IN THE SUPREME COURT OF FLORIDA

GREGORY TYRONE ANDERSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Case No. SC14-737

JURISDICTIONAL BRIEF OF RESPONDENT

PAMELA JO BONDI

ATTORNEY GENERAL

TRISHA MEGGS PATE

TALLAHASSEE BUREAU CHIEF,

CRIMINAL APPEALS

FLORIDA BAR NO. 0045489

JAY KUBICA

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0026341

OFFICE OF THE ATTORNEY GENERAL

PL-01, THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

(850) 922-6674 (FAX)

COUNSEL FOR RESPONDENT

Filing # 14389847 Electronically Filed 06/03/2014 05:21:43 PM

RECEIVED, 6/3/2014 17:23:40, John A. Tomasino, Clerk, Supreme Court

ii

TABLE OF CONTENTS

PAGE#

TABLE OF CONTENTS ................................................... ii

TABLE OF CITATIONS ................................................. iii

PRELIMINARY STATEMENT ................................................ 1

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

SUMMARY OF ARGUMENT .................................................. 2

ARGUMENT ............................................................. 3

ISSUE: WHETHER THE DISTRICT COURT OF APPEAL’S DECISION IN THE INSTANT

CASE IS IN DIRECT AND EXPRESS CONFLICT WITH NEINER V. STATE, 875 SO.2D

699 (FLA. 4TH DCA 2004) OR RIVERA V. STATE, 561 SO.2D 536 (FLA. 1990)?

(RESTATED) ........................................................... 3

CONCLUSION ........................................................... 8

CERTIFICATE OF SERVICE ............................................... 9

CERTIFICATE OF COMPLIANCE ............................................ 9

APPENDIX

iii

TABLE OF CITATIONS

CASES PAGE#

Anderson v. State,

133 So.3d 646 (Fla. 1st DCA 2014) ............................... 6, 7, 10

Ansin v. Thurston,

101 So. 2d 808 (Fla. 1958) ............................................. 4

Dept. of Health and Rehabilitative Services v. Nat'l Adoption Counseling

Service, Inc.,

498 So. 2d 888 (Fla. 1986) ............................................. 3

Dodi Publishing Co. v. Editorial America, S.A.,

385 So. 2d 1369 (Fla. 1980) ............................................ 4

Griffin v. State,

827 So.2d 1098 (Fla. 1st DCA 2002) ..................................... 6

Jenkins v. State,

385 So. 2d 1356 (Fla. 1980) ............................................ 3

Jollie v. State,

405 So. 2d 418 (Fla. 1981) ............................................. 4

Neiner v. State,

875 So.2d 699 (Fla. 4th DCA 2004) ............................ ii, 2, 3, 5

Persaud v. State,

838 So. 2d at 533 ...................................................... 4

Reaves v. State,

485 So. 2d 829 (Fla. 1986) ............................................. 3

iv

Rivera v. State,

561 So.2d 536 (Fla. 1990) ................................. ii, 2, 3, 5, 6

Stallworth v. Moore,

827 So. 2d 974 (Fla. 2002) ............................................. 3

STATUTES AND CONSTITUTIONS

§90.401, Fla. Stat ....................................................... 6

§90.402, Fla. Stat ....................................................... 6

Article V, § 3(b)(3), Fla. Const ......................................... 3

RULES

Fla. R. App. P. 9.030(a)(2)(A)(iv) ....................................... 3

PRELIMINARY STATEMENT

Respondent, the State of Florida, the Appellee in the District Court of

Appeal (DCA) and the prosecuting authority in the trial court, will be

referenced in this brief as Respondent, the prosecution, or the State.

Petitioner, Gregory Anderson, the Appellant in the DCA and the defendant in

the trial court, will be referenced in this brief as Petitioner or by

proper initials.

"PJB" will designate Petitioner's Jurisdictional Brief. That symbol is

followed by the appropriate page number.

A bold typeface will be used to add emphasis. Italics appeared in

original quotations, unless otherwise indicated.

STATEMENT OF THE CASE AND FACTS

The pertinent history and facts for jurisdictional purposes are only

those contained within the lower court’s opinion, and consequently are set

out in such opinion, attached in the State’s Appendix.

2

SUMMARY OF ARGUMENT

This Court should determine it does not have jurisdiction because the

decision of the court in the instant case does not expressly and directly

conflict with the decisions of either Neiner v. State, 875 So.2d 699 (Fla.

4th DCA 2004), or Rivera v. State, 561 So.2d 536 (Fla. 1990). Both Neiner

and Rivera hold that relevant evidence is admissible for the defense, which

is wholly consistent with the holding in the instant case that collateral,

irrelevant evidence is inadmissible.

