IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

Transcription

1 IN THE SUPREME COURT OF FLORIDA RICHARD DUCHARME, Petitioner, v. CASE NO. SC STATE OF FLORIDA, Respondent. / ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL JURISDICTIONAL BRIEF OF RESPONDENT CHARLES J. CRIST, JR. ATTORNEY GENERAL DOUGLAS T. SQUIRE ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL 444 Seabreeze Blvd., Suite 500 Daytona Beach, Florida Telephone: (386) Facsimile: (386)

2 COUNSEL FOR RESPONDENT TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS... i TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 ISSUE THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND THE DECISIONS IN STATE v. ATKINSON, 831 So.2d 172 (Fla. 2002); STATE v. GOODE, 830 So.2d 817 (Fla. 2002); AND, STATE v. KOBEL, 757 So.2d 556 (Fla. 4th DCA 2000). THE DECISION BELOW DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS, THE STATE ATTORNEYS. (Restated)... 3 CONCLUSION... 6 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE... 7 CERTIFICATE OF COMPLIANCE... 7 i

3 TABLE OF CITATIONS CASES PAGE(S) STATE CASES Ansin v. Thurston, 101 So.2d 808 (Fla. 1958)... 4 Department of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So.2d 888 (Fla. 1986)... 3 Ducharme v. State, 30 Fla. L. Weekly D118 (Fla. 5th DCA Dec. 30, 2004)... 1 Jenkins v. State, 385 So.2d 1356 (Fla. 1980)...3, 4 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 3 State v. Atkinson, 831 So.2d 172 (Fla. 2002)...2, 3, 4, 5 State v. Goode, 830 So.2d 817 (Fla. 2002)...2, 3, 4, 5 State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000) 2, 3, 4, 5 OTHER Fla. R. App. P (a)(2)(A)(iv)... 3 Fla. R. App. P ii

4 STATEMENT OF THE CASE AND FACTS The pertinent history and facts are set out in the decision of the lower tribunal, attached in slip opinion form. It can be found at Ducharme v. State, 30 Fla. L. Weekly D118 (Fla. 5th DCA Dec. 30, 2004). 1

5 SUMMARY OF ARGUMENT In the present case, the District Court simply recognized that, under the plain language of the statute, the time period at issue did not begin running until Petitioner s transfer; and, that any challenge to Petitioner s detention during the processing of his release in his criminal case should have been through a writ of habeas corpus. Thus, Petitioner has not shown any express and direct conflict between the decision below and this Court s decisions in State v. Atkinson, 831 So.2d 172 (Fla. 2002); State v. Goode, 830 So.2d 817 (Fla. 2002); or, with the Fourth District Court s decision in State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000). Further, as the ruling at issue does not effectively extend any actions by State Attorneys under the Jimmy Ryce Act, there is no direct effect on how State Attorneys will proceed under the Jimmy Ryce Act. 2

6 Jurisdictional Criteria ARGUMENT THERE IS NO EXPRESS AND DIRECT CONFLICT BETWEEN THE DECISION BELOW AND THE DECISIONS IN STATE v. ATKINSON, 831 So.2d 172 (Fla. 2002); STATE v. GOODE, 830 So.2d 817 (Fla. 2002); AND, STATE v. KOBEL, 757 So.2d 556 (Fla. 4th DCA 2000). THE DECISION BELOW DOES NOT EXPRESSLY AFFECT A CLASS OF CONSTITUTIONAL OFFICERS, THE STATE ATTORNEYS. (Restated). Petitioner contends that this Court has jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv), which parallels Article V, 3(b)(3), Fla. Const. The constitution provides: The supreme court... [m]ay review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. The conflict between decisions "must be express and direct" and "must appear within the four corners of the majority decision." Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling Service, Inc., 498 So.2d 888, 889 (Fla. 1986)(rejected "inherent" or "implied" conflict; dismissed petition). Neither the record, nor a concurring opinion, nor a dissenting opinion can be used to establish jurisdiction. Reaves, supra; Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980) ("regardless of whether they are accompanied 3

7 by a dissenting or concurring opinion"). In addition, it is the "conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari." Jenkins, 385 So.2d at In Ansin v. Thurston, 101 So.2d 808, 810 (Fla. 1958), this Court explained: It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute. Accordingly, the determination of conflict jurisdiction distills to whether the decision below decision reached a result opposite the decisions in State v. Atkinson, 831 So.2d 172 (Fla. 2002); State v. Goode, 830 So.2d 817 (Fla. 2002); and, State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000). The decision below is not in "express and direct" conflict with the decisions in State v. Atkinson, 831 So.2d 172 (Fla. 2002); State v. Goode, 830 So.2d 817 (Fla. 2002); and, State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000). Petitioner has not shown any express and direct conflict between the decision below holding that the time periods under section , Florida Statutes (2000), are triggered by 4

8 the transfer of the person to the custody of the Department of Children and Family Services and this Court s decisions in State v. Atkinson, 831 So.2d 172 (Fla. 2002); State v. Goode, 830 So.2d 817 (Fla. 2002); or, with the Fourth District Court s decision in State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000). In State v. Atkinson, 831 So.2d 172 (Fla. 2002), this Court held that the Jimmy Ryce Act was limited in its application to persons who were in custody on or after the effective date of the Act, January 1, In this case, Ducharme s time served sentence included the approximately two months (up to the afternoon of June 13, 2000) he was being held in the Orange County jail, under the custody of the Department of Corrections, on the violation of probation charge. In State v. Goode, 830 So.2d 817 (Fla. 2002), this Court held that the thirty-day period to conduct a final hearing after the finding of probable cause is mandatory, although not jurisdictional, and that the appointment of counsel for a potential sexually violent predator must occur as soon as proceedings are initiated. In this case, counsel, who was appointed within one week of the finding of probable cause, waived the thirty-day period on June 29, In State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000), the Fourth District held that the five day time limit for the adversarial probable cause hearing began to run when the 5

9 detainee requested a hearing. The five-day period in this case related to the detention of Petitioner before the finding of probable cause and did not require any action by him to initiate its running. Petitioner has not shown any direct and express conflict. The decision below does not expressly affect a class of constitutional officers, the State Attorneys. Petitioner s argument that the present case affects a class of constitutional officers, State Attorneys, is based on the premise that the instant ruling effectively extends the Jimmy Ryce Act s recapture window. However, the instant ruling simply recognized that, under the plain language of the statute, the time period at issue did not begin running until Petitioner s transfer; and, that any challenge to Petitioner s detention during the processing of his release in his criminal case should have been through a writ of habeas corpus. As the ruling at issue does not effectively extend any actions by State Attorneys under the Jimmy Ryce Act, there is no direct effect on how State Attorneys will proceed under the Jimmy Ryce Act. CONCLUSION There is no direct and express conflict and no constitutional basis for discretionary review. 6

10 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to: Nancy Ryan, Assistant Public Defender, 112 Orange Avenue, Suite A, Daytona Beach, Florida 32114, via the Public Defender s Box at the Fifth District Court of Appeal on March, Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL DOUGLAS T. SQUIRE ASSISTANT ATTORNEY GENERAL Florida Bar No KELLIE A. NIELAN ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL 444 Seabreeze Blvd., Suite 500 Daytona Beach, Florida Telephone: (386) Facsimile: (386)

11 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P Douglas T. Squire Attorney for State of Florida 8