# Petition — JAMES C. C. McCRAE v. FLORIDA (No. 82-6555) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1406%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text 82 6555 7 RECEIVED NO. A-735 Pe. 13,:973 . IN THE OFFICE & vs. CLERK SUPREME COURT OF THE UNITED STATES SUPREME Count, U.S. October Term, 1982 JAMES CURTIS McCRAE Petitioner, vs. STATE OF FLORIDA Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA ROBERT H. DILLINGIR, ESQ. Counsel for Petitioner AKERSON, SWISHER, DILLINGER & BRETT 1135 Pasadena Avenue South, Suite i140 St. Petersburg, Florida 33707 (813) 347-5131 TABLE OF CONTENTS Questions Presented ....+ + e+e ee ees Opinions Below . . . . . . . . . . . . . . . . Jurisdiction . * . . . . . . . . . . . . . . . Constitutional and Statutory Provisions Involved ..++-¢+«ee-r«ee-e Beatement Of the COGG « . 2 we ee eee ee 6 Reasons for Granting the Writ: I. THE OMISSION OF AN INSTRUCTION REGARDING THE PRESUMPTION OF INNOCENCE, THE EXTRA- ORDINARY BURDEN OF PROOF AND THE ELEMENTS OF THE CRIME AS TO THE UNDERLYING FELONY IN A FELONY MURDER PROSECUTION CREATES THE DANGER THAT THE JURORS FAILED TO MAKE ESSENTIAL FACTUAL DETERMINATIONS AS REQUIRED BY IN RE WINSHIP, 397 U.S. 358 (1970). ERGO. nag a eS ee kK ee eS ee ee APPENDICES McCrae v. Wainwright T27 So. 2d 534 (Fla. 1982) Opinion of the Supreme Court of Florida, dated March 25, 1982 Order Denying Motion for Rehearing, dated December 16, 1982 McCrae v. State 395 So.20 1145 (Fla. 1981) Opinion of the Supreme Court of Florida dated September 14, 1982 + 10 la-4a Sa-6a 7a 8a-19a 20a-25a ne eae ao iw = S TABLE OF AUTHORITIES CASES CITED Coffin v. United States Cu v. Naughten . . (1973) . * . . . . . . Tranklin v. State . (Pla. 1981) mine . . . Henderson v. Kibbe -S. 976) . . . . . . . . In re ara eSe 58 (1970) . . . . . . . . Kentucky v. Whorton oBe 79) . . . . . . . . McCrae v. State Oo. 45 (Fla. 1981) McCrae v. Md . .* 1982) * * .* . * Morris v. U.S. , . 5 (9th Cit. 1946) . . . . Pobles v. State ISS So.2d 7689 (Pla. 1966) .... Taylor v. rept acts Uslbe 978) * . * .* * . . . U.S. v. Noble , 1S (ac@ Cis. 2906) sic os U.S. v. Pincourt e (320 Cir. 3967) « «6 @ OTHER AUTHORITY Plorida Statutes, Section 782.04(1) (a) ‘Piorida Statutes, Section 775.082... 28 U.S.C. $1257(3) . . . . . . . . . oe, QUESTIONS PRESENTED 1. Ina felony murder conviction in which the felony murder constitutes the sole basis for the Petitioner's conviction of murder in the first degree, does the failure of the trial court to instruct the jury that the Petitioner is presumed innocent of the underlying felony involved in the felony murder violate the Sixth, Eighth and Fourteenth Amend- ments to the United States Constitution? 2. In a felony murder conviction in which the felony murder constitutes the sole basis for the Petitioner's conviction of murder in the first degree, does the failure of the trial court to instruct the jury that before the Petitioner can be convicted of felony murder, the underlying felony in- volved in the felony murder must be proved beyond 4 reasonable doubt violate the Sixth, Eighth and Fourteenth Amendments to the United States Constitution? 3. Ina felony murder conviction in which the felony murder constitutes the sole basis for the Petitioner's conviction of murder in the first degree, does the trial court's failure to instruct on the elements of the underlying felony charged in the felony murder indictment violate the Sixth, Eighth and Fourteenth Amendments to the United States Constitution? NO. A-735 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 eee seen eee eee eeeee eee see ee ee eee JAMES CURTIS McCRAE Petitioner, vs. STATE OF FLORIDA Respondent. ees eee e eee eeeee eee eeee eee eee ee PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA Petitioner prays that a writ of certiorari issue to review the judgment of the Supreme Court of Florida filed on September 14, 1982 which vacated its prior opinion of March 25, 1982. Rehearing on the September 14, 1982 opinion was denied on December 16, 1982. CITATION TO OPINIONS BELOW The opinion of the Supreme Court of Florida is reported as McCrae v. Wainwright, 422 So.2d 824 (Pla. 1982) and is set out at pages la-4a in the Appendix. The prior opinion of March 25, 1982 which was vacated is set out at pages Sa-6a in the Appendix, and the order denying rehearing is set out at page 7a of the Appendix. JURISDICTION The judgment of the Supreme Court of Florida was filed on September 14, 1982 and Petitioner's timely motion for rehearing was denied on December 16, 1982. On March 6, 1983, Justice Powell signed an order extending the time for filing the petition for writ of certiorari to and including April 15, 1983. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1257(3), Petitioner having asserted below and asserting herein deprivation of rights secured by the Constitution of the United States. | AG / if . doe 6. od oot ne CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED United States Constitution, Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense. United States Constitution, Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. United States Constitution, Fourteenth Amendment, 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 person within its jurisdiction the equal protection of the laws. Section 782.04, Florida Statutes: Murder (1)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, the abominable and detestable crime against nature or kidnapping, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.082. STATEMENT OF THE CASE On November 14, 1973, the Petitioner was indicted for the crime of first degree murder of Margaret Mears (R-822)? The indictment charged premeditated murder in count one and felony murder in count two (R-940). The case went to trial on April 15, 1974 in the Twentieth Judicial Circuit Court, Lee County, Florida with Circuit Judge William Lamar Rose presiding. Following the selection and swearing of the jury, the judge gave the jury certain basis instructions regarding the nature of the trial. He began with the following: fhe Ietter "Rh", followed by the appropriate page numbers, will be used to designate references to Record on Appeal before the Supreme Court of Florida. THE COURT: Be seated and give me your attention. Ladies and gentlemen of the jury, . inasmuch as some of you have never sat on a jury before, I think it necessary that I kind of tell you something about the progress of a trial and what you may expect. You have been sworn and selected as a jury to try the case of the State of Florida versus James Curtis McCrae. This is a criminal case. The defen- dant is charged with the crime of first degree murder, it being a capital offense. All of the elements of the charge and some of the lesser included charges I'll give to u at a Tater time during these proceedings. (R-341) (Bmphasis added) Shortly thereafter the judge went on to say: Now, there are some other things that I want to tell you about. The indictment that's been found in this case - and that's this paper here which will be read to you probably many times during this trial - that in and of itself constitutes no evidence. In and of itself, the indictment carries no inference of guilt whatsoever. It is only the means whereby the defendant is alleged to have com- mitted something and is in this courtroom for the purpose of his trial, and that only. (R-344) Following the judge's remarks, opening statements were made. The prosecutor, in his opening atated the following: His Honor has mentioned to you the indictment in this case which, as he cautioned you, is not evidence, and that's just what I say. It's not evidence. The indictment is the charging document which notifies the defendant. and the public that the case is com- ing up and which brings the defendant in this case into this courtroom. (R-348) The prosecutor went on to say: I think the evidence will show actual premedi- tation in the murder and premeditation to be found through the act of rape. I believe His Honor will instruct you on those various points at the conclusion of this trial. Now, on voir dire yesterday you heard severcl questions about the statement, proving all the elements and will you make the State prove all the elements. Well, those are the elements, the charges in the indictment and the material portions of that indictment, plus what His Honor will instruct you on the Spee cific elements at the close. (R- ,» emphasis acded) When the prosecutor concluded his opening statement, the defense attorney gave his. The defense attorney addressed the jury as follows: Similarly, the indictment that's been handed down against my client is not evidence in this case. As His Honor, Judge Rose, has instructed you, this is simply a tool by which my client was brought before this Court. It has no evidentiary value whatsoever. It's just a piece of paper and that's ali. (R-355) vi rg Co Yi nd 4, rib byo rs Ades, SM RRR 4 bine? a ; . ; Bere ees Following opening statements, the prosecution presented its case through twenty-two (22) witnesses. The medical examiner, Dr. Peter Rosier, testified as to the autopsy of the victim. There were multiple lacerations on the face, blunt trauma to the area over the left eye, much bruising on the chest, and broken ribs. The doctor stated that the victim died of "flail chest"; the broken ribs made it impossible to breathe. It took her no more than four minutes to die. (R-504). The doctor further testified that petitioner's blood type was A Rh positive but the attempt to match it to blood in the partment was inconclusive. (R~-518). The doctor said the rape could have occurred either right before or after death. (R-519). Additional evidence wes presented regarding a palm print and fingerprint found in the deceased's apartment which were identified as petitioner's (R-703). Following the State's case, the petitioner took the stand and denied committing the crime (R-726). In closing argument, the prosecutor discussed the aspect of premeditated murder as charged in count one of the indictment and felony murder as charged in count two. The prosecutor then injects that another felony may have been the motive for this killing and that felony is robbery (R-794). He then asks the jury to convict on both counts (R-812). The court began its instructions to the jury by reading the indictment (R-822). Count I read as follows: {O]ne JAMES CURTIS McCRAE did unlawfully, feloniously and from a premeditated design to effect the death of one MARGARET MEARS, did strike, beat, bruise and wound the said MARGARET MEARS, thus and thereby inflicting on and upon the head or body of the said MARGARET MEARS certain mortal wounds of which said mortal wounds the said MARGARET MEARS did between October 13, 1973 and October 15, 1973 die; contrary to the statute in such case made and provided and against the peace and dignity of the State of Plorida. Count II read as follows: [O]ne JAMES CURTIS McCRAE did unlawfully and feloniously effect the death of MARGARET MEARS in perpetrating or attempting to bee, eect yap Sane perpetrate a rape, to-wit: did unlawfully and feloniously ravish and carnally know a female of more than ten (10) years of age, to-wit: MARGARET MEARS, by force and against her will, contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida. (R-822,823) The court then defined premeditated murder as follows: A premeditated design to kill is a fully formed conscious purpose to take human life, formed upon reflection and present in the mind at the time of the killing. The law does not fix the exact period of time which must pass between the formation of the intent to kill and the carrying out of the intent. It may be only a short time and yet make the killing pre- meditated, if the fixed intent to kill was formed long enough before the actual killing to permit of some reflection on the part of the person forming it, and that person was at the time of