MARSHAL: HEAR YE. HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR, GIVE ATTENTIONAND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES , THE GREAT STATE OF FLORIDAAND THIS HONORABLE COURT. LADIES AND GENTLE MEN , THE FLORIDA SUPREME COURT. PLEASE BE SE ATED .
CHIEF JUSTICE: CHIEF GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT. CHIEF JUST ICE PARIENTE IS RECUSED IN THE FIRST T WO CASES THIS MORNING , AND SO WE WILL PROCEED. I KNOW THAT SHE IS DISAPPOINTED NOT TO B E H E RE, BECAUSE WE HAVE OUR B RAND NEW CARPET FOR THE FIRST TIME. WHICH SHE WAS INSTRUMENTAL IN GETTING P UT IN TO COURT. SO WE WILL PROCEED WITH THE F IRST CA SE , STATE VERSUS SIGLER. MR . BONAVITA .
GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS AUGUST BONAVITA , ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE APPELLANT CROSS APPE LLEE , THE STATE OFFLORIDA. JAY SIGLER ALONG WITH HIS CODEFENDANT WERE EACH CHARGED WITH FIRST-DEGREE FELONY MURDER WITH THE UNDERLYING FELO NY BEING ESCAPE. CHRISTOPHER MITCHELL WAS A LSO CHAR GED WITH A SEPARATE COUNT OF VEHICULAR MANSLAUGHTER. BOTH DEFENDANTS PROCEEDED TO JURY TRIAL AND WERE FOUND GUILTY ON THE LESSER OFFENSE OF SECOND-DEGREE MU RDER DEPRAVED INDIFFERENCE. MR . SI GLER TO OK THE APPEAL TO THE FOURTH DISTRICT COURTOF APPEAL , ARGUING TH AT THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE SECOND-DEGREE MURDER. THE FOURTH DISTRICT COURT OF APPEAL A GREED AND PU RSUANT TO SECTION 924. 34 FL ORIDA STATUTES AS WELL AS THIS COURT'S DECISION IN IT , REMANDED THE M ATTER FOR IMPOSITION OF CONVICTION O F THIRD-DEGREE FE LONY MURDER WITH THE UNDERLYING FELONY B EING HARBORING AN ESCAPE FELON .
JUST ICE: NOW, WHEN THE MATTER CAME BACK TO THE F OURTH DISTRICT AND THE FOURTH DI STRICT IS SUE THAT IS SECOND DECISION , WAS THERE AT THAT POINT , A MOTION BY THE STATE FOR THE FOURTH DISTRICT TO CONSIDER THE MA TTER IN BANK?
THERE WAS , ON -- EN BANC ?
THERE WAS THE MO TION FOR APPEAL HE ARING AND REHEARINGEN BANC , RIGHT.
JUSTICE: WHICH WAS ADENIED?
THAT'S COR RECT. WHEN THE MATTER WAS REMANDED BACK TO THE TRIAL COURT FOR IMPOSITION OF THIRD-DEGREE FELONY MURD ER, THE DEFENDANTFILED A MOTION FOR DISCHARGE , ARGUING THAT THE FOURTH DISTRICT'S PROCED URE UNDER 924.34 VIO LATED HIS SI XTH AMENDMENT RIGHT TO A JU RY TRIAL AS WELL AS THE PRONOUNCEMENTS BY THE UN ITED STATES SUPREME COURT IN APP RENDI AND BLAKELY .
JUST ICE: L ET'S DISC USS THE W HOLE NO TION OF THE IMPOSITION OF A THIRD-DEGREE MURDER CONVICTION. IN ORDER TO BE CONV ICTED OF THIRD-DEGREE MURDER , WOULD IT , YOU WOULD HAVE TO AGREE THAT THERE HAS TO B E AN UNDERLYING FELO NY.
YES. I WO ULD AGR EE WITH THAT.
JUSTICE: AND IN THIS CASE, THE FOURTH DISTRICT INDICATED THAT THE UNDERLYING FELONY WAS THAT OF HARBORING AN ES CAPED CRIMINAL?
THAT IS COR RECT.
JUSTICE: AND SO WHAT DO WE HAVE IN THE WAY O F THE , A JURY PRONOUNCEMENT THAT W OULD INDICATE THAT THE JURY NECESSARILY CONSID ERED AND FOUND THAT THIS DEF ENDANT WAS GUI LTY OF THE ELEMENTS OF THAT OFFENSE?
THE, D URING THE TRIAL OVER DEFENSE OBJECTIONS ON UNRELATED GROUNDS --
JUSTICE: SPEAK UP JUST A LITTLE.
I AM SO RE I DURING THE TRIAL OVER THE DEFENDANT'S OBJECTION ON U N RELATED GROUNDS, THE TR IA L COURT SUBMITTED THE QU ESTION TO THE JURY. THE CHARGE WAS ACTUALLY SUBMITED TO THE JURY FELONY THIRD-DEGREE WITH THE UNDERLYING FELONY BEING HARBORING , AND WE WOULD SUBMIT BASED ON THAT , THE MATTER WAS PRESENTED TO THECOURT.
JUSTICE: WHAT DID THE JURY DO WITH THAT?
THE JURY CAME BACK WITH A FINDING ON THE GREATERCHARGE AS THEY ARE INSTRUCTED BY THE COURT TO DO . WHICHEVER THE GREATEST CHARGE THAT THE EVIDENCE SUPPORTS, THE JURY CAME BACK WITH THAT , WHICH IN THEIRMIND WAS SECOND-DEGREEMURDER, BUT WE WOULD SU BMIT THAT, IN DOING SO, THER E IS ABSOLUTELY NOTHI NG IN THE RECORD WHICH SU TS THAT THE JURY NEVER CONSIDERED -- WHICH SUGGESTS THAT THE JURY NEVER CONSIDERED FELONY THIRD -DEGREE MURDER. IT WAS GIVEN TO THE M. THE EVIDENCE IN THE CASE SUPPORTS IT.
JUSTICE: YOU SA Y THE EVIDENCE IN THE CASE SUPPORTS A CHARGE OF HARBORING AN ESC APED FELON. WHAT IS THAT EVI DENCE IN THE REC ORD?
