IN THE SUPREME COURT OF FLORIDA. Case No. SC L.T. CASE NO. 3D

Transcription

1 IN THE SUPREME COURT OF FLORIDA Case No. SC STANLEY RAPHAEL, vs. Petitioner, THE STATE OF FLORIDA Respondent. / PETITION FOR WRIT OF CERTIORARI DIRECTED TO THE DISTRICT COURT OF APPEAL, THIRD DISTRICT PETITIONER S BRIEF ON JURISDICTION Joseph P. Klock, Jr., Esq FBN Miguel A. Morel, Esq., FBN Rasco Klock Reininger Perez Esquenazi Vigil & Nieto 283 Catalonia Avenue Coral Gables, FL Ph: Fax: jklock@rascoklock.com mmorel@rascoklock.com Pro Bono Counsel for Petitioner, Stanley Raphael

2 TABLE OF CONTENTS Table Of Contents. i Table Of Authorities.. ii Statement Of The Case And Facts. 1 Jurisdictional Statement. 4 Summary Of The Argument.. 5 Argument... 5 Conclusion. 8 Certificate Of Compliance. 9 Certificate Of Service 10 i

3 TABLE OF AUTHORITIES CASES L.C. v. State, 750 So. 2d 160 (Fla. 3d DCA 2000)... 3 Lovelace v. State, 906 So. 2d 1258 (Fla. 4th DCA 2005)... 4, 5, 6, 8 State v. Agee, 622 So. 2d 473 (Fla. 1993)... 3, 8, 9 State v. Brogdon, 375 So. 2d 49 (Fla 2d DCA 1979)... 4 State v. Jackson, 784 So. 2d 1229 (Fla. 1 st DCA 2001)... 6 State v. Lovelace, 928 So. 2d 1176 (Fla. 2006)... 3 State v. Spence, 658 So. 2d 660, 661 (Fla. 3d DCA 1995)... 3 State v. Vasquez, 450 So. 2d 203 (Fla. 1984)... 3 The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)... 4 WALLACE V. DEAN, 3 SO. 3D 1035, 1049 (FLA. 2009)... 4 STATUTES Art. V, 3(b)(3) Fla. Const. (1980)... 4 RULES Fla. R. App. P (a)(2)(A)(iv)... 4 ii

4 STATEMENT OF THE CASE AND FACTS Petitioner, Stanley Raphael, was 16 years-old when he was charged with manslaughter following the accidental shooting of his best friend, which occurred while only Stanley and the deceased boy were in the room where the shooting occurred. Stanley had no prior contact with the system. After being held for 48 hours in secure juvenile detention, Stanley was released to home detention following an evidentiary hearing. Subsequently, on August 27, 2009, the State filed an information charging Stanley with Manslaughter With a Deadly Weapon in violation of section , Florida Statutes (2009). The case proceeded before Circuit Judge Henry Trawick for about 14 months. When Judge Trawick suppressed a statement allegedly made by Stanley to a police officer, the State appealed. While the appeal was pending, Judge Trawick recused himself after Stanley filed a sanctions motion alleging that the assistant state attorney - who serves as division chief before Judge Trawick on a regular basis had lied to the court. As a result, the matter was reassigned to Circuit Judge Diane Ward. The Third District affirmed Judge Trawick, and the mandate was received by the circuit court on August 6, On October 25, 2010, with the venire panel waiting in the hallway for jury selection, the State nolle prossed the case in open court. Then, on November 8, 1

5 2010, 91 days after the Third District s mandate, Stanley filed his Notice of Expiration of Speedy Trial. Subsequently, on November 8, 2010, the hearing on Stanley s Notice of Expiration of Speedy Trial was heard before Circuit Judge Rosa Rodriguez. Noting that a nolle prosse had been filed in the case, Judge Rodriguez did not set the case for trial. Fifteen days later, Stanley moved for a permanent discharge pursuant to Rules 3.191(n) and 3.191(p)(3) of the Florida Rules of Criminal Procedure. On November 29, 2010, Stanley s Motion for Permanent Discharge was heard in front of Acting Circuit [Senior County] Judge Robert Deehl. At that time, the State argued that the nolle prosse resulted in the court having lost jurisdiction to issue a permanently discharge order for Stanley as set forth in the Speedy Trial Rule. The State also argued that while it would be unlikely that Stanley would ever have to face a re-filing of charges, the State might re-file, and if so, he could then raise his rights under Rules 3.191(n) and 3.191(p) of the Florida Rules of Criminal Procedure. Despite the State s strong objections, Judge Deehl entered an order barring the State from prosecuting the crime contained in the information, but did not grant the further relief sought of barring the filing of any potentially chargeable crimes against Stanley arising out of the August 8, 2009 incident, which Stanley is entitled to under the Speedy Trial Rule. 2

