IN THE SUPREME COURT OF THE STATE OF FLORIDA, STATE OF FLORIDA, Petitioner, v. CHARLES FRATELLO, Respondent. Case No. SC07-780 ****************************************************************** ON APPEAL FROM THE FOURTH DISTRICT COURT OF APPEAL ****************************************************************** PETITIONER S BRIEF ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida CELIA A. TERENZIO Florida Bar No. 0656879 Bureau Chief JOSEPH A. TRINGALI Assistant Attorney General Florida Bar No. 0134924 1515 North Flagler Drive West Palm Beach, FL 33401 Telephone (561) 837-5000 Counsel for Petitioner i
TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF AUTHORITIES...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT...5 PETITIONER INVOKES THE JURISDICTION OF THIS COURT PURSUANT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.030(A)(2)(IV); THE OPINION OF THE FOURTH DISTRICT COURT OF APPEAL CONFLICTS WITH DECISIONS OF THIS COURT AND WITH THE SETTLED RULE OF LAW. CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE FACE AND FONT..10 ii
TABLE OF AUTHORITIES Cases Cited Page Number Acker v. State, 823 So.2d 875 (Fla. 2 nd DCA 2002)... 2, 5, 6 E.J. v. Department of Children and Families, 795 So.2d 1131 (Fla. 5 th DCA 2001)...5 Fratello v. State, 950 So.2d 440 (Fla. 4 th DCA 2007)...3 Hartney v. Piedmont Tech, Inc., 814 So.2d 1217 (Fla. 1 st DCA 2002)... 2, 5 In re N.C., 834 So.2d 189 (Fla. 2 nd DCA 2002)... 5, 6 Paragon Group, Inc. v. Hoeksema, 475 So.2d 244 (Fla. 2 nd DCA 1985)...6 Quinones v. State, 766 So.2d 1165 (Fla. 3 rd DCA 2000)...7 Reaves v. Reaves, 546 So.2d 744 (Fla. 2 nd DCA 1989)...6 Tompkins Land & Housing, Inc. v. White, 431 So.2d 259 (Fla. 2 nd DCA 1983)...6 Statutes Cited Article V, 3(b)(3), Fla. Const. (1980); Fla.R.App.P. 9.030(a)(2)(iv)...4 iii
PRELIMINARY STATEMENT Petitioner was the appellee and Respondent was the appellant in the Florida Fourth District Court of Appeal. The issue on appeal was whether Respondent, CHARLES FRATELLO, was entitled to a de novo evidentiary hearing before a successor trial judge, after the original judge failed to make a ruling and the case was transferred to the successor judge. Petitioner argued, inter alia, that even if the successor judge could not rule, the case should be transferred back to the original judge to make a ruling. In this brief, the parties will be referred to as they appear before this Court, except that the Petitioner may also be referred to as "State" or "Prosecution." The following symbols will be used: R = Record on Appeal T = Transcripts 1
STATEMENT OF THE CASE AND FACTS In its written opinion in this case, the Fourth District Court of Appeal detailed the somewhat tortuous history of this case. Briefly, an evidentiary hearing on a motion for post-conviction relief was held in the trial court in May, 1990, before the Hon. Patti Englander Henning, Judge of the Circuit Court. Judge Henning 1 did not rule on the motion, apparently because she was transferred to a civil division. Appellant moved to transfer the case to her successor, Judge Barry Goldstein. The case was transferred, but Judge Goldstein likewise took no action. Seven years after the hearing, Appellant obtained new counsel who resurrected the then-dormant case. Eventually, the case was transferred to Judge Alfred J. Horowitz, who was then presiding in the division in which the case was originally heard. Appellant moved for a new hearing, but Judge Horowitz denied his motion for post-conviction relief on the record that had been established in front of Judge Henning. On February 7, 2007, this Court issued its opinion in this case, holding that, pursuant to the holdings of cases such as Acker v. State, 823 So.2d 875 (Fla. 2 nd DCA 2002) and Hartney v. Piedmont Tech, Inc., 814 So.2d 1217 (Fla. 1 st DCA 1 Significantly, Judge Henning presided over Appellant s trial and thus knew more about the underlying case than any other judge in the Seventeenth Judicial Circuit. 2
