Electronically Filed 05/17/2013 11:04:14 AM ET RECEIVED, 5/17/2013 11:08:35, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA MARK ERIC OSTERBACK, Petitioner, v. CASE NO. SC13-812 STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT PAMELA JO BONDI ATTORNEY GENERAL WESLEY HEIDT ASSISTANT ATTORNEY GENERAL Florida Bar No. 773026 KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Florida Bar No. 618550 444 Seabreeze Blvd. Fifth Floor Daytona Beach, FL 32118 (386) 238-4990 Fax (386) 238-4997 COUNSEL FOR RESPONDENT
TABLE OF CONTENTS PAGE NO. TABLE OF CITATIONS..................... ii STATEMENT OF FACTS...................... 1 SUMMARY OF THE ARGUMENT.................... 2 ARGUMENT: THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT..................... 3 CONCLUSION.......................... 7 CERTIFICATE OF SERVICE.................... 7 CERTIFICATE OF FONT COMPLIANCE................ 7 i
TABLE OF CITATIONS CASES PAGE NO Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958).............. 4 Jenkins v. State, 385 So.2d 1356, 1357 (Fla. 1980)............. 4 Jordan v. State, 760 So.2d 973 (Fla. 2d DCA 2000)............. 4 Osterback v. State, 109 So.3d 887 (Fla. 5th DCA 2013)............ 1,5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)................ 4 Spencer v. State, 751 So. 2d 47 (Fla. 1999)................ 3,5 OTHER AUTHORITIES: Article V, section (3)(b)(3), Fla. Const............ 4 ii
STATEMENT OF FACTS Respondent rejects Osterback s Statement of the Case and Facts because it goes well beyond the four corners of the district court decision. 1 Respondent will rely on the following: Osterback is seeking review of a district court decision that was rendered after he was ordered to show cause why he should not be barred from further pro se pleadings. The order was issued after the district court affirmed an order dismissing Osterback s successive 3.850 motion. 2 Osterback v. State, 109 So.3d 887 (Fla. 5th DCA 2013). The per curiam opinion states: After affirming the order dismissing Mark Eric Osterback s latest rule 3.850 motion for postconviction relief based on newly discovered evidence, this court issued an order directing Osterback to show cause why he should not be barred from further pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999). Osterback filed a response and a motion for rehearing, asserting that his latest appeal possessed merit and that this court overlooked or misapprehended several issues. However, as this is Osterback s fifth meritless pro se postconviction appeal in this court attacking his judgment or sentence in Seminole County Case No. 88-3408-CFA, we conclude that Osterback is abusing the judicial process and should be barred from further pro se filings. We now prohibit Mark Eric Osterback from filing any more pro se petitions or appeals concerning Seminole 1 Osterback states that four days after the order to show cause was issued, the district court affirmed the order on appeal. Respondent will go outside the four corners of the opinion just to clarify that Osterback was given thirty days to respond to the order to show cause. See http://199.242.69.70/pls/ds/ds_docket. 2 That order was affirmed in Osterback v. State, 97 So.3d 844 (Fla. 5th DCA 2013)(table). 1
County Case No. 88-3408-CFA. The clerk of this court is directed not to accept any further pro se papers from Osterback that violate this prohibition. Any additional petitions or notices of appeal regarding this case will be accepted only if signed by a member in good standing of The Florida Bar. See Floyd v. State, 62 So.3d 1228 (Fla. 5th DCA 2011). Osterback v. State, 109 So.3d 887 (Fla. 5th DCA 2013). 2
SUMMARY OF ARGUMENT This court does not have jurisdiction to review this case. The decision of the Fifth District Court of Appeal in this case does not expressly and directly conflict with a decision of this Court or any district court of appeal. 3
ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANY OTHER COURT. Osterback asserts that the decision of the Fifth District Court of Appeal conflicts with this Court's decision in Spencer v. State, 751 So. 2d 47 (Fla. 1999), and the decision of the Second District Court of Appeal in Jordan v. State, 760 So.2d 973 (Fla. 2d DCA 2000). This Court has jurisdiction under article V, section (3)(b)(3) of the Florida Constitution where a decision of a district court "expressly and directly conflicts" with a decision of this Court or another district court. This Court has repeatedly held that such conflict must be express and direct, that is, "it must appear within the four corners of the majority decision." Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In Jenkins v. State, 385 So.2d 1356, 1357 (Fla. 1980) this Court quoted from its earlier decision in Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958): We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed...it was never intended that the district courts of appeal should be intermediate courts...to fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts 4
