IN the SUPREME COURT of FLORIDA STATE of FLORIDA, ) ) Petitioner, ) ) Vs. ) CASE NO. SC04-1526 ) ANGEL RIVERA, ) ) Responde

IN THE

SUPREME COURT OF FLORIDA

STATE OF FLORIDA, ) ) Petitioner, ) ) vs. ) CASE NO. SC04-1526 ) ANGEL RIVERA, ) ) Respondent. ) )

RESPONDENT’S BRIEF ON JURISDICTION

CAREY HAUGHWOUT Public Defender

David John McPherrin Assistant Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 Third Street/6th Floor West Palm Beach, Florida 33401 (561) 355-7600

Attorney for Angel Rivera TABLE OF CONTENTS PAGE

TABLE OF CONTENTS ...... i

AUTHORITIES CITED ...... ii

PRELIMINARY STATEMENT ...... 1

STATEMENT OF THE CASE AND FACTS ...... 2

SUMMARY OF THE ARGUMENT ...... 3

ARGUMENT POINT ON APPEAL PETITIONER HAS NOT PROPERLY INVOKED THE JURISDICTION OF THIS COURT WHERE THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN RIVERA v. STATE, 29 Fla. L. Weekly D1552 (Fla. 4th DCA June 30, 2004), DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION RENDERED BY THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL...... 4

CONCLUSION ...... 9

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF FONT SIZE ...... 10

i AUTHORITIES CITED

CASES CITED PAGE

Brown v. State, 789 So. 2d 366 (Fla. 2d DCA 2001) ...... 5-9

Kincaid v. World Insurance Co., 157 So. 2d 517 (Fla. 1963) ...... 4

Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962) ...... 5

Mancini v. State, 312 So. 2d 732 (Fla. 1975) ...... 4

Rivera v. State, 29 Fla. L. Weekly D1552 (Fla. 4th DCA June 30, 2004) ...... 5, 9

Stabile v. State, 790 So. 2d 1235 (Fla. 5th DCA 2001) ...... 5, 7-9

FLORIDA STATUTES

Section 90.803(6) ...... 8

ii PRELIMINARY STATEMENT

Respondent was the defendant in the Circuit Court of the Seventeenth Judicial

Circuit, In and For Broward County, and the appellant in the Fourth District Court of

Appeal. Petitioner was the prosecution and appellee in the lower courts. In this brief the parties will be referred to as they appear before this Court.

1 STATEMENT OF THE CASE AND FACTS

Respondent accepts the statement of the case and facts supplied by petitioner in its initial brief on jurisdiction insofar as they are taken from the district court’s written opinion. References made by petitioner to the record on appeal should not be considered at this stage of the proceedings. Reaves v. State, 485 So. 2d 829, 830 n.3 (Fla. 1986).

2 SUMMARY OF THE ARGUMENT

In Rivera v. State, 29 Fla. L. Weekly D1552 (Fla. 4th DCA June 30, 2004) the

Fourth District Court of Appeal ruled that a Department of Corrections release date affidavit, without more, was insufficient to establish that the respondent was the individual named therein where no evidence was introduced connecting the respondent to the judgment of conviction case number referred to in the affidavit and that the affidavit did not comply with the requirements of the business record exception to the rule excluding hearsay. In Brown v. State, 789 So. 2d 366 (Fla. 2d

DCA 2001) a release date affidavit was deemed sufficient to establish the date the defendant was released from prison. However, absent from the Brown opinion is any suggestion that the defendant disputed that he was convicted of, and sentenced to prison for, the offense referred to in the release date affidavit. In Stabile v. State,

790 So. 2d 1235 (Fla. 5th DCA 2001) a release date affidavit, found to be admissible as a business record, was deemed sufficient to establish the date the defendant was released from prison for an offense that other evidence proved he was convicted of committing. Rivera did not announce a rule of law in conflict with Brown and

Stabile, nor did it reach a result different than that reached in those cases based upon substantially similar facts. Accordingly, Rivera is not in express and direct conflict with Brown and Stabile.

