PROVIDED TD 0 4 MHAMILTON C1 ON_ , .FOR MAILING

IN THE SUPREME COURT OF FLORIDA

KENDRICK WILSON,Petitioner,

v.

STATE OF FLORIDA,Respondent.

(AMENDED)

CASE NO.: SC14- 79L.T. CASE NG¿ 4 - 6;

4620 F 8

PETITION TO INVOKE DISCRETIONARY REVIEW

JURISDICTION BRIEF

Kendrick Wilson # K69864Hamilton C.I., Main Unit,10650 S.W. 46* streetJasper, Florida 32052Appellant's PRO SE

Table of Contents

Table of Contents ......................................................................................................ii

Table of Citations.....................................................................................................iii

ftSatement o the Case and Facts ............................................................................... 1

Summary of the Argument........................................................................................ 2

Basis For Invoking Jurisdiction ................................................................................ 2

Argument................................................................................................................... 3

Conclusion................................................................................................................. 9

Relief Sought........................................................................................................... 10

Certificate of Compliance ....................................................................................... 10

Certificate of Service............................................................................................... 10

11

Table of Citations

Cases

Branch v. State, 94 Fla. 286 115 St. 143 (Fla. 1927).................................... 4, 7, 8, 9Dokun v. State, 79 So.3d 190 (Fla. 18' DCA 2012)............................................... 7, 8Holbrough v. State, 103 So.3d 221 (Fla. 4th DCA 2013).......................................... 6Jacobs v. State, 46 Fla. 157, 35 So. 65 (1903)................................................. passimJaimes v. State, 51 So.3d 445 (Fla. 2010)................................................................. 2Johnson v. State, 9 So.3d 640 (Fla. 4th DCA 2009).................................................. 6Lattimore v. State, 202 So.2d 3 (Fla. 2nd DCA 1967)........................................... 4, 9Raulerson v. State, 358 So.2d 826 (Fla. 1978)................................................. 4, 5, 9Rose v. State, 507 So.2d 631 (Fla. 5th DCA 1978)................................................ 6, 9Stephen v. State, 974 So.2d 445 (Fla. 2nd DCA 2008).............................................. 6Taylor v. State, 958 So.2d 1069 (Fla. 4th DCA 2007)........................................... 1, 4Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000)........................................ 1, 4Wallace v Dean, 3 So.3d 1035, 1040 (Fla. 2009)..................................................... 2

Statutes and Rules

Fla.R.Crim.P. Rule 3.151(c) ..................................................................................... 9Rule 9.210 (a)(2), Florida Rules of Appellate Procedure .................................. 10

Constitutional Authorities

14th Amendment of the United States Constitution .................................................. 9Fifth Amendment United States Constitution........................................................... 9Florida Constitution Article 1, Section 9.................................................................. 9

111

Statement of the Case and Facts

1. On September 18, 2005, the Petitioner was arrested for "Robbery with a

Firearm" on a victim named Elisoi Selabl.

2. On October 20, 2005, the Petitioner was formally charged by information of

"Robbery with a Deadly Weapon" on a victim named Elisoi Jeangil.

3. On May 3, 2006 the State alleged to have amended the information to

change the victim name on the day of trial, but failed to give the defendant any

advance notice of an amendment, thereby being per se prejudicial to the defendant.

See Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000); Taylor v. State, 958

So.2d 1069 (Fla. 4th DCA 2007). See Appendix (A).

4. On May 5, 2006 the defendant was convicted of a victim that could not spell

his own name, See , thereby never establishing the identity of the victim; or a

nexus to the victim.

5. On May 10, 2013 the Petitioner filed a habeas corpus.in Hamilton County

where he is incarcerated, which was transferred to St. Lucie County.

6. On November 6, 2013 the Petitioner filed a brief in the Fourth District Court

of Appeal, which was denied and court ordered defendant to show cause.

7. On April 30, 2014 the court per curiam with an opinion and facts that the

defendant argues that is in conflict with this Court's holdings in Jacobs v. State, 46

1

Fla. 157, 35 So. 65 (1903). See Appendix (A). Defendant filed a rehearing for the

order to show cause on May 9, 2014.

