supreme court of florida court of florida case no. sc13-9999 cynthia schwartz, petitioner, v. state...
Post on 03-Apr-2018
216 Views
Preview:
TRANSCRIPT
Supreme Court of Florida
CASE NO. SC13-9999
CYNTHIA SCHWARTZ,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR DISCRETIONARY REVIEW FROM THE
DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA
PETITIONER’S JURISDICTIONAL BRIEF
/s/ Ira W. Still, III
Ira W. Still, III, Esq.
Law Offices of Ira Still
148 SW 97th
Terrace
Coral Springs, Florida 33071
Broward: (954) 573-4412
Miami: (305) 303-0853
Email: ira@istilldefendliberty.com
Counsel for Petitioner
Electronically Filed 09/06/2013 12:03:34 PM ET
RECEIVED, 9/6/2013 12:08:35, Thomas D. Hall, Clerk, Supreme Court
TABLE OF CONTENTS
page
TABLE OF CONTENTS: i
TABLE OF AUTHORITIES: ii
STATEMENT OF THE CASE AND OF THE FACTS: 1-3
SUMMARY OF ARGUMENT: 4
ARGUMENT:
I. 4-8
THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF
THE FLORIDA SUPREME COURT REGARDING OBJECTIVE
“DUE PROCESS” ENTRAPMENT.
II. 8-10
THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF
THE FLORIDA SUPREME COURT OTHER DISTRICT COURT
DECISIONS CONCERNING DISPOSITIVENESS.
III. 10
THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF
THE UNITED STATES SUPREME COURT AND THE FLORIDA
SUPREME COURT REGARDING WHETHER FRANKS APPLIES
ONLY TO SEARCH WARRANT CASES.
CONCLUSION: 10
CERTIFICATES OF SERVICE AND COMPLIANCE: 11
-i-
TABLE OF AUTHORITIES
CASES: page
Brown v. State, 376 So.2d 382 (Fla. 1979) 9
Diaz v. State, 34 So. 3d 797 (Fla. 4th
DCA 2010) 9, 10
Franks v. Delaware, 438 U.S. 154 (1978) 10
Giglio v. U.S., 405 U.S. 150, 92 S.Ct.763 (1972) 6
Johnson v. State, 660 So.2d 648 (Fla. 1995) 10
Lamb v. State, 55 So. 3d 751 (Fla. 2nd
DCA 2011) 10
Munoz v. State, 629 So.2d 90 (Fla.1993) 5, 6, 7, 8
Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998) 9
State v. Glosson, 462 So.2d 1082 (Fla. 1985) 5, 6, 7, 8
State v. Williams, 623 So.2d 462 (Fla. 1993) 5, 7, 8
Thorp v. State, 777 So.2d 385 (Fla. 2001) 10
Zeigler v. State, 471 So.2d 172,175 (Fla. 1st DCA 1985) 9
OTHER AUTHORITIES
Article I, Section 9, Constitution of the State of Florida 2, 4, 5
Section 777.201, Florida Statutes 4
-ii-
1
STATEMENT OF THE CASE AND OF THE FACTS
As used in this jurisdictional brief, the designation “App.” followed by a
number designates the appendix and item number listed in the appendix. All
emphasis has been supplied unless otherwise designated.
This is a petition to review the decision of the Fourth District Court of
Appeal [hereinafter 4th
DCA] rendered on May 29, 2013, [App. 1]. Appellant’s
motion for rehearing was denied by the 4th DCA on August 1, 2013 [App. 2].
Petitioner filed her Notice to Invoke the Discretionary Jurisdiction of this Court on
August 30, 2013, asserting that the decision of the 4th DCA expressly and directly
conflicts with opinions of the Florida Supreme Court and other District Courts.
The 4th DCA in its opinion [App. 1; at p. 1], states:
In this appeal from a conviction and sentence after plea
to trafficking in cocaine and Oxycodone, where appellant
reserved her right to appeal dispositive motions, she
challenges the trial court’s denial of her motion to
suppress…Appellant also claims that the court should
have granted her motion to dismiss based upon objective
entrapment, but we conclude the trial court correctly
denied the motion. Finally, she claims that the case
against her is based upon “perjured” testimony from the
lead detective, relying on various inconsistencies
between his testimony and the testimony of one
informant, as well as inconsistencies between his
testimony at various depositions and hearings. Although
we conclude that appellant has not proved that the
detective’s testimony was affirmatively false, we need
2
not address the merits, because relief, if any, for
knowingly relying on false testimony would be a
reversal for new trial or hearing, not dismissal of all
charges. Therefore, it is not dispositive and cannot be
reserved for appeal from the conviction based upon a
plea. We thus affirm.
