IN THE SUPREME COURT OF FLORIDA KENNETH JENKINS, v. Petitioner, CASE NO. SC04-2088 STATE OF FLORIDA, Respondent. JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO. 0796409 GISELLE LYLEN RIVERA ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0508012 OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL 32399-1050 (850) 414-3300 (850) 922-6674 (FAX) COUNSEL FOR RESPONDENT
TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CITATIONS...ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 ISSUE I WHETHER THIS COURT HAS DISCRETIONARY JURISDICTION PURSUANT TO FLA.R.CRIM.P. 9.030(A)(2)(iv) AND ARTICLE V 3(b)(3) OF THE FLORIDA CONSTITUTION TO REVIEW AN OPINION OF A DISTRICT COURT ON THE GROUNDS THAT IT CONFLICTS WITH PRINCIPLES OF STATUTORY INTERPRETATION, NOT ANOTHER DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL? (Restated). 4 CONCLUSION... 9 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE...10 APPENDIX - i -
TABLE OF CITATIONS CASES PAGE(S) Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 6,7 Department of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 5 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 6,7 Jenkins v. State, 29 Fla. L. Weekly D2257 (Fla. 1st DCA October 11, 2004)...1,5,11 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 5,6 OTHER Article V, 3(b)(3), Fla. Const.... 4,5,7 Fla. R. App. P. 9.030(A)(2)(iv)... 4,5 Fla. R. App. P. 9.210...10 - ii -
PRELIMINARY STATEMENT Respondent, the State of Florida, the Appellee in the District Court of Appeal (DCA) and the prosecuting authority in the trial court, will be referenced in this brief as Respondent, the prosecution, or the State. Petitioner, Kenneth Jenkins, the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner or proper name. "PJB" will designate Petitioner's Jurisdictional Brief. That symbol is followed by the appropriate page number. A bold typeface will be used to add emphasis. Italics appeared in original quotations, unless otherwise indicated. STATEMENT OF THE CASE AND FACTS The pertinent history and facts are set out in the decision of the lower tribunal, attached in slip opinion form [hereinafter referenced as "slip op."]. It also can be found at 29 Fla. L. Weekly D2257 (Fla. 1 st DCA October 11, 2004) as follows: Kenneth Jenkins appeals three of four sentences imposed in consequence of convictions arising out of two separate criminal episodes. He contends that the trial court erred by imposing ten-year sentences for convictions on Counts I, battery of a law enforcement officer, and IV, resisting an officer with violence, because the sentences exceed the statutory maximum for third-degree felonies; by imposing a consecutive sentence for the conviction on Count III, fleeing or attempting to elude arrest, because, he alleges, all four convictions arose from what was really a single criminal episode; and, finally, by imposing a sentence under the Prison Releasee Reoffender Punishment Act - 1 -
for the conviction on Count I, because battery of a law enforcement officer is not, he contends, a qualifying offense. We affirm the sentence for Count III, but reverse the sentences for Counts I and IV. - 2 -
SUMMARY OF ARGUMENT Petitioner has improperly sought jurisdiction based upon conflict jurisdiction which requires that the decision of the District Court below be in direct and express conflict with a decision of this Court or another Court of Appeal. Petitioner does not cite to one case to establish conflict jurisdiction, instead seeking, in essence, to create a new basis for jurisdiction not contemplated by the Florida Constitution or the Florida Rules of Appellate Procedure. - 3 -
ARGUMENT ISSUE I WHETHER THIS COURT HAS DISCRETIONARY JURISDICTION PURSUANT TO FLA.R.CRIM.P. 9.030(A)(2)(iv) AND ARTICLE V 3(b)(3) OF THE FLORIDA CONSTITUTION TO REVIEW AN OPINION OF A DISTRICT COURT ON THE GROUNDS THAT IT CONFLICTS WITH PRINCIPLES OF STATUTORY INTERPRETATION, NOT ANOTHER DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL? Restated) Petitioner contends that this Court has jurisdiction to review a decision of the First District Court of Appeal on the grounds that the decision conflicts with principles of statutory interpretation, not another decision of this Court or another District Court of Appeal. The Respondent disagrees. Jurisdictional Criteria Florida Rule of Appellate Procedure 9.030(a)(2), defining the jurisdiction of this Court provides in pertinent part: Rule 9.030 Jurisdiction of Courts (a) Jurisdiction of Supreme Court.... (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of the district courts of appeal that (i) expressly declare valid a state statute; (ii) expressly construe a provision of the state or federal constitution; (iii) expressly affect a class of constitutional or state officers; (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (v) pass upon a question certified to be of great public importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal. - 4 -
