IN THE SUPREME COURT OF FLORIDA ALLEN THOMAS LUDACASE NO SC0488Pe - PDF document

1 IN THE SUPREME COURT OF FLORIDA ALLEN T
IN THE SUPREME COURT OF FLORIDA ALLEN THOMAS LUDA,CASE NO. SC04-88Petitioner,LT Case No. 4D00-2780v.STATE OF FLORIDA,Respondent.****************************************************ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OFAPPEAL*****************************************************************RESPONDENT’S BRIEF ON JURISDICTIONCHARLES J. CRIST, JR.ATTORNEY GENERALCELIA A. TERENZIOAssistant Attorney GeneralBureau Chief, West Palm BeachFlorida Bar No. 0656879 LAUREL R. WILEYFlorida Bar No. 0506494 Counsel for Respondent iiiTABLE OF CONTENTS TABLE OF CONTENTSTABLE OF AUTHORITIESPRELIMINARY STATEMENTSTATEMENT OF THE CASE AND FACTS. SUMMARY ARGUMENT AR

2 GUMENTTHERE IS NO BASIS FORDISCRETIONARY
GUMENTTHERE IS NO BASIS FORDISCRETIONARY REVIEW OF THEDECISION OF THE DISTRICT COURT, ASTHE DECISION IS NOT IN CONFLICTWITH THIS COURT’S DECISIONS INHOPKINS V. STATE AND CASTOR V. STATE , OR THE DECISION OF THEFIRST DISTRICT IN MATHIS V. STATE .CONCLUSIONCERTIFICATE OF SERVICECERTIFICATE OF COMPLIANCE ivTABLE OF AUTHORITIES Cases CitedPage NumberCastor v. State , 365 So. 2d 701 (Fla. 1978)Department of Revenue v. Johnston , 442 So. 2d 950 (Fla. 1983)Hopkins v. State , 632 So. 2d 1372 (Fla. 1994)Jenkins v. State ,385 So. 2d 1356 (Fla. 1980)Kyle v. Kyle ,139 So. 2d 885 (Fla. 1962)Luda v. State , 860 So.2d 457 (Fla. 4th DCA 2003)Mancini v. State ,312 So. 2d 732 (Fla

3 . 1975)Mathis v. State , 682 So. 2d 175
. 1975)Mathis v. State , 682 So. 2d 175 (Fla. 1st DCA 1996)Rules CitedRule 9.030 (a)(2)(A)(iv), Fla. R. App. P. vPRELIMINARY STATEMENT Petitioner, Allen Thomas Luda, was the defendant in thetrial court and Appellant in the Fourth District Court ofAppeal. Petitioner will be referred to herein as “thePetitioner” or “the Appellant.” Respondent, the State ofFlorida, was the prosecution in the trial court and Appellee inthe Fourth District Court of Appeal. Respondent will be referredto as “the Respondent” or “the State.” 1STATEMENT OF THE CASE AND FACTS Petitioner seeks discretionary review of a decision of theDistrict Court of Appe

4 al of Florida, Fourth District(hereinaft
al of Florida, Fourth District(hereinafter the Fourth District), affirming his conviction forsexual battery and indecent assault upon a child. Luda v. State ,860 So.2d 457 (Fla. 4th DCA 2003).On appeal, Petitioner argued that the trial court reversiblyerred in clearing the courtroom when minor victims testified.Id . at 458. The Fourth District held that the issue was notpreserved for appeal, as “Luda’s attorney generally objected tothe closure, [but] he did not request that Luda’s family membersbe allowed to remain in the courtroom and did not draw the trialcourt’s attention to the language of section 918.16, FloridaStatutes (1998), that exempts th

