TED HERRING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ted Herring appeals the trial court's denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850 following his death sentence for robbing and killing a convenience store clerk. The Florida Supreme Court affirms, holding that Herring's claims either could have been raised on direct appeal or fail to meet the standards for post-conviction relief.
The court affirms the denial of post-conviction relief, holding that most claims were improper for a 3.850 motion because they either were raised or could have been raised on direct appeal, and that Herring's remaining claims, including proportionality and ineffective assistance of counsel claims, fail to meet applicable legal standards.
[1] A motion for post-conviction relief under Rule 3.850 cannot be used to raise issues that were or could have been raised on direct appeal.
[2] A defendant's prior robbery conviction is a distinguishing characteristic that may differentiate his case from another case where a life sentence was mandated.
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Join FLexlaw to unlock all legal intelligence“a 3.850 motion cannot be utilized for a second appeal to consider issues that either were raised or could have been raised in the initial appeal”
Establishes the fundamental principle governing post-conviction relief motions—they cannot be used to reconsider issues available on direct appeal.
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Join FLexlaw to unlock all legal intelligenceHerring was convicted and sentenced to death for robbing and killing a convenience store clerk. Herring shot the clerk once when he perceived a threat…
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PER CURIAM.
Ted Herring appeals a trial court’s denial of his motion for post-conviction relief without an evidentiary hearing under the provisions of Florida Rule of Criminal Procedure 3.850. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm.
Herring was convicted and sentenced to death for robbing and killing a convenience store clerk. The evidence reflected that Herring shot the clerk once when he perceived a threatening move, and then shot the clerk again “when he hit the ground.” This Court affirmed Herring’s conviction and sentence in Herring v. State, 446 So. 2d 1049 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).
Herring raises the following multiple issues that could have been raised on appeal: (1) the trial court erroneously applied two statutory aggravating circumstances; (2) the trial court impermissibly counted both the cold, calculated, and premeditated and the elimination of witness aggravating circumstances; (3) the trial judge applied a nonstatutory aggravating factor in sentencing Herring to death; (4) Herring’s probation officer should not have been allowed to testify concerning Herring’s comment about the victim; (5) the death penalty jury instructions were constitutionally inadequate; (6) the trial judge failed to consider the death sentence’s proportionality; (7) the trial court erroneously excluded Herring’s proffered mitigating evidence; (8) the trial court applied an incorrect sentencing standard; (9) during the sentencing phase closing arguments, the prosecutor improperly suggested that Herring might be granted parole if given life imprisonment; (10) excluding a prospective juror for cause because of his death penalty views violated the sixth and fourteenth amendments; (11) the state did not prove Herring knowingly and intelligently waived his privilege against self-incrimination and his right to appeal; and, finally, (12) the trial judge erred by abandoning his duty to review the jury’s recommended sentence.
We reject all these contentions as improper for a 3.850 motion. As we have previously stated, a 3.850 motion cannot be utilized for a second appeal to consider issues that either were raised or could have been raised in the initial appeal. Sireci v. State, 469 So. 2d 119 (Fla.1985), cert. denied, — U.S. -, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986); Jones v. State, 446 So. 2d 1059 (Fla.1984); Demps v. State, 416 So. 2d 808 (Fla.1982).
Appellant next claims that his sentence is not proportionate, and that Caruthers v. State, 465 So. 2d 496 (Fla.1985), decided after we affirmed the initial appeal in this case, mandates a life sentence.
The state responds that a prior case is not reviewable in light of a subsequent decision, citing Tafero v. State, 459 So. 2d 1034 (Fla.1984), and Sullivan v. State, 441 So. 2d 609 (Fla.1983). We do not reach that issue because there are clear distinguishing characteristics between Caruthers and Herring. Caruthers had no significant history of prior criminal activity, and the sentencing proceeding considered other nonstat-utory mitigating factors. Herring, however, had a prior robbery conviction.
Additionally, there was evidence that Herring killed the victim to eliminate him as a witness.
We hold that Herring's contention on this issue is without merit.
In his next point, Herring contends that an evidentiary hearing was necessary to decide his ineffective-assistance-of-counsel claims. The trial judge, in an extensive order, fully explained why each of the ineffective-assistance-of-counsel claims did not meet the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Knight v. State, 394 So. 2d 997 (Fla.1981). We agree with the trial judge’s findings and commend him for his detailed explanation.
Finally, we reject Herring’s claim that our capital sentencing statute is discrimina-torily applied. We have rejected this claim in multiple decisions. Smith v. State, 457 So. 2d 1380 (Fla.1984); Adams v. State, 449 So. 2d 819 (Fla.1984).
For the reasons expressed, we affirm the trial court’s denial of relief.
It is so ordered.
McDonald, C.J., and ADKINS, BOYD, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.
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Blanco v. Louie L. Wainwright, 507 So. 2d 1377 (Fla. 1987)…the conviction for armed burglary as an aggravating factor; (7) did the trial court improperly rely on a previous conviction for armed robbery as an aggravating factor; and (8) did the prosecutor use inflammatory closing arguments. Herring v. State, 501 So. 2d 1279 (Fla.1986); Adams v. State, 484 So. 2d 1216 (Fla.), cert. denied, — U.S. —, 106 S.Ct. 1506, 89 L.Ed.2d 907 (1986); Smith v. State, 457 So. 2d 1380 (Fla.1984); Jones v. State, 446 So. 2d 1059 (Fla.1984); Demps v. State, 416 So. 2d 808 (Fla. 1982). On…
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Herring v. State, 730 So. 2d 1264 (Fla. 1998)…Herring raised an ineffective-assistanee-of-counsel claim based on deficient performance pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial judge denied the motion and we affirmed. Herring v. State, 501 So. 2d 1279 (Fla.1986).1 Herring filed a second rule 3.850 motion and claimed, among other things, that he received ineffective assistance of counsel due to a conflict of interest between Pearl’s status as a special deputy sheriff and Pearl’s responsibilities o…
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Herring v. State, 580 So. 2d 135 (Fla. 1991)…w intelligence quotient and learning disabilities; and (3) that he had had a difficult childhood. In 1985, Herring filed a motion to vacate judgment and sentence under rule 3.850. The trial court denied the motion and we affirmed. Herring v. State, 501 So. 2d 1279 (Fla.1986) [Herring II]. Subsequently, in 1987, Herring filed a petition for writ of habeas corpus, claiming that his appellate counsel rendered ineffective assistance. This Court denied relief in Herring v. Dugger, 528 So. 2d 1176 (Fla.1988) [Herri…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Herring v. State, 446 So. 2d 1049 (Fla. 1984)
- Herring v. Florida, 469 U.S. 989 (U.S. 1984)
- Sireci v. State, 469 So. 2d 119 (Fla. 1985)
- Bennie E. Demps v. State, 416 So. 2d 808 (Fla. 1982)
- Smith v. State, 457 So. 2d 1380 (Fla. 1984)
- Jones v. State, 446 So. 2d 1059 (Fla. 1984)
- Sullivan v. State, 441 So. 2d 609 (Fla. 1983)
- Caruthers v. State, 465 So. 2d 496 (Fla. 1985)