OK AY. WELL, THE E V IDENCE STARTS F ROM , THERE WAS A PR ISON B REAK IN D ADE COUNTY . AND JAY SIGLER 'S INVOLVEMENT IN THIS WAS HE WAS , AS THE FOURTH FOUND IN THE FIRST OPINION , HE WAS THE SO-CALLED MASTERMIND BEHIND THE ENTIRE THING ON , SO THE EVIDENCE WE HAVE --
JUSTICE: HE WAS THE A CTUALLY PRI SONER . MR. SIGLER WAS THE PERSON WHO WAS IN PRIS ON.
THAT IS CORRECT AND MITCHELL SON IS THE PERSON WHO WAS GOING TO BREAK HIM OUT ALONG WITH SE VERAL OTHER PARTICIPANTS AS WELL, BUTTHESE WERE THE TWO MAIN INDIVIDUALS, SO YOU HAVE THE P RISON BREAK , AND THERE AREA SE RIES OF RE CORDED TELEPHONE CA LLS THAT WERE RECORDED BY DEPARTMENT OF CORRECTIONS .
JUSTICE: I GUESS I WANT THE AC TUAL EVIDENCE THAT WOULD SU PPORT A HARB ORING OFFENSE.
I THINK IN ORDER TO ANSWER YOUR QUESTION , JUSTICE QUINCE, I THINK IT IS IMPORTANT TO UNDERSTAND THAT THE FACTS L E ADING, THERE IS A TREMENDOUS AM OUNT OF FACTS LEADING UP TO THE BREAK OUT , WHICH THE FOURTH RELIED ON AND WE ARE SUBMITING TO THIS COURTSHOWS THAT AT ALL TIMES JAY SIGLER NOT ONLY INTENDED TO BREAK OUT, BUT HE HAD A STRONG RE SOLVE TO RE MAIN OUT OF PRISON. AFTER THE BREAK, WHEN THEY MADE IT TO THE HO TE L IN L AKE WORTH , THAT N IGHT ON TELEVISION, THEY WERE WATCHING THEMSE LVES . MITCHELL SON HAD TURNED HIMSELF IN AND ENCOURAGED MR. SIGLER TO DO SO. HE REF USED. THEY GET UP AND BY THIS TIME WERE THE NUMBER ONE AND NUMBER TWO FUGITIVES I N SOUTH FLORIDA AND THEY GET INTO THEIR VE HICLE AND HEAD SOUTH ON A 1A TO WARD FORT LAUDERDALE.
JUSTICE: I GUESS THE P ERSON WHO IS THE ESC APED CONVICT , HARBOR HI MSELF ?
THE AN SWER TO THAT QUESTION IS WE BE LIEVE THAT THEY CAN, ESPECIALLY UNDER THE EVIDENCE OF THIS CASE , AND I THINK THE FOURTH DISTRICT WAS VERY CAREFUL TO POINT THAT OUT IN ITS FIRST OPINION THAT, GI VEN THEFACTS AND CIRCUMSTANCES OF THIS CASE , THIS IS CLEARLY A SITUATION WHERE SIGLER JUST DIDN'T SIT I DLY BY AND I THINK AS JU DGE OWENSWORTH SAID AS A PASSEN GER I N THE C AR. THEY CLEA RLY WERE ON A1A .
JUSTICE : WHERE DOES THAT TAKE US IN RESOLVING THE ISSUE?
WE S T ILL HAVE THE NECESSARY LE SSER INCLUDED CRIME OF MANSLAUGHTER BY CULPABLE NEGLIGENCE, WHICH CLEARLY I DON'T THINK THEREIS ANY AR GUMENT THAT , BY THEJURY FI NDING THE DEFENDANT GUILTY OF SECOND -DEGREE MURDER THAT THEY NECESSARILY FOUND ALL THE EL EMENTS SUPPORTING THAT AM OFFE NSE, SO THAT WOULD -- THAT OFFENSE , SO THAT WOULDOBVIOUSLY AVOID THE CONSTITUTIONAL QUESTION WEARE ADDRESS HEA RING THIS MORNING.
JUSTICE: WAS THAT PARTICULAR OFFENSE ARGUE D ORIGINALLY?
ORIGINALLY IT WAS ARGUED AT ORAL ARGUMENT ON IN THE FOURTH AND THE N AT RE HEARING.
JUSTICE: WHAT ABOUT THEJURY? WERE THEY GIVEN ALTERNATIVES BETWEEN THE THIRD DEGREE FELONY BY HARBORING AS OPPOSED TO CULPABLE NEGLIGENCE?
I BELIEVE TH OS E CH ARGES WERE GIVEN TO THE JURY .
JUSTICE: CULPABLE NEGLIGENCE WAS?
CULPABLE. I DON'T WANT TO M ISS SPEAKBUT I BELIEVE THAT THEYWERE.
JUSTICE: LET ME GET BACK TO A QUESTION FROM A FEW MINUTES AGO, WHERE YOU ANSWERED THAT THE JURY WAS GIVEN THE INSTRUCTION AND DID CONSIDER THE THIRD D EGREE FELONY COUNT. I GUESS THE PROBLEM THAT APPRENDI CREATES IS THAT NOT ONLY MUST JURY CONSIDER IT , BUT WE HAVE TO KNOW WHAT THE JURY'S DETERMIN ATION OF THAT ISSUE IS , AND B E CAUSE THE JURY DETERMINED THE SECOND-DEGREE MURDER , IT NEVER HAD THE OPPORTUNITY O R THE NECESSITY OF DETERMININGTHE THIRD DEGREE MURDER, SO WE DON'T KNOW HO W THE JURY WOULD HAVE COME OUT ON THE HARBORING A FUGITIVE COUNT.
