Spaziano v. State, 67929

• Decision Date: 08 September 1995
• Docket Number: No. 67929,67929
• Citation: 660 So.2d 1363
• Parties: 20 Fla. L. Weekly S461 Joseph Robert SPAZIANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1363

660 So.2d 1363

20 Fla. L. Weekly S461

Joseph Robert SPAZIANO, Appellant, v. STATE of Florida, Appellee.

No. 67929.

Supreme Court of Florida.

Sept. 8, 1995.

As Modified Sept. 12, 1995.

Michael A. Mello, South Royalton, VT, for appellant.

Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, for appellee.

PER CURIAM.

Joseph Robert Spaziano, through his counsel Michael A. Mello, has filed multiple motions and documents following the Governor's signing of a fifth death warrant for Spaziano on August 4, 1995. The motions fall into five distinct categories: (1) two motions for rehearing; (2) four motions to supplement the record; (3) two motions addressing actions by the office of the attorney general; (4) two motions relating to Mello's representation of Spaziano; and (5) one catch-all motion concerning Spaziano's rights.

The two principal motions are (1) an out-of-time motion for rehearing of a previous Florida Rule of Criminal Procedure 3.850 motion, which was denied in the circuit court in 1985 and affirmed by this Court in 1986; and (2) an out-of-time motion for rehearing of the direct appeal and judgment on the sufficiency of the evidence. To further these two motions, Mello filed four additional motions to supplement the record, including: (a) motion to supplement the record to include a videotape; (b) motion to supplement the record to include recent media coverage of this case; (c) motion to supplement the record with media coverage of the Florida Department of Law Enforcement investigation; and (d) motion to supplement the record with an unofficial transcript of the Florida Department of Law Enforcement's interrogation of Anthony DiLisio. Subsequent to oral argument, Mello filed an affidavit executed under oath by Anthony Frank DiLisio, a primary witness for the prosecution, which states:

KNOW ALL MEN BY THESE PRESENTS, that I, Anthony Frank DiLisio, of ... Pensacola, Florida 32534, do make, publish and declare freely, under penalty of perjury, this statement that I never under any circumstances went to the dump sight [sic] with Joseph Spaziano. I went there in the company of law enforcement investigators and only in the company of law enforcement investigators.

At trial, DiLisio testified that Spaziano took him to a dump and showed him the bodies of two females, and explained the specific route that Spaziano and DeLisio took to the dump.

In the aggregate, the motions filed seek to open by rehearing an appeal that was finalized more than thirteen years ago and a postconviction proceeding that was terminated with a denial of rehearing more than nine years ago.

Counsel has stated that the motions he has filed are not authorized in our present legal process. He states:

Undersigned counsel candidly concedes that a plethora of procedural preclusions articulated by this court bar this instant action. As a motion [for] rehearing of an opinion by this court rendered in 1986, this motion is obviously untimely. Treated as a new claim for postconviction relief, this action is barred by the one year time limit on Rule 3.851 motions. There are claim and issue preclusion barriers, because all of the legal issues raised in this motion have been raised by Mr. Spaziano in the past; there has been no intervening change in law; there have been new facts recently discovered, but they may not be of the magnitude necessary, under this court's [precedents], to secure review. Finally, retroactivity principles bar this court from treating several aspects raised by Mr. Spaziano as issues cognizable at this time.

There are methods for the court to consider both newly discovered evidence and recanted testimony under procedures we have established in this State. With regard to newly discovered evidence, we recently broadened the test to allow a new trial when evidence would "probably" affect the verdict rather than requiring that it must "conclusively" affect the verdict. Jones v. State, 591 So.2d 911 (Fla.1991). With regard to the issue of recanted testimony, we have set out the standards for this type of situation in our recent decision in Armstrong v. State, 642 So.2d 730 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1799, 131 L.Ed.2d 726 (1995). ¹ Spaziano has been before this Court on seven prior occasions; ² he has been before the United States District Court ³ and before the United States Court of Appeals, ⁴ which wrote an extensive opinion examining the twenty-three issues raised before the United States District Court. The United States Supreme Court has considered his case on the merits ⁵ and has denied petitions for writs of certiorari on three occasions.

