Graham v. State

Supreme Court of Florida

Graham v. State

372 So. 2d 1363

CourtSupreme Court of Florida

DecidedJune 22, 1979

Docket56947

StatusPublished

Cited by90 cases

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Bluebook

Graham v. State, 372 So. 2d 1363 (Fla. 1979).

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Opinion

372 So.2d 1363 (1979)

The Petition of Andrew A. GRAHAM et al., On Behalf of Nine Condemned Men, Petitioners,
v.
STATE of Florida, Respondent.

No. 56947.

Supreme Court of Florida.

June 22, 1979.

*1364 Tobias Simon, Miami, for petitioners.

Jim Smith, Atty. Gen., and Charles Stampelos, Asst. Atty. Gen., Tallahassee, for respondent.

PER CURIAM.

This petition for the appointment of counsel was filed by eight volunteer attorneys who represent Learie Leo Alford, Gary E. Alvord, Willie Jasper Darden, Clifford Hallman, and Robert Sullivan, each of whom has been sentenced to death and has had his sentence affirmed by the Supreme Court of Florida and the United States Supreme Court.^[1] These eight petitioners are joined by Andrew A. Graham and Joan H. Bickerstaff, who represented John A. Spenkelink, executed on May 25, 1979. Petitioners also purport to seek relief for Vernon Ray Cooper and Howard Virgil Lee Douglas, both represented by public defenders, and Charles Proffitt, who is represented by privately retained counsel. Since the filing of this petition, Governor Graham on June 19, 1979, recommended clemency for defendants Learie Leo Alford and Clifford Hallman and signed death warrants for defendants Robert Sullivan and Charles Proffitt.

It is petitioners' contention that because of the uniqueness and finality of the death penalty, the State of Florida should mandate the appointment of counsel for each death row inmate for the purpose of providing legal advice and representation for subsequent collateral relief applications in both state and federal courts and to pay the necessary costs thereof. This request for appointment of counsel and payment of costs is not predicated on any identified meritorious post-conviction grievance.

As admitted by petitioners in oral argument and confirmed by our independent research, no court has determined that there is a constitutional right to the assistance of counsel to aid in the preparation of a petition for post-conviction relief.

For the reasons expressed, we decline to grant the relief requested but note that all of these defendants are represented by counsel and that Florida has made liberal allowance for counsel to be appointed in post-conviction relief proceedings.

Each of these named death row defendants has been through the entire trial and appellate process in the state court system, and each has had his application for review denied at least once by the United States Supreme Court. Further, this Court on its own motion, to ensure compliance with the dictates of the United State Supreme Court's decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), established a procedure whereby the petitioners or their counsel could seek relief under the Gardner decision. We have separately determined in prior proceedings that no Gardner relief is warranted for these defendants. In a number of instances some of these individual defendants have previously sought post-conviction relief and have had their applications denied. The chronological case history of each defendant named in this petition appears in the attached appendix.

The right to counsel in criminal proceedings has substantially evolved in the last forty-seven years. In 1932 the United States Supreme Court, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), held that the lack of effective assistance of counsel in a death penalty case was a denial of a fundamental right and, as a consequence, a denial of due process. In 1963 the United States Supreme Court in *1365 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that states were obligated to provide counsel in noncapital as well as capital cases. In 1967 in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court required counsel in juvenile proceedings, and in 1972, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held that counsel was necessary for a petit offense prosecution whenever imprisonment could be imposed.

The United States Supreme Court has, however, rejected the mandatory requirement of counsel in all parole revocation proceedings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and expressly held in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), that there is no constitutional right which requires a state to provide counsel to assist a defendant in obtaining discretionary appellate review, including the review of a state supreme court decision by the United States Supreme Court. Petitioners in this cause, however, request that we transcend the Ross decision and mandate the appointment of counsel whenever a defendant is under sentence of death for the purpose of advising him on possible future legal avenues of relief in both state and federal courts and to represent the defendant in those proceedings at state expense.

Clearly, the State of Florida has no obligation to provide counsel or costs in federal proceedings. This state only has an obligation to provide counsel for indigent defendants in its state courts. Neither this court nor an individual judge in the state system could appoint counsel to represent an indigent in the federal court system. Ross v. Moffitt specifically holds that there is no right of free counsel from the state for an appeal to the United States Supreme Court. This does not mean, however, that state-appointed counsel could not continue their representation and seek federal relief. Their professional responsibility may dictate this action, but, in our view, a state court could not mandate this action.

These defendants do have a means to obtain counsel in the federal courts because the federal system provides for attorney representation under the Federal Criminal Justice Act, 18 U.S.C. § 3006A(g) (1976), which in its relevant portion reads: "Any person ... seeking relief under section 2241, 2254 or 2255 ... may be furnished representation ... whenever the United States magistrate or the court determines that the interests of justice so require... ."

We recognize that we have the authority to appoint counsel for representation in the state court system. Historically, Florida was one of the first jurisdictions in this country after Gideon to provide a state public defender system to represent indigent defendants^[2] and to adopt a broad omnibus post-conviction relief procedure.^[3] This Court has specifically held that although there is no absolute right to counsel in post-conviction relief proceedings, the Court before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant. In Hooks v. State, 253 So.2d 424, 426 (Fla. 1971), this Court in an opinion by Mr. Justice Adkins specifically held:

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