IN THE SUPREME COURT OF FLORIDA. Petitioner, L.T. Case No. 4D ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL

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1 IN THE SUPREME COURT OF FLORIDA OLIVER BOZEMAN, CASE NO. SC Petitioner, L.T. Case No. 4D vs. STATE OF FLORIDA, Respondent. **************************************************************** ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL **************************************************************** RESPONDENT S BRIEF ON JURISDICTION CHARLES J. CRIST, JR. ATTORNEY GENERAL Tallahassee, Florida JAMES J. CARNEY SENIOR ASST. ATTORNEY GENERAL Florida Bar No RICHARD VALUNTAS Florida Bar No Assistant Attorney Generals 1515 North Flagler Drive 9th Floor West Palm Beach, FL (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF CONTENTS ii - TABLE OF AUTHORITIES iii - PRELIMINARY STATEMENT STATEMENT OF THE CASE AND FACTS SUMMARY ARGUMENT ARGUMENT THERE IS NO BASIS FOR DISCRETIONARY REVIEW OF THE DECISION OF THE DISTRICT COURT; THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii -

3 TABLE OF AUTHORITIES Cases Cited Page Number Bozeman v. State, 931 So. 2d 1006 (Fla. 4th DCA 2006).... 3,4 Bronson v. State, 926 So. 2d 480 (Fla. 2d DCA 2006) F.W.B. v. State, 538 So. 2d 969 (Fla. 1st DCA 1989) Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979).....2,3 K.V. v. State, 516 So. 2d 1087 (Fla. 2d DCA 1987) ,5 Walker v. State, 896 So. 2d 712 (Fla. 2005) Other Authorities Art. V., 3(b)(3), Fla. Const Fla. R. App. P (a)(2)(A)(iv) iii -

4 PRELIMINARY STATEMENT The respondent, State of Florida, was the prosecution in the trial court and was the appellee before the Fourth District Court of Appeal. The respondent will be referred to herein as the State. The petitioner, Oliver Bozeman, was the defendant in the trial court and was the appellant before the Fourth District Court of Appeal. The respondent will be referred to as petitioner. STATEMENT OF THE CASE AND FACTS The State accepts petitioner s statement of the case and facts for the purposes of this brief, subject to the additions/clarifications set forth below and in the argument section of this brief. In this case petitioner drove a Mazda vehicle that was pushing a stolen Chevy Malibu, which did not have any lights or tag. The Chevy Malibu had a shattered window, glass was on the floorboard, there was damage to the steering column, and nobody on the scene had a key to the vehicle. SUMMARY ARGUMENT This Court should decline to review the instant case because there is there is no express and direct conflict between this case and the decisions of other district courts of appeal

5 ARGUMENT THERE IS NO BASIS FOR DISCRETIONARY REVIEW OF THE DECISION OF THE DISTRICT COURT; THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND THE DECISIONS OF OTHER DISTRICT COURTS OF APPEAL Petitioner seeks to invoke the discretionary jurisdiction of this Court pursuant to Article V, section 3(b)(3), of the Constitution of the State of Florida. This section grants this Court discretionary jurisdiction to 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 also Fla. R. App. P (a)(2)(A)(iv). Specifically, petitioner contends the Fourth District s decision in the instant case conflicts with the Second District s decisions in K.V. v. State, 516 So. 2d 1087 (Fla. 2d DCA 1987) and Bronson v. State, 926 So. 2d 480 (Fla. 2d DCA 2006), as well as the First District s decisions in Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979) and F.W.B. v. State, 538 So. 2d 969 (Fla. 1st DCA 1989). For the reasons set forth below, it is clear there is no conflict and this Court should decline to exercise its jurisdiction over this case. Petitioner initially contends the decision in Bozeman v. State, 931 So. 2d 1006 (Fla. 4th DCA 2006) directly and - 2 -

6 expressly conflicts with the First District s opinion in Griffin. Petitioner s argument is misplaced because the First District s decision in Griffin is factually distinguishable from the instant case. In Griffin, the defendant and a co-defendant were charged with burglary of a dwelling with an assault. The co-defendant was apprehended a short time after the burglary in possession of items taken from the victim. The evidence introduced at trial did not connect the defendant with the codefendant, nor was the defendant ever connected to the items found in the co-defendant s possession. The First District held the trial court s instruction on recently stolen property was improper because there was not factual basis for the charge. Griffin, 370 So. 2d at 861. In contrast to Griffin, the evidence presented in this case showed that petitioner drove a Mazda vehicle that was pushing a stolen Chevy Malibu, which did not have any lights or tag. The Chevy Malibu had a shattered window, glass was on the floorboard, there was damage to the steering column, and nobody on the scene had a key to the vehicle. This evidence directly connected petitioner with the stolen Chevy Malibu, and he clearly exercised dominion and control over the stolen vehicle by pushing it. In fact, as the Fourth District pointed out below, [w]ithout appellant s actions, the car could not have - 3 -

