No. 80,192

PER CURIAM.

We have jurisdiction. Art. V, 5 3(b) (11, F l a . Const.; Fla. R.

Crim. P. 3.850. We affirm the trial court's action.

v. State, 533 So. 2d 270 ( F l a . 19881, cert. knied, 489 U.S.

1100, 109 S. C t . 1578, 103 L. Ed. 2d 944 (1989). On September 7,

1990 Governor Martinez signed a death warrant an Swafford,

setting his execution for November 13. On October 15 Swafford

filed his first rule 3.850 motion.' Circuit Judge Kim Hammond

This Court entered a temporary stay and then affirmed the trial

Swafford v. Dusser, 569 So. 2d 1264 (Fla. 1990) M 2 In May 1991

Swafford filed a second habeas petition, arguing the alleged

conflict of interest of one of Swafford's trial attorneys, Howard

Pearl, which this Court denied. Swafford v. Sinsletarv, 584 So.

2d 5 (Fla. 1991).

In November 1991 Swafford filed a second rule 3.850

issues: 1) presentation of false evidence; 2) violation of Bradv

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963); 3) ineffective assistance at guilt phase; 4) ineffective

assistance at penalty phase; 5) Howard Pearl's conflict of

interest; 6 ) conflict of interest from a prior public defender's

representation of both Swafford and a witness against him; 7 )

excessive security measures at trial; 8) violation of Johnson v.

Missississi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575

(1988); 9) violation of Booth v. Maryland, 482 U.S. 496, 107 S.

Ct. 2529, 96 L. Ed. 2d 440 (1987); 10) no independent weighing by

trial court; 11) burden shift in instructions; 12) violation of

Galdwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.

2d 231 (1985); 13) sexual battery not proved; 14) cold,

calculated aggravator not proved; 15) heinous, atrocious

and 16) violation of Florida Rule of Criminal Procedure 3.851.

A federal appellate court later granted a stay.

The motion raised the following issues: 1) violation of

chapter 119, Florida Statutes; 2) Bradv violation; 3) ineffective

assistance at guilt phase; 4 ) factual innocence; 5) Pearl's

without an evidentiary hearing in May 1992. After Judge Hammond

Swafford appealed the denial of relief to this Court and also

moved for relinquishment of jurisdiction, arguing the need for an

denying relief in October 1990 and May 1992. In January 1993

this Court granted Swafford's motion to relinquish jurisdiction

relinquishment is to allow expansion of the record on appeal to

trial counsel, Ray Cass, as a special deputy sheriff and Mr.

Swafford's claim that ex parte communication occurred between the

On March 29, 1993 Circuit Judge R. Michael Hutcheson held

his recollection of this case, he, alone, decided how to rule in

cases, after which he instructed his staff to contact the parties

and request proposed orders; 2) Barbara Davis, assistant attorney

general, said that Randy Rowe, Hammond's law clerk, called her

conflict of interest; 6) ineffective assistance at penalty phase;

and 7) cumulative errors.

after the October 24, 1990 hearing, that he told her what changes

to make in her previously filed order, and that they did not

discuss the merits and, after the second rule 3.850 motion had

been filed, that Rowe called her and requested a proposed order

setting out the state's position; 3) Jerome Nickerson, former

assistant capital collateral representative (CCR), testified that

hearing; 4) two CCR secretaries said that telephone messages to

the CCR office were always given to the person being telephoned;

5) Sean Daly, former assistant attorney general, current

the 1992 requested proposed order and that in his experience, if

the person called at CCR were not in, a telephone call was

usually not returned; and 6) Randy Rowe, Judge Hammond's law

clerk, stated that for the 1990 order he called the attorney

general's office to request the order and CCR to notify that

any requested orders with the parties.

On the conflict of interest claim Ray Cass testified that

he received a deputy's card from former Sheriff Duff between 1968

and 1971, that he thought the card was merely a goodwill gesture,

that he never thought the card was worth anything or that it made

him a deputy, that he stopped carrying the card in 1973, and that

he told CCR about the card in 1990. The current sheriff's

secretary, who had worked for Sheriff Duff, showed her card to

the court and testified that Duff gave them to everyone,

Swafford raises the following issues on appeal: 1) the

second 3.850 motion should not have been denied summarily; 2)

Judge Hammond should have disqualified himself because of ex

parte communications; 3) chapter 119 violations occurred; 4)

Bradv violations occurred; 5) counsel was ineffective at the

guilt phase; 6 ) newly discovered evidence establishes Swafford's

there were constitutionally invalid penalty instructions and the

improper application of aggravators; and 9 ) Ray Cass had a

conflict of interest. Swafford relies on Huff v. State, 622 So.

2d 982 (Fla. 19931, and Rose v. State, 601 So. 2d 1181 (Fla.

19921, in arguing issues 1 and 2, but those cases are factually

during the pendency of a postconviction motion and, it appears

hearing. Such is not the case here, however, where Judge Hammond

listened to the parties in October 1990 and subsequently decided

that an evidentiary hearing was not needed.4

be needed is not dispositive of the actual need for one because

an order. No discussions on the merits of the case were held ex

parte. This matter needed to be disposed of in a timely manner

Judge Hammond did not err in refusing to disqualify himself.

correctness of the order denying postconviction relief in a

motion for rehearing.

As noted earlier, we affirmed the summary denial of the

first rule 3.850 motion.

also proper. Francis v. Barton, 581 So. 2d 583 (Fla.), cert.

denied, 111 S. Ct. 2879, 115 L. Ed. 2d 1045 (1991). Thus, issues

35 through 8 are procedurally barred because they were or could

have been raised previously. EsDinosa v. Florida, 112 S. Ct.

2926, 120 L. Ed. 2d 854 ( 1 9 9 2 ) , claims are cognizable in

postconviction proceedings i f they have been preserved, but

Swafford did not preserve the claims he now makes, and they are

Summary denial of the second motion was

that Cass had no conflict of interest due to his having been

given a deputy sheriff's card by a previous sheriff. Cf., Harich

' At the October 1990 hearing Nickerson said that everything

he had requested under chapter 119 had been disclosed except for

some things from the Ormond Beach Police Department and the

seventh circuit state's attorney office. Representatives of

personal notes. Nickerson then said that the fourteenth circuit

state's attorney office had complied and that he was satisfied

with the chapter 119 disclosures.

v. State, 573 So. 2d 303 (Fla. 1990), 6 cert. denied, 499 U.S.

985, 111 S. C t . 1645, 113 L. Ed. 2d 740 ( 1 9 9 1 ) .

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,

This claim is also time barred. See Agan v. S t a t e , 560

So. 2d 222 (Fla, 1 9 9 0 ) ; Dernz>s v, State, 515 So. 2d 196 (Fla.

, . -

An Appeal from the Circuit Court in and for Volusia County,

Kim C. Hammond, Judge - Case No. 83-3425-BB

Michael J. Minerva, Capital Collateral Representative; Martin J.

McClain, Chief Assistant CCR; and Kenneth D. Drigqs, Assistant

for Appellant

Robert A. Butterworth, Attorney General and Margene A. Roper,

Assistsant Attorney General, Daytona Beach, Florida,