IN THE SUPREME COURT OF FLORIDA

CASE NO.

WILLIAM JAMES DEPARVINE, Petitioner,

vs.

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, THE STATE OF FLORIDA, Respondents.

I

PETITION FOR WRIT OF HABEAS CORPUS

David R. Gemmer Assistant CCRC-Middle Florida Bar Number 370541 Office of The Capital Collateral Regional Counsel

3801 Corporex Park Drive Suite 210 Tampa, F1 33609-1004 (813) 740-3544

Counsel for Petitioner

TABLEOFCONTENTS

TABLEOFCONTENTS. ............................................ii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

JURISDICTION TO ENTERTAIN PETITION ANDGRANTHABEASCORPUSRELIEF......................... 1

STATEMENTOF THECASE ANDFACTS. ............................ 2

GROUNDS FOR RELIEF.. . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . 5 CLAIMI.....................................................6

MR. DEPARVINE RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO COUNSEL'S FAILURE TO MAKE SPECIFIC CLAIMS REGARDING FUNDAMENTAL ERROR AND A DENIAL OF DUE PROCESS FOR CONVICTION FOR CARJACKING.

CLAIMTWO. ............................................... 10 APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AND ARGUE THAT PETITIONER COULD NOT BE GUILTY OF CARJACKING THE TRUCK BECAUSE THE VAN DUSENS DID NOT HAVE "CUSTODY" OF THE TRUCK AT THE TIME IT WAS ALLEGEDLY TAKEN.

CONCLUSIONANDRELIEFSOUGHT............................... 12

CERTIFICATEOFSERVICE........................................ 13

CERTIFICATEOFCOMPLIANCE.................................... 13

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TABLE OF AUTHORITIES

CASES

Baggett v. Wainwright, 229 So.2d 239, 243 (Fla. 1969). . . . . . . . . . . . . . . . . . . . . 1

Barclay v. Wainwright, 444 So.2d 956, 959 (Fla. 1984). . . . . . . . . . . . . . . . . . . . . 6

Braggs v. State, 789 So.2d 1151 (Fla. 3d DCA 2001). . . . . . . . . . . . . . . . . . . . . . 10

Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981). . . . . . . . . . . . . . . . . . . . . . . . . 1

Cole v. Arkansas, 333 U.S. 196, 201 (1948).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dallas v. Wainwright, 175 So.2d 785 (Fla. 1965). . . . . . . . . . . . . . . . . . . . . . . . . . 1

Delonge v. Oregon, 299 U.S. 353, 362 (1937).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Deparvine v. State, 955 So.2d 351 (Fla. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fla. 1986).. . . . . . . . . . . . . . . . . . 5

Hodges v. State, 878 So.2d 401 (Fla. 4th DCA 2004). . . . . . . . . . . . . . . . . . . . . . 10

Johson v. State, 226 So.2d 884 (Fla. 2d DCA 1969). . . . . . . . . . . . . . . . . . . . . . . 10

Jones v. State, 562 So.2d 346 (Fla. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Orange County v. Williams, 702 So. 2d 1245 (Fla. 1997). . . . . . . . . . . . . . . . . . . . 1

Palmes v. Wainwright, 460 So.2d 362 (Fla. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . 1

Penny v. State, 191 So. 190, 193 (Fla. 1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ray v. State, 403 So.2d 956 (Fla. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Smith v. State, 400 So.2d 956, 960 (Fla. 1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

3

Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla. 1985). . . . . . . . . . . . . . . . . . . . 6

OTHER AUTHORITY

Art. 1, Sec. 13, Fla. Const.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Art.V,§3(b)(1),Fla.Const............................................ 1

Florida Rule of Appellate Procedure 9.030(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Florida Rule of Appellate Procedure 9.100(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Section812.133(1). ................................................ 11

4

JURISDICTION TO ENTERTAIN PETITION AND GRANT HABEAS CORPUS RELIEF

This is an original action under Florida Rule of Appellate Procedure 9.100(a).

