Wilson v. State
| Decision Date | 05 October 1972 |
| Docket Number | No. R--331,R--331 |
| Citation | 271 So.2d 166 |
| Parties | Willie Pinkney WILSON and Fulton Lewis Terrell Wilson, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Selig I. Goldin, of Goldin & Turner, Gainesville, for appellants.
Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
ON MOTION TO RELINQUISH JURISDICTION
Appellants have filed a motion to relinquish jurisdiction of this appeal in a post conviction proceeding to the trial court so that the trial court may impose a life sentence upon them in lieu of the death sentence which had earlier been imposed upon them for murdering Henry Ashton Bragg in Marion County, Florida, by bludgeoning him to death with a drift punch or coke bottle during a gasoline service station robbery.
That judgment was affirmed by the state supreme court at 225 So.2d 321. On June 28, 1971 the United States Supreme Court reversed the death sentences imposed on appellants because said sentences were imposed in violation of the Witherspoon doctrine. Wilson v. Florida, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 858. Therefore by force of the U.S. Supreme Court's decision, the appellants have not been under the death penalty since June 28, 1971.
Following the Florida Supreme Court's remand of the case on September 15, 1971 for retrial on the penalty question pursuant to the mandate of the U.S. Supreme Court and before such penalty trial was held, appellants elected to file a post conviction motion challenging the legality of their conviction on the ground that they were denied effective assistance of counsel at their initial trial. That motion to set aside their conviction was denied by the trial court on June 6, 1972 and it is that order of denial that is presently the subject matter of this appeal.
The appellants have still not been sentenced pursuant to their conviction. They are not now under a death sentence. More importantly, they were not under sentences of death on June 29, 1972 when Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, was decided. Similarly, they were not under death sentences when Donaldson v. Sack was decided by the Florida Supreme Court on July 17, 1972, 265 So.2d 499, when Anderson v. State was decided by that court on September 8, 1972, 267 So.2d 8 and lastly appellants were not under death sentences when the broad brush of In re Baker was applied on September 26, 1972, 267 So.2d 331 notwithstanding a statement to the contrary at page 333 of the Baker decision. Nor did the United States District Court, middle district, sub nom. Adderly v. Wainwright vacate these appellants' death sentences on August 1, 1972 because their death sentences had earlier been vacated by the United States Supreme...
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