SUPREME COURT OF FLORIDA
CASE NO. SC14-1151
. s so
M M 2 i A S· %
CLERK, SUPREME COURT
PATRICE R. BARON,
Appellant,
VS
------
LOWER COURT: 2D13-6002
06-CF-19324
06-CF-19377
06-CF-19481
06-CF-19483
06-CF-19789
STATE OF FLORIDA.
APPELLANT'S JURISDICTIONAL INITIAL BRIEF
Respectfully Submitted
By
PATRICE R. BARON
DC#T61459
Lawtey Correctional Institution
7819 NW 228th Street
Raiford, Florida 32026
0
INDEX
INDEX..................................................................................1
INDEX OF AUTHORITIES.......................................................2
STATEMENT OF THE CASE AND FACTS.................................3, 4
ARGUMENT.........................................................................5-11
POINT I..............................................................................5-9
THE FLORIDA SUPREME COURT HAS JURISDICTION TO RESOLVE
THE CONFLICT BETWEEN THE SECOND DISTRICT COURT'S
INTERPRETATION OF THIRD DISTRICT COURT OPINION
REGARDING THE MANIFEST INJUSTICE ALLOWING BARON'S
CLAIM.
POINT II........................................................................10,11
BARON DEMONSTRATED A MANIFEST INJUSTICE AS THERE WAS
NO FACTUAL BASIS TO FIND BARON GUILTY OF A KIDNAPPING IN
ADDITION TO THE ROBBERY OFFENSE.
CONCLUSIONS.................................................................. 12
CERTIFICATE OF SERVICE.................................................. 13
CERTIFICATE OF COMPLIANCE........................................... 14
1
INDEX OF AUTHORITIES
CASE LAW
Breitberg vs State 14 So.3d 1253, 34 Fla. L. Weekly D1356
(Fla. 4th DCA 2009)...............................................................
7
Brown v. State, 917 So.2d 272 (Fla. 5th DCA, 2005) .......................
6
Butler vs State 95 So 3d 294, 37 Fla. L. Weekly D1598
(Fla. 3rd DCA 7/5/12)............................................................... 8
Carabajal vs State, 75 So.3d 258, 36 Fla. L. Weekly S628 (Fla. 2011)..... 6
Deras v. State, 54 So.3d 1023 (Fla. 3d DCA 2011)...................... 4, 5, 6, 12
Faison vs State 426 So 2d 963 (Fla. 1983)......................................
10
Lewis v. State 50 So.3d 86 (Fla.App. 4 Dist. 2010)...........................
11
Luger v. State, 983 So.2d 49 (Fla. 4th DCA 2008)............................. 7
McDonald vs State 133 So 3d 530 (Fla. 2nd DCA 2013)..................... 4
Russell v. State, 874 So.2d 1256 (Fla. 4th DCA 2004)......................... 11
Sims vs State 998 So 2d 494, 33 Fla. L. Weekly S698 (Fla. 2008)............ 6
Small v. State, 56 So.3d 52 (Fla. 4* DCA, 2011)................................. 7
State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) ............................. 10
Winter v. State, 781 So.2d 1111 (Fla. First DCA, 2001 )..................
6
Zanger v. State, 548 So.2d 746 (Fla. 4* DCA, 1989')........................
6
FLORIDA RULES OF APPELLATE PROCEDURE
Rule 9.030(a)(2)(A), Florida Rules of Appellate Procedure...............
2
5
STATEMENT OF THE CASE AND FACTS
In Case No. 2007-CF-019789, PATRICE BARON, hereinafter "BARON"
and a co-defendant entered a business known as Sensual Secrets. According to Mr.
Don Adams, the state's key witness, BARON and his co-defendant were armed
with a pistol and a semi-automatic weapon. Adams claimed that the two
defendants robbed Adams of $50.00 and during their contact with Adams, moved
Adams from one room to another in the business. At that time, the two defendants
became aware of another victim, Lisa Hughes, who had locked herself in the
bathroom. According to Hughes, BARON knocked down the bathroom door and
at gunpoint made Hughes enter the room where Adams and another individual
were. The police had already arrived when the two defendants left the building.
