Meeks v. State

This is an appeal from an order denying Douglas Meeks’ motions for post-conviction' relief under Florida Rule of Criminal Procedure 3.850. Appellant requested an eviden-tiary hearing on his motions and a stay of execution pending disposition thereof. Having reviewed the record and having heard oral argument, we concluded that appellant was entitled to a stay of execution pending disposition of this appeal. The stay of execution was entered on February 11, 1980, after oral argument on that date.

Appellant has been convicted of first-degree murder and sentenced to death on two separate occasions. On March 12, 1975, appellant was convicted and sentenced to death for the murder of Lloyd Walker (lower court No. 74-299 CF). This Court affirmed the conviction and sentence on October 28, 1976, reported at 339 So.2d 186 (Fla.1976). On May 6, 1977, we issued a Gardner order directing the trial judge to state whether his sentence was based on any information not known to appellant. On May 18, 1977, the judge responded that he had relied in part on a psychiatric report which had not been furnished to appellant. This Court remanded the cause to the trial court for an evidentiary hearing on the issue, at which time it was learned that appellant’s trial counsel had been present during the examination upon which the report was based. Appellant was afforded an opportunity to rebut the contents of the psychiatric report, but his testimony at the hearing only confirmed the report’s accuracy. On November 2, 1978, we reaffirmed the death sentence, 364 So.2d 461 (Fla.1978). Appellant sought review of his original conviction and sentence as well as the Gardner proceeding by petition for writ of certiorari to the United States Supreme Court, which was denied, 439 U.S. 991, 99 S.Ct. 592, 53 L.Ed.2d‘ 666 (1978).

On June 4, 1975, appellant was convicted and sentenced to death for the murder of Chevis Thompson (lower court No. 74-300 CF). We affirmed the conviction and sentence on July 21, 1976, 336 So.2d 1142 (Fla. 1976). In response to this Court’s Gardner order of May 6, 1977, the trial judge stated that his sentence had been based exclusively on information known to appellant. On January 11,1979, we issued an order declaring this case final.

Appellant filed motions for post-conviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure on December 11, 1979 (directed to case No. 74-299), and on December 31, 1979 (directed to case No. 74-300). On January 31, 1980, a hearing was held in the trial court to determine whether an evidentiary hearing should be granted. The trial judge denied the motion for evidentiary hearing. A second hearing was held on February 5, 1980, to determine whether a stay of execution should be granted and whether appellant was entitled to the relief requested in his rule 3.850 motions. Pro forma orders denying relief were filed on February 5, 1980. In an amended order dated February 8, 1980, the trial judge denied appellant’s motion for post-conviction relief in case No. 74-299.

Appellant alleges the following six grounds for relief in his rule 3.850 motion with respect to his murder conviction in case No. 74-299 CF: (1) that court-appointed counsel did not render effective assistance of counsel at trial, at the sentence hearing, or on appeal; (2) that defendant’s death sentence was imposed in violation of the sixth, eighth and fourteenth amendments to the United States Constitution because it was imposed upon the recommendation of a jury that was not required to be unanimous; (3) that the jury was selected through procedures that systematically excluded from jury service persons having scruples against the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) that defendant’s death sentence violates the equal protection clause of the state and federal constitutions because it was imposed pursuant to a pattern and practice of racial discrimination in capital sentencing; (5) that there was no evidence of premeditation in the charge of murder and that, therefore, defendant could not be convicted of felony-murder and the underlying felony upon which the murder conviction was based; and (6) that defendant is entitled to a re-sentencing hearing on his first-degree murder conviction because statutory mandates were not followed and the prosecutor was allowed to make improper argument to the jury in contravention of due process of law. Except for ground 5, appellant alleges the same grounds for relief with respect to his murder conviction in case No. 74-300 CF and, in addition, alleges (6) that the defendant is entitled to a new trial because the prosecutor was allowed to make improper and inflammatory comments at closing argument; (7) that the sentencing judge’s use of a court-ordered psychiatric examination violated defendant’s rights under the fifth, sixth, eighth and fourteenth amendments to the Constitution because defendant abandoned his insanity defense before trial; and (8) that defendant’s death sentence is unconstitutional as applied under the eighth and fourteenth amendments to the Constitution because it is part of a wanton and freakish pattern of imposition in the State of Florida. All except two of the foregoing issues were or could have been raised on direct appeal and therefore are foreclosed in this proceeding for collateral review. Adams v. State, 380 So.2d 423 (Fla. 1980). Henry v. State, 377 So.2d 692 (Fla.1979); Sullivan v. State, 372 So.2d 938 (Fla.1979). The two grounds cognizable for collateral attack here are the allegations of ineffective assistance of counsel and racial discrimination in capital sentencing (grounds 1 and 4 in both rule 3.850 motions).

In support of ground 1, appellant cites a number of specific instances in which counsel’s failure to act allegedly amounted to ineffective assistance of counsel at the trial, sentencing and appeal stages of both proceedings. Predicated on these specific allegations, appellant contends that counsel’s overall performance demonstrates that appellant was given only pro forma representation. We note first of all that a conviction is presumed to be valid. Therefore, when ineffective assistance of counsel is asserted, the burden is on the person seeking collateral relief to specifically allege and establish the grounds for relief and to establish whether these grounds resulted in prejudice to that person. Foxworth v. State, 267 So.2d 647 (Fla.1972), cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973). Second, the appropriate test to be applied in determining whether defendant was afforded effective assistance of counsel is not “sham and mockery,” but whether counsel was reasonably- likely to render and did render reasonably effective counsel based on the totality of the circumstances. United States v. Gray, 565 F.2d 881 (5th Cir.), cert, denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). This does not mean, however, that defendant must be afforded errorless counsel or that counsel will be judged ineffective by a standard based on hindsight. United States v. Fessell, 531 F.2d 1275 (5th Cir. 1976). Nor does this standard mean that counsel is to be judged ineffective by virtue of his failure to anticipate future developments in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Davis v. Wainwright, 547 F.2d 261 (5th Cir. 1977).

Pursuant to a rule 3.850 motion, a prisoner is entitled to an evidentiary hearing unless the motion and the files and records in the case conclusively show that he is entitled to no relief. If the prisoner raises a matter that may properly be considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentia-ry hearing. Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980); Giles v. State, 363 So.2d 164 (Fla. 3d DCA 1978); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978). Based on our review of the record presented to this Court, we cannot say that appellant’s specific allegations of ineffective assistance of counsel, considered collectively, conclusively show a lack of merit so as to obviate the need for an evidentiary hearing into the matter.

With regard to ground 4, the court is not persuaded that appellant is entitled to an evidentiary hearing respecting his contention that Florida’s death penalty statute is imposed in an unconstitutionally discriminatory fashion.

Accordingly, to the extent that the trial court’s orders and amended order deny relief under rule 3.850 with respect to the ground of ineffective assistance of counsel, they are hereby reversed. The orders are in all other respects affirmed. This case is remanded to the trial court for a prompt evidentiary hearing on the question of ineffective assistance of counsel. The stay of execution previously granted by this Court on February 11, 1980, is dissolved.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

OVERTON, J., concurs specially with an opinion, with which ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, J., concurs specially with an opinion, with which ENGLAND, C. J., concurs.

ADKINS, J., dissents with an opinion, with which BOYD, J., concurs.

. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

. Rule 3.850 provides in pertinent part:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, detérmine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant him a new trial or correct the sentence as may appear appropriate.