IN THE SUPREME COURT OF FLORIDA CASE NO.: SC11-793 THE STATE OF FLORIDA, Petitioner, v. MANUEL DEJESUl Respond ANSWER BRIEF OF RESPONDENT ON JURISDICTION COMES NOW, the Respondent, Manuel DeJesus Deras, pro se, and moves this Honorable Court for leave to file this Answer Brief, and to deny discretionary review, and as grounds therefore Respondent submits the following: STATEMENT OF THE CASE AND FACTS Respondent accepts the Plaintiff's statement of the case and facts, with the following exceptions and corrections, to wit: The State contends that the Motion for Post Conviction Relief - for which the Third District Court of Appeal's decision is now pending discretionary review - was a claim of lack of sufficiency of evidence. This is not so, the claim is that the manifest injustice of Respondent pleading guilty to, and being convicted for, a crime that the record clearly shows did not, and could not have, happened, has occurred in this case. Said error must be corrected to avoid a manifest injustice.
TABLE OF CONTENTS TITLE PAGE NO. HISTORY i TABLE OF CONTENTS ii TABLE OF CASES ii OTHER AUTHORITIES iii SUMMARY OF ARGUMENT 1 ARGUMENT 2 "IT IS WELL SETTLED FEDERAL AND STATE LAW THAT A MANIFEST INJUSTICE WILL OVERCOME ALL PROCEDURAL DEFAULTS, INCLUDING A TIME LIMITATION, IF RELIEF IS NECESSARY TO AVOID A FUNDAMENTAL MISCARRIAGE OF JUSTICE, THEREFORE, THERE IS NO CONFLICT BETWEEN THE THIRD DISTRICT COURT'S DECISION IN THE INSTANT CASE AND THAT OF THE SECOND DISTRICT COURT IN HUGHES V. STATE, 22 So.3d 132 (Fla. 2nd DCA 2009)" STANDARD OF REVIEW 3 CONCLUSION 10 UNNOTARIZED OATH 11 CERTIFICATE OF SERVICE 11 TABLE OF CASES TITLE PAGE NO. Breedlove v. Singletary, 595 So.2d 8 (Fla. 1992) 8 Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005) 8 Davis v. Singletary, 716 So.2d 237 (Fla. 4th DCA 1998)... 8 Gudings v. State, 693 So.2d 953, 961 (Fla. 1997) 7 Haliburton v. State, 7 So.3d 601 (Fla. App. 4th Dist. 2009) 7
TABLE OF CASES (CONT.) TITLE PAGE NO. Holt v. Bowersox, 191 F.3d 970 (8th Cir. 1999) 5 Hughes v. State, 22 So.3d 132 (Fla. 2nd DCA 2009)... passim Irving v. State, 559 So.2d 374 (Fla. 1st DCA 1990) 5 Keeney v. Tamayo - Reyes, 112 S. Ct. 1715 (1992) 4 Maddox v. State, 760 So.2d 89, 95-96 (Fla. 2000) 7 McKay v. State, 988 So.2d 51 (Fla. 3rd DCA 2008) 9 M Cleskey v. Zant, 111 S.Ct. 1454 (1991) 4, 8 Miller v. State, 805 So.2d 971 (Fla. 2nd DCA 2001) 5 Miller v. State, 988 So.2d 138 (Fla. 1st DCA 2008) 6, 9, 10 Murray v. Carrier, 106 S.Ct. 2639 (1986) 4 Often v. State, 662 So.2d 742 (Fla. 4th DCA 1995) 8 Parker v. Bugger, 660 So.2d 1386 (Fla. 1995) 8 State v. McBride, 848 So.2d 287 (Fla. 2003) 2, 9 State v. Sion, 942 So.2d 934 (Fla. App. 3rd Dist. 2006).. 6 Steele v. Kehoe, 747 So.2d 1192 (Fla. 5th DCA 1998) 5 Ward v. Bugger, 508 So.2d 778 (Fla. 1st DCA 1987) 5 OTHER AUTHORITIES TITLE PAGE NO. Fla.R.App.P., 9.030(a)(2) 5 Fla.R.App.P., 9.141(c) (4) (B) passim Fla.R.Crim.P., 3.850 passim
SUMMARY OF ARGUMENT The State contends that the Third District Court's decision in the instant case in direct conflict with the Second District Court's decision in Hughes v. State, 22 So.2d 132 (Fla. 2nd DCA 2009). However, there is no conflict between the Third District Court's decision rendered on January 19, 2011 in the instant case and the Second District Court's decision in Hughes. There are two separate and distinct doctrines of law dealt with in the two cases. The Hughes decision is solely based upon the general term and claim of "fundamental error" and that general claim not being sufficient to overcome the two-year time limitation in Rule 3.850 Fla.R. Crim. P. But, the instant decision was on a totally separate doctrine of law, that of manifest injustice. The Third District Court found that if a manifest injustice occurred in the case, then even though Respondent's 3.850 Motion was beyond the two-year time limit, and was successive, the conviction would have to be reversed. Being that there are two distinctly different doctrines of law discussed in the two cases, there is no, and cannot be, a conflict between the two cases. Therefore, this Honorable Court should not exercise its discretionary review based upon a conflict where none exists.
