Opposition Brief — Florida v. Torres
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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
NO. 65—F975
" 95-1978
THE STATE OF FLORIDA,
Petitioner,
vs.
URBANO TORRES,
Respondent.
Supreme Ceurt. U.S.
rILLE®
JUN 28 1986
JOSEPH F. SFAI.IOL, JR.
CLERA
RECEIVED |
JUN 23 1996; |
OFFICE CF THE CLERK,
SUPREME COURT. U.S
ON PETITION FOR WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
THIRD DISTRICT
BRIEF OF RESPONDENT IN OPPOSITION
Respectfully submitted,
BENNETT H.
BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
ELLIOT H. SCHERKER
Assistant Public Defender
Counsel for Respondent
ae
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES... ..cccccccvcceece eocccevccce cocccce es
STATEMENT OF THE CASE.....-cce Coc ce cece cece cc ccccccccces 1
REASONS FOR DENYING THE WRIT... cc cccccccccces cocccccecce 6
CONCLUSION. ..cccccecee COC eee Reese eed Dee EEE EOE SSO ES OSEOS |
TABLE OF CITATIONS
PAGE
ANDREWS V. STATE
160 So.2d 726 (Fla.App. 1964)........ vanes ch micediaa wide 10
ASHLEY V. STATE
158 So.2d 530 (Fla.App. 1963).......e- iv emvencateuekesnann Oe
BOYKIN V. ALABAMA
Se ny Da cacodsneéhean<thsaewns Gendveswtkane 6, 8
EX PARTE AMOS
ees ee, NE SUNT nc os deb ed ece sav enous cases 10
THE FLORIDA BAR RE RULES OF CRIMINAL PROCEDURE
SEE ce SOEE UUs STE ia Fcdbectceccicavenccceucese eee re 9
THE FLORIDA BAR RE AMENDMENT TO RULES OF
CRIMINAL PROCEDURE (RULE 3.850)
460 S0.2d 907 (Fla. 1984)....ceseecees ey ey a ies onee we 9
GIDEON V. WAINWRIGHT
292 Ue SES FIGER kc ceu css Se awa rae ON he Ser a aa 9
HILL V. LOCKHART
i a Oe, OO PEOORS is cles caeewabinnen 7. is
IN RE FLORIDA RULES OF CRIMINAL PROCEDURE
196 So.2d 124 (Fla. 1967)...... cue veeGeRcneiks EE Or er ae 9
IN RE FLORIDA RULES OF CRIMINAL PROCEDURE
TE EE Oe ee. eae peer ieeuas Cane eeke 9
LeDUC V. STATE
Sie ce ee Ws SOR ck ccckwceceadscaseesbiseoiessanwes ~
KNIGHT V. STATE
Se ee ee SG ic vavcas ue aeudbareneeeene ce ¥en 7, 8
MIKENAS V. STATE
460 So.2d 359 (Fla. 1984).......... EP re OE A ey Ee RE a
NOVA V. STATE
as ee ee Se WOUNE so sons osu bce nae dee coueauebns cen 10
ROBINSON V. STATE
ee SE Es STS coc cbenavkccandvaseukesacaueesa a aa
ROY V. WAINWRIGHT
SES Gi Oe Ee UUs SOG acc ae caceecscesse (aiuebesoawaveus .9
SAG HARBOUR MARINE, INC. V. FICKETT
S64 Go. BE 1256 (FIR. Lot OCA 1906). 0c ccc ccccccccccccccvecces vaull
SAMPSON V. STATE
SUN eit Fak Fede. BOG i is das eccdacccecaes. eee ee 10
SNEED V. MAYO
i re PONG ns oN aweR anes Shee meeee ee Mb et 10
STATE V. STACEY
482 So.2d 1350 (Fla. 1985).......... Pepe Te sa peeneneeeae 10
STATE V. WILSON
305 60.38 GOO 1FIR. 1981). 0c sce isciecccas jatewnedeeveaeuneeee z
STRICKLAND V. WASHINGTON
ee eae 2 eee packets ieececkeuauae
={i-
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
NO. 85-1975
THE STATE OF FLORIDA,
Petitioner,
vs.
URBANO TORRES,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL OF FLORIDA,
THIRD DISTRICT
BRIEF OF RESPONDENT IN OPPOSITION
The respondent, Urbano Torres, files this brief in opposi-
tion to the petition for writ of certiorari filed by petitioner
in this cause.
STATEMENT OF THE CASE
The petitioner's statement of the case sets forth an
accurate recital of the procedural history of the case.
Respondent's Statement of the Case will be limited to a
recitation of pertinent factual aspects of the proceedings.+
At the commencement of the plea proceedings on October 4,
1983, in Dade County Circuit Court, the prosecutor announced that
the parties had negotiated a guilty plea to first-degree murder,
as charged in the indictment filed in the case, and had agreed
upon a sentence of life imprisonment for that offense, with a
concurrent sentence on a jointly-charged robbery count to be left
to the court's discretion (P.A. 33). Respondent was then sworn,
as was an interpreter to translate the proceedings for him (P.A.
33), and the following then transpired:
1
The symbol "P.A." will designate petitioner's appendix and the
symbol "R.A." will designate respondent's appendix.
-l-
The Court: All right.
Mr. Torres, please state your name, for
the record.
The Defendant: . . . Urbano Torres.
The Court: How old are you, please?
The Defendant: Twenty years.
The Court: Mr. Torres, are you aware of
the charges against you?
The Defendant: Yes, I am.
The Court: Your attorney has indicated
at this time you are going to enter a plea to
the matter of guilty with the understanding
the Court will sentence you to life, 25 years
minimum mandatory. That this was negotiated
with that [sic] the State was seeking the
death penalty in your case as you are well
aware.
Additionally, this case involved
confessions and certain legal issues that have
already been litigated by the Court; already
[resolved] by the Court against you, and your
[sic] electing, at this point, to enter a plea
after having fought the case up to this point;
is that correct?
(P.A. 33-35). Respondent did not answer the court's question,
and the court then asked again, "You're entering this plea of
guilty; is that correct?" (P.A. 35). There was again no
response, and counsel for respondent requested an opportunity to
speak with him; this was granted by the court (P.A. 35).
Thereafter, the following transpired:
Mr.Novick [assistant state attorney]:
Judge, back on Urbano Torres' case.
The Court: Mr. Torres, there are certain
rights that you are giving up by entering this
plea. You are giving up the right to a triai
by jury. The right to be tried by the Court
and you are also giving up the right to have
your case appealed. That is to appeal the
judgment and sentence of the Court if we were
to, but which we are not having a trial.
You are stipulating to a prima facie
case of guilt here and need --
Mr. Novick: I would ask the Court to
{rely] on what we heard yesterday.
The Court: I think we did hear during
the suppression [hearing], no objection
utilates [sic] those factors; [for] the
purpose of finding a prima facie case of
guilt.
The Court should further point out that I
was made at least aware that there were at
least, even if the lawyers differ, as how they
would be weighed in terms of death. What the
State considered to be five good aggravating
-- one of which is involvement in the other
similar type of case in the past. ... But
there was a death involved; was there not?
Mr. Novick: Correct. Wasn't similar.
In fact there was in Los Angeles.
The Court: Mr. Torres, under the
circumstances, is this what you are going to
do?
The Defendant: Yes.
(P.A. 35-37). The court then inquired of respondent's counsel,
an Dian
who agreed that he was satisfied that respondent understood "the
nature of this and appreciate[d] the consequences of his guilty
plea" (P.A. 37), after which the court imposed sentence (P.A. 37-
38).
Respondent filed his pro se motion for post conviction
relief, pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure, on November 8, 1983, approximately one month after the
plea proceedings (P.A. 19-29). The motion alleged, in part, that
the conviction had been “obtained by [a] plea of guilty which was
not made voluntarily with the understanding of the consequences
of the plea." (P.A. 25). The supporting facts were alleged as
follows:
Defendant pleaded guilty on the basis of
threats by the police that he would certainly
receive the death penalty if he did not do
so. When he asked his attorney for advice, he
was told the same thing. Seeing no possible
way to win in this situation, since his Court-
appointed counsel did not appear to be willing
to use his full abilities to prevent a con-
viction, and given the threats of the police,
the Defendant unwillingly pleaded guilty.
(P.A. 25-26).? The trial court appointed counsel to represent
respondent, and afforded him an evidentiary hearing on the motion
on February 6, 1984 (R.A. 1-57).
Respondent testified at the hearing, through an interpreter,
that he is 20 years of age, that he had come to the United States
from Cuba four years earlier, that he had completed the seventh
grade in Cuba, and that he can neither speak nor write in English
(R.A. 3, 9-10). Respondent described his conversation with his
trial counsel, Mr. Fields, prior to the plea proceedings as
follows:
(T)hree or four days before I was sentenced,
the attorney .. . went to the cells there
down below and he told me that they were
asking for the electric chair for me.
I told him that I was innocent, that,
please, to do something for me. He said, no,
I can't do anything for you. And he said to
me, you are going to plead guilty? And I said
2
A second claim in the motion asserted that respondent's
conviction had been “obtained by use of [a] coerced confession",
asserting that his post-arrest statement had been secured by
threats that a death sentence would be imposed if he failed to
confess (P.A. 26).
yes. He said, why? That is because I have no
family here and I was scared that mother
should find out that they had -- that they had
put me in the electric chair.
(R.A. 8). Respondent stated that his counsel had told him that
the circumstances of the case and his prior record were such that
the trial judge would be likely to impose a death sentence (R.A.
17-18).
Respondent stated that he had had a conversation with Mr.
Fields in the jury room on the morning of October 4, 1983, with
the assistance of an interpreter (R.A. 24). He was questioned as
follows by the prosecutor regarding the plea colloquy:
Q. Now, after you spoke to Mr. Fields
with the interpreter on Tuesday, you came out
in front of the Court, this Judge right here,
right?
A. Yes.
* * *
Q. And the Judge asked you a lot of
questions, right?
A. To me? No. To the lawyer. I didn't
speak that day.
Q. You didn't speak that day at all?
A. I spoke when I did this with my hand
Q. When you took the oath, you talked
and you talked no more?
A. No. No.
Q. Do you remember the judge...
asking you whether or not you wanted to plead
guilty?
A. I remember that he asked me, but I
plead guilty because the lawyer had told me
that if I didn't they were going to give me
the electric chair.
Q. * * * You do remember him asking you
if you wanted to plead guilty?
A. Yes.
Q. And your answer, at least on that
Tuesday, was yes?
A. Yes.
* * x
Q. And the judge asked you for your age
and a little bit about your education back-
ground, right?
A. Yes.
Q. He asked you whether you were taking
any drugs or had anything wrong with your
head, right?
A. Yes. I think so. Yes.
* * *
Q. He asked you whether you understood,
if you did plead guilty, that this was an
agreement, a deal, which your attorney had
worked out with me to save you from the
electric chair and that you would have to
spend at least 25 years in jail; the Judge
-4-
asked you whether you understood what you were
going to have to do. Do you remember that?
A. Yes. I remember.
Q. . . . You remember the judge asking
you whether or not everything [counsel] did
was okay with you, you were satisfied with him
and you said, yes, it was okay with you?
A. No, I don't remember.
(R.A. 24-26).
Mr. Fields testified that he had prepared respondent's case
for trial, and had had several conversations with him during the
course of which he advised respondent that the state had suffi-
cient proof to proceed with a first-degree murder prosecution and
a sentencing phase (R.A. 30-31). Mr. Fields recalled his conver-
sation with respondent on the morning of the plea proceedings
(R.A. 34), and testified that "[i]t was my opinion that I
couldn't win the case, and .. . I certainly could have told him
that." (R.A. 38). He also testified that respondent had main-
tained his innocence, but had expressed his willingness to accept
the negotiated plea to a life sentence (R.A. 33-34, 37-38). Mr.
Fields did not specifically recall the plea colloquy (R.A. 34).
At the conclusion of the hearing, the prosecutor advised the
trial court that he had ordered transcription of the plea
proceedings (R.A. 43-44). The transcript was thereafter obtained
and presented to the trial court (R. 48). The court denied the
motion for post-conviction relief on March 16, 1984, without
stating any findings of fact or conclusions of law (R.A. 54).
The written order entered by the court states that "the allega-
tions contained [in the motion] do not constitute legal grounds
for granting a ([njew [t])rial . «+ ." {Pras 30532).
On appeal, respondent asserted that the colloquy at the time
of the plea proceedings had been insufficient to establish a
knowing and intelligent waiver of the rights which were abandoned
by the plea, under both federal and Florida law (R.A. 72-77).
Respondent's brief noted the supporting facts which had been
alleged in his pro se motion, and he asserted that Florida
procedural law entitled him to a liberal construction of those
allegations and to present this claim (R.A. 72-73). In response,
petitioner contended that the plea colloquy had satisfied
“minimum due process standards", and that Florida procedural
-S-
rules required respondent to demonstrate prejudice from any
deficiency in the plea proceedings (R.A. 87-89).
In reversing the trial court's order, the state appellate
court held that "the trial court indisputably failed to establish
that the defendant's entry of a guilty plea to the charges
against him was knowingly and voluntarily made with an under-
standing of the consequences." (P.A. 2; citations omitted) .3
Petitioner's motion for rehearing asserted that Hill v.
Lockhart, __U.S.__, 106 S.Ct. 366 (1985), establishing the
standard for review of guilty pleas challenged on the ground of
ineffective assistance of counsel, was controlling, and that
respondent's failure to prove prejudice disentitled him to
relief. (P.A. 13). The motion for rehearing was summarily
denied (P.A. 3).
REASONS FOR DENYING THE WRIT
THE STATE APPELLATE COURT, WHICH WAS EMPOWERED
BY FLORIDA LAW TO ADDRESS THE VOLUNTARINESS OF
RESPONDENT'S GUILTY PLEA ON HIS APPEAL FROM
THE STATE COURT'S DENIAL OF HIS MOTION FOR
POST-CONVICTION RELIEF, WAS NOT COMPELLED BY
THE UNITED STATES CONSTITUTION TO ALSO ADDRESS
ANY CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
WHICH MAY HAVE BEEN IMPLICITLY RAISED IN THE
MOTION.
Respondent's pro se motion for post conviction relief
asserted that his conviction had been “obtained by [a] plea of
guilty was not made voluntarily with the understanding of the
consequences of the plea." (P.A. 25). The state appellate court
ruled that the record of the case supported this claim, holding
that the state trial court had “indisputably failed to establish
that the defendant's entry of a guilty plea to the charges
against him was knowingly and voluntarily made with an under-
standing of the consequences." (P.A. 2; citations omitted).
Petitioner contends that the state court, in passing upon this
Claim, was obligated by the federal constitution to apply the
Standards enunciated in Hill v. Lockhart, U.S.» 106 S.Ct.
The decision cited to Boykin v. Alabama, 395 U.S. 238 (1969),
and Williams v. State, 316 So.2d 257 (Fla. 1975).
-6-
366 (1985), and that its failure to do so presents a consti-
tutional question reviewable in this Court on a writ of
certiorari.
Hill v. Lockhart applied the standards of Strickland v.