Summary of The Argument

The Petitioner presents that there is a fatal variance between the Information,

the proof at trial, and the arrest affidavit of the victim's name, which raises a

question of identity, and that the victim's name is an essential element of the

crime, and where an "information totally omits an essential element of the crime or

is so vague and indefinite that the defendant is misled or exposed to double

jeopardy" because of the victim name; that it can be raised at any time or by

habeas corpus. See State v. Gray, 435 So.2d 816 (Fla. 1983).

Basis For Invoking Jurisdiction

This Honorable Court has jurisdiction to issue Petition's identifying

misapplication of decisions as a basis for express and direct conflict jurisdiction

under article V, section 3(b)(3) of the Florida Constitution. See Wallace v Dean, 3

So.3d 1035, 1040 (Fla. 2009); also see Jaimes v. State, 51 So.3d 445 (Fla. 2010).

Case in Conflict

Jacobs v. State, 46 Fla. 157, 35 So. 65 (1903) and its holdings, Green v.

State, 714 So.2d 594 (Fla. 2"d DCA 1998). Rose v. State, 507 So.2d 630 (Fla. 5*

DCA 1987).

Argument

1. Because of fatal variance between the allegation and the proof in said cause,

in this, that the information charges the offense to have been committed on one

Elisoi Jeangil, and the testimony by prosecuting witness was that his name was

Elisoi St. Lott, and there is no testimony on the part of the State showing that said

prosecuting witness was known by Elisoi Jeangil, or that he was known by Elisoi

Selahl, which calls into question the identity of the victim.

2. There was no proof that he was know by the surname Jeangil, as alleged in

the information, or there was no proof that he was known by the surname Selahl, as

alleged in the arrest affidavit. the victim also could not spell his own. "The name of

the person assaulted, as alleged in the indictment, is an essential element in the

legal description of the crime, and failure to prove it as laid is fatal to a conviction

had." See Jacobs v. State, 46 Fla. 157, 35 So. 65 (1903).

3. The Petitioner argues that the rule that this court announced in Jacobs v.

State, 46 Fla. 157, 35 So. 65 (1903) does apply to the defendant and that is "that

the state must prove that [Elisoi Jeangil, Elisoi St. Lott, and Elisoi Selahl, are in

3

reality the same person; this is so as to not mislead the accused in the preparation

of his defense or to subject the accused to a second prosecution for the same

offense." See Raulerson v. State, 358 So.2d 826 (Fla. 1978); Branch v. State, 94

Fla. 286 115 St. 143 (Fla. 1927); also see, Lattimore v. State, 202 So.2d 3 (Fla. 2nd

DCA 1967). The state in fact has failed to show this nexus between these (3)

different named persons. therefore it cannot be said that the record protects the

accused against another prosecution for the same offense.

4. The Fourth District Court of Appeals states that the State amended the

information on the morning of trial to refute the defendant's argument but it failed

to note that the rule announced in Jacobs, supra, still applies. See Green v. State,

714 So.2d 594 (Fla. 2nd DCA 1998) where that court denied an amendment

because of the State's failure to show a relationship or nexus between the person

alleged and the person proved. (Emphasis added). Furthermore the State failed to

give the defendant any notice of the so-called amendment. "It is error where the

State amends the information on the day of trial with no advance notice. The

change to the information was intrinsic to the charge that the defendant needed to

defend against." See Taylor v. State, 958 So.2d 1069 (Fla. 4* DCA 2007). "An

amendment that substantively alters the elements of the crime charged is per se

prejudicial." See Toussaint v. State, 755 So.2d 170 (Fla. 4* DCA 2000).

4

5. This Court has held "a material variance between the name alleged, and that

proved is fatal, primarily, it is a question of identity and the essential thing in the

requirement of correspondence between the allegation of the name in the

indictment and proof is that the name of the victim as set fourth in the indictment

must be specific enough so as to not mislead the accused in the preparation of the

defense or to subject the accused to a second prosecution for the same offense."

