Friday, May 14, 2010
Pamela Perera v. United States Fidelity and Guaranty Company (SC08-1968)
SUMMARY: 7-0 Decision. Opinion by Pariente, J. The Court answered a certified question from the Eleventh Circuit Court of Appeals regarding claims against an insurance company that negotiates in bad faith. While the insurance company, U.S. Fidelity and Guaranty Company, did operate in bad faith; its bad faith did not cause the damages that Parera was seeking. Therefore, Parera could not recover. The Court answered the certified question in the negative and returned the case to the Eleventh Circuit Court of Appeals.
Editor's Note: I have reprinted the facts and procedural history in its entirety (except for footnotes). The facts and procedural history section is quite lengthy and important to understanding the case.
This case, pending in the federal court, involves interpretation of Florida law on third-party bad-faith causes of action in insurance cases. We have jurisdiction because the Eleventh Circuit Court of Appeals certified two questions, which are “determinative of the cause and for which there is no controlling precedent.” Art. V, § 3(b)(6), Fla. Const. Although in this case the Eleventh Circuit has asked us broad questions regarding common law bad-faith cause of actions under Florida law, we have determined that, based on the unique circumstances of this case, the answer to whether the appellant, Pamela Perera (“Perera”), has an actionable bad-faith case against appellee, United States Fidelity and Guaranty Company (“USF&G”), allows for a more narrow framing of the question: MAY A CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH AGAINST AN INDEMNITY INSURER BE MAINTAINED WHEN THE INSURER’S ACTIONS WERE NOT A CAUSE OF THE DAMAGES TO THE INSURED OR WHEN THE INSURER’S ACTIONS NEVER RESULTED IN EXPOSURE TO LIABILITY IN EXCESS OF THE POLICY LIMITS OF THE INSURED’S POLICIES?
The jury in this case found that USF&G acted in bad faith and that finding is not controverted. The issue raised by the rephrased certified question is whether the insured sustained recoverable damages as the result of the bad faith. We answer the rephrased certified question in the negative because, based on the facts of this case, the insurer’s actions neither caused the damages claimed by the insured nor resulted in exposure of the insured to liability in excess of the policy limits of the insureds’ polices.
FACTS AND PROCEDURAL HISTORY
Perera’s husband, Mitchell Perera, an employee of Estes Express Lines Corporation (“Estes”), was crushed to death by a piece of equipment during the course of his employment. As the personal representative of his estate, Perera filed a wrongful death suit against Estes and specified named employees of Estes (“employees”) in Hillsborough County Circuit Court (“state trial court”). At the time of Mitchell Perera’s death, Estes maintained three insurance policies: a commercial liability policy (insuring only the employees of Estes) issued by Cigna Property and Casualty Insurance Company (“Cigna”) with a limit of $1 million, subject to a $500,000 deductible; an excess worker’s compensation employer’s liability policy (insuring only Estes) issued by USF&G with a limit of $1 million after Estes’ self-insured retention of $350,000; and an umbrella excess liability policy (insuring both Estes and its employees) issued by the Chubb Group of Insurance Companies (“Chubb”) with a limit of $25 million. All three policies required Estes to provide its own defense.
In setting forth the facts, we rely on the Eleventh Circuit’s opinion as well as facts in the trial court record from the bad-faith case.
After learning of Perera’s lawsuit, USF&G denied coverage, asserting that the intentional acts exclusion contained in the USF&G policy precluded coverage of Perera’s claim against Estes. In March 2001, Perera formally demanded $12 million to settle the case. About a week later, Perera, Estes, and the three insurance companies met to mediate the case. During mediation, when USF&G insisted on its coverage defense and refused to tender its policy limits of $1 million, USF&G was asked to leave the mediation. At mediation, Cigna offered $500,000 (representing the policy limits of $1 million minus Estes’ $500,000 deductible), Estes offered $750,000, and Chubb offered $1.25 million. However, the last demand from Perera was $8 million, and the case failed to settle at mediation.
In the months that followed, Chubb took an active role in handling the settlement negotiations. According to trial testimony and correspondence written by Chubb, after mediation Perera had demanded $8 million in total to settle the case and Chubb offered $3.5 million. There is some indication that USF&G was willing to participate in a settlement by contributing $100,000 but that it continued to rely on its coverage defense in declining to offer its policy limits. Then, in early August 2001, Perera demanded $7 million in total and Chubb offered $4.25 million
for a global settlement to settle the entire case, provided that the right to seek indemnity, contribution, or reimbursement from USF&G be preserved.
In late August 2001, Perera, Estes, and its employees entered into a “Stipulation to Settle” for $10 million.4 The stipulation provided that Estes and its employees would pay $5 million and provide a written waiver of the workers’ compensation lien. Although not stated in the stipulation, the negotiated settlement provided that the $5 million would be paid as follows: $750,000 from Estes,5 $500,000 from Cigna, and $3.75 million from Chubb. The remaining $5 million was to be sought in a lawsuit against USF&G, which Estes agreed to either bring or assign to Perera. Perera agreed in the settlement not to execute or record the judgment pending resolution of the lawsuit against USF&G. Perera further agreed that she would issue a satisfaction of judgment at the conclusion of the lawsuit, even if the suit did not result in the recovery of any additional proceeds.
In accordance with the provisions in the stipulation, the state trial court held a limited evidentiary hearing for the purpose of determining that the stipulation
was entered “in good faith” and that the amount of the settlement was reasonable. After finding that the settlement was in good faith and that the amount of the settlement was reasonable, the state trial court approved the stipulation. Pursuant to the terms of the stipulation, a final judgment was then entered in the amount of $10 million against Estes and its employees. After the approval of the settlement and the entry of the judgment, Perera was paid $5 million total by Estes, Cigna, and Chubb, each in accordance with the amount previously agreed to as part of the settlement. Perera executed a release of any further claims against Chubb. In March 2002, Perera, as Estes’ assignee, brought suit in the state trial court against USF&G for the remaining $5 million of the consent judgment, asserting two causes of action: breach of contract (seeking recovery of the $1 million policy limits) and bad faith (seeking recovery of the remaining balance). USF&G removed the case to federal court, after which the federal district court granted summary judgment in favor of Perera on the breach of contract claim, requiring USF&G to pay its policy limit of $1 million. USF&G has not challenged the decision regarding coverage and has paid $1 million, leaving $4 million of the consent judgment outstanding.
With regard to the bad-faith cause of action, the federal district court found that no bad-faith action existed because Estes still had over $21 million in
insurance coverage from Chubb at the time of settlement. The district court entered summary judgment in favor of USF&G, holding that without an excess judgment there can be no cause of action for bad faith. Perera appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit determined that the threshold factual issue of whether USF&G acted in bad faith held the potential to moot the case and remanded to the federal district court to have a jury consider that limited issue.
