Opinion
No. SC04-2066.
February 14, 2007.
Lower Tribunal No. 84-19874C.
David Cook, a prisoner under sentence of death, has appealed the trial court's denial of postconviction relief. Cook was convicted of two counts of first-degree murder and was sentenced to death for one of the murders. See Cook v. State, 542 So. 2d 964, 966 (Fla. 1989). On direct appeal this Court affirmed the convictions but struck the heinous, atrocious, or cruel and avoid arrest aggravators, reversed the death sentence, and remanded for resentencing before the trial judge. Id. at 970, 971. On remand, the trial court re-imposed the death sentence. On direct appeal from resentencing, this Court affirmed the sentence of death. See Cook v. State, 581 So. 2d 141 (Fla. 1991). The denial of Cook's initial motion for postconviction relief was affirmed, except for a claim asserting ineffective assistance of counsel at the penalty phase. See Cook v. State, 792 So. 2d 1197 (Fla. 2001). The Court reversed and remanded for an evidentiary hearing on that issue. Id. The evidentiary hearing was held in September and December of 2003. On September 22, 2004, the trial court denied postconviction relief, finding counsel's performance was
After an independent review of the record, the Court finds that both prongs of the standard outlined in Strickland v. Washington, 466 U.S. 668 (1984), were met in this case. Counsel's performance during the penalty phase was deficient and fell "outside the broad range of reasonably competent performance under prevailing professional standards." Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citing Strickland). Further, there was prejudice to Cook as a result of the deficient performance. Based on the totality of the circumstances surrounding the penalty phase representation, the Court's confidence in the outcome of Cook's penalty phase is undermined.
Therefore, upon consideration, the Court hereby reverses the denial of postconviction relief and remands this cause to the trial court for a new penalty phase before a new judge and jury.
LEWIS, C.J., ANSTEAD, PARIENTE, QUINCE and BELL, JJ., concur. WELLS and CANTERO, JJ., dissent.