See Raulerson v. State, 358 So.2d 826 (Fla. 1978). An important point must be

brought to this Court's notice with "emphasis added," and that is that the victim

could not spell his own name. Therefore, making it impossible to establish the

identity of the victim, when the arrest affidavit and the information give to totally

different surnames from the one given in trial. Furthermore, the court never gave

the defendant any notice of the change in the victim name which is an essential

element.

6. The Defendant was charged by information of Robbery with a Deadly

Weapon on a victim named Elisoi Jeangil. At trial, Elisoi St. Lott testified that he

had been the victim of the robbery. No mention of Elisoi Jeangil was made in the

testimony. Compounding this problem was the Arrest Affidavit arrested the

Defendant on a victim named Elisoi Selahl, and at trial the victim could not spell

his own name. The Stated alleged to have amended the information, but failed to

give notice to the Defendant. The State also failed to.show a nexus or relationship

5

between the three different named persons. Therefore, it cannot be said that the

record protects the accused against another prosecution for the same offense. The

State should have shown that these three different named persons are in reality the

same person and, further, the Defendant only has information of the victim named

Elisoi Jeangil. See Green v. State, 714 So.2d 594 (Fla. 2nd DCA 1998).

7. (Judicial notice) In Holbrough v. State, 103 So.3d 221 (Fla. 4* DCA 2013)

the Fourth District Court of Appeal relied on Jacobs v. State, 46 Fla. 157, 35 So.

65 (1903) in reversing Holbrough's conviction stating "there was no proof as to the

identity of the victim, an essential element of the crime of battery." As in the

defendant's case relying on Jacobs, supra, there was no proof as to the identity of

the victim, an essential element of the crime of robbery, thus the Fourth District

failed to apply the holding of Jacobs, supra, to the defendant's case as it did in

Holbrough, supra, thus, constituting a manifest injustice that does not promote -

but corrodes - uniformity in the Fourth District Court of Appeal's decisions.

Stephen v. State, 974 So.2d 445 (Fla. 2"d DCA 2008); Johnson v. State, 9 So.3d

640 (Fla. 4* DCA 2009).

8. Robbery of any one person, is a distinctly different factual event and crime

from robbery of any other person. See Rose v. State, 507 So.2d 631 (Fla. 5* DCA

1978). Unless the State shows that the person assaulted was well known by name

6

alleged in information as true name, variance in proof as to name is not fatal. See

Branch v. State, 115 So. 143 (Fla. 1927)

9. In accordance with the Petitioner's argument, the Petitioner brings to this

Honorable Court's attention Dokun v. State, 79 So.3d 190 (Fla. 1" DCA 2012). In

the case ofDokun, supra, the State was able to show that: a person named Titilayo

Dokun applied for public assistance from the Department of Children and

Families, actually received public assistance, and was able to prove that a person

by the name of Titilayo Dokun received income that may have disqualified her

from receiving such benefits.

On the basis of these "proven factors" Dokun was found guilty. However,

the problem with that conviction is that the State never did present any evidence

that the person sitting in the courtroom - who happened to be named Titilayo

Dokun - was the same person that applied for public assistance, nor did the State

ever present any evidence that the person sitting in the courtroom was the same

person that received the disqualified income. Dokun's conviction was overturned

based upon the fact that the State had the burden to prove every element of the

crime of Public Assistance Fraud. In this case, the State failed to prove the element

of identity which is an essential element of the crime of Public Assistance Fraud.

10. In the Petitioner's case, as in Dokun, supra, the State was able to show that a

person named Elisoi St. Lott ivas a victim of robbery with a deadly weapon and

7

was able to prove that a person by the name of Elisoi St. Lott was robbed. On the

basis of these "proven factors" the Petitioner was found guilty. However, the

problem with the Petitioner's conviction was that the State never did present any

evidence that the person sitting in the courtroom - who happened to be named

Elisoi St. Lott - was the same person that was robbed on September 18, 2005," as

alleged in the Arrest Report and Information. As this Honorable Court can see, the

Arrest Report and Information alleged two different named victims, and the State

never presented any evidence that the person sitting in the courtroom was the same

person the Petitioner was arrested for as "constituting probable cause" or that he

was the same person alleged in the Information. As in Dokun's case, Petitioner's

conviction should be overturned based upon the State having had the burden to

prove every element of the crime of Robbery With a Deadly Weapon. In

Petitioner's case, the State failed to prove the element of identity, which is an

essential element of the crime of robbery. See Dokun v. State, 79 So.3d 190 (Fla.

