IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHARLES DAVID POPE, Petitioner, v. Case No. SC STATE OF FLORIDA, Respondent. / Fifth DCA Case No. 5D ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Fla. Bar No ALLISON LEIGH MORRIS ASSISTANT ATTORNEY GENERAL Fla. Bar No Seabreeze Boulevard Fifth Floor Daytona Beach, FL (386) (386) (FAX)

2 COUNSEL FOR RESPONDENT

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT THIS COURT SHOULD NOT ACCEPT JURISDICTION IN THIS CASE CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE... 8 iii

4 TABLE OF AUTHORITIES Cases: Apprendi v New Jersy, 530 U.S. 466, 120 S.Ct. 2348, 127 L.Ed.2d 435 (2000)... 1 Foster v State, 614 So. 2d 455 (Fla. 1995) Isley v State, 652 So. 2d 409 (Fla. 5 th DCA 1995) Lamont v State, 610 So. 2d 435 (Fla. 1992) Long v State, 558 So. 2d 1091 (Fla. 5 th DCA 1990) Pope v State, So. 2d 827 (Fla. 5 th DCA 1994) Pope v State, So. 2d 800 (Fla. 5 th DCA 1996) Pope v State, iv

5 1 816 So. 2d 646 (Fla. 5 th DCA 2002) Pope v State, 841 So. 2d 667 (Fla. 5 th DCA 2003) ,2,4,5,6 Power v State, So. 2d 511 (Fla. 5 th DCA 1990) Reaves v State, So. 2d 829 (Fla. 1986) Ree v State, So. 2d 1329 (Fla. 1990) State v Mischler, So. 2d 523 (Fla. 1986) State v Sanborn, So. 2d 1169 (Fla. 1998) Torres-Arboledo v State, So. 2d 403 (Fla. 1998) Other Authorities: Art. V, Sec. 3, Fla. Const Florida Rule of Criminal Procedure Florida Rule of Criminal Procedure v

6 vi

7 STATEMENT OF FACTS The following facts come from Pope v State, 841 So. 2d 677 (Fla. 5 th DCA 2003). In 1993, Petitioner was found guilty of kidnaping with intent to commit a felony and robbery. On appeal, the Fifth District Court of Appeal affirmed his convictions, but ordered re-sentencing on the grounds that his connective habitual offender sentences were illegal because they arose out of the same criminal episode. Pope v State, 646 So. 2d 827 (Fla. 5 th DCA 1994). On re-sentencing, the trial court held that the sentences were to run concurrently. On January 18, 1996, Petitioner filed a motion for postconviction relief. The Fifth District Court of Appeal per curiam affirmed the trial court s denial of the motion. Pope v State, 671 So. 2d 800 (Fla. 5 th DCA 1996). On February 28, 2001, Petitioner filed a motion to correct an illegal sentence based on Apprendi v New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 127 L.Ed.2d 435 (2000). On July 6, 2001, he filed a second motion arguing that he could not be sentenced to life in prison for kidnaping when the jury only convicted him of false imprisonment, and that the trial court erred in upwardly departing without written reasons. The Fifth District Court of Appeal per curiam affirmed the lower court s denial of his claims. Pope v State, 816 So. 2d 646 1

8 (Fla. 5 th DCA 2002). On October 22, 2002, Petitioner filed a petition for writ of habeas corpus, which the trial court dismissed. On appeal, he raised a number of claims which the Fifth District Court of Appeal found to be without merit or successive. Petitioner now alleges five different ways in which the opinion in Pope, 841 So. at 677, directly conflicts with opinions out of this Court or other appellate courts. 2

9 SUMMARY OF ARGUMENT This Court should not accept jurisdiction of this case because the opinion of the Fifth District makes the proper conclusions of law based upon the facts and does not expressly and directly conflict with a decision of this Court or another district court. 3