carry- ing out that intent fully conscious of a settled and fixed purpose to kill and of the results which would follow such killing. When such state of mind exists there is a premeditated design to kill, although the killing follows closely upon the formation of the intent. (R-828,829) He then defined felony murder as follows: The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping in murder in the first degree even though there is no premedi- tated design or intent to kill. If a person kills another while he is trying to do or commit any arson, rape, robbery, burglary, the abominable detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetration or in the attempt to perpetrate such arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping and is murder in the first degree. (R-830,831) The above was the extent of the instructions given on felony murder in the first degree. The court then instructs the jury that they can convict on count one, count two, or both. R-849). The court submitted written instructions to the jury also. The written instruction regarding felony murder read as follows: The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree even though there is no premeditated design or intent to kill. The crime of (name crime applicable to evidence) defined as follows: (define other felony). eT at was all Le ali ae ae If a person kills another while he is trying to do or commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetra- tion of or in the attempt to perpetrate such arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping and is murder in the first degree. (R-1034). As can be seen by comparing the instruction read to the jury (R-830) with the written instruction submitted to them (R-1034), the court in reading the instruction omitted the middle para- graph which read: The crime of (name crime applicable to evidence) defined as follows: (define other felony). The jury, after their deliberations, returned a verdict con- victing the petitioner of count two - the felony murder count (R-1060). Following this conviction, the jury again deliberated as to the advisory verdict and returned a recommendation for life (R-1069). The court then entered a sentencing order imposing death upon the petitioner (R-1090-95). THE APPEAL A direct appeal was taken to the Florida Supreme Court which rendered its opinion cited as McCrae v. State, 395 So.2d 1145 (Pla. 1981) and contained in Appendix at pages Ba-19a. On March 4, 1982, the Governor of the State of Florida signed petitioner's death warrant and petitioner's execution was scheduled for March 31, 1982. Petitioner filed a petition for writ of habeas corpus with the Florida Supreme Court on March 23, 1982 and on March 25, 1982 the Florida Supreme Court granted the writ and remanded for a new trial. That opinion is contained in Appendix at pages Sa-6a. On September 14, 1982, the Florida Supreme Court rendered its opinion on rehearing, vacating the opinion of March 25, 1982 and denying a new trial, which opinion is set cut in the Appendix at pages 20a-25a. Petitioner timely filed a motion for rehearing which was denied by order dated December 16, 1982, a copy of which is set out in the Appendix at page 7a. REASONS FOR GRANTING THE WRIT I. THE OMISSION OF AN INSTRUCTION REGARDING THE PRESUMPTION OF INNOCENCE, THE EXTRA- ORDINARY BURDEN OF PROOF AND THE ELEMENTS OF THE CRIME AS TO THE UNDERLYING FELONY IN A FELONY MURDER PROSECUTION CREATES THE DANGER THAT THE JURORS FAILED TO MAKE ESSENTIAL FACTUAL DETERMINATIONS AS REQUIRED BY IN RE WINSHIP, 397 U.S. 358 (19706). The concept that the Due Process Clause protects the accused against conviction except upon proof beyond a reason- able doubt of every fact necessary to constitute the crime with which he is charged” is well established. In re Winship, 397 U.S. 358 (1970) at 364. This concept recognizes that a jury needs proper guidance and instructions as to the legal standards they must apply. The ‘=sportance of adequate standards and safeguards regarding the presumption of innocence and burden of proof has long been recognized. In Taylor v. Kentucky, 436 U.S. 478 (1978), this Court recognized that the ordinary citizen may draw significant additional guidance from an instruction on the presumption of innocence. This Court has reiterated that if the overall fairness of a trial when con- sidered in its entirety is affected by the failure to give an instruction on the presumption of innocence that constitutional error results. Kentucky v. Whorton, 441 U.S. 786 (1979). The reasonable doubt standard has further been recognized as playing a vital role in the American scheme of criminal procedure. This Court has stated: It is a prime instrument for reducing the risk of convictions: resting on factual error. , The standard provides concrete substance for the presumption of innocence - that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432 (1895). Purther, this Court has noted the cogent reasons for the reasonable doubt standard because the accused has at stake interests of immense importance - mainly loss of liberty and certainty of being stigmatized by conviction. (@n Petitioner's ee situation, not only does he face loss of liberty and society's stigma, he also faces execution.) Petitioner was charged with two counts of first degree murder, one charging premeditation and one charging felony/murder by rape. On the premeditation charge, the jury was instructed that the Petitioner was presumed innocent of the murder charge and that the prosecution had the burden of proving the charge beyond a reasonable doubt. As to the premeditation element of the crime, the jury likewise received extensive and detailed instruction (R-828,829). Petitioner was acquitted of the promeditation charge. On the felony murder charge the jury was likewise instructed that the Petitioner was presumed innocent of the murder. The jury was never instructed that the Petitioner was presumed innocent of the rape charge. The jury was never instructed that the prosecution had a burden of proving the elements of the rape charge beyond a reasonable doubt. The jury was never even instructed by the court on what the elements “ The law clearly recognizes of rape were under Florida law. that the jury is to be instructed on the elements of the under- lying felony. Robles v. State, 188 So.2d 789 (Fla. 1966)° ‘the only time the jury cam close to hearing what the elements of rape were was when the felony murder count in the indictment was read to them. Of course, the jury was never told by the court that the indictment contained the elements of rape but was expressly told by the court that they would be informed of the elements at a later time (R-341). [The prosecutor also told the jury they would be instructed on the specific elements at the close (R-351)). Further, the jury was repeatedly told by the court, the prosecutor and the defense attorney that the purpose of the indictment was to get the petitioner into the court and for that alone (R-344,348,355). Also, Federal courts have long recognized that an indictment alone is in- sufficient to adequately instruct a jury. U.S. vs. Noble, 155 P.2d 315 (3rd Cir. 1946); Morris vs. U.S., I56 F.2d 525 (9th Cir. 1946); and U.S. vs. Pincourt, 159 F.2d 919 (3rd Cir. 1947). 3pailure to properly instruct on the underlying felony and to define the underlying felony constitutes fundamental error. Robles, supra; Franklin v. State, 403 So.2d 975 (Fla. 1981). The court, having previously indicated to the jury that it would be instructed on the elements, omitted the elements from its instruction to the jury. The written instruction provided to the jury shows the omission since the court omitted this paragraph: The crime of (name crime applicable to evidence) defined as follows: (define other felony). and by omitting this paragraph failed to name the crime appli- cable to the evidence and most importantly failed to define the felony involved (R-830,831).4 Whether this omission was intentional or unintentional is unknown but what is known is that the jury was never instructed on the elements which constitute rape, they were never informed that the defendant was presumed innocent of the underlying felony and they were never told the charge of rape had to be proved beyond a reasonable doubt before they could convict on the felony murder charge. This failure results in a conviction. This action by the court amounts to a misstatement of the law rather than a mere omission, and as such so infected the entire trial that the resulting conviction violates due process. Henderson vs. Kibbe, 431 U.S. 145 (1976); Cupp vs. Naughten, 414 U.S. 141 (1973). The poisoning of the trial and resulting due ;cocess violation is certainly brought home by the fact that as to the Count I - premeditation - the jury is properly instructed and premeditation is defined in detail and an acquittal occ’ ~s, while as to Count II - felony murder - the jury is not adequately instructed and the felony/murder requirements are never defined and the Petitioner is convicted and sentenced to death. The principles expressed by this Court in In re Winship, Taylor vs. Kentucky, and Kentucky vs. Whorton, supra, “the fsilure to instruct on the elements of rape in the Petitioner's case is of particular significance since the sexual act may have occurred after death (R-519), and if so, would not be a rape under Florida law. f" ik s ye) ly v' tae Sy lg tS. 2 RS Tee ee eee NG r are basic to the foundation of our criminal law and this Court needs to make clear that these very princples apply in a felony murder sitvsition and that the failure to apply these principles results in a conviction that violates due process. \ CONCLUSION For the reasons expressed herein, the Petitioner respectfully requests that this Court grant his petition for @writ of certiorari. Respectfully submitted, AKERSON, SWISHER, DILLINGER & BRETT By Vrtect th Oa ROBERT H. DILLINGER, \ESQ. 1135 Pusadena ‘anne taeeh, Suite 140, Executive Building St. Petersburg, Florida 33707 (813) 347-5131 COUNSEL FOR PETITIONER sas i ? 3 of providing @ reasqnable expians- tion of the gift “ i attempt to carry burden, Cripe explained that Mra. Hare agreed to deposit the money ia & joint sccount be- cause be had handled the condemnation transaction and knew more about it than she did There was 00 evidence, however, that Mr he wn of fash The tna! court's denial of relief to Ue with regard te the euuinel survivorship nights wo « The decision of the district court of ap peal reversing the trial court with regard to the two joint accounts, referred to in the district court's opinion as containing $12,700 and $10,900 respectively, was in error and should be quashed. That portion of the district court's decision thal reversed the trial court with regard to the $32,000 certif. cate of deposit, derived from a condemna- tion seltioment, was correct and should be aporovel Accordingly, the decunon of Che district court is quashed in part and approved in part It so orderud ALDERMAN, CJ, and OVERTON, SUNDBERG anid McDONALD, JJ, concur ADKINS, J, concurs in part and dissents in part with an opinion ADKINS, Justice, concurring in part and dissenting in part 1 would quash the decision of the District Court of Appeal and remand ith instruc. tions to affirm the judgment of tie tral James Curtio McCRAR, Petitioner, ’ Coule L. WAINWRIGHT, Respondent. No. 61565 Supreme Court of Plonda Sept 14, None Rehearing Denwd Dec 16, 1982 Proceeding was instituled on a petition for ert of habwas corpus and « stay of execution «The Supreme Court held that ed McCRAE v. Ce as (1) failure to instruct jury on elements the underlying felony, rape, in prosecut: for felony-murder was not fundamental ror mandating reversal where the u court did announce to the jury the speci language which was contained in the fe ny-murder count of the indictment a which alleged that the defendant