Electronical]v Filed 04/12/20]3 10:4S:50 AM ET
RECE]VED. 4/12/2Sl3 19:48:32. Thomas D. Hall, Clerk, Supreme Court
IN THE SUPREME COURT OF THE STATE OF FLORIDA
TALMADGE R.
CONNER,
Petitioner,
Case No.
SCl2-2306
5th DCA Case No. 5D12-1378
STATE OF FLORIDA,
Respor-dent .
ON DISCRET10NARY REVIEW OF THE
DISTRICT COURT OF APPEAL,
FIFTH DISTRICT
JURISDICTIONAL BRIEF OF RESPONDENT
PAMELA JO BONDATTCRNEY GENERAL
PAMELA J. KOLLER
ASSISTANT ATTORNEY GENERAL
F'-orida Bar No. 775990
WESLEY HEIDT
DAYTONA BEACH BUREAU CHIEF
CRIMINAL APPEALS
Florida Bar No. 0773026
444 Seabreeze Boulevard
5th Floor
Daytona Beach, FL
(386)
(386)
238-4990
238-4997
32118
(fax)
crimappdab@myfloridalegal . Com
COUNSEL FOR RESPONDENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES
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STATEMENT OF THE CASE AND FACTS .
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SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
ON THE FACE OF THE DECISION IN CONNER v.
STATE, INFRA, THERE IS NO EXPRESS AND DIRECT
CONFLICT WITH THE CASES CITED BY PETITIONER.
THIS COURT SHOULD,
THEREFORE,
DECLINE TO
ACCEPT JURISDICTION.
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CONCLUSION
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CERTIFICATE OF SERVICE
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CERTIFICATE OF COMPLIANCE .
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TABLE OF AUTHORITIES
CASES:
Ansin v. Thurston,
101 So. 2d 808 (Fla. 1958)
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Brancaccio v. State,
27 So. 3d 739
(Fla. 4th DCA 2010)
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Conner v. State,
97 So. 3d 976 (Fla. 5th DCA 2012)
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passim
Creek v. State,
82 So. 3d 840
(Fla. 4th DCA 2011)
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DHRS v. National Adoption Counseling Service, Inc.,
498 So. 2d 888 (Fla. 1986)
Henry v. State,
920 So. 2d 1245
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(Fla. 5th DCA 2006)
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(Fla. 5th DCA 2008)
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. 5
(Fla. 5th DCA 2004)
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Iacono v. State,
930 So. 2d 829
(Fla. 4th DCA 2006)
Jenkins v. State,
385 So. 2d 1356
(Fla. 1980)
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Maxwell v. State,
974 So. 2d 505
Randall v. State,
885 So. 2d 932
Reaves v. State,
485 So. 2d 829
(Fla. 1986)
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passim
OTHER AUTHORITIES:
Art. V, § 3 (b), Fla. Const. . . . . . . . . . . . . . . . . . . 3
Fla. R. App. P. 9.030 (a)
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11
STATEMENT OF THE CASE AND FACTS
The only facts relevant to this Court in determining whether
to accept jurisdiction are those contained within the opinion of
the District Court.1 Respondent, therefore, offers the following as
a substitute for Petitioner's statement of the case and facts.
The Fifth District Court's opinion in Conner v. State, 97 So.
3d 976 (Fla. 5th DCA 2012), states in toto:
We af f irm the summary denial of Conner ' s
motion to withdraw plea because his claims are
conclusively refuted by the record. See Henry
v. State,
920 So. 2d 1245,'1246
(Fla. 5th DCA
2006) ("Defendants are bound by the statements
made by them under oath; they are not entitled
to have their plea set aside by later claiming
the plea was involuntary based on their
allegedly perjured testimony."); Iacono v.
State,
930
So.
2d
829
(Fla.
4th DCA 2006)
(defendant's
claims
that
he
was
under
influence of psychotropic medication at time
of plea, thereby rendering plea involuntary,
conclusively refuted by plea colloquy).
AFFIRMED.
The opinion was issued on September 21, 2012 .
Petitioner timely filed a notice to invoke the discretionary
jurisdiction
initial
of
brief,
this
Court
on October
filed on January 8,
19,
2013,
2012.
However,
his
was untimely filed.
Petitioner filed a motion to accept brief as timely filed which was
granted by .this Court on March 20,
2013.
Respondent's brief on
jurisdiction follows.
1Reavesv.State, 485 So. 2d 829,
1
830
(Fla. 1986).
SUMMARY OF ARGUMENT
This
Court
should
decline
to
accept
jurisdiction
in
the
instant case . The Court is limited to the facts contained within
the four corners of the decision in determining whether an express
and direct conflict exists.
review,
On the face of the decision under
there is no express and direct conflict with the cases
identified by Petitioner.