Washington, 466 U.S. 668 (1984), to a claim that a defendant's
counsel had rendered ineffective assistance of counsel in
connection with a guilty plea, and set forth the rule that a
defendant must allege and demonstrate “prejudice” arising from
the derelictions of counsel, i.e., “that there is a reasonable
probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial." 106
S.Ct. at 369-70 (footnote omitted). This is the rule which
petitioner asserts the state appellate court was constitutionally
compelled to apply in passing upon the merits of respondent's
Claim. Petition for Writ of Certiorari at 10-14.
The most fundamental flaw in petitioner's argument is that
respondent never raised a claim of ineffective assistance of
counsel in his post-conviction motion, but challenged the guilty
plea only on the ground that it had been involuntarily entered
(P.A. 25). Under Florida law, a post-conviction motion which
challenges the effectiveness of counsel's assistance, to be
legally sufficient, must specifically allege the following: (1)
“the specific omission or overt act" upon the claim is based, (2)
that the omission or act "was a substantial and serious
deficiency measurably below that of competent counsel", and (3)
that the deficiency caused substantial prejudice to the
defendant. Knight v. State, 394 So.2d 997, 1001 (Fla. 1981).4
Respondent's motion was thus wholly insufficient to raise an
ineffectiveness-of-counsel claim under Florida law, inasmuch as
it did not even assert the claim in the first instance (P.A.
25). On the other hand, the motion certainly did raise the claim
that the guilty plea had been involuntarily entered, without a
While the depiction of the prejudice standard in Knight varies
to some degree from that enunciated by this Court in Strickland
v. Washington, the Supreme Court of Florida has held that the two
Standards are co-extensive. Jackson v. State, 452 So.2d 533, 535
(Fla. 1984).
full understanding of the consequences thereof (P.A. 25).°
The Supreme Court of Florida has expressly held that an
involuntary-plea claim is not to be reviewed under the standards
applicable to an ineffectiveness-of-counsel claim. LeDuc v.
State, 415 So.2d 721, 722-23 (Fla. 1982)(substantive challenge to
guilty plea requires demonstration of “manifest injustice";
ineffectiveness-of-counsel challenge to guilty plea reviewable
under Knight standard). Thus, the two claims are separate and
distinct under Florida law, and Hill v. Lockhart, addressing as
it did only the standard for review of an ineffective-assistance-
of-counsel claim, is irrelevant to the issue presented to the
state appellate court in this case.
It appears, then, that the heart of petitioner's argument is
simply that the facts alleged in respondent's pro se motion did
not address the issue decided by the state appellate court, and
that the court, instead of holding the guilty plea
unconstitutional under Boykin v. Alabama, 395 U.S. 238 (1969),
and Williams v. State, 316 So.2d 267 (Fla. 1975),° was somehow
constitutionally required by Hill v. Lockhart to evaluate the
claim as one challenging the effectiveness of trial counsel's
assistance. Petition for Writ of Certiorari at 13-14./ The
5
A motion for post-conviction relief is indisputably the proper
veliicle for presenting this claim to the Florida courts. 6&.g.,
Mikenas v. State, 460 So.2d 359 (Fla. 1984); State v. Wilson, 395
So.2d 520 (Fla. 1981); Robinson v. State, 373 So.2d 898 (Fla.
1979).
6
Williams established the rules governing guilty-plea
procedures in Florida, and held that an accused must be advised
“that entry of a guilty plea constitutes a waiver of certain
constitutional rights, specifically his right to remain silent,
have a jury trial, have process to obtain witnesses on his
behalf, and confront witnesses who are his accusers." 316 So.2d
at 271.
7
Ferhaps the reason that the court did not address Hill in its
decision is that petitioner did not raise this argument in its
brief on appeal; rather, petitioner argued, initially, only that
the plea colloquy and satisfied “minimum due process standards",
and that Florida procedural rules required respondent to
demonstrate prejudice from any deficiency in the proceedings
(R.A. 87-89). Petitioner first raised an argument based upon
Hill v. Lockhart in its motion for rehearing (P.A. 13), at a time
when the state court, under Florida law, was not required to
consider the argument. E.g., Sag Harbour Marine, Inc. Vv.
Fickett, 484 So.2d 1250, 1256 (Fla. lst DCA 1986)("“a party cannot
(Cont'd)
-8-
eS mn oe
premise of petitioner's argument in this regard is correct:
respondent's motion seems to have been directed, at least in his
statement of the facts underlying his claim, to a theory of overt
coercion by state officers and a lack of enthusiasm on the part
of his counsel (P.A. 25-26). However, the pertinent facts were
brought before the state triai court by the parties, that is, the
transcript of the plea proceedings was prepared and presented to
the court, and faccs pertinent to the colloquy were elicited from
respondent at the hearing, largely through the efforts of the
prosecutor on his cross-examination (R.A. 24-26, 48). And the
power of the state appellate court to address the claim, once it
was raised on respondent's appeal, is firmly established by state
law.
Rule 3.850 of the Florida Rules of Criminal Procedure, in
its original incarnation as Criminal Procedure Rule No. 1, was
promulgated, in the wake of Gideon v. Wainwright, 372 U.S. 335
(1963), to supplant habeas corpus as the primary vehicle for
post-conviction litigation in Plorida. Roy v. Wainwright, 151
So.2d4 825, 826-29 (Fla. 1963).% The Florida Supreme Court
declared, immediately after its promulgation of the rule, that
the "relief available” thereunder was to be “coextensive with
that which would be available in habeas corpus." Gideon v.
Wainwright, 153 So.2d 299, 300 (Fla. 1963). It was a hallmark of
Florida habeas corpus law that pro se petitions were to be
present arguments in a motion for rehearing that have not been
presented to the court in the appellate briefs or oral
argument").
Rule No. 1 was codified as Fla.R.Crim.P. 1.850 in the 1967
adoption of the Florida Rules of Criminal Procedure, without any
substantive amendments to the original rule. In re Florida Rules
of Criminal Procedure, 196 So.2d 124, 167-68 (Fla. 1967). The
rule was renumbered as Rule 3.850 in 1971, again without any
amendments. In re Florida Rules of Criminal Procedure, 253 So.2d
421 (Fla. 1971). In 1977, the Florida Supreme Court amended the
rule to add certain procedural requirements for post-conviction
motions. The Florida Bar Re Rules of Criminal Procedure, 343
So.2d 1247, 1264-65 (Fla. 1977). This version of the rule, which
was in effect at the time of the post-conviction proceedings in
this case, was more recently amended by the addition of a two-
year limitations period and other procedural changes. The
Florida Bar Re Amendment to Rules of Criminal Procedure (Rule
3.850), 460 So.2d 907 (Fla. 1984). However, the substance of the
rule and the relief available under its provisions have remained
the same from the time of its initial promulgation.
-9-
liberally construed, both in form and substance, e.g. Sneed v.
Mayo, 66 So.2d 765, 870 (Fla. 1953); Ex parte Amos, 93 Fla. 5,
112 So. 289, 291-92 (1927), and this rule was held fully
applicable under the newly-adopted post-conviction procedure in
Rule No. 1:
In processing a motion under Criminal
Procedure Rule No. 1, it must always be borne
in mind that such motions filed by a prisoner
pro se should not be scrutinized for technical
niceties, since a prisoner is almost always
unskilled in the law and cannot be held to a
high standard of pleading. .- - It must
further be borne in mind that in order to
effectuate the announced purposes of Criminal
Procedure Rule No. 1.. . the procedure and
remedy so prescribed must be such that a
prisoner may be afforded every procedural
benefit available under habeas corpus and
necessary to a meaningful investigation of his
claim. The courts have the task, therefore,
of adapting the procedure to the peculiarities
and irreguiarities of motions which obviously
state valid claims. Thus, as a matter of
pleading, such motions should be treated with
the same liberality as that historically
granted by courts in entertaining applications
for habeas corpus. ..- +
Ashley v. State, 158 So.2d 530, §31-32 (Fla‘/App. 1963); accord,
Andrews v. State, 160 So.2d 726 (Fla.App. 1964); Sampson v.
State, 158 So.2d 771, 774 (Fla.App. 1963).
The Supreme Court of Florida has more recently re-affirmed
this principle in State v. Stacey, 482 So.2d 1350 (Fla. 1985),
stating that it was “not inclined to hold [an applicant] to
professional standards of pleading", and that it was empowered to
recast a claim where the merit thereof was patent on the face of
the motion and supporting record. Id. at 1351-52; see Nova v.
State, 439 So.2d 255, 259 (Fla.App. 1983)(inappropriate relief
sought in pro se motion does not prevent court from granting
proper relief on valid claim). This principle of Florida law was
explicitly invoked by respondent in the state appellate court
(R.A. 72-73), and the state court's subsequent decision to reach
the merits of the claim raised on appeal was indisputably proper
under this line of authority.
Thus, no constitutional question is presented by this
ruling; neither Hill v. Lockhart nor any other decision of this
Court prevented the state court from applying its own procedural
rules and reaching the merits of respondent's claim. There is,
-10-
accordingly, no basis for the issuance of a writ of certiorari.
CONCLUSION
Based upon the foregoing, respondent requests this Court to
deny the petition for writ of certiorari in this cause.
Respectfully submitted,
BENNETT H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
BY: ~
LIOT H. SCHERK
Ass ant Public Defender
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
85-1975
THE STATE OF FLORIDA,
Petitioner,
URBANO TORRES,
Respondent.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the
foregoing Brief in Opposition to Petition for Writ of Certiorari,
Motion <cor Leave to Proceed in Forma Pauperis, and Notice of
Appearance have been served upon RICHARD E. DORAN, Assistant
Attorney General, 401 N.W. Second Avenue, Suite 820, Miami,
Florida 33128, counsel for petitioner, by depositing same in the
United States mail, first class mail, postage prepaid, this pzep
day of June, 1986, and that all parties required to be served
have been served this date.
Respectfully submitted,
BENNETT H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(205) 545-3005
BY: .
LIOT H. SCHERKER
tstant Public Defender
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
NO. 85-1975
THE STATE OF FLORIDA,
Petitioner,
vs.
' URBANO TORRES,
Respondent.
NOTICE OF APPEARANCE
The undersigned hereby enters his appearance as counsel for
the respondent, Urbano Torres, in the above-styled cause.
Respectfully submitted,
BENNETT H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
BY: " R
LIOT H. SCHERKER
Assistant Public Defender
IN THE SUPREME COURT CF TH® UNITED STATES
OCTOBER TERM, 1985
NO. 6521345
$5-/978
THE STATE OF FLORIDA,
Petitioner,
vs.
URBANO ‘SORRES,
Respondent.
APPENDIX TO BRIEF OF RESPONDENT IN OPPOSITION
BENNETT 8H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
ELLIOT 3. SCHERKER
Assistant Public Defender
Counse: fcr Respondent
INDE X
PAGE
Transcripts of State Post-conviction
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Brief of Appellant (direct appeal)... eeeeeeeessees coveesdO~19
Brief of Appellee (direct appeal)... ...ceeeeeeeeeceeeeeeee 80-90
IN THE CIRCUIT COURT OF TERE
ELEVENT": JUDICIAL CIRCUIT IK
AND FOR DADE COUNTY, FLORIDA
CRIMINAL DIVISION
4° STATE OF FLORIDA,
5s Plaintiff,
: vs, CASE NO. 83-4248
URBANO TORRES,
Defendant.
NF eet Need See Ned ee Sa ee eI I
Metropolitan Justice Building
1351 Northwest 12th Street
Miami, Floride 33125
e February 6, 1984
: Mcondéy, 9:00 a.m.
The above-entitled matter came on for hearing before
the Honorable Ralph RN. Person, Circuit Judge, pursuant to
Rotice.
APPEARANCES :
JANET RENO, State Attorney, by
ya | JAY NOVICK, Assistant State Attorney
| on behalf of the State.
, BENNETT AR, BRUMMER, Public Defender, by
9} JAMES EVANS, Assistant Public Defender
on behalf of the Defendant.
ALSO PRESENT:
MARY ROBERTS, Court Interpreter
JOE TROIAN
Oreic.e. Rewseres Ciecr.'? C6.8? -- 1
TELEPHONE 374-1712
111 S W 3rd Strect / Suite 401 / Miam: Florida 33130
2
Mr, EVANS: James been. Public Defender, on
behalf of the defendant, Urbano Torres, &/k/a Rafcel
Hernandez,
MR. WOVICK: Jay Novick, @ppeering on behalf
of the State of Florida.
THE COURT: All right,
MR, EVANS: We @&re here on the defendant's
rule 3 which states two allegations. The first
allegation is that, one, the conviction wés obtained
by a plea of guilty which was mot made voluntarily,
with the understanding of the consequences of the
plea and also, ground two, the conviction was obtained
by the use of coerced confession,
TRE COURT: All right.
MR. NOVICK: I am going to move to strike the
second ellegetior in thet we hed & full evidentiary
hearing on it which was supposed to have been
transcribed. We are reordering or checking it now,
It will obviously reflect you having heard the entire
testimony and having heard the freeness and voluntari-
mees, correct or incorrect. There was a full heéring
on it.
MR. EVANS: Your Honor, et thie point I don't
know if he testified at that hearing, but he told me
certain things that J be ora 8° at least would be a
Orricie. Rerece-es
TELEPHONE 374-1714
111 S W 3rd Street / Suite 401 / Miam: Flonde 33130
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besis of @ primes facie case,
MR. NOVICK: Let's go through it all, do it
once,
i
MR. EVANS: Am I the moving party”
MR. MOVICK: You @re the moving perty.
MR. EVANS: At this time I call the defendant
to the witness stand.
THe COURT: Step forward, raise your right hand
and be sworn, pleése.
(Thereupon, the interpreter, MARY ROBERTS, was
duly sworn to faithfully translate all questions and
all answers after which the defendant herein, URBANO
TORRES, was @uly sworn and testified through the
interpreter as follows:
THE CLERF: State your name for the record.
THE INZERFRETER: I have 6lready.
DIRECT EXAMINATIOKX
BY MR, EVANS:
.
A.
.
Could you state your name’
(Through the interpreter) Urbano Torres.
Are you the Urbanc Torres thet plec guilty tec
the crime of first degree murder in c&se number &3-424€&°
A.
.
Yes.
what is your present status?
Are you serving @oranfence now’
Cee.cina,. REOztE-ee C-eeurr Cor
TELEPHONE 374-1714
111 S W 3rd Street / Suite 401 / Miam: Flonda 33130
CJ
4 A. Yes.
- q What was the crime you pled guilty to?
on A. First degree homicide,
4 C. Is it your understanding that your sentence
° | would be a mandatory 25 years without parole’
A. That is what I had understood.
‘ Q Now, when you pled guilty, according to your
affidavit, you stated in your affidavit that, firet of 211,
the confession you gave was coerced; is that true?
| A. That is the truth.
! Q Could you tell the Court what happened, that
mde you understand it was coerced”
What did the police tell you; whet did they
threaten you with’
A. The pot.ce threatened me. They tried to hit me
and told me--showed me @ photograph and said that thet men
knew me and going to accuse me for something else.
| Q Row, where was this at?
| A. In the station with a detective.
" Q. Do you happen to rememer the detective's name’
a A. Ne.
’ | Q Would you recognize this detective if you sev
| him’
: | A. Yes.