18' DCA 2012); Jacobs, supra,; Branch, supra.

11. Note also that "Proof of crime that is separate and distinct from crime

charged in accusatorial document constitutes fatal variance in proof that cannot be

Be advised that the arrest report alleged that on September 18, 2005 thatPetitioner robbed Elisoi Selahl, and later on October 20, 2005 the informationalleged that Petitioner robbed another victim named Elisoi Jeangil on September18, 2005. At trial the Petitioner was convicted of robbing a victim named Elisoi St.Lott, on the date of September 18, 2005.

8

cured by amending the information. Rose v. State, 507 So.2d 630 (Fla. 5*h DCA

1987). See also Fla.R.Crim.P. Rule 3.151(c).

Conclusion

1. Because of the failure of the State to establish the true identity of the victim,

the State's failure in testimony to establish the identity of the victim, and the

State's failure to show that he was well known by the name Jeangil and/or Selahl,

and the fact that the victim could not spell the name that the State alleged to have

amended it to the Petitioner's conviction still places him in double jeopardy and

leaves him subject to the danger of further prosecution. See Green v. State, 714

So.2d 594 (Fla. 2"d DCA 1998); Branch v. State, 94 Fla. 286, 115 So. 143 (1927);

also see Fifth (5th) Amendment United States Constitution; and Article 1, Section 9

of the Florida Constitution. The Petitioner has never received the equal protection

of the law guaranteed by the 14th Amendment of the United States Constitution.

The laws that govern the Petitioner's claim have not been applied. See Branch,

supra Jacobs, supra, Raulerson, supra, Lattimore, supra, and Green, supra, and

pursuant to stare decisis "to stand by that which was decided." The Petitioner asks

this Honorable Court to stand by and uphold these former decisions.

2. Being that the victim's name is an essential element and a change in the

victim's name in an information charged a different crime, and violated double

jeopardy, the amendment did change the essential element, but the State charged

9

the same offense just using a different victim's name which constitutes double

jeopardy and leaves the Petitioner subject to the danger of further prosecution for

Elisoi Selahl, and Elisoi Jeangil.

Relief Sought

In accordance with the rule announced in Jacobs, supra, and Green, supra, that this

Court:

1. Grant discretionary review for a new trial;

2. Quash the decision of the Fourth District Court of Appeal; and

3. Grant any other justice this Court deems proper.

Certificate of Compliance

I DO HEREBY CERTIFY, that this Brief complies with the fontrequirements of Rule 9.210 (a)(2), Florida Rules f Appellate Procedure.

. Kendrick Wilson # K69864Hamilton C.I. M.U.10650 S.W. 46* StreetJasper, Fla. 32052

Certificate of.Service

I HEREBY CERTIFY, that I have placed a true copy of the foregoing inthe hand of mailroom officers at Hamilton C.I. for mailing to: The Supreme Courtof Florida, Supreme Court Building, 500 S. Duval Street, Tallahassee, Fla. 32399-1927; and the Office of the Attorney General, (First DCA), PL-01, The Capitol,Tallahassee, Florida 32399-1050 on this i day of September, 2014.

Res ctfully Submitted,

endrick Wilson # K69864Hamilton C.I. M.U.10650 S.W. 46* StreetJasper, Fla. 32052

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IN THE SUPREME COURT OF FLORIDA

KENDRICK WILSON,Petitioner, CASE NO.: SC14-1479

L.T. CASE NO.: 4D13-3556;v. 562005F003856A

STATE OF FLORIDA,Respondent.

Appendix IndexAppendix Document

Appendix (A) Fourth District Court ofAppeal Decision

Certificate of Service

I HEREBY CERTIFY, that I have placed a true copy of the foregoing in

the hand of mailroom officers at Hamilton C.I. for mailing to: The Supreme Court

of Florida, Supreme Court Building, 500 S. Duval Street, Tallahassee, Fla. 32399-

1927; and the Office of the Attorney General, (First DCA), PL-01, The Capitol,

Tallahassee, Florida 32399-1050 on this day of September, 2014.

