Francis v. Barton, Nos. 78068

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; SHAW; BARKETT, J., concurs specially with an opinion, in which KOGAN; BARKETT; KOGAN
• Citation: 581 So.2d 583
• Parties: Bobby Marion FRANCIS, Petitioner, v. Thomas L. BARTON, etc., et al., Respondents. Bobby Marion FRANCIS, Appellant, v. STATE of Florida, Appellee. 581 So.2d 583, 16 Fla. L. Week. S461
• Decision Date: 15 June 1991
• Docket Number: 78074,Nos. 78068

Page 583

581 So.2d 583 Bobby Marion FRANCIS, Petitioner,
v.
Thomas L. BARTON, etc., et al., Respondents.
Bobby Marion FRANCIS, Appellant,
v.
STATE of Florida, Appellee. Nos. 78068, 78074.
581 So.2d 583, 16 Fla. L. Week. S461 Supreme Court of Florida. June 15, 1991.
Certiorari Denied June 25, 1991.
See 111 S.Ct.
2879.

Billy H. Nolas and Julie D. Naylor, Ocala, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen. and Ralph Barreira, Asst. Atty. Gen., Miami, for respondents/appellee.

Steven M. Goldstein, Tallahassee, amicus curiae for Volunteer Lawyers' Resource Center.

PER CURIAM.

Francis, a prisoner under death warrant, petitions this Court for writ of habeas corpus, appeals the trial court's denial of his motion for postconviction relief, and requests a stay of his execution, currently scheduled for June 19, 1991. We have jurisdiction. Art. V, Sec. 3(b)(1), (9), Fla. Const.; Fla.R.Crim.P. 3.850. Because all of the issues raised in this successive postconviction petition and appeal from a successive postconviction motion are procedurally barred, we deny all relief.

We affirmed Francis' conviction of first-degree murder and sentence of death on direct appeal. Francis v. State, 473 So.2d 672 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986). After the governor signed Francis' first death

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warrant, we denied his petition for writ of habeas corpus, Francis v. Dugger, 514 So.2d 1097 (Fla.1987), and affirmed the trial court's denial of his first motion for postconviction relief. Francis v. State, 529 So.2d 670 (Fla.1988). Following the signing of his second death warrant, the federal courts denied Francis' petition for writ of habeas corpus. Francis v. Dugger, 908 F.2d 696 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991). The governor recently signed Francis' third death warrant, prompting the filing of his second 3.850 motion with the trial court and his second habeas corpus petition with this Court.

In this second 3.850 motion Francis raised the following claims: 1) improper jury override; 2) the state knowingly presented misleading evidence concerning the witness elimination/disrupt or hinder governmental function or enforcement of law aggravating factor; 3) finding witness elimination in aggravation violated Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); and 4) trial counsel rendered ineffective assistance by failing to investigate and prepare for the penalty phase. The trial court correctly found these issues procedurally barred and denied relief without holding an evidentiary hearing.

Francis raised the first issue on direct appeal and in his prior state and federal habeas corpus petitions. Issues raised and disposed of on direct appeal are procedurally barred in postconviction proceedings. Francis, 529 So.2d at 672; Francis, 514 So.2d at 1097. The cases Francis now relies on, e.g., Parker v. Dugger, --- U.S. ----, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991); Cochran...