IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC10-1056 TIMOTHY SCOTT HARRIS, Petitioner vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON JURISDICTION BILL McCOLLUM Attorney General Tallahassee, Florida JAMES J. CARNEY Senior Assistant Attorney General West Palm Beach, Florida JEANINE M. GERMANOWICZ Assistant Attorney General Florida Bar No. 0019607 1515 N. Flagler Drive Suite 900 West Palm Beach, Florida 33401-3432 Telephone: (561) 837-5000 jeanine.germanowicz@myfloridalegal.com Counsel for Respondent
TABLE OF CONTENTS TABLE OF AUTHORITIES...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1-2 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3-8 THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION TO REVIEW THE DECISION IN THE INSTANT CASE AS THE DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THE SUPREME COURT OR OF ANY OF THE OTHER DISTRICT COURTS OF APPEAL. (Restated). CONCLUSION...8 CERTIFICATE OF SERVICE...9 CERTIFICATE OF TYPE SIZE AND STYLE...9 ii
TABLE OF AUTHORITIES Council v. State, 980 So.2d 1205 (Fla. 4th DCA 2008)...2 Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983)...4 Duddles v. State, 845 So. 2d 939 (Fla. 5 th DCA 2003)...7-8 Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)...3, 5 Hardee v. State, 534 So. 2d 706 (Fla. 1998)...2, 5, 7 Harris v. State, 32 So. 3d 730, 730-31 (Fla. 4 th DCA 2010)...2, 3, 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)...3, 6, 7 Mancini v. State, 312 So. 2d 732 (Fla. 1975)...4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)...5 Morningstar v. State, 405 So. 2d 778 (Fla. 4th DCA 1981), affirmed, 428 So. 2d 220 (Fla. 1982)...4, 8 Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989)...1 OTHER Article 5, Section 3(b)(3) Fla. Const....3, 6, 7 Florida Rule of Appellate 9.040(c)...2 Florida Rule of Appellate 9.141(b)...2 iii
PRELIMINARY STATEMENT Petitioner was the defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal. In this brief, the parties shall be referred to as they appear before this Honorable Court of Appeal except that Respondent may also be referred to as the State. In this brief, the symbol "A" will be used to denote the appendix. The symbol IB will be used to denote the Initial Brief on Jurisdiction and it may be followed by the appropriate page number for that document. STATEMENT OF THE CASE AND FACTS The State cannot accept Petitioner's Statement of the Case and Facts as set forth in his brief on jurisdiction for purposes of this Court's decision on whether to accept or decline jurisdiction. The Statement of the Case and the Facts is unduly argumentative and contains matters immaterial and impertinent to the controversy between the parties. See Williams v. Winn-Dixie Stores, Inc., 548 So. 2d 829 (Fla. 1st DCA 1989)(striking Williams' initial brief because it was unduly argumentative and contained matters immaterial and impertinent to the controversy 1
between the parties). Moreover, Petitioner refers to a number of facts that are not encompassed within the four corners of the opinion of which Petitioner seeks review. See Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1998) ("[F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion"). Instead, for purposes of the Statement of the Case and Facts, the State replicates the opinion in its entirety. We summarily affirm the circuit court's denial of Harris's postconviction motion and motion for rehearing. Harris's petition for writ of certiorari is hereby redesignated as a final appeal pursuant to Fla. R.App. P. 9.040(c) and 9.141(b). See Council v. State, 980 So.2d 1205 (Fla. 4th DCA 2008). Affirmed. Harris v. State, 32 So. 3d 730, 730-31 (Fla. 4 th DCA 2010)(per curiam). Following the issuance of this opinion, this proceeding seeking discretionary review of the district court s opinion ensued. SUMMARY OF THE ARGUMENT This Court should decline to accept jurisdiction to review the instant case because the opinion of the Court of Appeal of the State of Florida, Fourth District, does not expressly conflict with a decision of this Court or of another district court of appeal on the same point of law. 2
ARGUMENT THIS COURT SHOULD DECLINE TO ACCEPT JURISDICTION TO REVIEW THE DECISION IN THE INSTANT CASE AS THE DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THE SUPREME COURT OR OF ANY DISTRICT COURT. (Restated). Petitioner appears to assert that this Court should accept jurisdiction of this case because the opinion of the District Court of Appeal of the State of Florida, Fourth District, (hereinafter Fourth District ) in Harris v. State, 32 So. 3d 730, 730-31 (Fla. 4 th DCA 2010), is in express and direct conflict with its own decisions and those of other district courts of appeal or of the United States Supreme Court on the same points of law. Petitioner s assertion is meritless as the instant decision is not in express and direct conflict with the decisions of any court on the same point of law. It is well settled that in order to establish conflict jurisdiction, the decision sought to be reviewed must expressly and directly create conflict with a decision of another District Court of Appeal or of the Florida Supreme Court on the same question of law. Article 5, Section 3(b)(3) Fla. Const.; Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Thus, conflict jurisdiction is properly invoked only when the district court announces a rule 3
