Petition for Writ of Certiorari — Florida v. Potts

FILED

AUG Ll (ggg

CLERK

i] & -1:96 | | Supreme Court, USS

SUPREME COURT OF THE UNITED

CASE NO.

October 1987 Term

STATE OF FLORIDA,

Petitioner,

Vv.

WILLIE POTTS, Jr.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

AND APPENDIX

ROBERT A. BUTTERWORTH

Florida Attorney General

JOHN W. TIEDEMANN

Assistant Attorney General

111 Georgia Avenue - Suite 204

West Palm Beach, FL 33401

Telephone (407) 837-5062

COUNSEL FOR PETITIONER

<7 i

QUESTION PRESENTED FOR REVIEW

DOES A STATE STATUTORY SCHEME PROVIDING

ENHANCED PENALTIES FOR INDICTEES WHO

CARRY CONCEALED FIREARMS DENY SUCH IN-

DICTEES THEIR FEDERAL CONSTITUTIONAL

RIGHT TO DUE PROCESS OF LAW?

o i

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

STATEMENT OF THE CASE AND FACTS

REASONS FOR GRANTING THE WRIT

ISSUE

CONCLUSION

APPENDIX A-1

- Al7

- ili -

TABLE OF AUTHORITIES

Page

Michigan v. Long, 9

4 U.S. 32, 1037-1044 (1983)

State v. Potts, a

353 (Fla., Jume 2, 9, 11

1988), affirmin Potts v.

State, 13 F.L.W. 79 (Fla.

4th DCA, December 30, 1987)

United States v. Craven, S & 2

478 F.2d 1329, 1338-1340

(6th Cir. 1973), cert.

denied, 414 U.S. 366 (1973)

United States v. Snell, 8

- 4 (5th Cir.

1975), cert. denied, 423

U.S. 825 (1975)

United States v. Thoresen, 8

428 F.2d 654, 658-662 (9th

Cir. 1970)

STATUTE

18 U. $.C. §922(n) 8

28 U.S.C. §1257(3) 2

UNITED STATES CONSTITUTION

Amendments V and XIV vs 2

- iv -

OTHER AUTHORITIES

Rule 17.1(b)

Rules of the Supreme Court

of the United States

§790.01(2)

§790.07(2)

— i

OPINIONS BELOW

Potts v. State,

-L.W. 78 (Fla. 4th DCA Decem-

ber 30, 1987), affirmed sub.nom.

State v. Potts, 13 F.L.W. 353

(Fla. June 2, 1988)

» 2

JURISDICTIONAL STATEMENT

Petitioner seeks to invoke the dis-

cretionary jurisdiction of this Court to

review the decision of State v. Potts,

13 F.L.W. 353 (Fla., June 2, 1988) af-

firming Potts v. State, 13 F.L.W. 79

(Fla. 4th DCA, December 30, 1987), pur-

suant to 28 U.S.C. §1257(3).)

i Please see Appendix I for the text of

these decisions.

= =

CONSTITUTIONAL PROVISION

AND REGULATIONS INVOLVED

Amendments V and XIV (Section 1),

Constitution of the United States.

Rule 17.1(b), Rules of the

Supreme Court of the United States.

§§790.01(2) and 790.07(2), Fla. Stat.

2 Please see Appendix II for the texts

of these authorities.

she

STATEMENT OF THE CASE AND FACTS

For purposes of framing the narrow

legal issue presented in its petition

for writ of certiorari, petitioner, the

State of Florida, adopts the decision

under review, State v. Potts, 13 F.L.W.

353 (Fla., June 2, 1988), affirming

Potts v. State, 17 Fla. 78 (Fla. 4th DCA

December 30, 1987), as its “statement of

the case and facts.»

For the convenience of the Court,

the State would summarize that the deci-

sion below held that §790.07(2), Fla.

Stat., by providing for enhanced penal-

ties for indictees as opposed to others

who carry concealed firearms, see

§790.01(2), Fla. Stat., violated respon-

dent Willie Potts, Jr.'s federal consti-

3

References to the two volume record

on appeal to be transmitted to this

Court if certiorari is granted will be

designated "(R: )."

