Supreme Court of Florida
JERRY MICHAEL WICKHAM,
STATE OF FLORIDA,
JERRY MICHAEL WICKHAM,
WALTER A. MCNEIL, etc.,
[December 23, 2008]
Jerry Michael Wickham appeals an order of the circuit court denying his
motion to vacate his conviction for first-degree murder and sentence of death and
petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, §
3(b)(1), Fla. Const. As we explain, we reverse and remand for a new evidentiary
hearing because the postconviction court erred by denying Wickham’s motion to
disqualify the postconviction judge. We also dismiss Wickham’s habeas petition
without prejudice to refile.
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts were set out in this Court’s opinion in Wickham v. State,
593 So. 2d 191 (Fla. 1991), as follows:
In March 1986, Wickham together with family members and
friends, including children, were driving along Interstate 10 when they
discovered they were low on money and gas. While at least some
members of the party felt they should stop at a church for help,
Wickham and others decided they would obtain money through a
robbery. The group continued along Interstate 10 and exited at
Thomasville Road in Tallahassee.
Proceeding north almost to the Georgia border, the group
decided to trick a passing motorist into stopping. They placed one of
the vehicles conspicuously on the roadside. One of the women,
apparently accompanied by some of the children, then flagged down
the victim, Morris “Rick” Fleming. The woman told Fleming her car
would not work. Wickham later told a fellow inmate that he had
deliberately used the woman and children because “that’s what made
the guy stop and that’s what I was interested in.”
After examining the car, Fleming told the woman he could find
nothing wrong with it. At this time, Wickham came out of a hiding
place nearby and pointed a gun at Fleming. Fleming then turned and
attempted to walk back to his car, but Wickham shot him once in the
back. The impact spun Fleming around, and Wickham then shot
Fleming again high in the chest. While Fleming pled for his life,
Wickham shot the victim twice in the head.
Wickham then dragged the body away from the roadside and
rummaged through Fleming’s pockets. He found only four dollars
and five cents. At this point, Wickham criticized the woman-decoy
for not stopping someone with more money.
The group drove to a gas station and put two dollars’ worth of
gas in one of the cars, and two dollars’ worth in a gas can. Wickham
changed his clothes and threw his bloodstained pants and shoes into a
dumpster. Wickham directed one of the others to throw the empty
bullet casings and live rounds out the window. A short while later,
the group drove past the murder scene and saw that the police and
ambulances had begun to arrive. They then headed back south and
drove to Tampa, obtaining more gas money by stopping at a church
along the way.
After being convicted of the murder, the jury recommended by
a vote of eleven to one that Wickham be sentenced to death. The trial
judge concurred after finding six aggravating circumstances[ 1 ] and no
Wickham, 593 So. 2d at 192-93.
On direct appeal, we affirmed Wickham’s conviction and death sentence.
Id. at 191. 2 Thereafter, Wickham filed his current rule 3.851 motion for
postconviction relief, which he subsequently amended to contain twenty-one
1. The six aggravating circumstances were: (1) under a sentence of
imprisonment; (2) prior violent felony; (3) during the commission of a robbery; (4)
avoid arrest; (5) the murder was committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal justification (CCP); and (6) the
murder was committed in a heinous, atrocious, or cruel manner (HAC).
2. This Court rejected the following claims Wickham raised on direct
appeal: (1) the trial court erred in limiting testimony regarding Wickham’s inability
to form the specific intent to commit premeditated murder; (2) the trial court
erroneously admitted evidence that Wickham had planned to escape from the Leon
County jail while being detained there; (3) the trial court erred in finding HAC; (4)
the trial court erred in finding CCP; (5) the trial court erred in failing to find and
weigh mitigating evidence; and (6) the death penalty is disproportionate in his
claims. 3 The Second Circuit trial court granted an evidentiary hearing on some of
the claims, summarily denied the remainder, 4 and ultimately denied all of
Wickham’s claims after the evidentiary hearing.
3. These claims are: (1) Wickham is exempt from execution under the
Eighth Amendment because of his mental retardation; (2) Wickham was deprived
of a competency determination and was incompetent to stand trial; (3) the Florida
death sentence procedures violate the Sixth and Fourteenth Amendments; (4) the
State unlawfully withheld files and records; (5) the circuit judges in and for the
Second Circuit should be disqualified from hearing Wickham’s case; (6) Wickham
was denied effective assistance of counsel at the guilt and penalty phases; (7) trial
counsel was ineffective; (8) newly discovered evidence establishes that Wickham
is not guilty of the offense; (9) the State failed to produce exculpatory information
in its possession; (10) the prosecutor made improper comments during opening and
closing arguments; (11) Wickham’s sentence of death was based upon
unconstitutionally obtained prior convictions and upon a nonstatutory aggravating
factor; (12) the jury was impermissibly tainted by improper external influence; (13)
the atmosphere surrounding Wickham’s trial was so prejudicial as to deprive
Wickham of a fair trial; (14) the HAC and CCP instructions were
unconstitutionally vague and overbroad; (15) race discrimination permeates the
justice system in Leon County and affected the preparation and prosecution of this
case at every stage; (16) the penalty phase jury instructions were unreasonably
vague and confusing; (17) the trial court improperly delegated the determination of
the aggravating and mitigating circumstances to the prosecution; (18) the trial court
failed to set forth in writing reasons for departing from the sentencing guidelines in
sentencing Wickham to life imprisonment for his armed robbery conviction; (19)
the trial court improperly considered opinions of the victim’s family members in
determining the sentence; (20) the cumulative impact of errors denied Wickham a
fair trial; and (21) Wickham was denied a competent mental health examination
and trial counsel was ineffective for failing to procure a competent examination.
