Opposition Brief — Bunkley v. Florida

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IN THE SUPREME COURT OF THE UNITED STATES

JRIGINAL . Se

MAR 21 2003

NO. 02-8636

CLERK

CLYDE TIMOTHY BUNKLEY, Petitioner

Vv.

STATE OF FLORIDA, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

ROBERT J. KRAUSS

Counsel of Record

Chief-Assistant Attorney General

Bureau Chief, Tampa Criminal Appeals

Florida Bar Number 0238538

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813) 287-7900

Fax (813)281-5500

RONALD NAPOLITANO

Assistant Attorney General

Florida Bar Number 0130175

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813) 287-7900

Fax (813)281-5500 ES eS See

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

As stated by Petitioner:

WHETHER THE PETITIONER WAS DENIED DUE PROCESS

OF LAW BY THE STATE OF FLORIDA’S REFUSAL TO

APPLY THE RECENTLY INTERPRETED FLORIDA SUPREME

COURT DEFINITION REGARDING THE “COMMON POCKET

KNIFE” EXCLUSION TO THE WEAPONS STATUTE, IN

DIRECT CONTRADICTION WITH THE UNITED STATES

SUPREME COURT’S RECENT DECISION IN FIORE V.

WHITE, 531 U.S. 225 (2001)

Respondent would restate the question as follows:

WHETHER THE COURT SHOULD REVIEW THE DECISION

OF THE FLORIDA SUPREME COURT, WHICH CONCLUDED

THAT PETITIONER’S DUE PROCESS RIGHTS WERE NOT

VIOLATED BY THAT £COURT’S 1997 RULING

DETERMINING THAT, THE “COMMON POCKET KNIFE

EXCEPTION” TO A FLORIDA WEAPONS STATUTE, DID

NOT APPLY TO PETITIONER’S 1987 CONVICTION,

ALLEGEDLY IN CONTRADICTION WITH FIORE V.

WHITE, 531 U.S. 225, 121 S.Ct. 712, 148

L.Ed.2d 629 (2001).

ii

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ........2

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REASONS WHY THE PETITION SHOULD BE DENIED .........4.4.44

(1) THE INTERPRETATION OF THE STATE CRIMINAL LAW IN QUESTION WAS AN

EVOLUTIONARY REFINEMENT IN THE LAW WHICH DID NOT VIOLATE DUE

PROCESS OF LAW AND IS NOT REQUIRED TO BE APPLIED

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(2) THE DECISION BELOW DOES NOT CONFLICT WITH THIS COURT’S HOLDING

IN FIORE V. WHITE, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d

629 (2001) BECAUSE IT WAS NOT A CLARIFICATION OF THE LAW AS TO

WHAT CONSTITUTED “COMMON” POCKETKNIFE AT THE DATE OF

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(3) THE DECISION OF THE FLORIDA SUPREME COURT IN BUNKLEY IS NOT OF

COMPELLING IMPORTANCE TO JUSTIFY REVIEW BY THIS COURT. . 15

(4) THE DECISION OF THE FLORIDA SUPREME COURT WAS CORRECT. . 16

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iii

TABLE OF CITED AUTHORITIES

CASES

Bunkley v. State,

833 So. 2d 739 (Fla. 2002)

Estelle v. McGuire,

502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)

Fiore v. White,

149 F.3d 221 (C.A.3 (Pa.) 1998), reversed

on other grounds, 531.U.S. 225, 121 S.Ct.

712, 148 L.Ed.2d 629 (2001) » 6

Fiore v. White,

531 U.S. 225, 121 §.Ct. 712,

148 L.Ed.2d 629 (2001)

J.D.L.R. v. State,

701 So. 2d 626 (Fla. 3d DCA 1997)

L.B. v. State,

700 So. 2d 370 (Fla. 1997) ....+. ++ ++ « S, 6,

Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 43 S.Ct. 422, 67 L.Ed.2d 712 (1923)

Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70,°75 S.Ct. 614, 99 L.Ed. 897 (1955)

State v. Family Bank of Hallandale,

623 So. 2d 474 (Fla. 1993)

State v. Klayman,

27 Fla. L. Weekly S951 at S952,

835 So. 2d 248 (Fla. Nov. 14, 2002)

FLORIDA STATUTES

F.S. 790,001(13), Fla. Stat.