» 8 «

tutional right to substantive due pro-

cess of law as guaranteed by Amendments

V and XIV, Constitution of the United

States.

|

-

REASONS FOR GRANTING THE WRIT

State v. Potts conflicts with

United States v. Craven, infra, on the

question of whether the federal due pro-

cess clause permits the imposition of

legislatively enhanced punishments

against indictees for firearms viola-

tions.

« Rh

ISSUE

DOES A STATE STATUTORY SCHEME

PROVIDING ENHANCED PENALTIES

FOR INDICTEES WHO CARRY CON-

CEALED FIREARMS DENY SUCH IN-

DICTEES THEIR FEDERAL CONSTI-

TUTIONAL RIGHT TO DUE PROCESS

OF LAW?

DISCUSSION

In State v. Potts, the Florida Su-

preme Court affirmed the decision of the

Florida Fourth District Court of Appeal

in Potts v. State, that §790.07(2), by pro-

viding for enhanced penalties for in-

dictees as opposed to others who carry

concealed firearms, see §790.01(2), vio-

lated respondent's federal constitution-

al right to substantive due process of

law. The Florida court found that co-

vertly armed indictees are not necessar-

ily more dangerous than covertly armed

nonindictees, and hence that aggravated

penalties for indictees bore no rational

« Dee

relationship to the legitimate state in-

terest of protecting the public safety.

18 U.S.C. §922(n) provides that "it

shall be unlawful for any person who is

under indictment" to ship or receive

firearms beyond state lines. The federal

appellate courts have routinely upheld

statutes such as this against due pro-

cess challenges identical to that ten-

dered by respondent below. See, e.g.,

United States v. Craven, 478 F.2d 1329,

1338-1340 (6th Cir. 1973), cert. denied,

414 U.S. 866 (1973); United States v.

Snell, 508 F.2d 21, 23-24 (5th Cir.

1975), cert. denied, 423 U.S. 825 (1975);

United States v. Thoresen, 428 F.2d 654,

658-662 (9th Cir. 1970). Consider the

following example:

It was eminently reasonable

for Congress to conclude that

the indictment of an individ-

ual for a crime punishable by

—

imprisonment for a term ex-

ceeding one vear is so often

indicative of a propensity

for violence that the indict-

ment classification of 18

U.S.C. §922..was justified in

the public interest.

United States v. Craven, 478 F.2d 1329,

1339.

Respondent submits that the Florida

Supreme Court's decision in State v.

Potts conflicts with the Sixth Circuit's

decision in United States v. Craven on

the federal constitutional question of

whether enhanced sanctions may be im-

posed upon indictees for firearm viola-

tions under the due process clause.

This conflict vests this Honorable

Court with jurisdiction to review

State v. Potts. Rule 17.1(b), Rules of

the Supreme Court of the United States;

see generally, Michigan v. Long, 463

U.S. 1032, 1037-1044 (1983). If the

ae ee

Court is not disposed to grant plenary

review, a summary reversal on grounds

that the Florida Supreme Court failed to

properly apply the aforediscussed feder-

al precedents, with or without a remand

to that court, would certainly be ac-

ceptable to the State.

=~

CONCLUSION

WHEREFORE petitioner, the State of

Florida, respectfully submits that this

Honorable Court should GRANT its peti-

tion for writ of certiorari and REVERSE

the Florida Supreme Court's decision in

State v. Potts, with directions that the

adjudication and sentence entered by the

trial judge be REINSTATED.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

Tallahassee, Florida 32399

JOHN W. TIEDEMANN

Assistant Attorney General

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

Telephone (407) 837-5062

Counsel for Petitioner

APPENDIX

A-2

INDEX TO APPENDIX

Page

Appendix I: Copy of the Decision A-3

under Review, State v. Potts,

13 F.L.W. 353 (Filia. June 2, 1988),

affirming Potts v. State, 13

F.L.W. 79 (Fla. 4th DCA, December

30, 1987)

Appendix II: Copy of the Constitu- A-14

tional Provisiors and Regulations

Involved

A-3

APPENDIX I

Copy of the Decision under

Review, State v. Potts,

13 F.L.W. 353 (Fla. June 2, 1988),

affirming Potts v. State,

13 F.L.W. 78 (Fla. 4th DCA,

December 30, 1987)

A-4

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA,

Appellant,

Vv.