did u lawfully and feloniously effect the death the vielim in perpetrating or attempting perpetrate a rape; (2) peliioner’s appella counsel did not render ineffective assistan by failing to raise fundamental error « appeal, and (3) allegations of receipt a consideration of nonrecord information co cerning appellants in pending capital a peals, even if true, did not establish ern which would entitle petitioner to habe. corpus relief Petition denied Overton, Sundberg and McDonald, JJ dissented 1. Criminal Law @ 1004.2 Failure to instruct jury oo elements « the underlying felony, rape, in proseculio for felony-murder was nut fundamental e ror manleling reversal where the tru court did announce Wo the jury the specif) language which was contained in the fek ny-murder count of the indictment an which alleged that the defendant did ur lawfully and feloniously effect the death o the victim in perpetrating or atlernpling & perpetrate & rape 2 Criminal Law @641.1(7) Since there was no fundamental! erro which would have mandated reversal of ap peal, petitioner's appellate counsel did no render ineffective assistance by failing & raue the fundamental error on appeal USCAConst Amend 6 3. Habeas Corpus @ 25.1(4) Allegations of recewpt and consideratior of noneceord information concerning appel lants in co, tal appeals during ume wher petitioner's appeal was pending, even i irve, did not establish error which wouk entitle petitioner to habeas corpus relief eRedeia? Seekers ae x e «€ MeCRAE v. WAINWRIGHT Fla. 825 Cine an, Pla, 422 Sone 004 (1) failure to instruct jury on elements of the underlying felony, in prosecution tin Shkepanander ean ent fentemmannad on ror mandating reversal where the tria! court did announce to the jury the specific language which was contained in the felo- ny-murder count of the indictment and which alleged that the defendant did un- lawfully and feloniously effect the death of the victim in perpetrating or attempting to perpetrate « rape; (2) petitioner's appellate counsel did not render ineffective assistance by failing to raise fundamental error on appeal; and (3) allegations of receipt and consideration of nonrecord information con corning appellants in pending capital ay peals, even if true, did not establish error which would entile "petitioner to habeas corpus relief. Petutuice denied Overton, Sundberg and MclDonakt, JJ, dissented |, Criminal Law @= 1038.2 Pailure to instruct jury oo elements of the underlying felony, rape, in prosecution for felomy-murder was not fundamental er. ror mandating reversal where ihe trial court did announce to the jury the specific language which was contained in the [elo ny-murder count of the indictment and which alleged that the defendant did un lawfully and felonjously effect the death of the victim in perpetrajing oF attempting to perpetrate « rape 2 Criminal Law @©641.13(7) Since there was no fundamental error which would have mandated reversal of ap- peal, petitioner's appellate counsel did not render ineffective assistance by failing to raise the fundamental error on appeal USCA Const Amend 6 3. Habeas Corpus @*25.1(4) Allegauons of receipt and consideration of nonrecord information concerning appe!- lants im capital appeals during ume when petitioner's appeal was pending, even if ive, did not establish error which would entitle petitioner to habeas corpus relief Robert H. Dillinger of Stolba, Lumley & Dillinger, St. Petersburg, for petitioner Jim Smith, Atty. Gen. and Robert J. Lan- dry, Asst. Atty. Gen, Tampa, for respon- dent. PERK CURIAM This cause is before the Court on McCrac's petition for » writ of habeas cor- pus and # stay of execution Petitioner is how imprisoned under sentence of death pursuant to judgment and sentence af- firmed by this Court in McCrae » State, 395 So 2d 1145 (Pla), cort. denied, US » 2 SCL SH, 70 LB 2d 466 (1981) Petitioner raises three issues going to the legality of his judgment snd sentence The asserted grounds for relief are. (1) that the trial court committed fundamental error by not fully instructing the jury on the ele- muents of the underlying felony ip this felo- my murder case, (2) that petitioner's appel. late counsel was ineffective in that he did not raise the amerted fundamental error on appeal, and (3) that this Court violated pels tioner's rights by reoviving non-record in. formation concerning appellants in pending Capital appeals Petivoner was charged with first degree murder The indictment was in two counts (though there was but ome homicide), one charging premeditated murder and the oth er felony murder The first count of the indictment read as follows [Ojme JAMES CURTIS McCRAE did un. lawfully, feloniously and from « premed). tated design to effect the death of one MARGARET MEARS, did strike, deat, bruwe and wound the ssid MARGAKET MEARS, thus and thereby inflicting on and upon the head or body of the said MARGARET MEARS certain mortal wounds of which saxi mortal wounds the sad MARGARET MEARS did between October 13, 1973 and October 15, 1973 die. contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida. The second count, charging felony murder, wes worded as follows piss i i Eas fil: aH: a fey f HH H é TE : 1 Hh Ps it Fes li ae . di ill Hh ttt if f HELE ae i. if Ht er ; count one and count two, (3) guilty on count one, (4) guilty on count two, and (5) guilty of lemer included offenses The jury re turned a verdict finding petitioner guilty as charged in count two, the felony murder count. The other verdict forms were left blank Petitioner argues that under State v Jones, 877 So 2d 1163 (Fla 1979), and Robles ¥. State, 188 So 2d 789 (Pia 1966), the trial court erred fundamentally in not instruct- ing the jury on the elements of the underly. ing felony Robles and Jones are based on the principle that a jury cannot properly find « defendant guilty of felony murder Without knowing precisely what conduct constitutes the underlying felony We find that the instruction was adequate and there was no fundamental error In Vasil v State, 374 So 2d 465 (Fia.1979), the defendant was charged with felony murder involving the crime of rape. On appeal, Vasil argued that the court had erred in failing to fully define the underly. ing felony of rape The court charged the jury on felony murder and rape as follows If person kills another im trying to do or commit any rape, or while escaping from the immediate scene of such crime, the killing @ in perpetration of or in the atlempt \ perpetrate such crime It @ the crime of rape to ravish or carnally know « female person of the age of eleven years or more by force and against her will In appealing his conviction to this Court the defendant argued that the above defin»- The tral court, in instructing the jury on the underlying felony, recited all of the elements of the crime of rape It is hot necessary lo instruct on the elements of the underiving felony with the same that offense were the primary crime charged. Sue Robles v State, 188 So.2d ed 3a 789 (Fla.1966) The underlying felony was The same principle appl: {1} Im the instant ca failed to include an inst ments of rape in its char, did announce Ww the jur guage contained in the » indictment. As in Vasil, prised of the essential eb derlying felony Therefi comphed substantially Jones. {2} Since there was m ror which would have ma: appeal, petitioner's secon his appellate counsel rer assistance by failing Wo ra tal error on appeal—is a) Under the standards ann ¥. State, 394 So. 2d 997 (FI has failed wo establish ine of counsel {3} As his third «roun pus relef, peUuoner asser requested and received ¢ Uon concerning appellants during the time when hus ing here We considered argument in Brown v So2d 1527 (Pla), cert. « 2 SC 2, 70 L There we held that the « ceipt aad consideration of by appellate judges, even establish error which woul Uoners to habeas corpus n Having determined that entitled lo habeas corpus r petition It i 80 ordered ALDERMAN, CJ, and and EHRLICH. JJ, conew OVERTON, SUNDBE DONALD, JJ., dissent. on count (5) guilty STRAIGHT v. WAINWRIGHT Fla. 827 Che as, Pla, 423 S026 627 789 (Fia.1966). The instruction on the underlying felony was sdequate Ronald STRAIGHT, Petitioner, The same principle applies here. {1} Im the instant case, the trial court {ailed to include an instruction on the ele- ments of rape in its charge to the jury, but did announce to the jury the specific lan- guage contained in the secund count of the wndictment. As in Vasil, the jury was ap prised of the easential elements of the un- derlying felony. Therefore the tna! court complied substantially with Kobles and Jones. {2} Since thear was no fundamental er- ror which would have mandated reversal on appeal, pelloner's second contention — that tus appellate counse! rendered ineffective assistance by failing to rame the fundamen tal error on appeal—@ also without merit Under the standards announced in Kayht y State, 894 So.2d 997 (Pia 1961), petitioner has failed to establish ineffective asswlance of counsel (3) As bis third ground for habeas cor- pus relief, petitioner asserts that this Court requested and received ex parte informa von concerning appellants in capital appeals during the time when his appeal was pend- ing bere. We omauiercd and rejected the argument ‘¢ Brows + Wainwnght, 92 So2d 5427 (Fla), cart denied, Us ~~, 2 SC fA2, 10 LEA 2d 07 (1981) These we held ihat the allegations of re- cert and conszeration of such information by appellate judges, even if true, did not establish error which would entitle the pets voners to habeas corpus relief Having determined that petilioner w= pot entutled to habeas corpus relief we deny the peta, It ws 80 ordered ALDERMAN, CJ, and ADKINS, BOYD end BHRLICH, JJ., concur OVERTON, SUNDBERG snd Me DONALD, J4., disseat. ae? v. Louie L. WAINWRIGHT, Respondent. Ronald STRAIGHT, Appellant, ¥. STATE of Florida, Appelice. Nos 62164, 62182. Supreme Court of Florida Sept 14, 1982 Rehearing Denied Dec 27, 1982 Defendant was convicted of murder in first degree and was sentenced to death, and judgment und sentence were affirmed on appeal Defendant then moved tral court for onler vacating, setting aside, or correcting judgment and sentence The Cireuit Court, Duval County, Thomas D Oakley, J, demed motion, and defendant appealed Defendant also filed petition for writ of haleas corpus in Supreme Court, which was consolidated with appeal from tral court's denial of postconviction relief The Supreme Court held that (1) that de- fendant’s appellate counsel did not argue that trial court had expressly restricted jury consideration of statutory mitigatl- ing curcumstances did not deprive defend- ant of full and meaningful appeal, (2) that appellate counsel did not argue that inal judge improperty conssiered opinions of of- fiers familiar with case on propriety of death penalty did not deprive defendant of full and meaningful appeal, (3) failure of defendant's trial counsel to determine pro- spective jurors’ attitudes toward capital punishment did not justify postconviction relief, (4) fect that trial counsel did not immediately object lo prowecutor's repeated references, during jury selection, lo immu- nity granted cocunsprator and stale wil news did not justify postconviction relief; and (5) trial counsel's failure We object to 4a =——— ST OM OS AS Sa Criminal Law—Habeas Nene A of Execution Granted—Felony Murder—F ailure to Instruct Jury on Elements of Underlying Felony Fundamental Error Where Defendant Found Guilty of Felony Murder But Not Premeditated Murder—Ineffective Assistance of Appellate Counsel Kesulting From Failure to Raise Issue of Improper Jury Instruction JAMES CURTIS McCKAL, Petiiones, ¥, LOUIE L. WAINWRAGIT, Kespendent, mma Coutt of Fhoteta, Case Nu. 61,865, March 25, 1962, Orginal Proceedeng~Habeos Cos pus, Robert 1. Dulkager of Stole, Lumiry and Diltiegt:, St. Petersburg. baits, for Pegtioner. Jim Sauth, Atturney General, and