IN THE SUPREME COURT OF FLORIDA THOMAS ABRAMS, ) ) Petitioner/Appellee, ) ) S.Ct. Case No. v. ) DCA CASE Nos. 4D06-2326 ) 4D06-2327,4D06-2328 STATE OF FLORIDA, ) [consolidated] ) Respondent/Appellant. ) ) PETITIONER=S BRIEF ON DISCRETIONARY JURISDICTION CAREY HAUGHWOUT Public Defender ANTHONY CALVELLO Assistant Public Defender Fifteenth Judicial Circuit of Florida Florida Bar No. 266345 Attorney for Thomas Abrams The Criminal Justice Building 421 Third Street, 6th Floor West Palm Beach, Florida 33401 (561)355-7600; 624-6560
TABLE OF CONTENTS CONTENTS PAGE TABLE OF CONTENTS...i AUTHORITIES CITED... ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF ARGUMENT...5 ARGUMENT THIS DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY DECLARED VALID A STATE STATUTE, THE FLORIDA DANGEROUS SEXUAL OFFENDER ACT...6 CONCLUSION...8 CERTIFICATE OF SERVICE...9 CERTIFICATE OF FONT TYPE SIZE AND STYLE...9 i
AUTHORITIES CITED CASES PAGE(S) Libertarian Party of Florida v. Smith, 687 So.2d 1292 (Fla. 1996)...5 Specht v.patterson, 386 U.S. 605, 610-611 (1967)...7 McMillan v. Pennsylvania, 477 U.S. 79 (1986)...7 Harris v. U.S., 536 U.S. 545 (2002)...7 UNITED STATES CONSTITUTION Fourteenth Amendment...5-7 FLORIDA CONSTITUTION Article V, Section 3(b)(3)(1980)...5 FLORIDA STATUTES Section 794.0115(2004)..4, 5 FLORIDA RULES OF APPELLATE PROCEDURE Rule 9.030(a)(2)(A)(i)... 4, 5 ii
PRELIMINARY STATEMENT Petitioner, Mr. Thomas Abrams, was the Defendant in the Seventeenth Judicial Circuit (Broward County) and Appellant in the Fourth District Court of Appeal. The Respondent, State of Florida, was the prosecution in the Criminal Division of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, and the Appellee in the Fourth District Court of Appeal. In the brief, the parties will be referred to as they appear before this Honorable Court or the District Court of Appeal. STATEMENT OF THE CASE AND FACTS 1
In 1994 Abrams was charged with two counts with sexual battery and indecent assault in violation of section 794.011(2), Florida Statutes (1993), and section 800.04(1), (4), Florida Statutes (1993), respectively. He pled guilty in both cases, served a nine year prison sentence, and was released on fifteen years' probation. He was arrested in 2005 and charged in count one with violating section 800.04(4)(a), Florida Statutes (2004), by committing lewd or lascivious battery and in count two with violating section 800.04(6)(a), (b), Florida Statutes (2004), by committing lewd or lascivious conduct.@ Abrams v. State, 33 Fla. L.Weekly D 228 (Fla. 4th DCA January 16, 2008); See Appendix. AAbrams appeals two life sentences imposed upon him pursuant to the Dangerous Sexual Felony Offender Act (ADSFO Act@), section 794.0115, Florida Statutes (2004). He argues that the act is facially unconstitutional as it violates procedural due process. We hold that the act does not violate procedural due process, and the state provided proof of qualifying convictions for its application to Abrams on his conviction for lewd and lascivious battery. However, the state concedes that his conviction for lewd and lascivious conduct is not a qualifying offense under the statue. Therefore, as to this count we reverse his life sentence.@ 1 Abrams v. State, supra. Petitioner filed a timely Notice of Discretionary Review in the Fourth District 1 Since the Fourth District vacated Mr. Abrams Life sentence for Count II,. lewd or 2
Court of Appeal to this Honorable Court on January 31, 2008. luscious conduct, that sentence is not before the Honorable Court. 3
SUMMARY OF ARGUMENT This Honorable Court has authority pursuant to Article V, Section 3(b)(3) of the Florida Constitution (1980) to review a decision of a district court of appeal that expressly declares valid a state statute. Fla. R. App. P. 9.030(a)(2)(A)(i). This decision of the Fourth District Court of Appeal expressly declared valid a Florida state statute, the Florida Dangerous Sexual Offender Act. Abrams v. State, 33 Fla. L. Weekly D 228 (Fla. 4th DCA January 16, 2008). AAbrams appeals two life sentences imposed upon him pursuant to the Dangerous Sexual Felony Offender Act (ADSFO Act@), section 794.0115, Florida Statutes (2004). He argues that the act is facially unconstitutional as it violates procedural due process. We hold that the act does not violate procedural due process, and the state provided proof of qualifying convictions for its application to Abrams on his conviction for lewd and lascivious battery.@ Abrams v. State, supra. [emphasis supplied]. This Honorable Court should grant discretionary review of this cause an important procedural due process constitutional issue because it will affect hundreds of Florida inmates that are and will in the future be illegally sentenced under the flawed unconstitutional Dangerous Sexual Felony Offender Act. See Specht v. Patterson, 386 U.S. 605 (1967); McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419 (1986). ARGUMENT 4
