Smith v. State

• Decision Date: 25 June 1981
• Docket Number: 60661,Nos. 60660,s. 60660
• Citation: 400 So.2d 956
• Parties: Dennis Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 956

400 So.2d 956

Dennis Wayne SMITH, Appellant, v. STATE of Florida, Appellee.

Nos. 60660, 60661.

Supreme Court of Florida.

June 25, 1981.

David Paul Montgomery of Staab & Montgomery, Bradenton, and B. J. Owens, Sarasota, for appellant.

Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.

ALDERMAN, Justice.

Dennis Wayne Smith appeals the trial court's denial of his motion to vacate judgment and sentence. Included in Smith's motion were allegations that he received ineffective assistance of counsel upon direct appeal and that he was denied due process when this Court considered a psychological report not disclosed to him. We treat these allegations as a petition for writ of habeas corpus. He also seeks leave to apply for a writ of error coram nobis on the basis of alleged newly discovered evidence. With the exception of an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we affirm the trial court's denial of post-conviction relief, we deny habeas corpus, and we deny leave to apply for a writ of error coram nobis. We remand to the trial court for it to consider the alleged Brady violation.

Smith's conviction of first-degree murder and his sentence of death were affirmed by this Court, Smith v. State, 365 So.2d 704 (Fla.1978), and the Supreme Court of the United States denied his petition for writ of certiorari. Smith v. Florida, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). On May 5, 1981, the Florida Cabinet denied his request for clemency, and he was scheduled to be executed on June 3, 1981. On May 21, 1981, Smith filed a motion to vacate, set aside, or correct his judgment and sentence.

As a basis for relief, he alleged that there was newly discovered evidence in the form of a recantation after trial by Wesley Johnson, the chief prosecution witness, and in the form of an after-trial discovery by defense of an alleged Brady violation. He also alleged that he was denied a fair trial because the trial court allowed the State to submit evidence of the subsequent murder of James Wagner and to use coerced and unreliable testimony, because the prosecutor commented on Smith's post-arrest silence, because the trial court allowed Johnson's wife and Dr. Niswonger to testify over defense objection, because the trial court used an informal "Allen " charge, because the imposition of the death sentence was the result of unbridled prosecutorial discretion, and because there was a Witherspoon error in the selection of the jury. He further contended that he was denied a fair sentencing hearing because the State prejudiced him by offering hearsay evidence of his bad character, because he was denied his right to confront witnesses, because the State was permitted to introduce evidence which was not relevant to any statutorily enumerated aggravating circumstances, and because the trial court restricted mitigating circumstances which the jury could consider. He additionally contended that he was denied due process by the Florida Supreme Court's consideration of a psychological report not disclosed to him and that he was not provided effective assistance of counsel at trial or on appeal.

The trial court concluded that the majority of Smith's claims were not appropriate to a Florida Criminal Procedure Rule 3.850 proceeding. Although it found that Smith's contentions relating to a Brady violation by the State were inappropriate to a proceeding under rule 3.850, it did consider and find to be without merit Smith's claim of newly discovered evidence in the form of Johnson's recantations after trial. It further held that Smith's claim of ineffective assistance of counsel and his claim of due process violation by this Court's alleged consideration of a psychological report were unsupported by any competent allegation of evidence and therefore failed to state a cause of action upon which relief could be granted. Finding insufficient basis upon which relief could be granted, the trial court denied this motion without an evidentiary hearing and denied Smith's motion for stay of execution.

After reviewing the motion, record, and briefs, and after oral argument, on May 28, 1981, we granted Smith's application for stay of execution pending disposition of this appeal.

In addition to his appeal from the denial of the rule 3.850 motion, Smith, recognizing that several issues raised below were inappropriate to a rule 3.850 proceeding, has filed a petition for leave to apply for writ of error coram nobis and has requested that we consider his claim of ineffective assistance of appellate counsel as a petition for writ of habeas corpus.

