Petition for Writ of Certiorari — Eric Wiley, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

Supreme Court briefDec 1, 2017

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CASE NO.: TO BE DETERMINED

IN THE

SUPREME COURT

THE UNITED STATES

ORG GIINAL

Supreme Court, U.S.

FILED

DEC 01 2017

OFFICE OF THE CLERK

ERIC WILEY, PETITIONER

JULIE JONES, SECRETARY

DEPARTMENT OF CORRECTIONS, RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

FLORIDA SUPREME COURT

Eric Wiley DC# 113706

Columbia Correctional Annex

216 SE Corrections Way

Lake City, FL 32025

QUESTION(S) PRESENTED

Must a jury finding be specific as to use of a "deadly weapon"? When the jury

verdict was for a "use of a firearm"?

Does the State violate a Petitioner's due process when the state fails to

present all essential elements that a charging indictment/information cites?

Did the Trial Court Judge lack subject matter jurisdiction to enter the

judgment in violation of the Fourteenth Amendment of the United States

Constitution?

Is Petitioner's conviction for Count Two fundamentally defective as the

State's evidence did not prove the charged offense?

Are Petitioner's convictions illegal because the weapons and firearm statute

is constitutionally void due to its vagueness and in violation to the Fourth

and Fourteenth Amendments of the United States Constitution?

Do Petitioner's convictions and sentences for Counts 2, 3, and 4 violate double

jeopardy laws under the Fourth and Fourteenth Amendments of the United

States Constitution?

Did trial court judge commit a fundamental error when the conviction lacked

evidence that the Petitioner discharged a firearm during the commission of

aggravated battery and/or aggravated assault?

LIST OF PARTIES

All Parties appear in the caption of the case on the cover page.

111

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED

-ii

LIST OF PARTIES

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED

v, vi, vii

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

PROOF OF SERVICE

INDEX TO APPENDICES

APPENDIX "A"

APPENDIX "B"

APPENDIX "C"