The trial court entered an order denying the motion to suppress without
making any factual findings. It was during those hearings that the lead detective
gave sworn testimony that he knew was false. The lying under oath was not a
separate wrong. It was the sign-post of the egregious government conduct. Since
the trial court made no factual findings on the motion to suppress, the 4th DCA
proceeded to draw their own factual conclusions as to whether the lead detective
committed perjury and whether that was material to the pretrial motions.
Schwartz attorney filed a motion to dismiss based on objective “due
process” entrapment pursuant to Art. I, §9, Fla. Const. During those extended
hearings, the defendant sought to prove that the perjury of the police coupled with
a cover-up scheme extended from before the targeted drug transactions until after
Schwartz’s arrest amounted to egregious government conduct which required the
trial court to dismiss the charges for due process violations on the legal theory of
objective entrapment pursuant to Art. I, §9 of the Fla. Const. However, the trial
court never made any factual findings in its order denying the motion to dismiss.
3
The trial court failed to determine whether the lead detective lied under oath to
cover up egregious government conduct. The 4th DCA [App. 1; at p. 2] stated:
Appellant filed a lengthy motion to dismiss the charges
based upon objective entrapment, alleging that the police
had set her up because of the fact that her husband and
his brother were known drug traffickers, her husband
having been sent to prison. Her theory seems to have
been that the lead detective in her arrest cloaked the
informants as confidential informants in order to entrap
her. Once designated as confidential informants, their
testimony was unavailable. According to appellant’s
theory, the detective’s plan was to target appellant and to
use the immunized Hollywood arrestee and her supplier
as confidential informants so that appellant could not
dispose them to learn the truth of the plan.
As convoluted as the theory was, the trial court held an
extensive evidentiary hearing on it. We have reviewed
the transcript of that hearing…
The trial court denied the motion to dismiss, finding no
objective entrapment…Nevertheless, the court concluded
that no due process violation had occurred at that point in
the proceedings…the appellant filed a motion for
reconsideration, clarification, and to conduct a Franks
hearing…The appellant then pled to the crimes, reserving
her right to appeal “dispositive” motions. Neither the
state nor the trial court stated on the record that all of
the motions were dispositive.
The 4th DCA overlooked the signed stipulation of the parties and the trial
judge that all of the motions (taken together) were “dispositive” for purposes of
appeal. The 4th
DCA held that the only remedy for false testimony was the grant of
a new trial, and otherwise denied the appeal.
4
SUMMARY OF ARGUMENT
This Court should accept jurisdiction to review the 4th DCA’s decision. As
the opinion conflicts with decisions of the Florida Supreme Court and various
District Courts of Appeal.
1. The first basis supporting review by this Court is that the 4th
DCA
confused the law of objective “due process” entrapment pursuant to Art. I, §9, Fla.
Const. with subjective entrapment pursuant to Sec. 777.201, Fla. Stat.. The 4th
DCA confused the two and blended in postconviction analysis under federal cases.
2. The second basis supporting review by this Court is that the 4th DCA
determined that the undetermined orders on appeal were not “dispositive” despite
the written stipulation of the parties and the trial court that all of the motions taken
together were in fact dispositive.
3. The third basis supporting review by this Court is that the 4th DCA
restricted Franks application (of police lying under oath to the trial judge) solely to
cases involving search warrants.
ARGUMENT
I. THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF THE
FLORIDASUPREME COURT REGARDING OBJECTIVE “DUE
PROCESS” ENTRAPMENT.
5
This Court should accept jurisdiction because the 4th DCA’s decision
expressly and directly conflicts with decisions of the Florida Supreme Court
regarding the law on Objective Due Process Entrapment, pursuant to Art. I, Sec. 9
of the Florida Constitution. In its opinion, the 4th DCA [App. 1; p. 5] said:
Objective entrapment focuses on governmental
misconduct which violates a defendant’s due process
rights by ensnaring him to commit a crime, regardless
of predisposition…
All of this conduct entices or facilitates the
commission of the crime. In this case we agree with the
trial court that there was no egregious misconduct of law
enforcement in setting up the drug transactions in this
case.
