IN THE SUPREME COURT OF FLORIDA

Transcription

1 Filing # E-Filed 01/03/ :17:30 PM IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, vs. Petitioner, EDDIE RUTLEDGE, Case No: SC L.T. Case No. 4D RECEIVED, 1/3/ :18:49 PM, Clerk, Supreme Court Respondent. ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL RESPONDENT S JURISDICTIONAL BRIEF (ANSWER) JACOB M. NOBLE, ESQ. Fla. Bar No: P.G.A. Boulevard Suite 600 Palm Beach Gardens, FL jacob@noblelawyer.com Counsel for Respondent

2 Table of Contents Table of Contents...i Table of Authorities...i Cases...i Preliminary Statement...1 Response to the State s Statement of the Case...1 Response to the State s Summary of the Argument...1 Argument Alexis does not involve a conflict of interest arising from the State s criminal investigation of the defendant s attorney An attorney under criminal investigation by the same ASA prosecuting his client creates a presumption of actual conflict...3 Conclusion...3 Certificate of Service...5 Certificate of Typeface Compliance...5 Table of Authorities Cases Alexis v. State, 140 So.3d 616 (Fla. 1st DCA 2014) Dixon v. State, 758 S.2d 1278 (Fla. 3d DCA 2000) Forsett v. State, 790 S.2d 474 (Fla. 2d DCA 2001)...2 i

3 Gorby v. State, 630 So.2d 544 (Fla. 1993)...1-3, 5 Larzelere v. State, 676 S.2d 394 (Fla. 1996)...3 Lee v. State, 690 S.2d 664 (Fla. 1st DCA 1997)...2 U.S. v. McLain, 823 F.2d 1457 (11th Cir. 1987)...2 U.S. v. Watson, 866 F.2d 381 (11th Cir. 1989)...2 ii

4 PRELIMINARY STATEMENT The petitioner will be referred to as State and respondent, Eddie Rutledge, shall be referred to as Rutledge. RESPONSE TO THE STATEMENT OF THE STATE S CASE AND FACTS In addition to the Statement of the Case and Facts set forth by the State, Rutledge asserts the following: The State alleged that Haughwout, never requested a hearing on the motion to disclose alleged criminal investigation. However, the Court never provided Haughwout an opportunity to address the motion, let alone request a hearing. In fact, the Court denied the motion and told Haughwout in open Court that it did not need an evidentiary hearing. A.S.A Andrew Slater, the prosecutor in Rutledge, never disclosed to the Court that he initiated the investigation into Haughwout s alleged witness tampering. RESPONSE TO THE STATE S SUMMARY OF THE ARGUMENT This case is not about a valid waiver, but a failure to communicate. In Rutledge, A.SA. Slater sought to execute Rutledge 1 and incarcerate his attorney. Rutledge and his attorney knew of the former, but not the latter. Haughwout s representation of Rutledge while under criminal investigation constituted an actual conflict. The State argues that the Rutledge opinion conflicted with Gorby, and Dixon. Additionally, the State argues that Rutledge is analogous to a case currently before this Court. See Alexis v. State, 140 So.3d 616 (Fla. 1st DCA 2014), 2014 WL (Fla. Aug. 19, 2014). But Rutledge involves representation creating an actual conflict. Gorby, Dixon, and Alexis did not. Therefore, this Court should decline to invoke discretionary 1 The State sought death in this case.

