IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-16

JOSE JIMENEZ,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR OF PROHIBITION/

RESPONSE

CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida

SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655

TABLE OF CONTENTS

INTRODUCTION ...... 1

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

ARGUMENT ...... 10

CONCLUSION ...... 13

CERTIFICATE OF SERVICE ...... 13

ii INTRODUCTION

In his Petition, Petitioner refers to the both the

Department of Financial Services and the prosecution as the

State without distinguishing between them. However, these entities are distinct, and Petitioner has treated them as such by serving certain pleadings only on one or the other of these entities. As such, Respondent will refer to the entity that prosecuted Petitioner as the State and the Department of

Financial Services as DFS.

1 STATEMENT OF THE CASE AND FACTS

During the pendency of the appeal from the denial of

Petitioner’s first motion for post conviction relief, Petitioner filed a pro se motion entitled Petition for Writ of Habeas

Corpus, Seeking a Belated Appeal. (App. A) The gravamen of this motion was that Petitioner was unhappy with his post conviction counsel and sought the appointment of new counsel.

Because the first post conviction appeal was pending, consideration of this motion was deferred until returned to the trial court.

On May 14, 2002, Martin McClain sought appointed from the

Southern District of Florida to represent Petitioner in a federal habeas petition. (App. B) A hearing was then conducted on Petitioner’s pro se motion in state court, at which

Petitioner was present telephonically. At the conclusion of this hearing, Petitioner’s former post conviction counsel was discharged, and Mr. McClain was appointed as registry counsel by the trial court. (App. C) McClain was also appointed to represent Petitioner in the filing of a federal habeas petition by the Southern District. (App. D)

On December 13, 2002, Petitioner filed a petition for writ of in this Court. Jimenez v. Crosby, SC02-2600.

The petition raised three claims:

2 CLAIM I [PETITIONER] WAS DEPRIVED OF HIS STATUTORY RIGHT TO EFFECTIVE REPRESENTATION IN COLLATERAL PROCEEDINGS. A. Florida Provides a Substantive Right to Effective Assistance of Collateral Representation in Capital case. B. [Petitioner’s] Collateral Counsel’s Representation Failed to Deliver the Effective Representation That Had Been Promised. 1. Refused to meet with client. 2. Denigrate Client to fact . 3. Violated confidentiality obligation. 4. Waived without consent client’s Chapter 119 rights. 5. Abandoned any advocacy on [Petitioner’s] behalf. 6. Abandoned all of [Petitioner’s] appellate issues. 7. Waived without consent the right to seek habeas relief. C. [Petitioner] Must Be Afforded the Same Relief Afforded Others Who Were Deprived of Adequate Collateral Representation.

CLAIM II [PETITIONER] WAS DEPRIVED OF WHEN JUDGE ROTHENBERG ENGAGED IN CONTACT WITH LOUIS CASUSO AND CONSIDERED ONLY MR. CASUSO’S SIDE WITHOUT PERMITTING [PETITIONER] TO BE HEARD. A. Notice and Opportunity To Be Heard. B. Fair and Impartial Judge.

CLAIM III THE FLORIDA CAPITAL SENTENCING PROCEDURES AS EMPLOYED IN [PETITIONER’S] CASE VIOLATED HIS SIXTH AMENDMENT RIGHT TO HAVE A JURY RETURN A VERDICT ADDRESSING HIS GUILT OF ALL THE ELEMENTS NECESSARY FOR THE CRIME OF CAPITAL FIRST DEGREE MURDER.

(App. E) This Court denied the petition on June 10, 2003.

Jimenez v. Crosby, 861 So. 2d 429 (Fla. 2003).

3 On January 20, 2004, Petitioner filed his federal habeas petition in the Southern District of Florida. (App. F) Among the claims raised in that Petition were claims that he was entitled to retroactive application of Delgado v. State, 776 So.

2d 233 (Fla. 2000), pursuant to Fiore v. White, 531 U.S. 225

(2001); that the State had violated Brady v. Maryland, 373 U.S.

83 (1963), by failing to disclose the involvement of a private investigator hired by the paramour of the victim of another murder Petitioner committed in the investigation of both cases, information about a cab driver and information showing that

Jeffery Allen was a police informant and failed polygraphs; that the State knowingly presented perjured testimony, in violation of Giglio v. United States, 405 U.S. 150 (1972), by misleading the defense regarding the circumstances of listing Jeffery Allen as a witness, misleading the defense regarding the involvement of the other victim's investigator and misleading the trial court regarding the reason for a trip to California; and that counsel was ineffective for failing to call Off. Cardona to impeach Mr. Merriweather's and the detectives' testimony, failing to attempt to impeach Ms. Baron with her desk calendar, failing to present evidence that the residents of the apartment complex knew Ms. Minas had been stabbed, failing to investigate whether Petitioner had been in Ms. Minas's apartment, failing to

4 preserve adequately restrictions on cross examination or to question the witnesses properly when they were called by the defense, failing to impeach Mr. Merriweather properly and failing to present the testimony of the cab driver.

