IN THE SUPREME COURT OF FLORIDA SCOTTIE SMART, JR. Petitioner CASE NO: v. DCA CASE N,O: 2Q12-55037 STATE OF FLORIDA Respondent.>+t PETITIONER'S JURISDICTIONAL BRIEF ON REVIEW FROM THE 2" DISTRICT COURT OF APPEAL, STATE OF FLORIDA Scottie Smart, Jr., Pro Se D/C # 093966 Apalachee Correctional Institution 35 Apalachee Drive Sneads, Florida 32460-4166
TABLEOFCONTENTS PAGE TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1-2 SUMMARY OF ARGUMENT... JURISDICTIONAL STATEMENT... 3 4 ARGUMENT THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN WINTERS V. STA TE, 522 So.2d 816 (Fla. 1988) AND THE FIRST DISTRICT COURT OF APPEAL IN MYERS V. STA TE, 499 So.2d 895 (Fla. 1" DCA 1986)... 5-8 CONCLUSION... CERTIFICATE OF SERVICE... CERTIFICATE OF COMPLIANCE... 9 10 10 1
TABLE OF CITATIONS CASE AUTHORITY PAGE Whitehead v. State, 498 So.2d 863 (Fla. 1986) 1, 6 Smart v. State, 38 Fla. L. Weekly D2187(c) (Fla. 2"4 DCA 2013) 1, 5, 8 Winters v. State, 522 So.2d 816 (Fla. 1988) 2, 3, 6, 7, 8 Shelton v. State, 739 So.2d 1235 (Fla. 4'h DCA 1999) 2 Myers v. State, 499 So.2d 895 (Fla. 18' DCA 1986) 3, 7 State v. Kersey, 524 So.2d 1011 (Fla. 1988) 8 Graham v. Florida, 130 S.Ct. 2011 (U.S. (Fla.) 2010) 8 OTHER AUTHORITY Fla. Stat. 812.13(2)(b) (1985) 1, 6 Fla.R.Crim.P. Rule 3.800(a) 1, 6 Fla.R.Crim.P. Rule 3.850 1, 6 Fla.R.App.P. Rule 9.120 2 Fla.R.App.P. Rule 9.030(a)(2)(A)(iv) 4 Florida Statute 775.084 (1985) 2, 3, 5, 6, 7, 8 Florida Statute 775.082 6 Florida Statute Chapter 88-131 Section 6 5 Florida Constitution, Article V, Section 3(b)(3) 4 Fla.R.App.P. Rule 9.210(a)(2) 10 11
STATEMENT OF THE CASE AND FACTS The Petitioner, Scottie Smart, Jr. ("Smart") was sentenced in 1985 to Life in prison as a Habitual Felony Offender ("HFO") for the first-degree felony of "Robbery with a Weapon" (not Deadly) under Fla. Stat. 812.13(2)(b) (1985). In 2012, Smart challenged the legality of the Life sentence, and the use of habitualization for this 1985 offense. The motion was filed under the provisions of both Fla.R.Crim.P. Rule 3.800(a) and Fla.R.Crim.P. Rule 3.850, and it was summarily denied by the lower court (10* Judicial Circuit, Polk County, Florida). On appeal, the Second District Court of Appeal ("2"d DCA") upheld the circuit court's ruling. The 2"d DCA reasoned that under Whitehead v. State, 498 So.2d 863 (Fla. 1986), the use of habitualization as a basis for upward departure from the sentencing guidelines, as occurred here, was improper. However, the court found that because there were other reasons used by the sentencing judge to support the departure sentence, the error was harmless (see Exhibit A, Smart v. State, 38 Fla. L. Weekly D2187(c) (Fla. 2"d DCA 2013)). On rehearing, the Petitioner brought two points up to the attention of the 2"d DCA. First, Smart pointed out that the District Court was operating under an incorrect premise regarding the Petitioner's underlying felony, as was evident from their opinion. The 2"d DCA had opined that Smart was found guilty of a First 1
Degree Felony Punishable by Life ("PBL"), when in fact Smart's underlying crime was only a First-Degree Felony subject to a statutory maximum of 30 years imprisonment (i.e. no "PBL"). Second, Smart argued that under Winters v. State, 522 So.2d 816 (Fla. 1988) (see Exhibit B) and Shelton v. State, 739 So.2d 1235 (Fla. 4* DCA 1999), the 1985 Florida Statute 775.084 could be used to extend the statutory maximum of a crime, but _only to the extent necessary to match the recommended range of the Sentencing Guidelines. In Smart's case, his recommended sentencing range was just 12-17 years, and Smart's statutory maximum sentence was 30 years for his First-Degree Felony (non-pbl). Nonetheless, the sentencing court used the 1985 habitualization statute ( 775.084) to extend Smart's guideline sentence to Life. On October 18, 2013, the 2"d DCA issued a corrected opinion in Smart's case, acknowledging that Smart only had a First-Degree Felony, but they did not make any other changes to their opinion. A timely Notice to Invoke Discretionary Review was filed with the 2nd DCA by Smart, and the present brief is being filed in the time provided under Fla.R.App.P. Rule 9.120. 2
