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03/01/90 GREGORY MILLS, v. RICHARD L. DUGGER, etc.,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] GREGORY MILLS, Petitioner,
v.
[3] RICHARD L. DUGGER, etc., Respondent. GREGORY MILLS,
[4] Appellant, v. STATE OF FLORIDA, Appellee
[5] Nos. 75,037, 75,253
[6] 559 So. 2d 578, 15 Fla. Law W. S 114
[7] March 1, 1990
[8] An Original Proceeding, Habeas Corpus and, An Appeal from the Circuit
Court in and for Seminole County, J. William Woodson, Judge, Case No.
79-653-CFA.
[9] Rehearing Denied May 10, 1990.
BLUE BOOK CITATION FORM: 1990.FL.476 (http://www.versuslaw.com)
[10] APPELLATE PANEL:
[11] Ehrlich, C.J., and Overton, Shaw, Grimes and Kogan, JJ., concur,
Barkett, J., concurs specially with an opinion, McDonald, J., concurs in
part and dissents in part with an opinion.
[12] PER CURIAM DECISION
[13] Gregory Mills, a prisoner under death warrant, petitions for a writ of
habeas corpus, appeals the trial court's denial of his Florida Rule of
Criminal Procedure 3.850 motion for post-conviction relief, and requests a
stay of execution. We have jurisdiction pursuant to article V, section
3(b)(1), (9), Florida Constitution. We grant an indefinite stay and direct
the trial court to hold an evidentiary hearing, but deny the petition for
writ of habeas corpus.
[14] A jury convicted Mills of shooting to death a man whose home Mills and
an accomplice had broken into. The trial judge overrode the jury's
recommendation of life imprisonment and sentenced Mills to death. This Court
affirmed both Mills' conviction of first-degree murder and his death
sentence. Mills v. State, 476 So.2d 172 (Fla. 1985), cert. denied, 475 U.S.
1031, 89 L. Ed. 2d 349, 106 S. Ct. 1241 (1986). The governor recently signed
Mills' death warrant, and the trial court summarily denied Mills' 3.850
motion.
[15] In that motion Mills claimed that his counsel rendered ineffective
assistance by not developing and presenting evidence of his mental
impairment and deficiency in an attempt to mitigate his sentence. He now
argues that the trial court erred in not holding an evidentiary hearing on
this claim. Treating the allegations as true except to the extent rebutted
by the record, Harich v. State, 484 So.2d 1239 (Fla.), cert. denied, 476
U.S. 1178, 90 L. Ed. 2d 993, 106 S. Ct. 2908 (1986), we find that a hearing
on this issue is needed. Therefore, we direct the trial court to hold an
evidentiary hearing in regards to counsel's failure to develop and present
evidence that would tend to establish statutory or non-statutory mental
mitigating circumstances. See Gorham v. State, 521 So.2d 1067 (Fla. 1988);
Jones v. State, 446 So.2d 1059 (Fla. 1984). We further direct that the
hearing on this issue be held within sixty days of the filing of this
opinion.
[16] Turning to the petition for habeas corpus, we find no relief warranted.
Mills includes seven claims in his petition: 1) this Court decided wrongly
on appeal the issue of Mills not being allowed to impeach his codefendant;
2) the override was improper; 3) appellate counsel was ineffective because
Mills should have been resentenced based on Elledge v. State, 346 So.2d 998
(Fla. 1977); 4) the trial court erred in finding an automatic aggravating
factor (felony murder); 5) the trial court erred in allowing gunshot residue
test evidence; 6) the trial court impermissibly shifted to Mills the burden
of proving life to be the proper penalty; and 7) consideration of victim
impact evidence violated Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440,
107 S. Ct. 2529 (1987). Mills raised most of these issues on direct appeal
or in his 3.850 motion; others should have been raised, if at all, on
appeal. Habeas corpus is not to be used for additional appeals of issues
that could have been, should have been, or were raised on appeal or in other
postconviction motions. Suarez v. Dugger, 527 So.2d 190 (Fla. 1988); White
v. Dugger, 511 So.2d 554 (Fla. 1987); Blanco v. Wainwright, 507 So.2d 1377
(Fla. 1987). Claims 1, 2, and 4 through 7 are, therefore, procedurally
barred.
[17] In Elledge this Court ordered a new sentencing proceeding because the
state introduced evidence of and argued that Elledge had confessed to
another murder that he had not been convicted of. No such impropriety
occurred at Mills' trial. Elledge is factually distinguishable, and, even if
appellate counsel had argued that case to us, it would not have affected our
affirming Mills' conviction and sentence. Counsel, therefore, did not render
ineffective assistance on appeal.
[18] Therefore, we deny the petition for habeas corpus.
[19] It is so ordered.
IN AGREEMENT
[20] BARKETT, J., concurring specially.
[21] I concur but would also grant habeas relief.
[22] MINORITY OPINION
[23] McDONALD, J., concurring in part, dissenting in part.
[24] I concur in denying the petition for habeas corpus. I dissent from
granting any relief on the trial court's denial of the postconviction
motion. Although I originally dissented to affirming Mills' sentence, I see
no need to remand this case for an evidentiary hearing. Courts are
encouraged to hold evidentiary hearings on postconviction motions, but, if
such a motion "lacks any substantial factual allegations, or where the facts
alleged, even if true, would not render the judgment vulnerable to
collateral attack, the motion may be summarily denied." Steinhorst v. State,
498 So.2d 414, 414-15 (Fla. 1986); Porter v. State, 478 So.2d 33 (Fla.
1985). After reviewing the motion, I would hold that the trial court did not
err in summarily denying relief.
[25] To prevail on a claim of ineffectiveness, one must show both
substandard performance and prejudice caused by that performance. Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
However, "counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment." Id. at 690. Taking all the circumstances into
account, the court must decide if "the identified acts or omissions were
outside the wide range of professionally competent assistance." Id.
[26] Mills has now tendered more information about his past than trial
counsel presented. He overlooks the fact, however, that counsel presented a
substantial amount of mitigating evidence and secured a jury recommendation
of life imprisonment, a strong indication of counsel's effectiveness.
Francis v. State, 529 So.2d 670 (Fla. 1988); Lusk v. State, 498 So.2d 902
(Fla. 1986), cert. denied, 481 U.S. 1024, 95 L. Ed. 2d 517, 107 S. Ct. 1912
(1987); Porter.
[27] The majority feels that further inquiry is needed into whether counsel
should have investigated his currently advanced claim of brain damage and
mental deficiency with the aim of presenting more mitigating evidence.
Through counsel's efforts, the jury learned of the disparate treatment of
Mills and his codefendant, that Mills was holding down a job and that his
employer thought well of him, that he had a harsh: and deprived youth, and
that he passed his G.E.D. tests. The evidence counsel presented at trial is,
in my opinion, more useful and more compelling in mitigation than that he
may be mentally impaired. Therefore, I see no reason for a hearing on this
issue.
[28] Mills' argument, in reality, is that the sheer quantity of material can
make it more difficult for a judge to justify, and for this Court to affirm,
overriding a jury's recommendation. Quantity, however, is not the same as
quality. This Court fully considered, and affirmed, the override on appeal.
The override sentence is the law of the case. Johnson v. Dugger, 523 So.2d
161 (Fla. 1988). The evidence presented by counsel made both the jury and
judge well aware of who Mills was. The current speculation that giving them
more of the same information would have altered the result is just that,
mere speculation. I do not agree that counsel was ineffective for failing to
persuade the judge to follow the jury's recommendation. Francis; Lusk;
Porter.
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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19900301
1990.FL.476