of law which conflicts with another court s pronouncement, or when the district court applies a rule of law to produce a different result in a case which involves substantially the same facts of another case. Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975). "Obviously two cases can not be in conflict if they can be validly distinguished." Morningstar v. State, 405 So. 2d 778, 783 (Fla. 4th DCA 1981)(Anstead J. concurring), affirmed, 428 So. 2d 220 (Fla. 1982). See also, Department of Revenue v. Johnston, 442 So. 2d 950 (Fla. 1983). Initially, it must be noted that, in his Initial Brief in support of his argument that this Court should accept jurisdiction based on express and direct conflict, Petitioner engages in a recitation of facts which are not encompassed within the four corners of the opinion of which Petitioner seeks review. For example, Petitioner alleges, among other things, that he was not advised of his Miranda warnings and should have been, (IB 3), that the arrest conviction, plea deal and sentence are based on an illegal obtained confession in which the law enforcement did not advised Miranda warnings, (IB 4), and that the State contends that since Petitioner was a law enforcement officer, they were not required to give him Miranda, (IB 4). However, these alleged facts are not included anywhere in the opinion of the Fourth District. Since 4
Petitioner seeks review based on facts outside the four corners of the opinion, Petitioner s arguments are improper and Petitioner cannot establish conflict jurisdiction thereby. See, Hardee v. State, 534 So. 2d 706, 708 n.* (Fla. 1998) ("[F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion). This Court should decline jurisdiction for this reason alone. Were this not enough, as argument, Petitioner provides only a Statement of Case and Summary of Argument in which he does not cite to a single opinion besides Miranda. 1 (IB 3, 4) Thus, Respondent is at a loss as to exactly what opinions of this Court or of any other district court Petitioner contends are in express and direct conflict with the opinion in the instant case. The mere reference to Miranda will not suffice as, being a decision of the United States Supreme Court, it is patently not a decision of this Court or of any other district court of this State. Again, the decision sought to be reviewed must expressly and directly create conflict with a decision of another District Court of Appeal or of the Florida Supreme Court on the same question of law. Florida Star v. B.J.F., 530 So. 2d 286, 288-89 (Fla. 1988)( we have operated within the intent of the constitution's framers, as we perceive it, in refusing to 1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). 5
exercise our discretion where the opinion below establishes no point of law contrary to a decision of this Court or another district court. )(emphasis added). See also, Article 5, Section 3(b)(3) Fla. Const.; Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Even if Respondent were to refer to Petitioner s list of Citations, Respondent would still be at a loss since Respondent does not know which opinions on the list are the ones that Petitioner is alleging are in express and direct conflict with the opinion in the instant case.(ib 1) It must further be noted that Petitioner has also not explained exactly how said opinions on the list are in express and direct conflict with the instant opinion. Moreover, to the extent that Petitioner lists cases issued by the District Court of Appeal of the State of Florida, Fourth District (hereinafter the Fourth District ), in his list of Citations and also refers to numerous cases [ of the 4 th DCA court which involve when Miranda must be given, Respondent would note that Petitioner cannot rely on cases which were also issued by the Fourth District to establish conflict jurisdiction. (IB 1, 4) Again, the decision by the Fourth District of which Petitioner seeks review must expressly and directly create conflict with a decision of another District 6
