author: JOINER, Judge.

text:
    W.B.S. v. STATE of Alabama
    CR-15-0956
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    Bruce A. Gardner, Huntsville, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   JOINER, Judge.

W.B.S. appeals the Etowah Juvenile Court's summary dismissal of his petition for a writ of error coram nobis. We remand.

Facts and Procedural History

On June 9, 2010, delinquency petitions were filed in the Juvenile Court of Etowah County, charging W.B.S. with four counts of first-degree sexual abuse, see § 13A-6-66(a)(1), Ala. Code 1975, one count of first-degree sodomy, see § 13A-6-63(a)(1), Ala. Code 1975, and one count of resisting arrest, see § 13A-10-41, Ala. Code 1975. After conducting a hearing on the delinquency petitions, the juvenile court found five charges to be true-three counts of first-degree sexual abuse, one count of first-degree sodomy, and one count of resisting arrest-and adjudicated W.B.S. delinquent. The juvenile court then ordered that W.B.S. be committed to the Alabama Department of Youth Services sexual-offender program for an indefinite period and, further, ordered W.B.S. to register as a sex offender for the rest of his life.

W.B.S. appealed his delinquency adjudications to this Court, which adjudications this Court affirmed in an unpublished memorandum issued on February 3, 2012. See W.B.S. v. State (No. CR-10-1806, Feb. 3, 2012), 130 So.3d 587 (Ala. Crim. App. 2012) (table). In that unpublished memorandum, we summarized the facts supporting W.B.S.'s delinquency adjudications:

"W.B.S. was charged with the first-degree sexual abuse of A.S., R.J., and J.J.1 He was also charged with first-degree sodomy in relation to J.J. The incidents were alleged to have happened between 2006 and 2008.2(C. 25-29.) At trial, A.S. testified that sometime in 2008, when she was nine years old, she was playing video games with W.B.S. and J.J. She stated that W.B.S. leaned over and began kissing her on the lips. (R. 30.) A.S. then testified that W.B.S. 'reached and touched [her] breast.' (R. 30.) According to A.S., W.B.S. touched her underneath her training bra with his hand. (R. 32.) A.S. stated that W.B.S. did not say anything to her nor did she ask him to stop.
"R.J., who was 12 years old at the time of the trial, testified that he, J.J., and W.B.S. were building a fort one day when W.B.S. touched him. R.J. indicated that W.B.S. touched him with his penis. (R. 73.) R.J. also testified that W.B.S.'s 'private' was outside of his clothes and that W.B.S. touched him with it. (R. 74.) R.J. stated that W.B.S. used his penis to touch the 'inside' of R.J.'s 'bottom.' (R. 74.) R.J. testified that W.B.S. stopped when he asked him to stop. (R. 75.)
"J.J., who was 15 years old at the time of trial, testified that when he was about 11 years old, W.B.S. began to want to play games that involved 'touching each other where you are not supposed to and stuff like that.' (R. 96.) J.J. testified that W.B.S. would put his penis in J.J.'s mouth and butt. (R. 97.) J.J. also stated that W.B.S. made J.J. put his penis in W.B.S.'s mouth and butt. (R. 100.) When J.J. was asked what W.B.S. did in order to make him do these things, J.J. replied, 'Peer pressure pretty much.' (R. 100.) J.J. testified that peer pressure was when '[s]omeone like keeps saying come on, come on, do it, do it, you know, just keeps talking you into it.' (R. 113-14.) However, J.J. denied that W.B.S. threatened him or did anything to hurt him. (R. 100-101.) He also stated that W.B.S. did not hold him down and make him do those things. (R. 115.) J.J. did state that W.B.S. told him that he would 'probably get in trouble too' if he told anyone what happened. (R. 101-102.)
"______________
"1 W.B.S. was also charged with the first-degree sexual abuse of J.M.J. However, the juvenile court did not find that there was sufficient evidence to adjudicate W.B.S. delinquent on that count. (R. 287.)
"2 W.B.S. was born on June 13, 1993. (C. 2.) Accordingly, he would have been no older than 15 at the time these incidents allegedly took place."

In his direct appeal, W.B.S. argued that the juvenile court erred when it denied his motion for a judgment of acquittal because, he said, the State failed to present any evidence "regarding the element of forcible compulsion, a requirement for both first-degree sexual abuse and first-degree sodomy." In addressing this claim, this Court concluded that W.B.S.'s argument was not preserved for appellate review but explained:

"We note that in reviewing the record it appears that the State may have failed to present evidence regarding forcible compulsion. The witnesses' testimony did not appear to suggest that W.B.S. used physical force nor did it suggest that W.B.S. made express or implied threats that would place the victims 'in fear of immediate death or serious physical injury to himself or another person.' Accordingly, the failure of W.B.S.'s trial attorney to state grounds for his motion for judgment of acquittal as well as his failure to file any post-trial motions challenging the sufficiency of the evidence may rise to the level of ineffective assistance of counsel. Since W.B.S.'s trial counsel did not file any post-trial motions, a postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P., would be the first opportunity for W.B.S. to raise that issue."

(Emphasis added.)

Thereafter, on December 21, 2012, W.B.S. filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief in the juvenile court. In his petition, W.B.S. alleged that his counsel was ineffective because, he said, his trial counsel failed to make a "proper motion for a judgment of acquittal at the close of the State's case." According to W.B.S.:

"Effective trial counsel would have argued to the [juvenile] court that [W.B.S.] could not be adjudicated a delinquent due to the State's failure to present evidence of forcible compulsion. Had this argument been made by trial counsel to the [juvenile] court, it is likely that the [juvenile] court would have granted [W.B.S.'s] motion for a judgment of acquittal."

(Record in W.B.S. v. State (CR-12-1336), C. 36.) The juvenile court concluded, however, that Rule 32 is applicable only to a "Defendant convicted of a criminal offense" and "a juvenile is not 'convicted of a criminal offense' so as to be able to take advantage of the provisions of Rule 32." (Record in CR-12-1336, C. 42-43.) W.B.S. appealed the juvenile court's decision to this Court.

On appeal, this Court examined the record and determined that "[t]here is no indication from the documents filed with this Court that the juvenile judge certified the record as adequate to appeal directly to this Court. Nor has W.B.S. moved to supplement the record to correct this deficiency." We explained:

" Rule 28, Ala. R. Juv. P., allows for appeals directly to this Court only when the record has been certified as adequate by the juvenile court judge or when the parties stipulate that only questions of law are involved. The record filed in this case contains no certification from the juvenile judge. Neither does the record contain any stipulations by the parties. Also, W.B.S. did not move to correct this deficiency when the record was filed. According to J.C.C. v. State, 36 So.3d 577 (Ala. Crim. App. 2009), this case is hereby TRANSFERRED to the Etowah Circuit Court for de novo proceedings."

W.B.S. v. State (No. CR-12-1336, Aug. 21, 2013) (order transferring case to the Etowah Circuit Court).

"Upon receipt of the case, the Etowah Circuit Court determined that the threshold question was: 'Do the provisions of Rule 32, [Ala. R. Crim. P.], apply in juvenile cases?' (C. 3.) The circuit court instructed the parties to file legal memorandums addressing this question. W.B.S.... also filed what he styled as a 'Motion for Relief From Judgment Under Rule 60(b), [Ala. R. Civ. P.].' In that motion, W.B.S. argued that, if Rule 32, Ala. R. Crim. P., does not apply to juvenile proceedings, he should be able to obtain relief under Rule 60(b), Ala. R. Civ. P. The circuit court ... concluded that neither Rule 32, nor Rule 60(b) was applicable to juvenile-delinquency proceedings."

W.B.S. v. State, 192 So.3d 417, 417-19 (Ala. Crim. App. 2015) (footnotes omitted).

On W.B.S.'s appeal from that decision, this Court agreed with the circuit court and affirmed its judgment summarily dismissing W.B.S.'s Rule 32 petition. In doing so, this Court first rejected W.B.S.'s contention that Rule 60(b), Ala. R. Civ. P., could be used as a mechanism through which a juvenile could obtain "post-adjudication" relief, explaining:

"Because juvenile-delinquency proceedings are 'quasi-criminal in nature,' the Alabama Rules of Civil Procedure are not applicable to those proceedings, see Rule 1(a), Ala. R. Juv. P., and Rule 60(b) cannot be the mechanism by which W.B.S.-or any other juvenile who has been adjudicated delinquent-can challenge trial counsel's effectiveness."

W.B.S., 192 So.3d at 419. This Court then addressed whether Rule 32 applies to a juvenile court adjudication, explaining:

"The language used in Rule 32.1 is plain and expressly extends 'postconviction' relief to only a 'defendant who has been convicted of a criminal offense.' (Emphasis added.) To conclude that Rule 32 applies to juvenile adjudications, this Court must hold that the phrase 'defendant who has been convicted of a criminal offense,' includes both juveniles-who are certainly not classified as 'defendants'-and delinquency adjudications-which are not criminal convictions, see § 12-15-220(a), Ala. Code 1975.
"....
"Thus, the plain language of Rule 32.1, Ala. R.Crim. P., does not include juveniles who have been adjudicated delinquent."