- “ Could it weve eee Serect ive Eloy Perez‘
Orriee. Mesoeren revi Cover
4
TELEPHONE 374-1714
111 S W. 3rd Street / Suite 401 / Miam: Flonds 33130
ESES__—
A. Yes, that one.
: C Now, did he threaten you with violence”
A. Yes.
y C. Could you be specific? What did he say and what
"| did he do?
ft A. That he told me that {f I did not declare that
: I was guilty, they were going to accuse me of being a
homosexual,
Q Besides that, did he say anything else that
forced you to give this confession’
A. He told me that if I came okay from them he was
going to get an epartment for me,
C Could you explein that answer a little bit more’
A. He wes offering--making an offer to me. kell,
he wee trying to buy me that wéy.
c Are you trying to s&s thet he offered te finde
you an apartment if you pled guilty or confessed*
A. No, not thet. First of all, they threatened
me and then after that they were--well, as if they were
trying to buy m.
C I am meinly interestec in the thrests.
How did they threéten you’ If they threetene?
you three different ways, tell mc all three different ways
and please be specific.
How were you th | ay q°
y JOE SEGRE,
Orr.ic¢ 2. Rreor-ce S-seeci Seve? >
TELEPHONE 374-1714
111 S W. 3rd Street / Suite 401 / Miam: Flonda 33130
_ OE
; A. They tried to hit me and they showed m ae |
photograph.
< First of all, stop. When he tried to hit you,
4id he actually swing at you and miss’
a A. No. He didn't hit me, but he threatened me.
. | g. Did he raise his hand?
’ A. Yes. He raised his hand at me .
: Q This is Detective Eloy Perez?
A. Eloy Perez, and the other one.
“i C. Did both of them raise their hands or just one
7 of therm’
: A. Nc. The other one was there with the tape
recorder.
C Now, when Detective Perez raised his hand,
what did he say to you’
A Tell m the truth.
Q Did he héve @nything in his hand when he raisec
° it?
a A. Yes. I think he had @ cassette in hia hend,
. Q Did you think he was going to hit you?
“i A. Yes.
; q Were you scéred*
ca Yer.
; ~ Whet other type of threats did they meke agsinst
gl JOE TROIANO
stint osigad one seca .
11S W 3rd Strect / Suite 401 / Miam: Florida 33130
6
—
you?
A.
~
confessed.
A.
Q
you certain
A.
compenton,
Q
A.
@
A.
-
Not any other one.
Kow, you s@y promises were made to you if you
Yes.
Was this Detective Perez again who promised
things?
The Detective Perez and the other one, his
Would that be Detective Alburnie (phonetic)”
Yes. A little guy.
Would you recognize hir if you sew hir’
Yes.
What were they promising you to confess‘ What
would they say they would give you if you confessed”
‘
That they were goinr to find me @n apartment
because I had nowhere to live.
Q
Was it your understanding that if you confessed
that you would not go to jail, is that what you are trying
to say?
Yes.
Is thet the only reason your confessed to the
Yes.
Let's telk about your lavyer that represented
JOE TROIANO
Orrisse. Rewoeres® Cec. So ee
TELEPHONE 374.1714 eg
111 S W. 3rd Street / Suite 40) / Miam: Flonda 33130
— CC CC CCC O_O NEN, IT EEE
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you.
Now, in your affidavit you say that when you
asked your attorney whet you should do, you say he did not
@ppear to be willing to use his full abilities to prevent
@ conviction and that seeing no possible way, you confesset,
and that your attorney told you that you would possibly get
the death penalty if you didn’t confess and plead guilty.
Are those the @llegations thet you are making against your
former attorney’
A. Yes.
q Tell me whet happened between you and the
attorney, whet he seid, what you scid and why you pled
guilty.
A. About three or four--sometime--three er four
déys before I was sentencec, the attorney, the gentlemen
whe wee there, went te the celle there down below @nd he
told me that they were asking the electric chair for me.
I told mim that I wes innocent, that, please,
to do something for me. He said, nc, I can't do anything
for you. And he said to me, you are going to plead guilty’
And I eeid, yes. He seid, why’ That is beceuse I have nc
family here and I was scared that my mthcr should find
out thet they hed--that they hac put m ifr. the electric
chair.
C Die your attorney fell you that he hac talked to
Orricie, Mecvrcwe-ce Cree °* ¢ceve
TELEPHONE 3742-17164 3
191 S$ W 3rd Street / Suite 401 / Mam: Flonds 33130
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the witnesses and prep4red the case and talked to you about
=
the testimony thet world be given at e trial if you had one’
A. Ke.
4 | C. You said your attorney said he could not do
anything for you’
A. Yes, Right here in that office (indicating).
Q Are you sure you told him that you were innocent?
Did you tell him thet’?
A. Yes,
C Now, why did you plead guilty to the Court
through the lewyer?
Did you plead guilty becéuse you were guilty
or because of some other reéson”
A. Because I'm scared,
C Was the reason thet you gave the confession
bec&tse you vere scared’
A. Yes,
° Q Was the reason you pled guilty because you were
‘ scared”
: A. Yes.
C Hey; ole @re you’
A. I'm almoet 20,
C Did you go to school’
A. Yes. I been to school here and in Cube,
C Whet fe the highest eredc you completed in school’
Crricrs. Mtwocartte® Cec. Co.s6
TELEPHONE 374.1714 9
111 S W 3rd Street / Suite 401 / Miam, Flonde 33130 -
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Spanish?
A.
q
Spanish’
A.
q
A
Q
Seventh grade,
Can you read’
A little.
You don't speak English; correct”
No,
You don't write English’
(Shakes head.)
You have to s&y the words.
No,
And the little reading you can do is in
Yes.
Are you & good reader or @ poor reéder in
I reé¢d poorly.
De gycu write in Spanish’
A little.
Are you a good writer in Spanish or a poor
writer in Spénish?’
A.
C
h.
«
No, not too good, but I can write.
Rov lonr have gou been ir. Americe’
Four yectre.
Before that you lived in Cubes all of your life’
Yes.
Your ettorney & [kee fo you through an inter
Orricie, Mewoeree Crecuis Cove
TELEPHONE 374.1714 ; 15
11S W 3rd Street / Suite 401 / pMiam: Fiornda 33130
ran ae ee a a
11
preter; correct?
A Yes.
0 During this conversation did you understand
everything that was being said to you through the inter-
preter?
: Yes.
. 0 You have sworn to the allegations set forth
in this motion that you filed; correct?
A Yes.
Q In this affidavit that you swore to you state,
"Seeing no possible way to win in this situation, since
his Court-appointed counsel did not’"--
Ls Yes---
Qa --conviction and given the threat to the police,
the defendant unecuivocally pled guilty.”
Ie that your allecation today in Court?
a Yee.
MR. EVANS That’s it for me at this point.
THE COURT: Mr. Novick?
CROSS-EXAMINATION
BY MR. NOVICK:
0 Arc. Torres, when you were arrested here in
Miami for this csse*, at that time you were on probation,
weren't you, for an agcravateé assault which was actually
e murder in McArthur Park (phonetic) in Los Angeles, ané
JOE TROIANOD
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PEabr Wont 574-1756
191 S W 3-2 Strect Suc 62" Mem Blend 3213
12
iy you knew that, right? . id
- MP. EVANS: I object to that as being irrele-
vant.
4 THE COURT: Overruled.
A rey (By Mr. Novick) You knew you were on probation
6 | to the Court in Los Angeles because you pled guilty out
, there to some kiné of assault with a deadly weapon, which
- really led to the death of someone? You killed someone
" in McArthur Park in Los Angeles; right?
10 A Yes.
1 MR. EVANS: Objection. It is a compound
I. - question. I'm not sure he understands. He is
saying he was on probation then. I think it is
M4 kind of unclee-.
1 TRE COURT: If you want to clarify it, you
can.
I 0 (By Mr. Novick) Mr. Torres, you had several
Giscussions with your Court-appointed attorney, Mr. Fielde,
\' -pefore you even came to Court for that first hearing, that
Monday, where your attorney asked the judge to throw out
2 your confession? You talked to him, right?
Nie A NO.
- Q You talked to him during that hearing, didn't
<4 you?
- A If I talk to him?
JOE TROIANO
Orric «,. REPOK"EE Cec. Co. er
TELEPHONE 374-1714 . y
111 S W 3re¢ Street / Suite 401 / Mam: Flonide 33130
CB ——<< <_$ EEE cr
13
0 During this hearing, when your attorney was
asking the Judge that Monday to throw out your confession,
remember?
A Yes.
Q And you had sitting with you at the table
here your attorney and yourself a man or a lady to translate,
just like this nice lady today who is translating for you?
Ls A man.
Q S0 that you heard in Spanish everything that
went on and you were able to communicate with your lawyer
in your own language, in Spanish; right?
A Yee.
Q Now, your attorney told you through a trans-
lator, when he talked to you, that in America, in Florida,
if you are convicted of first degree murder and you have
another murder in your past, that that is one of the bad
things that goes against you when the new judge here in
Florida goes to sentence you; right?
A May I sav something?
Q Sure.
A In the first plaece--in the first place, the
case ir, Loe Ancelee, I ar irnocent. I plead guilty te
get out of that and because they made an offer to me of
five years.
0. Probation?
JOE TROIANO
Orricvse Reeserce Cimcurs CO cer
TELEPHONE 374-1716
191 S$ W 3rd Strect / Suite 401 / Miam. Blonde 33130 13
15
‘
A Yes, he tolé me that.
Q That was one of his concerns ast your lawyer,
right, in trying to get the best desi ttat he coulé get
for you?
MR. EVANS: Objection. He would have no know-
ledge of that.
THE COURT: Overruled.
A How could it be the best thing for me if I dié
not kill in Los Angeles and I did not kill here either?
Q (By Mr. Novick) But the paperwork says you
agreed to plea¢ guilty in Los Angeles in a case where a
man got killed, right?
AK Yes, but I only did it because of the probatic-.,
not because I did it.
Q No. I understand, but I was going to use all
of that evidence and you knew it when I asked this judge
to give you a sentence on this case. If a jury founé you
guilty, you knew I was going to use that, right?
a I knew because the lawyer told me they were
going to bring witnesses from there.
Q From California?
A Yes.
Q You knew. Your lawyer, Mr. Fields, told you
that in Florida, if you committed a murder ané¢ if you
commit it when you're--in committing it, in doing the
JOE TROIANO
Orric Reece-em® Cecl Coce
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TELEPHONE 374.1714
111 S W 3rd Stree: Suite 401 Mem. Flonds 33130
16
murder or just right after the meréer, you take sone
property from the person you kill, that makes it more
serious for sentencing; although, like having a bad recoré,
it's another bad thing that the judge would look at; you
knew that, right?
a No.
Q Mr. Fields, he Gidn't tell you that?
A No.
Q Now, Mr. Fields, he talked to you about the
way the guy who got killed in this case, in Florida, was
all tied up. You knew about how he got killed, right?
A No. He showed me a photograph.
Q Yes. But before you came into Court you knew
how that person died, right?
A No.
Q You saw the photograph before you came into
Court?
A Yes.
Q S50 you saw how ugly it looked, right?
MR. EVANS: I'm going to object at this point.
I think we are losing the relevant importance of this
hearing. I Gon't know what it is leading to.
TRE COURT: Overruled.
Q (By Mr. Novick) You can answer.
You saw from the pictures how gruesome and vwoaly
JOE TROIANO
Orricia. Rewoe-ste Cmccit Co.e-
TELEPHONE 374-1714 16
WS W 3rd Street / Suite 401 / Mam. Flonds 33130
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this murder was?
5
MR. EVANS: Your Honor, I object to the prosect-
tion's characterizations. I haven't seen the pictures.
THE WITNESS: Yes.
MR. EVANS: And I might not consider them grue-
some or ugly.
THE COURT: He is asking the witness.
Q (By Mr. Novick) Yes?
A Yes, I saw it.
Q And Mr. Fields, your lawyer, he told you when
you were talking about this case that murders in Florida,
if they are uglier than normal, that is another thing the
Judge has to look at and if he finds that they are worse
than normal and ugly, the way the crime happened, the way
the murder took place, that he would sentence you harder
for an ugly type murder?
Mr. FPielés told you that, right?
A No.
Q But you remember Mr. Fields telling you that
in his professional opinion, as a trained lawyer for a lot
of years and knowing this particular judge very well, that
there was a good chance that this judcse night juet sentence
you to Gie in the electric chair; right? You knew that,
right?
A Yes. That's what I was told.
JOE TROIANO
Orvicvs Reeoerrs Cees Cole:
TELEPHONE 374.1714 r iy
WIS W 3rd Street / Suite 401 / Miam. Flonda 33130
is
?
re) By Mr. Fields, right?
A Yes.
Q Re told you exactly why he thought so, right?
A No. He told me that it would be because of the
| case in Los Angeles and that he could give me more time
because of the dead man, because of the way it was, the
way he was.
Q Bow, all the times when you spoke to Mr. Fields,
either in court here or in back in that jury room or over
at the jail, you always had a translator who is trained to
translate, like this lady, for you, right?
A Yes.
Q Do you recognize the name Jose Solazano
(phonetic)?
Would you recognize his name? That is the name
of the translator.
A Yes. The day they sentence me.
Q That is the name of the translator, right?
A Yes.
Q Bo he was with you back in that jury room with
Mr. Fielés talking about what you were going to do in
Court, what the Jucce wat coine to do in Court, richt?
A Yes.
Q So he would be a real good witness to tell us
what you all talked about back there, right?
JOE TROIANO
*. Rewlre-ce Cee. Core
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W
TELEPHONE 374.1716
111 S W 3rd Street Suite 40) Miam. Blonde 33130
is
o Yes.
Q Let me ask you a few questiors about this
confession, okay?
When you first went down to the police station
to talk to the detectives, you told them that you had never
touched the telephone in the wan's apartment, right?
At first you told them that?
A Yes.
Q Then they showed you the fingerprints or told
you about the fingerprint taken from the telephone that
was positively identified as being yours; remember that?
A That was the way it was.
Q Then you finally gave this confession that you
are now protesting?
A I am not protesting it. I am just saying the
truth and saying what and how I feel.
Q Well, it was after they showed you this or tol:
you about this fingerprint from the telephone that you
“told them what is in your confession?
A No. Wo. Before.
Q Oh, before?
A Sefore, yes. Before ther showeé it to re.
Q But they had told you they had it, right?
A No. No. No. Afterwards.
After I had given a confession sayine that I
JOE TROIANO
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32S W Bid Street Suite 40) Miar Blonde 3313
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had not touched the telephone.
Q That pu had not?
A Ané that the car had been loaned to me.
ey But before you gave the one which said that
you didn’t, before that, they told you before the finger-
prints that they had from the telephone, right?
uM Yes.
Q Now, let's go dack to the first time that you
were arrested.
Do you remember the car over at the bar, Pier
17; remember?
A Yes.
Q This is the car that you claim was loaned to
you, right?
A Yes.
Q Do you remember the police findine in the trunk
of that car the corc from the man's telephone, the wan whe
got killed?
A No.
Q If I tell you that it was found in the trunk
of that car, yor @Gon't doubt that, right?
MR. EVANS: Objection, your Honor.
TEE COURT: Overruled.
THE WITNESS: I don't know.
Q (By Mr. Novick) When you were firet booked into
JOE TROIANO
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suincemigpentinnen « 21
the jail fror that arrest at Pier 17 ané then you got out
for time servec, right--
A Yes.
o --when you were bookeé into the property room
there, you had the Gead man's watch. Do you remember that?
MR. BVANS: Objection, your RFonor.
TEE WITNESS: No.
THE COURT: Be anawered.
Q (By Mr. Novick) So if the evidence and the
property sheets that they keep at the jail would indicate
that you had the watch, that would be wrong?
A That was my watch.
Q Now, you testified under oath, in front eof
this judge, in the hearing, where your attorney, Mr. Fields
on that Monéay, October 3rdé of last year was tryine to
convince this judge that he should throw out and not
accept your confession. You remember that, richt?
A I don't remember.
Q Now, maybe you better mark it for purposes of
this hearing.
THE CLERK: State's Exhibiti-* for purposes of
Identification.
(Thereupon, the iter referred to was marked
as Plaintiff's Exhibit No.}1-A for Identification.)
MR. NOVICK: I won't be much longer, Judc:
JOE TROIANO
22
CG (By Mr. Novick) If I were to show you State's
Exhibit 1-A for the purposes of Identificatior, which is
the motion to throw out your confession, where it lists
my name ané Mr. Fields’ ané the Court Reporter ané all of
the witneeses that I called on the back, that you were
called and sworn in ané you 41d testify es a witness, this
would also be wrong; right?
MR. EVANS: Your Honor, I woulé object to it.
THE COURT: Overruled.
A I don't know because I Gon't understand any-
thing of that. I don't know anything about that.
MR. NOVICK: I would move it into evidence ance
ask the Court to take judicial notice of its own
records.
TEE COURT: 11 right.
TEE CLERK: State's Exhibit 1-A for Identifice-
tion becomes State‘’s Exhibit No. l.
(Thereupon, the item referred to was marked as
Plaintiff's Exhibit No. 1 and received in Evidence.)
Q (By Mr. Novick) Mr. Torres, as far as the
throwing out of your confession coes, we have sirest¢y heeré
all tiie in Court, haven't we? Ané the Judce alreec,s
rejecteé it, 4id not accept it when he first heard it.
MR. EVANS: I woulé object to that as being
irrelevant.
JOE TROIANO
fie * ¢« Co.
TELEFPHOALT 374.1714 Pw te
199 S W Bre Street Sute 40! Maem Fiends 3313¢
TFL COURT: I will sustain it based on the
matters before the Court ané the record.
MR. NOVICK: At this time, your Bonor, I ar
going to ask that when it is typed up, that the
hearing and the motion to suppress be markec, moved
into evidence as recorded by her ané reflect for
you exactly what 414 take place in Court, what you
heard. You can review it and refresh your recollec-
tion. Do you have any objection to that?
That will be Exhibit No. 2, the transcript
on the motion to suppress to be received.
G (By Mr. Novick) Wow, do you remerber the Judce
ruling against throwing out the confession late one Monday
afternoon? It was actually, really, pretty early in the
evening. It was getting late that Monday, back on October
3rd, about €:00 at night, 7:00 et night?
A I don’t remernber.
Q You Gon't remember when the Judge told Mr.
Pields, your lawyer, that he was not going to throw out
the confession?
A No. I don’t renmerber.
2 well, do you remerber that Menéav of the trie.
week that we recessed, we left Court that Monday evenings
in order to give your lawyer, Mr. Fields, some time, either
thet night or the next morning to speak to you about your
JOE TPOIANO
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EL EPR ONE 374 é reg |
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119 S W Bre Stree Sute 40! ovde +9°
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case again ané you came back on a Tuesday? = dl
M Yes.
Q Dié you speak with Mr. Pieldés that night, that
Monday night,
a
¢
of time,
room?
A
0
interpreter on Tuesday,
this Judce risht here,
A
0
Solazano?
A
0
right?
-
that Gay.
0
A
0
talkec no
LS
with Mr.
at the jail?
At night, no.
But you 614 speak with him for a long period
Solagano, the interpreter, in the jury
Yes, on Tuesday. Yes.
Now, after you spoke to Mr. Pielés with the
you came out in front of the Court,
right?
Yes.
With the Court interpreter,
right, Mr.
Ob hmr.
Ané the Juéce aske¢ you a lot of acuestiorg,
To me? No. To the lawyer. I didn't speak
You €ién‘’t speak that Gay at a11?
i spoke when I with ry hasé (ir éicet:-s
Wher. you took the oath, you talked and you
more?
JOE TROIANO
25
Q Do you remember the judge, this ran here,
asking you whether or not you wanted to plead guilty?
A I remerber that he asked me, but I plead
guilty because the lawyer had tolé me that if I dién't
they were going to give me the electric chair.
Q I want to go down the questions with you,
though, Mr. Torres.
You €@o remember him asking you if you wanted
to pleaé guilty?
A Yes.
¢ And your answer, at least on that Tuesday, was
yes?
A Yes.
Q And you were under oath to tell the truth,
right?
A Yes. I swore there. I put my hané¢ up and no
pore.
re And there was a clerk of the court who swore
you to tell the truth, but it was the other one thet
alternetes. She was a white clerk, a white lady ané she
swore you to tell the truth?
bh Yes. Yes.
0 Ané the judge askec you for your ase anc e&
little bit about your educational backgrouné, right?
A Yes.
JOE TROIANO
Ree
19S W 3rd Street Surte 40 Mam Flonde 3213¢
26
1 0 He asked you whether you were teking any érugs |
or had enything wrong with your head, right?
A Yes. I think so. Yes.
4 Q Any mentel problems?
5 | A (no audible response)
t | Q Be asked you whether you understood, if you
r 461d plead guilty, that this was an agreement, a deal, which
h your attorney had worked out with me to save you from the
electric chair and that you would have to spend at least
iT 25 years in jail; the Judge askeé you whether you unéer-
stood what you were going to have to do. Do you remember
that?
A Yes. I remenber.
14 Q Ané you remember the judge because Mr. Fields
1 was appointed by the Court to help you out. You remerber
the judge askine you whether or not everything he 61d was
okay with you, you were satisfied with hir and you said,
yes, it was okay with you?
A No. I don't remember.
2 Q Now, Go you remember that somewhere during this
Giscussion between you and the judge there was somethince
gions there thet you €fén't auite underetanéd and we trchke
we took a little bit of a break for a minute and you spoke
to Mr. Pields again with the translator; do you renember,
to clear some things up?
JOE TROIANO
Riece * ¢«u Cove rrr
EPHONES 374.1714 ~
Te
113 S W Bre Street Surte 401 Mam. Flonds 33136
ee
27
A I don't remember what confusion there was. i |,
Q Do you remember that?
A I don't remember what confusion there was.
| 0 But the judge gave you time to talk with your
jlawyer, right?
| A The lawyer spoke to me. The lawyer spoke to me
pad eeid that I haé promiseé him that I wat going to plead
quilty ané why @14 I plead guilty. And why 4i4 I plead
guilty?
they we
BY MF.
Because I was scared and because he told me that
re going to give me the electric chair.
MR. NOVICK: I Gon't have any further questions
at this time.
I would move into evidence, when it comes up,
because it should be in the Court file, the transcrift
of the plea colloguy and ask that this becomes State's
Exhibit No. 3, as soon as it is received by the Clerk.
You do not have any probler with that, Mr.
Evans?
MR. EVANS: No problen.
REDIRECT EXAMINATION
EVANS:
¢ Mr. Terres, wher you were before the Judae
with Mr. Fields ané they were asking the questions before
you pled guilty, did you understan¢ everything that was
seié to you?
JOE TROIANO
|
FPHONT 3761714 «>
Pm
A A little.
Q S0 you €id not understand all of it; correct?
A No.
o Now, was the interpreter--he wasn't your friend,
was he?
A Bo.
Q He was not someone that you were supposed to
confide in; correct, like your attorney?
- Yes.
Q Ané you confessed and you pleé guilty because
you were scared ané that is the only reason you pled
guilty; is that true?
A Yes. Yes.
Q Now, the case in California, you did not pleac¢
“guilty to murder, did you?
AK No.
MR. EVANS: That's all, Judge.
MR. NOVICK: No recross.
THE COURT: Thank you.
MR. EVANS: Your Honor, at this point the
Gefendant's allegations are still that he was
threatenec, possitly wit> force, ty the pelice.
He doeen't remember the plea colloquy, whet was
all said to him, but he renerbers that he pled
guilty because he was scarec, anc under hie
JOE TROIANO
Crrcue Meece-ace C-acrire Core-
TELEPHONE 374.1714 pha)
111 $ W 3rd Street / Suite 401 / Muem. Fionds 33136 =
ah?
belief, Mr. Fields didn't do all he thought he
should have done for hin or he Gidn't have any
confidence in him. Ke thought that if he didn't
Plead guilty that he would get the electric chair
and he said he plead guilty just to save his life.
I Gon't think anything has come up that would
rebut that, That's the point we stand on right now.
MR. NOVICK: Are you resting your case?
MR. EVANS: I'm resting my case.
MR. NOVICK: May I call my first witness?
THE COURT: Yes.
MR. NOVICK: Harold Fields.
THE CLERK: May I swear you in, Mr. Fields?
Thereupon:
EAROLD PIELDS
was called as a witness and, having been first duly sworn,
was examined and testifiec as follows:
DIRECT EXAMINATION
BY MR. NOVICK:
re Would you state your name and occupation?
A Harold Fields. I'r an attorney.
¢ Eow long heve you been ar. attorney?
Just for the record, tell the Court your
background.
A I've been an attorney since March 20, 1973,
JOE TROIANO
Crric Reeoe-ee® Ceci. Coe
TELEPHONE 372.1734 a
fu
11S W 3rd Street / Suite 401 / Mia. Florida 33130
30
—
when I was sworn into the New York Bar.
Q Ané a majority of your practice has been over
the course of those years criminal defense?
A Yes, sir.
Q You have done numerous first degree murder cases,
Mr. Pields?
A Yes.
Q Were you the attorney, in fact, of record, for
Mr. Urbano Torres?
B Yes.
Q In your preparation of this particular case,
you took depositions; correct?
A Yes.
Q You did some traveling for which some deposi-
tions took place and didn't take place, but to look into
the background of your client?
A Yes.
Q And to see whether the State could prove the
allegations in the indictment and sone of those aggravated
factors that the State woulé use against your client at
time of sentencing?
A Yes.
Q Did you have occasion during the time you
represented your client to meet with him on more than
one occasion?
JOE TROIANO
Cc c Rre- fc Cwey Co er ce
TELEPHONE 374-1716 - 09
WS W 3rd Street / Suite 401 / Mam. Flonde 33130
31
Ls Yes.
Q Did you indicate to hin the proof which you
felt the State would be able to go forwaré with in this
case, both as to the first degree murder and as to the
sentencing phase, if it were to get that far?
is Yes.
Q Dié you indicate to your client, as a trained
professional, what you thought the outcome in this case
could potentially be?
A Potentially yes.
Q Did you indicate to him the orders in this--
did you indicate to him that there were some serious
aggravating circumstances in this case which would miti-
gate against him, as far as sentencing goes, anc that this
wae really a potential death case?
A There were two.
MR. EVANS: At this time, I am goinc to object.
Mr. Novick is testifying.
MR. NOVICK: I will Go it in a non-leading
fashion. I was trying to push a little bit.
Q (By Mr. Novick) Did you file wotionse in this
case?
A Yes.
Q Did you file etandard death motions in a Geath
case asking for all kinde of rulings ty the Court on death
1OE TROIANO
Orricia Reece-ce Creccis Cover
if ]
TELEPHONE 374-1716 Jit
111 S W 3rd Street / Suite 401 / Mam Blonds 33130
32
pee issues and asking for aggravating and mitigating ce i
circumstances, and the Public Defender's office asked for
those types of things in order for you to protect your
4 | elient in the eventuality the State was looking for that
a type of punishment in a case?
6 | a I filed a number of motions that were appropriate
‘7 | @o a Geath case, yes.
& Q Did you also file a motion to suppress the
defendant's confession in this case?
I A I believe I dic.
VW Q Did that in fact get to hearing?
1. A Yes, ie é44.
Q Did you meet with a client at that tine and
14 about that motion?
I A Yes.
Q Let me ask yor this: You don't speak Spanish,
right?
. a No.
- 0 When you met him, you met him with or without
“ a certified Court interpreter?
A Well, every tire I met with him, it was with a
certified Court interpreter.
¢ There wae a heerince on the motion to suppress,
correct?
A Yes, there wae.
JOE TROIANO
Orricvas Reeceere Cis > Cove- “>">
Ww Ae
TELEFHONE 374-1714
111 S W 3rd Street Suite 401 / Mam. Florida 33130
SE
33
0 Ané the Judge rule¢?
A Against me. me
@ Then there was a plea offer.from the State at
4 | that point?
A There had been a plea offer all along. There
had been an original plea offer, I believe.
a rey What happened to that? |
. A Well, that plea offer went down the drain after
you had determined that he had committed a homicide in Los
Angeles and you were able to prove it.
Q Then the pending plea offer wae to what?
i A The plea offer?
‘icer?,
Q The new pending plea offer, after I withdrew
the second degree plea because of the aggravated circun-
stances of the murder in Logs Angeles.
Rh You seic you were going to ask for the death
penalty, notwithstanding--notwithstancinge your previous
plea offer.
Q Okay.
Now, do you remember us recessing that Monday
night?
h After the mction to Suppress?
Q After the motion to suppress.
- A Yes.
r Q Do you remember having conversation with your
JOE TROIANO
WS W 3rd Street Suite 401 Miar Flonds 3313C
la
not????
Ve
client in the jury room here in Judge Person's court,
Tue#day morning, before and during the Court calendar?
A Yes.
Q Do you remember the plea dialogue?
a Colloguy here in front of the Judge?
Q Yes.
Did Judge Person go through the standard set
of required questions as prescribed by the Florida Rules
of Criminal Procedure?
a As I recall. You hear it so much that---
Q You might have left something out and the
record would speak for itself?
A The record would speak for itself.
Q Did your client ever communicate to you on
that day that you were forcing him to do something that
he @Gid not want to do?
A No. You know, he was upset.
Q That he would have td plead quilty to this
type of crime?
A Yes.
Q Did you ever threaten him?
AK Tareate: him? kEow de you mean?
Q You just wouldn't try this case or couldn't
try this case?
A No. I never told---
JOE TROIANO
Ore ‘ Rereorwrce C ec > Cover
TELEPHONE 374.1714
WS W 3rd Street Suite 40) Miam Blonds 33130
td
han
35
6
rey That you woulé not give him a vicorous ¢efense
if he @ecided not to accept the plea offer?
A No. I never told him that.
Qo Did you ever tell him that the State Attorney's
office or myself, someone had a pipeline to the Judge and
the Judge was going to @o "xX" if he was convicted?
A No. I Gidn't tell him that either.
Q None of that would be true, right, to your
knowledge?
A That the State Attorney has a pipeline to the
Judge?
Q Or this State Attorney or the State Attorney's
office or anyone knew what the Juéce wae going to Go in
this case?
A No. I @on't think you have a pipeline to this
Judge.
Q Or any other Cucge.
In fact, Go you remember whether there was ever.
any conversation in front of this Judge about his thoughts
prior to sentencing, prior to us going into the hearing ance
this case pleading cut?
