| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 74,248 |
| [3] | 1992.FL.45729 <http://www.versuslaw.com>; 601
So. 2d 1181; 17 Fla. Law W. S 319 |
| [4] | decided: May 28, 1992. |
| [5] | JAMES FRANKLIN ROSE, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | An Appeal from the Circuit Court in and for Broward and Hillsborough
County, M. Daniel Futch, Judge - Case Nos. 76-5036 (Broward) 77-2895
(Hillsborough) |
| [7] | Larry Helm Spalding, Capital Collateral Representative; Gail E.
Anderson, Assistant CCR and John S. Sommer, Staff Attorney, Tallahassee,
Florida; and Billy H. Nolas and Julie D. Naylor, Special Appointed CCR,
Ocala, Florida, Office of the Capital Collateral Representative, for
Appellant. |
| [8] | Robert A. Butterworth, Attorney General and Celia A. Terenzio,
Assistant Attorney General, West Palm Beach, Florida, for
Appellee. |
| [9] | Barkett, Shaw, Overton, McDONALD, Grimes, Kogan, Harding |
| [10] | Author: Barkett |
| [11] | BARKETT, J. |
| [12] | James Franklin Rose appeals the trial court's denial of
his motion for relief pursuant to Florida Rule of Criminal Procedure
3.850.*fn1
We reverse the trial court's order. |
| [13] | Rose was tried for the first-degree murder and
kidnapping of eight-year-old Lisa Berry The facts of the case are fully
set forth in the direct appeal. Rose v. State, 425
So.2d 521, 522-23 (Fla. 1982), cert. denied, 461 U.S. 909, 76
L. Ed. 2d 812, 103 S. Ct. 1883 (1983). Briefly stated, on October 22,
1976, Lisa Berry and her mother, Barbara, were at a bowling alley with
family and friends, including Rose. Shortly after 9:30 p.m.
Rose and Lisa went to the poolroom area of the bowling
alley. Rose and Lisa were seen at the exit of the bowling
alley by Lisa's sister, Tracy, between 9:30 and 10:00 p.m. At
approximately 10:23 p.m. Rose called Barbara at the bowling
alley to ask when she would be finished bowling; she said 11:30 p.m.
Rose returned to the bowling alley at that time. The State
argued that Rose killed Lisa sometime after 9:30 p.m. and
before he returned to the bowling alley. |
| [14] | The jury found Rose guilty and recommended the death
penalty. The trial judge imposed a sentence of death for the murder and a
life sentence for the kidnapping. This Court affirmed the convictions and
the life sentence, but vacated the death sentence and remanded for
resentencing. Rose, 425 So.2d at 525.
On remand, the jury recommended death. The court found no mitigating
circumstances. In aggravation, the court found that Rose was
under sentence of imprisonment when he committed the murder because he was
on parole at the time,*fn2
that he had previously been convicted of a felony involving the use or
threat of violence,*fn3
and that the murder was committed during the commission of a kidnapping.*fn4
The death sentence was affirmed by this Court. Rose v.
State, 461 So.2d 84, 88 (Fla. 1984), cert. denied,
471 U.S. 1143, 86 L. Ed. 2d 706, 105 S. Ct. 2689 (1985). Thereafter,
Rose filed a petition for a writ of habeas corpus which this
Court ultimately denied. Rose v. Dugger, 508 So.2d
321, 326 (Fla.), cert. denied, 484 U.S. 933, 98 L. Ed. 2d 267,
108 S. Ct. 308 (1987). Rose then filed a motion for
post-conviction relief pursuant to rule 3.850 which was denied without
hearing by the trial court. Rose now appeals the trial
court's denial of that motion. |
| [15] | We confine our review to two issues. First, Rose argues
that he was denied due process of law because the trial court, without a
hearing and as a result of an ex parte communication, adopted the State's
proposed order denying relief without providing counsel notice of receipt
of the order, a chance to review the order, or an opportunity to object to
its contents. Second, Rose asserts that he is entitled to an
evidentiary hearing on the allegations contained in his
motion. |
| [16] | Rose's 3.850 motion was originally filed by an assistant
public defender who was later allowed to withdraw as counsel by the trial
court. The State responded to Rose's motion and in its
response agreed that an evidentiary hearing was required. Subsequently,
the State submitted a proposed order, adopted in its entirety by the trial
court, denying all relief. Rose's new counsel was not served
with a copy of the proposed order or provided an opportunity to file
objections.*fn5
Under these facts we must assume that the trial court, in an ex parte
communication, had requested the State to prepare the proposed
order. |
| [17] | The judicial practice of requesting one party to a prepare a proposed
order for consideration is a practice born of the limitations of time.
Normally, any such request is made in the presence of both parties or by a
written communication to both parties. We are not unmindful that in the
past, on some occasions, judges, on an ex parte basis, called only one
party to direct that party to prepare an order for the judge's signature.
