JOHN SUPREME COURT OF FLORIDA s. 7 0 TODD HOWARD, Appellee, By V. Case No.: 4D14-2439 L.T. No.: 89-4684CF10A STATE OF FLORIDA, Petitioner. I PETITIONER'S JURISDICTIONAL BRIEF On Review From The District Court Of Appeal, Fourth District State Of Florida PRO-SE TODD IVAN HOWARD MADISON CORRECTIONAL INSTITUTION 382 SW MCI WAY MADISON, FL 32340 1
TABLEOFCONTENTS PAGE TABLE OF CITATIONS...3 STATEMENT OF CASE AND FACTS...4 SUMMARY OF THE ARGUMENT... 5 JURISDICTIONAL STATEMENT...6 ARGUMENT...7-8 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE APPELLATE COURTS PRIOR RULINGS IN KING V. STATE, 597 So.2d 309 (FLA. 2 DIST 1992); DANIELS V. STATE, 593 SO.2D 312 (FLA. 1" DCA 1992); AND THIS COURT DECISION IN WHITE V. STATE, 666 SO.2D 895-97 (FLA. 1996) CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE... 10 ATTACHED APPENDIX COURT ORDER DATED OCTOBER 14, 2014 FOURTH DISTRICT COURT OF APPEAL... A 2
TABLE OF CITATIONS CASES BOVER V. STATE, 797 So.2d 1246 (Fla. 2001) IVES V. STATE, 993 So.2d 117 (Fla. 4* DCA 2008) KING V. STATE, 597 So.2d 309 (Fla. 2" DCA 1992) DANIELS V. STATE, 593 So.2d 312 (Fla. 1" DCA 1992) WHITE V. STATE, 666 So.2d 895 (Fla. 1996) CONSTITUTIONAL PROVISIONS AND STATUTES ART. V 3(b)(3) FLA. CONST. (1980) COURT RULES 3.800(a) FLA. R. APP. P. 9.030(a)(A)(iv) 3
STATEMENT OF THE CASE AND FACTS The Petitioner Todd Howard on February 24, 1989 was charged in the County of Broward, State of Florida, with a three (3) count Information contrary to Florida Statutes for the following offenses: Robbery w/o Weapon F.S. 812.13(1)(1989); Robbery w/o Weapon F.S. 812.13(1)(1989); Carrying a Concealed Weapon F.S. 790.01(2)(1989). On December 13, 1989, a jury rendered a guilty verdict per the States charged offenses. The presiding judge was the Honorable Miette K. Bernstein. On January 16, 1990, the Petitioner was sentenced per the court to Habitual Offender sanctions. On February 27, 1990 the court granted Petitioners Motion to Correct Sentence, issue was not certain and resentenced the Petitioner to the following: (Count 1, 30 years) (Count 2, 30 years) (Count 3, Time served). On appeal Petitioners sentences were affirmed, see Howard v. State, 570 So.2d 947 (Fla. App. 4 Dist 1990). After a successful postconviction challenge, on 4-25-95 Petitioner was granted a resentencing of his previously imposed sentences of February 27, 1990. See Howard v. State, 648 So.2d 1250 (4* Dist 1995) and upon a contested resentencing hearing was resentenced over objection of counsel. 4
SUMMARY OF THE ARGUMENT In this case the Distreit Court of a Appeal held that a Challenge to a deficiency in procedure in imposing enhanced sentence is not cognizable through a rule 3.800 motion. Bover v. State, 797 So.2d 1246 (Fla. 2001); Ives v. State, 993 So.2d 117, 120 (Fla. 48' DCA 2008). The decision of the district court of appeal cannot be reconciled with the previous holdings in King v. State, 597 So.2d 309 (Fla. App. 2 Dist. 1992) wherein the court held that a habitual offender sentence is illegal for purposes of rule 3.800(a) when a prior offense essential to categorize the defendant as a habitual offender does not actually exist. Moreover in Daniels v. State, 593 So.2d 312 (Fla. 1'' DCA 1992), The court held that (failure to make requisite findings in support of habitual felony offender sentencing was fundamental error resulting in illegal sentence which could be corrected at any time). Furthermore, this Court in White v. State, 666 So.2d 895-97 (Fla. 1996), impliedly recognized that a defendant who claimed that he was improperly sentenced as a habitual offender based upon a non-qualifying predicate offense may challenge his sentence pursuant to rule 3.800(a). Thus the Petitioner contends that the district courts rendered opinion expressly and directly conflicts with previous decisions of the 2nd District and 18' District as well as this court's ruling in White. 5