See Art. 1, Sec. 13, Fla. Const. This Court has original jurisdiction pursuant to

Florida Rule of Appellate Procedure 9.030(a)(3) and Art. V, Sec. 3(b)(9), Fla. Const.

This petition presents constitutional issues which directly concern the judgment of

this Court during the appellate process and the legality of Mr. Deparvine's death

sentence.

This Court has jurisdiction, see, e.g., Smith v. State, 400 So.2d 956, 960 (Fla.

1981), because the fundamental constitutional errors challenged herein arise in the

context of a capital case in which this Court heard and denied Mr. Deparvine's direct

appeal. Baggett v. Wainwright, 229 So.2d 239, 243 (Fla. 1969); cf Brown v.

Wainwright, 392 So.2d 1327 (Fla. 1981). This Court has plenary jurisdiction over

death penalty cases. Art. V, § 3(b)(1), Fla. Const.; Orange County v. Williams, 702

So. 2d 1245 (Fla. 1997).

This Court has the inherent power to do justice. The ends ofjustice call on the

Court to grant the relief sought in this case, as the Court has done in similar cases in

the past. The petition pleads claims involving fundamental constitutional error. See

Dallas v. Wainwright, 175 So.2d 785 (Fla. 1965); Palmes v. Wainwright, 460 So.2d

1

362 (Fla. 1984). This Court's exercise of its habeas corpus jurisdiction and of its

authority to correct constitutional errors is warranted in this action.

STATEMENT OF THE CASE AND FACTS1

William Deparvine (appellant) was charged by indictment for the Hillsborough

County murders of Richard and Karla Van Dusen, as well as armed kidnaping (two

counts), and armed carjacking (one count) ROA 1/71-74. The two murder counts

allege only that appellant "did unlawfully and feloniously kill a human being" by

shooting him with a firearm (as to Richard Van Dusen) and by shooting her with a

firearm and/or stabbing her with a sharp object (as to Karla Van Dusen); the

indictment contains no allegation by the grand jury either that the killings were

premeditated or that they occurred during the commission of an enumerated felony

ROA 1/71.

Appellant was found guilty of two counts of first degree murder and one count

of carjacking ROA 13/2299-2302; ROA 40/3737. Following the penalty phase, the

jury returned two 8-4 death recommendations. ROA 14/2412-13; ROA 41/3930-31.

Finding four aggravating factors and giving little weight to mitigating factors, the

judge imposed sentences of death ROA 15/2558- 62.

' References to the 2006 record on appeal are designated "ROA vol/page."

2

On appeal to this Court, Mr. Deparvine raised the following issues:

ISSUE I THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE, UNDER THE "SPONTANEOUS STATEMENT" HEARSAY EXCEPTION, EVIDENCE OF OUT-OF-COURT STATEMENTS MADE BY KARLA VAN DUSEN DURING A TELEPHONE CONVERSATION WITH HER MOTHER, BILLIE FERRIS.

A. Billie Ferris' hearsay testimony in the context of the circumstantial evidence B. Billie Ferris' testimony and the defense objections thereto C. Karla's statements in the phone conversation with her mother (1) were hearsay; (2) were introduced for the truth of the matters asserted; and (3) were not admissible under the "spontaneous statement" exception of Florida's evidence code D. Karla's statements were not admissible under any of the alternative theories suggested by the prosecutor, such as the "state of mind" exception; or "to show a logical sequence of events"; or "to prove or explain subsequent conduct" E. Harmful Error

ISSUE II APPELLANT WAS TRIED UNDER A CAPITAL INDICTMENT WHICH WAS FATALLY, FUNDAMENTALLY, AND JURISDICTIONALLY DEFECTIVE, WHERE THE COUNTS PURPORTING TO CHARGE FIRST-DEGREE MURDER FAILED TO ALLEGE EITHER PREMEDITATIONOR FELONY MURDER.