The judiciary, however, has come to realize that such a practice is
fraught with danger and gives the appearance of impropriety. See generally
Steven Lubet, Ex Parte Communications: An Issue in Judicial Conduct, 74
Judicature 96, 96-101 (1990). |
| [18] | Canon 3A(4) of Florida's Code of Judicial Conduct states clearly
that |
| [19] | A judge should accord to every person who is legally interested in a
proceeding, or his lawyer, full right to be heard according to law, and
except as authorized by law, neither initiate nor consider ex parte or
other communications concerning a pending or impending
proceeding. |
| [20] | Fla. Bar Code of Jud. Conduct, Canon 3A(4) (emphasis added). Nothing
is more dangerous and destructive of the impartiality of the judiciary
than a one-sided communication between a judge and a single litigant. Even
the most vigilant and conscientious of judges may be subtly influenced by
such contacts. No matter how pure the intent of the party who engages in
such contacts, without the benefit of a reply, a judge is placed in the
position of possibly receiving inaccurate information or being unduly
swayed by unrebutted remarks about the other side's case. The other party
should not have to bear the risk of factual oversights or inadvertent
negative impressions that might easily be corrected by the chance to
present counter arguments. As Justice Overton has said for this
Court: |
| [21] | Canon [3A(4)] implements a fundamental requirement for all judicial
proceedings under our form of government. Except under limited
circumstances, no party should be allowed the advantage of presenting
matters to or having matters decided by the judge without notice to all
other interested parties. This canon was written with the clear intent of
excluding all ex parte communications except when they are expressly
authorized by statutes or rules. |
| [22] | In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla. 1987). |
| [23] | We are not here concerned with whether an ex parte communication
actually prejudices one party at the expense of the other. The most
insidious result of ex parte communications is their effect on the
appearance of the impartiality of the tribunal. The impartiality of the
trial judge must be beyond question. In the words of Chief Justice
Terrell: |
| [24] | This Court is committed to the doctrine that every litigant is
entitled to nothing less than the cold neutrality of an impartial judge. .
. . The exercise of any other policy tends to discredit the judiciary and
shadow the administration of justice. |
| [25] | State ex rel. Davis v. Parks, 141 Fla. 516,
519-20, 194 So. 613, 615 (1939). Thus, a judge should
not engage in any conversation about a pending case with only one of the
parties participating in that conversation. Obviously, we understand that
this would not include strictly administrative matters not dealing in any
way with the merits of the case. |
| [26] | In this case, the issue was compounded by the State's concession that
an evidentiary hearing was required on some of the factual matters
alleged. For example, the notion states that the case was tried based on
the State's theory that Rose killed Lisa Berry between the
hours of 9:30 and 10:23 p.m.*fn6
Rose claims that there were five witnesses who saw Lisa at
the bowling alley between 10:30 and 11:50 p.m.--after Rose
had, under the State's theory at trial, committed the murder and returned
to the bowling alley. The motion alleges that the statements and/or
testimony of these witnesses were available to defense counsel but were
not used at trial. We agree that this issue merits an evidentiary
hearing. |
| [27] | Thus, we reverse the order denying Rose's motion for
post-conviction relief. We direct the trial court to reconsider
Rose's motion and to hold an evidentiary hearing on the
ineffective assistance of counsel claims and any other appropriate factual
issues presented in the motion. |
| [28] | It is so ordered. |
| [29] | SHAW, C.J. and OVERTON, McDONALD, GRIMES and HOGAN, JJ.,
concur. |
| [30] | HARDING, J., concurs with an opinion. |
| [31] | HARDING, J., concurring. |
| [32] | I concur with the majority opinion and write only to emphasize that,
in my experience as a trial judge, where more than one attorney or party
has made an appearance in a case, I found that there were few
administrative matters which would require or justify an ex parte
communication with a judge. The most obvious administrative matter would
relate to setting hearings on motions and other matters. Care should be
exercised even in this regard. |
| [33] | In maintaining calendar control, many judges deem it appropriate to
personally screen and approve the setting of cases which require more than
a set period of time, that is, thirty minutes. If the judge must become
personally involved, in any way, in the setting of a hearing, care should
be given that all parties have equal opportunity to participate in the
setting of that hearing. Judge's calendars and dockets are generally very
crowded. Time on them is a precious commodity which should be distributed
in a fair manner. It probably will be common knowledge that an explanation
to the judge is required to set a hearing lasting longer than a set time.
Thus, if all parties are not involved in setting the case, it will be
assumed that there was an ex parte communication with the judge in order
to obtain the time. Ex parte communications with a judge, even when
related to such matters as scheduling, can often damage the perception of
fairness and should be avoided where at all possible. |
| [34] | The number of lawyers has grown significantly in recent years in most
locations. It is impossible for lawyers to know each other and the judges
with the same degree of familiarity that they did in the past. It is also
more common for lawyers to appear in courts "away from home" than it was
in the past. This growth in numbers and mobility places a greater burden
on the judge to ensure that neutrality continues to exist. Judges should
be ever vigilant that every litigant gets that to which he or she is
entitled: "the cold neutrality of an impartial judge." State ex rel. Davis
v. Parks, 141 Fla. 516, 519-20, 194 So.
613, 615 (1939). |
|
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| Opinion Footnotes | |
|
| |
| [35] | *fn1
We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida
Constitution. |
| [36] | *fn2
§ 921.141(5)(a), Fla. Stat. (1975). |
| [37] | *fn3
Id. § 921.141(5)(b). |
| [38] | *fn4
Id. § 921.141(5)(d). |
| [39] | *fn5
A copy of the proposed order was sent to Rose's former
counsel. |
| [40] | *fn6
The State does not contest this
characterization. |