Embed Size (px)
Citation preview
IN THE SUPREME COURT OF FLORIDA
SCOTTIE SMART, JR.,
Petitioner,
v. SC Case No. 2D13-2261
DCA Case No. 2D12-5037
STATE OF FLORIDA,
Respondent.
JURISDICTIONAL BRIEF OF RESPONDENT
PAMELA JO BONDI
ATTORNEY GENERAL
ROBERT J. KRAUSS
Chief-Assistant Attorney General
Bureau Chief, Tampa Criminal Appeals
Florida Bar No. 0238538
BRANDON R. CHRISTIAN
Assistant Attorney General
Florida Bar No. 18084
Concourse Center 4
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607-7013
(813)287-7900
Fax (813)281-5500
COUNSEL FOR RESPONDENT
Electronically Filed 12/09/2013 04:28:20 PM ET
RECEIVED, 12/9/2013 16:33:34, John A. Tomasino, Clerk, Supreme Court
i
TABLE OF CONTENTS
PAGE NO.
TABLE OF CITATIONS............................................ ii
STATEMENT OF THE CASE AND FACTS................................ 4
SUMMARY OF THE ARGUMENT........................................ 6
ARGUMENT....................................................... 6
WHETHER THE DECISION OF THE SECOND DISTRICT
COURT OF APPEAL EXPRESSLY AND DIRECTLY
CONFLICTS WITH THE DECISION OF THIS COURT IN
Winters v. State, 522 So. 2d 816 (Fla. 1988)
OR THE DECISION OF THE FIRST DISTRICT IN
Myers v. State, 499 So. 2d 895 (Fla. 1st
1986)? (restated by Respondent)...................... 6
CONCLUSION.................................................... 10
CERTIFICATE OF SERVICE........................................ 11
CERTIFICATE OF FONT COMPLIANCE................................ 11
ii
TABLE OF CITATIONS
PAGE NO.
CASES
Isom v. State,
619 So. 2d 369 (Fla. 3d DCA 1993) ............................ 7
Isom v. State,
800 So. 2d 292 (Fla. 3d DCA 2001) ............................ 7
Jenkins v. State,
385 So. 2d 1356, 1358 (Fla. 1980) ............................ 5
Johnson v. State,
902 So. 2d 276 (Fla. 1st DCA 2005) ........................... 6
Myers v. State,
499 So. 2d 895 (Fla. 1st 1986) ............................ i, 4
Reaves v. State,
485 So. 2d 829, 830 (Fla. 1986) .............................. 5
Shelton v. State,
739 So. 2d 1235 (Fla. 4th DCA 1999) .......................... 6
Smart v. State,
38 Fla. L. Weekly D2187 (Fla. 2d DCA 2013) ................... 4
Smart v. State,
509 So. 2d 935 (Fla. 2d DCA 1987) ............................ 2
Smith v. State,
537 So. 2d 982 (Fla. 1982) ................................... 1
Wahl v. State,
iii
568 So. 2d 1303 (Fla. 2d DCA 1990) ........................... 6
Whitehead v. State,
498 So. 2d 863 (Fla. 1986) ............................. 2, 5, 7
Winters v. State,
522 So. 2d 816 (Fla. 1988) .......................... i, 4, 5, 6
STATUTES
§ 893.135(1)(b), Fla. Stat. (1987)............................. 7
Fla. Const. Art. V, § 3(b)(3).................................. 5
RULES
Fla. R. App. P. 9.210(a)(2).................................... 8
4
STATEMENT OF THE CASE AND FACTS
The State accepts the Statement of Case and Statement of
Facts presented by Petitioner for purposes of this appeal, with
the following additions or corrections:
On or about July 26, 1985, less than two months after his
release from state prison, Petitioner was charged with armed
robbery with a deadly weapon, kidnapping, attempted first-degree
murder, and aggravated battery. The information alleged an
offense date of June 18, 1985 (about two months after
Petitioner’s eighteenth birthday).1
Petitioner proceeded to a trial by jury. In October 1985,
the jury found Petitioner guilty of aggravated battery and the
lesser-included charge of armed robbery with a weapon.
On November 21, 1985, the trial court adjudicated
Petitioner guilty, departed from the sentencing guidelines, and
sentenced Petitioner as a habitual felony offender to life
imprisonment on the charge of armed robbery with a weapon, with
a concurrent term of fifteen years’ imprisonment on the charge
of aggravated battery.
