Supreme Court of Florida
JIM ERIC CHANDLER,
JAMES V. CROSBY, JR., etc.,
[October 6, 2005]
Jim Eric Chandler petitions this court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(9), Fla. Const.
Chandler was convicted of two counts of first-degree murder, and the trial
court sentenced him to death. After this Court ordered resentencing, the trial court
reimposed the death sentences and we affirmed. Chandler v. State, 534 So. 2d 701
(Fla. 1988). The facts and procedural history of this case are set out fully in this
Court’s prior opinions. See id.; Chandler v. State, 442 So. 2d 171, 175 (Fla. 1983)
(affirming convictions; remanding for resentencing because of trial court error in
excusing two prospective jurors for cause); Chandler v. State, 634 So. 2d 1066
(Fla. 1994) (affirming trial court’s denial of postconviction relief and denying
relief on eleven habeas issues).
Chandler now petitions this Court for a writ of habeas corpus, claiming that
the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S.
36 (2004), compels the reversal of his convictions and sentences. In Crawford, the
Supreme Court held that a testimonial hearsay statement is inadmissible at trial
unless the declarant is shown to be unavailable and the party against whom the
statement is admitted had an opportunity for cross-examination. Id. at 68.
Because we find that Crawford does not apply retroactively, we deny the petition
for a writ of habeas corpus.
In deciding whether a new rule should apply retroactively, this Court
balances two important considerations: (1) the finality of decisions; and (2) the
fairness and uniformity of the court system. Witt v. State, 387 So. 2d 922, 925
(Fla. 1980). In Witt, we stated that a new rule of law will not apply retroactively
unless the new rule “(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. The rule in Crawford meets the first two
Witt factors, as it was a decision of the United States Supreme Court concerning
the Sixth Amendment’s Confrontation Clause.
Under Witt, a decision is of fundamental significance when it either places
“beyond the authority of the state the power to regulate certain conduct or impose
certain penalties” or when the rule is “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. Walker, 381 U.S. 618 (1965)].” Witt, 387
So. 2d at 929. The Crawford rule did not change the power of the State to regulate
certain conduct or impose certain penalties; rather, it is a procedural rule that
controls the admissibility of testimonial hearsay. Thus, the Crawford rule can only
apply retroactively under Florida law if retroactive application is deemed necessary
after assessing the Stovall and Linkletter factors, which are “(a) the purpose to be
served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect
on the administration of justice of a retroactive application of the new rule.” Id. at
The first factor weighs against retroactivity. Crawford overruled the
decision in Ohio v. Roberts, 448 U.S. 56 (1980). Crawford, 541 U.S. at 68.
Roberts permitted courts to admit testimonial hearsay, provided the statements
bore “adequate ‘indicia of reliability.’” 448 U.S. at 66. In overruling Roberts, the
United States Supreme Court considered the history of the confrontation clause and
concluded that testimonial hearsay could only be admitted, in accordance with the
intentions of the framers of the Sixth Amendment, upon a demonstration that the
declarant is unavailable and that a defendant had a prior opportunity for crossexamination. Id. at 1374. This rationale for the new rule weighs against its
retroactive application because the rule’s purpose is not to improve the accuracy of
trials or even to improve the reliability of evidence. The Supreme Court noted that
the confrontation clause does not require that evidence be reliable “but that
reliability be assessed in a particular manner.” Crawford, 541 U.S. at 61; see
Windom v. State, 886 So. 2d 915, 951 (Fla. 2004) (Cantero, J., specially
concurring) (citing Allen v. Hardy, 478 U.S. 255 (1986), for proposition that
retroactive application is appropriate if new rule is designed to enhance accuracy
of criminal trials).
The second factor also weighs against retroactive application. The rule in
Roberts was relied on by trial courts for over twenty years. Cf. State v. Callaway,
658 So. 2d 983, 987 (Fla. 1995) (fact that old rule existed for short time weighed in
favor of retroactive application). The Roberts reliability factors were the only
method of admission for testimonial hearsay statements; thus, much testimony was
likely admitted under them. See, e.g., State v. Abreu, 837 So. 2d 400, 402 (Fla.
2003); Farina v. State, 679 So. 2d 1151, 1157 (Fla. 1996), receded from by Franqui
v. State, 699 So. 2d 1312, 1320 (Fla. 1997); Perez v. State, 536 So. 2d 206, 209
(Fla. 1988); Glendening v. State, 536 So. 2d 212, 217 (Fla. 1988). Indeed,
“Crawford has changed confrontation analysis enormously. Its concrete impact
was immediate and substantial in both appellate and trial courts on the evidence
rendered inadmissible.” Robert P. Mosteller, Crawford v. Washington:
Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev.