ARGUMENT "IT IS WELL SETTLED FEDERAL AND STATE LAW THAT A MANIFEST INJUSTICE WILL OVERCOME ALL PROCEDURAL DEFAULTS, INCLUDING A TIME LIMITATION, IF RELIEF IS NECESSARY TO AVOID A FUNDAMENTAL MISCARRIAGE OF JUSTICE, THEREFORE, THERE IS NO CONFLICT BETWEEN THE THIRD DISTRICT COURT'S DECISION IN THE INSTANT CASE AND THAT OF THE SECOND DISTRICT COURT IN HUGHES V. STATE, 22 So. 3d 132 (Fla. 2nd DCA 2009)" Respondent claimed that the manifest injustice of him pleading guilty to a crime which the record clearly shows did not, and could not have, occur(red). Clearly Respondent's claim was under the doctrine of manifest injustice exception to procedural bars and defaults. The Third District Court of Appeals agreed with Respondent that the trial court erred when it denied Respondent's Motion as untimely because relief was necessary to avoid a miscarriage of justice. The court cited State v. McBride, 848 So.2d 287 (Fla. 2003) in its opinion as part of its reasoning for reversing the denial by the trial court. The State contends that the Third District Court's decision in the instant case is in direct conflict with Hughes v. State, 22 So.3d 132 (Fla. 2nd DCA 2009). There are two major errors in the State's reasoning: first, Deras and Hughes are on two very separate and distinguishable doctrines of law. Hughes discusses the "fundamental error" doctrine of law wherein the general term and the different definitions and misuse of the term makes it - as a general term - insufficient to overcome the two-year time
limitation of Rule 3.850. Deras on the other hand discusses the distinguishable "manifest injustice exception" doctrine of law and does not involve the general term "fundamental error" at all. Therefore, there can be no conflict between the two cases because they involve two entirely separate and distinguishable doctrines of law. Second, manifest injustice exception to all procedural defaults if the accused can demonstrate that if the procedural bars' application would result in a fundamental miscarriage of justice, necessarily includes if the prisoner has defaulted by not timely filing a 3.850 Motion. The doctrine therefore overcomes the two-year time limitation of Fla.R.Crim. P., 3.850. This is a doctrine of law set forth and well establish by the United States Supreme Court, therefore, Florida courts must follow the manifest injustice exception, and in many past cases has followed such doctrine, as shown below: STANDARD OF REVIEW It is well established Federal and State law that there is a narrow class of cases where the circumstances of the case will allow the prisoner to overcome ALL procedural bars or defaults. In these cases there are no general rules, doctrines, or laws which will be applied to bar relief if such application will result in a
miscarriage of justice. The narrow class of cases is those in which a manifest injustice has occurred and does exist. The United States Supreme Court has repeatedly recognized that a manifest injustice will overcome all procedural defaults by a Petitioner if applying the defaults to bar relief will result in a miscarriage of justice. See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992); tfcleskey v. Zant, 111 S.Ct. 1454 (1991); and Murray v. Carrier, 106 S.Ct. 2639 (1986), to wit: "We also adopt the narrow exception to the causeand-prejudice requirement: A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from the failure to hold a federal evidentiary hearing." Regardless of the three exceptions to the two-year limit in Rule 3.850, Fla.R.Crim.P., Florida courts have repeatedly allowed defendants to file successive and out-of-time Motions under Fla.R.Crim.P., 3.850, and Fla.R.App.P., 9.141, if the circumstances indicate that to bar relief by application of the time bar, or any other rule or doctrine would result in a miscarriage of justice, or a manifest injustice. Each of the District Courts, and the Florida Supreme Court, have allowed belated and successive Motions wherein the claims are outside the three specific exceptions enumerated in the Rule 3.850. The First District has allowed a belated 3.850 Motion when a defendant's attorney frustrated his good intentions to timely file
