IN THE SUPREME COURT OF FLORIDAPRENTICE STANLEYPetitionerCASE NO SC11D - PDF document

1 IN THE SUPREME COURT OF FLORIDAPRENTICE
IN THE SUPREME COURT OF FLORIDAPRENTICE STANLEYPetitioner,CASE NO. SC11DCA Case No. 4D02819STATE OF FLORIDA Respondent. ) PETITIONERS BRIEF ON JURISDICTIONON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDACAREY HAUGHWOUTPublic DefenderFifteenth Judicial Circuit of FloridaAnthony CalvelloAssistant Public DefenderAppellate DivisionFlorida Bar No: 266345Criminal Justice Building421 Third Street, 6th FloorWest Palm Beach, Florida 33401(561) 3557600acalvell@pd15.org ii TABLE OF CONTENTSTABLE OF CONTENTSAUTHORITIES CITEDPRELIMINARY STATEMENTSTATEMENT OF THE CASEAND FACTSSUMMARY OF ARGUMENTARGUMENTTHE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONOF THIS COURT IN AIN V. STATEAND JAIMES v. STATEAND A DECISION OF OTHER DISTRICT COURT OF APPEAL ABELS V. STATEON THE SAME QUESTION OF LAW.

2 CONCLUSIONCERTIFICATE OF SERVICE CE
CONCLUSIONCERTIFICATE OF SERVICE CERTIFICATE OF FONT SIZE iii AUTHORITIES CITEDCASES PAGE(S)Aaron v. State, 284 So.2d 673 (Fla.1973)Ables v. State, 338 So.2d 1095 (Fla. 1DCA 1976), cert. denied, 346 So.2d 1247(Fla. 1977)6, 7Crain v. State, 894 So.2d 59 (Fla.2004)4, 6, 8Deparvine v. State, 995 So.2d 351(Fla.2008)Engle v. Liggett Group, Inc.,945 So. 2d 1246 (Fla. 2006), cert. denied, 128 S. Ct. 96, 169 L. Ed. 2d 244 (U.S. 2007)Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981)Jaimes v. State,51 So.3d 445 (Fla. 2010)6, 8Kearse v. State, 662 So.2d 677 (Fla.1995)Lewis v. State, 53 So.2d 707 (Fla.1951)Long v. State, 92 So.2d 259 (Fla.1957)O'Callaghan v. State, 429 So.2d 691 (Fla.1983)Reddick v. State, 36 Fla. L.Weekly D532 (Fla. 5th DCA March 11, 2011)6, 9Stanley v. State, 4D092819 (Fla. 4th DCA March 30, 2011)1, 2, 3, 5State v. Delva, 575 So.

3 2d 643 (Fla.1991)State v. Pinder, 375 So
2d 643 (Fla.1991)State v. Pinder, 375 So.2d 836 (Fla.1979)UnitedStates v.BarriosPerez, 317 F.3d 777 (8th Cir .2003) iv United States v. Emery, 186 F.3d 921 (8th Cir.1999)FLORIDA STATUTES (2007)ection 782.04ection 782.04(1)(a)13, 8ection 782.04(1)(a)2FLORIDA CONSTUTUTIONarticle V, section 3(b)(3)…………………………………………………………….6 1 PRELIMINARY STATEMENTPetitioner, Prentice Stanley, was the Defendant in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County. He was the Appellant in e Fourth District Court of Appeal.Stanley v.State, 4D092819 (Fla.4th DCA March 30,201RespondentState of Florida was the Appellee in the Fourth District Court of Appeal. The Fourth District’s written opinion in this cause, Stanley v. State, Case No. 4D0919(Fla. 4th DCA March 30, 2011), appears in the AppendixThe parties will be refer

4 red to as this appear before this Honora
red to as this appear before this Honorable Court. 2 STATEMENT OF THE AND FACTSDefendant, Prentice Stanley, appeals his judgment and sentence for first degree murder and leaving the scene of an accident resulting in death. Stanley wasconvicted of both counts and sentenced to life in prison. Stanley raises four issues for our review. Finding no merit to Defendant's arguments, we affirm his judgment and sentence.” Stanley v. State, 4D092819 (Fla. 4th DCA March 30, 2011)By way of background, the victim, Mahmoud Mansour, was the general manager of a clothing manufacturer in Ft. Lauderdale, Florida. While at work, Mansour observed a 2004 Nissan Titan being driven by someone later identified as Stanley enter the company parking lot and drive up to a metal container that held boxes of clothing. Mansour became suspicious and attempted to close the parking lot gate. The truck's driver drove the truck through the gate, running over Mansour who later di

5 ed of his injuries.” Id.Stanley was
ed of his injuries.” Id.Stanley was arrested for the crime and charged by indictment with first degree murder and leaving the scene of an accident resulting in death. Testimony at trial revealed that the truck used in the crime had recently been reported stolen. It was found abandoned near the scene of the crime. Stanley's fingerprints were found in multiple places on the truck. Additionally, a friend of Stanley's testified that Stanley had confessed to him that he was the perpetrator. This friend contacted the 3 police and alerted them to Stanley's whereabouts.” Stanleyv. State, supraOn appealto the Fourth District Court of AppealPetitioner Prentice Stanleargued “that the trial court erred by: 1) instructing the jury that Stanley could be convicted on either of two theories of first degree murder; to wit: premeditated murder and felony murder despite the fact that the indictment charged only felony murder; 2) introducing 911 tapes

