IN THE SUPREME COURT OF FLORIDA 2Cl3 MAY 23 PM 2 00 CLEhá,5LP ui i DANIEL A. ROCHA, Petitioner, ay vs. Case No.: L.T. Case No.: 2D13-1529 STATE OF FLORIDA, Respondent. /
PETITIONER'S JURISDICTIONAL BRIEF
On review ofthe District Court ofAppeal, Second District, State ofFlorida.
Daniel Rocha. DC. # S05746 South Bay Correctional Facility P.O. Box 7171 South Bay, Florida 33493-7171
1 TABLE OF CONTENTS
Patre(s): TABLE OF CONTENTS ...... ii TABLE OF CITATIONS ...... iii STATEMENT OF THE CASE AND FACTS...... 1 SUMMARY OF THE ARGUMENT...... 6 JURISDICTIONAL STATEMENT...... 7 ARGUMENT ...... 8
THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN: State v. Akins, 69 So.3d 261 (Fla. 2011); State v. Gray, 654 So.2d 552 (Fla. 1995); Sigler v. State, 967 So.2d 835 (Fla. 2007); State v. Gray, 435 So.2d 816 (Fla. 1983); Elliott el al v. State, 82 So. 139, 77 Fla. 611 (Fla. 1919); State v. Powell, 674 So.2d 731 (Fla. 1996); Fla. Const. Art. 1§ 22; and U.S. Const. Amend. V and VI.
CONCLUSION ...... 19 OATH...... 20 CERTIFICATE OF SERVICE...... 20 CERTIFICATE OF COMPLIANCE ...... 21
11 TABLE OF CITATIONS
Cases: Page(s):
Apprendi v. New Jersey, 120 S.Ct. 2348 (2000)...... 14 Brown v. State, 959 So.2d 218 (Fla. 2007)...... 18 Elliott el al v. State, 82 So. 139, 77 Fla. 611 (Fla. 1919)...... ii, 7, 15
Hieke v. State, 605 So.2d 983 (Fla. 4'" DCA 1992) 11 13 Jordan v. State. 416 So.2d 1161 (Fla. 2nd DCA 1982 ...... 13 Lake v. State. 380 So.2d 1120 (Fla. 2nd DCA 1980), cert. denied, 388 So.2d 1115 (Fla. 1980)...... 12 Pinkerton v. U.S., 66 S.Ct. 1180 (1946)...... 16 Ray v. State, 68 So.3d 346 (Fla. 1®' DCA 2011) 2 Ricks v. Loyola, 822 So.2d 502 (Fla. 2002)...... 7 Rocha v. State, 755 So.2d 123 (Fla. 2nd DCA 2000)...... 2, 11 Sigler v. State,___ 967 So.2d 835 (Fla. 2007) ...... i1, 7, 12 State_____v. Akins, 69 So.3d 261 (Fla. 2011) ...... ii, 6, 7, 19 State v. Ashley,___ 701 So.2d 338, 342 (Fla. 1977)...... 1 3 State_____v. Gray, 435 So.2d 816 (Fla. 1983) ...... ii, 7, 12 ______State v. Gray. 654 So.2d 552 (Fla. 1995) ...... ii, 7, 11 ______._State v. Powell, 674 So.2d 731 (Fla. 1996) ...... i1, 7, 18
111 State v. Yaros, 728 So.2d 1201 (Fla. 2"4 DCA 1999)...... 14 Stirone v. U.S., 80 S.Ct. 220 (1960)...... 13
Statutes:
Fla. Stat. 777.04...... 12 Fla. Stat. 910.005(1)(c) 1 8 14 Fla. Stat. 910.12...... 14, 17
Rules:
Fla.R.Crim.P. 3.800(a)...... 4, 5 Fla.R.Crim.P. 3.850 Fla.R.Crim.P. 3.620 ...... 2, 6, 10, 12 Fla.R.Crim.P. 3.991(a)...... 2
Fla.R.Apo.P. 9 030(a)(2)(a)(iv)
Constitutional Provisions:
Art. V § 3(b)(3). Fla. Const...... 7 Fla. Const. Art. 1§ 22 ...... ii, 7, 17 U.S. Const. Amend. V and VI...... ii, 7, 17
1V STATEMENT OF THE CASE AND FACTS
1. Sarasota police investigated the November 7, 1997, slaying of Sheila
Bellush. Within days, the investigation led them to the suspected murderer, Jose
Luis Del Toro.