At trial in the federal district court, the jury instructions contained stipulated facts, including that the $10 million consent judgment was reasonable in amount. The jury was instructed that “[a]n insurance company acts in bad faith in failing to settle a claim when, under all of the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured with due regard for its interests.” The jury was given the following factors to evaluate in determining whether USF&G acted in bad faith: (1) “the efforts taken by USF&G to resolve the coverage dispute promptly or in such a way as to limit any potential prejudice to Estes”; (2) “the substance of the coverage dispute or the weight of legal authority on the coverage issue that existed at the time of the dispute”; (3) “USF&G’s diligence and thoroughness in investigating the facts specifically pertinent to coverage”; and (4) “efforts made by USF&G to settle the liability claims in the face of the coverage dispute.” The jury was instructed that coverage had been
determined to exist, but that factor was not controlling on the question of bad faith. However, with regard to the issue of damages, the jury was instructed that should it find USF&G liable for bad faith, “the issue of any damages will be decided at a later date.” The jury found that USF&G acted in bad faith. After the case returned to the Eleventh Circuit, the Eleventh Circuit agreed with the federal district court that there was no excess judgment against the insured because, as of the time the settlement agreement was negotiated, Estes had $1 million in coverage from the Cigna policy, $1 million in coverage from USF&G’s policy, and $25 million from the Chubb policy, but the judgment entered was for only $10 million. Perera, 544 F.3d at 1275-76. The Eleventh Circuit further reasoned that Estes was never exposed to liability in excess of its policy limits because any such exposure was covered by the Chubb insurance, which had limits of $25 million. Id. After determining that Estes faced no liability above its existing policy limits (and accordingly no excess judgment), the Eleventh Circuit stated that it was not clear whether an excess judgment is a necessary part of a claim for bad faith under Florida law. Id. at 1276.
The Eleventh Circuit then noted that USF&G made an alternative argument that even if an excess judgment is not required, Perera’s bad-faith claim was barred because the insured was never exposed to liability in excess of the limits of the policies. Id. at 1277. The court considered Perera’s sole argument on this point,
which was that Estes was required to advance sums for which it would not otherwise have been liable in order to persuade Chubb to contribute to the settlement, even though the $1 million USF&G limit had not been paid. Id. This argument was rejected for two reasons: first, the record was clear that Chubb was committed to settling and did not refuse to do so before USF&G’s $1 million was paid; and second, even if Estes had paid the $1 million, it would have imposed on Estes an exposure of only $1 million. Id. The Eleventh Circuit, after rejecting Perera’s arguments, concluded that “Estes was never exposed to liability in excess of the limits of its several polices, because any exposure above USF&G’s limits was covered by the Chubb coverage with limits of $25 million.” Id.6
The Eleventh Circuit held that Perera had waived two arguments. First, it noted that Chubb, the excess carrier in the instant case, had not asserted a bad-faith claim against USF&G and did not assign any such claim to Perera, and Perera did
not argue entitlement to assert any rights of Chubb by virtue of subrogation or otherwise. Id. at 1277 n.2. Thus, the Eleventh Circuit held that any such argument was deemed abandoned. Id.
Second, it noted that Perera could have raised a potential factual issue of liability for punitive damages, but that any such argument had been waived. Id. at 1277 n.4.
ANALYSIS
We begin with a brief overview of the relevant and well-established bad-faith law in this State. We then discuss the types of circumstances that have been recognized by case law as giving rise to a third-party bad-faith cause of action (we do not intend to limit the types of bad-faith claims that may be brought in other cases to only the case law discussed in this opinion. We discuss the case law only to determine whether the principles from prior bad-faith case law may be relevant to the facts of this case). Finally, we examine the application of the law of bad faith to the facts of this case.
We start with the basic proposition that when an insurer is handling claims against its insured, it “has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Berges v. Infinity Ins. Co., 896 So. 2d 665, 668 (Fla. 2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980)). This duty includes an obligation to settle “where a reasonably prudent
person, faced with the prospect of paying the total recovery, would do so.” Boston Old Colony Ins. Co., 386 So. 2d at 785. Breach of this duty may give rise to a cause of action for bad faith against the insurer.
The reasoning of the equitable subrogation cases is that the primary insurer is “held responsible to the excess insurer for improper failure to settle, since the position of the latter is analogous to that of the insured when only one insurer is involved.” Id. In other words, the excess insurer “stands in the shoes of the insured,” to whom the primary insurer directly owes a duty to act in good faith. U.S. Fire Ins. Co., 600 So. 2d at 1151. Accordingly, when the primary insurer’s bad-faith refusal to settle causes the excess insurer to pay an amount greater than it would have had to pay if the primary insurer had acted in good faith, the excess insurer is entitled to maintain a common law bad-faith claim against the primary insurer. See Ranger, 389 So. 2d at 277. In this circumstance, there is an explicit requirement of a causal connection between the primary insurer’s bad-faith actions and the loss or damage suffered by the excess insurer. See id. at 276-77; see also Vigilant Ins. Co. v. Cont’l Ins. Co., 35 Fla. L. Weekly D750, D751 (Fla. 4th DCA Mar. 31, 2010) (“[T]he insured, or the excess insurer standing in the shoes of the insured, is damaged because it has paid the judgment. It has paid money that it should not have been required to pay, absent the primary insurer’s bad faith.” (emphasis added)).
Although an excess judgment is not always a prerequisite to bringing a bad-faith claim, the existence of a causal connection is a prerequisite—in other words, the claimed damages must be caused by the bad faith. These principles are further illustrated by the case of North American Van Lines v. Lexington Insurance Co., 678 So. 2d 1325 (Fla. 4th DCA 1996), which involved indemnity policies. In North American, according to the allegations in the complaint,11 the insured claimed that both the primary insurer and the excess insurer failed to act in good faith in attempting to settle the claim against the insured.
In focusing on the insurer’s bad-faith failure to settle, forcing a payment of funds that would not otherwise have been expended had the insurers acted in good faith, the reasoning of North American is analogous to an equitable subrogation claim brought by an excess insurer. However, in North American, as in the equitable subrogation cases, there must be a causal connection between the damages claimed and the insurer’s bad faith. As can be seen under Florida law, an excess judgment is not always a prerequisite before a bad-faith case can be brought against the insurer. However, the damages claimed by the insured or its assignee must be caused by the insurer’s bad faith.
Application of Law to Facts
First, we begin with the classic bad-faith case involving a judgment in excess of the policy limits and conclude that in this case there is no excess judgment because the consent judgment was within the limits of all applicable policies.
Second, this case does not involve a Cunningham agreement where the insurer protects the insured by agreeing to try the bad-faith issues first and stipulate to an amount of damages. In this case, USF&G did not participate in any such agreement, and Chubb agreed to the settlement but did not agree to pay $10 million contingent on a finding of bad faith.
Third, we address the potential applicability of Coblentz. Although Coblentz agreements have arisen in the context of liability policies, where there is a breach of the duty to defend, we do not reject the application of Coblentz to indemnity policies. Perera argues that under Florida law, an insured is not required to put its personal assets on the line to settle a case in which its insurer acts in bad faith; rather, Perera asserts, the insured may enter into a settlement that assigns to the plaintiff the insured’s rights against the insurer in exchange for a release from personal liability. As a general proposition, Perera is correct; however, it does not apply to the facts of this case.
We next address the applicability of equitable subrogation, where the excess carrier pays monies it would not otherwise have been obligated to pay if the primary insurer had acted in good faith. This type of claim, which may be assigned to a third-party claimant, is not applicable here. In this case, Chubb did not assign to Perera any potential cause of action it may have had against USF&G by virtue of equitable subrogation. In fact, under the terms of the agreement, Perera actually executed a release of liability of any further claims against Chubb.
