WWW.THESES.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Theses, dissertations, documentation
 
<< HOME
CONTACTS



Pages:   || 2 | 3 | 4 | 5 |

«ENNIO FORESTA, Petitioner, CASE NO. SC00-428 v. STATE OF FLORIDA, Respondent. RESPONDENT'S ANSWER BRIEF ON THE MERITS ROBERT A. BUTTERWORTH ATTORNEY ...»

-- [ Page 1 ] --

IN THE SUPREME COURT OF FLORIDA

ENNIO FORESTA,

Petitioner,

CASE NO. SC00-428

v.

STATE OF FLORIDA,

Respondent.

RESPONDENT'S ANSWER BRIEF ON THE MERITS

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

JAMES W. ROGERS

TALLAHASSEE BUREAU CHIEF,

CRIMINAL APPEALS

FLORIDA BAR NO. 325791

TRISHA E. MEGGS

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 045489

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL

TALLAHASSEE, FL 32399-1050 (850) 414-3300

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

PAGE(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

ISSUE I

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)......................... 4

ISSUE II

DID THE TRIAL COURT ERR IN FAILING TO EXERCISE ITS

“DISCRETION” TO DECLINE TO SENTENCE PETITIONER AS A PRISON

RELEASEE REOFFENDER? (Restated)............. 30

ISSUE III

DID THE TRIAL COURT ERR IN RULING THAT THE PRISON RELEASEE

REOFFENDER STATUTE APPLIES TO BURGLARY OF AN UNOCCUPIED

DWELLING? (Restated)................... 31 CONCLUSION

CERTIFICATE OF SERVICE

-iTABLE OF CITATIONS

CASES 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 II

Petitioner 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 III

Appellant 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:

a. Treason;

b. Murder;

c. Manslaughter;

d. Sexual battery;

e. Carjacking;

f. Home-invasion robbery;

g. Robbery;

h. Arson;

I. Kidnapping;

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.



Pages:   || 2 | 3 | 4 | 5 |


Similar works:

«***************************************************************** SOLAR RETURN REPORT for: Drew Barrymore 22 February 1975 11:51 AM Culver City, California ****** Solar Return calculated for: 21 February 2006 11:25:38 PM Los Angeles, California ***************************************************************** This report compliments of: Astrology Solutions Network email: asn@astrologysolutions.com.au web: www.astrologysolutions.com.au Page 1 of 16 ***** INTRODUCTION ***** The Solar Return is a...»

«OUTROS ESTUDOS DA IMPERFEIÇÃO, OU O COMPLEXO DE BABEL Luís Adriano Carlos* Resumo: Servindo-se de um romance do início do milénio – A Imperfeição, de João Paulo Sousa –, o autor desenvolve uma reflexão crítica acerca do problema da comunicação ética e estética, perspectivado à luz de uma reinterpretação do mito de Babel como origem simbólica e bendita do universo literário e cultural. As personagens do romance em análise, tomadas como símbolos da sociedade...»

«Case study 10 ‘Please pick me’: how Incredible Edible Todmorden is repurposing the commons for open source food and agricultural biodiversity John Paull Background Perhaps it is the recipes, the climate, or the Manchester School of free trade advocacy. Whatever the reasons, food has not been one of Britain’s great gifts to the world. Apparently, British school children generally do not wonder where their next meal is coming from beyond the supermarket freezer. In a survey, 36 per cent of...»

«The Distributive Property CK12 Editor Say Thanks to the Authors Click http://www.ck12.org/saythanks (No sign in required) AUTHOR CK12 Editor To access a customizable version of this book, as well as other interactive content, visit www.ck12.org CK-12 Foundation is a non-profit organization with a mission to reduce the cost of textbook materials for the K-12 market both in the U.S. and worldwide. Using an open-content, web-based collaborative model termed the FlexBook®, CK-12 intends to...»

«Annual Update of the Michigan Aeronautics Commission This report provides a summary of Michigan Aeronautics Commission (MAC) proceedings for the Fiscal Year 2013 (FY13). It also includes a report of operations of the Michigan Department of Transportation’s Office of Aeronautics (MDOT), specifically actions taken on behalf of MAC for further development, promotion, and safety of aviation, including aeronautical facilities and services. Proceedings of the Michigan Aeronautics Commission October...»