The court filed written reasons for the departure sentence,
listing that 1) Petitioner was a habitual felony offender; 2)
Petitioner used excessive force; 3) the victim suffered severe
physical and psychological trauma; 4) Petitioner has an
1 Petitioner committed his offenses after the guidelines became
effective on July 1, 1984. See Smith v. State, 537 So. 2d 982 (Fla. 1982).
5
extensive prior record; 5) Petitioner failed to respond to
efforts to rehabilitate him; 6) Petitioner was on Community
Control at the time of the offense; 7) Petitioner’s record
showed an escalating pattern of violent criminal conduct; and 8)
Petitioner’s offense was committed just 6 days after his release
from state prison. The trial court also entered a written order
designating Petitioner a habitual felony offender.
Petitioner filed a direct appeal of his judgments and
sentences. While Petitioner’s direct appeal was pending, this
Court decided Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
(mandate issued January 5, 1987), which disapproved of using a
defendant’s status as an HFO as a valid reason to depart upward
from the sentencing guidelines. On July 1, 1987, Petitioner’s
judgments and sentences were affirmed on appeal and the mandate
issued on July 20, 1987. Smart v. State, 509 So. 2d 935 (Fla.
2d DCA 1987) (table).
On August 16, 2013, the Second District issued a written
opinion affirming the lower court’s denial of Petitioner’s Rule
3.800(a) motion to correct an illegal sentence. Smart v. State,
38 Fla. L. Weekly D1755a (Fla. 2d DCA Aug. 16, 2013).
Petitioner moved for rehearing, explaining that he was convicted
of the lesser-included offense of robbery with a weapon. On
October 18, 2013, the Second District granted the Motion for
Rehearing to the extent that the written opinion was revised to
6
clarify that the convictions were not for offenses involving a
deadly weapon and to explain the basis by which Petitioner’s
conviction for a first-degree felony could permit a sentence of
life imprisonment. Smart v. State, 38 Fla. L. Weekly D2187
(Fla. 2d DCA 2013)
SUMMARY OF THE ARGUMENT
Petitioner has not established that the Second District’s
opinion in Smart v. State, 38 Fla. L. Weekly D2187 (Fla. 2d DCA
2013), expressly and directly conflicts with either the First
District’s decision in Myers v. State, 499 So. 2d 895 (Fla. 1st
DCA 1986), or this Court’s decision in Winters v. State, 522 So.
2d 816 (Fla. 1988). Respondent submits that this Court should
decline to exercise its jurisdiction.
ARGUMENT
WHETHER THE DECISION OF THE SECOND DISTRICT
COURT OF APPEAL EXPRESSLY AND DIRECTLY
CONFLICTS WITH THE DECISION OF THIS COURT IN
WINTERS V. STATE, 522 SO. 2D 816 (FLA. 1988)
OR THE DECISION OF THE FIRST DISTRICT IN
MYERS V. STATE, 499 SO. 2D 895 (FLA. 1ST
1986)? (restated by Appellee)
Petitioner maintains that his sentence of life imprisonment
is illegal because, under the pre-1988 version of section
775.084, habitualization cannot be used to increase a sentence
beyond the recommended guidelines range. See generally Winters
v. State, 522 So. 2d 816 (Fla. 1988). Petitioner asserts that
in rejecting his argument, the Second District has placed itself
7
in conflict with Winters and Myers v. State, 499 So. 2d 895
(Fla. 1st 1986). As explained below, Petitioner is not correct.
Petitioner ignores that his status as an HFO was not used as the
sole reason to depart from the guidelines.
The jurisdiction of this Court is limited to a narrow class
of cases enumerated in the Florida Constitution. Among the
reviewable class of cases are those where it is alleged that a
district court’s opinion “expressly and directly conflicts with
the decision of another district court of appeal, or with the
supreme court on the same issue of law.” Fla. Const. Art. V, §
3(b)(3). This section requires that the “express and direct
conflict” appear on the face of the opinion and “within the four
corners of the majority decision.” Reaves v. State, 485 So. 2d
829, 830 (Fla. 1986).
The rationale for limiting this Court’s jurisdiction is the
recognition that district courts “are courts primarily of final
appellate jurisdiction and to allow such courts to become
intermediate courts 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.” Jenkins v. State, 385 So. 2d 1356,
1358 (Fla. 1980).