2. Law enforcement tracked Del Toro from Sarasota, Florida; to Texas, though he fled to Mexico. Further investigation in Texas led authorities to Del Toro's cousin, Samuel Gonzales. Gonzales implicated the Petitioner as part of a Texas conspiracy to commit aggravated battery on Sheila Bellush.
3. The Petitioner was arrested in San Antonio, Texas on November 17, 1997.
The arrest and extradition to Florida was for the conspiracy to commit first degree murder pursuant to Fla. Stat. 910.005(1)(c)"Conduct outside the state."
4. After being extradited to Florida the Petitioner was indicted on Count 1:
First degree murder (principal); and Count 2: First degree murder (conspiracy).
The indictment alleged the commission of the Petitioner's acts within Sarasota,
Florida, "conduct inside the state."
5. The Petitioner's jury trail from January 11 through January 15, 1999 in
Sarasota County, Florida was heard before the Honorable Nancy K. Donnellan.
6. The State prosecuted the Petitioner using the alternate theories on Count 1, principal to premeditated murder and principal to burglary with murder. On Count
2, the state's theory was conspiracy to commit premeditated murder.
1 7. The Petitioner was found guilty by jury of Count 1: First degree murder
(principal); and Count 2: Conspiracy to commit third degree murder.
8. The trial court used Fla.R.Crim.P. 3.620, to amend Count 2 to conspiracy to commit aggravated battery. The Petitioner was subsequently sentenced to: Life on
Count 1; and 13.3-years on Count 2 to run consecutive to the life sentence.
9. Count 2 was predicated upon the 1995 sentencing guidelines pursuant to
Fla.R.Crim.P. 3.991(a), which provided that his minimum sentence for Count 2 was 8-years and his maximum sentence was 13.3-years. The sentencing guidelines scoresheet erroneously included 120 victim injury points which allowed the sentence to exceed the statutory maximum (5-years), for a third degree felony. See
Ray v. State, 68 So.3d 346 (Fla. 1®' DCA 2011).
10. The Public Defender's office appealed the Petitioner's conviction raising the following issue:
THE TRIAL COURT LACKED AUTHORITY TO AMEND THE JURY'S DEFECTIVE VERDICT AND IMPOSE JUDGMENT AND SENTENCE ON COUNT 2, FOR CONSPIRACY TO COMMIT AGGRAVATED BATTERY.
11. The direct appeal was affirmed per curiam without written opinion, see
Rocha v. State, 755 So.2d 123 (Fla. 2nd DCA 2000). This despite that fact that the amendment of Count 2 was unlawful for the following reasons:
1. NO ONE MAY BE CONVICTED OF A NONEXISTENT CRIME. 2. NO ONE MAY BE CONVICTED OF A CRIME NOT CHARGED.
2 3. NONEXISTENT CRIMES HAVE NO LESSER-INCLUDED OFFENSES. 4. THE TRIAL COURT CONSTRUCTIVELY AMENDED THE INDICTMENT. 5. THE JURY DID NOT FIND EVERY ELEMENT OF CONSPIRACY TO COMMIT AGGRAVATED BATTERY, BEYOND A REASONABLE DOUBT. 6. THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION. 7. THE PETITIONER WAS ADJUDICATED GUILTY DESPITE FATAL VARIANCE. 8. THE PETITIONER HAS BEEN DENIED HIS RIGHT TO TRIAL BY JURY. 9. COUNT 1 AND COUNT 2 ARE "TRUE" INCONSISTENT VERDICTS.
12. During the entire appellate process, the Petitioner had been extradited into federal custody in Texas. While in Texas, the Petitioner was never given any information whatsoever concerning the results of his direct appeal.
13. On November 18, 2008, the Petitioner received his direct appeal briefs and mandate. The Petitioner's direct appeal became final 8-years prior to the Public
Defenders Office notifying him.