MY RESPONSE AND I THINK ONE OF THE THIN GS WE DO HAVE TO KEEP IN MI ND IS IT IS THE STATE'S POSITION AND HAS BEEN THE STA TE'S P O SITION ALL ALONG THAT APPRENDI AND BLAKELY HAVE ABSOLUTELY NO APPLICATION TO THIS CASE , AND I THINK IN MY BR IEFS I THINK I HAVE ARGUED THAT EXTENSIVELY AS TO WHY THAT IS NOT APPLICABLE. IN RESP ONSE TO YOUR QUESTION A BOUT NOT K N OWING WHETHER THE JURY NECESSARILY P A SSED , I WOULD SUBMIT THAT IN FLORIDA, IT IS MY UNDERSTANDING THAT, WHEN THE TRIAL JUDGE INSTRUCTS THEJURY, THEY ARE NOT PRECLUDE FROM CONSIDERING LESSER OFFENSES, AND ALTHOUGH WE DON'T, WE CAN'T SAY FOR CERTAIN, IT IS OUR POSITION THA T THE SI XTH AM ENDMENT IS SATISFIED , SO LONG LUNGE AS THE JURY IS GIVEN THE -- SO L ONG AS THE JURY IS BEGIN THE OPPORTUNITY AND THEEVIDENCE IS TO SUPPORT THECHARGED OFFENSE AND IN THIS CASE THAT WAS UNDISPUTEBLY DONE.
JUSTICE: THE JURY INSTRUCTION , DOE SN'T IT SAYTHAT THE JURY SHOULD CONVICTFOR THE MAXIMUM LEVEL OF THE CRIME?
YE S.THE INSTRUCTION DOES STATE THAT THEY SHOULD COME BACK WITH THE CONVICTION FOR THE HIGHEST CR IME THAT THE EVIDENCE WOULD SUPP ORT.
JUSTICE: HOW EVER IF THEY FOUND SECOND-DEGREE MURDER , THEY ARE NOT GOING TO FIND THIRD-DEGREE MURDER , EVEN IF THE FACTS WOULD EXIST FOR THAT COUNT.
I WOULD RESPECTFULLY DISAGREE, ONLY BEC AUSE IN REACHING SECOND-DEGREE MURDER, IT IS VERY WELL THAT THEY COULD HAVE GONE TH ROUGH THIRD-DEGREE FELONY MURDER. THEY HAD THE CHARGE. THEY HAD THE EVIDENCE, ANDWHEN YOU LO OK AT UN ITED STATES VERSUS G O RDON , WHICH WAS CITED B Y CA RY N ON THE FIRST SGRIKT IN THIS ISSUE , I THINK IT WAS CL EAR -- FIRST DIST RICT IN THIS ISSUE , I THINK IT WAS CLEAR THAT G ORDON TAKES THE ISSUE OUTSIDE OF THE JURY'S CONSIDERATION , TAKES IT A WAY , WHICH IS EXACTLY WHAT HAPPENED IN GORDON AND PRECLUDES THE JURY , EXPRESSLY PRECLUDES THE JURY FROM PASSING ON THE ISSUE. THEN WE WOULD CERTAINLY HAVE A SIXTH AME NDMENT JURY CAUSE ISSUE , BUT IN THAT CASE, IN THIS CASE, THAT CLEA RLY WAS NOT WHAT HAPPENED HERE.
JUSTICE: WHY IS N'T THE E FFECT OF THE STATUTE , THOUGH, RE ALLY TO IN ESSENCE, E NTER A D I RECTED VER DICT IN FAVOR OF THE STATE ?
I AM SORRY.
JUSTICE: THE EFFECT OF THE STATUTE UNDER THESE CIRCUMSTANCES TO EN TER A DIRECTED VERDICT I N FAVOR OF THE STATE. ISN'T THAT THE EFFECT OF THE STATUTE? THAT IS THAT THE COURT , NOW , IS DIRECTING A VERDICT IN FAVOR OF THE STATE , AND WHEN WE PUT IT IN THOSE T ERMS , OF COURSE , THAT IS AL WAYS PROHIBITED, THAT A JURY WOULD HAVE TO PASS ON IT, BUT ISN'T THAT THE NET EFFECT , I S THAT A DIRE CTED VERDICT IN FAVOR OF THE STATE ON A CHA RGE THAT W E DON'T KNOW WHAT A JURY WOULD HAVE DONE WITH IT.
I WOULD DIS AGREE , CHARACTERIZING IT IN THAT TERM, JUSTICE ANSTEAD
JUSTICE: ISN'T THAT WHAT IT DOES? ISN'T THAT WHAT THE COURT IS DOING IS DIRECTING THAT THERE BE A VERDICT IN FAVOR OF THE STATE ON THIS LESSER CHARGE?
FOR WHICH THE EVIDENCE C LEARLY SUPPORTS AND, AGAIN --
JUSTICE: BUT FOR WHICH WE HAVE NO IDEA OF WHAT THE JURY WOULD DO.
AGAIN , I SUBMIT THAT THE JURY WAS BE GIN THE CHARGE AND TO SAY THAT WE HAD NO IDEA THAT THEY DI DN'T NECESSARILY PASS ON IT, IS , REALLY , TAKING THE SIXTH AMENDMENT AND STANDING IT ON ITS HEAD, BECAUSE NOW UNDERTHE FOURTH DISTRICT'S HOLDING AS IT STAN DS TO DAY , THE STATE AND THE TRIALCOURTS ARE GOING TO HAVE T O SUBMIT TO THE JURY SPE CIAL V ERDICT FORMS FOR ALL PERMISSIVE LESSER OFFENSES, SO THAT IN THE EVENT THE JURY COMES BACK WITH GRE ATER OFFENSE , THEY ARE GOING TO HAVE TO GO BACK AND MA KE A DETERMINATION AS TO WHETHER OR NOT THE DEFENDANT WOULDBE GU ILTY OF ANY PERMISSIVE L ESSER OFFENSES .
JUSTICE: WHAT IS YOUR UNDERSTANDING OR YOUR POSITION ON WHAT , IF WE AFFIRM THE FOURTH DISTRICT , WHICH ORDERED A NEW TRIAL , WHAT IS GOING T O HAPPEN NEXT HERE? IN THE FO URTH , IN THE TRIALCOURT.
WELL , A T THIS PO IN T THE OPINION OUT OF THE FOURTH AS IT STANDS NOW , IS IT SIMPLY GOES BACK FOR A NEW TRIAL O N THIRD-DEGREE FELONY MURDER WITH THE UNDERLYING FELONY BEING ESCAPE. I SUSPECT THAT THERE MA Y BE SOME LE GAL M O TIONS FILED. I DON'T KNOW. I CAN'T SPEAK TO THAT.