6 On August 10, 2011, Stanley petitioned the District Court of Appeal of Florida, Third District, to issue a writ of prohibition / mandamus ordering the circuit court to enter an order permanently discharging Stanley from all potential charges arising out of Stanley s actions on August 8, 2011 the original occurrence for which the speedy trial period had already expired. And, on August 18, 2011, the Third District, while leaving the circuit court s order barring the State from prosecuting the crime contained in the information unscathed, dismissed Stanley s petition, holding: Upon review of the petition and the response, this Court dismisses the petition for writ of prohibition. See State v. Vasquez, 450 So. 2d 203 (Fla. 1984) (observing that entry of a nolle prosequi amounts to a dismissal or nullification of the charging document and renders nugatory any proceedings carried on subsequently under the same charging document); L.C. v. State, 750 So. 2d 160 (Fla. 3d DCA 2000) (holding that once the State announced a nolle prosequi, no charges remained pending and the trial court was divested of jurisdiction); State v. Spence, 658 So. 2d 660, 661 (Fla. 3d DCA 1995) (holding that upon the State s announcement of a nolle prose of the information, which was self-executing, the case was effectively nullified and the proceeding terminated). The Third District s dismissal of Stanley s petition because the State had entered a nolle prosse prior to Stanley filing his Motion for Permanent Discharge pursuant to the speedy trial rule directly conflicts with this Court s decisions in State v. Agee, 622 So. 2d 473 (Fla. 1993), and State v. Lovelace, 928 So. 2d 1176 (Fla. 2006), as well as the decision of its sister court in Lovelace v. State, 906 So. 3

7 2d 1258 (Fla. 4th DCA 2005); and the decision of the District Court of Appeal, Second District, in State v. Brogdon, 375 So. 2d 49 (Fla 2d DCA 1979). A motion to invoke this Court s discretionary jurisdiction was filed on September 19, Leave was sought from the Court to delay the service of this brief through 11 October JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of this Court or another district court of appeal on the same point of law. Art. V, 3(b)(3) Fla. Const. (1980); Fla. R. App. P (a)(2)(A)(iv); Wallace v. Dean, 3 So. 3d 1035, 1049 (Fla. 2009) (identifying misapplication of decisions as a basis for express and direct conflict under article V, section 3(b)(3) of the Florida Constitution). Further, it is not necessary that conflict actually exist for this Court to possess subject-matter jurisdiction, only that there be some statement or citation in the opinion that hypothetically could create conflict if there were another opinion reaching a contrary result. The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) (emphasis added) (Court had subject-matter jurisdiction over appeal of district court opinion expressly citing statute, even though the statute was only quoted and was not discussed nor expressly upheld against constitutional challenge). 4

8 SUMMARY OF THE ARGUMENT This Court should accept jurisdiction in this case to deal with the express and direct conflict between the cases cited below by the District Court of Appeal, Third District, which had nothing to do with the interplay between a nolle prosse and the Speedy Trial Rule and the several cases which have dealt with that interrelationship and come to conclusions different than the Third District. Despite Agee, 1 Lovelace, 2 and Brogdon, 3 all of which dealt with speedy trial rights following a nolle prosse, the Third District s opinion essentially incorrectly states that trial courts have no powers after the State files a nolle prose. allows the State to avoid the effects of the Speedy Trial Rule by entering a nolle prosse. ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S OPINION IN STATE v. AGEE, THE FOURTH DISTRICT IN LOVELACE v. STATE, AND THE SECOND DISTRICT IN STATE v. BROGDON. The Third District s opinion directly conflicts with the Fourth District s opinion in State v. Lovelace, 906 So. 2d 1258, 1260 (Fla. 4 th DCA 2005). In Lovelace, the court disagreed with the State s argument that the county court had 1 State v. Agree, 622 So. 2d 473, 474 (Fla. 1993). 2 Lovelace v. State, 906 So. 2d 1258, 1260 (Fla. 4 th DCA 2005); cert. dismissed, State v. Lovelace, 928 So. 2d 1176 (Fla. 2006) 3 State v. Brogdon, 375 So. 2d 49 (Fla. 2d DCA 1979) 5

