Post on 23-Jan-2023
IN THE SUPREME COURT OF FLORIDA
CASE NO.: SC04-789
ROBERT L. HENRY,
Appellant,
VS.
STATE OF FLORIDA,
Appellee.
**************************************************************** ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL
CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, (Criminal Division) ****************************************************************
ANSWER BRIEF OF APPELLEE CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida Celia A. Terenzio Sr. Assistant Attorney General Bureau Chief Florida Bar No.: 0656879 1515 North Flagler Drive 9th Floor West Palm Beach, FL 33401 Telephone: (561) 837-5000 Facsimile: (561) 837-5108 Counsel for Appellee
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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................ i TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 STATEMENT OF THE CASE AND FACTS............................... 1 SUMMARY OF THE ARGUMENT ...................................... 6 ARGUMENT..................................................... 7
ISSUE 1 HENRY’S APPEAL OF THE DENIAL OF HIS RULE 3.8531 MOTION IS MOOT AND IN THE ALTERNATIVE THE TRIAL COURT PROPERLY DISMISSED THE RULE 3.853 MOTION WITHOUT PREJUDICE AS THE ISSUES WERE SO INTERTWINED WITH THE POSTCONVICTION APPEAL CASE NUMBER SC03-1312 THAT THE TRIAL COURT DID NOT HAVE JURISDICTION (restated)...... 7
CONCLUSION.................................................. 18 CERTIFICATE OF SERVICE ...................................... 18 CERTIFICATE OF COMPLIANCE ................................... 19
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TABLE OF AUTHORITIES
CASES Allen v. Martinez, 573 So. 2d 987 (Fla. 1st DCA 1991)........................... 12 Board of Public Instruction v. Budget Commission of Orange County, 249 So. 2d 6 (Fla. 1971) .................................... 11 Boatman v. Crosby, 839 So. 2d 827 (Fla. 4th DCA 2003)........................... 13 Brown v. Bay County, 900 So. 2d 780 (Fla. 2d DCA 2005)............................ 13 DeHoff v. Imeson, 153 Fla. 553, 15 So. 2d 258 (1943)........................... 11 Seven Hills, Inc. v. Bentley, 848 So. 2d 345 (Fla. 1st DCA 2003)........................... 10 Espinosa v. Florida, 505 U.S. 1070 (1992) ......................................... 3 Goodwin v. State, 593 So. 2d 211 (Fla. 1992) .................................. 11 Henry v. Florida, 505 U.S. 1216 (1992) ......................................... 3 Henry v. Florida, 510 U.S. 1048 (1994) ......................................... 3 Henry v. State, 586 So. 2d 1033 (Fla. 1991) ............................... 1, 2 Henry v. State, 613 So. 2d 429 (Fla. 1993) ................................... 3 Neal v. State, 2005 WL. 3179745 (Fla. 4th DCA Nov. 30, 2005) ................ 15 Newberry v. State, 827 So. 2d 387 (Fla. 4th DCA 2002)........................... 16
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Oliva v. State, 766 So. 2d 439 (Fla. 1st DCA 2000)........................... 13 Sarasota-Fruitville Drainage District v. Certain Lands etc., 80 So. 2d 335 (Fla. 1955) ............................... 12, 16 Tompkins v. State, 894 So. 2d 857 (Fla. 2005) .......................... 13, 16, 17 Wheeler v. State, 2005 WL. 3453948 (Fla. 1st DCA, Dec. 19, 2005) ............... 15
OTHER PROVISIONS Florida Rule of Criminal Procedure 2.216 ................... 4, 7 Florida Rules of Criminal Procedure 3.850 ..................... 3 Florida Rules of Criminal Procedure 3.851 ..................... 3 Florida Rule of Criminal Procedure 3.853 ..........4 – 8, 10 - 17
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PRELIMINARY STATEMENT
Appellant, Robert L. Henry, was the defendant at trial
court below and will be referred to as the “Appellant” or
“Henry”. Appellee, the State of Florida, the prosecution
below will be referred to as the “State”. Reference to the
original record on appeal will be by the symbol "ROA",
reference to the postconviction record will be the symbol
"PCR", reference to the instant record of the denial of DNA
testing without prejudice will be the symbol “PCR-DNA”,
reference to the supplemental records will be the “S”
preceding the record type, reference to the Appellant’s
initial brief will be “IB” followed by the appropriate page
number(s).
