In The Supreme Court of Florida. Case No. SCI ANTHONY CUMMINGS, Petitioner, versus STATE OF FLORIDA, Respondent.

Transcription

1 In The Supreme Court of Florida *9 p y By Case No. SCI ANTHONY CUMMINGS, Petitioner, versus ORIGINAL STATE OF FLORIDA, Respondent. ON REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT PETITIONER'S JURISDICTIONAL BRIEF ANTHONY CUMMINGS #X06057 Avon Park Correctional Institution P.O. Box 1100 Avon Park, FL Petitioner In Propria Persona

2 TABLE OF CITATIONS TABLE OF CONTENTS Page ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 5 JURISDICTIONAL STATEMENT 5 ARGUMENT THE FIFTH DISTRICT'S DECISION IN CUMMINGS V. STATE, 36 FLA. L. WEEKLY D1094 (FLA. 5TH DCA MAY 20, 2011), EXPRESSLY AND DIRECTLY CONFLICTS WITH WALDEN V. STATE, 979 SO. 2D 1206 (FLA. 4TH DCA 2008) 6 CONCLUSION 9 CERTIFICATE OF SERVICE 10 CERTIFICATE OF COMPLIANCE 10

3 CASES; TABLE OF CITATIONS Page(s) Clevenger v. State, 967 So. 2d 1039 (Fla. 5th DCA 2007) 5, 7, 9 Cummings v. State, 36 Fla. L. Weekly D1094 (Fla. 5th DCA May 20, 2011) 5-6, 8-9 Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), rev, dismissed, 928 So. 2d 1176 (Fla. 2006) 7 Reed v. State, 649 So. 2d 227 (Fla. 1995) 8-9 Sherrod v. Franza, 427 So. 2d 161 (Fla. 1983) 4 n.l State v. Banks, 50 So. 3d 730 (Fla. 5th DCA 2010) 5 State v. Brandt, 460 So. 2d 444 (Fla. 5th DCA 1984) 7 State v. Hanna, 858 So. 2d 1248 (Fla. 5th DCA 2003) 5 State v. McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006) 8 State v. McCullers, 872 So. 2d 313 (Fla. 4th DCA 2004) 8 Walden v. State, 979 So. 2d 1206 (Fla. 4th DCA 2008) 6-9 Williams v. State, 791 So. 2d 1088 (Fla. 2001) 6-8 n

4 Williams v. State, 946 So. 2d 1163 (Fla. 1st DCA 2006) 9 CONSTITUTIONAL PROVISIONS; Art. V, 3(b)(3), Fla. Const. (1980) 6 U.S. Const, amend. VI 4 n.l RULES OF COURT; Fla. R. App. P (a)(2)(A)(iv) 6 Fla. R. Crirn. P n.l, 7 Fla. R. Crim. P (i) 7 Fla. R. Crim. P (/) 7 Fla. R. Crim. P (p) 4, 7-8 Fla. R. Crim. P (p)(2) 8 OTHER; 12AFla. Jur. 2d, Courts and Judges 114(2011) 6 Philip J. Padovano, Florida Appellate Practice 28:2 (2011 ed.) 6 in

5 STATEMENT OF THE CASE AND FACTS The Narcotics Enforcement Team (NET) of the Osceola County Sheriffs Office received information about the possible location of methamphetamine lab. Thus, on April 30, 2008, Deputies Howard Griffin and Irving Molina, as well as other NET members, arrived at 3761 Henry J Avenue in St. Cloud, Florida. This rural area had dirt roads and acre-sized lots, mostly with mobile homes on them. Deputies found a couple of trailers on the property in question. In the front of the lot, near the main road, was a mobile home where some children were playing on the front porch. In a separately fenced-in area of the same lot, deputies spotted a small camper-type trailer parked in the backyard. Deputies set up surveillance, but did not see any movement at the trailer in the rear. Allegedly concerned about the safety of the children, Griffin hopped the fence and asked the children on the porch if their parents were home. He learned that they were not. Griffin and other deputies then proceeded to the other trailer that was parked near the back of the lot. After Griffin knocked, Anthony Cummings opened the door and started talking. Griffin and Molina immediately noticed a very strong odor of chemicals emanating from inside the trailer. Griffin associated the smell only with the odor of methamphetamine labs that he had visited in the past. He also noticed white residue on the top of a digital

