Mann v. State

770 So. 2d 1158, 2000 WL 1424544
CourtSupreme Court of Florida
DecidedSeptember 28, 2000
DocketSC94885
StatusPublished
Cited by9 cases

This text of 770 So. 2d 1158 (Mann 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
Mann v. State, 770 So. 2d 1158, 2000 WL 1424544 (Fla. 2000).

Opinion

770 So.2d 1158 (2000)

Larry Eugene MANN, Appellant,
v.
STATE of Florida, Appellee.

No. SC94885.

Supreme Court of Florida.

September 28, 2000.
Rehearing Denied October 31, 2000.

*1159 John W. Moser, Capital Collateral Regional Counsel, Julius J. Aulisio, Assistant CCRC, and Leslie A. Scalley, Staff Attorney, *1160 of Capital Collateral Regional Counsel-Middle Region, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Larry Eugene Mann, a prisoner under sentence of death, appeals the circuit court's denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the circuit court's denial.

I. PROCEDURAL HISTORY

Mann was convicted in 1982 of kidnapping and first-degree murder in the death of ten-year-old Elisa Nelson and was sentenced to death. The facts of the case are further set forth in our opinion on Mann's first direct appeal. See Mann v. State, 420 So.2d 578 (Fla.1982). This Court affirmed the conviction but remanded for resentencing. See id. On remand, the circuit court again sentenced Mann to death, and this Court affirmed. Mann v. State, 453 So.2d 784 (Fla.1984). After the signing of his death warrant in 1986, Mann filed a motion for postconviction relief with the circuit court and a petition for writ of habeas corpus with this Court. This Court affirmed the circuit court's denial of relief and denied the habeas petition. See Mann v. State, 482 So.2d 1360 (Fla.1986). Mann received a stay of execution in the federal system, and the circuit court of appeal eventually decided that his jury had been misinformed as to its role in sentencing and directed that he be resentenced. See Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988). After that resentencing, in which Mann was again sentenced to death, this Court affirmed Mann's sentence on appeal. See Mann v. State, 603 So.2d 1141 (Fla. 1992).

On July 7, 1997, Mann filed a motion for postconviction relief challenging his convictions and sentence of death. The circuit judge issued an order on July 29, 1998, denying the majority of Mann's claims and ordering that an evidentiary hearing be held concerning Mann's claim that counsel was ineffective for presenting evidence of Mann's pedophilia as mitigation during the penalty phase. After the evidentiary hearing, the circuit court issued an order denying Mann relief. Mann now appeals that order.

II. ISSUES ON APPEAL

In this appeal, Mann raises ten issues.[1] We find five to be procedurally barred,[2]*1161 and the remaining issues to be without merit for the following reasons.

Mann first argues that defense counsel was ineffective at the penalty phase for presenting evidence that Mann is a pedophile. Mann claims that counsel was aware of the stigma attached to pedophilia and that no reasonable attorney would offer pedophilia in mitigation in a case with a child victim and no physical indication of sexual assault.

In order to prevail on an ineffective assistance of counsel claim, the defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim during the penalty phase, the defendant must show that, but for counsel's errors, a life sentence would probably have been imposed. See Hildwin v. Dugger, 654 So.2d 107, 109 (Fla. 1995). Mann has not met this burden.

In its order denying relief on this issue, the circuit court found that defense counsel's decision to introduce pedophilia as a mitigator was a tactical and strategic decision. At the evidentiary hearing, defense counsel testified as follows:

Q. Was the decision to put on mental mitigation a tactical or strategic decision that you made?
A. Sure, it was. We spent a lot of time discussing whether or not that was a good idea or a bad idea. What were the pros and what were the cons.
You know, was that stuff [pedophilia] going to come out or not come out, so yeah, we discussed it. We went over it and when we made the decision to do it. I could be questioned either way with regard to whether or not it was right or wrong to do it, but we did discussed [sic] it and we made the decision that we thought that it was necessary and that we felt that in some way it would be helpful to put in the mental mitigation that was there that we had to offer to the jury.
Q. You didn't have the option of picking another diagnosis other than the pedophilia so that was pretty much—
A. I'm not aware of any other diagnosis other than, of course, Dr. Wayland, who had the opinion that it was a personality disorder as opposed to anything that ever rose to the level of mental mitigation, but no, of the other doctors that had seen him there was no other route for me to go.
If you are suggesting brain damage or something like that, no, I was aware that that did not exist based on the prior examinations.

The record demonstrates that defense counsel considered other ways in which mental mitigation could have been presented and made a tactical decision to present evidence of Mann's pedophilia. As this Court has held, "Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected." State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987). We find that defense counsel's decision to introduce evidence of Mann's pedophilia was strategic and not "outside the broad range of reasonably competent performance under prevailing professional standards." Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986). After much thought and evaluation, defense counsel determined that the evidence of Mann's pedophilia was necessary to establish mental mitigation. Based on this evidence, the circuit court found in mitigation that "Mann suffered from psychotic depression and feelings of rage against himself because of strong pedophilic urges." Mann, 603 So.2d at 1142. *1162 Mann has not demonstrated that counsel's performance was below the Strickland standard. Thus, relief was properly denied on this issue.

Mann next argues that the circuit court erred in failing to grant an evidentiary hearing concerning Mann's other claims of ineffective assistance of counsel. A court must grant an evidentiary hearing on a postconviction claim of ineffective assistance of counsel if the motion contains specific facts that are not conclusively rebutted by the record and that demonstrate a deficiency in counsel's performance that prejudiced the defendant. See Thompson v. State, 759 So.2d 650 (Fla.2000). When reviewing a court's summary denial, this Court must accept the defendant's factual allegations as true to the extent they are not rebutted by the record. See id.

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Bluebook (online)
770 So. 2d 1158, 2000 WL 1424544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-state-fla-2000.