STATEMENT OF THE CASE AND FACTS
Robert Henry was convicted of and sentenced to death
for two counts of first-degree murder in the burning deaths
of Janet Thermidor and Phyllis Harris. He was also
convicted and sentenced to life imprisonment for armed
robbery and arson. Henry’s convictions and sentences were
affirmed in Henry v. State, 586 So. 2d 1033, 1035 (Fla.
1991), where this Court found the following:
Around 9:30 p.m. on November 1, 1987 fire fighters and police officers responded to a fire at a fabric store
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in Deerfield Beach. Inside they found two of the store's employees, Phyllis Harris, tied up in the men's restroom, and Janet Thermidor, on the floor of the women's restroom. Each had been hit in the head with a hammer and set on fire. Harris was dead when found. Although suffering from a head wound and burns over more than ninety percent of her body, Thermidor was conscious. After being taken to a local hospital, she told a police officer that Henry, the store's maintenance man, had entered the office, hit her in the head, and stolen the store's money. Henry then left the office, but returned, threw a liquid on her, and set her on fire. Thermidor said she ran to the restroom in an effort to extinguish the fire. She died the following morning.
Based on Thermidor's statement, the police began looking for Henry and found him shortly before 7:00 a.m. on November 3, at which time they arrested him. Henry initially claimed that three unknown men robbed the store and abducted him, but later made statements incriminating himself. A grand jury indicted Henry for two counts of first-degree murder, armed robbery, and arson. The jury convicted him as charged and recommended the death sentence for each of the murders, which the trial court imposed.
After being arrested, Henry made a total of six oral and taped statements. In the first two he claimed that unknown robbers forced their way into the store and denied any personal involvement. In the other statements he confessed that he acted alone.
Henry, 586 So. 2d at 1035.
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Henry’s petition for certiorari review was granted by
the United States Supreme Court; his judgment was vacated
and the case was remanded to this Court for further
consideration in light of Espinosa v. Florida, 505 U.S.
1070 (1992). Henry v. Florida, 505 U.S. 1216 (1992). On
December 24, 1992, this Court again affirmed Henry's
conviction and sentence adding the following to the
original opinion:
In Henry v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992), the United States Supreme Court vacated the judgment against Henry and remanded for our reconsideration in light of Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), which declared inadequate our former instruction on the heinous, atrocious, or cruel aggravator. Henry, however, requested, and his trial court gave, an expanded instruction defining the terms of and limiting the applicability of this aggravator. Thus, the instruction given to Henry's jury was not unconstitutionally vague, and we reaffirm his death sentences.
Henry v. State, 613 So.2d 429, 434 (Fla. 1993). On January
10, 1994, the Supreme Court denied the subsequent petition
for writ of certiorari. Henry v. Florida, 510 U.S. 1048
(1994).
Next, Henry sought postconviction relief under Florida
Rules of Criminal Procedure 3.850 and 3.851. In October
1998, Henry filed his final postconviction motion. On
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October 18, 2000 and August 6-8, 2001, the trial court held
an evidentiary hearing on the following claims: counsel was
ineffective for failing to utilize expert mental health
professionals and present mitigation to the jury at the
penalty phase; counsel did not make adequate use of Florida
Rule of Criminal Procedure 2.216 which authorizes the
appointment of confidential experts; and counsel was
ineffective for failing to ask defense experts to address
mitigating factors of substance abuse and organic brain
problems. (PCR 1100). The claims of deficiency focused in
part on Henry’s alleged intoxication at the time of the
crime as well as long term substance abuse, and the
evidence and/or witnesses counsel could have investigated
and presented in support of an intoxication defense and
mitigation. Relief was denied on January 17, 2003 and on
June 23, 2003, rehearing was denied. The appeal of the
denial of postconviction relief, including the
effectiveness of counsel related to the intoxication issue,
is pending before this Court in case number SC03-1312.
