Nova v. State

• Decision Date: 13 September 1983
• Docket Number: No. 82-1766,82-1766
• Citation: 439 So.2d 255
• Parties: Louis NOVA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 255

439 So.2d 255

Louis NOVA, Appellant, v. The STATE of Florida, Appellee.

No. 82-1766.

District Court of Appeal of Florida Third District.

Sept. 13, 1983.

Louis Nova, in pro. per.

Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

In 1982, Nova moved under Florida Rule of Criminal Procedure 3.850 to vacate his first-degree murder conviction and sentence imposed thereon. The essence of his complaint was that he agreed to be tried by a jury composed of six instead of twelve persons in exchange for the State's agreement that his maximum punishment if convicted would be twenty years and that this agreement was dishonored when, upon Nova's conviction, the court imposed a life sentence with the requirement that he serve no less than twenty-five years before becoming eligible for parole. ¹

Appended to Nova's Rule 3.850 motion was a copy of the transcript of the proceedings held prior to the commencement of his 1976 trial. The transcript appears to support Nova's version of the events leading to his waiver.

"[Assistant State Attorney]: Before we proceed in picking a jury there has been a stipulation on behalf of the State and defense. The State would waive the death penalty making it punishable by 20 years, if convicted. In consideration thereof, the defense would waive a twelve man jury and we would try it by a six man jury.

"The Court: Is that stipulated to by both sides?

"[Defense Counsel]: We will stipulate.

"The Court: You understand that you have a right to be tried by a twelve man jury?

"The Defendant: Yes.

"The Court: Are you willing to give that right up?

"The Defendant: Yes, sir." (emphasis supplied).

The trial court determined that the files and records conclusively showed that Nova was entitled to no relief and denied his motion without hearing.

I

Clearly, the specific relief sought by Nova in his pro se motion, that is, the imposition of a sentence of no more than twenty years in accordance with the agreement, could not be afforded him. Where an accused is convicted of a crime for which the Legislature has prescribed a mandatory sentence, a trial court is not empowered to impose any lesser sentence. State v. Sesler, 386 So.2d 293, 294 (Fla. 2d DCA 1980); see also State v. De La Rosa, 414 So.2d 26 (Fla. 3d DCA 1982); State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982). Of course, this is not to suggest that a court will condone the State's repudiation of its agreement, see James v. State, 305 So.2d 829 (Fla. 1st DCA 1975), but merely to state that when the agreement is one which cannot be legally enforced, and, as here, the defendant is not irrevocably prejudiced by relying on the agreement, the defendant's remedy for its violation cannot be to compel its performance. See Pringle v. State, 341 So.2d 535 (Fla. 2d DCA 1977); Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972).

However, Nova's inappropriate choice of relief cannot be a basis for affirming the trial court's denial of his motion. As Rule 3.850 itself notes, it is only when "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief " that the motion can be denied without hearing. Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981); Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980); Barfield v. State, 348 So.2d 621 (Fla. 4th DCA 1977); Fla.R.App.P. 9.140(g). Obviously, the absence of the remedy of specific performance does not mean that the defendant is entitled to no relief. If a defendant in good faith relies on an agreement by the prosecution, courts will not let the defendant be prejudiced as a result of that reliance. Pringle v. State, 341 So.2d at 537; Odom v. State, 370 So.2d at 771; Barker v. State, 259 So.2d at 205; United States v. Aguilera, 654 F.2d 352 (5th Cir.1981); United States v. Goodrich, 493 F.2d 390 (9th Cir.1974). In the present case, if Nova, as he asserts, waived his right to be tried by a twelve-person jury in reliance on the State's promise of a sentence of no more than twenty years, then the waiver and conviction can be vitiated and the defendant afforded a new trial.

II

Since the motion itself did not disentitle Nova to some relief, we turn, as did the trial court, to the files and records to see if they justify the denial of relief without hearing.

As we have noted, Nova was convicted of first-degree murder in 1976 by a six-person jury. Through counsel, he appealed that conviction to this court. In that appeal, Nova's counsel raised two points, neither of which concerned the waiver of the twelve-person jury. See Nova v. State, 346 So.2d 1214 (Fla. 3d DCA 1977), quashed, State v. Nova, 361 So.2d 411 (Fla.1978). In 1981, Nova, now without counsel, filed his first Rule 3.850 motion by filing out a prescribed form. In the 1981 motion, he stated as his ground for relief that he "was tried in violation of Florida Constitution and Rules of Criminal Procedure" in that he was "convicted of first degree murder by a jury of six persons." In answer to the request on the form that he give his reason why such ground was not previously presented on direct appeal, he stated, "Inadequate assistance of appellate counsel." The 1981 motion was denied upon the trial court finding that the allegations did not constitute legal grounds for relief.

