IN THE SUPREME COURT OF FLORIDA NO. SC05-394 L.T. NO. 3D03-2877 MAURICE WHIPPLE, Petitioner v. DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, Respondent AMENDED ANSWER BRIEF ON JURISDICTION CHARLES J. CRIST, JR. FLORIDA ATTORNEY GENERAL David J. Glantz, Assistant Attorney General Attorney for Department of Corrections, State of Florida, Respondent 110 SE 6 th Street, 10 th Floor Fort Lauderdale FL 33301-5001 Telephone: (954) 712-4608 Fax: (954) 712-4700 E-mail: david_glantz@oag.state.fl.us
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii Florida Cases... ii Florida Constitution... ii Florida Statutes... ii Florida Rules... ii STATEMENT OF THE CASE...1 Nature of the case...1 Course of the proceedings...1 Disposition in the lower tribunal...2 SUMMARY OF ARGUMENT...5 ARGUMENT...6 THE DISTRICT COURT=S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW...6 CONCLUSION... 10 CERTIFICATE OF SERVICE / CERTIFICATE OF COMPLIANCE... 11 APPENDIX... 12 i
TABLE OF AUTHORITIES Florida Cases Department of Health & Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888 (Fla. 1986)... 6, 9 Hall v. Moore, 777 So. 2d 1105 (Fla. 1st DCA 2001)... 7, 9 J.A.B. Enterprises v. Gibbons, 596 So. 2d 1247 (Fla. 4th DCA 1992)...7 Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)... 8, 9 Pearson v. Moore, 767 So. 2d 1235 (Fla. 1st DCA 2000)... 7, 8, 9 Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996)... 7, 8 Whipple v. Department of Corrections, 892 So. 2d 554 (Fla. 3d DCA 2005)...2B4, 6, 7 Wilson v. State, 603 So. 2d 93 (Fla. 5th DCA 1992)... 7, 8 Florida Constitution Fla. Const., art. V, ' 3(b)(3)...5, 6, 10 Florida Statutes Fla. Stat. ' 921.16(1) (1995)... 2, 3, 6 Florida Rules Fla. R. App. P. 9.030(a)(2)(A)(iv)...5, 6, 10 Fla. R. App. P. 9.210(b)... 11 ii
STATEMENT OF THE CASE Nature of the case This is an action for negligence and false imprisonment. Course of the proceedings The gist of Petitioner=s operative Third Amended Complaint (R-149-189) is that Respondent Department of Corrections (the Department) kept him in prison beyond the expiration of his court-imposed sentences. Petitioner=s relevant prison sentences are summarized as follows: Date imposed Sept. 30, 1994 Dec. 8, 1994 July 20, 1995 Venue Duval County St. Johns County Dade County Terms 61 days with credit for time served in custody of Sheriff of Duval County. Two concurrent prison sentences of three years and six months, less 222 days time served. Three and a half years state prison, less 37 days time served, ACONCURRENT AND CO-TERMINOUS WITH DUVAL COUNTY STATE PRISON SENTENCE IN 94-8043- CFA.@ (Capitals original) Record reference R-156-160 R-161-165 R-185-188 Petitioner moved for summary judgment. (R- 204-208, 209-210, 217-222). He argued that the concurrent and coterminous language in the Dade sentence required the Department to release him when his St. Johns sentence expired, which occurred on 1
December 31, 1997. He argued that the Department=s failure to release him at that time violated the Dade sentence Aas imposed by the sentencing court.@ (R- 220). Petitioner argued that the concurrent and coterminous language in the Dade sentence effectively nullified that sentence by making it terminate at the same time as the Duval sentence which had been fully served several months before the Dade sentence was imposed. (R- 200). The Department also moved for summary judgment. (R-249-254). It argued that ' 921.16(1), Fla. Stat. (1995) imposed a duty, devoid of discretion, to structure the Dade County sentence consecutively to the St. Johns sentence. (R- 250-251, 253). The Department also argued that because the Duval sentence was nonexistent at the time the Dade sentence was imposed, it was impossible for the Dade sentence to be served concurrent and coterminous with the Duval sentence. (R- 252-253). The trial court denied Petitioner=s motion for summary judgment and granted the Department=s motion for summary judgment. (R-341). Petitioner filed a timely appeal. (R-345-347). Disposition in the lower tribunal The district court affirmed the trial court=s entry of final summary judgment in favor of the Department. Whipple v. Department of Corrections, 892 So. 2d 554 (Fla. 3d DCA 2005) (conformed copy of slip opinion is contained in Appendix). The district court found several grounds for doing so. 2