F.S. 790.0013, Fla. Stat. (1985)

F.S. 810.02(1)(b), Fla. Stat. (1985)

iv

1-5, 8-11,

13-16

10

16

15

14

14

14

UNITED STATES CONSTITUTION

! NO. 02-8636

Title 28, United States Code, Section 1257(a) ......... 2

IN THE SUPREME COURT OF THE UNITED STATES

OTHER AUTHORITY

Rule 10 Rules of the Supreme Court ............ 2, 15 CLYDE TIMOTHY BUNKLEY, Petitioner

Vv.

STATE OF FLORIDA, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF

FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

The respondent, State of Florida, by and through the

undersigned assistant attorneys general, respectfully requests that

this Court deny the petition for writ of certiorari seeking review

of the decision of the Florida Supreme Court in this case.

OPINION BELOW

The opinion of the Florida Supreme Court (App, infra, A) is

reported at Bunkley v. State, 833 So. 2d 739 (Fla. 2002)

JURISDICTION

The Florida Supreme Court rendered its decision on November

21, 2002 and a mandate was entered on December 21, 2002.

+? wa" - “ai

Petitioner asserts a deprivation of the rights guaranteed by the (CR349-50)

Constitution of the United States. Title 28, United States Code, Petitioner testified at his trial regarding the nature of the

Section 1257(a) and Rule 10.1(c) Rules of the Supreme Court confer knife:

certiorari jurisdiction in this Court to review such claims. Q. And I’m not very familiar, but is a

roofing shingle a tough piece of material to

cut through?

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED A. Yes, sir, it is.

Respondent, State of Florida, accepts as accurate Petitioner’s Q. And do you need a pretty good pocketknife

to be able to cut through those materials?

statement regarding the applicable provisions of law involved.

A. That was my purpose for having the knife.

It’s a little bit larger than a natural

pocketknife, and that was the reason for it.

STATEMENT OF THE CASE

(CR438)

The relevant facts of the case were described in the Florida

The question of whether petitioner’s conviction violates due

Supreme Court’s opinion in Bunkley v. State, 833 So.2d 739, 740-741

process based upon the decision in Fiore v. White, 531 U.S. 225

(Fla. 2002).

(2001), was not raised by the parties at any time. Instead, it was

In the trial transcript, as attached to petitioner’s motion

“mentioned” for the first time by Justice Pariente of the Florida

for post-conviction relief, the knife in question, which had been

Supreme Court at the time of oral argument and discussed by the

admitted into evidence and was “published” to the jury, was

Florida Supreme Court in their written opinion. The majority of

described as follows by the arresting police officer:

the Florida Supreme held that Fiore did not apply in the present

Okay. It’s very simple. The blade opens like

this (indicating). This is the sharp side and case. Bunkley, supra at 744 fn.12. The majority also held that

to close the blade -- it’s a locking knife.

Once it opens, unless you push down hard on there was no violation of due process reasoning:

this button, the blade will not close.

The Legislature, at the turn of the

It’s a locked blade, which makes it a century, ceded discretion to the courts by

dangerous weapon for the simple fact that an employing the phrases “dangerous weapon” and

average pocketknife, it you stick something “common pocketknife“ in the burglary and

with it and you’re not very good at what you weapons statute, and these phrases clearly

do, the blade will close. The pocket knife required judicial construction in order to

has that safety feature, that it will close. | provide a meaningful basis for imposing

This blade will not close unless you push down sanctions. This Court’s decision in L.B.,

very hard on this spring. which was issued in 1997, was the culmination

Bunkley,

law questions.

531 U.S. 225, 228-229, 121 S.Ct. 712,

of a century-long evolutionary process.

Although some courts during that period may

have interpreted “common pocketknife” contrary

to the holding in L.B., each court

nevertheless sought to comply with the

legislative intent and to rule in harmony with

the law at it was interpreted at that point in

time. A key consideration is that none of the

courts attempted to impose criminal sanctions

without statutory authority -- i.e., none

ruled in contravention of legislative intent.

