Mann v. State, s. 68261

• Decision Date: 01 February 1986
• Docket Number: Nos. 68261,68262,s. 68261
• Citation: 482 So.2d 1360,11 Fla. L. Weekly 47
• Parties: 11 Fla. L. Weekly 47 Larry Eugene MANN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1360

482 So.2d 1360

11 Fla. L. Weekly 47

Larry Eugene MANN, Appellant, v. STATE of Florida, Appellee.

Nos. 68261, 68262.

Supreme Court of Florida.

Feb. 1, 1986.

Larry Helm Spalding, Capital Collateral Representative and Steven H. Malone and

Mark A. Evans, Asst. Capital Collateral Representatives, St. Petersburg, for appellant/petitioner.

Jim Smith, Atty. Gen. and Michael Kotler, Asst. Atty. Gen., Tampa, for appellee/respondent.

PER CURIAM.

Larry Eugene Mann, a convicted murderer who is scheduled for execution on February 4, 1986 seeks reversal of a circuit court order denying relief on his motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Mann also seeks relief by way of a petition for habeas corpus claiming he was deprived of effective appellate counsel. He further seeks a stay of execution. We deny all relief.

Mann was convicted of first-degree murder and sentenced to death for the slaying of a ten-year-old girl. His first appeal resulted in our affirming his conviction but vacating the original sentence and remanding the cause to the trial judge for a new sentencing hearing. Mann v. State, 420 So.2d 578 (Fla.1982). The trial court resentenced Mann to death and this Court affirmed that sentence. Mann v. State, 453 So.2d 784 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). The governor signed Mann's death warrant on January 7, 1986. ^*

Mann filed his motion for relief on January 30, 1986 which was denied on the same day without an evidentiary hearing or oral argument. Our first task is to review the motion to determine if an evidentiary hearing was required. After doing so, we agree with the trial judge that none was. As to not having oral argument, the motion and attached memorandum was self-explanatory, and, considering the time constraints and the trial judge's familiarity with this case, the trial judge did not abuse his discretion by not having oral argument.

Mann files numerous contentions. Among them he claims that his trial counsel was ineffective by failing to object to what Mann now perceives to be improper prosecutorial statements. Our review of the original record belies the claim of prosecutorial misbehavior. Most of the comments complained of occurred during closing arguments in the penalty phase. Considered in the light of the overall argument, had this argument been objected to, at best it would have resulted in an admonishment to the jury to disregard. The comments could not be construed to cause substantial harm or cause material prejudice and thus would not have constituted reversible error. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Spencer v. State, 133 So.2d 729 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962), cert. denied, 372 U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730 (1963). If raised on appeal, we would have found the statements to be within the limits of fair comments on the evidence and permissible solicitation by the state for a death recommendation.

We see no need or benefit in discussing in detail the remainder of Mann's claims in his 3.850 motion. We do reject his contention that it is appropriate in a collateral attack on his sentence of death to attempt to collaterally attack Mann's prior conviction of a crime of violence in Mississippi; neither is it error to fail to delay the execution of his sentence prior to a ruling in...