Jackson v. State, s. 65429
| Decision Date | 12 June 1984 |
| Docket Number | 65430 and 65431,Nos. 65429,s. 65429 |
| Citation | 452 So.2d 533 |
| Parties | Carl JACKSON, Appellant, v. STATE of Florida, Appellee. Carl JACKSON, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Carl JACKSON, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Larry G. Turner and Robert S. Griscti of Turner, Kurrus & Griscti, Gainesville, and William B. Salmon of the Law Offices of William B. Salmon, Gainesville, for appellant/petitioner.
Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee/respondent.
This is an appeal from an order of the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County denying appellant's second motion for post-conviction relief. We also have before us a petition for habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.
Carl Jackson (hereinafter appellant), was convicted of robbery, kidnapping, and two counts of first-degree murder. This Court affirmed the murder conviction and sentence of death in Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979) (hereinafter Jackson I). Appellant then filed a motion in the circuit court for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure alleging several infirmities in the conduct of his trial. The circuit court denied the motion. This Court affirmed. Jackson v. State, 437 So.2d 147 (Fla.1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1016, 79 L.Ed.2d 246 (1984) (hereinafter Jackson II). Appellant then filed a second 3.850 motion in the circuit court, a motion for a hearing and appointment of experts for determinations of defendant's competency and for a stay of execution during the pendency thereof, and an application for a stay of execution. The circuit court denied the motions and this appeal followed. Appellant has also filed a petition for writ of habeas corpus in this proceeding. For the reasons which we express below, we affirm the denial by the circuit court of appellant's second 3.850 motion and his motion for a judicial determination of competency. Appellant's petition for writ of habeas corpus and his application for a stay of execution are also hereby denied.
Appellant contends in his second 3.850 motion that under the standard enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he received ineffective assistance of counsel at his trial. He argues that the United States Supreme Court in that opinion announced new standards for assessing ineffectiveness claims and specifically rejected the standards of Knight v. State, 394 So.2d 997 (Fla.1981), by which we judged appellant's claim in his first 3.850 motion.
In Knight v. State, this Court adopted four principles encompassed in United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1979) (en banc), by which a claim of ineffective assistance of counsel must be judged:
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel....
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings....
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact.
In Strickland v. Washington, the United States Supreme Court held that a defendant's claim of ineffective assistance of counsel has two components:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
To further explain the appropriate test for proving prejudice, the Court then held that Id. at 2068. We are of the opinion that this test does not differ significantly with the Knight standard of "a likelihood that the deficient conduct affected the outcome of the court proceedings;" hence, we do not reconsider our first opinion denying appellant's claim of ineffectiveness of trial counsel.
Appellant argues next in his second 3.850 motion that the death penalty in Florida is imposed in an arbitrary and discriminatory manner on the basis of race. This issue has been foreclosed by this Court in Sullivan v. State, 441 So.2d 609 (Fla.1983). More recently, the United States Supreme Court in Wainwright v. Ford, No. A-980, 3 , noted that "the statistical evidence relied upon by Ford to support his claim of discrimination was not sufficient to raise a substantial ground upon which relief might be granted." Appellant here relies on the same statistical evidence presented by Ford in his appeal; hence, there is no merit to this issue.
Finally, regarding appellant's other issues raised in his 3.850 motion, we agree with the trial judge that these could have been raised, should have been raised, or were raised in previous proceedings either on direct appeal or in his first 3.850 motion. Meeks v. State, 382 So.2d 673 (Fla.1980).
Appellant has also filed a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel. We find that only one of these points merits discussion, because the alleged errors were not preserved at trial. Appellate counsel cannot be ineffective for failing to raise issues which were not properly preserved at trial, because the appellate court may not review those issues. State v. Barber, 301 So.2d 7 (Fla.1974).
Appellant does allege that a proper objection was made in the trial court concerning an alleged Witherspoon [Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ] violation. Juror Powell was excluded for cause after he stated that he "didn't believe in capital punishment." However, the record shows that defense counsel's objection was not to the excusal of the juror for cause on these grounds, but to the form of the prosecutor's question. Hence, this issue was not properly preserved at trial, and appellate counsel was not ineffective for failing to raise it on direct appeal. State v. Barber.
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