Thus, none of the convictions imposed pursuant

to section 790.001(13) violated the Due

Process Clause in this regard.

supra at 745.

REASONS WHY THE PETITION SHOULD BE DENIED

(1) THE INTERPRETATION OF THE STATE CRIMINAL

LAW IN QUESTION WAS AN EVOLUTIONARY REFINEMENT

IN THE LAW WHICH DID NOT VIOLATE DUE PROCESS

OF LAW AND IS NOT REQUIRED TO BE APPLIED

RETROACTIVELY.

In Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct.

federal courts to re-examine state-court determinations

whether a certain conviction violates the Constitution,

of that crime beyond a reasonable doubt.

Bunkley was convicted of armed burglary because

475, 116

L.Ed.2d 385 (1991) this Court held that it is not the province of

on state

Rather, the federal courts are limited to deciding

laws, or

treaties of the United States. This Court stated in Fiore v.

148 L.Ed.2d 629 (2001)

that the Due Process Clause of the Fourteenth Amendment forbids a

state to convict a person of a crime without proving the elements

he had a

pocketknife with a blade length of 2% to 3 inches in his trousers

at the time he broke into a closed, unoccupied Western Sizzlin

Restaurant. Bunkley v. State, 833 So.2d 739, 741 (Fla. 2002). In

1987, when Bunkley committed his_ crime, Florida Statute

810.02(1) (b) (1985) provided that if a defendant is armed with a

dangerous weapon at the time of the commission of a burglary he is

subject to imprisonment by a term of years not exceeding life.

In 1987, the law did not exempt or exclude from the statute,

a pocketknife with a blade four inches in length or less as being

a “common pocketknife”. Therefore the fact that the pocketknife in

question had a blade of less then four inches did not include that

knife within the statutory exception to the definition of “weapon”

as found in section 790.001(13). Im fact, neither the statutes nor

case law defined the term “common pocketknife”; rather what was

constituted a “common” pocketknife was left to the jury to

determine and this did not make the term unconstitutionally vague.

As the Florida Supreme Court pointed out in L.B. v. State, 700

So. 2d 370, at 372 (Fla. 1997):

...We believe that the term “common

pocketknife” as contained in the statute, does

provide persons of ordinary intelligence with

fair notice as to what constitutes forbidden

conduct.

The legislature’s failure to define the

term “common pocketknife” in section

790.001(13) does not render that term

unconstitutionally vague....Moreover, a court

may refer to a dictionary to ascertain the

plain and ordinary meaning which the

legislature intended to ascribe to a term.

(citation omitted)

To that end, we note that Webster’s

defines “common” as: “known to the community;

occurring or appearing frequently esp. in the

ordinary course of events; of, relating to, or

typical of the many rather than the few.”

Webster’s defines “pocketknife” as “a knife

with a blade folding into the handle to fit it

for being carried in the pocket.” From these

definitions, we can infer that the

legislature’s intended definition of “common

pocketknife” was: “A type of knife occurring

frequently in the community which has a blade

that folds into the handle and that can be

carried in one’s pocket.” We believe that in

the vast majority of cases, it will be evident

to citizens and fact-finders whether one’s

pocketknife is a “common” pocketknife under

any intended definition of that term. We need

not be concerned with odd scenarios construing

smaller but more expensive knives as

“uncommon.” As the United States Supreme Court

has observed, “[sJuch straining to inject

doubt as to the meaning of words where no

goubt would be felt by the normal reader is

not required by the ‘void for vagueness’

doctrine, and we will not indulge in it.”

United States v. Powell, 423 U.S. 87, 93, 96

S.Ct. 316, 320, 46 L.Ed.2d 228 (1975)

L.B., supra at 372. (bold emphasis added)

It was only 1997, ten years after petitioner’s conviction was

final, that the Florida Supreme Court, relying in part on a Florida

Attorney General 1951 opinion, concluded that a pocketknife with a

blade of four inches in length or less was a “common pocket knife”.

L.B. v. State, supra.’

