Harich v. State

Decision Date18 March 1986
Docket NumberNo. 68475,68475
Citation484 So.2d 1239,11 Fla. L. Weekly 119
Parties11 Fla. L. Weekly 119 Roy A. HARICH, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Larry Helm Spalding, Capital Collateral Representative and Michael A. Mello, Asst. Capital Collateral Representative, Office of

Capital Collateral Representative, Tallahassee and Jonathan F. Horn of Kaye, Scholer, Fierman, Hays and Handler, New York City, for appellant.

Jim Smith, Atty. Gen. and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Roy A. Harich, who is under sentence of death, seeks a stay of execution and appeals from the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. This Court affirmed appellant's conviction in 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), and denied habeas corpus relief in Harich v. Wainwright, 484 So.2d 1237 (Fla.1986).

Harich raises eight claims for relief in this 3.850 motion. The trial court denied relief without an evidentiary hearing. We find that all but two of Harich's claims either were raised or could have been raised in his appeal on the merits, and are, therefore, not properly subject to review in a 3.850 proceeding. See O'Callaghan v. State, 461 So.2d 1354 (Fla.1984), and cases cited therein.

The two issues properly before this Court concern allegations of ineffective assistance of trial counsel. In the first of these claims, Harich contends that "trial counsel ineffectively prepared for the asserted alternative voluntary intoxication defense and the effect on guilt-innocence and sentencing was devastatingly prejudicial in violation of the sixth, eighth, fourteenth amendments." In the second claim, Harich asserts that "trial counsel unreasonably failed to investigate facts rebutting statutory aggravating circumstances and to investigate and present the mitigating testimony of any family members, preachers, teachers, friends, and others, all of whom were willing to testify." As part of this claim, Harich contends that trial counsel failed to contact his family members and ask them to testify in the sentencing hearing, and sets forth, in affidavit form, evidence that trial counsel could have presented in that phase of the trial.

The trial court determined that Harich's claim regarding trial counsel's failure to prepare for the voluntary intoxication defense is not properly presented on a 3.850 motion because it could have been raised on direct appeal. In denying an evidentiary hearing on Harich's second claim, the trial court found that the allegations were "conclusions of the pleader" and an attack on trial counsel's "tactical choice and strategy." The trial court concluded that "trial counsel was within the standards of competency expected."

This Court must determine whether the two allegations of ineffective assistance of counsel are sufficient to require an evidentiary hearing. Under rule 3.850 procedure, a movant is entitled to an evidentiary hearing unless the motion and record conclusively show that the movant is not entitled to relief. See O'Callaghan; Riley v. State, 433 So.2d 976 (Fla.1983); Demps v. State, 416 So.2d 808 (Fla.1982); LeDuc v. State, 415 So.2d 721 (Fla.1982).

The test to determine whether counsel is ineffective is stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

The court must ... determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance....

....

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

....

... When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance...

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51 cases
  • Harich v. Wainwright
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 18, 1987
    ...trial court denied the motion and the request for a hearing, and the Florida Supreme Court, two judges dissenting, affirmed. Harich v. State, 484 So.2d 1239 (Fla.), cert. denied, --- U.S. ----, 106 S.Ct. 2908, 90 L.Ed.2d 993 On March 18, 1986, Harich filed a petition for writ of habeas corp......
  • Correll v. Sec'y, Dep't of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • March 19, 2013
    ...counsel cannot be deemed ineffective for failing to request such instruction. Combs v. State, 525 So.2d 853 (Fla.1988); Harich v. State, 484 So.2d 1239 (1984) [ (1986) ].Correll's defense was that he did not commit the murders. As a consequence, trial counsel's not seeking an involuntary in......
  • Correll v. Sec'y, Dep't of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • March 19, 2013
    ...counsel cannot be deemed ineffective for failing to request such instruction. Combs v. State, 525 So. 2d 853 (Fla. 1988); Harich v. State, 484 So. 2d 1239 (1984).Correll's defense was that he did not commit the murders. As a consequence, trial counsel's not seeking an involuntary intoxicati......
  • Occhicone v. State
    • United States
    • Florida Supreme Court
    • June 29, 2000
    ...not refuted by the record. See Peede, 748 So.2d at 257; see also Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla.1989); Harich v. State, 484 So.2d 1239, 1241 (Fla.1986). As his first claim, Occhicone alleges that the State withheld the names of material witnesses Lilly Lawson, Anita Gerret......
  • Request a trial to view additional results
1 books & journal articles
  • Avoiding deportation by vacating state court convictions.
    • United States
    • Florida Bar Journal Vol. 78 No. 2, February 2004
    • February 1, 2004
    ...2d 657 (Fla. 3d D.C.A. 1992). (34) State v. Seraphin, 818 So. 2d 485 (Fla. 2002). (35) FLA. R. CRIM. P. 3.850(d). (36) Harich v. State, 484 So. 2d 1239 (Fla. (37) FLA. R. CRIM. P. 3.850(g). (38) Davis v. State, 624 So. 2d 282 (Fla. 3d D.C.A. 1993). (39) FLA. R. CRIM. P. 3.850(g). (40) FLA. ......

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