Kilgore v. State
| Decision Date | 21 June 2006 |
| Docket Number | No. 2D05-842.,2D05-842. |
| Parties | Dean KILGORE, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
William M. Hennis, III, Litigation Director, and Neal A. Dupree, of Law Office of the Capital Collateral Regional Counsel, Ft. Lauderdale, for Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Respondent.
An attorney from the Office of the Capital Collateral Representative (CCRC), which had been appointed to represent Kilgore to collaterally attack his 1994 first-degree murder conviction and death sentence,1 sought to appeal the circuit court's order which was entitled "Order Dismissing Motion to Vacate Judgment of Conviction and Sentence With Special Request for Leave To Amend." The Order did not dismiss the collateral proceeding, but rather dismissed CCRC from its representation of Kilgore in that proceeding because CCRC was attempting to challenge the validity of Kilgore's 1978 first-degree murder conviction which had been used as an "aggravating factor" in the penalty phase of his 1994 case. Accordingly, this court has elected to convert the appeal to a proceeding in certiorari.
After hearing oral argument in this case, we grant the writ and certify a question of great public importance to the Florida Supreme Court2 because the ultimate answer to this question should be addressed by the court that deals with death cases:
ARE COUNSEL APPOINTED TO PROVIDE COLLATERAL REPRESENTATION TO DEFENDANTS SENTENCED TO DEATH, PURSUANT TO SECTION 27.702, AUTHORIZED TO BRING PROCEEDINGS TO ATTACK THE VALIDITY OF A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE?
The statute is not clear on the extent of CCRC's representation under the unique circumstances of this case. Section 27.702(1), Florida Statutes, provides:
The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such persons in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court. The capital collateral regional counsel and the attorney appointed pursuant to s. 27.710 shall file only those post-conviction collateral actions authorized by statute. (emphasis supplied)
Section 27.711(11), Florida Statutes, provides:
An attorney appointed under s. 27.710 []3 to represent a capital defendant may not represent the capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings. (emphasis supplied)
The above language does not explicitly deal with the situation where, as here, a previous conviction is the primary aggravator for imposition of the death penalty, and to challenge the death penalty, the previous conviction must be challenged.
The facts giving rise to this controversy are not in dispute. In 1978, Kilgore was convicted of three violent felonies: first degree murder, kidnapping and trespassing with a firearm. The jury found that he illegally entered the residence of a man and a woman and their children, at night, while armed with a firearm. He shot the man to death and kidnapped the woman, taking her to an orange grove where he kept her the rest of the night. The court sentenced him to two life sentences, with 25 year mandatory minimums. He did not seek post-conviction relief.
In 1989, while serving his life sentences in the Polk County Correctional Institution, Kilgore stabbed and killed another prisoner, allegedly his homosexual lover. He was charged with first-degree murder and possession of contraband by an inmate. He pled nolo contendere to both charges. However, he was permitted to withdraw the plea, and he was tried by a jury. In 1994, he was convicted on both counts and sentenced to death.
During the penalty phase, the 1978 first degree murder conviction was used as a major aggravator favoring the death penalty, and during the sentencing phase, the woman victim of the 1978 kidnapping testified against Kilgore. The trial court found two aggravating circumstances: that Kilgore was under sentence of imprisonment at the time he committed the murder; and that Kilgore had previously been convicted of felonies involving use or threat of violence to persons—murder, trespass with a firearm, and kidnapping (the 1978 case). The court also considered older prior convictions involving less serious offenses— assault with intent to commit murder, aggravated assault, and resisting arrest with force. However, the judge included in his sentencing order a description of the first degree murder case by way of explaining the "magnitude of the prior murder." And, in imposing the death sentence, the judge wrote that "[t]o sentence Mr. Kilgore to anything but death would be tantamount to giving him a license to kill." Kilgore v. State, 688 So.2d 895, 897 (Fla. 1997). Counsel for CCRC was appointed to represent Kilgore after his appeals had been exhausted.4
During public records litigation in the 1994 case, at a status hearing on August 20, 2001, some 1978 "state attorney notes" of interviews with the kidnapping victim in that case and her son, an eyewitness to the murder who also testified, were turned over to Kilgore in open court. They had been claimed as exempt by the State Attorney and were previously not made available to counsel for Kilgore. Comparing the notes with other existing statements by these witnesses, they allegedly reveal impeachment material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)(discovery violation is violation of due process).
CCRC believed that in order to collaterally attack Kilgore's 1994 death sentence, it had to try to invalidate the major aggravator presented in the sentencing phase, i.e., the 1978 first degree murder, kidnapping, and trespass with a firearm convictions. CCRC served motions pursuant to Florida Rule of Criminal Procedure 3.850 to vacate and set aside the 1978 murder conviction. The basis of the motion was the allegedly newly discovered evidence composed of notes of interviews of prosecuting attorneys in the 1978 case with the kidnapping victim and an eyewitness that had not previously been disclosed. CCRC sought an evidentiary hearing. At that point, the state questioned CCRC's authority to seek to invalidate the 1978 conviction.
The state submits that, although CCRC's representation was terminated, the trial court did not address or preclude Kilgore from proceeding on his own to assert a collateral challenge to his 1978 non-capital conviction. Kilgore could do so pro se, or ask the trial court to appoint post-conviction counsel in a non-capital case.5 The state candidly admits that collateral counsel must be afforded the opportunity to challenge a death sentence by showing that the use of a prior conviction as an aggravator is improper. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Had the 1978 conviction already been set aside, it would have been proper for CCRC to raise this issue in a collateral proceeding. Johnson v. Mississippi.
However, the state maintains that the Legislature has made it clear, as a policy matter, that CCRC is limited to challenging only the conviction and sentence of death row inmates, and that CCRC may not seek to collaterally attack other criminal convictions. This is primarily because the state is not constitutionally required to provide counsel in collateral proceedings seeking to attack the validity of a criminal conviction,6 and if counsel is provided pursuant to chapter 27, the Legislature may limit and qualify the representation provided at state expense. The Legislature has clearly chosen to exclude from such state funded representation civil litigation, which includes collateral attacks on other criminal convictions, because of its concerns about exhausting the public treasury. However, based on our research, the rarity of this issue would not translate into a significant concern for the public treasury.
CCRC argues that the language of section 27.711(1)(c) clearly7 permits it to seek to invalidate a prior criminal conviction, as part of its responsibility to collaterally challenge a death sentence. That is particularly true under the circumstances involved in this case, where the prior murder conviction was used as the primary, or one of the primary aggravators supporting the death sentence, and the witnesses and circumstances of the prior conviction and the sentencing are linked.
As a practical matter, we recognize that the presentation of a prior first degree murder conviction as an aggravator in a capital sentencing proceeding is major, and if invalid, its consideration is prejudicial.8 Convictions for less serious criminal offenses pale in significance. However, in order to challenge the murder conviction aggravator, the prior judgment must have been set aside.9 That is the course that CCRC was attempting to take, and it is consistent with ABA Guidelines.10
Although the ABA Guidelines for the Appointment and Performance in Death Penalty Cases have not been adopted in this state, the U.S. Supreme Court has cited "time and again, [to] the standards for capital defense work articulated by the American Bar Association" as guides. See Smith v. Mullin, ...
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State v. Kilgore
...A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE? Kilgore v. State (Kilgore II), 933 So.2d 1192, 1193 (Fla. 2d DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we hold that while Kilgor......
- State v. Kilgore