Smith v. State

• Decision Date: 10 November 1983
• Docket Number: No. 63389,63389
• Citation: 445 So.2d 323
• Parties: Jimmy Lee SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 323

445 So.2d 323

Jimmy Lee SMITH, Appellant, v. STATE of Florida, Appellee.

No. 63389.

Supreme Court of Florida.

Nov. 10, 1983.

Rehearing Denied March 8, 1984.

Certiorari Denied May 29, 1984

See 104 S.Ct. 2671.

Nora Leto, Lakeland, Robert Augustus Harper, Jr., Tallahassee, and Dennis W. Hartley, Colorado Springs, Colo., for appellant.

Jim Smith, Atty. Gen. and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

In 1978, appellant was convicted of two counts of first-degree murder and sentenced to death on each count. Upon direct appeal, this Court affirmed these convictions and sentences. Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). After executive clemency proceedings the governor signed a death warrant. On March 2, 1983, appellant filed a motion to vacate the judgments and sentences pursuant to Florida Rule of Criminal Procedure 3.850 stating six grounds for relief and also sought an evidentiary hearing and a stay of execution. Prior to the hearing on these motions, appellant filed an amendment to his motion for post-conviction relief on three additional grounds. On March 9, 1983, the trial court denied appellant's motions for post-conviction relief without an evidentiary hearing incorporating a copy of the trial record to his order. The appellant filed this appeal. We have jurisdiction. Art. V, § 3(b)(7) & (9), Fla. Const.

Appellant alleged the following six grounds for relief in his original Rule 3.850 motion: 1) that the introduction into evidence of defendant's confession violated his right to counsel as guaranteed by the sixth and fourteenth amendments; 2) that the jury was improperly instructed on the issue of mitigating circumstances in violation of the defendant's rights under the eighth and fourteenth amendments; 3) that the jury was selected through procedures that systematically excluded from jury service persons having opposition to the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); 4) that defendant was deprived of due process by the state's failure to provide notice of the aggravating circumstances upon which it intended to rely in violation of the eighth and fourteenth amendments; 5) that the failure to suppress defendant's post-arrest confession which was obtained after the defendant had invoked his right to consult counsel was in violation of the fifth, sixth and fourteenth amendments; and 6) that the defendant was denied the effective assistance of counsel at the guilt and penalty stages of his capital trial in violation of the sixth, eighth and fourteenth amendments. In addition to these grounds, the appellant alleged three other grounds in his amendment to his motion. Those grounds are: 1) that the sentencing process ignored the safeguards of Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); 2) that the sentence should be vacated because non-statutory aggravating circumstances were found by the trial court in violation of the defendant's rights under the eighth and fourteenth amendments; and 3) that the state withheld mitigating facts from the defense in violation of defendant's rights under the fifth and fourteenth amendments.

Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983); Adams v. State, 380 So.2d 423, 242 (Fla.1980).

We find that all except two of the foregoing issues were or could have been raised on direct appeal and therefore are precluded from our consideration by collateral review. The two issues which we will consider on this appeal are appellant's claim of ineffective assistance of counsel and the claim that the state withheld mitigating facts from the defense.

In support of appellant's ground based on the alleged ineffective assistance of trial counsel, he cites a number of specific instances in which counsel's failure to act allegedly amounted to ineffective assistance of counsel. Appellant asserts that counsel failed to make a motion to suppress any of the confessions introduced against the appellant. He also claims: 1) that counsel failed to cross-examine crucial witnesses and that the cross-examination of others was perfunctory; 2) that counsel's voir dire examination at appellant's trial was ineffective; 3) that counsel failed to investigate any information for the guilt or penalty phases of the trial; 4) that counsel failed to file any motions designed to aid in the defense of the appellant; and 5) that counsel failed to avail himself of significant facts and witnesses that may have been effective in presenting claims for mitigation including developing any psychological testimony with regard to possible witnesses.

When ineffective assistance of counsel is asserted, the burden is on the appellant to specifically allege and establish grounds for relief and to establish whether such grounds resulted in prejudice to him. Meeks v. State. This Court set standards for assessing whether...