IN THE SUPREME COURT OF FLORIDA · with felony driving under the influence. The felony charge was...

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC12-

Lower Case No.: 4D10-2400

STATE OF FLORIDA,

Petitioner,

v.

CHRISTINA YACOUB,

Respondent.

*************:

PETITIONER'S BRIEF ON JURISDICTION

PAMELA JO BONDI

ATTORNEY GENERAL

Tallahassee, Florida

:***********

CELIA TERENZIO

Senior Assistant Attorney GeneralBureau Chief

Florida Bar No. 0656879

MARK J. HAMEL

Assistant Attorney General


1515 North Flagler Drive

Ninth Floor

West Palm Beach, FL 33401

(561) 837-5000

Counsel for Petitioner

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES i;L

PRELIMINARY STATEMENT ±

JURISDICTIONAL STATEMENT ±

STATEMENT OF THE CASE AND FACTS !

SUMMARY OF THE ARGUMENT 3

ARGUMENT 4

THE DECISION OF THE FOURTH DISTRICT COURT OF

APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH

STATE V. KELLY, 999 SO. 2D 1029 (FLA. 2008)

AND STATE V. BEACH, 592 SO. 2D 237 (FLA.

1992) .

CONCLUSION 8

CERTIFICATE OF SERVICE 9

CERTIFICATE OF TYPEFACE COMPLIANCE 9

TABLE OF AUTHORITIES

STATE CASES

Acensio v. State, 497 So. 2d 640 (Fla. 1986) 6

Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) 6

Delgado v. State, 71 So. 3d 54 (Fla. 2011) 6

Knowles v. State, 848 So. 2d 1055 (Fla. 2003) 6

Skivesen v. Brown, 136 So. 678 (Fla. 1931) 5

State v. Beach, 592 So. 2d 237 (Fla. 1992) 5

State v. Hankerson, 65 So. 3d 502 (Fla. 2011) 6

State v. Kelly, 999 So. 2d 1029 (Fla. 2008) 5

Robertson v. State, 829 So. 2d 901 (Fla. 2002) 6

Yacoub v. State, 85 So. 3d 1179 (Fla. 4th DCA 2012) 3, 4, 5

CONSTITUTIONS AND COURT RULES

Art .V, § 3, Fla. Const 6

Fla. R. App. P. 9.030 1

OTHER AUTHORITY

Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, & Robert

Craig Waters, The Operation and Jurisdiction of the Supreme

Court of Florida, 29 Nova L. Rev. 431 (2005) 6

PRELIMINARY STATEMENT

Respondent was the defendant/Appellant and Petitioner was

the prosecution/Appellee in the Criminal Division of the Circuit

Court of the Nineteenth Judicial Circuit, in and for Martin

County, Florida and the Fourth District Court of Appeal.

JURISDICTIONAL STATEMENT

The Florida Supreme Court has discretionary jurisdiction to

review a decision of a district court of appeal that expressly

and directly conflicts with a decision of this Court on the same

question of law. Fla. R. App. P. 9.030 (a) (2) (A) (iv) .

STATEMENT OF THE CASE AND FACTS

On April 18, 2012, the Fourth District Court of Appeal

issued the following four-paragraph decision in this case:

Christina Yacoub appeals her conviction and

sentence for felony driving under the

influence. We reverse because the state

failed to satisfy its burden of proving that

Yacoub was either provided counsel or

validly waived the right with respect to a

previous misdemeanor conviction.

On July 4, 2008, the state charged Yacoub

with felony driving under the influence.

The felony charge was based on her guilty

plea to two misdemeanor DUI offenses within

the past ten years. See § 316.193(2) (b),

Fla. Stat. (2008). Yacoub moved to dismiss

the charge for lack of jurisdiction, arguing

that there was no valid felony charge to

prosecute in circuit court since one of her

2002 DUI convictions had been uncounseled.

Following a hearing, the trial court denied

the motion.

