IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-1031 LEONARDO DIAZ, Petitioner, vs. STATE OF FLORIDA, Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ON PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * RESPONDENT S BRIEF ON JURISDICTION CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida CONSUELO MAINGOT Florida Bar No. 0897612 Supervising Attorney MELISSA VAUGHAN RUBIN Certified Out-of-State Practitioner Department of Legal Affairs 110 S.E. 6th Street, 9th Floor Ft. Lauderdale, Florida 33301 (954)712-4600,Fax (954)712-4761 Counsel for Respondent
TABLE OF CONTENTS TABLE OF CITATIONS...ii INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT....4 THIS COURT DOES NOT HAVE DISCRETIONARY JURISDICTION TO REVIEW THE THIRD DISTRICT COURT OF APPEAL S DECISION TO AFFIRM DEFENDANT S CONVICTION BECAUSE THE DISTRICT COURT ISSUED A PER CURIAM DECISION THAT CITED CASES NOT PENDING REVIEW IN THIS COURT. CONCLUSION...6 CERTIFICATE OF SERVICE...6 CERTIFICATE OF COMPLIANCE...7 i
TABLE OF CITATIONS STATE CASES Diaz v. State, 844 So. 2d 655 (Fla. 3d DCA 2003)...3 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...4 Lebron v. State, 799 So. 2d 997 (Fla. 2001)... 5 Persaud v. State, 838 So. 2d 529 (Fla. 2003)... 4,5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...5 Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)... 4 OTHER AUTHORITIES Art. V, Section 3(b)(3), Fla. Const. (1980)... 4 Fla. R. App. P. 9.030(a)(2)(A)(iv)...3,4 ii
INTRODUCTION The Respondent, the State of Florida, was the Appellee in the Third District Court of Appeal and the Prosecution in the trial court of the Eleventh Judicial Circuit, in and for Miami- Dade County. The Petitioner was the Appellant and the Defendant, respectively in the lower courts. In this brief, the parties will be referred to as the State and Defendant respectively. 1
STATEMENT OF THE CASE AND FACTS Defendant was charged with First Degree Murder and Carrying a Concealed Firearm for the fatal shooting of David Matallana on February 8, 1999. Defendant was brought to trial in October 2000, but after one and one-half days of deliberations and a standard deadlock charge, the jury indicated that it was split between second degree murder and manslaughter, and could not reach a unanimous verdict. Unwilling to accept a less than unanimous verdict, he asked the court to determine whether the jury had reached a verdict on the top count, by polling the jurors or submitting a verdict form. The trial court denied this request, and declared a mistrial. 1 In February 2001, before the second trial, defendant moved to dismiss the charge of first degree murder. (R. 263-264). He argued that double jeopardy had attached to that charge because the jury, by indicating a split between the lesser included offenses, had implicitly acquitted him of first degree murder. Defendant argued that the case against him should proceed by virtue of an Information on second degree murder. The trial court denied defendant s motion. On February 27, 2001, he was convicted of the lesser included offense of mistrial. 1 Defendant did not specifically object to the declaration of the 2
Manslaughter with a firearm, and Carrying a Concealed Firearm. He was sentenced to concurrent terms of imprisonment of thirty years for manslaughter, and five years for the possession of a firearm. On appeal, defendant argued, in relevant part, that his retrial for first degree murder was barred by double jeopardy because the court had declared a mistrial without manifest necessity, after declining to poll the jury on whether it had reached a verdict on that charge. On March 5, 2003, the Third District Court of Appeal affirmed defendant s conviction in a per curiam decision that cited opinions by the United States Supreme Court and the Commonwealth of Massachusetts. Diaz v. State, 844 So. 2d 655 (Fla. 3d DCA 2003). Subsequently, defendant filed motions for rehearing and rehearing en banc, both of which were denied. SUMMARY OF THE ARGUMENT The State respectfully submits that this Court does not have discretionary jurisdiction to review this case. In upholding defendant s conviction, the Third District Court of Appeal issued a per curiam decision that cited cases not pending review in this Court. As such, defendant cannot seek this Court s review based upon express and direct conflict on a question of law between the Third District s decision in his 3
case and another decision by this Court or other District Court of Appeal. Fla. R. App. P. 9.030(a)(2)(A)(iv). ARGUMENT THIS COURT DOES NOT HAVE DISCRETIONARY JURISDICTION TO REVIEW THE THIRD DISTRICT COURT OF APPEAL S DECISION TO AFFIRM DEFENDANT S CONVICTION BECAUSE THE DISTRICT COURT ISSUED A PER CURIAM DECISION THAT CITED CASES NOT PENDING REVIEW IN THIS COURT. Defendant seeks review of the Third District Court s per curiam decision that affirmed his conviction pursuant to Article V, Section 3(b)(3), Fla. Const. (1980), and Fla. R. App. P. 9.030(a)(2)(A)(iv), which provide that the discretionary jurisdiction of this Court may be invoked to review a decision of a district court of appeal which expressly and directly conflicts with a decision of another district court of appeal or of this Court on the same question of law. The State respectfully submits that this Honorable Court may not review this case because defendant presents no legitimate basis for the invocation of this Court s discretionary jurisdiction. The law is clear that this Court lacks jurisdiction to review a per curiam decision of a district court of appeal rendered without opinion, when the basis for such review is an alleged conflict between that decision and a decision of another 4
district court of appeal or of this Court. Persaud v. State, 838 So. 2d 529 (Fla. 2003); Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). An exception to this rule exists when the per curiam decision cites cases pending review in this Court. Persaud, Id. Here, defendant claims that the Third District Court s decision conflicts with this Court s decision in Lebron v. State, 799 So. 2d 997 (Fla. 2001). Conflict between decisions must appear within the four corners of the majority decision. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In defendant s case, however, the Third District Court of Appeal affirmed his conviction by a per curiam decision that cited two Massachusetts cases and one case from the United States Supreme Court. These cases are not pending in this Court, nor have they been reversed by the United States Supreme Court. As such, the Third District Court s decision is not properly subject to this Court s review under conflict jurisdiction, and defendant in fact concedes this point (Defendant s Brief at 3-4). Accordingly, defendant has failed to demonstrate a cognizable basis upon which this Court may properly exercise its discretionary jurisdiction, and his petition should be denied. 5
CONCLUSION WHEREFORE, based upon the foregoing argument and authorities cited herein, the State respectfully requests that this Honorable Court DECLINE to accept discretionary jurisdiction in this matter. Respectfully submitted, CHARLES J. CRIST, JR. Attorney General CONSUELO MAINGOT Fla. Bar No. 0897612 MELISSA VAUGHAN RUBIN Certified Out-of-State Practitioner 110 S.E. 6th Street, 9th Floor Ft. Lauderdale, Florida 33301 954-712-4600,Fax 954-712-4761 Counsel for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent's Brief on Jurisdiction was furnished by U.S. Mail to PAUL MORRIS, 9130 S. Dadeland Blvd., Suite 1528, Miami, Florida 33156, on this 26th day of June, 2003. 6
MELISSA VAUGHAN RUBIN Certified Out-of-State Practitioner CERTIFICATE OF COMPLIANCE Counsel for the State hereby certifies that 12 point Courier New is used in this brief. Practitioner MELISSA VAUGHAN RUBIN Certified Out-of-State 7