«What’s Next for Collection Management and Managers? By Faye A. Chadwell, Associate Professor/Associate University Librarian for Collections & Content Management, Oregon State University Libraries, 121 The Valley Library, Corvallis, OR 97331, Faye.chadwell@oregonstate.edu This is a pre-print of the article that appeared in Collection Management: Chadwell, Faye, 2008. What’s Next for Collection Management and Managers? Collection Management 33(3), 182URL:...»

«INDEPENDENT SCHOOLS INSPECTORATE BRUERN ABBEY SCHOOL STANDARD INSPECTION © Independent Schools Inspectorate 2011 INDEPENDENT SCHOOLS INSPECTORATE Bruern Abbey School Full Name of School Bruern Abbey School DfE Number 931/6106 Address Bruern Abbey School Chesterton Manor Chesterton Bicester Oxfordshire OX26 1UY Telephone Number 01869 242448 Fax Number 01869 243949 Email Address secretary@bruernabbey.org Headmaster Mr Philip Fawkes Proprietor/ Principal Mr Sterling Stover Age Range 8 to 14 Total...»

«9. Frisson – Thrills from Chills The experience of musically induced “shivers” is often reported as a notable or peak emotional response while listening to music (see, for example, Sloboda, 1991; Gabrielsson & Lindström, 1993, 2003). The response might be described as a pleasant tingling feeling, associated with the flexing of hair follicles resulting in goosebumps (technically called piloerection), accompanied by a cold sensation, and sometimes producing a shudder or shiver. Dimpled...»

«LAX MASTER PLAN COMMUNITY BENEFITS AGREEMENT 2013 ANNUAL PROGRESS REPORT Los Angeles World Airports PUBLISHED NOVEMBER 2014 Los Angeles International Airport LAX CBA 2013 Annual Report LAX MASTER PLAN COMMUNITY BENEFITS AGREEMENT (CBA) 2013 ANNUAL PROGRESS REPORT Prepared by Los Angeles World Airports November 2014 Page 1 Los Angeles International Airport LAX CBA 2013 Annual Report LAX Master Plan CBA 2013 Annual Progress Report Acknowledgements LAWA Group/Division Individual Airport Response...»

«Cornell University ILR School DigitalCommons@ILR Articles and Chapters ILR Collection 6-1-2006 Retesting in Selection: A Meta-Analysis of Practice Effects for Tests of Cognitive Ability John P. Hausknecht Cornell University, jph42@cornell.edu Jane A. Halpert DePaul University Nicole T. Di Paolo DePaul University Meghan O. Moriarty Gerrard DePaul University Follow this and additional works at: http://digitalcommons.ilr.cornell.edu/articles Part of the Human Resources Management Commons Thank you...»

«LA ALIENACIÓN DEL ARTE LA ALIENACIÓN DEL ARTE JUAN CARRIL MÁRQUEZ Autor: Juan Carril Márquez www.juancarrilmarquez.com www.facebook.com/JuanCarrilMarquez https://twitter.com/juancarrilmrqz https://es.linkedin.com/in/juancarrilmarquez La alienación del arte www.laalienaciondelarte.wordpress.com www.facebook.com/laalienaciondelarte Finalista del Premio de ensayo Punto de Vista Editores 2015 Texto, edición y portada: Juan Carril Márquez Primera edición. Noviembre 2015 Esta publicación ha...»

«Practical Record Keeping for the Sports Turf Manager By: John Netwal, CGCS Director of Operations North Scott Community School District 251 East Iowa Street Eldridge, Iowa 52748 563-285-9654 john.netwal@north-scott.k12.ia.us Introduction Many successful turf managers have either created or built systems that they rely on to assist them with the management of their facilities. In this manual we will look at few of the systems and strategies that have been very helpful to me throughout my career....»





 
<<  HOME   |    CONTACTS
2016 www.theses.xlibx.info - Theses, dissertations, documentation

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.