IN THE SUPREME COURT STATE OF FLORIDA PETITIONER S BRIEF ON JURISDICTION

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA JACK WATKINS, HUNTER, BERNIE SIMPKINS, ET. AL. Case Number: SC09- Petitioners, 5 th DCA Number: 5D v. SCOTT ELLIS AS BREVARD COUNTY CLERK OF COURT, Respondent. / PETITIONER S BRIEF ON JURISDICTION EISENEMNGER, BERRY & PETERS, P.A. ROBERT R. BERRY FLORIDA BAR NUMBER VILLAGE DRIVE VIERA, FLORIDA (321) (OFFICE) (321) (FAX) litigators@bellsouth.net Attorney for Petitioner Simpkins

2 TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF CITATIONS 3 STATEMENT OF CASE AND FACTS 4 SUMMARY OF ARGUMENT 7 ARGUMENT 8 ARGUMENT ON ISSUE OF JURISDICTION 8 CONCLUSION 11 CERTIFICATE OF SERVICE 12 CERTIFICATE OF FONT 12 2

3 TABLE OF CITATIONS Cases Delta Property Management Inc v. 9 Profile Investments Inc., 875 So.2d 443 (Fla. 2004). Scott Ellis as Brevard County Clerk of Court 8, 9 v. Hunter, et. al, 34 Fla. L. Weekly D165 (Fla. 5 th DCA 2009) Florida Statutes Section , Florida Statutes (2007) 8, 9 Florida Constitution Article V, Section 3(b), Florida Constitution 8 Article V, Section 16, Florida Constitution 9 Rules of Procedure Fla. R. App. P (a)(2) 8, 9 Fla. R. App. P

4 STATEMENT OF CASE AND FACTS Bernard Simpkins files this brief on jurisdiction seeking a review by this Court of the Fifth District Court of Appeal decision in. Scott Ellis as Brevard County Clerk of Court v Hunter, et. al, 34 Fla. L. Weekly D165 (Fla. 5 th DCA 2009). A copy of the Fifth District s ruling accompanies this Brief as required by Fla. R. App. P (d). The Fifth District s decision contained the following statement of fact and case: [T]he defendant, Jack Hunter, was convicted of committing [DUI]. Suffice it to say that after Hunter was charged with driving under the influence of alcohol, another individual, Bernard Simpkins, who was previously Hunter's father-in-law, posted a cash bond in the amount of $5,000 to secure Hunter's release from jail. The bond form Simpkins signed specifically provided: 1) Section , Florida Statutes, requires the Clerk of the Court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid court fees, court costs and criminal penalties. 2) A refund will only be made if the cash bond is more than what is owed on ALL of the defendant's cases. Specifically referenced in the bond is section , Florida Statutes, which provides: Notwithstanding the provisions of s (2), the clerk of the court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid court fees, court 4

5 costs, and criminal penalties. In the event that sufficient funds are not available to pay all unpaid court fees, court costs, and criminal penalties, the clerk of the court shall immediately obtain payment from the defendant or enroll the defendant in a payment plan pursuant to s , Fla. Stat. (2007). The statute was enacted effective July 1, [footnote omitted] Hunter subsequently entered a plea to the DUI charge, and as part of his sentence the trial court assessed a total of $1, in fines, court costs, and fees. At the time of this assessment, Hunter had outstanding unpaid fines, costs, and criminal penalties in three other criminal cases totaling $3, [footnote omitted] Accordingly, the Clerk of Court deducted that sum, along with the $1, assessed in the instant DUI case, from the cash bond. After all the deductions, there was nothing to remit to Simpkins. (Opinion at pp 2-4). Simpkins sought return of the money he posted. To that end, he challenged Section on various grounds. These issues were litigated before the Honorable Oscar Hotusing, County Court Judge, Brevard County, Florida. Judge Hotusing ruled the statute was constitutional. (Opinion at page 4). Judge Hotusing certified the following question as ones of great public importance: Is Florida Statute constitutional and if so [what] is the statutory interpretation as to the definition of any costs and fees. (Opinion at page 2). The Fifth District restated the questions as follows: [1] Does section violate the constitutional provisions relating to due process, equal protection, excessive bail, eminent domain, or the single subject rule? 5

6 [2] Does section apply to any unpaid fees, court costs, and criminal penalties in all of the defendant's criminal cases? (Opinion at page 2). The Fifth District ruled the statute was constitutional and further ruled as to the second question that does apply to all unpaid fees, court costs, and criminal penalties in all of the defendant s criminal cases, past and present. Petitioner filed a notice of intent to invoke the discretionary jurisdiction of this court in a timely manner. This Brief on Jurisdiction follows. 6

