Mann v. Moore, SC00-2602.

• Decision Date: 12 July 2001
• Docket Number: No. SC00-2602.,SC00-2602.
• Citation: 794 So.2d 595
• Parties: Larry MANN, Petitioner, v. Michael W. MOORE, etc., et al., Respondents.
• Court: Florida Supreme Court

794 So.2d 595

Larry MANN, Petitioner, v. Michael W. MOORE, etc., et al., Respondents.

No. SC00-2602.

Supreme Court of Florida.

July 12, 2001.

Rehearing Denied September 5, 2001.

Julius J. Aulisio, Assistant CCRC, and Leslie Anne Scalley, Staff Attorney, Capital Collateral Regional Counsel—Middle, Tampa, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, FL, for Respondent.

PER CURIAM.

Larry Mann petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. We deny the petition.

Mann was convicted in 1982 and sentenced to death for the kidnaping and first-degree murder of ten-year old Elisa Nelson. The facts are more fully set forth in our opinion on Mann's first direct appeal. See Mann v. State, 420 So.2d 578 (Fla.1982)

. The extensive procedural history of this case is briefly summarized in our latest opinion, where we denied Mann's rule 3.850 motion. See Mann v. State, 770 So.2d 1158, 1160 (Fla.2000). In this habeas, Mann raises five issues¹ and the State raises one.² We address the State's argument first.

The State argues that Florida Rule of Appellate Procedure 9.140(b)(6)(E)³ operates to bar Mann's petition.⁴ That rule provides that all petitions for habeas corpus filed by individuals attacking their death-sentences must be filed simultaneously with the filing of the initial brief appealing the trial court's denial of a rule 3.850 motion. Florida Rule of Criminal Procedure 3.851(b)(2) contains a provision which mirrors the simultaneous filing requirement of rule 9.140(b)(6)(E). In Robinson v. Moore, 773 So.2d 1, 2 n. 1 (Fla.2000), we stated that rule 3.851(b)(2), by virtue of rule 3.851(b)(6), does not apply to defendants whose convictions and sentences were final as of January 1, 1994.⁵

We acknowledge that the committee notes from the 1996 revision to rule 9.140 indicate that rule 3.851(b)(2) would stand repealed on January 1, 1997, upon the adoption of rule 9.140(b)(6)(E).⁶ We also acknowledge that Florida Rule of Judicial Administration 2.135 provides that the Florida Rules of Appellate Procedure control all proceedings in this Court when there is a conflict in any of rules of procedure. Thus, the exception to prisoners convicted and sentenced before January 1, 1994, created by rule 3.851(b)(6) no longer applies. However, rule 3.851(b)(2) has not been deleted from the published rule 3.851, upon which practitioners rely. Given this failure to delete 3.851(b)(2) and our decision in Robinson, we believe that there has been sufficient confusion in practical application that to bar a habeas petition brought in reliance upon rule 3.851(b)(2) continuing to apply to death-row prisoners convicted and sentenced before January 1, 1994, would be unjust. Thus, we do not bar Mann's petition under rule 9.140(b)(6)(E), BUT WE DO ANNOUNCE THAT IN CAPITAL POSTCONVICTION LITIGATION, EFFECTIVE JANUARY 1, 2002, all petitions for extraordinary relief, including habeas corpus petitions, must be filed simultaneously with the initial brief appealing the denial of a rule 3.850 motion. See Fla. R.App. P. 9140(b)(6)(E). We hold that the simultaneous filing requirement in rule 9.140(b)(6)(E) and 3.851(b)(2) does apply to defendants whose convictions and sentences were finalized prior to January 1, 1994, notwithstanding the provision of rule 3.851(b)(6). By this holding, we recede on this sole point from our contrary holding in Robinson v. Moore, 773 So.2d 1, 2 n. 1 (Fla.2000).

The State also argues that McCray v. State, 699 So.2d 1366, 1368 (Fla.1997), authorizes a court to apply laches to bar a habeas petition filed more than five years after a conviction became final. However, McCray involved an individual who was serving a life sentence but was not under a sentence of death and is therefore distinguishable. We decline to apply laches to bar Mann's habeas petition because we find that Mann's reliance on rule 3.851(b)(2) in this case was not unreasonable. As we have declined the State's invitation to bar Mann's habeas petition, we must now address Mann's claims.

Mann's first claim is that the death sentence is unconstitutional as applied to him in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Mann argues that at the time of his penalty phase, the maximum sentence under section 775.082, Florida Statutes (1989), was life in prison without the possibility for parole for twenty-five years. Mann further argues that Apprendi requires aggravators to be charged in the indictment and submitted to the jury for its determination beyond a reasonable doubt. Mann alleges that his appellate counsel was ineffective for failing to raise this issue on direct appeal along with the trial court's denial of Mann's request that the jury's recommendation of death be unanimous.

