So.2d 8 (Fla. 1992) Dept. of Health and Rehabilitative Services v. Nat l Adoption Counseling Service, Inc., 498 So.2d 888 (Fla. 1986) Hamilton v. State, 586 So.2d 1236 (Fla. 5th DCA 1991) , 8 Harris v. State, 645 So.2d 386 (Fla. 1994) , 10 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) , 5 Mills v. Dugger, 574 So.2d 63, 65 (Fla. 1990) Reaves v. State, 485 So.2d 829 (Fla. 1986) iii

4 OTHER Art. V, 3(b)(3), Fla. Const , 3 Fla. R. App. P (a)(2)(A)(iv) iv

5 PRELIMINARY STATEMENT Respondent, the State of Florida, the Appellee in the District Court of Appeal (DCA) and the prosecuting authority in the trial court, will be referenced in this brief as Respondent, the prosecution, or the State. Petitioner, WILLIAM MURPHY ALLEN JR., the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner or proper name. PJB will designate Petitioner s Jurisdictional Brief. That symbol is followed by the appropriate page number. A bold typeface will be used to add emphasis. Italics appeared in original quotations, unless otherwise indicated. STATEMENT OF THE CASE AND FACTS The State rejects Petitioner s statement of the case and facts because it includes facts outside the four corners of the decision of the First District Court. The pertinent history and facts are set out in the decision of the District Court appended to this brief and reported at Allen v. State, 929 So.2d 667 (Fla. 1st DCA 2006)

6 SUMMARY OF ARGUMENT There is no direct and express conflict between the decision of the First District Court in Allen v. State, 929 So.2d 667 (Fla. 1st DCA 2006), and the decision of this Court in Ashley v. State, 850 So.2d 1265 (Fla. 2003), or those of the District Courts in Braggs v. State, 789 So.2d 1151 (Fla. 3d DCA 2001), and Blakely v. State, 746 So.2d 1182 (Fla. 4th DCA 1999). ARGUMENT ISSUE WHETHER THERE IS DIRECT AND EXPRESS CONFLICT BETWEEN THE DECISION OF THIS COURT IN ASHLEY v. STATE, 850 So.2d 1265 (Fla. 2003), THE DECISIONS OF THE DISTRICT COURTS IN BRAGGS v. STATE, 789 So.2d 1151 (Fla. 3d DCA 2001), and BLAKELY v. STATE, 746 So.2d 1182 (Fla. 4th DCA 1999), AND THAT OF THE FIRST DISTRICT COURT OF APPEAL IN ALLEN v. STATE, 929 So.2d 667 (Fla. 1st DCA 2006). (Restated) Standard of Review Article V, section 3(b)(3), of the Florida Constitution provides the Supreme Court of Florida with jurisdiction to review a decision of a District Court which expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. Issues presenting a pure question of law are reviewed de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla. 2000)

7 Merits A. Jurisdictional Criteria Petitioner contends that this Court has jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, which provides: The supreme court... [m]ay review any 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. Id.; see Fla. R. App. P (a)(2)(A)(iv). The conflict between decisions must be express and direct and must appear within the four corners of the majority decision. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986); accord Dept. of Health and Rehabilitative Services v. Nat l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected inherent or implied conflict; dismissed petition). Neither the record, nor a concurring opinion, nor a dissenting opinion can be used to establish jurisdiction. Reaves, supra; Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980). In addition, it is the conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari. Jenkins, supra. Further, in Ansin v. Thurston, 101 So.2d 808 (Fla. 1958), this Court explained: It was never intended that the district courts of appeal should be intermediate courts. The revision - 3 -

8 Id. at 810. and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute. Accordingly, the determination of conflict jurisdiction distills to whether the District Court s decision in Allen v. State, 929 So.2d 667 (Fla. 1st DCA 2006), reached a result opposite those in Ashley v. State, 850 So.2d 1265 (Fla. 2003), Braggs v. State, 789 So.2d 1151 (Fla. 3d DCA 2001), and Blakely v. State, 746 So.2d 1182 (Fla. 4th DCA 1999). B. There is no express and direct conflict of decisions As initially recited in the First District s decision, Petitioner challenged his judgments of conviction and sentences for murder, burglary, and robbery. Allen, supra. Now, Petitioner seeks discretionary review in this Court challenging the legality of his conviction for murder and the sentence imposed upon his conviction for robbery. (PJB 6-7)

