Stone v. State, 63638

• Decision Date: 27 November 1985
• Docket Number: No. 63638,63638
• Citation: 481 So.2d 478,10 Fla. L. Weekly 621
• Parties: 10 Fla. L. Weekly 621 Raymond STONE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 478

481 So.2d 478

10 Fla. L. Weekly 621

Raymond STONE, Petitioner, v. STATE of Florida, Respondent.

No. 63638.

Supreme Court of Florida.

Nov. 27, 1985.

Rehearing Denied Feb. 6, 1986.

Susan Cary, Gainesville, and Donald M. Middlebrooks of Steel, Hector & Davis, Miami, for appellant.

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

ADKINS, Justice.

Raymond Stone appeals the denial without a hearing of his motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. While this appeal was pending, defense counsel discovered the existence of a claim allegedly in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court granted a motion to relinquish jurisdiction to the trial court for further findings in conjunction with the facts alleged in the motion. After an evidentiary hearing was held on the Brady claim, the trial court entered its order denying relief. This appeal followed. The parties, after receiving permission from this Court, have filed Supplemental Briefs on the Brady issue. Regarding the initial motion for post-conviction relief, since we find that the motion and the files in the case conclusively show that appellant is not entitled to relief, we affirm the order of the trial court denying the motion without an evidentiary hearing. Foster v. State, 400 So.2d 1 (Fla.1981). We also affirm the trial court's action denying appellant's second motion for post-conviction relief, after an evidentiary hearing, on the Brady claim.

Appellant was convicted of the first-degree murder of Jacqueline Smith and sentenced to death. This Court on direct appeal affirmed the conviction and sentence. Stone v. State, 378 So.2d 765 (Fla.1979).

In his motion for post-conviction relief appellant asserted the following four grounds:

I. Denial of a fair trial by an impartial jury.

II. Denial of effective assistance of trial counsel.

III. Deficiencies in jury instructions and findings of aggravated factors at sentencing.

IV. Unconstitutionality of the Florida death penalty as applied.

As asserted, Issues I, III, and IV either were or could have been raised on direct appeal and therefore are not proper matters to be considered in a motion for post-conviction relief. Meeks v. State, 382 So.2d 673 (Fla.1980); Witt v. State, 387 So.2d 922 (Fla.1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

Thus, only appellant's claim that he was denied the effective assistance of trial counsel remains to be resolved by this Court.

We will therefore proceed to evaluate the claim of legal incompetency according to the guidelines enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Knight v. State, 394 So.2d 997 (Fla.1981).

Appellant argues that his trial counsel failed to properly investigate and present psychiatric evidence of appellant's deprived and depraved childhood in mitigation at sentencing. The trial court did not evaluate this claim, because it determined that the issue had been resolved by this Court on direct appeal. On direct appeal Stone argued that he should receive a new sentencing hearing because these same psychiatric reports were not presented to the jury, relying upon Messer v. State, 330 So.2d 137 (Fla.1976), and Miller v. State, 332 So.2d 65 (Fla.1976). In rejecting this claim we stated that "[n]either the judge nor defense counsel could be faulted for the absence of the reports at the jury phase of the sentencing hearing." 378 So.2d at 773. The point of this statement was to distinguish Messer and Miller, where the court had ruled similar evidence inadmissible when offered by defense counsel. It was not a determination of the competency of trial counsel.

However, upon evaluation of the files and record in this case, we conclude that the trial judge was correct in denying petitioner's claim of ineffective assistance of trial counsel, even if perhaps for the wrong reason. The standard in any case presenting an ineffectiveness claim is whether "counsel's assistance was reasonable considering all the circumstances." 104 S.Ct. at 2065. And, even if there is a professionally unreasonable error by counsel, it does not warrant setting aside the judgment if the error had no effect on the judgment. Id. at 2067. In order to prove prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. We hold that Stone has failed to show sufficient prejudice. The information contained in these psychiatric reports concerned an incident which occurred when Stone was eleven years old. The diagnostic report contained statements that Stone was of low average intelligence, that he had homosexual tendencies, he grew up in a reformatory, and that he fantasized...