Thompson v. Dugger, s. 70739

Decision Date09 September 1987
Docket Number70781,Nos. 70739,s. 70739
Parties12 Fla. L. Weekly 469 William Lee THOMPSON, Petitioner, v. Richard DUGGER, Respondent. William Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Larry Helm Spalding, Capital Collateral Representative, and Mark E. Olive, Chief Asst. Capital Collateral Representative, Office of The Capital Collateral Representative, Tallahassee, and Michael L. Von Zamft of Kubicki, Bradley, Draper, Gallagher & McGrane, Miami, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Kaplan, Capital Collateral Coordinator and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent/appellee.

PER CURIAM.

William Lee Thompson appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion to vacate judgment and sentence of death. He also petitions this Court for a writ of habeas corpus and a stay of execution from his second death warrant. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We conclude that the recent United States Supreme Court decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), requires this Court to reverse the denial of his 3.850 motion and remand this cause for new sentencing proceedings. In light of our ruling on Thompson's 3.850 motion, the petition for habeas corpus is moot. We continue the stay of execution previously entered.

This is now Thompson's fourth appearance before us. Thompson initially pled guilty to first-degree murder, kidnapping, and involuntary sexual battery. We allowed him to withdraw his plea on voluntariness grounds and remanded the case for further proceedings. Thompson v. State, 351 So.2d 701 (Fla.1977). He then entered a second plea of guilty to these offenses. An advisory jury was empaneled in the sentencing phase and recommended the death sentence, which the judge imposed. We affirmed the conviction and sentence in Thompson v. State, 389 So.2d 197 (Fla.1980). Thompson filed a 3.850 motion and we affirmed denial of relief in Thompson v. State, 410 So.2d 500 (Fla.1982). Thompson then petitioned for federal habeas corpus relief, and the state waived any claim that Thompson had failed to exhaust state remedies. Multiple claims were raised and relief was denied by the United States District Court, and the Eleventh Circuit Court of Appeals affirmed. See Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987).

We address Thompson's claim in the present rule 3.850 post-conviction proceeding that involves the failure of the sentencing judge to allow presentation and jury consideration of nonstatutory mitigating circumstances in the sentencing phase. It directly concerns the principles of law set forth by the United States Supreme Court in its recent decision in Hitchcock v. Dugger. The Supreme Court had granted certiorari to determine whether Hitchcock was correct in contending that his sentence of death under a Florida statute was inconsistent with the requirement that any relevant mitigating evidence may be considered. The United States Supreme Court's unanimous opinion noted that "other Florida judges conducting sentencing proceedings during roughly the same period believed that Florida law precluded consideration of nonstatutory mitigating circumstances." Id. 107 S.Ct. at 1823. As in the instant case, the trial judge in Hitchcock instructed the jury on the statutory mitigating circumstances, without mentioning nonstatutory evidence of mitigation that had been introduced. The Supreme Court concluded "that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina [476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) ] Eddings v. Oklahoma [455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ] and Lockett v. Ohio [438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ]." Id. 107 S.Ct. at 1824 (citations omitted). The Court concluded that, in light of the fact that no showing of harmless error was made, the exclusion of the nonstatutory mitigating evidence rendered the death sentence invalid. We note that Hitchcock did present some nonstatutory mitigating evidence to the jury and defense counsel commented on it in closing argument.

We hold we are required by this Hitchcock decision to re-examine this matter as a new issue of law. The Eleventh Circuit, in Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987), considered multiple issues including the same mitigating evidence issue presented to the United States Supreme Court. Because the Eleventh Circuit denied relief on this issue, the state argues that even though the United States Supreme Court ruling is contrary to the holding of the Eleventh Circuit, the procedural default rule applies. We reject this argument. In Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), we held that only a state supreme court or the United States Supreme Court can effect a sufficient change of law to merit a subsequent post-conviction challenge to a final conviction and sentence. Id. at 931. We had previously ruled in a similar fashion as the Eleventh Circuit. Hitchcock v. State, 432 So.2d 42 (Fla.1983). We find that the United States Supreme Court's consideration of Florida's capital sentencing statute in its Hitchcock opinion represents a sufficient change in the law that potentially affects a class of petitioners, including Thompson, to defeat the claim of a procedural default.

Thompson's sentencing occurred in September of 1978. The United States Supreme Court, in June of 1978, had released Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held unconstitutional Ohio's capital sentencing statute limiting mitigating circumstances to those enumerated in the statute itself. In December of that year, three months after Thompson's sentencing, this Court...

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46 cases
  • Hargrave v. Dugger
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 13, 1987
    ...is the method the Florida Supreme Court has used to set aside a death sentence previously affirmed on a Lockett claim. Thompson v. Dugger, 515 So.2d 173 (Fla.1987) (granting relief on Lockett claim after denial of relief affirmed in both Thompson v. State, 410 So.2d 500 (Fla.1982) and Thomp......
  • Combs v. State
    • United States
    • Florida Supreme Court
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    ...the same manner as expressed by the United States Supreme Court in Hitchcock. The issue is identical to that presented in Thompson v. Dugger, 515 So.2d 173 (Fla.1987). In the instant case, the jury was instructed in a nearly identical manner as in Hitchcock. Further, the trial judge's order......
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    ...petition, that Booth v. Maryland, 482 U.S. 496, 502-03, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), applied retroactively); Thompson v. Dugger, 515 So.2d 173, 175 (Fla.1987) (concluding, in appeal from denial of successive 3.850 motion, that Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1......
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    ...for separate offenses arising from a single criminal transaction or episode, was to be applied retroactively); Thompson v. Dugger, 515 So.2d 173, 175 (Fla.1987) (concluding that Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), which held that instruction to ......
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