SUMMARY OF ARGUMENT In this case, the Second District Court of Appeal ("2nd DCA) has improperly removed the requirement that the Habitual Felony Offender ("HFO") statute only be applied in furtherance of the Sentencing Guidelines for pre-1988 offenses, such as the Petitioner's. The 2"d DCA upheld the use of 1985 Florida Statute 775.084 to extend the statutory maximum (30 years) of the Petitioner's First-Degree Felony crime to Life, which it then imposed. The 2"d DCA took this action despite the fact that the Petitioner's Sentencing Range was only 12-17 years, and his statutory maximum for his underlying crime was only 30 years. This decision cannot be reconciled with either the First District Court of Appeal's decision in Myers v. State, 499 So.2d 895 (Fla. l * DCA 1986) (see Exhibit C), or this Honorable Court's prior decision in Winters v. State, 522 So.2d 816 (Fla. 1988) (see Exhibit B). In Winters, this Court, in examining the interplay between the sentencing guidelines and Florida Statute 775.084 permitted expansion of the statutory maximum sentence for an underlying crime but only to the extent necessary to achieve a sentence within the recommended Sentencing Range. There is a conflict present. The 2nd DCA's decision in Smart's instant case expressly and directly conflicts with both a previous decision of this Court and the First District Court of Appeal. 3
JURISDICTIONALSTATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of the Supreme Court or another District Court of Appeal on the same point of law under Article V, Section 3(b)(3), Florida Constitution and Fla.R.App.P. Rule 9.030(a)(2)(A)(iv). 4
ARGUMENT THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN WINTERS V. STA TE, 522 So.2d 816 (Fla. 1988) AND THE FIRST DISTRICT COURT OF APPEAL IN MYERS V. STA TE, 499 So.2d 895 (Fla. 1" DCA 1986). The Second District Court of Appeal has interpreted 1985 Florida Statute 775.084 as allowing the courts to extend the statutory maximum sentence of an underlying crime, without consideration of the Sentencing Guidelines for pre-1988 offenders.1 As explained below, the decision of the Second District Court conflicts with a decision of this Court, and with a decision of the First District Court of Appeal. Both of these decisions limit the expansion of the statutory maximum sentence for the underlying crime to only that necessary to achieve a recommended Sentencing Range. Petitioner Smart respectfully submits that this Court should grant discretionary review and resolve the conflict by quashing the decision in this instant case made by the Second District Court of Appeal. On October 18, 2013, in Smart v. State, 38 Fla. L. Weekly D2187(c) (Fla. 2"d DCA 2013), the 2nd DCA assumed that when Smart's direct appeal was 1 F.S. Chapter 88-131 Section 6, Laws of Florida amended F.S. 775.084 effective October 1, 1988. 5
pending in 1987, the Court of Appeal was aware of the then-recent decision in Whitehead v. State, 498 So.2d 863 (Fla. 1986). Whitehead had disallowed habitualization as a basis for upward departure from the Sentencing Guidelines. The Smart Court further assumed that the 2"d DCA during direct appeal had found this error harmless, because there were multiple reasons given by the lower court judge for departure (see Smart Case, Exhibit A). The 2"d District Court, on appeal from the summary denial of Smart's Rule 3.800(a)/3.850 motion, has allowed the Petitioner's Life sentence to stand on the basis that the 1985 habitual statute ( 775.084) permitted "Life." The 2nd DCA reasoned that it did not matter that Smart's Sentencing Guideline Permitted Range was only 12-17 years, or that the underlying offense (Fla. Stat. 812.13(2)(b) (1985)) was only a First Degree Felony punishable by no more than 30 years under Fla. Stat. 775.082 (see Smart Case, Exhibit A). The 2"d DCA opinion in Smart's instant case is in direct conflict with Winters v. State, 522 So.2d 816 (Fla. 1986) wherein the Supreme Court answered a certified question: "Is the Habitual Offender Statute still an effective basis on which to exceed the statutory maximum, as long as the sentence imposed does not exceed the guideline recommendation?" (see Exhibit B). 6
