Kennedy v. State

• Decision Date: 08 June 1989
• Docket Number: No. 71678,71678
• Citation: 547 So.2d 912,14 Fla. L. Weekly 277
• Parties: 14 Fla. L. Weekly 277 Edward D. KENNEDY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 912

547 So.2d 912

14 Fla. L. Weekly 277

Edward D. KENNEDY, Petitioner, v. STATE of Florida, Respondent.

No. 71678.

Supreme Court of Florida.

June 8, 1989.

Rehearing Denied Aug. 30, 1989.

PER CURIAM.

Edward D. Kennedy, a prisoner under sentence of death, appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We have jurisdiction, article V, section 3(b)(1), Florida Constitution.

Kennedy was convicted of two counts of first-degree murder and sentenced to death for killing Floyd H. Cone and Florida Highway Patrolman Robert P. McDermon. On appeal this Court affirmed the convictions and sentences. Kennedy v. State, 455 So.2d 351 (Fla.1984). Review was denied by the United States Supreme Court. Kennedy v. Florida, 469 U.S. 1197, 105 S.Ct. 981, 83 L.Ed.2d 983 (1985).

A death warrant was signed for Kennedy on January 16, 1985. Kennedy's application for extraordinary relief and petition for habeas corpus were filed with this Court on February 3, 1986. The requested relief was denied. Kennedy v. Wainwright, 483 So.2d 424 (Fla.1986). Kennedy filed an application for stay of execution pending review of a petition for writ of certiorari in the United States Supreme Court, which granted the stay. Kennedy's petition for writ of certiorari in the United States Supreme Court was filed on June 11, 1986. The petition was denied. Kennedy v. Wainwright, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986).

On January 2, 1987, Kennedy filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the circuit court to vacate the judgment and sentence. Kennedy's motion was summarily denied on September 4, 1987. Kennedy's motion for rehearing was also denied, and notice of appeal was filed in this Court on December 17, 1987.

On appeal Kennedy raises nine claims for relief. Eight of these claims were raised in his motion for postconviction relief before the trial court. In his ninth claim, Kennedy argues that he was entitled to an evidentiary hearing with respect to the claims he asserted in his rule 3.850 motion. ¹

In its order denying relief, the trial court correctly noted that six of the claims Kennedy raised were claims that either had been raised or could have been raised on direct appeal. As such, these matters are procedurally barred and cannot be relitigated by motion for postconviction relief under rule 3.850. Maxwell v. Wainwright, 490 So.2d 927 (Fla.) cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986). The trial court's summary denial of this portion of the motion as procedurally barred was proper.

Kennedy's remaining claims concern his alleged ineffective assistance of trial counsel. He argues that his trial counsel was ineffective for two reasons. First, Kennedy contends his trial counsel was ineffective for failing to investigate Kennedy's background adequately in order to present compelling mitigating evidence. Second, he argues that counsel should have submitted to the trial court the videotape of Kennedy's surrender to and arrest by law enforcement to show his remorse over this incident, and argued that the jury should view it.

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. See Agan v. State, 503 So.2d 1254 (Fla.1987); O'Callaghan v. State, 461 So.2d 1354 (Fla.1984). A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant. The test for determining whether counsel has been ineffective was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is set forth in our opinion in Maxwell v. Wainwright:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, a claimant must identify particular acts or omissions of the lawyer...