Since the trial court made no factual findings in denying the motion to
dismiss, it is difficult to understand how the 4th DCA drew that conclusion.
Notwithstanding, the 4th
DCA misapplied the Florida law on objective “due
process” entrapment and their view of it expressly and directly conflicts with this
Court’s holdings in Glosson, 462 So.2d 1082, 1084 (Fla. 1985); State v. Williams,
623 So.2d 462 (Fla. 1993); and Munoz v. State, 629 So.2d 90 (Fla. 1993).
In Glosson, supra, this Court said [at 1084]: “The due process defense
based upon governmental misconduct is an objective question of law for the trial
court, as opposed to the subjective predisposition question submitted to the jury in
the usual entrapment defense.” This Court held [at 1085]:
6
We reject the narrow application of the due process
defense found in federal cases. Based upon the due
process provision of article I, section 9 of the Florida
Constitution, we agree with Hohensee and Isaacson that
governmental misconduct which violates the
constitutional due process right of defendant, regardless
of that defendant’s predisposition, requires the
dismissal of criminal charges.
This Court did not say anything about police misconduct “ensnaring the
defendant to commit the crime” as stated by the 4th
DCA [App. 1; p. 5].
The 4th DCA [App. 1; at p. 5] held: “While objective entrapment involves
the police action in setting up criminal activity, a defendant has a due process
right not to be convicted based upon false testimony [citing Giglio] .” Pursuant to
this Court’s opinions in Glosson, Munoz, and Williams, the setting up, ensnaring or
enticing of criminal activity has no place in the analysis of objective entrapment.
Furthermore, the allegation of false testimony was not raised in order to trigger a
postconviction analysis under Giglio v. U.S., 405 U.S. 150, 92 S.Ct.763 (1972),
which can only give rise to the grant of a new trial. Where this defendant pled and
reserved dispositive motions, there would be no trial.
This Court held, in Glosson, supra, “a trial court may properly dismiss
criminal charges for constitutional due process violations in cases…” and gave the
factual example that formed the basis of finding “egregious police misconduct” in
that particular case. Each case stands on its own facts. Here the trial court made
7
no factual findings on the motion to dismiss and failed to consider the defense
motions on the issue of egregious government misconduct. It is error for the
appellate court to supplement the record by making its own factual findings.
This Court in Munoz v. State, [at 98] explained the differences between the
Florida law on objective entrapment and statutory subjective entrapment under the
federal standard, “which focuses on a defendant’s predisposition and that the
(U.S. Supreme) Court has specifically rejected the objective standard, which
focuses on the government’s conduct.” This Court held: “By this opinion, we
attempt to set forth the principles of Florida’s entrapment defense to harmonize the
law and to ensure uniform application of the entrapment defense in Florida.”
In State v. Williams, 623 So.2d 462, 463 (Fla. 1993), this Court held:
We hold that the illegal manufacture of crack cocaine by
law enforcement officials for use in a reverse-sting
operation within 1000 feet of a school constitutes
governmental misconduct which violates the due process
clause of the Florida Constitution. Thus, we find that the
defendant’s conviction for purchasing the crack cocaine
must be reversed.
This Court in Williams held it was the egregious government misconduct
that is the violation of due process requiring dismissal of the charges,
notwithstanding the fact that the defendant of his own volition committed the
crime charged and purchased the crack cocaine. Whether the defendant is
8
predisposed to sell cocaine and whether the defendant is enticed or procured into
committing the crime is not the focus in objective entrapment cases. Rather, it is
the government’s misconduct that is so egregious as to violate due process that is
the focus of these cases. It follows that the defendant must be afforded the full
opportunity to develop and present sufficient facts to the trial court which should
make specific factual findings as to whether or not the level of police misconduct
attains to the standard that violates due process. It is not for the appellate court to
substitute its own findings of fact where the trial court failed to do so.
The 4th DCA errant analysis of objective entrapment expressly and directly
conflicts with Glosson, supra, Munoz, supra, and Williams.
II. THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF THE
FLORIDA SUPREME COURT AND OTHER DISTRICT COURT
DECISIONS CONCERNING DISPOSITIVENESS.
