Supreme Court of Florida

CASE NO. SC13-9999

CYNTHIA SCHWARTZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR DISCRETIONARY REVIEW FROM THE

DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA

PETITIONER’S JURISDICTIONAL BRIEF

/s/ Ira W. Still, III

Ira W. Still, III, Esq.

Law Offices of Ira Still

148 SW 97th

Terrace

Coral Springs, Florida 33071

Broward: (954) 573-4412

Miami: (305) 303-0853

Email: ira@istilldefendliberty.com

Counsel for Petitioner

Electronically Filed 09/06/2013 12:03:34 PM ET

RECEIVED, 9/6/2013 12:08:35, Thomas D. Hall, Clerk, Supreme Court

TABLE OF CONTENTS

page

TABLE OF CONTENTS: i

TABLE OF AUTHORITIES: ii

STATEMENT OF THE CASE AND OF THE FACTS: 1-3

SUMMARY OF ARGUMENT: 4

ARGUMENT:

I. 4-8

THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF

THE FLORIDA SUPREME COURT REGARDING OBJECTIVE

“DUE PROCESS” ENTRAPMENT.

II. 8-10

THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF

THE FLORIDA SUPREME COURT OTHER DISTRICT COURT

DECISIONS CONCERNING DISPOSITIVENESS.

III. 10

THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF

THE UNITED STATES SUPREME COURT AND THE FLORIDA

SUPREME COURT REGARDING WHETHER FRANKS APPLIES

ONLY TO SEARCH WARRANT CASES.

CONCLUSION: 10

CERTIFICATES OF SERVICE AND COMPLIANCE: 11

-i-

TABLE OF AUTHORITIES

CASES: page

Brown v. State, 376 So.2d 382 (Fla. 1979) 9

Diaz v. State, 34 So. 3d 797 (Fla. 4th

DCA 2010) 9, 10

Franks v. Delaware, 438 U.S. 154 (1978) 10

Giglio v. U.S., 405 U.S. 150, 92 S.Ct.763 (1972) 6

Johnson v. State, 660 So.2d 648 (Fla. 1995) 10

Lamb v. State, 55 So. 3d 751 (Fla. 2nd

DCA 2011) 10

Munoz v. State, 629 So.2d 90 (Fla.1993) 5, 6, 7, 8

Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998) 9

State v. Glosson, 462 So.2d 1082 (Fla. 1985) 5, 6, 7, 8

State v. Williams, 623 So.2d 462 (Fla. 1993) 5, 7, 8

Thorp v. State, 777 So.2d 385 (Fla. 2001) 10

Zeigler v. State, 471 So.2d 172,175 (Fla. 1st DCA 1985) 9

OTHER AUTHORITIES

Article I, Section 9, Constitution of the State of Florida 2, 4, 5

Section 777.201, Florida Statutes 4

-ii-

1

STATEMENT OF THE CASE AND OF THE FACTS

As used in this jurisdictional brief, the designation “App.” followed by a

number designates the appendix and item number listed in the appendix. All

emphasis has been supplied unless otherwise designated.

This is a petition to review the decision of the Fourth District Court of

Appeal [hereinafter 4th

DCA] rendered on May 29, 2013, [App. 1]. Appellant’s

motion for rehearing was denied by the 4th DCA on August 1, 2013 [App. 2].

Petitioner filed her Notice to Invoke the Discretionary Jurisdiction of this Court on

August 30, 2013, asserting that the decision of the 4th DCA expressly and directly

conflicts with opinions of the Florida Supreme Court and other District Courts.

The 4th DCA in its opinion [App. 1; at p. 1], states:

In this appeal from a conviction and sentence after plea

to trafficking in cocaine and Oxycodone, where appellant

reserved her right to appeal dispositive motions, she

challenges the trial court’s denial of her motion to

suppress…Appellant also claims that the court should

have granted her motion to dismiss based upon objective

entrapment, but we conclude the trial court correctly

denied the motion. Finally, she claims that the case

against her is based upon “perjured” testimony from the

lead detective, relying on various inconsistencies

between his testimony and the testimony of one

informant, as well as inconsistencies between his

testimony at various depositions and hearings. Although

we conclude that appellant has not proved that the

detective’s testimony was affirmatively false, we need

2

not address the merits, because relief, if any, for

knowingly relying on false testimony would be a

reversal for new trial or hearing, not dismissal of all

charges. Therefore, it is not dispositive and cannot be

reserved for appeal from the conviction based upon a

plea. We thus affirm.

