Quince v. State

• Decision Date: 08 April 1999
• Docket Number: No. 89,960.,89,960.
• Parties: Kenneth D. QUINCE, etc., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

732 So.2d 1059

Kenneth D. QUINCE, etc., Appellant, v. STATE of Florida, Appellee.

No. 89,960.

Supreme Court of Florida.

April 8, 1999.

Rehearing Denied June 15, 1999.

Terri L. Backhus, Chief Assistant CCRC and Jack W. Crooks, Assistant CCRC, Capital Collateral Regional Counsel—Middle, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

Kenneth D. Quince appeals an order entered by the trial court denying relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons explained below, we affirm the trial court's denial of postconviction relief.

The facts and procedural history of this case are summarized in Quince v. State, 592 So.2d 669 (Fla.1992):

Quince pled guilty to first-degree felony murder and burglary following the sexual battery and strangulation death of an eighty-two-year-old woman in her home. He waived a sentencing jury and the judge imposed the death penalty, which was affirmed on appeal. Id. Quince filed a motion for postconviction relief in circuit court pursuant to Florida Rule of Criminal Procedure 3.850, and while the motion was pending the Governor signed a death warrant. The circuit court issued a stay of execution, granted an evidentiary hearing, but denied relief, which was affirmed on appeal. Quince v. State, 477 So.2d 535 (Fla.1985),cert. denied, 475 U.S. 1132, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986).

Quince subsequently filed a petition for writ of habeas corpus in federal district court, which was denied following an evidentiary hearing. During the pendency of the appeal of the denial in federal circuit court, Quince became aware of litigation pending before this Court in Harich v. State, 542 So.2d 980 (Fla.1989) (hereinafter Harich 1), concerning the alleged conflict of interest in trial counsel Howard Pearl's concomitant service as a special deputy sheriff. See also Harich v. State, 573 So.2d 303 (Fla.1990),

petition for cert. filed[cert. denied], 499 U.S. 985, 111 S.Ct. 1645, 113 L.Ed.2d 740 (1991)(trial court's finding of no conflict of interest following an evidentiary hearing affirmed on appeal). Quince filed a subsequent 3.850 motion in circuit court claiming conflict of interest based on Pearl's representation of him, and successfully moved for dismissal of the federal appeal pending the state action. In November 1989, the circuit court summarily denied Quince's motion, relying on the record adduced in Harich's evidentiary hearing on the same issue. Quince filed a motion to disqualify the judge and a motion for rehearing, which were denied in February 1991.

Id. at 670.¹

We reversed the denial of Quince's second 3.850 motion on appeal, reasoning that the trial court's adoption of factual findings from Harich was inappropriate and that an evidentiary hearing on Quince's "Howard Pearl" conflict claim was necessary. See id. at 670-71. We remanded the case to the trial court for "an evidentiary hearing on the conflict-of-interest issue." Id. at 671. We ordered the chief judge of the Seventh Judicial Circuit to consolidate all cases raising "Howard Pearl" conflict claims and after conducting an evidentiary hearing on those claims, the trial court denied relief to all defendants including Quince. We vacated the order on appeal and remanded for individual hearings, finding that the consolidated evidentiary hearing violated the capital defendants' due process rights. See Teffeteller v. Dugger (Quince v. State), 676 So.2d 369 (Fla. 1996). The trial court conducted Quince's evidentiary hearing in November 1996 and thereafter denied 3.850 relief. This appeal follows.²

On remand for an individual hearing, Quince moved to disqualify the original trial judge, who was a witness in the consolidated hearing. The motion was granted. Quince then moved to disqualify the successor judge, Judge Johnson. Quince argues his second motion to disqualify should have been granted. We disagree. Quince moved to disqualify Judge Johnson because Johnson had been the appellate coordinator in the public defender's office during the time Howard Pearl represented Quince. The judge responded that he "might have indirectly been involved in the processing and the administration of seeing to it that [Quince's] appeal was filed in 1980." As to the extent of his relationship with Pearl, Judge Johnson stated:

My most vivid recollection of my relationship with Mr. Pearl is about my years in the public defender's office was a time when I required and sent something around that required the lawyers to do something and he got very mad at me and came pounding on my office door somewhat incensed. We got that straightened out, but that's my most vivid recollection of my relationship with Mr. Pearl.