7 SUMMARY OF ARGUMENT Bernard Simpkins requests this Honorable Court invoke its discretionary review authority and grant review of the Fifth District Court of Appeal decision in Scott Ellis as Brevard County Clerk of Court v. Hunter, et. al, 34 Fla. L. Weekly D165 (Fla. 5 th DCA 2009). The Fifth District found Section , Florida Statutes (2007) constitutional in the face of challenges to it on due process, equal protection, eminent domain, single subject rule, and excessive bail. The Fifth District also ruled on its interpretation of the statute s language. This Court can and should use its discretion in favor of ruling on the issue of the constitutionality of Section , Florida Statutes. This case falls within four (4) of the categories where discretionary review can be granted. The Fifth District expressly declared valid a state statute. The Fifth District expressly construed provisions of the federal and state constitution. The Fifth District ruling affects a class of constitutional officers, i.e. clerks of court. The Fifth District s ruling was on questions certified to be of great public importance by the County Court Judge who originally heard the case. 7

8 ARGUMENT: THIS COURT SHOULD EXERCISE ITS DISCRETION IN FAVOR OF HEARING THIS CASE AS FOUR OF THE SIX CRITERIA UNDER 9.030(2)(A) ARE MET. Article V, Section 3(b) of the Florida Constitution and Fla. R. App. P (a)(2)(A) outline the circumstances under which this Court can invoke its discretionary authority to hear cases from lower courts. Four of those criteria apply here. First, 9.030(a)(2)(A)(i) provides for discretionary review of decisions that expressly declare valid a state statute. Clearly, the decision in this case does that, as the Fifth District ruled on challenges to the statute involving, the due process clause, the equal protection clause, the eminent domain clause, the single subject rule, and the prohibition against excessive bail. Second, 9.030(a)(2)(A)(ii) provides for discretionary review of decisions that expressly construe a provision of the state or federal constitutions. In this case, the due process, equal protection, eminent domain, and excessive bail provisions of the federal constitutions are interpreted, as well as the single-subject rule of the state constitution. Third, 9.030(a)(2)(A)(iii) provides for discretionary review of decisions that expressly affect a class of constitutional officers. The clerk of court is a constitutional officer. See, Article V, Section 16, Florida Constitution and Delta Property Management Inc v. Profile Investments Inc., 875 So.2d 443 (Fla. 2004). 8

9 Finally, 9.030(a)(2)(A)(v) provides for discretionary review of decisions that pass upon a question certified to be of great public importance. County Judge Hotusing certified the issues here as being of great public importance, and the Fifth District restated the single question posed by Judge Hotusing into two separate questions to better frame its decision. Thus, the decision at issue here fits four of the criteria provided by our constitution and our rules of appellate procedure for the exercise of this Court s discretionary jurisdiction. The 1977 Committee note to Fla. R. App. P states the Petitioner may wish to include a very short statement of why the supreme court should exercise its discretion and entertain the case on the merits if it finds it does have certiorari jurisdiction. To that end, the Petitioner would offer these brief thoughts. When an individual is arrested and taken to jail, it often falls to family and friends to bond them out. These people often have little knowledge of the legal system. Those who believe they get their money back as long as the defendant makes all of his or her court appearances are incorrect in that assumption under the statute at issue here. Those who are familiar with the statute face an interesting choice. They can decline entirely to assist their friend or loved one, leaving them there indefinitely. They can post a cash bond, not knowing whether they will receive all, part or none of the money they posted. Finally, they can make the financial decision to essentially forfeit approximately ten (10) percent of 9

10 the amount of the bond by retaining the services of a bail bondsman. The effect of this statute is to steer people in either the first or third of these choices, with the likelihood they will opt for the third if they care enough about their friend or loved one to obtain their release from jail. The real winners with this legislation are bail bondsmen, since anyone knowledgeable about this statute will gamble on the bond premium being less than the amount they stand to lose if they post a cash bond. Those who do not read the fine print when they post a bail bond will continue to lose the money they thought would be returned to them. This issue affects a substantial number of people when one considers the number of arrests occurring on a daily basis in the State of Florida, and therefore merits resolution by this Honorable Court. 10

11 CONCLUSION WHEREFORE, the Petitioner prays this Honorable Court exercise its discretion and grant review of the Fifth District Court of Appeal decision in the above referenced action. 11

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished by U.S. Mail delivery to Richard Stadler, Attorney for Clerk of Court, 1830 Garden Street, Titusville, Florida this 19 day of February, EISENEMNGER, BERRY & PETERS, P.A. ROBERT R. BERRY FLORIDA BAR NUMBER VILLAGE DRIVE VIERA, FLORIDA (321) (OFFICE) (321) (FAX) litigators@bellsouth.net Attorney for Petitioner CERTIFICATE OF FONT I HEREBY CERTIFY the size and style of type used in this Brief is point proportionally spaced Times New Roman, 14 point. ROBERT R. BERRY FLORIDA BAR NUMBER