JUSTICE: BUT THE UNDERLYING FELONY BEING WHAT?
I PRESUME IT WOULD BE ESCAPE. THAT IS THE OR IGINAL FELONY THAT THE STATE U SED.
JUSTICE: BUT IS ESCAPE A FELONY THAT CAN BE USED FOR --
I AM SORRY. I MISS POKE . EXCUSE ME. I MISS SMOKE. I MEANT TO SAY -- I MISS POKE . I MEANT TO SAY HARBORING AN ESCAPED PRISONER. I APOLOGIZE .
JUSTICE: JUSTICE Q U INCE .
I AM WONDERING IF, IN ORDER TO DO THAT DO YOU NECESSARILY HAVE TO HAVE ASEPARATE COUNT FOR THAT FELONY? I MEAN, GE NERALLY WHEN W E HAVE FIRST-DEGREE MURDER AND FIRST-DEGREE FELONY MURDER , THERE IS MORE OFTEN THAN NOT , A COUNT OF ROBBERY OR BURGLARY OR WHATEVER THE UNDERLYING FELONY I S , THAT WE USE FOR THE FIRST-DEGREE FELONY MURDER. DO YOU NECE SSARILY NEED THAT FOR A THI RD-DEGREE MURDER COUNT ?
I WOULD SUBMIT NOTBECAUSE IT IS ST IL L A LESSER CRIME IN DEGREE OF FIRST-DEGREE MURDER, WHICH WAS CHARGED IN THE INDICTMENT .
JUSTICE: NOW , THE STATUTEIN THIS CASE ONLY SPEA KS TO NECESSARILY IN CLUDED OFFENSES, CORRECT?
AND BY EXTENSION , IN THIS COURT'S DECISION IN I T EXTENDED THAT TO PERMISSIVE LESSERS.
JUSTICE: SO WHAT REALLY IS AT ISSUE IS THIS COURT'SCASE IN IT AND NOT THE EXPRESS LANGUAGE OF THE STATUTE .
THAT'S CORR ECT.
JUSTICE: AND THIS STATUTE IS IN COMPLIANCE WITH THE FEDERAL ROLE 31-C, I BELIEVE IT IS.
I AM NOT FAMILIAR WITH 31-C FE DERAL BUT IF IT READS IN TA NDEM WITH THAT, THAT IS --
JUSTICE: SO THE REAL ISSUE IS WHETHER OR NOT IT STILL STANDS, IN L IGHT OF APPRENDI.
I THINK THAT IS THE ISSUE AND I THINK THAT IS WHAT, ACTUALLY IN THE CA RYN DECISION OUT O F THE FIRSTDISTRICT, WHICH I BELIEVE THE PE NDING RESOLUTION , THE COURT FELT THAT THE FED ERAL CONSTITUTION TRUMPS OVER THE STATUTE AND WE NT ON TO I G UESS IMPLICITLY OVERRULE THIS COURT'S DEC ISION IN IT
JUSTICE: YOUAL ALLUDED EARLIER TO YOUR ARGUE - - YOU ALLUDED EARL IER TO YOUR ARGUMENT THAT APPRENDI DOESN'T APPLY IN THIS DECISION. TELL US WHY.
SPECIFICALLY BECAUSE YOU HAVE IN B OTH APPR ENDI , I T DOESN'T APPLY. AFTER THE PLEA THE TRIAL COURT OUTSIDE THE CONTEXT OF THE PLEA , MADE ADDITIONAL FINDINGS OF FACT , THE RESULT OF WHICH WAS THAT BOTH OF THEIR SENT ENCES WERE INCREASED.IN APPRENDI SITUATION , THERESULT WAS A FIN DING OF SECOND-DEGREE TO FIRST-DEGREE AND IN BLAKELY IT WAS A GUIDELINE 53 MONTHS IN AN ADDITIONAL THREEYEARS.
JUSTICE: SO YOU BELIEVETHAT THE UNDERL YING HO LDING OF APPRENDI IS ANY FACTS THAT I S NECESSARY FOR A CONVICTION NEEDS TO BE FOUND B Y THE JURY.
WELL , I THIN K, I WOULD SUBMIT THAT THER E IS A AN ADDITIONAL REQUIREMENT THERE. I THINK SPECIFICALLY THOSE CASES STAND FOR THE PROPOSITION THE RESULT OF WHICH IS TO INCREASE A DEFENDANT'S SENTENCE ANDC LEARLY HERE WE DON'T HAVE. THAT STATUTE.
JUSTICE: ARE YOU CLAIMING THAT A JU DGE WITHOUT A JURY CAN FIND SOME OF THE FACTS NECESSARY TO CONVICT THE DEF ENDANT OF A PARTICULAR CRIME , IF A CRIME REQUIRED INTENT, ARE YOU SAYING THAT A JUDGE MAY SAY, BELL -- MAY SAY, WELL , FOR THE REST OF THE IT EMS OF THE CRIME , THEELEMENTS OF THE CRIME I WILL LET THE JURY DECIDE , BUT I AM GOING TO DECIDE AS A MATTER OF LAW THAT THERE WAS INTENT.
NO, AND I THINK THAT WOULD R UN DIRECTLY I N CONTRARY TO GORDON AND THOSE CASES, BECAUSE IN THAT CASE IN THAT HYPOTHETICAL YOU ARETAKING THE ISSUE SQUARELY O UTSIDE THE JURY'S CONSIDERATION. APPRENDI AND BL AKELY NEVER D APPRENDI AND BLAKELY DID THAT AS WELL, BUT THE RES ULT OF THAT WAS TO END UP INCREASING A SEN TENCE .
CHIEF JUSTICE: YOU INTR YOUR REBUTTAL T IME .
THA NK YOU .
MAY IT PLEASE THE COURT. GOOD MORNING. MY NAME IS PAUL PETILLO, ASSISTANT PU BLIC DEFENDER ON BEHALF OF JAY SIGL ER.