A defendant charged with felony DUI may move

to dismiss the charge by alleging that the

state is improperly relying on a prior

uncounseled misdemeanor DUI conviction. See

State v. Kelly, 999 So. 2d 1029, 1052 (Fla.

2008). To validly raise such a

jurisdictional challenge, the defendant must

satisfy an initial burden of production by

asserting under oath "(l) that the [prior]

offense involved was punishable by more than

six months of imprisonment or that the

defendant was actually subjected to a term

of imprisonment; (2) that the defendant was

indigent and, thus, entitled to court-

appointed counsel; (3) [that] counsel was

not appointed; and (4) [that] the right to

counsel was not waived." Id. at 1037

(citing State v. Beach, 592 So. 2d 237, 239

(Fla. 1992)). If the defendant carries this

minimalistic burden, then the "burden of

persuasion shifts to the state to show

either that counsel was provided or that the

right to counsel was validly waived." See

id. at 1053.

At the hearing on the motion in this case,

the parties stipulated that Yacoub pleaded

guilty to two prior DUIs on the same date in

2002 before the same judge, while Yacoub was

in custody. They further agreed that one

DUI was handled by the public defender's

office and that the second was punishable by

imprisonment. The state had the burden of

establishing that counsel was provided for

the second DUI or that Yacoub validly waived

her right to counsel. The state offered no

transcript of the 2002 plea conference and

no other evidence of what occurred. The

state produced no written waiver of the

right to counsel. See Fla. R.Crim. P.

3.160(e). The lawyer who was present for

Yacoub on one DUI at the 2002 hearing did

not appear to testify. The state argued

that the temporal proximity of the two pleas

circumstantially established that both pleas

were entered on the advice of counsel. The

trial judge accepted this view. However, the

state's "showing" failed to meet the

requirements of Beach and Kelly, which

require "evidence in the record" "'to show

[1] either that counsel was provided or [2]

that the right to counsel was validly

waived.'" Beach, 592 So.2d at 239; Kelly,

999 So.2d at 1037 (quoting Beach) (emphasis

in original). The sparse record failed to

carry the state's burden of persuasion under

Kelly and Beach. We therefore reverse the

felony conviction and remand to the circuit

court to resentence Yacoub to misdemeanor

driving under the influence.

Yacoub v. State, 85 So. 3d 1179, 1179-80 (Fla. 4th DCA 2012).

On April 20, 2012, the State filed a motion for rehearing.

On May 16, 2012, the State's motion for rehearing was denied.

SUMMARY OF THE ARGUMENT

The Fourth District Court of Appeal misapplied two

decisions of this Court that explained the procedure for the

State to establish that counsel was provided for prior

convictions or that the right to counsel was validly waived.

The Fourth District Court also misconstrued the term "burden of

persuasion." Therefore, this Court should exercise its

discretion and accept review of case in order to correct the

result of this case and to prevent the confusion that will

result from the misapplication of this Court's prior decisions.

ARGUMENT

THE DECISION OF THE FOURTH DISTRICT COURT OF

APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH

STATE V. KELLY, 999 SO. 2D 1029 (FLA. 2008)

AND STATE V. BEACH, 592 SO. 2D 237 (FLA.

1992).

By stipulation, the State established that Respondent pled

guilty to two prior DUIs on the same date, before the same

judge, and while Respondent was in custody. Yacoub, 85 So. 3d

at 1180. The stipulation further agreed that one of the two

DUIs was handled by the public defender's office. Id. The

trial court accepted the State's argument that the stipulation

provided circumstantial evidence that both pleas were entered on

the advice of counsel. Id. However, the Fourth District Court

of Appeal concluded that the trial court's decision was contrary

to this Court's Beach and Kelly decisions. Yacoub, 85 So. 3d at

1180.

