IN THE SUPREME COURT OF FLORIDA CASE NO MANUEL LENA, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO MANUEL LENA, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida (305) HOWARD K. BLUMBERG Assistant Public Defender Florida Bar No Counsel for Petitioner

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3 TABLE OF CONTENTS PAGE INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF ARGUMENT...4 ARGUMENT...5 THE DECISION OF THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, IN THE PRESENT CASE (1) EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN Hobbs v. State, 820 So. 2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003) AND THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL IN Clements v. State, 742 So. 2d 338 (Fla. 5th DCA 1999), dismissed, 782 So.2d 868 (Fla. 2001); AND (2) EXPRESSLY CONSTRUES THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE FLORIDA CONSTITUTION CONCLUSION...9 CERTIFICATE OF SERVICE CERTIFICATE OF FONT i

4 TABLE OF CITATIONS CASES PAGE(S) Alonso v. State, 821 So.2d 423 (Fla. 3d DCA 2002), dismissed, 837 So. 2d 412 (Fla. 2003)... 2, 5, 6, 7, 9 Clements v. State, 742 So. 2d 338 (Fla. 5th DCA 1999), dismissed, 782 So. 2d 868 (Fla. 2001)...3, 4, 5, 6, 7, 9 Evans v. State, 808 So. 2d 92 (Fla. 2001)... 8 Hobbs v. State, 820 So. 2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003)...3, 4, 5, 6, 7, 9 Jones v. State, 883 So. 2d 369 (Fla. 3d DCA 2004)... 6 Natural Parents of J.B. v. Fla. Dep't of Children & Family Servs., 780 So. 2d 6 (Fla. 2001)... 8 Pritchett v. State, 566 So. 2d 6 (Fla. 2d DCA) dismissed, 570 So. 2d 1306 (Fla. 2000)... 6 Roberts v. State, 816 So. 2d 1175 (Fla. 2d DCA 2002)... 6 Tippens v. State, 897 So. 2d 1278 (Fla. 2005)... 5 Waller v. Georgia, 467 U.S. 39 (1984) Whitson v. State, 791 So. 2d 544 (Fla. 2d DCA 2001)... 6 Zingale v. Powell, 885 So. 2d 277 (Fla. 2004)... 7 ii

5 OTHER AUTHORITIES United States Constitution, Sixth Amendment Florida Constitution, Article 1, Section Florida Statutes, Section , 5, 6 iii

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7 IN THE SUPREME COURT OF FLORIDA CASE NO MANUEL LENA, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION INTRODUCTION This is a petition for discretionary review on the grounds of express and direct conflict of decisions and express construction of a provision of the state or federal constitution. In this brief of petitioner on jurisdiction, all references are to the appendix attached to this brief, paginated separately and identified as "A", followed by the page number(s). All emphasis is supplied unless the contrary is indicated. STATEMENT OF THE CASE AND FACTS 1

8 At the trial in this case, the State moved for partial closure of the courtroom under section , Florida Statutes, arguing that the closure would reduce the trauma and intimidation to the minor victim (A. 3). The defense opposed the State=s request, arguing that under Alonso v. State, 821 So.2d 423 (Fla. 3d DCA 2002), dismissed, 837 So. 2d 412 (Fla. 2003), the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution requires that the four-part constitutional test established in Waller v. Georgia, 467 U.S. 39 (1984) be satisfied before section can be constitutionally applied (A. 4). The trial court granted the State=s request for partial closure of the courtroom (A. 4). The court ruled that the minor victim would find the proceedings less traumatic, and speak more freely, in front of a small audience rather than a large one (A. 8). As a result of the court=s ruling, twenty-five friends and family of the defendant were required to leave the courtroom (A. 7). The court rejected an alternative defense request that three relatives of the defendant be allowed to remain in the courtroom (A. 8). The court directed that a television monitor be set up outside the courtroom, and those excluded from the courtroom were allowed to watch the proceedings on the television monitor (A. 4, 7). On appeal, the Third District Court of Appeal ruled that the trial judge had properly granted the State=s request for partial closure of the courtroom (A. 2-8). First, the district 2