FLORIDA SUPREME COURT RULING

FORTH DISTRICT COURT OF APPEAL RULING

TABLE OF AUTHORITIES CITED

CASES

Anglin vMayo, 88 So.2d 918

PAGE NUMBER

Baker vState, 878 So.2d 1236

Baldwin vState, 857 So.2d 249

18,19

Benton vMaryland 395 U.S. 784

Blakely v Washington, 542 U.S. 296

Croom vState, 36 So.3d 707

DeJonge v Oregon, 299 U.S. 353

Elkin vState, 636 So.2d 570

F.B. vState, 852 So.2d 226

Fiore v White, 531 U.S. 225

4,5,6

Florida v Gray, 435 So.2d 818

Ford vState, 802 So.2d 1121

Fulcher vState, 766 So.2d 243

GalzonvState,980So. 2d1038

Garcia vState, 574 So. 2d 240

Greer VState, 804 So.2d 620

Harrel vState, 721 So.2d 1185

In re Winship, 397 U.S. 358

Jamason vState, 447 So.2d 842

Johnson vState, 423 So.2d 614

4,5,17,18,19

L.B. vState, 700 So.2d 370

Lago vState, 975 So.2d 613

Lewis vState, 53 So.2d 707

Lockwood vPierce, 730 So.2d 1281

Long vState, 92 So.2d 259

TABLE OF AUTHORITIES CITED CONTINUED

CASES

PAGE NUMBER

Lovett vLovett, 112 So. 768

Michelson vState, 805 So.2d 983

Muehieman vState, 3 So.3d 1149

Perez vState, 528 So.2d 129

Pizzo vState, 945 So.2d 1203

Pope vState, 268 So.2d 173

Rodriguez vState, 701 So.2d 1194

Rosin v Anderson, 21 So.2d 143

Ross vState, 901 So.2d 252

Sheridan vState, 799 So.2d 223

Sigler vState, 881 So.2d 14

Sigler vStaLe, 967 So.2d 835

Silverstein vState, 985 So.2d 635

State vAnderson, 537 So.2d 1393

State v Gray, 435 So.2d 818

State vLanier, 771 So.2d 617

State v Vazquez, 450 So.2d 203

Thornhill vAlabama, 310 U.S. 88

Velez vMiami-Dade County Police Dept., 934 So.2d 1162

Waggv vStaLe, 935 So.2d 511

Washington vRencuenco, 126 S.Ct. 2546

Webb vState,

So.2d 944

Willimas vState, 10 So.3d 1172

3,11,15,23

Wiley vState, 60 So.3d 588

Young vState, 141 So.3d 161

vii

TABLE OF AUTHORITIES CITED CONTINUED

STATUTES AND RULES

PAGE NUMBER

Florida Constitution Article 1 § 9

U.S. Constitution Article 6; 14

7,10

775.021, Florida Statutes

775.087, Florida Statutes

9,25,26,27,28,29

782.04(4), Florida Statutes

784.02 1(1)(a), Florida Statutes

4,11,17,19

784.045(1)(a)2, Florida Statutes

4,11,17

782.04(2), Florida Statutes

782.04(4), Florida Statutes

1,8,9,16

790.001, Florida Statutes

4, 19

748.00 1(13), Florida Statutes

4,6,17,18,19

790.235, Florida Statutes

viii

IN THE

SUPREME COURT

THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Florida Supreme Court to review the merits appears at Appendix

"A" to the Petition and is unpublished.

JURISDICTION

The date on which the Florida Supreme Court decided my case was September 9,

2017.

A copy of that decision appears at Appendix "A"

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Petitioner asserts that his Fourth, Fifth, Sixth, and Fourteenth Amendments

of the United States Constitution is raised as being violated by the State and the

Trial Court Judge.

The statutory provisions are cited throughout the grounds properly argued

within the Petition for Writ of Certiorari.

STATEMENT OF THE CASE

On February 1, 2008, this Petitioner was charged by information within the

Nineteenth Judicial Circuit Court in and for Martin County, Florida with: Count

One

Second-Degree Murder of Dwight Starks; Count Two

of Dwight Starks; Count Three

Firearm; Count Four

and Count Five

Third-Degree Murder

Aggravated Battery of Aaron Stoudemire with a

Aggravated Assault of Aaron Stoudemire with a Firearm;

Possession of a Firearm by a Convicted Felon.

On May 14, 2009, this Petitioner was found guilty by a jury of the above

offenses. On July 13, 2009, the Petitioner was sentenced as a Habitual Felony

Offender to life in prison on Count One, with a twenty-five (25) year minimum

mandatory; fifteen (is) years in prison on Count Three, with a ten (10) year

minimum mandatory and five (5) years in prison on Count Four, with a three (3)

year minimum mandatory.

On appeal, the Petitioner's conviction for second-degree murder with a

firearm (Count One) was reversed and remanded for the Trial Court to sentence the

Petitioner on Count Two. See Wiley vState, 60 So.3d 588 (Fla. 4th DCA 2011).

On November 2, 2011, this Petitioner was resentenced on Count Two to life in

prison with a minimum mandatory. The sentence on Count Two was affirmed on

appeal with a mandate issued on May 17, 2013.

On June 26, 2017, this Petitioner submitted for filing a Petition for Writ of

Habeas Corpus for filing within the Honorable Supreme Court of Florida.

On September 5, 2017, the Honorable Clerk of the Supreme Court of Florida

entered an Order denying Petitioner's Petition for Writ of Habeas Corpus, Case No.

5C17-1244 and Petitioner's second Petition was dismissed on September 7, 2017,

Case No. 5C17J233.

The Petitioner now seeks to invoke the jurisdiction of the Honorable Supreme

Court of the United States.

REASONS FOR GRANTING THE WRIT

I. PETITIONER'S CONVICTIONS FOR COUNTS 3 AND

4 ARE ILLEGAL BECAUSE THE JURY HAD NOT

FOUND HIM GUILTY OF AN ESSENTIAL ELEMENT

OF THE OFFENSES, IN VIOLATION OF THE 14TH

AMENDMENT.

"[Tihe United States Constitution requires that criminal convictions must

rest upon a determination that the defendant is guilty beyond a reasonable doubt of

every element of the crime with which he has been charged." Michelson v State,

805 So.2d 983, 984 (Fla. 4th DCA 2001)

In Si5 ler v State, 881 So.2d 14 (Fla. 4th DCA 2004), approved in State v

Si,ler, 967 So.2d 835 (Fla. 2007), the Court indicated that "an illegal conviction

constitutes a manifest injustice."