Oral argument is scheduled for January 9, 2006.
On September 30, 2003, under Florida Rule of Criminal
Procedure 3.853, Henry filed a motion seeking DNA testing
of a beer can, modified for use as a crack cocaine pipe,
and found near the crime scene. Henry claimed that if his
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DNA profile were found on the modified beer can, “then his
argument in support of further forensic testing to support
crack cocaine use at the time of the offense is bolstered.”
Further he pled that his counsel, Raticoff, was knew of the
beer can and “Raticoff’s failure to pursue any form of
testing of the beer can has been argued as significant
support for deficient performance at trial.” (PCR-DNA 15).
Upon finding the rule 3.851 and rule 3.853 issues were
intertwined, the rule 3.853 motion was dismissed without
prejudice to refile after the appeal of the denial of
postconviction relief (case number SC03-1312) was resolved.
(PCR-DNA 1-8, 14-16).
Subsequently on April 1, 2005, Henry sought
relinquishment of jurisdiction of both his postconviction
(SC03-1312) and rule 3.853 appeals (SC04-789). On October
17, 2005, this Court entered its order denying Henry’s
request “without prejudice to proceed in the trial court
after the appeals are concluded.”
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SUMMARY OF THE ARGUMENT
Issue I - This appeal has been rendered moot as a
result of this Court’s October 17, 2005 order permitting
Henry litigate his rule 3.853 motion “in the trial court
after the appeals are concluded.” Alternately, the trial
court order dismissing the rule 3.853 motion without
prejudice to refile after the postconviction appeal was
concluded is not an appealable order. Nonetheless, the
trial court’s order dismissing the rule 3.853 motion
without prejudice to refile after the rule 3.851 appeal was
resolved was the proper ruling under the circumstances of
this case, and Henry suffered no harm from the ruling. The
issues of the rule 3.851 and 3.853 motions were so
intertwined, the trial court lacked jurisdiction to resolve
the rule 3.853 motion which was filed after Henry file his
appeal of the ruling on his motion for postconviction
relief. This Court should dismiss as moot or because a
justiciable issue has not been raised. Alternately, the
trial court’s order should be affirmed.
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ARGUMENT
ISSUE I
HENRY’S APPEAL OF THE DENIAL OF HIS RULE 3.8531 MOTION IS MOOT AND IN THE ALTERNATIVE THE TRIAL COURT PROPERLY DISMISSED THE RULE 3.853 MOTION WITHOUT PREJUDICE AS THE ISSUES WERE SO INTERTWINED WITH THE POSTCONVICTION APPEAL CASE NUMBER SC03-1312 THAT THE TRIAL COURT DID NOT HAVE JURISDICTION (restated)
Henry asserts it was error to dismiss his rule 3.853
motion upon the trial court’s finding it did not have
jurisdiction to hear the rule 3.853 motion during the
pendency of Henry’s appeal of the denial of his Florida
Rule of Criminal Procedure 3.851 motion. The remedy Henry
seeks is to have this Court direct the trial court to
either hold the rule 3.853 motion in abeyance or to set a
time limit within which he may refile his rule 3.853 motion
upon resolution of the rule 3.851 appeal. (IB 6). The
State’s position is that this Court’s October 17, 2005
order denying relinquishment of jurisdiction rendered this
appeal moot.2 Alternately, the order dismissing the rule
1Florida Rule of Criminal Procedure 3.853.
2A separate motion to dismiss on the ground the appeal is moot has been filed. Such is based upon this Court’s October 17, 2005 order denying Henry’s motion to relinquish jurisdiction this Court’s order denying relinquishment of jurisdiction “without prejudice to proceed in the trial court after the appeals are concluded.”
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3.853 motion without prejudice is not an appealable order.
