Palmes v. State, 62770

• Decision Date: 06 January 1983
• Docket Number: No. 62770,62770
• Citation: 425 So.2d 4
• Parties: Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 4

425 So.2d 4

Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.

No. 62770.

Supreme Court of Florida.

Jan. 6, 1983.

Thomas B. McCoun of Louderback, McCoun & Helinger, St. Petersburg, for appellant.

Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from a circuit court order denying a motion to vacate judgment and sentence filed under Florida Rule of Criminal Procedure 3.850. Appellant is a prisoner under sentence of death imposed upon a judgment of conviction of murder in the first degree. We have jurisdiction.

Appellant previously appealed his conviction and sentence of death. This Court affirmed both. Palmes v. State, 397 So.2d 648 (Fla.1981). The United States Supreme Court denied further review. Palmes v. Florida, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).

In this appeal from the denial of the motion to vacate appellant raises the following issues: (1) whether his incriminating statements should have been excluded from evidence on the ground that they were the product of an illegal arrest; (2) whether prospective jurors were excused for cause at trial because of scruples or conscientious concerns about the imposition of the death penalty; (3) whether the prosecutor at the trial made improper comments pertaining to the defendant's exercise of his right to remain silent; (4) whether appellant was denied a fair trial by the conduct of certain jurors who allegedly formed and expressed opinions concerning guilt before hearing all the evidence; (5) whether the death penalty law is arbitrary as applied in that appellant's death sentence is a misapplication of that law; and (6) whether appellant was deprived of the effective assistance of legal counsel prior to and during his trial.

Issues (1), (2), (3), and (4) above are not properly raised by a motion to vacate under Rule 3.850. They are all issues which either could have been, should have been, or were raised and decided on appeal. See, e.g., Meeks v. State, 382 So.2d 673 (Fla.1980); Adams v. State, 380 So.2d 423 (Fla.1980); Henry v. State, 377 So.2d 692 (Fla.1979); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

As was set out above, appellant argues that the sentencing statute has been arbitrarily applied in his case and that his sentence is a misapplication of that statute. We conclude as a matter of law that this contention is without merit. The statute, as we have already held by the affirmance of the sentence, was correctly followed. Measured by the applicable standards, the sentence imposed was the appropriate sentence under the circumstances.

Appellant's contention that he received ineffective assistance of counsel at his trial may be presented by a motion to vacate under Rule 3.850. Smith v. State, 400 So.2d 956, 959 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980). Appellant claims first that the public defender, who was appointed to represent him at his first appearance hearing, improperly failed to render legal assistance to appellant during his interrogations. Appellant contends that if the public defender had communicated with him and offered legal counsel at that time he would not have made the incriminating statements that were later used in evidence. In affirming the judgment and sentence, we found that the public defender was formally appointed at the advisory hearing but that thereafter appellant waived his right of counsel. This finding was made in connection with the conclusion that there was no impropriety in police officers' interviewing appellant after his indictment without notifying the public defender. We noted that appellant himself requested the interview at which he provided a detailed statement. Since we have already concluded that appellant's interrogation did not violate his fifth or sixth amendment rights, we decline to now hold that appellant had a constitutional right to have the formally appointed public defender initiate communication with him when he at no time during his interrogation invoked his right to consult with counsel.

Appellant's next assertion of ineffectiveness of counsel refers to the performance of the lawyer who was appointed appellant's counsel at his arraignment. Appellant argues that his counsel was ineffective in failing to raise, as a ground for suppression of his incriminating statements, the contention that appellant's arrest in California was illegal. Defense counsel did move to suppress the statements, but not on the ground that the arrest was illegal. At the hearing below, the lawyer who defended appellant at trial testified that he believed the arrest to have been legal. An attorney should raise any honestly debatable issue that may aid his client's position, but he is not obligated to raise every conceivable issue, and certainly not...