FOR f4AILING
IN THE SUPREME COURT OF FLORIDA
WENDALL JERMAINE HALL,
Petitioner,
v.
Case No.: S c I 2. -)†33
DCA Case No: 1D12-899
LT Case No.: 94-3113
State of Florida,
Plaintiff/Respondent.
/
JURISDICTIONAL BRIEF OF APPELLANT
On Discretionary Review or An Appeal
from the District Court of Appeal
First District, State of Florida
Faithfully Submitted:
Wendall Hall 379682
Martin Correctional Institution
1150 S.W. Allapattah Road
Indiantown, Florida 34956
TABLE OF CONTENTS
I_tem
Pa e No.
TABLE OF CONTENTS.......................................................................................... ii
TABLE OF CITATIONS.........................................................................................iii
PRELIMINARY STATEMENT............................................................................... v
STATEMENT OF THE CASE and facts ................................................................. 1
SUMMARY OF THE ARGUMENT ....................................................................... 2 -3
ISSUE ONE
- ARGUlWENT
3.
THE
SUPREME
COURT
SHOULD
INVOKE
ITS
DISCRETIONARY JURISDICTION TO REVIEW THE WRITTEN
OPINION DECISION FINAL JUDGMENT OF THE FIRST
DISTRICT COURT OF APPEAL WHICH COMES IN EXPRESS
DIRECT CONFLICT WITH A DECISION OF ANOTHER
DISTRICT COURT OF APPEAL OR OF THE SC ON THE SAME
QUESTIONS OF LAW. ................................................................................. 3 CONCLUSION....................................................................................................
CERTIFICATE OF OATH..................................................................................... )O
CERTIFICATE OF FONT COMPLIANCE .......................................................... 10
CERTIFICATE OF SERVICE ............................................................................... lÔ
11
STATEMENT OF THE CASE AND FACTS
In the First Judicial Circuit Court, Escambia County, Florida in about
October 1997, Petitioner was adjudicated guilty and sentenced to a life sentence for
sexual battery conviction and about 11 years and 5 months concurrently for
burglary with battery conviction.
Petitioner timely appealed his sentence and conviction to the First District
Court of Appeal who reversed Petitioner's life sentence on his sexual battery
conviction, but affirmed his convictions on about June 1999.
On remand in the Circuit Court the court sentenced Petitioner to about 11
years and 9 months on his sexual battery conviction to run concurrent to his
burglary with battery conviction sentence in this case.
In 2011, Petitioner filed a 3.850 motion in the circuit court alleging his claim
of illegal sentence and unlawful convictions obtained in violation of the prohibition
against double jeopardy.
The circuit court dismissed the post-conviction motion as untimely.
Petitioner timely appealed court's judgment to the First District Court of
Appeal who per curiam affirmed trial court's order.
On or about October 2011, Petitioner filed a Petition for Writ of Habeas
Corpus in the Florida Supreme Court raising his claims of illegal sentence or
conviction obtained in the violation of prohibition against double jeopardy.
1
On September 21, 2011, the Florida Supreme Court transferred this case to
the First Judicial Circuit Court, Escambia County, Florida to consider his Writ of
Habeas Corpus as either pursuant to Fla.R.Crim.P. 3.800(a) or 3.850 postconviction motion.
On January, 2012, the circuit court dismissed the habeas corpus petition
treated as a Fla.R.Crim.P. Rule 3.850 post-conviction motion as untimely or
successive and did not consider his double jeopardy claims pursuant to
Fla.R.Crim.P. 3.800(a) as ordered by Florida Supreme Court order. Petitioner
timely appealed circuit court's order to the First District Court of Appeal who
issued a six page written opinion on August 8, 2012 affirming circuit court's order
and issued an order prohibiting Petitioner from filing further pro se appeals of his
sentence and conviction in this case to the First District Court of Appeal and issued
sanctions against Petitioner allowing Florida Department of Corrections to proceed
with disciplinary proceedings for filing frivolous appeal. Petitioner timely filed
notice of discretionary jurisdiction of Florida Supreme Court to invoke this Court's
discretionary jurisdiction.
