# Petition — Buddy Earl Justus v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1727%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1052 ## Text Case No. IN THE SUPREME COURT OF THE UNITED STATES BUDDY EARL JUSTUS, Petitioner, vs. STATE OF FLORIDA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA JERRY HILL PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT WILLIAM C. McLAIN Assistant Public Defender Chief, Capital Appeals Hall of Justice Building 455 N. Broadway Avenue Bartow, Florida 33830 (813) 533-1184 or 533-0931 COUNSEL FOR PETITIONER BUDDY EARL JUSTUS, Petitioner, vs. STATE OF FLORIDA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA QUESTION PRESENTED Whether the addition of an aggravating circumstance to Florida's death penalty statute inures to the benefit of capital offenders, thereby preventing retroactive application of the aggravating circumstance from violating the federal ex post facto prohibition? a ; 2 OPINIONS BELOW JURISDICTION OF THE SUPREME COURT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE REASONS FOR GRANTING THE WRIT CONCLUSION APPENDIX 1. inion of the Supreme Court of Florida, Justus v. State Order denying Petitioner's Motion for Rehearing Section 921.141, Florida Statutes (1977) Section 921.141, Florida Statutes (1979) Indictment Judgment and Sentence Findings in Support of Sentence of Death CERTIFICATE OF SERVICE ; . “J A g Al8 Al19 A22 A25 A27 Combs v. State 403 So.2d 418 U.S. 984, 102 S.Ct. 2258, 7Z L.Ed.2d 862 (1982) (Fla.1981), cert.den., 456 Furman v. eres Justus v. State 8 la.1983) Proffitt v. Florida G28 U.S. 242 (1976) Smith v. State Z2G So.2a0 726 (Fla.1982), cert.den., _ 0.8... 77 L.Ed.2d 1379 (1983) State v. Dixon U.S. 943 (1974) Weaver v. Graham G50 U.S. 24 (1980) Art. I, §9, U.S. Const. a.1973), cert.den., 416 Title 28 United States Supreme Code, §1257(3) Rule 17, United States Supreme Court Rules §921.141, Fla.Stat. (1977) §921.141(5), Fla.Stat. (1977) §921.141, Fla.Stat. (1979) §921.141(5) (i), Fla.Stat. (1979) Tr wt OF er. FF OCU " eof’ > The opinion and judgment of the Supreme Court of Florida sought to be reviewed via this petition is reported as Justus v. State, 438 So.2d 358 (Fla.1938), and is also re- produced in the appendix. (Al-17) JURISDICTION OF THE SUPREME COURT The Supreme Court of Florida issued the opinion and judgment in this case on September 1, 1983. (Al-17) Petitioner filed a motion for rehearing which was denied on October 26, 1983. (Al8) Petitioner asserted below and asserts here a de- privation of his rights as guaranteed under the United States Constitution. Title 28 United States Code, Section 1257(3), and Rule 17 of the United States Supreme Court Rules ¢onfer certiorari jurisdiction in this Court to review the judgment in this case. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. Article I, Section 9, of the United States Consti- tution which in part reads: No Bill of Attainder or ex post facto Law shall be passed. 2. Section 921.141, Florida Statutes (1977), which is set forth in the appendix. (Al19-21). 3. Section 921.141, Florida Statutes (1979). which is set forth in the appendix. (A22-24) STATEMENT OF THE CASE On October 17, 1979, a grand jury in Pasco County, Florida, indicted Petitioner for first-degree murder, robbery, kidnapping and sexual battery. (R46-47) (A25-26) At the jury trial held February 5 through 8, 1980, the state presented the following evidence. (R651-1713) she . On October 6, 1978, Stephanie Michelle Hawkins, a wholesale distributor of sunglasses, called upon one of her customers at a drug store in a Tampa-area shopping center. (Al) While she was in her van in the parking lot, Petitioner ap- proached, took over control of the van at gunpoint, and ab- ducted Ms. Hawkins using her automobile. (Al) Dale Goins, Petitioner's companion and co-defendant, followed them driving Petitioner's car. (Al) They drove out into the county and went down a dirt road in Pasco County. (Al) There, the jury could have concluded from the evidence, Petitioner raped Ms. Hawkins and Goins stole sunglasses from her van and put them in Petitioner's car. (Al-2) Then Petitioner shot the victim twice in the head, killing her. (Al) The next day, Petitioner and Goins went to Georgia where they abducted another woman from a shopping center parking lot. (A2) They took her to a secluded, outlying area where Goins committed sexual battery upon her after which Petitioner shot and killed her. (A2) Petitioner was subsequently arrested in Virginia. (A2) After being advised of his fifth amendment rights, Petitioner confessed to the Georgia and Florida murders. (A2-3) He also confessed to an earlier murder which had occurred in Virginia. (A2-3) In his confession to the Florida murder, Petitioner said that he picked up the victim in the parking lot of an Eckerd Drugs store in Tampa. (A3) He drove her van to a bank so the woman could cash a check and give appellant some money. (A3) The bank declined to cash her check, so they went to another Eckerd's where she obtained some cash. (A3) Then they went out into the country. (A3) Appellant said that he and the victim engaged in sexual relations with her consent. (A3) Then, however, she tried to reach for his gun, they