511, 512 (2005). Thus, since much testimonial hearsay was admitted under the old
rule, retroactive application is not required.
Finally, the third factor weighs against retroactivity. Given the extent of
reliance on Roberts, if Crawford applied retroactively, the administration of justice
would be greatly affected. Retroactive application could require courts to
“overturn convictions” and “delve into stale records to” determine whether
defendants had a chance to cross-examine unavailable witnesses. Callaway, 658
So. 2d at 987. When new trials were determined necessary to correct errors under
Crawford, the justice system would then have to deal with a multitude of problems,
including lost evidence and unavailable witnesses. See Windom, 886 So. 2d at 952
(Cantero, J., concurring) (noting similar problems would arise should Ring apply
retroactively). Such retroactive application would “destroy the stability of the law,
render punishments uncertain and therefore ineffectual, and burden the judicial
machinery of our state, fiscally and intellectually, beyond any tolerable limit.”
Witt, 387 So. 2d at 929-30.
Thus, all three factors in the Witt analysis weigh against the retroactive
application of Crawford. The new rule does not present a more compelling
objective that outweighs the importance of finality. State v. Glenn, 558 So. 2d 4, 7
(Fla. 1990). Chandler’s petition for a writ of habeas corpus is therefore denied.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL,
WELLS, J., specially concurs with an opinion, in which CANTERO and BELL,
ANSTEAD, J., specially concurs with an opinion, in which PARIENTE, C.J.,
LEWIS, J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, J., concurring specially.
I concur in the majority’s decision that Crawford v. Washington, 541 U.S.
36 (2004), does not apply retroactively and to deny the petition.
I write to express my view that this Court should apply Florida Rule of
Criminal Procedure 3.851 as written and hold that the Crawford decision does not
provide a viable basis for a successive rule 3.851 motion. The rule provides:
(d) Time Limitation.
(2) No motion shall be filed or considered pursuant to this rule
if filed beyond the time limitation provided in subdivision (d)(1)
unless it alleges that
(B) the fundamental constitutional right asserted
was not established within the period provided for in
subdivision (d)(1) and has been held to apply
retroactively . . . .
(Emphasis added.) The time limitation of subdivision (d)(1) is “within one year
after the judgment and sentence become final.” “Final” is defined in subdivisions
(d)(1)(A) and (B).1
Plainly, the components of the rule indicate that no rule 3.851 motion shall
be filed or considered beyond one year after the judgment and sentence become
final unless (1) there is a fundamental constitutional right asserted; (2) the
constitutional right asserted was not established within one year of when the
judgment and sentence became final; and (3) the fundamental constitutional right
asserted that was not established within the one-year period has been held to apply
retroactively. Based upon these components of the rule, a motion not filed within
the one-year time requirement––an untimely motion––must assert that a new
constitutional right “has been held to apply retroactively” in a case decided before
the motion was filed in order for the motion to be “filed and considered.”
1. As stated in rule 3.851(d)(1)(A) and (B), a judgment is final:
(A) on the expiration of time permitted to file in the United
States Supreme Court a petition for writ of certiorari seeking review
of the Supreme Court of Florida decision affirming a judgment and
sentence of death (90 days after the opinion becomes final); or
(B) on the disposition of the petition for writ of certiorari by the
United States Supreme Court, if filed.
This Court has not dealt with this language in any of the cases recently filed
in this Court asserting claims based upon Ring v. Arizona, 536 U.S. 584 (2002).
Rather, this Court has proceeded to a consideration of Ring claims on other bases
and has simply failed to recognize that the rule requires that untimely
postconviction collateral claims for relief must assert that Ring “has been held to
apply retroactively.” Obviously, because Ring has not been held to apply
retroactively, there could not be such a good-faith assertion in any case in which
Ring has been asserted originally in this Court. The Ring claims therefore should
have been dismissed on that basis.
Our not having dismissed the Ring claims on this basis has apparently been
read as a signal that we would not observe the retroactivity requirement for
untimely motions in the rule with respect to any other claims of new constitutional
rights. As a result, we have received habeas petitions raising other cases that
establish new constitutional rights that have not been held to apply retroactively.
This case demonstrates that point.
