IN THE SUPREME COURT OF THE STATE OF FLORIDA PATRICK PALUMBO Petitioner, v. STATE OF FLORIDA, Respondent. CASE NO. 5D08-1275 LOWER COURT NO. 05-CF-0006841-O APPELLANT S JURISDICTIONAL BRIEF ON REQUEST FOR DISCRETIONARY REVIEW On Discretionary Review From The Fifth Circuit Court of Appeals And the Ninth Judicial Circuit In And For Orange County, Florida R. Scott Andringa, Esquire Paul A. Gionis, Esq. Florida Bar No. 0987727 Florida Bar No. 0560243 R.SCOTT ANDRINGA, ESQ. LLC BILIRAKIS LAW GROUP, LLC Royal Square 4538 Bartelt Road 7850 Ulmerton Road, Suite 1B Holiday, Florida 34690 Largo, Florida 33771 Telephone (727) 937-3226 Telephone: (727) 712-1600 Facsimile (727) 934-5069 Facsimile: (727) 712-1611 Counsel for Patrick Palumbo
TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT...2 ARGUMENT...4 I. THIS COURT HAS DISCRETION TO INVOKE JURISDICTION BECAUSE THE FIFTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL... 4 II. THIS COURT SHOULD INVOKE JURISDICTION BECAUSE THIS ISSUE IS OF GREAT PUBLIC IMPORTANCE... 8 CONCLUSION... 9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE...10
TABLE OF AUTHORITIES Cases Page Aravena v. Miami-Dade County, 928 so.2 nd 1163 (Fla. 2006) 5 Bowden v. State, 642 So.2 nd 769 (Fla. 1 st DCA 1994).4-6, 8 Crossley v. State, 596 So.2 nd 447 (Fla. 1992)..6 Dorch v. State, 458 So.2 nd 357, 358 (Fla. 1 st DCA 1984)...6 Jenkins v. State, 385 So.2 M.A.P. v. State of Florida, 808 So.2d 275 (Fla. 5 nd 1356, 1359 (Fla. 1980) 5 th DCA 2002).9 Palumbo v. State, 2010 Fla. App. Lexis 17533...2, 9 Palumbo v. State, 2010 Fla. App. Lexis 596...2 Purvis v. State of Florida, 783 So.2d 292 (Fla. 5 th DCA 2001).. 9 Richards v. State, 738 So.2 nd 415 (Fla. 2 nd DCA 1999)...2, 4-7 Seagrave v. State, 802 So.2d 281 (Fla. 2001).....7 State v. Pate, 656 So.2 nd 1323 (Fla. 5 th DCA 1995)...2-6, 8 The Florida Star v. B.J.F., 530 So.2 Watkins v. State, 48 So.2d 883 (Fla. 1 Whigham v. State of Florida, 789 So.2d 1006 (Fla. 5 nd 286 (Fla. 1988)...4-5 st 2010) 7 Florida Constitution Article V, 3(b)(3)...4-5 th DCA 2001)...9
Florida Statutes & Rules Treatises Fla. R. App. P. 9.030(a)(2)(A)(iv)...4 Florida Statute 794.011.. 1-8 Florida Statute 775.021(1) 3 Florida Appellate Practice, West s Florida Practice Series, Philip Padavano, 2007...4
STATEMENT OF THE CASE AND FACTS Appellant, Patrick Palumbo, invokes the Court s discretionary jurisdiction to review a decision of the Fifth District Court of Appeal, affirming his conviction for capital sexual battery. (Appendix A). The Petitioner was convicted of capital sexual battery pursuant to Fla. Stat. 794.011(2). The jury was instructed that to prove the crime of Sexual Battery the State must prove that the Petitioner committed an act upon A.L., a child less than twelve years of age, in which his penis penetrated or had union with her vagina. (App. A at 2). Fla. Stat. 794.011(1)(h) states sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Fla. Stat. 794.011(2)(a) states [a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141. Petitioner argues that the State did not prove capital sexual battery because no evidence was adduced at trial that would allow a jury to conclude that his penis had union with or penetrated the alleged victim s vagina. (App. A at 2).