This Court recently rejected the argument that Apprendi applied to capital sentencing schemes. See Mills v. Moore, 786 So.2d 532, 536 (Fla.2001),

cert. denied, ___ U.S. ___, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001). In Mills, we also rejected the argument that the maximum penalty under section 775.082(1), Florida Statutes (1979), was life in prison without the possibility of parole for twenty-five years. See id. at 536. Instead, we wrote that "[t]he plain language of section 775.082(1) is clear that the maximum penalty available for a person convicted of a capital felony is death." Id. The 1989 version of section 775.082(1) argued by Mann is identical to the 1979 version. Thus, Mann's Apprendi arguments are without merit.

We also find no merit in Mann's other arguments alleging ineffective assistance of appellate counsel regarding appellate counsel's failure to raise as appellate points the necessity of charging the aggravators in the indictment and the necessity of requiring a unanimous jury recommendation. At the time of his direct appeal, this Court, as we still do today, routinely rejected these arguments. See e.g., Medina v. State, 466 So.2d 1046, 1048 n. 2 (Fla.1985)

(State need not provide notice concerning aggravators); James v. State, 453 So.2d 786, 792 (Fla.1984),

cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984) (rejecting argument that jury verdict recommending death must be unanimous). Appellate counsel cannot be ineffective for not raising on appeal an issue with little or no merit. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000).

Mann's next claim is that the prosecutor engaged in substantial misconduct during Mann's trial and that his appellate counsel was ineffective for failing to raise this issue. Mann's main argument in this claim is that the prosecutor's closing argument constitutes fundamental error because the prosecutor used the closing argument to label Mann as a sexual deviant and injected fear into the minds of the jurors. Mann also argues that comments made by the prosecutor during voir dire and questions to Gail Anderson regarding Mann's motion for a new trial contributed to the misconduct.

With regard to the prosecutorial statements made during voir dire and the questioning of witness Anderson, trial counsel only objected to one of the many comments and questions cited by Mann in his habeas petition.⁷ Moreover, Mann previously raised these exact same comments in his initial brief appealing the denial of his rule 3.850 motion.⁸ In denying Mann's ineffective assistance of trial counsel claim, we found the claim to be without merit because Mann could not demonstrate either trial counsel's deficiency or a resulting prejudice to himself. See Mann, 770 So.2d at 1163-64

. As this Court has already ruled on the merits, Mann's claim regarding the unobjected to comments is procedurally barred. See Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989) ("[H]abeas corpus petitions are not to be used for additional appeals on questions which ... were raised ... in a rule 3.850 motion...."). As to the lone comment objected to by trial counsel and not pursued on direct appeal, we find that appellate counsel's failure to raise that comment does not demonstrate a deficiency that prejudiced Mann.

With regard to the closing argument regarding fundamental error, we previously have rejected similar arguments made by Mann. On direct appeal, Mann argued during closing argument that the prosecutor impermissibly transformed Mann's pedophilia into a nonstatutory aggravator, even at some point calling Mann a child molester and pervert. Appellate counsel quoted extensively from the prosecutor's closing argument, including some passages to which trial counsel objected. In his brief on direct appeal, Mann cited to Garron v. State, 528 So.2d 353 (Fla.1988), and Teffeteller v. State, 439 So.2d 840 (Fla. 1983), as authority to reverse a death sentence due to improper closing argument. We rejected Mann's argument. See Mann, 603 So.2d at 1143

.

Further, on appeal of the denial of his rule 3.850 motion, Mann again argued that the prosecutor's closing argument impermissibly focused on Mann's pedophilia. Mann maintained that trial counsel was ineffective for failing to object to the prosecutor's closing argument based on Mann's sexual desires, which Mann argued so pervasively injected fear and emotion into the jurors' minds during closing. In his initial brief appealing the denial of the rule 3.850 motion, Mann again cited to Garron and Teffeteller for support to reverse the death sentence due to improper prosecutorial argument. In the 3.850 appeal, we found that a majority of Mann's argument was decided against him on the merits on direct appeal and was then being impermissibly recast as an ineffective assistance of trial counsel claim. See Mann, 770 So.2d at 1163-64

. Regarding the unobjected — to comments, we found that Mann had failed to demonstrate a deficiency in performance that prejudiced him. See id.

In the habeas petition, Mann yet again argues Garron and Teffe...