IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-147 Lower Case No.: 4D09-805 STATE OF FLORIDA, Petitioner, v. NATHANIEL COLBERT, III, Respondent. ************************************************************** PETITIONER S BRIEF ON JURISDICTION ************************************************************** PAMELA JO BONDI ATTORNEY GENERAL Tallahassee, Florida CELIA TERENZIO Senior Assistant Attorney General Bureau Chief Florida Bar No. 0656879 MARK J. HAMEL Assistant Attorney General Florida Bar No. 842621 1515 North Flagler Drive Ninth Floor West Palm Beach, FL 33401 (561) 837-5000 Counsel for Petitioner
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 JURISDICTIONAL STATEMENT 1 STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 5 ARGUMENT 6 THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH F.B. V. STATE, 852 SO. 2D 226 (FLA. 2003); JOHNSON V. STATE, 786 SO. 2D 1162 (FLA. 2001); AND DREW V. STATE, 773 SO. 2D 46 (FLA. 2000). CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF TYPEFACE COMPLIANCE 11 i
TABLE OF AUTHORITIES STATE CASES Acensio v. State, 497 So. 2d 640 (Fla. 1986)...8 Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005)...8 Colbert v. State, No. 4D09-805 (Fla. 4th DCA Dec. 1, 2010)...1, 2, 4, 5, 6, 9 Drew v. State, 773 So. 2d 46 (Fla. 2000)...5, 7, 8 F.B. v. State, 852 So. 2d 226 (Fla. 2003)...5, 9 Jaimes v. State, 35 Fla. L. Weekly S710 (Fla. Dec. 9, 2010)...8 Johnson v. State, 786 So. 2d 1162 (Fla. 2001)...2, 5, 6, 7, 8 Johnson v. State, 737 So. 2d 555 (Fla. 1st DCA 1999)...7 Knowles v. State, 848 So. 2d 1055 (Fla. 2003)...8 Robertson v. State, 829 So. 2d 901 (Fla. 2002)...8 CONSTITUTIONS AND COURT RULES Art. V, 3, Fla. Const...9 Fla. R. App. P. 9.030...1 OTHER AUTHORITY Fla. Std. Jury Instr. (Crim.) 13.1...8 ii
PRELIMINARY STATEMENT Respondent was the defendant/appellant and Petitioner was the prosecution/appellee in the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida and the Fourth District Court of Appeal. JURISDICTIONAL STATEMENT This Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of this Court on the same question of law. Fla. R. App. P. 9.030(a)(2)(A)(iv). STATEMENT OF THE CASE AND FACTS Respondent was convicted of robbery with a deadly weapon, armed burglary, leaving the scene of an accident with damages, attempted carjacking with a deadly weapon, carjacking with a deadly weapon, kidnapping with intent to commit or facilitate robbery and/or burglary, and kidnapping of a child thirteen years of age or younger. Colbert v. State, No. 4D09-805, slip op. at 1 (Fla. 4th DCA Dec. 1, 2010). The Fourth District Court of Appeal described the facts as follows: This case arises from a series of criminal acts beginning with a robbery at a retail store. Defendant walked into the store, during business hours, with a shirt covering his face and holding a hammer. Defendant walked to the front panel of a jewelry counter, smashed the side glass panel facing 1
Id. at 1-2. him, grabbed some jewelry and exited the store. The jewelry counter, as it appeared in the surveillance video, was configured in a square with an opening to permit employees behind the counter. The counter had four sides. The front and top sides were glass, while the back and bottom sides were made of a solid material, most probably wood. The customer could see the jewelry from the front and top. The back side of the counter had locked doors and was on the side where only employees were permitted. The public was not permitted behind the counter and did not have access to the interior of the case. The exterior area surrounding the counter was open to the public. Upon fleeing from the store, Defendant entered a truck located in the parking lot and began driving in reverse. The truck collided with a parked car. No one was in the parked car at the time of the collision. Defendant abandoned the truck, walked to a fast-food restaurant, and forced his way into a vehicle, which was in the restaurant s drive-thru line. The vehicle was occupied by a woman and her two children. After a brief altercation with the driver, Defendant drove the vehicle away with the woman and her children in the back seat of the vehicle. Defendant drove the vehicle and its occupants for approximately 30 to 45 minutes before abandoning the vehicle and its occupants in Belle Glade. The Fourth District Court of Appeal found this Court s decision in Johnson v. State, 786 So. 2d 1162 (Fla. 2001) to be inapplicable: The Florida Supreme Court most recently examined the open to the public defense in 2