Id. (internal footnotes omitted) Similarly, Article V, 3 of the Florida Constitution provides in pertinent part that the Florida Supreme Court (3) May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. (4) May review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance, or that is certified by it to be in direct conflict with a decision of another district court of appeal. (5) May review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the supreme court. In the instant case, Petitioner asserts that this Court has jurisdiction to review the decision of the First District Court of Appeal in Jenkins v. State, 29 Fla. L. Weekly D2257 (Fla. 1 st DCA October 11, 2004) based upon the existence of conflict pursuant to Article V, 3(b)(3) and Fla.R.App.P. 9.030(a)(2)(A)(iv). (See Jurisdictional Statement, PBJ, page 4). Case law interpreting these provisions has recognized that the conflict between decisions "must be express and direct" and "must appear within the four corners of the majority decision." Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected - 5 -
"inherent" or "implied" conflict; dismissed petition). Neither the record, nor a concurring opinion, nor a dissenting opinion can be used to establish jurisdiction. Reaves, supra; Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980)("regardless of whether they are accompanied by a dissenting or concurring opinion"). In addition, it is the "conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari." Jenkins, 385 So. 2d at 1359. In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958), this Court explained: It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute. Accordingly, the determination of conflict jurisdiction distills to whether the District Court's decision in this case reached a result opposite to that in another case decided this Court or by another District Court of Appeal where the facts are identical and the same law is applied. Petitioner argues in his jurisdictional brief that the District Court of Appeal decision at issue is in conflict with - 6 -
...venerable rules of statutory interpretation that are applicable. (PBJ, page 2). In so doing, however, Petitioner fails to cite to even one case with comparable facts to which the same law was applied to yield a contrary result, instead, attempting to argue that principles of statutory interpretation are in conflict. His argument therefore seeks to assert conflict jurisdiction exists by virtue of the reasoning applied, not the ultimate decision reached in violation of the holding of this Court in Jenkins v. State, supra. In essence, Petitioner is attempting to create a new jurisdictional basis upon which to obtain review by this Court. One not contemplated by either the Legislature or this Court. As previously shown, the jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution and as a result, the Court has repeatedly noted the limitations on its review and has refused to become a court of select errors. As explained in Ansin v. Thurston, supra, at 811, Article V of the Florida Constitution uses the words "direct conflict" to manifest a "concern with decisions as precedents as opposed to adjudications of the rights of particular litigants." As held in Nielsen v. City of Sarasota, 117 So.2d 731, 734-35 (Fla. 1960), When our jurisdiction is invoked pursuant to this provision of the Constitution we are not permitted the judicial luxury of upsetting a decision of a Court of Appeal merely because we might personally disagree with the so-called 'justice of the case' as announced - 7 -
by the Court below. In order to assert our power to set aside the decision of a Court of Appeal on the conflict theory we must find in that decision a real, live and vital conflict within the limits above announced. Given Petitioner s inability to point to one factually identical case to which the same law was applied to yield a contrary result, the Respondent submits that no real, live and vital conflict within the jurisdictional limits set forth above exists. As such, Respondent moves this Honorable Court to dismiss the instant appeal for lack of discretionary jurisdiction. - 8 -
CONCLUSION Based on the foregoing reason, the State respectfully requests this Honorable Court decline to exercise jurisdiction. SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to John R. Alfino, Esquire, Assistant Public Defender, Leon County Courthouse, Suite 401, 301 South Monroe Street, Tallahassee, Florida 32301, by MAIL on November, 2004. Respectfully submitted and served, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO. 0796409 GISELLE LYLEN RIVERA ASSISTANT ATTORNEY GENERAL Florida Bar No. 0508012 Attorneys for State of Florida Office of the Attorney General Pl-01, the Capitol Tallahassee, Fl 32399-1050 (850) 414-3300 Ext. 4579 (850) 487-0997 (Fax) [AGO# L04-1-29696] - 9 -
CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P. 9.210. Giselle Lylen Rivera Attorney for State of Florida [T:\BRIEFS\Briefs pdf'd\04-2088_jurisans.wpd --- 12/2/04,9:36 am] - 10 -
IN THE SUPREME COURT OF FLORIDA KENNETH JENKINS, v. Petitioner, CASE NO. SC04-2088 STATE OF FLORIDA, Respondent. INDEX TO APPENDIX A. Jenkins v. State, 29 Fla. L. Weekly D2257 (Fla. 1 st DCA October 11, 2004)
Appendix A