IN THE SUPREME COURT OF FLORIDA CASE NO. SC12- DEMARIOUS CALDWELL, Petitioner, - versus - STATE OF FLORIDA, Respondent.

IN THE SUPREME COURT OF FLORIDA CASE NO. SC12- DEMARIOUS CALDWELL, Petitioner, - versus - STATE OF FLORIDA, Respondent. ON APPEAL FROM THE FOURTH DISTRICT COURT OF APPEAL CASE NO. 4D10-3345 RESPONDENT S BRIEF ON JURISDICTION PAMELA JO BONDI Attorney General Tallahassee, Florida CELIA TERENZIO Chief, West Palm Beach Bureau SUE-ELLEN KENNY Florida Bar No. 961183 1515 North Flagler Drive, Suite 900 West Palm Beach, FL 33401 Telephone: (561) 837-5000 DCAFilings.4th@myfloridalegal.com and SueEllen.Kenny@myfloridalegal.com Counsel for Respondent State of Florida

Table Of Contents Page: Table Of Contents... i Table Of Authorities... ii Preliminary Statement... iii Statement of the Case and Facts... 1 Summary of the Argument... 2 Argument: THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL CITES AS CONTROLLING AUTHORITY A CASE THAT IS PENDING REVIEW IN THIS COURT. (Restated)... 3 Conclusion... 4 Certificate of Service... 5 Certificate of Font Compliance... 5 i

TABLE OF AUTHORITIES FLORIDA CASES Caldwell v. State, 37 Fla. L. Weekly D1060 (Fla. 4 th DCA, Apr. 25, 2012)... 1 Gandy v. State, 846 So. 2d 1141 (Fla. 2003)... 3 Hardee v. State, 534 So. 2d 706 (Fla. 1998)... 1 Jollie v. State, 405 So. 2d 418 (Fla. 1981)... 2, 3 Maestas v. State, 76 So. 3d 991 (Fla. 4 th DCA 2011)... 1, 2, 3 Maestas v. State, Case No. SC11-2476... 1, 2, 3 State v. Adkins, Case No. SC11-1878... 1, 2, 3, 4 FLORIDA STATUTES 893.13, Fla. Stat.... 3 FLORIDA CONSTITUTION Article 5, Section 3(b)(3) Fla. Const... 4 ii

Preliminary Statement Petitioner was the Defendant in the trial court and the Appellant in the Fourth District Court of Appeal, and will be referred to herein as Petitioner and Caldwell. Respondent, the State of Florida, was the Appellee in the Fourth District Court of Appeal and will be referred to herein as Respondent or the State. Reference to Petitioner s brief shall be (PB), followed by the appropriate page number. A copy of the opinion issued by the Fourth District Court of Appeal on April 25, 2012, is attached as an Appendix. iii

Statement Of The Case and Facts When determining jurisdiction, this Court is limited to the facts apparent on the face of the opinion. Hardee v. State, 534 So. 2d 706, 708 n.1 (Fla. 1998). Petitioner seeks review of the April 25, 2012 citation opinion affirming his conviction. Caldwell v. State, 37 Fla. L. Weekly D1060 (Fla. 4 th DCA, Apr. 25, 2012). The Fourth District Court of Appeal affirmed Petitioner s conviction without written opinion citing Maestas v. State, 76 So. 3d 991 (Fla. 4 th DCA 2011) which is currently pending before this Court in Case No. SC11-2476 and has been stayed pending this Court s resolution of State v. Adkins, Case No. SC11-1878. 1

Summary of the Argument The Fourth District Court of Appeal affirmed Caldwell s conviction in a citation opinion relying upon Maestas v. State, 76 So. 3d 991 (Fla. 4 th DCA 2011). This Court is currently reviewing Maestas v. State, Case No. SC11-2476, which has been stayed pending this Court s resolution of State v. Adkins, Case No. SC11-1878 wherein 893.13, Fla. Stat. was expressly declared invalid. Therefore, under Jollie v. State, 405 So.2d 418 (Fla. 1981), this Court has jurisdiction to review the instant case. However, this Court should withhold any decision on accepting jurisdiction pending the release of the opinion in State v. Adkins, Case No. SC11 1878. 2

Argument THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL CITES AS CONTROLLING AUTHORITY A CASE THAT IS PENDING REVIEW IN THIS COURT. (Restated). The Fourth District Court of Appeal relied upon Maestas in the instant opinion affirming Petitioner s conviction. The Fourth District s opinion in Maestas is now pending review by this Court in Maestas v. State, Case No. SC11-2476, which has been stayed pending the resolution of Adkins v. State, Case No. SC11 1878 on the identical issue. Consequently, the State agrees that this Court has jurisdiction to review the instant decision. See Jollie v. State, 405 So.2d 418 (Fla. 1981); Art. V, section 3(b)(3), Fla. Const.; Gandy v. State, 846 So.2d 1141, 1143-1144 (Fla. 2003). However, there is no need for this court to accept discretionary review of the case. This Court heard oral arguments in Adkins on December 6, 2011. Rather than accept jurisdiction this court should stay any further action in the present case pending the decision in Adkins which will be controlling in this case. 3

Conclusion Wherefore, based on the foregoing arguments and the authorities the State of Florida respectfully requests this Court DECLINE to accept jurisdiction, alternatively this Court should STAY any further action in the present case pending the decision in Adkins. Respectfully submitted, PAMELA JO BONDI Attorney General Tallahassee, Florida _/s/ /s/ CELIA A. TERENZIO SUE-ELLEN KENNY Chief, West Palm Beach Bureau Florida Bar No. 961183 Florida Bar No. 0656879 1515 N. Flagler Dr., Suite 900 1515 N. Flagler Dr., Suite 900 West Palm Beach, FL 33401 West Palm Beach, FL 33401 T: (561) 837-5000, F:(561) 837-5108 T: (561) 837-5000, F:(561) 837-5108 SueEllen.Kenny@myfloridalegal.com Counsel for Respondent Counsel for Respondent 4

Certificate Of Service I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by courier to: EMILY ROSS-BOOKER, ESQUIRE, Office of the Public Defender 421 Third Street, 6 th Floor, West Palm Beach, Florida 33401 and transmitted to Appeals@pd15.state.fl.us and EBooker@pd15.state.fl.us on this day of May, 2012. _/s/ SUE-ELLEN KENNY Certificate of Font Compliance I HEREBY CERTIFY that this document, in accordance with Rule 9.210 of the Florida Rules of Appellate Procedure, has been prepared with Times New Roman 14-point font. _/s/ SUE-ELLEN KENNY 5