Preston v. State

• Decision Date: 07 June 1990
• Docket Number: No. 75794,75794
• Citation: 564 So.2d 120
• Parties: 15 Fla. L. Weekly S337 Robert Anthony PRESTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 120

564 So.2d 120

15 Fla. L. Weekly S337

Robert Anthony PRESTON, Appellant, v. STATE of Florida, Appellee.

No. 75794.

Supreme Court of Florida.

June 7, 1990.

Rehearing Denied Aug. 21, 1990.

Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst. Capital Collateral Representative, and Thomas H. Dunn, Staff Atty., Office of

Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

This is an appeal from the denial of a motion to vacate a judgment of guilt and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Robert Preston was convicted of first-degree murder and sentenced to death. The conviction and sentence were affirmed by this Court in Preston v. State, 444 So.2d 939 (Fla.1984). The denial of his subsequent motion for postconviction relief was affirmed in Preston v. State, 528 So.2d 896 (Fla.1988). Thereafter, this Court denied Preston's petition for writ of error coram nobis and petition for writ of habeas corpus. Preston v. State, 531 So.2d 154 (Fla.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989).

Following the issuance of a death warrant, Preston filed another motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court summarily denied the motion. Upon consideration of Preston's appeal, this Court stayed his execution.

In his original trial, the jury recommended the sentence of death by a seven-to-five vote. The trial court found four aggravating circumstances: (1) the conviction of a prior felony involving the use or threat of violence to the person; (2) the murder was committed while engaged in the crimes of robbery and kidnapping; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. On appeal, this Court concluded that the crime had not been committed in a cold, calculated, and premeditated manner. However, the Court held that in the absence of any statutory mitigating circumstances, the three remaining aggravating circumstances were sufficient to support the sentence of death.

The prior felony of violence of which Preston had been convicted was throwing a deadly missile into an occupied vehicle. In 1989 Preston obtained an order on motion for postconviction relief which vacated the deadly missile conviction because of ineffective assistance of trial counsel. This result prompted the filing of another petition for writ of habeas corpus in this Court seeking to vacate Preston's sentence predicated upon the rationale of Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). We denied this petition "without prejudice to raise the same argument by a 3.850 motion in the trial court." Preston v. Dugger, 545 So.2d 1368 (Fla.1989). On January 17, 1990, the Fifth District Court of Appeal affirmed the order vacating the deadly missile conviction. Preston's primary argument in the current appeal focuses on the effect that vacating that conviction has upon his death sentence.

In Johnson v. Mississippi, the defendant had been sentenced to death upon the finding of three aggravating circumstances, one of which was the previous conviction of a felony involving the use of violence. After his sentence was affirmed, the previous violent-felony conviction was set aside. In a collateral attack, the United States Supreme Court vacated the death sentence because it was predicated on the prior violent felony conviction which had been set aside. The Court made the following pertinent observation:

In this Court the Mississippi Attorney General advances an argument for affirmance that was not relied upon by the State Supreme Court. He argues that the decision of the Mississippi Supreme Court should be affirmed because when that court conducted its proportionality review of the death sentence on petitioner's initial appeal, it did not mention petitioner's prior conviction in upholding the sentence. Whether it is true, as the Attorney General argues, that even absent evidence of petitioner's prior conviction a death sentence would be consistent with Mississippi's practice in other cases, however, is not determinative of this case. First, the Mississippi Supreme Court expressly refused to rely on harmless-error analysis in upholding petitioner's sentence, [Johnson v. State ] 511 So.2d [1333] at 1338 [ (Miss.1987) ]; on the facts of this case, that refusal was plainly justified. Second, and more importantly, the error here extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible. Here the jury was allowed to consider evidence that has been revealed to be materially inaccurate.

108 S.Ct. at 1988-89 (footnotes omitted).

A more recent decision of the United States Supreme Court sheds further light on the subject. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the defendant was sentenced to death on two statutory aggravating factors: (1) that the murder was committed during the course of a robbery for pecuniary gain; and (2) that it was an "especially heinous, atrocious or cruel" killing. On appeal, the Mississippi Supreme Court recognized that the United States Supreme Court had invalidated Oklahoma's identical "especially heinous, atrocious, or cruel" aggravating circumstance in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). However, the Mississippi court distinguished Maynard and affirmed the death sentence because, inter alia, it had previously given the appropriate limiting instruction to the especially heinous, atrocious, or cruel aggravating factor, and Mississippi has an established procedure whereby the elimination of one of several aggravating circumstances does not necessarily negate the death sentence.

On certiorari, the United States Supreme Court said that it was permissible for an appellate court to reweigh the aggravating and mitigating circumstances when one of the underlying aggravating circumstances upon which a death sentence is based is invalidated. However, because the Court was unsure whether the Mississippi Supreme Court had conducted the proper weighing process, the case was remanded for reconsideration. Of particular pertinence is footnote 5 of the Court's opinion which reads as follows:

We find unpersuasive Clemons's argument that the Mississippi Supreme Court's decision to remand to a sentencing jury in Johnson v. State, 511 So.2d 1333 (1987), rev'd, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), on remand, 547 So.2d 59 (1989), a case in which this Court reversed the death sentence because it depended in part on a jury finding that the "especially heinous" aggravating factor was present, indicates that the Mississippi Supreme Court acted arbitrarily in refusing to do the same in this case. Johnson is distinguishable because in that case the jury had found both that the defendant had been convicted of a prior violent felony and that the murder was especially heinous, atrocious or cruel. In fact, the prior conviction the jury relied upon had been vacated and thus the jury was permitted to consider inadmissible evidence in determining the defendant's sentence. This Court noted in vacating the sentence that the Mississippi...