Other sections of rule 3.851 that are applicable to these filings are
subdivisions (a) and (d)(3) because many of the filings are filed in this Court as
petitions for writs of habeas corpus. These subdivisions state:
(a) Scope. This rule shall apply to all motions and petitions for
any type of postconviction or collateral relief brought by a prisoner in
state custody who has been sentenced to death and whose conviction
and death sentence have been affirmed on direct appeal. It shall apply
to all postconviction motions filed on or after October 1, 2001.
Motions pending on that date are governed by the version of this rule
in effect immediately prior to that date.
(d) Time Limitation.
(3) All petitions for extraordinary relief in which the Supreme
Court of Florida has original jurisdiction, including petitions for writ
of habeas corpus, shall be filed simultaneously with the initial brief
filed on behalf of the death-sentenced prisoner in the appeal of the
circuit court’s order on the initial motion for postconviction relief
filed under this rule.
I make this point because petitioner has filed his present claim in this Court as a
petition for a writ of habeas corpus. However, under our rule, what Chandler
asserts in his petition is not to be asserted in a habeas petition; rather, if his was a
timely claim, it would properly be brought in the trial court in a rule 3.851 motion.
The retroactivity provision that is the focus of my opinion has been in our
postconviction rule since 1984. See Fla. Bar re Amendment to Rules of Crim.
Pro., 460 So. 2d 907 (Fla. 1984) (amending Fla. R. Crim. P. 3.850). The rule was
adopted as an express provision of rule 3.851 with the 2000 amendments to the
rule. Amendments to Fla. Rules of Crim. Pro., 772 So. 2d 488 (Fla. 2000).
As earlier stated, section (d)(2)(B) should be applied as written. This means
the following with respect to applications of new rules of constitutional law.
(1) In cases in which a rule of constitutional law is changed prior to the case
being final, as defined in rule 3.851(d)(1)(A) and (B), the case is considered a
“pipeline” case, and the changes are applied to it.
(2) After the case becomes “final,” as defined in rule 3.851(d)(a)(A) and (B),
any changes in the law that occur within one year from that case becoming final
may be raised in a rule 3.851 motion.
(3) Any changes in the law that occur after the one-year period referred to in
application (2) above can only be raised in a postconviction motion if the change
of law has been held to apply retroactively.
A plain application of the rule means that a prisoner filing a timely initial
postconviction motion may assert a claim based upon a new rule of constitutional
law. This assertion necessarily includes the issue of retroactivity of the new rule of
constitutional law to final judgments and sentences. Under our case law and
procedure with respect to timely initial motions, the decision on retroactivity can
be made by the circuit court on the basis of Witt v. State, 387 So. 2d 922 (Fla.
1980). This Court would review the retroactivity issue in its review of the circuit
court’s decision on the rule 3.851 motion.
A plain application of the rule also means that an untimely 3.851 motion
cannot properly assert as a claim for relief a new rule of constitutional law unless
the change has been held to apply retroactively. The phrase “has been held” can
have no reasonable construction but that the decision that the rule applies
retroactively has already been made at the time relief is claimed in the motion on
the basis of the new rule. Under this procedure, then, an untimely motion that does
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not assert that the new constitutional rule has been held to apply retroactively
should be dismissed either as not stating a basis for which relief can be granted or
as procedurally barred. This should be the decision of this Court as to all of the
pending untimely filings raising Ring, Crawford, or other claims of new
Petitioner argues that he must have the right to raise a claim based upon a
new constitutional rule so as to get the benefit of it before there is a ruling on
retroactivity or in order to obtain a decision that the new constitutional rule is to be
applied retroactively. I conclude that this argument is not correct.
This Court and the United States Supreme Court have often stated a deepseated commitment to finality and stability in the law. This requires the
enforcement of the premise that the common law is as it was before a judgment or
sentence became final until there is an actual decision that final judgments are
affected by the new rule of constitutional law.2 This is the premise upon which the
Witt decision is based. This is the premise upon which the Supreme Court bases
2. As the Court stated in Witt:
[B]oth the frequency of Florida “law changes” involving our
relatively new capital punishment statute and the unavoidable delay in
deciding these cases suggest that finality will be illusory if each
defendant is allowed to relitigate his first trial upon a subsequent
change of law.
