Marek v. Singletary, 80351
| Decision Date | 02 September 1993 |
| Docket Number | No. 80351,80351 |
| Citation | 626 So.2d 160 |
| Parties | 18 Fla. L. Weekly S473 John Richard MAREK, Petitioner, v. Harry K. SINGLETARY, etc., Respondent. |
| Court | Florida Supreme Court |
Michael J. Minerva, Interim Capital Collateral Representative, and Martin J. McClain, Chief Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for petitioner.
Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent.
John Richard Marek, a prisoner under sentence of death, petitions this court for a writ of habeas corpus. This is Marek's second petition for habeas corpus. We have jurisdiction. Art. V, Sec. 3(b)(9), Fla. Const. For the reasons expressed, we deny the petition.
Marek was found guilty of first-degree murder, kidnapping with intent to commit a sexual battery, attempted burglary, and two counts of battery. The jury recommended death by a vote of ten to two. The trial judge, finding four aggravating circumstances and no mitigating circumstances, sentenced Marek to death. This Court affirmed Marek's convictions and sentences, including the death penalty, in Marek v. State, 492 So.2d 1055 (Fla.1986).
Subsequently, in postconviction proceedings, this Court granted Marek a stay of execution to allow Florida courts sufficient time to address the twenty-two issues raised in his first motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In addressing the issues Marek raised in his first rule 3.850 motion, the trial judge expressly addressed Marek's assertion that his contemporaneous kidnapping conviction could not be considered as a prior violent felony aggravating circumstance. The trial judge found that this claim had merit, stating:
This Court finds that this aggravating circumstance must be stricken in light of the Florida Supreme Court's latest pronouncement in Lamb v. State [532 So.2d 1051 (Fla.1988) ] and Perry v. State, 522 So.2d 817 (Fla.1988). However, Marek's sentence of death is still valid where the remaining three aggravating factors were proven beyond a reasonable doubt and upheld on direct appeal and where there were and are no mitigating circumstances applicable to Marek.
The trial judge also rejected Marek's other claims and denied the rule 3.850 motion. Marek then filed a petition for a writ of habeas corpus with this Court as well as an appeal from the judge's denial of his rule 3.850 motion. We agreed with the trial judge and affirmed the denial of relief and denied the petition for habeas corpus. Marek v. Dugger, 547 So.2d 109 (Fla.1989).
In this second petition for habeas corpus relief, Marek asserts that Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), constitute a change of law which permits a challenge to jury instructions in postconviction proceedings and defeats any assertion of a procedural bar by the state. We disagree. We have previously disposed of this issue contrary to Marek's position and no further discussion is necessary. See Turner v. Dugger, 614 So.2d 1075 (Fla.1992); Ragsdale v. State, 609 So.2d 10 (Fla.1992).
With regard to Marek's claim concerning the use of his contemporaneous kidnapping conviction as an aggravating factor, we find that this issue was previously disposed of by this Court in Marek v. Dugger and is procedurally barred. Furthermore, we agree with the State that the reading of the instruction on kidnapping as an aggravating circumstance could not have affected the jury's recommendation and that any error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We note that the jury found Marek guilty of kidnapping prior to receiving the instruction on kidnapping as an aggravating circumstance in the penalty phase. Consequently, even without the instruction, the jury would still have had all the information concerning Marek's conduct in regard to the kidnapping.
Next, Marek argues that the jury received a constitutionally inadequate instruction with regard to the heinous, atrocious, or cruel aggravating factor. Because Marek failed to object to this instruction on vagueness grounds during the trial, we find that this issue was not preserved for appellate review and is procedurally barred. See Turner; Ragsdale. Were we to address this issue on...
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Rodriguez v. State
...noted that the rule announced in Espinosa did not constitute a change in the law requiring retroactive application. See Marek v. Singletary, 626 So.2d 160, 162 (Fla.1993). 19. It should be noted that the defendant was also concerned with the fact that the trial judge had excused from attend......
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Marek v. State
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Marek v. Singletary
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