JUSTICE : CAN I ASK YOU A THRESHOLD QUESTION ON WHAT SIGLER 2 DID TO SIGLER ONE. THEY SAID THEY CAN'T APPLYTHE CASE WAS BECAUSE IT WAS A MANIFEST INJUST ICE . I UNDER STAND IT WAS A PA NEL OF THE FOURTH DISTRICT DISTRICT THAT DID THAT.
RIGHT.
JUSTICE: CAN A SE PARATE PANEL IN THE SAME CASE COMING UP ON REVIEW AGAIN , ESSENTIALLY OVERRULE THE DECISION OF THE PRIOR PANEL WITHOUT GOING ON EN BA NC?
ALL I CAN TELL YOU , JUSTICE CANTER O ON THAT , IS THAT DID OCCUR TO ME AT ONE T IME AND I PRE PARED PANE LS IN PREVIOUS CASES , AND DON'T H OLD ME TO THIS , I THINKTHEY WERE DIFFERENT PANELS OR THEY DID N'T HAVE THE SAME MEMBERS. I JUST SAY IMPLICITLY THAT CAN HAP PEN .
CHIEF JUSTICE: MR. MARSHAL , EX CUSE ME, THE TIME IS NOT --
JUSTICE: ARE YOU SAYING THAT A DECISION WITH CAN O VERRULE A PRIOR PANEL?
I AM SUGGESTING THAT A PANEL CAN DE CIDE IN THOSE RARE CASES TO RE LAX THE CASE DOCTRINE .
BUT THAT RE NDERS THE FIRST DECISION. ISN'T THAT HOW THAT OPERATES? YOU ARE SAYING THAT THE APP LICATION OF THE PRIOR DECISION IS RENDERED AS AMANIFEST INJUSTICE ?
THAT IS REALLY ONE REASONTHAT THE COURTS ALLOW CASE DOCTRINE, BUT THAT IS NOTTHE ONLY ONE . IT DO ESN'T NECESSARILY HAVE TO BE. THERE IS A NUMBER OF REAS ONS WHY AN APPELLATE COURT MIGHT RELAX THE LAW OF THE CASE DOCTRINE.
JUSTICE: SUCH AS ? THAT WOULD APPLY HE RE?
WELL , YOU KNOW, I MIGHTAS WE WILL SAY THAT I THINKTHE FOURTH DCA DIDN'T EVEN NEED TO REALLY RELAX THE LAWOF THE CASE DOCTRINE . I MEAN , WELL , LET ME SET THAT ASIDE FOR A MO MENT. I THINK BECAUSE I THINK APPRENDI'S APPLICATION HERE IS SO CLEAR.
JUSTICE: WHY WOULD THAT N OT HAVE BEEN EBBS PL ORD PARAMETERS -- EXPLORED PARAMETERS AND THAT DEFINED COMING OUT THE FIRST TIME , BECAUSE APPRENDI WAS 200 0 AND THIS IS 2002.
TRUE.
JUSTICE: SO WHY WOULD THAT NOT HAVE OCCURRED AT THAT TIME?
IT SEEMS PERFECTLY CLEAR TO ME NOW. IT CERTAINLY DOES . AT THE TIME THAT I WROTE SIGLER ONE , W HEN THE SIGLER ONE SIT UATION CAME OUT AND THE COURT DECIDED A THIRD-DEGREE FELONY MURDER WAS THE APPROPRIATE REMEDY IN THE CASE , OF COURSE THEN IT STRI KES YOU VERY HARD THAT, HAY , THIS IS -- THAT , HEY, IT THIS IS A ENTIRE OTHER CRIM E THAT THE APPELLATE COURT CAN FIND.
JUSTICE: WHAT WERE THE LESSER INCLUDED OFFENSES IN STRUKTED AND ARGUED BEFORE THE JURY? -- INSTRU CTED AND ARGUED BEFORE THE JU RY?
THE LESSERS THAT WERE INSTRUCTED ON WERE FIRST-DEGREE FELONY M URDER , SECOND-DEGREE MURDER. I BELIEVE MANSLAUGHTER AND THIRD-DEGREE FELONY MURDER. I DON'T KNOW IF THAT WAS THE L AST. I DON'T KNOW IF THAT WAS THE ONLY LESSERS . YOU KNOW , IN REVIEWING THECLOSINGS ARGU MENTS IN THECASE, IT WAS CLEAR THE PAR TIES WERE TALKING SO LELY ABOUT FIRST-DEGREE FELONY MURDER IN THIS CASE OR AT LEAST THE STATE D THE STATE DIDN'T PUT FORWARD ANY PLAUSIBLE THE ORY THAT MY CLIENT WAS GUILTY OF THIRD-DEGREE FELONY MURDER IN THIS CASE.
BUT THE JURY WAS INSTRUCTED ON BOTH THIRD-DEGREE FELONY AND MAN SLAUGHTER?
YES. YES.
JUSTICE: AS A PART OF THETHIRD DE GREE INSTRUCTIONS , WERE THEY GIVEN AN INSTRUCTION AND THAT OFFENSE WAS ASSIGNED B EFORE THEJURY?
AS I RECALL , YES. JUST SJUTS DID YOU OPPOSE THE STATE --
JUSTICE: DID YOU OPPOSE THE STATE'S MOTION TO GO EN B ANC IN THIS CASE?
WHEN THEY MOVED FOR REHEARING? YEAH. ON TRADITIONAL GROUNDS THAT YOU WOULD ARGUE. THE STATE , I WOULD HAVE T O CORRECT. I DON'T BELIEVE AND I THOUGHT THAT WAS WHAT YOUR QUESTION WAS DIREC TED TO AND IT IS AN INTERESTING ISSUEON THE DIFFERENT PANELS FORLAW OF THE CASE, BUT THE STATE DIDN'T MOVE TO HAVE THE CASE HE ARD E N BANC , WHEN THE CASE WAS PRESENTED TO THE FOURTH ON THE SECOND GO AROUND.
JUSTICE: IT JUST STRIKES ME THAT WE ARE IN A PECULIAR SITUATION I N WHICH THERE , WE ORIGINALLY DIDN'T HAVE JURISDICTION. IN SIGLER ONE. WE COME BACK AND WE GET A DIFFERENT PANEL THAT, THEN , DOE SN'T CERTIFY A QUES TIONTO US BUT H O LDS A STATUTE UNCONSTITUTIONAL AS APPLIED ON THE BA SIS OF A CASE THAT WAS AL READY OUT THERE AT THE TIME THE FIRST PANEL DECIDED THE CASE, AND THAT IS WHAT G IVES US OUR JURISDICTION.
