Harry Franklin Phillips v. State Of Florida
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Supreme Court of Florida
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No. SC00-2248
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HARRY FRANKLIN PHILLIPS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC01-1460
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HARRY FRANKLIN PHILLIPS,
Petitioner,
vs.
JAMES V. CROSBY, JR., etc.,
Respondents.
[October 14, 2004]
REVISED OPINION
PER CURIAM.
Harry Franklin Phillips, an inmate under the sentence of death, appeals an
order of the circuit court denying his amended motion for postconviction relief
under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1),(9), Fla. Const. For
the reasons that follow, we affirm the denial of Phillips’s postconviction motion
and deny the petition for habeas corpus.
I. PROCEEDINGS TO DATE
We have explained the facts of the case in a previous opinion:
In the evening of August 31, 1982, witnesses heard several
rounds of gunfire in the vicinity of the Parole and Probation building
in Miami. An investigation revealed the body of Bjorn Thomas
Svenson, a parole supervisor, in the parole building parking lot.
Svenson was the victim of multiple gunshot wounds. There
apparently were no eyewitnesses to the homicide.
As parole supervisor, the victim had responsibility over several
probation officers in charge of appellant’s parole. The record
indicates that for approximately two years prior to the murder, the
victim and appellant had repeated encounters regarding appellant’s
unauthorized contact with a probation officer. On each occasion, the
victim advised appellant to stay away from his employees and the
parole building unless making an authorized visit. After one incident,
based on testimony of the victim and two of his probation officers,
appellant’s parole was revoked and he was returned to prison for
approximately twenty months.
On August 24, 1982, several rounds of gunfire were shot
through the front window of a home occupied by the two probation
officers who had testified against appellant. Neither was injured in
the incident, for which appellant was subsequently charged.
Following the victim’s murder, appellant was incarcerated for
parole violations. Testimony of several inmates indicated that
appellant told them he had killed a parole officer. Appellant was
thereafter indicted for first-degree murder.
Phillips v. State, 476 So. 2d 194, 195-96 (Fla. 1985).
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In 1983, Phillips was convicted of one count of first-degree murder in the
death of a parole supervisor named Bjorn Svenson and sentenced to death. On
direct appeal, we affirmed that sentence. See Phillips, 476 So. 2d at 194.1
On November 4, 1987, Phillips filed a petition for writ of habeas corpus in
this Court raising one claim: that comments by the court and prosecutor throughout
the course of the proceedings resulting in Phillips’s sentence of death diminished
the jurors’ sense of responsibility for the capital sentencing task that they were to
perform, and had an effect on the jury, in violation of Caldwell v. Mississippi, 472
U.S. 320 (1985), and the Eighth and Fourteenth Amendments. We denied the
petition, finding the claim procedurally barred. See Phillips v. Dugger, 515 So. 2d
227, 228 (Fla. 1987).
The same day that Phillips filed his petition for writ of habeas corpus, he
also filed in the trial court a motion for postconviction relief raising ten claims.2
1. Phillips raised five issues on direct appeal: (1) the trial court erred in
allowing the State to elicit testimony relative to collateral uncharged crimes; (2)
the prejudicial comments elicited by the State deprived the defendant of the
fundamental right to a fair trial; (3) the trial court erred in refusing to give the alibi
instruction requested by the defendant; (4) the trial court erroneously found the
killing to have been especially heinous, atrocious, or cruel; and (5) the trial court
improperly found the homicide to have been committed in a cold, calculated and
premeditated manner.
2. The ten claims were: (1) the State’s use of false and misleading testimony
and the intentional withholding of material exculpatory evidence; (2) the State’s
use of jailhouse informants to obtain statements; (3) deprivation of an
individualized sentencing determination due to ineffective assistance at the penalty
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After an evidentiary hearing, the trial court denied the motion. On appeal, we
found that Phillips had received ineffective assistance of counsel at the penalty
phase of the trial and vacated his death sentence and remanded for a new
sentencing proceeding. See Phillips v. State, 608 So. 2d 778, 783 (Fla. 1992).
In April 1994, a new jury, by a vote of seven to five, again recommended a
sentence of death. The trial court followed the jury’s recommendation and found
the following four aggravators: (1) the defendant was under a sentence of
imprisonment at the time of the murder; (2) the defendant had prior convictions for
violent felonies; (3) the murder was committed to disrupt or hinder the lawful
exercise of a governmental function or the enforcement of laws; and (4) the murder
was committed in a cold, calculated, and premeditated fashion. The trial court did
not find any statutory mitigators, but it found that the following nonstatutory
mitigators applied: (1) Phillips’s low intelligence (given little weight); (2)
Phillips’s poor family background (given little weight); and (3) his abusive
phase; (4) trial counsel rendered ineffective assistance by allowing an incompetent
client to stand trial; (5) comments by the court and the prosecutor throughout the
course of the proceedings resulted in Phillips’s sentence of death, and diminished
the jurors’ sense of responsibility in violation of Caldwell v. Mississippi, 472 U.S.
320 (1985), and the Eighth and Fourteenth Amendments; (6) inconsistent jury
instructions relative to the jury’s role in sentencing; (7) the trial court’s shifting of
the burden of proof in its instructions and the prosecutor’s similar burden-shifting
comments on summation; (8) ineffective assistance of counsel at the guilt phase;
(9) Phillips’s absence during critical trial proceedings in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments; and (10) improper use of Phillips’s
prior felony convictions.
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childhood, including lack of proper guidance by his father (given little weight).
Phillips again appealed his sentence, raising six issues.3 We affirmed the sentence.
See Phillips v. State, 705 So. 2d 1320 (Fla. 1997).
On September 13, 1999, Phillips filed a motion for postconviction relief. He
subsequently filed an amended motion for postconviction relief raising twenty-four
claims on December 2, 1999.4 The trial court held a hearing pursuant to Huff v.