Johnson v. State, 786 So. 2d 1162 (Fla. 2001). In that case, Steve Johnson and his co-defendant entered a convenience store with the intent to rob the store. Id. at 1162 (citing Johnson v. State, 737 So. 2d 555, 556 (Fla. 1st DCA 1999)). Johnson followed one of the store owners behind the check-out counter where the cash register was located. Id. (citing Johnson, 737 So. 2d at 556). A struggle ensued between the perpetrators and the store owners resulting in the codefendant and one of the owners being shot. Id. at 1162 63 (citing Johnson, 737 So. 2d at 556). On appeal, Johnson argued that his conviction for causing bodily injury during the commission of a felony could not stand because the State failed to establish an essential element of the crime, i.e., burglary. Id. at 1163. Johnson asserted that, because the convenience store was open to the public when he entered, he did not commit burglary, as defined under section 810.02(1)(b)1., by walking behind the counter where the cash register was located, even after being told by the store owner that he was not permitted to do so. Id. Johnson reasoned that, since the structure which he entered was open to the public, an open space within the public area cannot be parsed out in order to meet the definition of burglary. See id. Ultimately, the Florida Supreme Court concluded that, while the store was open to the public, whether the area behind the counter was open to the public was a question for the jury. Id. at 1164. In the present case, Defendant established that the store was open to the public. In direct contrast to the defendant in Johnson, who walked behind the check-out counter, Defendant did not walk into an area of the store that was not open to the public. Defendant stood in the same place that customers stand to view the contents of the 3
jewelry case. He then broke the glass panel facing him, reached in, and grabbed several pieces of jewelry. The State s argument that Defendant s actions transformed into a burglary when he accessed the interior of the jewelry case, while standing in an area clearly open to the public, simply takes the burglary statute too far. Moreover, the State s reliance on Johnson is misplaced. We read Johnson to apply only where there is a factual dispute as to whether the area in question is open to the public. There is no disputed fact that the area where Defendant was standing when he broke the side glass panel was open to the public. Moreover, we find no support in the State s argument that Defendant s subsequent act of placing his hand inside the jewelry counter, while standing in an area open to the public, constitutes [e]ntering a dwelling, a structure, or a conveyance as required by the burglary statute. Cf. Collett v. State, 676 So. 2d 1046, 1047 (Fla. 1st DCA 1996) (reversing burglary conviction for theft of coins from a vending machine located in a motel alcove where alcove itself was open to the public). Accordingly, under the undisputed facts of this case, Defendant cannot be convicted of burglary. See Miller, 733 So. 2d at 957. Colbert, slip op. at 2-3. The Fourth District Court of Appeal also discussed the law applicable to an unpreserved challenge to the sufficiency of the evidence: Turning to Defendant's conviction for leaving the scene of an accident, Defendant was charged with violating section 316.061(1), Florida Statutes (2006). Defendant argues that his conviction cannot 4
be sustained because the vehicle he struck was not being driven or attended by any person. This issue was not preserved for review. However, a conviction for a crime for which the evidence is insufficient constitutes fundamental error. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003). Colbert, slip op. at 3-4. SUMMARY OF THE ARGUMENT The Fourth District Court of Appeal incorrectly concluded that this Court s holding in Johnson v. State, 786 So. 2d 1162 (Fla. 2001) applies only when there is a factual dispute as to whether the area in question is open to the public. According to the Johnson decision and this Court s decision in Drew v. State, 773 So. 2d 46 (Fla. 2000), a burglary is committed when a person enters an area of the premises that is not open to the public, even if that entry only involves reaching into the prohibited area. Thus, the instant decision conflicts with Johnson and Drew. The instant decision also conflicts with a third case from this Court because the Fourth District Court of Appeal failed to apply the proper standard, announced in F.B. v. State, 852 So. 2d 226 (Fla. 2003), for evaluating an unpreserved challenge to the sufficiency of the evidence. 5
ARGUMENT THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH F.B. V. STATE, 852 SO. 2D 226 (FLA. 2003); JOHNSON V. STATE, 786 SO. 2D 1162 (FLA. 2001); AND DREW V. STATE, 773 SO. 2D 46 (FLA. 2000). The Fourth District Court of Appeal found this Court s decision in Johnson v. State, 852 So. 2d 226 (Fla. 2003) to be inapplicable: We read Johnson to apply only where there is a factual dispute as to whether the area in question is open to the public. Colbert, slip op. at 3. The Fourth District Court of Appeal apparently relied upon the language in Johnson stating: We conclude that the question of whether the area behind the counter was open to the public is a question of fact for the jury to decide. Johnson, 852 So. 2d at 1164. This narrow reading of Johnson is untenable. In Johnson, this Court examined whether a burglary could be committed by entering an area of a store that is not open to the public. Johnson, 852 So. 2d at 1163. In no way did this Court s analysis in Johnson depend upon whether the defendant contested the fact that the area was open to the public. It was only after determining that such an entry could constitute a burglary that this Court acknowledged the role of the jury in such cases by stating: the question of whether the area behind 6