Robert J, Landey, Acdotant Attomey General, Tempe, t borne, for Respondent. (VER CURIAM.) Petitioner, Janes Curtis McCrae, seeks a Slay of execution and relief by writ of habeas corpus from his con- Victiun and sentence, affirmed by tus Court in McCrae v. State, 395 So.2d 1145 (Pia), cor. denied, 102 $.C1. $83 (1961), Peutioncs asserts that lus orygnal apjx llate course! was ineflecuive fur failure to raise a fundamental error wn the thal proceedings which, if presented, would have mandated a teversal of hus conviction. We agice that the Wiad court com: wutied clear fendemental error in tuilwg to property tastruct the jury and that appellate defense wunsel’s failure to raise that sue establishes ineffective assistance of counsel under the stand- ards we set forth in Knight v. State, 394 Su.2d 997 (Fla. 1981). We tind that we must therefore grant the writ of habsas corpus, pant the stay of execution, vacate our privt upinion, and remand to the trial court for a new trial, The relevant facts to the issue presented are uncontroverted and reflect that petitioner was charged with first degree murder in a two count indictment. The first count charged peutioner with (ust degree premeditated murder: [O] ne JAMES CURTIS McCRAE did unlawfully, feloniously and from a premeditated design to effect the death of one MARGARET MEARS, did strike, beat, bruise and wound the said MARGAKET MEARS, thus and thereby infocting on and upon the head of body of the said MAKGARLT MEAKS certain mortal wounds of which said mortal wounds the sad MAKGAKLT MLARS did between October 13, 1973 wid October 15, 1973 die; contrary to the statute wv such caw made and provided and against the peace and dignity uf the State of Konda, The secund count charged petitioner with felony murder [O} ue JAMES CURTIS McCKAL did unlawfully and tehwmously effect the death of MARGAKIT MEAKS in perpetrating of allempting to perpetrate a rape, to-wil did unlawfully and feloniously ravish and camally know a female of more than ten (10) years of aye, towits MARGARE MLAS by force and againat hee will, contrary tu the statute i) Such cate made and provided and against the peace and dignity of the State of Florida, The trial pudge tastructed the jury in accordance with the sawdard jury instructions for count one, premeditated murder, As to count two, however, the trial court gave only the following geowtal felony murder instruction The killang of 2 human being in cOmmutting, oF in atlempt: ig 10 Qomtlt any ate, tape, robbery, burglry, abuudnable and detestable crime against nature of kidnapping is nuider w the fist degree even though there is nu premeditated Seugn of intent to hill. If a person kills another while he is trymy to do oF com mul any arson, tape, rubbery, busplary, the abouunable detestable crune against mature of kidaaprang, of while escapeng from the inunediaste scone Of such coune the killing io in the perpetration or in the attempt to perpetrate such arson, rae, robbery, burglary, aboumnalle amd detestable tive agauist natue of kidnapping and ty murder wm the fist degree, Thus was the total bestruction on felony murder. There was no identifk ation of the specitic underly wig felony for whach the defendant was chasped nut was there any motruction whatever on the clements of the charged underlying felony The triad court, in uvtructing the jury ow the form of the verdict, advised the jury that it cowkl return a verdict as to the counts collectively or dividually and y ive thei separate verdict forms which, provided, respectively, for a verdict of (1) mot guilty, (2) guilty as charged tm counts one and two of the midictment, (3) guilty as charged in count one of the udict- nent, (4) guilty as charged in count two of the indictment, and (5) guilty of kesuee included offences, The jury returned » verdict Hiding petitioner guilty as charged of count two, the felouy neutder charge, The verdict form for “guilty as charged i count wwe” and the torm for “guilty as charged in counts one and two, 1 as they ayqwat in the record before this Court, were not used and j me blk. The record clearly denwnstrates that the tral pudge TH DRAMA LAW WIERD to a pasta dno oot Dadcual aed Ad anstnatere Kowa Avon nates Se De 1327 Neth Adawe Suvet. eet Cotte Mhie 4284. Tollamaowe. thwate S200) ieee ets DS i SUPREME COURT OPINIONS 4/2/82 siked to properly instruct the jury on the elements of the harged underly ing felony. The only mention of the underlying cluny was by the judge reading the indictment to the jurors ( the commencement of the instructions. The jury returned a crdict finding petitioner guilty of feluny murder and rejected, cy lis action, 8 verdict finding petitioner guilty of premeditated inst degsee mnusdes. in 1966, in Robles v. State, 188 So.2d 789 (Fla. 1966), ids Court held that @ tial court was obligated to instruct the sty on the elements of an underlying felony in order to con- wt e defendant under the felony murder rule. The requirement v w instruct apphed whether of not defense counse| so equested, lo State v, Jones, 377 Su.2d 1163 (Fla. 1979), thes uur realfisamed ous hokling in Robles, finding the tial court's ailuse to give an instruction ua ts of the underlying cluay, where feluny murder was the primary offense charged od asgued vo the jury, was fundamental error, To reject pete wuer's claim in this case would require tiiat this Court over- ule 1 prior déasions in Kobles and Jones which clearly and nanbiguously mandate @ Ulal judge to instruct the jury vn ne elements of the underlying feluny when felany murder ws the runary teuse for which detendant is charged. The dictates of (ables any Jones must cunuol Acvord Franklin v. State, 403 «0.246 975 (Fla. 1961), Out decisions in Adans v. State, No. 6,134 (Pla, February 11, 1962) [7 FLW 75], Knight v. State, 94 So.2d 997 (Fla. 1981), and Frazier v. State, 107 So.2d 16 Pla. 1958), as they concern insifuctions on an underlying chany atc wspplicadle because in each of those vases Were vaso premeditated murder charge, e verdict fur both pre- neditated murder and felony murder, and sufficient evidence to “stan 8 conviction an Ye chasge of premeditated murder. An omportant distinction was that there was 8 valal verdict fur pre- diated murder, albeit s collective verdict. That is not the eaten in the instant case. Addressing the Bsue of ineflective assistance of counsel, we ved that the failure to reme this save on appeal mosis the Uuce- sunged test we set out in Kaught v. State, concer nung ineflective veistance of cuunsel. First, peUtoner has set forth (ue speafic arasow of he appellate counsel. Second, the deficiency was «rit bev suse our own case law had made the matter funda ental errors. Third, the deficiency of failure to aise the issue emonsu ates preyudos because, if it had been properly raised, t would, ander the instant record and the law of this state at we time uf the petition for review, hove required a reverse! unl anew ial We find that we have no alternative but to conclude appellate) camael tailed to provide reasonably eilective assistance to pev- janet in the original appeal on the merits, We grant the writ of sbcus Cot pus, pant the stay of executive, recall our mandate awed in acordance with uur opinion in McCrae v. State, 395 wo 2d 1145 (1981), wacate that opinion, and remand thas aust tu the wial court for a sew trial un count two of Uw inne) wdictment. With our holding, we find it unnecessasy to uasider petitione:'s remaining pow is. ii is vo uedered. (Sundberg, CJ., Overton, McDonald, aud hulich, 1). Cuncus. Boyd, J., Duswats with an opinion, in euch Adkins and Aldesman, J), Concus.) sOYD, j., dissenting. J respectfully dissent tw the mayonty vpwnon. The maputity opmniun, in staying Use catculom, reversing lw Camvictsun, and requising a new tral fur the defendant is used upun dectssons of Unis Court cited therein wiuch hubd that to support a conviction of murder in the first degree based upon felony murder it is necessary for the court to charge the jury on the elements of the underlying felonies. The record in this case reflects that the court read the grand jury indictment for felony murder as follows: [O] ne JAMES CURTIS McCRAE did unlawfully and feloniously effect the death of MARGARET MEARS in per- petrating o1 attempting to perpetrate a rape, to-wit: did un- lawfully and feloniously ravish and carnally know a female of more than ten (10) years of age, to-wit: MARGARET MEARS by force and against her will, contrary to the statute in such case made and provided and against the peace and dignity of the State of Plorida. The basis upon which Robles, Jones, and other authority i: based is that a jury cannot proper d a person guilty of com nutting first degree murder based upon a felony without knowing exactly what conduct constitutes the underlying felony. In the case of Vasil v. State, 374 So.2d 465 (Fla. 1979), the defendant was chasged with felony murder involving the came of rape. On appeal, Vasil axgued that the court had erred in failing to fully define the underlying felony of rape. The court charged the jury on felony murder an! rape as follows If a person balls another in trying to do of commut an, tape, or while escaping from the immediate scene of such crime, the kilbng is in perpetration of of in the attempt to perpetrate such crime. it ts the crime of tape to ravish of: camnally know a fe- male person of the age of eleven years of more by force and against her will. In appealing lus conviction to this Court the defendant asgucd that the above definition was not suflident to inforn: the jury of the elements of the underlying feluny of rape. In response to that axgument the Court held that: The trial court, in instructing the jury on the underlying feluny, tecited all uf the elements of the crune of rape. It is Mol Necessary to instruct On the elements of the underlying felony with the same particularity that would be required 1 that offense were the prunaty crune charged. See Kobles v. State, 188 So.2d 789 (Fila. 1966). The instruction on the underlying felony was adequate. In this case the court falled to define the crise of tape in its charge to the jury but, as sated in the majority opwnion, the court did announce to the jury the speafic language contamed in the second count of the grand jury indictment chanung th: defendant with felony murder based upun tape. | agree with those cases cited in the majority opinion requiring that juries be toki the elements of the underlying felonies, but in thus com, 3 in Vaal, the court complied substantially with the require: ment of Robles and Jones by wfornung the jury of the elements of rape. Therefore, | respectfully dissent. (Adkins and Alderman, JJ., Concur.) th PEA LAW WEE ATY 6 pein ate od Deda cal arnt Adeett trey Haw a Avon cates lem oat pon ate ol 1327 Newt Adame Steers. Pret Ofte Gere 4284, Tolistewe. Pharets 120! Pies emedy 20) ty IN THE SUPREME COURT OF FLORIDA THURSDAY, DECEMBER 16, 1982 JAMES CURTIS McCRAE, ee Petitioner, ee vs. hed CASE NO. 61,865 LOUIZ L. WAINWRIGHT, ee Respondent. ee On consideration of the motion for rehearing filed by attorney for petitioner, IT IS ORDERED by the Court that said motion be and the same is hereby denied. A True Copy c cc: Hon. Sal Geraci, Clerk TEST: Robert H. Dillinger, Esquire Robert J. Landry, Esquire Investigator Ed Boone, Sid J. White Office of the State Attorney Clerk Supreme Court rht- Connon McC HAR ¥ STATE aT rhe 9145 he os, Fie. 208 be De 10d James Curtis McCRAE, Appellant, ’ STATE of Florida, Appelice. No. 45804. Supreme Court of Plorids Oct. 30, 1980 On Rehearing April 9, 1981 Defendant was convicted in the Cireurt Court, Lee County, William Lamar Ruse J. of first-degree murder, aad he spymalert The Supreme Court held that (1) State was properly allowed to question defendant about prior unrelated felony on crows os amination, (2) testimony of witnesses which described an indivadual closely resem