IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-1416

DCA NO. 3D04-3277

AUDRIA DIANE GENSLER, Petitioner,

vs.

THE STATE OF FLORIDA, Respondent.

AMENDED BRIEF OF RESPONDENT ON JURISDICTION

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

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

JENNIFER FALCONE MOORE Assistant Attorney General Florida Bar No. 0624284 Office of the Attorney General Department of Legal Affairs 444 Brickell Avenue, Suite 650 Miami, Florida 33131 (305)377-5441 TABLE OF CONTENTS

TABLE OF CITATIONS ...... ii

STATEMENT OF THE CASE AND FACTS ...... 1

QUESTION PRESENTED ...... 5

SUMMARY OF THE ARGUMENT ...... 5

ARGUMENT ...... 5

THE PETITIONER’S APPLICATION FOR DISCRETIONARY REVIEW MUST BE DENIED BECAUSE THE THIRD DISTRICT COURT OF APPEAL’S HOLDING IS NOT IN EXPRESS AND DIRECT CONFLICT, ON THE SAME POINT OF LAW, WITH ANY CASE CITED BY PETITIONER.

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11

CERTIFICATE OF COMPLIANCE ...... 11

i TABLE OF CITATIONS

CASES PAGES

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) ...... 6, 8

Lemming v. State, 159 So. 2d 486 (Fla. 2d DCA 1964)...... 6, 7

McCreary v. State, 371 So. 2d 1024 (Fla. 1979)...... 7

Reaves v. State, 485 So. 2d 829 (Fla. 1986) ...... 4

State v. Gensler, 929 So. 2d 27 (Fla. 3d DCA 2006)...... 1-5, 9

Thompson v. State, 146 So. 201 (Fla. 1933) ...... 6, 7

W.E.B. v. State, 553 So. 2d 323 (Fla. 1st DCA 1989) ...... 6, 7, 8, 9

STATUTES PAGES

Fla. R. App. P. 9.030(a)(2)(A)(iv) ...... 6

ii STATEMENT OF THE CASE AND FACTS

The Respondent rejects the entirety of Petitioner’s Statement of the Case and

Facts because those facts do not appear within the four corners of the Third

District’s majority opinion. Instead, Petitioner has set forth facts from the Record on Appeal and from Judge Schwartz’s dissenting opinion. As this Court has previously made clear, under the jurisdiction granted by article V, section 3(b)(3) of the Florida Constitution:

Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. Neither a dissenting opinion nor the record itself can be used to establish jurisdiction. See Jenkins v. State, 385 So.2d 1356 (Fla. 1980).

Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)(emphasis added).

The facts actually contained in the Third District’s opinion, State v. Gensler,

929 So. 2d 27 (Fla. 3rd DCA 2006), were, verbatim:

This is an appeal from an order granting the defendant's Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss the State's prosecution of a vehicular charge brought pursuant to section 782.071, Florida Statutes (1999). . . .

The accident occurred on May 4, 2000. The relevant facts, as alleged in the motion to dismiss, show that at approximately 3:15 a.m., on a dry, clear night, Police Officer Gensler, the defendant, was traveling northbound on South Dixie Highway in an area with no street lights near Southwest 220th Street, where the posted was forty- five miles per hour. Pedestrians crossed South Dixie Highway without using the designated crosswalk to go to and from the food market, which was located one block off the Highway. Although many businesses were closed that evening, the food market was open.

1 Officer Gensler, dispatched as a back-up officer to a call, proceeded through the intersection where the light was flashing a yellow signal. According to an accident reconstruction expert, her speed was approximately ninety miles per hour. She struck and killed the victim, Robin Ivy, who was approximately four to five feet into the right traffic lane and just