W.B.S., 192 So.3d at 419-20.

This Court noted, however, that

" 'other options exist through which W.B.S. could seek relief.' 192 So.3d at 426 (Burke, J., dissenting). For example, nothing precludes a juvenile from challenging counsel's effectiveness in a motion for a new trial, on direct appeal, or by filing a common-law writ. Here, because W.B.S. has lost the opportunity to file a motion for a new trial challenging his counsel's effectiveness, see Rule 1(B), Ala. R. Juv. P., and his adjudications have been affirmed on direct appeal, W.B.S.'s only avenue for challenging his counsel's effectiveness would be through the filing of a common-law writ. Although Rule 32 'displaces all post-trial remedies except post-trial motions under Rule 24[, Ala. R. Crim. P.,] and appeal' and '[a]ny other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under [Rule 32],' see Rule 32.4, Ala. R. Crim. P., Rule 32 only 'displaces' such postconviction remedies for 'defendant[s] who ha[ve] been convicted of a criminal offense.' In other words, if a juvenile who has been adjudicated delinquent is not permitted to proceed under Rule 32, Ala. R. Crim. P., no common law 'postconviction' remedies are 'displaced.' Thus, Rule 32 does not prohibit W.B.S. from filing a common-law writ challenging his adjudication.5
"________________
"5 It would be beyond illogical to conclude that Rule 32 does not apply to juveniles and yet also to conclude that Rule 32 operates to preclude that same juvenile from taking action other than a Rule 32 petition."

W.B.S., 192 So.3d at 420 (emphasis added).

This Court did not express an opinion as to which common-law writ a juvenile who has been adjudicated delinquent may use to collaterally attack his or her adjudication. Subsequently, on December 29, 2015, W.B.S. filed in the Etowah Juvenile Court a petition for a writ of error coram nobis.

In his coram nobis petition, W.B.S. alleged that his trial counsel was ineffective because, he said, his trial counsel "made only a general motion for a judgment of acquittal at the close of the State's case." (C. 37.) W.B.S. alleged:

"The Court of Criminal Appeals held on direct appeal that trial counsel's general motion was insufficient to preserve the obvious error that occurred in the trial. The State's evidence failed to prove the essential element of forcible compulsion. The Court of Criminal Appeals held trial counsel should have made a specific objection as to the missing element. Trial counsel made no posttrial motion, or motion for a new trial, specifically raising this issue. Trial counsel's failure to do so led to the affirmance of the juvenile court adjudications.
"Trial counsel's performance fell below any objective standard of reasonableness. Further, had trial counsel raised the appropriate objection to the State's evidence, a motion for a judgment of acquittal would have been granted at either the trial or appellate level. W.B.S. was thus prejudiced by his trial counsel's deficient performance.
"W.B.S. has been denied his right to due process of law, and the equal protection of law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and the Constitution of Alabama. As a result of the juvenile court adjudications, W.B.S. was ordered to be confined at the Alabama Department of Youth Services. W.B.S. is still required to register as a sex offender for the rest of his life. His liberty to seek work, as well as a place to establish a residence, have been severely limited as a result of the juvenile court adjudications.
"W.B.S. is factually innocent of having committed any crime under the laws of Alabama. The underlying crimes against W.B.S. required the State to prove the element of forcible compulsion, W.B.S. has been denied due process of law by being denied a forum within which to present his ineffective assistance of counsel claim. He has been denied the equal protection of the law in that he has been denied such a forum which would clearly be available to an adult convicted of a criminal offense."

(C. 37-38.) In an attachment to his petition, W.B.S. pleaded the following additional facts as to his claim of ineffective assistance of counsel:

"(2) In each of the charges against [W.B.S.], he was accused of using 'forcible compulsion' to commit the alleged crimes. (C. 2, 25-29; R. 29-35, 75, 100-101, 113-14). This is consistent with the statutes defining sexual abuse 1st and sodomy 1st, which both require proof of 'forcible compulsion' as an element of each offense. See Code of Alabama 1975, § 13A-6-66(A) and § 13A-6-63. However, none of the alleged victims made any allegation of forcible compulsion being present at any of the alleged incidents of sexual abuse.
"(3) In Code of Alabama 1975, § 13A-6-60, the Alabama Legislature specifically defined 'forcible compulsion' as 'physical force that overcomes earnest resistance or a threat express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.' Appellate courts in Alabama have held that forcible compulsion exists where (1) the defendant used physical force that overcame the alleged victim's earnest resistance, or (2) that the defendant used threats, either express of implied, that placed the alleged victims in of immediate death or serious physical injury. See Ex Parte J.A.P., 853 So.2d 280 (Ala. 2002), and D.W. v. State, 3 So.3d 955 (Ala. Crim. App. 2008). There must be evidence of forcible compulsion in order for there to be a conviction for sodomy in the first degree or sexual abuse in the first degree, but as shown below, none of the alleged victims testified to anything that would support a finding of forcible compulsion under either method of proof available to the State. By failing to produce any evidence of physical force or a threat of harm, the State failed to establish an essential element of the offenses. A determination of guilt should not have been entered at trial, and the adjudication of delinquency should have been reversed on appeal. C.D.B. v. State, 81 So.3d 399 (Ala. Crim. App. 2011).
"(4) As the Court of Criminal Appeals stated in reversing a sodomy conviction against another juvenile in D.W. v. State, 3 So.[3]d 955, 957 (Ala. Crim. App. 2008), 'the State did not present any evidence that the appellant used physical force that overcame D.W.'s and A.S.'s earnest resistance. Also, it did not present any evidence that the appellant used threats, either express or implied, that placed D.W. and A.S. in fear of immediate death or serious physical injury.' Similarly, no evidence was presented in Petitioner's trial of any use of physical force that overcame any resistance, nor was any evidence presented of express or implied threats that placed the alleged victims in fear of immediate death or serious physical injury. In fact, the testimony was consistent that Petitioner stopped the alleged conduct if he met with any resistance."

(C. 48-49.)

On March 1, 2016, the State filed a motion to dismiss W.B.S.'s petition for a writ of error coram nobis. In its motion, the State conceded that the writ of error coram nobis "is still available in limited circumstances" (C. 101), but argued that W.B.S.'s petition was due to be dismissed because "there is no assertion in said petition of any new facts that were unknown to him at the time of his trial. Rather, [W.B.S.] alleges matters of law which ... are not within the purview of the type of relief afforded by the writ, to-wit: ineffective assistance of counsel." (C. 101 (emphasis in original).)

On April 26, 2016, the juvenile court issued a written order dismissing W.B.S.'s petition. In that order, the juvenile court stated, in part:

"[T]he writ of error coram nobis is a common-law writ, the purpose of which is to correct a judgment in the same court in which it was rendered, on the ground of error in fact, for which there is no other remedy, and which fact did not appear of record; or it was unknown to the court when judgment was pronounced, and which, if known, would have prevented the judgment; and furthermore was unknown and could not have been known to the party by exercise of reasonable diligence in time to have been otherwise presented to the court unless he was prevented from so presenting by duress, fear, or other sufficient cause.... [A]dditionally, a writ of error coram nobis will not lie so as to enable a petitioner to question the merits of his convictions, i.e., questions of law.... [I]n viewing all of the foregoing conjunctively, a petition for the issuance of a writ of error coram nobis operates as a motion for new trial based on newly discovered evidence....
"... [U]pon review of [W.B.S.'s] petition read in conjunction with the foregoing, there is no assertion or allegation of any new facts that were unknown to [W.B.S.] at the time of his trial (indeed, the only matters raised in the petition are matters known to [W.B.S.] and which matters were those that actually occurred in his trial and presented to the court) and are further only matters which question the merits of his conviction which are outside the relief afforded by a writ of error coram nobis."

(C. 106-07 (citations omitted; emphasis added).) Thereafter, W.B.S. filed a timely notice of appeal.

Discussion

On appeal, W.B.S. contends that the juvenile court erred when it dismissed his petition for a writ of error coram nobis without allowing him to "pursue his claim." According to W.B.S., "coram nobis is the appropriate method to raise his ineffective-assistance-of-counsel claim" (W.B.S.'s brief, p. 9), and he "urges this Court to allow him to proceed via coram nobis on his ineffective-assistance-of-counsel claim." (W.B.S.'s brief, p. 8.)

In other words, W.B.S. contends: (1) that a petition for a writ of error coram nobis is the proper procedural mechanism by which a juvenile who has been adjudicated delinquent may collaterally challenge his delinquency adjudication; and (2) that the juvenile court in this case should have permitted W.B.S. to avail himself of that mechanism to challenge his delinquency adjudication on the basis that his counsel was ineffective. We address each argument in turn.

I.

