IN THE SUPREME COURT OF FLORIDA
CASE NO. SC00-1351
CHARLES FINNEY,
Appellant
v.
STATE OF FLORIDA
Appellee.
ON APPEAL FROM THE CIRCUIT COURT
OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA
MOTION TO ACCEPT THIS PLEADING AS A REPLY TO THE STATE’S
RESPONSE
CHARLES FINNEY DC# 516349
UNION CORRECTIONAL INSTITUTION
PO BOX 221
RAIFORD, FLORIDA 32083
The appellant, Charles Finney, respectfully requests this most Honored Court to allow this motion as a reply in answer to new matters raised by the State’s Response.
In it’s Response, the State initially relies on the case of Davis v. State, 26 Fla. L. Weekly S480 (Fla. July 12, 2001). However, my understanding of that case is that it concerned an effort to discharge counsel for failing to pursue an appeal with sufficient diligence and/or keeping the appellant informed of the process. In that case, I do not believe that the Court addressed a situation concerning an alleged conflict in the context of the appellant having an attorney who told the State that there were new issues to raise, and thereafter, was fired by the new CCRC head who, within this past year, ran for the position of State Attorney on a platform of speeding up the appellant’s execution. The situation here is qualitatively different.
To accept the State’s reading of Davis would be tantamount to ruling that once a CCRC office undertakes the representation of a client, any conflict of interest that arises is to be ignored. Yet, oddly on page five (5) of the State’s Response, the State asserts, "If Finney’s accusations have any merit, he has presented a disturbing scenario with implications far beyond the confines of his case. Finney’s motion is not the appropriate vehicle to initiate a legitimate fact-finding investigation of this claim at this time. Certainly, if Finney’s allegations are properly investigated and found to have merit, he and other defendants represented by CCRC-Middle will be granted relief." Response at five (5). How do I raise this "disturbing scenario" and obtain a "legitimate fact-finding investigation of this claim" if not by filing with this Court as soon as I learned of the information? If I don’t raise the claim, won’t the State be arguing either a procedural bar or a waiver of the claim?
To acknowledge that the scenario is "disturbing" may validate my feelings about what is happening to me, but yet to argue that I can do nothing about this "disturbing scenario" seems even more disturbing.
Despite recognizing that if an investigation into my allegations shows that they "have any merit, he and other defendants represented by CCRC-Middle will be granted relief," the State also says on page two (2) of the Response that, "Even if Finney’s motion is considered, no conflict sufficient to require the removal of the CCRC-Middle office from this case has been identified in Finney’s motion." I do not understand how the State can say both things in the same Response. Maybe there is a typographical error. The only other alternative is if the State is trying to say that I have to prove my claim in motion. However, surely that is not the law in Florida. Rule 3.850 allegations are taken as true, and if the allegations taken as true warrant relief, then an evidentiary hearing is required, thereby providing the movant with the opportunity to establish his allegations. It seems the same law should apply to my motion.
The Response also notes that I stated that there are legitimate issues that Mr. Hobson was investigating and intending to present. The Response then states that since these legitimate issues have not yet been presented, my claim is insufficient. Response at three (3). But, the State confirms that Mr. Hobson advised Ms. Dittmar that he had "discovered" additional issues. Response at three (3 fn1). Only after Ms. Dittmar was so advised did Mr. Hobson get fired. The Response then says that months later "such issues still have not been specifically identified." But, that is the point. Ms. Dittmar did not want those issues raised, and she even filed a motion in this Court to preclude them. So, Mr. Jennings did the State’s work by firing Mr. Hobson, who had given notice that he would be raising the issues, and replacing him with someone who is placing the State’s desire to have the issues not be raised ahead of my interest in having the issues raised.
Mr. Hobson was fired along with the only two attorneys (Harry Brody and Jeff Hazen) in the Middle office who had obtained Rule 3.850 relief during it’s entire existence. Relief was granted in Alphonso Green and Kenneth Stewart, and Mr. Brody and Mr. Hazen represented them as a team. Mr. Jennings fired those attorneys and Mr. Hobson, who had capital collateral experience and replaced them with attorneys with no capital collateral experience. It is interesting to compare the record of the Middle office to the South and the North. The Middle office has more clients, but during the same time period that the Middle had the State stipulate relief in only two cases, the South obtained relief on behalf of David Young, Ray Thompson, Lawrence Lewis, Ricky Roberts, Jim Coney, Wayne Tompkins, and Gregory Mills. Meanwhile, the North obtained relief for Rudolph Holton, Askari Muhammed, and Barry Hoffman. Not only did the other offices obtain more relief with fewer cases, but those offices did not fire the litigation teams that had obtained 3.850 relief and replace them with attorneys with no capital collateral experience.
For some reason, the State cites Atkins v. State which concerned whether the Governor had a conflict in a presiding over Mr. Atkins’ clemency request. Again, this is not the circumstance presented here. And, the State concedes on page five (5) of the Response that the scenario I have alleged is "disturbing" which if true, warrants relief.
As for my failure to raise a conflict as to Mr. Hobson, I am not sure what the State is saying. Was there a basis for a conflict claim that was not disclosed to me? Is the state conceding that Mr. Hobson had a conflict? If this is so, it seems that this should have been disclosed to me sooner.
The State has asserted that "absent some substantiation of Finney’s opinion that such a conspiracy exists, dismissal of counsel is not warranted at this time." Even though such a requirement is not placed on 3.850 litigants, my problem is that from where I sit, I do not have the resources or a court’s subpoena power to obtain the requested documents. I am including with this motion a copy of an email that a friend obtained which provides some substantiation. But, without the assistance of conflict-free counsel or the court’s subpoena power, I am powerless to obtain more substantiation.
The cases cited by the state regarding whether a conflict had been shown seem to have been decided after an evidentiary hearing was allowed regarding the alleged conflict. Of course, at this point, there has been no hearing regarding what the State concedes is a "disturbing scenario" which if true, will warrant relief.
Finally, the State alleges that I have not identified any prejudice. Actually, the case law requires that conflict actually affected the lawyer’s performance where it is discovered after the fact and the defendant is seeking to vacate the resulting conviction. That is obviously akin to a harmless error analysis. However, a harmless error analysis is not employed when objection is made at trial. A defendant who is objecting at trial to the admission of hearsay does not have to show how the evidence will prejudice him to exclude it. He only has to address harmlessness if his objection is erroneously overruled and the State alleges on appeal that the error was harmless.
Be that as it may be, Mr. Jennings fired Mr. Hobson who was going to raise my issues and had so advised the State. That would seem to me to be actual affect. Moreover, my issues now won’t be raised. Again, that would also seem actual affect.
I respectfully ask this Court to either disqualify CCRC-Middle from representing me or order an investigation into the "disturbing scenario" which if true warrants relief.
I hereby certify that a true and correct copy of this motion has been furnished by United States Mail to all counsel of record on September 11, 2001.
Copies furnished to:
The Honorable Chet A. Tharpe
Circuit Court Judge
Hillsborough County Courthouse
317 Tower
801 East Kennedy Blvd.
Tampa, Florida 33602
Carol M. Dittmar
Assistant Attorney General
Office of the Attorney General
Westwood Building, Seventh Floor
2002 North Lois Avenue
Tampa, Florida 33607
Sharon Vollrath
Assistant State Attorney
Office of the State Attorney
Hillsborough County Courthouse
Annex
800 East Kennedy Blvd
Tampa. Florida 330602
Capital Collateral Regional Counsel
Middle Region
3801 Corporex Park Drive
Suite 210f
Tampa, Florida 33619
Respectfully submitted,