Petition — Hance v. Georgia

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Case No.

IN THE

SUPREME COURT OF THE UNITED STATES |

October Term, 1980 RECEIVED

NOV 3 1980

80-5645 SUPREME COURT, US.

JOHNNY PAUL WITT,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

JACK 0. JOHNSON

PUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

PAUL C. HELM

ASSISTANT PUBLIC DEFENDER

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830

(813) 533-6715 or 533-1184

COUNSEL FOR PETITIONER

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

80-5645

JOHNNY PAUL WITT,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner, JOHNNY PAUL WITT, respectfully prays that

a writ of certiorari issue to review the judgment and opinion

of the Supreme Court of Florida entered on July 24, 1980,

rehearing denied on October 13, 1980.

QUESTIONS PRESENTED

I. Whether the Supreme Court of Florida violated the

Supremacy Clause of the Constitution of the United States by

refusing to consider Petitioner's claim in a collateral attack

on his death sentence, based upon a change in constitutional

Te Le Ne Me ee he sth ale hile >

law emanating from the United States Court of Appeals for

the Fifth Circuit in Smith v. Estelle, that the trial court

violated Petitioner's Fifth and Fourteenth Amendment rights

by admitting evidence of his incriminating statements to

court-appointed psychiatrists in the absence of warnings that

his statements could be used against him?

II. Whether the Supreme Court of Florida violated

the Eighth and Fourteenth Amendments by refusing to consider

Petitioner's claim in a collateral attack on his death sen-

tence, based upon a change in constitutional law emanating

from the Supreme Court of Florida in Elledge v. State, that

the trial court subjected Petitioner to cruel and unusual

punishment and denied him due process and equal protection

of the law by considering nonstatutory aggravating circum-

stances in support of the death sentence?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING CERTIORARI

wie

eee

CONCLUSION

APPENDIX

THE DECISION BELOW RAISES A FUNDA-

MENTAL AND RECURRING PROBLEM CON-

CERNING THE DUTY OF STATE COURTS,

UNDER THE SUPREMACY CLAUSE OF THE

CONSTITUTION OF THE UNITED STATES,

TO RECOGNIZE AND RESPECT THE DECI-

SIONS OF THE UNITED STATES COURTS

OF APPEALS ON QUESTIONS OF FEDERAL

LAW.

THE DECISION BELOW RAISES THE SIG-

NIFICANT AND RECURRING QUESTION OF

WHETHER RELIANCE UPON NONSTATUTORY

AGGRAVATING CIRCUMSTANCES IN SEN-

TENCING A PERSON TO DEATH VIOLATES

THE EIGHTH AND FOURTEENTH AMENDMENTS.

THE SUPREME COURT OF FLORIDA'S EVA-

SION OF ITS DUTY TO DECIDE CONSTITU-

TIONAL ISSUES THREATENS TO IMPOSE

AN UNREASONABLE BURDEN UPON FEDERAL

COURTS.

PAGE NO.

TABLE OF AUTHORITIES

CASES CITED:

Anderson v. Lester

oO. .3d Cir.Ct.App. 1980)

Argersinger v. Hamlin

= A -Ed.2d 530, 92 S.Ct.

2006 (1972)

Beneficial Finance Co. of New York v. Bond

sc. : eA OF , up.Ct.1975)

Boyer v. City of Orlando

238 So. 2d 84 (Fla. 1970)

Boyer v. City of Orlando

ray F.2d 966 (5th Cir. 1968)

Bufford v. State

0.2d - Ala.Crim.App. 1980), cert.

denied, 382 So.2d 1175 (Ala.1980)

Clark v. State

a.App. 1, 255 S.E.2d 110 (Ct.App.1979)

Cooper v. Morin

oI Mise va 302, 398 N.Y.S.2d 36 (Supp.Ct.

1977), aff'd as modified, 49 N.Y. 2d 69,

424 N.Y.S.2d 168 (1979)

Elledge v. State

346 So.2d 998 (Fla.1977)

Fish v. State

°. (Fla. 1964)

Fleming v. State

374 So.2d 954 (Fla. 1979)

Furman v. Georgia

ae K -Ed.2d 346, 92 S.Ct.

2726 (1972)

Gates v. State

a. » 261 S.E.2d 349 (1979)

Gideon v. Wainwright

372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792

(1963)

Godfrey v. Georgia

-Ed.2d 398, 100 S.Ct. 1775

71980)’

Guzman v. Farrell Lines, Inc.

a “ > As 830 (App.Div.

1979)

Harvey v. Mississippi

340 F.2d 263 (5th ed 1965)

Henry v. Wainwright

F é pp (M.D.Fla.Case No. 79-584, opinion

- Supp. .

Filed February 14, 1980)

PAGE NO.

9,10,15,16,19

15,18

TABLE OF AUTHORITIES

CASES CITED:

Howard v. United States

566 S.W.2d 521 (Tenn.1978)

H hreys v. State ex rel. Palm Beach Coc.

108 Fla. 92, 145 So. 558 (1933)

Lewis v. State

°. (Fla.1979)

Michigan Civil Rights Com'n v. Chr sler Cor

80 Mich.App. 368, 263 N.W.2d 376 Ce. App. 1977)

Mikenas v. State

oO. la.1978)

Miller v. State

la.1979)

Mobile Oil Corp. v. Shevin

354 So. 2d 372 CF le 1977}

People v. Benson

71 Ir App dd 591, 390 N.E.2d 113 (App.Ct.1979)

People v. Green

5% Fa I.App.3d Supp. eae 156 Cal.Rptr. 713 (App.

Dep't.Super.Ct. 197

Planned Parenthood of New York Cit Inc. v.

state Departuent of institutions and Agencies

Proffitt v. Florida

+ 7 . -Ed.2d 913, 96 S.Ct. 2960

(1976)

Riley v. State

366 e544 19 (Fla.1978)

pages v. Johnson

P.2d 925 (1944)

Rose v. Mitchell

‘ L.Ed.2d 7392, 99 S.Ct. 2993

(1979)

Sanders v. United States

(1963)

Schneckloth v. Bustamonte

sSe 250, . Ed. 854, 93 S.Ct. 2041

(1973)

Schreiber v. Republic Intermodal Co ‘

473 Pa. 614, 375 A. 2d 1285 (1977)

Schueler v. Weintrob

ch. , -W.2d 42 (1960)

48, 83 S.Ct. 1068

Smith v. Bennett

“ . -Ed.2d 39, 81 S.Ct. 895

(1961)

PAGE NO.

15,16,18

TABLE OF AUTHORITIES

CASES CITED:

Smith v. Estelle

602 F.2d 694 (5th Cir. 1979), cert. granted,

_U.S.__, 63 L.Ed.2d 758, 100 S.Ct. PIT (1980)

State v. Cherr

298 N.C. 86, a S.E.2d 551 (1979)

State v. Codianna

> tah 1977), cert.denied, 439

U.S. 882, 58 L.Ed.2d 194, 99 S.Ct. 219 (1978)

State v. er

332 So. 2d 333 (Fla.1976)

State v. Gates

Zz. » 976 P.2d 1357 (1978)

State v. Pee

199 Neb. 656, 261 N.W.2d 95 (1977)

State v. Steelman

; riz.1980)

State v. Williams

Oo. a.1980)

Stone v. Powell

» 49 L.Ed.2d 1067, 96 S.Ct. 3037

(1976) —

Townsend v. Sain ¢

i A -Ed.2d 770, 83 S.Ct. 745

(1963)

Watkins v. Morris

O°. a.1965)

Witherspoon v. Illinois

391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770

(1968)

Witt v. Florida

oS » 24 L.Ed.2d 294, 98 S.ct. 422

(1977)

Witt v. State

Oo. (Fla.1977)

Witt v. State

i a.Case No. 58,329, opinion filed

July 24, 1980)

Woodard v. Texas Department of Human Resources

573 S.W.2d 596 (Tex.Ct.App. 1978)

OTHER:

United States Constitution, Article VI

United States Constitution, 5th Amendment

United States Constitution, 8th Amendment

United States Constitution, 14th Amendment

PAGE NO.

2,9,10,11,19

11,16

TABLE OF AUTHORITIES

OTHER:

28 U.S.C. §1257(3)

Section 921.141, Florida Statutes (1973)

Section 921.141(5), Florida Statutes (1973)

Fla.R.Crim.P. 3.850

20 Am.Jur.2d, Courts §230

Bator, Finality in Criminal Law and Federal

Habeas Corpus <5 State Prisoners

76 Wary Liev 441 (Jan., 1963)

Brennan, Some Aspects of Federalism

39 N.Y.U.D. Rev. 575 (Dec. , 1964)

Death Row

eath Penalty Rptr. 19 (Sept., 1980)

ct.,

Meador, Accomodating State Criminal Procedure

and Federal Post-Conviction Review

’

PAGE NO.

8,15

16,17

8,9,10,11,16

19,20

OPINION BELOW

The opinion of the Supreme Court of Florida is

unreported and is set out in Appendix A.

JURISDICTION

The opinion of the Supreme Court of Florida was

filed on July 24, 1980. Petitioner's timely motion for re-

hearing was denied on October 13, 1980, and this petition for

certiorari was filed within sixty days of that date. Juris-

diction of this Court is invoked under 28 U.S.C. §1257(3).

Petitioner asserted below and is asserting here deprivation

of his rights secured by the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Supremacy Clause of

Article VI and the Fifth, Eighth, and Fourteenth Amendments

to the Constitution of the United States, which are set out

in Appendix B.

2. This case involves Section 921.141, Florida

Statutes (1973), which is set out in Appendix C.

3. This case involves Florida Rule of Criminal

Procedure 3.850, which is set out in Appendix D.

STATEMENT OF THE CASE

In 1974, Petitioner was tried and convicted of

murder. During the penalty phase of the trial, the court

admitted the testimony of two court-appointed psychiatrists

regarding Petitioner's incriminating statements to them and

their conclusions based upon those statements. Following

the jury's advisory verdict of death, the trial court im-

posed the death penalty. In support of the death penalty,

the court found four aggravating circumstances, including

the nonstatutory factors of premeditation and propensity

to commit crimes, and one mitigating circumstance. Petitioner's

conviction and sentence were affirmed by the Supreme Court

of Florida on direct appeal. Witt v. State, 342 So.2d 497

(Fla.1977). This Court denied certiorari on the question of

whether a violation of Witherspoon v. Illinois, 391 U.S. 510,

20 L.Ed.2d 776, 88 S.Ct. 1770 (1968), had occurred during

the selection of the jury. Witt v. Florida, 434 U.S. 935, 54

L.Ed.2d 294, 98 S.Ct. 422 (1977).

On November 2, 1979, Petitioner filed a motion to

vacate the judgment and sentence under Florida Rule of Crimi-

nal Procedure 3.850 in the trial court. Petitioner's motion

alleged that the death sentence was unconstitutional under

new case law decided since his direct appeal. Pe_itioner

claimed, inter alia, that the trial court's consideration of

nonstatutory aggravating circumstances rendered the death

sentence unconstitutional under the Eighth and Fourteenth

Amendments and the decision of, the Supreme Court of Florida

in Elledge v. State, 346 So.2d 998 (Fla.1977). Petitioner

also claimed that the admission of the psychiatrists’ testi-

mony regarding Petitioner's statements, in the absence of

any warnings that his statements could be used against him,

violated the Fifth and Fourteenth Amendments under the de-

cision of the United States Circuit Court of Appeals for

the Fifth Circuit in Smith v. Estelle, 602 F.2d 694 (5th Cir.

1979), cert.granted, U.S.__, 63 L.Ed.2d 758, 100 S.Ct. 1311

(1980). The trial court held a nonevidentiary hearing on

the motion to vacate on December 7, 1979, and entered an

order denying the motion on December 11, 1979,

Petitioner prosecuted a timely appeal from the

denial of the motion to vacate to the Supreme Court of Florida.

On appeal, Petitioner argued, inter alia, that the trial

court erred in denying the motion to vacate because the death

sentence was unconstitutional for the reasons set forth

above. In an opinion filed July 24, 1980, the Supreme Court

of Florida affirmed the denial of the motion to vacate. The

court rejected the claim that the trial court's consideration

of nonstatutory aggravating circumstances rendered the death

sentence unconstitutional under the Eighth and Fourteenth

Amendments on the ground that the change in law brought

about by Elledge v. State, Supra, was a nonconstitutional,

evolutionary development in the law. The court rejected the

claim that admission of the psychiatrists’ testimony con-

cerning Petitioner's incriminating statements, in the absence

of warnings that his statements could be used against him,

violated the Fifth and Fourteenth Amendments, on the ground

that the change in law brought about by Smith v. Estelle,

Supra, emanated from an intermediate federal court and was

therefore ineligible for consideration in a Rule 3.850 pro-

ceeding. Petitioner filed a timely motion for rehearing

which was denied by the Florida Supreme Court on October 13,

1980. ‘

REASONS FOR GRANTING CERTIORARI

EE CERTIORARI

THE DECISION BELOW RAISES A

FUNDAMENTAL AND RECURRING PRO-

BLEM CONCERNING THE DUTY OF

STATE COURTS, UNDER THE SUPRE-

MACY CLAUSE OF THE CONSTITUTION

OF THE UNITED STATES, TO RECOG-

NIZE AND RESPECT THE DECISIONS

OF THE UNITED STATES COURTS OF

— ON QUESTIONS OF FEDERAL

In Smith v. Estelle, 602 F.2d 694,709 (5th Cir.

1979), cert.granted, —U.S.__, 63 L.Ed.2d 758, 100 S.ct.

1311 (1980), the United States Court of Appeals for the

Fifth Circuit held that at the sentencing phase of a capi-

tal trial, a state may not use evidence based upon a psy-

chiatric examination of the defendant unless the defendant

was warned, before the examination, that he had a right to

remain silent and was allowed to terminate the examination

when he wished.

In his motion to vacate his death sentence under

Florida Rule of Criminal Procedure 3.850, Petitioner claimed

that the death sentence violated the Fifth and Fourteenth

Amendments to the Constitution of the United States as con-

strued in Smith v. Estelle, supra, because the ‘rial court

admitted the testimony of court-appointed psychiatrists re-

garding Petitioner's incriminating statements to them, in

the absence of any warnings that his statements could be

used against him. The trial court denied the motion. On

appeal, the Supreme Court of Florida affirmed, holding that

"only this Court and the United States Supreme Court can

adopt a change of law sufficient to precipitate a post-

conviction challenge to a final conviction and sentence."

Witt v. State, _So.2d__ (Fla.Case No. 58,329, opinion filed

July 24, 1980) (Appendix A, p.10 of opinion).

The Supreme Court of Florida's refusal to even

consider Petitioner's claim that he was unconstitutionally

-ll-

sentenced to death, for the sole reason that his claim was

founded upon a change in law emanating from the Fifth Cir-

cuit rather than from this Court or one of its own deci-

sions, calls into question the proper relationship between

state and federal appellate courts. Does the Supremacy

Clause of Article VI of the Constitution of the United States

impose a duty upon state appellate courts to recognize and

respect the decisions of federal appellate courts on ques -

tions of federal law?