(emphasis supplied). of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy. The district court in the instant case prohibited Osterback from filing further pro se pleadings, after it had issued him a thirty day order to show cause why he should not be precluded from such filings. The district court stated that in response to its order, Osterback had filed a response and a motion for rehearing, claiming that his latest appeal possessed merit. The district court found, however, that this was Osterback s fifth meritless pro se postconviction appeal, and barred him from further pro se filings. Osterback v. State, 109 So.3d 887 (Fla. 5th DCA 2013). In other words, the district court gave Osterback thirty days to respond to its order, and after reviewing his response to the order, his motion for rehearing in the underlying appeal, as well as the merits of the fifth motion for postconviction relief, issued its bar on further pro se pleadings. That is all that is required by Spencer, supra and Jordan, supra. There is no conflict on the face of the decision of the Fifth District Court of Appeal. Given the fact that the Fifth District Court is a court of final appellate jurisdiction and given the very limited and restricted bases for this Court's exercise of its discretionary jurisdiction based upon conflict, it cannot be said 5
that Petitioner has established any good cause for the exercise of that jurisdiction. There is no express or direct conflict, and in fact, the decision of the Fifth District in this case is consistent with the decisions of this Court. 6
CONCLUSION Based on the arguments and authorities presented herein, the State requests this Court decline to accept jurisdiction. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing Jurisdictional Brief of Respondent has been furnished by U.S. Mail to Petitioner, Mark Eric Osterback, DC# 745238, Sumter Correctional Institution, 9544 County Road 476B, Bushnell, FL 33513, this 17th day of May, 2013. CERTIFICATE OF 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 /s/wesley Heidt WESLEY HEIDT ASSISTANT ATTORNEY GENERAL Fla. Bar No. 773026 /s/kellie A. Nielan KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Fla. Bar No. 618550 444 Seabreeze Boulevard 5th Floor Daytona Beach, FL 32118 (386) 238-4990 (386) 238-4997 (FAX) CrimAppDAB@MyFloridaLegal.com COUNSEL FOR RESPONDENT 7
IN THE SUPREME COURT OF FLORIDA MARK ERIC OSTERBACK, Petitioner, v. CASE NO. SC13-812 STATE OF FLORIDA, Respondent. / APPENDIX KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL Fla. Bar No. 618550 444 Seabreeze Boulevard 5th Floor Daytona Beach, FL 32118 (386) 238-4990 (386) 238-4997 (FAX) CrimAppDAB@MyFloridaLegal.com COUNSEL FOR RESPONDENT
109 So.3d 887, 38 Fla. L. Weekly D669 (Cite as: 109 So.3d 887) District Court of Appeal of Florida, Fifth District. Mark Eric OSTERBACK, Appellant, v. STATE of Florida, Appellee. No. 5D11 3568. March 22, 2013. 3.850 Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge. Mark E. Osterback, Bushnell, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. Prior report: 97 So.3d 844. PER CURIAM. ON ORDER TO SHOW CAUSE After affirming the order dismissing Mark Eric Osterback's latest rule 3.850 motion for postconviction relief based on newly discovered evidence, this court issued an order directing Osterback to show cause why he should not be barred from further pro se filings in this court. See State v. Spencer, 751 So.2d 47 (Fla.1999). Osterback filed a response and a motion for rehearing, asserting that his latest appeal possessed merit and that this court overlooked or misapprehended several issues. However, as this is Osterback's fifth meritless pro se postconviction appeal in this court attacking his judgment or sentence in Seminole County Case No. 88 3408 CFA, we conclude that Osterback is *888 abusing the judicial process and should be barred from further pro se filings. We now prohibit Mark Eric Osterback from filing with this court any more pro se petitions or appeals concerning Seminole County Case No. 88 3408 CFA. The clerk of this court is directed not to accept any further pro se papers from Osterback that violate this prohibition. Any additional petitions or notices of appeal regarding this case will be accepted only if signed by a member in good standing of The Florida Bar. See Floyd v. State, 62 So.3d 1228 (Fla. 5th DCA 2011). Future pro se filings PROHIBITED; CERTIFIED opinion forwarded to Department of Corrections. 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
109 So.3d 887, 38 Fla. L. Weekly D669 (Cite as: 109 So.3d 887) PALMER, LAWSON and EVANDER, JJ., concur. Fla.App. 5 Dist.,2013. Osterback v. State 109 So.3d 887, 38 Fla. L. Weekly D669 END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.