IN THE SUPREME COURT OF FLORIDA ANTHONY FRANCIS, Petitioner, vs. CASE NO. SC07-1020 (L.T. CASE NO. 4D05-4542 STATE OF FLORIDA, Respondent. PETITIONER=S BRIEF ON JURISDICTION On Review from the District Court of Appeal, Fourth District, State of Florida CAREY HAUGHWOUT Public Defender David John McPherrin Assistant Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 Third Street/6th Floor West Palm Beach, Florida 33401 (561 355-7600 appeals@pd15.state.fl.us Attorney for Anthony Francis
TABLE OF CONTENTS CONTENTS PAGE(S TABLE OF CONTENTS...i AUTHORITIES CITED...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT POINT ON APPEAL THIS COURT HAS JURISDICTION TO REVIEW STATE v. FRANCIS, 954 So. 2d 755 (Fla. 4 th DCA 2007, WHERE THE DECISION RENDERED IS IN EXPRESS AND DIRECT CONFLICT WITH THAT OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME POINT OF LAW...4 CONCLUSION...7 CERTIFICATE OF SERVICE...8 CERTIFICATE OF FONT SIZE...8 i
AUTHORITIES CITED CASES CITED PAGE Kincaid v. World Insurance Co., 157 So. 2d 517 (Fla. 1963...5 Mancini v. State, 312 So. 2d 732 (Fla. 1975...4 Maybin v. State, 884 So. 2d 1174 Fla. 2d DCA 2004...5 Nielson v. City of Sarasota, 117 So. 2d 731 (Fla. 1960...4 Sneed v. State, 749 So.2d 545 (Fla. 4th DCA 2000...6 State v. Francis, 954 So. 2d 755 (Fla. 4 th DCA 2007... 2, 6 Trotter v. State, 825 So. 2d 362 (Fla. 2002... 2, 6 FLORIDA CONSTITUTION Article V, Section 3(b(3...4 FLORIDA RULES OF APPELLATE PROCEDURE Rule 9.030(a(2(A(iv...4 ii
PRELIMINARY STATEMENT Petitioner was the defendant in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, and the appellee in the Fourth District Court of Appeal. Respondent was the prosecution and appellant in the lower courts. In this brief the parties will be referred to as they appear before the Court. 1
STATEMENT OF THE CASE AND FACTS Petitioner entered open pleas to possessing cocaine and marijuana and driving without a license. State v. Francis, 954 So. 2d 755 (Fla. 4 th DCA 2007. The Criminal Punishment Code scoresheet calculated the lowest permissible sentence as 20.9 months in prison. Without articulating its reasons either orally or in writing, the trial court granted petitioner=s motion for a downward departure and sentenced him to six months in the county jail with credit for 140 days previously served. Respondent sought review in the Fourth District Court of Appeal. The district court reversed and remanded for resentencing based upon the trial court=s failure to provide written reasons supporting the downward departure sentence. In so doing the district court stated: Id. [w]e similarly reject Francis=s contention that, regardless of the merits of the State=s arguments on appeal, he cannot be resentenced because he completed the sixmonth sentence imposed during the pendency of this appeal. See Trotter v. State, 825 So. 2d 362, 366 (Fla. 2002holding that double jeopardy is not implicated in a resentencing following an appeal and stating that a defendant cannot have an expectation of finality in a sentence that is the subject of an appeal. 2
Notice of intent to invoke the discretionary jurisdiction of this Court, based upon an express and direct conflict with a decision of another district court of appeal, was timely filed. This jurisdictional brief now follows. SUMMARY OF THE ARGUMENT POINT ON APPEAL Respondent sought review of petitioner=s downward departure sentence in the Fourth District Court of Appeal. Petitioner argued that even if respondent was correct on the merits, double jeopardy protections precluded imposition of an increased sentence on remand because he completed service of the sentence. The district court rejected petitioner=s argument. The Second District Court of Appeal has held that once a sentence has been served to completion, increasing that sentence, even if it was illegal or invalid as initially imposed, violates the Double Jeopardy Clause. The different views held by the Second and Fourth District Courts of Appeal regarding the application of the Double Jeopardy Clause to the increase of a sentence previously served creates an express and direct conflict on the same point of law. That conflict can result in similarly situated defendants being treated differently. Accordingly, this Court should grant review in this case and resolve the conflict. 3
ARGUMENT POINT ON APPEAL THIS COURT HAS JURISDICTION TO REVIEW STATE v. FRANCIS, 954 So. 2d 755 (Fla. 4 th DCA 2007, WHERE THE DECISION RENDERED IS IN EXPRESS AND DIRECT CONFLICT WITH THAT OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME POINT OF LAW. Article V, ' 3(b(3 of the Florida Constitution vests this Court with jurisdiction to hear appeals in criminal cases as follows: (3 May review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or the supreme court on the same question of law. accord Fla. R. App. P. 9.030(a(2(A(iv. In Nielson v. City of Sarasota, 117 So. 2d 731 (Fla. 1960, this Court discussed "conflict jurisdiction" stating: the principal situation justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflict are, (1 the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2 the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a case disposed of by this Court. Id. at 734; accord Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975. "The constitutional standard is whether the decision of the District Court on its face 4
