IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Petitioner, v. Case No. SC10-2418 RANDY SCOTT RIESEL, Respondent. / JURISDICTIONAL BRIEF OF RESPONDENT NANCY A. DANIELS PUBLIC DEFENDER DAVID P. GAULDIN ASSISTANT PUBLIC DEFENDER FLORIDA BAR NUMBER 0261580 LEON COUNTY COURTHOUSE SUITE 401 301 SOUTH MONROE STREET TALLAHASSEE, FLORIDA 32301 (850) 606-8500 ATTORNEY FOR RESPONDENT
TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITATIONS...ii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 JURISDICTIONAL ISSUES PAGE THE DISTRICT COURT OF APPEAL S DECISION IN RIESEL V. STATE, 48 SO.3D 885 (FLA. 1 ST DCA 2010), DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION IN MORGAN V. STATE, 42 SO.3D 862 (FLA. 4 TH DCA 2010), AND IT DOES NOT MISAPPLY MONTGOMERY V. STATE, 39 SO.3D 252 (FLA. 2010)...4 CONCLUSION...8 CERTIFICATE OF SERVICE...8 CERTIFICATE OF FONT SIZE...8 APPENDIX...9 i
TABLE OF CITATIONS CASES PAGE(S) In Re Amendments to Standard Jury Instructions in Criminal Cases - Instructions 7.7, 41 So.3d 853 (Fla. 2010)... 2 Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1 st DCA 2004)... 4 Montgomery v. State, 39 So.3d 252 (Fla. 2010)... passim Morgan v. State, 42 So.3d 862 (Fla. 4 th DCA 2010)... 3,4,5 Riesel v. State, 48 So.3d 885 (Fla. 1 st DCA 2010)... passim State v. Joubert, 847 So.2d 1023 (Fla. 2 nd DCA 2003).... 4 ii
IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Petitioner, v. Case No. SC10-2295 RANDY SCOTT RIESEL, Respondent. / PRELIMINARY STATEMENT The Petitioner shall be referred by the term the State. The Respondent shall be referred either as the Respondent or by his actual name ( Randy Riesel ). 1
STATEMENT OF THE CASE AND FACTS The Respondent accepts the facts as delineated in Riesel v. State, 48 So.3d 885 (Fla. 1 st DCA 2010). 2
SUMMARY OF THE ARGUMENT This Court should decline to exercise jurisdiction in this case because the facts set forth in Morgan v. State, 42 So.3d 862 (Fla. 4 th DCA 2010), do not establish an express and direct conflict with the First District Court of Appeal s opinion in Riesel v. State. Additionally, this Court should decline to accept jurisdiction on the basis that the opinion in this case misapplies this Court s opinion in Montgomery v. State, 39 So.3d 252 (Fla. 2010), because the holding and the language in this case is in agreement with this Court s latest amendment to the manslaughter jury instruction and thus does not misapply the law in Montgomery v. State. 3
JURISDICTIONAL ISSUE THE DISTRICT COURT OF APPEAL S DECISION IN RIESEL V. STATE, 48 SO.3D 885 (FLA. 1 ST DCA 2010), DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION IN MORGAN V. STATE, 42 SO.3D 862 (FLA. 4 TH DCA 2010), AND IT DOES NOT MISAPPLY MONTGOMERY V. STATE, 39 SO.3D 252 (FLA. 2010). Standard of Review: Jurisdiction is a legal question to be determined by the de novo standard of review. Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1 st DCA 2004), and State v. Joubert, 847 So.2d 1023 (Fla. 2 nd DCA 2003). Argument: The State argues that the opinion in Riesel v. State, 48 So.3d 885 (Fla. 1 st DCA 2010), expressly and directly conflicts with the decision of Morgan v. State, 42 So.3d 862 (Fla. 4 th DCA 2010). The State also argues the Florida First District Court of Appeal in Riesel v. State, supra, misapplied this Court s decision in Montgomery v. State, 39 So.3d 252 (Fla. 2010), and that that is an independent basis of jurisdiction for this Court. The State is wrong on both accounts. First, the decision in Riesel v. State, supra, does not expressly and directly conflict with the decision in Morgan v. State, supra. 4
