
    William Riley JENT, Appellant, v. STATE of Florida, Appellee.
    No. 63957.
    Supreme Court of Florida.
    July 18, 1983.
    Eleanor Jackson Piel, New York City, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler and M. Ann Garrison, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Jent appeals the denial of his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, to vacate, set aside, or correct conviction and sentence. We have jurisdiction and affirm the denial and deny his application for stay of execution.

A jury convicted Jent of first-degree murder, and the trial judge sentenced him to death. We affirmed both the conviction and sentence. Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). The governor signed Jent’s death warrant on June 23, 1983. Jent then filed the motion which is the subject of this appeal.

On appeal Jent urges that (1) the trial court erred by (a) failing to hold an eviden-tiary hearing regarding prosecutorial misconduct and (b) failed to find Jent’s trial counsel ineffective; (2) Jent’s original counsel’s representation of another person violated Jent’s sixth amendment rights; and (3) unseemly haste to execution has denied him due process. We find no error in the trial court proceeding.

The portion of the motion concerned with prosecutorial misconduct deals with the motion for new trial. In denying relief on that claim the court held that the issue had been presented and considered on direct appeal. We find no error in the court’s failure to grant an evidentiary hearing. The purpose and reasons for the witnesses’ recantations were developed at the hearing on the motion for new trial and the testimony was subjected to cross-examination. Jent now alleges a different type of coercion from that urged on direct appeal, but the record affirmatively shows a competent basis for the trial court’s ruling.

Jent alleges his trial counsel was ineffective in the following respects: (1) failure to secure an independent medical examiner; (2) failure to investigate the eyewitnesses’ backgrounds; (3) failure to secure an independent expert on hair analysis; (4) failure to find character witnesses other than family; (5) failure to object to two instructions; and (6) ineffectiveness due to interference by the prosecutor. Several of these alleged failings have their basis in points considered on direct appeal where this Court found no error to have occurred (impeachment of eyewitnesses, hair analysis, instructions). We agree with the trial court that Jent has failed to demonstrate any substantial and serious deficiency on his counsel’s part. Knight v. State, 394 So.2d 997 (Fla.1981). Moreover, regarding Jent’s claim on his original counsel, we also agree with the court’s ruling that counsel immediately recognized the possibility of a conflict and sought and received permission to withdraw. Jent has shown no prejudice to him or impropriety in what happened.

As his final point, Jent complains both that the state has acted with unseemly haste in setting his execution and that the trial court acted with undue slowness in dismissing his first 3.850 motion. We find no merit to this claim. This Court issued its opinion affirming his conviction and sentence on December 3, 1981, and the United States Supreme Court denied certiorari on June 7,1982. Over one full year, therefore, passed before the signing of his death warrant. This is not unseemly haste, and we do not find any state action in this case to have been arbitrary or capricious.

Accordingly, we affirm the trial court’s denial of Jent’s motions to vacate and for stay of execution. No motion for rehearing will be allowed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

APPENDIX

IN THE CIRCUIT COURT OP THE SIXTH JUDICIAL CIRCUIT OP THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

CF79-847

STATE OF FLORIDA :

WILLIAM RILEY JENT; ;

EARNEST LEE MILLER

ORDER DENYING MOTIONS TO VACATE AND MOTIONS FOR STAY OF EXECUTION .

The defendants, WILLIAM RILEY JENT and EARNEST LEE MILLER, were • each adjudicated guilty and sentenced to death for first degree murder by this court on February 20, 1980. They are now back' before this court on motions of each defendant to vacate and set aside those judgments . and sentences pursuant to Rule 3.850, Fla.R.' Crim.P. This court previously denied, portions of these motions for post-conyiction>. relief because the files and records--showed conclusively that the defendants were, entitled to no relief. A hearing was held before; the court on July 12,1983, on the remaining portions of these motions which allege ineffective assistance of counsel. At that hear- ■ ing the defendants were each present with their respective attorneys. " ••

At the hearing, the court denied motions' by both defendants to amend their respec-. tive motions. The reason for the denial was ‘ because of the untimeliness of those motions to amend. The amendments proposed-, by each defendant to his motion were there-. fore not considered by this court. This court did, however, allow each defendárit'tó-. adopt those portions of the other’s original motion for pOst-conviction relief which are applicable and beneficial.

At the beginning of the post-conviction relief hearing, counsel for Mr. Miller abandoned his allegation that Mr. Miller's trial counsel insufficiently investigated and presented at trial an alibi defense..’ The reason given for this abandonment was that the potential alibi witness, Samantha Carver, had disappeared and efforts by his attorney and his friends to locate her were fruitless.

At the' conclusion of the post-conviction relief hearing, counsel for Mr. Miller argued that the record in the case and the evidence presented during this hearing demonstrates conclusively that Mr. Miller received ineffective assistance of counsel in the following respects:

(1)Trial counsel failed to obtain an independent forensic pathologist to both testify as to the cause of death and to educate trial counsel in the science of forensic pathology. Trial counsel also failed to otherwise adequately educate himself in the science of forensic pathology, and was therefore unprepared to challenge the competency of or to adequately cross-examine the medical examiner who testified for the state.

(2) Trial counsel failed to pursue his motion for funds to hire a private investigator or to adequately conduct his own investigation into the background of the state’s witnesses and was therefore insufficiently prepared to cross-examine several of the state’s witnesses.

(3) Trial counsel failed to rebut the testimony of certain “jail house” confessions presented by the state.

