IN THE SUPREME COURT OF FLORIDA ROBERT EDWIN REICHMAN, Petitioner, CASE NO. SC11-465 v. EDWIN G. BUSS, SECRETARY, FL. DEPT. OF CORRECTIONS, Respondent JURISDICTIONAL BRIEF OF RESPONDENT SHERON WELLS ASSISTANT GENERAL COUNSEL FLORIDA BAR NO. 68410 MICHAEL T. KENNETT ASSISTANT GENERAL COUNSEL FLORIDA BAR NO. 177008 FLORIDA DEPT. OF CORRECTIONS OFFICE OF GENERAL COUNSEL 501 SOUTH CALHOUN STREET TALLAHASSEE, FL 32399-2500 (850) 717-3605 (850) 922-4345 (FAX) COUNSEL FOR RESPONDENT
TABLE OF CONTENTS PAGES(S) TABLE OF CONTENTS...i TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...1 ARGUMENT...2 ISSUE DOES THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW?...2 CONCLUSION...10 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...11
TABLE OF CITATIONS CASES PAGES(S) FEDERAL CASES In re Arnett, 804 F.2d 1200 (11th Cir. 1986)...6 Marby v. Johnson, 467 U.S. 504 (1984)...6 Santobello v. New York, 404 U.S. 257 (1971)...5 U.S. v. Boatner, 966 F.2d 1575 (11th Cir. 1992)...5 U.S. v. Eldick, 443 F.3d 783 (11th Cir. 2006)...5 U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990)...6 U.S. v. Nelson, 837 F.2d 1519 (11th Cir. 1988)...5 U.S. v. Pierre, 120 F.3d 1153 (11th Cir. 1997)...5 U.S. v. Rewis, 969 F.2d 985 (11th Cir. 1992)...5 U.S. v. Rubbo, 396 F.3d 1330 (11th Cir. 2005)...5 U.S. v. Thomas, 487 F.3d 1358 (11th Cir. 2007)...5 U.S. Williams, 444 F.3d 1286 (11th Cir. 2006)...5 STATE CASES Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)...3 Buss v. Reichman, 53 So. 3d 339 (Fla. 1st DCA 2011)...1, 9, 10 Davis v. State, 26 So. 3d 647, 650 (Fla. 2d DCA 2010)...7 Dellahoy v. State, 816 So. 2d 1253 (5th DCA 2002)...5 Department of Health and Rehabilitative Services v. National Adoption Counseling, 498 So. 2d 888 (Fla. 1986)...3 Dyer v. State, 296 So. 2d 524 (Fla. 3d DCA 1974)...4
Everton v. Willard, 468 So. 2d 936 (Fla. 1985)...4 Faison v. State, 426 So. 2d 963 (Fla. 1983)...4 Falagan v. Wainwright, 195 So. 2d 562 (Fla. 1967)...4 Gibson v. Maloney, 231 So. 2d 823 (Fla. 1970)...3 Glenn v. State, 776 So. 2d 330 (Fla. 4th DCA 2001)...4 Jaimes v. State, 51 So. 3d 445 (Fla. 2010)...4 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...3 Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989)...4 Leichtman v. Singletary, 674 So. 2d 889 (Fla. 4th DCA 1996)...4 Lopez v. State, 536 So. 2d 226 (Fla. 1988)...5 McKean v. Warburton, 919 So. 2d 341 (Fla. 2005)...6 Miller v. State, 980 So. 2d 1092 (Fla. 2d DCA 2008)...4 Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)...5 Offord v. State, 544 So. 2d 308 (4th DCA 1989)...5 Pardo v. State, 596 So. 2d 665 (Fla. 1992)...4 Reaves v. State, 485 So. 2d 829 (Fla. 1986)...2 Russell v. State, 645 So. 2d 1087 (Fla. 4th DCA 1994)...5 Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009)...passim State v. Stang, 41 So. 3d 206 (Fla. 2010)...8, 9 State v. Weaver, 957 So. 2d 586 (Fla. 2007)...4 Taylor v. State, 910 So. 2d 636 (Fla. 3d DCA 1998)...4 Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985)...4 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)...4
Wallace v. State, 26 So. 718 (Fla. 1899)...4 DOCKETED CASES Delgado v. State, Case No. SC09 2030 (Fla. May 26, 2011)...4 LAW REVIEW ARTICLES Diana L. Martin, Robin I. Bresky, Taking the Pathway of Discretionary Review Toward Florida s Highest Court, 83 Nov. Fla. B.J. 55 (2009)...2 Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (2005)...passim
PRELIMINARY STATEMENT Respondent, the Florida Department of Corrections, the Appellant in the District Court of Appeal (DCA) and the Respondent in the habeas court, will be referenced in this Brief as Respondent, or the Department. Petitioner, Robert E. Reichman, the Appellee in the DCA and the Petitioner in the habeas court, will be referenced in this Brief as Petitioner or proper name. PJB will designate the Petitioner s Jurisdictional Brief. That symbol will be followed by the appropriate page number. STATEMENT OF THE CASE AND FACTS The pertinent history and facts are set out in the decision of the lower tribunal, Buss v. Reichman, 53 So. 3d 339 (Fla. 1st DCA 2011). SUMMARY OF ARGUMENT None of the cases cited by the Petitioner establish the jurisdictional requirement for express and direct conflict. Nonetheless, the Second District s decision in Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009) conflicts with the decision below. Both cases involve similar facts, but they arrive at strikingly dissimilar outcomes.