On principle, it would seem that where

the highest federal authority on a question

of federal law is not represented by an o-

pinion of the United States Supreme Court

but by a decision of a lower federal court,

especially a federal Court of eals, a

state court should be bound in the same way

it is bound by an opinion of the United

States Supreme Court.

20 Am.Jur.2d, Courts §230. This principle would seem to

flow naturally and logically from the provisions of the

Supremacy Clause of Article VI:

This Constitution, and the laws of the

United States which ‘shall be made in pur-

suance thereof...shall be the supreme law

of the land; and the judges in every State

shall be bound thereby; anything in the

Constitution or laws of any State to the

contrary notwithstanding.

Yet the state courts remain divided upon the ques-

tion. Some state courts have held that they are bound by

the decisions of federal appellate courts on questions of

federal law. LE.g., Ritchie v. Johnson, 158 Kan.103, 144 P.2d

925,935 (1944); Schueler v. Weintrob, 360 Mich. 621, 105

N.W.2d 42,48 (1960); Guzman v. Farrell Lines, Inc., 69 A.D.2d

802, 415 N.Y.S.2d 830,831 (App.Div. 1979); Beneficial Finance

Co. of New York v. Bond, 83 Misc.2d 9, 372 N.Y.S.2d 374,379

(Sup.Ct. 1975); Schreiber v. Republic Intermodal Corp., 473

Pa. 614, 375 A.2d 1285,1288 n.5 (1977). A second group of

state courts have held that the decisions of federal courts,

other than this Court, are not binding, but are entitled to

respectful consideration by state courts. E.g., State v.

-12-

Gates, 118 Ariz. 357, 576 P.2d 1357,1359 (1978); People v.

Green, 94 Cal.App.3d Supp. 1, 156 Cal.Rptr. 713,716 n.3

(App.Dep't.Super.Ct. 1979); Cooper v. Morin, 91 Misc.2d

302, 398 N.Y.S.2d 36,53 (Sup.Ct. 1977), aff'd as modified,

49 N.Y.2d 69, 424 N.Y.S.2d 168 (1979); Howard v. United

States, 566 S.W.2d 521,526 (Tenn. 1978); Woodard v. Texas

Department of Human Resources, 573 S.W.2d 596,598 (Tex.Ct.

App. 1978). A third group of state courts have held that

decisions of federal appellate courts are persuasive, but

not binding. E.g., Anderson v. Lester, 382 So.2d 1019

(La. 3d Cir.Ct.App. (1980); Michigan Civil Rights Com'n v.

Chrysler Corp., 80 Mich. App. 368, 263 N.W.2d 376,380 n.4

(Ct.App. 1977). A fourth group of state courts have simply

held that they are not bound by the decisions of any federal

court other than this Court. E.g., Clark v. State, 149 Ga.

App. 641, 255 S.E.2d 110,114 (Ct.App. 1979); People v. Benson,

71 Ill.App. 34 591, 390 N.E.2d 113,116 (App.ct. 1979); Planned

Parenthood of New York City, Inc. v. State Department of In-

stitutions and Agencies, 75 N.J. 49, 379 A.2d 841,842 (1977).

The Supreme Court of Florida has been inconsistent

in deciding whether it is bound by the decisions of federal

appellate courts on questions of federal law. In Humphreys

v. State ex rel. Palm Beach Co., 108 Fla. 92, 145 So. 858,

861 (1933), the court said that it was bound by the decisions

of this Court and of other federal courts on questions of

federal constitutional law. In State v. Dwyer, 332 So.2d

333,334-335 (Fla.1976), the court said that a decisior of the

Fifth Circuit holding a state statute unconstitutional was

not binding on state courts and reversed the trial court for

having followed the Fifth Circuit's decision. Yet in

Mobile Oil Corp. v. Shevin, 354 So. 2d 372,375 n.9 (Fla.1977),

the court cited State v. Dwyer, supra, for the proposition

that the Fifth Circuit's decision on a question of state law

was not binding, then Stated, "We recognize, of course, that

-13-

state courts are bound by federal court determinations of

federal law questions."

The difficulties imposed upon litigants because

of the Supreme Court of Florida's vacilating reluctance to

accept the authority of the Fifth Circuit to decide ques-

tions of federal constitutional law are illustrated by the

ten year long dispute over whether this Court's decision in

Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct.

792 (1963), required the appointment of counsel for indigent

defendants charged with misdemeanors. In Fish v. State, 159

So.2d 866 (Fla.1964), the Supreme Court of Florida held that

nothing in Gideon required the appointment of counsel in

misdemeanor cases. In Harvey v. Mississippi, 340 F.2d 263

(5th Cir. 1965), the Fifth Circuit held that the right to

counsel applied in misdemeanor cases as well as felonies.

In Watkins v. Morris, 179 So.2d 348 (Fla.1965), the Supreme

Court of Florida expressly declined to follow Harvey. In

Boyer v. City of Orlando, 402 F.2d 966 (5th Cir. 1968), the

Fifth Circuit denied federal habeas relief to an uncounseled

indigent convicted and sentenced for a misdemeanor because

the court assumed that the Florida courts would respect the

‘recent decisions of the Fifth Circuit and grant relief to

Mr. Boyer. Yet the Supreme Court of Florida denied velief in

Boyer v. City of Orlando, 238 So.2d 84 (Fla.1970). Ultimately,

the dispute had to be resolved by this Court in Argersinger v.

Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972).

In order to avoid future disputes between state

and federal courts and the concommitant difficulties im-

posed upon litigants, this Court should grant certiorari

in this case in order te decide whether the Supremacy Clause

requires state courts to respect and abide by the decisions j

of federal appellate courts on questions of federal consti-

tutional law.

II,

THE DECISION BELOW RAISES

THE SIGNIFICANT AND RECUR-

RING QUESTION OF WHETHER

RELIANCE UPON NONSTATUTORY

AGGRAVATING CIRCUMSTANCES IN

SENTENCING A PERSON TO DEATH

VIOLATES THE EIGHTH AND FOUR-

TEENTH AMENDMENTS.

This Court has ruled that imposition of the death

penalty under sentencing procedures which create a subs tan-

tial risk that the punishment will be inflicted in an arbi-

trary and capricious manner violates the Cruel and Unusual

Punishment Clause of the Eighth Amendment, made applicable

to the states by the Fourteenth Amendment. Furman v. Georgia,

408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972). Accord,

Godfrey v. Georgia, U.S.__, 64 L.Ed. 2d 398 ,405-406, 100

S.Ct. 1759 (1980). In Proffitt v. Florida, 428 U.S. 242, 49

L.Ed.2d 913, 96 S.Ct. 2960 (1976), this Court found that the

capital sentencing procedures provided by Section 921.141,

Florida Statutes, facially satisfied the requirements of

Furman because the sentencing authority's discretion was

guided and channeled by requiring examination of specific

aggravating and mitigating factors and because the Supreme

Court of Florida's appellate review of death sentences guar-

anteed that they were consistent with other sentences imposed

in similar circumstances.

In Elledge v. State, 346 So.2d 998,1002-1003 (Fla.

1977), the Supreme Court of Florida ruled that the reversal

of a death sentence based in part on nonstatutory aggravating

circumstances, where there are also mitigating circumstances

present, is necessary in order to satisfy the requirements

of Furman and Proffitt. The court followed the Elledge rule

in several subsequent cases. E.g., Lewis v. State, 377 So.2d

640 (Fla.1979); Fleming v. State, 374 So.2d 954 (Fla.1979);

Miller v. State, 373 So.2d 882 (Fla.1979); Mikenas v. State,

367 So.2d 606 (Fla.1978); Riley v. State, 366 So.2d 19

(Fla.1978).

In his motion to vacate his death sentence under

Florida Rule of Criminal Procedure 3.850, Petitioner claimed

that the death sentence violated the Eighth and Fourteenth

Amendments, as construed in Elledge v. State, supra, because

the trial court had relied in part upon the nonstatutory

aggravating circumstances of premeditation and propensity

to commit crime, and there was at least one mitigating cir-

cumstance. The trial court denied the motion. On appeal,

the Supreme Court of Florida affirmed on the ground that

the change in law represented by Elledge v. State was a non-

constitutional, evolutionary development in the law, arising

from the court's case-by-case application of Florida's death

penalty statute. Witt v. State, supra (Appendix A, at pages

2 and 10 of opinion).

The Supreme Court of Florida's refusal to consider

Petitioner's claim that he was unconstitutionally sentenced

to death because of the trial court's reliance on nonstatu-

tory aggrsvating circumstances seriously erodes the basis

upon which this Court found Florida's capital sentencing pro-

cedure constitutional in Proffitt v. Florida, supra. In

this case, the sentencing authority's discretion was not

guided and channeled by requiring examination of only those

specific aggravating circumstances authorized by Section 921.

141(5), Florida Statutes (1973). Nor did the Florida Supreme

Court guarantee that the same result would be reached under

similar circumstances. The circumstances in the present case

are substantially the same as the circumstances in Elledge

v. State, supra, and its progeny, yet Petitioner's death

sentence was affirmed, while the death sentences of those

similarly situated were reversed.

The decision below conflicts in principle with

the decision of the United States District Court for the

Middle District of Florida in Henry v. Wainwright, _ F.Supp.

__. (M.D.Fla.Case No. 79-584, opinion filed February 14,

1980) (unreported opinion set out in Appendix E). Henry

-16- a

petitioned for federal habeas corpus relief from a death

sentence imposed by a Florida trial court. The district

court held that Henry was entitled to a new sentencing

hearing because the trial court had improperly instructed

the jury that the aggravating factors which they could

consider in rendering their advisory sentencing verdict

were not limited to those factors specified in Section 921.

141(5), Florida Statutes (1973). The district court found

a due process and equal protection violation which was not

rendered harmless by the absence of any mitigating circum-

stances.

Because the Supreme Court of Florida refuses to

allow collateral attacks on jeath sentences on the ground

that the trial court relied upon nonstatutory aggravating

circumstances, while the United States District Court has

demonstrated its willingness to grant federal habeas relief

on similar grounds, other Florida prisoners with claims

similar to those of Petitioner and Henry will be compelled

to seek relief in the federal courts. As a result, the

federal courts will be burdened with the responsibility of

deciding constitutional claims which could have been re-

solved by the Florida courts.

Moreover, the question of whether reliance upon

nonstatutory aggravating circumstances in sentencing a

person to death violates the Eighth and Fourteenth Amend-

ments is not unique to Florida. It is a question which

will arise in virtually every state which authorizes the

death penalty. In those states where the problem of re-

liance on nonstatutory or improper aggravating circumstances

has been considered, the courts have divided on the resolu-

tion of the issue. Alabama and North Carolina courts have

required a new sentencing hearing where the sentencing au-

thority relied in part upon nonstatutory or improper aggra-

vating circumstances, although neither court addressed the

-17-

question of whether such reliance would violate the Eighth

and Fourteenth Amendments. Bufford v. State, 382 So.2d 1162,

1173-1175 (Ala.Crim. App. 1980), cert.déited, 382 So.2d 1175

(Ala.1980); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551,

567-568 (1979). Arizona, Georgia, and Nebraska courts have

affirmed death sentences where the sentencing authority

relied in part on nonstatutory or improper aggravating cir-

cumstances, again without addressing the constitutional

issue. State v. Steelman, 612 P.2d 475, 481-483 (Ariz.1980);

Gates v. State, 244 Ga. 587, 261 S.E.2d 349,357-358 (1979);

State v. Peery, 199 Neb. 656, 261 N.W.2d 95,104-106 (1977),

cert.denied, 439 U.S. 882, 58 L.Ed.2d 194, 99 S.Ct. 220

(1978). The Supreme Court of Louisiana has affirmed a death

sentence upon finding that one of three aggravating circum-

stances relied upon by the jury was proper, despite a strong

dissent arguing that a new sentencing hearing was constitu-

tionally mandated because two of the aggravating circumstances

relied upon were not supported by the record. State v.

Williams, 383 So.2d 369 (La.1980). The Supreme Court of

Utah has expressly approved of reliance upon a nonstatutory

aggravating factor in support of a death sentence without

discussing the constitutional issue. State v. Codianna,

973 P.2d 343,352-353 (Utah 1977), cert.denied, 439 U.S. 882,

58 L.Ed.2d 194, 99 S.Ct. 219 (1978).

In order to avoid further erosion of the princi-

ples of Furman v. Georgia and Proffitt v. Florida, supra,

andes to resolve the conflict of authority developing among

state and federal courts, this Court should grant certiorari

in order to decide whether reliance upon nonstatutory aggra-

vating circumstances in sentencing a person to death vio-

lates the Eighth and Fourteenth Amendments and requires the

granting of collateral relief.

-18-

III.

THE SUPREME COURT OF FLORIDA'S

EVASION OF ITS DUTY TO DECIDE

CONSTITUTIONAL ISSUES THREATENS

TO IMPOSE AN UNREASONABLE BURDEN

UPON FEDERAL COURTS.

State courts, as well as federal, have a duty to

decide constitutional issues and to safeguard the personal

liberties secured by the Constitution of the United States.

See Stone v. Powell, 428 U.S. 465, 493 n.35, 49 L.Ed.2d

1067, 1087 n.35, 96 S.Ct. 3037 (1976); Schneckloth v. Busta-

monte, 412 U.S. 218,259, 36 L.Ed.2d 854,881, 93 S.Ct. 2041

(1973) (Powell, J., concurring) ; Brennan, Some Aspects of

Federalism, 39 N.Y.U.L.Rev. 945,947 (Dec., 1964); Bator,

Finality in Criminal Law and Federal Habeas Corpus for State

Prisoners, 76 Harv.L.Rev. 441,510-511 (Jan., 1963). As

set forth in points I and II, the Supreme Court of Florida

evaded its responsibility to decide the constitutional issues

raised in Petitioner's appeal from the denial of his motion

to vacate his death sentence by refusing to consider a change

in federal constitutional law emanating from the Fifth Cir-

cuit in Smith v. Estelle, supra, and by labeling Petitioner's

Eighth and Fourteenth Amendment claim under Elledge v.

State, supra, nonconstitutional.

The Supreme Court of Florida's action in refusing

to consider Petitioner's constitutional claims impairs the

availability of collateral relief from an unconstitutionally

imposed death sentence in the state courts. This Court has

applied the principle that there is no higher duty than to

maintain the writ of habeas corpus unimpaired in ruling

that a state cannot impose financial barriers to the avail-

ability of collateral relief in state courts. Smith v.

Bennett, 365 U.S. 708,713, 6 L.Ed.2d 39,43, 81 S.Ct. 895

(1961). Similarly, the Supreme Court of Florida should not

be permitted to impair the availability of collateral re-

lief by evading its duty to decide constitutional issues.

