IN THE SUPREME COURT OF FLORIDA CASE NO. SC08-2487 MUHAMMAD RAHEEM TAQWA EL SUPREME KALIFA Petitioner v. GRADY JUDD, SHERIFF, et. al., Respondents ========================================================== ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE SECOND DISTRICT COURT OF APPEAL, SECOND DISTRICT CASE NO. 2D08-3462 ========================================================== RESPONDENTS AMENDED ANSWER BRIEF ON JURISDICTION ========================================================== DAVID S. BERGDOLL, ESQ. STAFF ATTORNEY Polk County Sheriff s Office 455 North Broadway Bartow, FL 33830 (863) 534-6208 FBN: 0209902 (863) 534-6289 (fax) dberggc@polksheriff.org
TABLE OF CONTENTS TABLE OF AUTHORITIES.....ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT..... 5 THE DECISION BELOW WAS NOT A FINAL ORDER AND HAS NOT BEEN SHOWN TO DIRECTLY CONFLICT WITH DECISIONS OF ANY OTHER DISTRICT COURT OF APPEAL OR THIS COURT ON THE SAME QUESTIONS OF LAW... 6 CONCLUSION...7 i
TABLE OF AUTHORITIES 1. Benton v. Moore 655 So.2d 1272 (Fla. 1 st DCA 1995) ii
STATEMENT OF THE CASE AND FACTS On July 31, 2008, Petitioner filed an Amended Notice of Appeal, Pro Se, appealing to the Second District Court of Appeal an Order Dismissing his Petition for Writ of Mandamus filed in Circuit Court in Bartow, Florida, on or about July 10, 2008. In that Amended Notice of Appeal Petitioner stated I did file it it s just the jail intercepted it and my case was dismissed. The undersigned then filed an Appellee s Motion to Strike Amended Notice of Appeal that included a sworn affidavit by Ms. Gloria J. Johnson, South County Jail Detention Counsellor, that part of her duties included process stamping all mail originating from the Polk County Jails and has acted as a courier between the South County Jail and other facilities, which included transporting incoming and outgoing inmate mail to its proper destination. She further swore that she had not, on any occasion, tampered with mail mailed by inmate Muhammad Kalifa or any other inmate. After no ruling on the Respondent s Motion to Strike and an initial brief, the undersigned on August 27, 2008, then filed a Brief of Appellee in the Second District Court of Appeal, and argued that the Petitioner could not ignore an Order to File an Affidavit of Indigency and then justify his inaction by mistakenly claiming the mail box rule. There Respondents showed that Petitioner had confused this case 1
with another mandamus that he also filed and in which he submitted an affidavit of indigency in that case, which did reach the Court. The undersigned also showed good reason why Petitioner has trouble mentally in keeping up with his cases. On October 3, 2008, the Office of Attorney General s Office filed a Response to Court Order of September 5, 2008, and detailed that Petitioner was complaining he filed his affidavit three times but the Sheriff s Office tampered with his mail, and the Assistant Attorney General wrote: he [Kalifa] offers no logical explanation as to how the trial court did receive his notice of appeal, and amended notice of appeal, as mailed the first time, but not the affidavit of indigence, as mailed three times. The response continued to show that Petitioner had filed 15 separate civil cases in Polk County Circuit Court successfully. Respondents then filed a Supplemental Appellee s Motion to Strike Amended Notice of Appeal, adopting the response of the Attorney General s Office above, and directing the Second District Court of Appeal s attention to R-86 and R-123 through R-126 wherein Petitioner had stated: I have had the FBI come through here investigating the tampering with U.S. Mail Complaint I filed against Captain Hogan and other officials and I have even filed complaints with the Goverinor [sp] and Crime Stoppers and The Florida Department of Law Enforcement but to no avail. Respondent pointed out that tells you that there is no merit to it. The undersigned 2
also quoted Judge Roger Alcott who had stated in his Order Consolidating Cases and Order Dismissing Case that Petitioner also has a pattern of not being able to follow instructions. On September 26, 2008, the Second District Court of Appeal then dismissed Petitioner s Appeal without prejudice for him to reapply. Petitioner then filed a Motion for Rehearing, which was then denied by the Second District Court of Appeal on November 24, 2008, which simply stated, Appellant s motion for rehearing or reconsideration is denied. Petitioner then Petitioned this Court to take jurisdiction. On February 12, 2009, Petitioner filed a Combined Jurisdictional Brief. Petitioner signed a Certificate of Service certifying that he sent a copy of that brief to the undersigned. However, the undersigned never received his combined jurisdictional brief. (The undersigned believes that was done intentionally to prevent the Respondents from timely filing this Answer Brief.) Obviously, if it had been received, the undersigned would have timely responded, which has been Respondent s pattern in all previous litigation with Petitioner. The undersigned did not determine that Petitioner had filed his brief until the March 24, 2009, Order of this Court was received by the undersigned here on March 26, 2009, and learned that since the undersigned had not filed an answer brief the consolidated cases had been submitted to the Court for consideration. 3