In that case, the jury convicted Sigler of second-degree murder. Pursuant to

section 782.04(2), Fla. Stat. (1997), a conviction of second-degree murder requires

findings that there was an unlawful killing of a human being, perpetrated by an act

that was eminently dangerous to another and evincing a depraved mind, and not

perpetrated through with any premeditated intent to cause death. Although the

Court found that evidence did not support a finding that the defendant had a

depraved mind, the Court found that such a conviction would necessarily not

include a finding that any felony was committed during the act that led to the

victim's death. Thus, despite the fact that the conviction was reversed, the jury did

not find that any felony was committed. See Id.

However, the Court found that a conviction for third-degree murder requires

an underlying felony and a jury determination of the existence of such a felony. The

Court noted that section 78204(4), Fla. Stat., defines third-degree murder as a

murder committed during the perpetration or attempted perpetration of any felony

that is not one of the felonies enumerated in the statue. In order for the Court to

direct the trial court to enter judgment for third-degree murder, there must be a

finding of a felony. Because the jury verdict under the facts of Sigler's case did not

include such a finding, the Court found that it could not direct the trial court to

enter a judgment for third-degree murder. The Court concluded that any such

judgment would be a violation of the defendant's right to a trial by jury in violation

of the Sixth Amendment. See Id.

While the Court took note that the jury actually exonerated the defendant of

first-degree felony murder charge, which required proof of an underlying felony, the

Court reasoned that "[blecause the verdict in Sigler's case is general, the Court had

no way of ascertaining which element of first-degree murder was not proved beyond

a reasonable doubt." See j4. The Court stated that assuming that the "jury could

well have based its decision on the failure of the evidence to prove an underlying

felony." The Court concluded "a conviction for third-degree felony murder may

actually conflict with that precise finding by the jury." See Id. The Court opined

that the original jury verdict could in no way be read to include a determination on

any predicate felonies and the jury's verdict did not include a determination beyond

a reasonable doubt all the elements necessary to prove third-degree murder. See Id.

In the present case, the Court, too, reversed the petitioner's conviction for

second-degree murder because the evidence was insufficient to support the

conviction, but found sufficient evidence supported the conviction for third-degree

murder. See Wiley v State, 60 So.3d at 592. In support of its decision, the Court

relied on Sheridan v State, 799 So.2d 223, 225 (Fla. 2d DCA 2001); also Elkin v

State, 636 So.2d 570 (Fla. 3d DCA 1994); Garcia vState, 574 So.2d 240, 241 (Fla. 1st

DCA 1991); Johnson v State, 423 So.2d 614, 615 (Fla. 1st DCA 1982) (holding that

"if an aggravated battery results in death, it can be third-degree murder.")

See Id. at 592.

Therefore, the Petitioner argues that his convictions are also illegal since the

jury could not have found the essential element of the offense beyond a reasonable

doubt. Petitioner claims that the jury verdict found him guilty of using a firearm,

not a deadly weapon', and a firearm is excepted from the definition of a weapon. He

contends that under the U.S. Supreme Court decision in Fiore v White, 531 U.S.

225 (2001), the Florida Supreme Court decision in L.B. v State, 700 So.2d 370 (Fla

1997) should be applied to grant petitioner relief since he was entitled to the benefit

of this precedent which was overlooked on direct appeal of his convictions.

Although there was evidence indicating that the firearm was used to commit the

alleged battery, assault, and/or third-degree murder, at all pertinent times, section

790.001(13), Fla. Stat. (2008), expressly excepted a firearm from the definition of a

See Washington v Rencuenco, 126 S.Ct. 2546 (2006) (Distinguishing "a deadly weapon" from a "firarm" where

jury found defendant guilty of . "a deadly weapon," which the information charged "a handgun" and the judge

found defendant armed with a "firearm") Florida law also distinguishes a deadly weapon from a firearm. Compare

§790.001(13), Fla. Stat. with790.001(6) Fla. Stat.

"weapon". Thus, any firearm was not a "weapon" as a matter of law under section

790.001(13), the weapon statute. See Id.