3

ARGUMENT

ISSUE: WHETHER THE DISTRICT COURT OF APPEAL’S

DECISION IN THE INSTANT CASE IS IN DIRECT AND

EXPRESS CONFLICT WITH NEINER V. STATE, 875 SO.2D 699

(FLA. 4TH DCA 2004) OR RIVERA V. STATE, 561 SO.2D

536 (FLA. 1990)? (RESTATED)

1. Jurisdictional Criteria

Petitioner contends that this Court has jurisdiction pursuant to Fla.

R. App. P. 9.030(a)(2)(A)(iv), which parallels Article V, § 3(b)(3), Fla.

Const. The constitution provides:

The supreme court ... [m]ay review any decision of a district court

of appeal ... that expressly and directly conflicts with a decision

of another district court of appeal or of the supreme court on the

same question of law.

The conflict between decisions "must be express and direct" and "must

appear within the four corners of the majority decision." Reaves v. State,

485 So. 2d 829, 830 (Fla. 1986). Accord Dept. of Health and Rehabilitative

Services v. Nat'l Adoption Counseling Service, Inc., 498 So. 2d 888, 889

(Fla. 1986) (rejected "inherent" or "implied" conflict; dismissed

petition). Neither the record, nor a concurring opinion, nor a dissenting

opinion can be used to establish jurisdiction. Reaves, 485 So. 2d at 830;

Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980)(“regardless of whether

they are accompanied by a dissenting or concurring opinion”). Thus,

conflict cannot be based upon "unelaborated per curiam denials of relief,"

Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002).

In addition, it is the "conflict of decisions, not conflict of opinions

or reasons that supplies jurisdiction for review by certiorari." Jenkins,

4

385 So. 2d at 1359.

Thus, "this Court does not have jurisdiction to review per curiam

decisions of the district courts of appeal that merely affirm with

citations to cases not pending review in this Court," Persaud v. State, 838

So. 2d 527, 531-32 (Fla. 2003) (citing Dodi Publishing Co. v. Editorial

America, S.A., 385 So. 2d 1369 (Fla. 1980); Jollie v. State, 405 So. 2d 418

(Fla. 1981)).

A district court of appeal opinion that is devoid of facts contains no

holding that could conflict with another district court of appeal opinion:

[I]n those cases where the district court has not explicitly

identified a conflicting decision, it is necessary for the district

court to have included some facts in its decision so that the

question of law addressed by the district court in its decision can

be discerned by this Court.

Persaud, 838 So. 2d at 533.

In Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958), this Court

explained:

It was never intended that the district courts of appeal should be

intermediate courts. The revision and modernization of the Florida

judicial system at the appellate level was prompted by the great

volume of cases reaching the Supreme Court and the consequent delay

in the administration of justice. The new article embodies

throughout its terms the idea of a Supreme Court which functions as a

supervisory body in the judicial system for the State, exercising

appellate power in certain specified areas essential to the

settlement of issues of public importance and the preservation of

uniformity of principle and practice, with review by the district

courts in most instances being final and absolute.

Accordingly, the determination of conflict jurisdiction distills to

whether the District Court's decision reached a result opposite that of the

court in Jain.

5

2. The decision below is not in "express and direct" conflict with

Neiner or Rivera.

Petitioner points only to a single sentence that appears in both Neiner

v. State, 875 So.2d 699 (Fla. 4th DCA 2004), and Rivera v. State, 561 So.2d

536 (Fla. 1990), as the basis for his alleged express and direct conflict

with the First District’s decision in this case. Notably, Petitioner does

not compare the facts of the instant case with either Neiner or Rivera.

Petitioner has therefore failed to carry his burden and show how the First

District reached a different result under similar facts, as is necessary

for a finding of an express and direct conflict. Moreover, Petitioner has

misapprehended the meaning of that sentence in both cases, for a proper

understanding illustrates that no express and direct conflict exists.

In Neiner, 875 So.2d 699, the defendant was tried for possession of

diazepam. While the defendant claimed she had a prescription for the

drugs, she was unable to produce the prescription for the time period in

which she obtained the drugs. Id. The defendant attempted to call an ex-

manager for her pharmacy to testify that the pharmacy destroyed

prescription records after five years, thereby explaining why she was

unable to produce the correct prescription which would exonerate her. Id.

at 699-700. The trial court excluded this evidence, but the Fourth

District reversed, noting that the pharmacy’s policy was relevant to

explain why she could not produce documents which would exonerate her.

