SC10 369 Jurisdictional Initial Brief 400 10 Juris Ini Ada
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PROVIDED TO GLADES IN THE SUPREME COURT OF FLORIDa£°^§I=CTIONAL MSIITLJTION FORivd ANTHONY ^ GREEN, Petitioner, S.C.NO. SC10-369 D.C.A.NO.4D08-3864 L.T. VS. No:99-9246CF10B STATE OF FLORIDA, Respondent. 3 pcr: fS3 cn P m O > PETITIONER'S JURISDICTIONAL BRIEF f COUNSEL ] Anthony Green DC #274930, Dorm A1-120L Glades Correctional Institution 500 Orange Avenue Circle Belle Glade, Florida 33430 TABLE OF CONTENTS TABLE OF CONTENTS j_ TABLE OF CITATIONS AND AUTHORITIES ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 1 STATEMENT ON JURISDICTION 3 ARGUMENT 4 THE FOURTH DISTRICT COURT OF DECISION GREEN V. STATE. 34 FLA. D2494 (4th DCA 2009) CONFLICTS WITH V. STATE. 566 THE APPEAL'S L. WKLY. DIRECTLY AND EXPRESSLY FIRST SO.2D 339 DISTRICT (1990); IN KNIGBT AND WHITE V. STATE, 619 SO.2D 429 (1993);; SECOND DISTRICT IN GRADDY V. STATE. 517 SO.2D 772 (1988); BOWLING V. STATE. 779 SO.2D 613 (2001); SWILLEY V. STATE. 781 SO.2D 458 (2001) ; AND THE FIFTH DISTRICT IN MANIS V. STATE, 5D09-615, FEBRUARY 19, 2010 (35 FLA. L. WKLY. D422) , AND OTHER DECISION OF THE FLORIDA SUPREME COURT. CONCLUSION 10 UNNOTARIZED OATH 10 CERTIFICATE OF SERVICE 10 CERTIFICATE OF COMPLIANCE 10 TABLE OF CITATIONS PAGE NO Baptists v. State. Bernhardt v. Bowling v. 995 So.2d 285 at 294 State, State, 288 So.2d 490 779 So.2d 613 (Fla. (S.Ct. 1974) Dawkins v. (2nd DCA 2001) 4 Dolinger v. 936 So.2d 710 State, Scarpelli, Graddy v. State, State, (Fla. 2nd DCA 2006) 779 So.2d 419,420-21(Fla. Gagnon v. Green v. Even, (3rd DCA 1972) State, 93 S.Ct. 1756 517 So.2d 772 34 Fla. (1973) (Fla. (4th DCA 2009) State, 696 So.2d 757 (Fla. 1997) Jackson v. State, 807 So.2d 684 (Fla. 2nd DCA 2001) Manis v. (35, State, State, Fla. L. Martin v. 566 So.2d 339 5D09-615, Wkly. State, Morrisey v. Pendergrass v. Ramirez v. State, State, Rodriguez v. Swilley v. State, Tackett v. Hartack, White v. State, (5th DCA 1981) 2593 (1972) 601 So.2d 1250 15 So. 3d 827 State, 4,9 (Fla. 781 So.2d 458 2nd DCA 1992) (4th DCA 2001) (Fla. 98 So.2d 896 2nd DCA 2001) (3rd DCA 1957) (1st DCA 1993) u 6 8 (2nd DCA 2009) 111 So.2d 1175 619 So.2d 429 8,9 4,9 399 So.2d 128 92 S.Ct. 4 2010, D422) Brewer, 4,7 4 (1st DCA 1990) Feb 19, 8 8 2nd DCA 1988) L. Weekly D2494 4 2nd DCA 2000)...8,9 Holland v. Knight v. 5 6,8 Dade County Metropolitan Transit Authority v. 262 So.2d 685 2008) 7 8 8 4,7 4 4 COURT RULES F.S.A. 90.401 (2007) 2 Fla. R. App. P. 9.030 Fla. R. App. P. 9.200(f)(2) 2 Fla. R. P. 9.210(a)(2) 10 App. (a) (2) (A) (iv) West's F.S.A. 316.075(1)(c)(1) West's 948.06 F.S.A. 3 4 67 CONSTITUTIONAL PROVISIONS Art. V, F.S.A. § 3(b)(3), Const. Art. Fla. 5, Const 3 § 2 (a) g Fourteenth Amendment « m STATEMENT OF THE CASE AND FACTS This is a Petition to invoke the discretionary jurisdiction of the Supreme Court of Florida. The by Petitioner officers, and following being an unlawful medically traffic cleared at Bethesda Hospital was booked into Palm Beach County Jail, a Law Enforcement Possession of of Officer, Cocaine, Tampering Drug Paraphernalia. Probation was Resisting June 5, with 2008, stop, Memorial for Battery on Arrest Evidence, Affidavit beaten with Violence, and Possession of Violation of filed based on new law offenses. August 11, 2008, the State informed the trial court at violation hearing that the County of of Palm Beach Cocaine, charged by 1-count Information 1-count Possession Officer without Violence, Resisting dismissing the other charges per: (no-info) (no-action). the commencement of Revocation Final Final Hearing Revocation, was to be the as Court of the alleged findings, traffic however, violation following stated testimony reset the following week to allow all parties before only, to view the testimony-only, Prior to to be the video court the that made court its found Petitioner guilty and sentenced him to 180 months. An appeal was taken, and on December 2, 2009, the Fourth District revocation but remanded for order of revocation. affirmed A timely filed rehearing and clarification was denied on January 14, 2010, and the Petitioner's Notice to Invoke the Discretionary Jurisdiction of this Court was timely filed on February 12, This Petitioner to Invoke 2010. Discretionary Jurisdiction follows: SUMMARY OF THE ARGUMENT Petitioner appeal, filed concedes thereafter rehearing incomplete, that