Songer v. Wainwright, 62891

• Decision Date: 01 December 1982
• Docket Number: No. 62891,62891
• Citation: 423 So.2d 355
• Parties: Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections and Richard L. Dugger, Superintendent of Florida State Prison, Starke, Respondents.
• Court: Florida Supreme Court

Page 355

423 So.2d 355

Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections and Richard L. Dugger, Superintendent of Florida State Prison, Starke, Respondents.

No. 62891.

Supreme Court of Florida.

Dec. 1, 1982.

Joseph Jordan, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen. and Peggy Quince and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for respondents.

ADKINS, Justice.

By habeas corpus, petitioner Carl Ray Songer contends that he received ineffective assistance of counsel on his direct appeal from a judgment of guilt and sentence of death, Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I ), and on an appeal from resentencing, Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II ), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

We have previously affirmed an order of the trial court denying a motion to vacate which was filed by petitioner. Songer v. State, 419 So.2d 1044 (Fla.1982) (Songer III ).

Petitioner claims he was prejudiced by having to go forward by calling the first witness at the penalty phase of his trial with mitigating evidence and argues the burden of persuasion was improperly shifted to him. Petitioner was not prejudiced by appellate counsel's failure to raise this point on appeal, as the contention is without merit. Mitigating circumstances are offered during the penalty phase to show the totality of the circumstances. The evidence is offered to show that the circumstances warrant less than the penalty of death. There is no improper shifting of the burden of persuasion. See Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982).

Petitioner next argues that this Court never gave him a proper, full review because appellate counsel failed to include the charge conference in the record and failed to contest its absence. It is true, as he says, that in all capital cases the appellant has an absolute, fundamental right to have his entire record reviewed. Delap v. State, 350 So.2d 462 (Fla.1977). All instructions in capital cases are required to be in writing. Fla.R.Crim.Proc. 3.390. As long as all instructions are required to be in writing, and all were in the trial of this case, the statements made by the court and the attorneys at the charge conference become immaterial. The petitioner could suffer no prejudice from the failure to include such statements in the record. Also, there was no objection made by trial counsel and appellate counsel was thereby precluded from raising the question on appeal.

Petitioner next contends that appellate counsel was ineffective because of his failure to raise the question of whether the homicide for which petitioner was convicted was committed to disrupt a governmental function. Although the issue of whether the homicide was committed to disrupt a governmental function was not raised in petitioner's direct appeal brief, it was nonetheless discussed by the Court in Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I ) on page 484. Petitioner has failed to demonstrate that he was prejudiced in any way because of failure of his counsel to raise this issue instead of the Court's pursuing the matter on its own volition.

Petitioner argues that appellate counsel was ineffective because of his failure to raise the question of whether petitioner, on resentencing, actually saw his presentence investigation report. This argument...