WILLIE POTTS, JR.,

Appellee.

Robert A. Butterworth, Attorney General,

Lee Rosenthal and John W. Tiedemann,

Assistant Attorneys General, West Palm

Beach, Florida, for appellant.

Richard L. Jorandby, Public Defender,

and Ellen Morris, Assistant Public

Defender, Fifteenth Judicial Circuit,

West Palm Beach, Florida, for appellee.

(June 2, 1988)

A-5

(BARKETT, J.) We have on appeal Potts

v. State, No. 4-86-1073 (Fla. 4th DCA

1987), which declared unconstitutional

a portion of section 790.07(2), Florida

Statutes (1985). Jurisdiction is manda-

tory. Art. V, §3(b)(1), Fla. Const.

Having reviewed the entire record

in this case, we have determined that

the district court's decision below is

an eminently correct statement of the

law. The state through its criminal

process may not penalize someone merely

for the status of being under indictment

or otherwise accused of a crime, as it

has attempted to do here. We therefore

approve and adopt the district court's

opinion in its entirety as our own.

Section 790.07(2), Florida Statutes

(1985), is facially unconstitutional to

the extent it purports to penalize a

A-6

person who is under indictment with

greater severity than one who is accused

of no crime.

It is so ordered. (McDONALD, C.J.,

and OVERTON, EHRLICH, SHAW, GRIMES and

KOGAN, JJ., Concur.)

A-7

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FOURTH DISTRICT

WILLIE POTTS, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Richard L. Jorandby, Public Defender,

and Charles D. Peters, Assistant Public

Defender, West Palm Beach, Florida, for

appellant.

Robert A. Butterworth, Attorney General,

Tallahassee, and Lee Rosenthal,

Assistant Attorney General, West Palm

Beach, Florida, for appellee.

APPEAL FROM THE CIRCUIT COURT FOR

PALM BEACH COUNTY

(December 30, 1987)

one

eT

A-8

(HERSEY, C.J.) Willie Potts, Jr., was

convicted of violation of section

790.07(2), Florida Statutes (1985), |

which provides:

Whoever, while committing or

attempting to commit any |

felony or while under indict-

ment, displays, uses, threat-

ens, or attempts to use any

firearm or carries a concealed

firearm is guilty of a felony

of the second degree, punish-

able as provided in s. 775.082,

s. 775.083, and s. 775.084.

(Emphasis added.) He asserts, on appeal,

the unconstitutionality of that statute

on due process grounds.

In considering whether or not a

statute violates substantive due process,

the basic test is whether the state can

justify the infringement of its legisla-

tive activity upon personal rights and

liberties. State v. Walker, 444 So.2d

1137 (Fla. 2nd DCA), affirmed, 461 So.2d

108 (Fla. 1984). The statute must bear

A-9

a reasonable relationship to the legis-

lative objective and must not be arbi-

trary. Id. If there is a legitimate

state interest which the legislation

aims to effect, and if the legislation

is a reasonably related means to achieve

the intended end, it will be upheld. Id

Here, the state contends that the

objective of the disputed statute is to

protect the health and safety of the

public. The state also contends that it

is not unreasonable to presume that per-

sons "under indictment" present a great-

er risk to society than other citizens;

therefore the statute bears a reasonable

relationship to the legislative objec-

tive.

If an individual is presumed inno-

cent until proven guilty, however, how

can it validly be assumed that individ-

A-10

uals "under indictment" necessarily

present a greater risk to society than

other citizens? There are, of course,

provisions for deprivation of liberty

while pending trial in certain cases.

See §907.0%}, Fla. Stat. (1985); Fla.R.

an ee Re

Crim.P. 3.132. But in those instances,

unlike here, a defendant has an opportu-

nity to be heard on the matter of his

Pee See ee

potential threat to society.