However, should this Court reject the suggestion of
mootness and the argument that the order is not appealable,
the trial court’s January 6, 2004 order dismissing the rule
3.853 motion without prejudice was proper. Due to the
extensive intertwining of issues between the rule 3.851 and
rule 3.853, the trial court correctly found it had lost
jurisdiction to hear the rule 3.853 motion while the rule
3.851 issue was pending on appeal before this Court. The
dismissal was without prejudice to refile after the rule
3.851 appeal was final, thus, the trial court provided
Henry with the same remedy this Court has afforded him
through the October 17, 2005 order. This Court either
should dismiss the appeal as moot or affirm the denial of
the rule 3.853 motion.
On September 30, 2003, Henry filed a motion with the
trial court seeking DNA testing of a beer can, modified to
be used as a crack cocaine pipe, which was collected near
the crime scene. (PCR-DNA 1-8). After Henry filed his
supplemental memorandum on the issue of jurisdiction and
the State responded to the motion for DNA testing (PCR-DNA
11-13; S-PCR-DNA 1-18), the trial court dismissed the
motion finding:
In the instant Rule 3.853 motion for
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DNA testing, although worded “differently,” from the claim in the 3.850 Third Amended Motion, the Defendant is in essence challenging this Court’s rulings involving trial counsel as raised in the Third Amended Motion for Post Conviction relief. The Defendant is using the 3.853 motion to challenge such rulings which are currently on appeal. Therefore, any decision by this Court on the merits of the 3.853 motion will directly conflict with the pending appeal of this Court’s order denying the Third Amended Motion for Post Conviction Relief and the Motion for Rehearing. The issues in the DNA motion and the order on appeal are completely intertwined, and as such, a ruling by this Court will interfere with the Supreme Court’s decision on appeal.
(PCR-DNA 15). As a result, the trial court entered an
order which “DISMISSED” Henry’s motion “without prejudice
and with leave to refile the motion after the Supreme Court
rules on the orders denying the Defendant’s Third Amended
Motion for Post-conviction relief....” (PCR-DNA 16)
(emphasis in original). On February 4, 2004, Henry filed
his notice of appeal.
During the pendency of the appeal, Henry sought
relinquishment of jurisdiction of both his postconviction
appeal (SC03-1312) and his appeal of the DNA motion (SC04-
789). On October 17, 2005, this Court entered its order
denying Henry’s request for relinquishment of jurisdiction.
The denial was “without prejudice to proceed in the trial
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court after the appeals are concluded.”
The standard of review for an issue challenging the
determination of jurisdiction, a question of law, is
reviewed de novo. Seven Hills, Inc. v. Bentley, 848 So.2d
345, 350 (Fla. 1st DCA 2003).
Henry recognizes that this Court’s October 17, 2005
order denying relinquishment of jurisdiction without
prejudice for him to proceed in the trial court after the
appeals are concluded renders this appeal moot. (IB 6).
However, Henry asks that this Court set a time frame within
which he may refile his rule 3.853 motion with the trial
court following the conclusion of the appeals. Henry is
correct that the matter is moot, however, he is not
entitled to an advisory opinion from this Court as to the
time frame for refiling his rule 3.853 motion.
The trial court order being appealed was a dismissal
of the rule 3.853 motion without prejudice to refile after
the rule 3.851 appeal was resolved. (PCR-DNA 16). This
Court’s October 17, 2005 order afforded Henry the same
relief as the trial court, i.e., the opportunity to refile
his rule 3.853 motion following the conclusion of the
postconviction appeal in case number SC03-1312. This
renders the appeal moot, which Henry, for all intent and
purposes recognized. (IB 6).
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An appeal is rendered moot when the controversy has
been resolved so that there no longer exists a justiciable
issue. Any additional judicial action will have no real
effect on the litigation. See Goodwin v. State, 593 So.2d
211, 212 (Fla. 1992)(recognizing “[a]n issue is moot when
the controversy has been so fully resolved that a judicial
determination can have no actual effect.... A case is
“moot” when it presents no actual controversy or when the
issues have ceased to exist.... A moot case generally will
be dismissed”); Bd. of Pub. Instruction v. Budget Comm'n of
Orange County, 249 So.2d 6 (Fla. 1971)(noting an appeal
that is rendered moot must be dismissed); DeHoff v. Imeson,
153 Fla. 553, 554, 15 So.2d 258, 259 (1943) (finding court
should not determine controversy where issues have been
rendered moot). Here, this Court has provided Henry with
the exact same relief as the trial court; Henry may refile
his rule 3.853 motion after his postconviction appeal had
been resolved.