upon reviewing, informing respectfully receiving finding it District Court requesting the 1 the record incomplete, of the Clerk to on timely record direct being the Court Reporter to complete the record for full appellate review, and unfortunately the District Court allowed this fatal error to go uncorrected, denying rehearing, thus, interest resulting in further manifest Petitioner's injustice. liberty The Court's have frequently invoked this "manifest injustice" when a person has been wrongly seized, established convicted, P[W]here....the injustice has occurred, and imprisoned. Court finds revocation, process, court that a manifest it is the responsibility of that Court to correct the injustice, if it can.") continue It is well whereas reporter's full trial court's failure to hearing failure to transcribe, prior to the commencement of revocation, stated the final revocation hearing, is' demanded by the due hearing where the trial court for 9-12-08 was to commence as testimony-only to be reset for the following week to allow all parties to view video before court made its findings. Petitioner was and will continue to be prejudiced without the complete record on appeal, pursuant to Rnle 9.200(f)(2) . App. Fla. R. P. Whereas the burden fall upon the Petitioner to initiate a correction in the record before this Court. Furthermore, due to the incompleteness of the record, Petitioner was not afforded, as a matter of right, counsel to raise this to fatal effective issue. assistance Manifest of appellate Injustice, on its face, the records reflect the officer's patrol car was equipped with video surveillance, traffic infraction, which would have captured the alleged also the traffic stop, the video is and was "relevant" to establish a "material" fact as to those terms are defined in Section 90.401, Fla. Stat.(2007) of the evidence code. Accordingly, this Court has recognized that due process entitles a criminal record correct on defendant appeal the was to a full incomplete, miscarriage interest of Petitioner. of appellate this justice, review, Court to whereas should uphold the and the must liberty-' JURISDICTIONAL STATEMENT THE FLORIDA SUPREME COURT has review a decision of a District and directly conflicts with a discretionary jurisdiction to Court decision of Appeals of the that Supreme expressly Court of Florida or another District Court on the same point of law. (Article Fla. R. V, App. § 3(b) (3) , P.) Fla. Const, and Rule 9. 030(a) (2) (A) (Iv) , ARGUMENT THE FOURTH DECISION D2494 DISTRICT GREEN V. (4th DCA 2009) CONFLICTS WITH V. 566 STATE, STATE, THE GRADDY APPEAL'S FLA. L. DIRECTLY AND 339 SO.2D IN OF 34 FIRST SO.2D 619 DISTRICT COURT STATE, 429 V. EXPRESSLY DISTRICT (1990) ; WKLY. IN KNIGHT AND WHITE V. (1993);; SECOND STATE, 517 SO.2D 772 (1988); BOWLING V. STATE, 779 SO.2D 613 (2001); SWILLEY V. STATE, 781 SO.2D 458 (2001) ; AND THE STATE, 5D09-615, FLA.L.WKLY. FIFTH DISTRICT FEBRUARY D422) , AND IN 19, MANIS V. 2010 OTHER DECISION (35 OF THE FLORIDA SUPREME COURT. It is well probation, the limitations. must be established probationer Thus, in knowingly Petitioner driving Seacrest the in intersection In of Even, 262So.2d 685 a a the 2008 Way See thus, to Dade see valid In decision the Second 613 (2001); and the So.2d 429 (1993). See; driver's traffic F.S.A. same point of law. devoid of in First in on a charge crossing N. thru changed to 2. 316.075(1) (C) (1) So.2d 896 District v. (3rd DCA directly State, in White v. 779 State, 619 (Fla. 1997) So.2d 757 the record is totally warning of felony 98 696 language name was coming upon light Bowling Here at present, or (safe Transit Authority v. Fourth District citations the arrested District the 316.075(1) (c) (1), Eartack, the and case, in his as of deviation license (MLK Blvd.) Holland v. State, on the traffic of the this Beach, grace conditions Saturn Vue the Tackett v. So.2d (implicit the violation, Boynton West's gives (3rd DCA 1972); West's F.S.A. the any by act. rented of court Comity Metropolitan with subsequently in a 9th Ave., conflicts stop be willful City N.W. R^c-may^a r=,r-o 1957), in accordance Right 1 to a abide traveling down 10th Ave. Blvd., yellow. order and when must lawfully with driver endorsement) heading home, that issued Section is for 949.10, that the basis to of wit: arrest be lawful in accordance with Chapter 901. Fla. Stat.) Immediately