Opposition Brief — Colby McCoggle, Petitioner v. Florida

No. 24-6402

IN THE

SUPREME COURT OF THE UNITED STATES

COLBY MCCOGGLE

v.

STATE OF FLORIDA.

____________________

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA DISTRICT COURT OF APPEAL,

FOURTH DISTRICT

____________________

BRIEF IN OPPOSITION

____________________

JAMES UTHMEIER

ATTORNEY GENERAL

OF FLORIDA

Tallahassee, Florida

CELIA TERENZIO

Bureau Chief, Criminal Appeals

MELYNDA L. MELEAR

Senior Assistant Attorney General

Office of the Attorney General

State of Florida

1515 N. Flagler Drive, Suite 900

West Palm Beach, FL 33401

Tel: (561) 837-5016

crimappwpb@myfloridalegal.com

Counsel for Respondent

QUESTION PRESENTED

The question presented is whether due process requires a court on

resentencing to conduct an evidentiary hearing when the sentence to be imposed

under the applicable statute is not discretionary, when the court has notified the

parties that it believes the sentence to be imposed is mandatory, and when the court

has given the parties the opportunity to brief and argue whether the court’s reading

of the statute is correct and whether the court should nevertheless hold an

evidentiary hearing.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................... iv

STATEMENT OF THE CASE .................................................................. 1

REASONS FOR DENYING THE PETITION .......................................... 4

I.

This Case Presents a Fact-Specific Application of the Due

Process Balancing Test in Mathews v. Eldridge and Does not

Require the Resolution of Any Conflict Among the Lower

Courts. ................................................................................................ 4

II.

The Florida Postconviction Court Struck the Proper Balance

Under Mathews v. Eldridge. .............................................................. 5

A.

Due process did not require a full resentencing hearing in

addition to the notice and opportunity provided by the

resentencing court to explain why the mandatory sentence

should not be imposed. ...........................................................................5

B.

McCoggle did not avail himself of all the opportunities the

trial court gave him to be heard on whether the court had

discretion in sentencing. ......................................................................10

CONCLUSION ........................................................................................ 12

iii

TABLE OF AUTHORITIES

Page

Cases

Anderson v. State,

267 So. 2d 8 (Fla. 1972) ........................................................................................... 9, 10

Atwell v. State,

197 So. 3d 1040 (Fla. 2016) ........................................................................................... 1

Cafeteria Workers v. McElroy,

367 U.S. 886 (1961) ........................................................................................................ 4

Fatir v. Tomas,

106 F.Supp.2d 572 (D. Del. 2000).................................................................................. 9

FCC v. WJR, The Goodwill Station,

337 U.S. 265 (1949) ........................................................................................................ 6

Furman v. Georgia,

408 U.S. 238 (1972) ........................................................................................................ 9

Goldberg v. Kelly,

397 U.S. 254 ................................................................................................................... 6

Golden v. Newsome,

755 F.2d 1478 ................................................................................................................. 8

Huckaby v. State,

343 So. 2d 29 (Fla. 1977) ............................................................................................. 10

Joint Anti-Fascist Comm. v. McGrath,

341 U.S. 123 (1951) ........................................................................................................ 5

iv

Kentucky v. Stincer,

482 U.S. 730 (1987) ........................................................................................................ 7

Landford v. Idaho,

500 U.S. 110 (1991) ........................................................................................................ 6

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................................................................................... 4, 5

Miller v. Alabama,

567 U.S. 460 (2012) ........................................................................................................ 1

Morrissey v. Brewer,

408 U.S. 471 (1972) ........................................................................................................ 4

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ........................................................................................................ 7

State v. Lott,

286 So. 2d 565 (Fla. 1973) ............................................................................................. 9

State v. Michel,

257 So. 3d 3 (Fla. 2018) ................................................................................................. 1

Trushin v. State,

425 So. 2d 1126 (Fla. 1982) ......................................................................................... 11

United States. v. Nolley,

27 F.3d 80 (4th Cir. 1994).............................................................................................. 8