a 3.850 by withholding documents beneficial toward preparing such Motion (This is beyond the three listed exceptions within the Rule). See Ward v. Bugger, 508 So.2d 778 (Fla. 1st DCA 1987). The Fifth DCA has made the same exception. See Steele v. Kehoe, 747 So.2d 1192 (Fla. 5th DCA 1998). The First District found that continuous incompetency during the two-years, or more, can toll the two-year time deadline allowing an out-of-time post conviction relief motion. (This is beyond the three listed exceptions within the Rule). See Irving v. State, 559 So.2d 374 (Fla. 1st DCA 1990). The Federal 8th Circuit Court of Appeal has found the same exception. See Holt v. Bowersox, 191 F.3d 970 (8th Cir. 1999). The Second District Court has found that when a defendant receives erroneous information concerning the conviction and sentence disposition, the resulting confusion will entitle that defendant to file an out-of-time Rule 3.850 Motion. (This is beyond the three listed exceptions within the Rule). See Miller v. State, 805 So.2d 971 (Fla. 2nd DCA 2001). The State's Petition seeking discretionary jurisdiction of the Florida Supreme Court pursuant Fla.R.App. P., 9.030 (a) (2) shall be dismissed where the State is only misconstruing the term "fundamental error" in regard to appeals procedure and preservations of issues for review. Nevertheless, the State acknowledges that fundamental error has a different meaning when it is linked with or affects the "fundamental rights" of a person.
In Respondent's case, the 3rd DCA agreed that there was no factual basis to support the conviction for "Leaving the Scene of the Accident Involving Injuries". The 3rd DCA, in a prior decision in State v. Sion, 942 So.2d 934 (Fla. App. 3rd Dist. 2006), decided that "manifest injustice would occur where Defendant is allowed to plea to the wrong offense; distinguishable from Respondent's situation because the Respondent did not comply with the required elements of the charged offense. In another court's decision it was determined the difference of fundamental error when it is referred to preservation of issue for appeal. In Hughes v. State, 22 So.3d 132 (Fla. App. 2nd Dist. 2009), the reviewing court stated that "fundamental error" for purposes of preservation are those errors that can be raised on direct appeal even though unpreserved. But in the other hand, the law of the case in Respondent's situation would be "fundamental constitutional right" that is violated if permitted to be convicted of a crime not committed and that this would result in a manifest injustice. A similar issue and almost an identical issue was brought by the court in Miller v. State, 988 So.2d 138, 139 (Fla. 1st DCA 2008), which established that fundamental error go parallel with manifest injustice when a Defendant is convicted of an offense for which the Defendant could not have been convicted as a matter of law.
The apparent intent of the State in this litigation seems to be to preclude the Respondent and others to obtain relief from an unlawful conviction. This is not a matter that can be named of "great public importance". It is just an exceptional circumstance to avoid procedural default when the liberty interest of a person has been affected by the wrong conviction. Wherefore, this Court must dismiss the State's Petition and return jurisdiction to the 3rd DCA so it can issue the mandate and the Circuit Court further proceed with instructions given as to resentence Respondent as indicated prior of the State's Petition to stay mandate. Other appellate courts had agreed that the term of fundamental error when relates to violation of a substantial fundamental right of a person is of such magnitude that a litigant should not be prohibited from rising it "where the interest of justice present a compelling demand for its application". See Gudings v. State, 693 So.2d 953, 961 (Fla. 1997); Haliburton v. State, 7 So.3d 601 (Fla. App. 4th Dist. 2009); although most of the courts typically refer to the terminology of "fundamental error" as an unpreserved error that can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox v. State, 760 So.2d 89, 95-96 (Fla. 2000). The Fourth District Court has found, as well as has the United States Supreme Court, that a State action causing a delay in a