9 lost jurisdiction to grant a motion to discharge a misdemeanor DUI after the State had entered a nolle prosse in county court and then filed a felony charge in circuit court, within the felony speedy trial period, and after the misdemeanor speedy trial period had expired. The court in Lovelace certified conflict with State v. Jackson, 784 So. 2d 1229 (Fla. 1 st DCA 2001) where the court had ruled that the county court no longer had jurisdiction to grant a motion for discharge after the State entered a nolle prosse and filed a felony charge in circuit court within the felony speedy trial period but before the misdemeanor speedy trial had expired. Id. The facts of this case are analogous to the facts in Lovelace given that Stanley moved for a permanent discharge under Rule 3.191, after the State nolle prossed the matter and after the speedy trial period had expired. Accordingly, the Third District Court s opinion is irreconcilable with this Court s and the Fourth District s opinions in Lovelace. The Third District s opinion also misapplies and conflicts with this Court s teachings in State v. Agee, 622 So. 2d 473, 474 (Fla. 1993). In Agee, the State unsuccessfully argued that the speedy trial rule has no application during the period after the entry of a nolle prosse and before charges are re-filed. Like in the matter at hand, the State argued that a defendant must file a motion for discharge after the State has re-filed charges. Id. at 474 (emphasis added). In rejecting this argument, this Court held that when the State enters a nol pros, the speedy trial 6

10 period continues to run and the State may not re-file charges based on the same conduct after the period has expired. Id. at 475. In Brogdon, an obviously irritated circuit judge had set aside a nolle prosse and entered an order of dismissal with prejudice when the State had announced in the morning that a witness would be available that afternoon to be deposed. When the witness did not show, the State filed a nolle prosse. The circuit judge entered an order setting aside the nolle prosse and dismissing the case with prejudice. The State then filed a new information, which a new judge dismissed as a collateral attack on the earlier dismissal order. The Second District reversed, holding that the trial judge could not set aside the nolle prosse because he lacked jurisdiction to do so. However, recognizing that there is inherent jurisdiction that survives a nolle prosse, the Second District stated: Brogdon at 50. Although we are reversing the dismissal with prejudice of the second information, we do take note of the events which led the lower court to dismiss the first information. Although we have ruled that dismissal was a nullity, nothing in this opinion should be construed as preventing the lower court from entering appropriate sanctions against the state for failure to comply with the discovery orders issues by the lower court. In incorrectly holding that a trial court loses all jurisdiction to enforce the Speedy Trial Rule once a nolle prosse is entered, the Third District fails to note or 7

11 follow precedent which grants to the trial court the ability to grant speedy trial-type relief after the entry of a nolle prosse by the state. CONCLUSION The Third District s holding that the trial court lost any ability to grant postnolle prosse relief to Stanley below directly conflicts with the Agee decision of this Court and the Lovelace and Brogdon decisions of the Fourth and Second District courts respectively. Having established that the Court has subject matter jurisdiction, Stanley would urge the Court to exercise that jurisdiction and take this case to clarify the law in Florida that a defendant who has speedy trial rights cannot have them quashed by the State s action in filing a nolle prosse, especially where that leaves the state in the position of being able to re-file charges for years to come, while left in its hand is the Sword of Damocles hanging over the necks of the innocent, a result never intended by this Court's rules or its and sister appellate courts decisions. This Court knows the reasons why the law which the Third District conflicts with exists. As it stated in Agee: To allow the State to unilaterally toll the running of the speedy trial period by entering a nol pros would eviscerate the rule-a prosecutor with a weak case could simply enter a nol pros while continuing to develop the case and then refile charges based on the same criminal episode months or even years later, thus effectively denying an accused the right to a speedy trial while the State strengthens its case.... 8

12 While Agee has been in Tennessee prison, his witnesses may have relocated and their memories faded, and other evidence may have grown stale or disappeared. To allow the State to prosecute under these circumstances would violate the intent of the rule. Agee at 475; Agee at 476. Respectfully submitted, Joseph P. Klock, Jr., Esq., FBN Miguel A. Morel, Esq., FBN RASCO KLOCK REININGER PEREZ ESQUENAZI VIGIL & NIETO 283 Catalonia Avenue Coral Gables, FL Ph: Fax: Pro Bono Counsel for Stanley Raphael By: Joseph P. Klock, Jr. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. By: Joseph P. Klock, Jr. 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this brief has been furnished to Lunar Alvey, Esq., Assistant Attorney General, 444 Brickell Avenue, Suite 650 Miami, Florida, by PDF and by Federal Express this 10th day of October, By: Joseph P. Klock, Jr , v. 1 10