Adams v. Murphy, 78-2406
| Decision Date | 13 July 1979 |
| Docket Number | No. 78-2406,78-2406 |
| Citation | 598 F.2d 982 |
| Parties | Don A. ADAMS, Petitioner-Appellee, v. Ernest P. MURPHY, Sheriff of Osceola County and Louie L. Wainwright, Director, Division of Corrections, Department of Offender Rehabilitation, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, Fla., for respondents-appellants.
Joseph F. McDermott, St. Petersburg, Fla., for petitioner-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.
The court has determined that this case presents a question of Florida law appropriate for resolution by the courts of that state. We will, therefore, defer our decision in this matter pending certification of the issue to the Florida Supreme Court. Our usual practice 1 is to request that the parties submit a proposed statement of facts and proposed agreed certificate of the questions for decision, but because the facts are uncontested and because the question to be certified is a narrow one, we have drafted the Statement of Facts and the Question for Certification.
It appears to the United States Court of Appeals for the Fifth Circuit that the above-styled case in this Court involves a question or proposition of law of the State of Florida which may be determinative of the cause, and there appear to be no clear, controlling precedents in the decisions of the Supreme Court of Florida. The United States Court of Appeals for the Fifth Circuit therefore certifies the following question of law of the State of Florida to the Supreme Court of Florida for instructions concerning such question of law, based on the facts recited herein, pursuant to section 25.031, Florida Statutes 1975, and Rule 4.61, Florida Appellate Rules, as follows:
I. Style of the case. The style of the case in which this certificate is made is as follows: Don A. Adams, petitioner-appellee, versus Ernest P. Murphy and Louie L. Wainwright, respondents-appellants, Case No. 78-2406, United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Middle District of Florida.
II. Statement of facts. Petitioner Adams was indicted in 1974 for the crime of perjury, in violation of section 837.02, Florida Statutes. Adams was charged with testifying falsely while under oath before a grand jury proceeding. After all the evidence had been presented at Adams' trial, the Florida trial court held a charge conference with counsel. The attorney who represented Adams affirmatively requested 2 that the jury be given a lesser-included offense instruction on the crime of attempted perjury. Although the trial judge expressed uncertainty about whether attempted perjury was a crime, he included the requested instruction in his charge to the jury. 3 The jury found Adams guilty of the crime of attempted perjury.
Petitioner appealed his conviction to the Florida Fourth District Court of Appeal, which affirmed in a one-line per curiam decision. Certiorari was initially granted by the Florida Supreme Court but was later withdrawn for want of jurisdiction. Adams subsequently filed a petition for a writ of habeas corpus with the Florida Supreme Court, raising a contention that no crime of attempted perjury existed under Florida law. Relief was denied by the Florida Supreme Court without written opinion in an order dated December 9, 1976.
Following an unsuccessful motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, Adams filed a petition for habeas corpus relief in the United States District Court for the Middle District of Florida. After finding that Adams had exhausted his state remedies, the district court granted relief and held, relying on Silvestri v. State, 332 So.2d 351 (4th Dist.Ct.App. Fla.), Aff'd per curiam, 340 So.2d 928 (Fla.1976), that attempted perjury was not a crime under the laws of Florida. Thus, the court below agreed with Adams that instructing the jury on attempted perjury was a violation of due process of law and that his conviction and incarceration for a nonexistent offense violated the fourteenth amendment of the United States...
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State v. Sykes
...of attempt. See, e.g., Achin v. State, 436 So.2d 30 (Fla.1982); Adams v. Murphy, 394 So.2d 411 (Fla.1981), on quest. certified, 598 F.2d 982 (5th Cir.1979); Pagano v. State, 387 So.2d 349 (Fla.1980); Milazzo v. State, 377 So.2d 1161 (Fla.1979); King v. State, 339 So.2d 172 (Fla.1976), affir......
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Gray v. State
...would appear to deny state and federal constitutional due process and therefore warrant relief by habeas corpus. See Adams v. Murphy, 598 F.2d 982 (5th Cir. 1979) (involved in Adams v. Murphy, 394 So.2d 411 (Fla.1981)). It makes no sense to hold on appeal that the failure to attack a chargi......
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Adams v. Murphy, 57451
...of Florida law upon which there is no controlling precedent is determinative of the instant appeal pending in that court. Adams v. Murphy, 598 F.2d 982 (5th Cir. 1979). We have authority to answer the certified question by written opinion. Fla.R.App.P. Adams was charged with the crime of pe......
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Adams v. Murphy
...than another arises. Its facts and lengthy procedural history are set out in our earlier certification opinion, reported at 598 F.2d 982 (5th Cir. 1979). We need repeat only a little of this Petitioner Adams was charged with testifying falsely to a Florida grand jury. At the close of eviden......
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