the counter was open to the public is a question of fact for the jury to decide. This did not indicate that the holding only applies in cases where there is a factual dispute. In fact, in Johnson there was no factual dispute as to whether the area in question was open to the public. The facts in this Court s Johnson opinion are quoted from the lower court s opinion and there is no indication in either opinion that there was any dispute as to whether the area in question was open to the public. See Johnson, 786 So. 2d at 1161-64; Johnson v. State, 737 So. 2d 555, 555-57 (Fla. 1st DCA 1999). The briefs for the case are available online at the Florida State University College of Law Library website at http://www.law.fsu.edu/library/flsupct/sc96234/sc96234.html. Petitioner s brief on the merits concedes that the area behind the counter was not open to the public: Admittedly, like virtually every retail store, the cash register counter area was not an area intended for access by the public (Petitioner s Brief at 12). Thus, Johnson, like the instant case, involved undisputed facts as to whether the area in question was open to the public. In Johnson, this Court held that a person may be guilty of burglary for entering an area of the premises that is not open to the public. Johnson, 786 So. 2d at 1164. In Drew v. State, 7
773 So. 2d 46, 52 (Fla. 2000), this Court recognized that the act of reaching into an unauthorized area can constitute a burglary. See also Fla. Std. Jury Instr. (Crim.) 13.1 ( The entry necessary need not be the whole body of the defendant. It is sufficient if the defendant, with the intent to commit a crime, extends any part of [his] [her] body into the [structure] [conveyance] ). Since the Fourth District Court of Appeal determined that a burglary could not have occurred when Respondent broke into the jewelry case while standing in an area open to the public, the decision conflicts with both Johnson v. State, 852 So. 2d 226 (Fla. 2003) and Drew v. State, 773 So. 2d 46 (Fla. 2000). See Jaimes v. State, 35 Fla. L. Weekly S710 (Fla. Dec. 9, 2010) (accepting jurisdiction based on conflict created by misapplication of decisional law); Aguilera v. Inservices, Inc., 905 So. 2d 84, 86 (Fla. 2005) (same); Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003) (same); Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002) (stating that misapplication of decisional law creates conflict jurisdiction); Acensio v. State, 497 So. 2d 640, 641 (Fla. 1986) (accepting jurisdiction based on conflict created by misapplication of decisional law). Furthermore, a separate basis for jurisdiction exists because the Fourth District Court of Appeal misstated and 8
misapplied the standard announced in F.B. v. State, 852 So. 2d 226 (Fla. 2003) for considering a nonpreserved claim challenging the sufficiency of the evidence. Citing F.B., the Fourth District Court of Appeal stated that a conviction for a crime for which the evidence is insufficient constitutes fundamental error. Colbert, slip op. at 3-4. However, this Court in F.B. described a higher standard for such an error to amount to fundamental error: the evidence must be insufficient to show that a crime was committed at all and the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error. F.B., 852 So. 2d at 227, 230. The incorrect standard articulated in the instant decision is the same standard for granting a judgment of acquittal, which would negate the requirement, articulated in F.B., that the issue be preserved at trial. When the decision of a district court conflicts with a decision of this Court or of another district court of appeal, this Court s jurisdiction is discretionary. Art. V, 3(b)(3), Fla. Const. This Court should exercise its discretion to hear this case because it represents a significant departure from decisions of this Court. The instant decision would find a burglary for going over or around a display case, but not for breaking through a display case. Such a construction of the 9
burglary statute is not consistent with the intent of the Legislature or opinions of this Court interpreting the burglary statute. Furthermore, the decision used an improper standard for evaluating a nonpreserved claim challenging the sufficiency of the evidence. This improper standard would circumvent the requirement to raise the claim at trial. CONCLUSION Based on the foregoing argument, Petitioner requests that this Honorable Court accept jurisdiction in this case. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL Tallahassee, Florida CELIA TERENZIO Senior Assistant Attorney General Bureau Chief Florida Bar No. 0656879 MARK J. HAMEL Assistant Attorney General Florida Bar No. 842621 1515 North Flagler Drive Ninth Floor West Palm Beach, FL 33401 (561) 837-5000 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing was sent by courier to Tatjana Ostapoff, Assistant Public Defender, Counsel for Respondent, at 421 3rd Street, 6th Floor, West Palm Beach, FL 33401 on January 28, 2011. MARK J. HAMEL Counsel for Petitioner CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that this brief has been prepared in Courier New font, 12 point, and double spaced. MARK J. HAMEL Counsel for Petitioner 11
APPENDIX Colbert v. State, 4D09-805 (Fla. 4th DCA Dec. 1, 2010). 12