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[W] Spencer v. State4/11/2002
As amended April 25, 2002. Petition for rehearing filed April 26, 2002. OPINION WITHDRAWN and new opinion filed January 9, 2003.
DUSTY RAY SPENCER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
DUSTY RAY SPENCER, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT.
An Appeal from the Circuit Court in and for Orange County, Belvin Perry, Judge - Case No. CR92-473
Bill Jennings, Capital Collateral Regional Counsel - Middle, and Eric C. Pinkard, Assistant Ccrc - Middle Region, Tampa, Florida, for Appellant/Petitioner.
Robert A. Butterworth, Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent.
The opinion of the court was delivered by: Per Curiam
Dusty Ray Spencer appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Spencer also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the trial court's denial of post-conviction relief and we deny relief under the habeas petition.
Spencer was convicted of first-degree murder, aggravated assault, aggravated battery, and attempted second-degree murder involving two attacks upon his wife Karen Spencer and his stepson Timothy Johnson. Karen was killed during the second attack. The facts surrounding these crimes are discussed in Spencer v. State, 645 So. 2d 377, 379-80 (Fla. 1994). The jury recommended a death sentence by a seven-to-five vote. The trial judge found three aggravating circumstances (a previous violent felony conviction based on the contemporaneous convictions; the murder was heinous, atrocious, or cruel (HAC); and the murder was cold, calculated, and premeditated (CCP)), no statutory mitigating circumstances, and one non-statutory mitigating circumstance (Spencer's history and background). The trial judge followed the jury's recommendation and imposed death. Spencer was also sentenced to five years for aggravated assault, fifteen years for attempted second-degree murder, and fifteen years for aggravated battery, with the sentences to run consecutively for a total of thirty-five years.
On direct appeal, Spencer raised seven issues. He argued that: the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to establish premeditation; his motion to sever charges relating to the previous "iron incident" was improperly denied; his objections to the standard jury instructions on premeditation and reasonable doubt were improperly denied; the trial court should have granted his motion for mistrial based upon the prosecutor's improper argument regarding matters not in evidence; the State's use of hearsay testimony violated his rights to due process and to confront and cross examine witnesses; his death sentence had been impermissibly imposed because the trial court considered improper aggravating circumstances, excluded existing mitigating circumstances, and did not properly weigh the circumstances; and Florida's death penalty statute is unconstitutional. This Court affirmed Spencer's convictions, but vacated his death sentence because the trial court improperly found the CCP aggravating circumstance and improperly rejected the statutory mitigating circumstances of "committed while the defendant was under the influence of extreme mental or emotional disturbance" and "substantial impairment of the defendant's capacity to appreciate the cri
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