| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 80,192 |
| [3] | 1994.FL.43896 <http://www.versuslaw.com>; 636
So. 2d 1309; 19 Fla. Law W. S 179 |
| [4] | decided: April 7, 1994. |
| [5] | ROY CLIFTON SWAFFORD, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | An Appeal from the Circuit Court in and for Volusia County, Kim C.
Hammond, Judge - Case No. 83-3425-BB. |
| [7] | Michael J. Minerva, Capital Collateral Representative; Martin J.
McClain, Chief Assistant CCR; and Kenneth D. Driggs, Assistant CCR and
Harun Shabazz, Assistant CCR, Office of the Capital Collateral
Representative, Tallahassee, Florida, for Appellant. |
| [8] | Robert A. Butterworth, Attorney General and Margene A. Roper,
Assistant Attorney General, Daytona Beach, Florida, for
Appellee. |
| [9] | Barkett, C.j., and Overton, McDONALD, Shaw, Grimes, Kogan and Harding,
JJ., concur. |
| [10] | Author: Per Curiam |
| [11] | Per Curiam. |
| [12] | Roy Swafford, a prisoner on death row appeals the trial
court's denial of his second motion for post-conviction relief. We have
jurisdiction. Art. V, § 3(b)(1),
Fla. Const.; Fla. R. Crim. P. 3.850. We affirm the trial court's
action. |
| [13] | A jury convicted Swafford of the first-degree murder and
sexual battery of an employee he abducted from a gas station and
recommended that he be sentenced to death, which the trial court did. This
Court affirmed the convictions and sentence. Swafford v.
State, 533 So.2d 270 (Fla. 1988), cert. denied, 489
U.S. 1100, 109 S. Ct. 1578, 103 L. Ed. 2d 944 (1989). On September 7, 1990
Governor Martinez signed a death warrant on Swafford,
setting his execution for November 13. On October 15
Swafford filed his first rule 3.850 motion.*fn1
Circuit Judge Kim Hammond held a preliminary hearing on October 24, 1990
and, on October 30, summarily denied the motion without an evidentiary
hearing. This Court entered a temporary stay and then affirmed the trial
court and denied Swafford's petition for writ of habeas
corpus. Swafford v. Dugger, 569 So.2d 1264 (Fla. 1990).*fn2
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. Singletary, 584 So.2d 5 (Fla. 1991). |
| [14] | In November 1991 Swafford filed a second rule 3.850
motion.*fn3
Judge Hammond summarily denied the second motion without an evidentiary
hearing in May 1992. After Judge Hammond denied Swafford's
motion for rehearing and for disqualification, Swafford
appealed the denial of relief to this Court and also moved for
relinquishment of jurisdiction, arguing the need for an evidentiary
hearing on whether Swafford's other trial counsel, Ray Cass,
had a conflict of interest and on whether Judge Hammond engaged in
improper ex parte communication with the state when he directed the
attorney general's office to prepare the orders denying relief in October
1990 and May 1992. In January 1993 this Court granted
Swafford's motion to relinquish jurisdiction and in March
clarified the relinquishment: "The purpose of the relinquishment is to
allow expansion of the record on appeal to include an evidentiary hearing
on the status of Mr. Swafford's trial counsel, Ray Cass, as
a special deputy sheriff and Mr. Swafford's claim that ex
parte communication occurred between the State and the trial
judge." |
| [15] | On March 29, 1993 Circuit Judge R. Michael Hutcheson held an
evidentiary hearing pursuant to this Court's order. The following
witnesses testified on the ex parte communication issue: 1) Judge Hammond
stated that, although time had dimmed 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 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 he never received personal notice
from Rowe that Judge Hammond requested the state to prepare an order after
the October 1990 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
assistant state attorney in the seventh circuit, testified that, from what
he remembered of the case, Davis asked him to prepare 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
office of the request, that he always called both sides when the judge
wanted an order, and that he never discussed the merits of any requested
orders with the parties. |
| [16] | 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,
including babies and the secretary's five- and seven-year-old
nephews. |
| [17] | 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) Brady violations
occurred; 5) counsel was ineffective at the guilt phase; 6) newly
discovered evidence establishes Swafford's innocence; 7)
counsel was ineffective at the penalty phase; 8) 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. 1993), and Rose v. State, 601 So.2d 1181 (Fla. 1992), in arguing issues 1 and 2, but those cases
are factually distinguishable from the instant one. Rose changed counsel
during the pendency of a post-conviction motion and, it appears from the
opinion, that he received no hearing on his motion at all. Similarly, the
trial court denied Huff's motion without any 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.*fn4 |
| [18] | Judge Hammond then simply requested the state to prepare 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 and we hold that no improper
ex parte communications occurred. Judge Hammond did not err in refusing to
disqualify himself. Swafford had the opportunity to, and
did, argue against the correctness of the order denying post-conviction
relief in a motion for rehearing. |
| [19] | As noted earlier, we affirmed the summary denial of the first rule
3.850 motion. Summary denial of the second motion was also proper. Francis
v. Barton, 581 So.2d 583 (Fla.), cert. denied, 111 S.
Ct. 2879, 115 L. Ed. 2d 1045 (1991). Thus, issues 3*fn5
through 8 are procedurally barred because they were or could have been
raised previously. Espinosa v. Florida, 112 S. Ct. 2926, 120 L. Ed. 2d 854
(1992), claims are cognizable in post-conviction proceedings if they have
been preserved, but Swafford did not preserve the claims he
now makes, and they are procedurally barred. |
| [20] | Finally, there is no merit to issue 9. The record shows that Cass had
no conflict of interest due to his having been given a deputy sheriff's
card by a previous sheriff. Cf., Harich v. State, 573 So.2d 303 (Fla. 1990),*fn6
cert. denied, 499 U.S. 985, 111 S. Ct. 1645, 113 L. Ed. 2d 740
(1991). |
| [21] | Therefore, we affirm the trial court's denial of
Swafford's second motion for post-conviction
relief. |
| [22] | It is so ordered. |
| [23] | BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING,
JJ., concur. |
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| Opinion Footnotes | |
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| [24] | *fn1
That first post-conviction motion raised the following issues: 1)
presentation of false evidence; 2) violation of Brady 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. Mississippi, 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 Caldwell 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 aggravator instruction insufficient and aggravator not
proved; and 16) violation of Florida Rule of Criminal Procedure
3.851. |
| [25] | *fn2
A federal appellate court later granted a stay. |
| [26] | *fn3
The motion raised the following issues: 1) violation of chapter
119, Florida Statutes; 2) Brady violation; 3)
ineffective assistance at guilt phase; 4) factual innocence; 5) Pearl's
conflict of interest; 6) ineffective assistance at penalty phase; and 7)
cumulative errors. |
| [27] | *fn4
That the state suggested that an evidentiary hearing might be needed is
not dispositive of the actual need for one because that determination is
to be made by the trial court. |
| [28] | *fn5
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 those offices were present with their
records. Judge Hammond inspected them and turned over everything but the
officers' 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. |
| [29] | *fn6
This claim is also time barred. See Agan v. State, 560 So.2d 222 (Fla. 1990); Demps v. State, 515 So.2d 196 (Fla. 1987). |