Scott v. Dugger

• Decision Date: 23 July 1992
• Docket Number: Nos. 73240,76450,s. 73240
• Citation: 604 So.2d 465
• Parties: 17 Fla. L. Weekly S545 Abron SCOTT, Petitioner, v. Richard L. DUGGER, etc., Respondent. Abron SCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 465

604 So.2d 465

17 Fla. L. Weekly S545

Abron SCOTT, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Abron SCOTT, Appellant, v. STATE of Florida, Appellee.

Nos. 73240, 76450.

Supreme Court of Florida.

July 23, 1992.

Rehearing Denied Sept. 24, 1992.

Larry Helm Spalding, Capital Collateral Represenative and Gail E. Anderson, Asst. Capital Collateral Representative, Tallahassee, and K. Leslie Delk, Sp. Asst. Capital Collateral Representative, Norman, Okl., and Billy H. Nolas, Sp. Asst. Capital Collateral Representative and Julie D. Naylor Sp. Asst. Capital Collateral Representative, Ocala, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent/appellee.

PER CURIAM.

Abron Scott appeals the trial court's denial of his motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a petition for writ of habeas corpus. We have jurisdiction pursuant to article V, section 3(b)(1) and (9), of the Florida Constitution.

Scott was convicted of first-degree murder, robbery, and kidnapping. The jury recommended and the trial judge imposed the death sentence. On appeal, this Court affirmed both the conviction and the sentence. Scott v. State, 494 So.2d 1134 (Fla.1986). After the Governor issued a death warrant in 1988, Scott filed a 3.850 motion in circuit court and a petition for habeas relief with this Court. The circuit court granted a stay of execution, and this Court granted Scott's motion to hold the habeas proceedings in abeyance during the pendency of the 3.850 proceedings in circuit court. The circuit court summarily denied all but one claim in Scott's 3.850 motion. Following a hearing on the claim that Scott received ineffective assistance of counsel in the penalty phase of the trial, the circuit court denied relief as to that claim as well.

Direct Appeal of the Denial of the Rule 3.850 Motion

Of the fourteen claims ¹ presented in his 3.850 motion, Scott seeks review of the trial court's rejection of the following fourteen: 1) that the death sentence is disproportionate, disparate, and invalid based upon the newly discovered evidence that Scott's codefendant Amos Robinson received a life sentence; 2) that executing a mentally retarded capital defendant constitutes cruel and unusual punishment in violation of the Florida Constitution; 3) that summary denial of all but a portion of one claim was erroneous; 4) that Scott was denied effective assistance of counsel at the guilt phase; 5) that the opinions of the mental health expert were professionally inadequate; 6) that Scott was forced to undergo criminal proceedings although he was not legally competent; 7) that Scott was denied effective assistance of counsel at the penalty phase; 8) that Scott did not knowingly and intelligently waive his Miranda ² rights and that counsel was ineffective in failing to properly litigate this issue; 9) that Scott's mental defects rendered him incapable of forming specific intent and thus precluded the application of the "cold, calculated, and premeditated" (CCP) and "heinous, atrocious, and cruel" (HAC) aggravating circumstances; 10) that the CCP and HAC aggravating circumstances were applied in an unconstitutional manner; 11) that the jury was misled by instructions and arguments which diluted their sense of responsibility for sentencing, contrary to Caldwell, ³ and that counsel was ineffective in failing to properly litigate this issue; 12) that the jury was misled and incorrectly informed about its function at capital sentencing and that counsel was ineffective for failing to object to these comments and instructions; 13) that the jury instruction at sentencing impermissibly shifted the burden of proof to Scott; and 14) that the injection of nonstatutory aggravating factors rendered the sentencing phase arbitrary and capricious and that counsel was ineffective for failing to object and seek a mistrial. We find claims 2-14 either to be without merit or to be procedurally barred because not raised on direct appeal. Smith v. State, 445 So.2d 323, 325 (Fla.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984). Thus, we affirm the trial court's denial of these claims. However, we find claim 1 to be dispositive and vacate Scott's death sentence.

