IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, : SUPREME COURT NO.: SC : Petitioner, : FLA. 2d DCA v. : CASE NO.: 2D : MELVIN STACY JENKINS, : HILLSBOROUGH COUNTY CIR. CT. : CASE NO.: 04-CF Respondent. : : ON PETITION FOR REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL STATE OF FLORIDA JURISDICTIONAL BRIEF OF RESPONDENT JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT Public Defender's Office Polk County Courthouse 244 North Broadway-3rd Floor Bartow, Florida (863) BY: J.L. "Ray" LeGrande Special Assistant Public Defender Florida Bar Number

2 ATTORNEYS FOR RESPONDENT TOPICAL INDEX TO BRIEF PAGE NO. TOPICAL INDEX TO BRIEF TABLE OF CITATIONS i ii STATEMENT OF CASE 1 STATEMENT OF FACTS 1 SUMMARY OF ARGUMENT 2 ARGUMENT 3 CONCLUSION 5 CERTIFICATE OF SERVICE 5 CERTIFICATE OF COMPLIANCE 5 i

3 TABLE OF CITATIONS CASES PAGE(S) Barnes v. State 922 So.2d 380 (Fla. 1 st DCA 2006) 2 Jenkins v. State 31 Fla. L. Weekly D2320 (Fla. 2d DCA October 11, 2006) 1, 2 Jones v. State 790 So.2d 1194 (Fla. 1 st DCA 2001) 2 Pagan v. State 830 So.2d 792 (Fla. 2002) 2 Pizzo v. State So.2d, 2005 WL Fla. L. Weekly D-1772 (Fla. 2d DCA 2005) 2 Santiago v. State 874 So.2d 617 (Fla. 5 th DCA 2004) 2 State v. Henderson 521 So.2d 1113 (Fla. 1988) 1 Tibbs v. State 397 So.2d 1120 (Fla. 1981) 2 Voelker v. State 882 So.2d 526 (Fla. 4 th DCA 2004) 2 Wilson v. State 707 So.2d 1200 (Fla. 4 th DCA 1998) 1 ii

4 STATEMENT OF THE CASE Respondent accepts Petitioner's statements of the case. STATEMENT OF THE FACTS Respondent adopts the statement of the facts contained in the Second District's opinion. 1

5 SUMMARY OF ARGUMENT There is no basis for this Court to accept jurisdiction. 2

6 ARGUMENT THERE ARE NO GROUNDS FOR THIS COURT TO ACCEPT JURISIDCTION The Second District Court of Appeal in its thirteen page opinion concluded: Mr. Jenkins presented evidence sufficient to establish a prima facie issue of selfdefense. It was the State s burden to overcome this defense and prove beyond a reasonable doubt that Mr. Jenkins was not acting in lawful self-defense. Here, the State was unable to present the competent, substantial evidence necessary to overcome Mr. Jenkins defense and in fact presented evidence consistent with the defense. The trial court should have granted Mr. Jenkins motion for judgment of acquittal. Reversed and remanded for discharge. Jenkins v. State, 31 Fla. L. Weekly D2320 (Fla. 2d DCA October 11, 2006). The State in its jurisdictional brief (JB) contends: The Second District s opinion is in direct and express conflict with this Court s holding in State v. Henderson, 521 So.2d 1113 (Fla. 1988). It is also in direct and express conflict with the Fourth District s holding in Wilson v. State, 707 So.2d 1200 (Fla. 4 th DCA 1998). [JB-S] Mr. Jenkins contends that these cases are not in conflict with the Second District s decision and provide no basis for acceptance of jurisdiction.1 1Wilson specifically focused on two areas that create jury 3

7 Contrary to the State s position the Second District did not re-weigh the evidence. Rather, the Second District evaluated the evidence to determine if it was sufficient to meet the State s burden of refuting Mr. Jenkins defense. Its duty was to conduct such de novo review. Sufficiency of the evidence is generally an issue of law that should be decided pursuant to the de novo standard of review. Tibbs v. State, 397 So.2d 1120 (Fla. 1981); Santiago v. State, 874 So.2d 617, 624 (Fla. 5 th DCA 2004); Barnes v. State, 922 So.2d 380, 381 (Fla. 1 st DCA 2006); Jones v. State, 790 So.2d 1194 (Fla. 1 st DCA 2001); Pagan v. State, 830 So.2d 792 (Fla. 2002); Voelker v. State, 882 So.2d 526, 527 (Fla. 4 th DCA 2004); Pizzo v. State, So.2d, 2005 WL , 30 Fla. L. Weekly D-1772 (Fla. 2d DCA 2005). The Second District s opinion falls squarely within this standard. questions : (1) did defendant have reasonable fear and (2) inconsistent forensic evidence (lack of gun powder residue). Neither issue was present in Jenkins. Henderson, while expounding interesting concepts, has no application to the facts in Jenkins. 4

8 denied. CONCLUSION Mr. Jenkins requests the State s petition for review be CERTIFICATE OF SERVICE I hereby certify that a copy has been mailed to Timothy Freeland, Esq., Office of the Attorney General, Concourse Center, #4, 3507 E. Frontage Rd., Suite 200, Tampa, FL 33607, Anthony M. Candela, Esq., 700 East Twiggs St., Tampa, FL and Mr. Melvin Jenkins, #481622, Columbia Correctional Institution, 216 SE Corrections Way, Lake City, FL on this day of, CERTIFICATE OF COMPLIANCE I certify that the size and style of font used in this brief is 12 point Courier New, footnotes are the same size and style of font and single spaced in compliance with Fla. R. App. P JAMES MARION MOORMAN PUBLIC DEFENDER Tenth Judicial Circuit Polk County Courthouse 244 North Broadway-3rd Floor Bartow, Florida (863) By: J. L. "Ray" LeGrande Special Assistant Public Defender Florida Bar Number

9 6