Judge William E. Fuente, the sentencing judge, informed BARON that he
could not consider sentencing BARON as a juvenile offender, a sentence that
would have limited BARON's sentence to six years. On Page 20 of the Record,
Judge Fuente stated, "IfI sentence you as a youthful offender, you could be
sentenced to no more than six years in prison. Ofcourse, there would be no
minimum mandatory." The following Wednesday after accepting BARON's
plea, Judge Fuente advised BARON "Mr. Baron, when you were here, I guess it
was Wednesday, youpied guilty. And I toldyou some things during the plea
colloquy which were incorrect. I need to correct those thingsfor you and let you
3
know whatyour options are. I incorrectly toldyou that I could consider would
be a youthful offender. I cannot do that. The reason I cannot do that is one of
the offenses to which you entered is kidnapping, which is a hfe offense and
youthful offender is not lawfulfor any life offense." The judge indicated that if
he thought he could, he would have imposed the youthful offender sentence.
BARON filed a 3.850 seeking relief. BARON's motion was after the
expiration ofthe two year term provided by Rule 3.850, but BARON alleged his
motion was timely as the sentence imposed represented manifest injustice allowing
him to challenge the sentence.
The trial court denied the motion and BARON appealed. The Second District
Court of Appeal issued an opinion on May 21st, 2014, in which the Court per
curiam affirmed the trial court relying upon a Second District Court opinion which
conflicted with the opinion in a Third district Court case upon which BARON
relied for his argument that a manifest injustice had occurred. The Second DCA in
its opinion cited McDonald vs State 133 So 3d 530 (Fla. 2nd DCA 2013) and
stated, "We caution McDonald and others that the holding in Deras v. State, 54
So.3d 1023 (Fla. 3d DCA 2011), is limited to itsfacts and does not, in our view,
create a marufest injustice exception to the rule 3.850 time bar."
4
ARGUMENTS AS TO JURISDICTION
I. THE FLORIDA SUPREME COURT HAS JURISDICTION TO
RESOLVE THE CONFLICT BETWEEN THE SECOND DISTRICT
COURT'S INTERPRETATION OF THIRD DISTRICT COURT OPINION
REGARDING THE MANIFEST INJUSTICE ALLOWING BARON'S
CLAIM.
Rule 9.030., Florida Rules of Appellate Procedure, provides that the Florida
Supreme Court may take jurisdiction of cases reviewing decisions of district courts
of appeal that "expressly and directly conflict with a decision ofanother district
court ofappeal or ofthe supreme court on the same question oflaw...are
certified to be in direct conflict with decisions ofother district courts ofappeal."¹
In Deras vs State 54 So 3d 1023, 36 Fla. L. Weekly D153 (Fla. 3rd DCA
2011) the defendant pled guilty to driving-under-the-influence (DUI) manslaughter
and leaving the scene of an accident involving a death. The defendant brought a
postconviction petition. The Circuit Court, Miami-Dade County, summarily
WEST'S FLORIDA STATUTES ANNOTATED
FLORIDA RULES OF APPELLATE PROCEDURE
Current with amendments received through 3/1/2014
Rule 9.030(a)(2)(A) Florida Rules of Appellate Procedure, Jurisdiction of Courts
(a) Jurisdiction of Supreme Court.
(2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review
(A) decisions of district courts of appeal that
(i) expressly declare valid a state statute;
(ii) expressly construe a provision of the state or federal constitution;
(iii) expressly affect a class of constitutional or state officers;
(iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same
question of law;
(v) pass upon a question certified to be of great public importance;
(vi) are certified to be in direct conflict with decisions of other district courts of appeal;
5
denied the motion for postconviction relief and the defendant appealed.
The
District Court of Appeal, held that the defendant's postconviction motion, alleging
ineffective assistance of counsel and insufficient evidence to sustain conviction,
was entitled to review to determine whether the defendant's plea was manifest
injustice. The court reviewed Deras' third post conviction motion for relief in
which he alleged a manifest injustice as there was no factual basis for the charge
and stated,
"ifwhat the defendant claims is true, his claim should be
revisited under the manifest injustice exception articulated in
State v. McBride, 848 So.2d 287, 291-92 (Fla.2003). Ifin fact,
the defendantfled the scene ofthefirst accident which, based
on the citations submitted by the defendant in his appeal, only
involved property damage, and he did notflee the scene ofthe
second accident, which resulted in the death ofthe victim, then
to deny the defendant relief would result in mamfest injustice.
