White v. Dugger, 76307

• Decision Date: 17 July 1990
• Docket Number: No. 76307,76307
• Citation: 565 So.2d 700
• Parties: 15 Fla. L. Weekly S392 Jerry WHITE, Petitioner, v. Richard L. DUGGER, etc., Respondent.
• Court: Florida Supreme Court

Page 700

565 So.2d 700

15 Fla. L. Weekly S392

Jerry WHITE, Petitioner, v. Richard L. DUGGER, etc., Respondent.

No. 76307.

Supreme Court of Florida.

July 17, 1990.

Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas, Chief Asst. CCR, Gail Anderson, Staff Atty., and Judith J. Dougherty, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for respondent.

PER CURIAM.

This is a petition for writ of habeas corpus and request for stay of execution. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

White was convicted of robbing a small grocery store and shooting to death a customer. The murder conviction and sentence of death were affirmed. White v. State, 446 So.2d 1031 (Fla.1984). Subsequent to the signing of the first death warrant, White filed an application for stay of execution and a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The stay was granted and the motion denied following an evidentiary hearing. The denial was affirmed. White v. State, 559 So.2d 1097 (Fla.1990). Following the signing of the second death warrant, White's successive rule 3.850 motion was denied without an evidentiary hearing; that order has been appealed.

White raises a number of claims, which we reject for the following reasons:

CLAIM I

TRIAL COUNSEL'S VIOLATION OF HIS DUTY OF LOYALTY TO HIS CAPITAL CLIENT, HIS OBVIOUS RACISM WHILE REPRESENTING THIS BLACK CLIENT, HIS COMPLETE INDIFFERENCE TO HIS CLIENT'S FATE, HIS INTEREST IN PROTECTING HIMSELF RATHER THAN HIS CLIENT, AND HIS GROSSLY IMPROPER, TRAGIC, UNPROFESSIONAL, AND UNETHICAL, PENALTY PHASE ACTIONS LITERALLY CRY OUT FROM THE DIRECT APPEAL RECORD AND DEMAND THAT THIS COURT ISSUE AN ORDER THAT "WILL DO JUSTICE," VACATING MR. WHITE'S UNCONSTITUTIONAL CAPITAL

CONVICTION AND DEATH SENTENCE.

This claim of trial counsel's ineffectiveness is procedurally barred; it was raised in White's first rule 3.850 motion and was rejected by the trial court and this Court. White's additional assertion that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness is without merit.

CLAIM II

MR. WHITE WAS EFFECTIVELY DENIED HIS RIGHT TO A MEANINGFUL DIRECT APPEAL BY TRIAL COUNSEL'S UNREASONABLE FAILURES TO PRESERVE MERITORIOUS ISSUES FOR APPELLATE REVIEW AND BY APPELLATE COUNSEL'S BLATANT INEFFECTIVENESS AS REQUIRING CONSIDERATION OF THESE MERITORIOUS ISSUES, IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS.

This claim is procedurally barred; it too was raised in Mr. White's first rule 3.850 motion and was rejected by both the trial court and this Court.

CLAIM III

THIS COURT'S DISPOSITION OF MR. WHITE'S CASE ON DIRECT APPEAL AFTER STRIKING TWO AGGRAVATING FACTORS CANNOT BE SQUARED WITH CLEMONS V. MISSISSIPPI AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE STATE LAW PLACED EXCLUSIVE SENTENCING AUTHORITY WITH THE TRIAL COURT JURY AND JUDGE AND THIS COURT THUS COULD NOT AND IN THIS CASE DID NOT REWEIGH AGGRAVATION AND MITIGATION, AND DID NOT ENGAGE IN ANY APPROPRIATE HARMLESS ERROR REVIEW UPON THE STRIKING OF AGGRAVATING CIRCUMSTANCES.

In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the United States Supreme Court reviewed a decision of the Mississippi Supreme Court, which upheld Clemons' death sentence and also recognized that the state's "especially heinous" aggravating factor had been unconstitutional until given a proper limiting construction. The federal Court remanded the case for resentencing because it could not tell 1) whether the state court in reweighing the aggravating and mitigating factors had considered the invalid factor in its unlimited form, 2) whether the court had created an automatic rule that whenever an aggravating factor has been invalidated the sentence may be affirmed as long as one valid aggravating factor remains, and 3) whether the court had properly applied harmless error analysis.

White claims that this Court violated Clemons when it affirmed his death sentence after invalidating two out of four aggravating factors. In affirming White's sentence on direct appeal, we stated:

When there are one or more valid aggravating factors which support a death sentence, in the absence of any mitigating factor(s) which might override the aggravating factors, death is presumed to be the appropriate penalty.

White, 446 So.2d at 1037. Regardless of this language, we are convinced that this Court properly applied a harmless error analysis on direct appeal. To remove any doubt, we again apply this analysis and conclude that the trial court's ruling would have been the same beyond a reasonable doubt even in the absence of the invalid aggravating factors.

CLAIM IV

AFTER STRIKING TWO AGGRAVATING CIRCUMSTANCES ON DIRECT APPEAL AS HAVING BEEN IMPROPERLY APPLIED, THIS COURT DID NOT CONSIDER THAT, ALTHOUGH THE JURY PLAYS A CENTRAL ROLE IN FLORIDA'S CAPITAL SENTENCING SCHEME, MR. WHITE'S JURY WAS NOT INSTRUCTED UPON THE VERY PRINCIPLES WHICH LED THIS COURT TO STRIKE TWO OF

FOUR AGGRAVATING CIRCUMSTANCES AND THUS THAT THE JURY INSTRUCTIONS ON AGGRAVATING CIRCUMSTANCES RESULTED IN THE OVERBROAD AND NON-DISCRETION CHANNELING APPLICATION OF AGGRAVATING FACTORS, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

White's claim that the jury was improperly instructed concerning the above aggravating factors is procedurally barred; it should have been raised on direct appeal had it been properly preserved.

CLAIM V

THE EIGHTH AMENDMENT WAS VIOLATED BY THE SENTENCING COURT'S REFUSAL TO FIND THE MITIGATING CIRCUMSTANCES CLEARLY SET OUT IN THE RECORD AND FUNDAMENTAL ERROR HAS BEEN SHOWN, WARRANTING...