KR tT believe that=--the receré will have te sree!
for itself, but I believe the Cuccse hae indicated that this
was a horrendous type crime and the fact that he hac flec
guilty to ae crime in California certainly did: 't help the
JOE TROIANO
‘ Riecerrce Cec
TELEPHONE 374.1706 oie
W117 S W Sid Street / Suite 20) / pram. Blonds 3313¢ 2
——___—__
issue. I believe it wes whether or not he wes going to
be able to get behind the crime in bringing ge circurstances--
since the crime wes only sggravateé assault, ané I got en
indication it would be resolved egainst me.
G Your client pled guilty tc aggravated ssseult
where, in fact, someone 6ie4. This was @ plea taken in
California. The 6tate was going to be able to introduce
evidence thet there wes a Geeth there. You resolveé thet
or the Court resolveé that in your wind against you?
- Yes.
¢ If the recoré so reflects, your client wes able
to tare the etané in the rotion to suppress ané voice his
feelings on the matter?
A I 6c not recall exactly what my client--exactly
what he sai¢, but I believe I asked one auestion too many
ané my cliert kind of closeé the G@oor on the motion tc
suppress, as I recall.
Q He gave an answer to sorething---
A Totally inappropriste.
ie) Totally contrary to what was testified to to¢ay,
but the recoré will reflect---
,. I khrow 4t wee tctelly centrary to whet wee erié
tocey. It was certeinly contrery to wry theory of éefernce.
MP. NOVICI:: I Gon’t have any further cueetions.
SE a ee eS 37
CROSS-ZXAMINATION
BY MR. EVANS:
0 Mr. Fields, you Gon’t speak Spanish, €o you?
A I understand some Spanish. I've had a number
of years in college, but I don’t speak and understand it
fluently, no.
Q Dié you try to use a little Spanish, you know,
in trying to communicate with Mr. Torres?
A I don't think so. I pay have said sone things
to him between--exactly between me an¢é hin, without the
interpreter, but it was--it waes--it was not of substance.
0 Now, et the time of the plea colloquy he was
upset, correct?
bh Yes.
0 Did you know why he was upset?
A No. Be @idr't want to go to jail for 25 years.
6 4@ he tell yor that or ¢€i¢ you sssume that?
A Well, the night before--1I think you have to
set it up eae little bit.
The night before, after he haé testified, we
went into the jury roor with the interpreter and I askec
hir whst he wzar.tec to cc. o@ s2eic, °3 wert to pieac
guilty.* He haé heare the evidence froz the witnese
stand. He hed hearé Detective Perez, I believe, give @
Gescription of the horiciée an¢d I think that he--he hac
JOE TROIANO
felt at that time that the plea negotiations were in his
best interest.
0 how, Giéd you ever tell hin, I can’t do anything
for you?
7 Ho.
9 Are you eure?
.s Yes.
ey You could have seid it and forgotten about it?
A Well, what do you mean, I can't do anythina for
you? Can I win the case?
It was my opinion that I couldn't win the case,
ané, you know, I certainly could have tolé him that.
Q Dic he tell you he was innocent?
A Yes.
0 Now, he pled guilty to aggravated assault in
California, correct?
AK Yes.
0G Normally, aggravated assault, just pointing
the weapon at someone, is a third degree felony?
A Yes.
6 Basec on your investigation, did someone stay
dr. California baseca on that 6ane case?
A Yes.
0 Could you tell we the circumstances?
A Circumstances, as best I car recall, was that
JOE TROIANO
a as
another individual ané the victia had gotten in a fight
ané apparently the other individual turneé to Mr. Torres
ané Mr. Torres, at least accordine to the people in Cali-
forniea, stabbed the man to Geath, okay?
Apparently, for whatever reason, the police
out there weren't able to get their witnesses together
in time--in time. I believe one of the people who told
on hip was a police informant and that was sorething that
I hed figured out by myself, somethinc Mr. Novick knew and
hadn't told me. I figureé it ovt, looking through the
Court documents and through the police reports, ané he
head disappeared. But it hadn't been iné@icated to re at
the time thet we had gone to California that the police
had--head founé him again--
Q And base¢ on that--
, --ané that person is available.
Q --you went to California, correct?
a Yes.
Q Ané you talkeé to these witnesses that gave
you the basis for---
A No. I 6ién't talk to the police informant.
No. I telked to the police officer responsible for the
case.
0 Were they wiliing to come to Florida to testify
in this case if they hac to?
JOE TROIANO
Ve
TELEPHONE 374-1714 V~
40
A Yes.
¢ Diéd Mr. Torres, ir your opinion, seer to have
Girinishedé capacity in any mental sense, based on your
observations of hinz?
A I don't think he had a real good education and,
to tell you the truth, I don't believe that--Detective Pere:
G4idn't trick him or promise him anything to make a confes-
sion, or didn't.
Q Did you have any physical proof? Did the
State prove to your satisfaction that the watch in the
property was the Cdeceased's watch?
RK Well, they tried to. They tried to establish
it and the objection wes that there wae ne one to say this
was the man's watch, except a Gescription that somebody
else had given of the watch. I believe the objection was
sustained and the watch waen't useé ae a basis.
¢ Sc the watch Gidn'’t have ae serious---
A lio.
Q The State was not able to establish, to ny
satisfaction, or the Court's satisfaction that thie was
in fact the decease@'sc wetch?
}. Yes.
0 Mr. Fielée, do you feel that Mr. Torres pled
guilty because you forcec him to pleaé guilty by telling
hir that he would get the electric chair if he 4idn't plee?
JOE TROIANO
Ore Rrecer#e® Cme Co." 7
40
TELEPHONE 374-5714
111 S W Bre Street Suite 401 / them. Flonds 33130
41
guilty?
A I'm not going to speculate on that. I believe
Mr. Torres pled guilty because he beliewed it was in his
best interest, as x 414.
Q Do you believe the case--the State had a good
enough case to get a conviction for first degree murder?
A Yes, they 4id.
MR. EVANS: SBothing further.
MR. MOVICK: Nothing further from me.
Thank you very much.
THE CLERK: Raise your right hand, please.
Thereupon:
JOSE SOLAZANO
was called as a witness ard, having been first duly sworn,
was examined ané testified as follows:
DIRECT EXAMINATION
BY MR. NOVICK:
Q Could you tell us your name and occupation?
A Yes, sir. My full name is Jose Solagrano and
my occupation is Official Court Interpreter for Dade County
Courts.
0 Dig you have occasion to be brought in by the
Court to the case of State of Florida versus Urbano Torres,
this man who is--maybe you can't see him--this man's case
right here, in this courtroom on Tuesday morning, October 4,
JOE TROIANO
Ore . Rirocetrce Ce * Cove +1
TELEPHONE 374.1714
111 S W 3rd Street Sute 401 Miem, Blonde 3313¢
42
19837
A I have no unaidec recollection of that incident
and I might adé the reason. We have so many cases every
day.
Q Do you remember, though, talking and translating
+
with Harold Fields, the gentleman who just came out ané asked
you to come into the courtroom and aided him in discussing
a case in this courtroom ané in that jury room with a
particular defendant, though you may not remember the
Gefendant that the case revolved around, the case where
somebody's car was stolen and he was wrapped up and tied
up in some sheets and there was some bowel movement wher
he was killed, kand of---
A With a car?
Q No. Where the guy was tied up with sheets.
Fe had a bowel movement--does those set of facts---
A I recall somethino like that, but I believe
that when I heard those details, it would not have been
in the jury room. It might have been another---
Q Tell me who the translator was that day.
A I may have had more than one intervention in
the case.
Q If the record of the plea colloquy, when it
is provided to the Court, reflects that you were the
translator that morninc, that woulén't surprise you,
JOE TROIANO
Orricie, Rewomtem Cimcuit Covmy
TELEPHONE 374.1716 6 “Lie
WS W 3rd Street / Suite 401 / Miam. Flornds 33130
|
would it?
A No, it wouldn't.
Q Let me ask you this: Were you with Mr. Fields
on that particular case, the one that you remember with
the sheets ané the body secretions?
o Yes.
Qo Do you remember Giscussing with Mr. Fields or
translating for him an atterpt at plea discussions?
MR. EVANS: Your Honor, at this point, if he
can't establish that this defendant--it's a moot
question.
THE COURT: We are going to have to try to do
the best we can here. Let's see what he remembers,
if anything.
Q (By Mr. Novick) Do you remember having the
plee discussions?
A Not that case specifically. If the Court
recoré shows it--but I have---
MR. NOVICK: I have a suggestion, Judge, at
this time. The man does obviously have a lot of
cases, @ lot of pleas in Court. If I could wait
until we get the plea colloquy, let hir refres>
his recollection and see whether or not he was the
official translator, I will hold him off until that
cores in. It might be easier that way.
JOE TROIANO
TELEPHONE 374-1714
V1 S W 3rd Street / Suite 401 / Miam Flonda 3313C
as
THE COURT: I think it would be fairer to ell |
people involved if we just hold off on it. Also, we
order this again today. That will be the third ané
the fourth.
MR. WOVICK: I have personally ordered it, not
only in the courtroom, but from my office and I know
I just can't imagine the plea from October not in the
Court file yet. Maybe we ought to get a reset date
ané I woulé be resting after Mr. Solazano's testimony,
once we get a chance to review it.
THE COURT: Was it---
MR. NOVICK: He is going to find I have a
notation from the time---
THE COURT: Was the confession transcribed in
this case? I don't remember.
MR. NOVICK: Yes, it was. If the Court would
like this as well to aid you, I will move that into
evidence.
THE COURT: I have a recollection of two cases.
MR. NOVICK: I move that into evidence as
State's Exhibit No. 2, the confession itself, and
i will aiso white out Fr. Evans Sbeceuse he cic: *t
have the main file. So we will have two copies,
one for him to review and one for the Court to
review, to refreeh the recollection, because you dic
JOE TROIANO
Orr a, Reeoesem Cece Core
TELEPHONE 374.1714 . 44
111 S W 3rd Street Suite 40 Miam Flonda 33130
4s
|
look at it and review it. iz
I'd like to leave this hearing until that time.
Maybe we can---
THE COURT: He's not going anywhere. Put it
over--give it at least two weeks.
THE WITNESS: If there were any specific ques-
tions, I might be able to answer.
MR. NOVICK: It is not that long. Until you've
had a chance to recollect that you were the person on
the plea---
THE COURT: Okay.
MR. NOVICK: Pick a date out.
THE COURT: Yes. We can pick one--two weeks
from now. The 21st would be so busy. Let's do it
the Priday before. I really want it on so that those
documents appear. Get me a copy of everything so
that we can--I can read it. Then I'll have future
hearings. 2/17.
MR. EVANS: 2/17 report?
MR. NOVICK: May I be excused?
THE COURT: Yes, sir. Thank you.
MR. EVANS: Thenk you.
(Thereupon, the hearing was concluded.)
JOE TROIANO
Rreoer
“3
CT
46
CERTIFICATE
STATE OF FLORIDA )
COUNTY OF DADE )
I, the undersigned, do hereby certify that the fore-
going 46 a true and correct record of proceedings had in
the case of BState of Florida versus Urbano Torres, Case No.
84-4382 before the Honorable Ralph K. Person, Circuit Judge,
at the time and place herein set forth.
Dated in the City of Miami, County of Dade, State of
Florida, this SUA day of December, 1984.
Ot : —"
Shorthahd Reporter
JOE TROIANO
TELEPHONE 374.1714 15
STATE OF FLORIDA,
Plaintiff,
ve.
URBANO TORRES,
Defendant.
IN THE CIRCUIT COURT OF TRE
ELEVENTH JUDICIAL CIRCUIT IK
AND FOR DADE COUNTY, FLORIDA
CRIMINAL DIVISION
CASE WO. 83-4248
)
)
)
)
)
)
)
)
)
)
)
Thereupon,
Metropolitan Justice Building
1351 Northwest 12th Street
Miami, Florida 33125
March 16, 1984
Friday, 10:00 a.m,
the above-entitled matter came on for
hearing before the Honorable Ralph N. Person, Circuit
Judge, pursuant to Notice.
APPEARANCES:
JANET RENO,
JAY NOVICK,
State Attorney, by
Assistant State Attorney
on behalf of the State.
BENNETT E.
BRUMMER, Public Defender, by
JAMES EVANS, Assistant Public Defender
on behalf of the Defendant.
JOE TROIANC
17
sinha . ‘
TELE PHO
THE COURT: All right, we are here ir the matter
of Urbano Torres.
MR. NOVICK: Judge, as we recessed the last time--
Jay Bovick. This case was on for hearing. We recessed
for two other pieces of State's evidence to be produced
for your review, and that is the entire transcript of
the motion to suppress heard by you on October 3, 1983,
which has not been transcribed and introduced into
evidence as State's Exhibit No. 2; but I don't believe
the Court has had an opportunity--
THE COURT: I have got a copy of that, I think,
in my office.
MR. NOVICK: You very well might, because I really
don't know what's in the office and also to wait for a
copy of the plea colloquy, which I did provide to the
Court, which is State's Exhibit No. 3, which is now
being received and with the receipt of those two pieces
ef additional evidence to negate the defendant's clairs
filed in his pro se motion for post-conviction relief.
The State would rest its rebuttal of the defense's
claim and unless Mr. Evans has some further evidence
to produce, we could proceed either to argument or tc
having the Court review that or have the Court reviev
it--whatever the Court wants and Mr. Evans wants.
MR. EVANS: I have already presented what I would
JOE TROIANO
tS
TELEPHONE 374.1714
n1$ Ww 3 Stee Suite $03 Man &F
i gee
’
like to present, and I would just have argument,
THE COURT: All right.
I‘m ready to hear argument then.
I think I heave got a copy of this in the office.
MR. NOVICK: I have tried, as these things have
come up, to provide not only the original to the Clerk,
but to give you & copy; and I think we have done 60 as
things have come in.
MR. EVANS: Your Honor, the defendant has testi-
fied, and I am sure the Court remembers his testimony.
Basically, his teatimony was that he has very
little education. He is from Cuba. Fe doesn't have
a high degree of understanding of Englieh, and the
understanding that he has in Spanish is of a very
limited nature.
He suy# that he pled guilty, because he was told
he would die in the electric chair. He felt that he
4ié not understand everything that was going on. He
felt that he confessed, because he had no chance or
no choice to go otherwise, because in his opinion, his
lawyer wasn't doing anything for him in his estimatio-
or to his underetanding; anc he felt that with hie
lawyer not working for him, rather than go for the--
and possibly be killed fur something which he consi-
ders he didn't do, he would rather plead guilty on thet
JOE TROIANO
basis.
Now, the State has provided the Court with a copy
of a statement that is--that was witnessed by a Cus
Cueva (phonetic), which is approximately--well, it's
not numbered, but it seems to be about 10 or 12 pages
long: and even from this, your Honor, it's not clear
that the defendant understood everything that was going
on.
You will note that the questions were basically
leading. Por instance, on--I guess this is page two,
it says, "I have not been threatened nor have they
promised me anything. Nobody has given me a hard
time nor have they promised me anything to make me
sign the paper. I also want to explain to you, you
know, that at this time, you are not under duress."
Basically, this is the officer speaking saying
all the things that he coulé have said or if he said
it, you could say that this was a clearly knowing and
intelligent waiver. His responses are, “Uh huh.”
Ané then the next one is, "You know that you
Gon't have to be here if you don't want to,” ané ther
he says, "Bmmr,” but you want to clarify the probler,
so there won't be any other probler.
