IN THE S'JPREME COURT OF
FLORID^
CLERK, SUPREME COURT
STATE OF FLORIDA,
Petitioner,
CASE NO:
5th DCA NO.:
V.
94-477
RONALD S . NATTRESS,
Respondent,
ON DISCRETIONARY REVIEW FROM
THE FIFTH DISTRICT COURT O F APPEAL
PETITIONER'S BRIEF ON JURISDICTION
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
/la.
ROBIN COMPTON JONES
ASSISTANT ATTORNEY GENERAT;
4 4 4 Seabreeze
Bar #846864
Boulevard
Fifth Floor
Daytona Beach, FL
32118
( 9 0 4 ) 238-4990
COUNSEL FOR P E T I T I O N E R
a
TABLE OF CONTENTS
-PAGES :
TABLE OF AUTHORrTLES .......~..........................~~.~...ii
STATEMENT OF THE CASE AND FACTS,. ............................
1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
DECISION IN THIS CASE IS IN
EXPRESS RND DIRECT CONFLICT WITH A
DECISION FROM THIS COURT
THE
.......................
CONCLUSION ...................................................
CERTIFICATE OF SERVICE . . . . .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 5
3
5
TABLE OF AUTHORITIES
CASES:
PAGES :
Ashley v. S t a t e ,
614 So. 2d 486 ( F l a . 1993) ...............................
4
Jollie v , S t & u t e r
4 0 5 So. 2d 4 1 8 ( F l a . 19SlE ...............................
3
Massey v . State,
609 SO. 2d 598 ( r i a , 1992)
.............................
Thompson v. State,
638 SO. 2d 116 (Fla. 5th DCA 1994)
....................
2-4
L-3
STATEMENT QF.-_TME CASE AND FACTS
Respondent pled guilty to c a r r y i n g a concealed firearm,
He
signed a plea form t h a t provided f o r the maximum sentences should
he be determined by t h e judge to be an h a b i t u a l offender and that
he understood t h a t he corxld be subject to a maximum sentence of
ten years w i t h no eligibility for basic gain time if found by the
judge to be a n habitual o f f e n d e r .
H e affirmatively indicated at
his plea hearing that he read the written agreement before he
signed it, t h a t he had an adequate opportunity to a s k q u e s t i o n s
of h i s attorney about the agreement, and t h a t he understood the
agreement.
Respondent was sentenced as an habitual offender to
three
probation.
The
habitual
offender
years
vacated
0
the
Fifth
sentences
resentencing citing Thompson v . S t a t e ,
DCA 1994).
District
Court
and
of
Appeal
remanded
for
638 So. 2 6 116 (Fla. 5th
The State then filed a Notice To Invoke Discretionary
Jurisdiction of t h i s Court based on express and direct conflict
with a decision of this Court.
- 1 -
SUKhZARY OF THE ARGUMENT
The o p i n i o n issued. in t h e instant case by the Fifth D i s t r i c t
Court of Appeal c i t e s Thompson, infra as controlling authority.
Thompson
currently pending
is
constitutes
review
in
this
court.
This
prima facie ox$i*ess conflict, if accepted, t h e r e b y
allowing this Court to exercise its jurisdiction.
As additional grounds for jurisdiction, the decision by the
Fifth D i s t r i c t Court of Appeal in this case is in express and
d i r e c t conflict w i t h this Court's decision in Massey, i n f r a .
Due
to t h i s conflict, this C o u r t should exercise its discretionary
jurisdiction.
- 2 -
ARGUMENT
THE DECISiOK
IN THIS CASE IS IN
EXPRESS AND D I R E C T CONFLICT WITH A
DECISION FROM THIS COURT.
A district
court of appeal per curiam opinion which cites as
controlling authority a decision that is either pending review in
or has been reversed by the Supreme Court continues t~ constitute
prima
f a c i e express conflict and allows the Supreme Court t o
exercise its jurisdiction.
1981).
Jollie v. State, 405 So, 26 418 (Fla.
The opinion issued in t h e instant case by the Fifth
D i s t r i c t Court of Appeal c i t e s Thompson v. State, as controlling
authority.
(Appendix)
Thampson is currently. pending review in
this Court, Florida Supreme Court Case Number 8 3 , 951, therefore,
if accepted, t h i s
C o u r t x ~ s te x e r c i s e
its jurisdiction in the
instant case.
As additionzJ g ~ e u ~ df o
s r jurisdiction, P e t i t i o n e r asserts
that t h e decision in the instant case is in express and direct
conflict with this Court's decision in Massey v. State, 609 So.
