Booker v. State
| Decision Date | 05 January 1987 |
| Docket Number | No. 68239,68239 |
| Citation | 12 Fla. L. Weekly 52,503 So.2d 888 |
| Parties | 12 Fla. L. Weekly 52 Stephen Todd BOOKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James E. Coleman, Jr. and Jeffrey D. Robinson of Wilmer, Cutler and Pickering, Washington, D.C., Marian E. Lindberg of Kornstein, Veisz and Wexler, New York City and Jeffrey S. Weiner of Weiner, Robbins, Tunkey and Ross, P.A., Miami, for appellant.
Jim Smith, Atty. Gen. and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellee.
Stephen Todd Booker appeals an order denying his motion to vacate and set aside a previous order denying post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution and affirm the order of the trial court.
Booker was convicted of first-degree murder, sexual battery and burglary and sentenced to death. We have previously affirmed Booker's conviction and sentence, Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981), denied his initial motion for post-conviction relief, Booker v. State, 413 So.2d 756 (Fla.1982), and denied his second motion for post-conviction relief. Booker v. State, 441 So.2d 148 (Fla.1983).
In September 1985, Booker moved the trial court to reopen the hearing on his second motion for post-conviction relief in which the court rejected his claim of ineffective assistance of trial counsel. Booker now alleges that the order denying relief must be reopened because it was based upon fraudulent testimony. Specifically, Booker contends that trial counsel's testimony indicating that he had relied exclusively on two court-appointed psychiatrists to determine whether there was evidence of mental mitigating factors constituted a fraud upon the court. The trial court ordered an evidentiary hearing on the motion, and we refused to find that the trial court abused its discretion. State v. Crews, 477 So.2d 984 (Fla.1985). The trial court then held an evidentiary hearing and denied all relief. We now affirm that order.
Booker alleges that State v. Burton, 314 So.2d 136 (Fla.1975), mandates that we reopen the hearing on his second motion for post-conviction relief. In Burton, we held that because facts disclosed in an affidavit attached to a previously granted motion for new trial and accepted as true were false, and because such false statements constituted fraud practiced on the court, the court had authority to consider a petition for rehearing and vacate a new trial order. Thus, Burton stands for the proposition that an order procured by fraud upon the court, including an order denying a motion for post-conviction relief, may be set aside at any time. See also State v. Morris, 359 So.2d 478 (Fla. 1st DCA), cert. denied, 365 So.2d 713 (Fla.1978).
We agree with the trial court that Booker has failed to meet his burden of establishing that fraud upon the court was committed. An evidentiary hearing on the issue of fraud was held in January 1986. At the hearing, the oral testimony of the two psychiatrists who evaluated Booker prior to his sentencing was presented. The psychiatrists were asked if they had been instructed by trial counsel to evaluate Booker for the presence of mental mitigating factors. Both doctors testified that they could not recall if they were aware of the existence of statutory mitigating factors at the time of Booker's trial. The testimony of the psychiatrists does not prove that any facts found to be true in the November 1983 evidentiary hearing were basically false. Burton, 314 So.2d at 137. Indeed, the doctors' testimony does not controvert trial counsel's testimony that he had relied exclusively on the two psychiatrists to determine whether there was evidence of mental mitigating factors. We refuse to grant Booker's motion to reopen the 1983 3.850 proceeding in light of Booker's failure to prove that fraud upon the court had occurred.
Booker's contention that our previous statement in State v. Crews, 477 So.2d at 984, that "the trial court concluded that...
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Booker v. State, SC93422.
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