Giuliano v. Wainwright, 81-2288
| Decision Date | 23 June 1982 |
| Docket Number | No. 81-2288,81-2288 |
| Citation | 416 So.2d 1180 |
| Court | Florida District Court of Appeals |
| Parties | Ignatizo GIULIANO, Petitioner, v. Louie WAINWRIGHT, Director, Division of Corrections, Respondent. |
Channing E. Brackey, Howard L. Finkelstein, and Ronald K. Dallas of Brackey, Finkelstein & Dallas, P. A., Fort Lauderdale, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
This matter is before us on a petition for writ of habeas corpus which we have concluded should be denied. In many instances we do not write opinions upon the denial of such petitions. However, in view of the sensitivity of the issue presented we believe our disposition of this petition warrants a written opinion.
On March 14, 1977, petitioner Ignatizo Giuliano was charged with possession of cannabis in Broward County, Florida. On April 27, 1979, petitioner was convicted of this charge and sentenced to five years imprisonment to run consecutively to a sentence previously imposed. On July 23, 1980, this conviction was affirmed by this court by a panel consisting of Judges Moore, Beranek, and Hurley. Guiliano v. State, 386 So.2d 1329 (Fla. 4th DCA 1980), Case No. 79-1507, rehearing denied September 4, 1980.
On August 30, 1977, petitioner was charged with delivery of cannabis and delivery of cocaine in Broward County. On May 10, 1979, petitioner was convicted of these charges and was sentenced to fifteen years of imprisonment to run concurrently with those sentences previously imposed. On June 11, 1980, this conviction was affirmed by this court by a panel consisting of Chief Judge Letts and Judges Moore and Glickstein. Guiliano v. State, 384 So.2d 1386 (Fla. 4th DCA 1980), Case No. 79-1326, rehearing denied July 23, 1980.
On December 9, 1981, petitioner filed the petition for writ of habeas corpus at issue here, seeking an evidentiary hearing and, alternatively, dismissal of the charges, reinstatement of the appeal, or mitigation of the sentence entered in Case No. 79-1326. Petitioner alleged that his conviction in Case No. 79-1326 was infirm because Judge Glickstein, who sat as a member of this court in that case, had, while in private practice, represented a prosecution witness, Thomas Dubocq, during the trial of Case No. 79-1507. Mr. Dubocq, a reporter for the Hollywood Sun Tattler to whom petitioner had purportedly made incriminating statements, was compelled to testify during the trial after initially claiming a reporter's privilege under the First Amendment of the United States Constitution.
For several reasons, we do not believe these facts now entitle the petitioner to have the affirmance of his conviction in Case No. 79-1326 set aside. First, in Case No. 79-1507 petitioner did not testify in his own behalf; consequently, he had no direct contact with Judge Glickstein and his characterization of their relationship in that case as "adversarial" is simply not justified. Second, although petitioner had notice no later than June 11, 1980, that Judge Glickstein had actually participated in the unanimous per curiam affirmance of his conviction in Case No. 79-1326, such participation was not challenged in petitioner's motion for rehearing. Petitioner's bare boned allegation that he recently became aware of Judge Glickstein's participation is simply insufficient to justify the delay of more than eighteen months in bringing this matter to this court's attention. Third, even if an appropriate motion for recusal had been made, in Florida the disqualification of an appellate judge is a matter which rests largely within the sound discretion of the individual involved. Compare the opinions of Justice England in Dept. of Revenue v. Golder, 322 So.2d 1 (Fla.1975) and Dept. of Revenue v. Leadership Housing, Inc., 322 So.2d 7 (Fla.1975), ultimately disqualifying himself, with the opinion of Justice Overton, In Re Estate of Carlton, ...
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State ex rel. Cohen v. Manchin
...1212 (Fla.1979), cert. denied sub nom., Hayes v. Rogers, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); Giuliano v. Wainwright, 416 So.2d 1180 (Fla.Dist.Ct.App.1982); Frank, Commentary on Disqualification of Judges--Canon 3 C, 1972 Utah L.Rev. 377; Frank, Disqualification of Judges, ......
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...1212 (Fla.1979), cert. denied sub nom., Hayes v. Rogers, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); Giuliano v. Wainwright, 416 So.2d 1180 (Fla.Dist.Ct.App.1982); Frank, Disqualification of Judges--Canon 3C, 1972 Utah L.Rev. 377; Frank, Disqualification of Judges, 56 Yale L.J. 60......
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Boyer v. State, 4-86-0282
...court thinks that is the proper vehicle for review of the issue he raises. The parties disagree on the effect of Giuliano v. Wainwright, 416 So.2d 1180 (Fla. 4th DCA 1982). The state thinks Giuliano stands for a principle akin to the doctrine of laches that makes the grievance based on the ......