IN THE SUPREME COURT OF FLORIDA. vs Case No. SC STATE OF FLORIDA Respondent BRIEF OF PETITIONER ON JURISDICTION

Transcription

1 IN THE SUPREME COURT OF FLORIDA RONDA MOORE Petitioner vs Case No. SC STATE OF FLORIDA Respondent BRIEF OF PETITIONER ON JURISDICTION E. Christopher DeSantis Counsel for Ronda Moore F.B.N P.O. Box Port St. Lucie, FL

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES..... ii PRELIMINARY STATEMENT 1 STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT.3 ARGUMENT....4 CONCLUSION..6 CERTIFICATE OF FONT..6 CERTIFICATE OF SERVICE 6 2

3 TABLE OF AUTHORITIES CASES Jenkins v. State, 385 So. 2d 1356 (Fla.1980) 4 Lazerle v State, 676 So.2d 394 (Fla. 1996)..3, 4, 5, 6 Moore v State, 30 FL Weekly D United States v. Rodriguez, 982 F.2d 474 (11 th Cir.), cert. denied, 510 U.S. 901, 114 S. Ct. 275, 126 L. Ed. 2d 226 (1993) 4 Woseley v.state, 590 So. 2d 979 (Fla. 1st DCA 1991)..4 OTHER AUTHORITIES: Article v, section 3(b)(3), Fla. Constt...4 3

4 PRELIMINARY STATEMENT Petitioner was the defendant and the respondent was the prosecution in the Criminal Division of the Circuit Court of the Nineteenth Judicial Circuit In and For St. Lucie County, Florida. In this brief the parties will be referred to as they appear before this court. STATEMENT OF THE CASE AND FACTS Petitioner was convicted of child neglect and aggravated child abusetorture in the circuit court in and for St. Lucie County, Florida. Moore, All charges were tried before a jury that rendered a guilty verdict as to Ronda Moore on both charges. She was sentenced to 92 months in the Department of Corrections for aggravated child abuse and 60 months concurrent at the Department of Corrections for child neglect. Robert Udell was counsel of record for both the petitioner and her codefendant. Both cases were tried at the same time. Her trial counsel had previously advised the court in writing that a conflict existed in representing both of the petitioner and co-defendant. Before evidence was taken, the assistant state attorney called the court s attention to defense counsel s dual role as counsel for each of the 4

5 defendants. At that point, the trial court' had a duty to ensure that petitioner fully understood the adverse consequences a conflict may impose. Despite a written admission to the contrary in the court file, defense counsel denied that there was a conflict, and the court accepted the summary statement on its face. The court proceeded to trial without conducting any further inquiry as to the existence of a possible conflict. The court made no inquiry that would reveal that petitioner was aware of the conflict of interest, that the petitioner realized the conflict could affect the defense, and that the petitioner knew of the right to obtain other counsel. On appeal to the Fourth District Court of Appeal, petitioner contended that there was a conflict of interest apparent on the face of the record (trial counsel s own admission) and that it was reversible error not to make the necessary inquiry. The Fourth District Court of Appeals ruled that the record did not show prejudice to the petitioner and that there really was not a conflict of interest because jointly denied that a crime had occurred. 5

6 SUMMARY OF THE ARGUMENT The decision in State v Moore, 30 FL Weekly D 2682 directly conflicts with this state Supreme Court s decision in Larzelere v State, 676 So2d 394, 403 (Fla. 1996). Larzelere sets out a specific procedure to waive a conflict of interest. State v Moore effectively holds that the failure to conduct a Larzelere inquiry can be excused by the lack of evidence of conflict on the record.. 6

7 ARGUMENT PETITIONER HAS PROPERLY INVOKED THIS COURT S JURISDICTION SINCE THE OPINION OF MOORE v STATE CONFLICTS WITH LARZELERE V STATE, 676 SO 2D 394, 403 (FLA. 1996). To properly invoke the conflict jurisdiction of this Court, Petitioner must demonstrate a direct conflict between the decision challenged and that of another district court or of this Court on the same rule of law. Article v, section 3(b)(3), Fla. Const.; Jenkins v. State, 385 So. 2d 1356 (Fla.1980). The conflict is a direct one if the two decisions speak to the same point of law in a factual context of sufficient similarity to permit the inference that the result in each case would have been different had the deciding court employed the reasoning of the other. Mancini v. State, 312 So. 2d 732 (Fla. 1975). Larzelere v State, 676 So2d 394, 403 (Fla. 1996). sets out a specific procedure to ascertain and waive a conflict of interest: Nevertheless, a defendant's fundamental right to conflict-free counsel can be waived. United States v. Rodriguez, 982 F.2d 474 (11th Cir.), cert. denied, 510 U.S. 901, 114 S. Ct. 275, 126 L. Ed. 2d 226 (1993); Woseley v. State, 590 So. 2d 979 (Fla. 1st DCA 1991). For a waiver to be valid, the record must show that the defendant was aware of the conflict of interest, that the defendant realized the conflict could affect the defense, and that the defendant knew of the right to obtain other counsel. 7

8 The clear intent of Lazerle was to set out a clear, specific procedure to establish a record by which an appellate court can determine whether a defendant s right to conflict free counsel is freely and voluntarily waived. This requires knowledge by a defendant that a conflict exists, understanding that it might impact the presentation of a case, and knowing one s options. In Moore, the trial court made no record to establish that the petitioner knew that defense counsel may have had a conflict of interest representing codefendants. It made no record that the petitioner understood that the conflict of interest could adversely affect her case, and most importantly, the court made no record that at the time of trial that petitioner knew that she still had the option to obtain court appointed counsel. The Fourth District Court of Appeals denied petitioner Moore s direct appeal because of the lack of evidence of a conflict of interest that compliance with Lazerle was intended to create. Of course the record might not show the conflict of interest if the trial court disregards its affirmative duty to create that very record. The effect of the ruling is to circumvent Lazerle by direct noncompliance with its mandates. 8

9 CONCLUSION The Fourth District Court of Appeal s decision in Moore v State directly conflicts with Larzelere v State because it would allow Lazerle to be avoided simply by direct noncompliance. Based on the foregoing arguments and authorities cited herein, Petitioner respectfully requests this Court accept jurisdiction in the instant case. CERTIFICATE OF FONT Counsel for petitioner certifies that the instant brief has been prepared with 14 point New Times Roman font, a font that is not proportionately spaced. CERTIFICATE OF SERVICE I hereby certify that a copy hereof was furnished by United States mail, postage prepaid the Office of Attorney General, Criminal Appellate Division, and 1515 N. Flagler Drive, Suite 900, West Palm Beach, Florida on January 23, Christopher DeSantis F.B.N P.O. Box Port St. Lucie, FL

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