As explained above, W.B.S. first contends that a petition for a writ of error coram nobis is the proper procedural mechanism by which a juvenile who has been adjudicated delinquent may collaterally challenge that adjudication. We agree.

Rule 1(a), Ala. R. Juv. P., explains, in relevant part:

"If no procedure is specifically provided in these Rules [of Juvenile Procedure] or by statute, ... the Alabama Rules of Criminal Procedure shall be applicable to those matters that are considered criminal in nature."

(Emphasis added.) Because no procedural mechanism for a "postadjudication" petition is specifically provided for in either the Alabama Rules of Juvenile Procedure, the Alabama Rules of Criminal Procedure, or any statute, the only possible avenue for W.B.S. to seek the relief he requests is by filing a common-law writ.

"At common law, there were two writs, one the writ of error, simpliciter, and the other the writ of error coram nobis. The writ of error was to review a matter apparent on the record. The writ of error coram nobis was to preserve the purity of a law court's judgment with respect to a matter not apparent on the record."

Ex parte Banks, 42 Ala.App. 669, 672, 178 So.2d 98, 101 (1965).

"The writ of error coram nobis was one of the oldest remedies of the common law. It lay to correct a judgment rendered by the court upon errors of fact not appearing on the record and so important that if the court had known of them at the trial it would not have rendered the judgment. The ordinary writ of error lay to an appellate court to review an error of law apparent on the record. The writ of error coram nobis lay to the court, and preferably to the judge that rendered the contested judgment. Its purpose was to allow the correction of an error not appearing in the record and of a judgment which presumably would not have been entered had the error been known to the court at the trial. Further, a judgment for the plaintiff in error on an ordinary writ of error may reverse and render the judgment complained of, while a judgment for the petitioner on a writ of error coram nobis necessarily recalls and vacates the judgment complained of and restores the case to the docket for new trial."

Joseph G. Gamble, Jr., The Writ of Error Coram Nobis in Alabama, 2 Ala. L. Rev. 281, 281-82 (1950) (footnotes omitted; some emphasis added). As the Supreme Court of Tennessee has stated: "The writ of error coram nobis is an extraordinary remedy known more for its denial than its approval. Penn v. State, 282 Ark. 571, 670 S.W.2d 426, 428 (Ark. 1984)." State v. Mixon, 983 S.W.2d 661, 666-67 (Tenn. 1999). Even so, "Alabama Courts allow the writ of error coram nobis to attack judgments in certain restricted instances," Gamble, 2 Ala. L. Rev. at 295, and the Alabama Supreme Court has recognized that an ineffective-assistance-of-counsel claim is cognizable in a petition for a writ of error coram nobis. See, e.g., Ex parte Boatwright, 471 So.2d 1257, 1259 (Ala. 1985) (recognizing that a claim of ineffective assistance of counsel is cognizable in a petition for a writ of error coram nobis).

The State, in its brief on appeal, "questions whether the common-law writ of error coram nobis applies to juvenile proceedings" because, the State says, it "has found no opinions by the appellate courts of this state in which the writ of error coram nobis was allowed as a remedy to challenge an adjudication of delinquency in the juvenile courts." (State's brief, p. 17.) Indeed, so far as we can determine, there are no opinions from the appellate courts of this State involving a petition for a writ of error coram nobis that challenged a juvenile-delinquency adjudication. On the other hand, however, we have found no decision categorically barring a juvenile from collaterally attacking his or her delinquency adjudication. We decline the State's implicit suggestion that we impose such a bar here.

We likewise disagree with the State's argument that, "although a remedy may be fashioned to alleviate [the deficiency that no postadjudication petition exists] in Alabama law, it must be the Alabama Supreme Court who fashions and provides a remedy for a claim of ineffective assistance of counsel to a juvenile who has been adjudicated delinquent." (State's brief, p. 21.) Although this Court may not amend the rules of procedure to provide a mechanism by which a juvenile may collaterally challenge his or her adjudication, see W.B.S., 192 So.3d at 419, we are not amending a rule of procedure in this case. This Court, instead, is simply recognizing that there exists no rule or statute in Alabama law providing a procedural mechanism by which a juvenile may collaterally challenge his or her delinquency adjudication. When no rule or statute controls, "[t]he common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature." § 1-3-1, Ala. Code 1975 (emphasis added).

Accordingly, we hold that the common-law writ of error coram nobis is the proper procedural mechanism by which W.B.S. may collaterally challenge his delinquency adjudications.

II.

W.B.S. next contends that the juvenile court should have permitted him to proceed on the ineffective-assistance-of-counsel claim in his petition for the writ of error coram nobis. We agree.

As explained above, W.B.S. filed a petition for the writ of error coram nobis in the Etowah Juvenile Court, alleging that his trial counsel was ineffective. In response, the State filed a motion to dismiss W.B.S.'s petition, but conceded that the writ of error coram nobis "is still available in limited circumstances." (C. 101.) The State argued, however, that W.B.S.'s petition was due to be dismissed not because a writ of error coram nobis was not an available remedy to W.B.S. but because, the State claimed, "there is no assertion in said petition of any new facts that were unknown to him at the time of his trial. Rather, [W.B.S.] alleges matters of law which ... are not within the purview of the type of relief afforded by the writ, to-wit: ineffective assistance of counsel." (C. 101 (emphasis in original).)

Thereafter, the juvenile court summarily dismissed W.B.S.'s petition, finding, in part:

"[U]pon review of [W.B.S.'s] petition read in conjunction with the foregoing, there is no assertion or allegation of any new facts that were unknown to [W.B.S.] at the time of his trial (indeed, the only matters raised in the petition are matters known to [W.B.S.] and which matters were those that actually occurred in his trial and presented to the court) and are further only matters which question the merits of his conviction which are outside the relief afforded by a writ of error coram nobis."

(C. 107.) This finding of the juvenile court was based on its conclusion that "a petition for the issuance of a writ of error coram nobis operates as a motion for new trial based on newly discovered evidence." (C. 107.)

As stated in Part I, an ineffective-assistance-of-counsel claim is cognizable in a petition for a writ of error coram nobis. See, e.g., Ex parte Boatwright, 471 So.2d at 1259. The determination by the juvenile court appears to be based on the assumption that a claim of ineffective assistance of counsel may not be pursued in a coram nobis petition unless that ineffective-assistance claim is based upon newly discovered evidence. We do not, however, find support for the juvenile court's restriction of such a claim to one that is based only on newly discovered evidence. Rather, as the Alabama Supreme Court implicitly recognized in Boatwright, supra, a claim of ineffective assistance of counsel that is raised in a coram nobis petition is to be evaluated under the standards articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Boatwright, 471 So.2d at 1258.

With regard to pleading a claim of ineffective assistance of counsel in a petition for a writ of error coram nobis, the Alabama Supreme Court has explained:

"In Boatwright, the Court stated:
" 'It is clear from the decisions of the Court of Criminal Appeals that an evidentiary hearing must be held on a coram nobis petition which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief....
" 'In this case, it is clear that under the specific allegations of the sworn petition relating to assistance of counsel, the petitioner would be entitled to relief if those allegations were true. Thus, under the cited authorities, his petition was meritorious and he was entitled to an evidentiary hearing....' (Emphasis added.)
"The Court in Boatwright recognized and applied the well established rule that a petition for a writ of error coram nobis must contain more than mere naked allegations that a constitutional right has been denied. Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963).
"A petition for a writ of error coram nobis is 'meritorious on its face' only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts), Thomas v. State, supra ; Ex parte Phillips, 276 Ala. 282, 161 So.2d 485 (1964) ; Stephens v. State, 420 So.2d 826 (Ala. Crim. App. 1982), sufficient to show that the petitioner is entitled to relief if those facts are true."

Ex parte Clisby, 501 So.2d 483, 485-86 (Ala. 1986).

The standards governing a postconviction petition under Rule 32, Ala. R. Crim. P., and a petition for the writ of error coram nobis are closely related. See, e.g., Ex parte A.D.R., 690 So.2d at 1209 ("Rule 32, Ala. R. Crim. P., incorporates the procedure for filing what was classified under prior practice as a petition for the writ of error coram nobis. See H. Maddox, Alabama Rules of Criminal Procedure, § 32.0 at 782 (1990)."). Thus, in evaluating whether W.B.S. has sufficiently pleaded his ineffective-assistance-of-counsel claim in this case we consider the caselaw governing such a claim raised in a postconviction petition under Rule 32, Ala. R. Crim. P.; that caselaw is well established.