3. The six issues on direct appeal of his resentencing were: (1) Phillips’s
resentencing proceeding did not comport with the requirements set forth in Spencer
v. State, 615 So. 2d 688 (Fla. 1993); (2) the trial court mishandled the jury and
improperly influenced the jury to return a death verdict; (3) the "disrupt or hinder a
governmental function" aggravator was improperly and over-broadly submitted to
the jury and found by the court; (4) the State improperly made Phillips’s prior bad
acts, including uncharged matters, a focus of the resentencing, and introduced
unnecessary and unreliable evidence and hearsay regarding Phillips’s guilt; (5) the
trial court improperly allowed the State to strike an African-American from the
jury panel; and (6) the CCP aggravator cannot be constitutionally narrowed and
was improperly employed.
4. The twenty-four claims in Phillips’s amended motion for postconviction
relief were: (1) denial of the right to effective representation by the lack of funding
available to fully investigate and prepare postconviction pleadings, understaffing,
and the unprecedented workload on present counsel and staff; (2) denial of due
process and equal protection rights because access to the files and records
pertaining to Phillips’s case in the possession of certain state agencies had been
withheld in violation of chapter 119 of the Florida Statutes and Rule 3.852 of the
Florida Rules of Criminal Procedure; (3) deprivation of due process rights because
the State withheld evidence that was material and exculpatory in nature, which
rendered defense counsel’s representation ineffective and prevented a full
adversarial testing of the evidence at resentencing; (4) ineffective assistance of
counsel during voir dire in resentencing; (5) ineffective assistance of counsel when
critical information regarding Phillips’s mental state was not provided by
specialized experts; (6) denial of rights under Ake v. Oklahoma, 470 U.S. 68
(1985), at the resentencing; (7) deprivation of a fair trial guaranteed under the
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State, 622 So. 2d 982 (Fla. 1993), and thereafter summarily denied Phillips’s
amended motion.
Phillips now appeals the trial court’s denial of his postconviction motion and
petitions for a writ of habeas corpus, raising four claims of ineffective assistance of
appellate counsel. For the reasons explained below, we affirm the denial of
Sixth, Eighth, and Fourteenth Amendments due to a combination of procedural and
substantive errors during resentencing; (8) innocence of the death penalty; (9)
Phillips’s absence from critical stages of the trial; (10) ineffective assistance of
counsel for defense counsel’s failure to object to the sentence of death where the
jury instructions were incorrect under Florida law and shifted the burden to Phillips
to prove that death was inappropriate; (11) ineffective assistance of counsel where
trial counsel failed to object to the State’s introduction of nonstatutory aggravating
factors and the State’s arguments regarding nonstatutory aggravating factors; (12)
ineffective assistance of counsel where trial counsel failed to object to comments,
questions, and instructions which diluted the jury’s sense of responsibility; (13)
ineffective assistance of counsel where trial counsel was prohibited from
interviewing jurors to determine if constitutional error was present; (14) ineffective
assistance of counsel where defense counsel failed to object when the prosecutor
commented upon the aggravating circumstances; (15) execution by electrocution is
cruel and unusual punishment or both pursuant to the federal and state
constitutions; (16) Florida’s capital sentencing statute is unconstitutional on its
face and as applied in this case; (17) ineffective assistance of counsel where trial
counsel failed to object and argue that there was a violation of the Eighth
Amendment by the sentencing court’s refusal to find and consider mitigating
circumstances set out clearly in the record; (18) lack of an independent weighing or
reasoned judgment in the trial court’s sentencing order; (19) denial of a proper
direct appeal of appellant’s conviction and death sentence due to omissions in the
record; (20) the jury’s and judge’s reliance upon misinformation in sentencing
Phillips to death in violation of Johnson v. Mississippi, 486 U.S. 578 (1988); (21)
execution is prohibited due to insanity; (22) refusal of the trial court to instruct the
jury that mercy towards Phillips was a proper consideration in resentencing; (23)
denial of right to a fair proceeding before an impartial judge during resentencing;
and (24) denial of right to a fair proceeding before an impartial judge during the
postconviction proceedings.
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postconviction relief and deny the petition for habeas corpus. In light of the United
States Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002),
however, and our recent adoption of a rule implementing that decision, see
Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate
Procedure, 875 So. 2d 563 (Fla. 2004), we deny relief without prejudice to Phillips
seeking relief under that rule. We express no opinion about the merits of such a
motion.
II. 3.850 APPEAL
Phillips raises eleven claims: (1) the trial court improperly denied his
postconviction claims without an evidentiary hearing;5 (2) resentencing counsel
was ineffective for failing to argue that section 921.137, Florida Statutes (2001),
prohibiting the imposition of the death sentence on mentally retarded defendants,
applied to him; (3) his right to due process was violated when the trial judge denied
his claim regarding public records disclosure and his motion to disqualify the trial
judge; (4) the following sub-claims concerning the jury were improperly denied as
procedurally barred and meritless: (a) failure of resentencing counsel to use all of
his peremptory challenges; (b) the trial court’s jury instructions diminished the
5. Phillips asserts two sub-issues within his first claim: (1) ineffective
assistance of counsel where resentencing trial counsel did not present definitive
evidence regarding Phillips’s possible mental retardation and organic brain damage
from specialized experts in neurology and mental retardation; and (2) denial of
rights under Ake v. Oklahoma, 470 U.S. 68 (1985), at resentencing.
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jury’s sense of responsibility; (c) the prosecutor’s remarks during opening and
closing arguments in voir dire; (d) trial court’s jury instructions regarding voting
procedures; (e) the trial court’s jury instructions concerning premeditation and the
CCP aggravator; (f) jury instructions regarding feelings of prejudice, bias, and
sympathy; and (g) not having the opportunity to interview the jurors; (5) the trial
court and the prosecutor improperly shifted the burden of proof to the defendant to
establish that mitigating circumstances outweighed the aggravating circumstances;
(6) the following prosecutorial comments concerning nonstatutory aggravating
circumstances were improper: (a) comparing Phillips to his siblings; (b) Phillips’s
future dangerousness; and (c) the State’s use of a door-sized prop that charted
Phillips’s behavior during parole; (7) the trial court erred in summarily denying his
claim that he is innocent of the death penalty; (8) Phillips cannot be put to death
due to insanity; (9) the trial court improperly relied upon Phillips’s two prior
felony convictions during his resentencing in violation of Johnson v. Mississippi,
486 U.S. 578 (1988); (10) Phillips’s absence from unrecorded bench conferences
violated his right to be present at trial; and (11) cumulative error.