Henry’s reservation in declaring the matter entirely
moot is that no time frame was provided by this Court
within which Henry may refile his rule 3.853 motion
following the conclusion of his postconviction appeal.
What Henry is seeking is an advisory opinion from this
Court. It is well settled that this Court will not issue
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advisory opinions except as provided by the Florida
Constriction. The advisory opinion Henry seeks does not
fall into the category of advisory opinions provided by the
constitution. See Sarasota-Fruitville Drainage Dist. v.
Certain Lands etc., 80 So.2d 335,336 (Fla. 1955) (noting
“[w]e have repeatedly held that this Court was not
authorized to render advisory opinions except in the
instances require or authorized by the Constitution”);
Allen v. Martinez, 573 So.2d 987, 989 (Fla. 1st DCA 1991)
(same). As such, Henry is not entitled to anything more
than was provided by this Court in its October 17, 2005
order or by the trial court in its January 5, 2004
dismissal of the rule 3.853 motion without prejudice. This
Court should dismiss Henry’s appeal finding it moot.
Moreover, as asserted in the State’s Motion to Dismiss
and reasserted here, the order Henry maintains was
erroneous is not an appealable final order which affected
him adversely. Rule 3.853(e) provides that “[a]n appeal
may be taken by any adversely affected party within 30 days
from the date the order on the motion is rendered.” The
trial court’s order of dismissal was without prejudice,
therefore, Henry has not shown that the order was final or
that he suffered any harm. There has been no adverse
affect on Henry because he has been given the opportunity
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to refile his rule 3.853 motion as soon as the
postconviction appeal is concluded. Cf. Brown v. Bay County
900 So.2d 780 (Fla. 2d DCA 2005) (stating “[a] dismissal
without prejudice is a nonfinal, nonappealable order if the
dismissal is without prejudice”); Boatman v. Crosby, 839
So.2d 827 (Fla. 4th DCA 2003) (noting dismissal of
defendant’s civil complaint without prejudice is a “non-
appealable order”); Oliva v. State, 766 So.2d 439 (Fla. 1st
DCA 2000) (recognizing “[a]n order merely granting a motion
to dismiss is not an appealable, non-final order or a final
order”). This Court should dismiss the appeal.
Assuming arguendo that this Court reaches the merits
of the challenge to the trial court’s resolution of the
rule 3.853 motion, it should find that the dismissal
without prejudice was proper. As this Court recognized in
Tompkins v. State, 894 So.2d 857, 859 (Fla. 2005), when the
facts of the rule 3.851 pending on appeal and dismissed
rule 3.853 motion are so intertwined, the trial court lacks
jurisdiction and does not act outside its jurisdiction to
dismiss the rule 3.853 motion.
The issues involved in the postconviction litigation
involved counsel’s effectiveness investigating, preparing,
and presenting evidence supporting Henry’s alleged drug
abuse. This included such allegations that an expert in
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neuropharmocology should have been employed, family members
should have been interviewed and presented, items of
clothing should have been tested for drug residue, and an
empty beer modified as a crack cocaine pipe and left at the
scene should have been tested for fingerprints. (See case
number SC03-1312, initial brief at 35-36). Henry’s rule
3.853 motion3 asserted:
4. A definitive answer connection between Mr. Henry and the beer can may be provided through DNA analysis. If Henry’s DNA profile is identified on the beer can, then his argument in support of further forensic testing to support crack cocaine use at the time of the offense is bolstered. Such evidence would support both guilt phase intoxication defense and mitigation.