First, the district court found that Athe concurrent and coterminous language of Whipple's Dade sentence was mere surplusage and a nullity as a matter of law,@ because Aa sentence that has been fully served leaves nothing for another sentence to be attached as concurrent or coterminous.@ Id. at 557; slip op. at 5. Next, the district court found that the Department Awas required to run the Dade sentence consecutive to the St. Johns sentence pursuant to the legislative mandates of section 921.16(1),@ and when the Department did so, it Aacted with color of authority@ so that Petitioner=s false imprisonment claim failed as a matter of law. Id. at 558; slip op. at 6. The district court next found there was no violation of the doctrine of separation of powers because the Aconcurrent and coterminous language of the Dade sentence is deemed to be a legal nullity or mere surplusage by the judiciary itself,@ as opposed to being an act of Aanother branch of government [that] failed to recognize a valid or lawful judicial order or judgment.@ Id. at 558B559; slip op. at 8 (emphasis original). Next, the district court found no ambiguity in the Dade County sentence that would trigger the rule of lenity. In this respect the district court reiterated that under ' 921.16(1), the Department Awas statutorily obligated, as stated earlier, to run the Dade sentence consecutive to the St. Johns sentence.@ Id. at 559; slip op. at 9. Finally, the district court found no violation of double jeopardy because Respondent=s Avarious sentences were imposed for different offenses in different 3
prosecutions.@ Id. at 559; slip op. at 10. Petitioner filed a timely notice of invoking this Court=s discretionary jurisdiction, asserting that the district court=s decision expressly and directly conflicts with a decision of another district court and of this Court on the same question of law. 4
SUMMARY OF ARGUMENT The district court=s decision does not expressly and directly conflict with a decision of this Court or of any district court on the same question of law. This Court lacks jurisdiction. Art. V, ' 3(b)(3), Fla. Const. and Fla. R. App. P. 9.030(a)(2)(A)(iv). 5
ARGUMENT THE DISTRICT COURT=S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW. It is settled that Aconflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. In other words, inherent or so called >implied= conflict may no longer serve as a basis for this Court's jurisdiction.@ Department of Health & Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986). This places the burden on Petitioner to demonstrate that the decision below expressly and directly conflicts with a decision of this Court or another district court on the same question of law. Art. V, ' 3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2)(A)(iv). Petitioner fails to carry this burden as the following discussion will show. The district court principally held that: (1) The Duval sentence was nonexistent at the time the Dade sentence was imposed and therefore the concurrent and coterminous language of the sentence was a nullity because there was nothing to which the Dade sentence could be attached. Whipple v. Department of Corrections, 892 So. 2d 554, 557 (Fla. 3d DCA 2005); (2) The Department had color of authority under ' 921.16(1) to run Petitioner=s Dade sentence consecutively to his St. Johns sentence. Id. at 558; and 6
(3) The doctrine of separation of powers was not implicated because the concurrent and coterminous language in the Dade sentence was a legally nullity which imposed no duty upon the Department, and therefore the Department did not encroach upon the judiciary when it disregarded that language. Id. at 558B559. 1 Petitioner cites Wilson v. State, 603 So. 2d 93 (Fla. 5 th DCA 1992), Slay v. Singletary, 676 So. 2d 456 (Fla. 1 st DCA 1996), Pearson v. Moore, 767 So. 2d 1235 (Fla. 1 st DCA 2000), Moore v. Pearson, 789 So. 2d 316 (Fla. 2001), and Hall v. Moore, 777 So. 2d 1105 (Fla. 1 st DCA 2001), for the principle B which the Department does not dispute B that only the judiciary has power to impose a sentence, correct an illegal sentence, or add or delete sentencing conditions. (Br. of Petitioner, 5-7). These cases will be discussed and distinguished in turn. In Wilson v. State, the district court found that an inmate was entitled to a judicial award of credit for time served on the incarcerative portion of a probationary split sentence, as opposed to relying on the Department=s Aassurances@ that it would honor the credits without a court order. Id., 603 So.2d at 94. The present case does not 1 The district court also found that the rule of lenity did not apply, Id. at 559, and that there was no double jeopardy violation, Id. at 559-560. Petitioner does not address these issues in his brief and they should be deemed abandoned. J.A.B. Enterprises v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4 th DCA 1992). 7