1 prior to that time, the attorney general’s opinion, though

persuasive, was not binding on the courts. State v. Family Bank of

Hallandale, 623 So. 2d 474, at 478 (Fla. 1993) ("Although an

opinion of the Attorney General is not binding on a court, it is

6

At the time of the petitioner’s conviction in 1987, evidence

and testimony produced at the petitioner's 1987 trial indicated

that the knife in question was not a “common” pocketknife.”

trial transcript,

conviction relief, reveals that the knife in question, which had

been admitted into evidence and was “publ ished” to the jury, was

described

(CR349-50)

Petitioner testified at his trial regarding the nature of the

knife:

entitled to careful consideration and generally should be regarded

as highly

as follows by the arresting police officer:

Okay. It’s very simple. The blade opens like

this (indicating). This is the sharp side and

to close the blade -- it’s a locking knife.

Once it opens, unless you push down hard on

this button, the blade will not close.

It’s a locked blade, which makes it a

dangerous weapon for the simple fact that an

average pocketknife, it you stick something

with it and you’re not very good at what you

do, the blade will close. The pocket knife

has that safety feature, that it will close.

This blade will not close unless you push down

very hard on this spring.

Q. And I’m not very familiar, but is a

roofing shingle a tough piece of material to

cut through?

A. Yes, sir, it is.

Q. And do you need a pretty good pocketknife

to be able to cut through those materials?

persuasive. (citation omitted) .”).

as attached to petitioner’s motion for post-

A. That was my purpose for having the knife.

It’s a little bit larger than a natural

pocketknife, and that was the reason for it.

(CR438)

In the instant case, the Florida Supreme Court ruled that

that L.B. v. State, supra, “was an ‘evolutionary refinement’ in the

law, i.e., it was a conventional change that ‘affords new or

different guidelines’ for the court’s in applying the law.”

Bunkley, supra at 745.

Even after the decision in Bunkley, Third District Court of

Appeal, in J.D.L.R. v. State, 701 So. 2d 626 (Fla. 3d DCA 1997)

ruled that the fact that a pocketknife has a blade length less that

four inches in length does not mean that it is a “common”

pocketknife in all cases but that you must consider other

characteristics of the knife:

We agree with the trial judge that J.D.L.R’s

knife does not fall within the Supreme Court’s

definition of “common. pocketknife”--“a type of

knife occurring frequently in the community

which has a blade that folds into the handle

and can be carried in one’s pocket.” Id. It

is, indeed, a “pocketknife”, but it is not a

“common” pocketknife. As the trial judge

pointed out, its distinctive features are not

those characteristic of the typical, ordinary,

frequently-occurring pocketknife, but rather

characteristic of a weapon.

J.D.L.R., id. at 627.

The decision, in Bunkley, although it is a new interpretation

of a state criminal statute, is not entitled to retroactive

application because it did not “interpret” or “clarify” the

definition of the term “common pocketknife” as _ it existed at the

time of the petitioner’s conviction. As the Florida Supreme Court

explained in State v. Klayman, 27 Fla. L. Weekly S951 at S952, 835

So. 2d 248 (Fla. Nov. 14, 2002):

It thus is this clear under Fiore that, if a

decision of a state’s highest court is a

clarification in the law, due process

considerations dictate that the decision be

applied in all cases, whether pending or

final, that were decided under the same

version (i.e. the clarified version) of

applicable law. Otherwise, courts may be

imposing criminal sanctions for conduct that

was not proscribed by the state legislature.

As the court explained in Bunkley, supra at 745:

...This Court’s decision in L.B., which was

issued in 1997, was the culmination of a

century-long evolutionary process. Although

some courts during that period may have

interpreted “common pocketknife” contrary to

the holding in L.B., each court nevertheless

sought to comply with legislative intent and

to rule in harmony with the law as it was

interpreted at that point in time. A key

consideration is that none of the courts

attempted to impose criminal sanctions without

statutory authority--i.e., mone ruled in_

contravention of legislative intent. Thus,

none of the convictions imposed pursuant to

section 790.001(13) violated the Due Process

Clause in this regard.

Furthermore, as explained earlier, even though pocketknife has

a blade of length that is less than four inches does not mean that

it is a “common” pocketknife but that the jury can consider other

characteristics which are not those of an ordinary, frequently-

occurring pocketknife.?’