the patrol car turned behind and began to travel directly behind Petitioner for a distance of six blocks and two stop signs before activating stop lights while Petitioner was turning left upon N.W. 4th Ave., therein three houses Petitioner stopped, whereas officer ordered Petitioner out of the car at gunpoint, thus illegally seizing, (See:Baptlste, 995So.2d 285 at 294(S.Ct. 2008), which Petitioner replied, "Sorry Sir, I don't see why you are stopping me." Officer advised Petitioner to up and turn around, which Petitioner keep his hands complied, patrol car coming at a high rate of speed, when another Petitioner's knees gave out due to being shot with a taser by the officer that held him at gunpoint. Whereas, Petitioner caught his balance before falling on instinct, thinking he was being shot at, ran to his front door yelling for help, to no-avail ran across his yard to neighbors house, where again at gunpoint was ordered to get face down or be handcuffed shot, was Petitioner's which badly body was Petitioner beaten numb, with thus, complied, kicks carried and to after being punches that police car and medically cleared at hospital for taser wounds to left upper arm, multiple wounds to the face, face swollen, and a punctured blood' vessel to arrested the for camera phone, left eye, disorderly (also conduct state informed witnesses were cocaine, for Consquella taking Green pictures was with a subsequently was never returned). Prior to the revocation, the notable: the a hearing was conducted, Court, it was outside the courtroom, however not the video, ready to whereas proceed they have the the suspected also if it was possible to get testimony then to reset it altogether, since the witness was out of the county. The Court stated "that the final hearing for September 12, 2008 was to commence as testimony-only to be reset the following week to allow all parties to view video before the Court makes its finding, thus, manifest injustice occurred. This portion of the proceeding was not furnished in the transcript for full appellate review by District Court, also in the liberty interest of Petitioner, deprived of the right to effective assistance of counsel to raise this fundamental fatal error on appeal, thus, in conflict of procedural due process, Petitioner was and will continue to be prejudiced by the absence of complete transcripts. Here on the face of the record, it is clear that there is a vxdeo recording of the alleged traffic infraction and stop Petitioner states in liberty-interest, the video is and was "relevant exculpatory evidence" involved evidence to establish "material" fact (that's consistent to defense exhibit #2, a Photo of left upper arm, also supports Petitioner's flight, 'was not to run away from officer , but in fact, an act- to safety due to being tasered, also proves that Petitioner was complying to his terms of probation) , as to those terms defined in Section 90.401, Fla. Stat, of the evidence code, trial court's failure to continue hearing to the following week to allow all parties to view the video, as stated prior to the commencement of the revocation hearing , deprived Petitioner of his constitutional due process requirements of a full revocation hearing, whereas a full hearing is a condition precedent to revocation and such a hearing is demanded by due process (F.S.A. 948.06. Fla Stat ) wherein this Court has constitutional power to correct ' a manifest injustice by the trial court, failure to continue hearing as stated (See:Mart±n v.StMt*. 399 So.2d 128 (5th DCA 1981) (finding probationer was entitled to a new probation revocation hearing, belief that completed). where judge revoked probation on mistaken hearing, which had been continued, had been The facts perhaps of the equally important, procedural due Bernhardt v. State, opportunity Petitioner instant process to the are So.2d present to even trial requirements 288 attempted case court of the 490 an a law as set 1974), evidence, aerial- alleged infraction occurred was compelling, departed (Fla. documentary show more view map series of two Ave., and replied "I reflects court a short distance don't need the State from stop charged 1-count replied, "the lacked charges made see that therein when which signs houses, that", remark, to stop also in which noted fact,it lights the 4th Court the Was the and a of turning left upon N/8f. three are are