United States. v. Peña,

58 F.4th 613 (2d Cit. 2023) ............................................................................................ 8

United States v. Augustin,

16 F.4th 227 (6th Cir. 2021) .......................................................................................... 8

v

United States v. Jules,

995 F.3d 1239 (11th Cir. 2020)...................................................................................... 7

United States v. Thomason, 9

40 F.3d 1166 (11th Cir. 2019)........................................................................................ 7

Virgina v. LeBlanc,

582 U.S. 91 (2017) ...................................................................................................... 1, 2

Statutes and Rules

28 U.S.C. §2255 .............................................................................................................. 8

§ 775.087, Fla. Stat ........................................................................................................ 2

Rule 3.850, Fla. R. Crim. P............................................................................................ 1

vi

STATEMENT OF THE CASE

In 1995, Petitioner Colby McCoggle was convicted as a juvenile of first-degree

murder and sentenced to life in prison with the possibility of parole. He was also

convicted of attempted robbery and for that crime received a consecutive sentence of

92.5 months in prison.

In 2015, McCoggle, through counsel, moved for postconviction relief pursuant

to Rule 3.850, Fla. R. Crim. P. (R. 18-36). While this motion was pending, the Florida

Supreme Court ruled that because the pre-2014 Florida parole system did not allow

for individualized consideration of an offender’s juvenile status, life with the

possibility of parole was the practical equivalent of life without parole and therefore

unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012). Atwell v. State, 197

So. 3d 1040 (Fla. 2016) (R. 18-36). The postconviction court granted resentencing in

an order dated August 15, 2016 (R. 48-49).

The parties prepared for resentencing by engaging in reciprocal discovery (R.

54-57, 189-197, 203). Defense counsel obtained orders granting funding for the

appointment of a forensic social worker, investigator and mental health expert (R.

103-133, 135-138, 198-202).

On July 12, 2018, before the trial court had completed resentencing, the

Florida Supreme Court ruled that Atwell was no longer good law in light of this

Court’s reasoning in Virgina v. LeBlanc, 582 U.S. 91 (2017). State v. Michel, 257 So.

3d 3 (Fla. 2018). The State then filed a memorandum in the postconviction court

contending that McCoggle was no longer entitled to resentencing (R. 141-151).

McCoggle responded that the order granting resentencing was final, that his right

1

against double jeopardy was violated without resentencing, and that the Florida

Supreme Court’s reliance on LeBlanc was misplaced (R. 163-176).

Subsequently, the state filed a sentencing memorandum conceding that

McCoggle should be resentenced but asserting that resentencing should be pursuant

to the statute in effect at the time of his offense which provided for a mandatory term

of life imprisonment with the possibility of parole (R. 208, 210).

The postconviction court entered a “Case Management Order” and indicated

that it needed to resentence McCoggle but believed it had no discretion in

resentencing given the applicable law and could only sentence McCoggle again to life

with the possibility of parole (R. 219-221). It asked the parties to state their positions

on this belief at a scheduled hearing (R. 221). At that hearing, on August 10, 2022,

McCoggle’s counsel asked if she could submit a brief. The court agreed but warned

that time would be an issue if there were to be a resentencing (R. 271-280). The court

indicated that it would be willing to hold another hearing (R. 280).

Defense counsel never filed a brief. Over nine months later, on May 18, 2024,

the postconviction entered a “Resentencing Order” in which it determined that it was

required to sentence Mr. McCoggle to the mandatory term of life imprisonment with

the possibility of parole called for by the controlling statute (R. 223-224). It entered

the sentence, imposing the 25-year review under § 775.087, Fla. Stat., and notating

that Mr. McCoggle was eligible for parole “NOW” (R. 226-228).

Mr. McCoggle appealed his sentence. The appellate court held that a full

resentencing hearing was not necessary where the trial judge did not have discretion

2

in the sentence (Pet.Appx.6). The Florida Supreme Court denied Mr. McCoggle’s

petition seeking certiorari review (Pet.Appx.8).

