|
December 1998
Prepared for
By
Committee on Crime and Punishment
I. EXECUTIVE SUMMARY
I. EXECUTIVE SUMMARY
Delays in the execution of convicted murderers sentenced to death in Florida have significantly increased since
the reinstatement of the death penalty in 1972. From 1994 to 1998 these delays have averaged 13.98 years, an
80% increase from the 7.74 year average delays during 1979 to 1983. In 1998 the Speaker of the House
assigned an interim project to the House Criminal Justice and Corrections Council to "determine methods of
reducing delays in capital cases." This project further directed staff to identify and evaluate the impact of these
delays, to review, compare and analyze judicial review in death-penalty cases, to review previous reform efforts
to reduce delays, to consider whether state postconviction review could be expedited or eliminated, and to
submit a report "recommending reforms which may reduce delays."
This project included a survey of over one-hundred family members of murder victims, in cases where a death
sentence was imposed. Victims' families suffer when convicted murderers' death sentences are delayed for
more than a decade. These victims overwhelmingly urged the state to halt the endless appeals in death-penalty
cases and to establish absolute time limits for all appeals. Survey respondents unanimously disagreed with
subsidizing legal representation for death-sentenced convicted murderers beyond the requirements of the
United States Constitution.
Most delays in death-penalty cases occur during "postconviction" judicial review. Postconviction judicial review
occurs after the Florida Supreme Court and the United States Supreme Court have upheld a sentence of death
and denied the defendant's first ["direct"] appeal. Postconviction judicial review in state court is not required by
the United States Constitution.
A death-sentenced convicted murderer in Florida is allowed to file postconviction legal challenges in state court,
and if unsuccessful, to file additional postconviction legal challenges in the federal courts. In Florida, executed
convicted murderers have filed an average of eight postconviction appeals in state and federal courts.
Most postconviction legal challenges to death sentences do not address guilt or innocence, but focus on the
adequacy of the defendant's trial lawyer or whether the state withheld evidence favorable to the defendant.
[Based on a review of 229 capital cases, in 12% of those cases the courts found that the defendant's attorney
provided "ineffective assistance of counsel" and reversed the death sentence or ordered further proceedings.]
Some of these appeals do involve assertions of a defendant's innocence, however, by claiming that "newly-discovered" evidence allegedly demonstrates the defendant did not murder the victim[s].
Florida law and court rules currently prohibit a death-sentenced convicted murderer from attempting to seek
postconviction judicial review of issues that could have or should have been heard during the trial or the first
appeal. Many postconviction legal challenges disregard the law, however, and reassert legal arguments that
were previously rejected or should have been asserted earlier in the process, further delaying final resolution.
Numerous reform efforts have not succeeded in reducing delays in death-penalty cases. Legislation and court
rules require that state postconviction appeals be resolved within a certain time. The state courts, however,
continue to allow death-sentenced convicted murderers to delay filing postconviction appeals, usually on the
basis of alleged inadequate legal resources. Recent legislative reform efforts have attempted to promptly
provide death-sentenced convicted murderers with postconviction legal representation to facilitate timely-filed
postconviction appeals. These reforms could result in fewer delays in the future.
The Florida Legislature has appropriated over $35.5 million dollars to provide free postconviction legal
representation to death-sentenced convicted murderers, since fiscal year 1987-88. This expenditure is not
required by the United States Constitution. A previous commission found that Florida had the most
comprehensive program in the nation for providing this representation.
Other states with effective capital punishment have laws that significantly restrict postconviction appeals.
Virginia has executed 59 death-sentenced convicted murderers since 1976, and that state has a current death-row population of 40. [Florida has executed 43 death-sentenced convicted murderers and has a current death-row population of 372.] Virginia has imposed an absolute time limit on postconviction appeals. Texas, which has
executed 163 death-sentenced convicted murderers, requires that postconviction review begin immediately after
a death sentence is imposed. That state also imposes strict time limitations. Missouri has executed 32 convicted
murderers, including nine in the last two years, and has 87 convicted murderers sentenced to death awaiting
execution. Missouri also imposes strict time limitations on postconviction appeals, and allows the sentencing
court to set execution dates, as does Texas.
Proposals for consideration for future efforts to reduce delays could include the requirement that death-sentenced convicted murderers file all postconviction appeals during the same period that the convicted
murderer is preparing to file the first appeal. This procedure is used in Texas, Virginia and Missouri. Another
proposal for consideration could include the elimination of state postconviction appeals in Florida courts.
Current Florida law requires that postconviction legal challenges must be filed and decided within certain time
limits, but no legal mechanism exists to enforce those time limits. Further proposals could include a strict
prohibition of the use of any state resources to consider postconviction appeals filed in violation of statutory time
limitations. Another proposal for consideration could include authorizing the sentencing court to issue a death
warrant setting the date of execution. Some of these proposals could require amendments to the state
constitution.
II. INTRODUCTION
The long delays and seemingly endless legal procedures in death penalty cases have been an ongoing source
of frustration for the public and for legislators. Since the first execution in Florida in 1979 after capital
punishment was reinstituted, these delays have significantly increased. Between 1979 and 1983, the average
delay between sentencing and execution was 7.74 years. From 1994 to 1998 the average delay between
sentencing and execution was approximately 14 years. [13.98 years], an 80% increase. These delays have
increased despite the state's expenditure of over $35 million dollars since 1985 to provide postconviction legal
representation to convicted murderers sentenced to death. Numerous reform efforts to reduce these delays
have yet to succeed. [See, Appendixes 2 and 3.]
The judicial proceedings described as "postconviction" or "collateral" review are responsible for most of these
delays. These proceedings occur after the Florida Supreme Court, and usually the United States Supreme
Court, have upheld the death sentence imposed by the trial court. Postconviction motions in death-penalty
cases are filed in the sentencing courts and appealed directly to the Florida Supreme Court, and also filed
directly in that court. In federal court, postconviction motions, which are authorized by statute, are known as
"habeas corpus."
As of November 13, 1998, 256 out of the 387 convicted murderers sentenced to death were sentenced over five
years ago. 182 of these cases were awaiting the resolution of state postconviction judicial review. This stage of
judicial review is also the process that appears most amenable to improvement by the legislature. [See,
Appendix 4.]
A capital case usually progresses through the following stages:
1. Trial in the state circuit court where crime occurred;
2. First, or "direct" appeal, to the Florida Supreme Court;
3. Appeal to the United States Supreme Court ("Petition for Certiorari");
4. Requests for clemency to the Governor and Cabinet;
5. "Postconviction" motion filed in the circuit court where crime occurred, usually claiming that defendant's
original trial lawyer was "ineffective" among other arguments [Florida Rule of Criminal Procedure 3.851 "Motion
for Postconviction Relief"];
6. Appeal of Postconviction Motion from circuit court to Florida Supreme Court, and petition for Writ of Habeas
Corpus filed in the Florida Supreme Court;
7. Petition for Writ of Habeas Corpus in the federal District Court where crime occurred;
8. Appeal from denial of Writ of Habeas Corpus from federal District Court to federal Eleventh Circuit Court of
Appeals in Atlanta, if permitted;
9. Appeal of denial of Writ of Habeas Corpus from federal court of appeals to United States Supreme Court, if
permitted;
10. Repetitive ("successive") postconviction appeals in state and federal courts.
Postconviction proceedings in capital cases usually focus on claims of "ineffective" assistance of counsel, claims
that the state withheld evidence, or claims that newly discovered evidence requires a murder conviction or a
sentence of death to be reversed. Postconviction appeals can raise ten to twenty arguments, many of which
attempt to revisit issues that were or could have been resolved at trial or during the first appeal.
There are numerous reasons for the delays in the postconviction stage of judicial review, including litigation over
complex public records requests made by the attorneys who represent death row inmates. Other delays are
caused in the sentencing courts, which may not hear the postconviction appeals for months, or even years. The
state attorney which prosecuted the defendant must respond to any postconviction appeal, and this also
requires time. Witnesses must be located and evidence must be reviewed. The attorneys often amend their
arguments, and additional time is usually requested to develop new arguments and investigate new claims. At
least one state funded Capital Collateral Regional Counsel (CCRC) has acknowledged that the longer a case is
delayed, the more issues are discovered to argue on behalf of the death-sentenced convicted murderer. (1)
Regardless of the reasons for the delays, the current time span of fourteen years between sentencing and
execution in capital cases has generated calls for further reforms. In a recent Florida Supreme Court opinion
reviewing the death penalty of an inmate convicted in 1974, Justice Wells strongly expressed his position that
the process needs to be changed, stating that ". . . I do again state my view that such an extended time period to
finally adjudicate these cases is totally unacceptable and is this Court's and the State's prime responsibility to
correct." Knight v. State, So.2d [Case No. 87,783] (Fla. November 12, 1998).
In Witt v. State, 387 So.2d 922, 925 (Fla.), cert. denied, 449 U.S. 1067, (1980), the Florida Supreme Court
recognized the need for finality in criminal cases, and the limits of postconviction judicial review:
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. Id at 925. [Emphasis Supplied.]
In Swafford v. State, 679 So.2d 736 (Fla. 1996), however, Justices Kogan, Anstead and Shaw joined [now
Chief] Justice Harding's statement, expressing another view:
. . . I recognize that the postconviction process still may appear inordinately long to the general public in some
cases. However, neither public perception nor the reality of a lengthy postconviction process justifies
foreclosing meritorious claims of newly discovered evidence. While finality is important in all legal proceedings,
its importance must be tempered by the finality of the death penalty. Id.
Reform efforts which attempt to reduce delays in capital cases must address the tension between the views that
lengthy litigation in capital cases is not acceptable with the view that limitation of judicial review in these cases is
not favored. Further reforms of postconviction appeals in capital cases are possible. The existence of executive
clemency, furthermore, can provide an avenue of consideration of alleged claims of innocence, without requiring
endless judicial review and appeals.
III. REVIEW OF FLORIDA'S CAPITAL PUNISHMENT LAWS, PROCEDURES, AND REFORM EFFORTS SINCE 1972
In 1972, the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), issued the most
significant decision of this century relating to the death penalty. The Court in Furman held that the manner in
which the State of Georgia determined whether the death penalty would be imposed was arbitrary and therefore
a violation of the Eight Amendment's prohibition of cruel and unusual punishment. No state was in compliance
with the Court's decision, and any state that wished to retain the death penalty had to rewrite their procedures
relating to how the trial courts determine whether to sentence a person to death. The Florida Legislature
responded to the decision by authorizing new death-penalty laws consistent with the Court's newly-announced
requirements for imposing capital punishment: Chapter 72-724, Laws of Florida, which became effective
December 8, 1972, and was upheld by the Florida Supreme Court in 1973 in State v. Dixon, 283 So.2d 1 (1973).
Three years later, the United States Supreme Court upheld Florida's revised capital punishment laws in Proffit v.
Florida, 428 U.S. 242 (1976).
A. The Spenkellink Case
John Spenkellink was executed on May 25, 1979, for the murder of Joseph Szymankiewicz. Spenkellink was the first person executed in Florida under the new law passed after Furman, and the execution was carried out in less than six years after the sentence of death was imposed, despite the defendant's repeated appeals.
By today's standards, the execution in the Spenkellink case would be considered to have occurred within a
reasonable time. Yet, the delays caused by the defendant's repeated, "last-minute" filings of postconviction
litigation significantly concerned two Justices of the Florida Supreme Court.(2) Justice Alderman concurred in the
denial of the last postconviction motion because the motion was without merit and because is was filed too late:
Spenkellink has abused the writ of habeas corpus and judicial process in general by these last-minute, frivolous
attempts to stay the inevitable execution by the filing of matters which should have been raised, if at all, long
before the death warrant was signed ... A death row inmate who deliberately withholds one of two or more
arguable points for collateral relief at the time he files his first petition, in an attempt to thwart the judicial process
and to gain a temporary stay of execution, should not be entitled to consideration of any such late-filed petitions.
