IN THE SUPREME COURT OF FLORIDA. S.CtCaseNo.: D.C.A. Case No.: 1D MARK ALLEN BIR. Petitioner. STATE OF FLORIDA Respondent

Transcription

1 />. A, PROVIDED TO CROSS CITY C.I. ON MAY 0 5 FOR MAI IN THE SUPREME COURT OF FLORIDA S.CtCaseNo.: D.C.A. Case No.: 1D A \ MARK ALLEN BIR Petitioner v. STATE OF FLORIDA Respondent On Discretionary Review from the District Court of Appeal of the First District of Florida PETITIONER'S JURISDICTTONAT. BRIEF Mark Allen Bir, #077081, E2114-L Cross City Correctional Institution 568 N.E. 255th Street Cross City, Florida Petitioner - Pro se

2 TABLE OF CONTENTS Table of Citations iii Statement of the Case and Facts 1-2 Summary of the Argument 3-4 Jurisdictional Statement 4 Argument 4-8 THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE EX REL FAIRCLOTH V. CROSS. 238 So.2d 81 (FLA. 1970). Conclusion 8 Certificate of Service 8 Certificate of Compliance 9 n

3 TABLE OF CITATIONS Cases Birv. State. 405 So.2d 1073 (Fla. 1st DCA 1981) 1,4 Ell-Gee v. Swann. 250 So.2d 850 (Fla. 1971) 5 T.D.S. v. State. 870 So.2d 86 (Fla. 2nd DCA 2003) 6 Lehmkule v. State. 20 So.3d 971, (Fla. 2nd DCA 2009) 6 Morales v. State. 973 So.2d 679 (Fla. 2nd DCA 2008) 3, 4, 5, 6 State ex rei Faircioth v. Cross. 238 So.2d 81 (Fla. 1970) 3, 4, 5, 8 State ex rel Watt & Sinclair of Florida, Inc. v. Bird. 175 So.2d 850 (Fla. 1937) State v. Wells. 326 So.2d 175 (Fla. 1976) 3, 5, 7 Williams v. State. 324 So.2d 74 (Fla. 1975) 7 Constitutional Authorities Art. V. 3 (b) (3), Fla. Const 4,1 Art. V, 4 (b) (1), Fla. Const 3, 7 Statutes , Fla. Stat 3, 7 Rules F1a.R.App.P (g) 3, 7 Fla.R.App.P (a) (2) (A) (iv) 4, 8 Fla.R.App.P fl) 3 F1a.RApp.P (b) (1) 3, 7 F1a.R.App.P (b) (2) (A) (ii) c 6 Fla.R.Cr.P (f) 3, 5 in

4 STATEMENT OF THF. CASH AND FACTS 1. On January 8, 1981, Petitioner's Counsel filed a Motion to Withdraw Plea, pursuant to Fla.R.Crim P, (f), in his behalf. 2. A hearing was conducted upon January 20, 1981 on the Motion to Withdraw Plea, at which, after Petitioner argued the merits in propria persona, the trial court entered an "oral" denial of the Motion to Withdraw Plea, but never rendered a signed, written (final) order and filed it with the Clerk of Court. 3. Sentencing took place upon February 9, 1981, without the final order disposing of the Motion to Withdraw Plea being filed with the Clerk of Court. 4. Direct appeal was taken and perfected before the First District Court of Appeal, see Bir v. State, 405 So.2d 1073 (Fla. 1st DCA 1981), and claims stemming from the withdraw of plea motion and hearing were dismissed, due to no final order being rendered and filed with the Clerk of Court. 5. Petitioner filed a 'Motion to Expedite Rendition of Signed, Written Order Disposing of Timely Filed Motion to Withdraw Plea, as Orally Issued on January 20, 1981' to the trial court, upon November 4, 2010, to place trial court on notice of its failure to file such order with trial court clerk and to compel performance of such ministerial act. 6. After waiting a reasonable amount of time for the trial court to file such order, so that the judgement and sentence, which was "delayed", pending the final