bling defendant who, two days prur to date om which murder victin's lexly was found, was in immediate area where crime was committed at approximate tume of ts com mussron, was televant and alinssible as to move of wentity, (3) defendant was nut denied due process and equal protectwa of law when he was charged under first ch gree murder statute rather (han second ce gree murder satule, and (4) jury's recom mendation that defendant should le sen lenced to life unpravament had me reasona ble bass wader circumstances of case, and thus inal court properly imposed death sen lence over jury recommendation of life Affirmed Sundberg, C J, concurred specially in result and filed opnon 1. Criminal Law @= 990(6) Denial of defendant's motion Ww vacate jedgment and sentence, based upon asser- tion by material witness that he testified falsely at trial due lo cuerewn and promise of “deal” by state officimls, was proper, in that no Brady vwlatwn had occurred 2. Witnesses 26% 1) On cross examinatwn, stale must, us general rule, limit itself te questions no broader in scope than those propounded by defenm 3. Witnesses = 350 State did not excwed scope of permis: ble inquiry On cross examination when it sought to eheit nature of defendant's prior unrelated felony to which defendant re ferred on direct, im that state was entitled to Megete elusive innuemlos of defendant's counsel, whieh tactfully atiemplead to me lewl jury into beleving that defendant's prwr felony was inconsequential 4. Witnesses @ 26% 1) Kule limiting mquiry on cross exams falion tv general facts which have been satel! on direct examination must not Le so construed as tu defeat real vljects of cross esamination, une of which w tw eet whole truth of transactions which are only partly hence, yvestons wheh are intembed to fill up ck eaplaimest in direct eaamination, ogee! of accwlental omens of witness or te call wut facts tombing to comtradet, on plan ur tmlify some infer nce which miyght vilerwue te drawn from thee te elimony, are he grtietate ifees ¢ tamithalam & Criminal Law oH 1197(2) Defemient cannot take alvanlage of appeal of situation which he has crested at trial © Criminal Law G37 Any testimony relevant lo prove fact in eevee admimble unices precluded by sume yweilic rule of exchuswn 7. Criminal Law @ 369.2(1) Relevant evidence will nut be exactuded merely lwcuuse it points lo commiasion of separate crime, unless is sole relevance is te port up bad character of eruminal pro pensity of accused 6 Criminal Law 399.5 Testimony of two witnesses, which de wrilet iulivalual cluely resembling de- —- 1146 Fle 395 SOUTHERN KEPORTER, 2d SERIES femlant whe, two lays whore munher vn m's lanly was found, was in inmedtiats area where crime was committed al appros imate time of is commesiwn, was relevant and admusible as Ww weve of wentity, fail ure of witnesses We wentify defendant was Question for jury as lo weight to be accurd- ed their testimony 9. Criminal Law © 372(14) Testimony of witness, whe deserted incident in which defendant came tw her ayertewat, searching for partnular undivad wal, and later returned to apariment, forced door open, shot acquaintance of wiinens ond then lwal wiltess alwut face with gun ond chohed her Lefure Mewng. a alone ble 18 proeewution for murder laxaune wit Qees was oble to wlentily defemlant aml becauer, allegudly, she estatllihes! that com mon plan ow whem was employert bey ch fendamt Ww gam admitiane Ww homes vuln 18. Constitutional Law @ 250 2/1), 265 Defendant was nut dened due prowess ead equal protectin of law when he wae charged wader first degree murder Hatute, which proscriins unlawful billing of human being when perpetrated (rom premeditated design or whee commited by aren en geged in perpetration of crime, rather than under mound degree murder statute, which preecrian voleaw!lul billing of human ining when perpetrated by act unmumntly dan getous We anether and evoming depraved mumd tegariicss of human bile Weet's PSA § TW2OKIKs), (2), USE A Come Amemls 5, 4 It Criminal Law @ 121) Sentencing procedure of statute proved ing sevttence of desth of bile unpreenment for capital felunws was merther volative of constitutional mamiate of Furman + Geoor gia on ite face of as apple le defenmtant whe was convicted of fit degree munter Wests PSA § 921 141 ct my 12. Memcide @ 34 In evertulng alvmery verhet of pery for thle watemey aed semtemerng hele mebant whe was convicted of first degree murder, to death, finding by trial court that crime was committed while defendant was en gaged in commision of rape, an aggraval ity circumstance, was nol error West's PSA § 921 145Kd) 13. Homicide @° 34 In overruling advisory verdict of jury fur life sentence and sentencing defendant, who was convicted of first degree murder, tw death, inal ewurt correctly determined that crime was especially hemeous, atrocious woeful, af aggravating Wests FSA § 921 145Kb) corcumslance 14 Criminal Law © 1208(1) Diatute provndeng that fact that capital febony was eopmerally heinous, alrocwus, of trucl @ 40 aggreveling corcumetance to tx conmleret by trae court in determining whether to ump sentence of life unpre vnment on death ayqlies lo comscwacelens of pitiless crm which w unnecessanly torte Wests FSA § 82) fous Ww veetlim 14K Sah) 15 Momiide Ge 3K Where defendant, who was convicted of first degree murter, had pled guilty to prwr felony mvviving use of threat of vio lence lo persue, defemdant’s guilty ples con stituted convatwn, even though judge had rot adjwleated hem guilty, and could te conesierel 2s aggravating circumelance in trea! courts deemwn whether lo imycse sen tonee of hfe unpreenment or death West's PSA § 92) 4KSeb) 16 Crminal Law © 773.212) linee phew of gully hae lwen accepted by court, 1 te the convection and only re marmung vlep « formal entry of judgment aml Umpaiton of a Ate ace 17. Crvminal Law @ 1200(1) In chtermining whether death penalty shoukl te yam, court Mmuat conswler ver nue Corruetanees set forth in statu avy ernng woteneing for capstal felonies, which Met KAR © STATE hla 1147 Ce on the, 8 be oe 108 ant judge in establohing vverall character analysis of defendant wv that he may prop erly determine appropriate sentence within limits set forth in law West's FSA 992114) 16. Criminal Law @ 1 208(1) Word “convicted” as used in section providing thal previous conviction of de- fendent of another captal feluny of « felo- py invelving wee or threat of vwlence to person aggravating circumstance lo be considered by tral court in determining whether to impuse sentence of life unpre onment of death for capital felony owans valul guilty pha or jury werdet of guilty for velew felony, an adjucheution of guilt is fot Mecessary for such & “conviciwn” to lew consslered im capital sentencing charac ter analyse Wests PSA § 921 45eb) See publx ston Words and Phrases for ther jude! cComirumtwns and delindvons 19. Homicide @ 3 Trial court properly repocted argument of defendant, who eas convicted of first degree murder, that by eas under influcms of watreme mental of cmetmnal desturhance ot lee ofits Bete coenmttiod and that sae shout te cnnseheteed as mutggaling cor cumetame © deletmemng whether to om pom motonee of Life primal ut death Weete PSA § FL) Litton) 20 Criminal Law @- ans Adveery rooummormlisatwn of jury on wetenee te le enpemed vn cefenmdant must be acourhed great woght 2). Criminal Law @ anh Jurys recumnnwmiaton that defendant, who was convicted of [iret degree murder, should ta sentemed ty hfe unpreenment had no reasunable base under cireumelanc oo of cam, and thus tral court's decmwn Wo umpose heath somone vver jury recommen: daiwa was prone Wests PSA § 921 141 Ue Meotwa for Kehearing 22. Criminal Law & 990(17) Upon review of record of postounvn ton relef proceeding i hight of asertions 10a made in brief of defendant, whe alleged that witness committed perjury during murder prosecution, evidence was sufficient to affirm fmting of tral court Uhat witness’ testimony af trial was true and thal esti mony al postconviction hearing was false Philp M Gerson of Freshman, Gerson & Freshman, Miami, for appellant Jim Smith, Atty Gen, and Raymond L Marky, Asst Atty Gen, Tallahassee, for appellee PERK CURIAM Thee @ 4 direct appeal from « conviction of murder im the first degree and a sentence of death rendered im the cerewit court for law County, Plornla We have juridiction pursuant to article V. section MbNL) Flor tla Constitulion, and affirm the conviction and sentence Un Ocwolor 15, 1975, Margaret Mears, a wiaty seven year old woman, was found teal om her spertment Her laxly, un clothed frum the want down, had been bru- tally lawton alowt the head end chest, and her vaginal area was covered aith blood A bhaaly puis print lifted from her apart own was wheotifad as that of the appel lant, James Curtee McCrae MeCrac was wuheted for two counts of murder in the first degree, one count charg mg 4 premeditated bilhag, and the other charging felony murder ous bee ye mily In order Ww determine he competency to viand trial, aygeilant was examined by three court appointed paychatrots While all three decturm concluded Uhat appellant's mental duerder created violent and uncon trolled behavior, appellant was found com- potent Wo stand tral = Syocifically, De Mor decat Haber olmerved that McCrae suffered from a deerder which contributed to an explomve personality The ductor conclud- ed that McCrae was mentally competent but tow dangerous to Le at liberty in secretly Ur Thomas Heagland found that McCrae 1148 FM was capable of giving aud to bis counsel and, when suber, wae @ well cuntaumed undivider al who had firm control over bis faculties However, when under the influence of im toxicants, appellant released an underlying furor which erupted inte uncon: trolled violent behavior Dr. Clarence Sehiit, who testified during the bifurcated phase of the inal, stated that McCrae was gubject to attacks when under emotional stress which prevented him from exercwng the restraint which wouk! be preaent in norma) individual Although the ductor stated thet sppeliant was nut insane, Ne dad s “determine thal McCrae suffered from « chron schiuvphren illness am! that be was unlikely Wo cooperate with defers cou nee! At Unal, the tele yatruducedd Uke esti ny of four witnesses tur the alleged! purye af showing wWentity of establishing + com: mon echeme of plan balih Veal testified that she lived near the wit At th purported hour of Un cry 8 CUR Heath she stated thal « young black male with a cast on bee arm futing the same gemeral descryiwe as aypyrtlant, bnuckeal on her dvor ond ashed for Wayne Mike Mere Veal stated thal fe one by thal eam liwesl at her resilience The man then asked uf her husband was home While Mra Vea! was unable to whentily ayqatiant at a pre inal lineup, she wae abic pusttively be nie tify hum upon being recalled Ww the @riness sland Mure! Bergner sumlarty testified that she lived in clase prosimity lo the welim According to her testimony, un October 14, 1973, the day before he vel ® tasly was found, @ young black male also ftting her while she was walking her dog, te ask directions The man walked away, bul re turned, again ashing questions At that point, Mre Bergner walked hurrwaly to her home and locked the deur She succeded im fastening the lock just tw lure arrived at her dovretep The stale alee called Dorvthy Hendley whe tootificnl Unat lla 395 SUUTHERN REPORTER, 2 SERIES while walking her dug, « man whom she identified as appellant ap proached her and shed questions similar lo those asked of Muriel Bergner Faith Lederman Gertner and Willam Smith testified that McCrae came to Mra Gertner’s apartment on June 8, 1973, searching for Randy Willams When in- formed that Wilhame did not live there, McCrae left but returned shortly thereaft- or, and asked Mr Geriner We accompany him downstairs She refused, bul Witham Smith agreed to go in her place Once they walked downstairs, McCrae took @ swing et Smith and fed Later that evening, oppo! lant returned and forced the dour open He drew a gue and shot Smith He then beat Mra Gertner atwut the face with the gun amt choked her before fleeing ager jositively After the state rested, appellant towk the stamd wm he own behalf During direct he was asked if he had been convicted of mademeanors and if he had phoardel guilty lo these charges Appeliant respomlest ia the affirmative to both ques tons Hie counsel then ashed of he was ever cunvicted of a felony, to which apya! lant agen anseored affirmatively On cruse waamunaton, the olale «allerney sought to ele the nature of Ue felony charge Overruling defendant's objection, the court required MeCrac to echose lo the jury Ural be had pleaded guilty to assault with imtent murder On (he ground = that appellant's had “yyened the deur” to such questiwning After the clase of the evidence, the jury returned a verdict of guilty on the felosy murder count, but recommended ao life sen tence As required ly, axectiot 921. 