The matters raised by the present petitions reasonably could have been raised prior to the signing of the death
warrant and appear to be matters that were held until the last minute in the hopes of obtaining another stay of
execution. Spenkellink v. Wainwright, 372 So. 2d. 927, 929 (Fla. 1979.) (Alderman, Adkins, J.J., concurring
specially; Emphasis supplied.)
Justice Alderman then quoted United States Supreme Court Justice Rehnquist to further stress the importance
of finality in death penalty cases:
There must come a time, even when so irreversible a penalty as that of death has been imposed upon a
particular defendant, that the legal issues in the case have been sufficiently litigated and relitigated so that the
law must be allowed to run its course. If the holdings of our Court . . . are to be anything but dead letters,
capital punishment when imposed pursuant to the standards laid down in those cases is constitutional; and
when the standards expounded in those cases and in subsequent decisions of this Court bearing on those
procedures have been complied with, the State is entitled to carry out the death sentence. Indeed, just as the
rule of law entitles a criminal defendant to be surrounded with all the protections which do surround him under
our system prior to conviction and during trial and appellate review, the other side of that coin is that when the
State has taken all the steps required by that rule of law, its will, as represented by the legislature which
authorized the imposition of the death sentence, and the state courts which imposed it and upheld it, should be
carried out. Spenkellink, 37250.2d at 929-930. [Citations omitted; Emphasis supplied.]
The delays and postconviction in the Spenkellink case quickly established a pattern in capital punishment cases
in Florida. Convicted murderers sentenced to death in Florida and executed have filed an average of 10 appeals
in state and federal courts challenging their convictions and sentences. The vast majority of these appeals are
"collateral" or "postconviction" appeals. The delays and repetitive appeals in capital cases have led to several
reform efforts which have attempted to limit the number of postconviction motions and the time in which such
motions may be filed.
B. Florida Attorney General Jim Smith's Proposal to Reduce Federal Litigation
One of the first attempts to reduce delays in capital cases was proposed in 1981 by Florida Attorney General
Jim Smith, and it targeted the abuses occurring in collateral litigation in the federal courts. General Smith
recommended the following three basic changes to federal law:
1. A three-year statute of limitations in habeas corpus cases.
2. A prohibition of evidentiary hearings in the federal courts to resolve factual disputes previously resolved in a
hearing in state court.
3. A legal standard of review in federal court of state factual findings based on the ruling in Jackson v. Virginia,
443 U.S. 307, 324 (1979), which stated that a habeas corpus petitioner would be entitled to relief "if it is found
that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt." Id.
In a law review article, General Smith supported his position that the federal courts should not be permitted to
reconsider any factual issues previously resolved in state court by quoting United States Supreme Court Justice
Stewart in Townsend v. Sain, 372 U.S. 293 (1963):
To require a federal court to hold a new trial of factual claims which were long ago fully and fairly determined in
the courts of Illinois is, I think, to frustrate the fair and prompt administration of criminal justice, to disrespect the
fundamental structure of our federal system, and to debase the Great Writ of Habeas Corpus." Id. See, Smith,
"Federal Habeas Corpus--A Need for Reform", Vol. 73, The Journal of Criminal Law and Criminology, No. 3, p.
1036 [1982] citing, S.653, 97th Cong., 1st. Sess., 127 CONG. REC. S1981 (1981); H.R. 3416, 97th Cong., 1st
Sess., 127 CONG.REC. H1791 (1980.)
In his conclusion, General Smith urged the Congress to reform collateral proceedings in federal court and limit
the scope of federal habeas corpus review. He noted that the United States Supreme Court in its recent holdings
had attempted to limit federal collateral review of state criminal cases, but the primary responsibility for change
was with Congress:
Congress is the appropriate body to define the limits of federal habeas corpus review of state court judgements.
This legislative body must address the abuses and assist the Court by clarifying its intent. . . . If the Congress
does not recognize its responsibility, then Congress, not the Court, must take the blame for the lack of finality of
judgements and the continuance of current abuses.
See, Smith, "Federal Habeas Corpus--A Need for Reform", Vol. 73, The Journal of Criminal Law and
Criminology, No. 3, p. 1050.
In 1995, Congress adopted several significant reforms of federal collateral review, some of which were proposed
by Attorney General Smith. See, Public Law 104-132, the "Antiterrorism and Effective Death Penalty Act of
1996." 110 Stat. 1214. These reforms include a one-year time requirement for the filing of a petition for habeas
corpus, and significant limitations on federal court review of state-court factual findings in state criminal cases.
The federal law also imposes strict limits on "successive" or subsequent postconviction appeals in the same
case, and on appeals of rulings made by the federal district courts.
C. Amendment to Florida's Rules of Criminal Procedure in 1985.
On Nov. 30, 1985, the Florida Supreme Court adopted restrictions for postconviction relief which were opposed
by the Florida Bar, but supported by the Florida Attorney General Jim Smith. The restrictions were passed as
an amendment to the Florida Rule of Criminal Procedure 3.850, and upheld by the federal courts in Whiddon v.
Duggar, 894 F.2d. 1266 (11th Cir. 1990). The Supreme Court amendment to the rule included the following
reforms:
1. An amendment to prohibit new postconviction motions filed in Florida more than two years after the
conclusion of the direct appeal unless:
a. The facts upon which the claim is predicated were unknown to the movant or his attorney and could not have
been ascertained by the exercise of due diligence; or
b. The fundamental constitutional right asserted was not established within the period provided and has been
held to apply retroactively.
2. A provision preventing state courts from granting postconviction relief on grounds which could have or should
have been raised at trial and, if properly preserved, on direct appeal of the judgement and sentence.
3. A provision providing for the dismissal of successive or repetitive postconviction motions if the judge finds:
(1.) that the motion fails to allege new grounds for relief, and that there was a prior resolution of the issue raised
on the merits, or (2.) when new or different grounds are alleged, the court may dismiss the motion if the court
finds that the failure to raise the new issue at an earlier date constituted an abuse of the procedure.
See, The Florida Bar In Re Amendment To the Rules of Criminal Procedure, 460 So. 2d. 907 (Fla. 1984.)
Litigation in death penalty cases did not decrease despite these restrictions of judicial review.
D. Creation of the Office of the Capital Collateral Representative
In 1985, the Florida Legislature enacted another significant reform in state postconviction proceedings when it
created the Office of the Capital Collateral Representative to represent indigent death-row inmates in collateral
actions, ["CCR"] "...so that collateral [postconviction] legal proceedings.... may be commenced in a timely
manner...." Section 27.7001, Florida Statutes. Chapter 85-332, Laws of Florida, section three.
For the first time, Florida attempted to ensure that all death-row inmates could obtain legal representation to
challenge their convictions and sentences after the Florida Supreme Court and United States Supreme Court
upheld those convictions and sentences. Since the creation of the CCR (and its successors), the state has
appropriated over $35 million dollars to provide collateral legal representation to indigent death-sentenced
convicted murderers to file postconviction legal challenges to their convictions and sentences. Very few, if any
states match the resources that Florida has allocated to the CCR and its successors. The law creating the CCR
was not mandated by the United States Supreme Court. In fact, since 1987, the United States Supreme Court
has twice ruled that the states are not required to provide collateral legal representation to state prisoners.
Murray v. Giarratano, 492 U.S. 1, 8 (1989); Pennsylvania v. Finley, 481 U.S. 551 (1987).
E. Reform of the Florida Rules of Criminal Procedure in 1987
In In Re Florida Rules of Criminal Procedure, Rule 3.851, 503 So.2d 320, (Fla. 1987), the Florida Supreme
Court created Florida Rule of Criminal Procedure 3.851, which was intended to stop the last-minute flurry of
appeals filed within hours of a pending execution.
The rule states that:
(a) When a death warrant is signed for a prisoner and the warrant sets the execution for at least sixty days from
the date of signing, all motions and petitions for any type of postconviction or collateral relief shall be filed within
thirty days of the date of signing. Expiration of the thirty-day period procedurally bars any later petition unless it
is alleged (1) that the facts upon which the claim is predicated were unknown to the movant and could not have
been ascertained by the exercise of due diligence prior to the end of the thirty-day period, or (2) the fundamental
constitutional right asserted was established after the thirty-day period expired and has been held to apply
retroactively. Id.
This new rule did not modify or expand the two-year time limit provided in Rule 3.850, for initial filings of
postconviction appeals.
F. The Florida Bar Commission, 1989
These reforms did not educe delays in death-penalty cases. In 1989, the average interval delay in the two
executions that year was 8.67 years, up from 5.43 years In 1979. In response to these increasing delays, the
Florida Bar created the "Commission to Study Practical Aspects of Death Sentence Appeals" on May 23, 1989.
Florida Bar President Rutledge Liles stated in his letter of appointment to the members of that Commission that
"I would like the commission to address the issues of delay in the execution of sentence in capital cases. I do
not feel the public truly understands the process and the importance of the various procedural safeguards under
our law. On the other hand, there is considerable frustration surrounding the seemingly inordinate delays in
executing sentence." May 23, 1989, Letter from Florida Bar President Liles, Report of the Commission to Study
Practical Aspects of Death Sentence Appeals, March 1991. The people that Mr. Liles appointed were for the
most part judges and attorneys familiar with both sides of the collateral review process.
In 1989 executions were occurring 40% sooner than executions after occuring from 1994 until 1998. However,
the Commission recognized even then that a "substantial majority of the public favors capital punishment and
undoubtedly considers the [8.67 year] delay in execution [of death sentences] excessive." Report of the
Commission to Study Practical Aspects of Death Sentence Appeals, March 1991, page 2. The Commission
noted that an "average time of more than eight years is a long time to wait for the death penalty to be carried
out." Id., p. 4.
The Commission found substantial delays in those death cases in which the Governor had not signed a death
warrant, and fairly insignificant delays in those cases in which a warrant was signed. Id., p. 11. Some cases in
which a warrant had not been signed languished in the circuit courts as long as 30 months. Other cases in which
warrants had been signed had been completely resolved in less than one month after the appeal had been filed.
Id., pages 10-11.
The Commission's majority report ultimately recommended that:
1. The state continue allowing death-sentenced convicted murderers to file postconviction [collateral] appeals in
state court;
2. The two-year limitation on state postconviction appeals be reduced to a one-year time limit for state
postconviction appeals;
3. Any death warrant signed by the Governor within this one-year time limit be "stayed" or delayed, until the
one-year time limit is reached;
4. The Florida Supreme Court impose time limits on the circuit courts for resolving capital postconviction claims;
5. The Florida Supreme Court Require special education programs for trial judges assigned to capital cases;
6. The Office of the Capital Collateral Representative be "adequately funded";
7. The "appropriate authorities" adopt experience guidelines for state-provided lawyers in capital cases, based
on American Bar Association Standards. Id., pages 14-19.
Two members of the commission dissented, recommending the elimination of state collateral appeals.
Mr. Larry Spaulding, who was then the Capital Collateral Representative and a Commission member, advised
that adequate funding of the agency would require at least $3.4 million dollars and include 50 full-time
employees. The agency then had the responsibility to represent approximately 190 death-sentenced convicted
murderers. Id., p. 32-33. In fiscal year 1996-97, the office of the Capital Collateral Regional Counsels received
$4.9 million dollars and represented approximately 230 cases as of December 6, 1998.
G. The Florida Supreme Court Committee on Postconviction Relief, 1989
The same year that the Florida Bar Commission issued its final report, the "Florida Supreme Court Committee
on Postconviction Relief," chaired by Florida Supreme Court Justice Ben Overton, issued its report. In his
submission of the Committee's report to then Chief Justice Shaw, Justice Overton noted that "as expressed in
your order creating the Committee, the credibility of the judiciary is adversely affected by the untimely manner in
which these matters are considered and resolved by the court system." Letter of Florida Supreme Court Justice
Overton, May 31, 1991, attached as Appendix 7. [Emphasis Supplied.]