Ifthe defendant pied to a charge to which there was no factual
basis, his trial counsel provided ineffective assistance of
counsel resulting in manifest injustice. Thus, ifthe defendant
did notfleefrom the second accident, he should be permitted to
withdraw his plea as to leaving the scene ofthe accident
involving death, the charge should be reduced to leaving the
scene ofan accident involving property damage, the offenses
should be rescored, and the sentence for both offenses
reconsidered.
In Sims vs State 998 So 2d 494, 33 Fla. L. Weekly S698 (Fla. 2008) the
defendant was convicted in the Circuit Court, St. Johns County, of leaving the
scene of an accident involving death and the defendant appealed. The District
Court of Appeal affirmed. Defendant petitioned to invoke discretionary
jurisdiction. The Supreme Court dismissed the petition as untimely and defendant
6
moved for reinstatement. Upon granting reinstatement, the Supreme Court held
that the Supreme Court would treat defendant's notice to invoke as timely filed due
to appellate counsel's ineffective assistance, and the trial court erred in imposing
victim-injury points in sentencing defendant.
In Carabajal vs State, 75 So.3d 258, 36 Fla. L. Weekly S628 (Fla. 2011)
The defendant who pled nolo contendere to various felony drug offenses and was
sentenced to 155 months in prison filed motion for postconviction relief,
challenging the jurisdiction of the trial court. The Circuit Court, Lee County,
denied the motion on the merits and the defendant appealed. The Second District
Court of Appeal affirmed and certified a conflict. The Supreme Court granted
review. The Supreme Court held that any lack ofjurisdiction on part of the Office
of the Statewide Prosecutor (OSP) to prosecute defendant did not divest the circuit
court ofjurisdiction over the charged felony offenses, disapproving Luger v.
State, 983 So.2d 49; Winter v. State, 781 So.2d 1111; and a conviction resulting
from an information signed by a state officer lacking authority is not void ab initio
but is, at most, voidable upon timely challenge; disapproving Small v. State, 56
So.3d 52; Brown v. State, 917 So.2d 272; Zanger v. State, 548 So.2d 746.
In Breitberg vs State 14 So.3d 1253, 34 Fla. L. Weekly D1356 (Fla. 4th
DCA 2009) the defendant filed motion to correct an illegal sentence, relating to his
designation as a sexual predator. The Circuit Court, Seventeenth Judicial Circuit,
Broward County, denied relief. The defendant appealed. The District Court of
7
Appeal affirmed. After stay of review, the Supreme Court, granted review,
quashed the decision of the District Court of Appeal, and remanded for
reconsideration. On remand, the District Court of Appeal, held that defendant's
challenge to trial court's order designating him as a sexual predator, alleging that
the designation was void because it was made without jurisdiction, i.e., the order
was entered after defendant had filed a notice of appeal from his qualifying
conviction and sentence, could not be brought in a postconviction motion to correct
an illegal sentence.
In Butler vs State 95 So 3d 294, 37 Fla. L. Weekly D1598 (Fla. 3rd DCA
7/5/12) the Third DCA sanctioned a defendant who brought successive post
conviction motions challenging his multiple convictions of multiple victims for
attempted armed robbery and armed kidnapping arising out of the exact same
criminal episode. The court denied the motion and sanctioned the defendant.
"Butler's current petition, denied by the trial court on October 27th, 2011, raises
the same issues, i.e., that his right against doublejeopardy was violated because
he was convicted offour counts ofkidnapping with a weapon andfour counts of
attempted armed robbery. He claims that the petition is neither time barred nor
successive because the current claim isfounded on mamfest injustice, allowing
the claim to be raised at any time and requiring substantive relief...The issues
raised have been considered and determined on the merits. The claim of
8
manifest injustice is without merit andfails to overcome the bar against
successive filings."