The bulk of Phillips’s claims on appeal are procedurally barred or without
merit.6 We address only certain claims that are not procedurally barred.
6. Claims 4(b), 4(c), 4(d), 4(f), 4(g), 5, 6(a), 6(b), 7, and 10 are all
procedurally barred because they should have been raised on direct appeal. See
Arbelaez v. State, 775 So. 2d 909, 919 (Fla. 2000); Maharaj v. State, 684 So. 2d
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A.
In claim 4(a), Phillips contends that his resentencing counsel rendered
ineffective assistance when he failed to exercise his two remaining peremptory
challenges. This Court has repeatedly held that in order to establish a claim of
ineffective assistance of counsel a defendant must prove two elements:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
Valle v. State, 778 So. 2d 960, 965 (Fla. 2001) (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)). In Valle, this Court explained further:
In evaluating whether an attorney’s conduct is deficient, “there
‘is a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,’” and the defendant
“bears the burden of proving that counsel’s representation was
unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.’ This Court has held that
defense counsel’s strategic choices do not constitute deficient conduct
if alternative courses of action have been considered and rejected.
Moreover, “[t]o establish prejudice [a defendant] ‘must show that
726 (Fla. 1996). Claims 4(e) and 6(c) are also procedurally barred because they
were raised and rejected on direct appeal. See Phillips v. State, 705 So. 2d 1320
(Fla. 1997). Claim 3 is facially and legally insufficient and is therefore denied.
See Maharaj, 684 So. 2d at 728; Holland v. State, 503 So. 2d 1250, 1251 (Fla.
1987).
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there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’’’
Id. at 965-66 (citations omitted) (quoting Brown v. State, 775 So. 2d 616, 628 (Fla.
2000), and Williams v. Taylor, 529 U.S. 362, 391 (2000)).
Phillips’s claim that resentencing counsel rendered ineffective assistance
when he failed to exercise his two remaining peremptory challenges is meritless.
No statute, rule, or case law requires a defense attorney to exercise all peremptory
strikes. Moreover, peremptory challenges are not constitutional rights or of
“constitutional dimension.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
“[Peremptory challenges] are a means to achieve the end of an impartial jury.” Id.
The ultimate result of voir dire is achieving an impartial jury, and Phillips fails to
demonstrate that his resentencing counsel’s performance was deficient during voir
dire and that such deficiency created a jury that was not impartial.
B.
Phillips’s eighth claim asserts that he cannot be executed due to insanity.
However, this claim cannot be raised until an execution is imminent. See Fla. R.
Crim. P. 3.811(c) (providing that “[n]o motion for a stay of execution pending
hearing, based on grounds of the prisoner’s insanity to be executed, shall be
entertained by any court until such time as the Governor of Florida shall have held
appropriate proceedings for determining the issue pursuant to the appropriate
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Florida Statutes”). Phillips’s execution is not imminent; no warrant has been
issued and no date has been set. Thus, this claim is untimely, and the trial court
properly denied it without an evidentiary hearing. See Hall v. Moore, 792 So. 2d
447, 450 (Fla. 2001).
C.
Phillips’s ninth claim asserts that the trial court improperly relied on two of
his prior felony convictions during resentencing, in violation of Johnson v.
Mississippi, 486 U.S. 578 (1988). The court found that the State presented
evidence of two prior felony convictions: (1) armed robbery, Eleventh Judicial
Circuit Case No. 73-2480B; and (2) assault with intent to commit first-degree
murder, Eleventh Judicial Circuit Case No. 62-6140C. In order to state a claim
under Johnson, a defendant must show that the conviction on which the prior
violent felony aggravator is based has been reversed. Phillips failed to demonstrate
and the record did not indicate that either of these convictions has been set aside,
vacated, or reversed. Thus, Johnson does not apply. See Henderson v. Singletary,
617 So. 2d 313, 316 (Fla. 1993). Therefore, this claim is meritless, and the trial
court properly denied it without an evidentiary hearing.
D.
Phillips next contends that the trial court erred in summarily denying other
claims, including a claim under Ake v. Oklahoma, 470 U.S. 68 (1985), and two
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ineffective assistance of counsel claims concerning resentencing counsel’s failure:
(1) to present definitive evidence of his organic brain damage and mental
retardation; and (2) to argue the application of section 921.137, Florida Statutes
(2001). A defendant is entitled to an evidentiary hearing on his motion for
postconviction relief unless (1) the motion, files, and records in the case
conclusively show that the defendant is not entitled to any relief, or (2) the motion
or a particular claim is facially invalid. See Cook v. State, 792 So. 2d 1197, 12011202 (Fla. 2001); Maharaj, 684 So. 2d at 728. In determining whether or not an
evidentiary hearing on a claim is warranted, we must accept the defendant’s factual
allegations to the extent the record does not refute them. See Atwater v. State, 788
So. 2d 223, 229 (Fla. 2001); Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). The
defendant must establish a prima facie case based upon a legally valid claim, and
mere conclusory allegations are insufficient to meet this burden. See Freeman v.
State, 761 So. 2d 1055 (Fla. 2000); Kennedy v. State, 547 So. 2d 912, 913
(Fla. 1989).