387 So. 2d at 926 (footnotes omitted).
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its decisions which have their roots in Teague v. Lane, 489 U.S. 288 (1989), and
upon which the 1996 federal habeas act in respect to successive habeas petitions by
state prisoners is founded. See 28 U.S.C. § 2244(b)(2) (2000). In fact, until the
new rule is determined to apply retroactively, the law remains the same as to final
judgments and sentences, and only in rare instances should cases be held to apply
retroactively according to Witt and Teague.
The rule does provide a prisoner the opportunity to file an untimely rule
3.851 motion based upon a new rule of constitutional law within a year of a
decision which holds that the new rule is to be applied retroactively. It is at this
time that judgments or sentences which are final and which are beyond the oneyear period are subject to collateral attack.
The same provision of the pre-2001 rule was given effect by this Court’s
decision affirming the denial of a rule 3.850 motion as untimely in Johnson v.
State, 536 So. 2d 1009 (Fla. 1989). In Johnson, this Court stated:
Johnson’s suggestion that the rule is somehow ambiguous is
utterly without merit. We also reject his contention that his claims fall
within one of the two exceptions to the application of the time limit.
The evidence upon which Johnson makes his argument was always in
existence, and if it was unknown to Johnson or his attorney, it could
have been ascertained by the exercise of due diligence. Likewise,
there are no new fundamental constitutional rights now being asserted
which have been given retroactive application.
The credibility of the criminal justice system depends upon
both fairness and finality. The time limitation of rule 3.850
accommodates both interests. It serves to reduce piecemeal litigation
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and the assertion of stale claims while at the same time preserves the
right to unlimited access to the courts where there is newly discovered
evidence or where there have been fundamental constitutional changes
in the law with retroactive application. When Johnson filed his
motion for postconviction relief, over nine years had elapsed from the
date of his trial. The motion was filed more than fifteen months after
January 1, 1987. His claims do not fall within the two exceptions
prescribed by the rule. Hence, the trial court properly denied
Johnson’s motion as untimely filed. We affirm the order of denial and
vacate the stay of execution.
Id. at 1011 (emphasis added). We should apply the rule as written and dismiss this
Petitioner contends that in many cases other than Johnson, this Court has
ignored the plain language of the rule. I agree that has been done. However, we
have never said that the rule as written does not apply; rather, in the cases which
violate the rule and proceed to a determination of the postconviction claim on
another basis, the rule has simply been ignored. I do not believe that we should
continue to do this.
Finally, I do not believe that application of our rule as written would violate
any provisions of the United States Constitution. In 1996, a similar provision was
adopted by Congress to apply to federal habeas petitions. 28 U.S.C. § 2244(b)(2)
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless––
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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously available.
See Tyler v. Cain, 533 U.S. 656 (2001); Felker v. Turpin, 518 U.S. 651 (1996).
CANTERO and BELL, JJ., concur.
ANSTEAD, J., concurring specially.
I concur fully in the majority opinion in this case, including the Court’s
rejection of any procedural barrier to Chandler’s petition for a writ of habeas
corpus seeking relief under a retroactive application of the United States Supreme
Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004).
Our determination that Crawford is not retroactive under the test we
established in Witt v. State, 387 So. 2d 922 (Fla. 1980), resolves that issue in
Florida and serves as precedent that our trial courts can now rely upon in
addressing similar claims in postconviction proceedings, yielding greater certainty
and predictability in the law. In contrast, the imposition of an unreasonable and
impractical procedural bar would result in an undefined and potentially endless
delay in determining Crawford’s retroactivity. Further, the imposition of a
procedural bar also would be (1) violative of Florida’s constitutional protection of
the Great Writ and Access to the Courts; (2) violative of the spirit and letter of our
postconviction rules; and (3) contrary to this Court’s actual practice and case law
on resolution of such issues by habeas corpus.
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Initially, it is apparent that habeas is the more efficient, if not the exclusive,
mechanism for resolving retroactivity claims, especially in death penalty cases,
given this Court’s exclusive jurisdiction in such cases and its exclusive authority to
determine whether its decisions are retroactive under Witt. If, indeed, we intend
that postconviction motions be filed and processed in the trial courts only after an
important constitutional decision has been held to be retroactive, how else would
retroactivity be determined than by an appropriate extraordinary writ petition in
this Court asserting retroactivity under our Witt test? In fact, we recently went
through such an analysis in a postconviction review and habeas proceeding in
Johnson v. State, 904 So. 2d 400 (Fla. 2005), wherein we determined that the
United States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002),
should not be retroactively applied. Cf. Tascano v. State, 393 So. 2d 540, 541 (Fla.
