Monlyn v. State

Decision Date02 December 2004
Docket NumberNo. SC02-1729, SC03-1757.,SC02-1729, SC03-1757.
Citation894 So.2d 832
PartiesBroderick W. MONLYN, Appellant, v. STATE of Florida, Appellee. Broderick W. Monlyn, Petitioner, v. James V. Crosby, Respondent.
CourtFlorida Supreme Court

Baya Harrison, III, Monticello, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Charmaine M. Millsaps and Carolyn M. Snurkowski, Assistant Attorneys General, Tallahassee, for Appellee/Respondent.

PER CURIAM.

Broderick Monlyn appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the lower court's order and deny Monlyn's habeas petition.

I. FACTS

In October 1992 Monlyn escaped from prison and hid for two nights in his neighbor Alton Watson's barn. On the morning of October 8, he confronted Watson, severely beat him, tied and gagged him, took his wallet, and escaped in his truck. Monlyn hid Watson inside the barn, where he died of his wounds. Monlyn was convicted in November 1993 of first-degree murder, armed robbery, and armed kidnapping. After a unanimous jury recommendation, he was sentenced to death. The trial court found five aggravating factors, no statutory mitigation, and three nonstatutory mitigating factors.1 On appeal, this Court affirmed, denying relief on each of the thirteen issues raised. Monlyn v. State, 705 So.2d 1, 3 (Fla.1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2378, 141 L.Ed.2d 745 (1998).

Subsequently, Monlyn filed a timely motion and later an amended motion for postconviction relief.2 Following a Huff3 hearing, the trial court held an evidentiary hearing on selected issues. The court then issued an order denying relief. In this appeal from denial of his postconviction motion, Monlyn raises only the following issues: (1) that counsel was ineffective for (a) failing to preserve for review the admissibility of habit testimony, (b) failing to elicit testimony regarding the robbery, (c) failing to advise appellant of his right to testify at the penalty phase, and (d) the cumulative effect of these errors; and (2) that the trial court erred by failing to rule on two of Monlyn's postconviction claims. We address these issues in order and then address Monlyn's habeas petition.

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. A defendant must point to specific acts or omissions of counsel that are "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. Second, the defendant also must establish prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. Claims of ineffective assistance of counsel present mixed questions of law and fact subject to plenary review. Occhicone v. State, 768 So.2d 1037, 1045 (Fla.2000). Thus, this Court independently reviews the trial court's legal conclusions and defers to the trial court's findings of fact.

A. Monlyn's Claim Regarding Habit Testimony

Monlyn first contends that counsel failed to object to inadmissible habit testimony and that but for this error he probably would not have been convicted of first-degree murder or robbery and would not have been sentenced to death.4 At trial, the victim's widow testified that although she did not know exactly how much money her husband had in his wallet on the day he was murdered, he probably had between two and three hundred dollars, including a one-hundred dollar bill he kept in a hidden compartment. Monlyn claimed the wallet contained no cash. We need not determine whether the widow's testimony was erroneously admitted because we hold that Monlyn was not prejudiced by its admission.

Even if the habit evidence were erroneously admitted, the trial court correctly found that the crime of robbery was established in this case. Section 812.13(1), Florida Statutes (Supp.1992), defines the crime of robbery as

the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property when in the course of the taking there is the use of force, violence, assault, or putting in fear.

The evidence at trial showed that after Monlyn beat the victim into submission, he took Watson's wallet with the intent to take any cash it might contain and then, after rifling through it, threw it away. Thus, competent, substantial evidence supports the robbery conviction even if no cash was actually found in the victim's wallet. Further, ample evidence other than the widow's testimony showed that the wallet did contain cash. Witnesses testified that before the murder, including the evening before, Monlyn expressed a plan to rob Watson of his money and truck, and Monlyn testified that he took the wallet with the intent to rob Watson. Monlyn only had a few dollars in quarters when he escaped from prison, but when he arrived in Lake City shortly after the murder, he admitted that he told his former girlfriend that he had bought the bicycle he was riding for $35 and had approximately $200. When she asked him where he got the money, he responded that "for times like this, you just improvise." In addition, when he was arrested the day after the murder, he had more money on him than when he escaped from prison.

Finally, Monlyn was charged with robbery in the alternative — currency or Watson's truck. The evidence at trial showed his prior intent to steal the truck, and Monlyn admitted, and the evidence showed, that Monlyn took the truck and drove it from Madison to Lake City, where he abandoned it.

B. Monlyn's Claim Regarding the Money in the Victim's Wallet

Monlyn claims that counsel was ineffective for failing to elicit testimony at trial that after the victim's wallet was recovered from the crime scene, an FDLE analyst found a one-hundred dollar bill hidden inside it. He also asserts error in counsel's failure to object to the argument that no money was found in the victim's wallet. At the evidentiary hearing, Monlyn's trial counsel admitted that he knew about the hidden money but had overlooked it at trial. He considered the amount of cash taken from the wallet to be of no significance in light of Monlyn's own testimony about the robbery. We agree with the trial court that Monlyn failed to meet the Strickland requirements. As we explained above, the robbery was complete in this case with Monlyn's taking of the victim's wallet. In addition, ample evidence demonstrated that Monlyn did take cash from the victim. Moreover, robbery was charged in the alternative, and the evidence shows that Monlyn robbed the victim of his truck.

Monlyn next contends that the robbery conviction fails, along with the felony murder conviction, if it is based solely on his taking of the victim's truck. He relies on cases such as Knowles v. State, 632 So.2d 62 (Fla.1993), where this Court struck the aggravator that the murder was committed in the course of a robbery because the taking of the vehicle in that case could have been an afterthought. Unlike the situation in Knowles, however, Monlyn was charged with and convicted of robbery, and the evidence at trial showed that he planned to and did unlawfully rob the victim of his truck, abandoning it some fifty miles away. Therefore, Monlyn's robbery conviction, felony murder conviction, and the aggravating factor that the murder was committed in the course of a robbery are all supported by competent, substantial evidence.

Finally, Monlyn claims that because a general verdict form was used, there is no way to determine on which theory the jury based its verdict, and that the robbery basis is invalid because there is insufficient evidence to support it. This claim, too, fails. First, as discussed above, the felony murder conviction rests firmly on either or both the robbery of the wallet or of the truck. Second, his reliance on Fitzpatrick v. State, 859 So.2d 486 (Fla.2003), is misplaced. In Fitzpatrick we invoked the principle that "a general verdict is invalid when it rests on multiple bases, one of which is legally inadequate" and reversed for new trial because the jury had been given an erroneous burglary instruction. Id. at 490 (emphasis added) (citing Yates v. United States, 354 U.S. 298, 312-13, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957)). Thus, the verdict in the case could have been based on a legally unsupportable theory. Monlyn's claim is different; he argues a factual or evidentiary insufficiency. As we explained in Fitzpatrick, claims of legal and factual insufficiency are not synonymous, and reversal is not required in the latter instance. 859 So.2d at 491 (citing Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)). Thus, even if competent, substantial evidence did not support robbery of the wallet, it does support robbery of the truck, and reversal is not required. And even if Monlyn's felony murder conviction were not supported by the robbery of the wallet or the truck, competent, substantial evidence supports the kidnapping conviction on which the felony murder charge was alternatively based. See Morrison v. State, 818 So.2d 432, 453-54 (Fla.2002)

(holding that even if evidence did not support premeditated murder and one of the felony murder bases, the conviction could be affirmed if one of the bases for felony murder was...

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