RIGHT.
JUSTICE: SO THAT IS K IND OF --
YEAH. SO, WELL, AND I MIGHT AS WEWILL SAY NO W, YOU KNOW , ON SIGLER 2 , THE ISSUE OF THE SIXTH AMENDMENT AS APPLIED IN THIS CASE WAS NOT ARGUED IN THE BRIEFS ON SIGLER ONE. I BROUGHT IT UP FOR THEFIRST TIME ON REHEARING. THAT REHEARING WAS DENIED. THE N THE ISSUE WAS RERAISED IN THE TRIAL COURT AND THEN AGAIN ON SIGLER TWO.
JUSTICE: WHY ARE YOU NOT PRECLUDE FROM RAISING IT? YOU CERTAINLY CAN RAISE ARGUMENTS ON HEARING FOR THEFIRST TIME , SO ALL OF THIS AT THE TIME THAT THE CASE WAS GIVEN TO THE FOURTH DISTRICT, WAS IT NOT FOR INITIAL CONSIDERATION?
THE RULE SAYS I AM NOT SUPPOSED TO BE BR INGING UP NEW MATTERS ON REHE ARING AND THEY MAY HAVE DENIED REHEARING FOR THAT VERY REASON. WHAT I AM TRYING TO GET ACROSS HERE , AND IT IS EMBARRASSING TO SAY IT , THAT THE SECOND, SIGLER TWO PANEL PROBABLY WAS NOT BOUND BY LAW OF THE CASE ANY WAY.
JUSTICE: WHY?
BECAUSE THIS ISSUE IN SIGLER ONE WAS NEVER PROPERLY PRESENTE D, AND IT IS MY UNDERSTANDING THAT THE FLORIDA DEPARTMENT OF TRANSPORTATION VER SUS GULIANO , AND WE DON'T KNOW WHY THE SIGLER ONE PANEL DENIED REHEARING. IT MIGHT BE BECAUSE THIS WAS A NEW MATTER BROUGHT UP FORTHE FIRST TIME. IT IS MY UNDERSTANDING THAT THE FLO RIDA DEPARTMENT OF TRANSPORTATION VERSUS GULIANO THAT ONLY THOSE ISSUES THAT WERE ACTUALLY ADJUDICATED IN THE FIRST GO AROUND ARE PRECLUDED BY LAW OF THE CASE.
JUSTICE: SO UGHT CONSTITUTIONALITY, YOU DON'T PRESERVE IT THE FIRST TIME ARO UND AND A DECISION IS MADE, AND THEN ON THE APP LICATION OF THE VERY STATUTE, AND THEN ON THE SECOND GO AROUND, YOU CAN GO IN AND DO AN AS-APPLIED CHALLENGE.THAT WOULD BE THE ANALYSIS IS WHERE YOU ARE HEADINGWITH THIS .
WELL , YEAH. I MEAN, YOU KNOW , I WI SH THEY HAD GR ANTED REHEAR ING. IT SE EMED APPARENT TO ME ATTHAT PO INT . IT JUST DIDN'T HAPPEN.
JUSTICE: LET ME SWITCH TO ANOTHER SUBJ ECT. I ASKED THE STATE'S COUN SEL WHAT DO YOU THINK IS GOING TO HAPPEN NEXT , IF WE SIMPLY AN AFFIRM THE FOURTH DCA .
THIS CASE WOULD GO BACKFOR A TRIAL ON THE LESSER OFFENSE OF THI RD-DEGREE FELONY MURDER. WITH THE UNDERLYING FELONY BEING HARB ORING AN ESCAPED PRISONER.
JUSTICE: WHY WOULDN'T IT GO BACK ON THE MAN SLAUGHTER?
WELL , BECAUSE WE WOULD, THEN, NE ED TO , EITHER THIS COURT OR THE FOURTH DCA , WOULD HAVE TO REACHSOMETHING THAT WAS RAISED THE FIRST TIME BUT NEVER ADDRESSED , EXCEPT IMPLICITLY WHICH IS THIS , MY CL IENT SIGLER, WAS THE PASSENGER I N THIS CAR. AND SO HIS CULPABILITY FOR MANSLAUGHTER OR SECOND-DEGREE MURDER, AND THIS WAS BRIEFED EXTENSIVELY IN SIGLER ONE , HIS LIABILITY COULD ONLY BE AS THE PRINCIPLE FOR THE AC TS OF THE DRIVER, AND THERE IS ONLY TWO SITUATION THAT IS A PASSENGER CAN BE CRIM INALLY L IABLE FOR THE ACTS OF THE DRIVER, AND ONE IS , IF THE PASSENGER INSIGHTS , CA USE OR ENCOURAGE -- INCITES , CAUSE OR ENCOURAGES THE D RIVER TO DRIVE RECKLESSLY, BECAUSE THERE YOU HAVE THE TWOELEMENTS OF PRINCIPLE , YOU HAVE THE INTENTION THAT THE CRIME BE COMMITTED AND YOU HAVE SOME ACT THAT AS SISTS , A IDS, A BETS AND ENC OURAGES OR INC ITES THE CRIM E.
JUSTICE: WAS THAT ARGUED BELOW , THE FIRST TRIAL IN THIS CASE , SECOND-DEGREE M URDER, AND YOU SA ID THAT MANSLAUGHTER WAS ONE OF THE MATTERS THAT WAS INSTRUCTED TO THE JURY .
UM-HUM.
JUSTICE: WAS THAT DON E AS A PRINCIPLE TO MANSLAUGHTER?
THAT WAS THE STATE'S THEORY AS TO SIGLER. IT HAD TO BE. HE WAS NOT THE DR IVER.
JUSTICE: SO THEOPPORTUNITY TO ARGUE ALL THAT ISSUE AND GET THE JURY PROPERLY INSTRU CTED WAS AVAILABLE IN THE IN ITIAL TRIAL.