1980) (determining in certiorari proceedings that rule change requiring jury
instruction on minimum and maximum authorized sentences upon request would
be prospective only); Benyard v. Wainwright, 322 So. 2d 473, 474 (Fla. 1975)
(determining in mandamus proceedings that decisions prohibiting deferral of
effective date for parole revocation and requiring first sentence imposed to be
served first would be applied retroactively).
RIGHT TO HABEAS CORPUS AND ACCESS TO THE COURTS
Article I, section 13, of the Florida Constitution provides:
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The writ of habeas corpus shall be grantable of right, freely and
without cost. It shall be returnable without delay, and shall never be
suspended unless, in case of rebellion or invasion, suspension is
essential to the public safety.
The right to habeas corpus is a “basic guarantee of Florida law,” Haag v. State, 591
So. 2d 614, 616 (Fla. 1992), and the writ may be issued by this Court, a district
court, or a circuit court. See art. V, §§ 3(b)(9), 4(b)(3), 5(b), Fla. Const. This
Court has explained that
both simplicity and fairness are equally promoted by the right to
habeas corpus relief that emanates from the Florida Constitution and
has been partially embodied within Rule 3.850. Art. I, §13, Fla.
Const.; [State v.] Bolyea, 520 So. 2d  at 563 [Fla. 1988]. The
fundamental guarantees enumerated in Florida’s Declaration of Rights
should be available to all through simple and direct means, without
needless complication or impediment, and should be fairly
administered in favor of justice and not bound by technicality.
Haag, 591 So. 2d at 616. Although the right, “like any other constitutional right, is
subject to certain reasonable limitations consistent with the full and fair exercise of
the right,” the limitations must not be “applied harshly or contrary to fundamental
principles of fairness.” Id.3
3. In contrast to our constitutional guarantee that the writ shall be “grantable
of right, freely and without cost,” the United States Constitution mentions habeas
corpus only in placing conditions upon its suspension: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Thus, the
United States Supreme Court has “long recognized that ‘the power to award the
writ by any of the courts of the United States, must be given by written law,’ and
[has] likewise recognized that judgment about the proper scope of the writ are
‘normally for Congress to make.’ ” Felker v. Turpin, 518 U.S. 651, 664 (1996)
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We have always been willing to entertain constitutional issues raised via
application for a writ of habeas corpus, access to which is guaranteed by the
Florida Constitution, especially in a death penalty context where our obligation for
review is heightened. In fact, over the last several years we have reviewed dozens
of habeas petitions filed in this Court asserting rights under a retroactive
application of the decisions in Ring and Apprendi v. New Jersey, 530 U.S. 466
Further, article I, section 21 of the Florida Constitution provides that “[t]he
courts shall be open to every person for redress of any injury, and justice shall be
administered without sale, denial, or delay.” This Court has a responsibility under
this provision to ensure every citizen’s access to the courts. See Lussy v. Fourth
Dist. Court of Appeal, 828 So. 2d 1026 (2002). To establish an unconstitutional
denial of access to courts, an individual does not have to show that a statute or rule
"produces a procedural hurdle which is absolutely impossible to surmount, only
one which is significantly difficult.” Mitchell v. Moore, 786 So. 2d 521, 527 (Fla.
In the case at hand the petitioner asserts that his conviction and
imprisonment are unlawful because they are based upon the admission of evidence
that the United States Supreme Court has held is violative of the United States
(quoting Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94 (1807), and Longchar v.
Thomas, 517 U.S. 314, 323 (1996)).
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Constitution. In order to resolve this claim the retroactivity of the Supreme
Court’s decision must be determined. Our rules provide that the petitioner cannot
assert his claim in the trial court until retroactivity is determined. Essentially, by
holding that habeas is also unavailable to resolve this issue, we would be saying
that the petitioner has no place to go to have his contention resolved. Presumably,
under that scenario, he could be executed and never have his claim resolved. Of
course, in Witt and countless other cases we have recognized such a scenario does
not make sense, and we have made habeas available to resolve such important
constitutional issues. In this way we have avoided a direct confrontation with the
constitutional provisions discussed above.
Our postconviction rules, of course, are merely procedural devices adopted
to facilitate and simplify the effective and efficient processing of claims cognizable
under the Great Writ. We have never invoked the provisions of those rules to
avoid resolution of constitutional issues such as the retroactive application of
constitutional decisions emanating from this Court or the United States Supreme
Court. A construction of our postconviction rules that would preclude the claim
would not only raise serious constitutional concerns, but would also be directly
contrary to our intent in adopting these rules, which was to channel appropriate
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claims to the trial court once retroactivity is established rather than to impede an
initial determination of retroactivity.