6 scale on the bed that was just inside the door of the trailer. Cummings asked if he could put on his shoes and talk to the deputies outside. When they agreed, Cummings sat on the bed, put on his shoes, and walked outside. Griffin explained to Cummings that deputies had received information that there was a methamphetamine lab located in his trailer. He admitted to an addition to the drug, but denied the presence of a lab. Cummings added that he smoked the drug and that his pipe was in the trailer, but that was the extent of it. Griffin noticed a barrel used to burn trash next to the trailer. Inside, he found an empty, burned can that had a label indicating that it used to contain Acetone. Griffin explained that in addition to being used for thinning paint, Acetone is one of the main ingredients for the manufacture of methamphetamine. Griffin asked Cummings if he would consent to a search of his trailer. He denied the request. While a couple of deputies remained with Cummings at the trailer, Griffin proceeded to get a search warrant. He then contacted a specialized crew qualified to dismantle and investigate methamphetamine labs. Manuel Serdio, a member of the multi-jurisdictional narcotics task force, arrived on the scene for the task of dismantling the suspected methamphetamine lab found in Cummings' trailer, where he immediately noticed a stale odor of chemicals used to make methamphetamine.

7 Serdio and his team found all of the ingredients and tools required to manufacture and smoke methamphetamine, including crushed pills, plastic tubing, a hotplate, a Pyrex measuring cup, a digital scale, solvents, a butane torch, hydrogen peroxide, Coleman camp fuel, muriatic acid, funnels, a gas generator, iodine crystals, coffee filters, cotton balls, aluminum foil, an empty can of Acetone, glass beakers, and nail polish remover. Serdio collected, packaged, and sent the evidence to a lab for testing. He then retrieved a trash can from inside the trailer and brought it outside. Deputies also found a pipe that tested presumptively positive for methamphetamine residue. Griffin then arrested Cummings and charged him with possession of methamphetamine and paraphernalia. While the State ended up dropping the felony possession of methamphetamine charge, Cummings entered a guilty plea to the misdemeanor paraphernalia charge. Later, on October 1, 2008, while Cummings was serving his county jail sentence for that misdemeanor paraphernalia charge, he was arrested for trafficking in 200 or more grams of methamphetamine, manufacturing methamphetamine, and possession of a listed chemical. About a month later, on November 4, 2008 (some one-hundred and eightyseven (187) days after Cummings' arrest at his trailer in St. Cloud), the State of Florida filed an information charging him with trafficking in 200 or more grams of

8 methamphetamine (Count One), manufacturing methamphetamine (Count Two), and possession of a listed chemical (Count Three). Thus, on November 10, 2008, Cummings filed a motion for discharge pursuant to Florida Rule of Criminal Procedure 3.191(p), based upon the violation of his speedy trial rights.1 Nearly a month later, on December 5, 2008, the trial court finally held a hearing, heard argument from the parties, and denied Cummings' motion for discharge. As a result, Cummings was tried before a jury on February 4, At the close of the State's case, Cummings asked the trial court to reconsider the denial of his motion for discharge. After hearing additional argument from the parties, the trial court once again denied Cummings' motion for discharge, but it did grant his motion for judgment of acquittal on the felony possession of a listed chemical charge (Count Three). Following deliberation, jurors found Cummings guilty of trafficking in 200 or more grams of methamphetamine (Count One), and yet they acquitted him of manufacturing methamphetamine (Count Two). Later, on direct appeal, the Fifth District affirmed Cummings' conviction, explaining that: 1 "Rule was promulgated by this Court for the purpose of implementing the right of a defendant to a speedy trial under the Constitution of the State of Florida as well as the Sixth Amendment to the United States Constitution." Sherrod v. Franza, 427 So. 2d 161, 163 (Fla. 1983).