involve entitlement to a judicial award of credit for time served and therefore does not expressly and directly conflict with Wilson on the same issue of law. In Slay v. Singletary, the district court found that the Department was required to honor an express provision in a sentence awarding Acredit for all time previously served on this count in the Department of Corrections prior to resentencing.@ Id., 676 So.2d at 457. The district court distinguished Wilson v. State, supra., because the sentencing documents in Wilson did not contain such a provision. Slay v. Singletary at 457. The instant case presents no issue concerning an express award of credit for time served, and thus there is no express and direct conflict with Slay v. Singletary on the same issue of law. In Pearson v. Moore, the district court (as affirmed by this Court in Moore v. Pearson, 789 So. 2d 316 (Fla. 2001)), found that a lawful court-imposed coterminous sentencing provision could not be overridden by the Department=s statutory power to award or subtract gain time Ain order to encourage satisfactory prisoner behavior, to provide incentive for prisoners to participate in productive activities, and to reward prisoners who perform outstanding deeds or service.@ Moore v. Pearson, 789 So. 2d at 319. Thus, the Department was wrong to disregard Aan otherwise lawful coterminous sentence@ on the ground that it interfered with the Department=s authority to regulate gain time. Moore v. Pearson, 789 So. 2d at 319. In Moore v. Pearson, the coterminous sentence was imposed while the defendant was serving the sentence to which the 8
coterminous sentence referred. 2 In the present case, however, Petitioner was not serving the Duval sentence when the Dade sentence was imposed. This is because Petitioner was released from the Duval sentence several months before the Dade sentence was imposed. Moore v. Pearson is clearly distinguishable and there is no direct and express conflict with the present case on the same issue of law. In Hall v. Moore, the sentencing court Aspecifically ordered that Hall receive 1,012 days of credit for time previously served.@ Id., 777 So. 2d at 1106. The Department denied Hall these credits, which the district court found was a usurpation of judicial sentencing power. Id. at 1106B107. By contrast, the present case does not involve a legally cognizable award of credit by the sentencing court. Because of this distinction there is no express and direct conflict between Hall v. Moore and the present case on the same issue of law. Petitioner attempts to find implied conflict between the present case and those cited in his brief. Implied conflict cannot support an exercise of jurisdiction, however. Department of Health & Rehabilitative Services v. National Adoption Counseling Service, Inc., supra. Review should be denied for lack of jurisdiction because Petitioner fails to 2 This is made clear by the chronology presented in the district court=s opinion. Pearson v. Moore, 767 So. 2d at 1237. 9
demonstrate express and direct conflict between the district court=s decision and any decision of this Court or another district court on the same issue of law. Art. V, ' 3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2)(A)(iv). jurisdiction. CONCLUSION For the foregoing reasons, this Court should deny review due to lack of 10
CERTIFICATE OF SERVICE / CERTIFICATE OF COMPLIANCE I CERTIFY that on May 11, 2005, a copy hereof was furnished by mail to Louis M. Jepeway, Jr., Attorney for Petitioner, j Jepeway & Jepeway, P.A., 19 West Flagler Street, Suite 407, Miami FL 33130. I CERTIFY that in compliance with Fla. R. App. P. 9.210(b), this computer generated brief is prepared in Times Roman 14 point font. Respectfully submitted, CHARLES J. CRIST, JR. FLORIDA ATTORNEY GENERAL s/david J. Glantz David J. Glantz, Assistant Attorney General Fla. Bar No. 504238 Attorney for Department of Corrections, State of Florida, Respondent OFFICE OF ATTORNEY GENERAL 110 S.E. 6 th Street, 10 th Floor Ft. Lauderdale FL 33301-5000 Telephone: (954) 712-4608 Fax: (954) 712-4700 E-mail: david_glantz@oag.state.fl.us 11
APPENDIX Copies of Petitioner=s Notice to Invoke Discretionary Jurisdiction and the district court=s decision are attached. 12