IN THE SUPREME COURT OF FLORIDA KEITH R. HARRIS, DC# 635563 Petitioner, vs. Case No. SC08-1367 L.T. No. 1D06-5125 THE FLORIDA PAROLE COMMISSION, Respondent. / RESPONDENT'S AMENDED BRIEF ON JURIDICTION On petition for discretionary review from a decision of the District Court of Appeal, First District of Florida SARAH J. RUMPH Attorney for the Respondent Assistant General Counsel Florida Parole Commission 2601 Blair Stone Road, C-222 Tallahassee, Florida 32399-2450 (850) 488-4460 Fla. Bar # 0653616
TABLE OF CONTENTS PAGE Table of Citations iii Preliminary Statement 1 Statement of the Case and the Facts 1 Statement of Issue 3 THIS COURT SHOULD DECLINE TO ACCEPT DISCRETIONARY JURIDICTION IN THIS CASE BECAUSE THE PETITIONER HAS FAILED TO DEMONSTRATE A DIRECT CONFLICT BETWEEN THE DISTRICT COURTS AND THIS COURT S OPINION WITH A SECOND OPINION OF THIS COURT. Summary of Arguments 3 Argument 4 Conclusion 5 Certificate of Service 7 Certificate of Compliance 7 ii
TABLE OF CITATIONS PAGE Fla. Dept. of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001) 3,4,5 Melton V. Wainwright, 363 So.2d 615 (Fla.1st DCA 1978) 2 Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1 997)(Criminal Division En Banc), affirmed, Sheley v. FPC, 720 So.2d 216 (Fla. 1998) 2,3,4,5 State ex rel. Fla Parole & Prob. Comm. v. Helton, 313 So.2d 413 (Fla. lst DCA 1975) 2 Sutton v. State, 975 So.2d 1073, 1078 (Fla. 2008) 4,5 OTHER Rule 9.030, Florida Rules of Appellate Procedure 5 Rule 9.030(a)(2)(A), Florida Rules of Appellate Procedure 4 Rule 9.100, Florida Rules of Appellate Procedure 2 iii
PRELIMINARY STATEMENT The Petitioner, Keith R. Harris, will be referred to as Petitioner in this brief. Respondent, the Florida Parole Commission, will be referred to either as the Respondent or the Commission. STATEMENT OF THE CASE AND THE FACTS 1. Petitioner is currently incarcerated in South Florida Reception Center, Florida Department of Corrections. 2. On September 11, 1979, Petitioner was convicted of Forgery in Broward County case no. 78-7030 and was sentenced to five (5) years in state prison. On June 28, 1982, Petitioner was convicted of Attempted Sexual Battery (count I), Kidnapping (count II), and Possession of a Weapon in the Commission of a Felony (count III) in Broward County case no. 81-9387 and was sentenced to thirty (30) years in state prison as to count I, and forty-five (45) years in state prison as to count II, concurrent as to both counts, but consecutive to the sentence in case no. 78-7030. In addition, the sentencing court recommended intense psychological and sexual evaluation and treatment. 3. On or about February 9, 2006, Petitioner filed a Petition for Writ of Mandamus in the Circuit Court of the Second Judicial Circuit, in and 1
for Leon County, case no. 2006CA000402, challenging the revocation of his conditional release. 4. On August 22, 2006, the Second Judicial Circuit Court entered its Order Denying Petition. The order stated, in part: HAVING considered the Petition for Writ of Mandamus. the Response filed by Respondent Florida Parole Commission, and all other pleadings filed in this case, the Court finds that the pleadings show that Petitioner is challenging the Commission s December 14, 2005 decision to revoke his parole supervision. In reviewing the revocation of the Petitioner s parole supervision, this Court sits in its appellate capacity. Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997)(Criminal Division En Banc), affirmed, Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998); see also Fla.R.App.P. 9.100. The standard for review of a parole revocation is whether the Parole Commission abused its discretion. State ex rel. Florida Parole and Probation Commission v. Helton, 313 So.2d 413 (Fla. lst DCA 1975); Melton V. Wainwright, 363 So.2d 615 (Fla.1st DCA 1978). ORDERED AND ADJUDGED that extraordinary relief, including mandamus and certiorari relief, regarding the Parole Commission s revocation of the petitioner s parole is hereby DENIED. No rehearing of this order will be considered. 5. On or about November 5, 2007, Petitioner sought further review by filing a Petition for Writ of Certiorari in the District Court of Appeal, Fourth District of Florida, case no. 1D06-5125. 6. On May 8, 2008, the District Court issued its opinion quashing the order of the circuit court and remanding the case back to the circuit court 2