3

REASONS FOR DENYING THE PETITION

I.

This Case Presents a Fact-Specific Application of the Due Process Balancing Test

in Mathews v. Eldridge and Does not Require the Resolution of Any Conflict

Among the Lower Courts.

In his petition McCoggle identifies no reason, other than the belief that Florida

courts decided his case wrongly, for this Court to exercise its certiorari jurisdiction.

He identifies no conflict among federal courts of appeals and state supreme courts

that would be resolved as a result of this case. That is not surprising given that “due

process is flexible and calls for such procedural protection as the particular situation

demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)(quoting Morrissey v.

Brewer, 408 U.S. 471, 481 (1972)). This Court has directed the use of a circumstancespecific three-part balancing test to determine how much process is due in the

particular case. These factors are:

First, the private interest will be affected by the official action, second,

the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of addition or substitute

procedural safeguards; and finally, the Government interest, including

the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail, as the

question of how much is process due in a particular case.

Id. at 335. The result is that ““due process” unlike some legal rules is not a

technical conception with a fixed content unrelated to time, place and

circumstances.” Id. at 334(quoting Cafeteria Workers v. McElroy, 367 U.S. 886,

895 (1961)).

The circumstances in this case are unique. McCoggle happened to file

his state postconviction petition a year before the Supreme Court decided in

Atwell that its parole system made the sentence of his life with possibility of

4

parole unconstitutional under Miller. Two years later, the Florida Supreme

Court reversed course, but by then the postconviction court had already

ordered resentencing. Had the Florida Supreme Court receded from its earlier

decision right after the order granting resentencing, then the state could have

moved for rehearing or filed an appeal. Since the change in law did not occur

until after the timeframe for these corrective measures, the postconviction

order became final, and the court was required to resentence McCoggle. The

court then notified the State and McCoggle that it believed that it had no

discretion and thus did not need to hold an evidentiary hearing. The court not

only held a hearing so that the parties could contest the issue but also allowed

McCoggle to submit supplemental briefing. McCoggle delayed for months in

doing so, and eventually the court imposed the mandatory sentence, as it

indicated it would. This sequence of events is unusual and highly unlikely to

repeat.

II.

The Florida Postconviction Court Struck the Proper Balance Under Mathews v.

Eldridge.

A.

Due process did not require a full resentencing hearing in

addition to the notice and opportunity provided by the

resentencing court to explain why the mandatory sentence should

not be imposed.

The hallmark of due process is the recognition that “a person in jeopardy of

loss be given notice of the case against him and opportunity to meet it.” Mathews v.

Eldridge, 424 U.S. 319, 348 (1976)(quoting Joint Anti-Fascist Comm. v. McGrath, 341

U.S. 123, 171-172 (1951)). Due process does not necessarily require an evidentiary

5

hearing. Mathews, 424 U.S. at 349. Procedural due process may be tailored to give a

meaningful opportunity to present a case based on the circumstances. Id.

The purpose of notice and opportunity in the sentencing process where the

sentencing court has discretion, such as between imposing the death penalty or life

imprisonment, is to facilitate the adversarial process. Landford v. Idaho, 500 U.S.

110, 127 (1991). The resentencing court, though, had no discretion in the penalty in

this case because the death penalty could not be imposed on the juvenile offender; life

imprisonment with parole was the mandatory sentence.

The court properly tailored the notice and opportunity to be heard in this case

to the limited question of why it might not be bound to the mandatory language of

the controlling statute, as well as to the recent decisions of the Florida Supreme Court

allowing the imposition of a term of life imprisonment with parole on a juvenile

offender. The resentencing court entered an order informing the parties that it

believed that life imprisonment with parole was mandated by statute and precedent

and held a hearing for discussion on the matter. It reiterated its position at the

hearing on its order and agreed to allow defense counsel the opportunity to submit a

brief in lieu of argument. The court extended to McCoggle, through counsel, an

opportunity of more than nine months to submit a brief on the limited issue.

