STATE OF FLORIDA

v.

ANGEL ALEJANDRO LOBATO

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D23-3201 Lower Tribunal No. 20-CF-8754-A _____________________________

STATE OF FLORIDA, Petitioner, v. ANGEL ALEJANDRO LOBATO, Respondent. _____________________________

Petition for Writ of Certiorari to the Circuit Court for Polk County.

J. Kevin Abdoney, Judge.

May 31, 2024

NARDELLA, J.

The State of Florida petitions this Court for a writ of certiorari.¹ It seeks to quash the trial court’s nonfinal order denying its request to apply recently enacted statutory death penalty sentencing procedures of section 921.141 of the Florida Statutes during any penalty phase of Respondent Angel Lobato’s upcoming trial. § 921.141, Fla. Stat. (2023). For the reasons that follow, we grant the petition for writ of certiorari and quash the trial court’s order.

I.

2 See Spencer v. State, 615 So. 2d 688 (Fla. 1993). The purpose of a Spencer hearing is to:

(a) give the defendant, his counsel, and the State, an opportunity to be heard; (b) afford, if appropriate, both the State and the defendant an opportunity to present additional evidence; (c) allow both sides to comment on or rebut information in any presentence or medical report; and (d) afford the defendant an opportunity to be heard in person.

Id. at 691.

II.

To be entitled to certiorari relief the State must establish three elements: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on a plenary, direct appeal. Univ. of Fla. Bd. of Trs. v. Carmody, 372 So. 3d 246, 252 (Fla. 2023). The second and third prong, termed irreparable harm, are jurisdictional requirements considered in tandem. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 351 (Fla. 2012) (explaining the threshold inquiry is whether there exists “a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm”). As an “extraordinary remedy,” this court can only consider the merits of the petition for certiorari relief if the jurisdictional threshold is met. Carmody, 372 So. 3d at 251–52. Recently, in State v. Victorino, the Fifth District Court of Appeal confronted the question of irreparable harm while addressing a similar petition seeking to apply the amended version of section 921.141 to a resentencing proceeding in the trial court. In its opinion, our sister court found the State satisfied the jurisdictional threshold for certiorari review because, “[i]f applying the old statute was indeed error, the irreparable harm to the State was obvious because apart from certiorari relief, the State would have no way to recover from the error.” State v. Victorino,

III.

A.

The issue remaining then is whether the trial court departed from the essential requirements of law by denying the State’s motion to apply the revised version of section 921.141 during the potential penalty phase of Respondent’s trial rather than the version in effect at the time the alleged murder occurred. The ultimate answer to the remaining issue lies not in the enacting language of the statute, which expressly provides for its immediate application,³ but, as Respondent argues, in the

3 Chapter 2023-23, Laws of Florida expressly states, “This Act shall take effect upon becoming a law.” See also Parker v. Evening News Pub. Co., 44 So. 718, 718 (Fla. 1907) (holding act became effective upon approval by the executive when it stated it “shall take effect immediately on becoming a law.”).

B.

Urging us to disregard Dobbert, Respondent attacks its test as a rigid “substance versus procedure litmus test.” We reject this narrow reading of Dobbert. The Dobbert Court did not, as Respondent’s characterization suggests, restrict its analysis to examining only the nature of the change. It also measured the effect. It did so by asking whether the change affected “matters of substance,” which it answered in the negative because the change neither (1) made criminal a theretofore innocent act, (2) aggravated a crime previously committed, (3) provided greater punishment, nor (4) changed the proof necessary to convict. Dobbert, 432 U.S. at 293–94; see also Collins, 497 U.S. at 45 (explaining that a procedural change may constitute an ex post facto violation only if it “affect[s] matters of substance”). The matters of substance listed and analyzed by the Dobbert Court originate from one of our country’s oldest precedents, Calder v. Bull,³ U.S. 386 (1798), which

4 In Calder, those categories were described as follows:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

3 U.S. at 390 (emphasis added).

C.

