Whitney v. State, No. 65-401

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before HENDRY; BARKDULL
• Citation: 184 So.2d 207
• Parties: Dennis Manaford WHITNEY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 65-401
• Decision Date: 08 March 1966

Page 207

184 So.2d 207 Dennis Manaford WHITNEY, Appellant,
v.
STATE of Florida, Appellee. No. 65-401. District Court of Appeal of Florida, Third District. March 8, 1966.
Rehearing Denied April 5, 1966.

Page 208

Richard Kanner, Miami, for appellant.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

Before HENDRY, C.J., and TILLMAN PEARSON and BARKDULL, JJ.

BARKDULL, Judge.

The appellant in this cause was convicted of first degree murder without a recommendation of mercy, and received a capital sentence in accordance therewith. The propriety of this judgment of conviction has been before the courts of this State on several occasions (see: Whitney v. State, Fla.1961, 132 So.2d 599; Whitney v. Cochran, Fla.1963, 152 So.2d 727), and was before the Federal court (see: Whitney v. Wainwright, 5th Cir.1964, 339 F.2d 275).

Subsequent to the last proceeding in the Federal court, a petition for relief, pursuant to Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, was filed in the trial court. Following a response by the State, the trial judge entered an order finding that all matters raised in the petition were res adjudicata because of prior appellate or habeas corpus proceedings. An appeal from this order was taken to the Supreme Court of Florida, pursuant to the provisions of the Florida Constitution lodging jurisdiction in that court to review capital sentences. See: § 4, Art. V, Florida Constitution, F.S.A. Thereafter, following a motion to transfer by the State, the cause was transferred to this court for determination by order of the Supreme Court of Florida.

By his brief, the appellant contends that the court committed error in holding that the prior appellate or habeas corpus proceedings were res adjudicata, this being a criminal matter, and his judgment of conviction

Page 209

is subject to collateral attack for the following reasons: 1. The appellant was denied due process of law on the issue of mercy because of excessive and prejudicial pre-trial publicity. 2. The closing argument of the State Attorney that a verdict with a recommendation of mercy would allow the appellant to be paroled was a denial of due process on the question of mercy. 3. The court cannot accept a guilty plea without first ascertaining from the defendant that he is aware of the consequences of his plea and his constitutional guarantees. 4. The appellant was deprived of a fair trial on the question of mercy, because the jury did not hear defense psychiatric witnesses. 5. Extra-judicial confessions made by the defendant without counsel are inadmissible evidence.

Proceedings under Criminal Procedure Rule No. 1 have been held to be civil. See: State v. Weeks, Fla.1964, 166 So.2d 892; Barton v. State, Fla.App.1965, 176 So.2d 597. Principles of res adjudicata applicable to civil matters would prevent the same issues being raised in a subsequent proceeding if they Actually were, should have or could have been raised in a prior proceeding. See: Hay v. Salisbury, 92 Fla. 446, 109 So. 617; Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142; 19 Fla.Jur., Judgments and Decrees, § 120. However, res adjudicata in a Criminal Procedure Rule No. 1 matter should be applicable only to those items Actually raised in the prior proceedings, and not to new grounds. In this connection, see: Johnson v. Lindsey, 89 Fla. 143, 103 So. 419; Washington v. Mayo, Fla.1955, 77...