3 ARGUMENT

POINT ON APPEAL

PETITIONER HAS NOT PROPERLY INVOKED THE JURISDICTION OF THIS COURT WHERE THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL IN RIVERA v. STATE, 29 Fla. L. Weekly D1552 (Fla. 4th DCA June 30, 2004), DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION RENDERED BY THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL.

"Conflict" jurisdiction may be invoked when the decision of a district court announces a rule of law in conflict with one previously announced by this Court or another district court or the district court applies a settled rule of law to produce a different result in a case 0that involves facts substantially the same as those found in a decision of this Court or another district court. See Mancini v. State, 312 So. 2d

732, 733 (Fla. 1975). The test for accepting review under this provision is "not whether we [the Supreme Court] would necessarily have arrived at a conclusion different from that reached by the District Court. The constitutional standard is whether the decision of the District Court on its face collides with a prior decision of this Court, or another District Court, on the same point of law so as to create an inconsistency or conflict among precedents." Kincaid v. World Insurance Co., 157

So. 2d 517, 518 (Fla. 1963). The conflict must be of such magnitude "that if the

4 later decision and the earlier decision were rendered by the same court the former would have the effect of overruling the latter." Kyle v. Kyle, 139 So. 2d 885, 887

(Fla. 1962). However, "[i]f the two cases are distinguishable in controlling factual elements or if the points of law settled by the two cases are not the same, than no conflict can arise." Id. at 887. Contrary to petitioner’s assertion, the decision of the

Fourth District Court of Appeal rendered in Rivera v. State, 29 Fla. L. Weekly

D1552 (Fla. 4th DCA June 30, 2004) is not in express and direct conflict with decisions rendered by the Second and Fifth District Courts of Appeal in Brown v.

State, 789 So. 2d 366 (Fla. 2d DCA 2001) and Stabile v. State, 790 So. 2d 1235

(Fla. 5th DCA 2001).

Rivera saw the respondent challenge the imposition of habitual felony offender and prison releasee reoffender sentences on the ground that he did not meet the qualifications for enhanced sentencing. 29 Fla. L. Weekly at D1552. During the sentencing hearing, a fingerprint analyst testified that the fingerprints found on the judgments of conviction in case numbers 95-010861 and 95-01862 belonged to the respondent. Id. The analyst also testified that she could not identify the fingerprints found on a judgment of conviction in case number 99-8186 as belonging to the respondent. Id. Petitioner introduced an affidavit from an employee of the Central

Records Office of the Department of Corrections stating that an Angel Rivera, with

5 the same birthdate as the respondent, was released from prison on August 1, 2000, in case number 99-8186. Id. The affidavit did not address the 1995 case numbers.

Id. The Fourth District concluded that respondent did not qualify for habitual felony offender sentencing where petitioner failed to establish that he had two prior sequential felony convictions or for prison releasee reoffender sentencing where petitioner failed to establish that he was released from a prison sentence within three years from the commission of the instant offenses. Id. The court rejected petitioner’s invitation to rely upon the conviction in case number 99-8186 for which no fingerprint identification existed concluding that the release date affidavit was not sufficient to prove that respondent was the Angel Rivera convicted and sentenced in case number 99-8186. Id. at 1552-1553. The district court also concluded that the release affidavit submitted in this case did not meet the requirements for a business record. Id. at 1553.