The Supreme Court approved the extension of the statutory maximum of the underlying felony on_ly under this narrow exception (i.e. that the increased sentence does not exceed the Recommended Guideline Sentencing Range). Likewise, the First District Court of Appeal (even before Winters) came to the same conclusion. In Myers v. State, 499 So.2d 895 (Fla. 18' DCA 1986), the 18' DCA permitted the use of Florida Statute 775.084 to extend the statutory maximum, but only to the extent that it did not exceed the sentencing guideline recommendation (see Exhibit C). This Court has correctly interpreted the interplay between the Sentencing Guidelines and the Habitual Offender Statute for the early pre-1988 offenders. As this Court explained in Winters at 817: "Such [enhanced habitual offender] sentences would be disproportionately harsh when compared to the sentences of other offenders who have committed similar crimes and have similar criminal records but were not subjected to habitual offender proceedings. Such a result would be contrary to the explicit purpose of the sentencing guidelines which is to "eliminate unwarranted variation in the sentencing process"." If the Winters Court had intended for the Habitual Offender statute to operate independent of the Sentencing Guidelines, or to trump them, it would have 7
indicated that in its opinion, but id did not.2 The language is very clear - only when in-line with the Sentencing Guideline Recommendations. To allow the recent Smart decision to stand will eviscerate the Sentencing Guidelines for the early habitual offenders, and allow a District Court to disregard binding Supreme Court authority. Although the group affected by this decision is likely small, the conflict should nonetheless be resolved because it does not address a simple matter of the basis for a departure sentence, but rather the fundamental question of how long a sentence can legally be enhanced. Smart's sentence would have been unconstitutionally harsh if his crime had been committed only 63 days earlier.3 Now, 28 years later, Smart is requesting this Court to grant review and correct the harshness of his Life sentence caused by an illegal application of 1985 Florida Statute 775.084. 2 In State v. Kersey, 524 So.2d 1011 (Fla. 1988), the Supreme Court affirmed the reasoning of Winters and held that departure under F.S. 775.084 is limited to the recommended range when it exceeds the statutory maximum (see Exhibit D). 3 Under Graham v. Florida, 130 S.Ct. 2011 (U.S. (Fla.) 2010) it is unconstitutional to sentence a juvenile to "Life" for a non-homicide offense with no chance for release. Smart's date of birth is April 17, 1967, and the offense date (June 18, 1985) was only 63 days after his 18th birthday. 8
CONCLUSION This Honorable Court has discretionary jurisdiction to review the decision below, and this Court should exercise that jurisdiction to consider the merits of the Petitioner's argument. Respectfully submitted, it i T I 3 Date Â<va% 4m4~7h 042 Scottie Smart, Jr. D/C #093966 Apalachee Correctional Institution 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief and Appendix was placed in the hands of an institutional official on this *day of November, 2013 for mailing to: Clerk of the Court Office of the Attorney General Florida Supreme Court 3507 East Frontage Road Supreme Court Building Suite 200 500 South Duval Street Tampa, Florida 33607 Tallahassee, FL 32399-1927 Scottie Smart, Jr. D/C #093966 Apalachee Correctional Institution 35 Apalachee Drive Sneads, FL 32460-4166 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this petition complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Scottie Smart, Jr. D/C #093966 Apalachee Correctional Institution 10