IN THE SUPREME COURT OF FLORIDA VS. : CAS-E NO. SC (1D ) STATE OF FLORIDA,

Transcription

1 Filing # Electronically Filed 09/15/ :21:41 PM RECEIVED, 9/15/ :24:04, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA JOSEPH A. WILLIAMS JR., : Petitioner, VS. : CAS-E NO. SC (1D ) STATE OF FLORIDA, Respondent. : ON DISCRETIONARY REVIEW OF THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF PETITIONER NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT KATHLEEN STOVER ASSISTANT PUBLIC DEFENDER FLORIDA BAR NUMBER LEON COUNTY COURTHOUSE 301 SOUTH MONROE STREET, SUITE 401 TALLAHASSEE, FLORIDA (850) ATTORNEY FOR PETITIONER

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF CITATIONS ii I STATEMENT OF THE CASE AND FACTS 1 II. SUMMARY OF ARGUMENT 2 III ARGUMENT 2 WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE DECISION OF THE DISTRICT COURT.IN THIS CASE BECAUSE IT 1) EXPRESSLY CONSTRUES A PROVISION OF THE U.S. CONSTITUTION, AND/OR 2) CONFLICTS WITH THIS COURT'S DECISION IN STATE V. COTTON, 769 SO.2D 345 (FLA. 2000) AND OTHER DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON WHETHER A PRISON RELEASEE REOFFENDER SENTENCE IS A MANDATORY MINIMUM SENTENCE. IV CONCLUSION 10 CERTIFICATE OF SERVICE 10 CERTIFICATE OF FONT SIZE 10 APPENDIX

3 TABLE OF CIT.ATIONS CASES PAGE(S) Allevne v. United States, U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) Apprendi v. New Jersey, 530 U.S. 466, 490,.120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) passim passim Blakely v. Washington, 4,5 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) Grant v. State, So.2d 655 (Fla. 2000) Harris v. United States 4,5 536 U.S. 545,. 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) Mike v. State, 9 So.3d (no. 4D ) (Fla. 4th DCA Jee n, 20M) Robinson v. State, So.2d 891 (Fla. 2001) Shepard v. United States, U.S. 13, 125 S.Ct. 1254, 1262, 161 L.Ed.2d 205 (2005) Sigler v. State, So.2d 14 (Fla. 4th DCA 2004),. affirmed, State v. Sigler, 967 So.2d 835 (Fla. 2D07) State v. Cotton, So,2d 345 (Fla. 2000) State v. Huqqins, So.2d 276 (Fla. 2001) Williams v. State, 1,2,3,4,8 143 So.3d 423 (Fla. 1st DCA 2014) 11

4 IN THE SUPREME COURT OF FLORIDA JOSEPH A.. WILLIAMS JR., : Petitioner, : VS. : CASE NO. SC (1D ) STATE OF FLORIDA, : Respondent. : JURISDICTIONAL BRIEF OF PETITIONER Supreme Court decision in Alleyne v. United States, U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The district court rejected this argument and affirmed his conviction and sentence. The district court followed pre-alleyne caselaw which held that Apprendi did not apply to PRR sentences. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). I STATEMENT OF THE CASE AND.FACTS This is an appeal from the decision of the First District Court of Appeal. Williams v. State, 143 So.3d 423 (no. 1D )(Fla. 1st DCA June 25, 2014), rehearing denied August 6, Williams was convicted of burglary of a dwelling and grand theft on the burglary, he was sentenced as a Prison Releasee Reoffender (PRR) to 15 years in prison. He argued on appeal that the PRR sentence was imposed unconstitutionally under the U.S. -1-

5 II SUMMARY OF THE ARGUMENT In the decision below, the First:District Court rejected petitioner's argument that the Prison Releasee. Reoffender (PRR) sentence was imposed unconstitutionally. Petitioner seeks review on. two grounds: First, the district court opinion expressly construes a provision of the federal constitution, the Sixth Amendment right to jury trial. Second, the lower court held Allevne did not apply to his PRR sentence inter alia because it "did not involve a mandatory minimum sentence..." Williams, 143 So.3d at 424. This holding is incorrect; a PRR sentence is a mandatory minimum sentence, as this court and other district courts have held; this part of the holding is in express and direct conflict with decisions of this court and other district courts. ISSUE PRESENTED III ARGUMENT WHETHER THIS COURT HAS JURISDICTION TO REVIEW THE DECISION OF THE DISTRICT COURT IN THIS CASE BECAUSE IT 1) EXPRESSLY CONSTRUES A PROVISION OF THE U.S. CONSTITUTION, AND/OR 2) CONFLICTS WITH THIS COURT'S DECISION IN STATE V. COTTON, 769 SO.2d 345 (FLA. 2000) AND OTHER DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON WHETHER A PRISON RELEASEE REOFFENDER SENTENCE IS A MANDATORY MINIMUM SENTENCE. Petitioner, Joseph Williams, argued in the First District Court below that the decision of the United States Supreme Court in Alleyne v. United States, U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), applied to the Prison Releasee Reoffender -2-