1. Presenting Evidence of Mental Retardation
Phillips asserts that the trial court erred by failing to conduct an evidentiary
hearing on his counsel’s failure to investigate and present further testing as to his
possible mental retardation and organic brain damage at the time of his
resentencing. Specifically, he contends that resentencing counsel never had him
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examined by a competent mental health expert for a definitive diagnosis of mental
retardation and organic brain damage. Postconviction counsel argued at the Huff
hearing and appellate counsel asserted at oral argument that a mental retardation
specialist and a neurologist were prepared to testify at an evidentiary hearing about
Phillips’s mental retardation and organic brain damage.
We disagree that counsel’s performance was deficient. The record in this
case is replete with mitigation testimony from both of Phillips’s mental health
experts, each of whom comprehensively evaluated Phillips and provided
significant testimony concerning Phillips’s possible mental retardation and organic
brain damage, such that the record conclusively establishes that counsel was not
ineffective in investigating and presenting evidence on this issue.
Both Dr. Joyce Carbonell and Dr. Jethro Toomer testified at Phillips’s initial
evidentiary hearing in 1988, before we remanded for new sentencing proceedings.
See Phillips, 608 So. 2d at 778. Dr. Carbonell interviewed Phillips for 4½ hours
and reviewed his prison records, personnel records, parole records, school records,
jail records, his attorney’s file, testimony and depositions, police reports, and
affidavits from his family, friends and a school teacher. She even spoke personally
to one of Phillips’s teachers. Dr. Carbonell administered a battery of tests,
including the Wechsler Adult Intelligence Scale Revised (WAIS-R), the Wide
Range Achievement test, Level 2 Revised (WRAT-R-2), the Peabody Individual
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Achievement Test (PIAT), the Rorschach test, the Wechsler Memory Scale, the
Canter Background Interference procedure for the Bender Gestalt, and the
Minnesota Multiphasic Personality Inventory (MMPI).
Although Dr. Carbonell did not testify personally at Phillips’s
resentencing—her testimony from the 1988 hearing was read into evidence—it
was apparently not due to any lack of diligence on the part of defense counsel.
Prior to resentencing, defense counsel asked the trial court to appoint Drs. Toomer
and Carbonell as his experts. Defense counsel subsequently indicated that he was
having trouble with Dr. Carbonell because she was ill, and was unable to schedule
another evaluation by Dr. Carbonell until the middle of trial. The State objected to
the lateness of this reevaluation, and the trial court refused to grant a continuance
to have Dr. Carbonell reexamine Phillips. On the day resentencing commenced,
defense counsel again moved for a continuance because Dr. Carbonell was
unavailable. However, the parties agreed to have Dr. Carbonell testify at a time
certain, alleviating the need for a continuance. The next day, defense counsel
indicated that he would be either introducing Dr. Carbonell’s testimony
telephonically or having her prior testimony read because her testimony had not
changed. Counsel later indicated that Phillips had agreed to use Dr. Carbonell’s
prior testimony instead of her telephonic testimony. The trial court asked Phillips
about this agreement, and Phillips confirmed it.
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Dr. Jethro Toomer did testify at the resentencing. He testified that he
evaluated Phillips in 1988 and again in 1994. Dr. Toomer met with Defendant for
3 to 3½ hours in 1988 and for an hour in 1994. During his interview, Dr. Toomer
gave Phillips the revised Beta IQ test, the Carlson Psychological Survey, the
Rorschach test, the Bender Gestalt Design test and the verbal reasoning portion of
the WAIS. In preparing to testify, Dr. Toomer also reviewed affidavits from
Phillips’s family, friends, teachers and coworkers, his school records, DOC
records, personnel file, documents used during his interviews with Phillips,
Phillips’s trial attorney’s file and the transcript of his prior testimony and of the
original trial. Dr. Toomer reviewed the affidavits and records to corroborate the
history Phillips had provided.
The comprehensive mental mitigation investigation performed in this case is
a far cry from those cases where we have found error in a trial court’s failure to
hold an evidentiary hearing to determine whether counsel failed to properly
investigate and present evidence in mitigation. See Ragsdale v. State, 720 So. 2d
203, 208 (Fla. 1998) (holding trial court erred in summarily denying defendant’s
ineffective assistance of counsel claim where “defense counsel never had him
examined by a competent mental health expert for purposes of presenting
mitigation” and defendant claimed that, among other things, he suffered from
organic brain damage and was mentally retarded); see also Arbelaez v. State, 775
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So. 2d 909, 913 (Fla. 2000) (finding that trial court erred in failing to hold
evidentiary hearing regarding defendant’s ineffective assistance of counsel claim
where defendant alleged that “no expert was appointed to evaluate him for the
purposes of presenting mitigation”); O’Callaghan v. State, 461 So. 2d 1354, 1355
(Fla. 1984) (holding that trial court erred in summarily denying defendant’s
ineffective assistance of counsel claim where defense counsel never conducted
psychiatric examination of defendant and called no mitigation witnesses at the
sentencing hearing despite mental health professional’s affidavit asserting
defendant exhibited evidence of brain damage and mental illness).
Moreover, we find no error in a trial court’s failure to hold an evidentiary
hearing on a defendant’s claim that defense counsel was ineffective for failing to
present evidence in mitigation where the record shows similar mitigation evidence
was presented through other witnesses. See Atwater, 788 So. 2d at 232-34; see
also Arbelaez, 775 So. 2d at 913 (finding no error in trial court’s failure to hold an
evidentiary hearing on defendant’s claim that defense counsel was ineffective for
failing to present adequate evidence or expert testimony as to defendant’s epilepsy
where the record showed that counsel presented evidence of defendant’s epilepsy
through defendant’s own testimony and the testimony of two of his friends).
In this case, the record is clear that each expert not only testified extensively
about the battery of tests administered to Phillips, they each also testified that
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Phillips was borderline mentally retarded and probably brain-damaged. Dr.