I woulé say basically that this vehicle that
the State save is a trick that the police used to get
JOE TROIANO
Orricee, Mewowrce Cmcci Cover =
TELEPHONE 374.1716 00
WIS W Bre Strecs Suse $02 , Mam Fionds 33130
1! si
him to confess. They led him throughout all the--
understanding his answers, that he understood even on
\
that same page.
It says, “If you want to leave, you can leave.
If you want to stay, you can stay,” and that's in ny
questions.
intel?’ | Then it's unintelliahle or whatever that is. It's
not clear, your Honor. I would say Mr. Torres is maybe
of limited intelligence. He is in @ new country with a
new system. He felt alienated. He felt that he had to |
Go what he thought to save his life, and he only made
those statements and pled guilty, because he thought
that if he didn't, he would surely die by electrocuticr
4 for something that he surely didn't do. That's basically
my argument.
TRE COURT: All right.
MR. NOVICK: My argument in rebuttal is about
three sentences, Judge.
One, the argument that Mr. Zvans makes as to the
ak. motion to suppress is not well founded in a Rule 3,
Judge. That has been heard and ruled on, and that may
~ only be reviewed by a direct appeal from the Court's
z ruling.
ie There could have been a plea, for example, research-
- ing the right to appeal that particular ruling if that
JOE TROIANO
Orricie, Atocerce cc * ¢cower r-
TELEPHONE 374-5716 51
WS W Bre Strect Sute $02 / Miem Flonde 33130
was all the evidence the State had to introduce against
him, but that's not reviewable by a Rule 3, ané I think
the transcript of that hearing that you have in front
of you will indicate to the Court and the Appeilate
Courts that this defendant received a full, fair and
complete hearing at the appropriate time on bis motion
to suppress.
His only other allegation in his pro se motion
for post-conviction relief is that Mr. Fields coerced
him into a plea.
The Court heard the evidence from Mr. Fields.
Can't weigh that egainst the facts in front of you.
Your plea colloquy, you having observed that plea
colloquy, you remembering the questions and your
answers to the defendant, because during the course
of this hearing, you recall some of the things that
you said to him, the case came back to you, and some
of your impressions as the trial judge of what your
feelings were when this plea was entered as to the
potential sentence here, and it's a very classic
case of a plea of convience.
The Court indicated some of the thinge that the
Court would consider, and the jury would consider upo-
sentencing, should there be a guilty verdict.
Mr. Fields had alerted the defendant of that, ast
JOE TROIANO
ro
Orric.a. Mewpoeree Cmcurr Coven } re
TELEPHONE 376.1714
WIS W 3rd Stree’ Suite $02 / Miam Flonde 323136
—
7
to
he had the obligation to do; ané very classically, the
Gefendant felt, rather than risking the potential
Geath penalty in this case, which the Court had indi-
cated was a real possibility here for someone to have
killed someone out in L.A. and come back here a short
period of time being on probation and killing someone
here locally, that instead of risking that, he took
the classic way out and pled guilty to what the Court
approved of, a fair plea in this particular case in
return for not taking that risk.
And there is no indication by testimony, really
either by the defendant or by Mr. Pields or by the
recoré in front of you that there was any coercion here.
This wae really a person, a young man who was fricght-
ened. I think everyone who comes in front of the
Court in euch a situation, is going to be frightened.
The question is did he do what he did intellicently,
because he had a reason for it? I think the record is
clear that he did it to save his life et that point.
THE COURT: All right.
MR. EVANS: Can I say something briefly?
MR. NOVICK: I have no objections.
MR. EVANS: I would ask the Court to consider the
confession, because part of his Rule 3 motion was con-
viction obtained by use of a coerced confession, anc
JOE TROIANO
r7
Orecra. MewoRtEe Creevis Cova VJ
TELEPHONE 376.1714
WIS W Bre Stece Sieve $62 Miam Blewde 33130
I don't think that's padinnen to why he pled guilty.
The fact thet he has this alleged confession ané¢
it's part of the--I would ask you to consider that as
one of the circumstances under the totality of the
circumstances.
TEE COURT: All right.
The Court doesn't need to read this page for page.
I just wanted to make sure we had this hearing, ané the
length of the hearing thet we had, I do have some
recollection of that.
Since I was provided at the suppression hearing,
I don't think it's necessary for me to now reread all
of this and state for the record that I have read it.
It will become a part of the record in this matter
along with our other documents that have been marked
as evidence in this case, ané the Court at this time
is prepared to rule on the defendant's Rule 3, and
the Court's going to deny the relief that's requeste¢
at this tine.
MR. MOVICK: I think the defendant needs to be
advised, I think he has the right to appeal the denie)
of your Rule 3 within 30 days of the entry of thet
order and the public defender, because he is indigent,
will be appointed to do that.
MR. EVANS: Would you appoint us?
JOE TROIANO rc $
Orricia. Mewoeres Cec. + Cover
TELEPHONE 374-1714
11S W Bre Strec’ Sure 502 Mer FBiones 33130
THE COURT: I am going to appoint you and make
sure Mr. Torres understands that I have denied his
request, ané that you may have 30 Gays to appeal the
ruling of this Court on the Genial of your motion.
MR. EBVANS: Thank you, your Honor.
MR. MOVICK: Thank you, your Honor.
THE COURT: Do we have all of the appropriate
documents marked for evidence from this hearing?
MR. WOVICK: Yes, we do.
TEE COURT: The transcript, the plea colloquy?
MR. WOVICK: Whet we need to do, I think, though
it might be a little bit more complete, Judge, is if
we--since there were three statements, the Court has
some good memory of the case, the Court re-alerted
me to the fact there were three, and they should be---
THE COURT: Advice of rights form in Spanish and
in English translation with ther .
MR. NOVICK: They have not been made a part of the
hearing on the Rule 3, Judge. They are part of the
hearing on the motion to suppress, but if the Court
would have no objection, so that the record is abso-
lutely clear, including as evidence all three--
THE COURT: I feel they ought to be included,
all documents that I had and considering I did have a
copy of that. In fact, I have ther in front of me now,
JOE TROIANO
Cre cies Rrere-ee Cec. Cover sees
TELEPHONE 374.1714 : YU
11 $ W 3c Sree’ Suite $062 Mam Bienes 33130
10 -<
and the Statements, as a matter of fact--
MR. NOVICK: To make it easier on yur Clerk,
then; because she :as not here at this time, why don't
we just have marked et thin time, the rights form as
the next consequtive State or Court exhibit.
TEE COURT: Mark it for the Rule 3.
THE CLERK: State's Exhibit Ne. 5S.
MR. MOVICK: The original transcript where the
Gefendant denied his involvement.
THE CLERK: 6Etate's Exhibit No. 6.
MR. NOVICK: And the final confession where when
confronted with the fingerprint evidence off the phone,
he finally admitted his involvement.
THE CLERK: State's Exhibit No. 7.
MR. NOVICK: May we be excused?
THE COURT: Yes. We are in recess.
(Thereupon, the hearing was concluded.)
JOE TROIANO
Oreicre, MewPrerce Ceewi Cover
TELEPHONE 374.1714
WS W Bre Street Suvte SE2 / Mar Fiesd> 33330
qT
oO
11
.
CERTIFICATE
STATE OF FLORIDA )
COUNTY OF DADE )
I, the undersigned, do hereby certify that the fore-
going pages 1 through 10 are a true and correct recoré of
proceedings had in the case of State of Florida versus
Urbana Torres, Case No. 83-4248, before the Honorable Ralph
NW. Person, Circuit Judge, at the time and place herein set
forth.
Dated in the City of Miami, County of Dade, State of
Florida, this > day of April, 1984.
ff A
Cah Le Fazok t-
CARLA DeLAUGRTER
Shorthand Reporter
07
a
JOE TROIANO
Ore.c a. Rewoerca Cec. '* Cover
TELEPHONE 374-1714
WS W 3rd Ste Sute 502 Mar Fionde 33132
{ "§
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
TRIRD DISTRICT
CASE NO. 84-793
URBANO TORRES,
Appellant,
vs.
THE STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR DADE COUNTY
INITIAL BRIEF OF APPELLANT
BENNETT H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
ELLIOT HB. SCHERKER
Assistant Public Defender
Counsel for Appellant
Sy
G*
TABLE OF CONTRNTS
PAGE
TABLE OF ey tf ea. aes ee ee ee eee eee FC ee |
THT ROOUCT IOs ccc Se eseee cece eS ereseeceesessecsececceesecesesececd
STATEMENT OF THE ~ i : eee ee ee ee eee eee ee ee eT Te Te ee eee
POINT ON DPPEAL a ccc eecees eee ceeeeeseeeesseessscessececenseseccesad
STATEMENT OF THE -, Terre se ee ee ee ee ee ee ae ee ee ee a ee ee
SUMMARY OF i. 6: eer Tee er eT eT eee ee ee ee eT TT TTT eT eee
ARGUMENT
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR POST-CONVICTION RELIEF, WHERE THE
EVIDENCE BEFORE THE COURT FAILED TO ESTABLISH
THAT DEPENDANT HAD KNOWINGLY AND VOLUNTARILY
WAIVED HIS PRIVILEGE AGAINST SELF-
INCRIMINATION AND HIS RIGHTS TO A TRIAL BY
JURY, CONPRONTATION OF ADVERSE WITNESSES, AND
COMPULSORY PROCESS, AS GUARANTEED BY THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES AND ARTICLE
I, SECTIONS 9 AND 16 OF THE CONSTITUTION OF
THE STATE OF FLORIDA, IN THE ENTRY OF KIS
GUILTY PLEA TO THE CHARGES IN THIS CASE............-11
oe ee eee ee ee TA CCT ERTS CTC ETTT TET. &
CERTIFICATE OF SERVICE.....ccces
COCERCHEERSRERGC EE KROSEGAOEHROCOED
nin
TABLE OF CITATIONS
BOYD V. DUTTON
> Use \ Fa) cceeeeeeeseceeeeeeesecesesesecseescececncesstS
BOYKIN V. ALABAMA
. . SPETTTTTTLELELTT TTT TTT Terr 13, 14, is, 17
BRADY V. UNITED STATES
>. . COSOSSKKSSESEOHSESSE SESE SESSEEOEELESESESEEaAs
BROOKRARD V. JANIS
. . COOHHESSSSSESSESSHHSHSEEESSESESEESESEOOEEESESEAS
CARNLEY V. COCHRAN
. - P60 465660005608600650666690666606000600660 R88
JOHNSON V. ZERBST
304 U.S. 458 TEBSO) 64406800008
McMANN V. RICHARDSON
397 U.S. 759 Ti tateesnes
MASON V. STATE
176 So.2d 76 (Fla. 1965).......
eee eee eee eeeeeeereee ee eee eeeeee 15
MIKENAS V. STATE
460 So.2a 359 (Fla. ROSS) ow cncccacese
COSC HOKE EOREOEeeeanecesecd’a
NOVA V. STATE
439 So.2d 255 (Fla. 34 DCA ROBO) KONO 4-06 0566 654060006000068Rs is
STATE V. BREST
421 So.2d 638 (Fla. 3d DCA 1982)....
see ee eee eee eee ee ee eee eee 16
STATE V. STACEY
No. 66,447 (Fla. Oct. 17, ROOD D AGA WS OK O044 40656 0004800000000088
WARD V. STATE
433 So.2d ages (Fla. 3d DCA SOON K446646406065440646000040600682
WILLIAMS V. STATE
316 So.2d 267 (Fla. LELIELOEPTPERETELOLTE TELE TELE Ce 14, is, 17
-ii-
60
OTRER AUTRORITIES
CONSTITUTION OF THE UNITED STATES
Fifth, Sixth, and Pourteenth Amendments..........eeeee-ll, 12
CONSTITUTION OF THE STATE OF FPLORIDA
Article I. Sections 9 and 080566650664 660009606666666006c008
PLORIDA RULES OF CRIMINAL PROCEDURE
Rule 3.172(c) (iii), CEU) cccccccccccescesccccececececechte 13
-iii-
—
(
IN THE DISTRICT COURT OF APPEAL OF ri ORIDA
THIRD DISTRICT
CASE NO. 8684-793
URBANO TORRES,
Appellant,
vs.
THE STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR DADE COUNTY
INITIAL BRIEF OF APPELLANT
INTRODUCTION
The appellant, Urbano Torres, was the defendant in the trial
court and the appellee, the State of Florida, was the
prosecution. In this brief, the appellant will be referred to as
Gefendant and the appellee as the state.
The symbol "R" will be utilized to designate the record on
appeal, the symbol "Tr" the transcript of proceedings included in
the record, and the symbol "S.R." the supplemental record on
appeal. All emphasis is supplieé unless the contrary is
indicated.
G
td
STATEMENT OF TRE CASE
An indictment charging Gefendant with first-degree murder
ané robbery was filed on March 10, 1983 (R. 1+2A). On October 4,
1983, Gefendant entered a guilty plea to the charges, and the
trial court entered judgment and imposed concurrent terms of life
ané 15 years of imprisonment (R. 43-47).
Defendant filed a motion for post-conviction relief on
November 8, 1983 (R. 117-23). The trial court conducted an
evidentiary hearing on Pebruary 6, 1984 (R. 117-18; S.R. 1-45).
An order denying the motion was entered on March 16, 1984 (R.
249). Notice of appeal was filed on April 5, 1984 (R. 255).
POINT ON APPEAL
WHETHER THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF,
WHERE TRE EVIDENCE BEFORE THE COURT FAILED TO
ESTABLISH THAT DEFENDANT RAD KNOWINGLY AND
VOLUNTARILY WAIVED RIS PRIVILEGE AGAINST SELF-
INCRIMINATION AND HIS RIGHTS TO A TRIAL BY
JURY, CONFRONTATION OF ADVERSE WITNESSES, AND
COMPULSORY PROCESS, AS GUARANTEED BY THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES AND ARTICLE
1, SECTIONS 9 AND 16 OF TRE CONSTITUTION OF THE
STATE OF FLORIDA, IN THE ENTRY OF HIS GUILTY
PLEA TO THE CHARGES IN THIS CASE.
STATEMENT OF TRE FACTS
Defendant was arrested on February 20, 1983, on charges of
first-degree murder and robbery (R. 3). The Public Defender was
appointed to represent defendant at a first-appearance hearing on
Pebruary 21, 1983 (R. 4). A grand jury indictment charging
@efendant with first-degree murder and robbery was filed on March
=2<
G3
10, 1983 (R. 1-2A).
The trial court appointed Harold T. Pields as a special
assistant public defender on June 7, 1983 (R. 116). Mr. Fields
thereafter filed several motions to suppress physical and
testimonial evidence (R. 9-13, 127), which were heard by the
court on October 3, 1983 (R. 127-27A, 128-96).1 Prior to taking
testimony on the motions, the court inquired regarding the status
of any plea negotiations, and was advised by the parties that the
state had offered to agree to a life sentence on the murder
charge if defendant were to enter a guilty plea, but that a death
sentence would be sought if the case proceeded to trial and
resulted in a first-degree murder conviction (R. 138-41). The
court thereafter heard testimony on the motions to suppress (R.
141-86), and denied the motions at the conclusion of the hearing
(R. 193-94). The court stated that jury selection would commence
on the following morning (R. 194).