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ARGUMENT
ON THE FACE OF THE DECISION IN
CONNER v. STATE, INFRA, THERE IS NO_
EXPRESS AND DIRECT CONFLICT WITH THE
CASES CITED BY PETITIONER.
THIS
COURT SHOULD, THEREFORE, DECLINE TO
ACCEPT JURISDICTION.
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Petitioner
seeks
___
discretionary review with this
honorable
Court under Article V, Section 3 (b) (3) of the Florida Constitution.
See also Fla. R. App.
3(b) (3)
provides
district
court
of
that
P.
9.030 (a) (2) (A) (iv) . Article V,
the
appeal
Florida
decision
Supreme
only
if
Court
it
Section
may review a
"expressly
and
directly conflicts with a decision of another district court of
appeal or of the supreme court on the same question of law. " In
Reaves v.
State,
485
So.
2d
829,
830
(Fla.
1986) ,
this
explained:
Conflict between decisions must be express and
direct , i . e . , it must appear within the f our
corners of the majority decision. Neither a
dissenting opinion nor the record itself can
be used to establish jurisdiction.
This Court further stated:
This case illustrates a common error made in
preparing jurisdictional briefs based on
alleged decisional conflict.
The only facts
relevant to our decision to accept or reject
such petitions are those facts contained
within the four corners of the decisions
allegedly in conflict . As we explained in the
text above, we are not permitted to base our
conflict jurisdiction on a review of the
record or on facts recited only in dissenting
opinions. Thus, it' is pointless and misleading
to include a comprehensive recitation of facts
not appearing in the decision below, with
citations
to the
record,
as
petitioner
provided
here.
Similarly,
voluminous
appendices are normally not relevant.
3
Court
Reaves v. State, 485 So. 2d at 830, n.3. Therefore,
Petitioner's
references to facts not contained in the district court's opinion
should, therefore, be disregarded as not relevant to this Court's
decision.
Additionally,
this
Court
has
held
that
inherent
or
so-called "implied" conflict may not serve as a basis for this
Court's jurisdiction. DHRS v. National Adoption Counseling Service,
Inc.,
498 So. 2d 888,
889
(Fla. 1986).
A review of his brief reveals that Petitioner has failed to
demonstrate
expre'ss
and
direct
conflict
between
the
instant
decision of the Fifth District Court and the case he references in
his issue statement, Iacono v. State, 930 So. 2d 829 (Fla. 4th DCA
2006). Iacono was cited in Conner in support for the Fifth District
Court's statement of the principle that a motion to withdraw a plea
can be summarily denied when the claim is conclusively refuted by
the record and that a defendant should not be allowed to pursue a
claim when
the
necessary
conclusion would be
that
he
or
she
perjured themselves during the plea colloquy. Conner, 97 So. 3d at
976.
In Iacono, the Fourth District Court held that,
"the signed
waiver of rights form and appellant's sworn statements to the court
during the plea colloquy conclusively refute the postconviction
claim that he was "too.messed up" to understand the plea." Id. at
830 . The Fourth District Court further explained that , " [a] llowing ·
this type of claim would undermine the purposes behind the oath to
tell
the
truth,
determination
of
the
plea
forms,
voluntariness."
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Id.
and
at
the
plea
831'832.
colloquy's
Notably,
the
Fourth District Court was relying upon a Fifth District Court
opinion, Henry v. State,
920 So. 2d 1245
(Fla. 5th DCA 2006).
Id.
Henry was also cited to with approval in Conner. Id. The holdings
in Iacono do not expressly and directly conflict with the holding
in Conner and,
in fact,
were cited with approval by the Fifth
District Court in Conner. Id. at 976.
Moreover, Petitioner's arguments are unsupported by the facts
contained
in
the
four
corners
of
the
Conner
opinion
and,
accordingly, Petitioner has not and cannot demonstrate any express
and direct conflict between Conner and Brancaccio v. State, 27 So.
3d 739,
742
(Fla.
4th DCA 2010) (the trial court did not err in
rejecting the claim that the newly discovered evidence regarding
the warnings of the side effects of Zoloft would have probably
resulted in an acquittal on retrial."); Maxwell v. State, 974 So.
2d 505, 510 (Fla. 5th DCA 2008) ("once the trial court was presented
with
reasonable
grounds
to
question
Maxwell's
mental
competence . . . . court was required by rule 3 . 210 (b) t o have Maxwell
evaluated
by at
least
one
more
expert
and
hold
a
competency
hearing. The trial court's failure to do so was error."); Creek v.
State,
82
So.
3d
840
(Fla.
4th
DCA
2011) ("Although
the
plea
colloquy was extensive, the trial court did not ask Creek about his
mental capacity or his drug use.
Therefore,
the record does not
conclusively refute the allegations in the motion."); or Randall v.