Although we find Dobbert dispositive, it is not the only United States Supreme Court authority which compels our decision. Even if we were to accept Respondent’s argument that Dobbert set forth a rigid substance versus procedural litmus test which is no longer in use, Respondent’s ex post facto claim would still fail under Collins, a seminal case which has primacy of place in this country’s ex post facto jurisprudence for re-establishing the exclusivity of Calder’s four categories. In Collins, the United States Supreme Court was asked to consider whether a law that allowed reformation of an improper jury verdict without the necessity of remand for retrial offended the prohibition against ex post facto laws. 497 U.S. at 39–40. Relying on an earlier opinion, Thompson v. Utah, 170 U.S. 343 (1898), the Court of Appeals had answered the question in the affirmative. Youngblood v. Lynaugh, 882 F. 2d 956, 959 (5th Cir. 1989), rev’d sub nom. Collins, 497 U.S. 37. On petition for certiorari, however, the United States Supreme Court reversed and overruled its prior precedent relied upon by the Court of Appeals. Collins, 497 U.S. at 47–48. And that is important because in overruling Thompson, the Collins Court addressed an ex post facto claim that is strikingly similar to the question we confront here, i.e., whether reducing the number of jurors required to recommend a death

D.

Finally, we write to address Respondent’s argument that Peugh v. United States, 569 U.S. 530 (2013), a more recent decision of the United States Supreme Court addressing federal sentencing guidelines, should guide our analysis.⁵ Peugh also concerns Calder’s third category of ex post facto laws, those that “chang[e] the punishment, and inflic[t] a greater punishment, than the law annexed to the crime, when committed.” Id. at 530–31. But, unlike Dobbert and Collins, Peugh’s test applies to a different category of cases which examine ex post facto claims related to federal sentencing guidelines and parole. See Holmes v. Christie,¹⁴ F. 4th 250 (3d Cir. 2021) (vacating and remanding the dismissal of the defendant’s ex post facto claim for the lower court to determine whether the retroactive application of an amendment to the rules governing parole created a significant risk of prolonging the defendant’s incarceration); Cross v. United States, 892 F. 3d 288, 305 (7th Cir. 2018) (determining that lengthening advisory guidelines increased the likelihood of

5 Respondent argues Dobbert is outdated and should be ignored by this court in favor of Peugh. But Dobbert is still being cited as authority and analyzed for guidance by appellate courts across the country. For example, in McGill v. Shinn, a decision out of the Ninth Circuit Court of Appeals three years ago, procedural changes to the death penalty process in Arizona were upheld on the basis of Dobbert. See 16 F. 4th 666 (9th Cir. 2021); see also Smith v. Ryan, 823 F. 3d 1270, 1285 (9th Cir. 2016).

6 Other places in the Peugh opinion refer to the test as the “significant risk” test. Id. at 550. See also Beckles v. United States, 580 U.S. 256, 267 (2017) (quoting a portion of Peugh which describes the test in terms of “significant risk”). The Court appears to treat the terms “significant risk” and “sufficient risk” interchangeably.

_______________________________________

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED

_______________________________________ WHITE, J., dissenting.

“A writ of certiorari to correct a nonfinal order is indeed ‘an extraordinary remedy.’” State v. Garcia, 350 So. 3d 322, 325 (Fla. 2022) (quoting Martin- Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987)). Because the State fails to meet the rigorous requirements for this extraordinary writ, I dissent.

I.

To obtain certiorari relief, the State must establish “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). “The last two elements are jurisdictional and must

II.A.

After the decision in State v. Victorino, 372 So. 3d 772 (Fla. 5th DCA 2023), the State filed a motion (essentially the same motion that was denied in this case) in State v. Waldon, No. 53-2020-CF-008751-A000-XX (Fla. 10th Cir. Ct.). That motion was granted—by the same trial judge in this case. In its order in Waldon, the trial court pointed out that it had rendered the order in this case prior to Victorino. The trial court found that Victorino squarely addressed the issues, concluded that it was bound by Victorino because there was no interdistrict conflict, and granted the State’s motion in Waldon. The State filed a copy of that order with us. The Waldon order indisputably shows that the trial court will vacate the order in this case if the State simply moves to vacate it based on Victorino. Thus, we should dismiss the petition because the State fails to establish that the challenged order injures it “for the remainder of the case.” Williams, 62 So. 3d at 1132 (element (2)).

II.B.

Element (2) also requires the State to establish that the challenged order resulted in “material injury.” Id. To do that, it must clearly and specifically

The State misses the mark. It makes conclusory statements that it “will be irreparably harmed” because it “has no basis to challenge this ruling on appeal” and “may have no recourse if a life sentence is imposed.” The State fails, however, to clearly and specifically explain how it has been materially injured. It does not cite any authority holding that if it has no appellate remedy, then, ipso facto, it has suffered a material injury. Therefore, dismissal is required because the petition is insufficient to establish material injury. See Williams, 62 So. 3d at 1132; CPPB, LLC, 375 So. 3d at 329-30. Dismissal is also warranted because the State fails to disclose what evidence of aggravating factors it has or explain how its case has been significantly impaired. See Pettis, 520 So. 2d at 253. “How are we to conclude that the lower court’s decision ‘effectively negates [the State’s] ability to prosecute’ [Lobato] when we are

III.A.