On direct appeal, this Court vacated codefendant Amos Robinson's death sentence and remanded for a new sentencing proceeding before a jury. Robinson v. State, 487 So.2d 1040 (Fla.1986). Upon the jury's recommendation, Robinson was resentenced to life. Based upon Robinson's subsequent life sentence, Scott's 3.850 motion requested that his death sentence be vacated as disproportionate, disparate, and invalid. The circuit court summarily denied relief on this claim, finding it "untimely" and "improper" under Rule 3.850.

Even when a codefendant has been sentenced subsequent to the sentencing of the defendant seeking review on direct appeal, it is proper for this Court to consider the propriety of the disparate sentences in order to determine whether a death sentence is appropriate given the conduct of all participants in committing the crime. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). While Witt involved review of a death sentence on direct appeal, this case involves review in a 3.850 proceeding. Scott characterizes Robinson's life sentence, which was imposed after this Court affirmed Scott's conviction and death sentence, as "newly discovered evidence" and, thus, cognizable under Rule 3.850.

Traditionally, a defendant seeking relief on the basis of evidence discovered after his conviction has been affirmed on appeal was required to apply to the appellate court for leave to petition the trial court for a writ of error coram nobis. Hallman v. State, 371 So.2d 482 (Fla.1979), abrogated on other grounds, Jones v. State, 591 So.2d 911 (Fla.1991). However, rule 3.850 has supplanted the writ of error coram nobis, and newly discovered evidence claims are now brought under rule 3.850. Richardson v. State, 546 So.2d 1037 (Fla.1989). Thus, the issue presented here is whether a codefendant's subsequent life sentence constitutes newly discovered evidence which would permit collateral relief.

Two requirements must be met in order to set aside a conviction or sentence because of newly discovered evidence. First, the asserted facts "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence." Hallman, 371 So.2d at 485. Second, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So.2d 911, 915 (Fla.1991). The Jones standard is also applicable where the issue is whether a life or death sentence should have been imposed. Id.

In the instant case, we find that both requirements have been met and relief is appropriate. Robinson's life sentence was not imposed until after Scott's direct appeal was completed. Thus, this fact could neither be known nor discovered at the time that this Court reviewed Scott's death sentence. Moreover, the record in this case shows that Scott and Robinson had similar criminal records, were about the same age, had comparable low IQs, and were equally culpable participants in the crime. In a letter to the governor and other members of the Clemency Board, trial judge Susan Schaeffer made the following observations about the relative culpability of the codefendants:

As to the crime itself, they were both involved in all aspects of it. They both participated in the robbery of the victim, his kidnapping, his beatings and, although Scott eventually ran the man down with the automobile, it was only after Robinson concocted this method of killing the victim, and, in fact was the first to try, but failed. It is clear that this is not a case where Scott was the "triggerman" and Robinson a mere unwitting accomplice along for the ride. In fact, "there is little to separate out the joint conduct of the co-defendants which culminated in the death of the decedent." See Messer v. State, [330 So.2d 137, 142 (Fla.1976), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982) ].

Judge Schaeffer recused herself from hearing Scott's 3.850 motion because she felt unable to give the State a fair hearing due to her conviction that Scott's sentence must be set aside. At the hearing regarding the judge's recusal, the judge stated that the codefendants were "equally deranged and equally had poor records."

Based upon this record, this Court probably would have found Scott's death sentence inappropriate had Robinson's life sentence been factored into our review on direct appeal. See Slater v. State, 316 So.2d 539 (Fla.1975) (defendants should not be treated differently upon the same or similar facts). The instant case is distinguishable from Garcia v. State, 492 So.2d 360 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986), where this Court rejected a defendant's argument that his death sentence denied him equal justice because none of the other three participants in the crime received a sentence of death. Garcia did not involve equally culpable participants; Garcia admitted that he was the trigger-man. Although this Court addressed the hypothetical situation where one of the accomplices was also a trigger-man, the Court concluded that the evidence in Garcia supported the sentencing judge's conclusion that the aggravating factors outweighed the mitigating factors. Id. at 368. This is in sharp contrast to the instant case where Judge Schaeffer stated "I will have to go on record at the time of my sentence if the co-defendant [had] already been sentenced to life, I would have sentenced Mr. Scott to life despite the jury's recommendation."

Accordin...