struggled, and the gun discharged, wounding her in the head. (A3) Then he shot her again and he and Goins left the area. (A3) - Upon the conclusion of the trial Petitioner was found ce guilty as charged. (R308-311) The jury recommended and the trial judge imposed the death penalty for the murder. (R318,346) (A27) On the other charges the judge imposed three life sen- tences, concurrent with each other but consecutive to the death sentence. (R343-345) In support of the death sentence the trial judge found two statutory aggravating circumstances: (1) the murder was committed during the course of a robbery, kidnapping and sexual battery; and (2) the murder was committed in a cold, calculated, and premeditated manner without any moral or legal justification. (R426-428)(A28-30) He found no mitigating cir- cumstances. (R426-428) (A28-30) On appeal to the Supreme Court of Florida Petitioner argued that use of the aggravating factor cold, calculated, and premeditated without any pretense of moral or legal justi- fication, which had been added to the capital sentencing law after his offense but before his trial, violated the federal ex post facto prohibition. (Al5) The court rejected the argu- ment. (Al5) It relied on its decision in an earlier case raising the same issue where it reasoned that the new aggravating circumstance inures to the benefit of offenders since it limits use of premeditation as an aggravating factor. (Al5) The court affirmed Petitioner's convictions and sentences in the judgment now before this Court. (Al16) REASONS FOR GRANTING THE WRIT Florida was one of the first states to enact a new ' death penalty statute after this Court in Furman v. Georgia, 408 U.S. 238 (1972), struck down most of the then existing : death penalty statutes. And, Florida's new statute was one of the first approved by this Court. Proffitt v. Florida, 428 lation and because of the frequency with which the death penalty U.S. 242 (1976). Because of Florida's early, successful legis- 3 : has been litigated in Florida, the other states have looked to -6- ae ee eee Florida in enacting and construing their own statutes. There- fore, the Supreme Court of Florida's interpretation of any newly enacted provision of the State's death penalty statute has importance in other states, as well as Florida. Prior to 1979 Florida's death penalty statute, Section 921.141(5), Florida Statutes (1977), provided eight possible aggravating circumstances, as well as seven possible mitigating circumstances. Subsection (i) of Section 921.141(5), Florida Statutes, which became effective July 1, 1979, added as a ninth aggravating circumstance: (i) The capital felony was a homicide and was committed in a cold, calculated, and premedi- tated manner without any pretence of moral or legal justification. Since subsection (i) became effective, the Supreme Court of Florida has consistently applied it to capital offenders whose offenses took place before the effective date. See, Justus v. State, 438 So.2d 358 (Fla.1983); Smith v. State, 424 So.2d 726,733 (Fla.1982), cert.den., _U.S.__, 77 L.Ed.2d 1379 (1983); Combs v. State, 403 So.2d 418,421 (Fla.1981), cert.den., 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). The Florida court has taken the position that subsection (i) is not ex post facto because it inures to the benefit of capital of- fenders. 403 So.2d at 421. The court's reasoning is that subsection (i) limits use of “premeditation” as an aggravating factor by adding the requirement tiat in order to consider the elements of a premeditated murder as an aggravating circumstance the premeditation must have been cold,calculated and without any pretense of moral or legal justification. Id. The court's reasoning is invalid because prior to 1979 Florida's death penalty statute did not list premeditation as an aggravating circumstance which could be used in sentencing. See, Section 921.141(5), Florida Statutes (1977). Thus, sub- section (i) adds a new aggravating circumstance. Although in Florida the decision to impose death is a weighing process and % . - 2 Tr. 1 8 _ wine Sad ieee e 2 not a mere summation of aggravating and mitigating factors, see, State v. Dixon, 283 So.2d 1 (Fla.1973), cert.den., 416 U.S. 943 (1974), the clear effect of finding the new aggravating circumstance in any given case will be to increase the likelihood that death will be imposed. Thus, in a separate opinion in Combs v. State then Chief Justice Sunberg, joined by Justices England and McDonald, wrote: I must confess that it is beyond my powers of comprehension to understand how the majority can seriously contend that the addition of subsection (i) as an aggravating circumstance “inure[s] to the benefit of a defendant." 