Justice Overton and the Committee recommended the following guidelines for the timely filing and resolving of
postconviction appeals in the state and federal courts:
1. One year to file the initial [postconviction] pleading in the state court system.
2. 270 days for the state court system to resolve the issues.
3. 60 days to file the initial pleading in the federal court system.
4. 270 days for the federal courts to resolve the issues.
Id., page 2.
Justice Overton explained how the committee arrived at the time guidelines:
[T]hese periods of time were considered by a majority of the committee to be a postconviction relief proceedings
without the threat of a death warrant. In suggesting these guidelines, the Committee was not singling out the
death penalty process since time standards have already been adopted by the Court for almost every type of
case in the judicial process. Id. [Emphasis Supplied.]
The recommendation included an understanding that the Governor would withhold signing the death warrant for
a period of two years and eight months "after the death penalty has been affirmed on the merits[,]" to allow the
death-sentenced convicted murderer to file the initial postconviction motion and have it resolved by the courts.
The Florida Supreme Court Committee made other recommendations, including:
1. That specific counsel should be identified for every death-sentenced convicted murderer within 30 days of the
date the death sentence is upheld by the Florida Supreme Court or United States Supreme Court, whichever is
later; and
2. That the state courts should monitor and coordinate death penalty postconviction proceedings to assure that
there are no unjustified delays.
H. Reform of the Florida Rules of Criminal Procedure in 1993
Two years after the Florida Supreme Court Committee on Postconviction Relief issued its report, the Florida
Supreme Court adopted the recommendations of the Committee and Justice Overton to require that
postconviction motions be filed within one-year from the date the direct appeal became final. In re Rule of
Criminal Procedure 3.851 (Collateral Relief after Death Sentence Has Been Imposed), 626 So.2d. 198 (Fla.
1993). The Florida Supreme Court agreed to the new rule by a one-vote margin. The following exceptions and
restrictions applied to the one year time period:
1. The rule was contingent upon a finding that a death-sentenced convicted murderer will have counsel
assigned and available to begin addressing the prisoner's postconviction issues within 30 days after the
judgment and sentence become final.
2. The Court reserved the power to suspend the rule and stay any proposed execution if the governor signed a
death warrant before the expiration of the time limitation.
3. The one year time period does not preclude the right to amend or to supplement pending pleadings pursuant
to these rules.
4. The rule provides for extensions that may be granted by the Supreme Court of Florida for the filing of
postconviction pleadings if the prisoner's counsel makes a showing of good cause for counsel's inability to file
the postconviction pleadings within the one-year period. Id at 198.
The Court adopted the rule only after assurances by the Legislature that increased funding would be provided to
the Office of the Capital Collateral Representative, stating: "In the event the Capital Collateral Representative is
not fully funded and available to provide proper representation for all death penalty defendants, the reduction in
the time period would not be justified and would necessarily have to be repealed, and this Court will forthwith
entertain a petition for the repeal of the rule." Id at 199. In addition to these qualifications to the one year time
limitation, the governor agreed that no death warrants would be issued during the initial round of state and
federal collateral review. Id at 199.
Justice Overton, writing for the majority in favor of the new rule, addressed the reasonableness of the one year
period for filing postconviction motions:
The one-year period is clearly a reasonable time in which to commence postconviction relief proceedings. This
time period in which to initiate postconviction relief proceedings for a death penalty prisoner, who has counsel
ready and available to represent him or her, is consistent with the recommendations of The Florida Bar's Special
Commission, chaired by John F. Yetter, Professor of Law, Florida State University, and the Criminal Justice
Task Force Report to Governor Lawton Chiles dated February 27, 1991. It also gives a defendant twice as long
as the six-month period suggested in the Powell Committee Report. See Ad Hoc Comm. on Federal Habeas
Corpus in Capital Cases, Judicial Conference of the United States, Comm. Report and Proposal 1 (1989)
(chaired by [United States Supreme Court] Justice Lewis Powell).There is no "plain" constitutional violation as
asserted by my colleague. Not only is this one-year period more than adequate, it is also consistent with the
views of other objective entities. Id., at 200.
Despite increased funding appropriated by the state to provide postconviction legal representation to death-sentenced convicted murderers, in part to implement this rule, delays have increased. From 1994 through 1998,
those delays averaged 13.98 years. From 1989 until 1993, just before the Supreme Court adopted the above
rule, those delays averaged 10.4 years. Thus, since the adoption of the Florida Supreme Court rule, delays
have increased by 34%. These delays occurred even though funding to provide postconviction legal
representation for death row inmates increased from $1.614 million dollars in fiscal year 1988-89 to $4.506
million dollars in fiscal year 1997-98, a 79% increase.
I. Legislative Reforms In 1996
In 1996, the Legislature passed Section 924.055 (1), Florida Statutes, to reduce delays in capital cases by
imposing statutory time limits on the filing of postconviction motions and on the amount of time the courts have
to rule on the issue. The statute imposes the following requirements:
1. Postconviction motions must be filed in the state courts within one year of the conclusion of the appeal, and
no exceptions are provided.
2. Circuit courts must rule on a postconviction appeal within 90 days after the state responds to the appeal.
3. The Florida Supreme Court must resolve any postconviction appeal filed in that court within 200 days.
The legislation did not provide a mechanism to require the courts to comply with the time periods for resolving
postconviction motions. This legislation does include a provision to encourage a death row inmate to file prompt
motions instead of waiting until the last moment:
If any court refuses to grant relief in a collateral postconviction proceeding, the convicted person has 90 days in
which to seek further collateral review. Failure to seek further collateral review within the 90-day period
constitutes grounds for issuance of a death warrant ... Section 922.095, Florida Statutes.
In 1996 the Legislature also amended Chapter 922, Florida Statutes, to provide that death warrants will remain
in full force and effect until the execution occurs. Section 922.06, Florida Statutes. This legislation further
required the Governor to reinstate a death warrant within 10 days after receiving notification by the Attorney
General that a court-ordered stay has been "lifted or dissolved." Id.
These judicial and legislative reforms have failed to reduce the increasing and significant delays in capital
cases. To date, staff is unaware of any postconviction appeal being resolved within the time limits of the Florida
Rule of Criminal Rule 3.851 or Section 924.055, Florida Statutes.
J. The McDonald Commission Report, 1997
Frustration with increasing delays and reports of litigation abuses by the Office of the Capital Collateral
Representative led to the creation of another study commission known as the "McDonald Commission," named
after former Florida Supreme Court Chief Justice Parker Lee McDonald, who was appointed by Governor Chiles.
Representative Victor D. Crist and Senator Locke Burt also served on the Commission. See "Joint Agreement
To Appoint A Commission To Study Postconviction Representation of Indigent Death Row Inmates," signed by
Governor Chiles, Senate President Jennings, and House Speaker Webster, on December 16, 1996. [See,
Appendix 8.]
The agreement to create the McDonald Commission contained several WHEREAS clauses including one
declaring "that the reforms undertaken by the Legislature and Supreme Court in 1993 and 1996 . . have failed
and [this failure has] resulted in excessive delays in the administration of justice in capital cases." Id. The
Commission was charged to "review the entire subject of postconviction representation of indigent death row
inmates and the attached legislation." Id. The attached legislation referred to a draft bill which would have
privatized the office of the Capital Collateral Representative, effective 2000. The draft bill also would have
imposed significant limitations on repetitive postconviction appeals.
After receiving extensive testimony, the Commission made the following factual findings:
1. CCR has refused or failed to represent at least 14 eligible, indigent death-row inmates, despite a substantial
increase in the budget . . . in the last fiscal year. . . .[A]s of January 10, 1997, CCR has failed to file a single,
initial postconviction pleading since April 15, 1996. This failure occurred despite a . . . staff of one lawyer per six
clients, with support investigators and staff [emphasis supplied;]
2. The State of Florida currently provides the most comprehensive system [in the nation] for providing legal
services to already convicted death row inmates . . . ;
3. The . . . mission of CCR has been to both represent individual clients and to cause a dismantling of the death
penalty. . . ;
4. [B]ased on CCR's lack of institutional integrity, Florida should consider other models of postconviction
representation.
Report, Commission for the Review of Post-Conviction Representation, Feb. 13, 1997, pages 2-3, attached as
Appendix 9.
The McDonald Commission recommended several reforms to the Legislature, including:
1. The consideration of creating three separate and distinct regional capital collateral counsels, which will be
located in Northern, Central, and Southern Florida;
2. The creation of a Joint Legislative Committee on the Administration of Justice in Capital Cases to review the
Regional Counsel's budget expenditures and management;
3. That the Florida Supreme Court should incorporate by rule the time lines contained in section 924.055,
Florida Statutes; and
4. That the Legislature limit repetitive postconviction motions to newly discovered evidence claims and changes
in the law.
The Commission also recommended that the Legislature consider assigning Public Defenders to represent
death row inmates on postconviction motions. The Commission offered the following reason for this
recommendation:
Public Defenders currently provide trial and appeal representation to indigent criminal defendants. The attorneys
employed in these offices are experts in criminal law. The Public Defenders are experienced in every aspect of
criminal-defense representation and would be qualified to represent death-sentenced inmates. Some have
provided collateral representation to convicted inmates.
Report, pages 5-8.
K. 1997 Death Penalty Legislation
In 1997, the Legislature reorganized the Office of Capital Collateral Representative into three regional,
independent offices known as the Capital Collateral Regional Counsel, and adopted some of the Commission's
other recommendations. Chapter 97-313, Laws of Florida. This legislation also created the "Commission on the
Administration of Justice in Capital Cases" to review the operations of these new offices.
The 1997 law also states that any "motion for postconviction relief in a capital case may not be considered if the
motion is filed more than one year after the judgment and sentence became final", unless certain extenuating
circumstances existed. These exceptions were very narrowly defined to include only newly discovered evidence
and a change in constitutional law. Section 924.051(6)(b)(1), Florida Statutes.
L. 1998 Death Penalty Legislation
In 1998, the Legislature passed several reforms in an attempt to expedite the filing of postconviction appeals by
authorizing the utilization of private legal counsel. When the offices of the Capital Collateral Regional Counsel
fail to timely represent a death-sentenced convicted murderer, the new law required the appointment of private
legal counsel. Chapter 98-197, Laws of Florida. This reform established a detailed payment schedule and time
limitations for the performance of legal representation in a capital postconviction proceeding. This reform may
already be providing more timely capital postconviction legal representation. See, "More Private Bar Involvement
Speeds Death Penalty Appeals," The Florida Bar News, Nov. 15, 1998. When the Capital Collateral Regional
Counsel failed to timely file a notice of representation for convicted mass murderer Danny Rolling, this law
authorized appointment of private counsel.
The Legislature also amended Chapter 119, Florida Statutes, in an attempt to reduce delays caused by public
records requests. Chapter 98-198, Laws of Florida; Section 119.19, Florida Statutes. This reform required that
the state attorney who prosecuted the capital defendant and each law-enforcement agency involved in that
prosecution must provide copies of all public records, except those filed in the trial court, "which were produced
in the investigation or prosecution of the case." Section 119.19 (3)(b), Florida Statutes. Other state agencies
and private individuals possessing records are also required to provide copies to the Secretary of State for
storage in a repository. This law created a detailed schedule and procedure for the production of public records
to capital postconviction attorneys. The legislation imposed limits on the any additional demands for public
records in capital cases. Section 119.19 (9)(a), Florida Statutes.
M. Effect of Reform Measures
Despite these reforms, death-sentenced convicted murderers are currently allowed to file postconviction appeals
beyond statutory time limits, and the length of time from imposition of the death penalty to the actual execution
has steadily increased. See, In Re Rule of Criminal Procedure 3.851 and Rule 3.850, 708 So. 2d. 912 (Fla.
1998) (Wells, J., dissenting.). Death row inmates continue to file multiple postconviction motions challenging
their convictions and sentences, and some of this litigation has lasted over a decade. See Groover v. State, 703
So. 2d. 1035 (Fla. 1998) (First postconviction motion filed in 1986; Court resolved eighth postconviction action in
1998.); Mills v. State, 684 So.2d. 801 (Fla. 1986) (Seven postconviction actions filed In state court in addition to
similar actions in federal court.); Lambrix v. State, 698 So.2d. 247 (Fla. 1996)(extensive postconviction review
recited).