Nova appealed the denial of his 1981 motion, and this court, per curiam, affirmed, merely citing to Knight v. State, 394 So.2d 997, 1001 (Fla.1981), and Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980). See Nova v. State, 414 So.2d 629 (Fla. 3d DCA 1982). The trial court, presented with the motion which is the subject of this appeal, read our decision on Nova's 1981 motion to mean that we had already ruled on Nova's present claim.

But the most that can be said of our decision in Nova v. State, 414 So.2d 629 (Fla. 3d DCA 1982), given the posture of that case, was that we held that counsel, whether at trial or on appeal, was not ineffective in failing to urge that under any circumstances a person cannot be convicted for a capital crime by a twelve-person jury. Since the law is clear that a person can be convicted of a capital crime in this state by a jury of less than twelve, provided there is a valid waiver of the right to a twelve-person jury, see State v. Garcia, 229 So.2d 236 (Fla.1969); Roth v. State, 385 So.2d at 115, Nova's claim that counsel was ineffective for failing to assert that a jury of less than twelve persons was ipso facto unlawful was correctly denied.

However, Nova's 1982 3.850 motion differs from his prior motion. He no longer contends that a twelve-person jury is never waivable, but now says that his waiver of a twelve-person jury in reliance on a promise of a twenty-year maximum sentence was nullified when he received the legislatively required greater sentence. His fall-back contention is that either trial counsel or appellate counsel, or both, were ineffective in failing to properly raise the invalidity of his waiver. His claim of ineffective assistance of counsel is not independent of his primary claim, but simply Nova's explanation why relief on the primary claim was not sought in the prior trial and appellate proceedings. ² Since we decide, infra, that Nova's primary contention raises a fundamental error which, having never been ruled upon, may be considered under a 3.850 motion even though not raised in a direct appeal, Nova's fall-back contentions concerning the ineffectiveness of his counsel need not be reached. ³

III

As we have stated, a fundamental error may be raised for the first time in a Rule 3.850 motion notwithstanding that it could have been, but was not, raised on direct appeal. ⁴ O'Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975), overruled on other grounds, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); see also Dozier v. State, 361 So.2d 727 (Fla. 4th DCA 1978) (holding that a fundamental error may be collaterally attacked, but incorrectly holding that a comment on defendant's right to remain silent is a fundamental error, Clark v. State, 363 So.2d 331 (Fla.1978)); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977) (where a fundamental error has been raised and rejected on direct appeal, it may still, with leave of the appellate court, be considered in a subsequent 3.850 motion).

Nova's claim that his waiver of a twelve-person jury was invalid alleges a fundamental error. A defendant in a capital case in Florida is entitled to a twelve-person jury as a matter of state constitutional law. ⁵ Article I, Section 22 of the Florida Constitution secures the right of trial by jury and provides that "the number of jurors, not fewer than six, shall be fixed by law." The number of jurors fixed by law to try all capital cases is twelve. Fla.R.Crim.P. 3.270.

In Cotton v. State, 85 Fla. 197, 95 So. 668 (1923), the defendant was tried and convicted of first-degree murder. Before trial the defendant timely filed a plea in abatement, challenging the indictment as having been returned by a grand jury which contained a person incompetent to serve. His request that this challenge be determined by a jury of twelve was denied, and his challenge to the make-up of the grand jury was submitted to a six-person jury. The Florida Supreme Court reversed Cotton's conviction, holding that a trial on the defendant's plea in abatement required a jury of twelve.

"The trial on the plea in abatement was not a trial of 'other criminal cases' as differentiated from 'capital cases.' Sec. 6008, Rev.Gen.Stat. It was not the trial of a criminal case less than a capital case, nor was it the trial of a civil cause. The statute authorizing a trial by a jury of six men is therefore not applicable. It follows inescapably that the defendant was entitled to a trial on the issue made by his plea in abatement by a jury of twelve, and that a trial by a jury of six...