so that a determination may be made as to whether the violations of conditional release were willful and substantial. STATEMENT OF THE ISSUE THIS COURT SHOULD DECLINE TO ACCEPT DISCRETIONARY JURIDICTION IN THIS CASE BECAUSE THE PETITIONER HAS FAILED TO DEMONSTRATE A DIRECT CONFLICT BETWEEN THE DISTRICT COURTS AND THIS COURT S OPINION WITH A SECOND OPINION OF THIS COURT. SUMMARY OF THE ARGUMENTS The Petitioner argues that this Court should accept jurisdiction because the First District Court of Appeal opinion in his case, which is in line with an opinion of this court, is in conflict with another opinion from this Court. Specifically, he argues that this Court s opinion in Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998) conflicts with this court s opinion in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001). He argues that if the procedure in Juliano was followed instead of the procedure in Sheley, then the First District Court could not have remanded the case for further determinations by the Commission. He further argues that if the Commission retries the case to make a willfulness finding, and the Court followed the procedure in Juliano, then such retrial would be barred by res judicata. 3
The Commission asserts that the lower court opinion in this case and this court s opinion in Sheley is not in direct conflict with this Court s opinion in Juliano. Furthermore, the Petitioner s argument ignores this Court s opinions in Sutton v. State, 975 So.2d 1073, 1078 (Fla. 2008), just decided January 31, 2008, where this Court has reaffirmed its holding in Sheley. The Petitioner did not establish express and direct conflict with this Court s opinions. Therefore, there is no discretionary jurisdiction available to the Petitioner. ARGUMENT For this Court to accept discretionary jurisdiction pursuant to Rule 9.030(a)(2)(A), Florida Rules of Appellate Procedure, it must be established that the decision of the district court expressly and directly conflict[s] with a decision of another district court of appeal or of the supreme court on the same question of law. However, the opinion of the district court involved in this case, as well as the opinion of this Court in Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998), do not contain language which is directly contradictory to the opinion of this Court in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001). Sheley started in the Circuit Court as a petition for a writ of mandamus challenging the Commission decisions involving presumptive parole release 4
dates. When the decision of the Circuit Court was appealed to the District Court, the District Court treated it as a petition for a writ of certiorari instead of as an appeal. This was based on the Florida Rules of Appellate Procedure 9.030 which states that certiorari jurisdiction may be involved for review of orders of circuit courts acting in their review capacity. This standard of review was recently reaffirmed by this Court in Sutton v. State, 975 So.2d 1073, 1078 (Fla. 2008). Juliano, which was decided after Sheley, was not in conflict with this decision. In Juliano the case started in the Circuit Court. The Circuit Court was not acting in its review capacity. Therefore, certiorari jurisdiction would not have been appropriate in that case. The Petitioner appears to be arguing that if Juliano applies, the remand back to the Commission by the District Court would be an inappropriate violation of res judicata or the law of the case doctrine. These doctrines are independent of the standard of review. However, whether the decision of the District Court in this case violates either doctrine is not properly before this court. For purposes of this Brief, only potential conflicts between opinions are before this Court. Sheley and Juliano are harmonious with each other and not in conflict. In Sheley the Circuit Court was acting in its review capacity and in Juliano 5
the Circuit Court was not acting in its review capacity. The petitioner has only one full review on the merits. When reviewing a decision of the Commission, the full review on the merits is in the Circuit Court. When reviewing a decision of the Circuit Court which started in the Circuit Court, the full review on the merits is in the District Court. CONCLUSION The Petitioner failed to establish that the decision of the First District Court in this case, which used mandatory precedent from this Court in its decision, was in conflict with any other decision of this Court. The decisions the Petitioner attempts to argue are conflicting are harmonious. Based on the foregoing arguments and citations of legal authorities, Respondent respectfully urges this Honorable Court to decline accepting discretionary jurisdiction in this case. Respectfully submitted, SARAH J. RUMPH Attorney for the Respondent Assistant General Counsel Florida Parole Commission 2601 Blair Stone Road, C-222 Tallahassee, Florida 32399-2450 (850) 488-4460 Fla. Bar # 0653616 6
CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT a true copy of the foregoing was furnished by U.S. Mail to: Keith R. Harris, DC# 635563, South Florida Reception Center, 14000 N.W. 41st Street, Miami, Florida 33178, this day of, 2008. SARAH J. RUMPH Assistant General Counsel CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY THAT the instant pleading was produced in Times New Roman, 14-point font. SARAH J. RUMPH Assistant General Counsel 7