Hernandez-Alberto v. State

126 So. 3d 193, 2013 WL 3334919
CourtSupreme Court of Florida
DecidedJuly 3, 2013
DocketNos. SC10-2471, SC11-1608
StatusPublished
Cited by7 cases

This text of 126 So. 3d 193 (Hernandez-Alberto v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez-Alberto v. State, 126 So. 3d 193, 2013 WL 3334919 (Fla. 2013).

Opinion

PER CURIAM.

Pedro Hernandez-Alberto appeals an order of the circuit court dismissing his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the trial court’s order and deny the petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL HISTORY

Hernandez-Alberto, a citizen of Mexico who was legally residing in Florida, was convicted for the January 3, 1999, murders of his stepdaughters Donna Berezovsky and Isela Gonzalez. Hernandez-Alberto was arrested in Brookshire, Texas, en route to Mexico. He was interrogated by Texas law enforcement officers and confessed to the murders. He was returned to Florida after a brief extradition hearing at which he was represented by appointed counsel.

Hernandez-Alberto and Maria Gonzalez were married in 1996 after a courtship of several years. Gonzalez had an adult son, her adult daughter Isela, and her minor daughter Donna. Hernandez-Alberto and Gonzalez had one child together, Gabriella, who was an infant at the time of the homicides. Prior to and during the marriage, Gonzalez lived with her children in her home in Apollo Beach, Florida. She also owned and operated a family business known as the Apollo Beach Family Restaurant.

On the morning of the murders, Hernandez-Alberto and Gonzalez engaged in an ongoing argument about ownership of the home and business. Hernandez-Alberto insisted that Gonzalez place his name on the title to the home and the business, which she had owned solely prior to their marriage. After denying Hernandez-Alberto’s demands, Gonzalez left for work at the restaurant. Upon her departure, Hernandez-Alberto put Gabriella in a back bedroom and confronted eleven-year-[197]*197old Donna in the family room. He told Donna to pick up a toy. When Donna refused, he struck her on the head near the right ear, which knocked her to the floor. Hernandez-Alberto then removed a gun from his fanny pack and shot Donna as she lay face down.1 Donna died from the gunshot wound. Hernandez-Alberto then drove to the Apollo Beach Family Restaurant where Gonzalez and Isela were working. Upon entering the back of the restaurant, Hernandez-Alberto went directly to the restroom where he remained for approximately eight to ten minutes. Upon exiting the restroom, he walked up behind Isela and shot her twice in the back. After Isela fell to the floor, he then shot her once in the head.

After the shooting, Hernandez-Alberto left the restaurant with the gun in his hand, got into his car, and fled toward Mexico. He was arrested in Brookshire, Texas, a small town near Houston. When interviewed by Texas law enforcement officers, Hernandez-Alberto confessed to shooting and killing both Donna and Isela. At the time of his arrest, Hernandez-Alberto had a gun in his possession, which was later determined to be the murder weapon. A fanny pack was also found in his possession.

Hernandez-Alberto’s competency to stand trial was an issue before trial. The trial court conducted a pretrial competency, sanity, and psychiatric evaluation in spring 1999, adjudging Hernandez-Alberto incompetent to stand trial and committing him to a treatment center in Miami. Hernandez-Alberto v. State, 889 So.2d 721, 726 (Fla.2004). After several evaluations over the course of two years, Hernandez-Alberto was found competent to stand trial in 2001 and trial commenced in August 2001. Id.

Throughout the trial, defense counsel asserted that Hernandez-Alberto suffered from a mental illness and possible brain damage from an automobile accident that had occurred several years prior to the homicides. Hernandez-Alberto was uncooperative with his attorneys, the investigators assigned to aid in his defense, and the doctors appointed to evaluate him. He also made repeated outbursts in the courtroom, shouting profanities directed at the court. He had to be removed from the courtroom on several occasions.

The trial court conducted two Nelson2 inquiries, finding both times that Hernandez-Alberto had been zealously represented by counsel. However, substitute counsel was appointed after the first hearing. At the beginning of the trial, Hernandez-Alberto expressed his desire to discharge the substitute counsel and represent himself. After a Faretta3 inquiry, Hernandez-Alberto represented himself for two days with discharged counsel acting as standby counsel at the trial court’s order. During the two days that Hernandez-Alberto represented himself, the trial court asked him numerous times if he wished to have his counsel reappointed, and he declined. On the morning of the final day of the guilt phase, Hernandez-Alberto moved for standby counsel to be reappointed prior to closing arguments, and the trial court granted his request. 889 So.2d at 728-29.

[198]*198Prior to the commencement of the penalty phase in November 2001, the trial court revisited the competency issue based on a motion filed by defense counsel. Id. at 727. The court noted that Hernandez-Alberto had represented himself throughout the trial, conducted himself appropriately, and was able to ask competent questions in his defense. Id. The trial court concluded that Hernandez-Alberto remained competent to proceed with the penalty phase. Id.4

The jury convicted Hernandez-Alberto on two counts of first-degree premeditated murder. By a vote of ten to two, the jury recommended that he be sentenced to death for each murder. The trial court agreed with the jury’s recommendation and sentenced Hernandez-Alberto to death for each of the murders. The trial court found three aggravating circumstances for the murder of Donna Berezov-sky and gave all three great weight: (1) the defendant had previously been convicted of another capital offense or of a felony involving the use of violence to some person; (2) the victim was a person less than twelve years of age; and (3) the victim was particularly vulnerable because the defendant stood in a position of familial or custodial authority over the victim. The trial court found two aggravating circumstances for the murder of Isela Gonzalez and gave both of them great weight: (1) the defendant had been previously convicted of another capital felony or of a felony involving the use of violence to some person; and (2) the crime for which the defendant was to be sentenced was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial court found two statutory mitigating circumstances,5 which were given some weight, and eight nonstatutory mitigators,6 which were given little to some weight.

On appeal, Hernandez-Alberto raised seven claims of error.7 This Court denied all of the claims on the merits and affirmed Hernandez-Alberto’s two convictions of [199]*199first-degree murder and his two death sentences. Hernandez-Alberto, 889 So.2d at 734.8

The Office of Capital Collateral Regional Counsel (CCRC) filed Hernandez-Alberto’s initial postconviction motion in March 2006. However, Hernandez-Alberto refused to sign the required verification of the motion.

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126 So. 3d 193, 2013 WL 3334919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-alberto-v-state-fla-2013.