Ford v. Wainwright

Decision Date25 May 1984
Docket NumberNos. 65335,65343,s. 65335
Citation451 So.2d 471
PartiesAlvin Bernard FORD, or Connie Ford, individually, and acting as next friend on behalf of Alvin Bernard Ford, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Dept. of Corrections, State of Florida, Respondent. Alvin Bernard FORD, etc., Appellant, v. STATE of Florida, etc., Appellee.
CourtFlorida Supreme Court

Richard L. Jorandy, Public Defender; Craig S. Barnard, Chief Asst. Public Defender; Richard H. Burr, III, West Palm Beach, of counsel; Richard B. Greene, Asst. Public Defender; and Michael A. Mello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, and Laurin A. Wollan, Jr., Tallahassee, for petitioner/appellant.

Jim Smith, Atty. Gen., and Russell S. Bohn, Joy B. Shearer and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for respondent/appellee.

ADKINS, Justice.

We have before us a petition for habeas corpus and an application for stay of execution in order to allow a hearing to determine petitioner's competency. We have jurisdiction. Art. V, § 3(b)(7), (9), Fla. Const.

The petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit on December 17, 1974, for the first-degree murder of a Fort Lauderdale police officer. The jury recommended death, and the trial court imposed a sentence of death on January 6, 1975. This Court affirmed petitioner's conviction and sentence of death in Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Petitioner then filed a motion to vacate or set aside the judgment pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court denied the motion, and its denial was affirmed by this Court. Ford v. State, 407 So.2d 907 (Fla.1981).

Petitioner's subsequent petition for writ of habeas corpus was denied by the United States District Court for the Southern District of Florida. Upon appeal, a divided panel of the United States Court of Appeals for the Eleventh Circuit affirmed the district court's denial of relief. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). Rehearing en banc was granted, and the en banc court affirmed the district court's judgment. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983). Certiorari was denied in Ford v. Strickland, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).

Thereafter proceedings to determine petitioner's mental competency were instituted pursuant to section 922.07, Florida Statutes (1983). As required by this statute, Governor Graham appointed a commission of three psychiatrists to evaluate petitioner's sanity. The reports of the psychiatrists were submitted to the Governor, and he signed a death warrant for petitioner on April 30, 1984, requiring petitioner to be executed between noon on May 25, 1984, and noon on June 1, 1984. Petitioner is currently scheduled to be executed on May 31, 1984.

In addition to the proceedings that were instituted on behalf of petitioner pursuant to section 922.07, petitioner's counsel also filed a motion in the trial court for a hearing to determine petitioner's competency and for a stay of execution during the pendency thereof. The trial court denied the motion on May 21, 1984.

Petitioner raises two issues in his petition for writ of habeas corpus. The first of these concerns a jury instruction given to the jury in the sentencing phase that its advisory verdict of either life imprisonment or death must be reached by a majority vote of the jury. Specifically, petitioner argues that intervening law has established that such an instruction is erroneous, and that but for the erroneous instruction the jury's verdict "most probably" would have been for life imprisonment.

This alleged error occurred during the sentencing proceeding in the trial court and therefore, the explicit proscription contained in Florida Rule of Criminal Procedure 3.850 applies here:

An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

In his first motion for post conviction relief in late 1981, petitioner raised other challenges to the instructions given during the sentencing phase, but did not raise this issue. Thus, petitioner is not entitled to raise the issue here. See Johnson v. State, 185 So.2d 466, 467 (Fla.1966); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981); Darden v. Wainwright, 236 So.2d 139 (Fla. 2d DCA 1970).