ISSUE III THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR, AND CONSTRUCTIVELY AMENDED THE GRAND JURY INDICTMENT, BY GIVING THE JURY THE OPTION TO CONVICT APPELLANT OF PREMEDITATED MURDER

ISSUE IV THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE CARJACKING; IN ADDITION THE TRIAL COURT COMMITTED

3

FUNDAMENTAL ERROR BY FAILING TO ENSURE JURY UNANIMITY ON THE CARJACKING COUNT, WHERE THE INDICTMENT AND INSTRUCTIONS FAILED TO SPECIFY WHICH VEHICLE - - THE JEEP CHEROKEE OR THE CHEVY PICKUP TRUCK - - WAS THE SUBJECT OF THE ALLEGED CARJACKING.

ISSUE V THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE EXCESSIVE AND UNDULY EMOTIONAL "VICTIM IMPACT" EVIDENCE, WHICH DOMINATED THE PENALTY PROCEEDING AND RENDERED IT FUNDAMENTALLYUNFAIR

A. Presentation of Excessive and/or Unduly Emotional Victim Impact Evidence Violates the Fourteenth Amendment of the U.S. Constitution And is Improper under the Balancing Provision of Florida's Evidence Code B. Defense Objections to the Victim Impact Evidence in Appellant's Penalty Trial. C. The Victim Impact Testimony D. The Emotionally Charged Victim Impact Testimony Dominated the Penalty Phase and Compromised its Fundamental Fairness E. The Emotionally Inflammatory Victim Impact Evidence Should Also have Been Excluded or Curtailed Under §90.403 of Florida's Evidence Code

ISSUE VI THE TRIAL COURT ERRED, AND VIOLATED THE APPLICABLE CONSTITUTIONAL STANDARD, BY EXCLUDING FOR CAUSE JUROR DARYL RUCKER, WHOSE VIEWS ON THE DEATH PENALTY WOULD NOT HAVE PREVENTED OR IMPAIRED THE PERFORMANCE OF HIS DUTIES AS A JUROR IN ACCORDANCE WITH HIS OATH AND THE COURT'S INSTRUCTIONS.

ISSUE VII FLORIDA'S CAPITAL SENTENCING SCHEME, WHICH EMPHASIZES THE ROLE OF THE CIRCUIT JUDGE OVER THE TRIAL JURY IN THE DECISION TO IMPOSE A SENTENCE OF DEATH, IS CONSTITUTIONALLYINVALID UNDER RING V. ARIZONA, 536 U.S. 584 (2002)

4

ISSUE VIII THE TRIAL COURT'S SENTENCING ORDER IS DEFECTIVE FOR FAILURE TO CLEARLY INDICATE WHAT MITIGATING CIRCUMSTANCES HE FOUND.

This Court affirmed the conviction and sentence. Deparvine v. State, 955 So.2d

351 (Fla. 2008). Justice Lewis, Quince, J., concurring, dissented to the majority's

reasoning which sustained the admission of some of the hearsay statements Karla Van

Dusen's mother testified to at trial.

Mr. Deparvine filed his motion for postconviction relief in the circuit court. An

evidentiary hearing was held and the circuit court denied all relief.

GROUNDS FOR RELIEF

Significant errors which occurred at Mr. Wheeler's capital trial and sentencing

were not presented to this Court on direct appeal due to the ineffective assistance of

appellate counsel. The issues, which appellate counsel neglected, demonstrate that

counsel's performance was deficient and that the deficiencies prejudiced Mr. Wheeler.

"[E]xtant legal principles...provided a clear basis for ... compelling appellate

argument[s]." Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fla. 1986). Neglecting

to raise fundamental issues such as those discussed herein "is far below the range of

acceptable appellate performance and must undermine confidence in the fairness and

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correctness of the outcome." Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla.

1985). Individually and "cumulatively," Barclay v. Wainwright, 444 So.2d 956, 959

(Fla. 1984), the claims appellate counsel omitted establish that "confidence in the

correctness and fairness of the result has been undermined." Wilson, 474 So.2d at

1165.