5. An underlying issue in Mr. henry’s mitigation case is his use of crack cocaine at the time of the offense. This Court should recall that trial counsel Raticoff was well aware of the existence of the beer can at trial because he questioned aa officer about the attempted fingerprinting of the can (R. 2198). Mr. Raticoff’s failure to pursue any form of testing of the beer can has been argued as significant
3The State does not waive any of its arguments challenging the legal sufficiency of the rule 3.853 motion or the propriety of granting same. Because the State’s response below and the trial court’s resolution of the matter were limited to jurisdictional grounds, the State will so limit its answer here. However, the State reserves the right to assert all procedural and substantive defenses it finds appropriate should Henry pursue DNA testing with the trial court at a later date.
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support for deficient performance of trial counsel.
(PCR-DNA 2)(footnote omitted). As the trial court found,
these allegations were the same as those in the rule 3.851
litigation, except worded “differently.” (PCR-DNA 15). The
pith of both the rule 3.851 and rule 3.853 challenges
relate to the prejudice Henry hopes to prove arose from
counsel’s alleged failure to show intoxication at the time
of the offense. Without question, the DNA and ineffective
assistance of counsel claims are interrelated to such a
degree that the trial court lacks jurisdiction to rule on
the merits of the DNA matter while the rule 3.851 appeal
remains pending.
When a party appeals the ruling on his postconviction
claim, the trial court is divested of jurisdiction to hear
other related postconviction mattes. See Wheeler v. State,
2005 WL 3453948, *1 (Fla. 1st DCA, Dec. 19, 2005) (opining
“an appeal of a postconviction relief matter will not
deprive the trial court of jurisdiction so long as the
issues raised in the two cases are unrelated”); Neal v.
State, 2005 WL 3179745, *1 (Fla. 4th DCA Nov. 30, 2005)
(determining that trial court retains jurisdiction to hear
postconviction claims “wholly unrelated” to those matters
pending on appeal from a prior postconviciton motion);
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Newberry v. State, 827 So.2d 387 (Fla. 4th DCA 2002)
(noting that trial court has jurisdiction to rule on motion
seeking DNA testing when a prior rule 3.850 motion is
pending on appeal if the motions are not related to the
same issue). As noted above, the DNA and postconviction
issues are intertwined, and as Henry concedes (PCR-DNA 2),
the DNA results would bolster prior arguments that further
forensic testing should have been done by counsel to show
cocaine use at the time of the crime. (PCR-DNA 2-3 ¶¶4-5).
This Court should find that the trial court had lost
jurisdiction and that the dismissal was proper.
Henry’s reliance upon Tompkins to prompt this Court to
give an advisory opinion4 regarding a time frame within
which he may refile his rule 3.853 motion after the
postconviction appeal is completed or to direct the trial
court to hold the rule 3.853 motion in abeyance is
misplaced. The record reflects that the “procedural
dilemma” noted in Tompkins does not exist here. This Court
has ruled that Henry may “proceed in the trial court after
the appeals are concluded.” Such language was not included
4See Sarasota-Fruitville Drainage Dist. v. Certain Lands etc., 80 So.2d 335,336 (Fla. 1955) (noting “[w]e have repeatedly held that this Court was not authorized to render advisory opinions except in the instances required or authorized by the Constitution”).
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in this Court’s denial of relinquishment in Tompkins. See
Tomkins v. State, case number SC01-1619 (docket entry -
order dated October 10, 2003 denying relinquishment of
jurisdiction). This Court’s October 10, 2003 order in
Tompkins was silent regarding returning to the trial court.
The court’s order dismissing without prejudice Henry’s rule
3.853 motion should be affirmed.
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CONCLUSION
Based upon the foregoing, the State requests
respectfully that this Court affirm the trial court’s
dismissal of the rule 3.853 motion.
Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL _____________________________ Celia A. Terenzio Sr. Asst. Attorney General Bureau Chief Florida Bar No.: 0656879 1515 N. Flagler Dr 9th Floor West Palm Beach, FL 33401 Telephone: (561) 837-5000 Facsimile: (561) 837-5108 COUNSEL FOR APPELLEE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing answer brief has been furnished by U.S. Mail to
Rachel L. Day, Esq. Capital Collateral Regional Counsel -
South, 101 N.E. 3rd Ave., Suite 400, Fort Lauderdale, FL,
Fl 33301 on December 27, 2005.
_________________________ CELIA A. TERENZIO