Demps v. State, 71402
| Decision Date | 04 November 1987 |
| Docket Number | No. 71402,71402 |
| Citation | 515 So.2d 196,12 Fla. L. Weekly 561 |
| Parties | 12 Fla. L. Weekly 561 Bennie DEMPS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Larry Helm Spalding, Capital Collateral Representative, and Mark Evan Olive, Chief Asst., Office of the Capital Collateral Representative, Tallahassee, and Robert A. Harper, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.
Bennie Demps, under sentence of death and execution warrant, appeals the trial court's summary denial of post-conviction relief under Florida Rule of Criminal Procedure 3.850 and stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
This is Demps' second death warrant and fifth appearance before this Court. We affirmed his conviction for first-degree murder and sentence of death in Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). We reversed the trial court's summary denial of a motion for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure, and remanded for an evidentiary hearing in Demps v. State, 416 So.2d 808 (Fla.1982). We subsequently affirmed the trial court's denial of post-conviction relief in Demps v. State, 462 So.2d 1074 (Fla.1984). Demps recently petitioned this Court for habeas corpus relief which we denied. Demps v. Dugger, 514 So.2d 1092 (Fla.1987).
Demps filed with the trial court an emergency motion to vacate judgment and sentence with special request for leave to amend, motion for stay of execution, and request for continuance of evidentiary hearing. The court issued the following order denying all relief:
Notwithstanding the fact that defendant has previously and unsuccessfully sought relief under Rule 3.850 Fl.R.Cr.P. from his 1978 death sentence, and also notwithstanding the fact that the instant 3.850 Motion violates the provisions of such Rule by its having been filed subsequent to January 1, 1987, this Court, during the evening of November 2, 1987, immediately after receiving this Motion and continuing during the morning hours of November 3, 1987, has carefully reviewed this Motion, the several opinions previously written by the Supreme Court of Florida in this case, and cases and material cited and referred to in this Motion. This Court finds nothing in the instant Motion that either should not or could not have been raised in either the prior direct appeal or in the prior Motion for Post Conviction Relief.
Recognizing that the execution of this sentence now set for November 5, 1987 will result in the death of defendant, this Court has also studied the instant Motion to ascertain if any extraordinary circumstances were presented to suggest intervention by this Court under the inherent power of the Court to grant such relief, and no such circumstances are found.
The defendant in this case has received the benefit of every constitutional right and privilege available, and the judgment and sentence have been upheld both on direct appeal and by later affirmance after the Court ordered evidentiary hearing on a portion of the prior Motion for Post Conviction Relief.
There is absolutely no reason to further study, further plead, or hold hearings or further delay this case.
It is therefore ORDERED and ADJUDGED that the Emergency Motion to Vacate Judgement and Sentence with Special Request for Leave to Amend, Motion for Stay of Execution, and Request for Continuance of Evidentiary Hearing in all respects is hereby denied.
Demps' was required under the rule to request post-conviction relief by January 1, 1987, since his conviction and sentence became final prior to January 1, 1985. Relief is now procedurally barred unless Demps alleges facts previously unknown and not discoverable, or raises a newly established fundamental constitutional right. Rule 3.850.
Demps argues that relief should be granted because the trial court denigrated the jury's role in violation of the United States Supreme Court's recent decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Caldwell is not a sufficient change in the law to overcome a procedural bar. Copeland v....
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Demps v. Dugger
...motion to vacate the sentence in state trial court which was denied. On appeal, the Florida Supreme Court affirmed. Demps v. State, 515 So.2d 196 (Fla.1987). Thereafter, the petitioner filed his third petition for habeas relief in federal district court raising the four issues set forth abo......
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Harmon v. Barton
...motion by January 1, 1987, and his failure to explain the delay, provide further evidence of his procedural default. See Demps v. State, 515 So.2d 196 (Fla.1987), (petitioner procedurally barred from post-conviction relief due to failure to file timely request under Rule 3.850).8 In additio......
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Tribbitt v. State
...petition based on information previously ascertainable through the exercise of due diligence." Id. at 223 (quoting Demps v. State , 515 So. 2d 196, 198 (Fla. 1987) ). The information in Agan and Demps stemmed from a public records request, but I see no principled way to hold that the failur......
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Tribbitt v. State
...through the exercise of due diligence." Id. at 223 (quoting Demps v. State, 515 So.2d 196, 198 (Fla. 1987)). The information in Agan and Demps stemmed from a public records request, I see no principled way to hold that the failure to make a telephone call to trial counsel should be given gr......