Electronically Filed 04/04/2013 11:50:03 AM ET
RECEIVED, 4/4/2013 11:53:34, Thomas D. Hall, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
TREVARIOUS J. PRIDE,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
Case No. SC13-497
L.T. Case No. 4D12-1903
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ON DISCRETIONARY REVIEW FROM THE
FOURTH DISTRICT COURT OF APPEAL
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RESPONDENT’S BRIEF ON JURISDICTION
PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida
CELIA A. TERENZIO
BUREAU CHIEF, W. PALM BEACH
Florida Bar No. 0656879
MELVIN G. MOSIER
Assistant Attorney General
Florida Bar No. 0029267
1515 North Flagler Drive, Ninth Floor
West Palm Beach, FL 33401
(561) 837-5000
[email protected]
Counsel for Respondent
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES
3
STATEMENT OF THE CASE AND FACTS
4
SUMMARY OF THE ARGUMENT
4
ARGUMENT
5
THERE IS NO BASIS FOR DISCRETIONARY
REVIEW OF THE DECISION OF THE DISTRICT
COURT
CONCLUSION
8
CERTIFICATE OF SERVICE AND COMPLIANCE
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2
TABLE OF AUTHORITIES
Authority Cited
Page Number
Brown v. State, 983 So.2d 706 (Fla. 5th DCA 2008)………………………………5
McLeod v. State, 52 So. 3d 784 (Fla. 5th DCA 2010)………...………………...…5
Mendenhall v. State, 999 So. 2d 665 (Fla. 5th DCA 2008)………………………...5
Mendenhall v. State, 48 So. 3d 740 (Fla. 2010)……………………………….…5-6
Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010)……………………………..5
Art. V, § 3(b)(3), Fla. Const…………………….………………………………….7
Fla. Stat. 775.082, (2012)………………..…………………………………….…...6
Fla. Stat. 775.087, (2012)…………………..………………………………….…5-7
Fla. R. App. P. 9.030(a)(2)(A)……………………..……………………………….7
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STATEMENT OF THE CASE AND FACTS
Petitioner was convicted of Count I: Attempted Second Degree Murder, with
special finding by the jury that Appellant actually possessed a firearm, and
discharged a firearm in the course of committing the crime, causing great bodily
harm upon a person; Count II: Attempted Second Degree Murder, with special
finding by the jury that Appellant actually possessed a firearm, and discharged a
firearm in the course of committing the crime; Count III: Attempted Second
Degree Murder, with special finding by the jury that Appellant actually possessed a
firearm, and discharged a firearm in the course of committing the crime. Petitioner
filed 4D12-1903 in the Fourth District Court of Appeal on June 5, 2012.
Petitioner’s filing dealt with an allegation that his sentence is illegal as to Count I,
because the sentence exceeds the statutory maximum of thirty (30) years allowed
for a first degree felony offense. Petitioner’s appeal was dismissed on January 23,
2013.
SUMMARY ARGUMENT
This Court should decline to review the instant case because there is no
express and direct conflict between the instant case and any decision of this Court,
or any other District Court of Appeal. The merits of substantive matters in the case
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have already been addressed and disposed of by the appropriate court.
Accordingly, this Court should decline to exercise its jurisdiction over this case.
ARGUMENT
THERE IS NO BASIS FOR DISCRETIONARY
REVIEW OF THE DECISION OF THE DISTRICT
COURT
Petitioner claims that this Court should grant review because there is a direct
and express conflict between the decision here and the decision in Brown v. State,
983 So. 2d 706, 707 (Fla. 5th DCA 2008); McLeod v. State, 52 So. 3d 784, 786
(Fla. 5th DCA 2010); Wooden v. State, 42 So. 3d 837 (Fla. 5th DCA 2010).
(Petitioner’s Jurisdictional Brief, p. 1-2, 5, 7). This Court should decline to accept
jurisdiction.