Toomer testified that Phillips “is in the borderline range of mental functioning.” He
also testified that Phillips’s results on the Bender Gestalt Design test “suggested
some motor perception problems, and there [were] discrepancies that reflected or
suggested that there was some organicity or brain damage.” Later Toomer stated
that the design Phillips drew “indicated or suggested” to him that Phillips had
organicity or brain damage. On cross-examination, Toomer testified that he found
some evidence of “mild organicity.” Dr. Carbonell testified that Phillips had a
verbal IQ of 75 and a performance IQ of 77, numerically putting him in the
“borderline” range, and that Phillips “is functioning at the level of many retarded
people.” She also testified that the type of closed head injury that Phillips
allegedly sustained do “not infrequently cause brain damage.” She later testified
that Phillips “possibly had a head injury that could have in fact further damaged his
level of functioning.” On cross-examination, Carbonell was asked whether
Phillips had brain damage, and she responded, “It’s a probability. It’s certainly a
possibility.”
Finally, the mere fact that the defense experts’ opinions were rejected does
not demonstrate that counsel was ineffective. See Teffeteller v. Dugger, 734 So.
2d 1009, 1020 (Fla. 1999). Instead, the failure can be attributed to Drs. Haber and
Miller’s opinions that Phillips’s intelligence was between average and borderline
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and that Phillips exhibited no evidence of brain damage. The fact that Phillips now
has new experts does not indicate that his counsel was ineffective, where counsel
did investigate and present evidence on these issues. See Cherry v. State, 781 So.
2d 1040, 1052 (Fla. 2000); Rose v. State, 617 So. 2d 291, 295 (Fla. 1993).
In sum, given the significant mental health investigation and testimony in
the record, we hold that the trial court did not err in denying Phillips’s claim
without an evidentiary hearing. Given that the record reflects that two mental
health experts were appointed in Phillips’s defense, and each performed a
comprehensive mental health evaluation of Phillips and testified thereto, we also
affirm the trial court’s summary denial of Phillips’s Ake claim.
2. Applicability of Section 921.137(1), Florida Statutes (2001)
Phillips next asserts that his resentencing counsel rendered ineffective
assistance for presenting insufficient evidence to show that his level of retardation
met the criteria set forth in section 921.137(1), Florida Statutes (2001).7
7. Section 921.137(1) provides:
As used in this section, the term "mental retardation" means
significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested during
the period from conception to age 18. The term "significantly
subaverage general intellectual functioning," for the purpose of this
section, means performance that is two or more standard deviations
from the mean score on a standardized intelligence test specified in
the rules of the Department of Children and Family Services. The
term "adaptive behavior," for the purpose of this definition, means the
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Resentencing counsel cannot be deemed ineffective, however, because section
921.137, the statute prohibiting the execution of mentally retarded defendants, did
not even exist at the time of Phillips’s resentencing or subsequent direct appeal.8
Nevertheless, we do not preclude Phillips from raising the retroactive application
of section 921.137 in a subsequent proceeding. Nor do we address the potential
merits of a claim under Atkins, 536 U.S. at 304, or Florida Rule of Criminal
Procedure 3.203 (Defendant’s/Prisoner’s Mental Retardation as a Bar to
Execution). Phillips is free to file a motion under rule 3.203. See Amendments to
Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 875
So. 2d 563 (Fla. 2004). We express no opinion regarding the merits of such a
claim.
Finally, regarding Phillips’s cumulative error claim, Phillips’s individual
claims are either procedurally barred or meritless. No finding of cumulative error
is appropriate under these circumstances. See Vining v. State, 827 So. 2d 201, 209
(Fla. 2002) (stating that where the alleged individual errors are without merit, the
contention of cumulative error is also without merit).
effectiveness or degree with which an individual meets the standards
of personal independence and social responsibility expected of his or
her age, cultural group, and community. The Department of Children
and Family Services shall adopt rules to specify the standardized
intelligence tests as provided in this subsection.
8. Section 921.137, Florida Statutes (2001), was enacted on June 12, 2001.
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III. HABEAS CORPUS
Phillips raises four claims in his petition for writ of habeas corpus: (1)
whether appellate counsel rendered ineffective assistance in failing to raise on
appeal the admissibility of Detective Smith’s hearsay testimony; (2) whether
appellate counsel rendered ineffective assistance when he failed to raise the issue
that the execution of a mentally retarded defendant was a violation of the
prohibition against cruel or unusual punishment; (3) whether appellate counsel
rendered ineffective assistance when he failed to raise on appeal an issue relative to
the admissibility of Dr. Miller’s testimony at resentencing; and (4) whether
appellate counsel rendered ineffective assistance when he failed to raise on appeal
other trial court rulings which may have warranted a new resentencing. We find
no merit to any of these claims.
In his first habeas claim, Phillips contends that appellate counsel was
ineffective for failing to raise the admissibility of Detective Greg Smith’s hearsay
testimony from jailhouse witnesses. Resentencing counsel did not raise a specific
objection regarding Smith’s hearsay testimony about what jailhouse informants
Malcolm Watson, Tony Smith, and Larry Hunter told him. Because there was no
motion filed or objection below, appellate counsel cannot be deemed ineffective
for not raising this issue on direct appeal. See Rutherford v. Moore, 774 So. 2d
637, 648 (Fla. 2000) (“[A]ppellate counsel cannot be considered ineffective for
- 20 -
failing to raise issues which [were] procedurally barred . . . because they were not
properly raised at trial.”); Robinson v. Moore, 773 So. 2d 1, 5 (Fla. 2000).
In his second habeas claim, Phillips argues that he received ineffective
assistance of appellate counsel when counsel failed to raise the constitutionality of
executing a mentally retarded defendant. In the record on appeal, resentencing
counsel did not assert that sentencing Phillips to death was unconstitutional due to
his alleged mental retardation. Thus, this issue was not preserved on this basis.
Again, appellate counsel cannot be deemed ineffective for failing to raise an
unpreserved issue. See Rutherford, 774 So. 2d at 648.
In his third habeas claim, Phillips asserts that appellate counsel was
ineffective when he failed to raise the admissibility of Dr. Miller’s testimony at
resentencing in violation of the confidentiality requirement of rule 3.211(e),
Florida Rules of Criminal Procedure.9 We disagree.
