FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Application for Review of the Decision of the District Court
of Appeal - Direct Conflict of Decisions First District -
Case No. 1D17-4627 Leon County
Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Second Judicial Circuit, Tallahassee,
Florida, for Petitioner
Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Barbara Debelius, Assistant Attorney General, Tallahassee,
Florida, for Respondent
Mallet filed a notice to invoke this Court's
discretionary jurisdiction stating that the First District
Court of Appeal's decision below "expressly and
directly conflicts with the decision of another district
court of appeal or the Florida Supreme Court."
See art. V, § 3(b)(3), Fla. Const. (granting
this Court jurisdiction to review district court opinions
that "expressly and directly" conflict with the
decision of another district court of appeal or with a
decision of the Florida Supreme Court on the same question of
law). However, Mallet's jurisdictional brief does not
identify a conflict case. Instead, arguing that the case
"may present federal issues," Mallet simply
"requests that discretionary review be granted,"
citing O'Sullivan v. Boerckel, 526 U.S. 838
the Florida Constitution does not authorize this Court to
review cases that "may present federal issues," we
deny the petition. Because we have received a number of
similar briefs recently that identify potential "federal
issues" but fail to identify any basis for our review,
we write to explain why we do not have jurisdiction in this
case or similar cases.
Mallet entered open pleas to two counts of possession of
images depicting sexual conduct by a child with intent to
promote child pornography and to 117 counts of possession of
child pornography. Mallet v. State, 270 So.3d 1282,
1284 (Fla. 1st DCA 2019). He was sentenced to forty years in
prison followed by multiple terms of sex offender probation.
Id. The convictions and sentences were per curiam
affirmed on direct appeal. Id. (citing Mallet v.
State, 173 So.3d 890 (Fla. 1st DCA 2015)). Thereafter,
Mallet timely filed a motion for postconviction relief,
arguing that trial counsel was ineffective for failing to
timely reserve the right to appeal the order denying a
pre-plea motion to dismiss two of the counts. Id. at
1284-85. The postconviction court denied Mallet's motion
following an evidentiary hearing, ruling that Mallet had
failed to demonstrate prejudice. Id. at 1285. The
First District agreed and affirmed the denial on appeal in
Mallet, 270 So.3d 1282, the decision that Mallet
asks us to review.
Florida Supreme Court is "a court of limited
jurisdiction," Baker v. State, 878 So.2d 1236,
1245 (Fla. 2004), with authority to hear only those matters
specified in Florida's Constitution. See art. V,
§ 3(b), Fla. Const. There is no provision authorizing us
to review a district court of appeal decision simply because
it "may present federal issues." See id.
O'Sullivan, the United States Supreme Court
addressed the doctrine that "[b]efore a federal court
may grant habeas relief to a state prisoner, the prisoner
must exhaust his remedies in state court." 526 U.S. at
842. "The particular question posed [in
O'Sullivan] is whether a prisoner must seek
review in a state court of last resort when that court
has discretionary control over its docket."
Id. at 843 (emphasis added).
involved an Illinois prisoner, Darren Boerckel, who had been
convicted of "rape, burglary, and aggravated battery of
an 87-year-old woman." Id. at 840. The
convictions and sentences were affirmed by an Illinois
intermediate appellate court "with one justice
dissenting." Id. Boerckel then sought review in
the Illinois Supreme Court with respect to some, but not all,
of the issues decided against him by the intermediate
appellate court. Id. Although the Illinois Supreme
Court denied review, id. at 841, significantly, the
Illinois Supreme Court had discretionary
jurisdiction to hear the appeal. Id. at 843
("A party may petition for leave to appeal a decision by
the Appellate Court to the Illinois Supreme Court (with
exceptions that are irrelevant here), but whether 'such a
petition will be granted is a matter of sound judicial
discretion.'" (quoting Ill. S.Ct. R. 315 (a))).
then filed a petition for writ of habeas corpus in the United
States District Court for the Central District of Illinois,
seeking relief as to three claims not raised in his petition
to the Illinois Supreme Court. Id. at 841.
Ultimately, the United States Supreme Court held that because
"Illinois' established, normal appellate review
procedure is a two-tiered system" in which "state
prisoners have 'the right . . . to raise' their
claims through a petition for discretionary review in the
State's highest court," id. at 845 (quoting
28 U.S.C. § 2254(c)), the federal ...