However, in this case, regardless of whether USF&G should have promptly paid its policy limits, there is no causal connection between USF&G’s bad faith and the damages claimed. The following facts are important to the resolution of this question: there was a substantial excess policy protecting Estes, Chubb was willing to negotiate a settlement without contribution from USF&G, Estes did not face exposure to liability in excess of the combined policies, and Chubb did not choose to either bring a bad-faith claim against USF&G or assign its claim to Perera.
CONCLUSION
Based on the facts of this case, we conclude that USF&G’s actions did not cause Estes to sustain the claimed damages of $4 million or to be exposed to liability in excess of its policy limits. Accordingly, Perera, as Estes’ assignee, is not entitled to recover the unpaid portion of the consent judgment. We answer the rephrased certified question in the negative and return this case to the Eleventh Circuit.
Court Wrap-Up: April 29, 2010
Two opinions this week.
Ronald Wayne Clark, Jr. v. State of Florida is a death-row inmate's appeal of the circuit court's denial of post-conviction relief under Fla. R. Crim. P. 3.851. The Court affirmed the circuit court's denial. In addition to the standard ineffective assistance of counsel claims, the Court also addressed the standard for granting a new trial due to newly discovered evidence.
Micah Louis Nelson v. State of Florida is another death-row inmate's appeal of the circuit court's denial of post-conviction relief under Fla. R. Crim. P. 3.851 as well as a petition for habeas corpus. The Court denied the ineffective assistance claims and petition for habeas corpus. There's good language in the opinion for criminal defense attorneys regarding ineffective assistance and the lawyer's duty especially as it relates to a defendant's competency.
Ronald Wayne Clark, Jr. v. State of Florida (SC07-2318)
SUMMARY: 7-0 Decision. Per Curiam Opinion. Mr. Clark was convicted of first-degree murder and sentenced to death. The circuit court denied Mr. Clark's motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.851. Mr. Clark appeals the circuit court's order to the Court claiming his trial counsel was ineffective and there is newly discovered evidence that entitles him to a new trial. The Court affirmed the circuit court‘s denial of Clark‘s 3.851 motion.
This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the postconviction court‘s order denying relief.
Ineffective Assistance of Counsel
As it relates to ineffective assistance of counsel, Clark first alleges counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. Next, Clark alleges that counsel was ineffective for failing to present evidence in support of mitigation. We find both these arguments without merit.
Generally, this Court‘s standard of review following a denial of a postconviction claim where the trial court has conducted an evidentiary hearing affords deference to the trial court‘s factual findings. ―[A]s long as the trial court‘s findings are supported by competent substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.‘ ‖ McLin v. State, 827 So. 2d 948, 954 n.4 (Fla. 2002) (quoting Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)). However, the circuit court‘s legal conclusions are reviewed de novo. See Sochor v. State, 883 So. 2d 766, 772 (Fla. 2004).
Relating to Clark‘s first claim, following the United States Supreme Court‘s decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied: (1) the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards; and (2) the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986).
As to the first prong, the defendant must establish that ―counsel made errors so serious that counsel was not functioning as the ‗counsel‘ guaranteed the defendant by the Sixth Amendment.‖ Strickland, 466 U.S. at 687; see also Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995). For the second prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. ―A reasonable probability is a probability sufficient to undermine confidence in the outcome.‖ Id. ―Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. at 687.
Regarding Clark‘s claims that Davis was ineffective for failing to present evidence of Clark‘s intoxication and his long-standing substance abuse and for failing to call experts to cast doubt on the physical evidence in the case, the postconviction court found that Clark failed to prove these claims. Clark alleges that counsel was ineffective for failing to investigate and present evidence that Hatch was the shooter. At the evidentiary hearing, Clark presented no evidence to support this claim. Trial counsel cannot be ineffective for failing to present evidence that did not exist at the time of trial. See, e.g., Pooler v. State, 980 So. 2d 460, 465 (Fla. 2008); Bell v. State, 965 So. 2d 48, 64 (Fla. 2007).
Clark alleges that his counsel was ineffective for failing to present mitigation at the penalty phase of his trial or, alternatively, for failing to convince Clark that he needed to present mitigation. We previously found that Clark made a knowing, intelligent waiver of his right to present mitigation. Clark, 613 So. 2d at 414. Because this claim was raised on direct appeal and found to be without merit, it is procedurally barred from being raised in postconviction proceedings. See Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1323 (Fla. 1994) (―Proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue.). Thus, in order to find counsel was deficient for failing to present mitigation, this Court must either find that counsel failed to investigate mitigation or was deficient in some other way prior to advising Clark.
Even if we allowed Clark to pierce his waiver, he cannot show counsel was deficient. Davis testified that the mitigating evidence collected ―cut both ways.‖ He further testified that both he and Clark agreed it would not be beneficial to present such evidence in the ―weaker‖ case. Because counsel did not fail to investigate mitigation, and because Clark was found competent, Davis cannot be found deficient for his strategy. Finally, Clark has failed to establish prejudice. The exact same mitigation was presented in the Nassau County trial, which led to the imposition of the death penalty. Although that conviction was overturned by this Court on direct appeal, this Court did not find that the trial court improperly rejected all the mitigation presented. Instead, we overturned the sentence because we found several of the aggravators unsupported by the record. Clark, 609 So. 2d at 514-15.
Newly Discovered Evidence
Clark raised this claim at the evidentiary hearing below, to which the State objected both procedurally and on the merits. In its order denying relief, the postconviction court found Clark‘s claim ―untimely in that the Defendant failed to raise this newly discovered evidence claim within one year of learning of its existence. The court noted that Clark waited two years to raise the claim. Further, the postconviction court found that Clark ―failed to establish that this evidence would have been admissible at [his] trial and that ―Thompson‘s testimony was not of such nature that it would probably produce an acquittal for the Defendant on retrial, especially in light of Thompson‘s credibility issues. (Michael Thompson, an inmate at Union Correctional Institution, testified that he met Clark in the Death Row library and that, while looking over Clark‘s paperwork, he recognized the name John Hatch as an inmate with whom he had served time at another prison. Thompson testified that Hatch told him that he‘d had to testify against Clark to save his own life and that he, Hatch, was the actual shooter.)
At trial, Clark himself testified that Hatch was the shooter and that he was merely an accomplice to the crimes. He also testified that Willis was a friend of his father and that he had no reason to shoot Willis. However, Thompson‘s description of the crime is not consistent with Clark‘s own version. Clark did not mention a drug deal or money. Further, Thompson‘s testimony that Hatch said they dumped the body immediately after shooting Willis is not consistent with the evidence presented at trial. Finally, Thompson is serving multiple sentences and would probably not serve as a credible witness at a new trial. Accordingly, the postconviction court properly denied Clark‘s claim of newly discovered evidence.
Having reviewed all of Clark‘s claims and finding them either to be barred or meritless, we affirm the postconviction court‘s order.
Micah Louis Nelson v. State of Florida (SC08-589)
SUMMARY: 7-0 Decision. Per Curiam Opinion. Mr. Nelson tried to have his first-degree murder convication and sentence of death vacated pursuant to Fla. R. Crim. P. 3.851. Mr. Nelson alleged, inter alia, that his trial counsel was ineffective. The circuit court denied post-conviction relief. Mr. Nelson appeals the circuit court's ruling and petitions the Court for a writ of habeas corpus. The Court affirmed the circuit court and denied the petition for writ of habeas corpus.