9. Rule 3.211(e) of the Florida Rules of Criminal Procedure provides as
follows:
(1) The information contained in any motion by the defendant
for determination of competency to proceed or in any report of experts
filed under this rule insofar as the report relates solely to the issues of
competency to proceed and commitment, and any information elicited
during a hearing on competency to proceed or commitment held
pursuant to this rule, shall be used only in determining the mental
competency to proceed or the commitment or other treatment of the
defendant.
- 21 -
Dr. Miller initially evaluated Phillips to determine competency in 1988. At
resentencing in 1994, the trial court allowed Dr. Miller to testify for the purpose of
rebutting the defense’s mental mitigation. When Dr. Miller testified at
resentencing about his 1988 interview with Phillips, Dr. Miller did not state that he
had interviewed Phillips for the determination of competency. In the portion of Dr.
Miller’s testimony where Phillips objected, Dr. Miller stated that he conducted a
mental status examination consisting of numerous current event questions. The
purpose of the exam was to evaluate Phillips’s general intelligence and degree of
learning. Dr. Miller testified to the type of questions he asked, Phillips’s
responses, and the psychological interpretation of those responses. He did not
discuss anything further concerning his 1988 interview with Phillips.
Furthermore, Dr. Miller was reappointed in 1994 because Phillips’s defense
counsel filed a notice of intent to rely on two statutory mitigators: (1) under the
influence of extreme mental or emotional disturbance; and (2) diminished mental
capacity. Dr. Miller’s 1994 interview with Phillips occurred only after he had
(2) The defendant waives this provision by using the report, or
portions thereof, in any proceeding for any other purpose, in which
case disclosure and use of the report, or any portion thereof, shall be
governed by applicable rules of evidence and rules of criminal
procedure. If a part of the report is used by the defendant, the state
may request the production of any other portion of that report that, in
fairness, ought to be considered.
- 22 -
placed his emotional and mental capacity at issue and after notice to his counsel.
Moreover, the trial court’s order appointing Dr. Miller specifically stated that Dr.
Miller was to determine whether Phillips suffered from diminished mental capacity
at the time of the offense. In addition, Dr. Miller was only allowed to testify in
rebuttal to direct mental health testimony presented by Phillips. See Dillbeck v.
State, 643 So. 2d 1027, 1030 (Fla. 1994). Given these circumstances, we find that
Dr. Miller’s testimony at resentencing was proper, and appellate counsel cannot be
deemed ineffective for failing to raise a meritless issue. See Long v. State, 610
So. 2d 1268, 1275 (Fla. 1992).
In his last habeas claim, Phillips argues that he received ineffective
assistance of appellate counsel on his first direct appeal when counsel failed to
raise two issues: (1) whether the trial court abused its discretion when it admitted
autopsy photos; and (2) whether the trial court erred in denying a motion for
judgment of acquittal.
In the first sub-claim, Phillips moved for a standing objection to the
introduction of autopsy photos immediately before opening statements on the
ground that motive was no longer at issue. The trial court refused to grant a
standing objection but agreed to revisit the issue at the time the photos were
introduced. At the time the photographs were admitted, Phillips did not object.
Thus, any issue regarding the admission of the autopsy photographs was not
- 23 -
preserved. See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). Therefore,
appellate counsel cannot be deemed ineffective for failing to raise this unpreserved
issue on appeal. See Rutherford, 774 So. 2d at 648.
Phillips’s second sub-claim is procedurally barred. Phillips filed a prior
habeas petition regarding the conduct of his first appeal, and we denied it. See
Phillips v. Dugger, 515 So. 2d at 227. “Successive habeas corpus petitions seeking
the same relief are not permitted nor can new claims be raised in a second petition
when the circumstances upon which they are based were known or should have
been known at the time the prior petition was filed.” Johnson v. Singletary, 647
So. 2d 106, 109 (Fla. 1994). Here, the fact that appellate counsel on Phillips’s first
direct appeal did not raise the denial of the motion for judgment of acquittal is an
issue that he could and should have known at the time he filed his first habeas
petition. Thus, this claim is procedurally barred.
Accordingly, we deny Phillips’s petition for habeas corpus and affirm the
trial court’s summary denial of postconviction relief.
It is so ordered.
WELLS, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
WELLS, J., concurs with an opinion, in which BELL, J., concurs.
CANTERO, J., concurs with an opinion.
PARIENTE, C.J., concurs in part and dissents in part with an opinion, in which
ANSTEAD, J., concurs.
- 24 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, J., concurring.
I concur with the majority. I write to express my agreement with Justice
Cantero that the United States Supreme Court's decision in Atkins v. Virginia, 536
U.S. 304 (2002), applies to Phillips and to express the basis of my conclusion.
I read Atkins to set forth a substantive federal constitutional right not to be
executed if it is established that a person is mentally retarded. In this regard I
adhere to the Eleventh Circuit's statement in In re Holladay, 331 F.3d 1169, 1173
(11th Cir. 2003):
Although the Court ultimately rejected such a rule in [Perry v.
Lynaugh, 492 U.S. 302, 340 (1989)], in Atkins the Court reversed
course and announced that "the Constitution 'places a substantive
restriction on the State's power to take the life' of a mentally retarded
offender." 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S.
399, 405 (1986)).
(Emphasis added.)
In Witt v. State, 387 So. 2d 922, 929 (Fla. 1980), this Court specifically
stated that one category of constitutional rulings which would be cognizable in
capital cases under Florida Rule of Criminal Procedure 3.850 was
changes of law which place beyond the authority of the state the
power to regulate certain conduct or impose certain penalties. This
category is exemplified by Coker v. Georgia, 433 U.S. 584 (1977),
- 25 -
which held that the imposition of the death penalty for this crime of
rape of an adult woman is forbidden by the eighth amendment as cruel
and unusual punishment.