CERTAINLY YES BUT IT WAS ALSO AVAILABLE IN SIGLER ONE , IN WHICH WE ARGUED THE EVIDENCE WAS LE GALLY INSUFFICIENT AND I ST ILL MAINTAIN IT IS LEGALLY INSUFFICIENT FOR MANSLAUGHTER.
JUSTICE: WHAT DEGREE OF CRIME IS MAN SLAUGHTER?
SECOND-DEGREE FELONY .
JUSTICE: AND THIRD-DEGREE MURDER IS WHAT?
SECOND-DEGREE FELONY.
JUSTICE: SO THEY ARE NOT L ESSER INCLUDED OF E ACH O THER?
NO. BUT THEY CHARGED, THEY INSTRUCTED ON BOTH OF THOSE LESSERS .
JUSTICE: ONE IS , IS IT TRUE OR NOT TRUE THAT THE MANSLAUGHTER WOULD BE A NECESSARILY-INCLUDED OF THE SECOND-DEGREE .
YES. I AGREE THERE.
JUSTICE: AND THE THIRD DEGREE HARBORING FELONY WOULD BE A PERMISSIVE.
YES.
JUSTICE: BUT IN THIS CASE BOTH WERE PRESENTED TO THEJURY.
THEY WERE BOTH INSTRUCTED ON.
JUSTICE: ONE NECESSARY AND ONE PERMISSIVE BUT THEY FOUND ON THE PRIMARY.
THEY FOUND HIM GUILTY OF THE LESSER SECOND-DEGREE DEPRAVED MIND MURDER , YES.
JUSTICE: ON THE APPEAL , DID THE STATE ARGUE THAT THERE SHOULD BE A VERDICT FOR MANSLAUGHTER CHARGE AS O PPOSED TO A THIRD-DEGREE MURDER CHARGE?I AM TR YING TO SEE IF THIS WAS AN ISSUE THAT WAS PRESERVED D URING THE COURSE OF THE APPEAL BEFORE THE FOURTH DCA.
YOU YOU WI LL HAVE TO ASK , I HOPE MR . BONAVITA CANANSWER THAT. I CAN'T REMEMBER NOW HO W THAT WAS FRAMED. I AM SURE THEY DID, BECAUSE - -
JUSTICE: WE KNOW IN THE CODEFENDANT'S CASE , THAT WAS CERTAINLY ARGUED , MR . MITCHELSON'S CASE , CORRECT?
YES .
JUSTICE: SO YOU DON'T RECALL WHETHER OR NOT THEY MADE THAT SAME ARGUMENT IN SIGLER'S CASE?
I AM SU RE THAT THEY ARGUED THAT , AGAINST ME THAT THE INITIAL PA RT OF MY BRIEFIN SIGLER ONE WAS THAT EVIDENCE WAS LEGALLY INSUFFICIENT FOR E ITHER SECOND-DEGREE MURDER OR MANSLAUGHTER UNDER A PRINCIPLE THEORY , GOING THROUGH ALL OF THE CASES THAT DISCUSSED HOLDING A PASSENGER CRIMINALLY LIABLE FOR THE ACTS OF THE DRIVER, AND I AM S URE THE STATE MADE THEIR COUNTER ARGUMENT TO THAT AND ASK ED THAT THE JUDGMENT AND SENTENCE BE AFFIRMED , AND I, IT WOULDN'T SURPRISE ME A GAIN IF THEY ARGUED, BECAUSE SIGLER HAD TWO ARGUME NTS ON SECOND-DEGREE MURDER. HE HAD ONE WAS THAT THERE WAS NO DEPRAVED MIND, NO ILL WILL, H A TRED , SPITE OR EVIL INTENT, BUT THE SECOND ONE , THE N UMBER ONE ARGUMENT WAS SIGLER AS THE PAS SENGER COULD NOT BE CRIMINALLY LIABLE FOR THE ACTS OF THEDRIVER IN THIS CASE , AND THE REASON IS THERE WAS NO EVIDENCE THAT HE AID , ABET ED OR ENCOUR AGED MITCHELSON TO DRIVE RECKLESSLY. THIS IS NOT A SITUATIONWHERE HE ENCOURAGED THE RECKLESS DRIVING. THE ONLY ENCOURAGEMENT IS THAT HE TOLD MIT CHELSON TO STOP AND PULL OVER, SO T HAT IS THE OPP OSITE OF ENCOURAGING AND INCI TING THE COMMISSION OF THE CRIME.
JUSTICE: LET ME MAKE SURE THAT I UNDERS TAND , GOINGBACK TO THIS SIGLER ONE. SIGLER ONE WAS REMANDED TO THE TRIAL COURT SOLELY FOR THE PUR POSE OF SENTENCING SIGLER.
WELL , AND TO IMPOSE JUDGMENT AND SENTENCE FOR THIRD-DEGREE FELONY MURDER.
JUSTICE: OKAY. BECAUSE IT WAS THE DIRECTION BY THE FOURTH DISTRICT TO DO THAT.
YES, SIR .
JUSTICE: AND THEY ISSUED A MANDAT E TO DO THAT. AND THEN WAS ANYTHING PRESENTED BELOW IN THE TRIAL COURT , UPON THAT REMAND , THAT WAS ANYTHING DIFFERENT THAN HAD BEEN AT THE FOURTH DISTRICT IN SIGLER ONE?
WE LL, NO , IF YOU INCLUDE WHAT I ARGUE ON REHEAR ING, WHEN THE JUDGE, WHEN IT WENT BACK FOR THE JUDGE TO ENTER JUDGMENT AND SENT ENCE.
JUSTICE: R IGHT.
I WA NTED TO MAKE SURE THAT THE DEFENSE ATTORNEY , AND HE DID, OBJECTED TO THE ENTRY OF JUDGMENT AND SENTENCE ON THE GROUND THAT THIS VIOLATED THE SI XT H AMENDMENT. WHICH IT DOES !
JUSTICE: THAT WAS WHAT YOU HAD ARGUED ON REHEARING.