The Fourth Court of Appeal misapplied two aspects of this

Court's Beach and Kelly decisions. First, the Fourth District

Court of Appeal found that "the state's * showing' failed to meet

the requirements of Beach and Kelly, which require 'evidence in

the record' »to show either that counsel was provided or that

the right to counsel was validly waived.'" Yacoub, 85 So. 3d at

1180. However, Beach and Kelly only require "evidence in the

record" to show waiver; the Fourth District Court of Appeal

pieced together quoted language from Beach that does not belong

together. See Beach, 591 So. 2d at 239; Kelly, 999 So. 2d at

1037. Nonetheless, even if "evidence is the record" is required

to show that counsel was provided, the stipulation used in this

case would certainly satisfy that requirement. See Skivesen v.

Brown, 136 So. 678, 678 (Fla. 1931) (stating that a stipulation

"operates as proof of the facts admitted").

Second, the Fourth District Court of Appeal misunderstood

the meaning of "burden of persuasion." In Kelly, this Court

applied the definition of "burden of persuasion" provided in

Black's Law Dictionary: "[B]urden of persuasion. A party's

duty to convince the fact-finder to view the facts in a way that

favors that party." Kelly, 999 So. 2d at 1037. In the instant

case, the burden of persuasion was obviously successfully

carried because the State convinced the trial court that

Respondent was represented. See Yacoub, 85 So. 3d at 1180 ("The

state argued that the temporal proximity of the two pleas

circumstantially established that both pleas were entered on the

advice of counsel. The trial judge accepted this view").

Therefore, the declaration by the Fourth District Court of

Appeal that the "record failed to carry the state's burden of

persuasion under Kelly and Beach" makes no sense.

Since the Fourth District Court of Appeal misconstrued the

requirement of evidence in the record and misunderstood the

burden on the State, the instant case conflicts with this

Court's Kelly and Beach decisions. See Delgado v. State, 71 So.

3d 54, 56 (Fla. 2011) ("We conclude that the Third District

misapplied our decision in Faison, and, accordingly, we have

jurisdiction."); State v. Hankerson, 65 So. 3d 502, 503 (Fla.

2011) (accepting jurisdiction based on conflict created by

misapplication of decisional law); Aguilera v. Inservices, Inc.,

905 So. 2d 84, 86 (Fla. 2005) (same); Knowles v. State, 848 So.

2d 1055, 1056 (Fla. 2003) (same); Robertson v. State, 829 So. 2d

901, 904 (Fla. 2002) (stating that misapplication of decisional

law creates conflict jurisdiction); Acensio v. State, 497 So. 2d

640, 641 (Fla. 1986) (accepting jurisdiction based on conflict

created by misapplication of decisional law).

When the decision of a district court conflicts with a

decision of this Court or of another district court of appeal,

this Court's jurisdiction is discretionary. Art. V, § 3(b)(3),

Fla. Const. This Court should exercise its discretion to hear

this case for at least two reasons. See Harry Lee Anstead,

Gerald Kogan, Thomas D. Hall, & Robert Craig Waters, The

Operation and Jurisdiction of the Supreme Court of Florida, 29

Nova L. Rev. 431, 485 (2005) (njurisdictional briefs in

discretionary cases should always demonstrate that the case is

significant enough to be heard").

First, the case was wrongly decided. The circumstances

stipulated to by the parties provided compelling evidence that

Respondent was represented by counsel on both prior cases.

Therefore, Respondent's conviction for felony DUI was proper and

entirely consistent with this Court's Kelly and Beach decisions.

Reversal of Respondent's felony conviction is contrary to

caselaw and the intent of the legislature.

Second, the appellate court's misunderstanding of the

requirement of evidence in the record and the burden on the

State is problematic. It is important that trial courts,

district courts of appeal, and legal practitioners understand

the proper burden placed on the State to prove that counsel was

provided or waived. The decision of the Fourth District Court

of Appeal creates a precedent that misconstrues the State's

burden of persuasion as something completely different than what

this Court intended.

