Dobbert v. State

• Decision Date: 28 August 1984
• Docket Number: 65782,Nos. 65465,s. 65465
• Citation: 456 So.2d 424
• Parties: Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee. Ernest John DOBBERT, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary Department of Corrections of the State of Florida, Respondent.
• Court: Florida Supreme Court

Page 424

456 So.2d 424

Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.

Ernest John DOBBERT, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary Department of Corrections of the State of Florida, Respondent.

Nos. 65465, 65782.

Supreme Court of Florida.

Aug. 28, 1984.

Patrick D. Doherty, Clearwater, and Steven Malone of Rahdert, Malone & Richardson, St. Petersburg, for appellant/petitioner.

Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee/respondent.

ALDERMAN, Justice.

Ernest John Dobbert appeals two orders of the trial court denying his motions to vacate his judgment and death sentence. He has also filed a petition for writ of habeas corpus and an application for stay of execution. Finding no error, we affirm the trial court's denial of these motions. We also deny the petition for habeas corpus and the application for stay.

In 1974, Dobbert was convicted of the first-degree murder of his nine-year-old daughter and was sentenced to death. He was also convicted of second-degree murder of his seven-year-old son, child torture of his eleven-year-old son, and child abuse of his five-year-old daughter. This Court and the Supreme Court of the United States affirmed his convictions and death sentence. Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Subsequently Dobbert sought relief here on the basis that he had not received a copy of the presentence investigation report which had been furnished the trial court at the time it first sentenced Dobbert. Finding a Gardner ¹ violation, we relinquished jurisdiction to the trial court with directions to set aside the death sentence and to afford Dobbert the opportunity to respond to the presentence investigation report before resentencing. The trial court set aside the sentence, conducted a plenary resentencing hearing, and again sentenced Dobbert to death. We affirmed the sentence of death, and the Supreme Court of the United States denied certiorari. Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). The governor signed a warrant for Dobbert's execution on June 25, 1981, and his execution was scheduled for July 22, 1981. The Supreme Court of the United States, however, stayed execution pending its disposition of a petition for writ of certiorari in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). A second warrant was signed by the governor on January 6, 1982, and Dobbert's execution was scheduled for February 2, 1982.

The day after the governor signed the second warrant, Dobbert filed a motion to vacate his death sentence and alleged that he was denied his sixth amendment right to a fair trial because the state, in the Fourth Judicial Circuit, had systematically exercised peremptory challenges to exclude persons who had scruples against the imposition of the death penalty; that the Supreme Court of Florida may have improperly considered psychiatric examinations in some death appeals; that the Supreme Court of Florida's construction of the aggravating circumstance of "heinous, atrocious, or cruel" is overbroad, thereby rendering its application unconstitutional; that the trial court considered nonstatutory aggravating factors; and that the imposition of the death penalty in his case constituted cruel and unusual punishment. In an addendum to his motion to vacate, Dobbert alleged that the trial court erred in imposing the death sentence after a jury recommendation of life. After hearing, the trial court denied Dobbert's motion to vacate. We affirmed and denied his motion for stay of execution. Dobbert v. State, 409 So.2d 1053 (Fla.1982). He then filed a petition for writ of habeas corpus alleging thirteen grounds ² for relief in the federal district court. The district court issued a certificate of probable cause under 28 U.S.C. § 2253 (1976), but denied a stay of execution. In the meantime the United States Circuit Court of Appeals for the Eleventh Circuit granted Dobbert's request for stay of execution. Dobbert v. Strickland, 670 F.2d 938 (11th Cir.1982). The federal district court denied his petition for relief on January 30, 1982. Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982). He appealed to the United States Circuit Court of Appeals for the Eleventh Circuit which affirmed. Dobbert v. Strickland, 718 F.2d 1518 (11th Cir.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).

In February 1982, Dobbert filed a request with this Court for leave to file a petition for writ of error coram nobis on the basis that he was convicted of the first-degree murder of his daughter and was sentenced to death solely upon false testimony of his son and that the untruthfulness of this testimony could not have been discovered at the time of trial through the use of due diligence. We denied his request on the basis that the evidence submitted by Dobbert was not new evidence. Dobbert v. State, 414 So.2d 518 (Fla.1982).