ARGUMENT ISSUE DOES THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW? Basis for Jurisdiction The Petitioner contends that this Court enjoys certiorari jurisdiction under Rule 9.030(b)(2)(B). See PJB-1. As that particular Rule pertains to the jurisdiction of the District Courts of Appeal, and given the nature of the Petitioner s argument, the Department analyzes the Petitioner s claim as one of conflict jurisdiction pursuant to Rule 9.030(a)(2)(A)(iv), which parallels Article V, 3(b)(3), Fla. Const. See generally Diana L. Martin, Robin I. Bresky, Taking the Pathway of Discretionary Review Toward Florida s Highest Court, 83 Nov. Fla. B.J. 55 (2009). In order to qualify as express and direct, the conflict must remain readily apparent simply by examining the four corners of the majority decisions at issue; a petitioner cannot rely upon the record, a concurring opinion, or a dissenting opinion in order to establish conflict jurisdiction. See Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986); see also Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 512 (2005).
Under the four corners rule, inherent or implied conflict cannot suffice. See Department of Health and Rehabilitative Services v. National Adoption Counseling, 498 So. 2d 888, 889 (Fla. 1986). However, apparent conflict can suffice. See Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 513. As a final consideration, the decisions themselves must conflict; conflicting opinions or the reasons therefor likewise remain insufficient. See Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980), quoting Gibson v. Maloney, 231 So. 2d 823, 824 (Fla. 1970). Purpose for the Jurisdictional Requirement Far from an arbitrary rule, the requirement for express and direct conflict: (1) prevents the District Courts of appeal from devolving into intermediate courts of appeal; and, (2) preserves this Court s ability to devote its limited resources to maintaining uniformity of decisions among the District Courts. See Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958); see also Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 516. Types of Conflict Jurisdiction Generally speaking, conflict jurisdiction includes the following, four categories: (1) holding conflict; (2)
misapplication conflict 1 ; (3) apparent conflict; and, (4) piggyback conflict. See Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 516. State Court Decisions Relied upon by Petitioner In his brief on jurisdiction, the Petitioner asserts that the decision below expressly and directly conflicts with the following state court decisions: Glenn v. State, 776 So. 2d 330 (Fla. 4th DCA 2001); Dyer v. State, 296 So. 2d 524 (Fla. 3d DCA 1974); Wallace v. State, 26 So. 718 (Fla. 1899); Leichtman v. Singletary, 674 So. 2d 889 (Fla. 4th DCA 1996); Taylor v. State, 910 So. 2d 636 (Fla. 3d DCA 1998) ; Falagan v. Wainwright, 195 2 1 Recently, this Court iterated that misapplication conflict provides a well-recognized basis for conflict jurisdiction. See Wallace v. Dean, 3 So. 3d 1035, 1039 (Fla. 2009); see also Jaimes v. State, 51 So. 3d 445, 446 (Fla. 2010); accord Delgado v. State, Case No. SC09 2030 (Fla. May 26, 2011). However, Wallace, Jaimes and Delgado all involve the misapplication of Supreme Court of Florida decisions as controlling precedent. See Wallace at 1040 (misapplication of Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989), Everton v. Willard, 468 So. 2d 936 (Fla. 1985), and Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985)); see also Jaimes at 446 (misapplication of State v. Weaver, 957 So. 2d 586 (Fla. 2007)); see also Delgado at *1 (misapplication of Faison v. State, 426 So. 2d 963 (Fla. 1983)). Given that one District Court of Appeal cannot bind another, this observation suggests that misapplication conflict cannot involve the misapplication of District Court of Appeal decisions as controlling precedent. See Miller v. State, 980 So. 2d 1092, 1094 (Fla. 2d DCA 2008), citing Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992); see also Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 519. 2 This case does not appear in the Southern Reporter as cited by the Petitioner.
