IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D THE STATE OF FLORIDA, Petitioner, -vs- MAXIMILIANO ROMERO, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DCA CASE NO. 3D THE STATE OF FLORIDA, Petitioner, -vs- MAXIMILIANO ROMERO, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITIONER S AMENDED BRIEF ON JURISDICTION CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida PAULETTE R. TAYLOR Assistant Attorney General Florida Bar No Office of the Attorney General 444 Brickell Avenue, Suite 950 Miami, FL Telephone:(305) Facsimile: (305)

2 TABLE OF CONTENTS PAGES TABLE OF CITATIONS...ii INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 QUESTION PRESENTED...3 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL ON THE SAME QUESTION OF LAW CONCLUSION...9 CERTIFICATE OF SERVICE...9 CERTIFICATE OF TYPEFACE COMPLIANCE...10 i

3 TABLE OF CITATIONS TABLE OF AUTHORITIES CASES Bradford v. State, 869 So. 2d 28 (Fla. 2d DCA 2004)... 7, 8 Goodman v. State, 845 So. 2d 253 (Fla. 1st DCA 2003)...7 Jones v. State, 591 So. 2d 911 (Fla. 1991)... 2, 5 Miller v. State, 814 So. 2d 1131 (Fla. 5th DCA 2002)...8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...5 Romero v. State, 30 Fla. L. Weekly D153 (Fla. 3d DCA Dec. 29, 2004)... 1, 2 Scott v. State, 629 So. 2d 888 (Fla. 4th DCA 1993)...7 Taylor v. State, 662 So. 2d 1031 (Fla. 1st DCA 1995)... 6, 7 STATUTES Fla. R. App. P (a)(2)(A)(iv)...5 Fla. R. App. P (a)(2) ii

4 INTRODUCTION The State petitions this Court for discretionary review of a decision of the Third District Court of Appeal which reversed a trial court order denying Respondent s motion to vacate plea and sentence. Romero v. State, 30 Fla. L. Weekly D153 (Fla. 3d DCA Dec. 29, 2004) (Exh. A), rehearing and rehearing en banc denied, June 10, (Exh. B). Respondent MAXIMILIANO ROMERO, was the Appellant below in the Third District Court of Appeal. Petitioner, the STATE OF FLORIDA was the appellee. In this brief, the parties will be referred to as they stand before this Honorable Court. 1

5 STATEMENT OF THE CASE AND FACTS The decision below in its entirety reads: Maximiliano Romero ("defendant") appeals the denial of his motion to vacate his plea and sentence. We reverse. We agree with the defendant's contention that the trial court abused its discretion in failing to vacate the plea and sentence. The victim, according to the trial judge's findings, n1 credibly recanted her accusation against the defendant and identified the true perpetrator at an evidentiary hearing on the defendant's motion to vacate his plea and sentence. The defendant denied the crime at the hearing, and explained that he earlier pleaded guilty because he feared the victim's initial accusation would be believed by the jury and that he might receive a life sentence. Under circumstances involving a post-sentencing recantation of a sole or chief prosecuting witness, we find a trial court is required to set aside a conviction based upon newly discovered evidence that would "probably produce an acquittal on retrial." See Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). Because the standard of "probably produce an acquittal on retrial" has been met, we reverse the order below and remand to the trial court with directions to vacate the defendant's guilty plea and sentence. n1 The trial judge found the victim's testimony "very convincing" and further stated the victim was a "good witness... [whose] in-court statement stood the test of cross-examination." Reversed and remanded with instructions. Romero v. State, 30 Fla. L. Weekly D153 (Fla. 3d DCA Dec. 29, 2004). 2

6 QUESTION PRESENTED WHETHER THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL ON THE SAME QUESTION OF LAW 3

7 SUMMARY OF THE ARGUMENT This Court has jurisdiction in this case because the district court s decision expressly and directly conflicts with decisions from the other district courts of appeal. In the decision below, the Third District applied the probably produce an acquittal on retrial standard in determining that the defendant was entitled to withdraw his plea based on a claim of newly discovered evidence. The First, Second, Fourth and Fifth District Courts of Appeal have all found application of that standard problematic in the plea context because there was no trial and no evidence introduced. Those courts have expressly rejected that standard and have adopted the manifest injustice standard, requiring a showing that withdrawal of the plea is necessary to correct a manifest injustice. Since the decision below expressly and directly conflicts with decisions from the other district courts of appeal, this Court should exercise its discretionary jurisdiction to review this cause. 4

8 ARGUMENT THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL ON THE SAME QUESTION OF LAW. Article V, Section 3(b)(3), Fla. Const. (1980) and Fla. R. App. P (a)(2)(A)(iv), provides that the discretionary jurisdiction of the Supreme Court may be sought to review a decision of a District Court of Appeal which expressly and directly conflicts with a decision of another District Court of Appeal or of the Supreme Court on the same question of law. Decisions are considered to be in express and direct conflict when the conflict appears within the four corners of the majority decisions. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In the instant case, the decision below expressly and directly conflicts with decisions from the First District Court of Appeal, from the Second District Court of Appeal, from the Fourth District Court of Appeal, and from the Fifth District Court of Appeal. In the decision below, the Third District reversed the trial court s order which denied Respondent s motion to vacate his plea and sentence. Relying on this Court s decision in Jones v. State, 591 So. 2d 911 (Fla. 1991), 1 the court held 1 In Jones, this Court held that in order to obtain a new trial based on newly discovered evidence, the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. 5

