Bates v. Dugger, s. 74972

• Decision Date: 23 July 1992
• Docket Number: Nos. 74972,76538,s. 74972
• Citation: 604 So.2d 457
• Parties: Kayle Barrington BATES, Petitioner, v. Richard L. DUGGER, etc., Respondent. Kayle Barrington BATES, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant. 604 So.2d 457, 17 Fla. L. Week. S541
• Court: Florida Supreme Court

Page 457

604 So.2d 457

Kayle Barrington BATES, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Kayle Barrington BATES, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.

Nos. 74972, 76538.

604 So.2d 457, 17 Fla. L. Week. S541

Supreme Court of Florida.

July 23, 1992.

Rehearing Denied Sept. 24, 1992.

Larry Helm Spalding, Capital Collateral Representative, and Bret B. Strand and Jerome H. Nickerson, Asst. CCR, Office of Capital Collateral Representative, Tallahassee, Billy H. Nolas and Julie D. Naylor, Sp. Asst. CCR, Ocala, and Thomas H. Dunn, Sp. Asst. CCR, Tallahassee, for petitioner, appellant, cross-appellee.

Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent, appellee, cross-appellant.

PER CURIAM.

Kayle Bates, a prisoner under sentence of death, petitions this Court for writ of habeas corpus and appeals the trial court's order on his motion for postconviction relief. We have jurisdiction pursuant to article V, section 3(b)(1), (9), Florida Constitution and Florida Rule of Criminal Procedure 3.850 and deny the habeas petition and affirm the trial court's order.

A jury convicted Bates of first-degree murder, kidnapping, attempted sexual battery, and armed robbery, and the trial court sentenced him to death for the murder. On appeal this Court affirmed Bates' convictions, but found two of the aggravating factors invalid and remanded for reconsideration and resentencing by the trial court. Bates v. State, 465 So.2d 490 (Fla.1985). The trial court allowed Bates to present more evidence in mitigation, but again sentenced him to death, and this Court affirmed. Bates v. State, 506 So.2d 1033 (Fla.), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987).

The governor signed Bates' death warrant in November 1989, and Bates filed a habeas petition with this Court and a rule 3.850 motion with the trial court. On Bates' motion his original trial judge recused himself, and the substitute judge stayed Bates' execution and held an evidentiary hearing on his claim that trial counsel rendered ineffective assistance at the original sentencing proceeding. At the conclusion of the hearing the judge held that counsel had, indeed, been ineffective and ordered that Bates have a new sentencing hearing before a jury. She held that the remaining claims raised in the motion had been abandoned or were procedurally barred. Bates now appeals that denial of the other issues, and the state cross-appeals the granting of a new sentencing proceeding. We consolidated the habeas petition ¹ and the 3.850 appeal.

Bates argues that the trial court erred in not granting relief on the following issues: 1) the conviction and sentence were improperly obtained because the trial began with a prayer by the victim's minister; 2) the trial court failed to make an independent weighing of the aggravators and mitigators; 3) the court erred in failing to grant a change of venue; 4) trial counsel rendered ineffective assistance at the guilt phase; 5) the corpus delicti of attempted sexual battery was not proved by competent, substantial evidence; 6) reversible error occurred as to the aggravators; 7) Lockett ² and Hitchcock ³ were violated; and 8) counsel was ineffective for failing to request disqualification of the judge at resentencing. Rule 3.850 "does not authorize relief based upon grounds which could have been or should have been raised at trial and, if properly preserved, on direct appeal." Fla.R.Crim.P. 3.850; Johnson v. State, 593 So.2d 206 (Fla.1992); Medina v. State, 573 So.2d 293 (Fla.1990). Issues 1 through 3 and 5 through 7, therefore, are procedurally barred. Issue 1 was not raised at trial and therefore was not preserved for appeal. Issue 3, although preserved for appeal, also does not involve fundamental error and, if raised, would not have led to the reversal of Bates' conviction. "Raising a different argument in a rule 3.850 motion to relitigate an issue raised and rejected on direct appeal is inappropriate." Brown v. State, 596 So.2d 1026, 1028 (Fla.1992); Medina. We reviewed the attempted sexual battery conviction and the sentencing on direct appeal, and issues...