The trial court entered an order denying the motion to suppress without

making any factual findings. It was during those hearings that the lead detective

gave sworn testimony that he knew was false. The lying under oath was not a

separate wrong. It was the sign-post of the egregious government conduct. Since

the trial court made no factual findings on the motion to suppress, the 4th DCA

proceeded to draw their own factual conclusions as to whether the lead detective

committed perjury and whether that was material to the pretrial motions.

Schwartz attorney filed a motion to dismiss based on objective “due

process” entrapment pursuant to Art. I, §9, Fla. Const. During those extended

hearings, the defendant sought to prove that the perjury of the police coupled with

a cover-up scheme extended from before the targeted drug transactions until after

Schwartz’s arrest amounted to egregious government conduct which required the

trial court to dismiss the charges for due process violations on the legal theory of

objective entrapment pursuant to Art. I, §9 of the Fla. Const. However, the trial

court never made any factual findings in its order denying the motion to dismiss.

3

The trial court failed to determine whether the lead detective lied under oath to

cover up egregious government conduct. The 4th DCA [App. 1; at p. 2] stated:

Appellant filed a lengthy motion to dismiss the charges

based upon objective entrapment, alleging that the police

had set her up because of the fact that her husband and

his brother were known drug traffickers, her husband

having been sent to prison. Her theory seems to have

been that the lead detective in her arrest cloaked the

informants as confidential informants in order to entrap

her. Once designated as confidential informants, their

testimony was unavailable. According to appellant’s

theory, the detective’s plan was to target appellant and to

use the immunized Hollywood arrestee and her supplier

as confidential informants so that appellant could not

dispose them to learn the truth of the plan.

As convoluted as the theory was, the trial court held an

extensive evidentiary hearing on it. We have reviewed

the transcript of that hearing…

The trial court denied the motion to dismiss, finding no

objective entrapment…Nevertheless, the court concluded

that no due process violation had occurred at that point in

the proceedings…the appellant filed a motion for

reconsideration, clarification, and to conduct a Franks

hearing…The appellant then pled to the crimes, reserving

her right to appeal “dispositive” motions. Neither the

state nor the trial court stated on the record that all of

the motions were dispositive.

The 4th DCA overlooked the signed stipulation of the parties and the trial

judge that all of the motions (taken together) were “dispositive” for purposes of

appeal. The 4th

DCA held that the only remedy for false testimony was the grant of

a new trial, and otherwise denied the appeal.

4

SUMMARY OF ARGUMENT

This Court should accept jurisdiction to review the 4th DCA’s decision. As

the opinion conflicts with decisions of the Florida Supreme Court and various

District Courts of Appeal.

1. The first basis supporting review by this Court is that the 4th

DCA

confused the law of objective “due process” entrapment pursuant to Art. I, §9, Fla.

Const. with subjective entrapment pursuant to Sec. 777.201, Fla. Stat.. The 4th

DCA confused the two and blended in postconviction analysis under federal cases.

2. The second basis supporting review by this Court is that the 4th DCA

determined that the undetermined orders on appeal were not “dispositive” despite

the written stipulation of the parties and the trial court that all of the motions taken

together were in fact dispositive.

3. The third basis supporting review by this Court is that the 4th DCA

restricted Franks application (of police lying under oath to the trial judge) solely to

cases involving search warrants.

ARGUMENT

I. THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF THE

FLORIDASUPREME COURT REGARDING OBJECTIVE “DUE

PROCESS” ENTRAPMENT.

5

This Court should accept jurisdiction because the 4th DCA’s decision

expressly and directly conflicts with decisions of the Florida Supreme Court

regarding the law on Objective Due Process Entrapment, pursuant to Art. I, Sec. 9

of the Florida Constitution. In its opinion, the 4th DCA [App. 1; p. 5] said:

Objective entrapment focuses on governmental

misconduct which violates a defendant’s due process

rights by ensnaring him to commit a crime, regardless

of predisposition…

All of this conduct entices or facilitates the

commission of the crime. In this case we agree with the

trial court that there was no egregious misconduct of law

enforcement in setting up the drug transactions in this

case.