Defendant's filing which creates an extraordinary circumstance beyond the Defendant's control, will entitle that Defendant to file an out-of-time 3.850 Motion. (This is beyond the three exceptions listed within the Rule). See Davis v. Singletary, 716 So.2d 237 (Fla. 4th DCA 1998); Offen v. State, 662 So.2d 742 (Fla. 4th DCA 1995); and McCleskey v. Zant, 111 S.Ct. 1454 (1991). The Fifth District Court has found that if the claim is one challenging the court's jurisdiction the Defendant will be entitled to file an out-of-time 3.850 Motion. (This is beyond the three listed exceptions within the Rule) See Brown v. State, 917 So.2d 272 (Fla. 5th DCA 2005). The Florida Supreme Court has found that if the attorney who filed the Defendant's timely 3.850 Motion was the Defendant's trial attorney, the resulting conflict of interest of the attorney attacking his own performance will entitle the Defendant to file an out-of-time and successive 3.850 (This is beyond the three listed exceptions within the Rule). See Parker v. Bugger, 660 So.2d 1387 (Fla. 1995); and Breedlove v. Singletary, 595 So.2d 8 (Fla. 1992). Respondent asserts that the reason all the above circumstances have been found to entitle a Defendant to file an out-of-time or belated Rule 3.850 Motion, is that to apply the general time for filing bar, or any other bars, to filing the Motion under such circumstances would result in a fundamental miscarriage of justice, which is otherwise known as a manifest injustice. This doctrine
was very thoroughly discussed in State v. McBride, 848 So.2d 287 (Fla. 2003) which found that the general procedural bars will not be applied if their application would result in a miscarriage of justice. The only bar not discussed in McBride was the time bar, because the case came to the court from a Fla.R.Crim.P., 3.800(a) Motion; which has no time limitation. Therefore, there was no need to discuss whether manifest injustice overcomes a time limitation. But, there is a Florida precedent on manifest injustice overcoming the two-year time limitation in Fla.R.App.P., 9.141(c) (4) (B). In McKay v. State, 988 So.2d 51 (Fla. 3rd DCA 2008), Ernest McKay was permitted to file a belated (beyond the two-year time limit) "Petition Alleging Ineffective Assistance of Appellate Counsel" because - even though Fla.R.App.P., 9.141 (c) (4) (B) allows only two years to file such Petition - "consideration of his claim is necessary to AVOID A MANIFEST INJUSTICE". Respondent in the instant case asserts that McKay demonstrates that the State of the law is clear that a manifest injustice will overcome the general two-year time limitation for filing not only a habeas corpus, but also a 3.850 Motion. And finally, in Miller v. State, 988 So.2d 138 (Fla. 1st DCA 2008), the First District court found: "We determine that in those cases where the record affirmatively demonstrates the crime to which the defendant plead guilty could not have occurred, fundamental error occurs. Error is fundamental in nature where a manifest injustice would otherwise.
occur. A manifest injustice includes appellant for an offense for which he could not have been convicted." Respondent asserts that Miller {supra) conclusively demonstrates that a manifest injustice occurred in Respondent's case due to the fact that Respondent has affirmatively demonstrated, by the record, that Respondent plead guilty to a crime the record shows he could not have, and did not, commit(ted). Therefore, the Third District Court of Appeals correctly determined that the merits of Respondent's Motion for Post Conviction Relief must be addressed to avoid a miscarriage of justice. And the Third District Court's decision is not in conflict with the Second District Court's decision in Hughes v. State, 22 So. 3d 132 (Fla. 2nd DCA 2009). CONCLUSION WHEREFORE, Respondent prays this Honorable Court will deny review of the Third District Court's decision in the instant case by denying discretionary review, or whatever other relief deemed fair and just and in accordance with the law. 10
UNNOTARIZED OATH I DO HEREBY DECLARE, UNDER PENALTY OF PERJURY, that I have read the foregoing pleading and that the facts and statements set forth therein are true and correct. Respectfully Submitted: DATED: - %j - // Manuel DeJesus Derail #B05446 Liberty Correctional Institution 11064 N.W. Dempsey Barron Road Bristol, Florida 32321-2622 Respondent, pro se CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that a true and correct copy of this pleading has been furnished to the Office of the Attorney General, Rivergate Plaza 444 Brickell Avenue, Suite 950, Miami, Florida 33131, by placing same into the hands of institutional officials for mailing, via U.S. Mail, on this *3S day of yt/^y' 2011. Manuel DeJesus Deras, #B05446 Liberty Correctional Institution 11064 N.W. Dempsey Barron Road Bristol, Florida 32321-2622 Respondent, pro se 11