All of the efforts to reform capital postconviction proceedings have significantly changed the law in Florida, but
the question remains whether the number of postconviction appeals and the delays will be reduced. While the
reforms adopted in 1997 and 1998 may yet reduce postconviction appeals, delays, and costs, the evidence to
date has indicated that earlier reforms have not succeeded.
IV. VICTIMS' RESPONSES TO QUESTIONNAIRE
The interim project directed staff to contact murder victims' families and solicit their comments regarding the
impact of judicial delays. With the assistance of the Attorney General's Office, staff mailed out a questionnaire
to persons who had family members murdered by inmates on death row and received 118 responses. Below are
the questions asked and a summary of the responses:
A. How Long Has the Defendant in Your Case Been on Death Row?
Based on the responses in which an inmate could be identified, the average length of time the inmate has been
on death row was 12.66 years.
B. Please write your opinion, if any, for why the process is taking so long?
The most common answer was that the appeals never seem to end. The son of a victim wrote that during a
court hearing the murderer, Kenneth Foster, stood up and announced that he killed the victim and that he meant
to do it. The son does not understand why this admission has not been sufficient reason to allow an execution
for the last 23 years. Many family members wrote that the defendants have too many rights, especially when
there is a confession and no doubt about innocence. The father of a woman killed by Danny Rolling wrote that
"for admitted confessed killers there should be no appeals whatsoever, none." Some respondents believe many
motions are filed to buy time for the inmates and they question the ethics of the CCR attorneys. A grandfather of
victims in a triple murder who were beaten to death in their home by Allen Lee Davis 16 years ago expressed his
frustration as follows:
Justice is the swift administration of law. This is far from it. Our judicial process is characterized by unwarranted
and invented delays of every description...Such procrastination for years in the judicial system is the prime cause
of the high crime rate. It is an insult to the victim's family, the integrity of the courts, and the jurors who wasted
their time...Persons sentenced to death have made a mockery of our so called justice system with endless,
groundless appeals. Our justice system should be known as the INJUSTICE SYSTEM. Donald A. Weller
C. Do you have any suggestions for making the process faster and more fair to the victims?
The response was overwhelming that the state should stop granting appeals or that there should be an absolute
time limit for allowing appeals. A common theme to the recommendations from family members was that the
state should "establish time limits for each phase and stick to them." Many of the responses were very specific.
One person suggested that the date of execution should be set at the same time the sentence is imposed.
Another person said that there should only be one appeal and that it should only be allowed if there is a
reasonable doubt. Another wrote that all issues to be appealed need to be filed within one year, not over
multiple years. The brother of a Florida State Trooper who was shot by a cocaine dealer in 1987 made the
following suggestions:
Excessive numbers of appeals are permitted. The constitution guarantees every person the right to a fair trial,
not a perfect trial. Convicts should have the right to appeal their convictions once, all the way to the Supreme
Court. If they are found to be guilty, and have received a fair trial then it is time to carry out the sentence.
The Florida Supreme Court takes too long to decide a case. We need to seriously look at the creation a second
supreme court, whose sole purpose would be to review death penalty cases. Currently, the court is
overburdened with civil and criminal cases. The creation of a supreme death penalty court would result in a
faster appeals process before a court whose justices would have greater knowledge and experience dealing with
death cases and provide convicts and victims' families with timely decisions on appeals.
2. A family member who has been waiting 24 years for the execution of Charles Foster is understandably
dismayed at the length of the delays when the proof is overwhelming. Attached to the family member's response
is a statement that the Charles Foster made in the original trial:
I reckon I'll just cop out. I have done it, killed him deader than hell. I ain't going to set up here, I am under oath
and I ain't going to tell no . . . lies. . . . I am the one that done it. They (the female co-defendants) didn't have a . .
. thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn't had no
money and I know I never told you about it but I killed him.
D. Should the state subsidize legal representation for the defendants in death penalty cases beyond
what is required by the United States Constitution?
The response was unanimously negative. Many were concerned with the implication that representation is
being provided beyond what is required. A woman who has been waiting for the execution of Allen Davis for 15
years writes that the constitution only requires a presumption of innocence and a speedy trial until a person is
proven guilty by a jury of peers, and she believes that Allen Davis received a trial that our founding fathers
would have found exemplary. Another family member writes that in the case against Henry Davis, " [i]t is the
ultimate insult for our family, through taxes to have to pay for eight years of continued legal support for the
convicted murderer of a loved one."
E. What is the estimated financial impact your family incurred through this process?
The responses to this question ranged from tens of thousands dollars to the more common reply that the
financial loss was insignificant compared to the devastating personal and emotional suffering. One woman
whose husband was killed by Terry Sims 21 years ago wrote: "The family was denied the major wage earner's
salary and benefits. I have four children, two were in college, and two were under 18."
F. What ways could the State be more helpful to the families of murder victims?
The responses generally included a plea for closure, justice and an end to the appeals. This question also
generated a lot of praise for victim advocates, especially for Wendy Hallowell with the Attorney General's Office.
The publicity that some people on death row receive outraged some respondents. One person wrote that
convicted murderers should not be able to communicate with the outside world except through their attorneys,
prison personnel or chaplains. Another family member suggested making the murderer attend the funeral of the
victim.
G. How have delays affected your family?
It is not possible to summarize the emotional and varied responses to this question. Alcoholism, divorce and
bankruptcy was cited as some results of the trauma of the crime and the delays by the survivors. The families
are very much afraid of the murderers. One family member of a victim who was killed more than eight years ago
by Louis Gaskin wrote that they are terrified every time they receive the mail because they are afraid that the
death penalty will be reversed on some technicality. The family is afraid that the defendant may be released
and kill again. Another family member wrote poignantly about the affects of a 20 year delay. This delay
required the parents during retrials to repeatedly tell the story of how James Ernest Hitchcock raped and beat
their children with one of the children being beaten to death:
My family has suffered through delays for 20 years...I will summarize the effects on the delays on my family as
best I can. The victims in this case were young children from the same family. In 20 years these children have
received little comfort from the Florida judicial system.
Fear seems to be the controlling emotion involved. The molester killed one of the children and threatened to kill
the others if any testified against him. Even from his jail cell, he threatened to hire people to kill family members
of his victims.
According to the psychiatrists consulted, living under this kind of constant fear for so long has profoundly affected
the lives of the young victims:
Sister of murder victim - (11 years old at the time of the murder)
She was molested and threatened with death. Doctors reports state that she is unable to trust in men. She has
had four failed marriages. She cannot allow her children to be away from her overnight. They cannot have
sleep overs at friends' houses or group camping trips, etc. She contacts a policeman any time she notices that
an unfamiliar car drives by her home more than once. Court delays and unending appeals have robbed this
young woman of a normal family life.
Oldest brother of murder victim - (8 years old at the time of murder)
Like the others, he was threatened with pain and death if he told what he witnessed. Although he was only eight
at the time of the murder, he felt guilty because he lacked the courage to come forward and testify. This eight
year old boy felt that he could have prevented his sister's murder if he had told adults of the molestations. He
became an alcoholic and died in an alcohol-related automobile accident.
Younger brother of murder victim - (seven years old at the time of murder)
He has subconsciously blotted out all memory of the molestations and rapes. He suffers from denial. He too
consumes alcohol every day.
Grandmother of the victim - (she is now 80 years old)
This women watched her children and grandchildren suffer through twenty years of court delays. She is filled
with anger and frustrations at a failed judicial system. She is now unable to control her tears and angry
outbursts. She has been barred from further court proceedings.
Cousin of the victim - (He was 13 years old at time of murder)
This young victim was visiting his cousin during the time of the molestations. He was sodomized and threatened
with death. His molester threatened to kill his parents if he told authorities of the crimes. He attempted to live a
normal life. He attended college and holds a responsible job. He was the first of the victims to step forward and
testify in spite of the death threats coming from the jail cell of the murderer. He felt that he was endangering the
lives of his parents by testifying. He took that risk because he believed that the truth would bring closure to this
case. It did not. Truth was lost amid the myriad of delays which characterize the Florida appeals process.
This young man suffered a breakdown and was admitted to a psychiatric facility. At present he is attempting to
rebuild his life...and still there has been no closure in this case.
The parents of this young man, the families of the victims, the children of the victims and, of course, the
murdered child's mother's pain cannot be described on these pages. All of these people referenced above have
suffered because of court delays.
Have delays affected our family? A murderer remains unpunished after 20 years of delay. The lives of innocent
victims have been ruined or lost. Old wounds continue to fester because the Courts will not resolve this case. A
murderer has made a mockery of the Florida judicial system. Twenty years of delay have robbed my family of
closure, of healing, and of life itself. Ronald E. Meadows
2. None of the respondents, despite enormous delays and constant litigation and new trials, suggested that the
state should give up on the death penalty. The husband of a woman who had been kidnaped, raped, and
savagely murdered by Johnny Robinson wrote the following:
I will be frank about this after giving it some thought. I am very frustrated by the fact that this man is still alive
and breathing 13 years after murdering Bev in could blood. I will not rest until this man is executed by the state
for what he did to her on the night of August 11, 1985. There has been 13 years of justice for the man convicted
of this heinous crime, but where is the justice for Bev?
V. FEDERAL AND STATE CONSTITUTIONAL REQUIREMENTS FOR STATE POSTCONVICTION REVIEW
AND OTHER LEGAL RESTRICTIONS
The most significant potential reform to Florida's postconviction review would involve either the elimination of
postconviction judicial review or the enactment of an absolute time bar after which further postconviction motions
could not be filed or amended. Time limits could be strengthened by providing that no state resources will be
provided for any proceeding or legal services that are in violation of the time limits. These reforms would raise
significant legal issues including habeas corpus, ex post facto, right to counsel and Florida's constitutional
provision requiring access to the courts. Any legal challenges to reform are likely to rely on Florida's
Constitution because the United States Supreme Court has held that under federal law "the states have no
obligation to provide postconviction [collateral] relief." Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). This
section will analyze the legal issues that would arise from legislation limiting or prohibiting an inmate's ability to
file state postconviction motions.
A. Habeas Corpus
The most serious legal challenge that may be raised against legislation limiting a death-sentenced convicted
murderer's ability to file postconviction motions is whether such a law would be a violation of the habeas corpus
provision in the Florida Constitution. Habeas corpus is a writ directed to the person detaining another,
commanding the production of the prisoner. A person applies for habeas corpus by challenging the legality of
the detention.
Article 1, Section 13 of the Florida Constitution provides:
The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without
delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the
public safety.
Article 1, Section 9 of the United States Constitution in part provides:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.
B. History of Habeas Corpus in Federal Court
The writ of habeas corpus originally existed in the United States to prevent arbitrary detention without trial. The
Writ did not authorize the review of judgments rendered by courts possessing jurisdiction. Felker v. Turpin, 116
S.Ct. 2333 (1996). At common law and until 1867 a judgment of conviction by a court with authority to hear
criminal charges against a person was conclusive proof that confinement was legal. U.S. v. Hayman, 342 U.S.
205, 211, 72 S.Ct. 263 (1952). The writ of habeas corpus in the federal courts did not authorize collateral
attacks [postconviction motions] against a judgement and sentence until Congress expanded the scope of
habeas corpus in 1867. That legislative expansion of habeas was repealed the following year and reestablished
again in 1885. Id. Prior to 1867, habeas proceedings in federal court did not involve fact finding hearings.
Habeas Corpus Checklists by Ira P. Robbins p. 14-1.
In Felker the Court reviewed the history of habeas in order to demonstrate that habeas may be regulated by
statute without violating the Constitution:
It was not until 1867 that Congress made the writ generally available in "all cases where any person may be
restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States...And it
was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction
in a state court to be collaterally attacked on habeas. See, e.g., Waley v. Johnston, 316 U.S. 101... Id. S.Ct. at
2340.