6 (PRR) sentence imposed on him, and the PRR sentence was imposed unconstitutionally under Alleyne. In Allevne, the U.S, Supreme Court held that facts which increase the mandatory minimum sentence are elements of the crime which must be submitted to the jury and found beyond a reasonable doubt. Id. at Petitioner argued below that a Prison Releasee Reoffender sentence is a type of mandatory minimum sentence, and under Allevne, the facts necessary to its imposition must be found by the jury. The First District Court agreed with this description of the holding of Allevne, but disagreed that Allevne applied to petitioner's case. Williams v. State, 143 So.3d 423, 424 (Fla. 1st DCA 2014). Petitioner seeks review on two grounds:. First, the district court opinion expressly construes a provision of the federal constitution, the Sixth Amendment right to jury trial. Second, the lower court held Allevne did not apply to his PRR sentence inter alia because it. "did not involve a mandatory minimum sentence..." Williams, 143 So.3d at 424. This holding is incorrect; a PRR sentence is a mandatory minimum sentence, as this court and other district courts have held; this part of the holding is in express and direct conflict with decisions of this court and other district courts. The first basis for this court's jurisdiction is that the The district court said: opinion expressly construes a provisìon of the federal constitution. -3-

7 Appellant argues the PRR. sentence is unconstitutional because the trial court, and not the jury, found the facts necessary to establish him as a prison releasee. reoffender. Williams, 143 So.3d at 424. In rejecting this argument, the district court expressly construed the Sixth Amendment right to jury trial. Further, Allevne decided the application of the Sixth Amendment, as did its predecessor cases, Apprendi and Blakely. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,.147 L.Ed.2d 435 (2000); see also Sigler v. State, 881 So.2d 14,.19 (Fla. 4th DCA 2004)("Apprendi's holding as to the meaning of the Sixth Amendment right to trial by jury in criminal cases is binding on this court." (emphasis added)), affirmed, State v. Sigler, 967 So.2d 835 (Fla. 2007). In.Alleyne, the U..S. Supreme Court overruled its previous decision in Harris; Harris had held that Apprendi did not apply to mandatory minimum sentences. The court said: In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. 530 U.S., at 483, n. 10, 120 S.Ct While Harris declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi's definition of "elements" necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment. 530 U.S. at 483, n. 10, 120 S.Ct. 2348; Harris, supra, at 579, 122 S.Ct (THOMAS, J.., dissenting). Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt. (emphases added) -4-

8 Alleyne, 133 S.Ct. at 2158, citing Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). The district court below cited Robinson v. State, 793 So.2d 891, 893 (Fla. 2001),.in which this court held that the PRR statute does not violate Apprendi because it does not increase the statutory maximum penalty but merely limits the judge!s sentencing discretion. The.holding in Robinson must be reconsidered in light of the decision in Alleyne. Alleyne, following Apprendi, applies to "a fact" which increases the mandatory minimum sentence. Yet the. district court below rejected Alleyne on the ground that it did not involve a firearm, which was the issue in Alleyne; this interpretation is too narrow and contrary to the more expansive language of Apprendi and Allevne. Apprendi held the jury had to find any element sentence which could otherwise be imposed; Blakely held that "the maximum sentence which could otherwise be imposed" applied to any element which increased the sentence which could be imposed under sentencing guidelines without additional fìndings, in. a. context similar to Florida's previous sentencing guidelines. Blakely, 542 U.S. at 328. Allevne applies to mandatory minimum sentences, and.its language encompasses any type of mandatory mínimum sentence, including PRR. Yet, the First District's opinion interprets Allevne as applying solely to the issue of whether the defendant "used" or other than the fact of prior conviction which increased the maximum -5-

9 "carried" a firearm versus "brandished" a firearm for a federal statute. Such a reading would mean that Apprendi would apply only to conviction under the New Jersey hate-crime statute, the statute at issue in that case, but Florida courts have not interpreted Apprendi so narrowly, nor should they. When Apprendi and Alleyne said "other than the fact of a prior conviction," that was the same as saying the mere existence of a prior conviction is sufficient to support an enhanced sentence on the present offense of conviction. The reason is simple - the elements of the prior conviction have already been adjudicated beyond a reasonable doubt by the prior jury so they don't have to be resubmitted to the present jury. However, the fact of a prior conviction does not mean facts about a prior conviction, nor does it mean facts based upon a prior conviction, nor does it mean facts "derived from" a prior conviction. What it really means is facts subsumed within the prior conviction because they have already been determined to exist beyond a reasonable doubt by a prior jury. See Shepard v. United States,.544 U.S. 13, 125 S.Ct. 1254, 1262, 161 L.Ed.2d 205 (2005) (holding that alleged fact. shown in police reports that burglary was a violent felony was a fact not apparent in the "conclusive records made or used in adjudicating guilt" and was "too far removed from the conclusive significance of a prior judicial record" and "too much like the findings subject to... Apprendi" to allow its determination without a jury finding). -6-