9 Appellant challenges his conviction based on an alleged speedy trial violation. He argues that his conviction was based on charges that arose from the same criminal episode as charges for which the speedy trial period had expired. We conclude that, although the charges were all related to illicit drugs, each involved distinct acts and distinct crimes. Therefore, they did not arise from the same criminal episode for speedy trial purposes. See State v. Banks, 50 So. 3d 730 (Fla. 5th DCA 2010) (defendant's charges for dealing in stolen property and possession of firearm with altered serial number, though related to charge of burglary involving theft of firearms, not part of same criminal episode); ClevenRer v. State, 967 So. 2d 1039, 1041 (Fla. 5th DCA 2007) ("Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences."); State v. Hanna, 858 So. 2d 1248, 1250 (Fla. 5th DCA 2003) ("[W]hen different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts."). AFFIRMED. Cummings v. State, 36 Fla. L. Weekly D1094, D1094 (Fla. 5th DCA May 20, 2011) (emphasis supplied). SUMMARY OF THE ARGUMENT This Court has discretionary jurisdiction to review the Fifth District's decision in Cummings because it expressly and directly conflicts with the Fourth District's decision in Walden v. State, 979 So. 2d 1206 (Fla. 4th DCA 2008). JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a district court of appeal where, like here, that decision expressly and directly conflicts with

10 a decision of another district court of appeal on the same point of law. See Art. V, 3(b)(3), Fla. Const. (1980); Fla. R. App. P (a)(2)(A)(iv) (2011); 12A Fla. Jur. 2d, Courts and Judges 114 (2011); Philip J. Padovano, Florida Appellate Practice 28:2 (2011 ed.). ARGUMENT THE FIFTH DISTRICT'S DECISION IN CUMMINGS V. STATE, 36 FLA. L. WEEKLY D1094 (FLA. 5TH DCA MAY 20, 2011), EXPRESSLY AND DIRECTLY CONFLICTS WITH WALDEN V. STATE, 979 SO. 2D 1206 (FLA. 4TH DCA 2008). In Walden, the Fourth District wrote that: Quenten Walden has filed a writ of prohibition seeking to prevent his criminal prosecution set for trial on May 15, We grant the petition on the authority of Williams v. State, 791 So. 2d 1088 (Fla. 2001). After a July 13, 2006 fight involving rival neighborhoods, Walden was arrested for the attempted murder of Justin Matthews on July 19, The state filed an information charging Walden with attempted first degree murder on August 8, Walden waived speedy trial in the Mathews case and that case is not involved in this proceeding. On September 6, 2006, while in custody on the Matthews case, Walden was arrested for the murder of Sherrod Smith. The murder occurred during the same July 13 criminal episode. By indictment, Walden was charged with Smith murder on December 19, On February 12, 2008, Walden moved for discharge in the Smith murder case, arguing that the state had violated his right to speedy trial by failing to file charges against him within 175 days of his arrest. The state replied that Walden should have filed a notice of expiration of speedy trial and petitioned the court for a recapture 6

11 period. See Fla. R. Crim. P (p). The state argued that Walden knew that the state intended to file formal charges based on information provided in the Matthews case. The trial court agreed with the state, finding that Walden was required to file a notice of expiration of speedy trial, thus triggering the state's obligation to bring him to trial during the recapture period. Prohibition lies to review a trial court's denial of a motion for discharge on speedy trial grounds. See, e.g., Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005), rev, dismissed, 928 So. 2d 1176 (Fla. 2006). The waiver of speedy trial in the Mathews case has no effect on this case. Even though the two crimes arose from the same fight, distinct acts against different victims constitute separate crimes for the purpose of the speedy trial rule. See Clevenger v. State, 967 So. 2d 1039, 1041 (Fla. 5th DCA 2007); State v. Brandt, 460 So. 2d 444, 446 (Fla. 5th DCA 1984). Rule 3.191(a) requires a defendant to be brought to trial within 175 days of his arrest for a felony offense. Here, the state filed formal charges over 290 days after the speedy trial time had expired. The state filed no motion to extend the speedy trial period. See Fla. R. Crim. P (i) & (/). This case is on all fours with Williams. There the state filed an information against a defendant 206 days after his arrest. 791 So. 2d at The defendant moved for discharge for violation of her speedy trial rights. The trial court treated the motion as a notice of expiration of speedy trial and set the case for trial within ten days. Id. The second district granted the defendant's writ of prohibition, quashed the trial court's order, and remanded the case for discharge. Answering a certified question, the supreme court held that rule should not be construed to allow the state to "effectively toll the running of the speedy trial period by allowing it to expire prior to filing of formal charges." Id. The supreme Court ruled that where the state did not file criminal charges until after the