Counsel for Mr. Jent adopted the arguments by Miller’s counsel and further argued as follows:

(4) Trial counsel failed to consult experts in forensic pathology, hair analysis and comparison, or psychology or psychiatry and was therefore inadequately prepared to cross-examine the state’s expert and lay witnesses or to otherwise rebut the state’s evidence.

(5) Trial counsel failed to insist on proper instructions by the court to the jury on the charge of sexual battery underlying the charge of felony murder or on the consideration of mitigating circumstances other than those prescribed in § 921.141, Florida Statutes.

(6) Trial’ counsel failed to adequately investigate or present any mitigating circumstances at the sentencing phase of the trial.

(7) Trial counsel failed to adequately prepare himself to discredit the testimony of 'eye-witnesses presented by the state and in particular, Glenna Frye, and more particularly her testimony about the sexual bat-..téry and the burning episode.

, (8) Trial counsel representing Jent was burdened with a conflict of interest because he also represented a witness named Boone.

The law the court must follow in deciding these claims of ineffective assistance of trial counsel is found in the opinion of the Florida Supreme Court in the case of Knight v. State, 394 So.2d 997 (Fla.1981). That law is:

A. “(T)he defendant has the burden to show that ... (each) specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel.... ‘to be “below average” is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.’ ... We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.”

B. “(T)he defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceeding.” (at 1001).

After considering the evidence presented at the post-conviction relief hearing, the files and record in the case, and the arguments of counsel, the court finds as follows:

1.Defendants failed to show that trial counsels’ failure to consult or obtain an independent forensic pathology expert was substantial or serious deficiency measurably below that of competent counsel or that when considered under the circumstances of these cases was substantial enough to demonstrate a prejudice to the respective defendants to the extent that there is a likelihood that the failure affected the outcome of the court proceedings.

The defendants presented testimony by Dr. Ronald K. Wright, an eminent expert in the field of forensic pathology. Dr. Wright testified that after reviewing the medical examiner’s report, some poor photographs of the victim, the testimony of the medical examiner given at trial and at her pre-trial deposition, and after examining and dissecting the preserved larynx of the victim, it was his opinion that the victim was dead when immolated. He candidly recognized that competent forensic pathologists may have opinions different from his on the same facts. He had no opinion on any other aspect of the case except the credentials of the medical examiner.

In fact, the medical examiner testified at both trials that it was also her opinion that this victim was unconscious and beyond sensitivity to pain when immolated.

In addition, both trial counsel testified that they considered the medical examiner’s testimony on this point beneficial to their respective clients and were tactically fearful that another forensic pathologist might reach the opinion that the victim was indeed alive at the time of her immolation.

Furthermore, there was no showing that testimony by Dr. Wright at the trial would have affected the outcome of either the jury verdicts or the sentence.

2. Defendant failed to show that trial counsel were ineffective in pursuing their motions for funds to hire an investigator or to conduct effective investigation themselves. In fact, the pre-trial depositions and the trial transcript show conclusively that both trial counsel were well prepared and far above average in their cross-examination of all of the eye-witnesses.

3. Defendants failed to show that the failure of trial counsel to present evidence to rebut the testimony about the “jail house” confessions was anything but good tactical decisions.

4. Defendants failed to show that trial counsels’ failure to consult experts in hair analysis and comparison or psychology was a deficit or caused any prejudice.

5. The Florida Supreme Court has already found that the failure of the trial court to instruct the jury on the underlying felony of sexual battery caused the defendants no prejudice. Jent v. State, 408 So.2d 1024 (Fla.1981). So it is difficult to see how the trial counsels’ failure to ask for such instruction could be prejudicial, and the defendants have failed to make such showing on this motion.

6. Defendants have failed to show any inadequacy of trial counsel in the investigation or presentation of mitigating circumstances at the sentencing phase of the respective trials.

7. Defendants have failed to show any inadequacy of either trial counsel in the preparation for cross-examination of any witness or in the cross-examination itself. In fact, the record and file in this case demonstrate extensive preparation by trial counsel for cross-examination. The transcript of the trial testimony in both eases demonstrates text-book cross-examination by trial counsel of all witnesses.

8. Mr. Jent has failed to show any con-' flict of interest of any trial counsel that causes him prejudice. The record reflects' that a member of the Public Defender’s Office, Mr. Jack Hoogewind, represented him originally. When the state listed a Mr. ’ Boone as a witness, Mr. Hoogewind-immedi-ately recognized that he had a conflict because he and other members of his office also represented Mr. Boone. Mr. Hooge-wind appears to have immediately moved to' withdraw from his representation of Mr. Jent. His motion was granted and Mr, Holton then appointed to represent Mr. Jent. That Mr. Holton then used some of the pre-trial work performed by Mr. Hooge-wind is not per se prejudicial and Jent has shown no prejudice.

This court was the trial judge at the trials of both of these defendants and at many of the pre-trial hearings. The impression of this court is that the competency of each of these trial counsel was significantly above the norm for defense counsel in general and for these attorneys specifically. It was obvious to this court that both of these attorneys considered this matter to be very serious business and conducted these trials in exemplary fashion.

It is therefore

ADJUDGED that the Motions to Vacate pursuant to Rule 3.850, Fla.R.Crim.P., filed and argued by each defendant are hereby denied.

Defendants are hereby informed that they have the right to appeal this order within 30 days from its date.

It is further

ORDERED that the motions of both defendants for stays of execution are hereby denied.

DONE AND ORDERED in Chambers, Dade City, Pasco County, Florida, this 13 day of July, 1983.

/s/ Wavne L. Cobb WAYNE L. COBB, Circuit Judge 
      
       The trial court’s order denying relief is set out as an appendix to this opinion.
     