Initially, we hold that with the exception of the alleged Brady violation and the challenge of ineffective assistance of trial counsel, Smith's claims are inappropriate to a proceeding under rule 3.850. The remaining allegations, except his claims of ineffective assistance of appellate counsel and alleged improper consideration by us of a psychological report, were matters which were or could have been raised and disposed of on direct appeal and are not proper subject matters for a post-conviction motion. Hargrave v. State, 396 So.2d 1127 (Fla.1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, --- U.S. ----, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The trial court, therefore, properly refused to consider these allegations.

Ineffective assistance of trial counsel is a proper subject to be considered in a post-conviction 3.850 motion. In this case, however, applying the standards which we adopted in Knight v. State, 394 So.2d 997 (Fla.1981), we hold that the trial court properly denied Smith's claim of ineffective assistance of trial counsel.

The issues of ineffective assistance of counsel on direct appeal and the purported consideration by this Court of a psychological report were matters not properly before the trial court and are matters which we will treat as a petition for writ of habeas corpus. The newly discovered evidence claims presented to the trial court have two separate and distinct aspects. One is a purported Brady violation by the State in not furnishing favorable evidence to Smith after a general request for such information had been filed, information Smith allegedly did not become aware of until after trial. The other purported newly discovered evidence consists of recantations made by the chief prosecution witness, Wesley Johnson, subsequent to trial. The former is a proper matter for a post-conviction motion, while the latter may only be considered by means of obtaining leave of this Court to file a petition for writ of error coram nobis. The trial court was, therefore, without jurisdiction to consider the latter claim since leave of this Court had not yet been sought by Smith, but it was with jurisdiction and should have considered the claim of a Brady violation. We will consider these claims of ineffective assistance of appellate counsel, alleged consideration of a psychological report, and the two aspects of newly discovered evidence under the headings of the appropriate remedy under which relief should be sought.

Habeas Corpus

The claim of relief predicated on the assertion of ineffective assistance of appellate counsel can only be granted by habeas corpus in the appellate court. Knight v. State. We have considered Smith's assertions in light of the standards announced in Knight and find no substantial deficiency in Smith's representation on appeal by which he was prejudiced.

In his motion for post-conviction relief, Smith argued that he was denied due process because this Court, in connection with his appeal, allegedly considered material outside the record and not disclosed to him. Since a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850 must be directed to the judgment and sentence of the trial court, action of the Supreme Court of Florida may not be reviewed by this means. Foster v. State, 400 So.2d 1 (Fla.1981). Treating this claim as a petition for writ of habeas corpus, we deny relief. We have previously resolved this issue against Smith in Brown v. Wainwright, 392 So.2d 1327 (Fla.1981).

Petition for Leave to Apply for Writ of Error Coram Nobis

The alleged newly discovered evidence which Smith urged below as a basis for post-conviction relief included a series of after-trial recantations made by Johnson in the form of letters and affidavits. The appropriate first step for a defendant seeking a new trial on the basis of new evidence discovered after his conviction has been affirmed on appeal is a petition to the appellate court for leave to file a petition for error coram nobis. Without leave of the appellate court, the trial court has no jurisdiction to consider the coram nobis petition. Smith, recognizing his error in raising this point in his motion to vacate, has now filed a petition for leave to apply for a writ of error coram nobis. Since the trial court was without jurisdiction to consider this point on the merits, its finding that the unsupported recantation by Johnson was unreliable and did not serve as a sufficient basis upon which to grant relief was premature.

In considering whether to grant Smith's petition for leave to file a petition for error coram nobis, we must determine the legal effect of the alleged facts upon the previously entered judgment. In Hallman v. State, 371 So.2d 482 (Fla.1979), we set out the specific requisites of a petition for the writ addressed to the appellate court. The alleged facts relied upon must be fully disclosed since the appellate court must be afforded full opportunity to determine whether prima facie grounds are established. Furthermore, the evidence upon which the alleged facts can be proved and the source of the evidence must be asserted. The facts alleged must not have been known by the court, by the party, or by counsel, at the time of trial, and it must be made clear that defendant or his counsel could...