Miller v. State

• Decision Date: 04 May 1983
• Docket Number: No. 83-331,83-331
• Citation: 430 So.2d 611
• Parties: Raymond George MILLER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 611

430 So.2d 611

Raymond George MILLER, Petitioner, v. STATE of Florida, Respondent.

No. 83-331.

District Court of Appeal of Florida Fourth District.

May 4, 1983.

Raymond George Miller, pro se.

Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

Raymond George Miller petitions this Court for a writ of habeas corpus on the grounds of ineffective assistance of appellate counsel. Petitioner asserts ineffectiveness in the direct appeal of his conviction and thirty year prison sentence for solicitation to commit murder in the first degree.

The relevant facts leading to the solicitation charge against petitioner are set out in this Court's opinion on direct appeal as follows:

In May, 1979, appellant saw an ad placed by Jerry Baker of California in Soldier of Fortune Magazine. He wrote to Baker stating that he was divorced, required to give 40% of his military retirement pay to his former wife, and was looking for a solution to his problems. Baker replied in writing giving a telephone number to call. Appellant called Baker from a pay phone on June 16, 1980, and unbeknownst to him, Baker recorded this call in the presence of a California police officer. Arrangements were made for Baker to come to Florida. When he arrived on July 1, 1980, Baker cooperated with local authorities who had been contacted by the California police, and agents of the Broward County State Attorney's Office furnished him a motel room. Baker, acting with police approval and cooperation, called appellant and held a brief conversation which was taped by the agents. In this conversation, Baker advised he was in town and suggested a meeting. Later in the day, appellant went to the motel to meet Baker. The room had been wired by the police with Baker's consent so that the conversation could be taped. As he left the motel room, appellant was arrested. The various taped conversations plus other evidence supported the charge that Baker was being solicited by Miller to kill Miller's former wife. Miller v. State, 411 So.2d 944, 945 (Fla. 4th DCA 1982), petition for review denied, 419 So.2d 1199 (Fla.1982).

Petitioner declined a written plea offer by the State and proceeded to trial. Petitioner's own taped conversations provided most of the incriminating evidence against him. The jury found petitioner guilty as charged of criminal solicitation to commit murder in the first degree.

On direct appeal, the public defender raised as error the trial court's refusal to suppress the tapes of two telephone conversations between petitioner in Fort Lauderdale and Jerry Baker in California and the tapes of a local telephone call and a final conversation held in Baker's Fort Lauderdale motel room. In Fort Lauderdale, petitioner made his final arrangements which included making a $300 partial payment to Baker to have his former wife killed in Texas without drawing suspicion to petitioner. This Court held that the trial court did not err in ruling all the tapes admissible, and affirmed petitioner's conviction and sentence. Miller v. State, supra. Petitioner now contends that he received ineffective assistance of appellate counsel and seeks a belated appeal.

Petitioner's allegations of ineffectiveness must meet the following test:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.

Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in [United States v.] DeCoster III [624 F.2d 196 (D.C., 1976) ]: "To be 'below average' is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel's acts or omissions deviated from a checklist of standards." 624 F.2d at 215....

Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.

Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III. Knight v. State, 394 So.2d 997, 1001 (Fla.1981) (footnote omitted).

Petitioner has failed to meet his burden of demonstrating that the failure to bring any or all of his asserted points on direct appeal constituted a substantial and serious deficiency in appellate representation.

Petitioner first contends that effective appellate counsel would have challenged the constitutionality of the criminal solicitation statute, Section 777.04(2), Florida Statutes (1981), on the grounds of vagueness. He contends that persons of common intelligence must guess at its meaning and application. Subsections (2) and (4) of Section 777.04 must be read in pari materia. Subsection (4) limits the application of Subsection (2) by defining the types of crimes punishable under the statute. We do not find the criminal solicitation statute unconstitutionally vague, particularly as applied to petitioner who solicited the premeditated murder of his former wife.

Petitioner next contends that appellate counsel should have argued that the Florida solicitation statute should not apply to him, a person who solicited in Florida a murder to be committed in Texas. The California Supreme Court rejected a similar argument in People v. Burt, 45 Cal.2d 311, 288 P.2d 503 (Cal.1955), on public policy grounds.

It does not follow, however, that when the Legislature has singled out the solicitation of the most serious of crimes, it likewise intended to punish their solicitation only when they were to be committed in this state. Legislative concern with the proscribed soliciting is demonstrated not only by the gravity of the crimes specified but by the fact that the crime, unlike conspiracy, does not require the commission of any overt act. It is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation. People v. Haley, 102 Cal.App.2d 159, 165, 227 P.2d 48; People v. Gray, 52 Cal.App.2d 620, 653, 127 P.2d 72; 1 Burdick, The Law of Crime (1946), §§ 104-106. Section 653f is concerned not only with the prevention of the harm that would result should the inducements prove successful, but with protecting inhabitants of this state from being exposed to inducements to commit or join in the...