CLAIM I

MR. DEPARVINE RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO COUNSEL'S FAILURE TO MAKE SPECIFIC CLAIMS REGARDING FUNDAMENTAL ERROR AND A DENIAL OF DUE PROCESS FOR CONVICTION FOR CARJACKING.

Count Five of the indictment only described the object of the alleged carjacking

as "a motor vehicle." ROA 1/72-73. Two motor vehicles were involved in this case:

a truck Mr. Deparvine sought to acquire from the victims, and a Jeep belonging to the

victims. Which of the two vehicles was the subject of the indictment was never

specified.

At the motion for judgment of acquittal at the close of the State's case, the

defense argued that the indictment was ambiguous and acquittal should be entered for

the failure to adequately charge an offense. ROA 37A/3081-83. In the first portion

of the argument, the State argued that the truck was the subject of the robbery, and

6

that the Jeep was the object of the taking. ROA 37A/3089-90. "The actual ... the

actual taking of the Jeep is the actual carjacking." ROA 37A/3071.

THE COURT: You just said - a minute ago you just said the robbery of the truck. Now, earlier you said it was a robbery of the SUV.

MR. PRUNER: Well, let me see if I can articulate it. The ultimate goal is the unlawful taking ­

COURT: Of the truck. PRUNER: - of the truck. To obtain that ultimate goal, he

necessarily has to hijack the SUV to get back to the truck.

ROA 37A/3097-98.

THE COURT: He had to carjack the SUV to do the crime of stealing the truck.

PRUNER: Right.

ROA 37A/3100.

MR. PRUNER: I mean that's the murder scene right there. The taking was done - remember he had to cut Karla Van Dusen out of the seat. So that taking was done at the time they were shot and she was removed from the car contemporaneous with and she's stabbed in the front.

ROA 37A/3102.

Based on the State's representations, i.e. that the Jeep was the object of the

carjacking, the court denied the motion. ROA 37A/3109.

Prosecutor Pruner was the only person at the bench who knew what evidence

and theory he presented to the grand jury. Presumably, he argued at trial consistently

7

with what he presented tp the grand jury, i.e. the Jeep was the object of the carjacking

charge.

Having survived the motion for acquittal on the theory that the Jeep was the

object of the carjacking charge, the State turned around in closing argument and,

virtually ignoring the Jeep, argued to the jury that Mr. Deparvine killed the Van

Dusens because he wanted to get the truck, no matter what it took. ROA 40/3661.

3705.

This Court held in the direct appeal that the evidence was sufficient to sustain

a conviction for carjacking the truck. However, this Court also rejected the claim that

the indictment was faulty:

Initially, we reject any claim that the indictment insufficiently described the motor vehicle that was the subject of the carjacking. Deparvine did not attack the indictment on this ground in the trial court.

Deparvine v. State, 995 So.2d 351, 374 (Fla. 2008). While trial counsel's ineffective

assistance for failure to raise the insufficiency of the indictment is a matter for the

contemporaneously filed appeal from denial of Mr. Deparvine's 3.851 motion,

appellate counsel should have presented the indictment issue as fundamental error

and denial of due process, and his failure to do so was ineffective assistance.

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the

8

constitutional rights of every accused in a criminal proceeding in all courts, state or federal. . . .It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.

Cole v. Arkansas, 333 U.S. 196, 201 (1948).

The Cole Court cited to DeJonge v. Oregon, 299 U.S. 353, 362 (1937):

Conviction upon a charge not made would be sheer denial of due process.

This Court has stated:

The constitution (Declaration of Rights, § 11) guarantees to every accused person ... the right to know 'the nature and cause of the accusation against him,' and it necessarily follows that the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.

Penny v. State, 191 So. 190, 193 (Fla. 1939).

This is a case where the grand jury indicted the petitioner for carjacking a Jeep,

as related by the prosecutor to the court in the argument on the motion for judgement

of acquittal. Then, by exploiting the obviously deliberate ambiguity of the indictment,

the State was able to turn around and argue the truck as the object of the carjacking.