6 which allegedly contained hearsay state
which allegedly contained hearsay statements; and 3) admitting seventeen autopsy photographs into evidence. Stanley also argues that his conviction violates the double jeopardy clause.” Stanley first argues that the Grand Jury's indictment charged him under a felony murder theory while the jury's instructions allowed for a conviction under a premeditated murder theory. The True Bill returned by the Grand Jury stated that Stanley “[U]nlawfully and feloniously while ... engagedin the commission of, attempting to commit or escaping from the immediate scene of a Burglary and/or a Robbery, did kill and murder the said Mahmoud Mansour against the form of the statute in such case pursuant to [s]ections 782.04(1).”Id. Section 782., Florida Statutes (2007), titled “Murder,” addresses “[t]he unlawful killing of a human being” and covers both killings “perpetrated from a premeditated design” and those “committed

7 by a person engaged in the perpetration&
by a person engaged in the perpetration” of certain felonies. §§ 782.04(1)(a)1. and 782.04(1)(a)2 4 Stanley contends that the Grand Jury indicted him solely for first degree felony murder. However, when the court provided the jury with its instructions, it indicated that when a defendant is charged with first degree murder, he could be convicted on either a theory of premeditation or a theory of felony murder. The court then described the elements of both premeditated murder and felony murder. At closing argument, the State repeated the claim that Stanley could be convicted of first degree murder on a premeditation theory. The jury found that “[t]he Defendant is [g]uilty of Murder in the First Degree, as charged in the indictment.”Id.Stanley did not object at the time of the alleged errors. If a jury instruction is not objected to at the time of the alleged error, the error must be fundamental to be raised on appeal. State v.Delva

8 , 575 So.2d 643, 645 (Fla.1991)According
, 575 So.2d 643, 645 (Fla.1991)According to Stanley, the trial court's jury instructions and the prosecutor's closing statement constructively amended the indictment. See United States v.BarriosPerez, 317 F.3d 777, 779 (8th Cir .2003). A constructive amendment of a charging document “‘allow[s] the jury to convict the defendant of an offense different from or in addition to the offenses alleged in the indictment.’ “ Id.at 779 (quoting United States v. Emery, 186 F.3d 921, 927 (8th Cir.1999)). This is a due process violation which constitutes fundamental error. Crain v. State, 894 So.2d 59, 69 (Fla.2004)” Id. 5 The law does not support Stanley's claim that the indictment was constructively amended. In O'Callaghan v. State, 429 So.2d 691, 695 (Fla.1983)our Supreme Court held that “‘the state does not have to charge felony murder in the indictment but may prosecute the charge of firstdegree murder under a theory of

9 felony murder when the indictment charge
felony murder when the indictment charges premeditated murder.’ “ Id.at 695 (quoting State v. Pinder, 375 So.2d 836, 839 (Fla.1979)). Finding no prejudice, the court concluded that a criminal defendant, “because of our reciprocal discovery rules, [has] full knowledge of both the charges and the evidence that the state would submit at trial.” Id.at 695; see also Kearsev. State, 662 So.2d 677, 682 (Fla.1995)(“The State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.”).” Id.We hold that if a conviction under a felony murder theory is legal where the indictment charged premeditated murder, as was the case in O'Callaghanthen a conviction under a premeditated murder theory is legal where the indictment charged felony murder, as is the case here. See also Deparvine v. State, 995 So.2d

10 351(Fla.2008)” Stanleyv. Statesupr
351(Fla.2008)” Stanleyv. Statesupra.Petitioner timely filed a Notice to Invoke Discretionary Review on April 4, 6 SUMMARY OF THE ARGUMENTThe opinion of the Fourth DistrictinStanley v.State, 4D092819 (Fla.4thA March 30, 2011))see Appendixdirectly and expressly conflicts on the same question of law with the First District’s decision in s v. State,338 So.2d 1095,1097(Fla. 1DCA 1976), cert. denied, 346 So.2d 1247(Fla. 1977). And further conflicts with this ourts decisioninCrain v. State, 894 So.2d 59, 69 (Fla.2004)Jaimes v. State51 So.3d 445(Fla.2010)and also the Fifth Districtdecision in Reddick v. State, 36 Fla. L.Weekly D532 (Fla. 5th DCA March 11, 2011In Ablesthe First District held in direct opposition to the holding here by the Fourth Districtthat the trial court erred in charging the jury with premeditated murder when the indictment only charged felony murderPetitioner respectfully requests this Honorable Court to grant his request