As we noted in a recent decision, this Court adopted our first postconviction
rule in response to the “impending postconviction crisis” wrought by Gideon v.
Wainwright, 372 U.S. 335 (1963), in which the United States Supreme Court
determined in a habeas corpus proceeding that indigent defendants were entitled to
counsel provided by the State in state criminal proceedings. Baker v. State, 878
So. 2d 1236, 1239 (Fla. 2004). Gideon itself, of course, was a postconviction
claim set out in a petition for writ of habeas corpus. The Supreme Court’s
recognition of the right to counsel in postconviction habeas proceedings obviously
indicated the ruling on the entitlement to counsel applied retroactively to similar
postconviction claims. And, in fact, the Supreme Court subsequently applied
Gideon in ten other collateral proceedings. See Pickelsimer v. Wainwright, 375
U.S. 2 (1963).
Subsequently, in anticipation of a flood of habeas petitions seeking relief
under Gideon even though neither this Court nor the United States Supreme Court
had explicitly held it was to be applied retroactively, this Court promulgated the
first postconviction rule of criminal procedure, rule 1. See Baker, 878 So. 2d at
1239. Habeas petitions, of course, are traditionally filed in the geographic location
where it is alleged that a person is being illegally detained. However, in order to
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prevent a flood of habeas petitions invoking Gideon from overwhelming the
limited judicial resources available in the geographic region where most prisoners
were located, this Court chose a more viable and efficient scheme by requiring the
filings to be in the original courts of conviction throughout Florida. As we stated
in Baker, the rule
was intended to provide a procedural mechanism for raising those
collateral postconviction challenges to the legality of criminal
judgments that were traditionally cognizable in petitions for writs of
habeas corpus. Thus, this rule essentially transferred consideration of
these traditional habeas claims from the court having territorial
jurisdiction over the prison where the prisoner is detained to the
jurisdiction of the sentencing court.
Id. (footnote omitted). Since our adoption of rule 1 and its successor, rule 3.850,
we have recognized that our postconviction rules are merely “a procedural vehicle
for the collateral remedy otherwise available by writ of habeas corpus.” State v.
Bolyea, 520 So. 2d 562, 563 (Fla.1988); see also Amendment to Fla. Rules of
Criminal Procedure Creating Rule 3.853, 807 So. 2d 633, 636 (Fla. 2001)
(Anstead, J., concurring in part and dissenting in part) (noting that rule 3.850 and
other rules “were enacted to simplify and facilitate the fair and orderly processing
of habeas corpus claims by any defendant”).
Originally, our postconviction rule had no time limit and no restriction on
petitions seeking relief under a retroactive application of new precedent. However,
in 1984, this Court adopted a provision requiring that most collateral challenges be
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filed within two years after the conviction becomes final. See Fla. Bar re
Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So. 2d 907, 907
(Fla. 1984). Further, we imposed a requirement that motions filed outside this time
limit must assert that the fundamental constitutional right at issue was not
established within the period provided in the rule and “has been held to apply
While this Court did not specifically explain its reasoning for the latter
requirement, its purpose can be extrapolated from our opinions holding “that only
this Court and the United States Supreme Court can adopt a change of law
sufficient to precipitate a postconviction challenge to a final conviction,” Witt, 387
So. 2d at 930, and that this Court has the sole power to determine whether its
decision should apply retroactively to decisions that are final. See Tascano v.
State, 393 So. 2d 540, 541 (Fla. 1980); Benyard v. Wainwright, 322 So. 2d 473,
474 (Fla. 1975). Thus, it may have been anticipated that either this Court would
announce at the time of a decision constituting a major change in constitutional
law, or would announce shortly thereafter in another habeas proceeding, whether
the decision was retroactive. See Williams v. State, 406 So. 2d 1246, 1247 (Fla.
1st DCA 1981) (“Ideally, the retroactive effect of a decision changing
constitutional doctrine is announced in the same decision. This is particularly
important since the comment in Benyard . . . that the Florida Supreme Court has
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the sole power to determine the retroactive effect of its decisions.”), approved, 421
So. 2d 512 (Fla. 1982).