14. On December 9, 2008, the Petitioner filed a petition for writ of habeas corpus requesting a belated 3.850 appeal. On January 13, 2009, the Second
District Court converted the petition into a petition for ineffective assistance of appellate counsel, and denied it. The Petitioner filed a motion for rehearing on
January 16, 2009, which was also denied on March 12, 2009.
3 15. On October 20, 2011, by and through Counsel, Deana Marshall, Esq. Fla.
Bar No.: 0124117, a 3.800(a) motion to correct the illegal sentence of 13.3-years
on Count 2 was filed. Mrs. Marshall also obtained an affidavit from Del Toro. Del
Toro had fled to Mexico and was unavailable to give testimony at the Petitioner's trial.
16. On May 2, 2012, the Petitioner filed a petition for writ ofhabeas corpus with the 12th judiCial CirCuit COurt in and for Sarasota County raising an actual innocence claim with Del Toro's affidavit.
17. On May 4, 2012, the Petitioner filed a federal habeas petition raising 26 claims of ineffective assistance of counsel pursuant to Martinez v. Ryan, 132 S.Ct.
1209 (2012), case no.: 8:12-CV-01067-T-33-MAP. Due to no fault of his own,
Petitioner has never had an opportunity to raise claims under Fla.R.Crim.P. 3.850.
18. On June 14, 2012, Sarasota County summarily denied the Petitioner's actual innocence petition. The appeal to the Second District case no.: 2D12-3579 was filed July 5, 2012, with the following issue:
THE APPELLANT HAS BEEN DENIED THE DUE PROCESS RIGHT TO: (1) EFFECTIVE COUNSEL; (2) TO BE FAIRLY APPRISED OF HIS CHARGES AGAINST HIM; (3) A TRIAL BY JURY; (4) A MEANINGFUL APPELLATE REVIEW; AND (5) ACCESS TO THE COURTS TO ADDRESS THE MANIFEST INJUSTICE OF BEING ACTUALLY INNOCENT OF ANY CRIMES IN THE STATE OF FLORIDA, AS PROVIDED BY THE FLORIDA AND U.S. CONSTITUTIONS.
4 19. On August 22, 2012, the 3.800(a) motion was denied based on the erroneous premise that the scoresheet lawfully allowed for the sentence to exceed the statutory maximum of 5-years.
20. On November 26, 2012 a stay order was issued in case no.: 8:12-CV-01067-
T33-MAP pending the ruling in the state's Second District Court of Appeal, case no.: 2D12-3579; and case no.: 2D12-4695.
21. The Petitioner raised 9-points within his initial brief, case no.: 2D12-4695, as to why Count 2 was unlawfully amended creating a manifest injustice. It had come to the Petitioner's attention that a manifest injustice attacking a conviction is not cognizable on a 3.800(a) motion/appeal.
22. On April 4, 2013, the Petitioner submitted an all writs petition to properly raise the manifest injustice. See case no.: 2D13-1529. On May 2, 2013, The
Second District Court denied the petition.
23. This appeal follows.
5 SUMMARY OF THE ARGUMENT
The Petitioner was found guilty by jury trial in Sarasota County, Florida on
Count 1: First degree murder (principal); and Count 2: Conspiracy to commit third degree murder. The trial court used Fla.R.Crim.P. 3.620, to amend Count 2 to conspiracy to commit aggravated battery.
The amendment of Count 2 was unlawful for the following reasons: 1. NO ONE MAY BE CONVICTED OF A NONEXISTENT CRIME. 2. NO ONE MAY BE CONVICTED OF A CRIME NOT CHARGED. 3. NONEXISTENT CRIMES HAVE NO LESSER-INCLUDED OFFENSES. 4. THE TRIAL COURT CONSTRUCTIVELY AMENDED THE INDICTMENT. 5. THE JURY DID NOT FIND EVERY ELEMENT OF CONSPIRACY TO COMMIT AGGRAVATED BATTERY, BEYOND A REASONABLE DOUBT. 6. THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION. 7. THE PETITIONER WAS ADJUDICATED GUILTY DESPITE FATAL VARIANCE. 8. THE PETITIONER HAS BEEN DENIED HIS RIGHT TO TRIAL BY JURY. 9. COUNT 1 AND COUNT 2 ARE "TRUE" INCONSISTENT VERDICTS.