SUMMARY OF THE ARGUMENT
Because the District Court of Appeal's decision is a six page written opinion
expressly and directly conflicting with a decision of another District Court of
Appeal or the Supreme Court on the same questions of law which conflict cases
2
are cited herein, the arguments of this brief, and pursuant to Fla.R.App.P. 9.030,
and Florida Constitution Article V, This Florida Supreme Court has jurisdiction
and should invoke its discretionary jurisdiction to review the f'mal order opinion of
the First District Court of Appeal to correct a manifest injustice and illegal
sentence or conviction obtained in violation of the prohibition against double
jeopardy which affects the outcome of Petitioner's sentences or convictions in this
case, and to resolve conflicting appeal court rulings.
ARGUMENT
ISSUE ONE
THE SUPREME COURT SHOULD INVOKE ITS
DISCRETIONARY JURISDICTION TO REVIEW THE
WRITTEN OPINION DECISION FINAL JUDGMENT OF
THE FIRST DISTRICT COURT OF APPEAL WHICH
COMES IN EXPRESS DIRECT CONFLICT WITH A
DECISION OF ANOTHER DISTRICT COURT OF APPEAL
OR OF THE SC ON THE SAME QUESTIONS OF LAW.
Standard of review should be pursuant to Fla.R.App.P. 9.030 and Florida
Constitution Article V.
Because the District Court of Appeal decision affirming trial court's order to
dismiss his petition for writ of habeas corpus, it treated as a Fla.R.Crim.P. 3.850
post-conviction motion on Petitioner's claims that his sentences and convictions
for count (1) battery and count (2) sexual battery amounts to a sentence and
conviction obtained in the violation of the prohibition against double jeopardy
apparent from the face of the records in which the trial court and District Court of
3
Appeal dismissed as untimely Petitioner not raising his double jeopardy claims in
his direct appeal of his sentence or convictions or in time frame for filing a Rule
3.850 post-conviction motion, expressly and directly conflicts on same questions
of law with the Florida Supreme Court ruling in Lippman v. State, 633 So.2d 1061
(Fla. 1994) holding "double jeopardy claim is not waived for defendant's failure to
raise claim in direct appeal or in post-conviction motion since records do not show
a voluntarily, intelligent waiver of his double jeopardy claim," and the First
District Court of Appeal's written opinion decision in expressly directly conflicts
with the Fourth District Court of Appeal case in Rimondi v. State, 37 Fla. L.
Weekly D.1327 (Fla. 4* DCA June 2012) holding that "a claim of double
jeopardy, illegal sentence obtained in violation of the prohibition against double
jeopardy can be raised and corrected for first time on appeal by appellate court at
any time." The District Court of Appeal decision expressly directly conflicts with
Henry v. Santana, 62 So.3d 1122 (Fla. 2011) holding that "a petition for Writ of
Habeas Corpus that shows the right to be discharged from custody for unlawful or
illegal conviction or sentence or the right to the writ is not made to depend upon
observance of the rules of the pleading, because it's a fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action."
The District Court of Appeal decision expressly and directly conflicts with
the Florida Supreme Court's order in Wendall Hall v. Kenneth Tucker case no:
SC11-1687 , dated September 21, 2011 regarding petitioner's previous
Petition for Writ of Habeas Corpus in this case where Florida Supreme Court
issued an order transferring of double jeopardy illegal sentence and unlawful
conviction to the First Judicial Circuit Court to consider claims pursuant to
Fla.R.Crim.P. 3.800(a) and directly and expressly conflicts with Florida Supreme
Court decision State v. Mancino, holding that "a sentence which does not comport
with constitutional limitation is illegal and apparent from the face of the records
can be raised or corrected at any time pursuant to Fla.R.Crim.P. 3.800(a) and the
District Court of Appeal decision in this case expressly and directly conflicts with
the decision in State v. McBride, 848 So.2d 291 (Fla. 2003) and Commissioner of
Internal Revenue v. Sunnen, 68 S.Ct. 715 (1948). Manifest injustice exception to
raise "manifest injustice" claims apparent from the face of the records at any time
on appeal or by post-conviction motion and since Petitioner's claims of being
sentenced and convicted of count (1) burglary with battery and count (2) sexual
battery prescribing the same elements or evil in one criminal episode on same
victim is an illegal sentence or conviction obtained in violation of prohibition
against double jeopardy violating the United States Constitution Article V and
Florida Constitution Section 9, amounting to a "manifest injustice" affecting the
outcome of Defendant's sentence or conviction and is a sentence obtained in
violation of a constitutional limitation which can be raised
5
pursuant
to Fla.R.Crim.P. 3.800(a) at any time for claims apparent from the face of the
records pursuant to State v. Mancino, 714 So.2d 429 (Fla. 1998).