" ' "In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) :
" ' " 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'
" ' " 466 U.S. at 687, 104 S.Ct. at 2064.
" ' " 'The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under "prevailing professional norms," was "reasonable considering all the circumstances." ' Daniels v. State, 650 So.2d 544, 552 (Ala. Cr. App. 1994), cert. denied, [ 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 230 (1995) ], quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. 'A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
" ' "The claimant alleging ineffective assistance of counsel has the burden of showing that counsel's assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala. 1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). 'Once a petitioner has identified the specific acts or omissions that he alleges were not the result of reasonable professional judgment on counsel's part, the court must determine whether those acts or omissions fall "outside the wide range of professionally competent assistance." [ Strickland,] 466 U.S. at 690, 104 S.Ct. at 2066.' Daniels, 650 So.2d at 552. When reviewing a claim of ineffective assistance of counsel, this court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994) ; Luke v. State, 484 So.2d 531 (Ala. Cr. App. 1985). 'This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.' Hallford, 629 So.2d at 9. See also, e.g., Cartwright v. State, 645 So.2d 326 (Ala. Cr. App. 1994).
" ' " '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." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'
" ' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987).
" ' " 'Even if an attorney's performance is determined to be deficient, the petitioner is not entitled to relief unless he establishes 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." [ Strickland,] 466 U.S. at 694, 104 S.Ct. at 2068.'
" ' " Daniels, 650 So.2d at 552." ' "

Sheffield v. State, 87 So.3d 607, 633-35 (Ala. Crim. App. 2010) (quoting Dobyne v. State, 805 So.2d 733, 742-43 (Ala. Crim. App. 2000), aff'd, 805 So.2d 763 (Ala. 2001) ; additional citations omitted).

As noted above, W.B.S. alleged that his trial counsel was ineffective because, he said, his trial counsel "made only a general motion for a judgment of acquittal at the close of the State's case." (C. 37.) In an attachment to his petition, as quoted above, W.B.S. elaborated upon this claim and made specific allegations as to how, in his view, the State failed to prove the element of forcible compulsion in his cases. W.B.S. further alleged specific facts indicating that, had counsel properly objected to this alleged failure to prove the element of forcible compulsion in his cases, there is a reasonable probability that the result of his proceedings would have been different. Under the circumstances of this case, those allegations are sufficient to entitle W.B.S. to an evidentiary hearing on his ineffective-assistance-of-counsel claim. See, e.g., Boatwright, 471 So.2d at 1259 ("Under the authorities, and without our ruling upon the merits of the allegations of the petition, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded to that court with directions to remand the cause to the trial court for an evidentiary hearing on the matters contained in the petition.").

Accordingly, this case is remanded to the juvenile court for an evidentiary hearing on the ineffective-assistance-of-counsel claim raised in W.B.S.'s petition. On remand, the juvenile court shall take all necessary action to ensure that its findings of fact and any subsequent action be returned to this Court no later than 90 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.

      The rationale underpinning this Court's unpublished memorandum affirming W.B.S.'s delinquency adjudications had only one concurrence; the remaining four judges concurred in the result.

      W.B.S. petitioned the Alabama Supreme Court for certiorari review of this Court's decision. The Alabama Supreme Court denied W.B.S.'s petition on September 18, 2015. See Ex parte W.B.S. (No. 1141220, Sept. 18, 2015), 192 So.3d 417 (Ala. 2015).

      In his dissenting opinion, Judge Burke agreed with this Court's holding that Rule 32 was not applicable to collaterally attack a juvenile-delinquency adjudication and explained that he "would treat W.B.S.'s petition as a petition for extraordinary relief through a common-law writ, such as a writ of error coram nobis or a writ of certiorari." W.B.S., 192 So.3d at 426 (Burke, J., dissenting).

      W.B.S. attached to his coram nobis petition this Court's unpublished memorandum affirming his juvenile-delinquency adjudications, his first Rule 32 petition, the juvenile court's order dismissing his Rule 32 petition, this Court's order transferring his case to the Etowah Circuit Court, the Etowah Circuit Court's order dismissing his Rule 32 petition, and this Court's opinion affirming the circuit court's decision.

      As we explained in W.B.S., 192 So.3d at 420 : "W.B.S.'s only avenue for challenging his counsel's effectiveness would be through the filing of a common-law writ."

      Note from the reporter of decisions: On August 4, 2017, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J., dissenting.

license: Public Domain

text:
    Norman Mearle GRIM, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1071
    Supreme Court of Florida.
    [March 29, 2018]
    Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Norman Mearle Grim, a prisoner under sentence of death, appeals the circuit court's order summarily denying his first successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 2000, a jury convicted Grim of first-degree murder and sexual battery upon a person twelve years of age or older with use of a deadly weapon. After hearing evidence at the penalty phase, the jury unanimously recommended the death sentence by a vote of twelve to zero. We affirmed Grim's convictions and sentence of death on direct appeal. Grim v. State , 841 So.2d 455 (Fla. 2003). We also upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Grim v. State , 971 So.2d 85 (Fla. 2007).

In June 2016, Grim filed his current first successive postconviction motion in which he sought relief based on Hurst v. Florida (Hurst v. Florida ), --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Grim subsequently filed a memorandum of law in which he further argued that he was entitled to relief based on this Court's decision in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). In May 2017, the circuit court entered an order summarily denying Grim's successive postconviction motion. This appeal followed. While Grim's postconviction case was pending in this Court, we directed the parties to file briefs addressing why the circuit court's order should not be affirmed based on this Court's precedent in Hurst , Davis v. State , 207 So.3d 142 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017), and Mosley v. State , 209 So.3d 1248 (Fla. 2016).

In Davis , this Court held that a jury's unanimous recommendation of death is "precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death" because a "jury unanimously f[inds] all of the necessary facts for the imposition of [a] death sentence[ ] by virtue of its unanimous recommendation[ ]." Davis , 207 So.3d at 175. This Court has consistently relied on Davis to deny Hurst relief to defendants that have received a unanimous jury recommendation of death. See, e.g. , Bevel v. State , 221 So.3d 1168, 1178 (Fla. 2017) ; Guardado v. Jones , 226 So.3d 213, 215 (Fla. 2017), petition for cert. filed , No. 17-7171 (U.S. Dec. 18, 2017); Cozzie v. State , 225 So.3d 717, 733 (Fla. 2017), petition for cert. filed , No. 17-7545 (U.S. Jan. 24, 2018); Morris v. State , 219 So.3d 33, 46 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 452, 199 L.Ed.2d 334 (2017) ; Tundidor v. State , 221 So.3d 587, 607-08 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; Oliver v. State , 214 So.3d 606, 617-18 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017) ; Middleton v. State , 220 So.3d 1152, 1184-85 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; Truehill v. State , 211 So.3d 930, 956-57 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017). Grim is among those defendants who received a unanimous jury recommendation of death, and his arguments do not compel departing from our precedent.

Accordingly, because we find that any Hurst error in this case was harmless beyond a reasonable doubt, we affirm the circuit court's order summarily denying Grim's first successive motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and LEWIS and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

PARIENTE, J., dissenting.

The majority relies on the jury's unanimous recommendation for death to determine that the Hurst error is harmless beyond a reasonable doubt. However, for the same reasons set forth in my concurring in part, dissenting in part opinion in Kaczmar v. State , 228 So.3d 1 (Fla. 2017), petition for cert. filed , No. 17-8148 (U.S. Mar. 14, 2018), I would reverse for a new penalty phase because the jury was not presented with any evidence of the significant mitigation in Grim's case, which the trial judge subsequently heard, before making its recommendation. Due to the jury's critical role in capital sentencing after Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst , unless the defendant waives his right to a penalty phase jury, available mitigation must be presented to the jury.

FACTS

After being convicted of first-degree murder and sexual battery upon a person twelve years of age or older with the use of a deadly weapon, Grim "insisted on not presenting any mitigation" to the jury during the penalty phase. Grim v. State (Grim I ), 841 So.2d 455, 459 (Fla. 2003). Grim explained to the trial judge at the Koon hearing that he would rather receive the death penalty than spend the rest of his life in prison. After a penalty phase, in which the jury did not hear any evidence of mitigation, the jury unanimously recommended that Grim be sentenced to death. Id.

Despite the absence of mitigating evidence, pursuant to this Court's opinion in Muhammad v. State , 782 So.2d 343 (Fla. 2001), the trial court was obligated to determine the existence of mitigation anywhere in the record and had the discretion to appoint special counsel to present mitigation. Id. at 364-65. Accordingly, the trial court appointed special counsel to present available mitigating evidence at the Spencer hearing.

After the Spencer hearing, the trial court found three aggravating factors, three statutory mitigating circumstances, and five nonstatutory mitigating circumstances. Grim I , 841 So.2d at 460. The three statutory mitigating circumstances were: (1) disruptive home life and child abuse; (2) hard-working employee; and (3) mental health problems that did not reach the level of section 921.141(6)(b), Florida Statutes (1997). Id. The nonstatutory mitigating circumstances were: "(1) lack of long-term psychiatric care"; (2) "marital problems and situational stresses"; (3) "errors of judgment under stress"; (4) "model prison inmate"; and (5) "entered prison at a young age." Id.