-19-

The necessary consequence of the Florida court's

evasion of its duty to decide constitutional issues in

collateral attacks on death sentences is that Florida

prisoners under sentence of death will have to petition the

federal courts for habeas corpus relief in order to seek

vindication of their constitutional claims. Since there

are currently 151 Florida prisoners under sentence of death,

Death Row, 1 Death Penalty Rptr. 19,20-22 (Sept.,1980), with

many more death sentences being imposed every year, this

will impose a substantial burden on the federal courts,

especially when the painstaking care accorded capital cases

in federal courts is taken into consideration. Moreover,

the courts in other states may follow the Florida court's

example and leave the vindication of constitutional claims

by their death-sentenced prisoners to the federal courts.

Habeas corpus petitions already threaten to

overburden the federal courts and have a deleterious effect

upon the relationship between. state and federal courts.

Rose v. Mitchell, 443 U.S. 545, 583-585, 61 L.Ed.2d 739,767-

768, 99 S.Ct. 2993 (1979) (Powell, J., concurring). See

also, Townsend v. Sain, 372 U.S. 293,319, 9 L.Ed.2d 770,

789, 83 S.Ct. 745 (1963). Yet conventional notions of

finality have no place where life or liberty is at stake

and the violation of constitutional rights is alleged,

Sanders v. United States, 373 U.S. 1,8, 10 L.Ed.2d 148,157,

83 S.Ct. 1068 (1963), so some procedure for the vindication

of such claims must be available. Since state courts have

a co-equal responsibility to decide constitutional issues

and safeguard personal liberties, the most effective way to

avoid excessive burdens on federal courts and unneccessary

friction between the state and federal courts would be to

provide adequate procedures for collateral relief in the

state courts. Meador, Accomodating State Criminal Proce-

dure and Federal Post-conviction Review, 50 A.B.A.J. 928

-20-

a. 4 (Oct.,1964); Brennan, Some Aspects of Federalism, supra.

Therefore, this Court should grant certiorari to review

the decision of the Supreme Court of Florida in this case

in order to correct that court's evasion of its duty to

consider Petitioner's constitutional claims and to prevent

the imposition of excessive and unnecessary burdens upon

lower federal courts.

CONCLUSION

For these reasons, Petitioner respectfully re-

quests this Honorable Court to issue a writ of certiorari

to review the judgment and opinion of the Supreme Court

of Florida.

Respectfully submitted,

TACK O. JOHNSON

YUBLIC DEFENDER

TENTH JUDICIAL CIRCUIT

» BY: (sal . 1 bn

A :

ASSISTANT PUBLIC DEFENDER

Hall of Justice Annex

495 N. Carpenter Street

Bartow, Florida 33830

(813) 533-6715 or 533-1184

COUNSEL FOR PETITIONER

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

JOHNNY PAUL WITT,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDICES

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Appendix A Opinion of the Supreme

age of aye me Witt

v. State, So. (Fla.

Case No. 58,329, opinion

filed July 24, 1980).

Appendix B Supremacy Clause of Arti-

cle VI, Fifth, Eighth, and

Fourteenth Amendments,

Constitution of the United

States.

Appendix C Section 921.141, Florida

Statutes (1973).

Appendix D Florida Rule of Criminal

Procedure 3.850.

Appendix E Opinion of the United

States District Court in

Henry v. Memeyr ight, ae

° m4 -D.Fla.Case

No. -554, Spinion filed

February 14, 1980).

‘Case No.

IN THE . ; %

SUPREME COURT OF THE UNITED STATES !

October Term, 1980

best JOHNNY PAUL WITT,

| Petitioner,

. *

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/ STATE OF eeOR IDA; ie

AEN Tonihe Respondent.

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Siege th ae eee APPENDICES 7 fame st

wt ie “PETITION FOR WRIT OF CERTIORARI TO THE .

agecqy-- SUPREME COURT OF FLORIDA

No. 58,329 A

(oa

JOHNNY PAUL WITT, Appellant, P

(July 24, 19860]

PER CURIAM

Ts 1974, Johnny Paul Witt was tried and convicted of

first-degree murder for the killing of Jonat'.an Kushner. The

trial judge accepted the jury's recommendation that Witt be sen-

tenced to death and, on appeal to this Court, the trial, court*=

judgment of conviction and sentence were affirmed. Witt v.

State, 342 So.24 497 (Fla.), cert. denied, 434 U.S. 935 (1973)

Feh. denied, 434 U. S$. 1026 (1978). Witt subsequently sought

post-conviction relief in the trial court pursuant to Florida

Rule of Criminal Procedure 3.850," which was denied. He now

seeks review of that denial. :

By this appeal Witt raises essentially six issues, all of

which he admits either were raised in the direct appeal from his

conviction and sentence, or could have been raised at that time.

* He predicates his appeal on alleged changes in case law since his

first appeal was concluded, asserting the right to obtain the

benefits of subsequent, favorable case law developments relating

to capital punishment and to criminal law generally. The partic-

ular changes which Witt presents for our consideration are these:

— eee —-

>. thee SEF &

(1) an alleged change in the law relative to seatenciog,

reflected primarily in Elledge v. State, 346 So.2d 998 (Pla.

1977), concerning the significance of improper aggravating cic-

cumstances where at least one mitigating ciccunstance has heen

found to exist;

(2) an alleged change in the law relative to sentenciag,

reflected in Hall v. State, 361 So.2d 683 (Fla. 1979), concerning

the requixesests for a written enumeration of the findiags in ay-

gravation and mitigation;

(3) an alleged change in the law relative to sentencing,

reflected in Shue v. State, 366 So.24 387 (Fla. 1978), and in

Burch v. State, %42 Se.id $31 (Fla. 1977), concerning definitions

for the mitijating circumstances set out in sections 921.141(b),

(e), and (£), Florida Statutes (1979);

(4) am alleged change in the law, reflected in Saith v.

Estelle, 602 F.24 694 (Sth Cir. 1979), cert. granted, _—ig. s.

—~ 100 S.Ct. 1311 (1980), making inadmissible in a sentencing

proceeding statements made during a court-ordered psychiatric ex-

amination not preceded by Miranda warnings;

(5) an alleged change in the law, ceflected by an aggrega-

tion of the individual opinions in Lockett v. Ohio, 438 U.S. 596

(1978), requiring that the state, before imposing the death

penalty, establish that the defendant intended to kill the

victim; and

(6) am alleged change in the law, reflected in Brewer v.

Williams, 430 U.s. 387 (1977), relating to the efficacy of a

defendant's waiver of his right to counsel.

The underlying issue posed by this appeal, however, “

“Concerns the significance of a change in decisional law on the

finality of a fully-adjudicated capital case. Simply stated, we

are confronted with « threshold decision as to vhen a change of

decisional law mandates a reversal of a once valid conviction and

sentence of death. The issue is a thorny one, requiring that we

resolve a conflict between two important goals of the criminal

a ee

/ ewer

_ — << <<a ow

—_ ° oe

justice system—ensuring finality of decisions on the one hand,

and ensuring fairness and uniformity in individual cases on the

other—within the context of post-conviction relief from a sen-

tence of death.

The importance of finality in any justice system, includ-

ing the criminal justice system, cannot be understated. It has

long been recognized that, for several reasons, litigation must,

at some point, come to an end. In terms of the availability of

judicial resources, cases mist eventually become final simply to

allow effective appellate review of other cases. There is no

evidence that sussequent collateral review is generally better

than contemporaneous appellate review for ensuring that a convic-

tion or sentence is just. Moreover, an absence of finality casts

@ cloud of tentativeness over the criminal justice system, bene-

fiting neither the person convicted nor society as a whole.2

Post-conviction relief procedures, such as those

authorized by our Rule 3.850, offer an avenue to challenge a once

final judgment. and sentence in limited instances, and for limited

reasons. The United States Supreme Court recently noted:

It has, of course, long been settled law that an ex

ror that. may justify reversal on direct appeal will

- *Inroads on the concept of finality tend to

undermine confidence in the in: ty of

our procedures... . Moreover, [the} in-

work associated —

United States v. Addonizio, 442 U.S. 178, 184 & n. LL

(1979) (footrste omitted). See also Linkletter v. walker, 381

U.S. 618, 637-38 (1965). The law's concern for finality of deci-~

sions is in no way diminished by the availability and utilization

of a collateral remedy such as Rule 3.850.°

-3 _ °

The doctrine of finality should be abridged only when a

more compelling objective appears, such as ensuring fairness and

uniformity in individual adjudications. Thus, society recognizes

that a sweeping change of law can so drastically alter the sub-

stantive or procedural underpinnings of a final conviction and

sentence that the machinery of post-conviction relief is neces-

sary to avoid individual instances of obvious injustice.

Considerations of fairness and uniformity make it very “difficult

to justify depriving a person of his liberty or his life, under

Process no longer considered acceptable and no longer applied to

‘indistinguishable cases. =‘ ,

Unfortunately, drawing or defining the line where finality

gives vay to fairness based on a change of lav is no simple task. : -

The United States Supreme Court has struggled with this problem,

developing what has been characterized as a * "staggeringly intri-

cate body of law governing the question whether new constitu-

satel, denen stewie: ho: ‘semmnamtealiy’ ox * * prospectively’ 73

applied.” > Indeed, one former member of that court has charac- !

terized the course of law in this area as * “almost as difficenlt to : 4

follow as the tracks made by a beast of prey in searchofitsin- >

tended victim.” Mackey v. United States, 401 U.s. 667, 676

(1971) (Harlan, J., concurring in part and dissenting in part).

Without attempting to survey this relatively umsatistac-

tory body of law,® we note that the essential considerations in

. determining whether a new rule of law should be applied: retroac-

tively are essentially three: (a) the purpose to be served by

the new rule; (b) the extent of reliance on the old rule* and (c)

7 the effect on the administration of justice of a retroactive ap- iu

plication of the new rule. Stovall v. Denno, 388 U.S. 293, 297

(1967); Linkletter v. Walker, 381 U.S. 618 (1965); Brewer vw.

State, -264 So.2d 833, 834 (Fla. 1972); State v. Steinhauer, 216

So.22 214, 219 (Fla. 1968), cert. denied, 398 U.S. 914 (1970).

A determination that a new principle of law should be

fully retroactive may mandate its recognition and applicatian on

St ee ee = “_-— = - tee _ms ‘_“ -- ~- +. + ence

Ss. Ss

collateral review. Thus, in this proceeding we must balance the Ss

interests of fairness and uniformity for Johnny Paul Witt against

the interests of decisional finality, in the context of alleged

subsequent favorable changes of law. The balancing problem is

presented squarely here, for there are no bases for Witt’s colla-

teral attack which are independent of alleged law changes. z

The general difficulty of resolving the conflicting interests

presented by law. changes is heightened by the fact that this isa

capital case. ‘Uniquely, capital punishment, on the one hand, connotes ‘

special concern for individual menreae because of the possible imposition

of a penaliy as unredeening as death.- On the other hand, both the

frequency of Florida "law br galt involving our relatively new.

capital eater semen penile and the unavoidable delay in deciding

these esses,” suggest that finality will be illusory if each convicted

defendant is allowed the right to r->cigate his first txial upon

@ subsequent change of law. Cf. Godfrey v. Georgia, 48 U.S.L.W. 4541,

4551 (U.S. May 19, 1980) (No. 78-6899) (*(T]he majority today endorses a

the argument that I thought we had rejected in Gregg: namely, ‘that

no matter how effective the death penalty may be as a punishment,

goverment [sic], created and run as it must be by humans, is

inevitably incompetent to administer it.’") (White, J., dissenting).

We know that the outcome of a capital case may depend upon the

Speed with which the trial and the appellate process progress. A

variety of reasons may account for the time disparities involved

in concluding judicial labors with regard to individuals found guilty

of capital crimes and sentenced to death. Trials are delayed for =_

one reason or another. Appeals are not prosecuted with equal

diligence. Our ability to review any case varies with the complexity hey

of the issues, the amount of disagreement among the embers of the

court, the arrival of cases presenting comparable or relevant legal

issues, the volume of our other work, and numerous other obvious

reasons. It has been suggested that delay could result from a factor

as minor as a common mk

Because the mere passage of time brings inevitable, atten-

dant refinements of the law, disparities of result on direct

oe em - were - . ~. we se ~“- - .

= ° . . _——<—-

~ A

Feview are unavoidable.’* We know, then, that if there vere to

be absolute uniformity and fairness in the application of our

capital punishment law, all relevant changes of law would have to

be recognized in post-conviction relief proceedings.

In considering the ideal of individual fairness in capital

cases, however, two countervailing considerations must be

weighed. First, if punishment is ever to be imposed for

society’ S most egregious crimes, the disposition of a particnlar

case must at some point be considered final notwithstanding a.

comparison with other individual cases. Second, we cannot ignore

the purpose for our post-conviction relief procedure. in cases

where a death Penalty has been imposed, for Florida’s post

aoa TAHAE ule cane about a8 & narrow response to Gideon

Wainwright, 372 U.s. 335 (1963). That decision « it will be

recalled, first announced that each state must Provide counsel to

every indigent defendant charged with a felony at all exiuioa ©

stages of the proceeding. The Gideon decision constituted a

change of law of such magnitude that it was applied retroactively

in order to. remedy the basic constitutional injustice of priar

felony trials without counsel.2? ra °

This Court promptly responded to Gideon, adopting a proce—

dure just fourteen days after the decision to allow prisoners the

opportunity and a forum to challenge those prior convictions

which might be affected by Gideon's law change.2? he procedural

rule spawned by Gideon became Rule 3.850. Quite Clearly, the

main purpose for Rule 2.850 was to provide a method of reviewing

= conviction based on a major change of law, where unfairness

was so fundamental in either Process or substance that the doc=

trine of finality had to be set aside. To the extent we permit

this rule to be used as a second procedure to balance individual

applications Of the death penalty--our first being on direct

review of the conviction and sentence—the limited historical

role for post-conviction proceedings becomes distended. Por the

policy reasons which underpin the finality of decisions, and

NT Re re a A

—

a J

because the imposition of any death penalty would be averted by a

different construction of our rule, we now declare our adherence

to the limited role for post-conviction relief proceedings, even

in death penalty cases.

The issues brought to us in this appeal are asserted by

Witt to be based, essentially, on two judicial decisions involv-

ing changes of law—Davis v. United States, 417 U.S. 333 (1974),

and Vertree v. Wainwright, 184 So.2d 420 (Pla. 1966). The latter

is purely an application of the limited role for post-conviction

relief which was spawned by Gideon, for Vertree authorized colla-

teral review based on a change of law reflected in a case which

had held that post-conviction relief was available to determine

the voluntariness of a defendant's guilty plea vine, he was not

properly apprised of his right to counsel. 14 The Supreme Court's

Davis decision, hovever, is not so easily classified.

Davis was convicted and sentenced for refusing to obey an

order of induction, despite his claim that the regulation

authorizing his induction was not validly authorized by statute.

