Witt v. State

Decision Date24 July 1980
Docket NumberNo. 58329,58329
PartiesJohnny Paul WITT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Jack O. Johnson, Public Defender, and Paul C. Helm and James R. Wulchak, Asst. Public Defenders, Bartow, for appellant.

Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.


In 1974, Johnny Paul Witt was tried and convicted of first-degree murder for the killing of Jonathan Kushner. The trial judge accepted the jury's recommendation that Witt be sentenced to death and, on appeal to this Court, the trial court's judgment of conviction and sentence were affirmed. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); reh. denied, 434 U.S. 1026, 98 S.Ct. 755, 54 L.Ed.2d 774 (1978). Witt subsequently sought post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, 1 which was denied. He now seeks review of that denial.

By this appeal Witt raises essentially six issues, all of which he admits either were raised in the direct appeal from his conviction and sentence, or could have been raised at that time. He predicates his appeal on alleged changes in case law since his first appeal was concluded, asserting the right to obtain the benefits of subsequent, favorable case law developments relating to capital punishment and to criminal law generally. The particular changes which Witt presents for our consideration are these:

(1) an alleged change in the law relative to sentencing, reflected primarily in Elledge v. State, 346 So.2d 998 (Fla. 1977), concerning the significance of improper aggravating circumstances where at least one mitigating circumstance has been found to exist;

(2) an alleged change in the law relative to sentencing, reflected in Hall v. State, 381 So.2d 683 (Fla. 1979), concerning the requirements for a written enumeration of the findings in aggravation and mitigation;

(3) an alleged change in the law relative to sentencing, reflected in Shue v. State, 366 So.2d 387 (Fla. 1978), and in Burch v. State, 343 So.2d 831 (Fla. 1977), concerning definitions for the mitigating circumstances set out in sections 921.141(6)(b), (e), and (f), Florida Statutes (1979);

(4) an alleged change in the law, reflected in Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), cert. granted, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980), making inadmissible in a sentencing proceeding statements made during a court-ordered psychiatric examination not preceded by Miranda warnings;

(5) an alleged change in the law, reflected by an aggregation of the individual opinions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), requiring that the state, before imposing the death penalty, establish that the defendant intended to kill the victim; and

(6) an alleged change in the law, reflected in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), relating to the efficacy of a defendant's waiver of his right to counsel.

The underlying issue posed by this appeal, however, concerns the significance of a change in decisional law on the finality of a fully-adjudicated capital case. Simply stated, we are confronted with a threshold decision as to when a change of decisional law mandates a reversal of a once valid conviction and sentence of death. The issue is a thorny one, requiring that we resolve a conflict between two important goals of the criminal justice system ensuring finality of decisions on the one hand, and ensuring fairness and uniformity in individual cases on the other within the context of post-conviction relief from a sentence of death.

The importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality casts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole. 2

Post-conviction relief procedures, such as those authorized by our Rule 3.850, offer an avenue to challenge a once final judgment and sentence in limited instances, and for limited reasons. The United States Supreme Court recently noted:

It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice. *

United States v. Addonizio, 442 U.S. 178, 184 & n.11, 99 S.Ct. 2235, 2240 & n.11, 60 L.Ed.2d 805 (1979) (footnote omitted). See also Linkletter v. Walker, 381 U.S. 618, 637-38, 85 S.Ct. 1731, 1741-42, 14 L.Ed.2d 601 (1965). The law's concern for finality of decisions is in no way diminished by the availability and utilization of a collateral remedy such as Rule 3.850. 3

The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction relief is necessary to avoid individual instances of obvious injustice. Considerations of fairness and uniformity make it very "difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases." 4

Unfortunately, drawing or defining the line where finality gives way to fairness based on a change of law is no simple task. The United States Supreme Court has struggled with this problem, developing what has been characterized as a "staggeringly intricate body of law governing the question whether new constitutional doctrines should be 'retroactively' or 'prospectively' applied." 5 Indeed, one former member of that court has characterized the course of law in this area as "almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim." Mackey v. United States, 401 U.S. 667, 676, 91 S.Ct. 1160, 1172, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part).

Without attempting to survey this relatively unsatisfactory body of law, 6 we note that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Brewer v. State, 264 So.2d 833, 834 (Fla. 1972); State v. Steinhauer, 216 So.2d 214, 219 (Fla. 1968), cert. denied, 398 U.S. 914, 90 S.Ct. 1698, 26 L.Ed.2d 79 (1970).

A determination that a new principle of law should be fully retroactive may mandate its recognition and application on collateral review. Thus, in this proceeding we must balance the interests of fairness and uniformity for Johnny Paul Witt against the interests of decisional finality, in the context of alleged subsequent favorable changes of law. The balancing problem is presented squarely here, for there are no bases for Witt's collateral attack which are independent of alleged law changes.

The general difficulty of resolving the conflicting interests presented by law changes is heightened by the fact that this is a capital case. Uniquely, capital punishment, on the one hand, connotes special concern for individual fairness because of the possible imposition of a penalty as unredeeming as death. 7 On the other hand, both the frequency of Florida "law changes" involving our relatively new capital punishment statute, 8 and the unavoidable delay in deciding these cases, 9 suggest that finality will be illusory if each convicted defendant is allowed the right to relitigate his first trial upon a subsequent change of law. Cf. Godfrey v. Georgia, --- U.S. ----, ----, 100 S.Ct. 1759, 1779, 64 L.Ed.2d 398 (1980) ("(T)he majority today endorses the argument that I thought we had rejected in Gregg : namely, 'that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it.' ") (White, J., dissenting).

We know that the outcome of a capital case may depend upon the speed with which the trial and the appellate process progress. A variety of reasons may account for the time disparities involved in concluding judicial labors with regard to individuals found guilty of capital crimes and sentenced to death. Trials are delayed for one reason or another. Appeals are not prosecuted with equal diligence. Our ability to review any case varies with the complexity of the issues the amount of disagreement among the members of the court, the arrival of cases presenting comparable or relevant legal issues, the volume of our other work, and numerous other obvious reasons. It has been suggested that delay could result from a factor as minor as a common cold. 10

Because the mere passage of time brings inevitable, attendant refinements of the law, disparities of result on direct review are unavoidable. 11 We know, then, that if there were to be absolute uniformity and fairness in the application of our capital...

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