It is not clear that the jury instruction in Morgan was the same jury instruction given in Riesel. Morgan is a brief and cryptic opinion which fails to specify what the instruction given in Morgan actually was: The instruction given by the trial court in this case included language clarifying that a conviction for attempted manslaughter by act does not require proof of an intent to kill. The attempted manslaughter instruction given by the trial court was thus consistent with the 2008 amendment to the standard jury instruction on manslaughter by intentional act, In Re Standard Jury instructions in Criminal Cases - Report No. 2007-10, 997 So.2d 403, 403 (Fla. 2008). See Montgomery v. State, So.3d (Fla. 1 st DCA 2009), approved by 39 So.3d 252 (Fla. 2010). Thus, the facts (such that they are) set forth in Morgan, are insufficient to establish that the jury instruction interpreted by the Fourth District Court of Appeal in Morgan is the same instruction interpreted by the First District Court of Appeal in this case, and consequently the State cannot show an express and direct conflict. As the State notes on page three of its Jurisdictional Brief, the conflict between decisions must be express and direct and it must appear within the four corners of the majority decision. There simply is no express and direct conflict in the opinion of Riesel with the opinion of Morgan because it is 5
impossible to compare the language of the jury instruction given in Morgan (unknown) with the language of the jury instruction given in Riesel (known). Because the State cannot show an express and direct conflict between the two opinions, this Court should decline to accept jurisdiction. The State also argues the independent basis of jurisdiction that the Florida First District Court of Appeal in Riesel v. State misapplied this Court s opinion in Montgomery v. State, supra, when it held that [what the petitioner has termed the Hall instruction ] failed to eliminate the requirement that the jury find intent... (Fn. 2 of Riesel, Petitioner s brief at 7). Riesel did not misapply the holding in Montgomery. What occurred was that In Re Amendments to Standard Jury Instructions in Criminal Cases - Instructions 7.7, 41 So.3d 853 (Fla. 2010), modified the manslaughter instruction and removed the very language used in Riesel to improperly convict Riesel. The new instruction removed the term intentionally in the phrase intentionally caused the death (of the victim) and modified the phrase that it is not necessary for the State to prove that the defendant had premeditated intent to cause death, 6
only an intent to commit and [sic] act which caused death, by the following: In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had an premeditated intent to cause death, only an intent to commit an act that was not justified or excusable and which caused death. See Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007). Thus, this Court recognized, in its latest modified instructions, that the language in the Hall instruction was essentially the same language which was found to be improper in Montgomery. The opinion in Riesel did not misapply this Court s opinion in Montgomery, and should not serve as a basis for the Court to accept jurisdiction, particularly where the opinion in Riesel is in conformity with this Court s latest jury instruction on the issue. 7
CONCLUSION Based on the foregoing arguments and authorities, this Court should decline to accept jurisdiction. CERTIFICATE OF SERVICE I HEREBY CERTIFY a copy of the foregoing has been furnished by Electronic transmission to THOMAS H. DUFFY, Assistant Attorney General, Counsel for the State, The Capitol, Tallahassee, Florida 32399-1050, and by U.S. Mail to Petitioner, Randy Scott Riesel, #P40168, Santa Rosa Correctional Institution Annex, 5850 East Milton Road, Milton, FL 32583, on this day of January 2011. CERTIFICATE OF FONT SIZE I HERBY CERTIFY that, pursuant to Rule 9.100(1), Fla. R. App. P., this brief was typed in Courier New 12 point. Respectfully submitted, NANCY DANIELS PUBLIC DEFENDER SECOND JUDICIAL CIRCUIT DAVID P. GAULDIN Fla. Bar No. 0261580 Assistant Public Defender ATTORNEY FOR PETITIONER Leon County Courthouse Fourth Floor, North 301 South Monroe Street Tallahassee, Florida 32301 (850) 606-8500 8
IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Petitioner, v. Case No. SC10-2295 RANDY SCOTT RIESEL, Respondent. / APPENDIX TO JURISDICTIONAL BRIEF OF RESPONDENT Appendix Document A Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010) 9