| [1] | SUPREME COURT OF FLORIDA |
| [2] | Nos. 82,930, 78,199 |
| [3] | 1994.FL.52241 <http://www.versuslaw.com>; 19
Fla. Law W. S 545 |
| [4] | decided: October 27, 1994. |
| [5] | STATE OF FLORIDA, APPELLANT, v. LAWRENCE FRANCIS LEWIS, APPELLEE. FRANK LEE SMITH, APPELLANT, V. STATE OF FLORIDA, APPELLEE. |
| [6] | Two Appeals from the Circuit Court in and for Broward County, Susan
Lebow and Robert W. Tyson, Jr., Judges - Case Nos. 87-9095 CF &
85-4654 CF. |
| [7] | Robert A. Butterworth, Attorney General and Sara D. Baggett, Assistant
Attorney General, West Palm Beach, Florida, for
Appellant/Appellee. |
| [8] | Michael J. Minerva, Capital Collateral Representative; Martin J.
McClain, Chief Assistant CCR; Thomas H. Dunn, Special Assistant CCR; and
Gail E. Anderson, Todd G. Scher, Stephen M. Kissinger and John S. Sommer,
Assistant CCRs, Office of the Capital Collateral Representative,
Tallahassee, Florida, for Appellee/Appellant. |
| [9] | Shaw, J., Grimes, C.j., Overton, Kogan and Harding, JJ., and McDONALD,
Senior Justice, concur. |
| [10] | Author: Shaw |
| [11] | The State's Motion for Clarification/Rehearing, having been considered
in light of the revised opinion, is hereby denied. |
| [12] | OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice,
concur. |
| [13] | GRIMES, C.J., dissents. |
| [14] | The Motion of appellee Lewis and appellant Smith for
Rehearing, having been considered in light of the revised opinion, is
hereby denied. |
| [15] | GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD,
Senior Justice, concur. |
| [16] | The Motion of appellee Lewis and appellant Smith to
Strike Non-Record Materials is hereby denied. |
| [17] | GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD,
Senior Justice, concur. |
| [18] | REVISED OPINION |
| [19] | SHAW, J. |
| [20] | We review the orders of the Circuit Court of the Seventeenth Judicial
Circuit, in and for Broward County, Florida, in the cases of State v.
Lewis, No. 87-9095CF10 (Fla. 17th Cir. Ct. Oct. 11, 1993),
and Smith v. State, No. 85-4654CF (Fla. 17th Cir. Ct. Jan. 6, 1994),
pursuant to jurisdiction granted under article V, section 3(b)(1) of the Florida Constitution. Given
the similarity of issues, we have consolidated the cases for our
review. |
| [21] | Lawrence Francis Lewis |
| [22] | Lewis was convicted of first-degree murder and sentenced
to death by Judge Stanton S. Kaplan of the Broward County Circuit Court.
The conviction and sentence were affirmed in Lewis v. State,
572 So.2d 908 (Fla. 1990), cert. denied, 501 U.S.
1259, 111 S. Ct. 2914, 115 L. Ed 2d 1077 (1991). In 1992,
Lewis filed a 3.850 motion before Judge Kaplan, but sought
to disqualify the judge from presiding over the proceeding by asserting
that Judge Kaplan: (1) had a personal relationship with
Lewis's trial counsel; (2) harbored an animosity towards
Lewis; (3) made inappropriate remarks while being
interviewed on a television news program; and (4) had a conflict of
interest based on the funding methods of the Seventeenth Judicial Circuit
(which includes Broward County).*fn1
Judge Kaplan granted Lewis's motion and disqualified
himself. Thereafter, Lewis caused the judge to be served
with a witness subpoena for the purpose of taking his deposition.*fn2
The trial court denied the State's motion to quash the subpoena, the State
sought review, and the Fourth District Court of Appeal transferred the
case to this Court. |
| [23] | Frank Lee Smith |
| [24] | Smith was convicted of first-degree murder and sentenced to death by
Judge Robert W. Tyson of the Broward County Circuit Court. The conviction
and sentence were affirmed in Smith v. State, 515 So.2d 182 (Fla. 1987), cert. denied, 485 U.S. 971, 108 S. Ct. 1249,
99 L. Ed 2d 447 (1988). After the Governor signed his death warrant, Smith
filed a motion for post-conviction relief and a request for a stay of
execution. We reversed the trial court's denial of Smith's motion for
post-conviction relief and remanded for an evidentiary hearing. Smith v.