7 been moved. Bozeman. The evidence presented in Griffin, however, completely failed to connect the defendant with the stolen property that was recovered from the co-defendant at a different location. Accordingly, it is clear there is no conflict between Griffin and the Fourth District s decision in the instant case. Petitioner also submits the decision in the instant case conflicts with the Second District s decision in K.V. Petitioner s argument is misplaced because the Second District s decision K.V. is factually distinguishable from the instant case. The Second District s decision in K.V. involved a defendant who, along with several others, was found in possession of a stolen moped one week after the burglary involving the moped occurred. The defendant in K.V. testified that one of the other boys owned the moped, and the defendant saw the other boy driving the moped around the neighborhood during the previous week. The only evidence the State presented regarding the burglary or the theft of the moped was that the moped was previously reported stolen one week earlier. The defendant s motion for judgment of acquittal was denied by the trial court, and the Second District reversed. In its holding, the Second District noted the inference of guilt was - 4 -

8 inapplicable because the burglary was committed approximately one week earlier. K.V., 516 So. 2d at The instant case, in contrast to K.V., involves grand theft of a car stolen the night petitioner was apprehended by law enforcement, not approximately one week earlier. Nothing in Bozeman indicates that petitioner, like the defendant in K.V., previously saw Mr. Bolling [the person steering the stolen vehicle] driving the Chevy Malibu around the neighborhood. In this case petitioner, unlike the defendant in K.V., drove a Mazda vehicle that pushed a Chevy Malibu which (1) did not have any lights or tag, (2) had a shattered window, (3) had glass on the floorboard, and (4) had damage to the steering column. Nothing in K.V. indicates that the stolen moped had similar warning signs that it was stolen. Accordingly, this Court should reject petitioner s assertion that a conflict exists between K.V. and the instant case. The First District s decision in F.W.B. is distinguishable because nothing in that case established that the defendant ever possessed the radio that was stolen. The defendant in F.W.B. was one of four boys delivering newspapers inside of a building the day a radio was stolen from inside of an office. No evidence indicated the defendant was ever on the floor the radio was stolen from, and the stolen radio was found beneath a car - 5 -

9 seat in a vehicle driven by an adult supervisor when none of the boys were present in the vehicle. Petitioner, unlike the defendant in F.W.B., clearly exercised dominion and control over the stolen vehicle by pushing it with his own vehicle. There was no evidence in F.W.B. suggesting that the defendant pushed, pulled, carried, or otherwise exercised control over the stolen radio located in the adult supervisor s car. Since the decision in F.W.B. is factually distinguishable from the instant case, this Court should not exercise its discretionary jurisdiction. The most recent case cited by petitioner, Bronson, does not conflict with the decision in Bozeman either. The decision in Bronson addressed the trial court s denial of a defendant s motion for judgment of acquittal. The instant case, in contrast, deals with giving a jury instruction on recently stolen property. The defendant in Bronson, unlike petitioner, was simply a passenger in a vehicle which contained items stolen during a burglary. Furthermore, the evidence presented at trial in Bronson revealed the defendant was at his half-sister s house when the burglary occurred. No evidence in Bronson suggested that the defendant pushed, pulled, carried, or otherwise exercised control over the property taken from the burglarized residence. The evidence in - 6 -

10 the instant case, however, revealed that petitioner exercised control over the stolen Chevy Malibu by pushing it with the vehicle he was driving. The decision in Bronson is clearly distinguishable from the instant case, and this Court should not exercise its discretionary jurisdiction over this case. 1 CONCLUSION WHEREFORE based on the foregoing arguments and authorities cited herein, the State respectfully requests this Honorable Court decline jurisdiction over this case. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL Tallahassee, Florida JAMES J. CARNEY Senior Asst. Attorney General Florida Bar No.: RICHARD VALUNTAS Assistant Attorney General Florida Bar No.: North Flagler Drive 9th Floor West Palm Beach, FL (561) CERTIFICATE OF SERVICE 1 Petitioner s Brief on Jurisdiction fails to acknowledge that the Fourth District s decision below is supported by this Court s decision in Walker v. State, 896 So. 2d 712 (Fla. 2005)

11 I HEREBY CERTIFY that a copy of this brief has been furnished via U.S. Mail to: ANTHONY CALVELLO, Assistant Public Defender, 421 Third Street, 6 th Floor, West Palm Beach, FL on August, RICHARD VALUNTAS Assistant Attorney General CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared with Courier New 12 point type and complies with the font requirements of Rule Of Counsel - 8 -