As to statutory mental mitigation, the trial court's sentencing order explained that the evidence presented by special counsel-which included the deposition testimony of psychologist Dr. James Larson and a 1983 psychiatric evaluation by Dr. B. R. Ogburn-established the following: (1) Grim "suffers from an impulse-control disorder known as 'intermittent explosive disorder ' along with a depressive disorder"; (2) a diagnosis of "antisocial personality disorder"; (3) a diagnosis of "having a '[p]ersonality disorder, mixed type with avoidant, antisocial and passive-aggressive features' "; and (4) at the time of the murder, Grim "was taking two medications, Prozac and Depakote, which were targeted for the intermittent explosive disorder," however the impact of the medications was not established.

As to other statutory mitigating circumstances, the trial court determined that Grim (1) "had a disruptive home life," which "certainly had an impact upon him," (2) had a "shining" employment background since returning to Northwest Florida on parole from Texas; (3) had "a history of alcohol usage," which included being "discharged from the military for substance related charges," and (4) "suffers from significant, long-term mental problems." This Court's case law makes clear "the importance and significance of this kind of mitigation evidence." Williams v. State , 987 So.2d 1, 14 (Fla. 2008).

As to nonstatutory mitigating circumstances, the trial court determined that Grim (1) received psychiatric care in 1983; (2) "was in the throes of a divorce at the time of this murder" and "had even sought legal advice from his victim"; (3) makes " 'appalling errors of judgment' when under stress"; (4) had "been a model inmate ... for over two years while awaiting trial"; and (5) "was first confined for a short time while in the Navy" at twenty-two years old. After weighing the aggravation and mitigation and "duly consider[ing] the jury recommendation," the trial court sentenced Grim to death.

On direct appeal, consistent with Muhammad , this Court denied Grim's claim that the trial court should have required special counsel to present mitigation evidence to the penalty phase jury, stating: "We ... continue to hold that a trial court should not be required to appoint special counsel for purposes of presenting mitigating evidence to a penalty phase jury if the defendant has knowingly and voluntarily waived the presentation of such evidence." Grim I , 841 So.2d at 461. In my specially concurring opinion, I wrote that "I would adopt a uniform procedure requiring the appointment of special counsel to present available mitigation." Id. at 465 (Pariente, J., specially concurring). This kind of procedure has yet to be adopted.

ANALYSIS

In 1978, in Goode v. State , 365 So.2d 381 (Fla. 1978), this Court stated:

[E]ven though [the defendant] expressed a desire to be executed, this Court must, nevertheless, examine the record to be sure that the imposition of the death sentence complies with all of the standards set by the Constitution, the Legislature and the courts.

Id. at 384. Subsequently, the Court set forth various procedures for doing so but, as explained above, left any presentation of mitigating evidence beyond the presentence investigation report to the trial court's discretion. Muhammad , 782 So.2d at 364.

Concurring specially in Muhammad , I set forth a proposed procedure for trial courts appointing special counsel to present mitigation to the jury when a defendant waives the same:

Because of the tremendous responsibilities placed on the trial court and this Court in death penalty cases, rather than leave the appointment of counsel to the trial court's discretion on a case-by-case basis, I would thus adopt a prospective rule that would provide for the appointment of special counsel to present available mitigation for the benefit of the jury , the trial court and this Court in order to assist the judiciary in performing our statutory and constitutional obligations.

Id. at 370 (Pariente, J., specially concurring) (emphasis added).

In 2017, on remand from the United States Supreme Court's decision in Hurst v. Florida , this Court made clear in Hurst that the death penalty "must be reserved only for defendants convicted of the most aggravated and least mitigated of murders," as determined by a jury. 202 So.3d at 60 (emphasis added). Therefore, " Hurst changed the calculus for waiving the presentation of some or all of the mitigating evidence to a jury."

Kaczmar , 228 So.3d at 16 (Pariente, J., concurring in part and dissenting in part). Thus, in light of Hurst v. Florida and Hurst , which "clearly changed the dynamics between the judge and the jury in Florida capital sentencing," id. , this Court should adopt a "prospective rule that would provide for the appointment of special counsel to present available mitigation for the benefit of the jury," whose role we now know is critical to the constitutional imposition of the death penalty. Muhammad , 782 So.2d at 370 (Pariente, J., specially concurring).

Regardless of whether this Court alters the requirements of Muhammad , it is clear that trial courts and litigants have an independent obligation to ensure that the jury, as sentencer, receives all the necessary information to make the constitutionally required findings of fact before recommending a sentence of death. See Hurst , 202 So.3d at 44. Those findings, of course, include finding unanimously the existence of each aggravating factor, the sufficiency of the aggravators to impose death, that the aggravation outweighs the mitigation, and, finally, a unanimous vote that death is the appropriate sentence. See id.

Aside from addressing this issue prospectively, the question arises how a defendant waiving mitigation affects whether a Hurst error is harmless beyond a reasonable doubt. As I explained in Muhammad , "[a]lthough the defendant may have a right to plead guilty, the defendant has no corresponding 'right' after conviction to have the death penalty imposed based on a waiver of the right to present mitigation." 782 So.2d at 369 (Pariente, J., specially concurring). Further, "it is not necessarily those most deserving of the death penalty ... who seek its imposition and refuse to present mitigation. Rather, in some cases, those seeking the death penalty, while competent, may suffer from serious underlying mental illnesses." Id. In fact, whether a defendant suffers from such mental illness is exactly the type of mitigation that would be appropriately presented by special counsel, as the trial court's sentencing order in this case reflects.

As the United States Supreme Court stated in Porter v. McCollum , 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), "the Constitution requires that 'the sentencer in capital cases must be permitted to consider any relevant mitigating factor.' " Id. at 42, 130 S.Ct. 447 (quoting Eddings v. Oklahoma , 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ). Likewise, it is clear that a jury not apprised of mitigating evidence cannot properly make all of the requisite findings of fact required to constitutionally impose death-namely, that the aggravation outweighs the mitigation and, further, that death is an appropriate sentence. See Hurst , 202 So.3d at 40-42. In Hurst , this Court stated that "[i]f death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process." Id. at 60. Therefore, the Hurst error cannot be harmless beyond a reasonable doubt in a case where mitigating evidence existed but was not presented to the penalty phase jury. See Kaczmar , 228 So.3d at 16-17 (Pariente, J., concurring in part and dissenting in part).

THIS CASE

Hurst applies retroactively to Grim's sentence of death, which became final in 2003. See Mosley v. State , 209 So.3d 1248, 1283 (Fla. 2016). Although the trial court appointed special counsel to present mitigation at the Spencer hearing and recognized in its sentencing order that the penalty phase jury did not have the benefit of hearing mitigation, I cannot conclude, in light of Hurst , that the lack of mitigation was remedied. The jury in Grim's case was left with no choice but to recommend death because they did not hear any evidence of mitigation. Thus, the jury's unanimous recommendation for death in Grim's case is unreliable and cannot support the conclusion that the Hurst error is harmless beyond a reasonable doubt.

CONCLUSION

For the reasons fully explained above, I cannot conclude that the Hurst error was harmless beyond a reasonable doubt and would, therefore, reverse and remand for a new penalty phase.

Accordingly, I dissent.

QUINCE, J., concurs.

      The fact that Grim declined to present mitigation to the jury during the penalty phase has no bearing here. Grim's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Jones v. State , 212 So.3d 321, 343 n.3 (Fla. 2017) (quoting Mullens v. State , 197 So.3d 16, 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017) ), cert. denied , --- U.S. ----, 138 S.Ct. 175, 199 L.Ed.2d 103 (2017).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

      Koon v. Dugger , 619 So.2d 246 (Fla. 1993).

      Spencer v. State , 615 So.2d 688 (Fla. 1993).

      The sentencing order stated that although "Dr. Larson was comfortable in saying the murder did not occur while the Defendant was 'experiencing psychosis in the sense of responding to delusions or hallucinations,' ... Dr. Larson could not rule out some kind of drug interaction with the Defendant's disorders."


author: PER CURIAM. QUINCE, J., dissenting.

text:
    Samuel L. SMITHERS, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1283
    Supreme Court of Florida.
    [March 29, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Adriana C. Corso and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Candace M. Sabella, Chief Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Samuel L. Smithers, a prisoner under sentences of death, appeals the circuit court's order summarily denying his first successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 1998, a jury convicted Smithers of two counts of first-degree murder for the 1996 killings of Cristy Cowan and Denise Roach. After hearing evidence at the penalty phase, the jury unanimously recommended the death sentence for each murder by a vote of twelve to zero. We affirmed Smithers' convictions and sentences of death on direct appeal. Smithers v. State , 826 So.2d 916 (Fla. 2002). We also upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Smithers v. State , 18 So.3d 460 (Fla. 2009).

In January 2017, Smithers filed his current first successive postconviction motion in which he raised numerous claims in light of Hurst v. Florida (Hurst v. Florida ), --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), Perry v. State , 210 So.3d 630 (Fla. 2016), and chapter 2016-13, Laws of Florida. In June 2017, the circuit court entered an order summarily denying Smithers' successive postconviction motion. This appeal followed. While Smithers' postconviction case was pending in this Court, we directed the parties to file briefs addressing why the circuit court's order should not be affirmed based on this Court's precedent in Hurst , Davis v. State , 207 So.3d 142 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017), and Mosley v. State , 209 So.3d 1248 (Fla. 2016).

