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Florida Supreme Court – Criminal Headnotes – July 6, 2017

ROBERT EARL PETERSON V. STATE OF FLORIDA – POST-CONVICTION RELIEF, HABEAS CORPUS – MOTION TO DISQUALIFY – INEFFECTIVE ASSISTANCE OF COUNSEL – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Appeal from denial of motion to vacate conviction of first-degree murder and sentence of death and petition for writ of habeas corpus.

The post-conviction judge did not err in denying the defendant’s motion to disqualify himself on the basis of comments he made concerning mitigation coordinators, where he correctly ruled the motion was legally insufficient and did not attempt to refute the allegations of partiality. Nor did the lower court abuse its discretion in denying relief on the ground the defendant was denied due process when his trial lawyer “lost or destroyed” his trial records, as there was insufficient evidence the loss of these records prevented his present counsel from adequately investigating and pleading the ineffectiveness of the trial lawyer.

The defendant’s allegation that the trial lawyer’s excessive caseload created a conflict of interest was not substantiated. The defendant did not allege with specificity any deficiencies in the trial lawyer’s conduct that would more likely than not have altered the outcome, as required by Strickland v. Washington, 466 U.S. 668 (1984), and Miller v. State, 161 So. 3d 354 (Fla. 2015). Because the recommendation of the penalty phase jury was not unanimous, the death sentence is vacated post-Hurst. Other penalty phase issues not reached.

In denying the writ petition, the court ruled appellate counsel could not be faulted for: (a) failing to argue a violation of the defendant’s Fourth Amendment rights where the error had not been preserved by a motion to suppress; or (b) for failing to order a complete transcript, where there was no showing any errors occurred during the untranscribed portions of the trial.

ROBERT J. BAILEY V. STATE OF FLORIDA – REMAND FOR PENALTY PHASE POST-HURTS WHERE JURY RECOMMENDATION NOT UNANIMOUS

Petition for writ of habeas corpus. Because the recommendation of the penalty phase jury was not unanimous, the court is unable to determine the jury found the aggravating factors outweighed mitigating factors or were sufficient to impose the death sentence. The sentence is vacated post-Hurst. Other penalty phase issues not reached.