See Mills v. State, 476 So.2d 172 (Fla. 1985), Florida Supreme Court held
double jeopardy prohibited sentences and convictions for both homicide and the
aggravated battery or aggravated battery that caused the homicide containing same
elements or occurring in the same criminal episode.
See Houser v. State, 474 So.2d 1193 (Fla. 1985) Florida Supreme Court held
homicide cannot be punished under two separate statutes which the legislators did
not intend to sentence or punish homicide under two separate statutes and that both
the convictions for DWI manslaughter and its sentence for vehicle homicide
conviction and sentence is a single act that had caused a single death not
punishable by two separate convictions.
See Carawan v. State, 515 So.2d 161 (Fla. 1987) Florida Supreme Court
held dual punishments convictions and sentence for manslaughter (for shooting the
victim) and aggravated battery (for shooting the victim) violates double jeopardy
clause of the United States Constitution 15* Amendment and Florida Constitution
Article I, Section 9.
See Firth v. State, 35 Fla. L. Weekly D.2049 (Fla. 5* DCA Sept. 10, 2010)
appellate court held "separate convictions for sexual battery with physical force or
6
deadly weapon and conviction of battery violated double jeopardy rights where
battery arose from continuous same criminal episode as sexual battery.
See Whalen v. U.S., 445 U.S. 684 (1980) or cited 100 S.Ct. 1432 (1980)
where United States Supreme Court held "double jeopardy prohibits the
cumulative punishments for the two separate offenses of "rape" (sexual battery)
and of the second offense of the killing of the same victim in the preparation of the
crime of rape (sexual battery because its contrary to Federal Statute and
constitutional law because the two statutes in controversies proscribed the same
offense.
In Petitioner' previous post-conviction motions and in his previous direct
appeal of his convictions and sentences, Petitioner could not raise his claims of
illegal sentence or conviction obtained in the violation of prohibition against
double jeopardy because when he filed his direct appeal in 1998 or 1999, he did
not have knowledge of his double jeopardy claims until December 2010 and he did
not have his trial or sentencing transcripts records until 2003 and because of this
fact he could not raise his claims within the 2 year window frame to file his postconviction 3.850 motion since his direct appeal court decision was rendered about
June or July 1999. He did not receive his trial or sentencing transcripts until after
the two year time frame to file his post-conviction Fla.R.Crim.P. 3.850 motion and
the court records do not show that Petitioner willfully, voluntarily or intelligently
waive
'double jeopardy claim
7
an order prohibiting Petitioner from filing further pro se appeals of his
sentence and conviction in this case to the First District Court of Appeal '
conflict with the United States Supreme Court ruling case in re Sindram, 111 S.Ct.
596 (1991) which held, "U.S. Supreme Court did not prohibit inmate from filing
pro se non extraordinary petition for writ of certiorari the most meaningful needed
appeal even though court prohibited inmate from filing further pro se petitions for
extraordinary writs and the court left open a door or remedy for inmate to file at
least a non-extraordinary writ petition to provide inmate with his right to access to
the courts to redress other pro se claims of inmate. The most crucial petition."
Also see in re McDonald, 109 S.Ct. 998 (1989); Johnson v. State, 37 Fla. L.
Weekly D.1331 (Fla. 4* DCA 2012) held "a claim demonstrated an illegal
sentence obtained against the Florida Supreme Court ruling in a case can be filed
for the first time on appeal at any time and failure of circuit court to comply with
Florida Supreme Court even if Petitioner's claims of double jeopardy illegal
convictions are allegedly untimely under Fla.R.Crim.P. 3.850 post-conviction
motion. However, Petitioner's claims of illegal sentence obtained in violation of
prohibition against double jeopardy apparent form the face of the records is not
untimely pursuant to Fla.R.Crim.P. 3.800(a) to correct his illegal sentence at any
time or by Petition for Writ of Habeas Corpus to vacate his unlawful conviction.
See State v. Mancino, 714 So.2d 429 (Fla. 1998) held an illegal sentence that
fails to comport with constitutional limitation or statutory limitation is by
definition illegal, apparent from the face of the records, can be corrected and
reviewed at any time pursuant to Fla.R.Crim.P. 3.800(a).
