664 F.2d 1194 (11th Cir. 1981), 81-5273, Smith v. Wainwright

Docket Nº:81-5273.
Citation:664 F.2d 1194
Party Name:Frank A. SMITH, III, Petitioner-Appellant, v. Louie WAINWRIGHT, et al., Respondents-Appellees.
Case Date:December 28, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1194

664 F.2d 1194 (11th Cir. 1981)

Frank A. SMITH, III, Petitioner-Appellant,

v.

Louie WAINWRIGHT, et al., Respondents-Appellees.

No. 81-5273.

United States Court of Appeals, Eleventh Circuit

December 28, 1981

Page 1195

Robert J. Buonauro, Orlando, Fla., for petitioner-appellant.

Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, ANDERSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

The appellant, Frank A. Smith III, seeks to overturn his life sentence for second degree murder. Smith claims that his sentence was unlawfully imposed as a punishment for exercising his sixth amendment right to a jury trial. Our examination of the record indicates that Smith was not so penalized; we conclude, instead, that his life term was decreed only after a careful assessment by the trial judge of the relevant sentencing variables. Because we find no abuse of discretion in the sentencing process, we affirm.

I. Procedural History

On March 11, 1974, an information was filed against the appellant, charging him with second degree murder. Following his conviction by a jury, Smith was sentenced to life imprisonment. Smith appealed his conviction to the Florida District Court of Appeal, Fourth District, which affirmed. Smith v. State, 314 So.2d 226 (Fla. 4th DCA 1975). The Supreme Court of Florida denied his subsequent petition for a writ of certiorari. Smith v. State, 345 So.2d 427 (Fla.1976).

On May 10, 1977, Smith moved for mitigation of sentence pursuant to Rule 3.800 of the Florida Rules of Criminal Procedure, alleging that he had been a model prisoner who posed no threat to society. The motion was filed, as statutorily required, within sixty days from the final affirmance. 1 A

Page 1196

hearing on the motion, however, was not held until July 21, 1977, one hundred and one days after the appellate mandate. Following the hearing, trial Judge DeManio reduced Smith's sentence to a term of from two to six years.

The State of Florida appealed the reduction to the Fourth District Court of Appeal, which reinstated the life sentence. Since the trial judge's order of mitigation had been issued after expiration of the strict, sixty day jurisdictional time limitation, the Fourth District invalidated the reduction as void.

The appellant next moved to vacate the judgment pursuant to Fla.R.Cr.P. 3.850, alleging that his life sentence had been imposed to punish him for exercising his constitutional right to a jury trial. After an evidentiary hearing, the motion was denied. Smith's appeal of the denial was dismissed, since he had a contemporaneous appeal pending before the Supreme Court of Florida dealing with the same issues.

Smith later renewed in Circuit Court his motion to vacate the judgment and sentence which, after a hearing, once again was denied. On appeal to the District Court of Appeal, Fifth District, the denial was affirmed. Smith v. State, 382 So.2d 909 (Fla. 5th DCA 1980).

On June 24, 1980, Smith petitioned for a writ of habeas corpus to the United States District Court for the Middle District of Florida. His petition was dismissed by the district judge on January 27, 1981. From that dismissal, Smith brings his present appeal to this court.

II. The Sentencing Process

While the severity of a sentence imposed within statutory bounds will not be reviewed by this court, United States v. Cavazos, 530 F.2d 4 (5th Cir...

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