Davis’ claim was rejected on appeal by a panel of the. couxt of

appeals, and his conviction was affirmed. Later, a different

panel of the same court of appeals upheld the same claim Davis.

had made in a similar, but unrelated, case. Davis then sought

collateral review of his conviction and sentence under 28 U.S.C.

‘$ 2255, the federal post-conviction relief statute.-> on certio-

rari review, the United States Supreme Court held that Davis’

‘clain—a nonconstitutional change of law resulting from an incon-

sistent opinion by another panel of the same court of appeals—

was cognizable on collateral-review under § 2255, so long as the

asserted change or error is a "fundamental defect which

inherently results in a complete miscarriage of justice” and

“presents exceptional circumstances where the need for the remedy

- « » 4s apparent.” 417 U.S. at 346 (quoting Hill v. United

States, 368 U.S. 424, 428 (1962)). ‘The application of Davis in

Florida is suggested because our rule 3.850 was modeled after 238

‘

+) eens + pqpeaw @ «er

ot mee operas

U.S.C. § 2255, and constructions of the federal statute have gen-

erally been considered persuasive for questions which arise under

the Florida rule.”

We start by noting that we are not obligated to construe

our rule concerning post-conviction relief in the same manner as

its federal counterpart, at least where fundamental federal con-

stitutional rights are not involvea.*? First, the concept of

federalism clearly dictates that we retain the authority to

determine which "changes of law” will be cognizable under this

state's post-conviction relief machinery. Second, we know of no

constitutional requirement that the scope of Rule 3.850 be fully

congruent. with that of the analogous federal statute. A limited

role for the rule in no way abridges the federal due process

right to be heard, since state prisoners will still he free to

seek collateral relief in the federal courts under that system's

seemingly more relaxed standards. -? In fact, several commenta~

tors have argued forcefully that state courts should narrow their

grounds for collateral relief because of the duality of review,2°

and at least one state has limited post-conviction relief nar-—-

rowly to constitutional claims.?*

Not being required to accord Davis breadth to post-

conviction proceedings under our rule, we decline to do so.22 1%

allow non-constitutional claims as bases for post-conviction

relief is to permit a dual System of trial and appeal, the first

being tentative and nonconclusive. our justice system could not.

accommodzte such an expansion; our citizens would never tolerate

the deleterious consequerces for criminal punishment, deterrence ._

and rehabilitation. We reject, therefore, in the context of an |

alleged change of law, the use of post-conviction relief proceed—

ings to correct individual miscarriages of justice or to permit

roving judickal error corrections, in the absence of fundamental

and constitutional law changes which cast serious doubt on the

veracity or inteyrity of the original trial proceeding.2°

We emphasize at this point that only major constitutional.

changes of daw will be cognizable in capital cases under Rule

3.850.7* although specific determinations regarding the signisi-

cance Of various legal developments mst be made on a case-by-

case basis, history shows that most major constitutional changes

are likely to fall within two broad categories. The first are

She eighth amendment as cruel and unusual punishment. the

seean® age thoee changes of law which are of enfSiciant mguinode

to necessitate retroactive application, @S ascertained by the

three-fold test of stovall and Linkletter.7> Gideon vy.

Wainwright, of course, is the prime example of a law change in-

Cluded within this category.?§ 3

Tm contrast to these jurisprudential upheavals are evolu-

tionary refinements in the criminal law, affording new or difs-

erent standards for the admissibility of evidence, for procedural

den the judicial machinery of our state, fiscally and

intellectually, beyond any tolerable limit,27

Incidental to the notion of what constitutes a law change

for post-conviction relief purposes is the Problem of what courts

bring about Such changes. Even within the narrow area of major

constitutional law changes, there mst be Some restriction on

the number of tribunals which can adopt law changes sufficient to

warrant relief in post-conviction Proceedings. 2° The reason is

~9-

_———

obvious. In Plorida alone there are 500 trial court judges, 39

district court judges sitting in panels of three on five

@ppellate courts, and the supreme court. Little finality

would attend criminal convictions if each of these tribunals was

an eligible source of law change. Similar considerations apply

to the host of federal and other non-Plorida judges from whom new

"law" might emerge. Consequently, we hold that only this Court

and the United States Supreme Court can adopt a change of law

sufficient to precipitate a post-conviction challenge to a final

conviction and sentence”

Applying these principles to the present case, we find

that Witt may not raise most of the matters he has presented by

way of collateral attack on his original conviction and sentence.

Witt'’s first, second, and third alleged law changes are

nonconstitutional, evolutionary developments in the law, arising

from our case-by-case “pplication of Florida's death penalty

statute. Being of that genre, they may not be raised in this

proceeding. His fourth alleged law change emanates from an in-

termediate federal court and is likewise ineligible for consider- ~~

ation in a 3.850 proceeding.*? Witt'’s fifth alleged law change,

although arguably constitutional in nature and emanating from a

proper court, is not in fact a "change of Law” inasmuch as it is

not a precedent.->~

Witt’s sixth alleged law change—the developmest reflected

in Brewer v. Williams, 430 U.S. 387 (1977)—~is the only claim

which, on its face, could qualify for relief under Rule 3.850.

Normally, we would now determine whether Brewer should be

retroactively applied to thn "tection ness under the three-part

test of Stovall and Linkletter. That exercise vould be futile,

however, for the factual predicate for Witt's sixth Claim pre~

Cludes any benefit for Witt even if Brewer were retroactively

applied. The Supreme Court in Brewer did not hold that a defen-

dant may not waive his right to counsel after requesting an

attorney. Rather, it merely found that, under the circumstances,

re mm = bal es:

nat defendant had not done so and the state had fa.led to meet

tes burden of proving “an intentional relinquis t or abandon-

t of a known right or privilege.” Id. at 404 fueting Johnson ates

bst, 304 U.S. 458, 464 (1938)). In contrast] we Speci fi-~-

call held on Witt's direct appeal that Witt had faived his right .

this case." Witt

“Ys Sta p oe So. 2a at 560. Witt's request fof certiorari was * °

denied a Gnited States Supreme Court. t confirmed, fact-

»” and as such is

a legal. issue

+ the change; (a}\ emanates from this Court or the United States

Supreme Court, (b) ds constitetional in nature, and (c) consti-

tutes a development. of fundamental significance. Most Law

changes of "fundamental significance” will fall within the two

broad categories described earlier. wr

Pog the reasons expressed, the order of the trial court

denying Witt any relief in his 3.850 proceeding is affirmed. the :

stay of execution ordered on May 14 is hereby vacated.

It is so ordered. ‘

“me .

-_ m . Se ee oe

EER ey Se am at €

1. I relavant part, Rule 3.350 reads as follows:

A prisoner in custody under sentence of a

court established by the laws of Plorida

Claiming the right to be released upo. the

ground that the judgment was entered or

that the sentence was imposed in violation

of the Constitution or Laws of the United

peng ne Or of the State of Florida, or that

the judgment or imposed the sentence to

vacate, set aside or correct the judgment

Or sentence.

Pla. R. Crim. P. 3.850.

See Hankerson v. North Carolina, 432 U.S. 233, 246-48

(1977) (Powell, J., concurring); Mackey v. United States, 401

U.S. 667, 681-92 (1971) (Harlan, J., concurring); Sanders v.

United States, 373 U.S. 1, 24-25 (1963) (Harlan, J.,

dissenting) ; Brown v. Allen, 344 U.S. 443, 536-48

(1953) (Jackson, J. concurring). Accord, Bator, Pinalit in

Criminal Law and Federal dabeas oe for State Prisoners,

~ - - . - ~

3- See,also ABA Standards Relating To Post-Conviction Remedies 3

TApprov. Draft 1968) ("A general principle underlying these

standards is that once an issue of fact or law has been

finally determined, that adjudication ought to be final and

binding.”). : :

4. Ida. at 37.

5. P. Bator, P. Mishkin, D. Shapiro, « H. Wechsler, Hart ¢

‘s The Federal Courts. And The Federal System 1477 (2a

ed. 1973) (hereinafter cited as Hart ¢ Wechsler].

6. The retroactivity-prospectivity problem has produced a vast

array of scholarly literature. See, e.g., Bator, Finality in

Law and Federal Habeas Corpus 2

s z tes on ca oJ.

7. It bears mention that the constitutionality of Plorida’s

capital sentencing procedures § 921.141, Plorida Statutes

(1979), is contingent upon this Court's role of reviewing

each case to ensure uniformity in the imposition of the death

seeaaeys ~ See Proffitt v. Florida, 428 U.s. 242, 258-59

(1976).

8. Florida's death penalty statute was enacted in 1973. This

Court has decided 140 Capital appeals under the statute in

the last 6 years and had 112 additional death penalty appeals

pending as of May 1, 1980.

14.

See Davis v. United States, 417 U.s. 333, 368

T1574) (Rehnquist, J., dissenting) .

See Linkletter v. Walker, 381 U.S. 618, 628 n.13 (1965).

In Re Criminal Procedure Rule No. 1, 151 So.2d 634 (Pla.

1963). As the Court noted in Roy v. Wainwright, 151 So.2da

825, 826-27 (Fla. 1963), the rule was @esigned to relieve the

hn 7 we ae ag S ¥

oe pave simplified our discussion of the procedural histary

of Da for purposes of clarity and convenience. For a con-

ple tment, see Davis v. United States, 417 U.S. 333,

334-41 (1974).

— eh See that Davis’ claim qualified under this test.

See Roy v. Wainwright; Reddick v. State, 190 So.24 340 (Pla.

Za DCA 1966). :

Por an historical analysis of 5 2255, see United States v.

Hayman, 342 U.S. 205, 210-19 (1952). ; ;

See Comment, State Court Withdrawal From Habeas Corpus, 114 a

Gc Pa. L. Rev. = --

See Friendly, Is paagcence Irrelevant? Collateral Attack on

’ . - Vv. ’

Ta ee has done what it considers right and

has met due process standards, it should not feel obligated

to do more merel because federal habeas may be available in

some cases Wharerit declinn to allow state collateral

attack.) (emphasis in original); Comment, supra note 20.

See Commonwealth v. Rightnour, 46§ Pa. 107, 364 A.2da 927

{I576) (4-3 decision) . =

Tt goes almost without saying that our rejection of Davis ‘

where a death penalty is involved connotes its rejection in

less severe cases.

prior

tioner is punished is no longer i al. See United

States v. por Ae , 442 U.S. 178, 185-87 11379) Btn v.

Powell, 428 U.S. 465, 477 n.10 (1976); United States ex rel.

Machi v. United States Dept. of Prob. & Parole, 536 F.2d 179

(7th Cir. 1976); United States v. Loschiavo, $31 F.24a 659 (2d

Cir. 1976); United States v. Travers, 514 P.24 1171 (24 Cir.

-13-

_eepeteee a: anges}

& " 3 ag. t this more

refined standard, Witt's alleged law changes provide no basis

to upset his conviction or sentence.

24. It should be noted that our analysis is applicable only to

those situations where a cBade of Taw is asserted as a

ground for collateral relie/ e 3.850. Post-

conviction involving the other enumerated grounds of

Rule 3.850—-for example, a claim that the trial court was

without jurisdiction—need not be of constitutional stature

in order to provide a viable basis for relief. Indeed, the

majority of cases under Rule 3.850 have not involved changes —

of law, and those cases will not be affected by today’s

25. This category of law changes was adapted from Section

2.1(a) (vi) of the ABA Standards Relating to Post-Conviction

Remedies (Approv. Draft 1968), which provides in relevant

part: R

A post-conviction remedy ought to be suffi-

ciently broad to provide relief

(a) for meritorious claims challeng

judgments of eonvietiona, inalietinn alates

-~ ref 6 4

(wi) that there has been a significant

change in law, whether substantive or

26. Gideon with Linkletter v. Walker, 381 U.S. 618

; Uses} wherein the Supreme Court refused to give retroactive

application to the newly-announced exclusionary rule of Mapp

‘vw. Ohio, 367 U.S. 643 (1961). ‘

27. Florida's voters recently reaffirmed their commitment to a

which.

: which

- Sppeals. See England, Hunter, & Williams, An Analysis of the

1980 nal t, 54 Pla. B.J. 406 RELL

28. See Davis v. United States, 417 U.S. 333, 360-61

T1574) (Rehnquist, J., dissenting) . :

29. It is interesting to note that commentators have been uni~-

formly critical of the Supreme Court's conclusion in Davis

that an inconsistent opinion of another panel of the sane

court of appeals can constitute a “change of law.” See,

e. is” Hart & Wechsler at 268 (1977 Supp.); The rere

cy , 88 Harv, L. Rev. 41, 220 (1974) ("By paral eeiee

col review under section 2255 in response to a

nonauthoritative decision ... the Supreme Court appears to

have unjustifiably extended the concept of change of

law.”) (footnote omitted) .

and federal .... '* —~GOCisions of lower courts in the

state and federal Court systems.

Although we do not address the merits of Witt’s argument % P:

concerning Smith v. Estelle, we note that the state contests

its applicability to Witt’s trial on multiple grounds.

31. The aggregation of Separate judiciel opinions in a case coes .

mot produce a law-changing precedent. See Greene v. Massey,

No. 57,207 (Fla. May 8, 1980).

-15-

ee tee see ee OP hrm. @ nary A" ESR Pee - -

roen wet preset 2G: Saeko tS sno anion mie AR. Lo. t-- -

at - =

ENGLAND, J., concurring.

T write to comment on the significance of today’s decision.

for I have no illusions as to its reach. The legislature and the

United States Supreme Court have determined that capital

punishment is permissible for certain crimes committed in

Plorida. By adopting a pragmatic approach to post-conviction

Nelief proceedings, the Court has in usseace created a procedural

means under state law by which executions can take place.! <I an

convinced that the adoption of any other approach would be

‘tantamount to a judicial invalidation of Florida's capital

Punishment statute, for no execations would take place if “change

of law" were defined to include any refinement in the capital

punishmest statute or any nonconstitutional change of lav. Under

such definitions there would never be a time vhen a defendant

facing execution could not identify a law chanse sufficient to

initiate a collateral attack on his sentence and convictioa.

The heightened problem of law changes in Florida's capital

punishment scheme is exemplified by a look at only two cases from

smong OUF many. Sawyer v. State, 313 So.24 680 (Pla. 1975),

Cert. denied, 428 U.S. 911 (1976), and Brown v. State, 367 So.24

616 (Pla. 1979), illustrate the point that the outcome of a

capital case may depend simply upon the speed with which the

trial and the appellate process progress.

anthony Sawyer was convicted and sentenced to death for

the January 1973 killing of a Liquor store owner's son in Dade -

County. While the jury recommended a life sentence, the trial

judge imposed a sentence of death, citing additional facts not

available to the jury as the basis for overriding its

recommendation. An appeal was filed in November 1973 and,

finding no reversible error, this Court affirmed both the

conviction and sentence in February 1975. Under standards

subsequently developed, three of the four aggravating factors

would have been rejected.” My review of the record of Sawyer's

trial suggests that his sentence in all probability would today

be vacated, and that a life sentence would be imposed or the case

remanded for reseitencing.