In Davis , this Court held that a jury's unanimous recommendation of death is "precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death" because a "jury unanimously f[inds] all of the necessary facts for the imposition of [a] death sentence[ ] by virtue of its unanimous recommendation[ ]." Davis , 207 So.3d at 175. This Court has consistently relied on Davis to deny Hurst relief to defendants that have received a unanimous jury recommendation of death. See, e.g. , Grim v. State , No. SC17-1071, 244 So.3d 147, 2018 WL 1531121 (slip op. issued Fla. Mar. 29, 2018) ; Bevel v. State , 221 So.3d 1168, 1178 (Fla. 2017) ; Guardado v. Jones , 226 So.3d 213, 215 (Fla. 2017), petition for cert. filed , No. 17-7171 (U.S. Dec. 18, 2017); Cozzie v. State , 225 So.3d 717, 733 (Fla. 2017), petition for cert. filed , No. 17-7545 (U.S. Jan. 24, 2018); Morris v. State , 219 So.3d 33, 46 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 452, 199 L.Ed.2d 334 (2017) ; Tundidor v. State , 221 So.3d 587, 607-08 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 829, 200 L.Ed.2d 326 (2018) ; Oliver v. State , 214 So.3d 606, 617-18 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017) ; Truehill v. State , 211 So.3d 930, 956-57 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017). Smithers is among those defendants who received a unanimous jury recommendation of death, and his arguments do not compel departing from our precedent.

Accordingly, because we find that any Hurst error in this case was harmless beyond a reasonable doubt, we affirm the circuit court's order summarily denying Smithers' first successive motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

QUINCE, J., dissents with an opinion.

QUINCE, J., dissenting.

I cannot agree with the majority's finding that the Hurst error was harmless beyond a reasonable doubt. As I have stated elsewhere, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930, 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017). The trial judge, not the jury, made specific factual findings to support some of the most serious aggravators in this case. Because the jury did not make those findings, I dissent.


author: PER CURIAM.

text:
    Preston Leonard SCHOFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-2281
    Supreme Court of Florida.
    [May 24, 2018]
    Preston Leonard Schofield, pro se, Tampa, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court following dismissal of Preston Leonard Schofield's pro se petition for writ of error coram nobis. On February 21, 2018, we dismissed the petition and expressly retained jurisdiction to exercise our inherent judicial authority to pursue sanctions against Schofield for his abuse of this Court's limited resources. See Pettway v. McNeil , 987 So.2d 20, 22 (Fla. 2008) ; see also Fla. R. App. P. 9.410(a) (Sanctions; Court's Motion). Because Schofield had filed thirty-five other meritless petitions and notices with this Court since 2013, we ordered him to show cause why he should not be barred from filing further pro se requests for relief in this Court relating to circuit and county court case numbers 592011DR0022570000XX, 592011MM004051A000XX, 592013MM010912A000XX, 292014MM000070000AHC, 522014CF014665XXXXPC, and 592011MM004272A000XX. See Schofield v. State , No. SC17-2281, 2018 WL 1007874 (Fla. Feb. 21, 2018). We now find that Schofield has failed to show cause why he should not be barred, and we sanction him as set forth below.

Schofield has filed with this Court thirty-five other petitions and notices challenging various convictions and sentences, as well as various family court orders pertaining to child custody and other divorce matters. This Court has never granted Schofield the relief sought in any of his filings here. Each of his thirty-five other petitions and notices has been denied, dismissed, or transferred to another court for consideration; his petition in this case is no exception.

Schofield filed the instant petition for writ of error coram nobis with this Court on December 25, 2017. In it, he challenged a 2015 conviction and sentence for assault, and argued that the trial court did not have jurisdiction to entertain the charge against him. Because the writ of error coram nobis no longer exists in Florida, on February 21, 2018, we dismissed the petition pursuant to Wood v. State , 750 So.2d 592, 595 (Fla. 1999). In so doing, we expressly retained jurisdiction to consider the imposition of sanctions, and in accordance with State v. Spencer , 751 So.2d 47 (Fla. 1999), ordered Schofield to show cause why he should not be prohibited from filing further pro se requests for relief with this Court.

Rather than file a timely response to the Court's order, Schofield filed a petition for writ of prohibition on March 26, 2018, see Schofield v. Schofield , No. SC18-475, followed on March 29, 2018, by a motion in the instant case. In the motion, Schofield simply reiterates the arguments that he raised in his most recent batch of petitions that he filed with this Court, which were all meritless and ultimately dismissed. See Schofield v. State , No. SC17-2281, 2018 WL 1007874 (Fla. Feb. 21, 2018) ; Schofield v. State , No. SC17-2280, 2018 WL 862941 (Fla. Feb. 14, 2018) ; Schofield v. State , No. SC17-2279, 2018 WL 862786 (Fla. Feb. 14, 2018) ; Schofield v. Schofield , No. SC17-2278, 2018 WL 859763 (Fla. Feb. 14, 2018) ; Schofield v. State , No. SC17-2277, 2018 WL 859605 (Fla. Feb. 14, 2018). We hereby deny Schofield's motion. Additionally, on April 12, 2018, the Court issued an order transferring Schofield's prohibition petition to the Fifth District Court of Appeal for consideration by that court. Schofield v. Schofield , No. SC18-475, 2018 WL 1750897 (Fla. Apr. 12, 2018). Neither of these new filings, however, contain any justification for Schofield's continued abuse of this Court's limited resources by filing numerous meritless pro se petitions and notices.

Therefore, as a result of Schofield's extensive history of filing meritless pro se petitions and notices in this Court, we hereby find that Schofield has abused this Court's limited judicial resources, and has failed to show cause why this Court should not impose sanctions for his repeated frivolous filings. It is clear that if left unrestrained, he will continue his pattern of filing meritless petitions in this Court. Accordingly, we direct the Clerk of this Court to reject any future pleadings or other requests for relief regarding circuit and county court case numbers 592011DR0022570000XX, 592011MM004051A000XX, 592013MM010912A000XX, 292014MM000070000AHC, 522014CF014665XXXXPC, and 592011MM004272A000XX, submitted by Preston Leonard Schofield unless such filings are signed by a member in good standing of The Florida Bar. Henceforth, Schofield may only petition this Court through the assistance of counsel whenever such counsel determines that the proceedings have merit and can be filed in good faith.

No motion for rehearing or clarification will be entertained by the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      Schofield v. State , No. SC17-2280, 2018 WL 862941 (Fla. Feb. 14, 2018) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC17-2279, 2018 WL 862786 (Fla. Feb. 14, 2018) (dismissing petition for writ of error coram nobis); Schofield v. Schofield , No. SC17-2278, 2018 WL 859763 (Fla. Feb. 14, 2018) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC17-2277, 2018 WL 859605 (Fla. Feb. 14, 2018) (dismissing petition for writ of error coram nobis); Schofield v. Tampa , No. SC17-1971, 2017 WL 5496025 (Fla. Nov. 16, 2017) (transferring mandamus petition to the district court for consideration as a notice of appeal); Schofield v. Schofield , No. SC17-314, 2017 WL 2210399 (Fla. May 17, 2017) (denying habeas petition); Schofield v. Schofield , No. SC16-2283, 2017 WL 393395 (Fla. Jan. 30, 2017) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC16-1875, 2017 WL 167542 (Fla. Jan. 17, 2017) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC16-1878, 2017 WL 24665 (Fla. Jan. 3, 2017) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC16-1877, 2017 WL 24664 (Fla. Jan. 3, 2017) (dismissing petition for writ of error coram nobis); Schofield v. Schofield , No. SC16-1850, 2017 WL 24663 (Fla. Jan. 3, 2017) (dismissing petition for writ of error coram nobis); Schofield v. State , No. SC16-1879, 2016 WL 7212340 (Fla. Dec. 13, 2016) (transferring petition for writ of error coram nobis to circuit court for consideration as postconviction motion); Schofield v. State , No. SC16-1876, 2016 WL 7212338 (Fla. Dec. 13, 2016) (transferring petition for writ of error coram nobis to county court for consideration as postconviction motion); Schofield v. State , No. SC16-343 (Fla. Mar. 8, 2016) (transferring prohibition petition to district court); Schofield v. State , 171 So.3d 120 (Fla. 2015) (table) (dismissing notice to invoke discretionary jurisdiction); Schofield v. State , No. SC15-695 (Fla. Apr. 16, 2015) (transferring notice of appeal to circuit court); Schofield v. State , No. SC15-384 (Fla. Apr. 6, 2015) (transferring habeas petition to district court for consideration as notice of appeal); Schofield v. State , No. SC15-241 (Fla. Feb. 12, 2015) (transferring notice of appeal to circuit court); Schofield v. State , No. SC15-240 (Fla. Feb. 12, 2015) (transferring notice of appeal to circuit court); Schofield v. State , 160 So.3d 898 (Fla. 2015) (table) (dismissing mandamus petition) (No. SC14-1979) ; Schofield v. State , 160 So.3d 898 (Fla. 2015) (table) (dismissing mandamus petition) (No. SC14-1978) ; Schofield v. State , No. SC14-2160 (Fla. Nov. 18, 2014) (transferring prohibition petition to circuit court); Schofield v. State , 153 So.3d 909 (Fla. 2014) (table) (dismissing mandamus petition); Schofield v. Eslinger , No. SC14-1789 (Fla. Oct. 1, 2014) (transferring habeas petition to district court for consideration as notice of appeal); Schofield v. State , No. SC14-372 (Fla. Oct. 1, 2014) (transferring prohibition petition to circuit court); Schofield v. Gee , No. SC14-945 (Fla. Sept. 30, 2014) (transferring habeas petition to district court); Schofield v. State , 151 So.3d 1228 (Fla. 2014) (table) (dismissing notice to invoke discretionary jurisdiction) (No. SC14-1327) ; Schofield v. State , 151 So.3d 1228 (Fla. 2014) (table) (dismissing notice to invoke discretionary jurisdiction) (No. SC14-1153) ; Schofield v. State , 148 So.3d 772 (Fla. 2014) (table) (dismissing notice to invoke discretionary jurisdiction); Schofield v. State , 135 So.3d 289 (Fla. 2014) (table) (dismissing prohibition petition); Schofield v. State , 134 So.3d 450 (Fla. 2014) (table) (dismissing notice to invoke discretionary jurisdiction); Schofield v. Schofield , 123 So.3d 1147 (Fla. 2013) (table) (dismissing notice to invoke discretionary jurisdiction); Schofield v. State , 123 So.3d 1147 (Fla. 2013) (table) (dismissing notice to invoke discretionary jurisdiction); Schofield v. State , No. SC13-712 (Fla. Aug. 26, 2013) (transferring prohibition petition to circuit court); Schofield v. State , 116 So.3d 1262 (Fla. 2013) (table) (dismissing notice to invoke discretionary jurisdiction).


