Smith v. State, s. 65,991

• Decision Date: 11 October 1984
• Docket Number: 65,992,Nos. 65,991,s. 65,991
• Citation: 457 So.2d 1380
• Parties: Frank SMITH, Appellant, v. STATE of Florida, Appellee. Frank SMITH, Petitioner, v. Louie L. WAINWRIGHT, Etc., Respondent.
• Court: Florida Supreme Court

Page 1380

457 So.2d 1380

Frank SMITH, Appellant, v. STATE of Florida, Appellee.

Frank SMITH, Petitioner, v. Louie L. WAINWRIGHT, Etc., Respondent.

Nos. 65,991, 65,992.

Supreme Court of Florida.

Oct. 11, 1984.

Baya Harrison, III, Tallahassee, Billy H. Nolas of Plunkett, Nolas and Donnard, New York City, and Santha Sonenberg, Public Defender Service for the District of Columbia, Washington, D.C., for appellant/petitioner.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee/respondent.

BOYD, Chief Justice.

These consolidated cases are before the Court on (1) appeal from the denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and (2) a petition for writ of habeas corpus. Appellant-Petitioner has also filed a motion for stay of execution of sentence. We affirm the denial of the motion for post-conviction relief and deny the petition for habeas corpus. Having resolved all issues adversely to appellant-petitioner, we deny his motion for stay of execution.

Frank Smith is a state prisoner under sentence of death. By jury trial he was convicted of first-degree murder, robbery, kidnapping, and sexual battery. In accordance with the recommendation of the jury, Smith was sentenced to death on the first-degree murder conviction. He was entitled to and received appellate review of his convictions and sentence of death. This Court affirmed the convictions and the sentence of death. Smith v. State, 424 So.2d 726 (Fla.1982). Smith's subsequent petition for review was denied by the United States Supreme Court. Smith v. Florida, --- U.S. ----, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983).

Appeal of Denial of Rule 3.850 Motion

Appellant's motion to vacate, set aside or correct judgment and sentence raised the following issues: (1) that jurors were improperly excused for cause due to their opposition to capital punishment and that, even if they were properly excused, imposing such "death qualifications" deprived appellant of trial by a jury drawn from a representative cross-section of the community; (2) that the jury instruction given on the process of weighing aggravating and mitigating circumstances placed the burden on the defendant to prove that death was not the appropriate penalty; (3) that the state at trial was improperly allowed to bolster the credibility of its principal witness before the defense had attempted to impeach him, violating the defendant's right of confrontation; (4) that the trial court erred in refusing to instruct the jury on the defense of withdrawal; (5) that the giving of jury instructions on all lesser degrees of homicide, attempted murder, and felony murder is a practice conducive to arbitrariness in violation of the Eighth Amendment; (6) that instructing the jury on all the statutory aggravating circumstances was improper; (7) that the trial court erroneously instructed the jury that its decision to recommend either life or death would have to be made by a majority vote; (8) that the trial court so instructed the jury on mitigating circumstances as to limit consideration to statutory mitigating circumstances and that the court limited its own consideration thus as well; (9) that appellant did not receive the effective assistance of counsel at trial; and (10) that appellant's sentence of death was a product of systematic racial discrimination in capital sentencing.

All but the last two of these arguments are issues that either were or could have been presented on appeal and are therefore not proper grounds for collateral challenge of the convictions or sentence. See Booker v. State, 441 So.2d 148 (Fla.1983). Appellant argues that these grounds are cognizable even though not raised on appeal, or even though raised on appeal and decided adversely to appellant, because they constitute fundamental error. We reject this contention and find that issues (1) through (8) above were properly summarily denied by the trial court as improper grounds for a Rule 3.850 claim.

The claim that the death sentence was the product of racially discriminatory sentencing practices is in theory one that can be raised by motion under Rule 3.850. See Henry v. State, 377 So.2d 692 (Fla.1979). However, we find that appellant did not make a sufficient showing to require the trial court to hold a hearing on the claim and we therefore affirm the trial court's summary denial of relief on this ground. See State v. Washington, 453 So.2d 389 (Fla.1984).

The trial court properly held an evidentiary hearing on appellant's claim that the performance of his trial defense counsel was deficient. Under Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a convicted person making such a claim must identify specific acts or omissions that were deficient in the sense that they "were outside the wide range of professionally competent assistance." Id. 104 S.Ct. at 2066. The inquiry must be based on a presumption of competence and a deferential approach to counsel's strategy and tactics. The claimant who meets this requirement must then establish that the deficiency was such that there is a reasonable probability that the result of the proceeding would have been different. The United States Supreme Court explained that this second element of the necessary showing--prejudice--was shown by a failure of the adversarial testing process sufficient to undermine confidence in the outcome.

The trial court found that appellant had failed to show any deficiency or deviation from professional standards of competence on the part of defense counsel at appellant's trial. We agree and approve the trial court's analysis of the facts as follows:

The defendant was represented at trial and on direct appeal by Mr. Philip J. Padovano. Mr. Padovano represented the defendant for six (6) years from December, 1978, through the summer of 1984 until this claim was lodged against him. He represented the defendant during all phases of discovery, pre-trial hearings, the guilt phase of the trial, the penalty phase, and the direct appeal to the Florida Supreme Court.

Mr. Padovano is an experienced criminal trial lawyer with over one hundred (100) jury trials to his credit. As of the time of the defendant's trial in this case, Mr. Padovano had been involved in more than fifty jury trials. Moreover, he secured the assistance in this case of another experienced trial attorney, Mr. Martin Murray, of St. Petersburg, Florida, who had previously represented defendants in capital cases. Furthermore, Mr. Padovano has been a member of the Florida Bar for eleven (11) years and has had no grievances or claims of ineffectiveness filed against him previously.

Mr. Padovano was able to effectively communicate with the defendant through every stage of the proceedings. In fact, the defendant wrote often to Mr. Padovano and never expressed the notion that he was less than pleased with Mr. Padovano's representation. The only complaint the defendant expressed was the speed at which Mr. Padovano responded to his letters. However, this was during a two year period awaiting the Florida Supreme Court's opinion on direct appeal.

In preparing for trial Mr. Padovano spoke with hundreds of potential witnesses including members of the defendant's family. They included ...