The Second District Court misapplied the law when it denied the petition seeking all writs jurisdiction to correct the erroneous ruling affirming the unlawful amendment. Under Florida Law, appellate courts have the power to reconsider and correct erroneous rulings made in earlier appeals in exceptional circumstances and where reliance on the previous decision would result in a manifest injustice. See:
State v. Akins, 69 So.3d 261 (Fla. 2011). The Petitioner has not received equal treatment of the law, by the Second District Court of Appeal.
6 JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. Art. V, § 3(b)(3); Fla. Const. (1980); and Fla.R.App.P. 9.030(a)(2)(a)(iv).
The Second District reached a contrary conclusion that directly conflicts with this Court's decisions in:
State v. Akins, 69 So.3d 261 (Fla. 2011); State v. Gray, 654 So.2d 552 (Fla. 1995); Sigler v. State, 967 So.2d 835 (Fla. 2007); State v. Gray, 435 So.2d 816 (Fla. 1983); Elliott el al v. State, 82 So. 139, 77 Fla. 611 (Fla. 1919); State v. Powell, 674 So.2d 731 (Fla. 1996); Fla. Const. Art. 1§ 22; and U.S. Const. Amend. V and VI.
The Petitioner is seeking review from a denial of his Petition raising a manifest injustice. Under Florida Law, appellate courts have the power to reconsider and correct erroneous rulings made in earlier appeals in exceptional circumstances and where reliance on the previous decision would result in a manifest injustice. See: Akins. The denial of his obvious manifest injustice is a misapplication of Florida Law. The Supreme Court may also exercise conflict jurisdiction when a district court of appeal misapplies the law. See: Ricks v.
Loyola, 822 So.2d 502 (Fla. 2002).
7 ARGUMENT
Background
The Petitioner was arrested in San Antonio, Texas and extradited to Florida for an alleged conspiracy to commit first degree murder commissioned in Texas pursuant to Fla. Stat. 910.005(1)(c) "conduct outside the state." (See Exhibit "A")
The Petitioner was indicted, after extradition, on Count 1: First degree murder
(principal); and Count 2: First degree murder (conspiracy). (See Exhibit "B") The indictment alleged the commission and consummation of the Petitioner's acts within Sarasota County, Florida, "Conduct inside the State."
The Petitioner was prosecuted on Count 1 First degree murder (principal) using the alternate theories of principal to premeditated murder; and principal to burglary with murder. On Count 2, the state used that theory of conspiracy to commit premeditated murder. It was the meeting at the Pan American Clubhouse in San Antonio, Texas on November 4, 1997 that the agreement in question took place.
State's Opening Statement:
4 - That conversation, ladies and gentlemen, in a nut 5 - shell was Daniel Rocha, the defendant, hiring Jose Luis 6 - Del Toro, Jr. to commit the crime of murder. (V3, T24) emphasis added.
State's Closing Argument:
8 8 - The driving of 1200 miles with a gun, with a 9 - mission, a mission that had been discussed at the Pan 10 - American Club on November 4*, premeditation. (V6, T487) emphasis added.
State's Alternate Theory of burglary with murder: 6 - Del Toro, after being paid money by that man 7 - and being promised more money after the deed was 8 - accomplished, committed these heinous acts, 9 - burglarized that home by entering it to commit the 10 - crime of murder inside. (V6, T493) emphasis added
The Petitioner's sole defense was that he lacked the requisite intent,
(premeditation), therefore cannot beheld responsible for Del Toro's premeditated murder:
13- And, ladies and gentlemen, the evidence is clear 14- that there was not a conscious intent that the act be 15- committed, the act of homicide, because that's what 16- he's charged with being a principal to, murder in the 17- first degree. (V6, T458) emphasis added.
The state provided three witnesses to testify as to the intent of the Texas conspiracy. All three witnesses testified that the Petitioner lacked the intent to kill.
The first was Gonzales, the state's key witness:
22- Q. And then on November the 7* you have contact with 23- Mr. Del Toro, correct?
