Raulerson v. State

• Decision Date: 26 August 1982
• Docket Number: Nos. 59680,59757,s. 59680
• Citation: 420 So.2d 567
• Parties: James David RAULERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 567

420 So.2d 567

James David RAULERSON, Appellant, v. STATE of Florida, Appellee.

Nos. 59680, 59757.

Supreme Court of Florida.

Aug. 26, 1982.

Rehearing Denied Nov. 3, 1982.

David J. Busch, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

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

ADKINS, Justice.

We have for review an order denying a motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850, as well as a direct appeal of a sentence of death. Appellant, James David Raulerson, was found guilty of first-degree murder and sentenced to death. This Court affirmed the trial court's judgment and sentence. See Raulerson v. State, 358 So.2d 826, cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). Following our affirmance, appellant filed a petition for writ of habeas corpus in the United States District Court, Middle District, which presented a single Gardner (Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)), issue for that Court's determination. While awaiting the federal district court's decision, appellant, pursuant to Florida Rule of Criminal Procedure 3.850, filed, in the trial court, a motion to vacate judgment and sentence alleging several constitutional infirmities in the guilt and sentencing phases of the trial.

Before determination of the motion for post-conviction relief, which was subsequently denied by the trial court on May 9, 1980, the federal district court granted appellant's habeas corpus petition and directed that a new sentencing hearing be held within sixty days. The sentencing hearing was originally set by the trial court for July 15, 1980, but at a status conference held on July 15, 1980, that date was rescheduled for July 21, 1980. On July 16, 1980, the federal district court relaxed the sixty-day time constraint that it had placed on the new sentencing hearing, and on July 21, 1980, the lower court once again continued the sentencing proceeding, which was finally held on August 11, 1980. On August 12, 1980, appellant was again sentenced to death by the lower court. Appellant then filed a notice of appeal to this Court in case nos. 59,680 and 59,757 in which he sought review of the trial court's denial of his motion for post-conviction relief and his sentence of death. These cases have been consolidated by this Court. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant raises eighteen issues in support of his assertion that the court below erred in denying his motion for post-conviction relief. We have reviewed these issues and find that appellant's motion fails to raise any grounds which require reversal of the trial court's denial.

Concerning appellant's argument that he should have been granted post-conviction relief because the trial court improperly instructed the jury as to the underlying felonies in his trial for felony-murder, the Court finds that this issue could have been raised at trial or on direct appeal, and that failure to do so constitutes a waiver for purposes of appellant's 3.850 motion. A motion to vacate judgment and sentence cannot be used as a substitute for an appeal, and where matters raised therein could have been or were raised on direct appeal, denial of the motion is proper. See Meeks v. State, 382 So.2d 673 (Fla.1980).

In regard to appellant's assertion that the trial court erred in not allowing his counsel to withdraw, this Court finds no basis for reversing the trial court's denial.

Appellant also contends that the trial court erred in denying his request for an evidentiary hearing to determine whether he was denied effective assistance of counsel. At the time that the trial court ruled on appellant's motion for postconviction relief, the rule of law in Florida was that claims of denial of effective assistance of counsel based on inadequacy or incompetence of retained counsel were not cognizable as grounds for challenging conviction on appeal or collaterally in a motion for post-conviction relief under Rule 3.850. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967). Based on this authority, the trial court concluded that appellant's motion for post-conviction relief failed to raise grounds "properly cognizable in a post-conviction proceeding under and pursuant to Rule 3.850, Fla.R.Crim.P." Notwithstanding this finding, the trial court went on to review the transcript of appellant's trial and concluded that it conclusively shows that counsel for appellant met the standard of effectiveness of counsel as recently adopted by the Florida Supreme Court in Meeks v. State, 382 So.2d 673 (Fla.1980).