Editor's Note: The facts of this murder are particularly gruesome. The facts are included in the Court's opinion but have been excluded from this blog post.
Micah Louis Nelson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court‘s order and deny the petition for a writ of habeas corpus.
Editor's Note: The facts of this murder are particularly gruesome. The facts are included in the Court's opinion but have been excluded from this blog post.
Micah Louis Nelson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court‘s order and deny the petition for a writ of habeas corpus.
Nelson asserts the following four claims in his motion for postconviction relief regarding ineffective assistance of counsel: (1) trial counsel was ineffective by failing to move for a determination of competency; (2) trial counsel was ineffective by failing to call a witness in both the guilt and penalty phases of the trial to establish that Nelson lacked mens rea and to establish statutory mental mitigation in the penalty phase; (3) trial counsel was ineffective in the investigation and preparation of the penalty phase for failing to call a witness to establish statutory mitigation in the penalty phase; and (4) trial counsel was ineffective for failing to request that the court instruct the jury on statutory mitigation in the sentencing phase of Nelson‘s trial. As explained below, we affirm the trial court‘s denial of relief on all ineffective assistance of counsel claims raised by Nelson.
Failure to Move for a Competency Determination
In Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989), the United States Court of Appeals for the Eleventh Circuit considered an ineffective assistance claim regarding trial counsel‘s failure to determine the petitioner‘s competency to stand trial. Id. at 1486. The court stated, ―In order to demonstrate prejudice from counsel‘s failure to investigate his competency, a petitioner has to show that there exists ‗at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.‘ ‖ Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988)). Here, the record demonstrates that Nelson‘s trial counsel were experienced in handling capital cases and deemed Nelson competent to proceed based on Dr. Dee‘s evaluation and through their own contacts with Nelson. Trial counsel indicated during the evidentiary hearing that, based on face-to-face dealings with Nelson, it was never deemed necessary to move for a competency determination. Trial counsel also indicated that they would have filed a motion for a competency determination if Dr. Dee had clearly indicated that Nelson was incompetent. In addition, once the court ordered a competency determination, Nelson was found to be competent and capable of assisting his attorneys. Nelson‘s reliance on Dr. Dee‘s testimony that Nelson was ―marginally competent‖ appears to be misplaced because neither the allegation nor the record demonstrates that Dr. Dee ever deemed Nelson incompetent to proceed. Further, nothing in the record indicates that Nelson was incompetent at the time of trial or at the time of the murder.
Failure to Call Dr. Ashby
Regarding trial counsel‘s failure to call Dr. Ashby during the guilt phase of trial, Nelson relies on Bunney v. State, 603 So. 2d 1270 (Fla. 1992), where we considered whether it was error for the trial court to refuse to allow testimony concerning the defendant‘s alleged epileptic condition absent a plea of insanity. Id. at 1271. We reasoned that ―while evidence of diminished capacity is too potentially misleading to be permitted routinely in the guilt phase of criminal trials, evidence of ‗intoxication, medication, epilepsy, infancy, or senility‘ is not,‖ and held that ―evidence of certain commonly understood conditions that are beyond one‘s control . . . should also be admissible.‖ Id. at 1273. Nelson argues that his psychosis is a condition beyond his control, which was thus admissible. However, Nelson‘s reliance on Bunney is misplaced. Our precedent has firmly established the inadmissibility of evidence relating to mental capacity absent an insanity plea. See, e.g., Everett v. State, 97 So. 2d 241, 245-46 (Fla. 1957) (trial court did not err in refusing to give an instruction that the defendant‘s mental condition could be considered by the jury in deciding whether he was capable of forming a premeditated design even though he was not found insane); Ezzell v. State, 88 So. 2d 280, 282 (Fla. 1956) (―Since the plea of insanity was out and there was no defense based on mental defects less than insanity, there was no reason for . . . testimony or to labor the question.‖). In Chestnut v. State, 538 So. 2d 820 (Fla. 1989), we squarely addressed the admissibility of mental defects where the defendant does not raise an insanity defense. Id. at 820. Ultimately, we explained:
If [alleged] mental deficiencies are sufficient to meet the definition of insanity, these persons should be acquitted on that ground and treated for their disease. Persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else. If mitigation is appropriate, it may be accomplished through sentencing, but to adopt a rule which creates an opportunity for such persons to obtain immediate freedom to prey on the public once again is unwise. Id. at 825. Therefore, because Nelson did not raise an insanity defense, counsel cannot be found deficient for failing to call Dr. Ashby in the guilt phase.
Failure to Call a Witness to Evaluate Dr. Kremper’s Reports
We confronted this issue in Sexton v. State, 997 So. 2d 1073 (Fla. 2008), where we considered whether trial counsel was deficient for choosing not to present testimony from Dr. Maher that the defendant had a history of bizarre
sexual and criminal behavior. Id. at 1082-84. Trial counsel‘s theory was to demonstrate brain damage as documented by a PET scan instead of behavior that ―would be so inflammatory to the jury that it would counteract any possible mitigation.‖ Id. at 1084. Trial counsel reasoned that ―Dr. Maher‘s description of Sexton as a sadistic sexual psychopath, if heard by the jury, would be ‗tantamount to stipulating to death.‘ ‖ Id. We affirmed the postconviction court‘s order denying relief on this claim, finding that penalty phase counsel had made an informed strategic decision and that Sexton failed to demonstrate that counsel was deficient. Id. at 1085. Also, in Willacy v. State, 967 So. 2d 131 (Fla. 2007), we confronted a similar issue where we considered whether it was ineffective assistance for counsel to avoid presenting evidence that the defendant was a sociopath. Id. at 143. We found that the postconviction court‘s finding was supported by competent, substantial evidence and that counsel made a reasonable strategic choice, after investigation, to forego presentation of negative mitigating evidence. Id. at 144. We held that Willacy ―[had] not shown prejudice because presenting [the] mitigating evidence would likely have been more harmful than helpful.‘ Id. (quoting Evans v. State, 946 So. 2d 1, 13 (Fla. 2006)).
As illustrated, it is reasonable for trial counsel to forego evidence that, if presented in mitigation, could damage a defendant‘s chances with the jury.
Further, as we stated in Stephens v. State, 975 So. 2d 405 (Fla. 2007), ―[B]eing able to secure an expert witness to provide an opinion as to mental health mitigation during postconviction proceedings, which arguably could have been helpful . . . does not, in and of itself, render trial counsel‘s performance ineffective.‖ Id. at 415. Thus, trial counsel‘s decision not to present testimony that would have opened the door to Nelson‘s incestuous rape of his minor cousin cannot be deemed deficient. Because Nelson cannot demonstrate deficiency, we need not address whether he was prejudiced.