On occasion, this Court has announced or signaled at the time of a decision
that it has prospective effect only. See, e.g., Delgado v. State, 776 So. 2d 233, 241
(Fla. 2000) (holding that decision ruling that crime by guest or invitee does not
constitute burglary would not apply retroactively to final convictions); Coney v.
State, 653 So. 2d 1009, 1013 (Fla. 1995) (holding that rule requiring defendant’s
presence at bench during jury challenges “is prospective only”); Koon v. Dugger,
619 So. 2d 246, 250 (Fla. 1993) (establishing “prospective rule” governing
procedures when capital defendant refuses to permit presentation of mitigating
evidence in the penalty phase); Fenelon v. State, 594 So. 2d 292, 295 (Fla. 1995)
(banning jury instruction on defendant’s flight “in future cases”). There have even
been a few instances when the Court has announced at the time of a decision that it
has retroactive application. See, e.g., Mitchell v. Moore, 786 So. 2d 521, 528 (Fla.
2001) (giving retrospective application to decision holding copy requirement of
Prisoner Indigency Statute unconstitutional). However, many times retroactivity is
decided by implication rather than explicitly, as was the case in Gideon, where
relief was granted in a postconviction habeas proceeding, obviously indicating its
application to others similarly situated, or by a subsequent decision directly
confronting the retroactivity issue. See Johnson, 904 So. 2d at 412.
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PRESERVATION OF HABEAS CORPUS
Whatever our intent behind the adoption of rule 3.850(b)(2) or other
procedural regulations, we have always made clear that any restriction on habeas
relief, including petitions seeking retroactive application of decisions establishing a
fundamental constitutional right, could never be absolute. Although rule 3.850(b)
provides that “[n]o other motion shall be filed or considered pursuant to this rule”
if it is untimely, subdivision (h) reflects our recognition that no codification could
possibly encompass every situation in which the writ of habeas corpus would be
Habeas Corpus. An application for writ of habeas corpus on behalf of
a prisoner who is authorized to apply for relief by motion pursuant to
this rule shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court that sentenced the
applicant or that the court has denied the applicant relief, unless it also
appears that the remedy by motion is inadequate or ineffective to test
the legality of the applicant’s detention.
Fla. R. Crim. P. 3.850(h) (emphasis supplied). Hence, our own postconviction
rules recognize the need for flexibility in applying procedural bars.
Over the years, and acting pursuant to the fundamental and constitutional
nature of habeas corpus as well as the “safety valve” of rule 3.850(h), this Court
has frequently entertained habeas petitions seeking to resolve important
constitutional issues, especially in capital cases where only this Court has
jurisdiction to grant the relief requested. See State v. Fourth District Court of
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Appeal, 697 So. 2d 70, 71 (Fla. 1997) (noting our “exclusive jurisdiction to review
all types of collateral proceedings in death penalty cases”). The most common of
these have proven to be claims of ineffective assistance of counsel during direct
appeals to this Court. See Knight v. State, 394 So. 2d 997, 999 (Fla. 1981) (“The
ineffective assistance of counsel allegations stem from acts or omissions before
this Court, and therefore we have jurisdiction and will consider the petition for
habeas corpus on its merits.”). However, even a cursory review of our case law
reflects that this Court has entertained successive habeas corpus petitions brought
by capital defendants raising a variety of issues, including challenging (a) the
erroneous standard of review applied by this Court in prior rule 3.850 appeals, see
Johnston v. Moore, 789 So. 2d 262 (Fla. 2001) (concluding that Stephens v. State,
748 So. 2d 1028 (Fla. 1999), was not retroactive under Witt v. State, 387 So. 2d
922 (Fla. 1980)); (b) the constitutionality of an inmate’s stay on death row and of
the clemency process, see King v. State, 808 So. 2d 1237, 1246 (Fla. 2002); (c) the
propriety of various death sentences following Hitchcock v. Dugger, 481 U.S. 393
(1987), see Johnson v. Dugger, 520 So. 2d 565 (Fla. 1988) (treating all-writs
petition based on Hitchcock error as a petition for writ of habeas corpus); and (d)
the validity of a direct appeal decision affirming the override of a jury's
recommendation of life in light of a new decision from this Court in another case,
see Mills v. Moore, 786 So. 2d 532 (Fla. 2001) (addressing merits of whether Keen
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v. State, 775 So. 2d 263 (Fla. 2000), required reconsideration of Court's direct
appeal affirmance of override).
