Wilson v. Wainwright

• Citation: 474 So.2d 1162,10 Fla. L. Weekly 390
• Decision Date: 15 August 1985
• Docket Number: Nos. 67190,67204,s. 67190
• Court: Florida Supreme Court
• Parties: 10 Fla. L. Weekly 390 Sam WILSON, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents. Sam WILSON, Jr., Appellant, v. STATE of Florida, Appellee.

Page 1162

474 So.2d 1162

10 Fla. L. Weekly 390

Sam WILSON, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.

Sam WILSON, Jr., Appellant, v. STATE of Florida, Appellee.

Nos. 67190, 67204.

Supreme Court of Florida.

Aug. 15, 1985.

Ronald A. Dion of Entin, Schwartz, Dion and Scalfani, North Miami Beach, for petitioner/appellant.

Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondents/appellee.

EHRLICH, Justice.

This case is before us on appeal from the trial court's denial of appellant's motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a petition for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

The facts of this case and the issues raised on direct appeal are contained in this Court's decision in Wilson v. State, 436 So.2d 908 (Fla.1983). This Court granted a stay of execution by order dated June 20, 1985, in order to fully address the merits of these collateral attacks on the legality of the conviction and sentence. We affirm the trial court's denial of relief pursuant to rule 3.850, but we grant the writ of habeas corpus and order appointment of counsel to afford petitioner a new direct appeal before this Court.

Appellant raised ten issues before the trial court in seeking relief pursuant to rule 3.850. The trial court struck five of these issues and parts of two others as improperly urged because they could have been raised on direct appeal. This was entirely proper. Raulerson v. State, 462 So.2d 1085 (Fla.1985). The trial court then ruled that those issues not dismissed did not demonstrate appellant's entitlement to relief, citing the standard 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). Those issues involve strategic decisions as to investigation and/or presentation of evidence of prior altercations between the defendant and two of the victims of his attack, the presentation of evidence possibly relevant to mitigation, and the use of a certified legal intern in the preparation and presentation of the defense. Strategic decisions of counsel will not be second-guessed on collateral attack. We find that the use of the legal intern was within the express limitations of such involvement set forth in The Florida Bar Integration Rule Article XVIII, I(A) and V(A)(3). We agree with the trial court that the allegations before it did not constitute a deficient performance which deprived defendant of a "fair trial, a trial whose result is reliable." Strickland, 104 S.Ct. at 2064.

Petitioner seeks habeas corpus relief on grounds that his appellate counsel was ineffective. The criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel: Petitioner must show 1) specific errors or omissions which show that appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. Johnson v. Wainwright, 463 So.2d 207 (Fla.1985). We find that petitioner's allegations fulfill this test and that petitioner is entitled to a new appeal.

Petitioner's meritorious allegations involve the inadequacy of research and briefing of the appeal and the gross ineffectiveness of oral argument. Appellate counsel, R.E. Conner, briefed only five issues in the initial brief on the merits. At no time did he raise or discuss any issue relating to the sufficiency of the evidence to support the jury's finding of premeditation in either death. This issue was sufficiently apparent from the cold record that the two dissenting justices raised it in their separate opinions. Wilson, 436 So.2d at 912 (Overton, J., dissenting), 913 (McDonald, J., dissenting).

The decision not to raise this issue cannot be excused as mere strategy or allocation of appellate resources. This issue is crucial to the validity of the conviction and goes to the heart of the case. If, in fact, the evidence does not support premeditation petitioner was improperly convicted of first degree murder and death is an illegal sentence. To have failed to raise so fundamental an issue is far below the range of acceptable appellate performance and must undermine confidence in the fairness and correctness of the outcome.

Additionally, Conner failed to address the propriety of the death penalty as applied in either his initial brief or his reply brief, even though the state raised the issue in its answer brief. After oral argument, this Court ordered Conner to file a supplemental brief addressing the death penalty. The result was a descriptive listing of cases in which this Court had discussed the two aggravating factors in dispute and a passing reference to one possible statutory mitigating circumstance. The application of case law to the facts before the Court was cursory and totally lacking in persuasive advocacy.

The propriety of the death penalty is in every case an issue requiring the closest scrutiny. Any appellate counsel who, after being ordered to address the issue, responds with such inadequate, unpartisan brief has failed to grasp the vital importance of his role as a champion of his client's cause. We do not approve of counsel urging frivolous claims, nor do we require that every colorable claim, regardless of relative merit, be raised on appeal. However, the basic requirement of due process in our adversarial legal system is that a defendant be represented in court, at every level, by an advocate who represents his client zealously within the...