State, 565 So.2d 1293 (Fla. 1990). After the
evidentiary hearing, the trial court again denied Smith's motion for
post-conviction relief. Smith appealed, alleging that Judge Tyson engaged
in ex parte communications with the prosecutor when preparing the order
that denied Smith's motion. We temporarily relinquished jurisdiction to
the trial court for the purpose of "getting the facts" relevant to the
alleged ex parte communications. Smith subpoenaed Judge Tyson for the
purpose of taking his deposition. The State filed a motion to quash and a
motion for a protective order asserting that Smith failed to follow the
procedures established in Davis v. State, 624 So.2d 282 (Fla. 3d DCA 1993). The trial court denied the motion to
quash, but granted a protective order limiting Smith's inquiry to the
facts surrounding the order's preparation. The State filed an emergency
motion seeking review in this Court and we granted a stay of the circuit
court proceedings pending our disposition of the review proceedings in
Lewis and Davis. On February 4, 1994, we consolidated
Lewis and Smith. |
| [25] | These two cases present the following issues: (1) can parties engage
in pre-hearing discovery when pursuing post-conviction claims pursuant to
Florida Rule of Criminal Procedure 3.850; and (2) if such discovery is
permitted, may the parties depose the trial judge? We answer both issues
in the affirmative, and find that it is within the trial judge's inherent
authority, rather than any express authority found in the Rules of
Criminal Procedure, to allow limited discovery. In this vein, we find the
procedures established in Davis persuasive and adopt the following
paragraph as our own: |
| [26] | In most cases any grounds for post-conviction relief will appear on
the face of the record. On a motion which sets forth good reason, however,
the court may allow limited discovery into matters which are relevant and
material, and where the discovery is permitted the court may place
limitations on the sources and scope. On review of an order denying or
limiting discovery it will be the [moving party's] burden to show that the
discretion has been abused. |
| [27] | 624 So.2d at 284. The trial judge, in deciding whether to
allow this limited form of discovery, shall consider the issues presented,
the elapsed time between the conviction and the post-conviction hearing,
any burdens placed on the opposing party and witnesses, alternative means
of securing the evidence, and any other relevant facts. See People ex rel.
Daley v. Fitzgerald, 123 Ill. 2d 175, 526 N.E.2d 131, 135, 121
Ill. Dec. 937 (Ill. 1988). This opinion shall not be interpreted as
automatically allowing discovery under rule 3.850, nor is it an expansion
of the discovery procedures established in rule 3.220. We conclude that
this inherent authority should be used only upon a showing of good
cause. |
| [28] | We also find that a party may be allowed to take post-conviction
depositions of the judge who presided over the trial only when the
testimony of the presiding judge is absolutely necessary to establish
factual circumstances not in the record, provided the requirements set
forth above are fulfilled and the judge's thought process is not violated.
See United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 1004, 85 L.
Ed. 1429 (1941)(a judge's thought process relevant to judicial decisions
is not within the purview of an examination). The judge may refuse to
answer any question which the judge deems intrusive. See Charles W.
Ehrhardt, Florida Evidence, § 607.1, at 366 & n.1 (1994)("Generally
judges cannot be compelled to testify as to matters concerning their
judicial duties.").*fn3 |
| [29] | We deny the State's request that we quash the orders of the trial
courts; we instead remand Lewis and Smith to their
respective trial courts so that the presiding judges may determine whether
post-conviction pre-hearing discovery should be allowed. |
| [30] | It is so ordered. |
| [31] | GRIMES, C.J., OVERTON, KOGAN and HARDING, JJ., and McDONALD, Senior
Justice, concur. |
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| Opinion Footnotes | |
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| [32] | *fn1
Lewis alleged that the Seventeenth Judicial Circuit funds
the appointments of special assistant public defenders for capital cases,
expert witnesses, and judicial capital expenditures from the same county
fund; that Judge Kaplan negotiated lesser fees with special assistant
public defenders in order to increase the funds available for judicial
capital expenditures; and that this required the public defenders to seek
out expert witnesses on the basis of economy as opposed to
competence. |
| [33] | *fn2
Lewis asserts that the subpoena was premised on his belief
that the judge possessed additional information that would support his
claims for relief. |
| [34] | *fn3
We emphasize that requesting a subpoena or a discovery deposition of the
assigned trial judge in a case should not be utilized as a technique to
disqualify the original trial judge from further hearings in the case. The
need to have a trial judge testify is very limited in scope and
particularly applies only to factual matters that are outside the
record. |