10 As to the prior conviction, there was no jury finding or plea in the prior case to the date of the defendant's release from prison, because at the time the defendant pleaded or was found guilty of the prior offense, he had not yet been sentenced, let alone released from prison. The date of his release is not inherent in the fact of the prior conviction. It. is not correct to start tur asking whether the release date is an element of the charged offense. The correct question is whether the release date was an element of the prior convictíon. If the answer is no (and it is always no),. then the release date must be considered an element of the charged offense, which the jury did not find. Further, as to the present conviction, absent a special finding, a jury verdict or plea does not include or assume the date of the offense. The information charges a crime and charges a date, but as the.jury is explicitly instructed, the information does not prove the crime, or the date. The finder of fact (not the. court) decides when.the crime happened, and therefore, whether it occurred within three years of the defendant's release from prison on the prior conviction. This court. should accept this case to review the district court's interpretation of a federal constitutional. provision, the Sixth Amendment right to jury trial. As to the ground for review of conflict between the courts, the First District said about mandatory minimums: -7-

11 ...Allevne...does not apply to this case. Allevne dealt with.a sentence imposed under a federal statute providing for a five-year mandatory minimum if the defendant used or carried a firearm while committing a "crime of violence," and a seven-year mandatory minimum if the defendant "brandished" the firearm while committing such crime. Allevne, --- U.S. at ----, 133 S.Ct at Appellant' s case involves no mandatory minimum sentence and no enhancement based on firearm usage or any similar enhancement factor. (emphases added) Williams, 143 So.3d at 424. This passage is not clear as to whether "no mandatory minimum sentence" was to be read as separate from the following phrase, which begins with "no enhancement..." or whether "no mandatory minimum sentence" and "no enhancement" were both intended to modify the phrase "based on firearm usage." Grammatically, the two phrases about enhancement belong together:...no enhancement based on firearm usage or any similar enhancement factor. It is at best ambiguous whether "no mandatory minimum sentence" stands alone or modifies a later phrase. If the issue here were statutory construction, the rule of lenity would require that an ambiguous phrase be interpreted in the manner most favorable to the defendant. See State v. Huqqins,. 802 So.2d 276, 277 (Fla. 2001) tapplying rule of lenity to the question of whether "occupied" modified "dwelling" in the provision of the PRR statute to "burglary of an occupied structure or dwelling"). Although the rules of statutory construction do not apply to an opinion of the court, to the extent that the First District's opinion could be read as finding that a Prison Releasee Reoffen- -8-

12 der sentence is not a mandatory minimum, then it is in direct and express conflict with decisions of this court and other district courts which held that the PRR sentence is mandatory and sets the minimum sentence which can be imposed. See, e.g., Grant v. State, 770 So.2d 655, (Fla. 2000); State v. Cotton, 769 So.2d 345 (Fla. 2000) ("when the [PRR] Act is properly viewed as a mandatory minimum statute..."); Mike v. State, So.3d no. 4D (Fla. 4* DCA June 11, 2014)(On the issue of imposing both PRR and HVFO sentences for the same offense., "the PRR. statute does not allow the sentences to be for equal terms. Instead, the statute creates a sentencing 'floor' or mandatory minimum but allows for a harsher sentence to be imposed under section , or any other provision of law," citing Grant, supra). This court should accept jurisdiction to resolve this conflict.

13 IV CONCLUSION Based upon the foregoing argument, reasoning, and citation of authority, petitioner requests that this Court accept this case for review and order briefing on the merits. Respectfully submitted, NANCY A. DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT STOVER Fla..Bar No Assistant. Public Defender Leon County Courthouse 301 S. Monroe, Suite 401 Tallahassee, Florida (850) ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE. I. HEREBY CERTIFY that a copy of the foregoing has been furnished by electronic mail, by agreement of the parties, to Assistant Attorney General Samuel Steinberg, at crimapptlh@myfloridalegal.com, and by mail to Mr. Joseph A. Williams Jr., inmate no. N19774, Wakulla Correctional Institution - Annex, 110 Melaleuca Drive, Crawfordville, FL , this day, September 15, CERTIFICATION OF FONT AND TYPE SIZE This brief is typed in Courier w 12. KATHDBEN STOVER -10-