Defense counsel was blind-sided, never able to argue the legitimacy let alone the

sufficiency of the evidence to support the truck hijacking in the motion for acquittal,

9

The prosecution's argument at the bench, informing the court that the Jeep was

the object of the carjacking charge, was the equivalent to filing a bill of particulars.

The State should have been held to its election of the Jeep. The defense framed its

case in light of the representation that the Jeep was the vehicle at issue.

Conviction for carjacking the truck was conviction for a charge never made as

represented by the State in the judgment of acquittal argument.

A conviction based on charge not made by indictment or information is a

nullity. Hodges v. State, 878 So.2d 401 (Fla. 4th DCA 2004); Braggs v. State, 789

So.2d 1151 (Fla. 3d DCA 2001); Ray v. State, 403 So.2d 956 (Fla. 1981); Johson v.

State, 226 So.2d 884 (Fla. 2d DCA 1969). This was a fundamental error that appellate

counsel should have recognized and argued. Instead, without the proper arguments

and citations, this Court denied relief because it had not been raised in the circuit

court. Wrongful conviction for the carjacking tainted the convictions for murder to

the extent the carjacking supported the felony murder element.

CLAIM TWO

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AND ARGUE THAT PETITIONER COULD NOT BE GUILTY OF CARJACKING THE TRUCK BECAUSE THE VAN DUSENS DID NOT HAVE "CUSTODY" OF THE TRUCK AT THE TIME IT WAS ALLEGEDLY TAKEN.

10

Section 812.133(1), Florida's carjacking statute, has as an element the taking

of the vehicle "from the person or custody of another." Custody requires the property

be sufficiently under the victim's control to have been in a position to have prevented

the taking. Jones v. State, 562 So.2d 346 (Fla. 1995).

The State's evidence and theory of the case was that the Van Dusens arrived

in the area where they eventually died in the early evening. The medical examiner

estimated time of death as sometime after 10:30 p.m., ROA 29/1998, and a local

witness said she heard what sounded like 3-4 firecrackers about 2:30 a.m. ROA

34/2666-67.

There was no evidence the Van Dusens were confined or imprisoned, resulting

in a judgment of acquittal on the kidnaping charges. ROA 37A/2009-10. The site of

the murders was more than a mile from where the Jeep was abandoned, at Artistic

Doors.. ROA 31/2184. The State's theory was that the truck was left at Artistic Doors,

Mr. Van Dusen and Mr. Deparvine got into the Jeep and left the truck. Later, after the

murders more than a mile away, the State hypothesized that Mr. Deparvine drove the

Jeep back to the truck and drove the truck home. ROA 37A/3098-99.

Assuming, arguendo, the State's theory was correct, the truck had been left at

or near Artistic Doors hours before the killings. The Van Dusens were nowhere

positioned to exercise custody or control over the truck - the truck could have been

11

stolen by a third party or towed for parking on private property and neither the Van

Dusens nor the killer would have known or been in a position to prevent the removal

of the truck.

While the evidence may have been sufficient for felony theft, it was not

sufficient to establish carjacking. Carjacking is more personal than theft - the victim

has custody and control, and the carjacker removes the vehicle from that custody and

control. Felony theft is not an enumerated felony supporting felony murder. Stealing

a truck by fraud may be theft, but it is not carjacking.

Had appellate counsel properly raised and argued this issue, either in the

briefing or in the motion for rehearing, the carjacking conviction would have been

reversed and the felony murder conviction reversed.

CONCLUSION AND RELIEF SOUGHT

Petitioner moves that he be afforded a new trial, a new direct appeal, or for

such relief as this Court may deem proper.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above has been

furnished by e-mail to: Steven Ake at canapp@myfloridalegal.com on October 8,

2012.

/s/ DAVID GEMMER

CERTIFICATE OF COMPLIANCE

This brief is typed in Times New Roman 14 point.

/s/ DAVID GEMMER

Counsel for Appellant

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