Florida’s capital post conviction review (FCPCR) process

Michael Lambrix, sentenced to death in 1984.

Next Issue: Clemency

Step 1 – The Actual Trial

Upon an indictment by a local grand jury, the defendant is tried before a 12-person jury. A capital trial differs from most criminal trials in that there are 2 distinct stages: the guilt phase is limited to presentation of evidence, including a defense geared exclusively to the question of guilt. Only if the jury unanimously finds the defendant guilty of capital (1st degree) murder does the trial then proceed to the 2nd stage, the penalty phase. At this time the state will present evidence to establish any alleged aggravating factors as defined by statutory provisions applicable to the specific circumstances of the case. The state must theoretically prove each alleged aggravating circumstance beyond a reasonable doubt and at least one aggravating factor must be found to be applicable before a death sentence can be considered.

After the state presents its evidence of alleged aggravation, the defendant is allowed to (but not required to) present any evidence reasonably believed to establish mitigation. Unlike the state’s limitation to present only evidence of aggravation specifically defined by statutes, a capital defendant is not limited to presenting evidence consistent with statutorily defined mitigating factors and may present non-statutory mitigation such as personal history, social history, etc – a lawyer’s creativity is the only real limitation. After both sides present their relevant evidence, the court will provide the jury standard jury instructions that generally guide the jurors’ application of aggravating/mitigating evidence to perimeters defined by the law. The jury is then instructed that they must deliberate in private and upon discussing the evidence, each juror must make an individual recommendation as to whether s/he believes death or life with no possibility for parole is appropriate. At least 7 of the 12 jurors must recommend death at which point the trial judge must determine the actual sentencing. Judges have been known to override unanimous recommendations for life and still impose death although in light of the USSC decision in Ring v. Arizona, 536 U.S. 584 (2002), that practice is constitutionally questionable but FL has not yet modified its statutory provisions to comply with Ring.

Step 2 - Direct Appeal

Once a capital defendant has been sentenced to death in FL pursuant to the state’s constitution, an automatic direct appeal must be brought in the defendant’s behalf and cannot be waived, not even by the defendant himself. Furthermore, the defendant must be provided legal representation.

This ‘direct’ review is limited only to claims of trial error that were originally raised during the defendant’s trial and ‘preserved on the record.’ This is commonly known as the ‘contemporaneous objection’ rule, which means that unless it occurred, the claim cannot be raised upon ‘direct’ appeal. Additionally, the Court is constitutionally obligated to independently review the sufficiency of evidence to ensure that there is subjectively interpreted sufficient evidence to support the verdict. The court must also independently review the evidence allegedly establishing applied aggravating circumstances to ensure the evidence presented at penalty phase is legally sufficient to support the imposition of a death sentence.

Once written legal arguments are submitted by both the defendant’s lawyer and the state, then the FLSC will schedule the case for oral arguments at which time counsel for both the defendant and the state will appear in person to argue their case (limited to 20 minutes per side). Often the members of the Court will personally question the lawyer on any issue they believe necessary. Typically within six months after oral arguments are provided the Court will issue a ruling – almost always provided at 8:00 am each Thursday morning (with the exception being death warrant cases) All decisions made by the 7 member court are made by majority vote; if one justice is absent or recused and a vote of 3 to 3 is rendered, then the tie goes to the state and the conviction and/or death warrant is upheld.

Step 3 - Petition for a Writ of Certiorari

Within 30 days after the decision (conviction and/or death sentence is upheld) is rendered by the Florida Supreme Court (FLSC), notice must be made of intent to pursue a petition for writ of certiorari (PWC) requesting that the USSC review a specific question of constitutional law relevant to the case. Review by the USSC is discretionary and limited exclusively to questions of conflict of constitutional law. Typically a PWC is summarily denied within 3 months of filing. If review is granted, the case is docketed on the next term of the court for full briefing and oral arguments.

Step 4 - State Post Conviction Appeal (Rule 3.850 Motion)

After certiorari review is denied by the USSC, the case is remanded back to the original trial court. Within 30 days of the conviction being affirmed, collateral post conviction counsel must be assigned, per FL Rule of Criminal Procedure, 3.851. In FL this is accomplished by either having a staff lawyer with the state funded Capital Collateral Regional Counsel (CCRC) assigned or if a CCRS lawyer is not available then a registry lawyer (=a lawyer in private practice) is assigned to the case. The original post conviction appeal must be filed with the original trial court within 1 year of completion of the previous direct appeal. Although this is commonly known as a Rule 3.850 motion which is the primary rule governing all post conviction proceedings in criminal cases in FL, Rule 3.851 is exclusively applicable to capital post conviction proceedings and explicitly defines the nature and content of claims that may be raised as well as provides a general timetable in which each stage of post conviction review must be accomplished by the trial court.

However, very rarely will an original post conviction appeal actually be filed within this one year time frame due to various delays, i.e. obtaining relevant public records. To protect against a procedural default for failure to initiate the original post conviction appeal within the statutorily defined time frame of one year, a lawyer must file a shell motion with the trial court together with a contemporuous motion for extension of time, (a shell motion = a draft of claims to fully raised once the relevant public records are provided.)