9 First, under the rubric of an alleged conflict of decisions, Petitioner improperly attempts to invoke this Court s jurisdiction as a means to obtain a second direct appeal of his conviction for murder. (PJB 5-8); see Breedlove v. Singletary, 595 So.2d 8, 10 (Fla. 1992); Mills v. Dugger, 574 So.2d 63, 65 (Fla. 1990); Ansin, supra. In this case, the First District affirmed Petitioner s murder conviction, stating simply: We affirm the convictions. (Appendix); see Jenkins, supra (no conflict jurisdiction when the decision which is allegedly in conflict is without opinion). Nonetheless, based entirely on alleged facts from without the four-corners of the First District s decision in Allen, supra, Petitioner argues that it is in express conflict with Braggs, supra, wherein the Third District explains that a trial court commits fundamental error by convicting a defendant on a crime not charged and that a trial court s instruction of the jury on a crime not charged renders its verdict a nullity. Id. at ; (PJB 5-8). Because the First District affirmed Petitioner s murder conviction with no recitation of facts and without providing any analysis or explanation, there can be no express and direct conflict with the decision of the Third District in Braggs, supra. See Jenkins, supra. Accordingly, there is no basis on which conflict jurisdiction may lie

10 Second, with regard to Petitioner s sentence for robbery, First District explained in Allen, supra: By indictment, appellant was charged in count I with murder, in count II with burglary, and in count III with robbery. The judgment of conviction reflects an adjudication of guilty for murder as to count I, for burglary as to count II, and for robbery as to count III. At the sentencing hearing, however, the prosecutor erroneously advised the trial court that count II was the robbery conviction and then agreed with the trial court s surmise that count III was the burglary conviction. The trial court then asked about the statutory maximum sentence for the robbery conviction and was correctly informed by the prosecutor that the statutory maximum sentence for such a second degree felony is fifteen years. The court was then told by the prosecutor that the statutory maximum sentence for the burglary conviction, a third degree felony, was five years. The trial court then orally announced a fifteen year sentence for count II and a five year sentence for count III, having already sentenced appellant to life for the murder conviction. The written sentence thereafter entered reflects a fifteen year sentence for count II and a five year sentence for count III. (Appendix). Looking to the record of the sentencing hearing, the Court then held: It is apparent from the record that the trial court intended to impose the permissible statutory maximum for the burglary conviction, which is actually count II of the judgment of conviction, and to impose the statutory maximum for the robbery conviction, which is actually count III of the judgment of conviction. The sentences imposed for counts II and III are therefore vacated, and the cause is remanded for entry of a corrected sentence to conform with the trial court s intent as indicated in the sentencing hearing. See Hamilton v. State, 586 So.2d 1236 (Fla. 5th DCA 1991). Appellant need not be present for entry of the corrected sentence

11 (Appendix). It is this assessment by the First District with its reliance upon Hamilton v. State, 586 So.2d 1236 (Fla. 5th DCA 1991), on which Petitioner alleges there is express and direct conflict with Ashley, supra, as well as Blakely, supra. (PJB 8-9). In Ashley, supra, at a hearing on a date prior to sentencing, the State argued and offered proof of Ashley s qualification for sentencing as an Habitual Violent Felony Offender (HVFO). Id. at At the subsequent sentencing hearing, the trial court orally pronounced sentence as an Habitual Felony Offender (HFO). Id. However, the trial court did not pronounce Ashley to be an HVFO at either of these hearings and the prosecutor did not bring this to the court s attention. Id. The written judgment and sentence indicated a sentence of 25-years as an HVFO, but without notation of any minimum term. Id. Several days later, Ashley reappeared in court, and the trial judge orally resentenced him to twenty-five years in prison as an HVFO, and for the first time imposed a ten-year minimum mandatory term. Id. The First District Court affirmed Ashley s subsequently imposed HVFO sentence, holding that the trial court s imposition of an HFO sentence was the result of a simple mistake about what had been noticed and then proven the - 7 -