2002), the successor judge in this case could not rule on the post-conviction motion. The Court explained: We reject the argument that Fratello waived his right to have the judge hear the witnesses, or that he invited trial court error in this case by filing a motion asking that his case be transferred to another judge after the evidentiary hearing. Fratello filed that motion because Judge Henning had been transferred from the criminal division of the circuit court to the civil division after she had presided on his rule 3.850 evidentiary hearing but before she ruled. Fratello was seeking a ruling in his case, but nothing in that motion suggested that he intended to waive the right to have the judge who ruled on his claims and the credibility issues do so only after having heard those witnesses. Ultimately, the Fourth District Court of Appeal reversed Judge Horowitz order of denial and remanded the case for a new evidentiary hearing on the claims made in the motion. The procedural history and facts on which the Fourth District Court of Appeal relied in making its decision are found in Fratello v. State, 950 So.2d 440 (Fla. 4 th DCA 2007), a copy of which is attached hereto for the convenience of this Court. 3
SUMMARY OF THE ARGUMENT Petitioner respectfully submits the Fourth District Court s opinion conflicts with opinions of the Second District Court of Appeal in that remedy required by that Court a de novo hearing in front of a new trial judge is in stark contrast with remedies required by the Second and Third District Courts of Appeal Where an original judge who heard the evidence is available, he or she is the preferred jurist to rule on a pending case. The judge who heard the evidence as the judge most familiar with the case, should be called on first; and only if the trial judge is not available to render an order should a new judge preside over a de novo hearing. Finally, Petitioner submits the record clearly shows that Respondent made the motion to transfer the case from Judge Henning to Judge Goldstein over one year after the evidentiary hearing was concluded [R 118-120]. Although the Fourth District Court rejected Petitioner s argument of invited error, Petitioner respectfully suggests that, given the unusual facts and circumstances in the case at bar, the issue should be addressed by the Florida Supreme Court. 4
ARGUMENT PETITIONER INVOKES THE JURISDICTION OF THIS COURT PURSUANT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.030(A)(2)(IV); THE OPINION OF THE FOURTH DISTRICT COURT OF APPEAL CONFLICTS WITH DECISIONS OF THIS COURT AND WITH THE SETTLED RULE OF LAW. Petitioner asks this Court to use its power of discretionary jurisdiction to review a decision of the Florida Fourth District Court of Appeal. Petitioner respectfully submits the Fourth District Court s opinion conflicts with opinions of the Second District Court of Appeal in Acker v. State, 823 So.2d 875 (Fla. 2 nd DCA 2002), and In re N.C., 834 So.2d 189 (Fla. 2 nd DCA 2002). Specifically, Petitioner submits the Fourth District misapprehended the remedy required by the cases on which it relied. Clearly, in Hartney v. Piedmont Tech, Inc., 814 So.2d 1217 (Fla. 1 st DCA, 2002) where the original judge died before signing the judgment, the appellate court had little choice but to require a new trial. A similar result occurred in E.J. v. Department of Children and Families, 795 So.2d 1131 (Fla. 5 th DCA 2001), where, after hearing the evidence but prior to rendering a decision, the judge presiding over the proceeding recused herself. Obviously the Fifth District Court was forced to remand for a new hearing because there was no longer an original judge to whom the case could be remanded. The 5
