Schwab v. State
| Decision Date | 28 March 2002 |
| Docket Number | No. SC00-1629., No. SC97008 |
| Citation | 814 So.2d 402 |
| Parties | Mark Dean SCHWAB, Appellant, v. STATE of Florida, Appellee. Mark Dean Schwab, Petitioner, v. Michael W. Moore, etc., et al., Respondents. |
| Court | Florida Supreme Court |
Robert T. Strain, Assistant CCRC, and Denise L. Cook, Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Appellant/Petitioner.
Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
Mark Dean Schwab appeals an order of the circuit court denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. We affirm the denial of Schwab's postconviction motion and deny the petition for habeas corpus.
The facts of this crime were set forth in Schwab v. State, 636 So.2d 3, 4 (Fla.1994):
After a non-jury trial, Judge Edward J. Richardson found Schwab guilty of first-degree murder, sexual battery of a child, and kidnaping. Judge Richardson sentenced Schwab to death on the murder conviction and imposed consecutive life sentences on the other conviction.1 We affirmed Schwab's conviction and sentence on direct appeal. See Schwab, 636 So.2d at 4
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On December 15, 1995, Schwab filed his first Florida Rule of Criminal Procedure 3.850 postconviction motion. Schwab moved to disqualify Judge Richardson from presiding over the postconviction proceedings. Judge Richardson granted the motion, and Judge Charles M. Holcomb was assigned to preside over Schwab's postconviction proceedings.
On April 15, 1998, Schwab filed an amended rule 3.850 motion. A Huff2 hearing was held, and an evidentiary hearing was granted. After conducting the evidentiary hearing, Judge Holcomb denied all of Schwab's postconviction claims. This consolidated appeal of Schwab's postconviction motion and petition for writ of habeas corpus followed.
Schwab raises eleven claims in his postconviction appeal.3 We find several claims to be either procedurally barred,4 without merit5, or both. We turn to the issues that merit further discussion.
In his first and second claims, Schwab asserts that his case was not adjudicated by a fair and impartial tribunal. Schwab's first judicial bias claim is based on two affidavits filed prior to trial by attorneys who were prosecutors in the state attorney's office in 1991 but who were not Schwab's prosecutors. The affidavits stated that prior to the trial and before an arrest had been made a few attorneys were in the clerk's office reading a newspaper article regarding the kidnaping and murder of the victim. Schwab had been identified in the paper as a suspect. According to the affidavits, Judge Richardson entered the office, and one of the attorneys asked Judge Richardson if he would like such a case. Judge Richardson initially responded, "Not me," but then he said, "Sure I'd like that case" and made the gesture of firing an imaginary hand pistol at the attorneys.
Upon the filing of the affidavits, Judge Richardson held a hearing on July 3, 1991. At the hearing, the State filed a document entitled "State's Questions for In Camera Inquiry," which the State wanted to use to question Schwab as to his knowledge and understanding of the prosecutors' affidavits, especially in light of Schwab's waiver of a jury trial. Schwab's defense attorneys responded that they were aware of the affidavits and had discussed the affidavits with Schwab, yet they did not want to move to recuse on such grounds. In fact, Schwab's defense counsel stated that they would oppose a State motion to recuse. Judge Richardson engaged Schwab in an open-court colloquy, explaining to Schwab that the failure to file a prompt motion to disqualify would preclude Schwab from raising on appeal a judicial bias claim on the basis of these affidavits. Under oath, Schwab responded that he had read the affidavits, had discussed them and their significance with his attorneys, and understood that the failure to file a prompt motion to disqualify would constitute a waiver. Schwab did not file a motion to disqualify Judge Richardson.
We have held that where the grounds for a judicial bias claim are known at the time of the original trial, yet are not raised, such claims are waived and cannot be raised in a postconviction appeal. See Asay v. State, 769 So.2d 974, 979 (Fla. 2000)
; Rivera v. State, 717 So.2d 477, 481 n. 3 (Fla.1998); Stano v. State, 520 So.2d 278, 281 (Fla.1988); Zeigler v. State, 452 So.2d 537, 539 (Fla.1984); see also § 38.02, Fla. Stat. (1991) (); Fla. R. Jud. Admin. 2.160(e) ().6 Schwab's judicial bias claim is procedurally barred because Schwab failed to seek the disqualification of Judge Richardson after having specific knowledge of the grounds now claimed. See Asay, 769 So.2d at 979-980.
Schwab argues that when these affidavits were filed, Judge Richardson should have recused himself on his own motion in accordance with Canon 3 E of the Code of Judicial Conduct7 in order to eliminate the appearance of judicial bias. We do not agree. We conclude that Judge Richardson proceeded appropriately when he became aware of the affidavits. The cases cited by Schwab, in which we stated that the trial judge should have recused himself in accordance with Canon 3 E, do not control in the present case. In Maharaj v. State, 684 So.2d 726, 727 (Fla.1996), we found that the trial judge should have recused himself from a 3.850 proceeding regardless of whether a motion to disqualify was filed. After the appellant in Maharaj commenced his appeal of the denial of his rule 3.850 motion, appellant discovered that the trial judge had been the supervising attorney of the attorneys who prosecuted the appellant. See id. In contrast, in the present case, we encounter a situation in which Schwab, with the advice of counsel, waived his right to file a motion to recuse the judge, having specific knowledge of the allegations of judicial bias.
Second, Schwab contends that Judge Richardson demonstrated his bias throughout the trial by discounting the weight of nonstatutory mitigation, improperly relying on the State's mental health expert and his own experience on the criminal bench, failing to order Schwab to submit to a competency examination, and failing to grant Schwab's motion requesting that a separate judge hear a motion in limine regarding similar fact evidence.8 All of the matters raised were rulings by Judge Richardson which could have been and should have been, if well grounded, raised on direct appeal. All of the matters now raised were rulings Judge Richardson made adverse to Schwab. Thus, the grounds of Schwab's judicial bias claims were known by the defense at the time of trial, yet Schwab never filed a prompt motion to recuse. Therefore, Schwab's judicial bias claim is procedurally barred. See Asay, 769 So.2d at 979-980
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