State v. ZeiglerState v. Zeigler
William Thomas Zeigler, under a sentence of death, filed a motion pursuant to
Zeigler was convicted of two counts of first-degree and two counts of second-degree murder in July, 1976. The jury recommended life sentences for the two first-degree murder convictions; the trial judge, however, imposed two death sentences. The convictions and sentences were affirmed by this Court upon appeal. Zeigler v. State, 402 So.2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).
Zeigler subsequently sought collateral review pursuant to
In the instant 3.850 petition, Zeigler claims that (1) the sentencing decision violated the eighth amendment as construed in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and subsequent rulings; (2) as a result of serious prejudicial jury misconduct involving racial bias and coercion Zeigler was denied the right to a fair trial by an impartial jury as guaranteed by the sixth and fourteenth amendments; (3) the death sentences imposed upon Zeigler were based upon unconstitutional aggravating circumstances which fundamentally distorted the sentencing process in violation of the eighth and fourteenth amendments; (4) the state suppressed exculpatory evidence in violation of the eighth and fourteenth amendments; (5) the trial court imposed a sentence of death notwithstanding the jury‘s recommendation on the basis of a “presumption” that death was appropriate if one aggravating circumstance was approved, in violation of Tedder v. State, 322 So.2d 908 (Fla. 1975);
We reject this argument and find that neither Harvard nor Songer controls under the circumstances of this case. We find it is clear that this issue has been presented and rejected in the first 3.850 petition, where we noted that the claims could and should have been raised on direct appeal. We note that the appellant‘s brief in the original appeal of this case was filed after the United States Supreme Court‘s decision in Lockett.
Our Harvard decision is not controlling and is clearly distinguishable because, in that decision, the trial judge expressly stated in the record in the 3.850 proceeding that he did not consider nonstatutory mitigating circumstances in imposing the death sentence. No such statement is in the record in this proceeding. Further, non-statutory mitigating evidence was presented by Zeigler to the jury through two witnesses, a church pastor and a psychiatrist. We conclude that the factual circumstances in this case make it more similar to the post-conviction relief proceedings in Hitchcock v. State, 432 So.2d 42 (Fla. 1983) and Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985), in which this Court and the Eleventh Circuit denied relief, than Harvard.
Zeigler has also applied for leave to file a petition for writ of error coram nobis. This application is denied. See Riley v. State, 433 So.2d 976 (Fla. 1983); Hallman v. State, 371 So.2d 482 (Fla. 1979).
For the reasons expressed, we grant the state‘s motion to vacate the stay of execution and deny Zeigler‘s motion for relief under rule 3.850. Because of the exigency of the case, no petitions for rehearing will be allowed.
It is so ordered.
BOYD, C.J., and OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.
BARKETT, J., dissents with an opinion.
BARKETT, Justice, dissenting.
The defendant filed a motion for relief in the trial court pursuant to
We have repeatedly held that the state‘s authority to appeal orders in criminal cases is purely statutory. State v. Palmore, 495 So.2d 1170 (Fla. 1986); State v. Creighton, 469 So.2d 735 (Fla. 1985);
There is no question that if this were not a death case, the state would be unable to appeal. The only thing that makes this trial court‘s order appealable is the imminence of the death penalty. However, every court that has written on this subject mandates that, “because the death penalty, unlike other punishments, is permanent and irrevocable,” we should afford those cases even greater care. Proffitt v. Wainwright, 685 F.2d 1227, 1253 (1982) (and cases cited therein), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983). See also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). Indeed, it is the application of that extreme care which permits these statutes to pass constitutional muster. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). The irony of this case, as in Henry, is that the imposition of the death penalty has resulted in the diminution of the rights afforded other criminal defendants. The state cannot
I do recognize that we must have an end to litigation and that we should not permit the application of the law to be thwarted. I cannot, however, subscribe to a method which breaks one rule to save another.
Moreover, even under Henry, in order to consider the state‘s motion to vacate the stay, we must take as true every allegation Ziegler makes. We must therefore accept the proposition that the trial judge prevented defense counsel from presenting all of his non-statutory evidence because the judge believed that he could only consider the statutory mitigating factors. How then, can we rule that “even so no relief is warranted“? (Henry, 456 So.2d at 469.)3
Accordingly, I would deny the state‘s motion to vacate the stay granted by the trial judge.
I would additionally grant the stay accompanying the petition for the Writ of Error Coram Nobis. I agree with Justice Overton in his dissents to Hallman v. State, 371 So.2d 482 (Fla. 1979), and Riley v. State, 433 So.2d 976 (Fla. 1983), which reject the “conclusiveness test” in death cases. I would permit the application of the “probability test” enunciated in