O'Callaghan v. State
| Decision Date | 13 December 1984 |
| Docket Number | 65355,Nos. 65353,65354,s. 65353 |
| Citation | 461 So.2d 1354 |
| Parties | John O'CALLAGHAN, Appellant, v. STATE of Florida, Appellee. John O'CALLAGHAN, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent. |
| Court | Florida Supreme Court |
David Lipman of Lipman & Weisberg, Miami, and Steven L. Winter, New York City, for appellant/petitioner.
Jim Smith, Atty. Gen., Richard G. Bartmon, Sarah B. Mayer and Marlyn J. Altman, Asst. Attys. Gen., West Palm Beach, for appellee/respondent.
In this post-conviction relief proceeding, John O'Callaghan, who is under a sentence of death, seeks a stay of execution and (1) appeals from denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850; (2) petitions for habeas corpus relief, asserting ineffective assistance of appellate counsel; and (3) applies for leave to file a petition for writ of error coram nobis, asserting that a critical witness has recanted a material part of his testimony. This Court has jurisdiction, article V, section 3(b)(1), Florida Constitution. We granted a stay of execution to allow this Court an opportunity to fully address these claims for relief.
This Court previously affirmed appellant's conviction for first-degree murder and a sentence of death. See O'Callaghan v. State, 429 So.2d 691 (Fla.1983).
Appellant's 3.850 motion raises eleven claims for relief. All but three of these claims were raised or could have been raised in the appeal on the merits. As we have repeatedly stated, a 3.850 motion cannot be utilized for a second appeal to consider issues that either were raised or could have been raised in the initial appeal. Jones v. State, 446 So.2d 1059 (Fla.1984); Demps v. State, 416 So.2d 808 (Fla.1982); Christopher v. State, 416 So.2d 450 (Fla.1982); Foster v. State, 400 So.2d 1 (Fla.1981); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The three remaining issues are (1) that the Florida capital sentencing scheme is imposed in an arbitrary and discriminatory manner on the basis of geography, economic status, and sex of the defendant, and the occupation and race of the victim; (2) that a critical material witness has recanted and changed a material portion of his testimony; and (3) that O'Callaghan was deprived of effective assistance of counsel at both the guilt and sentencing phases of his trial.
First, O'Callaghan's claim that death penalty imposition in Florida is arbitrary and discriminatory has been previously raised and disposed of by this Court in Adams v. State, 449 So.2d 819 (Fla.1984), and Sullivan v. State, 441 So.2d 609 (Fla.1983). See also Wainwright v. Adams, --- U.S. ----, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984); Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983). The second issue relating to the change of testimony by a material witness is not a matter to be resolved in a 3.850 proceeding and will be disposed of in this opinion with respect to O'Callaghan's application for leave to file a petition for writ of error coram nobis. The only claim that merits discussion relates to the allegations of ineffective assistance of counsel. The trial court denied O'Callaghan an evidentiary hearing on this issue and specifically found in its order denying relief that O'Callaghan did not sufficiently demonstrate that he received ineffective assistance of counsel under the standards set forth by the United States Supreme Court in its recent decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The question that must first be resolved is whether the allegations made by O'Callaghan were sufficient to require an evidentiary hearing on the claim of ineffective assistance of counsel. The law is clear that under rule 3.850 procedure, a movant is entitled to an evidentiary hearing unless the motion or files and records in the case conclusively show that the movant is entitled to no relief. See Riley v. State, 433 So.2d 976 (Fla.1983); Demps v. State, 416 So.2d 808 (Fla.1982); LeDuc v. State, 415 So.2d 721 (Fla.1982). O'Callaghan alleges, in part, that his counsel's motion for a psychiatric examination of O'Callaghan was granted, but that O'Callaghan's counsel never had the examination conducted; that O'Callaghan's counsel called no witness in mitigation or for any purpose at the sentencing hearing; that O'Callaghan's counsel never contacted O'Callaghan's parents prior to the trial; that if his parents had been contacted, his counsel would have discovered that O'Callaghan suffered a harsh and alienating childhood, serious physical and psychological abuse as a child, a serious drug problem as a teenager, and had a family history of mental illness; and that a mental health professional's affidavit asserts he exhibits likely evidence of brain damage and mental illness. We conclude that these allegations are sufficient to require an evidentiary hearing on the issue of ineffective assistance of counsel.
O'Callaghan asserts that his codefendant, Walter Tucker, a/k/a Beau Mark Tucker, signed an affidavit on May 22, 1984, in which he recanted part of his trial testimony and stated, in part:
1. The night of the crime that O'Callaghan received the death penalty for, I, Beau Tucker fired what I consider to be a fatal shot into Vick, the victim.
2. O'Callaghan had fired two shots in rapid succession, and I believed at the time, and still do, that O'Callaghan missed the victim.
3. After he fired those two shots that missed, he handed me the gun immediately and I fired one shot, which I considered at the time, and still do believe, was the shot that entered his head.
O'Callaghan and Tucker were tried together. Tucker was found guilty of second-degree murder, while O'Callaghan was found guilty of first-degree murder and the jury recommended the imposition of the death penalty. O'Callaghan argues that had these facts been known at the time of trial, he would not have been convicted of first-degree murder or sentenced to death. In rebuttal, the state argues that in order to merit coram nobis relief, this type of newly discovered evidence, if taken as true, must directly...
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...where defendant alleged that "no expert was appointed to evaluate him for the purposes of presenting mitigation"); O'Callaghan v. State, 461 So.2d 1354, 1355 (Fla.1984) (holding that trial court erred in summarily denying defendant's ineffective assistance of counsel claim where defense cou......
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O'Callaghan v. State
...claim concerning ineffective trial counsel, which we remanded to the trial judge to conduct an evidentiary hearing. See O'Callaghan v. State, 461 So.2d 1354 (Fla.1984). Upon remand, the trial court found that O'Callaghan's trial counsel was effective during the guilt phase, stating, in pert......
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