CONCLUSION

Based on the foregoing argument, Petitioner requests that

this Honorable Court accept jurisdiction in this case.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

Tallahassee, Florida

CELIA TERENZIO/

Senior Assistant Attorney GeneralBureau Chief


MARK J. HAMEL

Assistant Attorney General


1515 North Flagler Drive

Ninth Floor

West Palm Beach, FL 33401

(561) 837-5000

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy of the

foregoing was sent by courier to Emily Ross-Booker, Assistant

Public Defender, Counsel for Respondent, at 421 3rd Street, 6th

Floor, West Palm Beach, FL 33401 on June 8, 2012.

MARK J. HAMEL


CERTIFICATE OF TYPEFACE COMPLIANCE

I HEREBY CERTIFY that this brief has been prepared in

Courier New font, 12 point, and double spaced.

MARK J. HAMEL


APPENDIX

Yacoub v. State, 85 So. 3d 1179 (Fla. 4th DCA 2012)

of3

Westtaw.

85 So.3d 1179, 37 Fla. L. Weekly D926

(Citeas:85So.3dll79)

Pagel

District Court ofAppeal of Florida,

Fourth District.

Christina YACOUB, Appellant,

v.

STATE of Florida, Appellee.

No. 4D10-2400.

April 18, 2012.

Rehearing Denied May 16, 2012.

Background: Defendant was convicted in the Cir

cuit Court for the Nineteenth Judicial Circuit, Mar

tin County, Sherwood Bauer, Jr., J., of felony driv

ing under the influence (DUI), and she appealed.

Holding: The District Court of Appeal, Gross, J.,

held that charge of felony DUI would be dismissed

on ground that the State was improperly relying on

a prior uncounseled misdemeanor DUI conviction.

Reversed and remanded.

West Headnotes

[1] Automobiles 48A O=>359.6

48A Automobiles

48AVII Offenses

48AVII(C) Sentence and Punishment

48Ak359.3 Driving While Intoxicated

48Ak359.6 k. Repeat offenders. Most

Cited Cases

Defendant charged with felony driving under

the influence (DUI) may move to dismiss the

charge by alleging that the state is improperly rely

ing on a prior uncounseled misdemeanor DUI con

viction, and to validly raise such a jurisdictional

challenge, the defendant must satisfy an initial bur

den of production by asserting under oath: (1) that

the prior offense involved was punishable by more

than six months of imprisonment or that the defend

ant was actually subjected to a term of imprison

ment; (2) that the defendant was indigent and, thus,

entitled to court-appointed counsel; (3) that counsel

was not appointed; and (4) that the right to counsel

was not waived. West's F.S.A. § 316.193(2)(b);

U.S.C.A. ConstAmend. 6.

[2] Automobiles 48A €=>359.6

48A Automobiles

48AVII Offenses



48Ak359.6 k. Repeat offenders. MostCited Cases

If driving under the influence (DUI) defendant,

challenging validity of prior convictions on ground

that they were uncounseled, sets forth facts under

oath to meet initial burden, then burden of persua

sion shifts to the state to show either that counsel

was provided or that the right to counsel was val

idly waived. U.S.C.A. ConstAmend. 6; West'sF.S.A. §316.193(2)(b).

[3] Automobiles 48A C=>359.6

48A Automobiles

48AVII Offenses



48Ak359.6 k. Repeat offenders. MostCited Cases

Although defendant pleaded guilty to two prior

driving under the influence (DUI) charges on the

same date and one DUI charge was handled by the

public defender's office, State did not prove that

counsel was provided for the second DUI charge or

that defendant validly waived her right to counsel

as to her second DUI charge, and absent such evid

ence, charge of felony DUI would be dismissed on

ground that the State was improperly relying on a

prior uncounseled misdemeanor DUI conviction;

State offered no transcript of the prior plea confer

ence and no other evidence of what occurred, State

produced no written waiver of the right to counsel,

and temporal proximity of defendant's two pleas did

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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85 So.3d 1179, 37 Fla. L. Weekly D926


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not circumstantially establish that both pleas were

entered on the advice of counsel. U.S.C.A.

