Rose v. State

• Decision Date: 28 May 1992
• Docket Number: No. 74248,74248
• Citation: Rose v. State, 601 So.2d 1181 (Fla. 1992)
• Parties: James Franklin ROSE, Appellant, v. STATE of Florida, Appellee. 601 So.2d 1181, 17 Fla. L. Week. S319
• Court: Florida Supreme Court

Page 1181

601 So.2d 1181

James Franklin ROSE, Appellant, v.STATE of Florida, Appellee.

No. 74248.

601 So.2d 1181, 17 Fla. L. Week. S319

Supreme Court of Florida.

May 28, 1992.

Robert A. Butterworth, Atty. Gen. and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee.

BARKETT, Justice.

James Franklin Rose appeals the trial court's denial of his motion for relief pursuant to Florida Rule of Criminal Procedure 3.850.¹We reverse the trial court's order.

Rose was tried for the first-degree murder and kidnapping of eight-year-old Lisa Berry.The facts of the case are fully set forth in the direct appeal.Rose v. State, 425 So.2d 521, 522-23(Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812(1983).Briefly stated, on October 22, 1976, Lisa Berry and her mother, Barbara, were at a bowling alley with family and friends, including Rose.Shortly after 9:30 p.m. Rose and Lisa went to the poolroom area of the bowling alley.Rose and Lisa were seen at the exit of the bowling alley by Lisa's sister, Tracy, between 9:30 and 10:00 p.m.At approximately 10:23 p.m. Rose called Barbara at the bowling alley to ask when she would be finished bowling; she said 11:30 p.m. Rose returned to the bowling alley at that time.The State argued that Rose killed Lisa sometime after 9:30 p.m. and before he returned to the bowling alley.

The jury found Rose guilty and recommended the death penalty.The trial judge imposed a sentence of death for the murder and a life sentence for the kidnapping.This Court affirmed the convictions and the life sentence, but vacated the death sentence and remanded for resentencing.Rose, 425 So.2d at 525.On remand, the jury recommended death.The court found no mitigating circumstances.In aggravation, the court found that Rose was under sentence of imprisonment when he committed the murder because he was on parole at the time, ² that he had previously been convicted of a felony involving the use or threat of violence, ³ and that the murder was committed during the commission of a kidnapping.⁴The death sentence was affirmed by this Court.Rose v. State, 461 So.2d 84, 88(Fla.1984), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706(1985).Thereafter, Rose filed a petition for a writ of habeas corpus which this Court ultimately denied.Rose v. Dugger, 508 So.2d 321, 326(Fla.), cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 267(1987).Rose then filed a motion for postconviction relief pursuant to rule 3.850 which was denied without hearing by the trial court.Rose now appeals the trial court's denial of that motion.

We confine our review to two issues.First, Rose argues that he was denied due process of law because the trial court, without a hearing and as a result of an ex parte communication, adopted the State's proposed order denying relief without providing counsel notice of receipt of the order, a chance to review the order, or an opportunity to object to its contents.Second, Rose asserts that he is entitled to an evidentiary hearing on the allegations contained in his motion.

Rose's 3.850 motion was originally filed by an assistant public defender who was later allowed to withdraw as counsel by the trial court.The State responded to Rose's motion and in its response agreed that an evidentiary hearing was required.Subsequently, the State submitted a proposed order, adopted in its entirety by the trial court, denying all relief.Rose's new counsel was not served with a copy of the proposed order or provided an opportunity to file objections.⁵Under these factswe must assume that the trial court, in an ex parte communication, had requested the State to prepare the proposed order.

The judicial practice of requesting one party to prepare a proposed order for consideration is a practice born of the limitations of time.Normally, any such request is made in the presence of both parties or by a written communication to both parties.We are not unmindful that in the past, on some occasions, judges, on an ex parte basis, called only one party to direct that party to prepare an order for the judge's signature.The judiciary, however, has come to realize that such a practice is fraught with danger and gives the appearance of impropriety.See generally Steven Lubet, Ex Parte Communications: An Issue in Judicial Conduct, 74 Judicature 96, 96-101 (1990).

Canon 3 A(4) of Florida's Code of Judicial Conduct states clearly that

A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

Fla.Bar Code of Jud.Conduct, Canon 3 A(4)(emphasis added).Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.Even the most vigilant and conscientious of judges may be subtly influenced by such contacts.No matter how pure the intent of the party who engages in such contacts, without the benefit of a reply, a judge is placed in the position of possibly receiving inaccurate information or being unduly swayed by unrebutted remarks about the other side's case.The other party should not have to bear the risk of factual oversights or inadvertent negative impressions that might easily be corrected by the chance to present counter arguments.As Justice Overton has said for this Court:

[C]anon [3 A(4) ] implements a fundamental requirement for all judicial proceedings under our form of government.Except under limited circumstances, no party should be allowed the advantage of presenting matters to or having matters decided by the judge without notice to all other interested parties.This canon was written with the clear intent of excluding all ex parte communications except when they are expressly authorized by statutes or rules.

In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395(Fla.1987).

We are not here concerned with whether an ex parte communication actually prejudices one party at the expense of the other.The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal.The impartiality of the trial judge must be beyond question.In the words of Chief Justice Terrell:

This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge....The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

... The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or...