IN THE SUPREME COURT OF FLORIDA ROBERT DEREK LEWIS, Petitioner, v. CASE NO. SC04-58 STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, Jr. ATTORNEY GENERAL KELLIE A. NIELAN FLORIDA BAR #618550 TIMOTHY D. WILSON Fla. Bar #0033383 444 Seabreeze Blvd. Fifth Floor Daytona Beach, FL 32118 (386) 238-4990 FAX (386) 238-4997 COUNSEL FOR RESPONDENT
TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS...ii STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT I. THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT CONSTRUE ANY PROVISION OF THE STATE OR FEDERAL CONSTITUTIONS NOR DOES IT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT.... 2 CONCLUSION... 3 CERTIFICATE OF SERVICE... 4 CERTIFICATE OF FONT COMPLIANCE... 4 i
TABLE OF CITATIONS CASES PAGE NO Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 Rojas v. State, 288 So. 2d 234 (Fla. 1974)... 2 OTHER AUTHORITIES: Article V, section (3)(b)(3), Fla. Const.... 2 Fla. R. App. P. 9.210(a)(2)... 4 ii
STATEMENT OF THE CASE AND FACTS The State accepts the procedural statement of the case set forth in Lewis Jurisdictional Brief. The facts contained therein are not contained in the opinion of the court below and should not be considered for any purpose in this proceeding. SUMMARY OF ARGUMENT This Court does not have jurisdiction to review this case. The decision of the Fifth District Court of Appeal in this case does not expressly construe any provision of the state or federal constitutions nor does it expressly and directly conflict with a decision of this Court or any other court. 1
ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT CONSTRUE ANY PROVISION OF THE STATE OR FEDERAL CONSTITUTIONS NOR DOES IT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. This Court has jurisdiction under article V, section (3)(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030 of a case where a decision of a district court expressly construes a provision of the state or federal constitutions or expressly and directly conflicts with a decision of this Court or another district court. Although Lewis asserts both of these provisions as the basis for jurisdiction in this case, he supports neither with argument in his brief or citation to the opinion from which he seeks review. Review should be denied. Lewis argues that the opinion of the Fifth District Court of Appeal in this case wrongly construes the Sixth Amendment to the United States Constitution. However, reading his argument and the opinion indicates plainly that the district court did not construe the Sixth Amendment, but rather only applied it to the facts of Lewis case. As this Court has previously noted applying is not synonymous with construing; the former is NOT a basis for our jurisdiction, while the 2
express construction of a constitutional provision is. Rojas v. State, 288 So. 2d 234, 236 (Fla. 1974)(emphasis in original). The second basis Lewis asserts for jurisdiction is express and direct conflict of the opinion in this case with the opinion of another court. This Court has repeatedly held that such conflict must be express and direct, that is, "it must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). Lewis does not cite to any opinion of this or any other court which expressly and directly conflicts with the opinion in the instant case. Rather, Lewis argues that the district court below applied the holdings of other cases wrongly to the facts of his case. Because Lewis has not pointed out any portion of the district court opinion which actually conflicts with any opinion of this or any other court, he has failed to establish that this Court has jurisdiction in this case. CONCLUSION Based on the arguments and authorities presented herein, the State asserts that this Court does not have jurisdiction to review the decision in this case. Lewis petition for discretionary review should be denied. 3 Respectfully submitted, CHARLES J. CRIST, Jr. ATTORNEY GENERAL
KELLIE A. NIELAN Fla. Bar #618550 TIMOTHY D. WILSON Fla. Bar #0033383 444 Seabreeze Boulevard Fifth Floor Daytona Beach, FL 32118 (386) 238-4990 FAX (386) 238-4997 COUNSEL FOR RESPONDENT CERTIFICATE OF FONT AND TYPE SIZE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced, in compliance with Fla. R. App. P. 9.210(a)(2). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Jurisdictional Brief has been furnished by U.S. Mail to Robert Derek Lewis, #E04661, New River West Correctional Institution, 7819 N.W. 228 th St., Raiford, Florida 32026-3500, this day of March, 2004. 4
5 TIMOTHY D. WILSON