Trial Counsel’s Failure to Request the Court to Instruct the Jury on Statutory Mitigation in the Sentencing Phase
At the evidentiary hearing, trial counsel was asked whether he had read Bryant v. State, 601 So. 2d 529 (Fla. 1992); Stewart v. State, 588 So. 2d 416 (Fla. 1990); and Smith v. State, 492 So. 2d 1063 (Fla. 1986). Trial counsel testified that he did not recall the cases by their names, but that if they were capital cases, he had probably either read them or read summaries of them. Trial counsel then asked collateral counsel to state what proposition they stood for. The question went unanswered, and collateral counsel moved on to another line of questioning. From this exchange, it does not appear accurate to state that counsel was ignorant of controlling case law. The cases cited establish the right to jury instructions on the statutory mitigating circumstances of extreme mental or emotional disturbance. See, e.g., Bryant, 601 So. 2d at 533 (―We have previously stated that the Defendant is entitled to have the jury instructed on the rules of law applicable to this theory of the defense if there is any evidence to support such instructions.‘ ‖) (quoting Hooper v. State, 476 So. 2d 1253, 1256 (Fla. 1985)). Here, trial counsel testified that he was aware he was entitled to the instructions, but made a strategic decision not to request them, opting instead for the ―catch-all‖ instruction.
Because Nelson has not demonstrated that this decision was based on ignorance of the law as alleged, he is not entitled to relief.
Competency
Nelson next alleges that he was denied substantive due process because he was tried and convicted while mentally incompetent. This issue fails for two reasons. First, the issue is procedurally barred because he failed to raise it on direct appeal. Second, the record establishes that Nelson was competent at the time of the trial.
Pate Claim
Next, Nelson argues that the trial court erred by failing to sua sponte order a competency hearing. Pate v. Robinson, 383 U.S. 375 (1966), held that once the question of competency is raised, there is a constitutional entitlement to a hearing on the issue of competency. Also, Pate established a rebuttable presumption of incompetency upon a showing that the trial court failed to hold a competency hearing despite information raising a bona fide doubt as to the petitioner‘s competency. See James, 957 F.2d at 1570. However, Pate claims ―can and must
be raised on direct appeal.‖ Id. at 1572. Accordingly, this claim is procedurally barred because Nelson raised no such claim in his direct appeal.
HABEAS PETITION
We deny several of Nelson‘s claims without further discussion. First, we deny Nelson‘s claims that section 921.141, Florida Statutes (1997), is facially vague and overbroad and that the Florida death sentencing statute is unconstitutional as applied because they were not raised on direct appeal and are procedurally barred. Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992) (―Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been . . . or were raised on direct appeal.‖). We also deny
Nelson‘s competency claims because they are not ripe for review and were raised solely for preservation purposes. See State v. Coney, 845 So. 2d 120, 137 n.19 (Fla. 2003) (rejecting a claim that defendant was incompetent to be executed where he acknowledged that the claim was not yet ripe and was being raised only for preservation purposes). Nelson‘s claim that trial counsel was ineffective is denied because ineffective assistance of trial counsel is not cognizable in habeas corpus. Griffin v. State, 976 So. 2d 107, 108 (Fla. 3d DCA 2008) (―Habeas corpus is . . . the improper vehicle to address . . . the performance of trial counsel.‖). Finally, Nelson‘s claim that appellate counsel was ineffective for failing to raise a claim of cumulative effect of multiple errors and his claim that Florida‘s capital sentencing statute is unconstitutional on its face and as applied are each denied for lack of merit. Nelson‘s claim of cumulative effect is likewise without merit because each individual claim is without merit. See Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) (―[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.‖). Nelson‘s claim that Florida‘s capital sentencing statute is unconstitutional is without merit because we have previously found this claim to be without merit. See, e.g., Hudson v. State, 992 So. 2d 96, 118 (Fla. 2008).
We now address Nelson‘s remaining claim that appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove
the avoid arrest aggravator. For the reasons set forth below, Nelson is not entitled to habeas relief on this claim.
Unlike a claim of ineffective assistance of trial counsel, ineffective assistance of appellate counsel is cognizable in habeas corpus. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000).
Here, Nelson‘s complaints stem from the avoid arrest aggravator, which this court upheld because Nelson failed to preserve the issue for appeal. Nelson, 850 So. 2d at 525. However, the Court also discussed the merits of the claim, finding that ―Nelson expressly agreed with the police when they asked him if he killed Brace because he felt like she could identify him.‖ Id. at 526. Further, the Court found:
Although Nelson's admissions to police alone support his intentional elimination of Brace as a witness, other considerations also support the avoid arrest aggravator in this case. . . . The evidence in this case indicates that Nelson probably could have accomplished the burglary of Brace's home and sexual battery without killing her since Brace likely posed little physical resistance to Nelson: she was 78 years old; she was awakened from her bed in the middle of the night when she was wearing only a nightgown; and at that time her eyeglasses and hearing aids were on her night stand. Further, Nelson easily obtained access to her car. Therefore, it appears that once Nelson immobilized Brace by putting her in the trunk, he secured an uncontested getaway and there was no reason for him to kill her except to eliminate her as a witness.
Nelson's act of taking Brace to a remote area to kill her also lends support to the finding of the avoid arrest aggravator in this case. The evidence at trial was that Nelson drove to an isolated orange grove to kill Brace, but his plan was stymied when the car became stuck in the sand and he needed the assistance of other people to extricate the car. Nelson then drove to another orange grove where he killed Brace. The record reflects that Nelson's journey to two different orange groves was intended to find an isolated place to kill Brace, the sole witness to his crimes. We find no error in the trial court's finding of the avoid arrest aggravator because the defendant's own statements and actions corroborate evidence that the sole or dominant murder motive in this case was to silence Brace as the sole witness against him.
Nelson, 850 So. 2d at 526 (citations omitted).
Accordingly, Nelson‘s claim must fail because appellate counsel did raise the claim, which this Court rejected as procedurally barred.
For the reasons stated above, we affirm the postconviction court's order denying Nelson‘s rule 3.851 motion, and we deny his petition for writ of habeas corpus.
Thursday, April 22, 2010
Court Wrap-Up: April 22, 2010
Five decisions this week.
Donald Bradley v. State of Florida and Donald Bradley v. Walter A. McNeil, etc. are combined death penalty opinions. Mr. Bradley is a death-row inmate claiming that his trial counsel was ineffective and seeking a writ of habeas corpus because his appellate counsel was ineffective. The Court found these claims to be without merit. There is good language in this opinion for criminal defense lawyers and the "ineffective assistance" standard.
Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In. addresses section 627.736, Florida Statutes, relating to notice that insureds must give to their insurer before filing suit. The Court found amendments to the statute requiring notice to the insurer were substantive and could not be applied to the insureds retroactively.
Alfred C. Canseco v. State of Florida did not allow a criminal defendant a time extension to withdraw his plea because he waited more than two years after he received notice of his deportation proceeding to try to withdraw his plea.
Attorneys' Title Insurance Fund, Inc. v. M.I. Industries Usa, Inc., Et Al. The Court had initially accepted jurisdiction but then decided not to hear the case.
Marcus F. Sanders v. State of Florida addressed the criminal punishment code scoresheet for a violation of probation. The state cannot use an offense for which the defendant has successfully completed probation as a pending offense on the scoresheet.
Donald Bradley v. State of Florida (SC07-1964)
SUMMARY: 7-0 Decision. Mr. Bradley was convicted of first-degree murder and sentenced to death. Mr. Bradley appeals the denial of post-conviction relief under Fla. R. Crim. P. 3.851 as well as petitions the Court for a writ of habeas corpus. Mr. Bradley claimed, inter alia, that his trial counsel was ineffective. The Court found that Mr. Bradley's trial counsel was not ineffective. Even if trial counsel had been ineffective, Mr. Bradley would also have to "establish prejudice and must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different." Mr. Bradley failed to do this and the Court found his claims to be without merit. In his petition for writ of habeas corpus, Mr. Bradley claims that his appellate counsel was ineffective. The Court also found this claim to be without merit. The Court affirmed the trial court's denial of post-conviction relief and denied the petition for writ of habeas corpus.
