IN THE SUPREME COURT OF FLORIDA. Petitioner, Case No. SC JURISDICTIONAL BRIEF OF RESPONDENT

Transcription

1 IN THE SUPREME COURT OF FLORIDA DELMART E.J.M. VREELAND, II, v. Petitioner, Case No. SC STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO JAY KUBICA 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# TABLE OF CONTENTS... ii TABLE OF CITATIONS... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 ISSUE: WHETHER THIS COURT HAS JURISDICTION TO REVIEW A DECISION OF THE FIRST DISTRICT COURT OF APPEAL BASED ON AN ALLEGED EXPRESS AND DIRECT CONFLICT WITH AN UNPUBLISHED ORDER OF THE SECOND DISTRICT COURT OF APPEAL, WHEN THAT ORDER DOES NOT CONTAIN SUFFICIENT FACTS FROM WHICH AN EXPRESS AND DIRECT CONFLICT CAN BE DETERMINED? (RESTATED)... 3 CONCLUSION... 6 CERTIFICATE OF SERVICE... 7 CERTIFICATE OF COMPLIANCE... 7 ii

3 CASES Ansin v. Thurston, TABLE OF CITATIONS PAGE# 101 So. 2d 808 (Fla. 1958)... 4, 5 Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 3 Dodi Publishing Co. v. Editorial America, S.A., 385 So. 2d 1369 (Fla. 1980)... 4 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 3, 4 Jollie v. State, 405 So. 2d 418 (Fla. 1981)... 4 Persaud v. State, 838 So. 2d 527 (Fla. 2003)... 4, 6 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3, 6 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)... 3 Vreeland v. State, 72 So.3d 802 (Fla. 1st DCA 2011)... 1 STATUTES Article V, 3(b)(3), Fla. Const... 3 iii

4 RULES Fla. R. App. P (a)(2)(A)(iv)... 3 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, Delmart E.J.M. Vreeland, II, the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner or by proper name. "PJB" will designate Petitioner's Jurisdictional Brief. That symbol will be followed by the appropriate page number. A will designate Petitioner s Appendix. That symbol will be 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 On October 19, 2011, the First District Court of Appeal dismissed Petitioner s appeal. The dismissal can be found at Vreeland v. State, 72 So.3d 802 (Fla. 1st DCA 2011).

6 SUMMARY OF ARGUMENT In the case at bar, there can be no express and direct conflict because the decision of the Second District Court of Appeal, upon which Petitioner relies, is not a decision which can create an express and direct conflict. Even if it were such a decision, the four corners of the document do not provide the necessary facts on which a determination of conflict could be made. Therefore, there can be no conflict of decisions, and this Court must dismiss this case for lack of jurisdiction. 2

7 ARGUMENT ISSUE: WHETHER THIS COURT HAS JURISDICTION TO REVIEW A DECISION OF THE FIRST DISTRICT COURT OF APPEAL BASED ON AN ALLEGED EXPRESS AND DIRECT CONFLICT WITH AN UNPUBLISHED ORDER OF THE SECOND DISTRICT COURT OF APPEAL, WHEN THAT ORDER DOES NOT CONTAIN SUFFICIENT FACTS FROM WHICH AN EXPRESS AND DIRECT CONFLICT CAN BE DETERMINED? (RESTATED) 1. Jurisdictional Criteria Petitioner contends that this Court has jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv), which parallels Article V, 3(b)(3), Fla. Const. The constitution 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. 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, 485 So. 2d at 830; Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)( regardless of whether they are accompanied by a dissenting or concurring opinion ). Thus, conflict cannot be based upon "unelaborated per curiam denials of relief," Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002). In addition, it is the "conflict of decisions, not conflict of opinions 3

8 or reasons that supplies jurisdiction for review by certiorari." Jenkins, 385 So. 2d at Thus, "this Court does not have jurisdiction to review per curiam decisions of the district courts of appeal that merely affirm with citations to cases not pending review in this Court," Persaud v. State, 838 So. 2d 527, (Fla. 2003) (citing Dodi Publishing Co. v. Editorial America, S.A., 385 So. 2d 1369 (Fla. 1980); Jollie v. State, 405 So. 2d 418 (Fla. 1981)). A district court of appeal opinion that is devoid of facts contains no holding that could conflict with another district court of appeal opinion: [I]n those cases where the district court has not explicitly identified a conflicting decision, it is necessary for the district court to have included some facts in its decision so that the question of law addressed by the district court in its decision can be discerned by this Court. Persaud, 838 So. 2d 527 at 533. In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958), this Court explained: It was never intended that the district courts of appeal should be intermediate courts. The revision 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 one District Court's decision reached a result opposite another 4

9 District Court s decision. 2. The decision below of the First District Court of Appeal is not and cannot be in "express and direct" conflict with an order of the Second District Court of Appeal. In the case at bar, the First District Court of Appeals dismissed Petitioner s appeal because his motion for appointment of counsel was not among the class of orders appealable by a defendant. Petitioner claims this dismissal expressly and directly conflicts with an unpublished order, lacking all precedential weight, of the Second District Court of Appeal, which reinstated a separate appeal of his for the purpose of the reviewing a different motion for appointment of counsel made in a separate case. (A 4). As noted above, it is the express and direct conflict of decisions which confers jurisdiction upon this Court. Decisions of a district court carry precedential weight, and an express and direct conflict in the decisions of district courts would create an inconsistency in the application of Florida law throughout the State. Jurisdiction in such a case is conferred upon this Court to preserve the uniformity of principle and practice in Florida. See Ansin, 101 So. 2d 808 at 810. Since the order of the Second District is not a decision which carries precedential weight, but merely an unpublished order issued to allow the consideration of Petitioner s case, the order is incapable of creating a disunity of principle and practice in Florida. Therefore, it cannot confer jurisdiction even if it did expressly and directly conflict with a decision of the First District. 5

10 Even if the Second District s order could constitute a decision, it does not contain sufficient facts from which an express and direct conflict could be determined. This Court has only Petitioner s word that the underlying facts of the case in the First District and the underlying facts in the case in the Second District are indistinguishable. As noted above, the facts on which a case is decided must be included in a decision, or it is impossible to determine whether an express and direct conflict exists. Persaud, 838 So. 2d 527 at 533. Such facts must appear with the decision itself for this Court to be able to consider them. Reaves, 485 So. 2d 829 at 830 n.3 (Fla. 1986). The Second District s order does not contain anything more than an indication that the issue on appeal derives from an order denying Petitioner s motion for appointment of counsel. (A 4). Since this information is insufficient to determine whether an express and direct conflict exists, jurisdiction cannot be conferred on this Court, even if the order of the Second District could be considered a decision. CONCLUSION Based on the foregoing discussions, the State respectfully requests this Honorable Court determine that it does not have jurisdiction. 6

11 CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to the following by U.S. MAIL on January 25, 2012: Delmart E.J.M. Vreeland, II, PO Box 2017, DOC# , Buena Vista, CO CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using Courier New 12 point font. Respectfully submitted and certified, PAMELA JO BONDI ATTORNEY GENERAL TRISHA MEGGS PATE Tallahassee Bureau Chief, Criminal Appeals Florida Bar No By: JAY KUBICA Florida Bar No Office of the Attorney General PL-01, The Capitol Tallahassee, Fl (850) (VOICE) (850) (FAX) L Attorney for the State of Florida 7