# Petition — Hance v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1067

## Text

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

om

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

a.

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.

ll

15

19

21

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.

13

14
12
14

14

18

13

13
9,10,15,16,19
14

15

15,18

18

14

15

12

14

16

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
We

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.
9

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.
13
13
15
13
15
15
13

13

13

13

15,16,18
15

12

20

20

19
12

12

19

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

18

18
13
12
18
18

18

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20

14

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 ve
f ‘ Seek ‘gs SS ee
‘ weet ~f
°
*
-

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

_ — 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

i

.
oe em - were - . ~. we se ~“- - .
= ° . . _—— 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

4

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-
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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.! 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

ee

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

—-———— 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1794%3A1. Public record. Not legal advice.