12 day before. Id., quoting, Ashley v. State, 772 So.2d 42, 43 (Fla. 1st DCA 2000). However, this Court rejected the reasoning of the First District, reversing Ashley s HVFO sentence on two grounds: (1) Once the trial court initially imposed sentence as an HFO with no minimum term and Ashley then began to serve that sentence, it was a violation of double jeopardy for the trial court to later impose a more onerous sentence and (2) the First District s decision conflicts with a longstanding principle of law - that a court s oral pronouncement of sentence controls over the written document. 1 Ashley, 850 So.2d at 1268 (citations omitted). Although, as this Court observed, the trial court s original oral pronouncement of sentence as an HFO may have been a simple mistake[,] its original oral pronouncement controlled. Id. at It is on the first ground identified in Ashley, supra, that Petitioner erroneously alleges that Allen, supra, is in conflict with Blakely, supra, and it is on this second ground that Petitioner erroneously alleges that Allen, supra, relying upon Hamilton, supra, is in conflict with Ashley, supra. (PJB 8-9). 1 On this second ground, this Court noted an exception where the oral pronouncement is in error due to a clerical error such as the calculation of jail credit. Id.(citation & footnote omitted)

13 However, being factually and legally distinguished, Ashley, supra, has no application. In Ashley, supra, this Court addressed the question of whether, once a defendant has already begun to serve a lawfully imposed sentence, double jeopardy bars the trial court from later haling that defendant back into court on its own motion and then imposing a more onerous sentence. The First District s decision in Allen, however, does not address or involve any such action by the trial court, but is a decision rendered by the appellate court on plenary direct review of Petitioner s judgment and sentence. Id. [T]he Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. Harris v. State, 645 So.2d 386, 388 (Fla. 1994). Thus, in Allen, supra, the First District did not reach a result opposite that in Ashley and Blakely, supra. There is no direct and express conflict on double jeopardy grounds. Furthermore, there is no conflict with Ashley s reiteration of longstanding Florida law that the trial court s oral pronouncement controls over the written sentence. In the present case, the sentencing court, having been erroneously led by the prosecutor to believe that Count II was the second-degree felony - 9 -

14 robbery conviction, orally pronounced a 15-year sentence and, believing Court III to be the third-degree felony burglary conviction based on the prosecutor s prior erroneous representation, orally pronounced a 5-year sentence. Allen, supra. The court then imposed sentence accordingly. Thus, although the court identified the wrong numeric counts of conviction, its oral pronouncement of sentence was 5-years for burglary and 15-years for robbery. As observed in Harris, supra, sentencing should not be a game in which a wrong move by a judge means immunity for the prisoner. Consistent with Ashley, supra, in discerning Petitioner s sentences, Allen, supra, looks to the record of the sentencing hearing, not the written sentence. The question of by what means the oral pronouncement of sentence may be discerned was not at issue in Ashley, supra, nor was it addressed by this Court. Therefore, rather than being in conflict, Allen, supra, is in harmony with Ashley, supra. There is no express and direct conflict of decisions. CONCLUSION Based on the foregoing discussions, the State respectfully requests that this Honorable Court decline jurisdiction

15 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to William Murphy Allen, Jr., DC# P11884, Dade Correctional Institution, S.W. 377 th St., Florida City, FL 33034, by MAIL on September 12, Respectfully submitted and served, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER Tallahassee Bureau Chief, Criminal Appeals Florida Bar No BRYAN JORDAN Assistant Attorney General Florida Bar No Attorneys for State of Florida Office of the Attorney General PL-01, The Capitol Tallahassee, FL (850) (850) (Fax) [AGO# L ] CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P Bryan Jordan Attorney for State of Florida

16 IN THE SUPREME COURT OF FLORIDA WILLIAM MURPHY ALLEN JR., v. Petitioner, STATE OF FLORIDA, Respondent. CASE NO. SC L.T. CASE NO. 1D APPENDIX CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO BRYAN JORDAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL (850) (850) (FAX) COUNSEL FOR RESPONDENT

17 IN THE SUPREME COURT OF FLORIDA WILLIAM MURPHY ALLEN JR., v. Petitioner, STATE OF FLORIDA, Respondent. CASE NO. SC L.T. CASE NO. 1D INDEX TO APPENDIX Allen v. State, 929 So.2d 667 (Fla. 1st DCA 2006)

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