IN THE SUPREME COURT OF FLORIDA. v. Case No. SCO5-938 Lower Case No. 3D RESPONDENT'S BRIEF ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA ROCCO NAPOLITANO Petitioner, v. Case No. SCO5-938 Lower Case No. 3D STATE OF FLORIDA, Florida Department of Corrections Respondent. ================================================================ RESPONDENT'S BRIEF ON JURISDICTION ================================================================ SHERRY TOOTHMAN Assistant General Counsel Fla. Bar No DEPARTMENT OF CORRECTIONS 2601 Blair Stone Road Tallahassee, Florida (850) COUNSEL FOR RESPONDENT

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS... i TABLE OF CITATIONS... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 2 ISSUE I The Third District's decision in Napolitano v. State, 875 So. 2d 1290 (Fla. 3rd DCA 2004) does not expressly and directly conflict with another decision of a district court or a decision of this court on a question of law and thus, jurisdiction under Article V, section 3(b)(3) is absent... 2 CONCLUSION... 5 CERTIFICATE OF SERVICE... 5 CERTIFICATE OF FONT SIZE... 6 i

3 TABLE OF CITATIONS CASES PAGE(S) Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003) Doyle v. State, 615 So. 2d 278 (Fla. 3rd DCA 1993) Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) Persuad v. State, 838 So. 2d 529, 532 (Fla. 2003)... 3 Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986) Santobello v. New York, 404 U.S. 257 (1971)... 4 Taylor v. State, 710 So. 2d 636 (Fla. 3rd DCA 1998)... 4 Tippens v. State, 897 So. 2d 1278 (Fla. 2005)... 2 OTHER AUTHORITIES Art. V, ' (3)(b)(3), Fla. Const... 2 Fla. R. App (a)(2)(A)(iv)... 2 ii

4 PRELIMINARY STATEMENT The Petitioner is Rocco Napolitano, an inmate in the custody of the Florida Department of Corrections. He was the Petitioner below. The Respondent is the Florida Department of Corrections. STATEMENT OF THE CASE AND FACTS On July 14, 2004, the Third District denied Petitioner's Motion for Rehearing, ruling that inmate Napolitano is not entitled to serve his state sentence in federal custody where he had neither a federal charge nor federal sentence when he entered his state plea and received his state sentence. (See Petitioner's Jurisdictional Brief, Appendix.) On May 19, 2005, the Petitioner, inmate Napolitano, filed a Notice to Invoke this Court=s Discretionary Jurisdiction. On or about June 30, 2005, the petitioner submitted his Jurisdictional Brief, contending that the Third District's opinion conflicts with prior decisions out of the same court and with a decision out of the U.S. Supreme Court. (See Petitioner's Jurisdictional Brief.) 1

5 SUMMARY OF THE ARGUMENT Contrary to the Petitioner=s assertion, discretionary jurisdiction to review the Third District=s decision, wherein the court ruled that inmate Napolitano is not entitled to serve his state sentence in federal custody, citing to Doyle v. State, 615 So. 2d 278 (Fla. 3rd DCA 1993), and Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003), is absent. ARGUMENT The Fifth District=s decision in Napolitano v. State, 875 So. 2d 1290 (Fla. 3rd DCA 2004) does not expressly and directly conflict with another decision of a district court or a decision of this court on a question of law and thus, jurisdiction under Article V, section 3(b)(3) is absent. This court has jurisdiction under Article V, section (3)(b)(3) of the Florida Constitution where a decision of a district court Aexpressly and directly conflicts@ with a decision of this Court or another district court on an issue of law. 1 Such conflict must appear within the four corners of the majority decision by containing a statement or citation effectively establishing a point of law upon which the decision rests. See, Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988); see also, Tippens v. State, 897 So. 2d 1278 (Fla. 2005); Reaves 2

6 v. State, 485 So. 2d 829, 830 (Fla. 1986). As noted by this court, Athere can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or unless the citation explicitly notes a contrary holding of another district court or of this Court.@ Persuad v. State, 838 So. 2d 529, 532 (Fla. 2003)(quoting Florida Star, 530 So. 2d at 288, n. 3). The Third District=s decision meets none of these criteria. The cases relied upon by the Third District, Doyle v. State, 615 So. 2d 278 (Fla. 3rd DCA 1993), and Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003), are not pending before this Court, and they have not been reversed or receded from by this Court. The Third District's opinion does not explicitly note a contrary holding by another district or this court. Thus, the opinion does not meet the Florida Star test for express and direct conflict. Moreover, to the extent that the Third District=s opinion rests upon a finding of fact, namely that inmate Napolitano was neither under federal charges nor subject to a federal sentence 1 See, Fla. R. App (2)(A)(iv). 3

7 when he entered his state plea and was sentenced, such a determination cannot form a basis for express and direct conflict, because conflict jurisdiction is based upon a question of law. Petitioner Napolitano contends that the Third District=s decision conflicts with the U.S. Supreme Court's decision in Santobello v. New York, 404 U.S. 257 (1971), and with the Third District's own decision in Taylor v. State, 710 So. 2d 636 (Fla. 3rd DCA 1998). These cases do not deal with the issue raised by inmate Napolitano. In Santobello, the Court ruled that a guilty plea was not voluntary where the prosecutor subsequently prosecuted the defendant on the additional charges, after promising to forego prosecution on those charges in exchange for the defendant's guilty plea on lesser charges. And in Taylor, the Third District ruled that a defendant who was subject to a federal sentence as well as a state sentence, should be allowed to either withdraw his plea or obtain specific performance, where the state violated the condition of his plea that he be allowed to serve his state sentence concurrent with his federal sentence in federal custody. Inmate Napolitano believes that his treatment by the Department is inconsistent with these cases. However, even if accurate, this does not provide this 4

8 court with jurisdiction. The Court=s jurisdiction is limited and in most cases, resort to the district court is the final step. CONCLUSION For the foregoing reasons, Respondent submits that jurisdiction does not exist and requests that this court dismiss. Respectfully submitted, Sherry Toothman Assistant General Counsel Florida Bar No Blair Stone Road Tallahassee, Florida (850) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Rocco Napolitano, DC# B00921, Moore Haven Correctional Facility, P.O. Box , Moore Haven, FL 33471, on this day of July Sherry Toothman 5

9 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I HEREBY CERTIFY that the foregoing computer generated document is typed in Courier New 12-point font. Sherry Toothman 6