According to Petitioner, Mr. McClain filed a motion for attorney’s fees on April 6, 2004. No such motion was ever served on the State. According to the June 7, 2005 letter from

Mr. McClain to Terry Catledge from DFS (which Petitioner has attached to his Petition as Appendix 1, Attachment E), Mr.

McClain never set this motion for hearing.1

On May 24, 2004, Petitioner filed a successive petition for writ of habeas corpus in this Court, raising 2 claims:

I. [PETITIONER’S] CONVICTION FOR BURGLARY VIOLATES HIS RIGHTS TO DUE PROCESS AND TO NOTICE AND A MEANINGFUL OPPORTUNITY TO BE HEARD, AS WELL AS THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

II. [PETITIONER’S] RIGHT TO CONFRONTATION WAS VIOLATED AT THE PENALTY PHASE OF HIS CAPITAL TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

(App. H) This Court denied the petition on March 18, 2005.

Jimenez v. Crosby, 905 So. 2d 125 (Fla. 2005).

1 During this time period, Mr. McClain was assisting Petitioner in seeking post conviction relief from the other murder conviction, which was not used as an aggravator in this case.

5 On March 24, 2005, the federal district court entered an order granting the State’s motion to dismiss the federal habeas petition as untimely without prejudice to Petitioner amending to add allegation to make the petition timely. (App. I) Among the allegations that Petitioner was allowed to include in his amendment was when the factual basis of the Brady and Giglio claims was learned or could have been learned through an exercise of due diligence. Petitioner filed his amendment on

April 25, 2005.

On April 28, 2005, Petitioner filed a successive motion for post conviction relief in the trial court. (App. J) In that motion, Petitioner asserted the Brady, Giglio and ineffectiveness claims that he had raised in his federal habeas petition filed in January 2004, and a claim of newly discovered evidence regarding the reliability of fingerprint evidence based on a withdraw order from a federal district court in

Pennsylvania. The State responded to that motion on May 18,

2005. (App. K)

On July 12, 2005, the trial court entered an order setting the Huff hearing for July 27, 2005. (App. L) At the Huff hearing, Petitioner was allowed to argue his motion fully. At the conclusion of the hearing, the trial court took the matter

(App. G) 6 under advisement.

The State subsequently received telephonic notice from the

Judicial Assistant that a hearing was scheduled for September 9,

2005. The State appeared at the hearing, which was conducted in open court with a court reporter present. When the case was called, the State informed the trial court that Petitioner’s counsel was not present. The trial court informed the State that Petitioner’s counsel would not be appearing but that it was denying the motion. The court stated that it would be faxing the order to the State after a typographical error was corrected.

When the State received its copy of the order, the State prepared and filed a notice to the federal court that the order had been entered, attaching a copy of the order, because the order was relevant to issues pending in the federal court.

(App. M) The notice was sent on September 22, 2005. On

September 23, 2005, Petitioner sent a motion to compel, claiming that the copy of the notice he received did not have the order attached. (App. N) The State responded to the motion and provided another copy of the order.2 (App. O)

On October 3, 2005, Petitioner served the State with a

2 The federal court denied Petitioner’s federal habeas petition on January 30, 2006.

7 motion to disqualify the trial court for allegedly conducting an ex parte communication with the State and a motion for rehearing. (App. P, Q) The motion to disqualify was not filed until October 5, 2005. According to Petitioner, he also filed another motion for attorney’s fees at the same time. The State was not served with this motion and was unaware it had been filed. It does not appear that Petitioner has ever set this motion for hearing.

On October 19, 2005, the State filed responses to the motions to disqualify and for rehearing. (App. R, S) The State pointed out that the motion to disqualify was untimely and meritless and the motion for rehearing was an improper attempt to reargue the merits of his motion. Since the motion for attorney’s fees was not served on the State, it did not respond to that motion. On October 31, 2005, Petitioner served a reply to the response to the motion for disqualification and a motion to get the facts. (App. T, U) By orders dated November 1,

2005, the trial court denied the motions for rehearing and disqualification. (App. V, W) By order dated November 21,

2005, the trial court denied the motion to get facts. (App. X)

On January 5, 2006, Petitioner filed the instant petition, which he did not serve on the State. On February 13, 2006, this

Court ordered the State to respond and served the State with a

8 copy of the petition. This response follows.