F.S.A. and Graddy v. State, State directly Without record the trial 948.06 to at conflicts So.2d 772 conceded error in the (reversing probation 781 at 461, on the "what's listed evidence that probationer probation a mere violated and will furthermore, warrant," arrest the not is law support the also, it the trial finding 156, (Fla. Second DISMISSED based insufficient in violation a revocation, court upon State, relied well-settled to of here 1 (See: Petitioner's Suggestion for Certification) that terms trial on that establish the in revocation in Swllley v. is in District probation trial , on 2nd DCA 1992) violation also the Second District 458 a of court no-action l footnote with trial where make no-info, was possession Violence, dismissed charges) So.2d of 601 So.2d 1250 517 Petitioner irrelevant," per State, that 1-count jurisdiction dismissed, CHARGES, Pendergrass v. told with really matter West's expressly when Resisting Arrest subject to court, Information, charges that accordance where to trial by cocaine, court of in . Furthermore, only in the process out thus distance of six blocks when patrol car activated its while Petitioner was from of court used an improper standard to me its credibility assessment; "do I believe him, or do I believe the polir^i" The Fourth District allowed these fatal error to go uncorrected, thus,, allowing a further miscarriage of justice. The District Court in reviewing case at hand, did acknowledge that the State failed to prove the allegations of tampering with evidence, possession of narcotic equipment, to be stricken, the miscarriage of justice, by the record being incomplete, the reviewing court was unaware that the2 possession of narcotic equipment was the alleged 2x2 zip-loc baggy filled with a white powder, test for cocaine, devoid of such lab report, (notable the record is also the officer that alleged he found the cocaine was the same to bring it to revocation, thus, a violation of procedural chain of custody). The District Court also noting that the record instant case is devoid of an order of revocation, states since rules of practice and procedure C°Urt' *•*•*• Const- '***• 5 * 2(^ to Due Process Bemhardt y. of State, Brever, 92 S.Ct. (1973), a 2593; written So.2d 490 (Fla. and Sagnon v. statement by evidence relied on and reasons the Petitioner adopted by this on the Constitutional Right the Fourteenth toendm.nf 288 in the as set 1974); Samxpmin fact forth in Morr±ssBV v. 93 S.Ct. finder as to for revoking probation, 1756 the these requirements in themselves serve as substantial protection against ill-considered revocation. Furthermore, the written order of revocation must conform to court's oral pronouncement, a due process precedent of law. Ramirez y. sfcate, 15 So.3d 827 (2nd DCA 2009); Rodriguez v. Sfcat*. 777 So.2d 30 1175, (4th DCA 2001), regrettably the Fourth District, got it wrong, on remand, pursuant 2 to Jackson y. State. 807 So. 864 (Fla. (See: Rehearing Appendix Probable Cause Affidavit) 2nd DCA 2001); following Dollncrer v. State. 779 So.2d 419, 420-421 (Fla. 2 nd DCA 2000) relying on Dawklns v. stmtm. 936 So.2d 710 (2nd DCA 2006) with Doling and Darrklns on the face of the record admitted the alleged violations, thus conforming oral pronouncement, probation was revoked based on those admissions, here the case at bar, at the close of revocation, the Defense informed the trial court Petitioner was currently only charged with 1-count of possession of cocaine, 1-count of resisting arrest without violence, in Palm Beach, the trial court stated "the charges are really irrelevant. . .what's listed on the warrant, but I need to determine, number one, whether he committed battery on a law enforcement officer, whether he tampered with evidence, whether he possessed cocaine, whether he possessed narcotic equipment (although he failed to mention resisting arrest with violence District Court failed to correct it). Thereafter, the determination of what's listed on warrant and speaking to defense, the trial court stated "and I have to tell von a,*, ™ a -credibility assessment". . .1 do find that that von did indeed willfully number and substantially 99-9246CF10B" violate (emphasis yoUr added)." probation The in record c»se reflects trial court was aware of the allegations of violation, the court was aware of what it needed to determine and the burden of proof, thus, the court should have specified orally, or in writing/ which of the five criminal offenses, without such an oral or written finding, the Fourth District's miscarriage of justice be remanding for order of probation pursuant to Jackson, following DolintTer' expressly and directly conflicts with the Fifth District in Manls v. State. 