9 24- A. Correct. 25- Q. And he tells you that it's done. And in fact, you (V4, T237) 1- have to ask him a question, what's done?; correct? 2- A. Correct. 3- Q. Because it was never anyone's agreement or never 4- anyone's intention that this lady was to die; correct? 5- A. correct. (V4, T238) emphasis added.
The second witness was Ray Cevallos:
24- Q. there was never any mention by Danny ofkilling. 25- her, or any mention by Danny that there had been any (V5, T277) 1- Encouragement to kill her? 2- A. No, not-never, never. 3- Q. In fact, isn't it true that Danny told you that 4- she was not supposed to be killed? 5- A. He definitely told me that, y_es. (V5, T278) emphasis added.
The last state's witness to testify was Richard Speights Jr.:
23- Q. Okay in your conversation with Danny when he 24- told you he had some involvement in this, isn't it true that 25- he told you that Sheila Bellush was not supposed to be (V5, T301) 1- killed? 2- A. .Ygs, he did indicate that to me. (V5, T302) emphasis added.
The Petitioner was found guilty by jury trial in Sarasota County, Florida on
Count 1: First degree murder (principal); and Count 2: Conspiracy to commit third degree murder. The trial court used Fla.R.Crim.P. 3.620, to amend Count 2 to
10 conspiracy to commit aggravated battery. (See Exhibit "C") The Petitioner was
subsequently sentenced to life on Count 1; and 13.3-years on Count 2 to run
consecutive to the life sentence.
On direct appeal, the only issue raised was whether the trial court had
authority to amend Count 2 to conspiracy to commit aggravated battery, Case No.:
2D99-924. (See Exhibit "D") The direct appeal was affirmed per curiam without written opinion, see Rocha v. State, 755 So.2d 123 (Fla. 2"d DCA 2000).
The Petitioner asserts nine specific points of law that were violated in the unlawful amendment of count 2, resulting in a manifested injustice. The Petitioner will address each specific point individually:
POINT 1
NO ONE MAY BE CONVICTED OF A NONEXISTENT CRIME
Attempted third degree murder, and the solicitation of third degree murder have been determined to be nonexistent crimes, see State v. Gray, 654 So.2d 552
(Fla. 1995); and Hieke v. State, 605 So.2d 983 (Fla. 4th DCA 1992). The legal precedent for determining that attempt and solicitation of third degree murder are nonexistent crimes is that, no one can intend to do an unintentional act.
The crime of conspiracy is the intent and agreement to commit its objective.
Third degree murder is and unintentional murder committed accidentally.
11 Combining the two, conspiracy to commit third degree murder, creates the intent to commit an unintentional murder, also a nonexistent crime.
All three crimes within Fla. Stat. 777.04, attempt, solicitation, and conspiracy are specific intent crimes. Joining the general intent crime of third degree murder to any one ofthem produces an oxymoron.
POINT 2
NO ONE MAY BE CONVICTED OF A CRIME NOT CHARGED
The Petitioner was convicted of a crime not charged by the grand jury, conspiracy to commit third degree murder. The trial court used Fla.R.Crim.P.
3.620, to amend the verdict to another crime not charged by the grand jury, conspiracy to commit aggravated battery. Fla.R.Crim.P. 3.620 does not allow the court to enter an adjudication where the offense is not supported by the allegations in the charging document, see Sigler v. State, 967 So.2d 835 (Fla. 2007). A conviction of a crime not charged is a denial of due process, see State v. Gray, 435
So.2d 816 (Fla. 1983).
POINT 3
NONEXISTENT CRIMES HAVE NO LESSER-INCLUDED OFFENSES
The State, in their memorandum of law, offered Lake v. State, 380 So.2d
1120 (Fla. 2"d DCA 1980), cert. denied, 388 So.2d 1115 (Fla. 1980), as authorization for the trial court to use Rule 3.620, "when evidence sustain only
12 conviction of lesser offense", to amend Count 2. The state cited State v. Ashley,
701 So.2d 338, 342 (Fla. 1977); and Hieke v. State, 605 So.2d 983 (Fla. 4th DCA
1992), as to the possibility of conspiracy to commit third degree murder being a
nonexistent crime. This was erroneous because nonexistent crimes have no lesser-
included offenses. The proper remedy was not to use Rule 3.620, but to have had
the proceedings come to an end upon the jury verdict and the "presumption of
innocence" on Count 2 maintained, see Jordan v. State, 416 So.2d 1161 (Fla. 2nd
DCA 1982). The allegations in the indictment do not support a re-trial on any other
offense.