ConstAmend. 6; West's F.S.A. § 316.193(2)(b).

*1179 Carey Haughwout, Public Defender, and

Emily Ross-Booker, Assistant Public Defender,West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee,

and Mark J. Hamel, Assistant Attorney General,West Palm Beach, for appellee.

GROSS, J.

Christina Yacoub appeals her conviction and

sentence for felony driving under the influence. We

reverse because the state failed to satisfy its burden

of proving that Yacoub was either provided counsel

or validly*1180 waived the right with respect to a

previous misdemeanor conviction.

On July 4, 2008, the state charged Yacoub with

felony driving under the influence. The felony

charge was based on her guilty plea to two misde

meanor DUI offenses within the past ten years. See

§ 316.193(2)(b), Fla. Stat. (2008). Yacoub moved

to dismiss the charge for lack of jurisdiction, ar

guing that there was no valid felony charge to pro

secute in circuit court since one of her 2002 DUI

convictions had been uncounseled. Following a

hearing, the trial court denied the motion.

[1][2] A defendant charged with felony DUI

may move to dismiss the charge by alleging that the

state is improperly relying on a prior uncounseled

misdemeanor DUI conviction. See State v. Kelly,

999 So.2d 1029, 1052 (Fla.2008). To validly raise

such a jurisdictional challenge, the defendant must

satisfy an initial burden of production by asserting

under oath "(1) that the [prior] offense involved

was punishable by more than six months of impris

onment or that the defendant was actually subjected

to a term of imprisonment; (2) that the defendant

was indigent and, thus, entitled to court-appointed

counsel; (3) [that] counsel was not appointed; and

(4) [that] the right to counsel was not waived." Id.

at 1037 (citing State v. Beach, 592 So.2d 237, 239

(Fla. 1992)). If the defendant carries this minimalist-

ic burden, then the "burden of persuasion shifts tothe state to show either that counsel was provided

or that the right to counsel was validly waived." Seeid. at 1053.

[3] At the hearing on the motion in this case,

the parties stipulated that Yacoub pleaded guilty to

two prior DUIs on the same date in 2002 before the

same judge, while Yacoub was in custody. They

further agreed that one DUI was handled by thepublic defender's office and that the second was

punishable by imprisonment. The state had the bur

den of establishing that counsel was provided forthe second DUI or that Yacoub validly waived her

right to counsel. The state offered no transcript of

the 2002 plea conference and no other evidence of

what occurred. The state produced no written

waiver of the right to counsel. See Fla. R.Crim. P.

3.160(e). The lawyer who was present for Yacoub

on one DUI at the 2002 hearing did not appear to

testify. The state argued that the temporal proximity

of the two pleas circumstantially established thatboth pleas were entered on the advice of counsel.

The trial judge accepted this view. However, the

state's "showing" failed to meet the requirements of

Beach and Kelly, which require "evidence in the re

cord" " ' to show [1] either that counsel was

provided or [2] that the right to counsel was validly

waived.' " Beach, 592 So.2d at 239; Kelly, 999

So.2d at 1037 (quoting Beach ) (emphasis in origin

al). The sparse record failed to carry the state's bur

den of persuasion under Kelly and Beach. We there

fore reverse the felony conviction and remand to

the circuit court to resentence Yacoub to misdemeanor driving under the influence.

Reversed and remanded.

MAY, C.J., and DAMOORGIAN, J., concur.

Fla.App. 4Dist.,2012.

Yacoub v. State

85 So.3d 1179, 37 Fla. L. Weekly D926


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85 So.3d 1179, 37 Fla. L. Weekly D926


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