14 IN THE SUPREME COURT OF FLORIDA JOSEPH A. WILLIAMS JR.,. : Petitioner, VS. : CAS:E NO. SC (1D ) STATE OF FLORIDA, Respondent. : APPENDIX TO JURISDICTIONAL BRIEF OF PETITIONER APPENDIX A B DOCUMENT Joseph A. Williams, Jr., v. State Order Denying Rehearing - 1D August 6, 2014 Joseph A. Williams, Jr., v. State Opinion, 1D , June 25, 2014

15 DISTRICT COURT OF APPEAL, FIRST DISTRICT 2000 Drayton Drive Tallahassee, Florida Telephone No. (850) August 06, 2014 CASE NO.: 1D L.T. No.: 2010-CF-3747-A Joseph A. Williams, Jr. v. State of Florida Appellant / Petitioner(s), Appellee / Respondent(s) BYORDEROFTHECOURT: Appellant's motion filed July 10, 2014, for rehearing or certification is denied. Served: I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order. Hon, Pamela Jo Bondi, A. G. Hon. Nancy A. Daniels, P. D. Steven L. Seliger, A. P. D. Kathleen Stover, A. P. D. Jay Kubica, A. A. G. Samuel Steinberg, A. A. G. jm JOf/S WHEELER. CLERK 4ep. A

16 We'stláw. Page So.3d 423, 39 Fla. L. Weeldy D1336 (Cite as: 143 So.3d 423) H District Court of Appeal of Florida, First District. Joseph A. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee. No. 1D June 25, Rehearing Denied Aug. 6, Background: Defendant was convicted in the Circuit Court, Leon County, Charles W Dodson, J., of burglary of a dwelling and grand theft, and he received a 15-year prisonreleaseereoffender(prr)sentence for the burglary and a concurrent five-year sentence for the grand theft. Defendant appealed. Holding: The District Court ofappeal, Marstiller; J., held that defendant did not have a Sixth Amendment right to have a jury determine whether defendant committed the burglary within three. years of release from prison..affirmed.. Jury =>34(7) 230 Jury. West Headnotes 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(7) k Particular cases in general. Most Cited Cases Defendant did not have a Sixth Amendment right to have a jury determine whether he committed the charged offense of burglary of a dwelling within three years of release from prison, as required for imposition of a 15-year prison releasee reoffender (PRR) sentence for the burglary; such a determination was not an ingredient ofthe charged offense but instead related to the fact of a prior conviction. U.S.C.A. Const.Amend. 6. *423 Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. *424 Pamela Jo Bondi, Attorney General, and Jay Kubica and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee. MARSTILLER, L Joseph A. Williams, Jr. ("Appellant"), was convicted by a jury of burglary of a dwelling and grand theft. The trial court imposed a 15-year Prison Releasee Reoffender ("PRR") sentence for the burglary pursuant to section (9), Florida Statutes, and a concurrent five-year sentence for the grand theft. Appellant argues the PRR sentenceisunconstitutionalbecausethe trial court, and not the jury, found the facts necessary to establish him as a prison releasee reoffender. He asserts that under Alleyne v. United States,- U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), any facts that increase the mandatory minimum sentence for an offense must be submitted to the jury and found beyond a reasonable doubt.. Appellant correctly encapsulates the holding in Alleyne, but it does not apply to this case.. Alleyne dealt with a sentence imposed under a federal statute providing for a five-year mandatory minimum if the defendant used or carried a firearm while committing a "crime of violence," and a seven-year mandatory minimum if the defendant "brandished" the firearm while committing such crime. Alleyne,- U.S. at, 133 S.Ct at Appellant's case involves no mandatory minimum sentence and no enhancement based on firearm usage or any similar enhancement factor. Furthermore,.Alleyne leaves intact the Supreme Court's dec ision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that "[o]ther than the fact of a prior conviction, any.fact that 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

17 Page So.3d 423, 39 Fla. I Weekly D1336 (Cite as: 143 So.3d 423) increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct The Florida.Supreme Court has held that Apprendi does not require a jury to determine whether a defendant committed the charged offense(s) within three years of being released from prison. Robinson v. State 793 So.2d 891, 893 (Fla.2001); see (9)(a).1., Fla. Stat. (2011). "The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an 'element' or 'ingredient' of the charged offense." Alleyne, -U.S. at 133 S.Ct. at 2158 (emphasis added). The key fact pertínent to PRR sentencing-whether the defendant committed the charged offense within three years of release from prison-is not an ingredient of the charged offense. Rather, it relates to the fact of a prior conviction. Accordingly, we hold that Alleyne does not require a jury to make the PRR factual determination. See Lopez v State, 135 So.3d 539 (Fla. 2d DCA 2014). AFFIRMED. ROWE and RAY, JJ., concur. Fla.App. 1.Dist.,2014. Williams v. State 143 So.3d 423, 39 Fla. L. Weeldy D1336 END OF DOCUMENT 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.