After this Court's denial of his request for leave to file a petition for writ of error coram nobis, Dobbert filed a second petition for writ of habeas corpus in the federal district court. He alleged that his conviction of first-degree murder was based solely on perjured testimony. The federal district court dismissed this petition without prejudice. Dobbert v. Strickland, No. 82-1014-Civ-J-B (M.D.Fla. May 6, 1983).

Appeal from Denial of Initial Rule 3.850 Motion

Dobbert, pursuant to Florida Rule of Criminal Procedure 3.850, then filed a second motion to vacate his judgment and sentence wherein he contended that his conviction and sentence for the first-degree murder of his daughter were based solely on perjured testimony; that he was denied effective assistance of counsel because counsel did not adequately cross-examine John Dobbert III, Dobbert's son; and that the prosecutor used testimony which he knew or should have known was perjured.

The trial court held an evidentiary hearing and then entered a detailed order denying Dobbert relief. It made findings of fact and carefully set out its rationale for denying relief on each of the grounds raised by Dobbert. He appeals this order and argues that the trial court erred in denying his request for relief on each of these grounds.

Relative to Dobbert's claim of ineffective assistance of counsel, the trial court went at great length into the background, experience, preparation, and trial strategy of Dobbert's counsel. It found that his counsel's trial strategy and tactics were based on counsel's considerable experience, exhaustive preparation, judgment, and knowledge of the case. The court summarized the present criticism of defense counsel as follows:

In more succinct terms, Southwood was effective counsel in months of pretrial preparation, was effective counsel in filing twenty-one motions and pleadings, was effective counsel in taking forty-one depositions, was effective counsel in five days of jury voir dire, was effective counsel in five days of trial, was effective counsel in direct and cross examination of trial witnesses, and was effective counsel in the advisory sentence proceedings. But, because he did not question one witness in the manner Doherty and Harrison considered appropriate--they contend he was ineffective counsel for the defendant.

The trial court notes that the assertion now being made by Dobbert's present counsel and concurred with by a defense witness testifying at the evidentiary hearing is being made ten years after the trial, long removed from the publicity, drama, and intensity which surrounded the trial in 1974 and without the benefit of defense counsel's meticulous preparation and extensive knowledge of all the facts of the case. After quoting the portions of defense counsel's testimony at the evidentiary hearing describing his basis for not questioning John Dobbert III in the manner which present counsel for Dobbert asserts he should have done, the trial court concluded that counsel was effective. The court explained that defense counsel, in his cross-examination, attempted to limit John III's testimony to avoid a "parade of horribles" that might have been brought out by John III had counsel further cross-examined him along the lines now put forth by Dobbert in his 3.850 motion. The trial court outlined the prejudicial facts that could have been testified to by John III, facts which defense counsel and the state attorney were fully aware of by virtue of months of exhaustive preparation. It found that by limiting cross-examination, defense counsel avoided the risk of John III "breaking down" and relating many incidents which were not brought out on direct examination by the assistant state attorney but which he was prepared to go into and had attempted to bring out. Had the bestial behavior and sadistic brutalities been brought out on cross-examination or on redirect, the court found there would be little doubt that it would have inflamed the minds of the jurors.

Applying the test announced by this Court in Knight v. State, 394 So.2d 997 (Fla.1981), wherein this Court established the criteria to be applied in evaluating the merits of claims of ineffective assistance of counsel, the trial court held that Dobbert failed to prove that defense counsel was ineffective and that, even though the defense failed to carry its burden, the state presented evidence to show beyond a reasonable doubt that there was no prejudice in fact. The court found that the evidence conclusively shows that defense counsel was effective trial counsel.

Dobbert challenges the findings of the trial court that he did not meet his burden under Knight to demonstrate ineffective assistance of counsel but additionally argues that the criteria for evaluating ineffectiveness of counsel claims have been altered by the decision of the Supreme Court of the United...