LARRY JOE JOHNSON, PETITIONER,
v.
RICHARD L. DUGGER, RESPONDENT
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Larry Joe Johnson, under sentence of death for a 1979 first-degree murder, petitioned for habeas corpus relief arguing that the trial judge failed to consider nonstatutory mitigating evidence during sentencing. The Florida Supreme Court denied relief, holding that the judge's proper jury instructions and sentencing order, when read together, demonstrated adequate consideration of mitigating evidence.
The Court held that there was nothing in the record to indicate the judge failed to consider nonstatutory mitigating evidence. The proper jury instructions, combined with the sentencing order read in its entirety, indicated that the trial court gave adequate consideration to the evidence presented, and the Court presumed the judge followed his own instructions.
[1] A trial court is presumed to have followed its jury instructions regarding the consideration of nonstatutory mitigating evidence.
[2] A sentencing order, when read in conjunction with the court's jury instructions, may indicate adequate consideration of presented evidence.
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Join FLexlaw to unlock all legal intelligence“We must presume that the judge followed his own instructions to the jury on the consideration of nonstatutory mitigating evidence.”
Establishes the central presumption the Court applied to reject Johnson's argument that the judge failed to consider mitigating evidence.
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of first-degree murder for the March 1979 shooting death of a gas station attendant in Madison County. His conviction and death …
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PER CURIAM.
Larry Joe Johnson, under sentence of death, filed this petition, which we will treat as a petition for habeas corpus, to review the sentencing procedure at his trial, pursuant to the United States Supreme Court decision in Hitchcock v. Dugger, — U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). We have jurisdiction. Art. V, §§ 3(b)(1), (9), Fla. Const. Because the governor has signed a death warrant on Johnson subsequent to the filing of his petition, Johnson has also requested this Court to grant a stay of execution. We find no merit in his petition, and accordingly, deny all relief sought.
Johnson was convicted of first degree murder for the March, 1979 shooting death of a gas station attendant in Madison County. The conviction and the sentence of death were affirmed by this Court in Johnson v. State, 442 So. 2d 185 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2182, 80 L.Ed.2d 563 (1984). In January 1985, following the signing of a death warrant by Governer Graham, Johnson filed for relief pursuant to rule 3.850 Fla.R.Crim.P., as well as a petition for writ of habeas corpus. That petition alleged that the trial court failed to properly consider the mitigating evidence presented at trial. We denied the petition for writ of habeas corpus and affirmed the denial of relief pursuant to rule 3.850. Johnson v. Wainwright, 463 So. 2d 207 (Fla.1985). The United States Court of Appeals, Eleventh Circuit granted a stay of execution, but later held that Johnson was not entitled to any relief. Johnson v. Wainwright, 778 F. 2d 623 (11th Cir.1985). In this petition,1 Johnson argues that the trial judge failed to consider the nonstat-utory mitigating evidence proffered by Johnson during the sentencing phase. It is undisputed that the judge instructed the jury property under Hitchcock, and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Clearly the instruction permitted the jury to consider evidence of nonstatutory mitigating circumstances. Johnson alleges, however, that the order sentencing him to death demonstrates that the judge nevertheless declined to consider nonstatutory mitigating factors. In so arguing, Johnson points out that the trial judge made no specific reference in his sentencing order to the nonstatutory mitigating factors introduced by Johnson. Essentially, he alleges that there is nothing in the record to indicate that the judge considered the nonstatutory mitigating evidence.
The state argues that the jury instructions constitute ample evidence that the judge knew what he was required to consider, and in fact did consider those circumstances. We agree. We must presume that the judge followed his own instructions to the jury on the consideration of nonstatutory mitigating evidence.2
There is nothing in the record to indicate that the judge failed to consider nonstat-utory mitigating evidence. On the other hand it is clear that he instructed the jury according to the teachings of Lockett and Hitchcock. When read in its entirety, the sentencing order, combined with the court’s instructions to the jury, indicates that the trial court gave adequate consideration to the evidence presented. Accordingly, we deny the petition for habeas corpus, and deny the motion for stay of execution.
It is so ordered.
MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARRETT, GRIMES and KOGAN, JJ., concur. . Johnson filed this petition under this Court's "all writs” jurisdiction pursuant to article V, section 3(b)(7) of the Florida Constitution. We choose to treat this petition as one for a writ of habeas corpus, and accordingly deny the state’s motion to dismiss for lack of jurisdiction.
. The state has attached to its response an affidavit from the trial judge stating that he did consider the nonstatutory mitigating evidence proffered by Johnson. This affidavit is not properly before this Court on appeal and is not part of the record. Therefore we will not consider it, and it forms no basis for our opinion.
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Peterka v. State, 640 So. 2d 59 (Fla. 1994)…ory and nonstatuto-ry mitigating circumstances. The sentencing order, in conjunction with the trial court’s instructions to the jury, indicates that the trial court gave adequate consideration to the mitigating evidence presented. Johnson v. Dugger, 520 So. 2d 565, 566 (Fla.1988). Peterka contends that the State improperly presented testimony about his juvenile record during cross-examination of his mother in the penalty phase. On direct, Peterka’s mother testified that he was close to his family, helped oth…
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Burley Gilliam v. State, 582 So. 2d 610 (Fla. 1991)…ngs regarding nonstatutory mitigating circumstances, we can assume he followed his own instructions to the jury in considering the statutory mitigating circumstances, despite the fact that he did not enumerate them. As we noted in Johnson v. Dugger, 520 So. 2d 565, 566 (Fla.1988): “When read in its entirety, the sentencing order, combined with the court’s instructions to the jury, indicates that the trial court gave adequate consideration to the evidence presented.” Appellant nevertheless argues that our rece…
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Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005)…ay on death row and of the clemency process, see King v. State, 808 So. 2d 1237, 1246 (Fla.2002); (c) the propriety of various death sentences following Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), see Johnson v. Dugger, 520 So. 2d 565 (Fla.1988) (treating all-writs petition based on Hitchcock error as a petition for writ of habeas corpus); and (d) the validity of a direct appeal decision affirming the override of a jury’s recommendation of life in light of a new decision from thi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lockett v. Ohio, 438 U.S. 586 (U.S. 1978)
- Hitchcock v. Dugger, 481 U.S. 393 (U.S. 1987)
- Johnson v. Louie L. Wainwright, 463 So. 2d 207 (Fla. 1985)
- Global Terminal & Container Servs., Inc. v. Colgate Palmolive Co., 466 U.S. 963 (U.S. 1984)
- Velde v. Nat'l Black Police Assn., Inc., 466 U.S. 963 (U.S. 1984)
- Johnson v. State, 442 So. 2d 185 (Fla. 1983)
- Johnson v. Louie L. Wainwright, 778 F.2d 623 (11th Cir. 1985)
- Bowen v. Kemp, 778 F.2d 623 (11th Cir. 1985)