The motions for rehearing filed in this cause are clearly not authorized. However, consistent with our constitutional responsibility to refrain from dismissing a cause solely because an improper remedy has been sought, we have considered the contents of these motions and the recently filed supplemental affidavit to determine whether they have any basis for relief under our jurisdiction. Under the unique circumstances of this cause, we conclude that these two out-of-time motions for rehearing, together with the supplemental affidavit of Anthony DiLisio, should be treated as a successive Rules of Criminal Procedure 3.850-3.851 motion based only on the newly discovered evidence of the recantation of the testimony of a significant witness, and the motion must be remanded to the Circuit Court of the Eighteenth Judicial Circuit for consideration of that issue. Given this finding, we conclude that the State should be allowed to respond to this narrow issue by 5 p.m. on Wednesday, September 13, 1995. Further, the trial judge to whom this cause is assigned is directed to hold an evidentiary hearing on the issue of the recanted testimony as newly discovered evidence no later than Friday, September 15, 1995. We decline at this time to grant a stay of execution, but allow the trial court an opportunity to address that issue.

We further find that the motions to supplement the record with newspaper articles are clearly unauthorized and improper, and they are all stricken from the record in this proceeding.

Further, Spaziano has moved to disqualify the office of the attorney general and compel discovery from that same office. Both motions are denied as being without merit.

Spaziano's counsel, Mello, has also filed motions concerning his representation of Spaziano, specifically: (1) motion for appointment of counsel nunc pro tunc, and (2) motion to consider and decide whether pro bono counsel is obligated to move for withdrawal as counsel in this case. The office of the Capital Collateral Representative (CCR) represented Spaziano until at least January of this year. In June 1995, it appears that Mello voluntarily undertook the representation of Spaziano. We note that this is not a new case for Mello since he represented Spaziano while Mello was employed with CCR. This is still, in our view, a CCR case, and CCR has the primary responsibility for this representation. We find that the Capital Collateral Representative orally argued the latest proceeding in this matter before the United States Court of Appeals for the Eleventh Circuit in 1994. We find that these motions are not proper under the particular circumstances of this case. We find that Mello may continue the representation with assistance from CCR and, if possible, with the assistance of any resources available from the Volunteer Lawyers' Resource Center. ⁶ We deny Spaziano's catch-all motion requesting us to compel release of the Florida Department of Law Enforcement investigation report, to hold an evidentiary hearing on that matter, to enter a stay of execution, or to alter our reading of the public records law. ⁷ We also deny the amicus Volunteer Lawyers' Resource Center's motion for a stay in this cause.

For the reasons expressed, we remand this cause to the Circuit Court of the Eighteenth Judicial Circuit for an evidentiary hearing on the issue of the recanted testimony.

It is so ordered.

GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

KOGAN, J., concurs in part and dissents in part with an opinion, in which SHAW and ANSTEAD, JJ., concur.

KOGAN, Justice, concurring in part, dissenting in part.

I agree with virtually all that is said in the majority opinion except that portion imposing an unrealistic time frame for resolving what we all have now agreed is a cognizable claim for postconviction relief. Such a restriction is without precedent in our case law and tends to create an atmosphere of panic for resolution of an issue that requires calm and deliberate resolution. ⁸ Indeed, this is an issue demanding the most careful of attention because its end result could be the state-sponsored taking of a man's life when his guilt now has been called into question.

As the United States Supreme Court itself has noted, "death is different." Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). Unique in its finality, the death penalty therefore is circumscribed by extraordinary procedural safeguards designed to prevent an arbitrary or capricious application of this most irrevocable of punishments. I cannot see how this core policy is being served by an unseemly rush to execute a man despite a sworn affidavit by the State's chief witness that Mr. Spaziano was convicted on falsified evidence. ⁹ This conclusion is all the more compelling here because the recantation is only the latest in a string of troubling doubts that have surrounded Mr. Spaziano's conviction from the outset, revealing it to be a text-book example of how capital trials and postconviction reviews should not be conducted.

Today we are presented with a grossly disturbing scenario: a man facing imminent execution (a) even though his jury's vote for life imprisonment would be legally binding today, Cochran v. State, 547 So.2d 928 (Fla.1989), ...