Appellant’s appeal in the Second District involved an
application of Whitehead v. State, 498 So. 2d 863 (Fla. 1986).
8
In Whitehead, this Court disapproved of using a defendant’s
status as a habitual felony offender as a valid reason to depart
upward from the sentencing guidelines. As this Court later
explained, in Winters v. State, 522 So. 2d 816 (Fla. 1988),
“[t]he central premise underlying Whitehead is that any conflict
between the habitual offender statute and the sentencing
guidelines must be resolved in favor of the guidelines and their
policies.” (emphasis added). This meant that the habitual
offender statute, section 775.084, could not be used to depart
from the guidelines recommendation, but that the habitual
offender statute “remain[ed] viable for the purpose of extending
the statutory maximum in a manner consistent with the
guidelines.” Id. at 817.
Applying Whitehead and Winters, Florida’s courts have
recognized that habitualization may not be used as the sole
reason on which to depart from the recommended sentencing
guidelines range. See, e.g., Wahl v. State, 568 So. 2d 1303,
1305 (Fla. 2d DCA 1990) (“[T]he trial court erred in departing
from the guidelines solely on the basis of Wahl’s habitual
offender status when he elected, in November 1989, to be
sentenced under the guidelines.”); Johnson v. State, 902 So. 2d
276 (Fla. 1st DCA 2005) (“The only reason provided by the trial
court for the upward departure sentence was that Appellant was a
habitual felony offender.”) (emphasis added); Shelton v. State,
9
739 So. 2d 1235 (Fla. 4th DCA 1999) (“The trial court’s sole
reason for departing from the sentencing guidelines on Shelton’s
1987 conviction was that he qualified as an habitual felony
offender.”) (emphasis added).
Here, the flaw in Petitioner’s argument, both
jurisdictionally and on the merits, is that his status as a
habitual offender was not the sole reason on which the trial
court departed from the guidelines. In this case, the
“statutory maximum” (in fact, the required punishment) for a
habitual felony offender being sentenced on a first-degree
felony was a sentence of life imprisonment. See §
775.084(4)(a)(1); see also §775.084(1)(a) (“‘Habitual felony
offender’ means a defendant for whom the court may impose an
extended term of imprisonment[.]”). Nothing within the
guidelines or the Court’s decisions in Whitehead or Winters
barred the imposition of this life sentence so long as the
departure from the guidelines range was itself founded on valid
reasons other than Petitioner’s status as an HFO.
In a case similar to Petitioner’s, Isom v. State, 800 So.
2d 292 (Fla. 3d DCA 2001), the Third District reached the same
result as the Second District in Smart. The defendant in Isom,
like Appellant, received a life sentence for a first-degree
felony. See Isom v. State, 619 So. 2d 369, 371 (Fla. 3d DCA
1993) (noting Isom’s offense of trafficking in one kilo of
10
cocaine); see also § 893.135(1)(b), Fla. Stat. (1987). The
Third District concluded that Isom’s HFO sentence of life
imprisonment was lawful because Isom’s HFO status was not the
sole reason for the departure. Isom, 800 So. 2d at 294.
Thus, the Second District’s decision is not in conflict
with Winters or Myers, but rather is consistent with Wahl,
Johnson, Shelton, and Isom. Neither Winters nor Myers prohibits
sentencing a habitual felony offender in excess of the
guidelines so long as the trial court does not depart from the
guidelines solely on the basis of the defendant’s status as a
habitual felony offender.
CONCLUSION
Respondent respectfully requests that this Court decline to
accept jurisdiction.
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been
furnished by U.S. Mail to Scottie Smart, Jr., DC # 093966,
Apalachee Correctional Institution, 35 Apalachee Drive, Sneads,
FL 32460-4166, this 9th day of December, 2013.
CERTIFICATE OF FONT 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 and certified,
PAMELA JO BONDI
ATTORNEY GENERAL
s/ Robert J. Krauss__________
ROBERT J. KRAUSS
Chief—Assistant Attorney General
Bureau Chief-Tampa Crim. Appeals
Florida Bar No. 0238538
/s/ Brandon R. Christian
By: BRANDON R. CHRISTIAN
Assistant Attorney General
Florida Bar No. 18084
Concourse Center 4
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813)287-7900
Facsimile: (813)281-5500
COUNSEL FOR RESPONDENT