text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-08.
    No. SC17-1870
    Supreme Court of Florida.
    [May 24, 2018]
    Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
    James Altman, Assistant State Attorney, Ninth Judicial Circuit, Orlando, Florida, Responding with comments
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes that the Court amend standard jury instructions 3.12 (Verdict), 3.12(a) (Single Defendant, Multiple Counts or Informations), 3.12(c) (Multiple Counts or Informations, Multiple Defendants), and 3.12(d) (Legally Interlocking Counts), and adopt new instruction 3.12(f) (Crime Legally Interlocking with a Special Finding Within that Same Count). Following publication in The Florida Bar News , the Committee received comments from the Florida Public Defender Association (FPDA) and the Florida Association of Criminal Defense Lawyers (FACDL), both pertaining to the proposal to amend instruction 3.12. The Court also published the Committee's proposals, and one comment was received from James Altman, Assistant State Attorney for the Ninth Judicial Circuit; the Committee responded to Mr. Altman's comment. The more significant amendments to the instructions are discussed below.

Criminal jury instruction 3.12 (Verdict) is amended to include a directive to the trial court to include a provision if the State is proceeding on both theories of first degree murder, i.e. , premeditated and felony murder, on the basis of Mansfield v. State , 911 So.2d 1160 (Fla. 2005). That specific provision is added as follows:

If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First Degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder.

Instruction 3.12 also includes "a sample of possible verdict forms for typical variables in combinations of defendants and charges." As amended, two special finding forms pertaining to felony reclassification under section 775.087, Florida Statutes (2017), are added, one under subsection (1) and the other under subsection (2).

New standard criminal jury instruction 3.12(f) (Crime Legally Interlocking with a Special Finding Within that Same Count) is adopted to avoid the occurrence of "true inconsistent verdicts," where the elements of a crime may legally interlock with a special finding within that same crime under the facts of the case. See Proctor v. State , 205 So.3d 784 (Fla. 2d DCA 2016) ; Gerald v. State , 132 So.3d 891 (Fla. 1st DCA 2014).

Having considered the Committee's report and the comments submitted to the Committee and filed with the Court, and the Committee's response to the comments, we authorize instructions 3.12, 3.12(a), 3.12(c), 3.12(d), and 3.12(f) for publication and use as set forth in the appendix to this opinion. New language is indicated by underlining; deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J., concurring in result.

I concur in result for two reasons. First, although not inaccurate under our 2005 decision in Mansfield v. State , 911 So.2d 1160 (Fla. 2005), there is no reason that instruction 3.12 is now necessary. Second, even with and especially in light of instruction 3.12, I urge, once again, for the use of special verdict forms as to the alternate theories of first-degree murder, unless the defense objects.

Instruction 3.12

As the Committee recognizes, this Court has not addressed whether Hurst affects the validity of our decision in Mansfield , holding that the jury is not required to reach a unanimous decision on the theory of first-degree murder. Id. at 1178-79. Therefore, Mansfield remains good law, and instruction 3.12 is accurate under the current law. That being said, it is unclear why this instruction is being adopted now, thirteen years after Mansfield . Nevertheless, as a result of the inclusion of instruction 3.12 in the standard jury instructions, as well as the implications the jury's findings in the guilt phase have on the penalty phase, it is more important than ever to use a special verdict form in the guilt phase to determine the jury's vote as to each theory of first-degree murder.

Guilt Phase Special Verdict Forms

I join the Florida Public Defender Association in urging the trial courts to use a special verdict form in the guilt phase of capital prosecutions, especially when requested by the defendant. A special verdict form indicating each juror's determination as to whether the defendant is guilty of premeditated or felony first-degree murder would promote informed decision-making by the trial court in the guilt phase and, more importantly, by the jury in the penalty phase, especially after Hurst .

For example, if the jury did not unanimously conclude that the murder was premeditated, it should be clear that the CCP (cold, calculated, and premeditated) aggravating factor, requiring heightened premeditation, was not proven beyond a reasonable doubt. Likewise, when this Court previously rejected the Criminal Court Steering Committee's recommendation to mandate the use of guilt phase special verdict forms, in an opinion joined by Chief Justice Labarga and former Justice Perry, I explained:

The use of special verdict forms to specify felony murder and premeditated murder has numerous advantages as identified by the Steering Committee and those in favor of the forms. I would also defer to the expertise of our Steering Committee members, including the trial judges who have been utilizing the special verdict forms in first-degree murder cases and advocate their mandated use.
The Committee's proposal should be adopted because the new verdict form would assist both the trial court in making decisions as to what penalty to impose and this Court in reviewing the sentence in the following ways. First, a special verdict form indicating that a defendant was found guilty of first-degree murder based on a premeditated murder theory would obviate the need for the trial court to perform the requisite felony murder analysis under Enmund v. Florida , 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona , 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).... Second, if the State sought to establish either the cold, calculated, and premeditated or felony murder aggravators in the penalty phase, it would be helpful for the trial court to know how the jury viewed the evidence when discussing these aggravating circumstances in the sentencing order. Third, the use of a special verdict form in the guilt phase would guide the trial court in determining the applicable instructions in the penalty phase. Finally, the special verdict form would aid this Court in our review of evidentiary issues, as well as the sufficiency of the evidence as to either premeditated or felony murder.

In re Std. Jury Instrs. in Crim. Cases-Report No. 2005-2 , 22 So.3d 17, 24 (Fla. 2009) (Pariente, J., specially concurring).

Other courts, including the United States Supreme Court, have also explained that, although "the Constitution [does] not command" their use, "separate verdict forms are useful in cases submitted to a jury on alternative theories of premeditated and felony murder." Schad v. Arizona , 501 U.S. 624, 645, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (citing State v. Smith , 160 Ariz. 507, 774 P.2d 811, 817 (1989) ). Likewise, the Supreme Court of Arizona has stated that "dual forms of verdict are desirable in reviewing cases on the guilt phase." Smith , 774 P.2d at 817.

CONCLUSION

For all these reasons, although Mansfield has not been modified since Hurst , I would urge the adoption of special verdict forms in first-degree murder cases where the State seeks a conviction based on alternative theories of felony first-degree murder or premeditated first-degree murder. Notwithstanding, because the majority has chosen to not adopt this requirement, I urge defense counsel to request, the State to agree, and trial courts to grant the use of special verdict forms in the guilt phase of first-degree murder prosecutions.

APPENDIX

3.12 VERDICT

You may find the defendant guilty as charged in the [information] [indictment] or guilty of such lesser included crime[s] as the evidence may justify or not guilty.

If you return a verdict of guilty, it should be for the highest offense which that has been proven beyond a reasonable doubt. If you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty.