4. An evidentiary hearing was held regarding claims 6, 8, and 10 as well as
portions of claims 2, 7, 9, and 21.
Wickham appeals the circuit court’s order denying him postconviction
relief. 5 Because we conclude that the postconviction court erred by denying
Wickham’s motion to disqualify the postconviction judge, we reverse and remand
for a new evidentiary hearing.
Wickham asserts that the postconviction court erred by denying his motion
to disqualify all Second Circuit judges from deciding his rule 3.851 motion. In
light of the unique and extraordinary circumstances in this case, Wickham’s
motion to disqualify should have been granted.
Wickham’s motion to disqualify is governed substantively by section 38.10,
Florida Statutes (2001), and procedurally by Florida Rule of Judicial
Administration 2.160 (1992). See Cave v. State, 660 So. 2d 705, 707 (Fla. 1995).
“Whether the motion is ‘legally sufficient’ is a question of law, and the proper
5. Wickham raises nine claims on appeal: (1) the postconviction court erred
in denying Wickham’s motion to disqualify all Second Circuit judges; (2) trial
counsel was ineffective at the penalty phase; (3) trial counsel was ineffective for
failing to request a hearing on Wickham’s competency to stand trial; (4) the trial
court erred by failing to conduct a competency hearing; (5) the State presented
false and misleading evidence and suppressed exculpatory evidence; (6) the State
inappropriately pressured witnesses to testify against Wickham at his trial but not
to testify on his behalf at the evidentiary hearing; (7) the trial court improperly
delegated determination of aggravating and mitigating circumstances to the State;
(8) the trial court considered statements by the victim’s father in determining the
sentence; and (9) Wickham is exempt from execution under the Eighth
standard of review is de novo.” Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla.
2004). Under rule 2.160, a motion to disqualify must show “that the party fears
that he or she will not receive a fair trial or hearing because of specifically
described prejudice or bias of the judge,” or that the judge or any relative is
interested in the result of the case, or that the judge is related to counsel, or that the
judge is a material witness. “The facts alleged in a motion to disqualify must
demonstrate that the party has a well-grounded fear that he will not receive a fair
trial before the judge.” Doorbal v. State, 983 So. 2d 464, 476 (Fla. 2008).
Wickham’s motion demonstrated a well-grounded fear of judicial bias. In
his 3.851 motion, Wickham raised numerous ineffective assistance of counsel
claims against his trial counsel, Philip Padovano. Judge Padovano ran for a circuit
court judgeship while Wickham’s case was still pending and became a judge on the
Second Circuit shortly after Wickham’s trial. He served as a circuit court judge for
almost eight years and was Chief Judge of the Second Circuit from 1993 to 1996.
Currently an appellate judge on the First District Court of Appeal, Judge Padovano
hears appeals from numerous judicial circuits, including the Second Circuit. After
Judge Padovano’s appointment to the appellate bench, his wife also joined the
Second Circuit as a judge. Under these extraordinary circumstances, it is
reasonable for a defendant in Wickham’s position to fear that a Second Circuit
judge hearing Judge Padovano’s testimony in determining Wickham’s ineffective
assistance of counsel claims would be biased in favor of Judge Padovano and
against Wickham. Thus, Wickham’s motion to disqualify was based on a wellgrounded fear and should have been granted.
Because the postconviction court erroneously denied Wickham’s motion, we
remand this case for a new evidentiary hearing. On remand, the Chief Judge of the
Second Judicial Circuit shall request that the Chief Justice of this Court
temporarily assign a judge from outside the Second Circuit to preside over
Wickham’s new evidentiary hearing.
Because the postconviction court erred by denying Wickham’s motion to
disqualify, we remand this case for a new evidentiary hearing. Given the unique
circumstances of this case, Wickham’s new evidentiary hearing shall be presided
over by a judge from outside the Second Judicial Circuit. Additionally, in light of
the remand for a new evidentiary hearing on his postconviction motion, we dismiss
Wickham’s petition for a writ of habeas corpus without prejudice to refile.
It is so ordered.
QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.
CANADY and POLSTON, JJ., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Leon County,
Kathleen F. Dekker, Judge – Case No. 87-3970
Frederick T. Davis of Debevoise and Plimpton, LLP, New York, New York, and
Martin J. McClain of McClain and McDermott, Wilton Manors, Florida,
Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney
General, Tallahassee, Florida,