Post by CCADP on May 13, 2005 13:36:57 GMT -5
458 U.S. at 789. The Court in Enmund then surveyed the laws of each state legislature to determine the position of each as to the execution of one convicted of felony-murder, but who did not kill, attempt to kill, or intend to kill. The Court concluded:
Thus only a small minority of jurisdicitions--eight--allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances--which often include the defendant’s minimal participation in the murder--only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances.
458 U.S. at 793. Thus, the fact that a total of seventeen (17) states may have statutorily permitted the execution of an accessory to felony-murder did not preclude a finding of a national consensus given the obvious trend between 1978 and 1982.
This Court determined in Brennan v. State, 754 So. 2d 1, 30 (Fla. 1999), that the execution of a defendant for acts committed under the age of seventeen (17) violated the Florida Constitution. Yet now in light of Ring, the definition of capital first degree murder includes those acts that established the basis of the aggravating circumstance of previously convicted of a crime of violence. By virtue of Ring, the State’s reliance on a crime committed by a defendant at the age of 15 years-old violates the Eighth Amendment. Thompson v. Oklahoma, 487 U.S. 815 (1988).
The State introduced and relied upon criminal acts committed by Mr. Moore when he was fifteen years old in order to obtain a sentence of death. To the extent that the State contends that the use of such a conviction in violation of Thompson v. Oklahoma, and Brennan v. State, was harmless because of the introduction of another conviction for aggravating assault arising from actions committed by Mr. Moore when he was seventeen years old, such an argument first ignores that the statutory question is whether the aggravating circumstance is "sufficient" to justify the imposition of a death sentence. Section 921.141(2), Fla. Stat. Moreover, the United States Supreme Court has granted a writ of certiorari to determine whether the death penalty can be imposed for criminal acts committed by a defendant under the age of eighteen. Roper v. Simmons, 124 S.Ct. 1171 (2004).
Mr. Moore’s death sentence violates the prohibition against imposing a death sentence for acts committed before the age of seventeen. Brennan. This Court should vacate that death sentence.
CONCLUSION AND RELIEF REQUESTED
Mr. Moore, through counsel, respectfully urges that the Court issue its Writ of Habeas Corpus and vacate his unconstitutional convictions and sentence of death.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Petition for a Writ of Habeas Corpus has been furnished by United States Mail, first class postage prepaid, to Meredith Charbula, Assistant Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050 on May ___, 2004.
MARTIN J. MCCLAIN
Attorney at Law
Florida Bar No. 0754773
141 NE 30th Street
Wilton Manors, FL 33334
(305) 984-8344
COUNSEL FOR PETITIONER
CERTIFICATE OF FONT
This petition is typed in Courier 12 point not proportionately spaced.
MARTIN J. MCCLAIN
Thus only a small minority of jurisdicitions--eight--allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances--which often include the defendant’s minimal participation in the murder--only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances.
458 U.S. at 793. Thus, the fact that a total of seventeen (17) states may have statutorily permitted the execution of an accessory to felony-murder did not preclude a finding of a national consensus given the obvious trend between 1978 and 1982.
This Court determined in Brennan v. State, 754 So. 2d 1, 30 (Fla. 1999), that the execution of a defendant for acts committed under the age of seventeen (17) violated the Florida Constitution. Yet now in light of Ring, the definition of capital first degree murder includes those acts that established the basis of the aggravating circumstance of previously convicted of a crime of violence. By virtue of Ring, the State’s reliance on a crime committed by a defendant at the age of 15 years-old violates the Eighth Amendment. Thompson v. Oklahoma, 487 U.S. 815 (1988).
The State introduced and relied upon criminal acts committed by Mr. Moore when he was fifteen years old in order to obtain a sentence of death. To the extent that the State contends that the use of such a conviction in violation of Thompson v. Oklahoma, and Brennan v. State, was harmless because of the introduction of another conviction for aggravating assault arising from actions committed by Mr. Moore when he was seventeen years old, such an argument first ignores that the statutory question is whether the aggravating circumstance is "sufficient" to justify the imposition of a death sentence. Section 921.141(2), Fla. Stat. Moreover, the United States Supreme Court has granted a writ of certiorari to determine whether the death penalty can be imposed for criminal acts committed by a defendant under the age of eighteen. Roper v. Simmons, 124 S.Ct. 1171 (2004).
Mr. Moore’s death sentence violates the prohibition against imposing a death sentence for acts committed before the age of seventeen. Brennan. This Court should vacate that death sentence.
CONCLUSION AND RELIEF REQUESTED
Mr. Moore, through counsel, respectfully urges that the Court issue its Writ of Habeas Corpus and vacate his unconstitutional convictions and sentence of death.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Petition for a Writ of Habeas Corpus has been furnished by United States Mail, first class postage prepaid, to Meredith Charbula, Assistant Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050 on May ___, 2004.
MARTIN J. MCCLAIN
Attorney at Law
Florida Bar No. 0754773
141 NE 30th Street
Wilton Manors, FL 33334
(305) 984-8344
COUNSEL FOR PETITIONER
CERTIFICATE OF FONT
This petition is typed in Courier 12 point not proportionately spaced.
MARTIN J. MCCLAIN