IN THE SUPREME COURT OF FLORIDA JOSHUA ROSA, Petitioner, v. Case No. SC11-659 STATE OF FLORIDA, Respondent. DISCRETIONARY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL DONNA S. KOCH Assistant Attorney General Florida Bar No. 865974 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813)287-7900 Facsimile: (813)281-5500 COUNSEL FOR RESPONDENT
TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES... 2 STATEMENT OF THE CASE AND FACTS... 3 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT OR OF THIS COURT AND THEREFORE THIS COURT SHOULD NOT GRANT DISCRETIONARY REVIEW. CONCLUSION... 11 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF FONT COMPLIANCE... 11 APPENDIX... 11 1
TABLE OF AUTHORITIES CASES Brooks v. State, 918 So. 2d 181 (Fla. 2005)... 4, 6, 7, 8, 10 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)... 6 In Re Holder, 945 So. 2d 1130 (Fla. 2006)... 5 Knowles v. State, 848 So. 2d 1055 (Fla. 2003)... 5 Lewis v. State, 34 So. 3d 183... 9, 10 Mapps v. State, 520 So. 2d 92 (Fla. 4th DCA 1988)... 8 Ortiz v. State, 963 So. 2d 226... 6 Reaves v. State, 485 So. 2d 829... 5 Rosa v. State, 36 Fla. L. Weekly D482 (Fla. 2d DCA March 2, 2011)...passim Sturdivant v. State, 35 Fla. L. Weekly D 1993 (Fla. 1st DCA September 7, 2010)4, 6, 10 OTHER AUTHORITY Fla. Const. Art. V, 3(b)(3)... 5 782.04(1)(a)2.h., Fla. Stat... 10 2
STATEMENT OF THE CASE AND FACTS Respondent accepts the Statement of Case and Facts presented by Petitioner for purposes of this jurisdictional brief. 3
SUMMARY OF THE ARGUMENT Contrary to Petitioner s assertion, the decision in this case does not directly and expressly conflict with Brooks v. State, 918 So. 2d 181 (Fla. 2005), or Sturdivant v. State, 35 Fla. L. Weekly D 1993 (Fla. 1st DCA September 7, 2010). 4
ARGUMENT THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT OR OF THIS COURT AND THEREFORE THIS COURT SHOULD NOT GRANT DISCRETIONARY REVIEW. The jurisdiction of this Court is limited to a narrow class of cases enumerated in the Florida Constitution. For example, this Court may review any decision of a district court of appeal that expressly and directly conflicts with the decision of another district court of appeal, or with the Supreme Court on the same question of law. Fla. Const. Art. V, '3(b)(3). The issue of the Court s jurisdiction is a threshold matter that must be addressed before the Court can reach the merits of the issue. In Re Holder, 945 So. 2d 1130, 1134 (Fla. 2006). In order for this Court to exercise its discretionary jurisdiction based on express or direct conflict, the conflict must appear on the face of the allegedly conflicting opinions. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). The standard is direct and express conflict; not misapplication of the law. See Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003)(Wells, J. dissenting)(neither the concept nor words misapplication jurisdiction appear in Article V, Sec. 3(b), Fla. Const.) In order for a misapplication of the law to provide review jurisdiction, the misapplication must result in direct and express conflict with the decision of another district or this 5
Court. For there to be direct conflict, the majority opinions of the district courts must involve the same facts and decide the same legal issue. If the cases are factually distinguishable, there is no actual conflict. Ortiz v. State, 963 So. 2d 226 (Fla. 2007)(discharging jurisdiction because the alleged conflict decisions are factually distinguishable. ); Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)(discharging jurisdiction where the conflict decisions were distinguishable on their facts creating only apparent, not actual, conflict). Contrary to Petitioner s contention, the Second District s decision in Rosa v. State, 36 Fla. L. Weekly D482 (Fla. 2d DCA March 2, 2011), does not expressly and directly conflict with Brooks v. State, 918 So. 2d 181 (Fla. 2006). The Second District Court specifically rejected Petitioner s contention below that the strangulation in this particular case merged with the homicide to preclude a felony murder conviction. Rosa is both legally and factually distinguishable from Brooks and the more recent decision in Sturdivant v. State, 35 Fla. L. Weekly D 1993 (Fla. 1st DCA September 7, 2010). 1 There is no conflict. In Rosa, the Second District specifically agreed with the State s argument that Brooks was distinguishable because the 1 Sturdivant slapped the two-year-old victim, who was standing on a coffee table, on the back of the head with such force that the victim fell, hitting his head on the concrete wall. 6
evidence showed that the thirteen year old victim suffered multiple acts of abuse. The Second District stated, The State argues that Brooks is distinguishable because here the evidence showed that the victim suffered more than one act of violence. We agree. The record reflects that the injuries to Tomlinson's neck indicated that the attacker used multiple grips or holds. While the State's expert and the defense expert differed regarding whether the primary mode of asphyxiation was manual or forearm strangulation, both agreed that the attacker used multiple grips or holds. Tomlinson's expert opined that there were multiple applications of strangling force applied to Tomlinson's neck and the State's expert testified that the position of the attacker's hands changed several times and that Tomlinson's death was caused by more than one hold. Other evidence showed Tomlinson suffered multiple abrasions on various parts of his body, such as his right shoulder, wrist, hip, and shin, and on his left arm and hand, which the State's medical expert claimed, related in some fashion to the struggle that led to [Tomlinson's] death. Medical experts also opined that some of Tomlinson's injuries were caused by someone forcefully yanking off Tomlinson's pants and belt, or perhaps by the impact caused by Tomlinson falling or being pushed to the ground. Contusions in the muscles on Tomlinson's back were caused by a blunt object with significant force, possibly by the attacker holding Tomlinson down with one knee, or alternatively, by Tomlinson hitting the ground. Id. at 1. (emphasis added) To the contrary, Brooks involved the single act of stabbing which caused a single injury. Brooks v. State, 918 So. 2d at 7
