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SUPREME COURT OF FLORIDA |
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No. 74,248 |
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1992.FL.45729 <http://www.versuslaw.com>;
601 So. 2d 1181; 17 Fla. Law W. S 319 |
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decided: May 28, 1992. |
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JAMES FRANKLIN ROSE, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
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An Appeal from the Circuit Court in and for Broward and Hillsborough
County, M. Daniel Futch, Judge - Case Nos. 76-5036 (Broward)
77-2895 (Hillsborough) |
| [7] |
Larry Helm Spalding, Capital Collateral Representative; Gail
E. Anderson, Assistant CCR and John S. Sommer, Staff Attorney,
Tallahassee, Florida; and Billy H. Nolas and Julie D. Naylor,
Special Appointed CCR, Ocala, Florida, Office of the Capital
Collateral Representative, for Appellant. |
| [8] |
Robert A. Butterworth, Attorney General and Celia A. Terenzio,
Assistant Attorney General, West Palm Beach, Florida, for Appellee. |
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Barkett, Shaw, Overton, McDONALD, Grimes, Kogan, Harding |
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Author: Barkett |
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BARKETT, J. |
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James Franklin Rose appeals the trial court's denial
of his motion for relief pursuant to Florida Rule of Criminal
Procedure 3.850.*fn1
We reverse the trial court's order. |
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Rose was tried for the first-degree murder and
kidnapping of eight-year-old Lisa Berry The facts of the case
are fully set forth in the direct appeal. Rose
v. State, 425 So.2d 521, 522-23 (Fla. 1982),
cert. denied, 461 U.S. 909, 76 L. Ed. 2d 812, 103 S. Ct. 1883
(1983). Briefly stated, on October 22, 1976, Lisa Berry and her
mother, Barbara, were at a bowling alley with family and friends,
including Rose. Shortly after 9:30 p.m. Rose
and Lisa went to the poolroom area of the bowling alley. Rose
and Lisa were seen at the exit of the bowling alley by Lisa's
sister, Tracy, between 9:30 and 10:00 p.m. At approximately 10:23
p.m. Rose called Barbara at the bowling alley to
ask when she would be finished bowling; she said 11:30 p.m. Rose
returned to the bowling alley at that time. The State argued
that Rose killed Lisa sometime after 9:30 p.m.
and before he returned to the bowling alley. |
| [14] |
The jury found Rose guilty and recommended the
death penalty. The trial judge imposed a sentence of death for
the murder and a life sentence for the kidnapping. This Court
affirmed the convictions and the life sentence, but vacated the
death sentence and remanded for resentencing. Rose,
425 So.2d at 525. On remand, the jury recommended
death. The court found no mitigating circumstances. In aggravation,
the court found that Rose was under sentence of
imprisonment when he committed the murder because he was on parole
at the time,*fn2
that he had previously been convicted of a felony involving the
use or threat of violence,*fn3
and that the murder was committed during the commission of a
kidnapping.*fn4
The death sentence was affirmed by this Court. Rose
v. State, 461 So.2d 84, 88 (Fla. 1984),
cert. denied, 471 U.S. 1143, 86 L. Ed. 2d 706, 105 S. Ct. 2689
(1985). Thereafter, Rose filed a petition for a
writ of habeas corpus which this Court ultimately denied. Rose
v. Dugger, 508 So.2d 321, 326 (Fla.), cert.
denied, 484 U.S. 933, 98 L. Ed. 2d 267, 108 S. Ct. 308 (1987).
Rose then filed a motion for post-conviction relief
pursuant to rule 3.850 which was denied without hearing by the
trial court. Rose now appeals the trial court's
denial of that motion. |
| [15] |
We confine our review to two issues. First, Rose
argues that he was denied due process of law because the trial
court, without a hearing and as a result of an ex parte communication,
adopted the State's proposed order denying relief without providing
counsel notice of receipt of the order, a chance to review the
order, or an opportunity to object to its contents. Second, Rose
asserts that he is entitled to an evidentiary hearing on the
allegations contained in his motion. |
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Rose's 3.850 motion was originally filed by an
assistant public defender who was later allowed to withdraw as
counsel by the trial court. The State responded to Rose's
motion and in its response agreed that an evidentiary hearing
was required. Subsequently, the State submitted a proposed order,
adopted in its entirety by the trial court, denying all relief.
Rose's new counsel was not served with a copy of
the proposed order or provided an opportunity to file objections.*fn5
Under these facts we must assume that the trial court, in an
ex parte communication, had requested the State to prepare the
proposed order. |
| [17] |
The judicial practice of requesting one party to a prepare a
proposed order for consideration is a practice born of the limitations
of time. Normally, any such request is made in the presence of
both parties or by a written communication to both parties. We
are not unmindful that in the past, on some occasions, judges,
on an ex parte basis, called only one party to direct that party
to prepare an order for the judge's signature. The judiciary,
however, has come to realize that such a practice is fraught
with danger and gives the appearance of impropriety. See generally
Steven Lubet, Ex Parte Communications: An Issue in Judicial Conduct,
74 Judicature 96, 96-101 (1990). |
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Canon 3A(4) of Florida's Code of Judicial Conduct states clearly
that |
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A judge should accord to every person who is legally interested
in a proceeding, or his lawyer, full right to be heard according
to law, and except as authorized by law, neither initiate nor
consider ex parte or other communications concerning a pending
or impending proceeding. |
| [20] |
Fla. Bar Code of Jud. Conduct, Canon 3A(4) (emphasis added).