5 e parties’ immediate familiesfrom e
e parties’ immediate familiesfrom exclusion from the courtroom.” Id . at 458, n. 1.Petitioner now seeks the discretionary jurisdiction of thisCourt, alleging that the decision of the Fourth District is inexpress and direct conflict with Hopkins , Castor , and Mathis . 2SUMMARY ARGUMENT This Court should decline to review the instant case sincethere is no basis for discretionary review. The decision of theDistrict Court does not conflict with Hopkins v. State , Castor v. State , or Mathis v. State . 3ARGUMENT THERE IS NO BASIS FOR DISCRETIONARY REVIEWOF THE DECISION OF THE DISTRICT COURT, ASTHE DECISION IS NOT IN CONFLICT WITH THISCOURT’S DECISIONS IN H

6 OPKINS V. STATE ANDCASTOR V. STATE , OR
OPKINS V. STATE ANDCASTOR V. STATE , OR THE DECISION OF THEFIRST DISTRICT IN MATHIS V. STATE .Petitioner urges this Court to exercise discretionaryjurisdiction over his case because the decision of the FourthDistrict is in express and direct conflict with Hopkins v. State , 632 So. 2d 1372 (Fla. 1994); Castor v. State , 365 So. 2d701 (Fla. 1978); and Mathis v. State , 682 So. 2d 175 (Fla. 1stDCA 1996). Contrary to his assertion, however, this Court doesnot have discretionary jurisdiction pursuant to Florida Rule ofAppellate Procedure 9.030 (a)(2)(A)(iv), as the decision of theFourth District is not in conflict with this court’s decisionsin Hopkins and Castor ,

7 or the decision of the First District in
or the decision of the First District inMathis .In order for two decisions to be in express and directconflict for the purpose of invoking this Court’s discretionaryjurisdiction under Florida Rule of Appellate Procedure9.030(a)(2)(A)(iv), the decisions should speak to the same pointof law, in factual contexts of sufficient similarity to permitthe inference that the result in each case would have beendifferent had the deciding court employed the reasoning of theother court as mandatory authority. See generally Jenkins v. 4State , 385 So. 2d 1356, 1359 (Fla. 1980); Mancini v. State , 312So. 2d 732 (Fla. 1975). The conflict must of such magnitudethat if both decisio

8 ns were rendered by the same court, thel
ns were rendered by the same court, thelater decision would have the effect of overruling the earlierdecision. Kyle v. Kyle , 139 So. 2d 885, 887 (Fla. 1962).However, “[if] the two cases are distinguishable in controllingfactual elements or if the points of law settled by the twocases are not the same, then conflict cannot arise.” Id . at 887.See also Department of Revenue v. Johnston , 442 So. 2d 950 (Fla.1983) (“cases which are cited for conflict that aredistinguishable on their facts will not vest this Court withjurisdiction”).In Hopkins , the issue before the court was whether a to confrontation was violatedwhere the trial court’s failed

9 to make the required statutoryfindings p
to make the required statutoryfindings prior to allowing a child witness to testify via closedcircuit television. 632 So. 2d at 1374-75. The issue in thecase at bar did not concern the confrontation of witnesses, butrather, the right to a public trial. Further, in Hopkins , the court focused on whether a generalobjection that was couched in terms of a confrontation argumentwas sufficient to preserve review of whether the trial court hadmade the required statutory findings. 632 So. 2d at 1375. This 5court held that “under the circumstances of this case...[the]objection properly preserved the issue for appellate review.”632 So. 2d at 1375 (emphasis supplie

10 d). By contrast, theobjection in the ca
d). By contrast, theobjection in the case at bar included no argument:MS. NIXON:...And I will ask that therule be invoked.MR. DELLAFERA:Judge, just for the in the courtroomare members of Mr.Luda’s family none ofwhich are on the witnesslist.MS. NIXON:And I will ask that the Judgeclear the courtroom for thetestimony of the juveniles.MR. DELLAFERA:I would object to thatJudge.THE COURT:I don’t think we can.MS. NIXON:I don’t have the statutenumber. I know that there isa statute that - -THE COURT:Provides for that?MS. NIXON:- - provides for that.THE COURT:Absolutely.MR. DELLAFERA:If you will note myobjection Judge.THE COURT:Sure. All right, Tony, let’s

