Harich v. StateHarich v. State
Roy Allen Harich appeals the trial court‘s order denying postconviction relief, which was entered after an evidentiary hearing on Harich‘s claim that his trial counsel‘s appointment as a special deputy sheriff resulted in his providing Harich ineffective assistance at his trial. We have jurisdiction.
Harich was found guilty of first-degree murder, attempted first-degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The trial court imposed the death penalty, and this Court affirmed the conviction and death sentence in Harich v. State, 437 So.2d 1082 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). Harich subsequently filed a motion for postconviction relief under
In the hearing on remand, Harich was afforded an opportunity to present evidence concerning his claim that he was denied his right to effective assistance of counsel because his counsel, who was the senior public defender in charge of capital cases in the Seventh Judicial Circuit, owed conflicting duties because of his status as a special deputy sheriff in an adjacent county. The trial court, after an extensive evidentiary hearing, made the following findings of fact and conclusions of law:
In June of 1972 Howard Pearl became an assistant public defender for the Seventh Judicial Circuit. In 1978 he assumed responsibility for the defense of capital cases assigned to the public defender‘s office. In 1982 he represented the defendant Roy Allen Harich at the trial in this cause. He also represented Harich at the governor‘s clemency hearing. Pearl did not disclose his role as a special deputy to Harich.
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Pearl became a special deputy sheriff for Marion County in 1970. This status continued until Pearl resigned in May of 1989. Pearl paid liability insurance each year and he was bonded. He was issued a deputy‘s card, and the card erroneously identified him as a regular deputy. He also took an oath of office. Pearl also purchased a deputy sheriff‘s badge from a gun shop.
Pearl‘s sole reason for becoming a special deputy was to permit him to carry a firearm. He wanted a “gun toter‘s permit.” Pearl never intended to act as a deputy, and the sheriff of Marion County never intended for Pearl to act as a law enforcement officer. Specifically, Pearl:
1. was never certified as a Florida law enforcement officer, contrary to the allegations on Page Nine of the 3.850;
2. never held himself out as a regular deputy;
3. received no training as a deputy, contrary to the allegations on Page Ten of the 3.850;
4. never wore a deputy‘s uniform;
5. received no compensation as a deputy, contrary to the allegations on Page Ten of the 3.850;
6. was never issued any equipment;
7. never made an arrest or stop;
8. had no required duties as a deputy; was on no duty roster;
9. never acted as a regular deputy;
10. was never asked to act as a regular deputy;
11. was in fact a “special” or “honorary” deputy rather than a regular deputy.
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In March of 1974 he was issued an honorary deputy‘s card by former Sheriff Duff. He performed no duties as a Volusia County deputy, and none were expected to be performed by him. The card was issued by the sheriff for good will and/or political purposes. It was issued to dignitaries like television personality Willard Scott, and was even issued by the sheriff to newborn babies. This card was solely honorary.
The Lake County card was issued by the former sheriff to Pearl in June of
1983. Much like the Volusia County card it was purely honorary. Pearl never acted as a Lake county deputy, never held himself out to be a Lake County deputy, and was never expected by the sheriff to act as a regular deputy. ... .
The Defense 3.850 alleges that Pearl‘s role as a deputy sheriff caused him to render ineffective assistance of counsel to Harich. No evidence to support this contention was produced at the evidentiary hearing. In fact, the evidence was to the contrary. Pearl remained loyal to Harich. He betrayed no confidences to law enforcement. He effectively crossed-examined [sic] law enforcement officers. He did not ineffectively bolster their credibility. He did not ineffectively concede that a sexual battery took place. Pearl‘s role as a special deputy sheriff resulted in no prejudice to Harich. The deputy sheriff status did not in any way interfere with Pearl‘s role as a public defender.
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The majority opinion in the Supreme Court decision mandating this evidentiary hearing expressed concern that the issue of Pearl‘s deputy status may not have been discoverable through due diligence. During the evidentiary hearing it became obvious the issue could have been easily discovered. Judge Blount knew Pearl was an honorary deputy. In fact, Pearl told many judges about his status. He never tried to keep the status secret. It was never anything he perceived to be a conflict. In addition to the judges the original prosecutor knew Pearl was a deputy; Pearl‘s employer, the Public Defender of the Seventh Judicial Circuit, knew; other members of Pearl‘s office knew, including the head of the capital appeals division. It was common knowledge in the Volusia County legal system. This issue could have easily been discovered back at the time of the 1982 trial or anytime thereafter.
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No actual conflict between Pearl‘s status as a special deputy sheriff and Harich‘s defense counsel has been demonstrated. Harich suffered no prejudice from Pearl‘s deputy status. Pearl rendered effective assistance to the defendant, the deputy status notwithstanding.
The remaining question is whether Pearl‘s deputy status was a per se conflict of interest requiring no showing of prejudice to the defendant. There is no law to support this assumption and this Court is unwilling to make that quantum leap. The better view is that Pearl‘s honorary position, requiring no actual law enforcement duties, did not conflict with his role as a defense attorney. There is no actual, implied, or per se conflict. The Court finds no violation of Florida Statute 454.18, 27, 51, and 27.53; Article II, Section 5(a) of the Florida Constitution; or Disciplinary Rule 5-101A of the Florida Code of Professional Responsibility.
Finally, this Court respectfully concludes that the defendant should be procedurally defaulted. The deputy status issue could and should have been discovered and raised in the original 3.850.
In this appeal, Harich claims that his public defender‘s undisclosed special deputy position amounted to a violation of his rights under the sixth and eighth amendments to the United States Constitution and his rights under
We approve the findings of fact made by the trial judge and find that they are fully supported by this record. Considering the duties and status of a special deputy sheriff, as found by the trial judge, we conclude
We also must address the collateral issue of collateral relief counsel‘s being found in contempt of the court by the trial judge initially assigned to try this cause. The finding of contempt was announced immediately before the judge recused himself from hearing this cause on remand. The record reflects that counsel was found in contempt for being late to the evidentiary hearing and for perceived dilatory conduct. We find it unnecessary to fully articulate the circumstances, but we conclude that, in light of this record, we should vacate the order of contempt. In doing so, we do not condone collateral counsel‘s conduct.
Accordingly, we affirm the trial court‘s denial of rule 3.850 relief, vacate the stay of execution previously entered in this proceeding, and vacate the contempt order entered against collateral relief counsel.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur.