IN THE SUPREME COURT OF FLORIDA ROBERT ANDERSON Petitioner, VS. Case No. SC07-306 L.T. No. 1D06-2486 FLORIDA PAROLE COMMISSION, Respondent. RESPONDENT'S BRIEF ON JURISDICTION On petition for discretionary review from a decision of the District Court of Appeal, First District of Florida ANTHONY ANDREWS Assistant General Counsel Florida Parole Commission 2601 Blair Stone Road, Bldg. C Tallahassee, Florida 32399-2450 (850) 488-4460 Fla. Bar # 0749001
TABLE OF CONTENTS PAGE Table of Citations iii Preliminary Statement 1 Statement of the Case and the Facts 2 Statement of Issue 4 THIS COURT SHOULD DECLINE TO ACCEPT DISCRETIONARY JURIDICTION IN THIS CASE BECAUSE PETITIONER HAS FAILED TO SATISFY THE THRESHOLD REQUIREMENTS) FOR OBTAINING DISCRETIONARY JURISDICTION Summary of Argument 4 Argument 5 Conclusion 7 Certificate of Service 8 Certificate of Compliance 8 ii
TABLE OF CITATIONS CASES PAGE Geffken v. Strickler, 778 So. 2d 975 (Fla. 2001) 5 Evans v. McDonough, 939 So. 2d 1151 (Fla. 1St DCA 2006) 5 Flower v. McDonough, 932 So. 2d 617 (Fla. 1 St DCA 2006) 5 Tippens v. State, 897 So. 2d 1278 (Fla. 2005) 6 Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003) 6 OTHER Rule 9.030(2), Florida Rules of Appellate Procedure 5,6 Rule 9.030(2)(A)(v), (B), Florida Rules of Appellate Procedure 7 Rule 9.030(2)(A)(vi), Florida Rules of Appellate Procedure 7 iii
PRELIMINARY STATEMENT The Appellant/Petitioner below, Robert Anderson, will be referred to as "Petitioner" in this brief. Appellee/Respondent below, the Florida Parole Commission, will be referred to as the "Commission" or "Respondent." I
STATEMENT OF THE CASE AND THE FACTS 1. At the Commission meeting held on August 7, 2002, the Commission set Petitioner's Presumptive Parole Release Date (PPRD) as September 26, 2078. 2. Upon receipt of Petitioner's request for administrative review, the Commission declined to change Petitioner's PPRD. LOWER COURT PROCEEDINGS 3. On or about April 4, 2005, the Petitioner filed a Petition for Writ of Mandamus with the Clerk of the Second Judicial Circuit in Case No.: 2005 CA 000786 seeking to have the court issue an order compelling the Commission to recalculate his PPRD. 4. On April 18, 2006, the lower court issued an order denying mandamus relief, finding that Petitioner had not demonstrated that the Commission erred in its calculation of Petitioner's PPRD or that the Commission abused its discretion. 5. Petitioner sought certiorari review in the District Court of Appeal, First District of Florida, Case No. 1D06-2486, and on December 28, 2006, the District Court issued its opinion denying certiorari relief as to the Commission's decision regarding Petitioner's PPRD, but granting certiorari 2
relief as to the challenge to the lien order. The District Court reversed and quashed the Circuit Court's order imposing a lien on Petitioner's prison account. (Exhibit A). 3
STATEMENT OF THE ISSUE THIS COURT SHOULD DECLINE TO ACCEPT DISCRETIONARY JURIDICTION IN THIS CASE BECAUSE PETITIONER HAS FAILED TO SATISFY THE THRESHOLD REQUIREMENTS) FOR OBTAINING DISCRETIONARY JURISDICTION. SUMMARY OF THE ARGUMENT This Court should decline to accept discretionary jurisdiction over the instant case because Petitioner has failed to satisfy the threshold requirement(s) in order to properly request the Court to exercise its discretionary jurisdiction. 4
ARGUMENT ISSUE: THIS COURT SHOULD DECLINE TO ACCEPT DISCRETIONARY JURIDICTION IN THIS CASE BECAUSE PETITIONER HAS FAILED TO SATISFY THE THRESHOLD REQUIREMENTS) FOR OBTAINING DISCRETIONARY JURISDICTION. Petitioner contends that this Court should exercise its discretion to review the appellate decision below because the "District Court expressly and directly conflicts with a previous decision of this Court and of the First District Court of Appeals on the same question or issue of law." (PB, 7). 1 The Commission disagrees and submits that Petitioner has not properly sought discretionary jurisdiction. Petitioner has failed to satisfy Fla. R. App. P. 9.030(2). For example, Petitioner asserts that the District Court issued its opinion in conflict; but he does not detail with specificity the manner of conflict.2 Petitioner cites to 1 Petitioner's amended jurisdictional brief will be referred to as "PB" followed by the page number. Z Petitioner relies on Geffken v. Strickler, 778 So. 2d 975 (Fla. 2001) to allege conflict. Nothing in Geffken demonstrates conflict with the District Court's opinion in this case. Respondent will explain further in a later brief if the Court accepts discretionary jurisdiction. Petitioner also relies on Evans v. McDonough, 939 So. 2d 1151 (Fla. lst DCA 2006) and Flower v. McDonough, 932 So. 2d 617 (Fla. 1St DCA 2006) to allege conflict. These cases do not demonstrate conflict with the District Court's opinion and this 5
Tippens v. State, 897 So. 2d 1278 (Fla. 2005) as legal support for discretionary jurisdiction. Tippens does not provide any grounds for the Court to exercise its discretionary jurisdiction in the instant matter. The importance of Tippens as it relates to the instant case is detailed in one of the Court's holdings: This Court does not, however, have subject-matter jurisdiction over a district court opinion that fails to expressly address a question of law, such as [a decision] issued without opinion or citation.... Moreover, there can be no actual conflict discernible in an opinion containing only a citation to other case law unless one of the cases cited as controlling authority is pending before this Court, or has been reversed on appeal or review, or receded from by this Court, or unless the citation explicitly notes a contrary holding of another district court or of this Court. 3 Id. at 1280 (citation omitted). No direct conflict exists since the District Court did not cite a case as controlling authority that is pending before the Court or has been reversed on appeal or review, or receded from by the Court. The District Court cited to Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003), which was clearly already case, and Fla. R. App. P.9.030(2) does not authorize discretionary jurisdiction for purported conflicts of a decision of a district court of appeal in one case with its own prior judicial opinions. 3 Emphasis supplied unless otherwise indicated. 6
decided earlier and has not been reversed or receded from by the Court. (See Exhibit A). Furthermore, the District Court has not certified a question to this Court to be one of great public importance. (See Exhibit A). See Fla. R. App. P. 9.030(2)(A)(v), (B). Finally, the District Court's decision in the instant matter has not been certified to be in direct conflict with other decisions of other district courts of appeal. Fla. R. App. P. 9.030(2)(A)(vi). CONCLUSION Based on the foregoing arguments and citations of legal authorities, Respondent respectfully urges this Honorable Court to decline accepting discretionary jurisdiction in this case. Respectfully submitted, ANTHONY ANDREWS Assistant General Counsel Florida Parole Commission 2601 Blair Stone Road, Bldg. C Tallahassee, Florida 32399-2450 (850) 488-4460 Fla. Bar # 0749001 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT a true copy of the foregoing was furnished by U.S. Mail to Robert Anderson DOC#068701, Hardee Correctional Institution, 6901 State Road 62, Bowling Green, FL 33834, this day of April, 2007. ANTHONY ANDREWS Assistant General Counsel CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY THAT the instant pleading was produced in Times New Roman 14-point font. ANTHONY ANDREWS Assistant General Counsel- 8
EXHIBIT Ab Formatted: Position: Horizontal: 3.07", Relative to: Page, Vertical: 7.46", Relative to: Page, Width: Exactly 1.21", Height: Exactly 0.43" Formatted: Font: 20 pt
4 1: IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ROBERT ANDER SON, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Petitioner, DISPOSITION THEREOF IF FILED v. CASE NO. 1D06-2486 FLORIDA PAROLE COMMISSION, Respondent. Opinion filed December 28, 2006. Petition for Writ of Certiorari - Original Jurisdiction. Robert Anderson, pro se, Petitioner. Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent. PER CURIAM. This is a petition for certiorari challenging the trial court's denial of a petition for writ of mandamus in which petitioner challenged the presumptive parole release date set by the Parole Commission. On June 19, 2006, this court determined that
petitioner's appeal from the circuit court order is reviewable by petition for writ of certiorari pursuant to Sheley v. Florida Parole Commission, 720 So. 2d 216 (Fla. 1998). We deny the petition as to review of the decision regarding the presumptive release date, but we must reverse the circuit court's order imposing a lien on appellant's prison account based on the holding in Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003). Under Schmidt, the circuit court erred when it ordered appellant to pay filing fees and imposed a lien on his prison account. See Cason v. Crosby, 892 So. 2d 536, 537-38 (Fla. 1st DCA 2005). Accordingly, the petition is DENIED as to the challenge to the order by which the circuit court denied mandamus, but is GRANTED as to the challenge to the lien order, and that order is hereby QUASHED. ERVIN, ALLEN, and WOLF, JJ., CONCUR.