Sireci v. Moore

825 So. 2d 882, 2002 WL 276292
CourtSupreme Court of Florida
DecidedFebruary 28, 2002
DocketSC01-1399
StatusPublished
Cited by40 cases

This text of 825 So. 2d 882 (Sireci v. Moore) 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
Sireci v. Moore, 825 So. 2d 882, 2002 WL 276292 (Fla. 2002).

Opinion

825 So.2d 882 (2002)

Henry Perry SIRECI, Petitioner,
v.
Michael W. MOORE, etc., et al., Respondents.

No. SC01-1399.

Supreme Court of Florida.

February 28, 2002.
Rehearing Denied April 15, 2002.

*883 Bill Jennings, Capital Collateral Regional Counsel—Middle, Peter J. Cannon, Assistant CCRC, Kevin T. Beck, Assistant CCRC, and Lelslie Anne Scalley, Staff Attorney, Office of Capital Collateral Regional Counsel—Middle, Tampa, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Respondent.

PER CURIAM.

Henry Perry Sireci petitions this Court for writ of habeas corpus. Under article V, *884 section 3(b)(9) of the Florida Constitution, we have jurisdiction.

Factual and Procedural History

In October 1976, a jury found Mr. Sireci guilty of the first-degree murder of Howard Poteet. On November 15, 1976, the trial court sentenced Mr. Sireci to death. The jury's conviction and Judge Maurice M. Paul's sentence were upheld by this Court in Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). The petitioner then unsuccessfully sought postconviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, and that decision was affirmed on appeal as well. Sireci v. State, 469 So.2d 119 (Fla.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986). On September 19, 1986, the Governor signed a death warrant for Mr. Sireci.

Following the signing of his death warrant, Mr. Sireci filed a second motion for postconviction relief. This Court affirmed the trial court's order mandating a limited evidentiary hearing on this postconviction motion. State v. Sireci, 502 So.2d 1221 (Fla.1987). After conducting the limited evidentiary hearing, the trial court ordered a new penalty phase, which was affirmed by this Court in State v. Sireci, 536 So.2d 231 (Fla.1988). The resentencing jury recommended the death penalty by a vote of eleven to one, and the trial court again imposed the death penalty. The death sentence was again affirmed by this Court. Sireci v. State, 587 So.2d 450 (Fla.1991). Thereafter, the United States Supreme Court denied certiorari review. Sireci v. Florida, 503 U.S. 946, 112 S.Ct. 1500, 117 L.Ed.2d 639 (1992).

Mr. Sireci then challenged his new sentence of death by filing an original and then three amended motions for postconviction relief. Pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), Judge Richard F. Conrad presided over a hearing on the rule 3.850 motion on January 21, 1999. The court summarily denied the petitioner's motion on February 9, 1999, and this Court affirmed in Sireci v. State, 773 So.2d 34 (Fla.2000). This habeas petition, in which seven claims regarding Mr. Sireci's 1990 resentencing and subsequent direct appeal are presented,[1] followed.

Discussion

I. Avoiding or Preventing Lawful Arrest Aggravator

In his first claim, the petitioner asserts that there was insufficient evidence before the trial court to establish that the *885 murder here was committed for the purpose of avoiding or preventing a lawful arrest by eliminating a witness. Accordingly, petitioner contends that the failure of his appellate counsel to raise this issue on direct appeal amounts to ineffective assistance of counsel. Despite petitioner's contentions to the contrary, it is nonetheless plain here that this claim was indeed asserted and rejected by this Court on Mr. Sireci's original appeal. See Sireci v. State, 399 So.2d 964, 971 (Fla.1981) (rejecting Mr. Sireci's claim that the aggravators found by the trial court were not proven beyond a reasonable doubt). Thus, raising it again here as an ineffective assistance of counsel claim is improper. See Medina v. State, 573 So.2d 293, 295 (Fla.1990).

Additionally, we are certain that there was competent evidence before the trial court establishing that the dominant motive for the murder here was avoidance of arrest. The import of the testimony given by David Wilson at trial is plain:

Q: What did you ask Mr. Sireci?
A: How come he stabbed the people, the person so many times.
Q: What did he answer?
A: That he believed in leaving no witnesses.

Additionally, Harvey Woodall testified as follows:

Q: Did he know whether or not the man was dead?
A: Was dead when he left?
Q: Yes, Sir.
A: Yeah, he knew he was dead. He said he wasn't going to leave nobody who could identify him, no witnesses to testify against him.

Based upon the record before us, it is clear to this Court that there was sufficient evidence before the trial court to establish that the murder here was committed for the purpose of avoiding or preventing a lawful arrest by eliminating a witness. Therefore, even if the rejection of this claim on petitioner's direct appeal to this Court did not operate to bar its further assertion in this cause, it is without merit. As the underlying assertion of error is meritless, the claim that appellate counsel was ineffective must also fail. See Engle v. Dugger, 576 So.2d 696 (Fla.1991).

II. Unconstitutional Doubling of Aggravators

In his second claim, the petitioner asserts that the trial court unconstitutionally based its findings of the cold, calculated, and premeditated aggravator; the avoiding or preventing lawful arrest aggravator; and the in the course of a robbery or for pecuniary gain aggravator upon the same facts. Since petitioner's appellate counsel did not raise this issue on direct appeal, Mr. Sireci now asserts that the assistance rendered by his appellate attorney was ineffective.

In Banks v. State, 700 So.2d 363 (Fla.1997), we enunciated the proper analysis concerning the duplication of aggravating factors:

Improper doubling occurs when both aggravators rely on the same essential feature or aspect of the crime. However, there is no reason why the facts in a given case may not support multiple aggravating factors so long as they are separate and distinct aggravators and not merely restatements of each other, as in murder committed during a burglary or robbery and murder for pecuniary gain, or murder committed to avoid arrest and murder committed to hinder law enforcement.

Id. at 367 (citation omitted). Hence, the focus in an examination of a claim of unconstitutional doubling is on the particular aggravators themselves, as opposed to *886 whether different and independent underlying facts support each separate aggravating factor.

In the instant case, the three aggravators Mr. Sireci challenges are the cold, calculated, and premeditated aggravator; the avoiding or preventing a lawful arrest aggravator; and the in the course of a robbery or for pecuniary gain aggravator. In accordance with Banks, all of these aggravators are distinct from each other. Further, even though the aggravators are all based upon interrelated facts, the focus of each aggravator is upon a different facet or motivation of Mr. Sireci's crime.

The avoiding or preventing a lawful arrest aggravator, found based upon a witness elimination rationale, focuses on the petitioner's motive for murdering the victim. In sharp contrast, in finding that Mr.

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Bluebook (online)
825 So. 2d 882, 2002 WL 276292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sireci-v-moore-fla-2002.