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

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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the instant brief has been

prepared with 12 point Courier New type, a font that is not

spaced proportionately on December 27, 2005.

_________________________ CELIA A. TERENZIO