2d 5 9 8 (Fla. 1 9 9 2 ) .
ir, Massey, t h i s Court h e l d t h a t the State's
failure to s t r i c t l y comply w i t h the statute requiring t h a t n o t i c e
of the state's intention to have the defendant sentenced as an
habitual o f f e n d e r be served upon the defendant, may be reviewed
under the harmless err01 analysis.
In that case,
the State's
e r r o r in failing ta serve actual notice to the d e f e n d a n t was
harmless where the d e f e n d a n t and his attorney had actual n o t i c e
of t h e State's i n t e n t i o r , ,
In the i n s t a n t case,
the Fifth D i s t r i c t Court of Appeal
reversed Respondent ' s sentence relying on Thompson, s u p r a .
- 3 -
The
0
instant decision is in express and direct conflict with Massey,
suprar because
the Fifth District failed to a p p l y a harmless
As in Nassey, the Respondent had actual notice
error analysis,
of the possible consideration of habitual offender sanctions.
At the t i m e of e n t e r i ; i ~his plea, Respondent signed a p l e a
agreement which provided f o r the maximum sentence should he be
determined by t h e Judge to be an habitual offender as well as the
consequences
such
of
a
sentence.
Respondent
affirmatively
i n d i c a t e d at his plea h e a r i n g t h a t h e read t h e agreement, had a n
adequate opportunity to ask questions of his attorney about the
agreement,
and
that
he
understood
the
agreement-
Because
Respondent had actual n o t i c e of the possibility of a h a b i t u a l
offender sentence before he entered his plea, the protections
0
afforded by Ashley v. State, 614
provided to him,
written
notice
of
and any e r r o r
So.
2d 486 (Fla. 1 9 9 3 ) ,
were
in failing t o provide formal
habitualization was
harmless,
The Fifth
District. erred in failing to a p p l y a harmless e r r o r analysis as
outlined in MaSSeyI infra.
The Fifth District's d e c i s i o n in the instant case is in
express and d i r e c t conflict with this Court's decision in Massey,
irafra,
This honorable c o u r t s h o u l d exercise its jurisdiction in
this case and resolve the conflict between the two cases.
- 4 -
CONCLUSION
Based
Petitioner
on
the argumexts and authorities presented
respectfully requests
herein,
this honorable c o u r t exercise
its jurisdiction in this case.
Respectfully submitted,
ROBERT A. BUTTERWORTH
ATTORNEY GENERAL
ASSISTANT ATTORNEY GENERAL
Fla. Bar #846864
4 4 4 Seabreeze Boulevard
Fifth Floor
Daytona Beach, EL
32118
( 9 0 4 ) 238-4990
COUNSEL FOR PETITIONER
CERTIFICATE OF SERVICE
E HEREBY CERTIFY that a true and c o r r e c t copy af the above
and. f o r e g o i n g Jurisdictional Brief
Mail
to James Dickson Crock,
Beach, FL, 32118, this
hn
has
been
furnished by U . S .
315 Silver Beach Avenue,
Daytona
day of February, 1995.
Assistant-Attorney General
- 5 -
IN THE SUPREME COURT OF FLORIDA
STATE OF FLORIDA,
Petitioner,
v.
CASE NO.
5th DCA Case No.
94-477
RONALD S . NATTRESS,
Respondent.
APPENDIX
ROBERT A . BUTTERWORTH
ATTORNEY GENERAJL
ROBIN COMPTON JONES
ASSISTANT ATTORNEY GENERIG
Fla. Bar #846864
444 Seabreeze Boulevard
Fifth Floor
Daytona Beach, FL
32118
(904) 2 3 8 - 4 9 9 0
COUNSEL FOR PETITIONER
/
"
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 1995
!F
y+ :'-C./
RONALD S . NATTRES S r
Appe 11ant ,
CASE NO. 9 4 - 4 7 7
V.
STATE OF FLORIDA,
Appellee.
/
Opinion filed January
1995
Appeal from the C i r c u i t C o u r t
for Volusia County,
John W. Watson, 111, Judge.
James Dickson C r o c k , P . A . ,
Daytona Beach, for Appellant.
Robert A . Butterworth, Attorney General,
Tallahassee, and Robin Compton Jones,
Assistant Attorney General,
Daytona Beach, for Appellee.
PER CURIAM.
Appellant's habitual offender sentence v i o l a t e s the d i c t a t e s
of Thompson v.State, 638 So. 2d 116 ( F l a . 5th DCA 1994) and must be
vacated.
SENTENCE VACATED: REMANDED,
DAUKSCHr PETERSON and THOMPSON, JJ., concur.
+ 1
<'