At common law, and until 1944, a federal habeas corpus action had to be brought in the federal district court
where the petitioner (inmate) was confined. U.S. v. Hayman, 342 U.S. 205, 72 S.Ct. 263 (1952); Ahrens v.
Clark, 335 U.S. 188, 68 S.Ct. 1443 (1948). This rule caused practical problems because the few district courts
whose territorial jurisdiction included major prisons were required to handle an inordinate number of habeas
corpus actions. The witnesses for these actions were most often in the territorial district of the sentencing judge.
Thus in one case an inmate in California alleged that United States Attorneys and a deputy marshal in Texas
forced the inmate to plead guilty in the District Court for the Northern District of Texas. The federal habeas
corpus procedure, as expanded by statute to allow post-conviction collateral motions, required that hearing take
place in California where the inmate was located. Live testimony was required, so the witnesses had to travel
from Texas to California. U.S. v. Hayman, 342 U.S. 205, 72 S.Ct. 263 (1952); citing, Walker v. Johnston, 312
U.S. 275, 61 S.Ct. 574 (1941). To resolve this practical problem Congress passed 28 U.S.C.A. Section 2255 in
1944 which required prisoners convicted in federal court to apply for habeas corpus in the sentencing court
instead of the court in the territory where the inmate was confined. U.S. v. Hayman, 342 U.S. 205, 72 S.Ct. 263
(1952).
C. Habeas Corpus in Florida
In 1963 the United States Supreme Court in Gideon v. Wainwright, 371 U.S. 335, held that there is a
fundamental right to counsel. Of approximately 8,000 people then in Florida prisons, 4,065 entered pleas of
guilty without the advice of counsel. Immediately after Gideon was decided, petitions for habeas corpus
increased dramatically and the state courts were faced with the same practical problems that Congress
addressed on the federal level back in 1944. However, unlike the federal law, the changes in state law which
required that prisoners apply for habeas corpus in the sentencing court were not accomplished by statute.
Instead of resolving the problem by encouraging legislation, the Florida Supreme Court adopted Rule 1 of the
Florida Rules of Criminal Procedure which is "copied almost verbatim" after 28 United States Code, Section
2255. Roy v. Wainwright, 151 So.2d 825 (Fla. 1963). Rule 1 was made effective on April 1, 1963, exactly two
weeks after the United States Supreme Court decided Gideon.
Rule 1, which was copied from 28 U.S.C.A. Section 2255, greatly expanded the scope of habeas corpus in
Florida. Rule 1 allowed a prisoner to challenge a sentence in state court if:
...the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of
Florida, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack...
Rule 1, Fla.Rules Crim.Pro. [Rule 3.850, the successor to Rule 1, contains slightly broader language]. This
expansion of habeas corpus was done by rule instead of statute because it was believed that a rule would be
more flexible, because time was of the essence, and because the legislature was not in session. Brown,
"Collateral Post Conviction Remedies in Florida," 20 U.Fla.L.Rev. 306 (1968). Florida courts never addressed
the issue of whether the court had authority to establish a rule to hear collateral claims of ineffective assistance
of counsel.
The scope of habeas corpus in Florida had been gradually expanded by the Florida Supreme Court before the
adoption of Rule 1. Early in Florida's history, there were only four legal issues that could be remedied by
habeas corpus. The four grounds for issuing a writ of habeas corpus were as follows:
1. The trial court did not have jurisdiction over the person. [A circuit court has jurisdiction over a person if the
crime occurred in the county in which the court is located.]
2. The trial court did not have subject-matter jurisdiction. [The circuit court has subject-matter jurisdiction to hear
felony violations of state law.]
3. The court did not have the power to render the judgment. A sentence above the statutory maximum is an
example of a judgement that a court does not have the power to render.
4. The statute under which the inmate is being held is unconstitutional.
Grebstein v. Lehman, 129 So. 818 (1930); Re Theisen, 11 So 901 (1882); see 28 Fla. Law Jur. 2d at 424 n.2.
In more recent cases the Florida Supreme Court has allowed habeas corpus to be used for the most obvious
and significant violations of law. For instance, in Deal v. Mayo 76 So. 2d 275 (Fla. 1954), habeas corpus was
allowed to determine whether a sentence violated the double jeopardy provision in the constitution. See
Blackburn v. Cochran, 114 So. 2d 684 (Fla. 1959) (habeas corpus was allowed where an insane person was
sentenced without first being restored to sanity); Gideon v. Wainwright, 372 U.S. 335 (1963)(Florida Supreme
Court reviewed through habeas corpus whether a person had a right to an attorney). See also State v. State ex
rel Cootner, 44 So.2d 96 (Fla. 1950)(the law was settled long ago that habeas corpus would not issue where
there was a remedy by appeal or writ of error, unless the charge was wholly void or the statute under which the
charge was filed was void, citing, Lehman v. Sawyer, 143 so. 310; In re Robinson 75 So. 604, Spooner v. Curtis,
96 So. 836).
Aside from the adoption of Rule 1, the Florida Supreme Court's active role in expanding the scope of habeas
corpus was most pronounced in the case of Sneed v. Mayo, 66 So. 2d 865 (Fla. 1953), where the Court cited
federal law for the following proposition relating to how habeas corpus is not limited to jurisdictional issues:
Jurisdiction of the person and of the subject matter is not alone conclusive [as to whether an inmate should be
released for filing a petition for habeas corpus, and] the jurisdiction of the court to make or render the order or
judgment depends upon due observance of the constitutional rights of the accused. 25 Am.Jur., Habeas Corpus,
sec. 27, p. 161. See also, Palmer v. Ashe, (342 U.S. 134)(emphasis added).
In Sneed, the Florida Supreme Court plainly relied on federal authority for habeas corpus as expanded by
federal statute to justify the expansion of state habeas corpus without statutory authority. The subtle legal and
factual wranglings necessary to resolve issues, such as claims of ineffective assistance of counsel, were not
contemplated by the Florida courts as being appropriately raised through habeas corpus until Rule 1 was
adopted. Of course, Rule 1 was adopted after the United States Supreme Court in Gideon required legal
counsel for defendants in felony cases.
While collateral review may be eliminated by legislation on the federal level, it is possible that the Florida
Supreme Court would interpret the habeas corpus provision in the Florida Constitution as requiring that a
defendant be allowed collateral review, perhaps even for successive postconviction motions, on the state level.
The Florida Supreme Court has cited federal law to imply that the state rule of procedure for postconviction
motions has a basis in the habeas corpus provisions in both the state and federal constitutions, and thus could
not be limited by legislation.
In Haag v. State, 591 So.2d 614 (1992), the Florida Supreme Court stated, "[I]n the case of State v. Bolyea, 520
So.2d 562, 563 (Fla. 1988), we recognized that Rule 3.850 [former Rule 1] 'is a procedural vehicle for the
collateral remedy otherwise available by writ of habeas corpus.'" However, the Florida Supreme Court's
suggestion that Rule 3.850 emanates from the habeas corpus provision in the state constitution is misleading.
The Court's opinion in Bolyea relies on a quote from the United States Supreme Court in Hill v. United States,
368 U.S. 424 (1962) that discusses the history of 28 U.S.C. Sec. 2255 from which Florida's modern
postconviction rule of procedure, Rule 1, was copied:
It conclusively appears from the historic context in which [28 U.S.C.] Sec. 2255 was enacted that the legislation
was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had
previously been available by habeas corpus.
Hill 368 U.S. at 427. The United States Supreme Court in both Hill and Hayman was not referring to the
constitutional scope of habeas corpus, but rather, the Court was referring to federal habeas corpus as it had
been expanded by an earlier statute before the enactment of 28 U.S.C. Sec. 2255. In other words, the Florida
Supreme Court relied on a statement made by the United States Supreme Court to authorize the state rule for
postconviction motions. However, the federal case relied upon actually stands for the opposite conclusion,
namely, that postconviction motions are not permitted without statutory authority.
D. Florida Statutes Relating to Habeas Corpus
Florida has a statute relating to the application for writ of habeas corpus which makes a writ for habeas corpus
available when: "...any person detained in custody... shows... probable cause to believe that he or she is
detained without lawful authority . . . . Section 79.01, Florida Statutes. If the Florida Supreme Court ever desired
statutory authority to expand the scope of habeas corpus, the authority could have been found in the vague and
broad phrase "detained without lawful authority," which dates back to 1822 when Florida was a territory.
"Detained without authority" could be interpreted to mean imprisoned without effective assistance of counsel, for
example.
Authority for the regulation of habeas corpus by statute is mixed. Generally, the authority of the courts to hear any issue is established by the constitution not the legislature, but the legislature does have some control over the court's ability to hear issues such as when a new crime or a new cause of action is created. If the court's ability to hear postconviction motions has been expanded beyond the requirements of the habeas corpus provision in the state constitution, then the legislature may restrict the court's ability to hear postconviction motions. Statutes are controlling over court created laws, 1 Fla. Jur. 2d sect. 38, and court rules of procedure may be repealed by a two-thirds vote of the legislature. However, there are limits to how much the legislature may restrict or regulate habeas corpus. For example, the Florida Supreme Court in Sullivan v. State, 44 So.2d 96 (Fla. 1950), stated that "the legislature could not alter the scope of habeas corpus." But that statement related to an attempt by the legislature to use habeas corpus as a vehicle to bypass the lower courts. The court's statement also presumes that habeas corpus, as it existed at the time of the opinion, was within the parameters of its constitutional meaning. In Kalway v. Singletary, 708 So.2d 267 (Fla. 1998), the Florida Supreme Court upheld a statutory 30 day time
limit on when an inmate may file a court action challenging prisoner disciplinary proceedings. The late-filed
court action in Kalway was a writ of mandamus which, like habeas corpus, is an old common law writ. The
Florida Supreme Court held that the statute limiting court action did not violate the separation of powers clause.
In other words, any interference with the authority of the court was not sufficient to be unconstitutional. The
court in Kalway noted that the two branches of government can work hand-in-hand to promote the public good or
implement the public will. To further support the authority of the legislature to implement the 30 day time
restriction in Kalway, the court quoted another case where the Florida Supreme Court deferred to the legislature
in a matter relating to the constitutional right to appeal:
[W]e believe that the legislature may implement this constitutional right [to appeal] and place reasonable
conditions upon it so long as they do not thwart the litigants' legitimate rights. Of course, this Court continues to
have jurisdiction over the practice and procedure relating to appeals.
Kalway v. Singletary, 708 So.2d 267 (Fla. 1998); quoting Amendments to the Florida Rules of Appellate
Procedure, 685 So.2d 773 (Fla. 1996).
E. State Right to Petition for Habeas Corpus
If the Florida Supreme Court is confronted with the issue of whether a statute may limit collateral proceedings,
the court may rule that the statute is unconstitutional to the extent that it impinges on the right to habeas corpus.
The court would then have to determine whether the expansion of the scope of habeas corpus, as authorized by
Rule 3.850 and by case law, is grounded in the state constitution's habeas clause. If the Florida Supreme Court
determines that the meaning of the constitutional provision has expanded in the last 40 years, then the court
may determine that the bill violates the habeas corpus provision in the state constitution. On the other hand, if
the court follows federal and historical precedent and determines that the expansion of habeas was the result of
court generated law or common law, then the statute limiting collateral review will take precedence and should
be upheld. See 1 Fla. Jur. 2d sect. 38 (where statute is inconsistent with common law, the statute controls).
While it is the legislature's prerogative to limit the scope of habeas to what was intended in the state or federal
constitution, the legislature can not prevent the court from broadly interpreting habeas corpus beyond the
original intent of the people of Florida. If the Supreme Court decided to give a broad interpretation to the
meaning of the habeas corpus provision in the state constitution, then the legislature's only remedy would be to
submit a proposed constitutional amendment to the voters to overrule the court, as the 1998 Legislature did
when it approved HJR 3505 for submission to the voters. That proposed amendment was overwhelmingly
approved and now limits the Florida Supreme Court's authority to review the constitutionality of capital
punishment methods. The 1982 Legislature also submitted a proposed state constitutional amendment to the
voters to limit the Florida Supreme Court's authority to invalidate searches and seizures by law enforcement
officers. That proposed amendment was also approved by the voters.
