Routly v. Wainwright, 69089
| Decision Date | 12 February 1987 |
| Docket Number | No. 69089,69089 |
| Citation | 502 So.2d 901,12 Fla. L. Weekly 101 |
| Parties | 12 Fla. L. Weekly 101 Dan Edward ROUTLY, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents. |
| Court | Florida Supreme Court |
Richard M. Leslie, Frank Valdes and Thomas H. Buscaglia of Shutts & Bowen, Miami, for petitioner.
Robert A. Butterworth, Jr., Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for respondents.
Dan Edward Routly, a state prisoner under sentence of death, petitions this Court for the issuance of a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. Because we find no merit to the numerous allegations raised involving ineffective assistance of appellate counsel, we deny all relief.
Petitioner was convicted of the 1979 first-degree murder of a retiree who had resided in the Ocala, Florida, area. The trial court overrode a jury recommendation of life and imposed a death sentence. This Court affirmed Routly's conviction and sentence in Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984). In this petition, Routly identifies numerous alleged omissions and inadequacies in several aspects of appellate counsel's representation which he contends constituted a breakdown in the adversarial process. He alternatively contends that the manner of appellate counsel's appointment in this case, as well as the statutory provision setting forth counsel's compensation for the representation, section 925.036, Florida Statutes (1985), present persuasive evidence of ineffective assistance on appeal. We find no merit to any of the three grounds on which petitioner seeks relief.
Petitioner first points, as "[t]he paradigm example of appellate counsel's substandard performance," to counsel's treatment of an issue involving prosecutorial misconduct. During the voir dire of the prospective jury below, the prosecution made four references to petitioner's "right to take the witness stand." Petitioner contends that counsel's failure to obtain a reversal on this point demonstrates ineffective assistance. We cannot agree. First, only one of the statements had been objected to at trial, and therefore only that statement could be attacked upon appeal. As noted in Downs v. Wainwright, 476 So.2d 654, 657 (Fla.1985), "[w]e have repeatedly held that appellate counsel cannot be considered ineffective for failing to raise issues which he was procedurally barred from raising because they were not properly raised at trial." See also Ruffin v. Wainwright, 461 So.2d 109 (Fla.1984).
Second, appellate counsel did present to this Court the issue raised by the single preserved statement, and in his brief contended that our decision of David v. State, 369 So.2d 943 (Fla.1979), required reversal based on the alleged comment without resort to the doctrine of harmless error. We considered and rejected that argument. We once again find it appropriate to note that "[p]etitioner's contention that [the point] was inadequately argued merely expresses dissatisfaction with the outcome of the argument in that it did not achieve a favorable result for petitioner." Steinhorst v. Wainwright, 477 So.2d 537, 540 (Fla.1985). We therefore decline petitioner's invitation to utilize the writ of habeas as a vehicle for the re-argument of issues which have been raised and ruled on by this Court. Harris v. Wainwright, 473 So.2d 1246 (Fla.1985).
Petitioner next attacks appellate counsel's failure to adequately argue a multitude of issues including, among others, the constitutionality of Florida's death penalty statute, the admissibility of Routly's out-of-court statement, the validity of the continuance of the trial based on a witness's unavailability, and the propriety of the trial court's finding as an aggravating circumstance that the murder was committed in the course of a burglary. We have carefully examined each of these contentions, and find that petitioner has failed to allege specific acts and omissions constituting a serious deficiency in appellate counsel's performance. Downs v. Wainwright. The fact that the case might conceivably have been argued in a different manner in no way points to inadequate representation on appeal. Having found no serious specific deficiencies in counsel's performance, we cannot find that the appellate process has been compromised to such a degree as to undermine confidence in the fairness and correctness of the appellate result. See Wilson v. Wainwright, 474...
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