THE APPLICABLE STATUTE:

The relevant statutes which the petitioner was charged with and convicted of

required the state to prove beyond a reasonable doubt that "a deadly weapon" was

used. See § 784.045(1) (a) 2; 784.021(1) (a); 782.04(4), Fla. Stat. 2008. The phrase

"deadly weapon" is not defined under these statutes. Therefore, in determining the

meaning of that phrase, courts traditionally have turned to Chapter 790, Fla. Stat.,

entitled "Weapons and Firearms." Section 790.001 defines the term "weapon" and

expressly excepts a "firearm." However, a weapon itself is defined to include a

"deadly weapon." See Id. See Standard Jury Instructions in Criminal Cases, 665

So.2d 221, 217 (Fla. 1995) "A weapon is a 'deadly weapon' if it is used or threatened

to be used in a way likely to produce death or great bodily harm." "A 'weapon' is

legally defined to mean any object that could be used to cause death or inflict

serious bodily harm." The standard jury instructions definitions depend on the

manner in which the object was used. Therefore, the jury in the present case was

misled on the meaning of "firearm" when the trial court instructed the jury on

"deadly weapon" (Tr. 948949 950-951) Under L.B. v State, however, the use of the

object is irrelevant; the test is whether the firearm is "a weapon." See 14. Thus, the

trial judge, and not the jury, was required to properly determine, as a matter of law,

that the particular firearm is a weapon, and if so, the question whether or not the

weapon involved is to be classified as "deadly" is a factual question to be resolved by

the jury under appropriate instructions.

Thus, the principles of due process enunciated in Fiore require that petitioner

receive the benefit of the Court's clarification of the law in L.B., which was

overlooked. Fiore holds that constitutional principles of due process are violated

when a state convicts and incarcerates an individual for conduct that the state's

"criminal statute, as properly interpreted, does not prohibit." 531 U.S. at 228. At

issue in Fiore was an opinion of the Pennsylvania Supreme Court that for the first

time established that a criminal statute, as properly interpreted, did not prohibit

the defendant's conduct at the time of the conviction. See Id. In those

circumstances, the U.S. Supreme Court explained that the state Supreme Court

had issued a clarification of the law that applied to that defendant. The Court

explained:

This Court's precedents make clear that Fiore's conviction

and continued incarceration on this charge violate the due

process. We have held that the due process clause of the

Fourteenth Amendment forbids a state to convict a person

of a crime without proving the elements of that crime

beyond a reasonable doubt. In this case, failure to possess

a permit is a basic element of the crime of which Fiore

was convicted

The simple, inevitable conclusion is that Fiore's conviction

fails to satisfy the Federal Constitution's demands.

See Id. at 228-29. (emphasis supplied) (citations omitted).

L.B. was the first statement by the Supreme Court of Florida as to what

constitutes a "firearm." As in Fiore, the Florida Supreme Court's statement of the

law in L.B. also correctly stated the law well before the Petitioner's conviction

became final. Further, like the Pennsylvania Supreme Court's clarification of its

law in PYore, the "weapon" statute as "properly interpreted," Fiore, 531 U.S. at 228,

places Petitioner's conviction outside the scope of that statute.

In Fiore's terms, the L.B. court issued a "clarification" of the law of what constitutes

a ."firearm," under section 790.001(13). Thus, as in Fiore, the Petitioner's

"continued incarceration" on these charges violates due process because the

essential element of using a "deadly weapon" in order to be convicted of aggravated

battery and aggravated assault, and thus, third-degree murder does not exist in the

Petitioner's case.

Since it is abundantly clear that Petitioner's convictions are illegal, as a

matter of law, this Court could review the petition as a matter of grace, and correct

a manifest injustice. One of the most basic tenets of Florida law is the requirement

that all proceedings affecting life, liberty, or property must be conducted in

according to due process, which includes a 'reasonable opportunity to be heard."

II. PETITIONER'S CONVICTION FOR COUNT TWO IS

ILLEGAL BECAUSE THE STATE FAILED TO CHARGE

AN UNDERLYING FELONY, IN VIOLATION OF THE

SIXTH AND FOURTEENTH AMENDMENTS.

Due process of law requires the state to allege every essential element when

charging a violation of law to provide the accused with sufficient notice of the

allegations against him. Art. 1, § 9, Fla. Const.; U.S. Const. amendments 6; 14.

There is a denial of due process when there is a conviction on a charge not made in

the information or indictment. See Thornhill v Alabama, 310 U.S. 88 (1940);

DeJonge v Oregon, 299 U.S. 353 (1937). For an information to sufficiently charge a

crime it must follow the statute, clearly charge each of the essential elements, and

sufficiently advise the accused of the specific crime with which he is charged. See

Rosin vAnderson, 155 Fla. 673, 21So.2d 143, 144 (1945).

