IN THE SUPREME COURT OF THE STATE OF FLORI l3 FEB 8 p CASE NO. SC12-1315 gy (4'h DCA 4D10-4525) NYKA O' CONNOR, Petitioner, Vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION PAMELA JO BONDI Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Bureau Chief, West Palm Beach Florida Bar No. 656879 GEORGINA JIMENEZ-OROSA Assistant Attorney General Florida Bar No. 0441510 1515 North Flagler Drive 9th Floor West Palm Beach, FL 33401 Telephone: (561) 837-5000 Fax: (561) 837-5099 CrimAppWPB@myf loridalegal. com Counsel for Respondent
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT....................................3 ARGUMENT...3-4 THE SUPREME COURT OF FLORIDA LACKS JURISDICTION TO REVIEW THE ORDER OF DENIAL, WITHOUT OPINION, ISSUED BY THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, IN THE INSTANT CASE. CONCLUSION...4 CERTIFICATE OF SERVICE...5 CERTIFICATE OF TYPE SIZE AND STYLE...5
TABLE OF AUTHORITIES CASES Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002)... 3 Other Authorities Cited Article V, section 3(b) (3), (4), (5) of the Florida Constitution... 3 11
PRELIMINARY STATEMENT Petitioner was the Defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. On November 1, 2010, Petitioner filed a Petition for Writ of Certiorari with the Fourth District Court of Appeal, on a criminal conviction that became final in 2005. In this brief, the parties shall be referred to as they appear before this Honorable Court except that Respondent may also be referred to as the State. In this brief, the symbol "A" will be used to denote the appendix attached hereto. All emphasis in this brief is supplied by Respondent unless otherwise indicated. 1
STATEMENT OF THE CASE AND FACTS On November 1, 2010, Petitioner filed a Petition for Writ of Certiorari with the Florida District Court of Appeal, Fourth District, reference a conviction that became final in 2005, O'Connor v. State, 895 So. 2d 528 (Fla. 4th DCA 2005). On November 29, 2010, the District Court issued its Order dismissing the Petition. The only relevant facts to a determination of this Court's discretionary jurisdiction under Article V, Section 3(b) (3) of the Florida Constitution are those set forth in the appellate opinion sought to be reviewed. The "opinion" Petitioner seeks to have reviewed by the Court is as follows: ORDERED that this court finds that this petition is frivolous. The Petition is dismissed. Petitioner's claims are untimely, successive, and procedurally barred pos t convict ion challenge s. Petitioner was cautioned against frivolous filing in case number 4D08-3740. The claims raised in the instant petition, which petitioner also raised in an emergency petition that he filed in the trial court, are entirely devoid of merit on their face. The clerk of this court is directed to deliver a certified copy of this order to the appropriate institution for the consideration of disciplinary procedures. 944.279(1), Fla. Stat. (2009);... 2
(Appendix - Exhibit A). SUMMARY OF THE ARGUMENT The Supreme Court of Florida lacks jurisdiction to review per curiam denials of relief. on extraordinary writ petitions that were issued without opinion or explanation. ARGUMENT THE SUPREME COURT OF FLORIDA LACKS JURISDICTION TO REVIEW THE ORDER DISMISSING PETITIONER'S PETITION FOR WRIT OF CERTIORARI ISSUED BY THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, IN THE INSTANT CASE. This Honorable Court has authority pursuant to Article V, Section 3(b) (3), (4), or (5) of the Florida Constitution (1980) to review decisions rendered by one of the several district courts of appeal of this State, where the "opinion" rendered falls under one of the specified categories. This Court, however, has specifically declared that it is without jurisdiction "to review per curiam denials of relief on extraordinary writ petitions that were issued without opinion or explanation" Stallworth v. Moore,.827 So. 2d 974, 978 (Fla. 2002). In the Jurisdictional Brief before this Court Petitioner claims this. Court should review his claims because he is 3
"factually and/or actually innocent" of possessing a firearm. Therefore, not to exercise jurisdiction over his claims "would amount to a Fundamental Miscarriage of Justice." The State maintains that under the reasoning of Stallworth this Court lacks jurisdiction to review the order of dismissal issued in this case. The Fourth District dismissed the Petition as "frivolous" and in addition found the claims are "untimely, successive, and procedurally barred postconviction challenges." As such this Honorable Court should likewise dismiss the instant petition. Stallworth v. Moore, 827 So. 2d at 978. CONCLUSION WHEREFORE, based on the foregoing arguments and the authorities cited therein, Respondent respectfully requests this Court DENY Petitioner' s request for discretionary revlew over the instant cause. Respectfully submitted, PANELA JO BONDI Attorney General Tal assee, F1 rida CELIA TERENZIO Assistant Atto ey General Bureau Chief, West Palm Beach Florida Bar No. 656879 4
GEOR ÔROSA Senior Assist n Attorney General Florida Bar. 0441510 1515 North FÊ ler Drive Suite 900 West Palm Beach, FL 33401 (561) 837-5000 Fax (561) 837-5099 CrimAppWPB@myf loridalegal. com Counsel for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Respondent' s Brief on Jurisdiction" has been furnished by U. S. Mail to: NYKA O'CONNOR, DC#199579, UNION CORRECTIONAL INSTITUTION, 7819 N. W. 228th Street, RAIFORD, FL 32026, this 13th day of February, 2012. O /VL& 3 Counse CERTIFICATE OF TYPE SIZE STYLE In accordance with Florida Rule of Appellate Procedure 9.210, counsel for the State of Florida, hereby certifies that the instant brief has been prepared with 12 point Courier New type, a font that is not proportionately spaced. GEORGIN JI -O OSA Assistant Att rne General Florida Bar o. 41510 5