5D09-615 Feb. 19, 2010 [35 Fla L Weekly D422] (finding as to condition 7, the trial court made an express finding that defendant violated that condition by using prescription medicine prescription, however, Percocet as to without condition having 5, the a trial legal court verbally indicated that defendant violated condition 5, but did not make an express finding that the defendant had filed a false police report). also, expressly and directly conflicts with the decision of the First District in Knight v. State. 566 So.2d 339 (1990) (finding the court neither orally announced nor entered a written manifest finding) Thus, injustice, Fourth failure District to rendered uphold a further Petitioner's liberty interest. CONCLUSION This Court has manifest injustice, and arguments discretionary jurisdiction to based on the foregoing facts, this constitutional powers, Honorable Court should remedy the authorities, exercise its of liberty-interest of Petitioner, accept review the decision of the Fourth District Court of Appeal. Respectfully submitted, Anthony D. Green, DC #27930, Dorm A1-120L Glades Correctional Inst. 500 Orange Avenue Circle Belle Glade, Florida 33430 UNNOTARIZED OATH UNDER PENALTIES OF PERJURY, I declare that I have foregoing brief, and the facts stated herein are true. Anthony D. DC #247930, 10 read Green, Dorm A1-120L the CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Junsdictional Brief was sent via U.S. Mail to: Office of the Attorney General, The Capitol, Tallahassee, Florida 32399. Anthony D. DC #247930, Green, Dorm A1-120L CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief is in compliance with the font requirements prescribed Appellate Procedure. in Rule 9.210(a) (2), Anthony D. DC #247930, 11 Florida Rules Green, Dorm A1-120L of IN THE SUPREME COURT OF FLORIDA ANTHONY GREEN, Petitioner, S.C.NO. SC10-369 D.C.A.NO.4D08-3864 VS. L-T- No:99-9246CF10B STATE OF FLORIDA, Respondent. APPENDIX TO PETITIONER'S JURISDICTIONAL BRIEF Fourth District Court of Appeal Decision Filed December 2, 2009 D "ages Fourth District Court of Appeal Denial Motion for Rehearing and Clarification Decision Filed January 14, 2010 Pa e 4 1~3 fta District Court Of Appeal Of The State Of Florida Fourth District July Terrp. 2009 ANTHONY GREEN, - .. . Appellant, STATE OP FLORIDA, Appellee. No. 4D08-3864 [December 2, 2009] Stevenson, j. and possessing narcotics incident on June 2 2008 noticed a silve" S^ to make a traffic f Possessing cocaine, charSes arose from an ^ fa Boynt°n Beaeh °fficer tempted stopping sooner, SB^ve^r^ibiinf^WetE^^-K0^^^^-^' hi SS^^vUvrnJ^*™^™**^*.*•» ^ditionai n C0Urt detem^ed the State had th willful and substantial f&c violation must be SS §=g2 -Oilappeal Gxeen_contends.thtSlateJailed_tQ_prove tics equ^ tempering wxth evidence and possession of narcotics ^P°P^ h andd the-Statedoesnot argue otheLSe a sentence. On Grin's second poin^we by a preponderance of the evidence jVfBiSs probation for any one of the three violations fe reflect only the three charges proven bytte State ^and Gerber, jjef concur. rehearing. iN THE DISTR|CT COURT OF APPEAL OF THE STATE OF Fl ORinA FOURTH DISTRICT, 1525 PALM BEACH LAKES SLVD., WEST PALMTb^CH FL 33401 January 14, 2010 CASE NO.: 4D08-3864 L.T. No. : 99-9246 CF10B ANTHONY GREEN v. Appellant / Petitioners), STATE OF FLORIDA Appellee / Respondent(s). BY ORDER OF THE COURT: ORDERED that appellant's pro se motion filed December 21, 2009 for rehearing is hereby denied; further, ORDERED that appellant's pro se motion filed December 21, 2009 for clarification is hereby denied. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Public Defender-P.B. kb 1ENMULLER, Clerk Fourth District Court of Appeal Anthony Green Attorney General-W.P.B. CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT a true and correct copy of the foregoing document has been this furnished by U.S. Mail to the following: , 20 Respectfully Submitted, pro se Glades Correctional Institution 500 Orange Ave. Circle Belle Glade, Fl. 33430
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