So. 2d 562 (Fla. 1967); Dellahoy v. State, 816 So. 2d 1253 (5th DCA 2002); Offord v. State, 544 So. 2d 308 (4th DCA 1989); Lopez v. State, 536 So. 2d 226 (Fla. 1988); Russell v. State, 645 So. 2d 1087 (Fla. 4th DCA 1994); Moore v. Pearson, 789 So. 2d 316 (Fla. 2001). Because they involve either direct appeals, the appellate review of a trial court s denial of a motion for postconviction relief, or challenges to the calculation of credit for time served, none of the State cases cited by Petitioner establish the holding conflict, misapplication conflict, apparent conflict, or piggy-back conflict necessary for jurisdiction under the provisions invoked in this case. See generally Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 516-21 (2005). Federal Decisions Relied upon by Petitioner In his brief on jurisdiction, the Petitioner also asserts that the decision below expressly and directly conflicts with the following Federal decisions: U.S. v. Rubbo, 396 F.3d 1330 (11th Cir. 2005); U.S. v. Eldick, 443 F.3d 783 (11th Cir. 2006); U.S. Williams, 444 F.3d 1286 (11th Cir. 2006); U.S. v. Pierre, 120 F.3d 1153 (11th Cir. 1997); U.S. v. Rewis, 969 F.2d 985 (11th Cir. 1992); U.S. v. Boatner, 966 F.2d 1575 (11th Cir. 1992); U.S. v. Nelson, 837 F.2d 1519 (11th Cir. 1988); U.S. v. Thomas, 487 F.3d 1358 (11th Cir. 2007); Santobello v. New York, 404 U.S.
257 (1971); U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990); In re Arnett, 804 F.2d 1200 (11th Cir. 1986); Marby v. Johnson, 467 U.S. 504 (1984). However, none of the Federal decisions cited by the Petitioner can provide a basis for conflict jurisdiction. See Anstead, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. at 513. Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009) Although not relied upon by the Petitioner in his Brief, the Second District s decision in Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009) appears to conflict with the decision below. In short, both cases involve similar facts but strikingly dissimilar results. See generally McKean v. Warburton, 919 So. 2d 341, 346 (Fla. 2005) ( A contrary result creates an apparent conflict because the same factual situation has resulted in different outcomes. ). In Stang, a defendant filed a post-conviction petition for writ of habeas corpus challenging the legality of his incarceration; rather than filing the petition with the court that sentenced him, however, the defendant filed the petition with the court exercising territorial jurisdiction over the place of confinement. See Stang at 567-68. A salient fact, the defendant raised a claim in his habeas petition that the sentencing court previously rejected. See ibid at 568-69. After the Tenth Judicial Circuit denied the petition, the
defendant sought a writ of certiorari in the Second District Court of Appeal. See ibid at 569 ( The postconviction court denied Stang's habeas petition, finding that his claims had been addressed appropriately at the administrative level. Stang then sought review of that ruling by seeking a writ of certiorari in this court. ). On appeal, the Second District converted the defendant s petition for writ of certiorari into a petition for writ of habeas corpus. See ibid at 569 ( Because Stang is seeking his immediate release from prison based on an allegedly void sentencing order, his petition for writ of certiorari should be treated as a petition for writ of habeas corpus. ). Instead of concluding that it should transfer the defendant s complaint to the court that originally ordered the sentence, the Second District determined that it enjoyed jurisdiction to address to defendant s claim. See Stang at 569: While Stang was convicted and sentenced in Palm Beach County, a county not within the territorial jurisdiction of this court, this court nevertheless has jurisdiction to review the sentencing order because Stang is currently assigned to the Hardee Correctional Institution, which is within the territorial jurisdiction of this court. Cf. Davis v. State, 26 So. 3d 647, 650 (Fla. 2d DCA 2010): [W]e reverse the order of the circuit court of the Sixth Judicial Circuit in Pasco County denying Mr. Davis's petition for a writ of habeas corpus and direct that the petition be transferred to the circuit court of the First Judicial Circuit in Escambia County