Generally, if an information or indictment fails to completely charge a crime

under the laws of the state, the defect can be raised at any time, including in a

habeas corpus proceeding under this Court's original jurisdiction. See Florida v

Gray, 435 So.2d 818 (Fla. 1983). However, "where a defendant waits until after the

state rests its case to challenge the propriety of an indictment or information, the

defendant is required to show not that the indictment or information is technically

defective but that it is so fundamentally defective it cannot support a judgment of

conviction." Ford vState, 802 So.2d 1121, 1130 (Fla. 2001).

Therefore, the petitioner argues that the information charging him with

third-degree murder with a weapon or firearm was void for failure to specify the

state would pursue a conviction of the underlying offenses under a "deadly weapon"

theory, which resulted in the failure to sufficiently charge an underlying felony.

Furthermore, the petitioner claims the information was void for failure to include

an allegation as to the manner in which the underlying felonies occurred. The

petitioner contends that these failures resulted in the denial of the right to be

informed of the nature and cause of the accusation.

Section 782.04(4), Fla. Stat. (2008), means:

The unlawful killing of a human being when perpetrated

without any design to effect death, by a person engaged in

the perpetration of, or in the attempt to perpetrate, [any

felony] other than those enumerated in the statute.

(Emphasis added).

Thus, under Florida law, a conviction for third-degree murder requires an

[underlying felony] § 782.04(4), Fla. Stat. In count two of the information, the state

charged the petitioner with third-degree murder with a weapon or firearm, in

violation of §§ 782.04(4) and 775.087. The state specifically alleged under oath that

the petitioner unlawfully, and while engaged in the perpetration of, or attempt to

perpetrate the felonies of aggravated battery and/or aggravated assault, kill and

murder [victim], a human being, and during the commission of the offense, the

petitioner carried and discharged a firearm resulting in the death of [victim]...

Therefore, the state's theory of prosecution was that the petitioner

perpetrated or attempted to perpetrate the underlying offenses of aggravated

assault and/or aggravated battery. However, the fatal omission in this charging

document is "deadly weapon," an essential element required in order to constitute a

felony under the aggravated assault and aggravated battery statutes. Furthermore,

the state failed to sufficiently allege the means by which these underlying felonies

occurred. Thus, the allegations charging these underlying felonies were legally

inadequate, as a matter of law, to charge a crime under the laws of Florida, thereby

rendering the information so fundamentally defective that it cannot support a

judgment of conviction.

THE SIXTH AMENDMENT:

The key to the manifest injustice hinges on understanding the Sixth Article

of the Constitution of the United States. The discussion begins with the text as

follows:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the state, and district wherein the crime shall have ben

committed. Which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have assistance of

counsel for his defense.

(Emphasis Added).

The key words in the emphasized portions are ALL and SHALL. "ALL"

implies that there is more than one criminal jurisdiction. "SHALL" makes the

enjoyment of the right to be informed mandatory. The information or indictment

must state the nature and cause in plain language that is understood by the

accused.

Pursuant to Florida law, see § 784.045(1)(a)2 784.021(1)(a), Fla. Stat. (2008),

"deadly weapon" is an essential element of the underlying felonies that must be

alleged in order for the information to completely charge a crime under the laws of

the state. Thus, the Petitioner alleges that the state's failure to include an element

essential to the crime renders the information so defective that it will not support a

judgment of conviction, especially inasmuch as the state failed to even cite §

784.045(1) (a) 2; 784.021(1) (a), Fla. Stat. (2008) referencing a specific section of the

criminal code which sufficiently details all the elements of the offense. This is so,

because the Petitioner was only charged with carrying and discharging a firearm in

Count Two, not a deadly weapon. Wiley v State, 60 So.3d at 589.

Although Count Two of this information is titled "weapon or firearm," once

again, Florida law, as interpreted by the Florida Supreme Court, excepted a

"firearm" from the definition of "weapon," and accordingly the Petitioner could have

only been convicted of such. See Fuicher v State, 766 So.2d 243 (Fla. 4th DCA 2000)

(due process is violated where one is convicted of a crime where the indictment and

information wholly omits to allege one or more of the essential elements of the

crime).

III. PETITIONER'S CONVICTIONS ARE ILLEGAL

BECAUSE THE CIRCUIT COURT LACKED SUBJECT

MATTER

JURISDICTION TO ENTER THE

JUDGMENT, IN VIOLATION OF THE FOURTEENTH

AMENDMENT.