See Henry v. Santana, 62 So.3d 1122 (Fla. 2011) where Florida Supreme
Court held "a Petition for Writ of Habeas Corpus that shows the right to be
discharged from custody or the right to the writ is not made to depend upon
observance of the rules of the pleading because it's a fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action."
CONCLUSION
Pursuant to all facts, binding or persuasive case authorities and arguments, in
the interest of justice and fairness, this court should invoke its discretionary
jurisdiction to review the decision of the District Court of Appeal that expressly
and directly conflicts with a decision of another District Court of Appeal or of the
Florida Supreme Court on the same questions of law.
Wendall Hall 379682
CERTIFICATE OF OATH
Under penalties of perjury in accordance with State v. Shearer, 628 So.2d
1102 (Fla. 1993), I declare that I, Wendall Hall, have read the foregoing document
and the facts stated in it are true and correct.
Wendall Hall 3 9682
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that the foregoing Initial Brief of Appellant is
formatted in Times New Roman 14 Point Font in compliance with Rule Fla. R.
App. P. 9.210(a).
Wendall Hall 3 682
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
"Jurisdictional Brief" has been furnished by first class U.S. Mail to:
Pamela Jo Bondi Attorney General
Office of the Attorney General
The Capitol, PL-01
Tallahass e, FL 32399
On this
day of¢c;
012 by the undersigned.
Wendall Hall 3796 2
Appellant pro se
Martin Correctional Institution
1150 S.W. Allapattah Road
Indiantown, Florida 34956
IN THE SUPREME COURT OF FLORIDA
Wendall Hall,
Petitioner,
Sc No
v.
ÊtQ
Case No.:_ _
LT. No.: 94J1G
State of Florida,
Respondent.
/
APPENDLX
Ÿqes
Exhibit S
District Court of Appeal Opinion
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WENDALL HALL,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D12-899
STATE OF FLORIDA,
Appellee.
I
Opinion filed August 8, 2012.
An appeal from the Circuit Court for Escambia County.
Terry D. Terrell, Judge.
Wendall Hall, pro se, Appellant.
Pamela Jo Bondi,A ttorney General, Donna A. Gerace, Assistant Attorney General,
Tallahassee, for Appellee.
THOMAS, J.
Appellant appeals the trial court's order dismissing his "Petition for Writ of
Habeas Corpus" in which he asserted his convictions of both burglary with battery
and sexual battery violated the prohibition against double jeopardy. Appellant
contends the court erred by dismissing the petition without conducting an
EXHIBIT
l A
evidentiary hearing. On the merits, we affirm the trial court's order in its entirety.
We write only to address the frivolous nature of this appeal and the grounds for
directing that a certified copy of this opinion be forwarded to the appropriate
correctional institution, as provided by section 944.279, Florida Statutes, which
states: "A prisoner who is found by a court to have brought a frivolous . . . claim,
proceeding, or appeal in any court of this state . . . is subject to disciplinary
procedures pursuant to the rules of the Department of Corrections." § 944.279(1),
Fla. Stat. In addition, we direct that Appellant be prohibited from filing any
additional pleadings in this court unless signed by a member of the Florida Bar.
We note that this is not Appellant's first foray into this court on this case.
He has filed a total of seven appeals in this matter, three of which concerned the
postconviction motions addressed in the trial court's order. Furthermore, our
review of the docket shows that Appellant has also filed twelve appeals with this
court addressing his convictions for crimes in another case. In virtually every
instance, the appeal was, as here, filed pro se. Appellant's actions have thus
absorbed an inordinate amount of judicial resources with repeated motions and
appeals that have in almost every instance proved meritless. Such a waste of
limited judicial resources serves no purpose other than to delay resolution of
meritorious claims brought by others.
2
Even disregarding Appellant's continual abuse of the judicial system,
however, we are authorized to sanction an abusive inmate litigant, regardless of his
prior judicial history. See, e.g., Johnson v. State, 44 So. 3d 198, 200 (Fla. 4th
DCA 2010) (holding a claim need not be repetitive to be frivolous or to be an
abuse ofthe postconviction process).
Here, the trial court commendably took the time and effort to write an
extensive order explaining the reasons why Appellant's petition was meritless.