10 ARGUMENT THIS COURT SHOULD NOT ACCEPT JURISDICTION IN THIS CASE. 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). Petitioner alleges conflict with State v Sanborn, 533 So. 2d 1169 (Fla. 1988). Sanborn holds that false imprisonment is a necessarily included lesser offense of kidnaping. In contrast, the Fifth District Court of Appeal found that Petitioner s claim that he was sentenced to kidnaping when the jury found him guilty of false imprisonment to be utterly without merit. Pope, 841 So. 2d at 679. Thus, the holding in Sanborn has nothing to do with the conclusion of the appellate court that his claim is refuted by the record. Petitioner next alleges conflict with State v Mischler, 488 So. 2d 523 (Fla. 1986), which held that an inherent component of a crime cannot justify a departure sentence for that crime. This, Petitioner asserts, means that his habitual 4

11 sentence is improper because it is based on his prior record. However, neither this claim nor this case is referenced in the appellate court s opinion. Respondent would also observe that his sentence was based on the habitual offender sentencing statute, not an upward departure from a guideline sentence. Petitioner s third ground of alleged conflict is that the trial court sentenced him as a habitual offender without making written findings. The appellate court cited Long v State, 558 So. 2d 1091 (Fla. 5 th DCA 1990), and Power v State, 568 So. 2d 511 (Fla. 5 th DCA 1990). Both of these cases hold that the findings necessary to support a habitual offender determination need not be reduced to writing as long as they are made in a reported judicial proceeding. Petitioner cites Torres-Arboledo v State, 524 So. 2d 403 (Fla. 1998), which has no language conflicting with Long or Power. He also cites Ree v State, 565 So. 2d 1329 (Fla. 1990), which holds that a departure sentence requires written reasons. This case is not applicable because Petitioner was sentenced as a habitual offender, and not pursuant to a departure sentence. Petitioner s fourth claim of conflict involves Lamont v State, 610 So. 2d 435 (Fla. 1992). In Lamont, this Court held that someone who is sentenced to life is not subject to an enhanced penalty as a habitual offender. Petitioner asserts 5

12 that he received a habitual offender sentence for a life felony. However, the opinion in Pope, 841 So. 2d at 678, indicates he was found guilty of kidnaping with the intent to commit a felony. The appellate court explained: Pope mistakes a first degree felony punishable by life for a life felony. Pope was properly sentenced as an habitual offender because kidnaping is a first degree felony, not a life felony. See Floyd v State, 807 So. 2d 93 (Fla. 5 th DCA 2002). Id. at 679. Thus, there is no conflict between Lamont and the present case. Finally, Petitioner alleges that the appellate court s conclusions that his claims are untimely, successive, and constitute an abuse of the process conflict with the doctrine of res judicata. However, the Fifth District Court of Appeal clearly has the authority to determine when, Enough is enough. Isley v State, 652 So. 2d 409 (Fla. 5 th DCA 1995). This Court has held that to continue to raise issues that have been heard, considered and rejected is an abuse of the process. Foster v State, 614 So. 2d 455 (Fla. 1995). There is no conflict between the appellate court s determination that Petitioner has abused the process, and any case out of this Court or any District Court of Appeal. 6

13 CONCLUSION Based on the foregoing argument and authority, the State respectfully requests that this Court decline to accept jurisdiction of this case. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL ALLISON LEIGH MORRIS ASSISTANT ATTORNEY GENERAL Fla. Bar No Seabreeze Boulevard Fifth Floor Daytona Beach, FL (386) (386) (FAX) COUNSEL FOR RESPONDENT 7

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing brief on jurisdiction has been furnished by United States Mail to Charles David Pope, DC#040355, Marion Correctional Institution, P.O. Box 158, Dorm G, Lowell, FL this day of August, CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced. ALLISON LEIGH MORRIS COUNSEL FOR RESPONDENT 8

15 IN THE SUPREME COURT OF FLORIDA CHARLES DAVID POPE, Petitioner, v. Case No. SC STATE OF FLORIDA Respondent. / Fifth DCA Case No. 5D APPENDIX CHARLES J. CRIST, JR. ATTORNEY GENERAL KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Fla. Bar No ALLISON LEIGH MORRIS ASSISTANT ATTORNEY GENERAL Fla. Bar No Seabreeze Boulevard Fifth Floor Daytona Beach, FL (386) (386) (FAX) COUNSEL FOR RESPONDENT