On November 9, 2010, the Fifth District Court of Appeal entered an opinion that affirmed, per curiam, the Petitioner s conviction. Palumbo v. State, 2010 Fla. App. Lexis 17533. The November 9, 2010 opinion cited to State v. Pate, 656 So.2d 1323 (Fla. 5 th DCA 1995), but did not provide a written opinion. Id. On January 28, 2011, the Fifth District Court of Appeal granted the Petitioner s Motion for Written Opinion, and withdrew the previously issued opinion. Palumbo v. State, 2011 Fla. App. LEXIS 596. The Petitioner s Motion for Rehearing En Banc, was denied. Id. It is upon the January 28, 2011 written opinion that the Petitioner seeks this Court to invoke jurisdiction, based upon a direct and express conflict with another district court of appeal. SUMMARY OF THE ARGUMENT In the instant case the Fifth District Court of Appeal held that, in the context of Fla. Stat. 794.011, the word vagina encompasses not only the passageway between the cervix and the vulva, as it is medically defined, but the entire vulva area. (App. A at 2). The Fifth District Court explicitly acknowledged conflict with the opinion of the Second District Court of Appeal in Richards v. State, 738 So.2 nd 415 (Fla. 2 nd DCA 1999) which utilized the medical definition of the term vagina in its interpretation of Fla. Statute 794.011 (App. A at 2). Accordingly, an express and direct conflict exists between the Fifth and the Second District Courts of Appeal, and discretionary review is appropriate on this
question of law. This conflict was explicitly acknowledged by the Fifth District Court of Appeal. (App. A at 2). This matter is of great public importance. Scenarios with similar factual issues frequently occur across Florida, and must be dealt with by law enforcement and the courts. However, due to the conflict in the case law, these cases are treated substantially differently depending on the location of where the act is alleged to have occurred. Despite the fact that the stakes could scarcely be higher, there are severely different outcomes for similarly situated defendants. A defendant convicted of capital sexual battery is punished by a minimum mandatory sentence of life in prison without the possibility of parole, while a defendant who is convicted of lewd and lascivious battery is punished by a term of years. This matter is also of great public importance because the Fifth District Court s opinion directly implicates the application of Fla. Stat. 775.021(1), Rules of Construction, which states that [t]he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused. The opinion also involves the Rule of Lenity, a bedrock principle of the law. Therefore, the Fifth District Court s opinion will have far reaching consequences as to how future trial courts will interpret and apply criminal statutes.
Accordingly, this Honorable Court should exercise its discretionary jurisdiction, and resolve the issue of how Fla. Stat. 794.011(1)(h) should be interpreted and applied. ARGUMENT 1. This Court Has Discretion To Invoke Jurisdiction Because The Fifth District s Decision Expressly And Directly Conflicts With A Decision Of Another District Court Of Appeal. The Supreme Court of Florida has the authority as the highest court of the state to resolve legal conflicts created by the district courts of appeal. Florida Appellate Practice, West s Florida Practice Series, Philip Padavano, 2007, pp. 67. Pursuant to Article V, 3(b)(3) of the Florida Constitution, the supreme court may review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. The Florida Rules of Appellate Procedure also provide for invocation of discretionary jurisdiction by the supreme court to review decisions of district courts of appeal that expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. R. App. P. 9.030(a)(2)(A)(iv). In The Florida Star v. B.J.F., 530 So.2 nd 286 (Fla. 1988) this Honorable Court ruled that in the broadest sense [it] has subject matter jurisdiction under Article V, 3(b)(3), of the Florida Constitution, over any decision of a district
court that expressly addresses a question of law within the four corners of the opinion itself. Id. at 288. This is correct unless the opinion fails to expressly address a question of law, such as a decision issued without an opinion or citation. Florida Star, Id. at 288 n.3. In the context of Article V, 3(b)(3) this Court defines the terms direct and express by their dictionary definitions. Jenkins v. State, 385 So.2 nd 1356, 1359 (Fla. 1980). In the instant case, the Fifth District Court of Appeal Court directly and explicitly recognized the existence of a direct conflict between its opinion, the basis of which was elaborated in State v. Pate, 656 So.2 nd 1323 (Fla. 5 th DCA 1995), and Richards v. State, 738 So.2 nd 415 (Fla. 2 nd DCA 1999). Accordingly, this Honorable Court has discretion to review this cause. Pate and Richards examine the same question of law, to wit: whether pursuant to Fla. Stat. 794.011, sexual battery requires union or penetration with a sexual organ and the vagina as it is medically defined as the passageway between the cervix and the vulva, or union or penetration with a sexual organ and the vagina, defined as a term of art to encompass the entire vulva area. The decisions in Pate and Richards are irreconcilable with one another, which is one of the tests to confirm conflict jurisdiction. See Aravena v. Miami- Dade County, 928 so.2 nd 1163, 1166-7 (Fla. 2006). This cause merits the acceptance of discretionary jurisdiction by this court because the Fifth District
Court of Appeal and the Second District Court of Appeal would reach opposite results on virtually identical facts. See Crossley v. State, 596 So.2 nd 447, 449 (Fla. 1992). The Fifth District Court in Pate, citing Bowden v. State, 642 So.2 nd 769 (Fla. 1 st DCA 1994), stated that the First District s analysis of the term vagina was correct. The foregoing observations indicate that although the term vagina, may have a very definite medical meaning, the word as used in the statute is a term of art, which connotes a female's private parts. Thus, where the male offender is charged with committing sexual battery by penile union or penetration, the statute is broad enough to contain within its prohibition penetration or union with the female victim's sexual organ, Pate, id. at 1326, citing Bowden, 642 So.2 nd at 769, 771, and Dorch v. State, 458 So.2 nd 357, 358 (Fla. 1 st DCA 1984). However, in Richards, the Second District Court of Appeal specifically disagreed with the court s analysis in Bowden: We also disagree that there is both a technical definition of vagina and some separate term of art that permits the law to expand the wellrecognized medical definition to include the entire female sexual organ. Richards, 738 So.2 nd at 419. The Richards court also explicitly disagreed with the Pate court. We do not agree with the conclusion in Pate that to adopt what it describes as the medical definition of vagina means there could never be union with the vagina without penetration. To the contrary, evidence showing a defendant made penile contact with the victim's hymen or with the end of the canal in the absence of a hymen would be sufficient to establish union with the vagina. Richards, 738 So. 2d at 419.