9 court restated its position that the right to a public trial guaranteed to an accused by the Sixth Amendment to the U.S. Constitution and article I, section 16 of the Florida Constitution requires the application of the four-part constitutional test established in Waller when partial closure of the courtroom is requested (A. 5-6). The district court noted that two other district courts of appeal had taken the contrary position that the Waller test need not be applied for a partial closure of the courtroom (A. 6). 1 The district court then found that the partial closure of the courtroom in this case did not violate the defendant=s constitutional right to a public trial because the twenty-five friends and family of the defendant who were required to leave the courtroom were allowed to watch the proceedings on a television monitor (A. 7-8). A motion for rehearing was filed December 23, 2004, and a revised opinion was issued April 13, Notice of invocation of this Court's discretionary jurisdiction was filed May 9, 2005, and an amended notice was filed May 12, SUMMARY OF ARGUMENT The decision of the Third District in this case expressly and directly conflicts with a decision of another district court of appeal on the same question of law. In its decision, 1 See Hobbs v. State, 820 So.2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003); Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999), dismissed, 782 So.2d 868 (Fla. 2001). 3

10 the Third District restated its position that the right to a public trial guaranteed to an accused by the Sixth Amendment to the U.S. Constitution and article I, section 16 of the Florida Constitution requires the application of the test established in Waller v. Georgia, 467 U.S. 39 (1984) when partial closure of the courtroom is requested. As specifically noted by the Third District in its decision, both the First District and the Fifth District have taken a contrary position in Hobbs v. State, 820 So.2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003) and Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999), dismissed, 782 So.2d 868 (Fla. 2001). Additionally, the district court expressly construed a provision of the state or federal constitution by restating its position that the right to a public trial guaranteed to an accused by the Sixth Amendment to the U.S. Constitution and article I, section 16 of the Florida Constitution requires the application of the Waller test when partial closure of the courtroom is requested, and by ruling that the partial closure of the courtroom at the trial did not violate the defendant=s constitutional right to a public trial because the friends and family of the defendant who were required to leave the courtroom were allowed to watch the proceedings on a television monitor. ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, IN THE PRESENT CASE (1) EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL IN Hobbs v. State, 820 So. 2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003) AND THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL IN 4

11 Clements v. State, 742 So. 2d 338 (Fla. 5th DCA 1999), dismissed, 782 So.2d 868 (Fla. 2001); AND (2) EXPRESSLY CONSTRUES THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE FLORIDA CONSTITUTION. A conflict of decisions presently exists in the district courts of appeal of this state as to whether the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution requires the application of the four-part constitutional test established in Waller v. Georgia, 467 U.S. 39 (1984) when partial closure of the courtroom is requested by the State. This Court has 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 on the same question of law. See Article V, section 3(b)(3), Florida Constitution; Tippens v. State, 897 So. 2d 1278 (Fla. 2005). In Alonso v. State, 821 So. 2d 423 (Fla. 3d DCA 2002), dismissed, 837 So. 2d 412 (Fla. 2003), the Third District Court of Appeal held that the four-part Waller test must be applied before a partial closure of the courtroom is ordered under section , Florida Statutes. See also, Jones v. State, 883 So. 2d 369 (Fla. 3d DCA 2004). The decision of the Third District in Alonso adopted the reasoning of the Second District Court of Appeal in Pritchett v. State, 566 So. 2d 6 (Fla. 2d DCA), dismissed, 570 So. 2d 1306 (Fla. 1990) which had also held that the four-part Waller test must be applied before a partial closure of the courtroom is ordered under section See also Roberts v. 5