~16- .

ee ee ee OF en

Ss baad

Henry Brown was also sentenced to death in connection with

@ 1973 Dade County murder—-the August 1973 killing of an elderly

man who had just cashed his social security check. As in Sawyer, ; oie

the Jury recommended a life sentence and the trial judge inposed

® sentence of death on the basis of four aggravating

circumstances. One mitigating factor was also found to exist.

* Life sentence, based primarily on our intervening decision "2. ae

concerning the significance of a jury's life recommendation. See

Tedder v. State, 322 So.2d 908 (Pla. 1975).

- ee owe oe = co Oe QretenenEPctbeESets Gneti

Obviously, the Court has no control over federal district

court judges who may grant review in post-conviction relhiez

or habeas corpus proceedings. Knowing no practical way to

avoid that result, I acknowledge that reality in the belief,

nonetheless, that multiple reviews within the state court

System are inimical to an effective criminal justice system. “

One factor in aggravation was predicated on pending criminal

¢ rather than prior convictions. See rovence v.

State. 337 So.2d 783 (Fla. 1976), cert. denied, 431 U.S. 969 :

(1977). Two others were not included in the statutory list :

ef aggravating circumstances. See Mikenas v. State, 367

Plorida Rule of Criminal ;

Bo. 73-100l-c (Cir. .Ct.X1lth) (Aug. 6, 1976. Sentence review

is howe

Purpose, The Florida Bar Re Pla. Rules of Criminal

Procedure, 343 So.24 1247 (Pla. 1977)

An Appeal from the Circuit Court in and for Hillsborough County,

Arden Mays Merckle, Judge - Case No. 73-2181D

Jack 0. Johnson, Public Defender, and Paul c. Felm and James 2.

Walchak, Assistant Public Defenders, Bartow, Plorida,

for Appellant -

Jim Smith, Attorney General, and Robert J. Landry, Assistant Attorney

- Tampa, Florida,

for Appellee ; : °

CONSTITUTION OF THE UNITED STATES

ARTICLE VI.

All debts contracted and engagements entered into,

before the adoption of this Constitution, shall be as valid

against the United States under this Constitution, as under

the Confederation.

This Constitution, and the laws of the United States

which shall be made in pursuance thereof; and all treaties

made, or which shall be made, under the authority of the

United States, shall be the supreme law of the land; and the

judges in every State shall be bound thereby, any thing in the

Constitution or laws of any State to the contrary notwith-

standing.

The senators and representatives before mentioned,

and the members of the several State Legislatures, and all ex-

ecutive and judicial officers, both of the United States and

of the several States, shall be bound by oath or affirmation

to support this Constitution; but no religious test shall-ever

be required as a qualification to any office or public trust

under the United States.

AMENDMENT V.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indict-

ment of a grand jury, except in cases arising in the land or

naval forces, or in the militia, when in actual service in

time of war or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a wit-

ness against himself; nor be deprived of life, liberty, or

property, without due process of law; nor shall private pro-

perty be taken for public use, without just compensation.

AMENDMENT VIII.

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT XIV.

SECTION 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of the laws.

Un. sek SENTENCE : Ch. 921

CHAPTER 921

SENTENCE

921.09 Fees of physicians who determine sani-

ty at time of sentence.

921.161 Sentence not to run until i posed:

credit for county jail time after sen-

921.12 Fees of physicians when pregnancy is tence; certificate of sheriff.

fs corr as cause for not pronouncing 921.18 Sentence for indeterminate Period for

921.141 Sentence of death or life imprisonment noncapital felony.

for capital felonies; further proceed-

921.20 Classification summary; parole

bation commission. re apices

ings to determine sentence. 921.21 Progress reports to parole

921.15 Stay of execution of sentence to fine; tion counmlasion. " and probe-

bond and proceedings. 921.22 Determination of exact period of im-

921.16 When sentences to be concurrent and

when consecutive.

921.09 Fees of physicians who determine

sanity at time of sentence.—The court shall

allow reasonable fees to physicians appointed

by the court to determine the mental condition

of a defendant who has alleged insanity as a

cause for not pronouncing sentence. The fees

shall be paid by the county in which the indict-

meat was found or the information or affidavit

Mistory.—$255, ch. 19554, 1898; COL 1940 Supp. 2663(284);

$121, ch. 70-339.

921.12 Fees of sicians when pregnancy

‘is alleged as cause for not pronouncing sen-

tence.—The court shall allow reasonable fees

to the physicians appointed to examine a de-

‘fendant who has alleged her pregnancy as a

cause for not pronouncing sentence. The fees

shall be paid by the county in which the in-

dictment was found or the information or affi-

davit filed.

Nistery.—§ ch. 10554, 1938; COL 1848 Supp. 8662 3

4132, ch Toa38" —

921.141 Sentence of death or life imprison-

ment for capital felonies; further proceedings to

ne sentence.—

(1) SEPARATE PROCEEDINGS ON IS

SUE OF PENALTY.—Upon conviction or ad-

judication of guilt of a defendant of a capital

felony, the court shall conduct a separate sen-

tencing proceeding to determine whether the de-

fendant should be sentenced to death or life im-

prisonment as authorized by §775.082. The pro-

ceeding shall be conducted by the trial judze be-

fore the trail jury as soon as practicable: If the

trial jury has been waived or if the defendant

— guilty, the sentencing proceeding shall

conducted before a jury ae for that

‘ tion. Any such evidence which the court deems

to have probative value may be received, regard-

less of its admissibility under the exclusionary

rules of evidence, provided the defendant is

accorded a fair opportunity to rebut any hearsay

prisonment by parole and probation

commission.

statements. However, this subsection shall not

be construed to authorize the introduction of any

evidence secured in violation of the constitutions

of the United States or of the State of Florida,

ao state om the defendant or his counsel shall

permi to nt argument for or against

sentence of death,

sony Ning ee BY THE

— r hearing @ evidence, the ju

shall deliberate and render an advisory senten,

to the court, based upon the following matters:

(a) Whether sufficient aggravating circum-

stances exist as enumerated in subsection (6);

(b) Whether sufficient mitigating circum-

stances exist as enumerated in subsection (7),

which outweigh the aggravating circumstances

found to exist; and

the defendant should be sentenced to life *{im-

prisonment] or death.

(3) FINDINGS IN SUPPORT OF SEN.

TENCE OF DEATH.—Notwithstanding the

recommendation of a majority of the jury, the

court after weighing the aggravating pow ¢ miti-

ating circumstances shall enter a sentence of

ife imprisonment or death, but if the court im-

poses a sentence of death, it shall set forth in

writing its findings upon which the sentence of

death is based as to the facts: P

(a) That sufficient aggravating. circum-

— exist as enumerated in subsection (6),

_(b) That there are insufficient mitigating

circumstances, as enumerated in subsection (7),

to outweigh the aggravating circumstances.

In each case in whic’ the court imposes the

death sentence, the de. -mination of the court

shall be supported by specific written i

of fact based upon the circumstances in su

sections (6) and (7) and upon the records of the

trial and the sentencing proceedings. If the court

does not make the findings requiring the death

sentence, the court shall impose sentence of life

imprisonment in accordance with §775.082.

(4) REVIEW OF JUDGMENT AND SEN-

TENCE.—The judgment of conviction and sen-

tence of death shall be subject to automatic re-

view by the Supreme Court of Florida within 60

2236

)

be 4s" Pe ee ‘ ree ew ee Cee ee wth tpl? 27 Gee SO ES ae ae Sistas aia ee a a ee ee

oe a ee ee

0 OL EE —— Eee ee

—_____

i, Sl on ) eww e Ts.” ~~

Th. 921 SENTENCE Ch. 921

gays after certification by the sentencing court payment of the fine and the costs of prosecu-

of the entire record unless the time is extended _ tion. The bond shall be executed by the defend-

for an additional period not to exceed 30 days

suclow We tao copes ean eae

ew su court @ priorit

over all other cases and shall be “ ye

cordance with rules promulgated by the supreme

AGGRAVATING CIRCUMSTANCES.

ing circumstances shall be limited

person under sentence of impriso

(b) The defendant was previously convicted

of another capital felony or of a felony involving

the use or threat of violence to the pe ‘

ns.

(d) The capital was committed while

the defendant was engaged, or was an accom-

plice, in the commission of, or an attempt to com-

mit, or flight after committing or attempti to

(e) The capital felony was committed fox the

purpose of avoiding or preveniios a lawful arrest

an escape custody.

(f) The Baas felony was committed for

g -

(g) capital felony was committed to dis-

rupt or shinder’ the lawful e ‘ci

ous, strectom ot cruel.

MITIGATING CIRCUMSTANCES.—

ces shall be the following:

, (a 7 et yoo has no significant history

P b

treme mental or emotional disturbance.

fendant’s conduct or consented to the act.

(d) The defendant was an accomplice in the

capital felony committed by another person and

his participation v. 4s relatively minor.

(e) The defendant under extreme

duress or under the substantial domination of

— "the capacity of th defendan

e ca ty of the t to appreci-

ate the criminality of his conduct or to conform

his conduct to the requirements of law was sub-

ar ay impaired.

(g) @ age of the defendant at the time of

the crime.

ch. ; CGL 1940 et

oR tg te sek mt COL 1H Sem soy sn

Note.—See former §919.23.

921.15 Stay of execution of sentence to

fine; bond and proceedings.—

(1) When a defendant is sentenced to pay

@ fine, he shall have the right to give bail for

ant and two sureties approved by the sheriff

or the officer charged with execution of the

judgment.

(2) The bond shall be made payable in

ninety days to the governor and his successors

in office.

(3) If the bond is not paid at the expiration

of ninety days, the sheriff or the officer charged

with execution of the judgment shal] indorse

the default on the bond and file it with the

clerk of the court in which the judgment was

rendered. The clerk shall issue an execution

as if there had been a judgment at law on

the bond, and the same proceedings shall be

followed as in other executions. After default

of the bond, the convicted person may be pro-

ceeded against as if bond had not been given.

wave Sas Sk cass ™ OOF wR; COL He

921.16 When sentences to be concurrent

and when consecutive —A defendant convicted

of two or more offenses charged in the same

indictment, information, or affidavit or in con-

solidated indictments, informations, or affida-

vits, shall serve the sentences of imprisonment

concurrently unless the court directs that two

or more of the sentences be served consecu-

tively. Sentences of imprisonment for offenses

not charged in the same indictment, informa-

tion, or affidavit shall be served consecutively

unless the court directs that two or more of the

sentences be served concurrently,

prtotorr Aaah, ch. 19554, 1939; COL 1940 Supp. 8663(271):

921.161 Sentence not to run until imposed;

credit for county jail time after sentence;

certificate of sheriff.—

(1) A sentence of imprisonment shall not

begin to run before the date it is imposed, but

e court imposing a sentence shall allow a de-

fendant credit for all of the time he s:

tin the

county jail before sentence. it must be

for a specified period of time and shall be provid-

ed for i: the sentence. =~

(2) In addition to other credits, a, person

sentenced to imprisonment in custody of the

division of corrections of the department of

health and rehabilitative services shall receive

credit on his sentence for all time spent be-

tween sentencing and being placed in custody

of the division of corrections. When delivering

a prisoner to the division of corrections the

sheriff shall certify in writing to the division:

(a) The date the sentence was imposed and

the date the prisoner was delivered to the

division.

(b) The dates of any periods after sentence

the prisoner was at liberty on bond.

times the prisoner was at liberty after sentence.

The certificate shall be prima facie evidence of

the facts certified.

History.—§1, ch. 63-457; §§19, 35, ch. 691 1%, ch. 70-339,

Sich 70401 fi, che TO7E on

2237

Se ee ee eee

(Sa

Sey Es

vl ee at a ee

Rule 3.830. Direct Criminal Contempt

A criminal sony thoy be punished summarily

the court. The judgment of guilt of contempt shall

include a recital of those f. i ee

dication of guilt is based.

of guilt the judge shall inform the defendant of the

accusation against him and inquire as to whether he

judged guilty of contempt by the Court and sen-

tenced therefor. The defendant shall be given the

opportunity to present evidence of excusing or miti-

gating circumstances. The judgment shall be signed

by the judge and entered of record. Sentence shall

be pronounced in open court,

Commiitee Note

Same as prior rule.

Rule 3.840. Indirect Criminal Contempt

The judge, of his own

motion or upon affidavit of any

constituting the criminal contempt charged and re-

quiring him to appear before the court to show cause

why he should not be held in contempt of court.

nics OF CRIMINAL PROCEDURE

XVI. CRIMINAL CONTEMPT

“

Rule 3.850

(3) Order of Arrest; Bail. The judge may issue

an order of arrest of the defendant if the judge has

reason to believe the defendant will not appear in

response to the order to show cause. The defendant

shall be admitted to bail in the manner provided by

law in criminal cases,

(4) Arraignment; Hearing. The defendant may

be arraigned at the time of the hearing, or prior

thereto upon his request. A hearing to determine

the guilt or innocence of the defendant shall follow a

plea of not guilty. The judge may conduct a hear-

ing without assistance of counsel or may be assisted

by the prosecuting attorney or by an attorney ap-

pointed for that purpose. The defendant is entitled

to be represented by counsel, have compulsory proe-

ess for the attendance of witnesses, and may testify

in his own defense.

All issues of law and fact shall be heard and

determined by the judge.

hearing. Another judge shall be designated by the

Chief Justice of the Supreme Court.

(6) Verdict; Judgment. At the conclusion of the

hearing the judge shall sign and enter of record a

judgment of guilty or not guilty. There should be

included in a judgment of guilty a recital of the

facts constituting the contempt of which the defend-

ant has been found and adjudicated guilty. ji

(7) The Sentence; Indirect Contempt. Prior to

the pronouncement of sentence, the judge shall in-

form the defendant of the accusation and judgment

against him and inquire as to whether he has any

cause to siiow why sentence should not be pro-

nounced. The defendant shall be afforded the op-

portunity to present evidence of mitigating cireum-

stances. The sentence shall be pronounced in open

court and in the presence of the defendant.

Commitee Note

Same as prior rule.

XVII. POST-CONVICTION RELIEF

Rule 3.850. Motion to Vacate, Set Aside or

Correct Sentence; Hearing;

Appeal (See Rule 3.987 for

form)

A prisoner in custody under sentence of a court

established by the laws of Florida claiming the right

to be released upon the ground that the judgment

‘

was entered or that the sentence was imposed in

violation of the Constitution or Laws of the United

States, or of the State of Florida, or that the court

was without jurisdiction to enter such judgment or

to impose such sentence, or that the senterice was in

excess of the maximum «.athorized by law, or that

his plea was given involuntarily, or the judgment or

sentence is otherwise subject to collateral attack,

may move the court which entered the judgment or

imposed the sentence to vacate, set aside or correct

the judgment or sentence.

A motion for such relief may be made at any time.