5 order disposing of his post-trial / pre-sentencing motion, to be filed with the Clerk of Court. Petitioner filed a Petition for Writ of Mandamus to the First District Court of Appeal, in order to have the District Court compel compliance with the required ministerial duty to file a signed written order disposing of the Motion to Withdraw Plea, so that an appeal of a properly rendered final order could be taken. That petition was filed on December 21, The First District Court of Appeal issued its Per Curiam, Denial (with citation and explanation) opinion upon March 2, (App. A). 8. Petitioner filed a Motion for Rehearing / Clarification, and / or Motion for Rehearing En Bane, pointing out the misapplication of law, the distinguishing facts, and the conflict with controlling precedent handed down by the Florida Supreme Court case law, which was timely filed on March 18, The First District Court of Appeal denied the Motion for Rehearing / Clarification, and/or Rehearing En Bane on April 25, (App. B) 10. Timely Notice to Invoke Discretionary Jurisdiction has been filed as required under the constraints set forth under Fla.R.App.P (b). 11. Petitioner's Jurisdictional Brief is both timely and properly before this Honorable Court for discretionary review of the District Court of Appeal's decision rendered in conflict with this Court's prior authoritative precedents on the same or a similar point of law for review.

6 SUMMARY OF THE ARGUMENT This cause for discretionary review stems from the per curiam, denial (with citation and explanation) decision, of the First District Court of Appeal, on petition for writ of mandamus. The original jurisdiction of the court of appeal was invoked to compel rendition of a signed, written order disposing of motion to withdraw plea, filed January 8, 1981, pursuant to Fia.R.Cr.P, (f), and "orally" denied, at hearing, on January 20, The decision under review cites Morales v. State, 973 So.2d 679 (Fla. 2nd DCA 2008) as its authority, while holding "(oral denial of rule (f) motion reviewable in appeal from judgement and sentence)." This decision is in direct and express conflict with this Court's authoritative precedent in State ex rel Faircioth v. Cross. 238 So.2d 81 (Fla. 1970) ("... a judgement is not rendered for the purpose of appeal until it is rendered in open court and in writing signed by a judge and filed as required by rule"), and made more clear in State v. Wells. 326 So.2d 175 (Fla. 1976) ("No order or judgement of a trial court is appealable until it is rendered to writing and filed..."). Petitioner has been deprived of his constitutional and statutory right to appeal a final order guaranteed to all citizens. See Art. V, 4 (b) (1), Fla. Const.; , Fla. Stat.; and F1a.App.RP (b) (1). This deprivation is one of fundamental nature, in that, under Fla.R.App.P (g) and (1) the appeal

7 must be dismissed, as premature, without a final order, as Petitioner's was on May 26, 1981, and his meritorious claims for relief never heard or addressed on direct appeal. See Birv. State. 405 So.2d 1073 (Fla. 1st DCA 1981). It is Petitioner's contention the decision of the First District Court of Appeal is in direct and express conflict with the authoritative precedent this Court's opinion in State v. ex rel Faircloth. supra., held controlling, and also distinguished from Morales, supra., due to differing circumstances. This Court's discretionary jurisdictional review necessary to ensure uniformity within the district court of appeals decisions, and to remand for issuance of its mandamus to compel performance by trial court. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review decisions of a district court of appeal that expressly and directly conflict with decision of the supreme court or another district court of appeal on the same point of law, Art. V. 3 (b) (3), Fla. Const.; Fla.R.App.P (a) (2) (A) (iv). ARGUMENT THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE EX REL FAIRCLOTH V. CROSS, 238 So.2d 81 (FLA. 1970).

8 The adoption of Morales v. State. 973 So.2d 679 (Fla. 2nd DCA 2008) by the First District Court of Appeal, finding that an "(oral denial of rule (f) motion reviewable in appeal from judgement and sentence)" directly conflicts with this Court's decision in State ex rel Faircloth v. Cross. 238 So.2d 81 (Fla. 1970). See also Ril-Gee v. Swann. 250 So.2d 850 (Fla. 1971); State v. Wells: 326 So.2d 175 (Fla. 1976) ("No order or judgement of a trial court is appealable until it is rendered to writing and filed with the clerk of Court"). Petitioner invoked the original jurisdiction of the district court, through petition for writ of mandamus. This was to compel the trial court to perform its ministerial duty to render a signed, written order disposing of his motion to withdraw plea into the record, by filing with the clerk. Because it has not been rendered and the time for taking appeal is tolled: "[A] judgement is not rendered for the purpose of a appeal until it is rendered in open court and in writing signed by a judge and filed as required by rule...but filing of a timely and proper motion for...or other timely post-trial motion or petition permitted by rule tolls time for taking appeal so that judgement in not deemed rendered until motion or petition is disposed of. State ex rel Faircloth v. Cross. 238 So.2d 81 (Fla. 1970)." The district court's decision not to issue mandamus in this cause is further flawed, in that, petitioner's cause is distinguished from the cause in Morales, supra., where Petitioner's cause stems from a post-trial / pre-sentencing motion, filed over a month before imposition of judgement and sentence on February 9,