Since the trial court made no factual findings in denying the motion to

dismiss, it is difficult to understand how the 4th DCA drew that conclusion.

Notwithstanding, the 4th

DCA misapplied the Florida law on objective “due

process” entrapment and their view of it expressly and directly conflicts with this

Court’s holdings in Glosson, 462 So.2d 1082, 1084 (Fla. 1985); State v. Williams,

623 So.2d 462 (Fla. 1993); and Munoz v. State, 629 So.2d 90 (Fla. 1993).

In Glosson, supra, this Court said [at 1084]: “The due process defense

based upon governmental misconduct is an objective question of law for the trial

court, as opposed to the subjective predisposition question submitted to the jury in

the usual entrapment defense.” This Court held [at 1085]:

6

We reject the narrow application of the due process

defense found in federal cases. Based upon the due

process provision of article I, section 9 of the Florida

Constitution, we agree with Hohensee and Isaacson that

governmental misconduct which violates the

constitutional due process right of defendant, regardless

of that defendant’s predisposition, requires the

dismissal of criminal charges.

This Court did not say anything about police misconduct “ensnaring the

defendant to commit the crime” as stated by the 4th

DCA [App. 1; p. 5].

The 4th DCA [App. 1; at p. 5] held: “While objective entrapment involves

the police action in setting up criminal activity, a defendant has a due process

right not to be convicted based upon false testimony [citing Giglio] .” Pursuant to

this Court’s opinions in Glosson, Munoz, and Williams, the setting up, ensnaring or

enticing of criminal activity has no place in the analysis of objective entrapment.

Furthermore, the allegation of false testimony was not raised in order to trigger a

postconviction analysis under Giglio v. U.S., 405 U.S. 150, 92 S.Ct.763 (1972),

which can only give rise to the grant of a new trial. Where this defendant pled and

reserved dispositive motions, there would be no trial.

This Court held, in Glosson, supra, “a trial court may properly dismiss

criminal charges for constitutional due process violations in cases…” and gave the

factual example that formed the basis of finding “egregious police misconduct” in

that particular case. Each case stands on its own facts. Here the trial court made

7

no factual findings on the motion to dismiss and failed to consider the defense

motions on the issue of egregious government misconduct. It is error for the

appellate court to supplement the record by making its own factual findings.

This Court in Munoz v. State, [at 98] explained the differences between the

Florida law on objective entrapment and statutory subjective entrapment under the

federal standard, “which focuses on a defendant’s predisposition and that the

(U.S. Supreme) Court has specifically rejected the objective standard, which

focuses on the government’s conduct.” This Court held: “By this opinion, we

attempt to set forth the principles of Florida’s entrapment defense to harmonize the

law and to ensure uniform application of the entrapment defense in Florida.”

In State v. Williams, 623 So.2d 462, 463 (Fla. 1993), this Court held:

We hold that the illegal manufacture of crack cocaine by

law enforcement officials for use in a reverse-sting

operation within 1000 feet of a school constitutes

governmental misconduct which violates the due process

clause of the Florida Constitution. Thus, we find that the

defendant’s conviction for purchasing the crack cocaine

must be reversed.

This Court in Williams held it was the egregious government misconduct

that is the violation of due process requiring dismissal of the charges,

notwithstanding the fact that the defendant of his own volition committed the

crime charged and purchased the crack cocaine. Whether the defendant is

8

predisposed to sell cocaine and whether the defendant is enticed or procured into

committing the crime is not the focus in objective entrapment cases. Rather, it is

the government’s misconduct that is so egregious as to violate due process that is

the focus of these cases. It follows that the defendant must be afforded the full

opportunity to develop and present sufficient facts to the trial court which should

make specific factual findings as to whether or not the level of police misconduct

attains to the standard that violates due process. It is not for the appellate court to

substitute its own findings of fact where the trial court failed to do so.

The 4th DCA errant analysis of objective entrapment expressly and directly

conflicts with Glosson, supra, Munoz, supra, and Williams.

II. THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF THE

FLORIDA SUPREME COURT AND OTHER DISTRICT COURT

DECISIONS CONCERNING DISPOSITIVENESS.