Notably, in none of these settings was there a dispute as to whether a
successive petition for a writ of habeas corpus was a proper vehicle for raising
these issues. Just recently, for example, and after entertaining successive habeas
petitions claiming relief under a retroactive application of Ring v. Arizona, 536
U.S. 584 (2002), on the merits for several years, this Court held that Ring is not
retroactive under the Witt test. See Johnson, 904 So. 2d at 412.
It is worth noting that had rule 3.850(b) been construed to preclude claims
such as Chandler’s, it appears that numerous decisions of this Court making
fundamental constitutional law changes retroactive in capital cases would not have
been issued. See James v. State, 615 So. 2d 668, 669 (Fla. 1993) (holding that the
U.S. Supreme Court's decision in Espinosa v. Florida, 505 U.S. 1079 (1992),
issued during pendency of successive postconviction appeal, should be
retroactively applied); Jackson v. Dugger, 547 So. 2d 1197, 1198 (Fla. 1989)
(holding, on successive habeas petition, that Booth v. Maryland, 482 U.S. 496,
502-03 (1987), applied retroactively); Thompson v. Dugger, 515 So. 2d 173, 175
(Fla. 1987) (concluding, in appeal from denial of successive 3.850 motion, that
Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987), should be applied collaterally);
Tafero v. State, 459 So. 2d 1034, 1035 (Fla. 1984) (determining on appeal from
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rule 3.850 denial that Enmund v. Florida, 458 U.S. 782 (1982), barring death
penalty for some felony murderers is “such a change in the law as to be cognizable
in postconviction proceedings”).
Of course, it is possible that in each of these instances, retroactivity would
eventually have been established in a timely rule 3.850 petition, but this is far from
certain, especially if the current one-year deadline for filing a postconviction claim
in a capital case were also in effect. Application of rule 3.851(d)(2)(B) to preclude
successive habeas petitions seeking retroactive application of a new decision by
this Court or the United States Supreme Court would be particularly irrational and
harsh in combination with the extraordinary procedural restrictions already in
place. Ironically, death-sentenced individuals have only one year, rather than the
two years for those who receive lesser sentences, in which to file their
postconviction motions. Compare Fla. R. Crim. P. 3.850(b) with Fla. R. Crim. P.
3.851(d)(1). Clearly, a rigid application of rule 3.851(d)(2)(B) to severely limit
retroactivity claims in successive habeas petitions would not serve the interests of
While most of the cases discussed above arose under rule 3.850 rather than
rule 3.851, no one, including the State, has ever contended that the constitutional
right to habeas corpus available to all prisoners under subdivision (h) of rule 3.850
could be denied to death-sentenced individuals whose claims were filed after the
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2000 adoption of the retroactivity limitation in what is now rule 3.851(d)(2)(B).
See Amends. to Fla. Rules of Crim. Proc. 3.851, 3.852 & 3.993, 772 So. 2d 488,
495 (Fla. 2000). Stated another way, no one has asserted that courts could
constitutionally permit habeas filings to all prisoners invoking claims under
decisions like Crawford, but deny the same opportunity to seek the writ to those
sentenced to death and presenting the exact same Crawford claims. In addition to
the obvious equal protection problem, the United States Supreme Court has held
“that the qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny.” California v. Ramos, 463 U.S. 992,
998-99 (1983). Precluding a claim such as Chandler’s would result in lesser, not
greater, scrutiny in capital cases, unless we are to turn our constitutional law upside
down and provide the greater degree of scrutiny to the lesser cases.
Although our postconviction rules were “intended to provide a complete and
efficacious postconviction remedy to correct convictions on any grounds which
subject them to collateral attack,” Roy v. Wainwright, 151 So. 2d 825, 828 (Fla.
1963), we have never held that rule 3.850––or any procedural rule––can exhaust
the circumstances in which the writ of habeas corpus as guaranteed in article I,
section 13 would be available to test the legality of an individual’s conviction or
sentence. Indeed, we could never do so constitutionally or practically since only
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human experience itself can provide the endless possibility of circumstances that
may provide a proper basis for the invocation of the writ to protect a fundamental
right or correct a fundamental injustice.
PARIENTE, C.J., concurs.
Original Proceeding - Habeas Corpus
Neal Andre Dupree, Collateral Regional Counsel-South and Martin J. McClain,
Special Assistant, CCRC-South, Fort Lauderdale, Florida,
Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Celia A. Terenzio,
Assistant Attorney General, West Palm Beach, Florida,
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