as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Without addressing whether or not the defendant should have raised the issue previously when he appealed the denial of a 3.850 motion, and without addressing whether or not the defendant could have challenged the legality of the modified sentencing order by filing a motion pursuant to Rule 3.800, the Second District concluded that the trial court s sentencing order remained void, illegal, and therefore unenforceable. See Stang at 570 ( Because the amended sentencing order under which the Department is holding Stand is void and illegal, it is unenforceable. ); cf. State v. Stang, 41 So. 3d 206, 212 (Fla. 2010) (Perry, J., dissenting) ( Stang's proper remedy following the denial of his rule 3.850 motion was to file a timely appeal in the Fourth District Court of Appeal, not to file multiple extraordinary writ petitions in various other courts throughout the state. ). Based upon that conclusion, the Second District granted the defendant s petition for writ of habeas corpus and ordered his immediate release. See ibid at 570-71. As with the defendant in Stang, the Petitioner in the case sub judice: (1) challenged the legality of his incarceration by filing a post-conviction petition for writ of habeas corpus in the court that exercises territorial jurisdiction over the place of confinement; (2) did not file the claim at issue in the court
that originally ordered the sentence; and, (3) raised a claim in a habeas petition that the sentencing court previously rejected. See Buss v. Reichman, 53 So. 3d 339, 342 (Fla. 4th DCA 2011). Admittedly, the defendant in Stang alleged that his sentence remained void or illegal whereas the Petitioner in the case sub judice claims that his sentence was not executed as intended by the trial court. Reichman at 347. Nonetheless, any such distinction remains irrelevant because a properly filed motion for post-conviction relief could encompass either claim. See generally State v. Stang at 212 (Perry, J., dissenting): To the extent Stang claims that the corrected sentencing order was void because it was entered during the pendency of his direct appeal and the trial court lacked jurisdiction to enter it and that a claim of lack of jurisdiction can be raised at any time, Stang has overlooked the plain language of rule 3.850, which addresses such jurisdictional claims... Despite the factual similarities between Stang and the case sub judice, the Second and Fourth District Courts of Appeal arrived at different results. The former court (1) determined that the habeas court (not the sentencing court) enjoyed jurisdiction to hear the claim 3, (2) failed to consider whether 3 See Stang at 569 ( While Stang was convicted and sentenced in Palm Beach County, a county not within the territorial jurisdiction of this court, this court nevertheless has jurisdiction to review the sentencing order because Stang is currently assigned to the Hardee Correctional Institution, which is within the territorial jurisdiction of this court. ).
the defendant s claim remained procedurally barred 4, and (3) ordered the defendant s immediate release from prison 5. In stark contrast, the latter court (1) determined that the sentencing court (not the habeas court) enjoyed jurisdiction to hear the claim 6, (2) concluded that the Petitioner s claim remained procedurally barred 7, and (3) reversed a trial court order that granted the Petitioner s immediate release 8. CONCLUSION Based on the foregoing, the Department respectfully requests that this Honorable Court (1) exercise its discretionary jurisdiction and (2) address the merits of Petitioner s claim. 4 See Stang at 568-69 ( Stang did not appeal the denial of this postconviction motion. Instead, on June 26, 2008, he filed a petition for writ of habeas corpus with the Tenth Judicial Circuit arguing that the amended sentence was void because it was rendered during the pendency of his direct appeal. ). 5 See Stang at 570 ( Stang is entitled to immediate release. ) 6 See Reichman at 348 ( Since the enactment of rule 1 and later rule 3.850, nearly all collateral criminal challenges must be brought in the sentencing court, the court best equipped to review such challenges... An allegation of entitlement to immediate release does not permit a prisoner to circumvent the limitations of the postconviction rules or to relitigate issues in the jurisdiction where the prisoner happens to be housed. ). 7 See Reichman at 348 ( [H]is claim is procedurally barred because he had an adequate remedy under rule 3.850 and this matter was already decided against him in the sentencing court and affirmed on appeal. ). 8 See Reichman at 348 ( The circuit court's order granting the petition for writ of habeas corpus and discharging Reichman is reversed. ).
SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to Robert Edwin Reichman, DC# 094273, Dade Correctional Institution, 19000 SW 377 Street, Florida City, Florida 33034, by MAIL on June 7, 2011. Respectfully submitted and served, SHERON WELLS ASSISTANT GENERAL COUNSEL FLORIDA DEPARTMENT OF CORRECTIONS FLORIDA BAR NO. 68410 MICHAEL T. KENNETT ASSISTANT GENERAL COUNSEL FLORIDA DEPARTMENT OF CORRECTIONS FLORIDA BAR NO. 177008 Attorneys for Respondent Florida Department of Corrections 501 South Calhoun Street Tallahassee, Fl 32399-2500 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla.R.App.R. 9.210. MICHAEL T. KENNETT ASSISTANT GENERAL COUNSEL FLORIDA DEPARTMENT OF CORRECTIONS