Bertolotti v. Dugger
| Decision Date | 30 October 1987 |
| Docket Number | No. 71286,71286 |
| Citation | 514 So.2d 1095,12 Fla. L. Weekly 548 |
| Parties | 12 Fla. L. Weekly 548 Anthony BERTOLOTTI, Petitioner, v. Richard L. DUGGER, Etc., Respondent. |
| Court | Florida Supreme Court |
Larry Helm Spalding, Capital Collateral Representative, Mark Evan Olive, Chief Asst. and Nicholas Trenticosta, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen., and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondent.
Anthony Bertolotti, a prisoner under sentence of death and execution warrant, petitions this Court for a writ of habeas corpus, based on claims of ineffective assistance of appellate counsel. He also requests a stay of his execution which is set for November 16, 1987. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. Finding no merit to the claims raised, we deny the petition and the requested stay.
This Court affirmed Bertolotti's conviction of first-degree murder and sentence of death in Bertolotti v. State, 476 So.2d 130 (Fla.1985). The facts surrounding the murder for which Bertolotti stands convicted and the issues raised on direct appeal are set forth in that opinion and need not be recounted here.
In this petition, Bertolotti raises two claims of ineffectiveness of appellate counsel. Bertolotti's first claim is that counsel was "per se" ineffective for arguing to this court during oral argument that her client was guilty of sexual battery despite the fact that the trial court found, in his sentencing order, that sexual battery had not been proven beyond a reasonable doubt. We find this claim to be totally without merit. When placed in context, it is apparent that the portion of appellate counsel's oral argument upon which this claim is based was an attempt by counsel to point out Bertolotti's "sexual problems" as a mitigating factor justifying a life sentence. Under the circumstances, it cannot be said that counsel was deficient in her performance for taking such a position during oral argument. Further, Bertolotti has not even attempted to show how this tactical decision prejudiced his appeal.
We also find no merit to Bertolotti's second claim that appellate counsel was ineffective for failing to challenge the verdict as void because 1) there is no way of knowing whether it was based on a constitutionally permissible ground, and 2) there is no way of determining whether there was juror unanimity. The jury in this case was instructed on premeditated murder and felony murder based on robbery, sexual battery, and burglary. A general verdict was received. Bertolotti's second claim hinges on the fact that, in his sentencing order, the trial judge specifically found that the state had failed to prove sexual battery and burglary beyond a reasonable doubt and therefore, neither could serve as an additional bases for finding the aggravating circumstance that the murder was committed during the commission of a felony under section 921.141(5)(d), Florida Statutes. He maintains that counsel should have argued on appeal that the general verdict was void under Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) () because it...
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