Burr v. State, No. 71234

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; EHRLICH
• Citation: 550 So.2d 444,14 Fla. L. Weekly 428
• Docket Number: No. 71234
• Decision Date: 31 August 1989
• Parties: 14 Fla. L. Weekly 428 Charles Lewis BURR, Appellant, v. STATE of Florida, Appellee.

Page 444

550 So.2d 444 14 Fla. L. Weekly 428 Charles Lewis BURR, Appellant,
v.
STATE of Florida, Appellee. No. 71234. Supreme Court of Florida. Aug. 31, 1989.
Rehearing Denied Nov. 15, 1989.

Page 445

Steven L. Seliger, Quincy, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

We review this case following a remand from the United States Supreme Court. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We deny Burr's request for a new trial, but vacate his sentence and remand this case to the trial court for resentencing before the trial judge.

Burr was convicted in June 1982 of the first-degree murder of a convenience store clerk in Leon County, Florida, and sentenced to death. At trial, the state called three other convenience store clerks to testify that Burr had robbed their stores in a manner similar to the robbery alleged to have occurred in this case. All three clerks identified Burr as the perpetrator of the crimes, although Burr was subsequently acquitted of one of the crimes, and the state nolle prossed another.

This Court affirmed the sentence and conviction on direct appeal, Burr v. State, 466 So.2d 1051 (Fla.), cert. denied 474 U.S. 879, 106 S.Ct. 201, 88 L.Ed.2d 170 (1985). In 1987, the Governor signed a death warrant setting Burr's execution, and Burr filed for relief in the circuit court pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court denied relief, and this Court affirmed, Burr v. State, 518 So.2d 903 (Fla.1987), cert. granted, 487 U.S. 1201, 108 S.Ct. 2840, 101 L.Ed.2d 878 (1988). A stay of execution was granted by the federal court. The United States Supreme Court vacated our decision and remanded the case to us for consideration in light of its opinion in Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Burr v. Florida, 487 U.S. 1201, 108 S.Ct. 2840, 101 L.Ed.2d 878 (1988).

In Johnson, the defendant was convicted of murder and sentenced to death on the basis of three aggravating circumstances, including a 1963 conviction of a prior violent felony in New York. Subsequent to the conviction and direct appeal in that case, Johnson's New York conviction was vacated by the New York Court of Appeal. Johnson then attacked his death sentence

Page 446

by collateral review in the Mississippi courts. The Mississippi Supreme Court denied relief, holding that the claim was collaterally barred and that a subsequent change in the admissible nature of evidence could not be a basis for finding that the death sentence was improperly imposed. The United States Supreme Court reversed, holding the claim was properly raised on...