IN THE SUPREME COURT OF FLORIDA VERNON GOINS, v. Petitioner, Case No. SC06-356 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. O796409 CHRISTINE ANN GUARD ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0173959 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... 4 WHETHER THE FIRST DISTRICT S OPINION IN GOINS V. STATE, 918 SO. 2D 332 (FLA. 1 ST DCA 2005) IS IN EXPRESS AND DIRECT CONFLICT WITH THE DECISIONS IN STATE V. HILL, 208 SO. 2D 154 (FLA. 3 RD DCA 1968), GORDON V. STATE, 104 SO. 2D 524 (FLA. 1958), NEDER V. U.S., 527 U.S. 1 (1999), RINALDI V. U.S., 434 U.S. 22 (1977), OR FLA. R. CRIM. P. 3.850? (Restated)... 4 CONCLUSION... 9 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 10 i
TABLE OF CITATIONS CASES PAGE(S) Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 5 Dept. of Health and Rehabilitative Serv. v. Nat l Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986)... 5 Goins v. State, 918 So. 2d 332 (Fla. 1st DCA 2005)... 1, 4, 6 Gordon v. State, 104 So. 2d 524 (Fla. 1958)...3, 4, 6, 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 5 Neder v. U.S., 527 U.S. 1 (1999)...3, 4, 6, 7 Ortiz v. State, 895 So. 2d 1100 (Fla. 3d DCA 2004)... 2, 4 Petite v. U.S., 361 U.S. 529 (1960)... 7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 5 Rinaldi v. U.S., 434 U.S. 22 (1977)...3, 4, 6, 7 State v. Hill, 208 So. 2d 154 (Fla. 3rd DCA 1968)... 3, 4, 6 Other Article V, 3(b)(3), Fla. Const... 4 Fla. R. App. P. 9.030... 4, 10 Fla. R. Crim. P. 3.850... 3, 7, 8 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, Vernon Goins, 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, which can also be found at Goins v. State, 918 So. 2d 332 (Fla. 1 st DCA 2005), and states in its entirety: Vernon Goins petitions for a writ of habeas corpus and argues that his criminal conviction was obtained by the state's knowing use of perjured testimony and concealment of evidence favorable to the defense. He further contends that he only recently learned of these circumstances and that he could not have discovered the facts earlier. A collateral attack on a criminal conviction based on newly discovered evidence must be made by a motion for postconviction relief filed in the 1
trial court. Ortiz v. State, 895 So. 2d 1100 (Fla. 3d DCA 2004). Accordingly, the instant petition is denied without prejudice to Goins' right to pursue that remedy. 2
SUMMARY OF ARGUMENT Petitioner has improperly relied upon the record in the trial court. Petitioner cites four cases, State v. Hill, 208 So. 2d 154 (Fla. 3 rd DCA 1968), Gordon v. State, 104 So. 2d 524 (Fla. 1958), Neder v. U.S., 527 U.S. 1 (1999), and Rinaldi v. U.S., 434 U.S. 22 (1977), and contends that DCA s decision expressly and directly with those cases. (PJB at 3). The appropriate focus upon the operative facts, as contained within the "four corners" of the DCA's decision, reveals no express and direct conflict with this Court or another DCA. Therefore, there is no expressed and direct conflict, and this Court must dismiss this case for lack of jurisdiction. Finally, Petitioner s contention that the decision of the DCA violates his constitutional rights because Florida Rule of Criminal Procedure 3.850 bars successive review based upon issues litigated on the merits is without merit. 3
ARGUMENT ISSUE I WHETHER THE FIRST DISTRICT S OPINION IN GOINS V. STATE, 918 SO. 2D 332 (FLA. 1 ST DCA 2005) IS IN EXPRESS AND DIRECT CONFLICT WITH THE DECISIONS IN STATE V. HILL, 208 SO. 2D 154 (FLA. 3 RD DCA 1968), GORDON V. STATE, 104 SO. 2D 524 (FLA. 1958), NEDER V. U.S., 527 U.S. 1 (1999), RINALDI V. U.S., 434 U.S. 22 (1977), OR FLA. R. CRIM. P. 3.850? (Restated) Petitioner contends that this Court has jurisdiction pursuant to Fla. R. App. P. 9.030(a)(2)(A)(iv), which parallels Article V, 3(b)(3), Fla. Const. The constitution provides: The supreme court... [m]ay review any decision of a district court of appeal... 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. The First District Court of Appeal in Goins v. State, 918 So. 2d 332 (Fla. 1 st DCA 2005), held that: Vernon Goins petitions for a writ of habeas corpus and argues that his criminal conviction was obtained by the state's knowing use of perjured testimony and concealment of evidence favorable to the defense. He further contends that he only recently learned of these circumstances and that he could not have discovered the facts earlier. A collateral attack on a criminal conviction based on newly discovered evidence must be made by a motion for postconviction relief filed in the trial court. Ortiz v. State, 895 So. 2d 1100 (Fla. 3d DCA 2004). Accordingly, the instant petition is denied without prejudice to Goins' right to pursue that remedy. 4
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 "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 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 there is express and direct conflict with 5