(Emphasis added.) Atkins has made the execution of a mentally retarded person
beyond the power of the state to impose, which I believe in this context means to
carry out. Therefore, in accord with this specific reasoning in Witt, I would hold
that Phillips can proceed with an Atkins claim. Phillips will, of course, have to
establish that he is mentally retarded as that condition has been defined by our law.
However, I do not believe that this is an issue of retroactivity similar to court
procedures such as in Ring v. Arizona, 536 U.S. 584 (2002), or other issues having
to do with the admissibility of evidence or the confrontation of witnesses. The
question here is whether mental retardation bars the State from executing an
otherwise lawful penalty. This issue is similar to whether a person is insane to be
executed. As to insane to be executed and mental retardation, the issue is whether
the person is eligible for a prospective execution. I do not read Atkins as having a
retroactive application in the sense that it makes the pronouncement of the death
penalty illegal. Clearly, Atkins has no effect on guilt issues.
BELL, J., concurs.
- 26 -
CANTERO, J., concurring.
I concur in all aspects of the majority opinion. I write separately only to
explain our decision to allow Phillips to file a motion under new Florida Rule of
Criminal Procedure 3.203, which became effective October 1, 2004. I believe we
should state explicitly what we necessarily have concluded implicitly—that the
United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002),
applies retroactively—and explain why.
Our recent amendments to the Florida Rules of Criminal Procedure
implicitly concluded, or at least assumed, that Atkins applies retroactively. Rule
3.203(d)(4) creates a procedure for raising mental retardation as a bar to execution
in pending cases, in future cases, and in cases that already are final. See
Amendments to Fla. Rules of Criminal Procedure & Fla. Rules of Appellate
Procedure, 875 So. 2d 563 (Fla. 2004). However, the bench and bar would benefit
from an opinion expressly addressing the issue and this case presents an
opportunity to do so.
The Court did not state in Atkins whether its holding was retroactive.
However, the retroactivity of its decision is apparent, at least under the standard
articulated in Teague v. Lane, 489 U.S. 288 (1989) (which is different from ours),
when read alongside Penry v. Lynaugh, 492 U.S. 302 (1989), in which the Court
stated:
- 27 -
Thus, if we held, as a substantive matter, that the Eighth Amendment
prohibits the execution of mentally retarded persons such as Penry
regardless of the procedures followed, such a rule would fall under the
first exception to the general rule of nonretroactivity and would be
applicable to defendants on collateral review.
Id. at 330. Although the Court rejected such a rule in Penry, the Court ultimately
announced in Atkins that "the Constitution 'places a substantive restriction on the
State's power to take the life' of a mentally retarded offender." 536 U.S. at 321.
In the two years since Atkins was decided, many federal and state courts
have considered whether Atkins applies retroactively, and all have held that it
does. See In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003); In re Morris, 328
F.3d 739, 740 (5th Cir. 2003); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002);
Clemons v. State, No. CR-01-1355, 2003 WL 22047260, at *3 (Ala. Crim. App.
Aug. 9, 2003); Head v. Hill, 587 S.E.2d 613, 621 (Ga. 2003); Williams v. State,
793 N.E.2d 1019, 1027 (Ind. 2003); State v. Dunn, 831 So. 2d 862, 882 n.21 (La.
2002); Johnson v. State, 102 S.W.3d 535, 539 n.12 (Mo. 2003); State v. Lott, 779
N.E.2d 1011, 1015 (Ohio 2002); Pickens v. State, 74 P.3d 601, 603 (Okla. Crim.
App. 2003); Franklin v. Maynard, 588 S.E.2d 604, 606 n.6 (S.C. 2003); cf. Ex
parte Briseno, 135 S.W.3d 1, 5 (Tex. Crim. App. 2004) (suggesting the
retroactivity of Atkins).
The vast majority of these courts analyzed the retroactivity of Atkins using
the standards articulated in Teague, which is not the standard we have historically
- 28 -
used. I continue to believe that we should consider the retroactivity of United
States Supreme Court decisions based on that Court's own standards. See Windom
v. State, 29 Fla. L. Weekly S191, S197-204 (Fla. May 6, 2004) (Cantero, J.,
specially concurring). Nevertheless, a retroactivity analysis under our current law
leads to the same conclusion. In Witt v. State, 387 So. 2d 922 (Fla. 1980), this
Court held that a change in the law does not apply retroactively unless the change:
(a) emanates from this Court or the United States Supreme Court, (b) is
constitutional in nature, and (c) constitutes a development of fundamental
significance. Id. at 931. Clearly, the holding of Atkins meets the first two prongs
of Witt—that is, the United States Supreme Court issued a new rule that is
constitutional in nature. Id.
The question of Atkins's retroactive application therefore rests on the third
prong: whether the rule constitutes a development of fundamental significance. In
Witt, we stated that most major constitutional changes fall within one of two
categories: changes "which place beyond the authority of the state the power to
regulate certain conduct or impose certain penalties," id. at 929, and those which
are of sufficient magnitude to necessitate retroactive application as ascertained by
the three-fold test of Stovall v. Denno, 388 U.S. 293 (1967), and Linkletter v.
- 29 -
Walker, 381 U.S. 618 (1965).10 387 So. 2d at 929. Atkins clearly falls within the
first category—it prohibits the government from imposing the penalty of death on
mentally retarded defendants, which is a substantive limit on the state's power to
impose certain penalties. Cf. Penry, 429 U.S. at 330 (applying a Teague analysis
and stating that "a new rule placing a certain class of individuals beyond the State's
power to punish by death is analogous to a new rule placing certain conduct
beyond the State's power to punish at all" and would be retroactive because it
deprives the State of the power to impose a certain penalty).
For these reasons, Atkins applies retroactively. Phillips must receive the
benefit of both Atkins and new rule 3.203.
PARIENTE, C.J., concurring in part and dissenting in part.
