Francois v. State

• Decision Date: 01 December 1982
• Docket Number: 62916,Nos. 62874,s. 62874
• Citation: 423 So.2d 357
• Parties: Marvin FRANCOIS, Appellant, v. STATE of Florida, Appellee. Marvin FRANCOIS, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
• Court: Florida Supreme Court

Page 357

423 So.2d 357

Marvin FRANCOIS, Appellant, v. STATE of Florida, Appellee.

Marvin FRANCOIS, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.

Nos. 62874, 62916.

Supreme Court of Florida.

Dec. 1, 1982.

Joel N. Rosenthal and Lawrence M. Malman, Miami, for appellant/petitioner.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee/respondent.

PER CURIAM.

Marvin Francois appeals the trial court's order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Additionally, he has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. We affirm the denial of the motion to vacate and deny the petition for writ of habeas corpus.

Francois was convicted of six first-degree murders, along with additional crimes, and received six sentences of death. On direct appeal, we affirmed his convictions and death sentences. Francois v. State, 407 So.2d 885 (Fla.1981). The Supreme Court of the United States denied a petition for writ of certiorari. Francois v. Florida, ---

U.S. ----, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). On November 5, 1982, the governor signed a death warrant. Francois' execution was scheduled for December 7, 1982. Francois filed a motion to vacate in the trial court on November 12, 1982. On November 15, 1982, the trial court scheduled a hearing on the motion for November 17. In the meantime, on November 16, 1982, Francois filed a petition for habeas corpus in this Court. Because of the filing of the habeas petition here, the trial court determined it had been divested of jurisdiction to consider the motion for post-conviction relief. Francois then sought mandamus here to require the trial court to consider his motion. We granted his petition for writ of mandamus and the trial court then considered his motion, and, finding it to be without merit, denied it.

APPEAL

On appeal of the denial of his motion to vacate judgment and sentence, Francois contends that he was not provided with effective assistance of counsel at his trial. He argues that his counsel was ineffective by: (1) failure to diligently pursue the motion to dismiss the indictment on the ground of discriminatory selection of grand jurors; (2) failure to adequately investigate appellant's character and background and to present nonstatutory mitigating evidence at the sentencing phase, particularly with regard to appellant's mental state; and (3) failure to object to an instruction given to the jury concerning the process of weighing the aggravating and mitigating circumstances and to request an alternative instruction.

In Knight v. State, 394 So.2d 997 (Fla.1981), this Court adopted a four-step analysis for determining whether an appellant has been provided with reasonably effective assistance of counsel. The test was adopted from United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1976) (en banc) and "provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel's legal and tactical conduct at trial or on appeal." Knight v. State, 394 So.2d at 1000-01. The four-step test requires (1) that the claimant identify a specific act or omission upon which the claim of ineffective assistance of counsel is based; (2) that the appellant show that the specific act or omission was a substantial and serious deficiency measurably below the standard expected of competent attorneys; (3) that the appellant show that the deficiency, under the circumstances, was so substantial as to have probably affected the outcome of the proceedings; and (4) that if the above three factors are established, the state still has the opportunity to rebut the claim of ineffective assistance by showing beyond a reasonable doubt that there was in fact no prejudice. Knight v. State, 394 So.2d at 1001.

Prior to trial, defense counsel moved to dismiss the indictment on the ground of discriminatory selection of grand jurors. He asked for discovery and an evidentiary hearing. The trial court denied these motions. On appeal, this Court declined to consider whether discriminatory selection had tainted the indictment, finding that defense counsel had agreed to a ruling without an evidentiary hearing with knowledge of prior court ruling on the same issue. Appellant now identifies this action of trial counsel as an overt act or specific omission entitling him to relief on the ground of ineffective assistance.

The right of the accused to reasonably competent assistance of legal counsel does not entitle him to have every conceivable constitutional challenge pressed upon the court. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). It was within the range of competence expected of attorneys in criminal cases for defense counsel to act as he did under the circumstances of the case. Counsel's decision, under the circumstances, was not a substantial deficiency, measurably below the standard of performance expected of competent counsel.

With regard to the claim of failure to gather and present evidence of mitigating Francois also argues that his trial counsel was deficient in failing to object to the jury instruction on the process of weighing aggravating and mitigating circumstances and failing to request an alternative instruction. Appellant argues that the instructions regarding the weighing process were erroneous, that there was no instruction on the standard of proof of mitigating circumstances, and that the failure to object constituted ineffective assistance. Appellant specifically asserts that it was error to instruct the jury that it was to determine whether or not "sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist." Record on appeal at 1259. He argues that this instruction was an improper allocation of the burden of proof. An identical instruction was given in Arango v. State, 411 So.2d 172 (Fla.), cert. denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982). This Court said that the sentencing instructions had to be looked at as a whole:

circumstances, Francois presents numerous assertions concerning his background, character, and the circumstances of his upbringing which he says defense counsel should have discovered and presented at the sentencing phase. This is not a case of total failure to present any mitigating evidence of argument whatsoever. Defense counsel did in fact present witnesses who testified concerning appellant's character and background. Appellant does not identify any one of the enumerated items of fact which he relies on now as a specific omission which amounted to a substantial deficiency and which under the circumstances probably affected the outcome of the trial. Therefore, the argument based on failure to adequately present evidence of mitigation is without merit.

A careful reading of the transcript ... reveals that the burden of proof never shifted. The jury was first told that the state must establish the existence of one or more aggravating...