The issue of subject matter jurisdiction is one of fundamental error and may

be raised for the first time at any point. See Wagy v State, 935 So.2d 511, 523

(Fla. 1st DCA 2006). Moreover, the doctrine of waiver cannot be effective when the

court lacks jurisdiction over the case itself. See Harrel vState, 721 So.2d 1185 (Fla.

5th DCA 1998). When a court lacks subject matter jurisdiction, it has no power to

decide a case and any judgment entered is absolutely null and void, can be set aside,

and stricken from the record on motion at any time.

Nonetheless, it is clear in Lovett vLovett, 112 So. 768, 776 (Fla. 1927), that

a pleading defect could be "jurisdictional" and permitted it to be raised for the time

on appeal after the litigants had proceeded through trial without mentioning it.

While it did not explicitly hold the pleading defect resulted in a failure of subject

matter jurisdiction, it treated the procedural jurisdiction issue as if it were subject

matter jurisdiction. The same result could have been reached (and probably would

have) by declaring the error "fundamental" but the opinion went out of its way to

characterize the error as "jurisdictional" in excusing its untimely assertion. II

Lovett was thus read by this Court to mean that a court lacked subject matter

jurisdiction if its jurisdiction had not been properly "invoked." See Lockwood v

Pierce, 730 So.2d 1281, 1283 (Fla. 4th DCA 1999).

Therefore, the Petitioner contends that the trial court exceeded its

jurisdiction by the State's failure to charge a felony in the information charging

counts two, three, and four. Specifically, the state failed to charge that the alleged

offenses by the Petitioner was made with a "deadly weapon," an essential element

for these counts. See § 784.045(1) (a) 2; 784.021(1) (a); 782.04(4), Fla. Stat. Since a

conviction cannot rest upon such an information, the complete failure of an

accusatory instrument to charge a crime is a defect that can be raised at any time

before trial, after trial, on appeal, or by Habeas Corpus. State v Gray, 435 So.2d at

818; See also State vLanier, 771 So.2d 617 (Fla. 4th DCA 2004).

Although the missing element is not an overt act done in pursuance of the

crimes in this case (since the firearm is not a weapon, as a matter of law), it is

nonetheless essential in this state information because it established the court's

jurisdiction. See Pope v State, 268 So.2d 173, 175 (Fla. 2nd DCA 1972) (explaining

that an allegation of a felony "is essential to the invocation of the jurisdiction of a

felony court over the charge since the allegations of the accusatory writ are

precisely the basis in the first instances upon which the court's jurisdiction over the

subject matter is predicated"); see also State v Vazguez, 450 So.2d 203 (Fla. 1984)

(Subject matter jurisdiction is determined by the charge made in an indictment or

information."); State vAnderson, 537 So.2d 1393 (Fla. 1989) (A criminal prosecution

presupposes the existence of a valid charging document and such accusatory

pleading in some form is an essential requisite of jurisdiction.)

IV. PETITIONER'S CONVICTION FOR COUNT TWO IS

FUNDAMENTALLY ERRONEOUS BECAUSE THE

FACTS AFFIRMATIVELY PROVEN BY THE STATE DO

NOT CONSTITUTE THE CHARGED OFFENSE AS A

MATTER OF LAW.

The Petitioner also argues that his conviction for third-degree murder with a

weapon or firearm is illegal because the evidence fails to show that this offense was

committed at all. The Petitioner's claims that the record affirmatively demonstrate

that a firearm was used in the commission of the alleged offense and the jury

verdict made a specific finding that a firearm was used. The Petitioner contends,

however, that under Florida law, a firearm is excepted from the definition of

"weapon," an essential element in order to support a conviction for the underlying

felonies, and, thus, a conviction for third-degree murder. Accordingly, the

Petitioner's conviction and continued incarceration on this charge violate due

process of law.

"[T]he U.S. Constitution requires that criminal convictions must rest upon a

determination that the defendant is guilty beyond a reasonable doubt of every

element of the crime with which he was charged." Michelson v State, supra. See In

re Winship, 397 U.S. 358, 364 (1970). The standard protects three interests. First

it protects the defendant's liberty interest. Id at 363. Second, it protects the

defendant from the stigma of conviction. Id. Third, it encourages community

confidence in criminal law by giving "concrete substance" to the presumption of

innocence. Id. at 363

364. In his concurring opinion, Justice Harlan noted that

the standard is founded on "a fundamental value determination of our society that

it is far worse to convict an innocent man than to let a guilty man go free." Id. at

372 (Harlan J., concurring).

The Petitioner moved for a judgment of acquittal as to counts one and two,

arguing that the state failed to negate that the death of Starks was an accident. (Tr

810

811) The trial court denied the motion. (Id.) On appeal, the Petitioner

argued that the trial court erred in denying his motion for judgment of acquittal

because the state failed to establish that the killing was not accidental or that

Petitioner acted with a depraved mind. The court agreed and reversed the

conviction for second-degree murder. However, the court found no error in

Petitioner's remaining convictions. See Wiley v State, supra.

The Petitioner acknowledges that in moving for a judgment of acquittal, the

specific contention raised here was not advanced at trial, but argues that where the

evidence is insufficient to establish that a crime was committed at all, this

constitutes fundamental error and need not be preserved for appellate review. See

FB. v State, 852 So.2d 226, 230 (Fla. 2003) (stating that "argument that the

evidence is totally insufficient as a matter of law to establish the commission of a

crime need not be preserved" for appellate review because "[sluch complete failure

of the evidence meets the requirements of fundamental error.") Thus, if the

Petitioner is convicted of a crime where the evidence does not demonstrate that a

crime has been committed at all, this constitutes fundamental error, an error that

"goes to the foundation of the case and is equal to a denial of due process." Young v

State, 141 So.3d 161 (Fla. 2013).

Furthermore, this Court has held that fundamental error and manifest

injustice result when a defendant is convicted of an offense for which the defendant

could not have been convicted as a matter of law. See Silverstein _E State, 985 So.2d

635 (Fla. 4th DCA 2008) (holding that a manifest injustice includes convicting a

defendant "for an offense for which he could not have been convicted'); see also

Sigler vState, supra.

In Sigler, once again, this Court noted that a conviction for third-degree

murder requires an underlying felony and a jury determination of the existence of

such a felony, citing § 782.04(4), Fla. Stat. The Court held that in order for it to

direct the trial court to enter judgment for third-degree murder, there must be a

111

finding of a felony. Id. Because the jury verdict did not include such a finding, the

court found that it could not direct the trial court to enter a judgment for thirddegree murder. Id.

Therefore, the Petitioner submits that the jury verdict in his case did not find

him guilty of an underlying felony either. Specifically, the state's theory of the case

was that the Petitioner perpetrated or attempted to perpetrate an aggravated

battery and/or an aggravated assault. As previously shown, these underlying

offenses can only be made with "a deadly weapon." See § 784.045(1) (a) 2;

784.021(1) (a), Fla. Stat. 2008. However, proof of this element essential to the

underlying felonies is lacking. Again, the jury verdict specifically found the

Petitioner guilty of committing the alleged offenses with a "firearm." Under Florida

law, as interpreted L.B. v State, supra, section 790.001(13), Fla. Stat., expressly

excepted a "firearm" from the definition of a "weapon" as a matter of law under

section 790.001(13), the weapon statute, and therefore, could not constitute a

"deadly weapon," notwithstanding the manner in which the "firearm" was allegedly

used.

[W]here an offense may be committed in various ways, the evidence must

establish it to have been committed in the manner charged in the indictment or

information." See Lon v State, 92 So.2d 259, 260 (Fla. 1957); see also Lewis v

State, 53 So.2d 707, 708 (Fla. 1951) ("No principle of criminal law is better settled

than that the state must prove the allegations set up in the information or

indictment.")

In the case at bar, that principle had no application here. Although the state

charged "deadly weapon" only under counts three and four, the jury verdict

nonetheless could not have included such a finding, an essential element of the

underlying felonies. Thus, Petitioner's conviction for third-degree murder is illegal,

as a matter of law, in violation of due process.

V. PETITIONER'S CONVICTIONS ARE ILLEGAL

BECAUSE THE WEAPONS AND FIREARMS STATUTE

IS CONSTITUTIONALLY VOID FOR VAGUENESS, AS

APPLIED TO OFFENSES UNDER § 784.021, 784.045,

AND 782.04(4), FLORIDA STATUTE.

This Petitioner argues that he correctly argued that pursuant to Section

790.001(13), clearly provides in pertinent part:

"Weapon" means any dirk, metallic knuckles, slingshot,

Billie, tear gas gun, chemical weapon or device or other

deadly weapon [except a firearm] or a common

pocketknife.