Quince's motion was governed by rule 2.160(g)³ a of the Florida Rules of Judicial Administration and section 38.10, Florida Statutes (1995).⁴ Both the rule and statute state that a successive judge is not disqualified "unless such judge admits and holds that it is then a fact that he does not stand fair and impartial between the parties." § 38.10, Fla. Stat. (1995). The record shows that Judge Johnson heard argument, recessed to consider the law, then held that he stood fair and impartial in Quince's case. He denied both the motion and Quince's request for time to appeal.⁵

The issue this Court must decide is whether Judge Johnson abused his discretion in denying either the motion or the request.⁶ A court's ruling on a discretionary matter will be sustained unless no reasonable person would take the view adopted by the court. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)

. Quince has failed to demonstrate that no reasonable person would take the position of the trial court in denying his motion to disqualify where the judge may have had an administrative responsibility involving his appeal but where the judge's own recollection was of a negative encounter with Howard Pearl. These facts do not support Quince's allegation of bias. Thus, we find no error.

Quince also claims that the court should have stopped the proceeding to allow him to appeal the denial of the motion to disqualify. He relies on Rogers v. State, 630 So.2d 513, 516 (Fla.1993) ("Where a party discovers mid-trial or mid-hearing that a motion for disqualification is required, he or she may request a brief recess—which must be granted—in order to prepare the appropriate documents."). Rogers is inapposite because it concerns a mid-hearing revelation of facts warranting a motion to disqualify. The present case, on the other hand, concerns a request for time to appeal a motion to disqualify which was ruled upon prior to the hearing. We find no error on this point.

Quince next argues that the trial court improperly limited his presentation of evidence pertaining to ineffectiveness of counsel. We disagree. This Court considered Quince's claims of ineffective assistance in Quince v. State, 477 So.2d 535, 537 (Fla.1985),⁷ and found that his claims failed to show that counsel's performance was deficient. The claims are therefore procedurally barred. See Davis v. State, 589 So.2d 896, 898 (Fla.1991)

. This case was remanded solely "for an evidentiary hearing on the [Howard Pearl] conflict-of-interest issue." Quince, 592 So.2d at 671.⁸ We find no error in the scope of the hearing below.

Quince next claims that he was denied a fair trial because of Howard Pearl's undisclosed conflict of interest, i.e., his status as special deputy sheriff. The trial court addressed this claim at length in its order denying rule 3.850 relief:

[T]his Court finds as a matter of fact that Mr. Pearl never was and never has been a law enforcement officer with the Marion County Sheriffs Department. Mr. Pearl was in essence granted a concealed weapons permit from the Marion County Sheriffs Department as many other individuals were at that time. Counter to defense counsel's assertions, the Court determines from the facts presented that Mr. Pearl had no manifest or actual authority to act as a fully constituted Deputy Sheriff for the Marion County Sheriffs Department because at no time did he indicate to anyone that he possessed anything other than a "gun toter's permit" as a result of his special deputy status.

. . . .

Based on this Court's factual findings with respect to the actual scope of Mr. Pearl's duties as a special deputy sheriff with the Marion County Sheriffs Department, it finds that those duties were not in conflict with Mr. Pearl's duties as a defense attorney. Consequently, no per se conflict of interest between Mr. Pearl and the Defendant existed. See Harich v. State, 573 So.2d 303, 305 (Fla. 1990)

(finding no per se conflict of interest where defense counsel was special deputy sheriff at time of representation).

. . . .

To prove a claim that an actual conflict of interest existed between a defendant and his counsel, the defendant must show that his counsel actively represented conflicting interests and that the conflict adversely affected counsel's performance. See Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718, 1719, 64 L.Ed.2d 333 (1980)

; Buenoano v. Dugger, 559 So.2d 1116, 1120 (Fla.1990); Burnside v. State, 656 So.2d 241, 243 (Fla. 5th DCA 1995). As such, the Defendant has failed to demonstrate that any actual conflict of interest existed between the Defendant and his attorney Howard Pearl and no factual distinction was presented beyond the Howard Pearl status issues raised and disposed of in Harich.

Supporting this determination the Court finds that not only did the Public Defender, Jim Gibson, testify that he never questioned Mr. Pearl's abilities or ethics, but, he believed that Mr. Pearl was the "most experienced and qualified attorney in the Public Defender's Office" at the time of Howard Pearl's representation of the Defendant.

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