11 for discretionary review, reach the meri
for discretionary review, reach the merits, and grant Mr. Stanleya new trial on the first degree murder charge. ARGUMENTTHE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH ECISIONOF THIS COURT IN AIN V. STATEJAIMES v. STATEECISION OF OTHER DISTRICT COURT OF APPEAL V. STATE ON THE SAME QUESTION OF LAW.The jurisdiction of the Supreme Court provision, article V, section 3(b)(3) 7 loridaConstitution(1968) provides: “May review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.Standard of ReviewWhether a direct and express conflict exists between decisions of the district courts of appeal is a pure question of law reviewed by this Court de novo. As this Court explained in Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla. 1981)a “discussion of the legal principles w

12 hich the [district] court applied suppli
hich the [district] court applied supplies a sufficient basis for apetition for conflict review.” It is not necessary that the courtexplicitly identify conflicting district court or supreme court decisions in its opinion to create anexpress conflict under section 3(b)(3).Id.at 1342.Further,Engle v. Liggett Group, Inc.,945 So. 2d 1246 (Fla. 2006), cert. denied, 128 S. Ct. 96, 169 L. Ed. 2d 244 (U.S. 2007)this Court found that express and direct conflict may be based on the misapplication of a decision.At bar, Petitioner was never charged was premeditated first degree murder only first degree felony murder by the grand jurors. Petitioner’s jury should never have been charged on the unindicted offense of first degree premeditated murder. In Ablesv. State, suprathe First District held in direct opposition to the holding here by the Fourth Districtthat the trial court erred in charging the jury with premeditated murder when the indictment only cha

13 rged felony murder 8 In ain v. Stat
rged felony murder 8 In ain v. State, 894 So.2d 59, 69(Fla. 2004), this Court held: “To determine whether the felony murder instruction based on kidnapping with intent to inflict bodily harm constitutes fundamental error, we must consider twolines of precedent. First, due process prohibits a defendant from being convicted of a crime not charged in the information or indictment. See Aaron v. State, 284 So.2d 673, 677 (Fla.1973)(“The right of persons accused of serious offenses to know, before trial, the specific nature and detail of crimes they are charged with committing is a basic right guaranteed by our Federal and State Constitutions.”);Long v. State, 92 So.2d 259, 260 (Fla.1957)(“[W]here an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.”);Lewis v. State, 53 So.2d 707, 708(Fla.1951)(“No principle of criminal law is bettersettl

14 ed than that the State must prove the al
ed than that the State must prove the allegations set up in the formation or the indictment.”).ain894 So.2d at 69.In mes v. State, 51So.3d 445(Fla.2010), the information charged defendant with committing a battery by using a deadly weapon. However, the jury was erroneously instructed that it could convict Jaimes of aggravated battery if it determined that, in the course of committing a battery, Jaimes had caused Miller great bodily harm, permanent disability, or permanent disfigurement. See § 784.045(1)(a) 1. The jury then convicted Jaimes based specifically on the fact that he had caused the victim great bodily harm, despite the fact that the extent of the 9 victim's injuries was never an element of the offense as it was charged in the information. Thus, Jaimes was convicted of a form of aggravated battery which requires an element not contained in the charging document, and his right to due process was therefore violated.Id.;Seealso Reddi

15 ck v. State, 36 Fla. L. Weekly D532 (Fla
ck v. State, 36 Fla. L. Weekly D532 (Fla. 5th DCA March 11, 2011)The trial court committed fundamental error by instructing jury on a theory of aggravated battery not charged in the information.Based on the foregoing arguments and authorities cited, PetitionerStanleyrequests this Honorable Court to exercise its discretionary jurisdiction and review this cause on the merits.CONCLUSIONBased on the foregoing arguments cited, Petitioner requests this Court to exercise its discretionary jurisdiction and review this cause on the merits.Respectfully submitted,CAREY HAUGHWOUTPublic DefenderFifteenth Judicial Circuit of Florida Anthony CalvelloAssistant Public DefenderFlorida Bar No. 266345421 Third Street, 6th FloorWest Palm Beach, Florida 33401(561) 3557600 10 CERTIFICATE OF SERVICEI CERTIFY that a copy of this Petitioners Brief on Jurisdic

16 tion with Appendix has been furnishedto
tion with Appendix has been furnishedto Myra J. Fried,Assistant Attorney General, 1515 North Flagler Drive, 9th floor, West Palm Beach, FL 334013432, by courier, this day of pril, 2011 Anthony CalvelloAssistant Public DefenderCounsel for Petitioner StanleyCERTIFICATE OF FONT SIZEI CERTIFY that this brief has been prepared with 14 point Times New Roman font as required by Fla. R. App. P. 9.210.__________________________ Counselfor Petitioner Stanley �� &#x/MCI; 0 ;&#x/MCI; 0 ; APPENDIX CERTIFICATE OF SERVICEI CERTIFY that a copy of AppendiPetitioners Brief on Jurisdiction has been furnished toMyra J. Fried, Assistant Attorney General, 1515 North Flagler Drive, 9th floor, West Palm Beach, FL 334013432, by courier, this day of pril,201 Anthony CalvelloAssistant Public DefenderCounsel for Petitioner Stanl