The Fifth District Court of Appeal recognized in Brown v. State, 983 So.2d
706 (Fla. 5th DCA 2008), that “the imposition of a mandatory minimum sentence
in excess of the maximum penalty was indeed permissible based upon special
findings such as those found in this case.” Mendenhall v. State, 999 So. 2d 665,
669 (Fla. 5th DCA 2008).
The Fourth District’s opinion issued January 23, 2013, and properly cited
Mendenhall v. State regarding the issue. In Mendenhall v. State, 48 So. 3d 740
(Fla. 2010), this Court, addressing Florida Statute § 775.087, explained:
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Subsection (2)(b) provides that the mandatory minimum sentences in
subsections (2)(a)(1), (2)(a)(2), and (2)(a)(3) do not prevent a court
from imposing a longer sentence as authorized by law in addition to the
mandatory minimum sentence and that the defendant is not eligible for
early release or gain time prior to serving the minimum sentence:
Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not
prevent a court from imposing a longer sentence of incarceration as
authorized by law in addition to the minimum mandatory sentence, or
from imposing a sentence of death pursuant to other applicable law.
Subparagraph (a)1., subparagraph (a)2., or subparagraph (a)3. does not
authorize a court to impose a lesser sentence than otherwise required by
law.
Id at 747.
This Court concluded “that under section 775.087(2)(a)(3), the trial
court has discretion to impose a mandatory minimum within the range of
twenty-five years to life.” Id at 750. The Court also concluded that
“Mendenhall was properly sentenced to thirty-five years with a thirty-five
year mandatory minimum, notwithstanding the statutory maximum of thirty
years contained in section 775.082 for Mendenhall’s offense.” Id.
In resolving any perceived conflict between the statutory maximum in the
general sentencing statute and the mandatory minimum range of twenty-five years
to life, this Court has concluded that the specific provisions of section
775.087(2)(a)(3) prevail over the general provisions of the 775.082 regarding
statutory maximums. Id at 748.
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In the instant Petition, the trial court properly sentenced Appellant to thirtyfive years in the Department of Corrections in regard to Count I, and simply noted
that the court had complied with the minimum mandatory twenty-five year
requirement and did not sentence him to “less than twenty-five years and not more
than a term of imprisonment of life in prison.” Fla. Stat. 775.087(2)(a)(3) (2012).
Pursuant to the Florida Rules of Appellate Procedure 9.030 (a)(2)(A), the
discretionary jurisdiction of this Court may be sought to review decisions of the
District Court which:
(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 . . .
Id; Art. V, § 3(b)(3), (4), and (5), Fla. Const. Clearly, the decision of the Fourth
District in this case does none of the above. Therefore, this Court should decline to
accept jurisdiction.
The Fourth District’s order below does not expressly and directly conflict
with any decision of this Court or any other District Court of Appeal.
Accordingly, this Court does not have jurisdiction to review this case.
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CONCLUSION
WHEREFORE based on the foregoing arguments and authorities cited
herein, the Respondent respectfully requests this Honorable Court to decline to
exercise its jurisdiction to hear this case.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
Tallahassee, Florida
/s/Celia A. Terenzio
CELIA A. TERENZIO
Bureau Chief, West Palm Beach
Florida Bar No.: 0656879
/s/Melvin G. Mosier
MELVIN G. MOSIER
Assistant Attorney General
Florida Bar No.: 0029267
1515 North Flagler Drive
9th Floor
West Palm Beach, FL 33401
(561) 837-5000
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this brief has been furnished via U.S.
MAIL to: Trevarious J. Pride, pro se, DC# K70102, F-3206 Upper, Okeechobee
Correctional Institution, 3420 N.E. 168th Street, Okeechobee, FL 34972-4824 and
filed with the Florida Supreme Court via Florida Courts eFiling Portal on April 4,
2013.
/s/Melvin G. Mosier
MELVIN G. MOSIER
Assistant Attorney General
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief has been prepared with Times New
Roman 14 point type and complies with the font requirements of Rule 9.210.
/s/Melvin G. Mosier
MELVIN G. MOSIER
Assistant Attorney General
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