THIS DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY DECLARED VALID A STATE STATUTE, THE FLORIDA DANGEROUS SEXUAL OFFENDER ACT. This Honorable Court has authority pursuant to Article V, Section 3(b)(3) of the Florida Constitution (1980) to review a decision of a district court of appeal that expressly declares valid a state statute. Fla. R. App. P. 9.030(a)(2)(A)(i). See Libertarian Party of Florida v. Smith, 687 So.2d 1292 (Fla. 1996). The Fourth District rejected Petitioner=s Fourteenth Amendment procedural due process challenge to the Florida Dangerous Sexual Offender Act (ADSOA@) statute and the LIFE sentence imposed thereto for lewd battery upon a child under age 16,a second degree felony with a fifteen (15) year maximum prison sentence. AAbrams appeals two life sentences imposed upon him pursuant to the Dangerous Sexual Felony Offender Act (ADSFO Act@), section 794.0115, Florida Statutes (2004). He argues that the act is facially unconstitutional as it violates procedural due process. We hold that the act does not violate procedural due process, and the state provided proof of qualifying convictions for its application to Abrams on his conviction for lewd and lascivious battery.@ Id. [emphasis supplied]. The Fourth District expressly rejected Petitioner=s Fourteenth Amendment procedural due process challenge to the DSFO Act. Thus, this Honorable Court has 5
jurisdiction over the instant cause and should most respectfully grant Petitioner=s request for discretionary review of this cause. IMPORTANCE OF CASE This Honorable Court should grant discretionary review because the unconstitutional act will affects hundreds of Florida inmates statewide in the future sentenced pursuant to the flawed unconstitutional DSFO Act. The vices of the DSFO Act are numerous. The Act on its face is unconstitutional because it provides for (1) no statutory notice, (2) no separate hearing, (3) no standards of proof, (4) no evidence or certified felony convictions to support the required findings to be made by the trial court. The DSFO merely indicates that the sentencing judge must impose the mandatory 25 years to Life prison sentence as mandatory prison sentence (A[A] person subject to sentencing under this section must be sentenced to the mandatory term of imprisonment provided under this section.@) The DFSO Act on its face with its lack of any statutory prior notice to the defendant and separate hearing is in violation of the Due Process Clause of the Fourteenth Amendment. See Specht v.patterson, 386 U.S. 605, 610-611, 87 S.Ct. 1209 (1967). The DSFO unlike the Habitual Felony Offender statute lacks a statutory notice provision. 6
DSFO is a mandatory prison sentence as the Fourth District acknowledged in its decision. The facts supporting qualification for a mandatory sentence must be decided by at least a preponderance of the evidence. McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419 (1986); See also Harris v. U.S., 536 U.S. 545, 568 (2002). The Fourth District conceded there is no statutory standard of proof under the DSFO Act. AAlthough the DSFO Act does not provide a standard of proof, we see no impediment to its constitutionality for this omission, which may be supplied by case law.@ Abrams. The impediment is the Due Process Clause of the Fourteenth Amendment. Specht;McMillan. Thus, for all these reasons, this Honorable Court should accept discretionary review of this cause and decide the constitutionality of the DSFO Act. CONCLUSION Petitioner most respectfully requests this Honorable Court grant his petition for discretionary review over the instant cause. Respectfully submitted, CAREY HAUGHWOUT Public Defender ANTHONY CALVELLO 7
Assistant Public Defender Florida Bar No. 266345 Fifteenth Judicial Circuit of Florida Attorney for Thomas Abrams The Criminal Justice Building 421 Third Street, 6 th Floor West Palm Beach, Florida 33401 (561) 355-7600; 624-6560 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the Petitioner s Brief on Discretionary Jurisdiction has been furnished to Don M. Rogers, Assistant Attorney General, Ninth Floor, 1550 North Flagler Drive, West Palm Beach, Florida, 33401-2299 by courier this day of February, 2008. Attorney for Thomas Abrams CERTIFICATE OF FONT TYPE SIZE AND STYLE In accordance with the Florida Supreme Court Administrative Order, and rules of court, appellate counsel for Petitioner, Mr. Thomas Abrams, hereby certifies that the instant brief has been prepared with 14 point Times New Roman, a font not spaced proportionately. Attorney for Thomas Abrams 9