§ 790.001(13), Fla. Stat. (2008) (Emphasis Added). Under the State Florida

law, as interpreted in L.B. v State, that provision [expressly excepted] a "firearm"

from the definition of a "weapon" as a matter of law under section 790.001(13), the

weapon statute.

However, according to the First, second, and Third District Courts of Appeal,

"a firearm [may] constitute a deadly weapon in some contexts." See Baldwin v

State, 857 So.2d 249 (Fla. 2nd DCA 2003) (and cases cited therein); see also Greer V

State, 804 So.2d 620 (Fla. 3rd DCA 2002). Although these decisions seem somewhat

uncertain, they clearly indicate that the exception under Florida law applies to

certain felonies, in violation of due process and so the honorable Supreme Court of

the United States Justice's have the proper jurisdiction to address the issue, since

the honorable Clerk of the Supreme Court of Florida refused to grant jurisdiction.

Because it appears that the sister District Courts of Appeal implicitly

interprets the statute to mean that the exception under § 790.001(13), applies to

certain felonies, the statute appears to be either ambiguous or susceptible to

differing interpretations, even after the clarification in L.B. v State, and therefore,

should be construed most favorably to Petitioner pursuant to § 775.021(l) Fla. Stat.,

and in doing so, prohibit his convictions for a deadly weapon consistent with the

jury verdict. See Baldwin v State, supra, (holding that "where a firearm was not a

weapon pursuant to § 790.001(2) (13) (1999), it was fundamental error to convict

defendant of carrying a concealed weapon... when, in fact, defendant possessed a

firearm.") Section 775.021 provides in pertinent part:

1). The provision of this code and offenses defined by other

statutes shall be strictly construed; when the language is

susceptible to differing constructions, it shall be construed

most favorably to the accused.

The First, Second, and Third District Courts of Appeal have implicitly

interpreted the exception under § 790.001(13) to apply to certain crimes. They do so

based upon the premise that, in giving the definition, the Florida Legislature has

failed to show a clear and specific intent to provide the exception to a specific

offense. However, these interpretations represent a departure from the essential

requirements of the law. See L.B. v State. According to the Florida Supreme Court,

the Legislature intended the exception to apply to any offense that does not provide

a definition of weapon. See § 790.001 titled "Definitions" (As used in this chapter,

except where the context otherwise requires :). If that is correct, then the rule of

lenity would indeed apply. Petitioner argues that the State Courts have continually

violated Petitioners Fourth; Fifth and Fourteenth Amendment of the United States

Constitution.

Therefore, the clear Florida Legislative intent reflected in the statute

provides an "exception to firearms" notwithstanding the type of offense the firearm

is used in commission of. Accordingly, it is incongruous that the Florida Legislature

would intend for the exception to apply to certain offenses containing its own

definition of a weapon.

Thus, because the differing interpretation of the meaning of weapon and

firearm provision appear to be ambiguous, the rule of lenity codified under section

775.021 dictate that any ambiguity "be construed most favorable to the accused,"

since the stated interpretations suggests that the criminal statute in question is

constitutionally void for vagueness because it is obvious that the States Courts

must necessarily guess at its meaning and differ as to its application. Compare

Baldwin v State, supra, wherein the Second District applied the exception for the

offense under § 790.01 to cases cited by Baldwin wherein those courts declined to

apply the exception to the facts of a case that never made it a subject matter. Thus,

the statute is indeed vague either as to what persons fall within the scope of the

statute or what conduct is forbidden, in violation of due process.

On the other hand, if § 790.001(13) is reasonably definite as to persons and

conduct within its scope, the sister state courts should not have concluded that "we

recognize that [in other contexts] a firearm [may] constitute a deadly weapon. For

example, it is well settled that a firearm is a deadly weapon within the meaning of §

784.045, Fla. Stat., the aggravated assault statute..." (Emphasis added), see

Baldwin vState, supra, but nevertheless holds that under § 790.235, Fla. Stat., the

firearm is excepted from the definition of weapon. Under these circumstances, the

conclusion that the exception under § 790.001(13), applies to certain offenses, but

not to other, is not clear.

The language, with respect to the definition of weapon, appears to be

ambiguous and the rule of lenity codified in § 775.021, dictates that the ambiguity

"be construed most favorable to the accused." See § 775.021(1), Fla. Stat.

Unfortunately, the issue was obviously not completely settled in L.B.