Donald Bradley appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. For the reasons explained below, we affirm the circuit court‘s order denying Bradley‘s motion for postconviction relief, and we deny Bradley‘s petition for writ of habeas corpus.
Bradley raised eighteen claims in his postconviction motion but seeks review of only four in this Court. First, Bradley contends trial counsel failed to fully investigate and utilize the duct tape evidence, resulting in a flawed decision as to the proper defense theory. Second, he asserts counsel‘s act of withholding certain mental illness evidence from defense experts and the trial judge constituted ineffective assistance because disclosing such evidence could have allowed for a finding of extreme mental or emotional disturbance. Third, Bradley argues trial counsel was ineffective for failing to preserve for direct appeal the argument that he could not be found guilty of burglary because the victim‘s wife invited him into the house; and that under this Court‘s later decision in Delgado v. State, 776 So. 2d 233 (Fla. 2000), the initial consent for entry could not be deemed revoked after he and the McWhite brothers committed crimes against the victim. Fourth, Bradley contends the cumulative effect of counsel‘s errors amounted to ineffective assistance of counsel.
BRADLEY’S 3.851 CLAIMS
As we have explained before, the test when assessing the actions of trial counsel is not how, in hindsight, present counsel would have proceeded. See Cherry v. State, 659 So. 2d 1069, 1073 (Fla. 1995). On the contrary, a claim for ineffective assistance of trial counsel must satisfy two criteria. First, counsel‘s performance must be shown to be deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance in this context means that counsel‘s performance fell below the standard guaranteed by the Sixth Amendment. Id. When examining counsel‘s performance, an objective standard of reasonableness applies, id. at 688, and great deference is given to counsel‘s performance. Id. at 689. The defendant bears the burden to ―overcome the presumption that, under the circumstances, the challenged action ‗might be considered sound trial strategy.‘ ‖ Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). This Court has made clear that ―[s]trategic decisions do not constitute ineffective assistance of counsel.‖ See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). There is a strong presumption that trial counsel‘s performance was not ineffective. See Strickland, 466 U.S. at 669. Second, the deficient performance must have prejudiced the defendant, ultimately depriving the defendant of a fair trial with a reliable result. Strickland, 466 U.S. at 689. A defendant must do more than speculate that an error affected the outcome. Id. at 693. Prejudice is met only if there is a reasonable probability that ―but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‖ Id. at 694. Both deficient performance and prejudice must be shown. Id. Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court‘s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court‘s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).
Even if trial counsel‘s actions could be considered deficient, we conclude that Bradley has not met the prejudice prong of Strickland. To meet this prong, the claimant must ―establish prejudice and must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Williams v. Taylor, 529 U.S. 362, 391 (2000) (quoting Strickland, 466 U.S. at 694). We conclude that the second prong has not been met.
Although the strategy chosen by trial counsel and Bradley did not prevail, that fact alone does not render the strategy unreasonable or deficient. Were that the test, all defendants sentenced to death would have claims for ineffective assistance of trial counsel. See Heath v. State, 3 So. 3d 1017, 1029 (Fla. 2009) (―The fact that this defense strategy was ultimately unsuccessful with the jury does not render counsel‘s performance deficient.); see also Henry v. State, 948 So. 2d 609, 616 (Fla. 2006) (―It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence . . . .) (quoting Strickland, 466 U.S. at 689). Accordingly, Bradley has failed to demonstrate that his trial counsel was deficient in his investigation or presentation of mental health mitigation. Thus, the first prong of Strickland has not been established.
Thus, for the reasons set forth above, we conclude that counsel‘s performance was not deficient, and even if it were, there is no reasonable probability that had counsel acted otherwise the result of the proceeding would have been different. Since our confidence in the outcome has not been undermined, no prejudice has been shown. Because neither the deficiency nor the prejudice prong of Strickland has been established, we conclude Bradley‘s claim that trial counsel was ineffective by failing to challenge the burglary charge in order to preserve the issue for appeal is without merit.
BRADLEY’S HABEAS CLAIMS
In Bradley‘s petition for habeas corpus he alleges appellate counsel was ineffective during the direct appeal to this Court. Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). In order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine the following: [W]hether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). ―The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based. Freeman, 761 So. 2d at 1069. With this standard in mind, we turn to Bradley‘s first claim of ineffective assistance of appellate counsel.
Bradley‘s first habeas claim, he contends that appellate counsel was ineffective for failing to appeal the denial of his many commonly filed boiler-plate motions challenging the constitutionality of Florida‘s death penalty statutes. Nonetheless, Bradley has failed to set forth any basis upon which this Court could grant him relief. Instead, he simply refers the Court to his claims filed below. As we have previously held, vague and conclusory allegations are insufficient to warrant relief. See Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008) (―[T]o merely refer to arguments presented during the postconviction proceedings without further elucidation is not sufficient . . . and these claims are deemed to have been waived.‖); Thompson v. State, 759 So. 2d 650, 668 (Fla. 2000) (denying habeas claim, in part, as legally insufficient because defendant made only a conclusory statement without specific supporting facts). The purpose of a legal brief is to offer argument in support of the issues raised on appeal. See Doorbal, 983 So. 2d at 482. Bradley has failed to do this, and consequently, he has failed to meet his burden of demonstrating that appellate counsel was ineffective. See Parker v. State, 904 So. 2d 370, 375 n.3 (Fla. 2005) (declining to review four issues that Parker raised on appeal because the claims of error were ―bare-bones‖ and conclusory). Accordingly, Bradley has failed to present a legally sufficient claim for habeas relief and this claim is denied as waived.
Accordingly, we conclude that Bradley has again failed to provide any basis upon which this Court might grant him habeas relief. As with his first habeas claim, because his presentation of the issues is legally insufficient, this claim is also denied as waived. Accordingly, we deny the petition for writ of habeas corpus.
For the reasons stated above, we affirm the trial court‘s denial of postconviction relief. We also deny Bradley‘s petition for writ of habeas corpus.
Donald Bradley v. Walter A. McNeil, etc. (SC08-1813)
SUMMARY: 7-0 Decision. This case is combined with Bradley v. State. See above.
Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In. (SC08-789)
SUMMARY: 7-0 Decision. The Court held that amendments to F.S. 627.736 limiting attorney fees and requiring insureds to give their insurer notice before filing suit were substantive changes to the statute and could not be applied retroactively. The Court quashed the decision of the 3d DCA and remanded the case to the trial court.
Note: This is a revised opinion. The original opinion, SC08-789, was originally issued February 4, 2010.
This case arose from the failure of Progressive Express Insurance Company (Progressive) to pay personal injury protection (PIP) benefits to its insured, Cathy Menendez, after she was injured in an automobile accident in June 2001. Because Progressive did not pay the benefits, the insured sued for overdue benefits. She was successful in her claim in the trial court, which eventually entered a judgment in her favor. On appeal, the Third District Court of Appeal reversed the judgment on multiple grounds, including the insured’s failure to comply with a statute enacted after the date of the automobile accident (referred to as the statutory presuit provision) that placed additional requirements on an injured person seeking to recover PIP benefits before filing suit. See Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008).