decisions in State v. Hill, 208 So. 2d 154 (Fla. 3 rd DCA 1968), Gordon v. State, 104 So. 2d 524 (Fla. 1958), Neder v. U.S., 527 U.S. 1 (1999), and Rinaldi v. U.S., 434 U.S. 22 (1977). The decision below is not in "express and direct" conflict with the cases cited by Peitioner. In the case at bar, the facts alleged in the opinion show that Petitioner claimed newly discovered evidence entitling him to relief. See Goins, 918 So. 2d at 332. The First District stated a collateral attack on a criminal conviction based on newly discovered evidence must be made by a motion for postconviction relief filed in the trial court. None of the cases cited by appellant expressly or directly conflict with the District Court s decision in Goins. In State v. Hill, 208 So. 2d 154, 154-55 (Fla. 3 rd DCA 1968), the State appealed an order quashing its information based upon the ground that it failed to allege one of the elements of the offense. The information filed in the case was based solely upon the indictment which contained no allegation as to the missing required element. See id. at 155. In Gordon v. State, 104 So. 2d 524, 529 (Fla. 1958), the appellants appealed their convictions related to charges of perjury or subornation of perjury. The issues before the court on appeal 6
related to the admissibility of evidence and testimony at trial and various procedural elements of the trial. See id. at 542. In Neder v. U.S., 527 U.S. 1, 6 (1999), Neder faced charges of mail fraud, wire fraud, bank fraud, and filing false income tax returns. On appeal, the United States Supreme Court answered two questions. See id. at 7. First whether, and under what circumstances, the omission of an element from the judge s charge to the jury can be harmless error. Id. Second, whether materiality is an element of the federal mail fraud, wire fraud, and bank fraud statutes. Id. In Rinaldi v. U.S., 434 U.S. 22 (1977), the United States Supreme Court found that the federal district court abused its discretion by denying the federal government s motion to dismiss the indictment against Rinaldi after he was convicted at trial. The federal government moved to dismiss the indictment based upon Rinaldi s conviction in a Florida state court for the same offense based upon the federal policy announced in Petite v. U.S., 361 U.S. 529, 530 (1960). There is no express and direct conflict with any of these stated cases, and this Court must dismiss this case for lack of jurisdiction. Additionally, Petitioner argues there is conflict between the First District s holding in this case and Florida Rule of Criminal Procedure 3.850 because he has previously 7
litigated the issue of whether or not his conviction was obtained by the use of perjured testimony or concealed evidence in a previous motion for postconviction relief and a second motion would be successive. There is no conflict between Florid Rule of Criminal Procedure 3.850 and the decision by the First District. The First District s decision denied Petitioner s habeas petition without prejudice to file a proper motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850. The First District s decision does not require the trial court to rule on the merits of the motion or prohibit the trial court from denying the motion as successive if the Petitioner has already litigated this issue on the merits. 8
CONCLUSION Based on the foregoing reasons, 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 Vernon Goins, DC#A091413, Baker Correctional Institution, P.O. Box 500, Sanderson, Florida 32087, by MAIL on day of April, 2005. Respectfully submitted and served, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT R. WHEELER Tallahassee Bureau Chief, Criminal Appeals Florida Bar No. 0796409 CHRISTINE ANN GUARD Assistant Attorney General Florida Bar No. 0173959 Attorneys for State of Florida Office of the Attorney General Pl-01, the Capitol Tallahassee, Fl 32399-1050 (850) 414-3300 (850) 922-6674 (Fax) [AGO# L06-1-8354] 9
CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P. 9.210. CHRISTINE ANN GUARD Attorney for State of Florida 10
IN THE SUPREME COURT OF FLORIDA VERNON GOINS, v. Petitioner, Case No. SC06-356 STATE OF FLORIDA, Respondent. APPENDIX Goins v. State, 918 So. 2d 332 (Fla. 1 st DCA 2005). 1
LEXSEE 918 SO. 2D 332 VERNON GOINS, Petitioner, v. STATE OF FLORIDA, Respondent. CASE NO. 1D05-4904 COURT OF APPEAL OF FLORIDA, FIRST DISTRICT 918 So. 2d 332; 2005 Fla. App. LEXIS 18742; 30 Fla. L. Weekly D 2680 November 30, 2005, Opinion Filed NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION SUBSEQUENT HISTORY: Rehearing denied by Goins v. State, 2006 Fla. App. LEXIS 1693 (Fla. Dist. Ct. App. 1st Dist., Jan. 17, 2006) Released for Publication February 2, 2006. PRIOR HISTORY: Petition for Writ of Habeas Corpus -- Original Jurisdiction. COUNSEL: Vernon Goins, Pro se, petitioner. Charlie Crist, Attorney General, Tallahassee, for respondent. JUDGES: DAVIS, BROWNING and LEWIS, JJ., concur. OPINION: PER [*2] CURIAM. Vernon Goins petitions for a writ of habeas corpus and argues that his criminal conviction was obtained by the state's knowing use of perjured testimony and concealment of evidence favorable to the defense. He further contends that he only recently learned of these circumstances and that he could not have discovered the facts earlier. A collateral attack on a criminal conviction based on newly discovered evidence must be made by a motion for postconviction relief filed in the trial court. Ortiz v. State, 895 So. 2d 1100 (Fla. 3d DCA 2004). Accordingly, the instant petition is denied without prejudice to Goins' right to pursue that remedy. PETITION DENIED. DAVIS, BROWNING and LEWIS, JJ., concur. 2