149), Florida Statutes (1975), the trial judge made findings of fact wherein he rejected the recomawadation of the jury and en Lered o judgment calling for the death sen tonew Spweifieally, he slated As presiding Judge | observed the De- fondant when evidence was introduced aml esweially when the fingerprint ex. ort from the FEL was testifying, the shanna we eomml couns’' oy oan oe ctwon 921.1613), ne inal judge ren he rejected WIE eS ee McCHAE ¥. STATE Fla 1149 Cee ae, Pha, 208 bene 1148 Defendant appellant) appeared extreme: ly nervous and upset when this evidence was being received = Throughuul the tr al, as the story wafulded, the Court was struck with the heinous, atrecwus and ervel murder of the eklerly woman The Court was alo aware thal « person answering the description of the Defend- ant ined to gain entrance bo the homes of two other elderly women in the same chow meighborhuad wherein the deewased lived in her apartment at or about the Lime shortly connected with the death of the deceased The Court ts also aware that the lesth mony proved that the Defendant. « few months Lefure the inelant case at bar, brutally ettacked « female by the name of Pauth Lederman (Gertner| after he, the Defendant, had shut and sermusly wourl: ed Wilham K Seth, which as a result of sakd attack, the Defemlant staal before the Court and voluntarily pleaded guilty w the crime of assault with 4 dewll) @eapun with intent to cumet fire de- gree murder The record in Cam No TS STZ CP Law County duchet, reveals that the Defend: ent plead guilty to the charge on Sey tember 11, 1974, just alout one month before the murder of Margaret Mears, the decwaseed in the case at bar The Defendant was jarmited re main at liberty ve ball porting the pre senlener investigation report un Case No TS STZ CF During (he time the Defendant was at bberty of bal letwewn Septemiear 11, 1973 and October 29, 1979, Une murder for which the Defendant was ined and con- victod in the instant cam was committed 1k ts interesting to mute that the De- ferdant’s fingerprints taken when he was convicted for the erume laut in Cam No T4372 CF matched the bhaaly finger: prints lifted from the resnlence and preemies uccupied by the deceased, Mar: garet Mears, ant thus resulted in the indictment and conviction uf the Defend ant im the case at bar The Court before the triai was interest- ed in the mental state of the Defendant, and appointed experts in the field of psy- chiatry to thoroughly examine the De- fondant. The Court held hearings on the question of the mental condition of the Defendant ant after hearing the testimo- ny of such experts held that the Defend- ant was fully able to distinguish the dif- ference between right and wrong and covkd fully cooperate with hws counsel in Ube preparation and conducting of his de- fense The Defendant did fully cooperate with counsel during the trial and actively ad- vueed counsel and was fully aware at all umes of the proceedings during the trial The Defendant Wook the witness stand in his own behalf and demonstrated that he, the Defendant, had an excellent mem- ury, but cvukd nut explain how hu biuudy fingerprints and palm prints were found on the wall near the beck door of the decwased’s apartment of upon Looks and other itleme in the residence The evileme discloses that Ue de- coased was so brulally and vicious'y beal- on that her blaud was splattered upon the walls and ceiling of her residence, and the evadence further discloses that the elder ly women was raped, ether just «fore her death or directly after she was mur- dered The Court sets forth the above facts as they fully appear in the inal record, and the record taken by the Offical Court Reporter The mitigating circumstances are very mime The Defendant, in order to show the jury Uhat at the time of the crime he was “under the influence of extreme mental or emotional disturbance” placed Dr Clarence Schilt on Ube stand, however Une youd doctor could not with any degree of modes! certainty say in his oprnon Une Defendant was so affected The docto in hes summation stated that the prisone was either very smart or very wck eeeeereeerenenn et isi TT l2a a | Ne Le a sa Se ea Tk a ye ee A a 1150 Fie Therefore, when the Court takes inte Conskeratwn the aggravating circum slances such as 1. The Defendant was» self convicted felon, pleading guilty w assault to mur. der, and as an incnlent thereto, from the tral record that the Defendant hed beat [sie) and choked the witness Faith Leder. man in & brutal assault upon her, just « few weeks prior te the murder of Marga. ret Mears. and 2 That ihe Defendant hed on the same might of the murder trad te gan en trance to the readences of two viher of derly females im the same luwality, and 3. That the crime was committed “ac cording to the jury verdict” in the com minswon of rape, and 4 That the murder was wopecially hes fous, airucwus, brutal and cruc! The Court feels that these facts greatly oulweigh any miligating crcumstance heard by the Court at the tral of the Defendant The Court further fowls that the test: mony of Dr Clarence Schult wn tts entire ty @ aot sulficwat we vulwegh the as Gravating circumMslanes as wt forth alors and as they fully aygear in the record in the case The Court ws fully aware of the great responmbiliiy that rests squarely wpon the Una! Judge i matters of thu bund The Court has struggles! with the weighty decwwn that must le made in tus came, and in making the determina ton We overrule the decwon of the jury at advan! the sentence of hfe unpre vAmen| The Court mut chasing of inferring that the jury was las in thew respunasbils. ty However, as may appear the Court feels that it is the responsibility of the Court to follow the law as written by the wiedom of our varwus lawmakers, that sccwty must be protected and thal an example must be ort forth and made ep parent so that wur citizens may be secure im thew homes and that they may be safe l3a | 395 SOUTHERN REPORTER, 24 SERIES from the eaperieonces that Margaret Mears suffered at the hands of the con- vieled Defendant The Court therefore reyets the advise ry sentence of the jury in this case and will pass the sentence of death upon the Defendant, JAMES CURTIS McCRAE The Court feels that this action vpon its part w dictated by the facts and cir. cumstances gleaned from the inal record amd that sufficent aggravating circum. ances exis as enumerated in Subsection 6 to greatly oulwegh any muligaling cir. cumstances as set forth in Subsection 7 of Section 92) 141, Florida Statutes Tr wl Vil, 1080 Appellant urges five pounts for reversal We restate these points below (}) whether the trial court erred in allow. img the stale to question McCrae about prer unrelated felony on cross-examine (4) whether the inal court erred in simutling the lestimony of Edith Veal, Mu rel Geryner, Pau Geriner and Wilham Semith, (ut) whether the tral court's er ten of the desth penalty denes appellant due process and equal protection of law and vwlales ie mandate of Furman v Georg Ws US Si 92 SC. Pre, 33 Lea oe Bee (1972), lcouse there & no reional dutine town letween first degree murder and mur. der im the mound degree, (iv) whether Une mOlencing procedure enunciated im chapter ¥21, Ploruda Statutes (1975), @ vielstive of the constitutions! mandate of Furman » Gvergia both on its face and as applied wo McCrae, and (v) whether the court erred rr) vverruling the hfe sentence advisory verdict of the jury Following oral argument of respective counsel on these issues, appellant filed in the Court » motion for new inal with sup porting affidevit pursuant te Flordes Rule of Crminal Procedure 3 600, alleging newly Gucovered evidence In the sworn affids. vit, Ole Walker, » material witness e! the tral of appellant, averred essentially that he testified faleely at trial due to cuercion lwon 5s = Way . nA. 4p a” * ae ~ ’ . a La yeh ig a McCRAE v. STATE Pin 1151 Cine an, Fla, 988 Sone 1148 and the promise of a “deal” by state offi- cals, Appellant coctended that Walker's assertion established s violation of Brady v. 373 US @, & SCu 11%, 70 L.Ed.2d 216 (1968) and, accordingly, that he wes entitled to a new trial. In an order dated November 2, 1978, we pointed out that @ motion under rule 3.600 is an inap- propriate pleading in an appellate court, such @ motion must be addressed to the tral court. Purther, because the time limit for flung thie motion in the proper tribunal had expired, the only remedy for the alleged Bredy violation was & motion in the trial court vacate judgment and sentence un- der Florida Rule of Criminal Procedure 3850 Although appellant's affiant had de- med under oath at trial that he was offered a “deal” in exchange for his testimony in that proceeding, thu Court nevertheless re- lunquished jurisdiction to the trial court to enable appellant to file a rule 2850 motion raaing the alleged Brady violation {t]) Appellant thereafter filed the mo- on in the trial court and, on December 18, 1978, after hearing the evidence and argy- ment presented by the parties, the trial court entered an order denying the request. ed relief The judge found “that the testi- mony before th Court of OTIS WALKER @, in fact, untrue,” and concluded that no Brady vwlation had occurred A!though appellant fied a notice of appes! frum that order, he has not informed Uns Court of the grounds of hw attack. Nevertheless, we have reviewed the record of the rule 3.850 proceedings We are satisfied that the trial judge correctly ruled om the motion and, acoordingly, that ruling ie affirmed We now turn to the issues 00 appeal. The first point raised by appellant chal- lenges the ruling of the trial court allowing the prosecutor to cross-examine appellact with reepect to his price criminal record. Appellant concedes that the state is entitled lo cross ¢zamine him of (hose moves devel- oped durvng direct examination. However, he argues (hat the state exeseded thu scope of permusible inquiry when it sought to elicit the nature of the felony to which appellant referred on direct. According to appellant, the defense established only that he had been accused of a felony and that he had admitted his guilt [2-5] We agree that on cross-examina- tion the state must, as a general rule, limit itself to questions no broader in scope than those propounded by the defense Cortes v State, 135 Fla 589, 185 So 323 (1998), Cook v State, 46 Fla @, 35 So 665 (1903), 98 CJS Witnesses, §§ 378, 394(b), 995, 401(2) (1957) Im the instant case, however, the state properly transcended these bounds be- cause defense counse!, through his questions on direct examination, tactfully attempted to mislead the jury into believing that ap pellant’s prior felony was inconsequential On direct examination, appellant's counsei asi~d hus chent Doug, af thie time I would like to ask you a few questions | would like to begin by asking you Have you ever teen convieted of a