9
II. BARON DEMONSTRATED A MANIFEST INJUSTICE AS THERE
WAS NO FACTUAL BASIS TO FIND BARON GUILTY OF A
KIDNAPPING IN ADDITION TO THE ROBBERY OFFENSE.
In Faison vs State 426 So 2d 963 (Fla. 1983) the Florida Supreme Court
established the test to be applied when considering whether a separate charge of
kidnapping could be charged in addition to the other substantive offense involved.
In Faison, the defendant was convicted in the Circuit Court, Dade County, of two
counts of kidnapping, two counts of sexual battery, and one count of first-degree
burglary, and he appealed. The District Court of Appeal vacated in part and
otherwise affirmed. On cross petitions for review, the Supreme Court held that
asportation of rape victims by substantial force and violence to locations which
made the rapes easier to commit and reduced the danger of detection constituted
kidnapping, even though only short distances were involved. The court adopted
the three part test used by the Kansas Supreme Court in State v. Buggs, 219 Kan.
203, 547 P.2d 720 (1976) which stated,
"Ifa taking or confinement is alleged to have been done to
facilitate the commission ofanother crime, to be kidnapping
the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely
incidental to the other crime;
(b) Must not be ofthe kind inherent in the nature ofthe
other crime; and
(c) Must have some sigmficance independent ofthe other
crime in that it makes the other crime substantially easier of
commission or substantially lessens the risk ofdetection."
10
In Lewis v. State 50 So.3d 86 (Fla.App. 4 Dist. 2010) the defendant was
convicted in the Circuit Court, Seventeenth Judicial Circuit, Broward County, of
attempted robbery with a firearm, aggravated assault with a firearm, armed
kidnapping with a firearm, and resisting arrest with violence. The defendant
appealed. The District Court of Appeal held that movement or confinement of
victim was incidental to robbery and thus was not sufficient to support kidnapping
conviction. Relying upon Russell v. State, 874 So.2d 1256 (Fla. 4th DCA 2004),
the court stated, "a kidnapping charge cannot stand where the victim's
confinement ceases when the accompanying crime ends...any confinement
accompanying a robbery would be incidental ifit ceased naturally with the
robbery."
11
CONCLUSIONS
The Florida Supreme Court has jurisdiction over the matter to resolve the conflict
noted between the Second District Court of Appeal and the Third. Nowhere was
there an indication in the Third District Court's opinion in Deras vs State 54 So 3d
1023 (Fla. 3d DCA 2011), that the opinion was limited to the facts of the case as
the Second District court opined.
P TRICE R. BARON
DC#T61459
Lawtey Correctional Institution
7819 NW 228th Street
Raiford, Florida 32026
12
CERTIFICATE OF SERVICE BY PRO SE INMATE
Pursuant to Rule 9.420, (d)(1), I certify that I placed this document in the hands of
Rf ¥6 7 ( IT |LÍ , Legal Mail officer, Lawtey Correctional
Institution, 7819 NW 228th Street, Raiford, Florida 32026 for mailing to:
042
the Office of the Honorable Pamela Jo Bondi, Attorney General, The
Capitol, PL-01, Tallahassee, Florida 32399-1050 and
042
the Clerk of the Court, Florida Supreme Court, Supreme Court Building,
500 South Duval Street, Tallahassee, Florida 32399-1925
this
day of July, 2014.
PATRICE R. BARON
DC#T61459
Lawtey Correctional Institution
7819 NW 228th Street
Raiford, Florida 32026
LEGAL MAIL
PROVID D TO LAWTEY C.I.
DATE I / FOR
NG.
INMA E INI lALS
13
STATEMENT OF COMPLIANCE
This brief complies with the requirements of Florida Rule of Appellate procedure
9.210(a)(2), which states,"Computer-generated briefs shall befiled in either
Times New Roman 14-pointfont or Courier New 12-pointfont. All computergenerated briefs shall contain a certificate ofcompliance signed by counsel, or
the party ifunrepresented, certifying that the briefcomplies with thefont
requirements ofthis rule. The certificate ofcompliance shall be contained in the
briefimmediatelyfollowing the certificate ofservice."
PATRICE R. BARON
DC#T61459
Lawtey Correctional Institution
7819 NW 228th Street
Raiford, Florida 32026
14