YES, SIR.Y ES, SIR. AND THIS DOES V I OLATE THE SIXTH AMENDMENT FOR , IF WE WANT TO T ALK AB OUT WHETHER SECTION 924. 34 IS UNCONSTITUTIONAL AS APPLIED IN A CASE LIKE THIS, IT CLEARLY IS. EVERY COURT THAT I COULD FIND THAT HAS ADDRESSED IT HAS SAID SO. MICHIGAN SUPREME COURT IN PEOPLE VERSUS BE HRS SAW HOW APPRENDI APPLIED IN THIS SITUATION. A FE DERAL INDICATION , FRANKS VERSUS ALOE' A FED ERAL CASE , FRANKS VERSUS AL FRED , SAW APP ELLATE COURT REMAND WHEN THE JURY HAS NOT FOUND ALL OF THE ELEMENTS OF OFFENSE AND THAT APPE LLATE REMAND FOR DESCRIBE OF THE PERMISSIVE LESSER THAT DOESN'T INCLUDE ALL OF THE LESSER ELEMENTS THAT ARE REFLECTED IN THE VERD ICT , VIOLATES THE JURY CAUSE AND VIOLATES PROOF BEYOND A REASONABLE DOUBT OF THOSEELEMENTS.
JUSTICE: IS YOUR ARGUMENT THAT SECTION 924.34 IS UNCONSTITUTIONAL AS TO PERMISSIVE LESSER INCLUDED OFF ENSES OR THAT I T SIMPLY DOES NOT APPLY TO PER MISSIVE LESSER INCLUDED OFFENS ES?
WELL , THIS COURT'S DECISION IN I. IT WAS A STRETCH BECAUSE -- IN I. IT WAS A STRETCH, BECAUSE THE P LAIN AND UNAMBIGUOUS LANGUAGE OF THE STAT UTE SAYS NECESSARILY LESSER INCLUDED OFFENSES, AND I DON'T WANT TO, OF COURSE , QUIBBLE WITH THAT, BUT THAT SEEMED TO ME , OF COURSE, THAT THAT WOULD HAVE BEEN THE M ORE APPROPRIATE WAY TO INTERPRET THE STATUTE, JUST TO USE THE UNAMBIGUOUS LANGUAGE OF THE STATUTE, SO I THINK IF YOU, YOU OBVIOUSLY WOULD AVOID ANY SIXTH AMENDMENT ISSUES , IF YOU JUST CONS TRUED THESTATUTE IN TERMS OF ITS UNAMBIGUOUS LANGUAGE .
I. IT WAS DECIDED BEFORE -- I. IT WAS DECIDED BEFORE APPRENDI, SO IT DID NOT HAVE TO USE THE C A NON OF STATUTORY CONSTRUC TION THAT A STATUTE SHOULD BE INTERPRETED TO CONFORM TO THE CONSTITUTION AT THE TIME .
THAT'S RIGHT AND I T WAS A JURY TRIAL CASE, A JUVENILE C ASE, SO MAYBE THAT IS WHY IT DID NOT OCCUR TO ANYONE , BUT APPRENDI , YOU YOU ARE RIGHT, WAS NOT OUT YE T AT THAT TIME.
JUSTICE: BUT WHAT WAS S AID EARLIER TO THAT, THIS STATUTE THAT ONLY PER TAINS , REALLY , THE PLAIN LANGUAGE OF THE STATUTE IS NECESSARILY LESSER-INCLUDED OFFENSE.
THAT IS WHAT IT SAYS.
JUSTICE: O KAY.
YES. AND I HO PE I HAVE ADDRESSED WHY I THINK SIGLER CAN'T BE CONVICTED OF, AND I THINK THIS IS TRUE EVEN OF THE FOU RTH DCA IN THE FIRST SIGLER ONE , INTIMATED THIS BUT DIDN'T COMPLETELY HOLD IT, WHICH IS PROBABLY WHY THEY JUMPED TO THIRD-DEGREE FELONY MURDER ABO UT, THE ISSUE OF WHET HER HE , SIGLER AS A PASSENGER, COULD BE CRIMINALLY LI ABLE FOR THE ACTS OF THE DRIVER . THERE WAS ONE OTHER SITUATION WHERE THE PASSENGER COULD BE CRIMINALLY LIA BLE FOR THE ACTS OF THE DRIVER , AND THAT IS WHERE THE OWNER OR PERSON IN CONTROL OF THE AUTOMOBILE PUTS IT IN THE HA ND S OF AN INTOXICATED DRIVER OR A DANGEROUS DRIVER LIKE A CHILD. AND THAT IS THE MICHAEL CASE AND THE MORRIS CASE THAT AREIN THE BRIE FS . OF COURSE WE DON'T HAVE THAT HERE WHATSO EVER . AND YOU REALLY DO NEED TO SCRUTINIZE PRIN CIPLE LIABILITY, IF YOU YOU THINKABOUT IT , BECAUSE YOU ARE HOLDING ONE PERSON CRIMINALLY LIABLE FOR THE ACTIONS OF A N OTHER. SO YOU HAVE TO STRICTLY LOOK AT THE EVIDENCE AND SEE IF THE METH OD TWO ELEMENTS OF PRINCIPLE LIABILITY ANDINTENTION THAT THE ACT BE COMMITTED AND THEN AIDING AND ABET TING AND AS SIST ING OF THE CRIMINAL , OF THE CRIME, AND HERE WE DON'THAVE. THAT THIS IS NOT A CASE WHERE , FOR EXAMPLE , THE PERSON IN A LIMO OR DERS HISCHAUFFEUR TO DRIVE A WAY WHILE TWO POLICEMEN ARE HANGING ON TO THE CA R, WHICHIS ONE CASE.
JUSTICE: BUT AS TO THE THIRD DEGREE MURDER COUNT , AND THAT IS BASED ON HARBORING , W OULD YOU AGREETHAT THIS DEFENDANT DID IN FACT, DO ALL OF THE PLANNING AND DECIDE WHAT WAS GOING TO HAPPEN, BOTH AT THE TIME OF THE ESCAPE AND SUBSEQUENT TO THE ES CAPE , AND SO CAN HE IN FACT , BE , HE WAS AI DING AND EXCITING AND THE OTHERPERSON TO COM MIT THIS HARBORING , SO COUL DN'T HE BE A PRINCI PLE TO THE HARBORING OFFENSE?
WELL , LET