Opinion
No. 83-1154.
May 23, 1984.
Appeal from the Circuit Court, Broward County, Thomas M. Coker, Jr., J.
Eddie George Jones, pro se appellant.
Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
Jones appeals from an order denying his motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 after an evidentiary hearing. The stated grounds for post conviction relief was ineffective assistance of trial counsel.
On October 10, 1977, the State filed an information charging Jones with robbery, possession of a firearm by a convicted felon, and having a firearm when engaged in a criminal act. His lawyer did not move for a severance of the counts. At trial, the State introduced evidence of a conviction of second degree murder as proof of the second count. A jury returned a verdict of guilty on all counts.
Jones contends his trial counsel was ineffective because he did not move for a severance of the count charging possession of a firearm by a convicted felon, and the admission into evidence of the conviction of the prior felony prejudiced his case involving the other counts.
We affirm the order appealed from for two reasons. First, Jones filed a previous Rule 3.850 motion to vacate his conviction in which he alleged ineffective assistance of counsel citing various acts of commission and omission that demonstrated ineffectiveness. Notably absent from the cited acts was counsel's failure to move for a severance. We, of course, recognize that successive Rule 3.850 motions are allowable when the motion raises new grounds. However, it would be anomalous in the extreme to allow a prisoner to file successive Rule 3.850 motions based on the same ground, ineffectiveness of counsel, by using separate omissions of counsel during the trial. For example, the first motion could cite counsel's failure to call certain essential witnesses. After unsuccessfully proceeding up the appellate ladder and through the various court systems, a second petition could be filed on the same ground citing counsel's failure to file a motion to sever certain counts for trial, and so on ad infinitum. No rational judicial system would allow that sort of trifling resort to the courts, although our current handling of death cases has about convinced the American public that is what is going on. Jones had his opportunity to present his case for ineffectiveness of counsel in his first motion filed March 26, 1980, and failed to avail himself of counsel's failure to move for severance. Accordingly, he has waived that complaint.
Secondly, we affirm because in 1978, when Jones was tried, the law in Florida appeared to be that ruling on a motion to sever counts of an information involved a discretionary call by the trial judge. Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). In later years the courts have held refusal to sever where prejudice results is reversible error. State v. Vazquez, 419 So.2d 1088 (Fla. 1982); Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981); Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980). However, effectiveness of counsel does not involve clairvoyance or anticipation of changes to be made in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Knight v. State, 394 So.2d 997 (Fla. 1981).
Our Supreme Court set out the criteria or standards for determining effectiveness of counsel. Without repeating them here in detail, our serious consideration of those standards convinces us that the trial judge was eminently correct in his determination that the alleged omission charged in this case did not demonstrate that Jones was not furnished reasonably effective assistance of counsel in the trial of his criminal case.
For the foregoing reasons, we affirm the order appealed from.
AFFIRMED.
DOWNEY and DELL, JJ., concur.
ANSTEAD, C.J., concurs in part and dissents in part, with opinion.
Although I tend to agree with the basic proposition set out in the majority opinion that a defendant should not be allowed to challenge the competency and effectiveness of his trial counsel in successive motions, I cannot agree that trial counsel's failure to move for a severance in this case is excused by the status of the then prevailing law as enunciated in Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975). Initially I note that this case constitutes something of a procedural nightmare. The appellant is here because he has been specifically directed by the Federal District Court to litigate this issue in the state trial and appellate courts before he will be allowed to present the issue in the federal courts.
On the issue of ineffectiveness of counsel for failure to move for a severance, I would distinguish this situation from the one faced by the Third District Court of Appeal in Panzavecchia which is relied upon by the majority to excuse counsel's failure to seek a severance. In Panzavecchia the appellant was charged with murder and possession of a firearm by a convicted felon. The prior felony conviction was for passing a counterfeit bill. The Third District held that the failure to sever the two offenses and the disclosure of the prior felony conviction did not constitute reversible error under the circumstances of that case. Those circumstances included the fact that the nature of the prior conviction was brought out by defendant's counsel during his direct examination of a witness. In any case, the facts in this case are the reverse of Panzavecchia since here we have a defendant charged with robbery and possession of a firearm by a convicted felon. More importantly, the prior felony conviction, established by the state during appellant's trial, was for murder. Clearly, the degree of prejudice suffered is substantially different when the main charge is murder and the collateral offense counterfeiting, than when the main offense is robbery and the collateral offense is murder. A jury trying a defendant for first degree murder may not be influenced much by the fact that the defendant was previously convicted of passing a counterfeit bill. But can the same thing be said about a jury that is told the man being tried for robbery is a convicted murderer? I think not.
The Florida Supreme Court, in State v. Vazquez, 419 So.2d 1088 (Fla. 1982), held that, although severance may not be required in every case, to deny severance under circumstances similar to those involved herein violates a defendant's right to a fair trial on the main charge faced. The court approved the decision of the Third District Court of Appeal to the same effect, i.e., that a denial of severance constituted an abuse of discretion because the evidence of the collateral offense "was too powerful, too damning, and too prejudicial for any conscientious jury to disregard." Vazquez v. State, 405 So.2d 177, 180 (Fla. 3d DCA 1981). In Vazquez, the Third District pointed out that in Panzavecchia it was the defendant himself who introduced proof of his prior felony conviction and thus waived any objection. Id. at 181. The court also noted that it had "specifically limited our holding in Panzavecchia to the precise facts of the case, which facts on the issue of waiver find no counterpart in the instant case." Id. at 181. The point is that even if the issue of severance is a discretionary matter for the trial court, permitting that discretion to be exercised by a denial of severance under the circumstances of Panzavecchia clearly does not authorize a denial of severance in this case, or more properly stated, excuse counsel from seeking a severance.