State v. Kilgore

976 So. 2d 1066, 2007 WL 4142744
CourtSupreme Court of Florida
DecidedNovember 21, 2007
DocketSC06-1763
StatusPublished
Cited by10 cases

This text of 976 So. 2d 1066 (State v. Kilgore) 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
State v. Kilgore, 976 So. 2d 1066, 2007 WL 4142744 (Fla. 2007).

Opinion

976 So.2d 1066 (2007)

STATE of Florida, Petitioner,
v.
Dean KILGORE, Respondent.

No. SC06-1763.

Supreme Court of Florida.

November 21, 2007.
Rehearing Denied February 28, 2008.

Bill McCollum, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, FL, for Petitioner.

Neal A. Dupree, Capital Collateral Regional Counsel, Paul Kalil, William Hennis, and Rachel L. Day, Assistant CCR Counsel, Southern Region, Fort Lauderdale, FL, for Respondent.

PER CURIAM.

We have for review a decision of a district court of appeal on the following question, which the district court certified to be of great public importance:

ARE COUNSEL APPOINTED TO PROVIDE COLLATERAL REPRESENTATION TO DEFENDANTS SENTENCED TO DEATH, PURSUANT TO SECTION 27.702, AUTHORIZED TO BRING PROCEEDINGS TO ATTACK THE VALIDITY OF A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE?

Kilgore v. State (Kilgore II), 933 So.2d 1192, 1193 (Fla. 2d DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we *1067 hold that while Kilgore is entitled to prosecute a collateral claim attacking a prior conviction utilized as an aggravator in his capital case, he is not entitled to representation by the same counsel appointed to represent him in the capital case.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are reflected in this Court's opinion in Kilgore v. State (Kilgore I), 688 So.2d 895 (Fla. 1996), and the Second District Court of Appeal's opinion in Kilgore II. In 1978, Kilgore was convicted of first-degree murder, kidnapping, and trespassing with a firearm. Kilgore II, 933 So.2d at 1193. He was sentenced to two life sentences with twenty-five-year mandatory minimums. Id. at 1194. The Second District Court of Appeal per curiam affirmed Kilgore's judgment and sentence on direct appeal. Kilgore v. State, 380 So.2d 589 (Fla. 2d DCA 1980) (unpublished table decision). Kilgore did not seek postconviction relief. Kilgore II, 933 So.2d at 1194.

While serving his life sentences in the Polk County Correctional Institution, Kilgore was charged with the murder of another inmate. Id. Kilgore was convicted, and during the penalty phase, the 1978 first-degree murder conviction was submitted by the State as an aggravator to justify a death sentence and the female victim of the 1978 kidnapping testified against Kilgore. Id. The sentencing court sentenced Kilgore to death after finding two aggravating circumstances: (1) Kilgore was under sentence of imprisonment at the time he committed the murder;[1] and (2) Kilgore had been previously convicted of a felony involving the use or threat of violence to the person.[2]Kilgore I, 688 So.2d at 897. These aggravators were, of course, related to the 1978 case. We affirmed Kilgore's first-degree murder conviction and death sentence on direct appeal. Id. at 896.

Subsequently, the Office of the Capital Collateral Regional Counsel (CCRC), was appointed to represent Kilgore to collaterally challenge his 1994 first-degree murder conviction and death sentence. Kilgore II, 933 So.2d at 1192, 1194. During public records litigation in the 1994 case, some "state attorney notes" of interviews of the 1978 kidnapping victim and her son were turned over to Kilgore. Id. at 1194. The notes had not previously been provided to counsel for Kilgore, and when compared to other statements given by these witnesses, the notes allegedly revealed substantial impeachment material sufficient to give rise to a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Kilgore II, 933 So.2d at 1194. Having identified what counsel believed to be substantial grounds to challenge an important aggravator used by the State to justify a death sentence, CCRC sought to vacate the 1978 conviction based upon the holding in Brady requiring disclosure of exculpatory evidence, including impeachment evidence. See id. In turn, however, the State filed a motion to bar CCRC from representing Kilgore in the 1978 case, id., and the circuit court granted the motion on the basis that Florida's statutory scheme for appointment of counsel did not authorize CCRC's representation in the noncapital case. See id. at 1192-93.

Kilgore sought to appeal the circuit court's order to the Second District, and the Second District elected to convert the appeal to a proceeding in certiorari. Id. The Second District[3] granted the writ of *1068 certiorari and quashed the trial court's order, but certified the foregoing question of great public importance. Id. at 1193, 1197. The Second District observed that section 27.702, Florida Statutes, is not clear on the extent of CCRC's representation "under the unique circumstances of this case," id. at 1193, and concluded:

If a primary aggravating circumstance is a prior first-degree murder or violent felony conviction, and if there are valid grounds to seek to invalidate it, CCRC should, as a matter of effective representation, pursue that course. The statute itself directs CCRC to challenge a death sentence and seeking to invalidate a prior conviction in this context is a direct attack on the sentence. However, even if the statute was intended to prevent CCRC from representing the inmate in such collateral proceedings, such a limitation would not be permitted because it would deny the inmate effective assistance of counsel.

Id. at 1197. The district court concluded that because Florida law required the prior judgment to be set aside in order for the aggravator to be challenged in the capital case, Kilgore was entitled to have effective counsel do what CCRC was attempting to do on his behalf, a course of action also consistent with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed.2003). See id. at 1195 & n. 10.

ANALYSIS

The State argues that the trial court correctly relied upon Florida Statutes in discharging CCRC from representing Kilgore in a non-death penalty case. In contrast, Kilgore contends that the district court correctly recognized that he was entitled to have capital postconviction counsel challenge any possible infirmities in his capital conviction, including challenging Kilgore's prior violent felony convictions that were used as aggravators to support Kilgore's sentence of death. Because the issue involved in this case is strictly a question of law, this Court's review is de novo. See State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001) ("If the ruling consists of a pure question of law, the ruling is subject to de novo review.").

STATUTES

Florida has an explicit statutory scheme in place to provide postconviction counsel to all capital defendants, including Kilgore. Because Kilgore has no constitutional right to postconviction counsel, whether CCRC is authorized to represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction depends upon the construction and interpretation of the scope of responsibility and authority granted both to CCRC and private registry counsel in chapter 27, Florida Statutes (2002).[4]

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Bluebook (online)
976 So. 2d 1066, 2007 WL 4142744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kilgore-fla-2007.