Carrying a concealed weapon while

not under indictment, prohibited by sec-

tion 790.01(1), is a first-degree misde- |

meanor, punishable by a maximum of one

year in prison, whereas the instant of-

fense is a second-degree felony, punish-

able by fifteen years in prison. The

instant statute, therefore, in effect

criminalizes the activity of "being un-

der indictment" and punishes that of-

A-1i

fense by up to fourteen years' imprison-

ment. Is an individual "under indict-

ment'’ who carries a concealed weapon

necessarily more dangerous than an indi-

vidual NOT "under indictment" who car-

ries a concealed weapon? What if an in-

dividual is convicted under the instant

statute and is sentenced to fifteen

years' imprisonment and then is later

found not guilty of the charges for

which he was "under indictment''?

Although we agree with the state

that there is a legitimate interest in

protecting the health and safety of the

public, we do not agree that criminaliz-

ing the status of being “under indict-

ment" is a reasonably related means to

achieve the intended end. Therefore,

despite the rule that every presumption

is to be indulged in favor of the valid-

A-12

ity of a statute when considering its

constitutionality, Griffin v. State, 396

So.2d 152 (Fla. 1981), we conclude that

the portions of section 790.07 which

prohibit certain activities "while under

indictment" are unconstitutional as vio-

lative of substantive due process.

Below, appellant raised the consti-

tutional issue by way of an ore tenus

motion to dismiss. The trial court sum-

marily denied the motion, however, as

untimely. The state now contends that

the constitutional issue was waived, be-

cause grounds other than fundamental

grounds for a motion to dismiss are

waived if not timely presented. Fla.R.

Crim.P. 3.190(c). Application of a fa-

cially unconstitutional statute, how-

ever, such as occurred here, constitutes

fundamental error. See Trushin v.

A-13

State, 425 So.2d 1126 (Fla. 1982);

Alexander v. State, 450 So.2d 1212 (Fla.

4th DCA 1984), remanded on other grounds,

477 So.2d 557 (Fla. 1985). Accordingly,

the issue was not waived and is properly

before this court for review.

Finding the statute unconstitution-

al, we reverse and remand with instruc-

tions to discharge the appellant unless

he is being held on other charges or is

incarcerated for other convictions.

REVERSED AND REMANDED. (DOWNEY and

WALDEN, JJ., concur.)

A-14

APPENDIX II

Copy of the Constitutional Provisions

and Regulations Involved

A-15

Amendments V and XIV (Section 1), Con-

stitution of the United States:

AMENDMENT V

No persons shall be held to

answer for a capital, or

otherwise infamous crime, un-

less on a presentment or in-

dictment of a Grand Jury, ex-

cept in cases arising in the

land or naval forces, or in

the militia, when in actual

service in time of war or

public danger; nor shall any

person be subject for the

same offense to be twice put

in jeopardy of life or limb;

nor shall be compelled in any

criminal case to be a witness

against himself, nor be de-

prived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just compensa-

tion.

AMENDMENT XIV

SECTION 1. All persons born

or naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make

or enforce any law which

shall abridge the privileges

A-16

or immunities of citizens of

the United States; nor shall

any State deprive any person

of life, liberty, or property,

without due process of law,

nor deny to any person within

its jurisdiction the equal pro-

tection of the laws.

Rule 17.1(b), Rules of the Supreme Court

of the United States:

RULE 17. Considerations govern-

ing review on certiorari

1. A review on writ of certio-

rari is not a matter of right,

but of judicial discretion, and

will be granted only when there

are special and important rea- |

sons therefor. The following,

while neither controlling nor

fully measuring the Court's

discretion, indicate the char-

acter of reasons that will be

considered...

(b) When a state court of

last resort has decided a

federal question in a way

in conflict with the deci-

sion of another state

court of last resort or of

a federal court of appeals. |

§790.

§790.

A-17

01(2), Fla. Stat.:

790.01. Carrying concealed

weapons...

(2) Whoever shall carry a

concealed firearm on or about

his person shall be guilty of

a felony of the third degree,

punishable as provided in s.

775.082, s. 775.083, or s.

775.084.

07(2), Fla. Stat.:

790.07. Persons engaged in

criminal offense, having

weapons...

(2) Whoever, while commit-

ting or attempting to commit

any felony or while under in-

dictment, displays, uses,

threatens, or attempts to use

any firearm or carries a con-

cealed firearm is guilty of a

felony of the second degree,

punishable as provided in s.

775.082, s. 775.083, and s.

775.084.