JOSEPH ROBERT SPAZIANO, PETITIONER,
v.
RICHARD L. DUGGER, RESPONDENT; JOSEPH ROBERT SPAZIANO, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Joseph Robert Spaziano sought a writ of habeas corpus and appealed the denial of his third motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 in a death penalty case. The Florida Supreme Court, reviewing the case for the fifth time, affirmed the trial court's denial and rejected Spaziano's claims that the trial judge was unaware he could consider nonstatutory mitigating circumstances at sentencing.
The Court rejected Spaziano's argument that the judge was unaware he could consider nonstatutory mitigating circumstances, finding it incredible that a judge would allow introduction of such evidence but not consider it. Even if error existed, any such error would be harmless because the nonstatutory evidence was cumulative and the judge's decision would have been the same regardless. The ineffective assistance of counsel claim was procedurally barred.
[1] A claim of ineffective assistance of counsel is procedurally barred if it has been previously addressed in prior proceedings.
[2] A judge's awareness of the ability to consider nonstatutory mitigating evidence is presumed when the judge permits its introduction.
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Join FLexlaw to unlock all legal intelligence“It would be incredible to conclude that the judge would feel that nonstatutory mitigating evidence could be introduced but that he could not consider it.”
The court's rationale rejecting Spaziano's argument that the judge was unaware he could consider nonstatutory mitigating circumstances.
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Join FLexlaw to unlock all legal intelligenceSpaziano was convicted and sentenced to death. At resentencing, the trial judge had previously announced that under Lockett v. Ohio, he would allow in…
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PER CURIAM.
Joseph Robert Spaziano petitions this Court for a writ of habeas corpus, appeals the trial court’s denial of his third motion for relief pursuant to Florida Rule of Criminal Procedure 3.850, and requests a stay of execution. We have jurisdiction, article Y, section 3(b)(1), Florida Constitution, and deny all relief.
This is the fifth time that Spaziano has been before this Court. Spaziano v. State, 393 So. 2d 1119 (Fla.) (Spaziano I), cert. denied, 454 U.S. 1037, 102 S.Ct. 581, 70 L.Ed.2d 484 (1981) (affirmed conviction but remanded for resentencing); Spaziano v. State, 433 So. 2d 508 (Fla.1983) (Spaziano II), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (affirmed death sentence); Spaziano v. State, 489 So. 2d 720 (Fla.) (Spaziano III), cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986) (denied relief in first rule 3.850 motion); Spaziano v. State, 545 So. 2d 843 (Fla.1989) (Spaziano IV) (denied relief in second rule 3.850 motion).
In these prior decisions, we have addressed the subject matter of each of the claims Spaziano presents in the instant proceedings. We find that Spaziano’s contention of ineffective assistance of counsel is procedurally barred. Spaziano IV. While we considered the nonstatutory mitigating evidence as Lockett
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claims in Spaziano II, III, and IV, we address, in the instant proceedings, the argument that the trial judge, at resentencing, was unaware that he could consider nonstatutory mitigating circumstances as later made clear by Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). However, we reject that argument because, pri-or to sentencing, the judge had announced that, under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), he felt that he must allow the introduction of non-statutory mitigating evidence. It would be incredible to conclude that the judge would feel that nonstatutory mitigating evidence could be introduced but that he could not consider it.
In any event, even if it could be said that the judge was under a misapprehension,'it is evident that any error would be harmless. The presentence investigation report specifically considered by the judge at sentencing contained substantial evidence concerning Spaziano’s mental condition. The judge declined to view such evidence as constituting a statutory mitigating circumstance, and this Court affirmed in Spazi-ano II. In that case, we expressly rejected Spaziano’s Lockett argument. The United States Supreme Court affirmed Spaziano II by a written opinion in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).
Further, as we held in Spaziano IV, the nonstatutory evidence that Spaziano contends was not introduced in his sentencing proceeding was cumulative. We have no doubt that the judge’s decision would have been the same regardless of whether or not he knew that such evidence could be con sidered as nonstatutory mitigating evidence.
Accordingly, we affirm the trial court’s denial of Spaziano’s rule 3.850 motion and deny Spaziano’s petition for a writ of habe-as corpus. The stay previously entered is vacated. We will entertain no petition for rehearing.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, SHAW and GRIMES, JJ„ concur. KOGAN, J., dissents with an opinion, in which BARKETT, J., concurs.
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Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
KOGAN, Justice,
dissenting.
No court has ever considered the Hitchcock error in this case and its effect on the death sentence imposed herein. For this reason, and for the reasons expressed by Justice McDonald in his dissent to the direct appeal and in my prior dissenting opinion in this case, I dissent.
BARKETT, J., concurs.
Cases With Similar Vibessemantic neighbors from the corpus
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Spaziano v. State, 570 So. 2d 289 (Fla. 1990)…fully consider this cause on our regular calendar. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We deny all relief and vacate the stay previously entered. This is the sixth time that Spaziano has been before this Court. Spaziano v. Dugger, 557 So. 2d 1372 (Fla.1990) (denied habe-as corpus relief and relief in third rule 3.850 motion); Spaziano v. State, 545 So. 2d 843 (Fla.1989) (denied relief in second rule 3.850 motion); Spaziano v. State, 489 So. 2d 720 (Fla.), cert. denied, 479 U.S. 995, 107 S.Ct…
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Davis v. State, 589 So. 2d 896 (Fla. 1991)…struction was given. We find no evidence of a Hitchcock violation, and the trial court correctly found this issue to have no merit. E.g., Engle v. Dugger, 576 So. 2d 696 (Fla.1991); Bolender v. Dugger, 564 So. 2d 1057 (Fla.1990); Spaziano v. Dugger, 557 So. 2d 1372 (Fla.1990); Harich v. State, 542 So. 2d 980 (Fla.1989); Card v. Dugger, 512 So. 2d 829 (Fla.1987). Davis argues that the trial court violated Hitchcock by not addressing nonstatutory mitigating evidence in the sentencing order, but we considered tha…
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Spaziano v. State, 660 So. 2d 1363 (Fla. 1995)…Fla. 1983), affirmed, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Spaziano v. State, 489 So. 2d 720 (Fla.), cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986); Spaziano v. State, 545 So. 2d 843 (Fla. 1989); Spaziano v. Dugger, 557 So. 2d 1372 (Fla.1990); Spaziano v. State, 570 So. 2d 289 (Fla.1990); Spaziano v. Dugger, 584 So. 2d 1 (Fla.1991). . Spaziano v. Singletary, No. 91-850-CIV-ORL-18 (M.D.Fla. Nov. 30, 1992) (denial of petition for writ of habeas corpus), affirmed, 36 F. 3d 1028…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Lockett v. Ohio, 438 U.S. 586 (U.S. 1978)
- Hitchcock v. Dugger, 481 U.S. 393 (U.S. 1987)
- Spaziano v. Florida, 468 U.S. 447 (U.S. 1984)
- Spaziano v. State, 433 So. 2d 508 (Fla. 1983)
- Spaziano v. State, 393 So. 2d 1119 (Fla. 1981)
- Spaziano v. State, 545 So. 2d 843 (Fla. 1989)
- Pyles v. United States, 454 U.S. 1037 (U.S. 1981)
- Lawson v. United States, 454 U.S. 1037 (U.S. 1981)
- Walker v. Illinois, 479 U.S. 995 (U.S. 1986)
- Linnas v. Immigr. & Naturalization Serv., 479 U.S. 995 (U.S. 1986)