IN THE SUPREME COURT OF FLORIDA CASE NO. SC07-901 STATE OF FLORIDA, Petitioner, vs. ERIC S. SMITH, Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ON PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * PETITIONER S BRIEF ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida RICHARD L. POLIN Bureau Chief, Criminal Appeals Florida Bar No. 0230987 DOUGLAS J. GLAID Senior Assistant Attorney General Florida Bar No. 0249475 444 Brickell Avenue, Ste. 650 Miami, Florida 33131 Tel. (305) 377-5441 Counsel for Petitioner
TABLE OF CONTENTS TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND FACTS...1-3 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5-8 THIS COURT SHOULD ACCEPT DISCRETIONARY JURISDICTION IN THIS CAUSE SINCE THE DECISION BELOW EXPRESSLY AFFECTS TWO CLASSES OF CONSTITUTIONAL OR STATE OFFICERS, NAMELY, STATE ATTORNEYS AND SHERIFFS...5-8 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF FONT COMPLIANCE...10 ii
CASES TABLE OF CITATIONS PAGE Jenny v. State, 447 So. 2d 1351 (Fla. 1984)...7 Murphy v. Mack, 358 So. 2d 822 (Fla. 1978)... 7 Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980)... 7 Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974)... 5-7 STATUTES 943.325(11), Fla. Stat. (2003)... 1-2, 4-7 OTHER AUTHORITIES Art. V, Section 3(b)(3), Fla. Const. (1980)... 5 Art. V, Section 17, Fla. Const. (1980)... 5 Art. VIII, Section 1(d), Fla. Const. (1980)... 7 Fla. R. App. P. 9.030(a)(2)(A)(iv)... 5 Fla. R. App. P. 9.210(a)(2)...10 iii
STATEMENT OF THE CASE AND FACTS Having been charged with the offenses of aggravated battery (count 1) and aggravated stalking (count 2), Respondent entered a guilty plea on March 21, 1997, to the aggravated battery charge and was placed on community control for a period of one (1) year followed by two (2) years probation. (A. 2). As special conditions of his probation, Defendant was ordered to attend an anger control program and stay away from the victim and the victim s family. (A. 2). Later that year, the trial court granted a motion filed by Defendant to convert his community control to probation. (A. 2). Thereafter, on October 20, 1998, Defendant s motion for early termination of probation was granted by the trial court. (A. 2). In May 2005, the State filed an ex parte motion requesting the trial court to order 43 persons, including Defendant, to submit compulsory oral swab samples pursuant to 943.325(11), Fla. Stat. (2003) 1, for DNA testing purposes, which the trial 1 Subsection (11) provides: If the Department of Law Enforcement determines that a convicted person who is required to submit blood specimens or other approved biological specimens under this section has not provided the specimens, the department, a state attorney, or any law enforcement agency may apply to the circuit court for an order that 1
court granted. (A. 2). Although the trial court initially sustained Respondent s written objection to the State s motion, upon the State s oral request for rehearing, the trial court subsequently reversed itself and entered a written order requiring Respondent to comply with the order requiring him to submit to an oral swab DNA test. (A. 3). Following the granting of the State s motion by the trial court, Respondent appealed to the Third District Court of authorizes taking the convicted person into custody for the purposes of securing the required specimens. The court shall issue the order upon a showing of probable cause. Following the issuance of the order, the convicted person shall be transported to a location acceptable to the agency that has custody of the person, the blood specimens or other approved biological specimens shall be withdrawn or collected in a reasonable manner, and the person shall be released if there is no other reason to justify retaining the person in custody. An agency acting under authority of an order under this section may, in lieu of transporting the convicted person to a collection site, secure the blood specimens or other approved biological specimens at the location of the convicted person in a reasonable manner. If the convicted person resists providing the specimens, reasonable force may be utilized to secure the specimens and any person utilizing such force to secure the specimens is not civilly or criminally liable for actions taken. The agency that takes the convicted person into custody may, but is not required to, transport the person back to the location where the person was taken into custody. 2
Appeal. On appeal, the district court reversed the trial court s order. (A. 1-4). In this opinion, the district court held that since Respondent was neither incarcerated nor under any form of court-ordered supervision, he did not fall within the plain language of the statute s purview. (A. 4). Thereafter, following the denial of the State s motion for rehearing, the State timely filed its notice to invoke the discretionary jurisdiction of this Court. This jurisdictional brief followed. 3
SUMMARY OF THE ARGUMENT This court should accept discretionary jurisdiction in this cause since the decision below expressly affects two classes of constitutional officers, namely, state attorneys and sheriffs. The decision of the Third District directly and generally affects the rights and duties of state attorneys who exercise their discretion to file motions for custodial orders under 943.325(11), Fla. Stat., in order to collect DNA samples from convicted persons. The decision therefore has an undeniable statewide impact on all state attorneys in Florida. Moreover, the decision also affects all sheriffs in the state by limiting law enforcement s ability to monitor and solve crimes by depriving law enforcement of a larger DNA database of convicted offenders. As such, this Court should exercise its discretionary jurisdiction in this case in order to provide clear and controlling guidance to the various state attorneys and sheriffs throughout the State of Florida with regard to their powers and duties under the DNA statute, as well as to maintain uniformity of decisions throughout the state. 4