The Fourth District’s decision also conflicts with decisions of the Florida

Supreme Court and other Florida District Courts on the question whether an

appellate court can overlook the written stipulation of the parties and the trial court

expressly acknowledging that all of the pending motions in the trial court were

dispositive to the issues raised on appeal following the defendant’s plea. The 4th

DCA failed to acknowledge that the parties and the trial court had each signed a

9

written stipulation that all of the motions and issues raised on appeal were

dispositive.

In Brown v. State, 376 So.2d 382, 385 (Fla. 1979), the Court held:

We must now ascertain what constitutes a dispositive

legal issue. In most cases the determination will be a

simple one. Motions testing the sufficiency of the

charging document, the constitutionality of a controlling

statute, or suppression of contraband for which a

defendant is charged with possession are illustrative.

Under this rule the trial judge will have wide discretion

to accept or reject an Ashby nolo plea based upon his

perception of the dispositive nature Vel non of the legal

issue reserved for appeal. His decision will be

overturned only upon a showing of clear abuse of

discretion.

The 4th

DCA claimed there was nothing in the record regarding a stipulation

of the issues being dispositive. That clearly is not the case as the signed

stipulation is in the record and reiterated on motion for rehearing. See Zeigler v.

State, 471 So.2d 172,175 (Fla. 1st DCA 1985) [a joint stipulation is sufficient to

establish dispositiveness]; Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998)

[the court will not “go behind” a joint stipulation of dispositiveness]; Diaz v. State,

34 So.3d 797, 798 (Fla. 4th

DCA 2010) [it is the trial court’s duty to determine the

dispositive nature of the reserved question]; Lamb v. State, 55 So.3d 751, 753 (Fla.

2nd

DCA 2011) [“Because the trial court gave Lamb the impression that she was

10

preserving her right to appeal the ruling on her motion to suppress, we conclude

that a finding of dispositiveness can be inferred from the record].

The 4th DCA [App.1; at p. 6] states: “The motion for reconsideration was

not dispositive, nor was the motion for a Franks hearing, which in any event would

not apply, as a search warrant was not involved in this case.” This conflicts with

the cited cases.

III. THE 4th

DCA’S DECISION CONFLICTS WITH DECISIONS OF THE

UNITED STATES SUPREME COURT AND THE FLORIDA

SUPREME COURT REGARDING WHETHER FRANKS APPLIES

ONLY TO SEARCH WARRANT CASES.

The 4th DCA errantly limited the scope of Franks v. Delaware, 438 U.S. 154

(1978) to search warrants, exclusively. See also Johnson v. State, 660 So.2d 648

(Fla. 1995); and Thorp v. State, 777 So.2d 385 (Fla. 2001). Franks applies to any

case where law enforcement personal lie under oath to the court in order to procure

a conviction.

CONCLUSION

WHEREFORE, the decision of the 4th DCA under review expressly and

directly conflicts with the decisions of the Florida Supreme Court and other

District Courts of Appeal on the same questions of Florida law, this Court should

accept jurisdiction and review the decision on the merits.

11

Respectfully submitted,

/s/ Ira W. Still, III

IRA W. STILL, III, ESQUIRE

Attorney for Defendant

148 SW 97th Terrace

Coral Springs, FL 33071

BROWARD: 954-573-4412

DADE: 305-303-0853

FAX: 954-827-0151

Email: ira@istilldefendliberty.com

Florida Bar No.: 169746

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this jurisdictional brief has been computer

generated in 14-point Times New Roman font [except for title headings which are

in 16-point Times New Roman font] and this complies with the requirements of

Rule 9.210(a)(2)

/s/ Ira W. Still, III

IRA W. STILL, III, ESQUIRE

12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that that a true and correct PDF-format copy of the

foregoing jurisdictional brief was E-Served upon Heidi L. Bettendorf, Esq.,

Assistant Attorney General [counsel for the respondent] at

crimappwpb@myfloridalegal.com whose office address is at the Office of the

Attorney General at 1515 North Flagler Drive, Suite 900, West Palm Beach, FL

33401, and to Lewis S. Midler, Esq. [counsel for Cynthia Schwartz in the 4th

DCA]

at lewis@midlerkramer.com whose office address is 120 East Oakland Park Blvd.,

Suite 203, Ft. Lauderdale, FL 33334, on this 6th

day of September 2013.

s/ Ira W. Still, III

IRA W. STILL, III, ESQUIRE