Court of Appeal or of the Supreme Court on the same question of law. Article 5, Section 3(b)(3) Fla. Const.; Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Additionally, even if this Court found that the Statement of Case or Summary of Argument was adequate to explain just how Petitioner alleges the instant decision actually conflicted with the decision of this Court or of another district court on the same point of law, it should again be noted that Petitioner cannot rely on facts outside the face of the opinion to support his allegations. Hardee, 534 So. 2d at 708 n.*. For example, to the extent that Petitioner is arguing that The State contends that since Petitioner was a law enforcement officer, they were not required to give him Miranda - this is contrary to the law of this State and United States Constitution, Respondent would note that this alleged fact is set forth nowhere on the face of the opinion in the instant proceeding. See Harris v. State, 32 So. 3d 730, 730-31 (Fla. 4 th DCA 2010). Finally, even if Petitioner s brief adequately set forth the theory on which Petitioner was seeking conflict jurisdiction and Petitioner could rely on facts outside the four corners of the Fourth District s opinion, Petitioner still has not established an entitlement to conflict jurisdiction. Duddles v. 7
State, 845 So. 2d 939 (Fla. 5 th DCA 2003) 2, is a heavily fact intensive case. The Fifth District in Duddles merely found or held that, under the specific facts of that case, the defendant was not in custody and therefore a Miranda warning was not needed. Petitioner has not established that Duddles is on all fours with the instant case since, for example, Petitioner was a law enforcement officer and Duddles was not a law enforcement officer and Petitioner was placed in a custodial interrogation setting and Duddles was not placed in a custodial interrogation setting. Because it appears Duddles is distinguishable from the instant case based on the facts alleged by Petitioner, Petitioner has again failed to establish grounds for this Court to exercise jurisdiction based on an express and direct conflict. Morningstar v. State, 405 So. 2d 778, 783 (Fla. 4th DCA 1981)("Obviously two cases can not be in conflict if they can be validly distinguished.")(anstead J. concurring), affirmed, 428 So. 2d 220 (Fla. 1982). CONCLUSION In conclusion, the State respectfully requests this Court DECLINE to accept jurisdiction to review the instant case. 2 Respondent addresses the Duddles case alone as it is the only non-fourth District and non-united States Supreme Court case on Petitioner s list of citations. (IB 1-2) 8
Respectfully submitted, BILL McCOLLUM Attorney General Tallahassee, Florida JAMES J. CARNEY Senior Assistant Attorney General Florida Bar Number 475246 JEANINE M. GERMANOWICZ Assistant Attorney General Florida Bar No. 0019607 1515 North Flagler Drive Ste. 900 West Palm Beach, FL 33401-3432 Telephone: (561) 688-7759 jeanine.germanowicz@myfloridalegal.com Counsel for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Respondent's Brief on Jurisdiction complete with Appendix has been furnished by U.S. Mail, postage prepaid, to: TIMOTHY SCOTT HARRIS, DC# 139009, South Bay Correctional Institution, P.O. Box 7171, South Bay, FL 33493 on June, 2010. Of Counsel 9
CERTIFICATE OF TYPE SIZE AND STYLE In accordance with the Administrative Order of this Court dated July 13, 1998, the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New type. Of Counsel 10
IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC10-1056 TIMOTHY SCOTT HARRIS, Petitioner, vs. STATE OF FLORIDA, Respondent. APPENDIX TO RESPONDENT'S BRIEF ON JURISDICTION Appendix Page Harris v. State, 32 So. 3d 730 (Fla. 4 th DCA 2010)...2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Appendix to Respondent s Brief on Jurisdiction complete with a copy of the opinion under review has been furnished by U.S. Mail, postage prepaid, to: TIMOTHY SCOTT HARRIS, DC# 139009, South Bay Correctional Institution, P.O. Box 7171, South Bay, FL 33493 on June, 2010. Of Counsel 1
Harris v. State 32 So.3d 730 Fla.App. 4 Dist.,2010. April 14, 2010 (Approx. 1 page) 32 So.3d 730, 35 Fla. L. Weekly D842 Briefs and Other Related Documents Judges and Attorneys District Court of Appeal of Florida, Fourth District. Timothy Scott HARRIS, Appellant, v. STATE of Florida, Appellee. No. 4D10-469. April 14, 2010. Rehearing Denied May 13, 2010. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 311990CF000335A. Timothy Scott Harris, South Bay, pro se. No appearance required for appellee. PER CURIAM. We summarily affirm the circuit court's denial of Harris's postconviction motion and motion for rehearing. Harris's petition for writ of certiorari is hereby redesignated as a final appeal pursuant to Fla. R.App. P. 9.040(c) and 9.141(b). See *731 Council v. State, 980 So.2d 1205 (Fla. 4th DCA 2008). Affirmed. HAZOURI, MAY and GERBER, JJ., concur. Fla.App. 4 Dist.,2010. Harris v. State 32 So.3d 730, 35 Fla. L. Weekly D842 Briefs and Other Related Documents (Back to top) 4D10-469 (Docket) (Feb. 4, 2010) 2