ARGUMENT THIS COURT SHOULD ACCEPT DISCRETIONARY JURISDICTION IN THIS CAUSE SINCE THE DECISION BELOW EXPRESSLY AFFECTS TWO CLASSES OF CONSTITUTIONAL OFFICERS, NAMELY, STATE ATTORNEYS AND SHERIFFS. Petitioner seeks review of the district court s opinion pursuant to Article V, Section 3(b)(3), Fla. Const. (1980) and Fla. R. App. P. 9.030(a)(2)(A)(iii), which provides that the discretionary jurisdiction of the Supreme Court may be sought to review a decision of a district court of appeal which expressly affects a class of constitutional or state officers. See Spradley v. State, 293 So. 2d 697, 701 (Fla. 1974). It is beyond dispute that state attorneys are constitutional officers. Article V, Section 17 of the Florida Constitution provides, in pertinent part, that a state attorney shall be elected in each judicial circuit for a term of four years and that the state attorney shall be the prosecuting officer of all trial courts in that circuit and shall perform other duties prescribed by general law. It is clear that the district court s instant decision expressly affected state attorneys as a class. For, 943.325(11), Fla. Stat., the statutory section quoted by the Third District in its opinion, expressly gives state attorneys 5
the power to apply to the circuit court for an order authorizing the arrest of persons who have not provided a DNA sample as required by the statute. The district court s decision expressly affects this power by its holding that persons (like Respondent) who are neither incarcerated nor on any form of court-ordered supervision, are not subject to the statute s DNA sample collection requirement. The obvious import of this holding is not limited or confined to the power of the state attorney for the Eleventh Judicial Circuit in Miami-Dade County involved in this case, but rather has the potential for generally affecting all state attorneys who exercise their discretion to file motions for custodial orders under 943.325(11), Fla. Stat., in order to collect the required DNA samples. Furthermore, this is so regardless of the specific facts involved in the instant case, i.e., whether or not Respondent happened to be incarcerated or under court-ordered supervision. As this Court instructed in Spradley, To vest this Court with certiorari jurisdiction, a decision must directly and, in some way, exclusively affect the duties, powers, validity, formation, termination or regulation of a particular class of constitutional or state officers. This may be a decision in a case in which the class, or some of its members, is directly involved as a party. It may also be in a case in which no member of the class is a party if 6
the decision generally affects the entire class in some way unrelated to the specific facts of that case. Id., 293 So. 2d at 701. Since the Third District s decision interpreting 943.325(11), Fla. Stat. (2003), the only existing decision which interprets this statutory subsection, directly affects the rights and duties of state attorneys under the DNA statute, it consequently has an undeniable statewide impact on all state attorneys in Florida. See Jenny v. State, 447 So. 2d 1351 (Fla. 1984) (district court s construction of immunity statute expressly affected state attorneys, a class of constitutional officers); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980) (court granted jurisdiction where decision of district court of appeal directly affected the rights and duties of a class of constitutional officers state attorneys). In addition to state attorneys, the Third District s decision also affected another class of constitutional officers sheriffs. See Article VIII, Section 1(d), Fla. Const.; Murphy v. Mack, 358 So. 2d 822 (Fla. 1978). Section 943.325(11), Fla. Stat. (2003), expressly gives a state attorney, or any law enforcement agency the power to apply to the circuit court for an order authorizing taking convicted persons into custody for 7
the purpose of securing the required specimens for DNA testing. Although no sheriff was involved in the instant case, the district court s opinion nevertheless affects sheriffs statewide, as the decision, again, is the only DCA opinion addressing the subject. The district court s construction of the statute affects all sheriffs in the state by limiting law enforcement s ability to monitor and solve crimes by depriving law enforcement of a larger DNA database of convicted offenders. Accordingly, this Court should exercise its discretionary jurisdiction in this case in order to provide clear and controlling guidance to the various state attorneys and sheriffs throughout the State of Florida with regard to the application of the DNA statute, and to maintain uniformity of decisions throughout the state. 8
CONCLUSION Wherefore, based upon the foregoing argument and authorities cited herein, Petitioner respectfully requests that this Honorable Court to accept discretionary jurisdiction of this cause. Respectfully submitted, BILL McCOLLUM Attorney General RICHARD L. POLIN Senior Assistant Attorney General DOUGLAS J. GLAID Florida Bar No. 0249475 Senior Assistant Attorney General Department of Legal Affairs 444 Brickell Avenue, Ste. 650 Miami, Florida 33131 (305) 377-5441 Facsimile (350) 377-5665 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petitioner's Brief on Jurisdiction was furnished by U.S. Mail to Brian H. Bieber, Esquire, Hirschhorn & Bieber, P.A., Counsel for Respondent, 550 Biltmore Way, Penthouse Three A, Coral Gables, FL 33134, on this day of June, 2007. DOUGLAS J. GLAID Senior Assistant Attorney General CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the 12 point Courier New font used in this brief complies with the requirements of Fla. R. App. P. 9.210(a)(2). DOUGLAS J. GLAID Senior Assistant Attorney General 10
APPENDIX