12 State, 816 So.2d 1175 (Fla. 2d DCA 2002); Whitson v. State, 791 So.2d 544 (Fla. 2d DCA 2001). In Alonso, 821 So. 2d at 426, the Third District specifically noted that both the First District Court of Appeal and the Fifth District Court of Appeal had taken a contrary position on the issue in Hobbs v. State, 820 So.2d 347 (Fla. 1st DCA 2002), dismissed, 863 So. 2d 167 (Fla. 2003) and Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999), dismissed, 782 So.2d 868 (Fla.2001). 2 In the decision of the Third District in the present case, the court restated its position that the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution requires the application of the four-part constitutional test established in Waller when partial closure of the courtroom is requested (A. 5-6). As it had done in Alonso, the district court noted that the First District and the Fifth District had taken a contrary position in Hobbs and Clement (A. 6). Accordingly, this Court should exercise its discretionary review jurisdiction to resolve the express and direct conflict between the decision of the district court of appeal in this case and the decisions of the First District and the Fifth District in Hobbs and Clement. This Court also has jurisdiction to review any decision in which a district court of 2 A petition for discretionary review of the decision of the district court of appeal in Alonso was filed, but the petition was subsequently dismissed on mootness grounds. 6

13 appeal expressly construes a provision of the state or federal constitution. See Article V, section 3(b)(3), Florida Constitution; Zingale v. Powell, 885 So. 2d 277 (Fla. 2004). The decision of the district court of appeal in this case expressly construes the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution. First, the district court of appeal in this case expressly construed the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution by restating its position that the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution requires the application of the four-part constitutional test established in Waller when partial closure of the courtroom is requested (A. 5-6). Second, the district court of appeal in this case expressly construed the right to a public trial guaranteed to an accused by the Sixth Amendment to the U.S. Constitution and article I, section 16 of the Florida Constitution by ruling that the partial closure of the courtroom at the defendant=s trial did not violate the defendant=s constitutional right to a public trial because the twenty-five friends and family of the defendant who were required to leave the courtroom were allowed to watch the proceedings on a television monitor (A. 7-8). This Court has never directly addressed the scope of a defendant=s constitutional right to a public trial following the decision of the United States Supreme Court in Waller. 7

14 See Evans v. State, 808 So. 2d 92 (Fla. 2001)(trial court's closure of individual voir dire to defendant=s parents did not violated his right to a public trial under the Sixth Amendment of the United States Constitution and article 1, section 16 of the Florida Constitution given limited nature of the exclusion of parents, fact that other members of the public were allowed to observe individual voir dire, and fact that defendant did not object to exclusion of his parents); Natural Parents of J.B. v. Fla. Dep't of Children & Family Servs., 780 So. 2d 6 (Fla. 2001)(mandatory closure of all hearings in termination of parental rights is valid under the United States and Florida constitutional provisions respecting access of the public and media to judicial proceedings because there is no constitutional requirement that juvenile proceedings be presumptively open to the public). As (1) the district court of appeal in this case expressly construed the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution, and (2) the decisions of the Third District in this case and in Alonso expressly and directly conflict with the decisions of the First District and the Fifth District in Hobbs and Clement, it is respectfully submitted that this Court should exercise its discretionary jurisdiction to review the decision of the district court of appeal in this case and determine the scope of the right to a public trial guaranteed to an accused by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution. CONCLUSION 8

15 Based on the foregoing facts, authorities and arguments, petitioner respectfully requests this Court to exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal. Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida BY: HOWARD K. BLUMBERG Assistant Public Defender 9

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was hand delivered to Linda S. Katz, Assistant Attorney General, Office of the Attorney General, Rivergate Plaza Suite 950, 444 Brickell Avenue, Miami, Florida 33131, this 17th day of May, HOWARD K. BLUMBERG Assistant Public Defender CERTIFICATE OF FONT Undersigned counsel certifies that the type used in this brief is 14 point proportionately spaced Times New Roman. HOWARD K. BLUMBERG Assistant Public Defender 10