In Brown, where the defendant pled guilty to a number of felony offenses, the state sought the imposition of prison releasee reoffender and habitual felony offender sentences. 789 So. 2d at 367. Brown argued, among other things, that the state failed to establish the date he was released from prison. The Second District concluded that the state established by a preponderance of the evidence that Brown qualified for enhanced sentencing where it introduced “a release affidavit from the

6 Department of Corrections showing Brown’s release date.” Id. Absent from the decision is any suggestion that Brown disputed that he was the person convicted of, and sentenced for, that offense referenced in the release date affidavit. In addition, the opinion does not hold that a release date affidavit, in and of itself, is sufficient to establish the criteria for enhanced sentencing where the evidence otherwise fails to prove that the defendant was the person convicted of, and sentenced for, the crime referred to in the release date affidavit. It may well have been the case in Brown that the release date affidavit was relied upon solely to prove the date of release from a sentence for a crime Brown agreed, or other evidence proved, he was convicted of committing.

In Stabile, the defendant challenged the validity of his sentence as a prison releasee reoffender. 790 So. 2d at 1238. To establish that Stabile qualified for enhanced sentencing, the state introduced certified copies of two prior convictions, testimony of the deputy sheriff who fingerprinted Stabile for those convictions, and a Department of Corrections release date affidavit stating Stabile’s prison release date for the two prior convictions. Id. In affirming Stabile’s sentence the Fifth

District stated:

We think the affidavit was admissible as a business record exception to the hearsay rule, section 90.803(6), and that it was legally sufficient to prove the historical fact of the release date and the identity of the person released, under

7 the preponderance of the evidence standard.

Id.

The release affidavit was not used to prove that Stabile was the person whose name appeared on the judgments of conviction relied upon to impose an enhanced sentence, but was instead relied upon solely to establish the release date from a sentence imposed for a crime that other evidence proved the defendant was convicted of committing. Evidence, separate and independent of the release date affidavit, was introduced establishing that Stabile was the person convicted of, and sentenced for, the offense referred to in the release date affidavit.

Although the Fourth District’s opinion briefly addressed the business records exception to the hearsay rule found in section 90.803(6), Florida Statutes, as it applied to the Department of Corrections release date affidavit introduced at sentencing, the basis of the court’s ruling was petitioner’s failure to establish that respondent was the individual named in the judgment of conviction for case number

99-8186. Unlike Brown and Stabile, whether petitioner was the Angel Rivera convicted and sentenced in case number 99-8186 was in dispute and was not proven through fingerprints, photographs, witness testimony, or other adequate means.

Petitioner contends that Brown and Stabile hold that a release date affidavit, in and of itself, is sufficient to prove a prior conviction for an offense necessary to

8 imposition of an enhanced sentence. That is not the case and, as a result, the Fourth

District’s decision creates no conflict.1 Because petitioner failed to establish the relevancy of the release date affidavit vis-a-vis respondent, the release date affidavit was not admissible as a business record in this case. The Fourth District did not hold that a Department of Corrections release date affidavit could never be admissible as a business record, instead stating that the release date affidavit was not admissible as a business record in this case. Accordingly, there is no conflict between the decision of the Fourth District in Rivera and the Second and Fifth

Districts in Brown and Stabile.

CONCLUSION

Because express and direct conflict has not been shown, this Court should deny the petition for discretionary review.

Respectfully submitted,

CAREY HAUGHWOUT Public Defender 15th Judicial Circuit of Florida Criminal Justice Building 421 Third Street/6th Floor West Palm Beach, Florida 33401 (561) 355-7600

1 Rivera suggests that had petitioner connected the judgment of conviction in case number 99-8186 to respondent the release date affidavit would have been sufficient to prove the release date. 29 Fla. L. Weekly at D1552.

David J. McPherrin Assistant Public Defender Florida Bar No. 0861782

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished by courier to Mr.

Daniel P. Hyndman, Assistant Attorney General, 1515 North Flagler Drive, Ninth

Floor, West Palm Beach, Florida 33401 this day of August, 2004.

Attorney for Respondent

CERTIFICATE OF FONT SIZE

In accordance with the Florida Supreme Court Administrative Order, issued on July 13, 1998, petitioner hereby certifies that the instant brief has been prepared with 14 point Times New Roman type, a font that is not spaced proportionately.

David J. McPherrin Assistant Public Defender Florida Bar No. 0861782