The claims generally raised within a CPCA include primarily and all claims alleging ineffectiveness by the trial lawyer. Such claims of error or incompetence must be raised within this original post conviction appeal, or will be procedurally barred from review forever. To identify such claims the appeal counsel must investigate the entire case: look at the evidence presented at trial, especially forensic (DNA), claims of innocence. A claim of innocence based upon evidence not presented at trial cannot be raised in the earlier, direct appeal.

Once the completed original post conviction appeal is presented to the original trial court, the state is provided a reasonable opportunity to provide an answer to all allegations raised. The trail court will then schedule an evidentiary hearing on any claims upon which a factual dispute exists (To be continued.)

Step 5 - The Evidentiary Hearing

Applicable law all but requires a full evidentiary hearing on an original capital post conviction appeal. Often these capital evidentiary hearings will last several days and resemble an actual trial, although all matters presented are heard and considered exclusively by the trial court judge. Only after such an evidentiary hearing is provided on the claims involving factual disputes that cannot be resolved exclusively trough the record and applicable law, will the trial court judge finally issue a ruling on all post conviction claims presented. If the ruling is based upon a perceived mistaken application of law as applied to relevant facts, then a Motion for Rehearing pointing out this error must be filed with 15 days once the order become final. The post conviction lawyer must file a Notice of Appeal within 30 days with the trial court providing specific notice of intent to appeal the denial of relied. The failure to file the required Notice of Appeal within those 30 days can result in a legal abandonment of any further rights to appellate review of the claims raised and prove fatal for the post conviction defendant as once the claims are procedurally barred they can never again be raised not even if alleging actual innocence.

Step 6 - Post-Conviction Appeal

Once a timely Notice of Appeal is filed with the original trial court after denial of the claims of post-conviction appeal, the case is again transferred directly to the Florida Supreme Court for appellate review. As with the earlier “direct appeal”, the capital defendant’s lawyer will be required to submit a written argument (brief) addressing any specific claim raised and why it is that the trail court erred in denying relief. Each claim must be raised sufficiently to identify the specific legal issue involved and is limited to arguments and evidence previously presented to the original trial court in the original post conviction appeal field before the court. Additional, the brief is limited to a maximum of 100 pages. In addition, pursuant to rules governing Florida’s supreme Court’s procedure, a capital defendant must also incorporate into this appeal any claims of “ineffective assistance of direct appeal counsel.” Specifically, if the capital defendant’s post conviction counsel believes that there ewer specific claims that should have been previously raised on direct appeal, but were not because of the failure of direct appeal counsel to do so, then those un-presented claims must be fully presented and argued simultaneously with the claims of collateral post conviction relief. The failure to do so will result in a technical abandonment of any such claims and they can not be raised later.

Step 7 - The Federal 11th Circuit Court of Appeals

If the certificate of appeal is denied by the district court, the defendant may appeal that ruling itself to the Federal 11th Circuit Court {11th CC}, requesting that the court issue the certificate and allow an appeal. In a capital case that is on its first federal habeas the right of full appellate review by the 11th CC will almost certainly be granted absent application of a “procedural bar” based upon failure to comply with applicable rules governing appellate review. Once appellate review is provided, both parties will first submit written briefs arguing each of the claims upon which relief is sought. Once the written briefs have been filed, the Court will schedule oral arguments. After oral arguments, the Court will issue a ruling.

The most significant difference between the appellate review provided by the FLSC and the 11th CC is that when a case is heard by the FLSC all sitting justices (7) will hear the case and render decisions; but when a case is brought before the 11th CC, the case is assigned to a 3 member panel of judges. Any decisions rendered work off a majority rule which means that the decision by at least 2 of the 3 judges is binding. Moreover, if that decision stands contrary to previously established law, then the loosing party can petition the full court for a rehearing en banc and ask that the full court vacate the allegedly erroneous decision again by a majority vote.

Step 8 - The United States Supreme Court

After a decision has been rendered by the 11th CC and rehearing has been denied, a capital defendant may again petition the United States Supreme Court (USSC) for review of specific question of constitutional law. For a petition of writ of certiorari to be pursued, the capital defendant must identify specific questions of constitutional law addressed within a claim properly presented before the federal court in which the defendant believes the federal court improperly denied relief. The defendant must identify previously established USSC cases that allegedly conflict with the federal court’s ruling on the claim; alternatively, the petitioner may establish that the 11th CC ruling on a question of constitutional law stands in conflict with other federal circuit courts - thus requesting the USSC to resolve the disputed existence of conflict among federal circuits on a specific question of constitutional law.

Step 9 - Death Warrant

If a petition for writ of certiorari is pursued, a decision is generally rendered within 3 months and only rarely will the USSC grant review. However, a reasonable competent post conviction counsel will almost always pursue a petition at this point if - for no other reason but to buy additional time for the development of any possible successive post conviction appeals that might be pursued. Once a capital case has exhausted federal review, then the Florida attorney general’s office will notify the office of Executive Clemency and the Governor’s office, and technically the defendant becomes death warrant eligible, meaning that upon completion of the formality of executive clemency review, a death warrant may be signed by the Governor and an actual date of execution scheduled; an event most lawyers would want to try to at least postpone if not block all together.

Next Issue: Clemency