As discussed in part III, other states, including Virginia, Texas, and Missouri have been successful in placing
strict restrictions on state habeas. Texas does have a provision in its constitution providing that "the Legislature
shall enact laws to render [habeas corpus] the remedy speedy and effectual." However, Virginia, and Missouri
do not have similar provisions in their constitutions, and their restrictions on Habeas Corpus are among the most
restrictive in the country.
F. Right to Counsel
The Florida Supreme Court has indicated that death-sentenced convicted murderers do not have a
constitutional right to postconviction counsel. See Lambrix v. State, 698 So.2d. 247, 248: "Lambrix also argues
that his collateral counsel's failure to appeal the trial court's denial of his request to represent himself constituted
ineffective assistance of counsel. However, claims of ineffective assistance of postconviction counsel do not
present a valid basis for relief. Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v. Finley, 481 U.S. 551
(1987)." [Some citations omitted; emphasis supplied.] However, the argument would likely be raised again if
proposed legislation attempted to reform the state's collateral review process, particularly if the state refuses to
pay for legal services or procedures for multiple postconviction claims.
No federal constitutional right to counsel would be implicated, however. Under recent rulings of the United
States Supreme Court, however, the state is free to limit its payment for postconviction legal representation
under the federal constitution. In Murray v. Giarratano, 492 U.S. 1 (1989), the United States Supreme Court held
that indigent death row inmates from Virginia were not entitled to be provided with counsel at state expense for
state level collateral proceedings:
Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not
part of the criminal proceeding itself, and it is in fact considered to be civil in nature.... States have no obligation
to provide this avenue of relief, and when they do, the fundamental fairness mandated by the Due Process
Clause does not require that the state supply a lawyer as well.
Murray v. Giarratano, 492 U.S. 1, 8 (1989), quoting, Pennsylvania v. Finley, 481 U.S. 551, 556-7 (1989). This
ruling would appear to apply to representation in collateral proceedings on the federal level as well. Gonin v.
Vasquez, 999 F.2d 425 (9th Cir. 1993).
There is legal authority in Florida for the proposition that due process may require that counsel be provided in a
collateral proceeding if the claim is meritorious and so complex that counsel is necessary for a fair presentation
of the motion. State v. Weeks, 166 So. 2d 892, 897 (Fla. 1964); Graham v. State, 372 So. 2d 1363 (Fla. 1979);
Russo v. Akers, So.2d (Fla. 1998). However, the Florida Supreme Court in Weeks and Graham relied on
a federal circuit court decision for the proposition that the United States Constitution's Fifth Amendment due
process clause may impose a right to counsel in meritorious postconviction motions. That federal decision is no
longer good law, and the states have absolutely no federal obligation to provide counsel for postconviction
motions. Murry v. Giarratano, 492 U.S.1 (1989).
The Florida courts have never faced a statute that unequivocally prohibited the courts from appointing counsel
funded by the State. However, the recent Florida Supreme Court in Russo indicates that a statute that
completely precludes the court from appointing state funded attorneys would be unconstitutional as mandated
by Weeks and Graham. Of course, Weeks and Graham rely on an interpretation of the federal constitution. If
the Florida Supreme Court were to hold a statute directly on point to be unconstitutional, the Court would have
hold that the identical due process clause in the state constitution is broader than the federal constitution's due
process clause. It is possible that the Florida Court could hold that the state constitution provides more rights
than the federal constitution even though the language is the same. See Haliburton v. Singletary, 514 So.2d
1088 (Fla. 1987) (Interrogation of witness violated Florida's due process clause where United States Supreme
Court held that same act did not violate federal due process).
G. Access to Courts
Article 1, Section 21 of the Florida Constitution provides: "The courts shall be open to every person for redress
of any injury, and justice shall be administered without sale, denial or delay." An argument may be made that the
access to the courts provision of the Florida Constitution could be violated by attempts to limit state
postconviction judicial review because such limits would "close the court house door" for lawful claims. The
Florida Supreme Court in Kluger v. White, 281 So. 2d 1 (Fla. 1973) held that the access to the courts provision
applies only to issues that could be raised by statutory law predating the adoption of the Declaration of Rights of
the constitution of the State of Florida, or where such right has become a part of the common law of the State
pursuant to Section 2.01, Florida Statutes. Section 2.01, which was passed in 1829, makes the laws of England
"down to the 4th day of July, 1776," in force in this state so long as not inconsistent with the laws of the state or
the United States. The Declaration of Rights was adopted in 1885, and therefore modern collateral claims such
as ineffective assistance of counsel are not protected by the access to the courts provision. However, the
Florida Supreme Court in a footnote in Eller v. Shova, 630 So.2d 537 (1993) clarified the ruling in Kluger to
mean that there is a right to access to the courts for common law claims in existence when the 1968 constitution
was adopted because the provision "differs significantly from its 1845 counterpart." See Agency for Health Care
v. Associated Industries of Florida, 678 So.2d 1239 (Fla. 1996) (Klurger interpretation of access clause quoted
with no clarifying reference).
If a preexisting right of access is abolished by legislation, then the Florida Supreme Court may still consider the
legislation constitutional if either:
1. There is a reasonable alternative to protect that preexisting right of access, such as further review in the
federal courts; or
2. There is an overwhelming public necessity for the change. (Such as the abuse of the judicial system with
frivolous claims and the loss of public trust).
Eller Id. at 542.
An argument can be made that strict limits on the filing of postconviction motions would meet both of the above
requirements.
H. Ex Post Facto
Both state and federal constitutions contain prohibitions against ex post facto laws (i.e., laws which criminalize,
or punish more severely, conduct which occurred before the existence of the law). See, Article I, Section 9 of
the Florida Constitution; and Article I, Section 10 of the United States Constitution. The Florida Supreme Court
has not delineated a difference between the ex post facto provisions of the Florida and United States
Constitutions. The Florida Supreme Court and the United States both use the following test to determine if there
is an ex post facto violation:
In evaluating whether a law violates the ex post facto clause, a two-prong test must be applied: (1) whether the
law is retrospective in its effect; and (2) whether the law alters the definition of criminal conduct or increases the
penalty by which a crime is punishable. Gwong v. Singletary, 683 So. 2d 109, 112 (Fla. 1996), cert. denied, ---
U.S. ----, 117 S.Ct. 1018, 136 L.Ed.2d 894 (1997), citing, California Dep't of Corrections v. Morales, 514 U.S.
499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
In Gwong, supra, the Florida Supreme Court held that a regulation that retroactively denied prisoners the ability
to earn discretionary gain-time was an illegal ex post facto law. The court explained that the loss of the "mere
expectancy" of incentive gain-time was ex post facto because, "a prisoner's eligibility for reduced imprisonment
is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of
the sentence to be imposed." Id. at 112.
Both the United States Supreme Court and the Texas Supreme Court have held that a retrospective change in
the method of execution does not violate the Ex Post Facto Clause:
We conclude in light of these holdings that execution by lethal injection may be imposed upon a defendant even
though death by electrocution was the mode of execution authorized by law at the time of the commission of
capital murder, at the time of his trial, and even if he had been previously sentenced to die by electrocution. The
statute under consideration did not change the penalty of death for capital murder, but only the mode of
imposing such penalty.
Ex parte Kenneth Granviel, 561 S.W. 2d 503 (Tex. App. 1978), citing Malloy v. South Carolina, 237 U.S. 180
(1915) (footnoted omitted).
Procedural changes in the law are not ex post facto laws even if the change causes a disadvantage to a
defendant. Dobbert v. Florida, 432 U.S. 282, 293 (1977)(statute altering method of deciding whether the death
sentence should be imposed held not to violate ex post facto). Similarly, limiting available state postconviction
review, or placing absolute time limits on state collateral review should not be considered an ex post facto law.
See Johnson v. State, 536 So.2d 1009 (Fla. 1988)(application of two-year bar for filing of postconviction motions
does not violate ex post facto where inmate was given two years to file motions after the rule was promulgated).
However, an argument would likely be raised that such limits would somehow increase punishment by
retroactively limiting a death-sentenced convicted murderer's opportunity to raise such claims.
I. Anti-Terrorism and Effective Death Penalty Act of 1996
In 1996 Congress passed significant habeas corpus reform as part of the "Antiterrorism and Effective Death
Penalty Act of 1996," Public Law 104-132. 110 Stat. 1214. The following reforms were included in the act:
1. Deadlines were imposed for the filing of habeas corpus in federal court;
2. Requires more deference to state court fact findings;
3. Limits successive [multiple] filings in federal courts;
4. Establishes timetables for federal courts to act on habeas corpus claims.
Parts of the federal law only apply to cases brought by prisoners who reside in states that provide indigent
inmates with competent counsel for state collateral motions. Any limits on repetitive state postconviction claims,
or the deadlines in which to file postconviction claims, would not likely implicate this federal statute, although
such an argument would likely be raised. Any proposal to eliminate state postconviction appeals would likely
make the state ineligible to comply with some of the provisions of the federal law.
VI. POSTCONVICTION REVIEW IN OTHER STATES
A. Virginia
Virginia has executed a higher percentage of its death row inmates than any other state. The state now has 40
people on death row. Virginia has executed 59 people since 1976, 22 of which were executed in 1997 and
1998, more than half of all executions in Florida since 1979. Despite having far fewer convicted murderers
sentenced to death than in Florida, Virginia has executed few more of its convicted murderers sentenced to
death than has this state, which has executed 43 convicted murderers since 1979 and has a death row
population of 372.
The most substantial difference between the two states regarding capital postconviction appeals is that Virginia
by statute imposes an absolute time limit on such appeals, with no exceptions. The state statute, which is also
the procedure for state habeas, provides that postconviction motions must be filed within sixty days of the final
appellate decision by the federal courts, or within 120 days of the appointment of counsel. The only remedy for
newly discovered evidence demonstrating innocence beyond the time limits allowed is executive clemency.
Virginia also requires defendants to file postconviction motions directly with the state supreme court. The trial
court, which sentenced the inmate to death, has authority to conduct an evidentiary hearing only if directed to do
so by the state supreme court.
B. Texas
Texas has executed 163 convicted murderers sentenced to death since 1976, with five more scheduled
executions in 1998. There are 436 death-sentenced convicted murderers in Texas currently incarcerated
awaiting execution. Texas has executed 54 convicted murderers in the last two years, more than the total
number of death-sentenced convicted murderers executed in Florida since 1979.
The effectiveness of the capital punishment laws in Texas may be the result of several factors. Article 11.071 of
the Texas Code of Criminal Procedure attempts to speed up collateral review, which, as in the federal courts is
known as habeas corpus, by setting forth procedures including the following:
1. Immediately after a defendant is sentenced to death, the court must determine whether a counsel should be
appointed for indigent defendants to file a writ of habeas corpus.
2. Application for a writ of habeas corpus must be filed no later than the 45th day after the date the appellee's
original brief is filed on direct appeal with the court of criminal appeals. One 90 day extension for good cause
shown is permitted.
3. A postconviction motion filed in violation of the time restrictions may not be heard unless (1) the factual or
legal basis for the claim was unavailable when a timely motion could have been filed, and (2) that but for a
violation of the United States Constitution no rational juror could have found the inmate guilty or voted in favor of
the sentence of death.
This rule of procedure was passed by the Texas legislature and subsequently upheld by Texas' highest court of
criminal appeals against claims that the rule violated the following state and federal constitutional provisions:
separation of powers, habeas corpus, ex post facto, equal protection, due process, and Texas' access to the
court provision. Ex parte Davis, 947 S.S.2d 216 (Tx. 1996) The purpose of these procedures appears to be to
give finality to state proceedings by confining the collateral process so that it runs concurrently with the direct
appeal in capital cases. New and additional claims are restricted on the state level, but may still be raised in the
federal courts. Although these measures have had some success in Texas, the average length of time from the
imposition of the sentence to the execution of the death penalty is approximately 9.5 years.