On May 7, 1980, almost one year after the trial court had ruled on appellant's motion for post-conviction relief, this Court rendered its decision in Vagner v. Wainwright, 398 So.2d 448 (Fla.1981), which overruled Cappetta and held that claims of denial of effective assistance of counsel based on inadequacy or incompetence of retained counsel are cognizable in state courts as grounds for challenging convictions on appeal or collaterally in a Rule 3.850 motion.

Based on this Court's decisions in Vagner and Meeks, appellant now argues that the dismissal of his Rule 3.850 motion by the court below was erroneous, and that an evidentiary hearing on his claim that he was denied effective assistance of counsel should have been granted. In Meeks the Court held as follows:

Pursuant to a rule 3.850 motion, a prisoner is entitled to an evidentiary hearing unless the motion and the files and the records conclusively show that he is entitled to no relief. If the prisoner raises a matter that may properly be considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentiary hearing.

Meeks v. State, 382 So.2d 673, 676 (Fla.1980).

Appellant argues that in the instant case the trial court violated the rule announced in Meeks by summarily denying his 3.850 motion without attaching that portion of the case file or record which conclusively showed why appellant was not entitled to an evidentiary hearing. Because of this alleged violation of Meeks, appellant claims he is entitled to an evidentiary hearing on his motion for post-conviction relief.

We disagree. This Court's decisions in Vagner and Meeks were rendered after the trial court had ruled on appellant's 3.850 motion. Therefore, when the trial court denied appellant's motion it was not necessary to attach that portion of the record which conclusively showed that he was entitled to no relief, as the motion charging ineffective assistance of private counsel was defective on its face and, therefore, legally insufficient. The only way in which this Court is able to determine whether appellant was erroneously denied an evidentiary hearing on his claim of ineffective assistance of counsel is to consider the entire record for the purpose of determining whether he was entitled to no relief. We have done so and find that the trial court properly denied appellant an evidentiary hearing on his claim of ineffective assistance of counsel. There can be no harmful error in the court's failure to attach a copy of the entire record to its order.

As a third ground in support of his motion for post-conviction relief, appellant argues that the trial court should have granted his counsel's motion, made at the 3.850 proceeding, to withdraw. Withdrawal was warranted, he contends, because of a conflict of interest which developed as a result of allegations by the state regarding the propriety of appellant's counsel's decision to file a motion for post-conviction relief on behalf of appellant. Our review of the record indicates that while the state was critical of the motives behind defense counsel's timing in raising the motion for post-conviction relief, this criticism did not create any conflict of interest between appellant and his counsel. Accordingly, we find that the trial court properly denied the motion to withdraw.

Appellant does not present any argument in his brief concerning the remaining issues raised in his 3.850 motion other than to state that the trial court summarily denied each of the requests for relief without attaching portions of the record which conclusively show that he is not entitled to relief, that each claim he raised has merit; and that he does not intend to waive these claims for purposes of appeal.

In determining the merit of appellant's remaining claims, we have reviewed the entire record. We find that every claim raised either should have been raised and was not, or was not a proper issue for review under a 3.850 motion, or failed to state grounds upon which relief could have been granted pursuant to a motion to vacate, or was conclusively refuted by the record, or was decided adversely to appellant by this Court on direct appeal.

We now consider the propriety of appellant's second sentencing hearing, which he contests, on several points. First, appellant questions the sufficiency of the findings relied on by the sentencing court, arguing that four of the aggravating circumstances were improperly found applicable. Specifically, he contends that his actions did not create a great risk of death to many persons, that it was improper to find as aggravation that the murder was committed immediately after commission of the crime of rape, that it was not especially heinous, atrocious, or cruel, and that the finding that it was committed for pecuniary gain must be stricken as an improper doubling of aggravating factors. Only one argument has merit.

Appellant's action did create a great risk of death to many persons. Section 921.141(5)(c), Florida Statutes (1973). There were four non-participating, unarmed, and innocent people present in the restaurant during the shoot-out between appellant and the...