State, 885 So. 2d 932, 933
to
an
evidentiary
(Fla. 5th DCA 2004) (defendant entitled
hearing
regarding
claim
that
medications
interfered with voluntary and intelligent nature of his plea where
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plea'colloquy did not adequately address this issue).
On the contrary, it is clear from the authorities cited by the
Conner opinion and by Petitioner that ·the district courts are in
accord with the
general
principle
that
a
defendant
who
makes
certain representations regarding any medications or mental health
issues while under oath during a plea colloquy may not then later
make a claim of involuntary plea, thus leading to the conclusion
that
he
or
she
perjured
themselves
during
the plea
colloquy.
Furthermore, that the sworn representations of the defendant made
during the plea colloquy provide a basis for a finding that the
claim is conclusively refuted by the record thus permitting a trial
court to summarily deny such a claim. However, where a trial court
failed to make an adequate
medication
entitled
to
issues
an
during
inquiry regarding mental
a plea
evidentiary
colloquy,
hearing.
a
Conner
health or
defendant
plainly
may be
does
not
directly and expressly conflict with the holdings espoused in the
foregoing authorities.
Finally, in Jenkins v. State, 385 So. 2d 1356, 1357,1358 (Fla.
1980), this Court discussed the creation of the district courts of
appeal and quoted from Ansin v. Thurston, 101 So. 2d 808, 810 (Fla.
1958) :
It was never intended that the district courts
of appeal should be intermediate courts. ...
To fail to recognize that these are courts
primarily of final appellate jurisdiction and
to allow such courts to become intermediate
courts of appeal would result in a condition
far more detrimental to the general welfare
and the speedy and efficient administration of
justice
than
that
which
6
the
system
was
designed to remedy.
Accordingly,
not
only has
the
Petitioner
failed
to
establish
jurisdiction as there is no express and direct conflict, but, also,
such an issue is not requiring of this Court's time and attention,
as
the
district
courts
have
fairly
Jurisdiction should be denied.
7
addressed
the
matter.
CONCLUSION
Based
on the
arguments
and
authorities
presented
herein,
Respondent respectfully requests this honorable Court decline to
accept jurisdiction in this case.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and
foregoing Jurisdictional Brief of Respondent has been furnished by
U.S. Mail to pro se Petitioner, Talmadge Conner, DC# 937269, Dorm
D1-208-U,
Lake
Correctional Institution,
19225 U.S. Highway 27,
Clermont, Florida 34715-9025, this 12th of April, 2013.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief was typed in 12 point Courier
New.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/Wesley Heidt
WESLEY HEIDT
DAYTONA BEACH BUREAU CHIEF
CRIMINAL APPEALS
Fla. Bar No. 0773026
/s/Pamela J. Koller
PAMELA J.
ASSISTANT
Fla. Bar.
OFFICE OF
KOLLER
ATTORNEY GENERAL
No. 0773026
THE ATTORNEY GENERAL
444 Seabreeze Boulevard
Suite '500
Daytona Beach, 'Florida 32118
(386) 238-4990/ 238-4997 (fax).
[email protected]
8
97 So.3d 976
Page 1 of 2
West Reporter Image (PDF)
97 So.3d 976, 37 Fla. L. Weekly D2253
Briefs and Other Related Documents
Judges and Attorneys
District Court of Appeal of Florida,
Fifth District.
Talmadge R. CONNER, Jr., Appellant,
V.
STATE of Florida, Appellee.
No.5D12-1378.
Sept. 21, 2012.
Appeal from the Circuit Court for Brevard County, Robert A. Wohn, Jr., Judge.
Talmadge R. Conner, Jr., Clermont, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General,
Daytona Beach, for Appellee.
PER CURIAM.
We affirm the summary denial of Conner's motion to withdraw plea because his claims are
conclusively refuted by the record. See Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006)
("Defendants are bound by the statements made by them under oath; they are not entitled to have
their plea set aside by later claiming the plea was involuntary based on their allegedly perjured
testimony."); Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006) (defendant's claims that he was
under influence of psychotropic medication at time of plea, thereby rendering plea involuntary,
conclusively refuted by plea colloquy).
AFFIRMED.
GRIFFIN, EVANDER and BERGER, JJ., concur.
Fla.App. 5 Dist.,2012.
Conner v. State
97 So.3d 976, 37 Fla. L. Weekly D2253
Briefs and Other Related Documents (Back to top)
0425D12-1378
(Docket) (Apr.5, 2012)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
042
Berger, Hon. Wendy Williams
State of Florida District Court of Appeal, 5th District
Daytona Beach, Florida 32114
Litigation History Report | Judicial Reversal Report | Profiler
042
Evander, Hon. Kerry I.
State of Florida District Court of Appeal, 5th District
Daytona Beach, Florida 32114
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