One of these reasons was that Appellant had already filed a postconviction motion
pursuant to Florida Rule of Criminal Procedure 3.850, alleging the same double
jeopardy ground upon which his petition was based. That motion was dismissed as
untimely, and this court affirmed that order in Hall v. State, 67 So. 3d 203 (Fla. 1st
DCA 2011).
As the trial court correctly found, Appellant could show no reason why he
could not have been aware of any alleged basis for a double jeopardy claim either
at the time of his direct appeal of his conviction and sentence, or within the time
allowed for filing a postconviction motion pursuant to rule 3.850. The court also
explained that Appellant could not simply "select[] a new title for his pleadings
requesting postconviction relief" in an effort to evade these time restrictions or the
prohibition against successive and untimely motions. "Untimely post-conviction
challenges, which do not establish an exception to the two-year time limit, are
3
abusive and sanctionable, and an appeal from the denial of an untimely claim is
frivolous when no arguable basis for an exception to the time limitation exists."
Johnson, 44 So. 3d at 200.
We also agree with the trial court that "[s]imply construing an alleged error
as 'manifest injustice' does not relieve [Appellant] of the time bar contained in"
rule 3.850. See Johnson, 44 So. 3d at 200-01("This post-conviction challenge was
untimely, and a petition for writ of habeas corpus may not be used as a substitute
for a rule 3.850 post-conviction motion. [Appellant's] argument that the trial court
failed to consider a "manifest injustice" exception in this case is entirely devoid of
merit.") (citing Fla. R. Crim. P. 3.850(h) and Baker v. State, 878 So. 2d 1236, 1241
(Fla. 2004)).
Meritless inmate filings like this can result in the litigant's loss of gain-time.
Pursuant to section 944.28(2)(a), Florida Statues, "[a]ll or any part of the gain-time
earned by a prisoner according to the provisions of law is subject to forfeiture if
such prisoner . . . is found by a court to have brought a frivolous suit, action, claim,
proceeding, or appeal in any court . . . ."
This penalty is applicable to all of an inmate's sentences.
Section
944.28(2)(b) provides that "[a] prisoner's right to earn gain-time during all or any
part of the remainder of the sentence or sentences under which he or she is
imprisoned may be declared forfeited because of the seriousness of a single
instance of misconduct . . . ." (Emphasis added.) Thus, a prisoner who files a
frivolous appeal such as the one here runs the risk of impacting his gain-time not
just as to the sentence applicable to the case in which the frivolous pleading was
filed, but also as to any other sentences he may be serving.
Here, we know from our opinion in Hall v. State, 738 So. 2d 374 (Fla. 1st
DCA 1999), that just six weeks after committing the heinous crimes addressed in
this appeal, Appellant committed additional violent offenses, including two counts
of sexual battery. The record reflects that these subsequent charges were addressed
in lower court case number 94-3077, and Appellant was sentenced for those
charges prior to his sentence in the instant case. The record also shows that
Appellant's sentence in the instant case was to run consecutively to his sentence in
case number 94-3077.
In addition to referring this matter to the Department of Corrections, we
prohibit Appellant from filing any furtherpro se pleadings in this court. The trial
court put Appellant on notice that ifhe files any future pro se motions it finds to be
frivolous or repetitious, the court may issue an order to show cause why he should
not be prohibited from filing any further pro se pleadings. Considering all of the
factors in this matter, and after reviewing Appellant's response to our order to
show cause, we do not think such patience is warranted here.
5
Any pleadings or papers filed in this court regarding said convictions and
sentence must be reviewed and signed by an attorney licensed to practice in this
state. Accordingly, the clerk is directed not to accept any further pro se pleadings
or filings from Appellant in this matter. And because Appellant has abused the
postconviction process and filed a frivolous appeal in this court, we direct the clerk
of this court to forward a certified copy of this opinion to the appropriate
institution for disciplinary procedures, which may include forfeiture of gain-time.
See § 944.28(2)(a), Fla. Stat. (2009). See Griffin v. State, 962 So. 2d 1026, 102728 (Fla. 3rd DCA 2007) (prohibiting appellant from filing further pro se pleadings
after appellant filed repetitive pleadings making the same argument, and sending a
certified copy of the opinion to the Department of Corrections pursuant to section
944.279, Florida Statutes, for consideration of sanctions pursuant to section
944.28, Florida Statutes).
AFFIRMED.
WOLF and LEWIS, JJ., CONCUR.
6