mudemeanor’ A Yes, I have Q Do you recall how many times you have been convicted of a mudemeanor’ A. Well, | would say ower the past nine or ten years poembly about mine or len muxlemeanonm Q Did you pay fines or did you serve tume for these mudemeanors’ A. | pad fine Q Do you recall how much in the way of fines you may have pad for miste meanors otal’ A Yeo I! paid a total of $445 in fines Q Doug, have you ever been convicted of a felony” A. Yea, | have, one Q One time’ A Right. Q Doug, these misdemeanors, this fel- ony you told me about, were you found guilty by a judge or s jury? A. No, I was not, | pled guilty Q You pled guilty’ l4a 1152 Pie 395 SOUTHERN REPORTER, 24 SERIES A. Yes Q Why did you plead guilty? A. Because | was guilty Q How did you plead w this charge ageingt you thal you are here for w day’ A. Not guilty. Q Why did you plead noi guilty, Doug’ A. Because I'm not guilty This line of questwning could have deluded the jury into equating appellant's convic- tion of assault with intent lo commit mur. der with his previous mudemeanorms Con sequently, the slgle was entitled lo mterry Gale appwllant regarding ihe nature of hu prior felony in apder Ww negate the delusive innuendoes of hi cuunse! As slated by one learned echolar (The rule limiting the inquiry te the gen ere! fects which have loon stated in Uh direct eAamination must noi Le so con sirved as Wo defeat the real objects of the Cruse-enaminatlion One of these objects ts to chet the whole iruih of transactions which are only partly explained in the direct examination Hence questwns which are intended to fil! up designed or sceudental omusiwons of the witness, or to call out facts lending to contradict, ex. plan of modify some inference which might otherwise be drawn from hu testi mony, are legilimate cruss examination 4 Jones on Evidence, Crom Examination of Witnesses § 253 (6th Ed 1972) (fotnote omitted) A defendant cannot take adven lage on appeal of « situation which he has created at trial § Sew Sullivan ¥ State, WU So.2d G32 (Pin 1974), White + State, 448 So.2d 1170 (Pia. 3d DCA 1977), Jackson » State, 336 So 2d (Pia 4th DCA 1976) Appellant neat argues thal the ina! court erred in admitting the testimony of four witnesses introduced by the state in ils Case im chief Initially, appellant contends that the testimony of Edith Veal and Mure! Bergner, placing him in the immediate aree where the crime was commited at the ap proximate hour of its commission, should have been excluded for three reasons (l) the (wo wilnesses were unable positively to wentily him and, therefore, their testimony wee irrelevant, (2) assuming there had been & positive wentification, there was no relevance between Mra Veal's and Mry Bergner's experience and the crimes com. mitted, and (3) the terumony of the two women did nol suggest an stlempt to com. mil similar crimes aguinst them 16,7] Any testimony relevant to prove the fact in mauve is admissible unless pre. clued by some specific rule of exclusion Johnson v State, 1 Se 2 699 (Pla 1961), Willams ¥ State, 110 So 2d 654 (Pla 1969) Furthermore, relevant evalence will not be ercluded merely lwcause it points to com. mason of @ separate crime, unless is sole relevance t lo pont up Lad character or the criminal propensily of an accused Mack. wee v State 14 So dd 6h4 (Pleo 1969). Williams v State, Jontan.v State, 17} So Li 418 (Pla Int DCA 1965) As app! lant correctly notes, the testimony of Buith Veal and Mure! Bergner did not present evadence of another erme, thereby ugges( ing appellant's criminal propensities le Cause appellant has noi suggested any other sjacific rule mandating that the watimony be excluded, the witnesses’ testimony ts ad Misible if it @ relevant {8} Although appellant argues that the testimony of Mrs Veal and Mre Hergner relevant because they failed to identify hum, he ignores the fact that both Wilheases sated thal the person who ailempted wo gain entrance Wo thew homes met Ue gener a! description of appellant Both women descrited an individual closely resembiing appellant who, on October 13, 1973, was in the immediate area where the crime was committed at the approsimate time of its communion Therefore, their Lestimony was relevant and adimummble as to the issue of wentity Appellant's contentions are merely questions for the jury as Wo the weight Wo le sccorted the lestimony 15a Dison [12- the pouser (Pla It dict of the ser court f es und (1975) convict threat (b)), f whilea non of the ery and on the see sec lion Purthe ly that elrocim —_) — mmission, should wee reasons (1) able positively to , ther lestumony ming there had un, Unere was x0 Veal's and Mr ne crimes com- wony of the two allempt W com- them ‘evant prove wuble unless pre- ste of exclusion | Syv (Pla 196)), of 654 (Pla 1959) eer will mot be | pons com. <, unless ts sole character or the wcuned = Mach. G4 (Pla 1958), av State, 171 v5) As appel- mony of Edith Gd nwt present hereby suggest. wnnnies Be. rested any other \ (hee lestumony \eslimony is ad- wgves (hal the Mrs Bergner ws led to udentify ' Woth witnesses » sllempted met Ue gener. Both women McC KAR ». STATE Fla 1153 4 te on, Phe, 208 be de tad 19) Appellant also argucs that the teats mony of Puith Gertner and Willam Sauth was irrvlevant because the incnlent which they described occurred almust six months before the instant cnme Similarly, appw!- lant submits there was no factual thread connecting the two events We disagree Mrs Certner's testimony was adinasible be- cause she was able to wentify the appellant and because, allegedly, she established that & common plan or scheme was employed by appellant lo gain admittance Wo the victims’ homes Bryant v State, 285 So Ld 721 (Pla 1970), Winstewd ¥ State, 91 Su 2d BUY (Pla 1956) {10} Appatiant’s third pount is that he was denied duc process and equal protection of law when he was charged under section TH OKI Ka), Florala Statutes (1975), the firet degree murder statute, rather than for murier in the second degree under section THZ042) This Court's decison in Adams ¥ State, M4) So 2 765 (Pla 1970), and State ¥ Dison, 263 Su 2d 1 (Pls 1974), dictate that appellant's argument must fail on he o ou (80) Appetiant’s fourth jaunt has Leen deculed adverely to hue cause in Slate ¥ Dison (12-14) Appwtlant argues further that the tral court vwlated the principles es poured in Techkr + State, S22 Se Sl Gos (Pla 1975), in wverruling the advisory wer dct of the jery for a life sentones During the sentencing phase of the proceedings the court found threw aggtavating corcumslanc €o uruler sectwn 921 1415), Plone Statutes (1975) (1) that ajqeilant was previously convicted of «4 feluny involving Uke um of threat of violence Wo the persun [sulseetion (b)), (2) that the crime was committed while appellant was engaged in (he commis: avon of & rape (subsection (d)), and (3) that the crime was especially hens, alrociwus and crucl [subsection (hp) The finding of the secund agyravaling circumstance under seclwn BLL I4NSKb) was clearly proper Further, the trial judge determined correct: ly that the crime was copwesally heinous, sirocwus of crue! The evulence disclosed MO me be 08 l6éa that the wet, 4 sixty seven-year-old woman, was sw brutally beaten about the head and chest that her blood was splat- tered upon the walls and ceiling of her resulence According Ww the testimony of Dr Roser, the medial examiner who viewed the scene of the crime and per- formed an autopsy on Ms Mears, the pat- tern of Ulaal stains on the wall indicated that she was either sitting of standing when the atteck began At sume point the viclim was thrown to the floor and her nbs were crushed, resulting in death by asphya- tation within four mingles thereafter (Tr vol 111, 499-512) The Pape occurred either shortly before of immediately following Ms Mears’ death The agony and horror which this elderly woman muvt have suffered pri- or her death wevident As we acknow!- edged in State v Dison, 23 Sold at 9, sertion 921 141(50h) apples to “the con- wwrceless of pililess crime which w unnec- essarily torturous to the victim” The bill- ing 19 thee case falls squarely within the calegor, when vewed in the conteat of prior decuons of the Court where we have approved a finding of Unis aggravating cir- cumstance See Washington v State, 362 Seo 2d GSe (Pla 19TH) (victim repeatedly stabbed while ed to ao bed, with evidence of suffering), Barclay v State, M3 Sold 1206 (Pia 1977) (victim stabbed while bey. ging for mercy and then billed by shots to the Dew!) Adams © State (victim beaten with fire poker past pount of submmsion and wali! grossly mangled ) (15) The appellant further contends thal the trial judge unproperly found under wmeton P21 14N5Kb), Ploride Statutes (1975), that he had town prevwusly “con: victed” of « felony imvolving the use or threat of viclenew Ww the person Al the time of hes Urial in the instant case, McCrae had already pleaded guilly lo assault with intent Ww commut murder upon Faith Gert. ner and Wilham Semih Pending sentenc- ing of Une charge, he was released on bai! without adjudwation of guilt, awaiting the completion of Une presentence investigation 114 Pls report. Shurtly after hie release on bail, McCrae, as found by the jury in this couse, sexually assaulted and murdered the victim, Margaret Mears McCrae contends that he had not been convicted of his prior offenw agsinst Gertner and Smith becwus the judge had not edjudicated him guilty We reject ths cuntention and find the plea of guilty Ww & felony involving the use or threat of violence to the person is a convic- tion which may be used in aggravation un- der section 921 14150 b) and was so intend. od by the legulature (16) In Rodsason + State, 373 So Ld B98 (Pia 197%), we held that « plea of guilty an in-court cunfesswn and an agreement for Une court Ww enter ao judgment We further cited with approval the decmwn of the United States Supreme Court in Boykin v Alabama, 95 US 238, 2, WSC 17, 1701, Se CR 2d 276 (1964), which stated “A ples of guilly w@ more than a confession which admits thal the secused did varius ects, hw tteelf @ cunviciwn, nothing rm mains bul lo give puigment an! determine punwhment” [kinphasts sujyled | Them deciswns recogni that ome « plea of Quilty hes lawn accepted by « court, it Uh conviction am! ihe only remaining step o the forma! entry of puigment and the ump silion of sentence (17) Further, om determining wihx ther Une death penally should tex pam! a court must comenier Une various corcum olances at forth in wetiwn P2114) Then cwrcumsalances ax! Une judge in eatabloting Une overall character analy ete wl « defer Ont oo thal he may properly determum UK spprupriale senlenee within the lime met forth im the law Blixige + Stute, So So.2d 996 (Pia 1977) Prue convatwns of violent felunws w an catremely umportant factor im the sentencing process Given the purpose of the process, it ws logical that « ples of guilty We a serwus offense involving violence thal ts dijneed of by & sentence that includes a withholhng of edjudu atwn of guilt showk! le treated differently than « plea of guilty with court adjudicatwn Both contain an unreluted factual diterm, nation that the defendant committed tas prer criminal of fwnse 395 SUUTHEMN KEPORTER, td SERIES In interpreting “eunvievon” for the pur. poses of section 921 145K), we reyect any analogy Ww the habitual offender statute set forth in section 775.084 The habitual of. fender statule creates # separate criminal offense thal requires beth (a) a determina. ton of guilt by « jury or & ples of guilty, and (b). an adjudication of guilt by the court Washington v Mayo, TT So2d 620 (Pla 1955) This statute was enacted by the legislature “Ww protect society from habitual criminals who perwet in the commission of crime after having Leen theretofore con ve ed and punished for crimes previously committed” Joyner v State, 8 So 2d 304. 