Citing to language in Rivera that evidence which tends to establish a

reasonable doubt in any way must be admitted, the Fourth District held that

because the evidence was relevant to the defendant’s defense, it should

6

have been admitted.

In Rivera, 561 So.2d 536 at 539, the defendant complained that the

trial court prohibited him from introducing “reverse Williams Rule”

evidence. While this Court noted that evidence which tends in any way,

even indirectly, to establish a reasonable doubt must be admitted, this

Court added that such evidence must abide by the same principles of

relevancy that all other evidence must satisfy. Id. This Court then found

that the defendant’s proffered “reverse Williams Rule” evidence failed to

meet the standard for admission, and the trial court did not abuse its

discretion in excluding it. Id. at 540.

Thus, both Neiner and Rivera establish that the sentence at issue,

“[W]here evidence tends in any way, even indirectly, to establish a

reasonable doubt of defendant’s guilt, it is error to deny its admission,”

is nothing more than a restatement of the evidentiary rule that only

relevant evidence be admitted, and that relevant evidence is that which

tends to prove or disprove a material fact. See §90.401, Fla. Stat.; see

also §90.402, Fla. Stat. This rule is consistent with the prohibition on

collateral impeachment, which is impeachment for nothing more than its own

sake and not for any material fact. Griffin v. State, 827 So.2d 1098 (Fla.

1st DCA 2002). Therefore, collateral impeachment is necessarily irrelevant

and is inadmissible for that reason.

In the instant case, Petitioner attempted to engage in collateral

impeachment by questioning the victim of a sexual battery about the nature

of her clothing at the time she was raped. Anderson v. State, 133 So.3d

7

646, 647 (Fla. 1st DCA 2014). The victim stated she wore jogging clothes,

and Petitioner attempted to impeach her by presenting her clothes, which

Petitioner purported to be pajamas, to the jury. Id. The trial court and

the First District properly held this was an attempt to impeach on a

collateral matter, since even if the clothing actually were pajamas, such

contradiction “was not relevant to any issue in the case as it did not

reflect on Anderson’s guilt or innocence.” Id.

Because the evidence of the victim’s clothing was collateral, it was

not relevant, and therefore did not tend to establish a reasonable doubt as

to Petitioner’s guilt. Thus, the general maxim Petitioner relies on in

Neiner and Rivera is wholly consistent with the First District’s decision.

While evidence relevant to the defendant’s lack of guilt is admissible,

evidence which is merely collateral and irrelevant is not. Neiner and

Rivera do not say otherwise, and in no way provide a pathway to admitting

evidence of collateral matters that inherently fail the test of relevancy.

It is worth noting that Petitioner’s discussion of the facts of the

instant case relies almost entirely on facts not contained within the

district court’s opinion, in contravention of well-established law. Unlike

Petitioner’s jurisdictional brief, the opinion makes no mention of

Petitioner’s explanation during trial as to why the clothing might be

relevant, makes no mention of what issue was most important in the case,

nor does it mention whether the case was “he said/she said”. (PJB 5-6).

Petitioner’s impermissible reliance on facts outside the district court’s

opinion is reason enough to deny jurisdiction.

8

Petitioner has failed to demonstrate that an express and direct

conflict exists between the instant case and Neiner or Rivera. Petitioner

has not only failed to carry his burden of persuasion by providing the

requisite factual analysis of Neiner and Rivera, but such analysis actually

reveals that both decisions do not in any way conflict with that of the

instant case. Therefore, this Court lacks discretionary jurisdiction in

the instant case.

CONCLUSION

Based on the foregoing discussions, the State respectfully requests

this Honorable Court determine that it does not have jurisdiction.

9

CERTIFICATE OF SERVICE

I certify that a copy hereof has been furnished to the following by

electronic mail on June 3, 2014: Michael Ufferman, Esq., at

ufferman@uffermanlaw.com.

CERTIFICATE OF COMPLIANCE

I certify that this brief was computer generated using Courier New 12

point font.

Respectfully submitted and certified,

PAMELA JO BONDI

ATTORNEY GENERAL

__Trisha Meggs Pate______

TRISHA MEGGS PATE

Tallahassee Bureau Chief,

Criminal Appeals

Florida Bar No. 0045489

___/s/ Jay Kubica_______

By: JAY KUBICA

Florida Bar No. 0026341

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Fl 32399-1050

(850) 414-3300 (VOICE)

(850) 922-6674 (FAX)

L14-1-9839

Attorney for the State of Florida

10

IN THE SUPREME COURT OF FLORIDA

GREGORY TYRONE ANDERSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Case No. SC14-737

INDEX TO APPENDIX

A. Slip opinion, Gregory Anderson v. State, 1D12-3371