9 that [u]nder circumstances involving a post-sentencing recantation of a sole or chief prosecuting witness, we find a trial court is required to set aside a conviction based upon newly discovered evidence that would probably produce an acquittal on retrial. The court concluded that because the probably produce an acquittal on retrial standard had been met, the trial court erred in denying Respondent s motion to vacate his plea and sentence. In Taylor v. State, 662 So. 2d 1031 (Fla. 1 st DCA 1995), the First District reversed a trial court order which denied summarily a defendant s motion to withdraw his guilty plea. The defendant had entered his guilty plea while maintaining his innocence because he could not beat the testimony of a Jacksonville police officer, even if it [was] false. Id. At The defendant alleged that articles printed in the local newspapers reported that the police officer had been forced to resign and was under investigation for allegations that he had falsified his police reports. The defendant claimed that the newly discovered evidence substantially discredited the officer s veracity. In reversing the trial court s order, the First District held that the defendant s allegation was sufficient to warrant an evidentiary hearing because the allegation was sufficient to call into question the integrity of the process by which he was accused and, therefore, suggest that a manifest injustice occurred. Id. The court noted that at the evidentiary hearing, the burden would be on the defendant to establish that a 6

10 manifest injustice occurred in the process by which he was accused of sale or delivery of cocaine. Id. See also Goodman v. State, 845 So. 2d 253, 254 (Fla. 1 st DCA 2003)(holding that at evidentiary hearing on motion to withdraw plea based on allegation of newly discovered evidence, the burden is on the defendant to establish that withdrawal of the plea is necessary to correct a manifest injustice. ). In Scott v. State, 629 So. 2d 888 (Fla. 4 th DCA 1993), the Fourth District Court of Appeal, in an opinion authored by then Judge Pariente, specifically rejected the application of the probably produce an acquittal on retrial standard in determining whether a guilty plea should be vacated based on newly discovered evidence. The court noted that that standard is problematic because there was no trial and no evidence produced. Thus, it is not possible to compare the evidence produced at trial with the newly discovered evidence to determine whether the newly discovered evidence would probably produce an acquittal on retrial. Id. at 890. The court held that the more appropriate standard would be the manifest injustice standard for withdrawal of pleas after sentencing recognized by this Court in Williams v. State, 316 So. 2d 267 (Fla. 1975). Scott v. State, 629 So. 2d at 890. In Bradford v. State, 869 So. 2d 28 (Fla. 2d DCA 2004), the court found that the trial court erred in applying the Jones v. State probably produce acquittal on 7

11 retrial standard in denying the defendant s motion to withdraw his guilty plea based on newly discovered evidence. Bradford v. State, 869 So. 2d at 29. The court found that the Jones standard was virtually impossible to apply because there was no trial and that any determination as to the nature and admissibility of the evidence would have been speculative. Bradford v. State, 869 So. 2d at 29. The court held that the more appropriate standard for withdrawal of pleas after sentencing requires the defendant to prove that withdrawal of the plea is necessary to correct a manifest injustice. Id. See also Miller v. State, 814 So. 2d 1131 (Fla. 5 th DCA 2002) (adopting the manifest injustice standard to motion to withdraw plea based on newly discovered evidence). In the decision below, the Third District applied the probably produce an acquittal on retrial standard in finding that the trial court erred in denying Respondent s motion to vacate his plea and sentence based on a claim of newly discovered evidence. The decision expressly and directly conflicts with decisions from the other district courts of appeal which have all adopted the manifest injustice standard to motions to vacate pleas based on allegations of newly discovered evidence. Since the decision below expressly and directly conflicts with decisions from the other district courts of appeal, this Court should exercise its discretionary jurisdiction and review the decision below. 8

12 CONCLUSION WHEREFORE, based on the preceding authorities and arguments, Petitioner respectfully requests that the Court exercise its discretionary jurisdiction to review this cause. Respectfully Submitted, CHARLES J. CRIST, JR. Attorney General CERTIFICATE OF SERVICE PAULETTE R. TAYLOR Assistant Attorney General Florida Bar Number Office of the Attorney General 444 Brickell Avenue, Suite 950 Miami, FL Telephone: (305) Facsimile: (305) I HEREBY CERTIFY that a true and correct copy of the foregoing Petitioner s Brief on Jurisdiction was furnished by mail to Benjamin S. Waxman, Esq., 2250 S.W. Third Avenue, 4 th Floor, Miami, Florida on this 26th day of July, PAULETTE R. TAYLOR Assistant Attorney General 9

13 CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the foregoing Response was written using 14 point Times New Roman in compliance with Fla. R. App. P (a)(2). PAULETTE R. TAYLOR Assistant Attorney General 10

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