The decision in Bunkley is strictly a state court

determination of a state law question. As the Court of Appeals for

the Third Circuit stated in Fiore v. White, 149 F.3d 221, 224-225

(C.A.3 (Pa.) 1998), reversed on other grounds, 531 U.S. 225, 121

S.Ct. 712, 148 L.Ed.2d 629 (2001):

...{s]tate courts are under no constitutional

obligation to apply their own criminal

decisions retroactively. Wainwright v. Stone,

414 U.S. 21, 23-24, 94 S.Ct. 190, 38 L.Ed.2d

179 (1973). Thus, just as the Supreme Court

has fashioned retroactivity rules for the

federal courts based on principles of judicial

integrity, fairness, and finality, see Teague

v. Lane, 489 U.S. 288, 304-310, 109 S.Ct.

1060, 103 L.Ed.2d 334 (1989), the state courts

are free to adopt their own retroactivity

rules after independent consideration of these

and other relevant principles.

Accordingly, this Court should decline to exercise its certiorari

‘ jurisdiction in this case because the matter is strictly an issue

of interpretation of state law that does not involve any due

process violation.

See J.D.L.R., supra, and, as citations from the trial

record indicate, there was testimony that the knife in question was

not a “common” pocketknife.

2

10

at

(2) THE DECISION BELOW DOES NOT CONFLICT WITH

THIS COURT’S HOLDING IN FIORE V. WHITE, 531

U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629

(2001) BECAUSE IT WAS NOT A CLARIFICATION OF

THE LAW AS TO WHAT CONSTITUTED “COMMON”

POCKETKNIFE AT THE DATE OF PETITIONER’S

CONVICTION.

There is no conflict between the Florida Supreme Court’s

opinion in Bunkley, supra, and this Court’s opinion in Fiore,

supra, because the cases are clearly distinguishable factually and

legally. Fiore was charged with violating a Pennsylvania statute

prohibiting the operation of a hazardous waste facility without a

permit. Fiore, 531 U.S. at 226. The prosecution conceded that

Fiore had a permit, but argued that he had deviated so dramatically

from the permit’s terms that he nonetheless violated the statute;

his convictions were affirmed on appeal and the Pennsylvania

Supreme Court declined to review. Fiore, 531 U.S. at 227. The

state supreme court thereafter reviewed the conviction of Fiore’s

co-defendant, David Scarpone. As this Court pointed out:

The Supreme court reversed Scarpone’s

conviction on the ground that the statute

meant what it said: The statute made it

unlawful to operate a facility without a

permit; one who deviated from his permit’s

terms was not a person without a permit;

hence, a person who deviated from his permit’s

terms did not violate the statute.

Fiore, 531 U.S. at 227.

Fiore sought federal habeas corpus relief and the Third

Circuit ruled that the state supreme court had announced a new rule

of law, inapplicable to Fiore’s already final conviction, and that

11

the state courts were under no federal constitutional obligation to

apply their decisions retroactively. This Court granted certiorari

to determine whether Fiore’s conviction violated due process.

This Court was uncertain whether the Pennsylvania Supreme

Court’s decision represented a change in state law and asked that

court if the interpretation of the state law set forth in the co-

defendant’s Scarpoiie’s case “state[s] the correct interpretation of

the law in Pennsylvania at the date Fiore’s conviction became

final.” Fiore, 531 U.S. at 228 (emphasis added). After the state

supreme court advised this Court that its decision in Scarpone’s

case did not announce a new rule of law but “mereiy clarified the

plain language of the statute” and “furnishes the proper statement

of the law at the date of Fiore’s conviction”, Fiore, 531 U.S. at

228 (emphasis added), this Court ruled that because Scarpone’s case

was not new law, Fiore’s case preserited no issue of retroactivity

and the question was simply “whether Pennsylvania can, consistently

with the Federal Due Process Clause, convict Fiore for conduct that

its criminal statute, as interpreted, does not prohibit.” Fiore,

531 U.S. 228.

This Court then reasoned :

This Court's precedents make clear that

Fiore's conviction and continued incarceration

on this charge violate 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. (citations omitted). In this case,

12

failure to possess a permit is a basic element

of the crime of which Fiore was convicted...