The motion shall be under oath and include the

following information:

(a) The judgment or sentence under attack and

the court which rendered the same;

(b) Whether there was an appeal from the judg-

ment or sentence and the disposition thereof;

been filed, and if so, how many;

(d) The nature of the relief sought;

(e) A brief statement of the facts (rather than

conclusions) relied upon in support of the motion.

The court will refuse to receive any motion filed

pursuant to this rule which is not in substantial

compliance with the requirements hereof.

upon the legal insufficiency of the motion on its

face, a copy of that of the files and records

which conclusively that the prisoner is enti-

shall be attached to the order.

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled

, to no relief, the court shall cause notice thereof to be

served upon the prosecuting attorney of the court,

grant a prompt hearing thereon, determine the is.

sues and make findings of fact and conclusions of

law with respect thereto. If the court finds that the

judgment was rendered without jurisdiction, or that

the sentence imposed was not authorized by law or is

otherwise open to collateral attack, or that there has

been such a denial or infringement of the constitu-

tional rights of the prisoner as to render the judg-

ment vulnerable to collateral attack, the court shall

vacate and set the judgment aside and shall dis-

charge the prisoner or resentence him or grant him a

new trial or correct the sentence as may appear

appropriate.

A court may entertain and determine such inotion

without requiring the production of the prisoner at

the hearing. The sentencing court shall not be

required to entertain a second or successive motion

for similar relief on behalf of the same prisoner.

' An appeal may be taken to the appropriate appel-

late court from the order entered on the motion as

from a final judgment on application for writ of

habeas corpus. All orders denying motions for post-

conviction relief shall include a statement that the

movant has the right to appeal within thirty days of

ies €.x: OF CRIMINAL P CEDURE €

154

the rendition of the order. The prisoner may file a

motion for rehearing of an order denying a motion

under this rule within fifteen days of the date of

service of the order. The clerk of the court shall

promptly serve upon the prisoner a copy of any

order denying a motion for post-conviction relief or

denying a motion for rehearing noting thereon the

date of service by an appropriate certificate of ser-

vice.

An application for writ of habeas corpus in behalf

of a prisoner who is authorized to apply for relief by

motion pursuant to this rule, shall not be entertained

if it appears that the applicant has failed to apply

for relief, by motion, to the court which sentenced

him, or that such court has denied him relief, unless

it also appears that the remedy by motion is inade-

quate or ineffective to test the legality of his deten-

tion.

Amended Feb. 10, 1977, effective July 1, 1977 (843 So2d

1247); Dec. 22, 1977, effective Jan. 1, 1978 (353 So.2d 552);

1972 Revision. Same as prior rule.

— now found in Article

Additions have been made. The com»

ial

pare :

fed!

FE Et

HUH

iit gilt!

ae Ht

Hah

for a simplified expeditious disposition of appeals in

It is to be noted, however, that in

is relied upon as a basis for denial of the motion, it

this procedure seem to justify coping with the unusual or exception-

uti

BR ne

a es

?.034-8

bie of

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JAMES DUPREE HENRY,

Petitioner,

vs. No. 79-584-Orl-Civ-R

LOUIE L. WAINWRIGHT,

Secretary, Department F 1 L E D

of Corrections, ORLANDO, FLA.

_ Respondent. FEB 14 1990

WESLEY R. THIES

MEMORANDUM OF DECISION CLERK

Summary of Decision: In connection with the

petition by James Dupree Henry for the issuance of a writ

of habeas corpus, this court has conducted an evidentiary

hearing and reviewed the entire trial transcript and the

briefs of the parties. Based thereor, the court finds’ that

no error was committed by the trial court of such a natare

as to invalidate the conviction. The court did find, how-

ever, that the trial court committed an error in instructing

the jury at the sentencing hearing. The erroneous instruc-

tion effectively denied the Petitioner the right to a sen-

tencing hearing conducted in ahaa with the applicable

statutes of the State of Florida. The error, therefore,

denied the Petitioner due process and equal protection of

the law of the State of Fiorida. Hence, it is the conclu-

sion of this court that the State should afford the Peti- |

tioner another sentencing hearing at which the jury will

be correctly instructed as to the matters upon which it may

nf a:

O70. wak—2. 89.79.7008 196

mee

—«

Se Le

P-034-B

base its sentencing recommendation. This court will issue

the writ of habeas corpus only if such hearing is not af-

forded the Petitioner within ninety days from the date

hereof.

% Introduction: On 26 June 1974, the Petitioner

was convicted by a jury of first degree murder in the

Circuit Court for Orange County, Florida. The trial

court sentenced the Petitioner to death by electrocution.

The Petitioner appealed the convicv.j.on to the Supreme

Court of Florida which affirmed the judgment, Henry v.

State, Fla. 1975, 328 So.2d 430. A petition for certio-

rari to the United States Supreme Court was denied, 1976,

429 U.S. 951; reh. denied, 1977, 429 U.S. 1124. On

31 October 1979, Petitioner filed a motion to vacate the

judgment pursuant to Florida Rule of Criminal Procedure

3.850 in the Circuit Court for Orange County, ‘Florida.

The trial court denied the motion on 19 November 1979, |

and its denial was affirmed by the Florida Supreme Court

on 27 November 1979. Henry v. State, 1979, So.2da

: The petition for a writ of habeas corpus was

filed in this court on 27 November 1979. The record be-

fore this court consists of:

(1) The transcript of the testimony before

the Orange County Circuit Court at the

- la -

oh. 2ed—7-9. 79-7 90.000

P-034-B

(2)

(3)

(4)

The

time of trial, reference to which will

be designated as "Tr.";

The transcript of the testimony before

the Circuit Court of Orange County,

Florida, taken in a pre-trial hearing

on Petitioner's motion to suppress,

reference to which will be designated

"sg. Te."3

The transcript of the record before

the state trial court, reference to which

will be designated "Transcript of Record” ;

Petitioner's brief before the Florida

Supreme Court on his original direct

appeal and the State's brief on Peti-

tioner's appeal from the denial of

the Rule 3.850 motion;

The evidence presented before this

court on 11 January 1980.

grounds on which the Petitioner relies for

relief will be discussed in the order in which they appear

‘in the petition filed herein.

The

“ point 1

Petitioner's first ground for relief is that

his post-arrest confession which was admitted in evidence

(Tr. p. 244) was involuntary and should have been suppressed

by the trial judge.

‘

No evidence was introduced at the evidentiary

hearing before this court to support this ground. The fol-

lowing is the

evidence that was before the state trial judge

in connection with the motion to suppress the confession.

John Matthews, the arresting officer, testified

that he arrested the Petitioner on the 28th of March 1974

6 70-wad—7-28.79-780-100

Oe ee ee

P-034-8

at approximately 12:10 P.M. He brought Petitioner to the

Orlando Police Station for “booking” at about. 12:15 P.M.

At the booking office the Petitioner was advised of his

Miranda rights (S. Tr. p. 8) and acknowledged he understood

them (S. Tr. p. 10). After having been read his rights,

vetitioner signed the back of a Miranda card indicating

that he understood his rights (S. Tr. p- 10). Officer

Matthews testified that he offered no inducements tol obtain

the signature of the Petitioner on the Miranda card.

The Petitioner gave somewhat contradictory testi-

mony. At first he testified (S. Tr. p. 94) that he was

advised by Officer Matthews that he had a right to remain.

silent. He then testified that Officer Matthews did not

verbally advise him of his rights, but that he put a Miranda

card in front of him and that he, the Petitioner, did not

read it because he theught that the card stated that he had

the privilege of having a lawyer and did not need to say

anything he did not wish to say (S. Tr. p- 95).

After the "booking" procedure, according to the

testimony of Officers Charles R. Ings and R. D. King of

the Orlando Police Department, the Petitioner was taken

to a conference room at the Orlando Police Department.

Before the questioning commenced, King advised

the Petitioner that he was charged with the first degree

murder of Z. L. Riley and the shooting of a police officer

(Tr. p. 23 and S. Tr. pP-22-23) and Ings advised the. Peti-

tioner a second time of his Miranda rights by reading to

090. BAn— 7-9 5.76-950-180

eee =. =

P-034-B

‘

him a yellow Miranda card (S. Tr. p- 17). After reading

the card to him, Ings asked the Petitioner to sign it.

Following the signing cf the Miranda card, King and Ings,

according to Ings’ testimony, questioned the Petitioner

about his involvement in the robbery and murder of Z. L.

Riley. At first Petitioner refused to admit any involve-

ment. He then admitted that he had been in Riley's house

and at about 4:00 P.M. he gave. the incriminating statement

which wee. tips recorded, transcribed, and signed by Peti-

tioner. During the course of the interview which preceded

the giving of the taped statement, Officer Ings advised

the Petitioner that if he cooperated, his cooperation would

be made known to the State Attorney's office (S. Tr. p. 19).

According to Ings, as the discussion progressed

the Petitioner stated that he wished the officers to have

a prayer with him. At this point Investigator King said

a prayer with the Petitioner and immediately (hesantees

Petitioner confessed to the offense.

Henry testified that the prayer session had no

influence on his willingness to make a confession. He

testified:

"A. Well, I was crying, and it wasn't

the part of the prayer, it was the

part of them going through all of

this and if I still said, no, then

I felt like they would do something

to me.

Q. Do you feel that the prayer session

and the discussion about religion

OP). 228—7-39-29-P 90.106

_——

mes of

-_ ee ee me ee

P-0O34-8

influenced the fact that you did

make a statement to them?

A. Well, I would say not just a prayer,

but the way they did it . . . you

know . . . they kind of forced me

to make a confession.”

(S. Tr. pp. 86-87).

Additionally, Henry testified that Officer King ". . .

was squeezing on my shoulder . . . you know . . . I mean,

tome... I mean... in my mind I felt like if they

were going to all this trouble of trying to make me say

something and I refused, that they might do something to

me... you know. .. so, this is why I went on and

said that I would make the Confession. ...

—_ Petitioner's testimony, it appears without

contradiction that at the time of the interview between

him and Officers Ings and King, Henry was twenty-four years

of age and had recently been released from thé Florida

State Penitentiary at Raiford following a conviction based

on a plea of guilty. He was able to read and had been

through the tenth grade (S. Tr. pp. 77, 94).

Petitioner testified in the trial court on the

motion to suppress that during the detees of his interview

with King and Ings, Ings said it woull be easier on him

to tell what happened, and when King asked if Henry would

‘like to make a statement, Henry replied that he would like

to see a lawyer to which the officers made no verbal re-

sponse.

According to Officer Ings, Petitioner never

00). BAn—?-28.70.3 00.186

P-034-B

indicated to him that he desired to speak to an attorney

or mentioned the name of an attorney. The pentiquny of

Investigator King basically coincides with that of Officer

Ings, except that when asked whether or not Petitioner

requested an attorney, Officer King responded, "I don't

remember anything, no sir". (S. Tr. pp.55, 56).

After hearing the testimony and observing the

witnesses, the trial judge denied the motion to suppress

(S. Tr. p. 107). ‘In so doing the trial judge was acting

within the realm of reason in disbelieving the testimony

of Petitioner to the effect that he requested representa-

tion by an attorney. No testimony was presented to this

court that would justify a different conclusion. The

trial court's credibility choice is supported by the Pe-

titioner's interest and by the fact that Petitioner was

aware by virtue of se warnings that he had the right to

remain silent, the right to an attorney, and the right to

halt the interruyation.

The fact that Officer Ings told the Petitioner

that his cooperation would be made known to the State

‘Attorney was, not such an inducement as to render the con-

fession involuntary as a matter of law (see United States

v. Curtis, CA9, 1977, 562 F.2a 1153, and United States v.

Barfield, CA5, 1975, 507 F.2a 53, cert. denied 421 U.S.

950) and, as a matter of fact, there was ample evidence

before the trial court from which it could have found by

a preponderance of the evidence that the confession was

$7t © 40—7.38.78-7 50.106

_—™ | - ——< _———

° ——_—- «

P-034-8

the voluntary act of the Petitioner. Such a finding could

have been based on the age of the Petitioner, his prior

prison experience, the adequacy of the warnings given,

the fact that he had been familiar with one of the inter-

rogating police officers from childhood, and the absence

of any physical abuse, actual or threatened, during the

interview: The finding of voluntariness which is implicit

in the trial judge's denial of the motion to suppress is

entitled to a presumption of correctness in this proceeding.

See Blasingame v. Estelle, CAS, 1979, F.2d - , and

28 U.S.C. § 2254(d). The burden here rests on the Peti-

tioner to establish that the trial judge’s determination

was erroneous, and he has failed to carry this burden with

respect to the voluntariness of the confession. Webster v.

Estelle, CAS, 1974, 505 F.2d 926; cert. denied 421 U.S. 918.

The Petitioner also argues that the trial judge

denied him due process of law by failing to make written

findings of fact and conclusions of law in connection with

the ruling on the motion to suppress. In support of this

argument, Petitioner cites Jackson v. Denno, 1964, 378 U.S.

368, and Sims v. Georgia, 1967, 385 U.S. 538. Neither of

ene cases stands for the proposition that a state trial

judge must make formal findings of fact or conclusions of

law when ruling on a motion to suppress. In fact, Sims v.

Georgia is exactly to the contrary. The two opinions taken

together simply require that before a confession is intro-

duced into evidence, the trial court determine its volun-

tariness and that the conclusion of the trial judge appear

¢.%- @AR—— 7.28.7 8-750-088

P-034-B

from the record with unmistakable clarity.

The Petitioner's first ground for relief is,

therefore, without merit.

Point 2

The second ground on which the Petitioner relies

for reiief is that the imposition of the death penalty

would be cruel and unusual in violation of the Eighth

Amendment to the United States Constitution because the

conviction did not necessarily involve a finding of a

deliberate taking of human life. Under the instructions

given the jury (Tr. pp.360, 362, 366) the jury could have

convicted the Petitioner of first degree murder on the

basis of a finding either that the Petitioner premedi-

tated the killing of Z. L. Riley or that the Petitioner

killed Mr. Riley without a premeditated design during an

attempt to rob him.

The jury's verdict is general in nature and does

not specify the factual, theory on which it concluded that

first degree murder occurred (Tr. p. 384). A review of

the testimony, hcwever, makes it plain that the jury could

lave found beyond a reasonable doubt that the killing was

premeditated and was committed in the commission of a rob-

bery. It is readily inferable from the confession that

after the Petitioner entered Mr. Riley's home and beat

him into a state of unconsciousness, he formulated the

intent to take Mr. Riley's life to avoid detection.

€71-BAR—?-28-70-790.186

eo!

———--- -«

P-034-B

There is no authority to support Petitioner‘s

contention that the imposition of a death penalty for

such an offense is cruel and unusual. Whether or not

the imposition of death for a murder is cruel and unusual

within the meaning of the Eighth Amendment depends upon

evolving standards of decency. The best evidence, how-

ever, of the evolving standards of decency is the fact

that the Lecheteteees in numerous states since Furman v.

