PETITIONER S JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA ROBERT E. GONZALEZ, Petitioner, vs. STATE OF FLORIDA, Respondent. : : : Case No. : : : 2D DISCRETIONARY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PETITIONER S JURISDICTIONAL BRIEF JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT ALISA SMITH Assistant Public Defender FLORIDA BAR NUMBER Public Defender's Office Polk County Courthouse P. O. Box Drawer PD Bartow, FL (863) ATTORNEYS FOR PETITIONER

2 TOPICAL INDEX TO BRIEF PAGE NO. STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 Did the Second District of Appeal, in its written opinion affirming the trial court, expressly construe provisions of the Florida or Federal Constitutions to invoke the jurisdiction of the Florida Supreme Court? CONCLUSION...5 CERTIFICATE OF SERVICE...6 APPENDIX...7 i

3 TABLE OF CITATIONS United States Supreme Court Cases PAGE NO. Ballew v. Georgia, 435 U.S. 223 (1978) 3 O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct (1999) 4 Williams v. Florida, 399 U.S. 78 (1970) 1,2,3 Florida Cases Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988) 4 Constitutional provisions Sixth Amendment, U.S. CONST., Art, I, 22 1,2,4 FL CONST., Art. I, 16 1,2,4 FL CONST., Art. I, 22 1,2,4 Florida Rules and Statutes , Fla. Stat., 1,2 Fla.R.Crim.P , 1,2 Rule 9.030(a)(2)(A)(ii), Fla.R.Appl.P. 4 ii

4 STATEMENT OF THE CASE AND FACTS The Second District affirmed Petitioner s conviction of second-degree murder and sentence of life in prison. In doing so, the Second District agreed the trial court was correct in denying Gonzalez s motion to restore the use of twelve person juries in serious felony prosecutions as compelled by Article 1, 22, of the Florida, , Fla. Stat., Fla.R.Crim.P , and Williams v. Florida, 399 U.S. 78 (1970) (Appendix A). That opinion was rendered on April 30, 2008, and a notice to invoke this Court s jurisdiction was timely filed. 1

5 SUMMARY OF THE ARGUMENT By construing both Florida and Federal Constitutions, the Second District opinion, rendered on April 30, 2008, properly rests jurisdiction with the Florida Supreme Court. Specifically, the Second District interpreted: Sixth Amendment, U.S. CONST., Art, I, 22, FL CONST., Art. I, 16, FL CONST., Rule 3.270, Fla.R.Crim.P. and , Fla. Stat. (2004). Receding from Williams v. Florida, 399 U.S. 78 (1970) is necessary because the decision was wrongly decided. The twelve-person jury was not an historical accident. And, subsequent empirical research has demonstrated, contrary to the Williams conclusion, six- and twelve person juries are not functionally equivalent. 2

6 ARGUMENT Did the Second District of Appeal, in its written opinion affirming the trial court, expressly construe provisions of the Florida or Federal Constitutions to invoke the jurisdiction of the Florida Supreme Court? The trial court denied Petitioner s motion to restore the twelve-person jury and challenge to the six-person jury as violating his Sixth and Fourteenth Amendment rights to a trial by an impartial jury. In affirming the trial court order, the Second District expressly construed the following state and federal constitutional provisions: Sixth Amendment, U.S. CONST., Art, I, 22, FL CONST., Art. I, 16, FL CONST. In doing so, the Second District rejected Gonzalez argument that, contrary to Williams v. Florida, 399 U.S. 78 (1970), the twelve-person jury was not an historical accident and contemporary empirical study, applying the functional-equivalence test set forth in Ballew v. Georgia, 435 U.S. 223 (1978), overwhelmingly demonstrated that six- and twelve-person juries were not functionally equivalent. The Second District was compelled by Williams v. Florida, 399 U.S. 78 (1970), and Ballew v. Georgia, 435 U.S. 223 (1978), to uphold the trial court s decision denying Gonzalez a twelve-person jury: As persuasive as Mr. Gonzalez s argument may be, this 3

7 court is bound by existing Supreme Court precedent to hold that the six-person jury that convicted him was not, by sheer virtue of its size, constitutionally deficient. That argument must be made ultimately to the Supreme Court. Appendix A, p. 16; Gonzalez v. State, -- So.2d (Fla. 2d DCA April 30, 2008). Based on Rule 9.030(a)(2)(A)(ii), Fla.R.Appl.P. or the need to exhaust state remedies, O Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct (1999); and The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988), the Florida Supreme Court should accept discretionary review and quash the decision below. 4

8 CONCLUSION This court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of the petitioner s argument. 5

9 CERTIFICATE OF SERVICE I certify that a copy has been mailed to Attorney General s Office, Concourse Center #4, 3507 E. Frontage Rd. - Suite 200, Tampa, FL 33607, (813) , on this day of May, CERTIFICATION OF FONT SIZE I hereby certify that this document was generated by computer using Microsoft Word with Courier New 12-point font in compliance with Fla. R. App. P (a)(2). Respectfully submitted, JAMES MARION MOORMAN ALISA SMITH Public Defender Assistant Public Defender Tenth Judicial Circuit Florida Bar Number (863) P. O. Box Drawer PD Bartow, FL AMS 6

10 APPENDIX 1. Opinion from District Court of Robert E. Gonzalez dated April 30, 2008 PAGE NO. A 7