And the parties agree that the Commonwealth

presented no evidence whatsoever to prove that

basic element. To the contrary, the

Commonwealth, conceding that Fiore did possess

a permit...necessarily concedes that it did

not prove he failed to possess one.

Fiore, 531 U.S. at 228-229

Fiore was entitled to due process relief because even though

the statute in question only forbad operating a hazardous waste

facility without a permit, he was convicted even though he had a

permit based upon the argument that he had deviated so dramatically

from the permit’s terms that this constituted a violation of the

statute. Because the Pennsylvania Supreme Court ruled that the

statute meant what it said, that the statute only made it unlawful

to operate a facility without a permit and that one who deviates

from the permit’s terms is not a person without a permit and hence

such a person did not violate the statute, Fiore was denied due

process because the state failed to prove that he did not have a

permit and yet still convicted him.

In the instant case, the Florida Supreme Court ruled that

that L.B. v. State, 700 So. 2d 370 (Fla. 1997) “was an

‘evolutionary refinement’ in the law, i.e., it was a conventional

change that ‘affords new or different guidelines’ for the court’s

in applying the law.” Bunkley, supra at 745. The court in L.B.

was not, to paraphrase the language used by this court in Fiore,

“clarifying the common pocketknife exception to the plain language

13

of F.S. 790.0013, Fla. Stat. (1985) as it existed at the time of

Bunkiey’s conviction.” See: State v. Klayman, 27 Fla. L. Weekly

$951, at $952, 835 So. 2d 248 (Fla. Nov. 14, 2002).

Unlike Fiore where the state court convicted the defendant

without statutory authority, at the time of petitioner’s 1987

conviction, there was no blade length limit determining what

constituted a “common” pocketknife; therefore, finding the

petitioner guilty of armed burglary with a knife that had a blade

length less than four inches did not result in a conviction without

legislative authority. As the court pointed in Bunkley, supra at

745:

The Legislature, at the turn of the

century, ceded discretion to the courts by

employing the phrases “dangerous weapon” and

“common pocketknife” in the burglary and

weapons statute, and these phrases clearly

required judicial construction in order to

provide a meaningful basis for imposing

sanctions. This Court’s decision in L.B.,

which was issued in 1997, was the culmination

of a century-long evolutionary process.

- Although some courts during that period may

have interpreted “common pocketknife” contrary

to the holding in UL.B., each court

nevertheless sought to comply with the

legislative intent and to rule in harmony with

the law at it was interpreted at that point in

time. A key consideration is that none of the

courts attempted to impose criminal sanctions

without statutory authority -- i.e., none

ruled in contravention of legislative intent.

Thus, none of the convictions imposed pursuant

to section 790.001(13) violated the Due

Process Clause in this regard.

Even today the fact that the blade of the pocketknife in

14

question ae less than four inches in length does not automatically

mean that it must be found to be a “common” pocketknife even after

the decision in L.B.’

Since there is no conflict between the decision of the Florida

Supreme Court in Bunkley and this Court in Fiore, this Court should

deny the petition for writ of certiorari.

(3) THE DECISION OF THE FLORIDA SUPREME COURT

IN BUNKLEY IS NOT OF COMPELLING IMPORTANCE TO

JUSTIFY REVIEW BY THIS COURT.

United States Supreme Court Rule 10 provides in pertinent part

that, “A petition for writ of certiorari will be granted for only

compelling reasons.” The former rule read, “A petition for writ of

certiorari will be granted only when there exe special and

important reasons therefore.” In interpreting this rule, this

Court in Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70,

74, 75 S.Ct. 614, 99 L.Ed. 897 (1955) has stated that:

A federal question raised by a petitioner

may be ‘of substance' in the sense that,

abstractly considered, it may present an

intellectually interesting and solid problen.

But this Court does not sit to satisfy a

scholarly interest in such issues. Nor does

it sit for the benefit of the particular

litigants. (citations omitted) ‘Special and

important reasons' imply a reach to a problem

beyond the academic or the episodic. This is

* The trial transcript, as attached to petitioner’s motion

for post-conviction relief, reflects that there was testimony

indicating that the knife in question, which had been admitted into

evidence and was “published” to the jury, was not a “common”

pocketknife.

