«ENNIO FORESTA, Petitioner, CASE NO. SC00-428 v. STATE OF FLORIDA, Respondent. RESPONDENT'S ANSWER BRIEF ON THE MERITS ROBERT A. BUTTERWORTH ATTORNEY ...»
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC00-428
STATE OF FLORIDA,
RESPONDENT'S ANSWER BRIEF ON THE MERITS
ROBERT A. BUTTERWORTH
JAMES W. ROGERS
TALLAHASSEE BUREAU CHIEF,
CRIMINAL APPEALSFLORIDA BAR NO. 325791
TRISHA E. MEGGS
ASSISTANT ATTORNEY GENERALFLORIDA BAR NO. 045489
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOLTALLAHASSEE, FL 32399-1050 (850) 414-3300
COUNSEL FOR RESPONDENT
TABLE OF CONTENTSPAGE(S) TABLE OF CONTENTS....................... i TABLE OF CITATIONS
PRELIMINARY STATEMENT..................... 1 CERTIFICATE OF FONT AND TYPE SIZE............... 1 STATEMENT OF THE CASE AND FACTS................ 1 SUMMARY OF ARGUMENT...................... 2 ARGUMENT
DOES THE PRISON RELEASEE REOFFENDER PUNISHMENT ACT, CODIFIEDAS SECTION 775.082(8), FLORIDA STATUTES (1997), VIOLATE THE
SEPARATION OF POWERS CLAUSE OF THE FLORIDA CONSTITUTION?(Restated)......................... 4
DID THE TRIAL COURT ERR IN FAILING TO EXERCISE ITS
“DISCRETION” TO DECLINE TO SENTENCE PETITIONER AS A PRISONRELEASEE REOFFENDER? (Restated)............. 30
DID THE TRIAL COURT ERR IN RULING THAT THE PRISON RELEASEE
REOFFENDER STATUTE APPLIES TO BURGLARY OF AN UNOCCUPIEDDWELLING? (Restated)................... 31 CONCLUSION
CERTIFICATE OF SERVICE
-iTABLE OF CITATIONSCASES PAGE(S) Atkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 86 L. Ed.
2d 81 (1985).................... 28 Barber v. State, 564 So. 2d 1169 (Fla. 1st DCA Fla.1990).. 25 Chambers v. State, 25 Fla. L. Weekly D387 (Fla. 1st DCA February 11, 2000)........ 18,27 Chapman v. United States, 500 U.S. 453, 111 S. Ct. 1919, 11
Riggs v. California, 119 S. Ct. 890, 142 L. Ed. 2d 789 (1999) 13 Rollinson v. State, 743 So. 2d 585 (Fla. 4th DCA 1999). 25,29 Smith v. Magras, 124 F.3d 457 (3d Cir. 1997), citing, Springer v. Government of the Philippine Islands, 277 U.S. 189, 48 S. Ct. 480, 72 L. Ed. 845 (1928).. 6
State v. Benitez, 395 So. 2d 514 (Fla. 1981)...... passim State v. Chamberlain, 744 So. 2d 1185 (Fla. 2d DCA 1999).. 27 State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985).... 13 State v. Cotton, 728 So. 2d 251 (Fla. 2d DCA 1999), review granted, No. 94,996 (Fla. June 11, 1998). passim State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987).... 13 State v. Esbenshade, 493 So. 2d 487 (Fla. 2d DCA 1986)... 13 State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999). passim
United States v. Ehsan, 163 F.3d 855 (4th Cir. 1998).... 39 United States v. Farmer, 73 F.3d 836 (8th Cir. 1996).... 14 United States v. Innie, 77 F.3d 1207 (9th Cir. 1996).... 17 United States v. Kaluna, 192 F.3d 1188 (9th Cir. 1999). 14,15 United States v. Larson, 110 F.3d 620 (8th Cir. 1997)... 17 United States v. Prior, 107 F.3d 654 (8th Cir. 1997).... 14 United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997)... 5 United States v. Rasco, 123 F.3d 222 (5th Cir. 1997).... 5 United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995), citing, Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958)....... 21 United States v. Scroggins, 880 F.2d 1204 (11th Cir. 1989). 17
prosecution, or the State. Petitioner, Ennio Foresta, the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Petitioner or by proper name.
The symbol "I" will refer to the one volume record on appeal;
"IB" will designate the Initial Brief of Petitioner. Each symbol will be followed by the appropriate page number in parentheses.
All emphasis through bold lettering is supplied unless the contrary is indicated.
discretion, that discretion must be shared. The State respectfully disagrees. This Court has already held that the trafficking statute, which is a sentencing statute that operates in the same manner as the prison releasee reoffender statute, does not violate separation of powers. Both the trafficking statute and the
trial court must impose these mandatory penalties under either statute. However, both statutes then allow the prosecutor and only the prosecutor to move for leniency. Quite simply, this Court’s prior holding in State v. Benitez, 395 So.2d 514, 519 (Fla. 1981), controls. As this Court explained in Benitez, as long as the
determination of a defendant’s sentence is the trial court’s, not the prosecutor, under the prison releasee reoffender statute.
While the prosecutor may seek reoffender sanctions and the trial court must impose such sanctions when sought, if the prosecutor does not seek such sanctions, it is the trial court that decides
granted, No. 94,996 (Fla. June 11, 1998), is seriously misplaced.