POINT 4
THE TRIAL COURT CONSTRUCTIVELY AMENDED THE INDICTMENT
The grand jury never returned the crime of conspiracy to commit aggravated
battery nor its elements. The trial court's amendment of Count 2 constitutes an
unlawful constructive amendment of the indictment, see Stirone v. U.S., 80 S.Ct.
220 (1960).
POINT 5
THE JURY DID NOT FIND EVERY ELEMENT OF CONSPIRACY TO COMMIT AGGRAVATED BATTERY, BEYOND A REASONABLE DOUBT
No jury instructions were given for the conspiracy to commit third degree murder. Therefore, the jury could not have found every element beyond a
13 reasonable doubt of its "lesser-included offense", conspiracy to commit aggravated
battery, see Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).
POINT 6
THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION
The trial court's amendment of Count 2 was also unlawful because neither
the conspiracy, nor the aggravated battery took place in Florida. The crime that
took place in Florida was Del Toro's premeditated murder. The trial court has
subject matter jurisdiction over the murder pursuant to Fla. Stat. 910.12 (principal);
and 910.005(1)(c) (conspiracy). When the Petitioner was acquitted of Del Toro's
premeditated murder (conspiracy) on Count 2, the court then lacked the subject
matter jurisdiction to amend the jury's verdict to a crime that never took place in
Florida, conspiracy to commit aggravated battery, see State v. Yaros, 728 So.2d
1201 (Fla. 2nd DCA 1999).
POINT 7
THE PETITIONER WAS ADJUDICATED GUILTY DESPITE FATAL VARIANCE
The Petitioner was extradited to Florida for an alleged conspiracy to commit murder commissioned in San Antonio, Texas pursuant to Fla. Stat. 910.005 (1)
(c)," conduct outside the State". After extradition, the Petitioner was indicted for the same conspiracy to commit murder, commissioned in Sarasota County, Florida,
14 "conduct inside the state." The state used testimonial evidence that the Petitioner
conspired to commit aggravated battery not murder in Texas, and did not
conspire in Florida at all. The Florida Supreme Court has made it clear that acts
performed outside the State, indicted as being performed inside the state, renders a
fatal variance between the proof at trial and the allegations in the indictment, see
Elliott el al v. State, 82 So. 139, 77 Fla. 611 (Fla. 1919).
Although Elliott was decided in 1919, it is still the controlling case for the
requirement of an indictment for an outside State offender. Elliot mandates that
due process requires the State to have laid the proper venue, San Antonio, Texas,
in the Petitioner's indictment. The Petitioner has been denied his due process right
to be fairly apprised ofthe charges against him.
The Petitioner has not received equal treatment of the law under Elliott,
when he was adjudicated guilty of Count 2 despite the fatal variance between the
proof at trial that he conspired to commit aggravated battery in Texas; and the
allegations in the indictment that he conspired to commit murder in Florida. The trial court should have recognized the fatal variance, then ruled that the Petitioner was factual innocence of both counts in the indictment. The Petitioner cannot be guilty as charged, in either count, when he was in Texas and not in Florida as the indictment charged.
15 POINT 8
THE PETITIONER HAS BEEN DENIED HIS RIGHT TO TRIAL BY JURY
The state used a form of the "Pinkerton Liability" alternate theory, Pinkerton v. U.S., 66 S.Ct. 1180 (1946), to obtain the conviction on Count 1, first degree murder (principal). This theory allows for a conviction on a principal charge in furtherance of a conspiracy conviction. As stated by the state in their memorandum of law, addressing the Petitioner's lack of conscious intent to commit premeditated murder:
"Sufficient evidence to convict defendant as principal to first degree premeditated murder, requires proof that Del Toro's murder of Sheila Bellush was premeditated and that the murder was a reasonable foreseeable consequence of the common design or unlawful act (Aggravated Battery) contemplated by the defendant. As discussed earlier, it was a question of fact for the jury as to whether the premeditated murder was a reasonable foreseeable consequence ofthe agreement between the conspirators." (V3, T413) (emphasis added).