9 1981 took place, and the cause in Morales, was based upon an oral motion and oral denial at sentencing hearing. "...he orally moved to withdraw his pleas...the trial court immediately denied the motion, stating that J.D.S. could seek review of the issue on appeal..., see also Morales v. Stale, 973 So.2d (Fla. 2nd DCA 2008) (holding that a defendant who orally moved to withdraw his plea at beginning of sentencing hearing..." Lehmkuie v. State. 20 So.3d 971 (Fla. 2nd DCA 2009).1 Thereunder, Petitioner's case is distinguished from Morales, supra.. as clarified in Lehmkule. supra., where those causes stem from "oral motions" entered at the sentencing hearing, and preserved under sentencing errors clause of Fia.P.App.P (b) (2) (A) (ii) c, as part of the judgement and sentence appealable review proscribed by law. Petitioner's cause stems from a written motion, filed by trial counsel on January 8, 1981, a hearing on January 20, 1981, where the trial court orally denied this motion, then brought Petitioner to sentencing February 9,1981, and never filed the written order denying his motion. Pursuant to Fla.App.P (1), Petitioner's appeal was prematurely filed and dismissed on May 26, 1981, in that, no final order was rendered and filed with the Clerk of trial court to vest appellate jurisdiction to review the order denying relief. It is long standing law that "[w]hile a judgement or ruling is rendered in a sense when orally announced by presiding judge, there is no competent evidence of See J.D.S. v. State. 870 So.2d 86 (Fla. 2nd DCA 2003).

10 its rendition to support appeal therefrom until entered of record. "State ex rel Watt & Sinclair of Florida, Tnc. v. Bird. 175 So.2d 850 (Fla. 1937). See also Fla.App.P (g). "[I]f the order being appealed has not been rendered the appeal cannot proceed because the jurisdiction has not been vested in the appeal court." Williams v. State. 324 So.2d 74 (Fla. 1975). This Court has continually held that "no order or judgement of a court is appealable until it is rendered to writing and filed with the Clerk of Court." State v. Wells. 326 So.2d 175, 176 (Fla. 1976). No such signed, written order disposing of this matter has been filed with the Clerk and Petitioner's appeal of that denial was dismissed May 26, It is evident on the face of the record, he has been deprived of his right of appeal a final order under Art. V, 4 (b) (1), Fla. Const, with legislature expanding that right by implementing , Fla. Stat. into law, and as restated within the authority of Fla.R.App.P (b) (1). The appellate court should have issued mandamus compelling the ministerial duty of trial court to file a written order disposing of this matter, so that appeal, if any, may be had, curing the fundamental miscarriage ofjustice inflicted on Petitioner. Thereunder, the District Court of Appeal's per curiam, dismissal, with citations and explanation falls into the narrow scope of review for this Court's discretionary jurisdiction to be invoked under Art. V, 3 (b) (3), Fla. Const, and

11 F1a.R.App.P (a) (2) (A) (iv), where it is in direct conflict with this court's decision in State ex rel Faircioth v. Cross. 238 So.2d 81 (Fla. 1970), requiring this Court to reaffirm that interpretation, by accepting discretionary review and quashing the contrary decision of the district court below. CONCLUSION This Honorable court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the merits of the Petitioner's argument. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of this Petitioner's Jurisdictional Brief has been surrendered to prison mailroom personnel for mailing, postage pre-paid, to Ms. Pamala Jo Bondi, Attorney General, The Capitol, Pl-01, Tallahassee, Florida , this the ^ day of May, Respectfully^ Marie Allen 6ir, 5^77081 Cross City Correctional Institution 568 N.E. 255th Street Cross City, Florida Petitioner- Pro se 8

12 CERTIFICATE OF romptjanpf I HEREBY CERTIFY that this brief complies with the font requirements of Rule (a) (2) of the Florida Rules of Appellate Procedure. Mark Allen Bir, # Petitioner - Pro se