collides with a prior decision of this Court, or another District Court, on the same point of law so as to create an inconsistency or conflict among precedents." Kincaid v. World Insurance Co., 157 So. 2d 517, 518 (Fla. 1963. In Maybin v. State, 884 So. 2d 1174 (Fla. 2d DCA 2004 the defendant, sentenced to 25 years in prison, motioned the trial court, five years after sentence was imposed, to mitigate his sentence based upon his deteriorating health. The trial court granted the motion and sentenced Maybin to time served. The State did not take an appeal from the trial court=s order, but some time later filed a motion to correct an illegal sentence arguing that the trial court was without jurisdiction to entertain Maybin=s motion to mitigate. The trial court granted the State=s motion and reimposed the original sentence. Maybin sought review arguing that reimposing the original sentence violated his double jeopardy protections. The Second District Court of Appeal agreed stating: After the trial court mitigated his sentence, Maybin was released from prison. By the time the State filed the rule 3.800(a motion and the trial court realized its mistake in modifying Maybin's sentence, Maybin's modified sentence of time served had already been served. Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence. Sneed v. State, 749 So.2d 545 (Fla. 4th DCA 2000. 5
Even though Maybin's modified sentence was invalid, he had already served it to completion, and the trial court could not set it aside because the question had become moot. See id. at 546. Therefore, the trial court's reimposition of the twenty-five year sentence four months later violated Maybin's right to protection against double jeopardy. See id. Id. at 1175. The rule announced by the Second District Court of Appeal in Maybin is that once a sentence has been completed it cannot be increased, even if it was an illegal or invalid sentence, without violating double jeopardy protections. The Fourth District Court of Appeal rejected that argument, remanding petitioner=s case for resentencing, with the possibility that his sentence will be increased and he returned to prison, even though he has completed service of the sentence originally imposed. State v. Francis, 954 So. 2d 755 (Fla. 4 th DCA 2007. 1 The protections afforded by the double jeopardy clause either prohibits increasing a sentence that has been served to completion or it does not. The Second and Fourth District Courts of Appeal have taken contradictory views on the legal question, giving rise 1 Trotter v. State, 825 So. 2d 362 (Fla. 2002, cited by the Fourth District in support of its position does not resolve the conflict. In Trotter the increase in the defendant=s sentence came after the defendant appealed his initial sentence. It is one thing to say that double jeopardy does not prohibit increasing a sentence that is vacated at the defendant=s insistence, it is quite another thing to allow a sentence to be increased at the state=s insistence. 6
to an express and direct conflict. As a result of that conflict, similarly situated defendants will be treated differently based upon where, within the State of Florida, their case is handled. Accordingly, this Court should exercise its discretion and grant review of the Fourth District=s decision in this case. CONCLUSION Petitioner has demonstrated the existence of express and direct conflict and, as a result, this Court should grant the petition for discretionary review. Respectfully submitted, CAREY HAUGHWOUT Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 Third Street/6th Floor West Palm Beach, Florida 33401 (561 355-7600 David John McPherrin Assistant Public Defender Florida Bar No. 0861782 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the Petitioner=s Jurisdictional Brief has been furnished by courier to Mr. Mitch Egber, Assistant Attorney General, 1515 North Flagler Drive, Ninth Floor, West Palm Beach, Florida 33401-3432 and by U.S. Mail to Mr. Anthony Francis, 460 Florida Avenue, Melrose Park, FL 33312 this 7th day of June, 2007. CERTIFICATE OF FONT SIZE David John McPherrin Assistant Public Defender Florida Bar No. 0861782 Attorney for Anthony Francis In accordance with Florida Rule of Appellate Procedure 9.210, petitioner hereby certifies that the instant brief has been prepared with 14 point Times New Roman type, a font that is not spaced proportionately. David John McPherrin Attorney for Anthony Francis 8
IN THE SUPREME COURT OF THE STATE OF FLORIDA ANTHONY FRANCIS, Petitioner, vs. CASE NO. (L.T.CASE NO. 4D05-4542 STATE OF FLORIDA, Respondent. APPENDIX Respectfully submitted, CAREY HAUGHWOUT Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 Third Street/6th Floor West Palm Beach, Florida 33401 (561 355-7600 David John McPherrin Assistant Public Defender Florida Bar No. 0861782 appeals@pd15.state.fl.us Attorney for Anthony Francis
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof the Appendix has been furnished by courier to Mr. Mitch Egber, Assistant Attorney General, 1515 North Flagler Drive, Ninth Floor, West Palm Beach, Florida 33401-3432 and by U.S. Mail to Mr. Anthony Francis, 460 Florida Avenue, Melrose Park, FL 33312 this 7th day of June, 2007. David John McPherrin Assistant Public Defender Florida Bar No. 0861782 Attorney for Anthony Francis 2