Georgia, 1972, 408 U.S. 238, have enacted statutes which

impose the death penalty for killings committed in the

commission of serious felonies. (See footnote 23. at

page 179 in the opinion of the United States Supreme

Court in Gregg v. Georgia, 1976, 428 U.S. 153. Since

that opinion was published, the Commonwealth of Massachu-

setts has adopted capital punishment for first degree

murder. See Ch. 488, Mass. Session Laws, 1979.) Addi-

tionally: Congress has chosen to provide the death penalty

for a killing, whether premeditated or not, caused by one

in the commission of air piracy. See 49 U.S.C.A.

§ 1472(i).

The court has not overlooked the concurring

‘ opinion of Mr. Justice White in the case of Lockett v.

Ohio, 1978, 438 U.S. 586, 628. The opinion, however, is

not binding authority inasmuch as it was a concurring

opinion in which no other justice joined.

This court concludes that the second point is

without merit as a matter of ‘law.

ort. waa—7-86-.70.730-006

P-034-B

Point, 3

The third ground for telief is that the trial

judge in instructing the jury at ‘the sentencing stage

of the trial did not instruct the jury that the aggra-

vating circumstances which justify \the death penalty

must be proved beyond reasonable doubt. See F.S. 1973,

Section 921.141(5). The Petitioner makes the related

contention that the trial judge himself did not adhere

to this standard of proof. With regard to the latter

contention, support for same does not appear from the

record of the trial proceedings.

With regard to the instructions to the jury

at the sentencing phase of the trial, it om true that

the trial judge did not instruct the jury th t the aggra-

vating circumstances mist be found beyond ois

doubt. The failure of the court to so instruct-the jury

was error. See State v. Dixon, Fla. 1973, 283 So.2d l.

It was, however, harmless beyond reasonable doubt.

The aggravating circumstances which were de-

picted in the record were in fact proved beyond reason-

able doubt. The aggravating circumstances were basically

the heinousness of the crime which was shown through the

Petitioner's own confession and the testimony of the

Orange County Medical Examiner, Dr. Hegert (Tr. p. 203);

the fact that the Petitioner had been convicted of two

prior felonies involving the use or threat of violence

to a person, and the fact that the felony was committed

- 10 -

OP). WAd—7.28.98.7 88.0086

for pecuniary gain in the course of a robbery and to avoid

a lawful arrest. The court concludes that any error of

the trial judge in not instructing the jury on the use

of the reasonable doubt standard at the sentencing phase

of the trial was harmless beyond reasonable doubt.

Point 4

The Petitioner's fourth point is that the trial

judge committed error in allowing the jury to consider

aggravating circumstances which did not fall within the

terms of F.S. 1973, 921.141(5). Section 921.141(5), F.S.

” 1973, *provided that, "Aggravating circumstances shall be

limited to the following (emphasis added) .. ." and then

LL Se A ee

defined eight circumstances which could be considered in

favor of imposing the death penalty. Despite the statute’:

clear wording, the trial judge instructed the jury at the

—

sentencing hearing in part as follows:

I ". »« »« You will render an advisory

sentence to the court based upon the

following matters:

Whether sufficient aggravating cir-

cumstances exist, or sufficient

j mitigating circumstances exist for

’ you to recommend the death penalty

or life imprisonment.

——— ammo see oe

In considering aggravating circum-

stances, you shall consider all

factors which are aggravating

& including, but not limited to,

the following: .. .".

(Tr. p. 410, emphasis added).

Thereafter, the court's charge delineated the aggravating

* The full text of Section 921.141, F.S. 1973, is attached

to this Memorandum of Decision as an appendix hereto.

oe 2 ener

P-O34-_ OF). wA—P.88.79-9 80.188

—_

‘

P-O34-B

and mitigating circumstances set out in Section 921.141,

»-F.S. 1973.

The Petitioner contends that the instruction

was error because it permitted the jury to consider and

base a sentencing verdict on the testimony of Orlando

policeman Ronald Ferguson presented at the sentencing

hearing. At the sentencing hearing Officer Ferguson,

over defense objection (Tr. p. 387), testified about the

effort of the Petitioner to avoid arrest. The officer

testified that in the course of a fight attendant upon

his attempt to arrest the Petitioner, the Petitioner took °

the officer's gun. At this point the officer ran around

his car, crossed the street and jumped a fence. As the

officer jumped the fence, Henry fired a shot which hit

the officer in the back (Tr. po.388-389). Thereafter,

Henry pursued the officer into Sunset Drive and fired

another shot which missed. The officer continued to run,

but Henry eventually caught up with the officer and struck

him in the forehead with the gun. The gun went off and

the concussion knocked the officer to the ground (Tr. pp.

389-390). With the officer on the ground, Henry fired the

‘gun into the officer's right collarbone and immediately

fled (Tr. pp.389-390).

The trial court's instruction was erroneous be-

cause it did not limit the jury to a consideration of the

aggravating circumstances listed in Section 921.141(5),

Florida Statutes 1973, and thereby permitted the jury to

- 12 «

0P0-@h0——).28-70.700-186

ness cee eee

raised by counsel for Henry to Officer Ferguson's testi-

‘the evidence. In the present case, the jury, as opposed

to the trial judge, may well have found some mitigating

base its sentencing verdict on a non-statutory aggravating

circumstance, namely Henry's assault on Officer Ferguson.

See Purdy v. State, Fla. 1977, 343 So.2d 4, and Elledge v.

State, Fla. 1977, 346 So.2d 998.

The error in the court's charge cannot be ignored

on the ground that it was not objected to. The objection

mony at the sentencing hearing was sufficient to put the

trial court on notice of the defense objection not only to

that testimony but to any charge that would permit the jury

to consider such testimony (Tr. pp.387-388). The difficult

issue is whether or not the trial judge's instruction can

be viewed as harmless error beyond reasonable doubt.

Harryman v. Estelle, CAS, 1979, 597 F.2d 927.

The trial jndge found that none of the statutory

mitigating circumstances existed. This finding, however,

does not resolve the issue for two reasons. First, under

the provisions of Section 921.141, Florida Statutes 1973,

the jury is obligated to make an independent analysis of

factor in the evidence. Its vote of seven to five in

favor of the death penalty tends to support that possi-

bility. Secondly, even in the absence of mitigating cir-

cumstances, the Florida statute does not contemplate the

automatic imposition of the death penalty on a finding of

one or more aggravating circumstances. As the Florida

~» 19 =

OP). wae—9.88-70-700.008

ee EE ee em Sees Shee

P-034-8

1973,

Supreme Court pointed out in State v. Dixon, /283 So.2a l,

lu:

"It must be emphasized that the

procedure to be followed by the

trial judges and juries is not a

mere counting process of X number

of aggravating circumstances and

Y number of mitigating circumstances,

but rather a reasoned judgment as

to what factual situations require

the imposition of/death and which

can be satisfied/by life imprison-

ment in light of the totality of

the circumstances present.”

Thus even where only aggravating circumstances are pres-

ent, the judge and jury must make a reasoned evaluation

of the circumstances to determine whether they require

the imposition of the death penalty.

The court's instruction to the jury left it free

not only to consider non-statutory aggravating circum

stances, but matters entirely outside the record. At one

point during the course of its deliberations, the jury

returned with a question which indicated that it in fact

had considered matters outside the record, such as the

possibility of release short of the completion of the life

sentence.

- In Elledge v. State, Fla. 1977, 346 So.24 998,

the defendant was on trial for the murder and rape of a

female. Shortly after the murder-rape occurred, the de-

fendant killed a man in a robbery the purpose of which

was to obtain funds to escape from the area where the

murder-rape was committed. At the sentencing hearing

ae EE on

070. wan——7-28-38-7 80-100

which followed his conviction for the murder-rape, evi-

dence of the robbery and the second murder was errone-

ously admitted for consideration by the jury. The jury

by a vote of eleven to one recommended the death penalty

and the trial judge so sentenced the defendant. Never-

theless, the Supreme Court of Florida refused to apply

the harmless error principle. The Court stated:

"Would the result of the weighing

process by both the jury and the judge

have been different had the impermis-

sible aggravating factor not been

present? We cannot know. Since we

cannot know and since a man's life is

at stake, we are compelled to return

this case to the trial court for a

new sentencing trial at which the

factor of the Gaffney murder shall

not be considered.”

The present case is no more amenable to the ap-.

plication of the harmless error doctrine than Elledge v.

State. In the present case, had the jury been properly

instructed and guided at the sentencing hearing, it is

entirely possible that its recommendation might not have

been for the imposition of the capital penalty. In any

event, it is clear that the court cannot categorize the

‘error in the jury charge and the admission of Officer

Ferguson's testimony at the sentencing hearing as harmless

beyond reasonable doubt. For that reason, this court

concludes that the State should accord the Petitioner an

Opportunity for a new sentencing hearing at which the jury

will be properly instructed and the evidence as to the

assault on Officer Ferguson will be excluded from the

= 38 .<

07. wan—?-25-30.7 20-056

com

P-0O34-B

jury's consideration.

Point 5

Under the fifth point, the Petitioner argues

that the trial judge used the underlying robbery along

with the pecuniary motive as two aggravating circumstances

whereas it should be counted only as one. It is immaterial

in the opinion of this court whether the underlying rob-

bery was counted as one or two aggravating circumstances,

because only one aggravating circumstance is required to

justify the imposition of the death penaity.

The Petitioner also contends under his fifth

point that the trial judge limited his consideration of

mitigating circumstances to those set out in the statute.

This contention is not supported by the record. The trial

judge advised the jury that it could consider all circum-

stances in mitigation (Tr. p. 411) and permitted testimony

to be presented by the Petitioner at the sentencing phase

with respect to his character and background (Tr. pp. 393-

=»

399).

Additionally, under the fifth ground the Peti-

tioner argues that the judge did not find either that the

killing was intentional or the aggravating circumstances

beyond reasonable doubt.

Suffice it to say at this point that there was

no requirement by statute, case law, or Constitution that

the trial judge make a finding that the killing was inten-

tional. Secondly, although the judge did not expressly

~ 16 -

000-G28—7-29.70.750-186

-_——-

——_—- - -

—— —_—-

P-034-B

state that he found the aggravating circumstances beyond

reasonable doubt, it does not follow that this standard

of proof was not followed by the judge and jury. The

contentions under Point 5 are without merit.

Point 6

Petitioner's sixth point charges that he was

denied effective assistance of éouneel because counsel

failed to ask for an instruction on the burden of proof

at the sentencing hearing and failed to object to the

trial court's instruction previously quoted with respect

to aggravating circumstances.

Constitutionally, the Petitioner is simply en-

titled to the services of an attorney who is reasonably

likely to render effective assistance and who in fuct ren-

ders reasonably effective assistance. Herring-v. Estelle,

CA5, 1974, 491 F.24 125. A transcript of the trial leaves

this court with the conclusion that reasonably effective

assistance was furnished. The public defender who repre-

sented the Petitioner was obviously versed on the law

dealing with first degree murder and the sentencing provi-

sions associated therewith, was well versed on the facts

of the case, and appropriately cross-examined witnesses

for the State.

The failure of counsel to request an instruction

that the aggravating circumstances be proved beyond rea-

sonable doubt, as they must be under the case of State v.

Dixon, Fla. 1973, 283 So.2d 1, 9, was an understandable

O71. BAd—-7 26-70. 750-186

_—— meee es

mee

ee ee res ee .

P-034-B

omission simply because there was no factual issue with

respect to the aggravating circumstances. For that rea-

son, counsel's failure did not render him ineffective.

7 The other omission which is charged as ineffec-

tive assistance of counsel is the failure of the public

defender to object to the instruction on aggravating cir-

cumstances because the instruction did not limit the jury

to the aggravating circumstances set forth in the statute.

- Counsel objected to the testimony of Officer Ferguson at

the sentencing hearing (Tr. pp. 387-388). That objection,

as noted above, sufficed to put the trial court on notice

of the defense objection to the instruction.

‘Point 7

The seventh point asserted by the Petitioner is

that the indictment did not set out the aggravating cir-

cumstances on which the State would rely in asking for

the death penalty and that the Petitioner was not other-

wise given notice of them. This objection is not valid.

The Petitioner, like any other person indicted for first

‘degree murder, is put on notice by the statute itself of

the aggravating circumstances which may be considered in-

support of the death penalty.

Point 8

The Petitioner's eighth point is that the death

penalty is being capriciously applied in Florida because

the Florida Supreme Court employs two vastly different

« 32 -=

600. Ban—7-25-78.700.906

——— me ee ee

F-034-8

standards of review, depending on whether or not the jury

recommends life orc death.

A review of the two Florida cases on which the

Petitioner relies does not support his conclusion. In

Tedder v. State, Fla. 1975, 322 So.2a 908, 910, the

Florida Supreme Court had before it a case in which the

trial jucye imposed the death penalty contrary to the jury

recommendation. In that case the Court held:

*. . . A jury recommendation under our

trifurcated death penalty statute should

be given great weight.:-in.order to

sustain a sentence of death. following

a jury recommendation of life, the

facts suggesting a sentence of death

should be so clear and convincing that

virtually no reasonable person could

G@iffer. .« « e

In LeDuc v. State, Fla. 1978, 365 So.2da 149, 151,

wherein the trial judge had sentenced the defendant to

death following a jury recommendation consistent therewith,

the Florida Supreme Court stated:

". . . The primary standard for our

review of death sentences is that the

recommended sentence of a jury should

not be disturbed if all relevant data

was considered, unless there appear

strong reasons to believe that reason~

able persons could not agree with the

recommendation. . . ."

These two opinions do not indicate a substantially dif-

ferent standard of review depending on the jury's finding.

The significance of the opinions simply is that jury rec-

ommendations should be adhered to unless there is cogent

F97e-BAR—7-20.70.780.186

+ ee ee oes

wm wm errs ee

eente

Se | ee eee ee |

P-O%4-8

reason to believe that the recommendation is inconsistent

with the views of reasonable persons. The eighth point

is without merit.

Point 9

The Petitioner contends that the Florida death

penalty statute is unconstitutional on its face because

it does not provide a standard by which the judge and jury

can determine whether or not the aggravating circumstances

outweigh the mitigating circumstances. The argument, when

reduced to its essence, is simply that where the ultimate

decision to impose or not to impose the death penalty is

vested in the Stecretion of a sentencer, the death penalty

is unconstitutional. This argument has been rejected by

the United States Supreme Court where the sentencer's dis-

cretion is guided by statutorily articulated standards

which in and of themselves are reasonable.

In Gregg v. Georgia) 1976, 428 U.S. 153, 197,

the United States Supreme Court in its plurality opinior

stated:

". » . As a result, while some jury

discretion still exists, ‘the dis-

cretionto be exercised is controlled

by clear and objective standards so

as to produce non-discriminatory

application.’ .. .*

Purthermore, Petitioner's contention was implicitly re-

jected in Proffitt v. Florida, 1976, 428 U.S. 242, wherein

six justices of the Supreme Court reviewed the Plorida

statutory aggravating and mitigating circumstances and

=~ 20

Ft. man—3-30.70.780.006

P-034-B

concluded that they were not so broad as to render the

statute unconstitutional.