The Fourth District’s decision also conflicts with decisions of the Florida
Supreme Court and other Florida District Courts on the question whether an
appellate court can overlook the written stipulation of the parties and the trial court
expressly acknowledging that all of the pending motions in the trial court were
dispositive to the issues raised on appeal following the defendant’s plea. The 4th
DCA failed to acknowledge that the parties and the trial court had each signed a
9
written stipulation that all of the motions and issues raised on appeal were
dispositive.
In Brown v. State, 376 So.2d 382, 385 (Fla. 1979), the Court held:
We must now ascertain what constitutes a dispositive
legal issue. In most cases the determination will be a
simple one. Motions testing the sufficiency of the
charging document, the constitutionality of a controlling
statute, or suppression of contraband for which a
defendant is charged with possession are illustrative.
Under this rule the trial judge will have wide discretion
to accept or reject an Ashby nolo plea based upon his
perception of the dispositive nature Vel non of the legal
issue reserved for appeal. His decision will be
overturned only upon a showing of clear abuse of
discretion.
The 4th
DCA claimed there was nothing in the record regarding a stipulation
of the issues being dispositive. That clearly is not the case as the signed
stipulation is in the record and reiterated on motion for rehearing. See Zeigler v.
State, 471 So.2d 172,175 (Fla. 1st DCA 1985) [a joint stipulation is sufficient to
establish dispositiveness]; Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998)
[the court will not “go behind” a joint stipulation of dispositiveness]; Diaz v. State,
34 So.3d 797, 798 (Fla. 4th
DCA 2010) [it is the trial court’s duty to determine the
dispositive nature of the reserved question]; Lamb v. State, 55 So.3d 751, 753 (Fla.
2nd
DCA 2011) [“Because the trial court gave Lamb the impression that she was
10
preserving her right to appeal the ruling on her motion to suppress, we conclude
that a finding of dispositiveness can be inferred from the record].
The 4th DCA [App.1; at p. 6] states: “The motion for reconsideration was
not dispositive, nor was the motion for a Franks hearing, which in any event would
not apply, as a search warrant was not involved in this case.” This conflicts with
the cited cases.
III. THE 4th
DCA’S DECISION CONFLICTS WITH DECISIONS OF THE
UNITED STATES SUPREME COURT AND THE FLORIDA
SUPREME COURT REGARDING WHETHER FRANKS APPLIES
ONLY TO SEARCH WARRANT CASES.
The 4th DCA errantly limited the scope of Franks v. Delaware, 438 U.S. 154
(1978) to search warrants, exclusively. See also Johnson v. State, 660 So.2d 648
(Fla. 1995); and Thorp v. State, 777 So.2d 385 (Fla. 2001). Franks applies to any
case where law enforcement personal lie under oath to the court in order to procure
a conviction.
CONCLUSION
WHEREFORE, the decision of the 4th DCA under review expressly and
directly conflicts with the decisions of the Florida Supreme Court and other
District Courts of Appeal on the same questions of Florida law, this Court should
accept jurisdiction and review the decision on the merits.
11
Respectfully submitted,
/s/ Ira W. Still, III
IRA W. STILL, III, ESQUIRE
Attorney for Defendant
148 SW 97th Terrace
Coral Springs, FL 33071
BROWARD: 954-573-4412
DADE: 305-303-0853
FAX: 954-827-0151
Email: ira@istilldefendliberty.com
Florida Bar No.: 169746
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this jurisdictional brief has been computer
generated in 14-point Times New Roman font [except for title headings which are
in 16-point Times New Roman font] and this complies with the requirements of
Rule 9.210(a)(2)
/s/ Ira W. Still, III
IRA W. STILL, III, ESQUIRE
12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that that a true and correct PDF-format copy of the
foregoing jurisdictional brief was E-Served upon Heidi L. Bettendorf, Esq.,
Assistant Attorney General [counsel for the respondent] at
crimappwpb@myfloridalegal.com whose office address is at the Office of the
Attorney General at 1515 North Flagler Drive, Suite 900, West Palm Beach, FL
33401, and to Lewis S. Midler, Esq. [counsel for Cynthia Schwartz in the 4th
DCA]
at lewis@midlerkramer.com whose office address is 120 East Oakland Park Blvd.,
Suite 203, Ft. Lauderdale, FL 33334, on this 6th
day of September 2013.
s/ Ira W. Still, III
IRA W. STILL, III, ESQUIRE
top related