15

especially true where the issues involved

reach constitutional dimensions....

See also Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387,

393, 43 S.Ct. 422, 67 L.Ed.2d 712 (1923) (" ...fiJt is very

important that we be consistent in not granting the writ of

certiorari except in cases involving principles the settlement of

which is of importance to the public, as distinguished from that of

the parties”).

Since the case for which certiorari review does not

affect the public at large or many defendants presently

incarcerated or that may be incarcerated in the future for the

offense of armed burglary,‘ the case is not of sufficient

compelling importance to justify certiorari review.

(4) THE DECISION OF THE FLORIDA SUPREME COURT

WAS CORRECT.

The decision of the court in Bunkley was correctly decided.

The decision of this Court in Fiore does not conflict with Bunkley

because as stated earlier that case is both factually and legally

distinguishable.

* The decision in Bunkley will not affect many defendants

currently incarcerated for armed burglary nor will it effect future

defendants charged with armed burglary. As the court noted in

L.B., supra at 372 “we believe that: in the vast majority of cases,

it will be evident to citizens and fact-finders whether one’s

pocketknife is a ‘common’ pocketknife under any intended definition

of that term.” Furthermore, as stated earlier, even if the blade

length is less than four inches in length does not mean that a

pocketknife in question will always be determined to be a “common”

pocketknife. See J.D.L.R. v. State, supra.

16

es

CONCLUSION

For the reasons set forth above herein, the petition for writ

of certiorari should be denied.

Respectfully submitted,

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

Counsel of Record

Chief-Assistant Attorney General

Bureau Chief, Tampa Criminal Appeals

Florida Bar Number 0238538

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813) 287-7900

Fax (813)281-5500

RONALD

Assistant Attorney General

Florida Bar Number 0130175

COUNSEL FOR RESPONDENT

17

NO. 02-8636

NO. 02-8636

IN THE SUPREME COURT OF THE UNITED STATES

IN THE SUPREME COURT OF THE UNITED STATES CLYDE TIMOTHY BUNKLEY, Petitioner

Vv.

STATE OF FLORIDA, Respondent

CLYDE TIMOTHY BUNKLEY, Petitioner

vs AFFIDAVIT OF MAILING OPPOSITION TO CERTIORARI

STATE OF FLORIDA, Respondent

Robert J. Krauss, being duly sworn, deposes and says:

I am a member of the Bar of the Supreme Court of the United

States.

CERTIFICATE OF SERVICE On March 21, 2003, at approximately 4:00 p.m., I deposited at

the United States Postal Box, U.S. Regular Mail, a package addressed

I, Robert J. Krauss, a pomber of the Bar of this Court, hereby to the Clerk of the Supreme Court of the United States, postage

certify that on this Z/ day of March, 2003, a copy of the prepaid, containing one original and ten copies of the brief in

Respondent ‘s Brief in Opposition in the above entitled case was opposition to petition for a writ of certiorari in the above

furnished by United States mail, postage prepaid, to Clyde T. entitled case.

Bunkley, pro se Petitioner, DOC # 051390, Avon Park Correctional

Institution, P.O. Box 1100, Avon Park, FL 33826. I further certify :

that all parties required to be served have been served. ROBERT Jj/ KRAUSS

Counsel of Record

Chief-Assistant Attorney General

Kad / Bureau Chief, Tampa Criminal Appeals

= Florida Bar Number 0238538

ROBERT J // KRAUSS Concourse Center 4

Counsel of Record 3507 E. Frontage Road, Suite 200

Chief-Assistant Attorney General ) Tampa, Florida 33607-7013

Bureau Chief, Tampa Criminal Appeals (813) 287-7900

Florida Bar Number 0238538 Fax (813)281-5500

Concourse Center 4

3507 E. Frontage Road, Suite 200 COUNSEL FOR RESPONDENT

Tampa, Florida 33607-7013

(813) 287-7900 Ss & Subscribed before me,

Fax (813) 281-5500 vA '

COUNSEL FOR RESPONDENT NOTARY PUBLIC, State of Florida

(commission expiration)

Personally known by me

Produced Identification

(check one)

Type of Identification Produced:

18