Point 10

Under his tenth ground, the Petitioner contends

that execution by electrocution is cruel and unusual per

se and, therefore, a violation of the Eighth Amendment.

This claim has been resolved against the Petitioner's

position in Ex Parte Kemmler, 1889, 136 U.S. 436.

Under his tenth point, the Petitioner also con-

tends that the death penalty is disproportionately applied

in Orange County, Florida. To support this claim, the

Petitioner presented the testimony of William Bowers and

Glen Pierce. Mr. Bowers, a sociology professor from

Northeastern University, testified that he directed a

study covering a period from 1973 through 1977 and “the

first few months" of 1978. He testified that the study

covered thirty-one counties in the State of Florida and

focused on the sentencing stage of first degree murder

trials. ‘

Glen Pierce, also a sociologist working on a

doctorate at’ Northeastern University, testified that he

prepared a statistical analysis of the data gathered by

Mr. Bowers. According to the analysis prepared by Mr.

Pierce, Orange County, during the study period,returned

ninety-two indictments charging first degree murder. Ac-

cording to Mr. Pierce's data, there were thirty-six con-

victions on these indictments and fifteen death sentences.

Fr). waa— 2. 38.38.700-186

ee ee ee ew cee eee

P-034-D

By comparing this data to similar data gathered with

respect to other counties, Pierce concluded that in

Orange County 16.3% of all capital indictments result

‘ina death sentence, whereas the all-county average was

9.1%. Additionally, he concluded that 41.7% of all

convictions in Orange County resulted in the death pen-

alty, whereas 24.3% of the convictions in other counties

resulted in the death penalty.

The factual accuracy of the testimony of Mr.

Pierce was discredited by the testimony of John Fosnacht.

Mr. Fosnacht is the administrative officer in charge of

the records of the Felony Division of the Circuit Court

for Orange County, Florida. He testified from an exami-

nation of the grand jury records for the period from 1973

through 1978 and found that during the study period uti-

lized by Pierce and Bowers, grand juries in Orange County

returned one hundred six indictments charging capital §

felonies - not ninety-two as assumed by Mr. Pierce - and

that there were fifty-two convictions - not thirty-six

as assumed by Mr. Pierce - and that there were fourteen

cases in which the death penalty was imposed - not fifteen

as assumed by Mr. Pierce. Thus, using Mr. Fosnacht's

figures, the rate at which the death penalty was applied

to capital convictions in Orange County would be in line

with the rate which Mr. Pierce testified was prevalent |

throughout the other counties and regions which he studied.

Furthermore, even if the death penalty were

- 22 -

(Pt. w48—7-29.76-780-106

P-034-B

imposed more frequently in Orange County than‘in other

counties, this fact alone would not warrant a conclusion

that the death penalty statute is unconstitutional in

its application. The statute contains provisions for a

mandatory review by the Florida Supreme Court to avoid

disparate application of the statute on a statewide basis.

Given this safeguard, the statute in operation is not

unconstitutional.

The Petitioner in this case presents an argument

with respect to disparate application which was essen-

tially rejected as a matter of law in Spinkellink v.

Wainwright, CA5, 1978, 578 F.2d 582, 613. ‘There the

Court held:

e- . . AS we previously noted, this

Court reads Furman, Gregg, Proffitt,

Jurek, Woodson and Roberts as holding

that if a state follows a properly

drawn statute in imposing the death.

penalty, then the arbitrariness and

capriciousness - and therefore the

racial discrimination - condemned

in Furman have been conclusively

removed. . 28 e

This holding applies equally to discrimination based on

geography.

The court concludes that the tenth ground for

relief is without merit.

DONE AND ORDERED in Chambers at Orlando, Florida,

this IF & day of February,1980.

6 ‘

iy F c PSE 4 :

J Judge

~ 23 «

078. BAb—7.20.78.780-186

_—- —-— +

oo ee ee es

P-O34-B

Copies mailed to:

Craig S. Barnard, Esquire

Chief Assistant Public Defender .

and _

Jerry L. Schwarz, Esquire

Assistant Public Defender

15th Judicial Circuit of Florida

224 Datura Street

13th Floor, Harvey Building

West Palm Beach, Florida 33401

Wallace E. Allbritton, Esquire

Assistant Attorney General

The Capitol

Tallahassee, Florida 32301

O71-BAn——7. 29-70. 7 50-186

[IY

LAW OFrFices

BEeansTein & RasinoviTz

PROFESSIONAL CORPORATION

8091 DEQUINORE, STE. 206

MADISON HEIGHTS,

MICHIGAN 48071

_~+-

(313) 329-2030

SUPREME COURT OF THE UNITED|sTatey CEIVED

October Term, 1980 NOV 25 1980

No. 80-233 GFFICE OF THE CLERK

SUPREME COURT, U.S.

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

vs.

WILLIE ELLIS JAMES WALTON

Respondent

-—-—

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MICHIGAN

MOTION TO PROCEED IN FORMA PAUPERIS

NOW COMES your Respondent, WILLIE ELLIS JAMES WALTON, by

and through his attorney, Steven Rabinovitz, and in support .of

his motion to’ proceed in forma pauperis says as follows:

1) That he is the respondent in the pending proceeding.

2) That he has substantial interest in responding to said

petition and showing this Court why said petition should not be

granted,

3) That respondent is without funds to hire an attorney or

to file a formal response as required under Rule 22 fo the

Rules of the Supreme Court.

4) That respondent requested appointment of counsel to

prepare post conviction proceedings following hig conviction in

the Recorder's Court for the City of Detroit, which request was

granted by said court.

WHEREFORE, respondent prays that he be permitted to

Proceed in forma pauperis as provided in Rule 46 of the Rules

LAW oFrices

BERNSTEIN & RABiNOVITZ

#091 DEQUINORE, STE. 206

MADISON HEIGHTS,

MICHIGAN 48071

(313) 399.2030

of the Supreme Court,

Respectfully submitted,

BERNSTEIN & RABINOVITZ, P.C.

i: a)

BY: 3-76 ¢e~----- ———

Steven Rabinovitz c

Attorney for Respondent

8091 Dequindre, Ste 206

Madison Heights, Mich. 48071

(313) 399-2030

LAW OFrices

JERNSTEIN & RABINOViTZ

091 OKQUINDRE, ste. 206

MICHIGAN 48071

(313) 399.2030

€ a its € RECEIVED

NOV 25 1980

SUPREME COURT OF THE UNITED STATES Ofric¢ OF THE CLERK

SUPREME COURT, U.S,

October Term, 1980

No. 80-233

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

vs.

WILLIE ELLIS JAMES WALTON,

Respondent

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MICHIGAN

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

STATE OF MICHIGAN)

COUNTY OF WAYNE )°

WILLIE ELLIS JAMES WLTON, being first duly sworn, deposes

and says as follows:

1) He is the respondent in the above-entitled action and

makes this Affidavit in Support of his Motion for Leave to

Proceed in Forma Pauperis.

2) Affiant is unable, because of his poverty, to pay fees

and costs of this case or give security therefor.

3) This is in response to a Petition for Writ of

Certiorari to the Court of Appeals of the State of Michigan,

reversing Affiant's conviction and barring retrial on a

dismissed count, and raises substantial question of

constitutional law, as more fully set forth in Petitioner's

Application previously filed. Affiant believes he is entitled

to respond to said Petition.

Further deponent sayeth not.

Subscribed and sworn to before me this Riat— day of ---—

Priitunb-E-, 1980,

NOTARY PUBLIC

YVONNE MARIE GERACE

Notary Public, Macomb County, Michigar$

My Commission Expires March 2%, °998

ACTING IN WAYME Dt NTY

LAW OrFrices

BERNSTEIN & RaBiNOviTZ

9001 DEQUINORG, ste. 200

MADISON HEIGHTS,

MICHIGAN 48071

(313) 369.2030

LAW OFFices

SERNSTEIN & RABINOVITZ

‘MOFEBSIONAL CORPORATION

O91 DEQUINORE, STE. 206

MADISON NEIGHTS,

MICHIGAN 48071

(313) 399-2030

C sft: <

RECEIVED

NOV 25 t9ap

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

| SUPREME COURT, U.S.

October Term, 1980

No. 80-233

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

vs.

WILLIE ELLIS JAMES WALTON

Respondent

—_———-——

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MICHIGAN

RESPONDENT'S REPLY IN OPPOSITION

BERNSTEIN & RABINOVITZ, P.C,

Attorney for Respondent

wo ‘a .

By:: se « ss

~ STEVEN RABINOVITZ, R 19174

28091 Dequindre, Ste 206

Madison Heights, Michigan

48071

(313) 399-2030

Law orrices

CANSTEIN &@ Rasinovitz

OF! OEQUINORE, STE. 2006

MADISON HEIGHTS,

MICHIGAN 48071

(313) 390.2030

Cc ue ee

TABLE OF CONTENTS

Index of UNSCEAR ous ck tod chcrcesterececsoes

Restatement of Question PEGCOREOE s cciccecevecs

Reasons for Denying the ot ae rer eee

PUEMNNILS 4 0p dbnin-s 06 Uinbaie eth socbibeaguuben un ak a

INDEX OF AUTHORITIES

Cases

McCarthy v Zerbst

Page

=> N NM

Page

85 F2d 640, 642 (CA 10 1936) wcccccccccccccced

Serfass v United States

420 US 377, 95 sct 1055, 43 L Ed2d

265 SEO T OP Veta cWevwe tere cuees ene ebveevvenstel

United States v Findley

439 F2d 970 (CA 1 Dewees Wu dweeeeadenauees

United States v Hill

eed

473 F2d 759 Wes sacethndédecuhehscdaseicul

United States v Sisson

399 US 267, 26 L Ed2a 608, 90 S Ct

2117 Sap oeT h68b CLawtbouns seen buead cduke coal

dl } ie EE SR I POR ce Ria Aenea eine ce

.* € et €

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-233

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

vs.

WILLIE ELLIS JAMES WALTON

Respondent

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MICHIGAN

ee ee - -

RESPONDENT'S REPLY IN OPPOSITION

—-———— <— —— - ,

NOW COMES Respondent, WILLIE ELLIS JAMES WALTON, by and

through his attorney, Steven Rabinovitz, in reply to a Petition

for Writ of Certiorari to review the judgment of the Court of

Appeals of the State of Michigan, entered in the above-entitled

cause on January 10, 1980, leave to appeal denied by the

Michigan Supreme Court on June 10, 1980, and prays that said

Writ be denied.

LAW OFFicas

JEANSTEIM & RAasinovirz

nor von

OP! DRQUINORE, sre. 206

MADISON HEIGHTS,

MICHIGAN 48071

(313) 399.2030

LAW orrices

1 BEQUINORE, STE. 206

MADISON HEIGHTS,

MICHIGAN 40071

(313) 399.2030

RE-STATEMENT OF QUESTION PRESENTED

WHERE DEFENDANT'S CONVICTION ON ONE

COUNT ON A WAIVER TRIAL IS REVERSED

DUE TO A _ STATUTORY DEFECTIVE JURY

WAIVER, IS RE-TRIAL BARRED ON A

SECOND COUNT ON WHICH THE DEFENDANT

WAS ACQUITTED ON PRINCIPALS OF DOUBLE

JEOPARDY?

REASONS FOR DENYING THE WRIT

The petitioner relies on Serfass v- United States, 420 us

377, 95 S Ct 1055, 43 LEd2d 265 (1975) to support the

proposition that the trial court in the instant case had no

jurisdiction to determine the guilt or innocence of the

defendant. However, it should be remembered that in Serfass,

the appeal was from a decision of the trial court dismissing

the indictment based on a Stipulation of facts between the

defendant and the prosecution. Had the trial court's decision

been to deny the motion the Uefendant would have proceeded to

trial but would not have been found guilty. Clearly, in such a

situation, jeopardy had not attached,

Quite the contrary is true in the instant case when

defendant in fact has been arraigned on the information,

.Pleaded on the information and went to trial. The general rule

as to when jeopardy attaches in a non-jury trial is where the

"accused has been indicted and arraigned, has plaeded and the

court has begun to hear evidence", McCarthy-v-Zerbst, 85 F2a

640, 642 (CA 10 1936). 2

Certainly the instant situation is more synonomous with

the holdings in United-States-v Hill, 473 F2a 759 (1972),

United-States v-Findley, 439 F2d 970 (CA 1 1971) and United

States v Sisson, 399 US 267, 26 L Ed2d 608, 90 SCt 2117 (1970),

all of which specifically held held jeopardy to have attached

where the trial court began to hear evidence of facts outside

of the indictment. Indeed, if the petitioner's position were

to be upheld it would permit appeals by the prosecution of a

not guilty verdict if the prosecutor felt there was any error

in the selection of the fact finder. Such certainly was not

the intention of Serfass.

Law orrices

SEnnsTEIN & Rasinovirz

WOTESMHONAL CORPORATION

Of! SEOUINORE, STE. 206

MADISON HEIGHTS.

MICHIGAN 48071

CONCLUSION

WHEREFORE, for the foregoing reasons, respondent requests

that plenary review be denied,

Repectfully submitted,

BERNSTEIN & RABINOVITZ, P.C.

By: etn io ey ee > sea

STEVEN RABINGVITZ, P 19174

Attorney for Respondent

28091 Dequindre, Ste 206

Madison Heights, Mich. 48071

(303) 399-2030

Dated:November 21, 1980

LAW OFFrices

SRNSTEIN & RapinoviTz

CORPORATION

1 DEQUINORE, STE. 296

MADISON WEIGHTS.

MICHIGAN 48071

—-e—oo_

(312) 399-2030

LAW oOrrices

ERNSTEIN & RABINOVITZ

NOFPESSIONAL CORPORATION

291 DEGUINONE, STE. 206

MADISON HEIGHTS,

MICHIGAN 48071

(313) 399-2030

ow ¢

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-233

THE PEOPLE OF THE STATE OF MICHIGAN

Petitioner

vs.

WILLIE ELLIS JAMES WALTON

Respondent

ON A PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

THE STATE OF MICHIGAN

AFFIDAVIT OF MAILING

NOW COMES, Yvonne Gerace , being first duly sworn, and

deposes and says that on the 21st day of November, 1980, she

did serve upon:

Ms. Anne B. Wetherholt

Assistant Prosecuting Attorney

for Wayne County

12th floor

Frank Murphy Hall of Justice

1441 St. Antoine

Detroit, Mich. 48226

the following Respondent's Reply in Opposition to a Petition

for Writ, Motion to Proceed in Forma Pauperis, Affidavit in

Support of Motion and Affidavit of Mailing, by placing same in

the regular United States Mail, properly addressed and with

sufficient postage thereon.

Yvonne Gerace

STATE OF MICHIGAN)

)SS

COUNTY OF OAKLAND

Subscribed and sworn to before me this 2lst day of

November, 1980.

STEVEN RADINOVITZ | ? _

Notary Public, Osklsn-! Co, Aiieh,* /,, i

My Comm. Expires July 9.. 132

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.