The verdict must be unanimous, that is, all of you must agree to the same verdict. Only one verdict may be returned as to [the crime] [each crime] charged [, except as to Count ( insert numberinsert number ), where the defendant can be found guilty of more than one lesser included crime]. The verdict must be in writing and for your convenience the necessary verdict form[s] [has] [have] been prepared for you. [It is] [They are] as follows (read verdict form(s)):

Give if State is proceeding on both theories of First Degree Murder (premeditated and felony murder). Mansfield v. State, 911 So.2d 1160 (Fla. 2005).

If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First Degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder.

In cases of multiple defendants or multiple charges, give 3.12(a), (b), or (c) as applicable.

A sample of possible verdict forms for typical variables in combinations of defendants and charges follows:

1. Verdict form for single count, single defendant.

We, the jury, find as follows, as to the defendant in this case: (check only one)
___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.

2. Verdict form for multiple counts, single defendant.

We, the jury, find as follows, as to Count I of the charge: (check only one as to this count)
___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.
We, the jury, find as follows, as to Count II of the charge: (check only one as to this count)
___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.

3. Verdict form if a count is a crime where the defendant can be guilty of more than one lesser included offense.

We, the jury, find as follows, as to Count (insert number) of the charge:
___ a. The defendant is guilty of (crime charged).
(If the defendant is not guilty of the main charge, then proceed to the lesser included offenses):
___ b. The defendant is guilty of lesser included offense(s). (check as many lesser included offenses as apply)
___ The defendant is guilty of (lesser included offense).
___ The defendant is guilty of (lesser included offense).
___ The defendant is guilty of (lesser included offense).
___ The defendant is guilty of (lesser included offense).
(If the defendant is not guilty of the main charge or any lesser included offenses, then proceed to not guilty):
___ c. The defendant is not guilty.
Use separate verdict for each defendant.

4. Verdict form for multiple counts, multiple defendants.

We, the jury, find as to the defendant, (name of defendant), as follows:
As to Count I: (check only one as to this count)
___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.
As to Count II: (check only one as to this count)
___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.

5. Verdict form when insanity is a defense.

___ a. The defendant is guilty of (crime charged).
___ b. The defendant is guilty of (a lesser included offense).
___ c. The defendant is not guilty.
___ d. The defendant is not guilty because legally insane.

Read if applicable. Special finding forms #6 and #7 below refer to § 775.087, Fla. Stat. There are other statutes requiring special findings.

In addition to the verdict form[s], there [is] [are] [a] Special Finding form[s] for Count[s] (insert number(s)).

6. Special finding form regarding § 775.087(1), Fla. Stat.

If you found the defendant guilty of (name of crime), you must then answer the following question:

During the commission of the offense, did the defendant personally [carry] [display] [use] [threaten to use] [attempt to use] a [weapon] [firearm]?
________ Yes ________ No

7. Special finding form regarding § 775.087(2), Fla. Stat.

If you found the defendant guilty of (name of crime), you must then answer the following question[s]:

1. During the commission of the offense, did the defendant actually possess a [firearm] [destructive device]?
________ Yes ________ No
2. During the commission of the offense, did the defendant personally discharge a [firearm] [destructive device]?
________ Yes ________ No
3. During the commission of the offense and as a result of the discharge of the [firearm] [destructive device], was death caused to (victim)?
________ Yes ________ No

Comments

This instruction must be amended if the defendant is relying on an insanity defense.

It is highly recommended that trial courts rely solely on the core offense in determining the order of lesser included offenses on a verdict form. Trial courts should then provide an interrogatory, separate from the verdict form for the core offense, for the jury to determine the existence of circumstances that can result in mandatory minimum sentences, sentence enhancements, or offense reclassifications. In addition, interrogatories may be used for crimes such as burglary and robbery, in which the aggravating factor is part of the statute governing the substantive crime. Sanders v. State, 944 So.2d 203 (Fla. 2006).

For compounded offenses, such as Burglary with an Assault, the jury can convict on two lesser-included offenses.See Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005).

This verdict form was adopted in 1981 and was amended in October 1981, December 1995,and 2016 [199 So.3d 234], and 2018.

3.12(a) SINGLE DEFENDANT, MULTIPLE COUNTS OR INFORMATIONS

A separate crime is charged in each [count of the information] [indictment] [information] and, although they have been tried together, each crime and the evidence applicable to it must be considered separately and a separate verdict returned as to each. A finding of guilty or not guilty as to one crime must not affect your verdict as to the other crime(s) charged [, except as explained in the instruction for legally interlocking counts] .

Comment s

See instruction 3.12(d) if legally interlocking crimes are charged, but this instruction should be read for any non-legally interlocking counts.

This instruction was adopted in 1981 and was amended in 2008 [996 So.3d 854] and 2018.

3.12(c) MULTIPLE COUNTS OR INFORMATIONS, MULTIPLE DEFENDANTS

A separate crime is charged against each defendant in each [count of the information] [information] [indictment]. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to [him] [her] must be considered separately. A finding of guilty or not guilty as to [one] [both] [or] [some] of the defendants must not affect your verdict as to any other defendant(s) or other crimes charged [, except as explained in the instruction for legally interlocking counts].

Comment s

See instruction 3.12(d) if legally interlocking crimes are charged, but this instruction should be read for any non-legally interlocking counts, or multiple informations or indictments.

This instruction was adopted in 1981 and was amended in 2008 [996 So.2d 854] and 2018.

3.12(d) LEGALLY INTERLOCKING COUNTS

Counts [A and B] (substitute appropriate count numbers)are linked in that the crime charged in count [A] (identify predicate charged crime)is an essential element of the crime charged in count [B] (identify compound charged crime).You should first consider the evidence applicable to count [A]. If you find the crime in count [A] has not been proven beyond a reasonable doubt, you must find the defendant not guilty on both counts [A] and [B].

If, on the other hand, you find that the crime charged in count [A] has been proven beyond a reasonable doubt, you must then consider the evidence applicable to count [B]. A guilty verdict on count [A] does not require a guilty verdict on count [B]. You should find the Defendant guilty on count [B] only if you find all the elements of that crime, including the essential elements contained in count [A], were proven beyond a reasonable doubt.

Comment s

Do not read instruction 3.12(a) or instruction 3.12(c) if the jury is instructed only on legally interlocking counts.

Legally interlocking crimes are charged when the crime charged in one count of the information or indictment is an essential element of the crime charged in another count. As a general rule, inconsistent verdicts are permitted because they may be the result of jury lenity. There is only one recognized exception to this general rule, namely, the "true inconsistent verdict" exception. True inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count." Read cases such asBrown v. State, 959 So.2d 218 (Fla. 2007) andGonzalez v. State, 440 So.2d 514 (Fla. 4th DCA 1983).

This instruction was adopted in 2008 [996 So.2d 854] and amended in 2018.

3.12(f) CRIME LEGALLY INTERLOCKING WITH A SPECIAL FINDING WITHIN THAT SAME COUNT

The charge of (insert appropriate charge) and the special finding associated with that charge are interrelated because a special finding that the defendant (insert the element of the special finding) is an essential element of (insert appropriate charge).

Accordingly, you should not return a verdict finding the defendant guilty of (insert appropriate charge) unless you also find, in the special finding, that the State proved the allegation that the defendant (insert the element of the special finding).

On the other hand, if you decide that the allegation that the defendant (insert the element of the special finding) in the special finding [for Count (insert the appropriate number of the relevant count) ] has not been proven beyond a reasonable doubt, then you should not return a verdict finding the defendant guilty of (insert appropriate charge).

Comments

In appropriate cases, this instruction may be used in order to avoid a true inconsistent verdict. As a general rule, inconsistent verdicts are permitted because they may be the result of jury lenity. Florida case law recognizes an exception to the general rule in cases of a "true inconsistent verdict." True inconsistent verdicts are those in which an acquittal on one count negates a necessary element for conviction on another count. See Brown v. State. 959 So.2d 218 (Fla. 2007).

A true inconsistent verdict may occur because a) a crime and b) the special finding associated with that same crime, are legally interlocking. For example, if a defendant was charged with Aggravated Battery (Deadly Weapon) along with the 10-year minimum mandatory for actual possession of a firearm; if there was no evidence that the defendant was acting as an aider or abettor; and if the only weapon the defendant is alleged to have used was undisputedly a firearm, it would be inconsistent for the jury to find the defendant guilty of Aggravated Battery (Deadly Weapon) but not guilty of the special finding that the defendant actually possessed a firearm. See, for example, Proctor v. State, 205 So.3d 784 (Fla. 2d DCA 2016) and Gerald v. State, 132 So.3d 891, 893-94 (Fla. 1st DCA 2014). On the other hand, if there was a dispute about the nature of the deadly weapon used or if there was a dispute about whether the defendant was acting as an aider or abettor, then a guilty verdict on an Aggravated Battery (Deadly Weapon) charge along with a not guilty verdict pertaining to actual possession of a firearm, may not be "truly inconsistent." See State v. McGhee, 174 So.3d 470 (Fla. 1st DCA 2015).

This instruction was adopted in 2018.

      Comments to the instructions are also amended, but are not discussed, as we caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

      The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).