The "Pinkerton Liability" requires a finding by a jury of a viable conspiracy conviction. Once the conspiracy conviction is obtained, the state need not prove the requisite intent, (premeditated murder), to obtain a principal conviction.
However, the jury never found the Petitioner guilty of a viable conspiracy. The trial court acting as the fact finder amended the verdict to the conspiracy to commit aggravated battery. The state used the unlawful conspiracy conviction and the
16 elements of aggravated battery as, "sufficient evidence to convict defendant as principal to first degree premeditated murder." Furthermore, Fla. Stat. 910.12 does not confer jurisdiction for a prosecution of any form of the "Pinkerton
Liability" theory.
The Petitioner has been denied his constitutional right to a fair trial by jury, when the trial court used the unlawful amendment of Count 2 to support the conviction of Count 1, see Fla. Const. Art. 1§ 22; and U.S. Const. Amend. V and
VI.
POINT 9
COUNT 1 AND COUNT 2 ARE "TRUE" INCONSISTENT VERDICTS
If this Court determines that either the conspiracy to commit third degree is a nonexistent crime, or that Count 2 was unlawfully amended; then by law, the
Petitioner should be acquitted of Count 2 and maintain his presumption of innocence to each element of the charge. This then becomes a pure question of law on "true" inconsistent verdicts:
Can the conspiracy charge in Count 2, satisfy the states burden to prove the principal charge in Count 1; when the Petitioner's presumption of innocence must be maintained on the conspiracy charge?
The State's "Pinkerton Liability" alternate theory makes Count 1 and Count
2 interlocking charges. An acquittal on Count 2 (conspiracy) would negate the
17 essential elements necessary for a conviction on Count 1 (principal), see State v.
Powell, 674 So.2d 731 (Fla. 1996); and Brown v. State, 959 So.2d 218 (Fla. 2007).
The Petitioner cannot be guilty of a principal charge in furtherance of an acquitted conspiracy charge. Without Count 2, the Court lacks a finding by a jury of the requisite intent (Aggravated Battery) to be guilty of Count 1 first degree murder
(principal).
18 CONCLUSION
WHEREFORE, the Petitioner, Daniel A. Rocha, moves this Honorable
Court to accept jurisdiction and exercise its power to correct the erroneous ruling of the Second District Court of Appeal. The manifest injustice will continue to occur if this Court does not correct it. See _State v. Akins, 69 So.3d 261 (Fla.
2011). Long s+anding law as it refers to manifest injustice requires the Petitioner to be released at once.
If the Petitioner mistakenly filed the wrong motion to address the Second
District Court's refusal to correct the conviction of a nonexistent crime; the unlawful amendment; and the lack of subject matter jurisdiction issue(s), then the
Petitioner further requests this Court to consider converting this discretionary review appeal to a certiorari petition.
Respectfully s bmitted,
Daniel Rocha. DC. # S05746 South Bay Correctional Facility P.O. Box 7171 South Bay, Florida 33493-7171
19 OATH
I HEREBY DECLARE, under penalties of perjury that the foregoing facts are true and correct.
Daniel Rocha. DC. # S05746
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing petition has been furnished via institutional mail handed to prison officials to: The
Office of the Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050, on this 2 l , day of f4 c»/ , 2013
Respectfully submitted,
Daniel Rocha. DC. # S05746 South Bay Correctional Facility P.O. Box 7171 South Bay, Florida 33493-7171
20 CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this PETITIONER'S JURISDICTIONAL
BRIEF complies with the font requirements of Rule 9.210(a)(2) of the Florida
Rules of Appellate Procedure, and is typed using Times New Roman, 14-point font.
Daniel Rocha. DC. # S05746 South Bay Correctional Facility P.O. Box 7171 South Bay, Florida 33493-7171 0 00 acbarn bhcle r
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