Cotton has been superseded by an amendment to the prison releasee reoffender statute. Hence, the prison releasee reoffender statute does not violate the separation of powers clause of the Florida Constitution.
ISSUE IIPetitioner argues that the trial court failed to exercise its discretion to decline to sentence petitioner as a prison releasee reoffender. The State respectfully disagrees. The trial court has no discretion.
ISSUE IIIAppellant argues that the prison releasee reoffender statute applies only to burglary of an occupied dwelling, not to burglary of an unoccupied dwelling. The prison releasee reoffender statute states that “burglary of an occupied structure or dwelling” is one of the enumerated felonies. Appellant contends that “occupied” modifies both the word “structure” and the word “dwelling”. The State respectfully disagrees. The adjective “occupied” modifies
occupancy. Thus, the prison releasee reoffender statute applies to all dwellings whether occupied or unoccupied or whether a person actually present.
DOES THE PRISON RELEASEE REOFFENDER PUNISHMENT ACT,CODIFIED AS SECTION 775.082(8), FLORIDA STATUTES (1997), VIOLATE THE SEPARATION OF POWERS CLAUSE OF THE FLORIDA CONSTITUTION? (Restated) Petitioner argues the prison releasee reoffender statute discretion, that discretion must be shared. The State respectfully disagrees. This Court has already held in State v. Benitez, 395 So.2d 514, 519 (Fla. 1981), that the trafficking statute, which is a sentencing statute that operates in the same manner as the prison releasee reoffender statute, does not violate separation of powers.
Both statutes set rigorous minimum mandatory penalties, which the trial court must impose, and allow the prosecutor, and only the prosecutor, to move for leniency. As this Court explained in Benitez, as long as the judiciary retains the final decision regarding sentencing, a statute does not violate separation of powers. The final determination of a defendant’s actual sentence is the trial court’s, not the prosecutor’s under the prison
reoffender sanctions and the trial court must impose such sanctions when sought, if the prosecutor does not seek such sanctions, it is the trial court that decides what the actual sentence will be. The prosecutor is merely a gatekeeper to the trial court’s discretion.
separation of powers clause of the Florida Constitution.
Presumption of Constitutionality There is a strong presumption of constitutionality afforded to legislative acts under which courts resolve every reasonable doubt
Kinner, 398 So.2d 1360, 1363 (Fla. 1981); Florida League of Cities, Inc. v. Administration Com'n, 586 So.2d 397, 412 (Fla. 1st DCA 1991). An act should not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. Todd v. State, 643 So.2d 625, 627 (Fla. 1st DCA 1994).
Standard of Review The constitutionality of a sentencing statute is reviewed de
1997)(reviewing the constitutionality of the federal three strikes statute by de novo review); United States v. Quinn, 123 F.3d 1415, 1425 (11th Cir. 1997); PHILIP J. PADOVANO, FLORIDA APPELLATE PRACTICE § 9.4 (2d ed. 1997).
Merits The separation of powers provision of the Florida Constitution,
Article II, § 3, provides:
Branches of Government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.1 Contrary to Judge Sharp’s dissent in Lookadoo v. State, 737 So. 2d 637 (Fla. 5th DCA 1999), the prison releasee
as §775.082(8), Florida Statutes (1997), provides:
(a)1 “Prison releasee reoffender” means any defendant who
commits, or attempts to commit:
d. Sexual battery;
f. Home-invasion robbery;
j. Aggravated assault;
reoffender statute does not violate the federal separation of powers doctrine. Id. at n.2 It cannot. The federal separation of powers doctrine is not implicated in any manner. A state statute dealing with the state judiciary and the state executive cannot violate the federal separation of powers doctrine. While the federal separation of powers doctrine has been incorporated into territories, it has not been incorporated against the states. Smith v. Magras, 124 F.3d 457, 465 (3d Cir. 1997)(holding that the federal doctrine of separation of powers applies to the Virgin Islands), citing, Springer v. Government of the Philippine Islands, 277 U.S. 189, 199-202, 48 S.Ct. 480, 481-82, 72 L.Ed.
845 (1928)(incorporating the federal principle of separation of powers into Philippine law when it was a territory). Nothing a state legislature enacts, concerning that state’s three branches of government, can possibly violate the federal separation of powers doctrine. For example, if Wyoming decides to create a parliamentary system of government in which the executive and legislative branches are combined into one, the federal constitution has nothing to say about such a choice. The State is using federal caselaw concerning the federal three-strikes law merely as analogous authority.
-6k. Aggravated battery;
l. Aggravated stalking;
m. Aircraft piracy;
n. Unlawful throwing, placing, or discharging of a destructive device or bomb;
o. In any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of an occupied structure or dwelling; or r. In any felony violation of s. 790.07, s. 800.04, s.
827.03, or s. 827.071;
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.
2. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be
sentenced as follows:
(b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. In any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.
(c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.
(d)1. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless any of the
following circumstances exist:
a. The prosecuting attorney does not have sufficient evidence to prove the highest charge available;
-7b. The testimony of a material witness cannot be obtained;
c. The victim does not want the offender to receive the mandatory prison sentence and provides a written statement to that effect; or d. Other extenuating circumstances exist which preclude the just prosecution of the offender.