The Texas Court of Criminal Appeals is the state's highest court for criminal cases and hears all capital appeals,
including postconviction appeals. This court hears only criminal matters, which may allow it to resolve death-penalty cases more expeditiously. The Texas legislature has also limited this court's authority to engage in rule
making, which may reduce the number of procedures and delays in capital cases. The Texas Court of Criminal
Appeals determines the reasonable compensation for appointed counsel and has discretion to deny
reimbursement for certain expenses like investigative expenses and expert fees. Article 11.071, Texas Code of
Criminal Procedure.
Another aspect of Texas capital sentencing law is the setting of execution dates. A death warrant in Texas is
issued by the convicting court and is not dependent on an act of the Governor signing a death warrant. In fact,
the Governor's power to commute a sentence of death is limited. Article 43.141, Texas Code of Criminal
Procedure states that: "The first execution date may not be earlier than the 91st day after the date the convicting
court enters the order setting the execution date. A subsequent execution date may not be earlier than the 31st
day after the date the convicting court enters the order setting the execution date."
C. Missouri
The state of Missouri also has very strict time restrictions on postconviction motions. Missouri has a far smaller
death-row population than Florida, with 87 convicted murderers sentenced to death awaiting execution, but the
state executed nine convicted murderers in the last two years. Five convicted murderers sentenced to death
were executed in Florida during that same period. Missour has executed 32 convicted murderers since 1976.
The Missouri Supreme Court Rules of Criminal Procedure, Rule 24, provides the exclusive procedure for most
postconviction claims, including claims of ineffective assistance of counsel. Rule 24 requires collateral motions
to be filed within 90 days of the final decision of the appellate court. Failure to file a timely motion constitutes a
complete waiver of any right to file a future claim. While successive collateral motions are prohibited in
Missouri, extremely limited habeas corpus claims may be made directly to the state supreme court without any
time restrictions. Petitions for habeas corpus are only granted for claims that the trial court did not have
jurisdiction or that the sentence exceeded the maximum authorized by statute. Habeas corpus proceedings are
limited to determining the facial validity of confinement. Sections 532.350 and 532.440, Missouri Statutes.
The Missouri Attorney General's death penalty division informed staff that the Missouri Supreme Court always
summarily denies untimely claims of ineffective assistance of counsel. The Missouri Supreme Court in Simmons
v. White, 866 S.W.2d 443 (Mo. 1993), rejected a petition for habeas corpus even though the court admitted that
the evidence supporting the conviction as a persistent offender was inadequate. The court summarized the
purpose of habeas corpus for convicted offenders in Missouri as follows:
A person who has suffered criminal conviction is bound to raise all challenges thereto timely and in accordance
with the procedures established for that purpose. To allow otherwise would result in a chaos of review unlimited
in time, scope, and expense. In accordance with our previous decisions, habeas corpus is not a substitute for
appeal or post-conviction proceedings. Habeas corpus may be used to challenge a final judgment after an
individual's failure to pursue appellate and post-conviction remedies only to raise jurisdictional issues or in
circumstances so rare and exceptional that a manifest injustice results. Id. at 446.
The Missouri law is particularly significant because habeas corpus is restricted to the same degree as it was in
Florida earlier in this century.
Missouri law also provides that the court imposing the death sentence shall set the execution date. In fact,
Missouri law requires the sentencing court to "state the conviction and judgment and appoint a day on which the
judgment must be executed, which must not be less than thirty nor more than sixty days from the date of
judgment, and must direct the sheriff to deliver the defendant, at a time specified in said order, not more than ten
days from the date of judgment, to the chief administrative officer of a correctional facility of the department of
corrections, for execution." Section 546.680, Missouri Statutes.
That state's law further provides that " [w]henever, for any reason, any convict sentenced to the punishment of
death shall not have been executed pursuant to such sentence, and the cause shall stand in full force, the
supreme court, or the court of the county in which the conviction was had, on the application of the prosecuting
attorney, shall issue a writ of habeas corpus to bring such convict before the court. . . ." Section 546.700,
Missouri Statutes. The prosecuting attorney has the lawful authority to essentially require the court to set
another execution date after all appeals are exhausted: "[u]pon such convicted offender being brought before
the court, they shall proceed to inquire into the facts, and if no legal reasons exist against the execution of
sentence, such court shall issue a warrant to the director of the department of corrections, for the execution of
the prisoner at the time therein specified, which execution shall be obeyed by the director accordingly." Section
546.710, Florida Statutes.
D. Arkansas
Arkansas has executed 17 convicted murderers and has a death-row population of 41. No state has eliminated
collateral review on the state level, however, Arkansas has made a more dramatic attempt to limit collateral
review than any other state. In Whitmore v. Arkansas, 771 S.W.2d 266 (Ark. 1989), the Supreme Court of
Arkansas determined that post conviction remedies were out of control in both the state and federal systems. As
a result, the Court abolished the Arkansas rule of procedure that allowed collateral review of claims such as
ineffective assistance of counsel. The court noted that a more limited review would be available through habeas
corpus, stating that "Arkansas courts have held that habeas corpus petitions are restricted to questions of
whether the commitment is valid on its face or whether the convicting court had proper jurisdiction." Id. at 267
n.1.
The Arkansas Supreme Court also amended their rules of procedure to require that claims of ineffective
assistance of counsel be raised on direct appeal:
Our action today will cause convicted criminal defendants to assert their claims and defenses on direct appeal
rather than to allow such defenses years later,...[because of the new rule] a defendant will have less opportunity
to misuse the federal and state systems to develop legal theories that unnecessarily prolong meritless cases.
Id. at 269.
The new Arkansas rule of procedure required that a judge advise a defendant that he or she had 30 days from
sentencing to file a motion for a new trial on the grounds that counsel was ineffective and a hearing on the
motion was required to be held before the filing of the notice of appeal. The rule did not require that a separate
attorney advise a defendant concerning a potential claim of ineffective assistance of counsel. In the matter of the
Abolishment of Rule 37, 770 S.W.2d 148 (Ark. 1989).
Fifteen months later the Court reinstated a modified version of the rule to allow collateral motions. It appears
that the court reinstated the rule because of numerous comments from various attorneys. In re Post-Conviction
Procedure, 797 S.W.2d 458 (Ark. 1990). In 1996, after the post-conviction rule was reinstated, a federal district
court in Arkansas declared that a convicted murderer would be released if the trial court did not hear the
inmate's claim of ineffective assistance of counsel. The federal district court further declared that the inmate
must be provided counsel and the right to appeal to the Arkansas Supreme Court if relief were denied by the
trial court. With great reservations, the Arkansas Supreme Court agreed to hear the appeal and give the
defendant an attorney for the appeal in order to avoid having the federal court release a convicted murderer:
There is a clear conflict between the federal action and our case law in that our case law does not allow for an
untimely Rule 36.4 petition [for ineffective assistance of counsel] unless the petitioner was not advised at the
time of sentencing of his right to proceed under Rule 36.4 ... Appellant was informed of his right to proceed
under the rule and should not be heard to complain because he failed to exercise that right ... Again, we are
compelled to treat appellant differently because it is the federal courts' view that the Rule 36.4 proceeding was
an extension of the trial in the manner of a motion for new trial, making the petitioner entitled under the Sixth
Amendment to appointment of counsel.
Id.
In another case where a defendant was sentenced in Arkansas during the period when claims of ineffective
assistance of counsel had to be raised on direct appeal, the Eighth Circuit Court of Appeals in Robinson v.
Norris, 60 F.3d 457 (8th Cir. 1995) held that the trial court's advisement that the defendant could file a motion for
ineffective assistance of counsel without an attorney violated the defendant's right to an attorney. The
defendant in Robinson v. Norris did not file a motion for ineffective assistance of counsel within 30 days of the
sentence as required by state law. Four years later a federal district court ordered that the defendant be given a
hearing on his claim of ineffective assistance of counsel and that an attorney be provided. From these federal
decisions, it appears, that if the state incorporates postconviction motions into the direct appeal, then the inmate
will have a right to an attorney for the entire process.
VII. PROPOSALS FOR CONSIDERATION
A. Consider Requiring Postconviction Motions to be Filed Directly in the Florida Supreme Court.
A number of states, including Virginia and Oklahoma, require postconviction motions to be filed in the state
supreme court, with the trial courts only holding evidentiary hearings as directed by the state supreme court.
Currently, trial courts in Florida often hold that many of the issues raised on postconviction motions may be
resolved as a matter of law and therefore do not require evidentiary hearings. On appeal, the Florida Supreme
Court will often remand some of those issues back to the trial court for an evidentiary hearing, and the trial court
and the attorneys then need a number of months to schedule and prepare for another evidentiary hearing, the
outcome of which is usually appealed. Some of this delay could be eliminated if the Florida Supreme Court
received the postconviction motions and resolved the issues that do not require an evidentiary hearing. The
Attorney General's death penalty division in Oklahoma relates that a similar provision in their state has
shortened the collateral review process. Comments from two Justices of the Florida Supreme Court indicated,
however, that this proposal might not reduce delays and would require additional appropriations.
B. Consider Requiring Death-Sentenced Convicted Murderers to File A Postconviction Motion Raising All
Claims Within 180 days After the Initial Brief Is Filed In The First [Direct] Appeal in the Florida Supreme
Court.
This proposal would require counsel to work on the postconviction motion long before the direct appeal is
decided. Counsel would be appointed immediately after the death sentence is imposed in the trial court. During
the time the appeal is prepared and filed, postconviction counsel could also be preparing to file the
postconviction pleading in the trial court and the Florida Supreme Court in cases alleging ineffective appellate
counsel.
This type of "concurrent" procedure is essentially used in Texas, and could significantly reduce delays. Currently, the direct appeal process requires an average of approximately 18 to 24 months. Using this time to require resolution of the postconviction appeals would eliminate up to two years in delays, which is approximately the time now required to file state postconviction appeals. The disadvantage would be in the loss of resources expended for postconviction-appeal preparation in those capital cases in which the death sentences are reversed or reduced to life in prison, eliminating the need for immediate postconviction review.
C. Consider Prohibiting Any Further Postconviction Appeals After A Time Deadline.
Florida could follow the example of Missouri and prohibit all untimely postconviction motions with a very narrow
exception for jurisdictional issues so that the law complies with the traditional purpose of habeas corpus in
Florida. The untimely claims filed as petitions for habeas corpus proceedings should be limited to determining
the facial validity of confinement. The legislature could prohibit the use of any state resources in the filing of the
or the consideration of multiple or untimely postconviction appeals in the same case. The legislature could also
declare that executive clemency would be the remedy for alleged claims of "newly discovered evidence"
demonstrating a convicted murderer's alleged innocence.
D. Consider The Elimination of State Postconviction Appeal
This proposal was contained in House Bill 3175 filed in 1997 and heard during the 1998 session. All death-sentenced convicted murderers file postconviction appeals in the state and then later in the federal courts,
raising many of the same arguments in both court systems. Many of these cases linger for years in the federal
courts, after being heard for years in the state courts. The elimination of state postconviction appeals could
reduce delays by removing this duplicative court review. Death-row inmates would be required to file their
postconviction appeals in federal court after the Florida Supreme court rejects the first appeal. Because the
federal courts are going to ultimately review these cases, it could significantly expedite capital cases to require
that postconviction appeals be filed only in the federal courts for a final decision far earlier.
E. Consider a Joint Resolution to Amend The Habeas Corpus Provision in the Florida Constitution to
Authorize The Legislature to Enact Laws to Render Habeas Corpus And Collateral Review Speedy and
Effectual.
This would be similar to the provision in Texas' Constitution and should reduce challenges to time restrictions
on postconviction motions.
F . Consider a Joint Resolution to Amend Florida's Constitution to Authorize the Legislature to Repeal or
Amend a Court Rule by General Law.