JURISDICTIONAL STATEMENT The Florida Supreme Court Has Discretionary Jurisdiction To Review A Decision Of A District Court Of Appeal That Expressly And Directly Conflicts With A Decision Of The Supreme Court Or Another District Court Of Appeal On The Same Point Of Law. Art. V, 3(B)(3) Fla. Const. 1980; Fla. R. App. P. 9.030(A)(2)(A)(Iv). 6
ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL: The District Court of Appeal in rendering their denial interpreted Rule 3.800(a) F.R.C.P. 1986 contrary to existing case law not applicable to the law in effect on petitioners offense date, not his sentencing date Domberg v. State, 661 So.2d 285 (Fla. 1995). The District Court of Appeal iñterpreted petitioners challenge to his Habitual offender sentence (where he alleges a prior offense essential to categorize him as a habitual offender does not actually exist) to be a challenge to a deficiency in procedure in imposing an enhanced sentence that has been established to be cognizable through a rule 3.800 motion. Bover v. State, 797 So.2d 1264 (Fla. 2001). In the decision of the Fourth District Court reported as Case no.:4d14-2439 dated October 14, 2014, (Appendix A), has failed to consider this courts prior ruling in White v. State, 666 So.2d 895 (Fla. 1996) which this court impliedly recognized that a defendant who claimed that he was improperly sentenced as a habitual offender based upon a non-qualifying predicate offense may challenge his sentence pursuant to rule 3.800(a). Moreover, in King v. State, 597 So.2d 309 (Fla. App. 2 Dist. 1992) also concluded that a habitual offender sentence is illegal 7
for purposes of rule 3.800(a), if a prior offense essential to categorize the defendant as a habitual offender does not actually exist as a matter of law. Also in Daniels v. State 593 So.2d 312 (Fla. 1" DCA 1992); concluded that failure to make requisite findings in support of habitual felony offender sentencing was fundamental error resulting in illegal sentence, which could be corrected at anytime. Here, it has been objected by Counsel at the Defendants April 25, 1995, resentencing hearing that these procedures were not followed. The State would hope to prevail based on Ex Post Facto principles where later case law is being applied thereby ignoring the offender offending date and the applicable law in effect. Under this analysis no conflict arises. However when properly viewed conflict exists. 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 petitioners argument. 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this document was placed in the hands of the mailroom staff at Madison correctional institution, to be delivered via U.S. Mail to the State Attorney at the Criminal Appeals Division, PL-01 The Capitol, Tallahassee, FL 32399-1050 on this // day of Åld VevÁer 2014. Todd Howard, DC#089975 Madison Correctional Institution 382 SW MCI Way Madison, FL 32340 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Todd Howard, DC#089975 Madison Correctional Institution 382 SW MCI Way Madison, FL 32340 10
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401 October 14, 2014 CASE NO.: 4D14-2439 L.T. No.: 89-4684CF10A TODD HOWARD v. STATE OF FLORIDA Appellant / Petitioner(s) Appellee / Respondent(s) BY ORDER OF THE COURT: ORDERED that appellant's motion for rehearing filed September 19, 2014 is denied. A challenge to a deficiency in procedure in imposing enhanced sentence is not cognizable through a rule 3.800 motion. Bover v. State, 797 So. 2d 1246 (Fla. 2001); /ves v. State, 993 So. 2d 117, 120 (Fla. 4th DCA 2008). Served: cc: Attorney General-W. P. B. Todd I. Howard kb T LONN WEISSBLUM, Clerk Fourth District Court of Appeal DISTRICT