12 175 day speedy trial period had expired, the state was not entitled to the rule 3.191(p) recapture period. Id. at Walden is in the same position as the defendant in Williams. The state filed no charges in the Smith case until after the 175 day speedy trial time had expired. Williams requires that the petition for writ of prohibition be granted. We distinguish State v. McCullers, 932 So. 2d 373 (Fla. 2d DCA 2006), the case relied upon by the circuit court. There a defendant was charged during the 175 day speedy trial period but arraigned afterward. Id at 376. The second district held that the state was entitled to the 10 day recapture period after the defendant moved for discharge. Id. The second district distinguished Williams as a case where the state's failure to "file charges prior to the expiration of the speedy trial period made it impossible for the defendant to file a notice of expiration pursuant to rule 3.191(p)(2)...." Id. at 375. Here, the state's filing of the information after the expiration of the speedy trial period takes this case out of the rule of McCullers and places it under the ambit of Williams. We have considered the state's citation to State v. Pfeiffer, 872 So. 2d 313 (Fla. 4th DCA 2004), but find it inapplicable, because that case involved a refilling of charges that had been timely filed. We observed that such a case was different than Williams, because the case was in existence at the time speedy trial expired, so it was not a situation where the failure to file charges served to "deprive the defendant of the opportunity to file a notice of expiration of speedy trial and avail himself of the rule's protection." Id. at 316. We grant the petition for writ of prohibition, quash the trial court's order of March 24, 2008, and remand the case for discharge. Id. at (some emphasis supplied). Thus, Cummings expressly and directly conflicts with Walden. Compare Cummings, 36 Fla. L. Weekly at D1094, with Walden, 979 So. 2d at ; see also Reed v. State, 649 So. 2d 227, (Fla. 1995) (finding that the speedy trial 8

13 time began to run on the defendant's armed robbery and kidnapping charges from the date of his arrest for armed robbery and several traffic offenses where such conduct or criminal episode gave rise to those robbery and kidnapping charges); Williams v. State, 946 So. 2d 1163, (Fla. 1st DCA 2006) (finding that the defendant was "taken into custody," for purposes of the speedy trial rule, on the date that she was issued a traffic citation for reckless driving and thus the speedy trial rule barred the State from prosecuting her for a subsequent felony charge of aggravated assault with a deadly weapon); accord Clevenger, 967 So. 2d at (Thompson, J., dissenting) (disagreeing with Clevenger and finding this Court's decision in Reed to be dispositive even though the aggravated batteries involved several different victims, including the decedent). CONCLUSION This Court has discretionary jurisdiction to review Cummings because it expressly and directly conflicts with Walden, and this Court should exercise that jurisdiction to entertain the merits of Cummings' arguments. Respectfully submitted, -H%o>n2 fl ANTHONY dummincjfe #X06057 THOWCUI Avon Park Correctional Institution P.O. Box 1100 Avon Park, FL Petitioner In Propria Persona

14 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY under the penalties of perjury that this brief complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210(a)(2) on this 23rd day of August, Anno Domini ANTHONY CUMMING^ CERTIFICATE OF SERVICE I HEREBY CERTIFY under the penalties of perjury that a true and correct copy hereof was served by first-class mail on Kellie A. Nielan, Assistant Attorney General, Criminal Appeals Division, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, FL , on this 23rd day of August, Anno Domini ANTHCNfY CUMMING 10