Due process is not fixed in what is required for adequate notice and opportunity

to be heard. FCC v. WJR, The Goodwill Station, 337 U.S. 265, 275 (1949). Written

submissions may satisfy due process. Id. at 276. For instance, when there are

challenges to the factual premise or misapplication of a rule, oral presentation may

6

be in order, but it may not be warranted where there is no factual dispute. See

Goldberg v. Kelly, 397 U.S. 254, 268 n. 15 (1970)(noting that the facts before the Court

did not call for it to address whether written submissions would provide adequate

due process where there is no dispute as to the applicability of the law to the facts).

Here, the resentencing court set and held a hearing to discuss whether it had

to apply the mandatory language of the sentencing statute. McCoggle’s asked to

submit argument in written form, and the court allowed for additional time to do this.

The Eleventh Circuit has held that a court allowing parties to make written

submissions on what the new sentence should be after convictions have been vacated

on collateral review affords reasonable notice and the opportunity to be heard. United

States v. Thomason, 940 F.3d 1166, 1171 (11th Cir. 2019)( relying on United States v.

Jules, 995 F.3d 1239, 1245 (11th Cir. 2020)). The court in Thomason explained that

the right to be present is triggered when the modification constitutes a critical stage

where “his presence would contribute to the fairness of the procedure.” Id. at 1172,

quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987).

McCoggle relies on Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306 (1950) to posit that the futility of a proceeding does not dictate whether due

process should be extended (Pet. 12). This Court in Mullane directed that notice must

be of the character that it actually informs a party of how to accomplish a challenge.

339 U.S. at 315. The resentencing court clearly noticed McCoggle that it desired input

on whether it had discretion in sentencing or was required to adhere to the language

in the controlling statute. McCoggle, who was represented by counsel, failed to avail

7

himself of the opportunity to object even though he had months to do so and even

though the court indicated that it would have a hearing on his brief.

Like the appellate court in this case, other courts have found that due process

does not require a full resentencing hearing on collateral review when the trial court

has no discretion in the sentencing decision. In U.S. v. Peña, 58 F.4th 613 (2d Cit.

2023), on the defendant’s postconviction motion pursuant to 28 U.S.C. §2255, the

government consented to the vacatur of three convictions. Peña, 58 F.4th at 617.

However, the district court determined that a resentencing hearing was not required.

Id. at 617. The circuit court held, “We also conclude that because resentencing would

have resulted in the same sentence of mandatory life imprisonment to which he was

originally sentenced, the district court did not abuse its discretion in declining to

engage in such a strictly ministerial de novo resentencing.” Id.at 615. It reasoned

that a district court may properly deny de novo resentencing when the exercise would

be an “empty formality.” Id. at 623.

The Sixth Circuit articulated that the facts of the case dictate whether

resentencing or correction of a sentence is more appropriate after the court has

vacated a conviction. United States v. Augustin, 16 F.4th 227, 232 (6th Cir. 2021). It

explained that resentencing is more appropriate when the court must exercise

significant discretion. Id. at 233. See also United States v. Nolley, 27 F.3d 80, 81-82

(4th Cir. 1994)(holding that resentencing did not require the presence of counsel

where the sentencing court was limited to adhering to the appellate court mandate);

Golden v. Newsome, 755 F.2d 1478, 1483 n. 9 (11th Cir. 1985)(noting that where the

8

precise sentence for a particular offense is mandatorily fixed by statute with no

discretion to be exercised by the court the absence of counsel at sentencing could not

possibly prejudice the defendant).

In a situation more akin to this case, the district court in Fatir v. Tomas, 106

F.Supp.2d 572 (D. Del. 2000) determined that the state supreme court did not act

contrarily to this Court’s holdings when it concluded that after the death sentence

was vacated a resentencing hearing was not required where the mandatory sentence

for first-degree murder was life imprisonment without parole. Fatir, 106 F.Supp.2d

at 585. It pointed out that the only possibility for the defendant at a hearing would

be to argue that there were discretionary exceptions or that the statute was

unconstitutional but that the sentencing court was not at liberty to make such

determinations since the state supreme court had recently rejected such possibilities.