That Pate and Richards are irreconcilable is manifest not only from the opinion in Richards, but by the acknowledgement of the court below which stated that [w]e acknowledge conflict with the Second District s decision in Richards v. State. (App. A at 2). The conflict between the Fifth District and Second district in the application of Fla. Stat. 794.011 is further muddied by the recent holding by the First District Court of Appeal in Watkins v. State, 48 So.2d 883 (Fla. 1 st 2010). In Watkins, the First District Court of Appeal expressly adopted the Richards analysis, stating that the Second District Court of Appeal translated the language of Florida Statute 794.011(1)(h), finding four offenses encompassed therein. Watkins, 48 So.2d at 884. The First District likely changed its position from Bowden based upon the direction of the Florida Supreme Court in Seagrave v. State, 802 So.2d 281, 287 n.7 (Fla. 2001), which referenced Richards, and stated that the terms penetration and union were to be used with precision. Penetration requires some entry into the relevant part, however slight. Id.at 287 n.7, citing Richards, 738 So.2d at 415. The Seagrave analysis, however, was dicta, as it addressed victim injury points pursuant to the Florida Criminal Guideline Score Sheet, rather than the crime of capital sexual battery pursuant to Fla. Stat. 794.011.
This further highlights the current state of confusion regarding the application of Fla. Stat. 794.011(1)(h). The Pate court relied upon the First District Court s opinion in Bowden, to conclude that the term of art definition of vagina, rather than the medical definition of vagina, should be applied for the purposes of Fla. Stat. 794.011. Pate, 656 So.2d at 1325. 2. This Honorable Court Should Invoke Jurisdiction Because this Issue is of Great Public Importance. This issue is regularly pending in other cases throughout Florida and will undoubtedly continue to arise in the future cases. Judges, law enforcement officers, prosecutors and defense attorneys are frequently confronted with fact patterns that test the distinction between sexual battery and lewd and lascivious battery. Under the current state of the law, the treatment of an alleged act will be largely dependent upon the location of where the act occurs; yet the stakes could only be greater if the charge was punishable by the death penalty. A defendant convicted of capital sexual battery is punished by a minimum mandatory sentence of life in prison without the possibility of parole, the same penalty a person receives for being convicted of second degree murder. A defendant who is convicted of lewd and lascivious battery is punished by a term of years. The ambiguity in the law regarding sexual battery causes similarly situated defendants to be treated dramatically differently based upon which district s precedent controls. Therefore,
under the current state of the law, defendants will receive greatly divergent punishments based not on their deeds, but on their judicial district. In fact, since the date that the Richards opinion was entered, a number of opinions, affirmed per curiam, have been entered by the Fifth District Court of Appeal that cite to Pate, with no additional written opinion. See Whigham v. State of Florida, 789 So.2d 1006 (Fla. 5 th DCA 2001), Purvis v. State of Florida, 783 So.2d 292 (Fla. 5 th DCA 2001), M.A.P. v. State of Florida, 808 So.2d 275 (Fla. 5 th DCA 2002), Palumbo v. State, 2010 Fla. App. Lexis 17533 (prior to the original opinion being withdrawn pursuant to a Petitioner s Motion for Written Opinion which was granted). It is therefore reasonable to infer that this matter has repeatedly resulted in capital convictions based upon the Fifth District s decision to define vagina as encompassing the entire female genitalia. It is also reasonable to infer from the lack of such opinions that the opposite is true in the Second District. Lastly, it appears that this matter has not been reviewed en banc, by a complete tribunal. It is therefore ripe for judicial review by this Honorable Court. CONCLUSION BASED UPON THE FOREGOING the undersigned counsel for PATRICK PALUMBO hereby respectfully requests that this Honorable Court accept review of the instant case and order briefs on the merits.
CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT I HEREBY CERTIFY that the font used in this brief is Times New Roman 14 point and in compliance with Rule 9.210, Florida Rules of Appellate Procedure. By: Paul Gionis, Esquire CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was provided by UNITED STATES MAIL to ASSISTANT ATTORNEY GENERAL BONNIE JEAN PARRISH; 444 SEABREEZE BOULEVARD; 5 TH FLOOR, DAYTONA BEACH, FLORIDA 32118, on this day of March, 2011. BILIRAKIS LAW GROUP By: Paul Gionis, Esquire Florida Bar No. 0560243 4538 Bartelt Road Holiday, Florida 34690 Telephone: (727) 937-3226 Facsimile: (727) 934-5069