Nothing is more dangerous and destructive of the impartiality
of the judiciary than a one-sided communication between a judge
and a single litigant. Even the most vigilant and conscientious
of judges may be subtly influenced by such contacts. No matter
how pure the intent of the party who engages in such contacts,
without the benefit of a reply, a judge is placed in the position
of possibly receiving inaccurate information or being unduly
swayed by unrebutted remarks about the other side's case. The
other party should not have to bear the risk of factual oversights
or inadvertent negative impressions that might easily be corrected
by the chance to present counter arguments. As Justice Overton
has said for this Court: |
| [21] |
Canon [3A(4)] implements a fundamental requirement for all judicial
proceedings under our form of government. Except under limited
circumstances, no party should be allowed the advantage of presenting
matters to or having matters decided by the judge without notice
to all other interested parties. This canon was written with
the clear intent of excluding all ex parte communications except
when they are expressly authorized by statutes or rules. |
| [22] |
In re Inquiry Concerning a Judge: Clayton, 504 So.2d
394, 395 (Fla. 1987). |
| [23] |
We are not here concerned with whether an ex parte communication
actually prejudices one party at the expense of the other. The
most insidious result of ex parte communications is their effect
on the appearance of the impartiality of the tribunal. The impartiality
of the trial judge must be beyond question. In the words of Chief
Justice Terrell: |
| [24] |
This Court is committed to the doctrine that every litigant is
entitled to nothing less than the cold neutrality of an impartial
judge. . . . The exercise of any other policy tends to discredit
the judiciary and shadow the administration of justice. |
| [25] |
State ex rel. Davis v. Parks, 141 Fla. 516,
519-20, 194 So. 613, 615 (1939). Thus, a
judge should not engage in any conversation about a pending case
with only one of the parties participating in that conversation.
Obviously, we understand that this would not include strictly
administrative matters not dealing in any way with the merits
of the case. |
| [26] |
In this case, the issue was compounded by the State's concession
that an evidentiary hearing was required on some of the factual
matters alleged. For example, the notion states that the case
was tried based on the State's theory that Rose
killed Lisa Berry between the hours of 9:30 and 10:23 p.m.*fn6
Rose claims that there were five witnesses who
saw Lisa at the bowling alley between 10:30 and 11:50 p.m.--after
Rose had, under the State's theory at trial, committed
the murder and returned to the bowling alley. The motion alleges
that the statements and/or testimony of these witnesses were
available to defense counsel but were not used at trial. We agree
that this issue merits an evidentiary hearing. |
| [27] |
Thus, we reverse the order denying Rose's motion
for post-conviction relief. We direct the trial court to reconsider
Rose's motion and to hold an evidentiary hearing
on the ineffective assistance of counsel claims and any other
appropriate factual issues presented in the motion. |
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It is so ordered. |
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SHAW, C.J. and OVERTON, McDONALD, GRIMES and HOGAN, JJ., concur. |
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HARDING, J., concurs with an opinion. |
| [31] |
HARDING, J., concurring. |
| [32] |
I concur with the majority opinion and write only to emphasize
that, in my experience as a trial judge, where more than one
attorney or party has made an appearance in a case, I found that
there were few administrative matters which would require or
justify an ex parte communication with a judge. The most obvious
administrative matter would relate to setting hearings on motions
and other matters. Care should be exercised even in this regard. |
| [33] |
In maintaining calendar control, many judges deem it appropriate
to personally screen and approve the setting of cases which require
more than a set period of time, that is, thirty minutes. If the
judge must become personally involved, in any way, in the setting
of a hearing, care should be given that all parties have equal
opportunity to participate in the setting of that hearing. Judge's
calendars and dockets are generally very crowded. Time on them
is a precious commodity which should be distributed in a fair
manner. It probably will be common knowledge that an explanation
to the judge is required to set a hearing lasting longer than
a set time. Thus, if all parties are not involved in setting
the case, it will be assumed that there was an ex parte communication
with the judge in order to obtain the time. Ex parte communications
with a judge, even when related to such matters as scheduling,
can often damage the perception of fairness and should be avoided
where at all possible. |
| [34] |
The number of lawyers has grown significantly in recent years
in most locations. It is impossible for lawyers to know each
other and the judges with the same degree of familiarity that
they did in the past. It is also more common for lawyers to appear
in courts "away from home" than it was in the past.
This growth in numbers and mobility places a greater burden on
the judge to ensure that neutrality continues to exist. Judges
should be ever vigilant that every litigant gets that to which
he or she is entitled: "the cold neutrality of an impartial
judge." State ex rel. Davis v. Parks, 141 Fla.
516, 519-20, 194 So. 613, 615
(1939). |
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| Opinion Footnotes | |
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*fn1
We have jurisdiction pursuant to article V,
section 3(b)(1) of the Florida Constitution. |
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*fn2
§ 921.141(5)(a), Fla. Stat. (1975). |
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*fn3
Id. § 921.141(5)(b). |
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*fn4
Id. § 921.141(5)(d). |
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*fn5
A copy of the proposed order was sent to Rose's
former counsel. |
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*fn6
The State does not contest this characterization. |