IN THE SUPREME COURT OF FLORIDA. Petitioner, DCA CASE No. 5D v. CASE NO. SC ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

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1 IN THE SUPREME COURT OF FLORIDA SAUL CARMONA, Petitioner, DCA CASE No. 5D v. CASE NO. SC STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, Jr. ATTORNEY GENERAL TIMOTHY D. WILSON Fla. Bar # KELLIE A. NIELAN FLORIDA BAR # Seabreeze Blvd. Fifth Floor Daytona Beach, FL (386) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS...ii SUMMARY OF THE ARGUMENT... 1 ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. 2 CONCLUSION... 5 CERTIFICATE OF SERVICE... 6 CERTIFICATE OF FONT COMPLIANCE... 6 i

3 TABLE OF CITATIONS CASES PAGE NO Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 2 Zeiszler v. State, 765 So. 2d 128 (Fla. 1st DCA 2000). 2,3,4 OTHER AUTHORITIES: Article V, section (3)(b)(3), Fla. Const Fla. R. App. P (a)(2)... 6 ii

4 SUMMARY OF ARGUMENT This court does not have jurisdiction to review this case. The decision of the Fifth District Court of Appeal in this case does not expressly and directly conflict with a decision of this Court or any other court. The Fifth District applied the law consistently with other district courts but construed the facts of the record against Carmona. Under these circumstances, there is no conflict of law between the district courts. 1

5 ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. This Court has jurisdiction under article V, section (3)(b)(3) of the Florida Constitution where a decision of a district court "expressly and directly conflicts" with a decision of this Court or another district court. This Court has repeatedly held that such conflict must be express and direct, that is, "it must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). The State first notes that Carmona s statements of facts concerning the colloquy between Carmona and the trial court concerning Carmona s motion to withdraw his plea on three charges (Pet. Jur. Brief, p. 2-5) are not supported by or found in the opinion of the court below. They are not within the four corners of the District Court s opinion. This court may not consider those statements in support of Carmona s petition for jurisdiction. Carmona asserts that the majority opinion of the Fifth District Court of Appeals conflicts with the decision of the First District on the same question of law in Zeiszler v. State, 765 So. 2d 128 (Fla. 1st DCA 2000). A careful analysis of both 2

6 opinions does not support a finding of any conflict. This court is therefore without jurisdiction to hear this appeal. The question decided by the Fifth District arose in the context of a defendant moving pro se to withdraw his guilty pleas just prior to sentencing, after having pled guilty pursuant to a plea agreement with the State. The exact question decided was whether the defendant was entitled to appointment of conflict-free counsel for purposes of the hearing on the motion to withdraw pleas. The question of conflict free counsel arose because the defendant indicated that he felt coerced by counsel to enter the pleas and because counsel expressed that the motion to withdraw was against his advice. In the opinion in the instant case, the majority determined that it is only when a conflict between the defendant and counsel is patent on the face of the record that the trial court is required to appoint conflict-free counsel. (Opinion, p. 4-5). This language is consistent with the decision of the First District in Zeiszler, supra. In Zeiszler, the First District held that once a conflict of interest arises between a defendant and defense counsel at the hearing on a motion to withdraw a plea, the preferred course is for the trial court to appoint conflict-free counsel for purposes of the hearing. Zeiszler, 765 So. 2d at 129. The 3

7 First District went on to say: Because a conflict between appellant and his trial counsel appears in the record, the trial court must appoint conflict-free counsel to represent appellant with regard to his motion to withdraw his plea. Id. (Emphasis added, quotation omitted). The First District, like the Fifth District, indicated that the conflict must exist, i.e., be in the record, or as the Fifth District stated it, be patent from the record. These holdings are consistent and are not in conflict. Carmona s argument is not that there is conflict in the law, but that the Fifth District applied the law incorrectly to the facts of the instant case. Carmona asserts that the statements he and his trial counsel made should be sufficient for the existence of conflict. This argument, however, can not form the basis for this court s jurisdiction. The Fifth District s application of the law to the facts of this case is supported by the record. The law that the Fifth District applied is consistent with the law of other districts. There is no conflict and this court should not accept jurisdiction in this case. 4

8 CONCLUSION Based on the arguments and authorities presented herein, the State asserts that this court does not have jurisdiction to review the decision in this case. Respectfully submitted, CHARLES J. CRIST, Jr. ATTORNEY GENERAL TIMOTHY D. WILSON Fla. Bar # KELLIE A. NIELAN Fla. Bar # Seabreeze Boulevard Fifth Floor Daytona Beach, FL (386) FAX (386) COUNSEL FOR RESPONDENT 5

9 CERTIFICATE OF FONT AND TYPE SIZE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced, in compliance with Fla. R. App. P (a)(2). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Jurisdictional Brief has been furnished to LEONARD R. ROSS, Esq., 112A Orange Ave., Daytona Beach, FL, by U.S. Mail this 30 th day of July, TIMOTHY D. WILSON 6