Id.

The resentencing court was likewise bound to impose the constitutional

mandatory sentence. The applicable sentencing statute did not allow for discretion.

The resentencing court was also bound to follow the precedent of the Florida Supreme

Court holding that life imprisonment with the possibility of parole after 25 years was

not unconstitutional. See State v. Lott, 286 So. 2d 565, 566 (Fla. 1973)(observing that

the circuit court is bound to follow controlling precedent from the highest court).

Moreover, Florida Supreme Court opinions support the resentencing court’s

approach. The Florida Supreme Court in Anderson v. State, 267 So. 2d 8 (Fla. 1972),

at a time when the death penalty was eliminated from the statute prescribing the

9

penalty for murder in the first degree because of the decision in Furman v. Georgia,

408 U.S. 238 (1972), noted, “[t]he only sentence which could now be imposed upon

conviction of the crime of murder in the first degree is life imprisonment.” Anderson,

267 So. 2d at 9. It observed, “[t]he Court has no discretion.” Id. The court vacated the

defendants’ death sentences and ordered the imposition of life sentences without

returning the defendants to the trial court. Id. at 10. See also Huckaby v. State, 343

So. 2d 29, 34 (Fla. 1977)(“The sentence of death is vacated, however, and this case is

remanded to the circuit court with directions to enter a sentence of life imprisonment

on the sixth count.”).

McCoggle asserts that the resentencing court ignored State v. Cogdell, 27 Fla.

L. Weekly Supp. 690a (Fla. 4th Cir. Ct. 2019). That circuit court case, however, is not

binding precedent and did not address the issue presented in this case. In Cogdell,

the state appealed the denial of the motion to rescind the order for resentencing, and

the defendant moved to dismiss the appeal. While the appeal was pending, the

postconviction court held a full resentencing hearing and then entered the

resentencing decision after the appeal was dismissed. The circuit court never directly

addressed the mandatory nature of the sentence or what resentencing should entail.

B.

McCoggle did not avail himself of all the opportunities the trial

court gave him to be heard on whether the court had discretion in

sentencing.

McCoggle, through his legal representation, presented written argument in

response to the state’s initial memorandum contending that the sentence to be

imposed was mandatory. He also presented oral argument at the hearing the court

held on its case management order. At this hearing, McCoggle, asked the court for

10

opportunity to submit briefing on whether the mandatory sentence violated the

Eighth Amendment. The court granted McCoggle this opportunity and said that it

would hold another hearing after it received the briefs. McCoggle did not submit a

brief for nine months. McCoggle, through counsel, did not take advantage of the due

process afforded him within the many months he had to do so.

McCoggle claims he was prevented from making a claim that life imprisonment

with the possibility of parole after 25 years as applied to him violates the Eighth

Amendment (Pet. 9), but he waived the claim by not responding after the trial court

gave him ample opportunity to submit briefing. See Trushin v. State, 425 So. 2d 1126,

1129-30 (Fla. 1982)(holding that the constitutional application of a statute to a

particular set of facts is a matter that must be raised in the trial court).

In any event, he could not have argued at a resentencing hearing that the

parole review as applied to him was constitutionally inadequate. He had yet to receive

the designated parole review, and, therefore, had no experience in the parole review

system to challenge as deficient.

11

CONCLUSION

Based on the foregoing, Mr. McCoggle’s petition for writ of certiorari should be

denied.

Respectfully submitted,

JAMES UTHMEIER

ATTORNEY GENERAL

OF FLORIDA

Tallahassee, Florida

By:/s/ Celia Terenzio

CELIA TERENZIO

Bureau Chief, Criminal Appeals

By:/s/ Melynda L. Melear___

MELYNDA L. MELEAR

Senior Assistant Attorney General

Office of the Attorney General

State of Florida

1515 N. Flagler Drive, Suite 900

West Palm Beach, FL 33401

Tel: (561) 837-5016

crimappwpb@myfloridalegal.com

Counsel for Respondent, State of Florida

12