I concur in all aspects of the majority opinion except on the issue of
ineffective assistance of trial counsel relating to Phillips' possible mental
retardation and organic brain damage. I would reverse for an evidentiary hearing
because there are sufficient allegations to call into question the performance of
10. The Linkletter three-fold test inquires into (a) the purpose to be served
by the new rule, (b) the extent of reliance on the prior rule, and (c) the effect
retroactive application of the new rule would have on the administration of justice.
See Witt, 387 So. 2d at 926.
- 30 -
resentencing counsel on the failure to investigate and present further testing on this
potentially powerful mitigation.
Despite the fact that resentencing counsel was aware that both experts who
examined Phillips previously testified that more testing was needed to confirm the
presence or extent of brain damage and mental retardation, resentencing counsel
failed to pursue or present definitive evidence of Phillips' brain damage or mental
retardation. In my view, these allegations in Phillips' motion for postconviction
relief entitle him to an evidentiary hearing on this ineffective assistance of counsel
claim. Further, the majority's decision to affirm the denial of this claim without
prejudice to Phillips filing a motion under Florida Rule of Criminal Procedure
3.203 is insufficient to afford Phillips an adequate review, because any hearing
conducted pursuant to rule 3.203 regarding mental retardation may be qualitatively
different from one conducted on the ineffective assistance of counsel claim.11
As the majority acknowledges, a defendant is entitled to an evidentiary
hearing on a motion for postconviction relief unless (1) the motion, files, and
records in the case conclusively show that the defendant is not entitled to any
relief, or (2) the motion or a particular claim is facially invalid. See Cook v. State,
792 So. 2d 1197, 1201-02 (Fla. 2001). In determining whether an evidentiary
11. I do, however, agree with Justice Cantero's conclusion in his separate
concurring opinion that Atkins v. Virginia, 536 U.S. 304 (2002), which bars
execution of mentally retarded offenders, must be given retroactive application.
- 31 -
hearing on a claim is warranted, this Court must accept the defendant's factual
allegations to the extent they are not refuted by the record. See Atwater v. State,
788 So. 2d 223, 229 (Fla. 2001).
Phillips asserts that the trial court erred in denying an evidentiary hearing on
his claim that defense counsel failed to investigate and conduct further testing as to
Phillips' possible mental retardation and organic brain damage at the time of his
resentencing. Specifically, he contends that resentencing counsel never had him
examined by a competent mental health expert even though counsel was aware
before resentencing that further testing was necessary for a definitive diagnosis of
mental retardation and organic brain damage. I agree that Phillips was entitled to
an evidentiary hearing on this issue.
Before this Court remanded for new resentencing proceedings, Dr. Joyce
Carbonell and Dr. Jethro Toomer testified at Phillips' initial evidentiary hearing in
1988. Both concluded that Phillips' intellectual functioning was in the borderline
range of mental retardation and that he was intellectually and emotionally
impaired. Further, although both Carbonell and Toomer testified that the tests they
performed indicated that Phillips may suffer from organic brain damage, neither
could confirm the presence or extent of the brain damage without further testing.
At resentencing, Toomer testified similarly regarding Phillips' possible brain
damage, but he stated that a specialist in nerve scoping psychology would have to
- 32 -
conduct a nerve psychological test to properly diagnose the existence and extent of
any organic brain disturbance. Carbonell did not testify at the resentencing. Her
testimony from the 1988 evidentiary hearing was read into evidence.
The majority's conclusion that Phillips is not entitled to an evidentiary
hearing because "the record in this case is replete with mitigation testimony
from both of Phillips's mental health experts," see majority op. at 13, ignores the
uncontested fact that both experts admittedly lacked the ability to definitively
diagnose Phillips as either mentally retarded or suffering from organic brain
damage. Both experts stated that further testing was necessary and, although
aware of this fact, resentencing counsel failed to investigate or secure that further
testing. Moreover, postconviction counsel argued at the Huff12 hearing and
appellate counsel asserted at oral argument that a mental retardation specialist and
a neurologist were prepared to testify at an evidentiary hearing on Phillips' mental
retardation and organic brain damage. Because the record does not conclusively
refute the claim that Phillips suffered from mental retardation and organic brain
damage, the trial court erred in failing to grant Phillips an evidentiary hearing on
whether defense counsel was ineffective in failing to pursue the matter.
The majority's affirmance of the decision to deny Phillips a hearing on the
ineffective assistance claim without prejudice for him to file a motion pursuant to
12. Huff v. State, 622 So. 2d 982 (Fla. 1993).
- 33 -
new rule 3.203 will not resolve the ineffective assistance of counsel claim. The
current statutory burden for establishing mental retardation as a bar to execution is
different from the burden of establishing that counsel's performance was
ineffective. Section 921.137(4), Florida Statutes (2004), requires proof of mental
retardation by clear and convincing evidence. The ineffective assistance claim
requires Phillips to demonstrate that had definitive evidence of his mental
retardation been presented at the resentencing, such evidence would undermine our
confidence in the imposition of the death sentence, which was recommended by a
bare majority of the jurors. Allowing Phillips a hearing pursuant to rule 3.203
while denying him a hearing on the ineffective assistance of counsel claim does not
afford Phillips adequate review or protect his constitutional right to counsel. I
would therefore grant Phillips an evidentiary hearing on the ineffective assistance
of counsel claim so it can be pursued in tandem with a mental retardation claim
pursuant to rule 3.203. Fairness as well as efficiency dictate this result, especially
since both claims could be adjudicated in a single hearing with the same evidence.
ANSTEAD, J., concurs.
Two Cases:
An Appeal from the Circuit Court in and for Miami-Dade County,
Alex Ferrer, Judge - Case No. F83-435
And an Original Proceeding – Habeas Corpus
- 34 -
William M. Hennis, III, Assistant CCRC and Leor Veleanu, Staff Attorney, Law
Office of the Capital Collateral Regional Counsel, Ft. Lauderdale, Florida,
for Appellant/Petitioner
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee/Respondent
- 35 -
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