When the undersigned called this Court s Clerk s Office, the undersigned learned of Petitoner s action and was told how to retrieve a copy of Petitioner s February 12, 2009, brief, and very quickly prepared an Answer Brief and ask this Court to consider it. That brief was stricken by the Clerk of your Court on March 30, 2009, for failure to comply with Florida Rule of Appellate Procedure 9.120(d), and I was instructed to file this Amended Brief on or before April 20, 2009. This amended answer brief follows. 4
SUMMARY OF ARGUMENT This case involves a dismissal of Petitioner s Appeal without prejudice to reapply. Since it was not a dismissal with prejudice, it is not a final order, and thus is not ripe for a Petition to this Court to take jurisdiction. While the Petitioner constantly cites caselaw upholding the mailbox rule, which is the law in Florida, there is nothing in either the order of the Second District Court of Appeal dismissing Petitioner s appeal without prejudice to reapply or in the subsequent denial of rehearing which disputes the mail box rule. Therefore, the Petitioner has failed to show any conflict between the Second District Court of Appeal s orders and any other law from other District Courts of Appeal or this Court. Lacking conflict or even a final order, there is no jurisdiction for this Court to hear this matter. 5
DECISION BELOW WAS NOT A FINAL ORDER AND HAS NOT BEEN SHOWN TO DIRECTLY CONFLICT WITH DECISIONS OF ANY OTHER DISTRICT COURT OF APPEAL OR THIS COURT ON THE SAME QUESTIONS OF LAW Since the decision below was a dismissal without prejudice to refile it was not a final order. As the First District Court of Appeal in Benton v. Moore 655 So.2d 1272 (Fla. 1 st DCA 1995) has opined: it has been held than an order which grants a motion to dismiss is neither a final order nor an appealable nonfinal order. They then dismissed the appeal for lack of jurisdiction. The same should occur here. Additionally, throughout Petitioner s initial brief on jurisdiction, Petitioner has tried to make a case that the mail box rule is the law in Florida. The undersigned does not disagree that the mail box rule is the law in Florida. That is not the issue. The issue at this point is whether this Court has jurisdiction to hear Petitioner s appeal. There is nothing in the Second District Court of Appeal s Orders in this case rendering a decision that the mail box rule is not the law in Florida. There is not any more information on the merits of the Second District 6
Court of Appeals decision here than would be shown if a per curiam affirmed order had been rendered which indisputably cannot be appealed to this Court. There is no law stated for this Court to find any conflict jurisdiction to hear. The undersigned believes that the Second District Court of Appeal was persuaded by the showing made by Respondents as to Petitioner s confusing his filing of an affidavit of indigency in another mandamus petition that he filed, for this case. However, there is no way to tell for sure what the basis for the Second District Court of Appeal s decision really was. What is clear is that Petitioner can reapply below. There is no final decision for this Court to now address. CONCLUSION Wherefore, jurisdiction of this Court should be denied. DAVID S. BERGDOLL, ESQ. Attorney for Sheriff/Respondents 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by Interoffice Mail to Muhammad Raheem Taqwael Supreme Kalifa, #2004-02567, Polk County Jail, 2390 Bob Phillips Road, Bartow, Florida, 33830, this 10 th day of April, 2009. DAVID S. BERGDOLL, ESQ. Polk County Sheriff s Office 455 North Broadway Bartow, Florida 33830 (863) 534-6208 FBN: 0902209 Attorney for Sheriff/Respondent 8
CERTIFICATE OF FONT SIZE I HEREBY CERTIFY that this document was generated by a computer using Microsoft Word with Times New Roman 14-point font in compliance with Fla. R. App. P. 9.210(a)(2). DAVID S. BERGDOLL, ESQ. Polk County Sheriff s Office 455 North Broadway Bartow, Florida 33830 (863) 534-6208 FBN: 0902209 Staff Attorney for Sheriff/Respondent
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