As a threshold matter, the State has waived any right to certiorari relief. The First District’s excellent summary of fundamental principles deserves to be quoted in full: An appellate court is “not at liberty to address issues that were not raised by the parties.” Anheuser-Busch Co., Inc. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013). Nor may an appellate court “depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on motion for rehearing); see also D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888, S539, 2018 WL 5660595 (Fla. Nov.¹, 2018) (Canady, C.J., dissenting) (“[I]t is not the role of the appellate court to act as standby counsel for the parties.”). Instead, an appellate court must confine its decision to the issues raised in the briefs. See Bainter v. League of Women Voters of Fla., 150 So. 3d 1115, 1126 (Fla. 2014) (“Basic principles of due process”—to say nothing of professionalism and a long appellate tradition—“suggest that courts should not consider issues raised for the first time at oral argument” and “ought not consider arguments outside the scope of the briefing process.”) (quoting Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013))); Redditt v. State, 84 So. 2d 317, 320 (1955) (“The function of an assignment of error is to point [to] the specific error claimed to have been committed by the court below, in order that the reviewing court and opposing counsel may see on what point the appellant seeks reversal and to limit argument and review to such point.”); T.M.H. v. D.M.T., 79 So. 3d 787, 827 (Fla. 5th DCA 2011) (Lawson, J., dissenting) (“Judicial restraint serves as the essential self-imposed ‘check’ against the judicial branch's abuse of power. ...”). For an appellant to raise an issue properly on appeal, he must raise it in the initial brief. Otherwise, issues not raised in the initial brief are considered waived or abandoned. See Hall v. State, 823 So. 2d 757, 763

Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (footnote omitted). Here, the trial court ruled that application of section 921.141, as amended, would violate the ex post facto clause of the United States Constitution and the ex post facto clause of the Florida Constitution. See Art. I, § 10, Fla. Const. (“No . . . ex post facto law . . . shall be passed.”) (the “Florida Ex Post Facto Clause”). The State argues against the ruling based on the ex post facto clause of the United States Constitution. It fails, however, to argue that the ruling based on the Florida Ex Post Facto Clause departed from the essential requirements of the law. The State also fails to cite the Florida Ex Post Facto Clause or any case interpreting it. Therefore, fundamental principles compel us to deny the petition because the State has waived any right to claim that the trial court’s ruling based on the Florida Ex Post Facto Clause departed from the essential requirements of the law. See Rosier, 276 So. 3d at 406; see also Jones v. State, 279 So. 3d 342, 348-49 (Fla. 5th DCA 2019) (affirming the denial of a motion to suppress based on two grounds because appellant abandoned any claim of error by not making argument against one of the grounds).

22

III.B.

Even if there was no waiver, we must reject the petition because the State fails to establish a departure from the essential requirements of the law. We can make that finding “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Garcia, 350 So. 3d at 326 (quoting Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)); see also Pettis, 520 So. 2d at 254 (same). Of course, a Florida appellate court’s interpretation of the Florida Constitution is binding on a trial court. The State’s petition, however, fails to point to a single binding decision interpreting the Florida Ex Post Facto Clause that the trial court departed from when it rendered the challenged order. As a result, we must deny relief. See Garcia, 350 So. 3d at 326-27 (“[W]e cannot say the trial [court departed] from the essential requirements of the law . . . . [T]his case may . . . pose questions we have not previously answered . . . or for which there was no clearly established law binding on the trial court . . . . Nor have we . . . conclusively addressed the scope of [constitutional] protections in [this context].”); Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 355-56 (Fla. 2012) (“Unfortunately, there is no Florida case squarely discussing [this legal question]. Without such controlling precedent, we cannot conclude that either court violated a ‘clearly established principle of law.’” (quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000) (quoting Stilson v. Allstate Ins. Co., 692 So. 2d 979, 982-83 (Fla. 2d DCA 1997)))).

IV.

Ashley Moody, Attorney General, Tallahassee, and Doris Meacham, Senior Assistant Attorney General, Daytona Beach, for Petitioner.

Howard L. “Rex” Dimmig, II, Public Defender, and Rachel P. Roebuck and Steven L. Bolotin, Assistant Public Defenders, Bartow, for Respondent.