403 So.2d at 422 n.3. This Court recently stated that whether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question. Weaver v. Graham, 450 U.S. 24,33 (1980). Petitioner believes that the Supreme Court of Florida has wrongly decided an important federal issue. CONCLUSION For the reasons stated, Petitioner asks this Court to Respectfully submitted, \ \ BY: ACH! z Assistant Public Defender Chief, Capital Appeals Hall of Justice Building 455 North Broadway Avenue Bartow, Florida 33830 (813) 533-1184 or 533-0931 grant a writ of certiorari. Member Of The Bar Of The United States Supreme Court h ~~ OD Ww Hk WwW Opinion of the Supreme Court of Florida, Justus v. State Order denying Petitioner's Motion for Rehearing Section 921.141, Florida Statutes (1977) Section 921.141, Florida Statutes (1979) Indictment Judgment and Sentence Findings in Support of Sentence of Death \ Al8 Al9 A22 A25 A27 A28 ee Supreme Court of Floriva No. $8,912 BUDDY EARL JUSTUS, Appellant, vs. STATE OF FLORIDA, Appellee. {September 1, 1983] BOYD, J. This cause is before the Court on appeal from a circuit court judgment adjudicating appellant guilty of first-degree murder, robbery, kidnapping, and sexual battery, and sentencing him to death. We have jurisdiction of the appeal. Art. V, § 3(b) (1), Pla. Const. On October 6, 1978, Stephanie Michelle Hawkins, a wholesale distributor of sunglasses marketed by Visual Scene, Inc., called on one of her customers at a drug store in a Tampa~area shopping center. While she was in her van in the parking lot, appellant approached, took over control of the van at gunpoint, and abducted Ms. Hawkins using her automobile. Dale . Goins, appellant's companion and co-defendant, followed then driving appellant's car. They ¢rove out into the country and went down a dirt road in Pasco County. There, the jury could have concluded from the evidence, appellant raped Ms. Hawkins and Goins stole sunglasses from her van and put them in appellant's car. Then appellant shot the victim twice in the head, killing her. _ 4 — \. 3 ae - = =k» — =e > * Case No. BY -5956 IN THE RECEIVED SUPREME COURT OF THE UNITED STATES DEC 20 1983 OFFICE OF THE CLERK i SUPREME COURT, U.S. BUDDY EARL JUSTUS, Petitioner, vs. STATE OF FLORIDA, Respondent. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS Petitioner, Buddy Earl Justus, asks leave to file the attached Petition for Writ of Certiorari to the Supreme Court of Florida without prepayment of costs and to proceed in forma pauperis pursuant to Rule 46. In support of this motion, Petitioner states that: 1. He was convicted on February 26, 1980, in the Circuit Court for Pasco County, Florida, for first degree murder, kidnapping, robbery and involuntary sexual battery. 2. He received a sentence of death for the first degree murder and is presently in custody in Virginia pursuant to judgment and sentence in that state. 3. He appealed to the Supreme Court of Florida, and that Court affirmed all of his convictions and sentences. 4. He has been represented by appointed counsel throughout his state court appeal proceedings. Respectfully submitted, Assistant Public Defender Chief, Capital Appeals PECEIVED Case no. 88-5956 DEC 20,1983 IN THE Wessas vt inc ULERK SUPREME COURT OF THE UNITED STATES SUPREMT “ono y§ BUDDY E. JUSTUS, Petitioner, vs. STATE OF FLORIDA, Respondent. AFFIDAVIT IN SUPPORT OF PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS I, BUDDY E. JUSTUS, being first duly sworn, depose and say that I am the Petitioner in the above-styled case; that in support of my motion to proceed on my Petition for Certiorari without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or give security therefor; and that I believe I am entitled to redress upon the issues presented in the Petition for Writ of Certiorari. I further affirm that: l. I was convicted on February 26, 1980, in the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, for first degree murder, kidnapping, robbery and invol- untary sexual battery in a single jury trial. 2. I received a sentence of death for the first degree murder charge, and am presently in custody in Virginia pursuant to judgment and sentence in that state. 3. I appealed to the Supreme Court of Florida and that Court affirmed all of my convictions and sentences. 4. I am not employed and have no source of income. 5. I do not have any real estate, stocks, bonds, notes, automobiles or any other valuable property. 6. I have been represented by appointed counsel throughout my state court proceedings. I understand that a false statement or answer to any question in this Affidavit will subject me to penalties for perjury. Subscribed and sworn to before me this day of Pit. i ; “) fa . Zo, Se ree _ Ny Commission Expires: a 1 NWSE = CERTIFICATE OF SERVICE I, WILLIAM C. McLAIN, a member of the Bar of the Supreme Court of the United States and counsel of record for BUDDY EARL JUSTUS, the Petitioner, hereby certify that on December 19, 1983, pursuant to Supreme Court Rule 28, I served a single copy of the foregoing Motion for Leave to Proceed in Forma Pauperis with attached Affidavit of Insolvency on each of the parties as follows: On the State of Florida, The Respondent, by depo- siting said copy in the United States Post Office, Bartow, Florida, with first class postage prepaid, properly addressed to Theda Davis, Assistant Attorney General, Park Trammell Building, 1313 Tampa Street, 8th Floor, Tampa, Florida 33602 /\ ia . be—— Assistant Public Defender Chief, Capital Appeals Hall of Justice Building 455 North Broadway Avenue Bartow, Florida 33830 (813) 533-1184 or 533-0931 COUNSEL FOR PETITIONER --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1727%3A1. Public record. Not legal advice.