At the commencement of the proceedings on the next morning,
October 4, 1983, the prosecutor announced that the parties had
negotiated a guilty plea to first-degree murder and had agreed
upon a sentence of life imprisonment for that offense, with a
concurrent sentence on the robbery count left to the court's
Giscretion (R. 199). Defendant was then sworn, as was an
interpreter to translate the proceedings for him (R. 199), and
1
Included in the record on appeal is Mr. Fielé's affidavit in
support of his motion for attorney fees, which motion details his
preparation of the case between the date of his appointment and
the hearing (R. 112-14).
-3-
C3
€ 4
the following then transpired:
(R. 200).
The Court: All right.
Mr. Torres, please state your name, for
the record.
The Defendant: . . . Urbano Torres.
The Court: How old are you, please?
The Defendant: Twenty years.
The Court: Mr. Torres, are you aware of
the charges against you?
The Defendant: Yes, I an.
The Court: Your attorney has indicated
at this tim® you are going to enter a plea to
the matter of guilty with the understanding
the Court will sentence you to life, 25 years
minimum mandatory. That this was negotiated
with that the State was seeking the death
penalty in your case as you are well aware.
Additionally, this case involved
confessions and certain legal issues that have
already been litigated by the Court; already
[resolved] by the Court against you, and your
[sic] electing, at this point, to enter a plea
after having fought the case up to this point;
is that correct?
You're entering this plea of guilty; is
that correct?
Defendant did not respond to this question, and counsel
requested and was afforded opportunity to speak with him (R.
200). Thereafter, the following transpired:
Mr. Novick [assistant state attorney):
Judge, back on Urbano Torres' case.
The Court: Mr. Torres, there are certain
rights that you are giving up by entering this
plea. You are giving up the right to a trial
by jury. The right to be tried by the Court
and you are also giving up the right to have
your case appealed. That is to appeal the
judgment and sentence of the Court if we were
to, but which we are not having a trial.
You are stipulating to a prima facie case
of guilt here and need --
Mr. Novick: I would ask the Court to
{rely) on what we heard yesterday.
The Court: I think we did hear during the
Suppression, no objection utilates [sic] those
factors; [for] the purpose of finding a prima
facie case of guilt.
The Court should further point out that I
was made at least aware that there were at
least, even if the lawyers differ, as to how
they would be weighed in terms of death. What
the State considered to be five good
coeteses ss “-- one of which is involvement in
the other similar type of case in the past.
. « « But there was s death involved; was
there not?
Mr. Novick: Correct. Wasn't similar.
In fact there was in Los Angeles.
The Court: Mr. Torres, under the
ene is this what you are going to
0?
The Defendant: Yes.
(R. 200-02).
The court then inquired of counsel, who agreed that he was
satisfied that defendant understood "the nature of this and
appreciate([d) the consequences of his guilty plea” (R. 202),
after which the court imposed sentence:
The Court: All right.
The Court at this time, based upon the
Stipulated facts during the suppression
hearing, the Court finds that you are doing
this freely and voluntarily.
Mr. Torres has been represented by a
competent attorney and the Court will find the
facts which the State would be prepared to
prove and which [are] admitted by your plea of
guiltly] would be sufficient to sustain the
finding of guilty by the trier of fact.
All right. Judgment [and] sentence --
the Court as to count one, the Court will
sentence you to a term of life imprisonment.
Count two, being a concurrent 15 and
pursuant to the statute, 25 year minimum
mandatory. ...
(R. 202).
Defendant filed a motion for post-conviction relief
approximately one month after this proceeding, on November 6,
1983 (R. 117-23). The motion alleged in pertinent part that the
conviction had been "obtained by [a] plea of guilty which was not
-5-
made voluntarily with the understanding of the consequences of
the plea.” (R. 121).2 The court afforded defendant an
evidentiary hearing on the motion on February 6, 1984 (R. 117).
Defendant testified that he is 20 years of age, that he haa
come to the United States from Cuba four years earlier, that he
had completed the seventh grade in Cuba, and that he can neither
speak nor write in English (S.R. 9-10).3 Defendant described his
conversation with Mr. Fields prior to the guilty plea proceedings
as follows:
[T)hree or four days before I was sentenced,
the attorney .. . went to the cells there
Gown below and he told me that they were
asking the electric chair for me.
I told him that I was innocent, that,
please, to do something for me. He said, no,
I can't do anything for you. And he said to
me, you are going to plead guilty? And I
2
The motion alleged, as facts in support of this claim, the
following:
Defendant pleaded guilty on the basis of
threats by the police that he would certainly
receive the death penalty if he did not do
so. When he asked his attorney for advice, he
was told the same thing. Seeing no possible
way to win in this situation, since his Court-
appointed counsel did not appear to be willing
to use his full abilities to prevent a
conviction, and given the threats of the
police, the Defendant unwillingly pleaded
guilty.
(R. 121). The motion also raised a claim that defendant's
conviction had been "obtained by use of [a] coerced confession’,
and asserted that his post-arrest statement had been secured by
threats that a death sentence would be imposed if he failed to
confess (R. 121). This claim is not being presented on this
appeal.
3
Defendant testified through an interpreter (S.R. 3).
-6-
€ (
said, yes. Be said, why? That is because I
have no family here and I was scared that my
mother should find out that they had -- that
they had put me in the electric chair.
(S.R. 8). Defendant stated that Mr. Fields had told him that the
circumstances of the case and his prior record were such that the
trial judge would likely impose a death sentence (5.R. 17-18).
Defendant stated that he had had a conversation with Mr.
Fields in the jury room on the morning of October 4, 1983, with
the assistance of an interpreter (S.R. 24). He was questioned as
follows by the prosecutor regarding the plea colloguy:
Q. Now, after you spoke to Mr. Fields
with the interpreter on Tuesday, you came out
in front of the Court, this Judge right here,
right?
A. Yes.
* * *
Q. And the Judge asked you a lot of
questions, right?
A. Tome? No. To the lawyer. I didn't
speak that day.
Q. You didn't speak that day at all?
A. I spoke when I did this with my hand
Q. When you took the oath, you talked
and you talked no more?
A. No. No.
Q. Do you remember the judge...
asking you whether or not you wanted to plead
guilty?
A. I remember that he asked me, but I
plead guilty because the lawyer had told me
that if I didn't they were going to give me
the electric chair.
Q. * * * You do remember him asking you
if you wanted to plead guilty?
A. Yes.
Q. And you answer, at least on that
Tuesday, was yes?
A- Yes.
* * *
Q. And the judge asked you for your age
“Jeo
C C
ané little bit about your education
background, right?
A. Yes.
Q. He asked you whether you were taking
any @rugs or had anything wrong with your
head, right?
A. Yes. I think so. Yes.
* * *
Q. He asked you whether you understood,
if you @id plead guilty, that this was an
agreement, a deal, which your attorney had
worked out with me to save you from the
electric chair and that you would have to
spend at least 25 years in jail; the Judge
asked you whether you understood what you were
going to have to do. Do you remember that?
A. Yes. I remember.
- « « « You remember the judge asking
you whether or not everything [counsel] did
was okay with you, you were satisfied with him
and you said, yes, it was okay with you?
A. No, I don't remember.
(S.R. 24-26).4
Mr. Fields testified that he had prepared defendant's case
for trial, and had had several conversations with him, during
which he advised defendant that the state had sufficient proof to
proceed with a first-degree murder prosecution and a sentencing
phase (S.R. 30-31). Mr. Fields recalled his conversation with
Gefendant on the morning of the plea proceedings (S.R. 34), and
testified that "[i]t was my opinion that I couldn't win the case,
and .. .I1 certainly could have told him that.” (S.R. 38). He
also testified that defendant had maintained his innocence, but
had expressed his willingness to accept the negotiated plea to a
Defendant also testified that he recalled the recess which had
been taken during the guilty-plea proceedings, and that Mr.
Fields had spoken to him during the recess and "said that I had
promised him that I was going to plead guilty ... ." (S.R. 27).
-8-
G9
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life sentence (S.R. 33-34, 37-38). Mr. Pields did not
specifically recall the plea colloquy (S.R. 34). He stated his
opinion that defendant “plead guilty because he believed it was
in his best interest, as I did." (S.R. 41).
At the conclusion of the hearing, the prosecutor advised the
court that he had ordered a transcript of the guilty-plea
proceeding (S.R. 43-44). The transcript of that proceeding was
thereafter obtained and filed, as was the transcript of the
suppression hearing (R. 128-96, 197-204; Tr. 2, 8-10).
The court
denied the motion on March 16, 1984 (Tr. 8).>
The court stated no findings of fact or law in denying the
motion (S.R. 8). Its written order states °the allegations
contained [in the motion] do not constitute legal grounds for
Granting a [nJew [t)rial ...." (R. 249).
-9-
SUMMARY OF ARGUMENT
Both the United States Supreme Court and the Supreme Court
of Florida expressly have held that a defendant must be advised
of his privilege against self-incrimination and rights to a jury
trial, to compulsory process, and to confront adverse witnesses,
and must intelligently waive those rights prior to the entry of a
guilty plea. The trial judge in this case failed to advise
defendant adequately or to secure personal waivers of the rights
which defendant abandoned by entering the plea.
Waivers of constitutional rights may not be presumed from a
silent record, but rather must be demonstrated to be intentional
relinquishments of known rights or privileges. The record of the
plea proceedings in this case fails to establish valid waivers
under this standard, and the testimony educed at the evidentiary
hearing fails to remedy this deficiency. Defendant's guilty plea
accordingly is constitutionally invalid.
-10-
ARGUMENT ©
TRE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR POST-CONVICTION RELIEF, WHERE THE
EVIDENCE BEFORE THRE COURT FAILED TO ESTABLISH
THAT DEFENDANT HAD KNOWINGLY AND VCLUNTARILY
WAIVED HIS PRIVILEGE AGAINST SELF-
INCRIMINATION AND HIS RIGHTS TO A TRIAL BY
JURY, CONFRONTATION OF ADVERSE WITNESSES, AND
COMPULSORY PROCESS, AS GUARANTEED BY THE
FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION OF THE UNITED STATES AND ARTICLE
I, SECTIONS 9 AND 16 OF THE CONSTITUTION OF
TRE STATE OF FLORIDA, IN THE ENTRY OF HIS
GUILTY PLEA TO THE CHARGES IN THIS CASE.
A guilty plea “is more than an admission of past conduct; it
is the defendant's consent that judgment of conviction may be
entered without a trial -- a waiver of his right to trial before
a jury or judge.” Brady v. United States, 397 U.S. 742, 748
(1970). It is therefore fundamental that a guilty plea must be
entered knowingly and intelligently, with full awareness of the
consequences thereof. E.g., McMann v. Richardson, 397 U.S. 759,
766 (1970); Mikenas v. State, 460 So.2d 359, 361 (Fla. 1984);
Ward v. State, 433 So.2d 1221, 1223 (Fla. 3d DCA 1983). The
question presented in the present case is whether the record --
that is, the plea colloquy and the evidence presented to the
trial court at the evidentiary hearing -- establish a knowing and
intelligent guilty plea by defendant. ®
The specific claim in defendant's pro se motion to which this
argument is directed avers that his conviction had been obtained
“py [a] plea of guilty which was not made voluntarily with the
understanding of the consequences of the plea." (R. 121). While
the facts asserted in support of that claim are focused on
defendant's fear of a death sentence, (R. 121), a fact which,
standing alone, will not invalidate an otherwise-valid guilty
lea, e.g., Brady v. United States, 397 U.S. at 755, the required
iberal reading of the motion, e.g., State v. Stacey, No. 66,447
(Cont. )
-jl-
Boykin v. Alabama, 395 U.S. 238 (1969), established the
reguisites for the waiver of constitutionally-guaranteed rights
which is inherent in a guilty plea:
Several constitutional rights are
involved in a waiver that takes place when a
plea of guilty is entered in a state criminal
trial. First, is the privilege against
compulsory self-incrimination guaranteed by
the Fifth Amendment and applicable to the
States by reason of the Fourteenth. Second,
is the right to trial by jury. Third, is the
right to confront one's accusers. We cannot
presume a waiver of these three important
federal rights from a silent record.
What is at stake for an accused facing
death or imprisonment demands the utmost
solicitude of which courts are capable in
canvassing the matter with the accused to make
sure he has a full understanding of what the
plea connotes and of its consequence .
Id. at 243-44 (footnote and citations omitted). This requirement
is codified in Rule 3.172(c) of the Plorida Rules of Criminal
Procedure, which states in pertinent part:
(c) . . - [T]he trial judge should, when
determining voluntariness, place the defendant
under oath and shall address the defendant
personally and shall determine that he
understands the following:
* ® *
(iii) That he has the right to plead not
guilty or to persist in that plea if it has
already been made, and that he has the right
to be tried by a jury and at that trial has
the right to the assistance of counsel, the
right to compel attendance of witnesses on his
behalf, the right to confront and cross-
examine witnesses against him, and the right
not to be compelled to incriminate. himself.
(Fla. Oct. 17, 1985); Nova v. State, 439 So.24d 255, 259 (Fla. 34
DCA 1983), entitled defendant to litigate the constitutional
validity of the plea.
-l]2-
e ‘@ e
(v) That if he pleads guilty .. . there
will not be a further trial of any kind, 60
that by pleading guilty ... he waives the
right to a trial....
Fla.R.Crim.P. 3.172(c) (iii), (iv).
Discussing Boykin and the predecessor to Rule 3.172 in
Williams v. State, 316 So.2d 267 (Pla. 1975), the Supreme Court
of Florida held that the following are the “three essential
requirements” of a valid guilty plea: °(1) the plea must be
voluntary; (2) the defendant must understand the nature of the
charges and the consequences of his plea; and (3) there must be
factual basis for the plea." Id. at 271. In analyzing the
second component, the court stated:
[The accused] must also know that entry of a
guilty plea constitutes a waiver of certain
pirat fat fs rights, specifically his right
to remain silent, have a jury trial, have
process to obtain witnesses on his behalf, and
confront witmesses who are his accusers.
Ibid (citation omitted). Waivers of these fundamental rights
must be by the accused, and cannot be waived by counsel in his or
her stead. See, e.g., Brookhard v. Janis, 384 U.S. 1, 7-8
(1966).
The colloquy in this case is egregiously insufficient under
these standards, and is not saved by the evidence presented to
the trial court at the evidentiary hearing. The record of the
plea proceedings shows that defendant spoke on only three
occasions: first, to be sworn, second, to state his name, age,
and say “Yes" when asked if he was “aware of the charges” (R.
199-200), and on a third occasion, which was the only time during
-13- eit
och
-
( (
.
the entire course of the hearing when the court ever touched upon
the requirements of Boykin and Williams.
Prior to this inguiry, the court had advised defendant of
the terms of the negotiated plea, and had twice asked defendant
if he was electing to enter a guilty plea; defendant failed to
answer, and a brief recess was taken for counsel to consult with
Sefendant (R. 200). After this recess, the following transpired:
The Court: Mr. Torres, there are certain
rights that you are giving up by entering this
lea. You are givin up the te Ae ne #. @ trial
by jury. The r ri ht to e tr the _ puck
and you are also givin "up the T Ight to have
er East Bppeared. Th at is to appe sppesl the —
udgment and sentence of the Court if we were
to, but which we are not having a trial.
You are stipulating to a prima facie case
of guilt here and need --
Mr. Novick: I would ask the Court to
[reply) on what we heard yesterday.
The Court: I think we did hear during
the suppression, no objection utilates [sic]
those factors; [for) the purpose of finding a
prima facie case of guilt.
