State v. BolenderState v. Bolender
The state appeals the trial court‘s granting of Bolender‘s motion for postconviction relief. We have jurisdiction.
This Court affirmed Bolender‘s convictions and four death sentences (imposed after the trial court overrode the jury‘s recommendation of life imprisonment) in 1982. Bolender v. State, 422 So.2d 833 (Fla. 1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983). In January 1984 the governor signed a death warrant for Bolender, and Bolender filed a rule 3.850 motion for postconviction relief and requested a stay of execution. The motion alleged that Bolender‘s trial counsel rendered ineffective assistance by failing to subpoena a witness properly1 and by failing to present evidence to mitigate Bolender‘s sentences. Judge Klein stayed the execution in order to hold an evidentiary hearing on the motion and denied the state‘s request to transfer the case to Bolender‘s original trial judge. Judge Klein held a hearing on the motion in December 1985, orally granted the motion, and vacated Bolender‘s death sentences. In January 1986 Judge Klein entered a written order, stating his intention to resentence Bolender to life imprisonment if his order is affirmed on this appeal.
At trial Bolender‘s counsel presented no mitigating evidence. Instead, he argued that Bolender should be treated no more harshly than his co-perpetrators, one of
Both the mother and sister testified before Judge Klein as to Bolender‘s life some ten to twelve years prior to his commission of the murders for which he received his death sentences. Bolender‘s trial counsel also testified at the evidentiary hearing. He stated that he knew the mother and sister were willing to testify, but that, after checking on the trial judge‘s reputation, he concluded that such nebulous nonstatutory mitigating evidence would have had little effect on the judge. Therefore, he made the tactical decision that a proportionality argument would be the better strategy.
In granting the instant motion Judge Klein wrote:
The law of the State of Florida is that a death sentence may not be imposed when any evidence of mitigating circumstances is presented. Thus, it is this court‘s conclusion that had Defendant‘s counsel presented the testimony of Defendant‘s mother and sister, the trial court could not have imposed the death sentences. Counsel was therefore ineffective.
There are several problems with this statement. That the mere presentation of mitigating evidence precludes imposition of the death penalty is not and never has been a correct statement of this state‘s law. In determining if death is an appropriate penalty the sentencing judge must weigh any aggravating circumstances against any mitigating circumstances. State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). A trial court must allow the presentation of nonstatutory mitigating evidence, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and, if introduced, must consider such evidence. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Finding or not finding that a mitigating circumstance has been established and determining the weight to be given such, however, is within the trial court‘s discretion and will not be disturbed if supported by competent substantial evidence. Stano v. State, 460 So.2d 890 (Fla. 1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). That Judge Klein, in our opinion, incorrectly found that the original trial judge had abused his discretion and improperly substituted his judgment for that of the original trial judge2 is beside the point because, first and foremost, Judge Klein did not apply the proper standard for deciding a claim of ineffective assistance of counsel.
To demonstrate ineffective assistance, it must be shown both that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In assessing effectiveness “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066. To overcome this presumption of effectiveness specific instances of substandard performance must be identified. Then, taking all the circumstances into account, the court must decide if “the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. Judge Klein did not follow this standard.
Bolender‘s current counsel identified specific omissions, i.e., the failure to have the mother and sister testify. The rest of the test for effectiveness, however, has not been met. Trial counsel testified
Therefore, we reverse Judge Klein‘s order and direct him to reinstate these death sentences.
It is so ordered.
McDONALD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.
BARKETT, J., concurs in result only.