Feb 9, 2012 ... two letters, each of which threatened the same two persons.” Suggs,. 72 So.3d at
... “The defendant sent the two letters to Karen Robertson and.
IN THE SUPREME COURT OF THE STATE OF FLORIDA
CASE NO. SC11-2239 CALVIN EARL SUGGS, JR., Petitioner, vs. STATE OF FLORIDA, Respondent.
RESPONDENT'S BRIEF ON JURISDICTION
PAMELA JO BONDI Attorney General Tallahassee, Florida DANIEL P. HYNDMAN Assistant Attorney General Florida Bar No. 0814113 1515 North Flagler Drive Suite 900 West Palm Beach, Florida 33401 Telephone: (561) 837-5000 Counsel for Respondent
TABLE OF CONTENTS TABLE OF CITATIONS.............................................ii PRELIMINARY STATEMENT ..........................................1 STATEMENT OF THE CASE AND FACTS ................................1 SUMMARY OF THE ARGUMENT.........................................4 ARGUMENT.........................................................5 THIS COURT SHOULD DECLINE JURISDICTION IN THE INSTANT CASE; THE DECISION OF THE FOURTH DISTRICT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW (RESTATED) CONCLUSION......................................................8 CERTIFICATE OF TYPE SIZE.........................................9 CERTIFICATE OF SERVICE..........................................9
i
TABLE OF AUTHORITIES CASELAW Bautista v. State, 863 So.2d 1180 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . 3-7 Grappin v. State, 450 So.2d 480 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . . . . 2-3 Reaves v. State, 485 So. 2d 829 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . 1 Suggs v. State, 72 So.3d 145 (Fla. 4th DCA 2011) . . . . . . . . . . . . . . . . . . passim
FLORIDA CONSTITUTION Article V, Section 3(b)(3) . . . . . .
. . . . . . . . . . . . 5
RULES Rule 9.030(2)(A)(iv), Fla. R. App. P. . . . . . . . . . . . . . . 5
ii
PRELIMINARY STATEMENT Petitioner
was
the
defendant
and
Respondent
was
the
prosecution in the Criminal Division of the Circuit Court of the Nineteenth Judicial Circuit, in and for Okeechobee County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal (“Fourth District”).
In this
brief, the parties shall be referred to as they appear before this Honorable Court.
STATEMENT OF THE CASE AND FACTS The facts appear in the opinion of the Fourth District. Suggs v. State, 72 So.3d 145 (Fla. 4th DCA 2011).
“The only facts
relevant to our decision to accept or reject [conflict] petitions are those facts contained within the four corners of the decisions allegedly in conflict.” Reaves v. State, 485 So. 2d 829, 830 FN3 (Fla. 1986). In the instant case, “[a] jury convicted the defendant of four counts of ‘written threat to kill or do bodily injury’ for sending two letters, each of which threatened the same two persons.” Suggs, 72 So.3d at 146.
On appeal, the Petitioner argued that his
convictions violated double jeopardy, specifically that the “unit of prosecution” for the charged offense “should be the number of letters or communications sent, and not the number of people to whom each letter or communication is sent.” Id. at 147.
1
The Fourth
District rejected the Petitioner’s argument and held that “the allowable unit of prosecution is the number of persons to whom each letter or communication is sent, and not the number of letters or communications sent.” Id. “The defendant sent the two letters to Karen Robertson and Hope Suggs. sons.
Karen has legal custody of all five of the defendant’s
Hope lives part-time with Karen.
Both letters contained
statements which could be interpreted as threats to kill or do bodily injury to Karen and Hope.” Id. The Petitioner was charged with violating section 836.10, Florida Statutes, which is entitled “Written threats to kill or do bodily injury . . .” Id. Although only two letters were sent, the Petitioner
was
charged
with
four
counts
of
violation
of
the
statute: “sending the first letter to Karen; sending the first letter to Hope; sending the second letter to Karen; and sending the second letter to Hope.” Id. The Petitioner was found guilty of all four counts and raised a double jeopardy argument for the first time on appeal. Id. at 147-148. His argument on appeal was that the allowable “unit of prosecution” for a violation of section 836.10 was the number of letters sent, and not the number of people to whom each letter was sent. Id. at 148. The Petitioner relied primarily on the “a/any” test as set forth in Grappin v. State, 450 So.2d 480 (Fla. 1984), and argued “that the legislature’s use of the terms ‘any letter’
2
and ‘any person’ in section 836.10 indicates the legislature’s intent that the allowable unit of prosecution for a violation of section 836.10 should be the number of letters or communications sent,
and
not
the
number
of
people
to
whom
each
letter
or
He further argued that the use of the
communication is sent.” Id.
word “any” created an ambiguity and, under the rule of lenity, the ambiguity should be resolved in his favor. Id. The Respondent argued that the Petitioner’s reliance on the “a/any” test of Grappin was misplaced in light of the more recent decision in Bautista v. State, 863 So.2d 1180 (Fla. 2003).
In that
case, this Court held that the “a/any” test did not preclude multiple
convictions
for
a
single-crash
DUI
when
there
were
multiple deaths because the “a/any distinction was used in Grappin as one part of a common sense application of well-established rules of statutory interpretation, including reference to the overall statutory scheme and purpose . . .” Suggs, 72 So.3d at 148-149, quoting, Bautista, 863 So.2d at 1187-88. The Fourth District then found that the reasoning of Bautista applied to the instant case and that “the statute’s plain focus is on ‘the person’ to whom such letter or communication is sent.” Id. at 149.
The Court concluded that: “under section 836.10, the unit
of allowable prosecution is determined by the number of persons to whom a letter or communication is sent, and not the number of letters or communications sent.” Id
3
SUMMARY OF THE ARGUMENT This Court should decline jurisdiction.
The decision of the
Fourth District does not expressly and directly conflict with the decisions of other district courts or with this Court on the same question of law.
The instant decision is entirely consistent with
this Court’s decision in Bautista. address
entirely
different
Furthermore, the decision
statutory
distinguishable on that basis alone. should be declined.
4
sections
and
are
Consequently, jurisdiction
ARGUMENT THIS COURT SHOULD DECLINE JURISDICTION IN THE INSTANT CASE; THE DECISION OF THE FOURTH DISTRICT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW (RESTATED) The Petitioner has invoked the discretionary jurisdiction of this Court pursuant to Rule 9.030(a)(2)(A)(iv), Fla. R. App. P, and Article V, Section 3(b)(3), Constitution of the State of Florida. The Petitioner argues that the instant decision is in conflict with this Court’s decision in Bautista.
The Respondent respectfully
disagrees. The Fourth District correctly applied Bautista to the instant set of facts and the decisions are clearly not in direct conflict. As an initial matter, the Respondent observes that the instant decision and Bautista are distinguishable since they each address entirely different statutory sections.
Bautista addresses the DUI
manslaughter statute, section 316.193(3)( c)(3), and the instant decision addresses the statute prohibiting written threats to kill or do bodily harm, section 836.10.
For this reason alone, the
decisions cannot be in direct conflict. Furthermore,
the
two
decisions
are
entirely
consistent.
Bautista set forth a “common-sense approach” to determining the allowable unit of prosecution which considers first the “actual language
used
in
the
statute”
and,
if
that
is
unclear,
determination of legislative intent. 863 So.2d at 1185, 1187. 5
a
This
Court used this approach to determine that “the gravamen of the offense of DUI manslaughter is not a traffic violation, but the killing
of
a
human
being”
and
that
“the
Legislature
clearly
intended to allow separate convictions of DUI manslaughter for each death that occurs in a single DUI episode.” Id. at 1186, 1187. The Fourth District followed this approach to reach its holding that the unit of prosecution for violations of section 836.10 was determined by the number of persons to whom each threatening letter is sent and not the actual number of letters sent. Suggs, 72 So.3d at 149. (“We find that the reasoning of Bautista applies to this case.”) As
the
Fourth
District
correctly
observed,
the
statute
criminalizes written communications “containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent.” Id. at 149, quoting, section 836.10, Fla. Stat (emphasis in opinion of the Fourth District).
Therefore, the Court concluded,
the focus of the statute is on “the person” to whom the letter is sent. Id. at 149. entirely
The Respondent submits that this reasoning is
consistent
with
Bautista.
Like
this
Court
did
in
Bautista, the Fourth District first looked to the language of the statute to determine legislative intent. Although the Petitioner understandingly disagrees with the decision of the Fourth District,
6
the Respondent respectfully submits that this disagreement goes to the
merits
of
the
decision
itself.
The
Respondent
also
respectfully submits that the petitioner has not shown any conflict with Bautista, or a misapplication of that decision. Consequently, since the instant decision does not conflict with a decision of this Court on the same question of law there is no basis for conflict jurisdiction.
7
CONCLUSION WHEREFORE,
based
on
the
foregoing
arguments
and
the
authorities cited therein, Respondent respectfully requests that this Court decline discretionary review. Respectfully submitted, PAMELA JO BONDI Attorney General Tallahassee, Florida _____________________________ Daniel P. Hyndman Assistant Attorney General Florida Bar No. 0814113 1515 North Flagler Drive Suite 900 West Palm Beach, FL 33401 (561) 837-5000 Counsel for Respondent
8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing "Respondent’s Brief on Jurisdiction" has been furnished by mail on February 9, 2012, to John Pauly, Assistant Public Defender, 421 Third Street, Sixth Floor, West Palm Beach, Fl 33401.
______________________________ DANIEL P. HYNDMAN
CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R. App. P. 9.210, the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type. ______________________ DANIEL P. HYNDMAN
9