306 (Pia 1947) It i new and separate crominat offense, and “adjudication of guilt” @ a necessary clement of the offenn {18} On the other hand, thie Court in biheige © State recugnued the purpose for conmdernng pret criminal combuct in the tapelal mnloncing process w Wo ensure a pruyer character analyses lo determine jf the ullumate penalty of death should be yun! Specifically, we send [Whe tahews the purpose for considering aggravating amd mil\gating circumslan ve ts bo engage in a character analyse of the cefemdlant to ascertain whether the vilimate perialty @ called for on hes or her Vropenaty Wo commit » vient crimes surcly must be a val con suteration for the jury and the judge M6 So St at WO) The fact that an adjud) calwn of guill @ 4 prerequisite, as & lechn, cal element of the offense, le & conviction under the halutus! uffender statute, @ thus vf no analogous value W Ube instant com The word “convicted” ss used in section 92) 1405KL) means « vald guilty plea or jury verdet of guilty for « valent felony an edjudnation of guilt is nol necessary fur such « “conviction” to be consulered im the capital sentencing character analyses perlicular cam {19} The final sentencing weve concerns the appellant's atlempt lo prove im mitigs tuum under section 92) 141(/60b) thal he was under the infivence of extreme mental ur emwlwnal dulurbance st the Ume the l7a ———-— i McC KAR ¥ STATE Fle 3155 ( We os, Pha, 398 be de 114d ~twon” for the pur- MD), we reject any (fender statute set The habitual of. separate criminal h (a) @ determina- « & plea of guilty, fayo, 77 Se2d 620 was enacted by the vty from habitual the commiqnion of » Uneretofore con- crimes previously ‘tate, 9% So2d 304, new and separate “sljudication of «nt of the offense. ond, thee Court in od the purpose for | cumduct om the « w Ww efeure «@ + lo determine if death should be wad se for considering Ung Cortumelanc- arecter analyse of ram whether the od for um bes oF her wily © commit vi ot be « valid con- y and the judge o prove im miliga- (6Xb) that he was xtreme mental or ot the time the crimes were committed = in our view, the inal judge rejected this mitigating circum stance. The judge noted in his findings of fact that “the mitigating corcumslances are very minor” and that the agyravaling cir- cumstances “yreatly oulweigh any mitigat- ing corcumstances” As to this specific mit- igeling circumstance, however, the trial judge remarked that the doctor through whose testimony appellant submitted his proof, “cowk! nut with any degree of med)- cal curtainty” say that appellant satisfied the crtere of subsection (G4L) However, st os apparent bo us thal the jury must have found the miligeling circumstance lo earat There w ne other caplanation for thew ad- visury verdict in view of the heimous nature of the billing We find thew recommenda- wn has no reasnable base uorler the cir- cumstanoes of this coum (20,21) We rwalae the advisery recom. mendation of the jury must le accounted a greal weight, Tekh + State, 322 So 2d 9uB (Pla 1975), but in our view the decwwn of the trial puclge bo ripe (he cheath sentence over Uhe jury recommendation of life was in these circunmtames projet Hoy 6 Stats S53 So 2d 26 (Pia 1977) Dvblert + State, 328 So Bt 485 (Pla t970), aff'd 432 US SR 97 SCu Ley, 65 LL bal i Bea (1977), aff after Cantaer enter, JTS So Gd 108 (1979) Por the reasume capresed in this apinion, we affirm the ajqatiant’s convaetwn and sentence of death lt to ow ordered SUNDBERG, C J, and ADKINS, BOYD, OVERTON, ENGLAND and ALDEKMAN, JJ, concur SUNDBEKG, C J, concurs specially in result with an opinwn SUNDBERG, Chief Justice, concurring specially in result While I concur with the result reached by the majority, | must respectfully reguter my duagreement with one aspect of the opinwon = Based on the suthority of Robin- son v State, S73 Su Li By8 (Pla 1979), and Boykin v. Alabame, 985 US Zs, 8 SCi 1708, 23 L Ed Jt 274 (iv6¥), | agree that « fee Mme 4 18a plea of guilly to a violent felony properly may Le considered as an aggravating cir- cumstance under section 921 141(5\b), Flor- ida Statutes (1977) As stated in Boykin, such @ plea is more than a confession, “it is itself w conviction” 395 US. at 242, 89 S.Ct at 1711, 2) LEd 2d 274) Absent any suggestion by the defendant that the plea was involuntarily entered of the pendency of a motion Wo set it aside, the formality of entry of judgment and imposition of sen- tence by the Court should not be dispositive of the vitality of the conviction Where appeal of » conviction is ponding al the tume of sentencing under chapter 921, how- ever, quile another question i presented Consequently, | cannot subscrile to the more sweeping statement by the majority which rejects any analogy to the habitual offender statute, section 775.084, Florida Statutes (1975) My reasons for the view are expressed in my dissent in Peek v State, 39 Sod 492 (Fla 1960), and no useful purpose would be served by repeat ing them here ON REHRAKING PER CURIAM This cause was initially argued on March 5. 1975 Wt wus subsequently scheduled for reargument on Septemiar 20, 1977 Appel- lant’s counsel thereafter requested that this Court relinquish juridictwn so that he could file « petition fur pust-convichon re- hel under Rule of Criminal Procedure 3.850 on the ground thal « witnem committed perjury during tral We granted the re- quest and relquished jurmdiction by our order dated November 2, 1978 After an evidentiary hearing, the trial court denied appellant's petition for post-conviction re- lef Appellant filed a notice of appeal on March 6, 1979 The record was received by the Court, bul, through inadvertence, the briefs were not made available for Court review As stated in our origina) majorily opinion, “[a)ithough appellant filed » notice of appeal from that order, he has not in- formed thes Court of the grounds of his attach. Nevertheless, we have reviewed 1156 Fe 395 SUUTHERN KEPORTER, 2d SERIES the record of the rule 3.850 proceedings We ore satisfied that the trial judge cor- rectly ruled on the motwn and, accordingly, that ruling io affirmed.” (22) On this petition for rehearing, the briefs filed in the post-conviction proceed: erred in finding the witness's lestimony at trial to be true and the testimony at the post-conviction hearing (to te false The remaining points are depamlent yjuo the alleged erroneous finding We have re viewed the record of the pust-cunvictun relief proceeding in light of the assertions made in appellant's brief, and we have cur cluded that the evilence sulfawm w affirm the Wnekeourt’s finding Our opitr ion is corrected to reflect our conenieralion of the appellant's briwls The remaining issuce set furih in the petition for ruheanng are without mori and are denied it is so ordered SUNDBERG, CJ, and ADKINS, BOYD, OVERTON, ENGLAND an! ALUEKMAN, 4J., concur. DINERS CLUB, INC, Petitioner, .. Donald F. BRACHVOGEL et al, Respondents Ne. 57046. Supreme Court of Florida Oct. 30, 1980 As Modified on Denia! of Rehearing April 4, 198) Judgment debtor moved to st ssc default judgment on grounds that her hus 1. Art V, § MOMS) Fla Comet (1972) Land never tuld her about lawsuit resulting in jugewat that she was unaware of it, und that she had a legitimate defense. The District Court of Appell, Third District, 370 So. 2d 443, granted motion, and appeal was taken. The Supreme Court, McDonald, J., held that there was no abuse of discretion in trial judge vacating ‘efault upon claim againet moving party that excusable ne- gicct exuted for not answering Writ ducharged Overtun, J, concurred in result only Sundirg, C. J, and Englond, J, div wrtal Judgment 139 Troal judge did not abuse discretion in vacating default upon claim of moving par- ly that excusable neglect existed for not anawermng as the movant had pracuical basis fur not Umely snewering plus tendered de- fone upon which she mught prevail Arnold K Ginsberg of Horton, Perse & Ginsberg and Car! L. Laks, Miami, for pet- lwner Carol A Penetlo of Bradford, Withams, McKay, Kimbrell, Hamann, Jennings & Knokern, Miami, for respondents McDONALD, Justice This cause te before the Court on petition for wrt of certoran to review the decuiwn of the Third District Court of Appeal, re- ported at 370 So 2d 443 (Fla dd DCA 1979) The district court affirmed without opimun » circuit court order vacating & default judgment against Mro Brachvogel Find- ing apparent conflict between that decision and Barnett Bank of Clearwater, N. A ¥ Folsom, 306 So 2d 186 (Pla2d DCA 1975), we entertained junsdiction ' Diners Club sued the Brachvogels on their credit card aceount The Dade Coun- ly Sheriff served process ead complaint for 19a Eg ceeasEXSEEFE_“SSEFEEST. LEETESSE we2eereercsesaesinm © Supreme Court of Florida TUESDAY, SEPTEMBER 14, 1962 JAMES CURTIS McCRAL, oe Petitioner, a ve. ee CASE NO. 61,865 LOULE L. WAINWRIGHT, ee Reqpondent. ee se *e ** ** ** ** * Order on Motion for Rehearing ‘PER CURIAM. Respondent having filed @ motion for relearing of this matter, we hereby qranc the motion and vacate our decision and opinion qt Aoren 23, ise), ‘ are”: stad ‘ye ordered. ALDERMAN, C.):, ADKINS, BOYD and CHALICH, JJ., Concur OVENTON, SUADBERG and MCDONALD, JJ... Dissent Aes. A Trve Copy Js ce: ae WH. Osllinger, Esquire Robert J. Landry, Eaquire 20a Wo. 61,365 JAMES CURTIS McCRAL, Petitioner, vs. LOUIE &. WAINWRIGHT. Respondent (Septemper Li, 1982) ‘ On Rehearing Grarted PER CURIAM. This cause is before the Court on McCree’s petition for « WEit of habeas corpus and 4@ stay Of execution. Petitioner .4 now imprisoned under sentence of death pursuant to judgment and gentence affirmed by this Court in McCrse v. State. 395 So0.2¢ Lb43 (Ple.. cect. denied. 102 5. Ct. $8) (1981). Petitioner ceiees three issues going to the legality of bis judgment and sentence. The asserted grounds for relief are: (1) that the trial court committed fundamental error by sot fully instructing the jury on the elements of the underlying telony in thas felony @urcer case, (2) Chet petitioner's appellate counse. was sneffective in that he did not raise the seserted fundamental error on appeal. and (}) that this Court violated petitioner's fights by receiving non-record information concerning appellants in pending capitel eppesis. Petitioner was charged with first-degree murder. The indictment was in two counts (though there was but one nomicide), one charging premeditated surder and the other felony murder. The first count of the indictment read as follows: 2la @ (Olne JABES CURTIS McCRAE did unlawfully, teloniousiy and from @ premecitated design to effect tne ceatn of one MARGARET MEAAS,. did strixe, at, beuase and the 6444 MAARCAAET MEAAS, © « and thereby inflicting on and upon the nead or body of the said MAAGARET MEARS certain mortal wounds of whicn said @ortal wounds the said MARGARET MEARS 114 between October i), 197) and October 15, 197) 4:0: contrary to the statute iA such case mace and provided and rome the peece and dignity of tne Stace of florida. The secone count. charging felony Curser, was wOrsec 45 SO.,lows. (Olme JAMES CUYRATIS “SCCRAE fic saiawtully and feloniousiy effect re deat of 4MARGAALT MEARS in perpetrac: Or attempting to perpetrate @ cape, to-wit: dad unlawfully and feioniously cavisn and Garnaily know #8 female of mre than ten (10) years of eq@, CO-wit: MARGARET MEAAS Dy force and ags.ast Yer will, Contrary tO tne statute in buch case “ade and PSOVides and against the peace inc fignity of the State of Florida. for the Count charging petitioner with premeditated @usders, the court instructed the jury +f accordance with the etanders jury instructions. ith cegers to tae second count, charging felony murder, the court gave the following jeneral felony murder instruction. The giiiang of @ human being if Committing. of 4m attempting to commit any arson, rape, robbery, Durgiary. abominable and detestable Crime against Nature Of kidnapping is murder if the first seyree even though there 18 NO premec:tated