In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was “merely procedural” and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004).
Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.
For the foregoing reasons, we hold that section 627.736(11), Florida Statutes (2001), does not apply retroactively to the insurance policy issued to the insureds, because it is a substantive statute. Accordingly, we quash the decision of the Third District Court of Appeal and remand with directions to reinstate the stipulated final judgment and the final judgment awarding attorneys’ fees. We also instruct the district court to enter an order awarding attorneys’ fees and to remand the issue to the trial court for a determination of the amount of fees for the proceedings at the district court and before this Court.
Alfred C. Canseco v. State of Florida (SC09-1535)
SUMMARY: 7-0 Decision. The Court held that a defendant was not entitled to an extension of time to withdraw his plea under State v. Green when more than two years had passed since the defendant received actual notice of deportation proceedings and filing his motion to withdraw plea. The Court affirmed the 1st DCA and answered its certified question in the negative.
This case is before the Court for review of the decision of the First District Court of Appeal in Canseco v. State, 12 So. 3d 923 (Fla. 1st DCA 2009). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:
WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO. 2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA. Canseco, 12 So. 3d at 923.
In Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), the Second District Court of Appeal demonstrated clearly how the two-year Green window was intended to operate. In Ventura, the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795. In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id. His motion was dismissed without prejudice because of an outstanding arrest warrant. Id. Ventura refiled his motion in December 2006, which the trial court dismissed relying on Green, noting that Ventura filed his motion more than two years after his case was final. Id. On appeal to the Second District, Ventura argued that the trial court misread Green, to which the Second District agreed, stating: Under Green a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging “that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.” The trial court‟s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation. Ventura, 977 So. 2d at 796-97 (citation omitted) (quoting Green, 944 So. 2d at 219).
Canseco‟s argument—that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea—is not supported by a logical reading of the opinion. If Canseco‟s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart‟s guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court‟s intent. Indeed, no district court has interpreted Green to provide such a result. Accordingly, we answer the certified question in the negative and approve the decision below.
Attorneys’ Title Insurance Fund, Inc. v. M.I. Industries Usa, Inc., Et Al. (SC09-938)
SUMMARY: 7-0 Decision. After initially accepting jurisdiction, the Court decided to "exercise [its] discretion and discharge jurisdiction." Full opinion below.
PER CURIAM.
We initially accepted jurisdiction to review the decision of the Fourth District Court of Appeal in M.I. Industries USA Inc. v. Attorneys’ Title Insurance Fund, Inc., 6 So. 3d 627 (Fla. 4th DCA 2009). In its decision the district court certified the following question to be of great public importance: INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST? Id. at 629.
After further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur. NO MOTION FOR REHEARING WILL BE ALLOWED.
Marcus F. Sanders v. State of Florida (SC09-1729)
SUMMARY: 7-0 Decision. The Court held that offenses for which the defendant has completed probation cannot be used as pending offenses on the criminal punishment code scoresheet when the defendant violates probation on another offense. Mr. Sanders was entitled to be resentenced and have his scoresheet corrected.
In this case we consider whether sentence points were properly scored on the Criminal Punishment Code (CPC) scoresheet used for sentences imposed upon the revocation of probation. We have for review the decision of the Second District Court of Appeal in Sanders v. State, 16 So. 3d 232 (Fla. 2d DCA 2009), in which the Second District certified a question to this Court to be of great public importance. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We have revised the question as follows:
WHEN A DEFENDANT IS TO BE SENTENCED UPON REVOCATION OF PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT‟S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, MAY THE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS ADDITIONAL OFFENSES?
For the reasons that follow, we answer the rephrased certified question in the negative. Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offense” set out in section 921.0021, Florida Statutes (1999). Accordingly, we quash the decision under review and remand the case for proceedings consistent with this opinion.
Friday, April 16, 2010
Court Wrap-Up: April 15, 2010
Two decisions this week.
Cary Michael Lambrix v. State of Florida addresses a motion for post-conviction relief from a death row inmate.
In Re: Revisions To Simplified Forms Pursuant To Rule 10-2.1(A) Of The Rules Regulating The Florida Bar amends the real estate forms that non-lawyers may assist third persons in filling out.
Cary Michael Lambrix v. State of Florida (SC08-64)
SUMMARY: 6-0 Decision (C.J. Quince recused). Mr. Lambrix was convicted of two counts of first-degree murder and sentenced to death in 1983. After a long history of unsuccessful appeals and post-conviction relief, Mr. Lambrix appeals the trial court's order denying a successive motion for post-conviction relief. The Court affirmed the trial court's order denying post-conviction relief.
Commentary: This appears to be a frivolous claim for post-conviction relief from an inmate who has been on death row for nearly 30 years.
Ultimately, after several evidentiary hearings, the postconviction court denied relief on all of Lambrix’s claims. On appeal, Lambrix raises five issues: (1) whether the State withheld material exculpatory or impeachment evidence involving a sexual relationship between witness Frances Smith and State Attorney Investigator Robert Daniels in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether an important witness (Deborah Hanzel) recanted her trial testimony; (3) whether the circuit court failed to allow a full and fair hearing; (4) whether there was judicial bias during the retrial proceedings; and (5) whether Lambrix is entitled to a new trial because he is actually innocent (We reject without discussion Lambrix’s claim that he is entitled to relitigate whether he is innocent of the crime based on Schlup v. Delo, 513 U.S. 298 (1995). Lambrix mischaracterizes the holding of Schlup, which does not provide a freestanding claim to relitigate claims that are procedurally barred.)
Alleged Sexual Relationship: We conclude that there is no basis in the record to reject the trial court’s factual finding that no sexual encounter occurred between Smith and Daniels. However, even if the circuit court had accepted the testimony that a one-time sexual encounter had occurred, we would conclude that Lambrix cannot show prejudice, which is the third critical prong of a Brady claim. To meet the requirements of Brady, Lambrix must show that (1) favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. To meet the materiality prong, the defendant must demonstrate ―a reasonable probability that the jury verdict would have been different had the suppressed information been used at trial. A reasonable probability is a probability sufficient to undermine our confidence in the outcome.
An affair between the State’s key witness and the state attorney investigator would be considered favorable evidence. However, Lambrix cannot demonstrate prejudice—that this suppressed evidence was sufficient to undermine confidence in the outcome.
Alleged Recantation of Deborah Hanzel: In his second claim, Lambrix asserts that the postconviction court erred in failing to find that witness Deborah Hanzel recanted and that Smith and a state agent coerced her to lie. This claim is based on the newly discovered evidence of Hanzel’s recent testimony. To set aside a conviction based on newly discovered evidence, Lambrix must meet two prongs: (1) the ―asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence; and (2) ―the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.
As this Court has noted repeatedly, recanted testimony is exceedingly unreliable. When reviewing a trial court’s determination relating to the credibility of a recantation, this Court is highly deferential to the trial court and will affirm the lower court’s determination so long as it is supported by competent, substantial evidence. Having reviewed the full record and the postconviction court’s findings, we conclude that there is competent, substantial evidence for the court’s ruling.