The Court should further point out that 1
was made at least aware that there were at
least, even if the lawyers differ, as to how
they would be weighed in terms of death. What
the State considered to be give good
aggravating -- one of which is involvement in
the other similar type of case in the past.
- « « But there was a death involved; was
there not.
Mr. Novick: Correct. Wasn't similar.
In fact there was in Los Angeles.
(R. 200-01). Immediately after this statement was made by the
prosecutor, defendant spoke for the third and last time in the
proceedings, as follows:
The Court: Mr. Torres, under the
circumstances, is that what you are going to
rai The Defendant: Yes.
(R. 201-02). The court then announced its judgment and sentence
-})4@-
(R. 202).
Thus, the court utterly failed to advise defendant, as
required by Boykin, Williams, and Rule 3.712, of his privilege
against self-incrimination, and his rights of confrontation and
to compulsory process. But more importantly, the court failed to
secure any waiver of any of the rights which the guilty plea
abandoned by defendant himself; indeed, defendant was never even
asked if he wished to plead guilty or was in fact doing so. The
only occasion on which these matters arose, as detailed above,
was when the court briefly touched on defendant's right to a jury
trial and to an appeal, but that was followed by a discussion of
the factual basis of the plea and the state's intention to seek
Geath, and the court's ultimate question of °is this what you are
going to do* addressed nothing in particular and was certainly
not the specific inguiry mandated by Boykin and Williams.
The record of the plea proceeding utterly fails to prove an
effective waiver of any rights under the controlling definition
of a valid waiver of constitutional rights:
*"{[Clourts indulge in every reasonable
presumption against waiver” of fundamental
constitutional rights and... *éo not
presume acquiescence in the loss of
fundamental rights." A waiver is ordinarily
an intentional relinguishment of a known right
or privilege. ...
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes omitted);
accord, Boyd v. Dutton, 405 U.S. 1, 2-3 (1972); Carniley v.
Cochran, 369 U.S. 506, 514-15 (1962); Mason v. State, 176 So.2¢
76, 78 (Fla. 1965); Nova v. State, 439 So.2d 255, 262 (Fla. 3d
DCA 1963). This standard was adopted in Boykin as the governing
-15-
me
‘
Vv
4
rule for a waiver of constitutiona!] rights in guilty-plea
proceedings, 395 U.S. at 242, and the incomplete advice by the
trial court, in combination with its failure to secure fror
@efendant any meaningful waiver, establish the insufficiency of
the colloguy and the invalidity of the plea.
Nor can the record of the evidentiary hearing be relied upon
to cure these deficiencies; to the contrary, the testimony at
that hearing simply re-affirms them. Counsel for defendant dia
not recall the colloguy (S.R. 34), and defendant's testimony with
regard to the colloquy is a fairly accurate depiction of the
court's inquiries and statements (S.R. 24-26).7? The record of
the hearing thus provides no support for a finding that defendant
intelligently waived his privilege against self-incrimination and
rights to a jury trial, compulsory process, and to confront
adverse witnesses, at the time of the plea. Cf. State v. Brest,
421 So.2d 638 (Fla. 3d DCA 1982) (defendant's disavowal of plea at
post-conviction hearing as product of confusion and fear legally
insufficient to undo plea entered after thorough and
constitutionally-sufficient inquiry by court).
7
Defendant initially stated that he had only spoken during the
plea proceedings when placed under oath, but thereafter
acknowledged that he had given his name and other identifying
information (S.R. 24-25). However, under questioning by the
prosecutor on cross-examination, defendant agreed that he had
answered questions which had never been asked, e.g., regarding
his mental state, and given answers which he had, in fact, never
given at the proceeding, €.9., agreeing that he desired to pleas
guilty (S.R. 25-26). Defendant was never asked if he had known
of the rights which his guilty plea had waived; the prosecutor
relied upon the transcript of the plea proceeding to argue to the
court that the colloguy had been constitutionally sufficient (Tr.
6).
-16-
wmerny
ee
A guilty plea “is an extremely important step in the
criminal process ané@ should not be hurried or treated
summarily.” Williams v. State, 316 So.2d at 271 (footnote
omitted). It was "error, plain on the face of the record, for
the trial judge to accept [defendant's) guilty plea without an
affirmative showing that it was intelligent and voluntary.”
Boykin v. Alabama, 395 U.S. at 242.
CONCLUSION®
Based upon the foregoing, defendant requests this Court to
reverse the final order of the court below, and to remand this
cause with directions to grant defendant's motion for post-
conviction relief, vacate the judgment and sentence in this
cause, and afford defendant an opportunity to plead anew to the
charges against him.
Respectfully submitted,
BENNETT H. BRUMMER
Public Defender
Eleventh Judicial Circuit
of Florida
1351 Northwest 12th Street
Miami, Florida 33125
(305) 545-3005
BY: 4
LLIOT KR. SCHERKER
Aberetant Public Defender
“i14-<-
s}
€ 2)
CERTIFICATE OF SERVICE
I REREBY CERTIFY that @ true and correct copy of the
foregoing was forwarded by mail to the Office of the Attorney
General, JIM SMITH, 401 N.W. Second Avenue, Suite 820, Miami,
Florida 33128 this 59,, day of October, 1985.
LLIOT H. SCHERKER
A ant Public Defender
-le- be
ree)
IX THE DISTFICT COVRT OF APPLE:
OF FLORIDE
THIRD DIJSTKICI
CASE NO.
84-793
URBANO TORRES,
Appellant,
THE STATE OF FLORIDA,
Appellee.
a a 2
AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA
CRIMINAL
DIVISION
See@+re*zae*+ eet aeeeeneengeeeeneanrenrtnk eee Bee 2? t& 2
BRIEF OF
APPELLEE
JIM SMITTH
Attorney General
Tallahassee, Florida
RICHARD E. DORAN
Assistant Attorney General
Ruth Bryan Owen Rohde Building
Florida Regione] Service Center
401 N.W. 2nd Avenue, Suite E:¢
Miami, Florida 33128
(305) 377-5441
TAPLE OF CONTENTS
TABLE OF CITATIONS
Ee ee ee ee ee ee oe oe oe a a a oe a |
INTRODUCTION
Fe ee a ee ee ee eo a a
POINT ON APPEAL
Ee eo eS ee ee ee ee ee i er oe a
SUMMARY OF ARGUMENT
[Seer ere ere ee ae ea eeeseeeneveesene
ARGUMENT
Fe Te ee ae ee a we ee a oe a er 2 2
CONCLUSION
CERTIFICATE OF SERVICE
an)
TAPIY OF CITATIONS
Allen v. State,
463 So.2d 361 (Fla. lst DCA 1985)
Eisaman v. State,
440 So.2d 470 (Fle. 5th DCA 1983)
Kennedy v. Stste,
So.2d (Fla. 2nd DCA case no. 84-2739,
July 19, 1985)[10 F.L.W. 1769)
Martinez v. State,
417 So.2d 770 (Fle. 2nd DCA 1982)
Mikenas v. State,
460 So.2d 359 (Fla. 1984)
Williams v. State,
316 So.2d 267 (1975)
OTHER AUTHORITIES
Fith Amendment, United States Constitution
Sixth Amendment, United States Constitution
Fourteenth Amendment, United States Constitution ..
Section 9, Article 1, Florida Constitution
Section 16, Article 1, Florida Constitution
Rule 3.170(J), Fla.R.Crimn.P.
Rule 3.172, Fla.R.Cric.P.
Rule 3.172(i), Fla.R.Crim.P.
ii
ee ee eww wwe wees
Aaa een we ee a tk ee oe ee at fo ge
eo wy
LAAs ee eee ee a eS ay
oe oe ee ee ee el a et ie ae eg
RES 2 P2886 6 OOS 0 © See
PACE
ts 2
IKTRODUCTION
The Appellant, Urbano Torres, was the defendant in
the trial court and the Appellee, the State of Florids, was
the prosecution. In this brief, the Defendant will be
referred to as Appellant sand the State as the Appellee.
The symbo) "R'' will be utilized to designate the record
on eppeal and the symbol] "S.R." the supplemental record
of the February 6, 1984 hearing. All emphasis is supplied
unless the contrary is indicated.
POINT OX APPEA!
WHETHER THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF, WHERE THE EVIDENCE BEFORE THE
COURT FAILED TO ESTABLISK THAT DEFENDANT
HAD KNOWINGLY AND VOLUNTARILY WAIVED H1S
PRIVILEGE AGAINST SELF-INCRIMINATION AND
HIS RIGHTS TO A TRIAL BY JURY, CONFRON-
TATION OF ADVERSE WITNESSES, AND COMPULSORY
PROCESS, AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE CON-
STITUTION OF THE UNITED STATES AND ARTICLE
1, SECTIONS 9 AND 16 OF THE CONSTITUTION
OF THE STATE OF FLORIDA, IN THE ENTRY OF
H1S GUILTY PLEA TO THE CHARGES IN THIS
CASE.
SUMMARY OF ARCIMENT
Appellant relies upon Rule 3.172, Fla.R.Crim.P. (1977)
and various United States Supreme Court decisions in con-
tending his plea of guilty to crimes of first degree murder
and robbery must be set aside due to an inadequate plea
colloquy. This contention does not justify reversal because
Rule 3.172(i), supra , requires a showing of prejudice
to render the plea void. Appellant fails to argue that he
was prejudiced and the record provides ample evidence that
Appellant was not prejudiced. Allen v. State, 463 So.2d
36] (Fla. lst DCA 1985); Martinez v. State, 417 So.2d 770
(Fla. 2nd DCA 1982).
GC
at
ATCIMENT
THE TRIAL COURT'S DENIAL OF A MOTION
TO VACATE THE APPELLANT'S PLEA OF
GUILTY SHOULD BE AFFIRMED WHERE
THE APPELLANT FAILED TO ARGUE OR
ESTABLISH PREJUDICE AS REQUIRED BY THE
RULES OF CRIMINAL PROCEDURE AND THE
UNITED STATES SUPREME COURT.
Rule 3.172, Fla.R.Crim.P. (1977) expanded former Rule
3.170(J), codified the Florida Supreme Court decision,
Williams v. State, 316 So.2d 267 (1975) and thereby incorpo-
rated the necessary factors to satisfy federal constitutional
standards on guilty pleas. Mikenas v. State, 460 So.2d
359, 361 (Fla. 1984). In applying this standard to the case
sub judice it can be said the Appellant has described the
exchange between the trial court, defendant and defense
counsel in a fairly accurate manner. However, Appellant's
suggestion that a certain inference be made in his favor
contradicts the wel] established rules of appellate procedure
on argument of such points. This contention regards Appel-
lant's observation that no plea of guilty was ever entered
by him and that his response of "yes" to the trial court's
inquiry "Mr. Torres, under the circumstances, is that what
are you going to do?", failed to relate to any particular
matter. This plainly ignores the qualifying phrase "...
under the circumstances ...'', andthe detailed recitation
\
«
\
of rclevart corsicerations for the Appellant's corsideratior
made by the trial] court moment's before. (R. 200-02).
Appellee contends that the trie] court's plea colloquy
supports a ruling that the plea was entered volunterily
and with en understanding of the significance of the terms
and conditions. Appellant's motions to vacate concedes
the facts that he knew the nature of the charge and the
penalty range at the time of the plea. (R. 121). The
record reflects Appellanthad alawyer (appointed) who had
handled every aspect of the case and attended each stage
of proceedings with Appellant. (R. 111-16 and the record
on appeal in general) (supplemental transcript of February
6, 1984 hearing, P. 29-36). Lastly, the record reflects
the trial court told Appellant his plea would waive the
right to a trial, by jury or judge, and the right to appeal.
(R. 200). The testimony of Defense counsel, Mr. Fields
at the February 6th hearing indicates the Appellant was
aware of the terms of the plea - life imprisonment as opposed
to death - prior to the entry of plea of guilty the following
day. (S.R. 37-38). Lastly, the testimony of the various
police witnesses regarding seized evidence and Appellant's
confession presented during hearings before the same judge
on three suppression motions (R. 9-12, 126-248) established
an overwhelming case of guilty. This testimony was what
“J
(, t
the prosecutor requested, withovt objection, to rely upon
to prove e primes facie case of guilt. (R. 200). Tran-
scripts of those hearings were introduced on this point
during the hearing on the motion to vacate (R. 126-248)
and the trial court noted hisrecollection of those hearings
on the record. (S.R. 44). This process satisfies the
minimum due process standards now at issue. Eisaman v.
State, 440 So.2d 470, 472 (Fla. Sth DCA 1983).
Against this array of information the Appellant makes
his constitutional] claims. However, nowhere in the record
or his appellate brief does Appellant address the issue
of prejudice as required by Rule 3.172(i):
Failure to follow any of the procedures
in this rule shal] not render a plea
void absent a showing of prejudice.
Accordingly his complaint is meritless. Martinez v. State,
417 So.2d 770, nt. 1 (Fla. 2nd DCA 1982); Kennedy v. State,
__ ‘ So.2d ___s (Filla. 2nd DCA case no. 84-2739, July 19,
1985)[10 F.L.W. 1769); Allen v. State, 463 So.2d 351, 362-63
(Fla. lst DCA 1985). Allen provides a footnote which lays
this issve to rest:
Rule 3.172, Florida Rules of Criminal
procedure, is analogous to Federal Rule
H
F0)
of Cricina) Procedure 1]. Williers
ea ee ae a re | Pos ee
There have been many federa) court
decisions dealing with challenges to
the validity of convictions where
the requirements of rule 1] have not
been met. These decisions almost
uniformally hold that a showing of
failure to comply with the role is
insufficient to void a conviction;
there must also be a showing of preju-
dice to the defendant. In United
States v. Timmreck, 441 U.S. 780, 99
S.ct. 2085, 60 L.Ed.2d 634 (1979),
the defendant collaterally attacked
his conviction on the ground that
the trial judge did mot properly conm-
ply with the formal requirements of
rule ll in that the court did no
advise him of the application of =)
special parole term. The court defied
relief to the defendant, noting that
he “does not argue that he was actu-
ally unaware of the special] parole
term or that, if he had been properly
advised by the trial judge, he would
not have pleaded guilty." Id. at 784,
99 S.Ct, st 2087. The Court held that
“collateral relief is not available
when el] that is shown is e failure
to comply with the formal] requirements
of the Rule." Id. at 765, 99 S.Ct.
at 2088. (case citations oritted).
Id. at 463.
The Timmreck decision has applicability in this case.
CANTLUSTON
Based upon the above-cited legs] authorities Appellee
requests this Honorable Court affirm the order denying
the motion to vacate guilty ples.
Respectfully submitted,
JIM SMITER
Attorney General
\ ‘ ' ;
) oe s- :
A Nat — og a hare
RICHARD E. DORAN
Assistant Attorney Geners]
Department of Legal Affairs
401 N.W. 2nd Avenue (Suite 820)
Miami, Florida 33128
(305) 377-544)
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the
foregoing BRIEF OF APPELLEE was furnished by mail to ELLIOT
H. SCHERKER, Assistant Public Defender, 135] N.W. 12th
Street, Miami, Florida 33125, on this 19th day of December,
1985. . ‘ ae
ve \
Pee <a
~~ -
\ -_——
RICHARD E. DORAN
Assistant Attorney Genera)
pa/
S39
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.