Respectfully Submitted,

Kendrick Wilson # K69864Hamilton C.I. M.U.10650 S.W. 46°' StreetJasper, Fla. 32052

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICTJanuary Term 2014

KENDRICK S. WILSON,Appellant,

v.

STATE OF FLORIDA,Appellee.

No. 4D13-3556

[April 30, 2014]

Appeal of order denying rule 3.850 motion from the Circuit Court for the.NineteenthJudicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No.562005CF003856A.

Kendrick S. Wilson, Jasper, pro se.

No appearance required for appellee.

ON ORDER TO SHOW CAUSE

PER CURIAM.

Prior to appellant's filing of this appeal, we issued an opinion cautioning him thatcontinued frivolous filings would result in sanctions. Wilson v. State, 109 So. 3d 240(Fla. 4th DCA 2013). Undeterred, appellant filed a notice of appeal challenging the trialcourt's denial of a habeas corpus petition. The trial court properly treated the petition asa motion for post-conviction relief under rule 3.850 and determined that it was untimelyand procedurally barred. Fla. R. Crim. P. 3.850(h); Baker v. State, 878 So. 2d 1236, 1241(Fla. 2004).

We affirmed and pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), issued anorder directing appellant to show cause why this court should not impose sanctions. Wehave reviewed appellant's response, and conclude that sanctions are appropriate.

Appellant's abuse of the post-conviction process interferes with the right of access tocourt for others and damages the remedy. See Lake v. State, 115 So. 3d 1046, 1047 (Fla.4th DCA 2013) (citing McCutcheon v. State, 44 So. 3d 156, 161 (Fla. 4th DCA 2010)).This court affirmed appellant's conviction in 2007, and in 2011 it affirmed the trialcourt's denial of his first post-conviction relief motion. Wilson v. State, 72 So. 3d 771

(Fla. 4th DCA 2011);I Wilson v. State, 964 So. 2d 241 (Fla. 4th DCA 2007).2 Since thenhis filings, including the instant appeal, have raised meritless and procedurally barredclaims. Wilson v. State, No. 4D11-2658 (Fla. 4th DCA Feb. 27, 2014) (habeas corpuspetition); Wilson v. State, 109 So. 3d 240 (Fla. 4th DCA 2013).3

In particular, this proceeding shows why sanctions are appropriate. Wilson filed apetition for writ of habeas corpus in Hamilton County where he is incarcerated. Theproceeding was tránsferred to St. Lucie County. Appellant's substantive claim presenteda challenge to the information in that the victim's name was wrong. The trial court notedthat it was interesting that appellant failed to allege in the current petition (transferredfrom Hamilton County) that the state had been granted leave to amend the chargingdocument prior to trial to correct the victim's name. The court noted that appellant hadacknowledged that amendment in his prior motion, but left it out of the one at issue.4 Thetrial court concluded that appellant's motion was non-meritorious, frivolous and abusive.He continues to allege in this appeal the discrepancy regarding the victim's name.

Accordingly, the Clerk of this Court is directed to no longer accept any paper filed byKendrick S. Wilson arising out of his conviction and sentence in St. Lucie County lowertribunal case number 05-3856, unless that paper has been signed by a member in goodstanding with The Florida Bar and that member certifies that a good faith basis exists foreach clairn presented. Additionally, the Clerk is directed to forward a certified copy ofthis opinion to the appropriate institution for consideration of disciplinary procedures. §944.279(1), Fla. Stat. (2012).

Affirmed. Sanctions imposed. Appellant referred to prison officials.

DAMOORGIAN, C.J., WARNER and KuNGENSMITH, JJ., concur. .

· * * *

Notfinal until disposition oftimelyfiled motionfor rehearing.

¹ No. 4D09-36922 No. 4D06-31023 No. 4D12-19024 The docket included in the summary record shows that at trial on May 3, 2006, the state orallymoved to amend the information to correct the victim's name, which motion was granted.

2