Further, even if Hanzel had not testified at trial that Lambrix stated he killed two people, the recantation would not be of such a nature that it would ―probably produce an acquittal on retrial. Hanzel never recanted her testimony that Lambrix offered to show her where two bodies were buried. Even without Hanzel’s testimony, there would still be the testimony of Branch that he heard Lambrix make statements similar to those to which Hanzel testified.
Moreover, Hanzel was not the main witness to testify against Lambrix. Even without her testimony, there would still be the testimony of Lambrix himself at this most recent evidentiary hearing that he struck one of the victims using a tire iron, although he denied that he intended to kill either victim. Further, there was other significant evidence at the trial that pointed to Lambrix as the perpetrator of these murders. This evidence included the following: Smith’s testimony regarding the murders and that Lambrix threatened her if she did not help him bury the bodies; Deputy Sheriff Ron Council’s testimony that he saw Lambrix and Smith with the victims on the night of the murders; John Chezum’s testimony that on February 6 around 2:30 in the morning, Lambrix drove up in a car that resembled the victims’ car and asked to borrow a shovel; and the victims were found buried near the trailer in which Lambrix was living. For the reasons above, Lambrix is not entitled to relief on this claim.
Whether Lambrix Was Given a Full and Fair Hearing: In his third claim, Lambrix asserts that the postconviction court prevented Lambrix from presenting various witnesses who would have supported Hanzel’s recantation, thus denying him a full and fair evidentiary hearing. None of the general testimony of the expert witnesses or the lay witnesses would have been relevant to either the Brady or newly discovered evidence claims in this case. Accordingly, because the trial court did not abuse its discretion in refusing to admit this testimony, we deny this claim.
Alleged Judicial Bias: The fourth and last issue we address is Lambrix’s claim that newly discovered evidence established that his trial judge was biased. He based this claim on statements Judge Stanley made during a January 1997 evidentiary hearing in another death penalty case, which involved defendant Raleigh Porter. In that case, Judge Stanley overrode the jury’s recommendation of life and imposed a death sentence.
In Porter, we never held that the trial judge was unable to be impartial in all capital cases, but held only that Judge Stanley lacked the necessary impartiality as to the sentencing phase of Porter’s trial. Porter, 723 So. 2d at 198-99. This case does not involve a judicial override of a life recommendation or any statements attributable to Judge Stanley indicating a predisposition to sentence Lambrix to death. This Court has recognized that judicial misconduct in one case does not mean that courts must presume misconduct in all cases. Accordingly, we deny this claim and hold that Lambrix is not entitled to relief.
Accordingly, we affirm the circuit court’s denial of Lambrix’s successive motion for postconviction relief.
In Re: Revisions To Simplified Forms Pursuant To Rule 10-2.1(A) Of The Rules Regulating The Florida Bar (SC09-250)
SUMMARY: 7-0 Decision. Under Rule Regulating the Florida Bar 10-2.1(a), Unlicensed Practice of Law, nonlawyers may assist persons in filling out legal forms approved by the Florida Supreme Court. We hereby approve amendments to the following forms as shown in the appendix to this opinion: (1) Residential Lease for Single Family Home and Duplex (for a term not to exceed one year); (2) Residential Lease for Apartment or Unit in Multi-Family Rental Housing (Other than a Duplex) Including a Mobile Home (for a term not to exceed one year); and (3) Residential Landlord-Tenant Forms. Added language is underlined and deleted language is struck through. We express no opinion as to whether the approved lease forms comport with current law.
See the appendix of the decision for these forms in their correct formatting.
Saturday, April 10, 2010
In Re: Amendments To Standard Jury Instructions In Criminal Cases – Instruction 7.7 (SC10-113)
SUMMARY: 7-0 Decision. Following the Court's decision in State v. Montgomery that the use of Fla. Std. Jury Instr. (Crim.) 7.7 regarding manslaughter was fundamental error; the Court has amended the instruction for immediate use. See the appendix of the decision for the the new rule including new language in bold and old language that is struck-through.
State of Florida v. Steven W. Montgomery (SC09-332)
SUMMARY: 7-0 Decision. The 1st DCA certified the follwoing question of great public importance: IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT? No. As to intent, the State only needs to prove the defendant intended to commit the act itself, not the death. The former standard jury instruction that included the element "Defendant intentionally caused the death of the victim" was incorrect.
In Montgomery's prosecution for first degree murder, the jury was given the standard instructions for lesser included offenses. Those instructions were for second degree murder and the incorrect instruction for manslaughter. The jury convicted Montgomery of second degree murder. The 1st DCA held it was fundamental error to give the jury the wrong instruction for manslaughter and overturned Montgomery's second degree murder conviction. The 1st DCA remanded the case to the trial court for a new trial. The Court approved the 1st DCA's decision and answered the certified question in the negative.
Montgomery appealed his conviction and sentence to the First District Court of Appeal where he raised four issues, including a challenge to the standard jury instruction on manslaughter. Asserting that the crime of manslaughter by act does
not require an intent to kill, Montgomery argued that the trial court committed fundamental error in instructing the jury on the elements of manslaughter by act because the standard jury instruction required the State to prove that he intended to cause the death of Ellis. The district court ruled solely on the issue of the standard jury instruction on manslaughter and held that the instruction erroneously required a finding that Montgomery intended to kill Ellis. Moreover, the district court concluded that in Montgomery‘s case, the use of the erroneous manslaughter instruction constituted fundamental error. Consequently, the court reversed Montgomery‘s conviction and sentence for second-degree murder and remanded the case to the trial court. In doing so, the district court certified a question of great public importance and certified conflict with a decision from the Fifth District Court of Appeal.
First, we conclude that under Florida law, the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim.
Second,
we address whether the language in the standard jury instruction required proof of Montgomery‘s intent to kill Ellis. At the time of Montgomery‘s trial in 2007, the standard jury instruction on manslaughter by act provided in relevant part:
To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) is dead. 2. a. (Defendant) intentionally caused the death of (victim). . . . . However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms. In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
Fla. Std. Jury Instr. (Crim.) 7.7 (2006)
Both parties and the district court agree that this jury instruction required the jury to find that the defendant intended to kill the victim in order to convict Montgomery of manslaughter. The focus of our analysis is on the second element of the jury instruction, which provided that the State must prove that the defendant intentionally caused the death of the victim. Although the instruction also provided that ―it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, we conclude that this language was insufficient to erode the import of the second element: that the jury must find that
the defendant intended to cause the death of the victim. We agree with the district court‘s observation in Montgomery that a reasonable jury would believe that in order to convict Montgomery of manslaughter by act, it had to find that he intended to kill Ellis.
Third, we discuss whether the use of the standard manslaughter jury instruction constituted fundamental error in Montgomery‘s case. Montgomery was entitled to an accurate instruction on the lesser included offense of manslaughter. The instruction in this case, requiring the jury to find that Montgomery intended to kill Ellis, erroneously explained Florida law on manslaughter by act. Moreover, it was ―pertinent or material to what the jury must consider in order to convict. Thus, we conclude that fundamental error occurred in this case, where Montgomery was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.
In conclusion, we approve the decision of the First District Court of Appeal to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error. We
answer the certified question in the negative and hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim. We further hold that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the victim. Moreover, we conclude that the use of the standard jury instruction on manslaughter constituted fundamental, reversible error in Montgomery‘s case and requires that Montgomery receive a new trial. Given our resolution of the certified question, we do not reach the certified conflict.
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