5 jurisdiction in this case. ARGUMENT 1. Alexis does not involve a conflict of interest arising from the State s criminal investigation of the defendant s attorney. In this case, the conflict of interest involves A.S.A. Slater s decision to criminally investigate Haughwout while prosecuting her client simultaneously. None of the cases cited to by the State involve this sort of conflict. See Gorby v. State, 630 So.2d 544 (Fla. 1993), Dixon v. State, 758 S.2d 1278 (Fla. 3d DCA 2000), Lee v. State, 690 S.2d 664 (Fla. 1st DCA 1997), Forsett v. State, 790 S.2d 474 (Fla. 2d DCA 2001), Alexis v. State, 140 So.3d 616 (Fla. 1st DCA 2014), 2014 WL (Fla. Aug. 19, 2014). They all address waivers of potential conflicts by a defendant. The case currently before this Court, Alexis, only involved potential conflicts of interest related to an attorney s joint representation of defendants....[b]ecause joint representation has been recognized to be a tool that can obstruct potential cooperation with law enforcement, allowing a Gotcha per se reversal for doing so, such as the First District s decision creates, merits this Court s immediate attention and the acceptance of express and direct conflict jurisdiction. See State v. Alexis, Jxn. Br. of Petr WL (Fla. July 18, 2014). Since an attorney under criminal investigation is not a tool that can obstruct potential cooperation with law enforcement, Rutledge does not merit this Court s immediate attention. Therefore, the Court should deny the State s request for this Court to exercise discretionary jurisdiction. 2

6 2. An attorney under criminal investigation by the same ASA prosecuting his client creates a presumption of actual conflict. The State argues that Haughwout s representation of Rutledge only posed a potential conflict. The problem with the State s argument is twofold. First, the Rutledge Court never found that the criminal investigation of Haughwout only posed a potential conflict. How could it when the Court refused to conduct the most basic of inquiries? In contrast, Larzelere v. State, 676 S.2d 394 (Fla. 1996), a case cited to by the State, the Court questioned the defendant extensively about the potential for conflict. Second, an actual conflict is presumed when the ASA prosecuting the defendant is the same prosecutor investigating his attorney. See U.S. v. McLain, 823 F.2d 1457 (11th Cir. 1987), overruled on other grounds as recognized in U.S. v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989). In Rutledge, the Fourth DCA noted that the McClain decision involved a somewhat similar fact pattern with a presumptive actual conflict. Here, the State, just as the prosecution in McClain, conducted a criminal investigation of a defendant s attorney. Due to serious and credible allegations, the State acted in good faith when it conducted a criminal investigation into Haughwout s alleged witness tampering. Since the investigation of Haughwout, similar to the investigation of McClain s attorney, occurred at the same time as her representation, the conflict was actual and not potential. Therefore, Gorby, which only addressed a potential conflict, does not conflict with the Rutledge. 3

7 CONCLUSION Because Rutledge involved a conflict of interest arising from the criminal investigation of his attorney and not joint representation, the decision does not conflict with Gorby. It also does not present the same issue currently before this Court in Alexis. Therefore, this Court should deny the State s Petition to Exercise Discretionary Jurisdiction. Respectfully submitted By: /s/ Jacob M. Noble Fla. Bar No: P.G.A. Boulevard, Suite 600 Palm Beach Gardens, FL (T) (F) jacob@noblelawyer.com Attorney for Eddie Rutledge 4

8 CERTIFICATE OF TYPE FACE COMPLIANCE I HEREBY CERTIFY that this brief has been prepared with Times New Roman 14 point type and complies with the font requirements of Fla. R. App. P Office of the Attorney General crimappwpb@myfloridalegal.com 1515 North Flagler Drive, 9th Floor West Palm Beach, Florida CERTIFICATE OF SERVICE /s/ Jacob M. Noble, Esq. Fla. Bar No: P.G.A. Boulevard, Suite 600 Palm Beach Gardens, FL 3310 (T) (F) jacob@noblelawyer.com Attorney for Eddie Rutledge Undersigned counsel certifies that on January 3, 2015, a copy of this Response to Petitioner s Brief on Jurisdiction was furnished by e-service to: Office of the Attorney General crimappwpb@myfloridalegal.com 1515 North Flagler Drive, 9th Floor West Palm Beach, Florida /s/ Jacob M. Noble, Esq. Fla. Bar No: P.G.A. Boulevard, Suite 600 Palm Beach Gardens, FL 3310 (T) (F) jacob@noblelawyer.com Attorney for Eddie Rutledge 5