11 go.MR. DELLAFERA:Judge, if we are goingt
go.MR. DELLAFERA:Judge, if we are goingto clear the courtroom 6for any particularwitness, shall we do itnow. I would rather doit outside the presenceof the jury.THE COURT:All right.(T 108-109). The instant case is not in conflict with Hopkins ,as both the nature of the issue on appeal differs, as well asthe fact that in Hopkins , an argument was asserted in the trialcourt in support of the objection, whereas in the case at bar,no argument was asserted.In Castor , the issue before the court was whether a objection was required to preserve for appealalleged error in re-instructing a jury in response to a juryrequest. 365 So. 2d at 702. The case at bar involved aquest

12 ion of the right to a public trial, not
ion of the right to a public trial, not a questionregarding the re-instruction of the jury panel. Further, inCastor , the court held that counsel’s objection was not specificenough to allow the trial court to respond in a timely fashion.365 So. 2d at 703. The holding of the court in the case at barthat counsel’s failure to request that Luda’s family remain inthe courtroom and to draw the trial court’s attention to thestatute rendered the objection insufficient to preserve theissue for appeal. Luda at 458, n.1. Similarly, in Castor , thecourt held that counsel 7neither signaled the judge before nor afterre-instruction that, for completeness,Hedge

13 s required that the instructions onjust
s required that the instructions onjustifiable and excusable homicide shouldalso be restated. Nor did trial counselobject, before or after re-instruction, tothe trial court’s failure to follow our ruleregarding the procedure for submitting tocounsel all responses to a jury’s questions.His failure to do either not only preventedthe judge from correcting an inadvertenterror, but it produced the delay andsystemic cost which result from invokingboth levels of the state’s appel for the application of a legalprinciple which was known and unambiguous atthe time of trial.365 So. 2d at 703. The instant case is not in conflict withCastor , as the cases are fact

14 ually distinguishable, and even ifthey w
ually distinguishable, and even ifthey were not factually distinguishable, the decision in thecase at bar applies the logic used in Castor to affirm.In Mathis , the issue before the court was whether the trialcourt’s findings were legally sufficient to support admission ofa child victim’s out-of-court statements. 682 So. 2d 175. Theissue in the case at bar was not the admission of child hearsaystatements, but rather, the right to a public trial. In Mathis ,the First District held that the record revealed that both thestate and the trial court understood that the objection went tothe legal sufficiency of the trial court’s findings. 682 So. 2dat 178. B

15 y contrast, in the case at bar, counsel
y contrast, in the case at bar, counsel neverrequested that Luda’s family be permitted to remain in the 8courtroom. Thus, the instant case is not in conflict withMathis . There is no basis to invoke the discretionary jurisdictionof this Court and jurisdiction should accordingly be declined.See Johnston , 442 So. 2d 950 (Fla. 1983) (“cases which are citedfor conflict that are distinguishable on their facts will notvest this Court with jurisdiction”). 9CONCLUSION WHEREFORE based on the foregoing arguments and authoritiescited herein, the Respondent respectfully requests thisHonorable Court to decline to exercise its jurisdiction to hearthis case.Respectf

16 ully submitted, CHARLES J. CRIST, JR.ATT
ully submitted, CHARLES J. CRIST, JR.ATTORNEY GENERAL______________Assistant Attorney General Palm BeachFlorida Bar No.0656879 10 11CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has beenfurnished by courier to Susan D. Cline, Assistant PublicDefender, 421 3rd Street, West Palm Beach, Florida 33401, onApril 5, 2004.________________________CELIA A. TERENZIOAssistant Attorney GeneralBureau Chief________________________LAUREL R. WILEYAssistant Attorney GeneralCERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared with CourierNew 12 point type and complies with the font requirements ofRule 9.210.________________________Of Counse