9 ARGUMENT

To the extent that Petitioner is seeking a writ of mandamus to compel the trial court to rule, the State takes no position but is sure that the trial court will rule on the motion once it is set for hearing and heard.3 But see Perez v. Circuit Court,

882 So. 2d 489 (Fla. 5th DCA 2004)(Mandamus inappropriate to compel ruling on motion that litigant never set for hearing).

To the extent that Petitioner is seeking a writ of probation, the State respectfully requests that the Petition be denied. Petitioner presents no argument regarding why a writ of prohibition should issue. Instead, Petitioner merely states in a footnote to the introduction to his petition that he will be challenging the denial of his motion to disqualify in the appeal from the denial of his successive motion for post conviction relief. (Petition at 1 n.1. He asserts that the grounds that will be raised are that the trial court did not rule on his motion within 30 days of the filing of the motion. In his statement of facts, Petitioner drops another footnote and claims that trial court did not rule on his motion within 30 days.

(Petition at 13 n.12)

3 To the extent that Petitioner is suggesting that this Court compel the trial court to rule in any particular manner, he is entitled to no relief. Lakeshore Townhomes Condominium Assn. v.

10 However, this Court has required that a petition for writ of prohibition affirmatively show that the lower court lacks jurisdiction and that the lower court has acted either in excess of its jurisdiction or without jurisdiction. State ex rel.

Dunscombe v. Smith, 56 So. 2d 536 (Fla. 1952); see also State ex rel. Solomon v. Sloan, 234 So. 2d 687 (Fla. 3d DCA 1970). This

Court has also required parties to argue and explain their positions in their pleadings for them to be considered sufficient. See Griffin v. State, 866 So. 2d 1, 7 (Fla. 2003);

Duest v. State, 555 So. 2d 849, 852 (Fla. 1990). Since the

Petition does not meet these requirements, it should be denied as insufficient.

Even if the petition could be considered sufficient, it would still be properly denied. In Tableau Fine Art Group v.

Jacoboni, 853 So. 2d 299 (Fla. 2003), this Court interpreted the word “immediately” in Fla. R. Jud. Admin. 2.160(f) to mean that a trial court must ruled on a motion for disqualification within

30 days. This Court did not require that the ruling be in writing and filed with the clerk within that time period. This

Court then codified the holding of Jacoboni, in Fla. R. Jud.

Admin. 2.160(j). Here, the trial court signed the order denying

Bush, 664 So. 2d 1170 (Fla. 4th DCA 1995).

11 Petitioner’s motion on November 1, 2005. This was within 30 days of October 5, 2005, when Petitioner filed his motion. The date upon which Petitioner relies is the date upon which the

November 1, 2005 order was rendered when it was filed with the clerk of the Court. As the trial court did rule on Petitioner’s motion within 30 days, Petitioner’s claim to the contrary is without merit. The petition should be denied.

Moreover, Petitioner completely ignores that Hurricane Wilma struck Miami on October 24, 2005. As a result, this Court entered administrative order AOSC05-74, which tolled “all time limits authorized by rule or statute, including the speedy trial procedure, in criminal and juvenile proceedings” “from 5:00 p.m. on Friday, October 21, through 8:00 a.m. on Monday, October 31,

2005” in the Eleventh Judicial Circuit. The time limitation imposed in Jacoboni, which was based on an interpretation of

Fla. R. Jud. Admin. 2.160(f) and is now codified in Fla. R. Jud.

Admin. 2.160(j), is a time limit authorized by rule. Given this

10 day tolling period, the order would still have been timely even if one used the date on which the order was rendered instead of the date on which the trial court signed the order and ruled on the motion. The petition is without merit and should be denied.

12 CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus should be denied.

Respectfully submitted,

CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida

______SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by U.S. mail to Martin McClain, 141 N.E. 30th Street, Wilton Manors, Florida 33334, and William J. Thurber, Assistant General Counsel, 200 East Gaines Street, Tallahassee, Florida 32399, this 28th day of February, 2006.

______SANDRA S. JAGGARD Assistant Attorney General

CERTIFICATE OF COMPLIANCE

I hereby certify that this response is typed in Courier New 12-point font.

______SANDRA S. JAGGARD Assistant Attorney General

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