198. This Court in Brooks distinguished the Fourth District s decision in Mapps v. State, 520 So. 2d 92 (Fla. 4th DCA 1988), on the basis that Mapps involved separate acts of striking, shaking, or throwing which led to the killing of the child and thus the aggravated child abuse could serve as the felony in the felony murder charge. Id. The Second District s decision in Rosa is consistent and more factually similar to Mapps. A review of Mapps explains there is no express or direct conflict between Rosa and Brooks. Mapps was convicted of first-degree felony murder based on the underlying felony of aggravated child abuse. The conviction was founded entirely on a felony murder theory. Mapps contended he could not be convicted of felony murder for a death occurring in the course of aggravated child abuse because the act of abuse was not separate and independent of the killing, i.e., it merged into the homicide. Id. at 93. This is the same argument Mr. Rosa made below. Noting that aggravated child abuse had been added to the list of specific underlying felonies that support a charge of first degree felony murder, the Mapps court reasoned, It is obvious that our legislature did not intend that the felonies specified in the felony-murder statute merge with the homicide to prevent conviction of the more serious charge of first-degree murder. Id. 8
In Lewis v. State, 34 So. 3d 183 (Fla. 1st DCA 1st DCA 2010), the First District concluded that the appellant's actions in holding her child beneath the surface of a swimming pool long enough to produce unconsciousness and then death could not be considered a single act. The First distinguished Brooks and additionally questioned whether drowning a child could ever be considered a single act. Id. at 187. As in Lewis, the strangulation in Rosa, especially given the physical evidence at trial, cannot be considered a single act. The Second District distinguished Brooks on that basis. Id. at 2 ( However, even without the evidence of multiple injuries, we would not necessarily conclude that this strangulation constituted a single act of aggravated child abuse ). The Second District concluded this case was analogous to Lewis. Id. The Second District found the strangulation itself involved multiple applications of strangling force applied to the victim s neck. cause the death. It took anywhere between 2 and 10 minutes to This is completely distinguishable from the single act of stabbing which caused the baby s death in Brooks. While Petitioner categorizes the multiple additional injuries he inflicted upon the victim as minor and argued they were [incidentally] caused during the strangulation so that there was a single act of violence, this is Petitioner s 9
categorization, and it is inconsistent with the physical evidence presented at trial, inconsistent with the expert testimony, and inconsistent with the Second District s findings. Under Petitioner s expansive reading of Brooks, there could never be a case where the merger doctrine did not apply where a person kills a child during the perpetration of aggravated child abuse, a reading contrary to the plain, unambiguous language of section 782.04(1)(a)2.h, Fla. Stat. In attempting to establish conflict, Petitioner argues the Second District misapplied the reasoning in Brooks, saying the Court improperly focused upon the victim s multiple minor injuries during the sole act of strangulation. (IB 9). This is an inaccurate reading of the Rosa decision and shows Petitioner actually seeks review of the Second District s decision under the guise of arguing conflict jurisdiction. The Second District did not find its decision conflicted with Brooks, as it did not certify conflict with that decision. Instead, the Second District, in dicta, agreed with the Lewis court that clarification was needed on whether Brooks holds that aggravated child abuse can serve as the underlying felony in a felony murder charge if only a single act of abuse let to the child s death. Rosa is not a single act abuse case as is Brooks. Rosa is not in express and direct conflict with Brooks or Sturdivant. 10
CONCLUSION Respondent respectfully requests that this Court deny jurisdiction. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to Brian Gonzalez, Esq., 2917 West Kennedy Blvd., Suite 120, Tampa Florida 33609, this 9th day of May 2011. CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P. 9.210(a)(2). Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL Donna S. Koch Assistant Attorney General Florida Bar No. 865974 Concourse Center 4 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813)287-7900 Facsimile: (813)281-5500 COUNSEL FOR RESPONDENT 11
APPENDIX 1. Opinion of the Second District in Rosa v. State, --- So.3d - ---, 2011 WL 711059, 36 Fla. L. Weekly D482 (Fla. 2d DCA March 2, 2011). 12