Currently, the Florida Supreme Court is required to adopt rules for the practice and procedure in all state courts,
and a rule may be repealed, but not amended, by a two-thirds vote of the legislature. The problem is that it is
not very clear what is procedural and what is substantive. For instance, statutes of limitations are generally
considered substantive and within the realm of what may be changed by general law. However, the speedy trial
rule was promulgated by the Court, and it gives a criminal defendant the right to have a case dismissed long
before any constitutional right is impaired. This proposal could reduce litigation over whether death penalty
reform that sets time limits on the parties is procedural or substantive. Missouri's Constitution gives that state's
legislature the final authority on rules of procedure.
G. Consider amending Chapter 922 and Authorizing the Sentencing Court to Schedule a Date of
Execution.
After the four executions in March of 1998, no additional death warrants were signed by Governor Chiles.
Section 922.14, Florida Statutes, currently authorizes the Attorney General to apply to the Florida Supreme
Court to direct the issuance of a death warrant when a "death sentence is not executed because of unjustified
failure of the Governor to issue a warrant, or for any other unjustifiable reason . . . " However, if the original
sentencing court were authorized to schedule the execution upon applications of the state attorney, executions
could be expedited in appropriate cases.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
The legal term "ineffective assistance of counsel" refers to a finding that a criminal defendant's attorney
performed so deficiently that the reliability of the outcome of the trial, and the death sentence, is suspect. In
other words, because of the defense counsel's performance, either at trial or during the penalty phase, there
exists a reasonable doubt as to the reliability of the outcome. The right to be represented by an effective
attorney is based on the Sixth Amendment right to counsel in the United States Constitution.
This term does not refer to a simple error, or more importantly, to a particular strategy chosen by defense
counsel. The development of this doctrine arose out of a Florida case that reached the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and was adopted by
the Florida Supreme Court in Downs v. State, 453 So. 2d 1102 (Fla. 1984):
No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant. . . . . Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment
[right to counsel] is not to improve the quality of legal representation, although that is a goal of considerable
importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial ...
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable ... A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action 'might be considered sound trial strategy...
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation
would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the
defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense.
Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of
counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence
of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney
and client. 453 So.2d at 1107. [Citations omitted.]
In Downs the Florida Supreme Court adopted the above quote from Strickland and further asserted the caution
with which the courts should consider a motion claiming ineffective assistance of counsel:
A claim of ineffective assistance of counsel is extraordinary and should be made only when the facts warrant it.
It is not a claim that is appropriate in every case. It should be the exception rather than the rule. Id. [Emphasis
added.]
The Florida Supreme Court in Downs further stated that to demonstrate prejudice the following must occur:
The defendant 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 ... When a defendant challenges a conviction, the question is whether
there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt. When a defendant challenges a death sentence, the question is whether there is a reasonable
probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death. [Citations omitted; emphasis supplied.] 453 So.2d. at 1108.
Currently there are 387 convicted murderers sentenced to death residing on Florida's death row. Since 1976,
there have been 43 executions in this state. This research attempted to determine the number of death
sentences set aside due to incompetent or ineffective legal counsel compared to the number of capital cases in
which such claims are asserted. This inquiry focused on any first degree murder case in which the defendant
was sentenced to death by the trial court, without regard to death sentences later reduced for other reasons.(3)
Absent having all twenty judicial circuits search their archives to find all death penalty cases, complete and
verifiable data is not available concerning the total number of cases in which the death penalty was imposed.(4)
Also, the total number of cases in which a defendant sentenced to death raised a claim of ineffective
assistance of counsel was also not available without an extensive search by each circuit.(5) Likewise, complete
information concerning the number of death penalty cases in which a defendant's lawyer was actually found
ineffective by the trial court was also not available.(6)
A. METHODOLOGY
Utilizing the research software program "Premise 3.7,"(7) a broad search was conducted of Florida's published
opinions of the Florida Supreme Court and the Florida district courts of appeal on the subject of ineffective
assistance of counsel in death penalty cases.(8) The inquiry utilized for the search was intended to locate as
many cases as possible involving the death penalty where ineffective assistance of counsel was mentioned. It
became apparent, however, that even with that broad inquiry, some cases could still be missed. There were
some cases which addressed "ineffective assistance" of counsel without using those exact terms. For example,
an opinion could address the issue by using phrases such as counsel's representation was "not deficient" or did
not constitute "ineffective representation." As a result, the cases that are the subject of this report do not
necessarily identify all death penalty cases where a claim of ineffective assistance was addressed by the Florida
Supreme Court. This search did, however, locate cases involving 233 defendants sentenced to death in the trial
court where the "effectiveness" of the defendant's trial lawyer or appellate lawyer was either addressed directly
by the reviewing court, or the opinion explained or discussed a previous finding regarding the effectiveness of
trial counsel(9) or appellate counsel. The research tracks the claims of these 233 defendants, and determines
the number of cases in which the courts ruled that the defendants received ineffective assistance of counsel.(10)
Of these 233 defendants, there were 17 cases which had been remanded (returned) back to the trial court with
instructions for further proceedings on the matter whose outcomes required further research. The outcome and
current status of these 17 cases where researched by personnel within the capital appeals division of the
Attorney General's Office. It was learned that for 13 of these 17 cases, no finding of ineffective assistance of
counsel was found upon return of these cases to the lower court for an evidentiary hearing.(11) The remaining 4
cases are still pending an evidentiary hearing or ruling on the matter. These remaining 4 cases therefore are
not available for inclusion in the totals included in this report.
B. ANALYSIS
The claims of these remaining 229 (233 minus the 4 pending cases) defendants breaks down as follows: For 202 of these defendants, 88% of the cases, no ineffective assistance was found as of November 13, 1998. The 27 remaining defendants, 12%, successfully raised claims showing ineffective assistance of counsel either at the trial level, appellate level or both. For purposes of this report, these claims were broken down according to the basis underlying the finding of "ineffectiveness" into the following four categories: 1. DEFICIENT REPRESENTATION - this category includes cases involving incompetence, poor judgement, or
cases where the reason for the ineffectiveness was not specified, and other reasons not within the scope of the
other three categories listed below;
2. LACK OF DILIGENCE - this category includes cases involving counsel's failure to adequately investigate his or her client's potential defenses or to fully investigate factors which should have been considered in mitigation of a death sentence, or cases where counsel inadequately prepared for the penalty phase of the proceedings.
3. CONFLICT OF INTEREST - this category includes cases where the defendant's best interest was at conflict
with another client being represented by the defendant's lawyer, or where the defendant's best interests were in
conflict with the interests of his own counsel.
4. IMPROPER COMMENT - this category includes cases where the defendant's lawyer made an improper
comment to the jury which prejudiced the defendant.
Each case was only put into one category. In some cases, there were more than one basis upon which the court
found "ineffectiveness." In these situations, the case was placed into the category which appeared to be the
primary reason or most significant underlying factor in finding counsel ineffective. If a lawyer was found
ineffective at the guilt phase of the trial, the conviction was vacated (or set aside) and the defendant was
awarded a new trial. If the lawyer was found ineffective at the penalty phase, the death sentence was vacated
and the defendant was granted a new sentencing hearing. Likewise, if appellate counsel was found ineffective,
a new appeal was awarded. The breakdown of the 27 cases where the defendant was found to have received
ineffective assistance of counsel are as follows:
1. Deficient Representation
2. Lack of Diligence(12)
3. Conflict of Interest
4. Improper Comment
TOTAL 27
27 out of 229 defendants prevailed on the claim of ineffective assistance of counsel. Figure 1 demonstrates the
breakdown of these findings.
 Eighteen (approx. 67%) of the 27 cases involved ineffectiveness at the penalty phase of the proceedings. Four cases (approx. 15%) of ineffectiveness were found to have occurred at the guilt phase of the trial, or in connection with a plea to the charge. Five cases (approx. 19%) of ineffectiveness were found to have occurred at the appellate level. Figure 2 shows the breakdown according to the phase of the case where the ineffective assistance occurred.
 The above information was supplied in order to provide information concerning the stages of the proceedings,
and the extent to which, ineffective assistance of counsel is impacting the expeditious resolution of capital
cases. Also, the above information was intended to highlight the underlying reasons upon which lawyers
representing defendants in death penalty cases are being found "ineffective." This information, however, is
based only on those cases brought on behalf of the 229 defendants whose cases were examined.
CONCLUSION
In conclusion, out of the cases brought on behalf of these 229 defendants which asserted claims of ineffective
assistance of counsel, 27 (12%) were reversed or remanded to the lower court because the defendant's lawyer
was found to be ineffective (at least at one stage of the proceedings). Most of the ineffectiveness (in 18 of the
27 cases), took place at the penalty phase of the proceedings.
IX. APPENDIXES
Appendix 1 - Death Row Population
Appendix 2 - Years Spent on Death Row Before Execution
Appendix 3 - Florida Executions / Years on Death Row
Appendix 4 - Status of Death Row Cases Over 5 Years Old (As of 11/13/98)
Appendix 5 - Legal Representation In Death-Penalty Cases As Compared To Florida
Appendix 6 - Nationwide Post Conviction Statistics
Appendix 7 - Letter from Justice Ben F. Overton, Supreme Court of Florida, dated May 31, 1991
Appendix 8 - Joint Agreement to Appoint a Commission To Study Postconviction Representation of Indigent
Death Row Inmates
Appendix 9 - Final Report, Commission for the Review of Postconviction Representation
FLORIDA EXECUTIONS / YEARS ON DEATH ROW
Status of Death Row Cases Over 5 Years Old
AS COMPARED TO FLORIDA
FOOTNOTES 1. Committee staff has taped interviews available of attorneys who represent the state and defense in postconviction proceedings. 2. Spenkellink's attorneys filed nine separate pleadings in state and federal courts during the two months before the execution. 3. Cases where a death sentence was later reduced to life were included in the sample due to the difficulty involved in sorting cases in which an initial death sentence was later reduced. 4. In some instances, after a defendant is tried and sentenced to death, a new trial is granted before any appeal is made. Sometimes in return for a plea to the charge, an agreement is reached between the State and the defense for a life sentence rather than a retrial of the case. 5. It is possible for a lawyer to be found ineffective by the trial court, after which the case is either retried or the defendant pleads guilty and does not receive the death penalty. Currently, there is no centralized data base which keeps statistical information of such cases. 6. The Office of the State Courts Administrator does not keep any statistical information concerning statewide totals of defendants sentenced to death, or statistics on the number of cases in which a defendant's lawyer was found ineffective. 7. "Premise"® is a computer legal research program distributed by West Publishing Company that conducts text searches of a data base which includes the Southern Reporter and Southern Reporter, Second Series which contain published opinions of the Florida Supreme Court and Florida's District Courts of Appeal beginning with cases starting from the year 1887. 8. The specific inquiry was: " 'ineffective assistance' AND death AND murder." As of October 14, 1998, there were 374 cases identified, 45 of which were irrelevant to the subject matter. For example, some second and third degree murder cases were retrieved as well as some cases where "ineffective assistance" was mentioned In footnote as a reference to an unrelated matter. Also retrieved were cases where the defendant received a life sentence In the trial court. All of these irrelevant cases were disregarded. The 328 remaining cases were appeals brought on behalf of 233 inmates sentenced to death. 9. "Trial counsel" also includes counsel representing the defendant before trial in pretrial matters or at plea hearings. 10. It should also be noted that this research is limited by the ability to search terms In published court opinions. It is possible that a lower court ruling either finding a lawyer ineffective or a ruling denying a claim of ineffective assistance of counsel, would not be revealed if the Florida Supreme Court merely issued a "Per Curiam -- affirmed" order on the appeal. Also, if the trial court's ruling was not appealed, it would not turn up In this search of appellate cases. 11. Among these 14 cases, four are pending appeal of the trial court ruling to the Florida Supreme Court. 12. Thirteen out of the fourteen cases in this category found counsel ineffective at the penalty phase only. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