same can be said of the holding in Reaves v. Reaves, 546 So.2d 744 (Fla. 2 nd DCA 1989) where, after hearing the evidence, the trial judge recused himself because it came to his attention that several years earlier his former law firm had represented one of the parties. Once again, the original judge was not legally available. However those results stand in stark contrast to the remedy in Acker v. State, 823 So.2d 875 (Fla. 2 nd DCA 2002), a violation of probation case cited by the Fourth District Court, which was reversed and remanded for the judge who presided over the violation of probation hearing to enter an appropriate written order. Likewise in the case of In re N.C., 834 So.2d 189 (Fla. 2 nd DCA 2002) the Second District reversed and remanded with directions that, if possible, the trial judge who presided over the dependency hearings should enter such order as she considers appropriate. If the trial judge is not available to render an order, the Second District Court added, this cause is remanded for de novo hearings unless the parties stipulate that the successor judge may render a new order after review of the record of the prior proceedings. It is well settled that a successor judge may complete acts left unfinished by a predecessor, but may not weigh the testimony heard before the predecessor judge, Paragon Group, Inc. v. Hoeksema, 475 So.2d 244, 245-246 (Fla. 2 nd DCA 1985); Tompkins Land & Housing, Inc. v. White, 431 So.2d 259 (Fla. 2 nd DCA 6
1983). However, it is equally clear that when such a situation occurs, the case should first be remanded to the original judge to either make the necessary findings after refreshing herself by re-reading the record. As the Third District Court of Appeal pointed out in Quinones v. State, 766 So.2d 1165, 1170 (Fla. 3 rd DCA 2000): There are compelling institutional considerations militating in favor of appellate deference to the trial judge's evaluation... He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered... In short, he is far more conversant with the factors relevant to the determination than any reviewing court can possibly be. Simply stated, Petitioner respectfully submits that if the case at bar must be remanded, it should be remanded to the judge most familiar with it for proper disposition, and only if that is impossible should it be remanded to a successor judge for a de novo hearing. Id. Finally, Petitioner respectfully reminds this Court the record clearly shows that Respondent made the motion to transfer the case from Judge Henning to Judge 7
Goldstein over one year after the evidentiary hearing was concluded [R 118-120]. Although the Fourth District Court rejected Petitioner s argument of invited error, Petitioner respectfully suggests that, given the unusual facts and circumstances in the case at bar, the issue should be addressed by the Florida Supreme Court. 8
CONCLUSION WHEREFORE based on the foregoing arguments and the authorities cited herein, Petitioner respectfully contends the decision of the Fourth District Court of Appeal is in conflict with decisions of the district courts of appeal and the settled law, and, therefore, this Court should accept jurisdiction in the premises. Respectfully submitted, BILL McCOLLUM Attorney General Tallahassee, Florida CELIA A. TERENZIO Bureau Chief Florida Bar No. 0656879 JOSEPH A. TRINGALI, Assistant Attorney General Florida Bar No. 0134924 1515 North Flagler Drive Suite 900 West Palm Beach, FL 33401 Telephone (561) 837-5000 Counsel for Petitioner 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent s Brief on Jurisdiction was sent by United States mail to CHARLES G. WHITE, Esq., Attorney for Appellant, 1031 Ives Dairy Road, Suite 228, Miami, FL 33179 on May 2, 2007. JOSEPH A. TRINGALI, Assistant Attorney General Counsel for Petitioner CERTIFICATE OF TYPE FACE AND FONT Counsel for the Respondent/Appellee hereby certifies, pursuant to this Court s Administrative Order of July 13, 1998, that the type used in this brief is Times Roman 14 point proportionally spaced font. JOSEPH A. TRINGALI, Assistant Attorney General Counsel for Petitioner 10
IN THE SUPREME COURT OF THE STATE OF FLORIDA, STATE OF FLORIDA, Petitioner, v. CHARLES FRATELLO, Respondent. Case No. ****************************************************************** APPENDIX ****************************************************************** BILL McCOLLUM Attorney General Tallahassee, Florida CELIA A. TERENZIO Florida Bar No. 0656879 Bureau Chief JOSEPH A. TRINGALI Assistant Attorney General Florida Bar No. 0134924 1515 North Flagler Drive West Palm Beach, FL 33401 Telephone (561) 837-5000 Counsel for Petitioner 11