Furthermore, petitioner's reliance on Rose v. State, 425 So.2d 521 (Fla.), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), and Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984), is misplaced. This Court has recently clarified that the error which petitioner alleges here requires an objection at trial before relief can be granted on direct appeal. See Rembert v. State, 445 So.2d 337, 340 (Fla.1984); Jackson v. State, 438 So.2d 4, 6 (Fla.1983). The excerpt from the transcript of the sentencing phase of petitioner's trial which is appended to the instant petition shows that there was no objection to the instruction in the trial court. Thus, any alleged error in the contested jury instruction has been waived by the lack of a contemporaneous objection at trial, and any relief in this proceeding is precluded by the well-established rule that habeas corpus may not be used as a vehicle to raise for the first time issues which could or should have been raised at trial and on appeal. McCrae v. Wainwright, 439 So.2d 868, 870 (Fla.), cert. denied, 461 U.S. 939, 103 S.Ct. 2112, 77 L.Ed.2d 315 (1983); Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980).

Additionally, the instructions given to the jury accurately tracked the statute that was in effect at the time and that remains unchanged. It was a change in the standard jury instructions which prompted our decision in Harich. However, this Court has held that the Harich case does not constitute a change in the law which will merit relief in a collateral proceeding under the rule of Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Jackson, 438 So.2d at 6.

Moreover, as we held in Harich and Jackson, the record in this case does not establish that petitioner was prejudiced by the instructions as delivered. Petitioner attempts to construct his claim of prejudice based almost entirely upon the response by one juror as the jury was being polled regarding whether the verdict was by a majority vote of the jury, one juror responded: "The second time it was." From this response petitioner reasons that initially a majority of the jury did not vote for the death penalty, and then builds to a conclusion that "the erroneous instruction was determinative of the outcome...." However, it is well known that juries often take an initial vote to see where the members stand in order to channel their discussion. The mere fact that a second vote was taken does not establish anything in this record to indicate that the jury felt compelled to reach a conclusion that they would not otherwise have reached. Petitioner's assertion to that fact is based purely upon conjecture, but this Court has stated that reversible error cannot be predicated on conjecture. See Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

Petitioner's second claim in this proceeding is that the death penalty is applied in Florida in an arbitrary and discriminatory manner on the basis of race, geography, etc., in violation of the eighth and fourteenth amendments. This claim...

To continue reading

Request your trial
25 cases
  • Ford v. Wainwright
    • United States
    • United States Supreme Court
    • June 26, 1986
    ...Ford's attorneys unsuccessfully sought a hearing in state court to determine anew Ford's competency to suffer execution. Ford v. State, 451 So.2d 471, 475 (Fla.1984). Counsel then filed a petition for habeas corpus in the United States District Court for the Southern District of Florida, se......
  • Jones v. Continental Ins. Co., 86-1922-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 22, 1987
    ...at hand). 10 Florida courts presume that the legislature is aware of the case law pertaining to matters it is legislating. Ford v. Wainwright, 451 So.2d 471 (Fla.1984). 11See also W. Shernoff, S. Gage & H. Levine, Insurance Bad Faith Litigation § 6.04(3) (1986) wherein the author One state,......
  • Blanco v. Dugger, 87-6685-Civ.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 11, 1988
    ...763. As here, the defendant in Henry failed to make a contemporaneous objection at trial required by Florida case law. Ford v. Wainwright, 451 So.2d 471, 475 (Fla.1984).9 The jury in Henry returned a recommendation of death by a 7-5 vote. The defendant in Henry failed to proffer any evidenc......
  • Ford v. Wainwright
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 17, 1985
    ...be executed. The motion was denied summarily. After hearing oral argument, the Florida supreme court also denied relief. Ford v. Wainwright, 451 So.2d 471 (Fla.1984). The present petition was filed in district court on May 25, 1984. The district court held a hearing on May 29, 1984, heard a......
  • Request a trial to view additional results
1 books & journal articles
  • Obtaining relief for deceptive practices under FDUTPA.
    • United States
    • Florida Bar Journal Vol. 75 No. 10, November 2001
    • November 1, 2001
    ...is presumed to be acquainted with judicial decisions on a subject concerning which it subsequently enacts a statute. Ford v. Wainwright, 451 So. 2d 471, 475 (Fla. (54) Kirby Center v. Dept. of Labor and Employment Security, 650 So. 2d 1060, 1062 (Fla. 1st D.C.A. 1995). (55) FLA. STAT. [sect......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT