The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.
HERRING, Ted (B/M)
DC # 082284
DOB: 07/02/61
Seventh Judicial Circuit, Volusia County Case # 81-1957
Sentencing Judge: The Honorable S. James Foxman
Trial Attorney: Peyton Quarles – Assistant Public Defender
Attorney, Direct Appeal: Michael Becker – Assistant Public Defender
Collateral Attorney: Jeremy Epstein, John Hamilton, & Leon Handley – Private
Date of Offense: 05/29/81
Date of Sentence: 03/01/82
Circumstances of the Offense:
On May 29th, 1981, a customer entered a convenience store in Daytona Beach shortly after 3 a.m. and found the store clerk’s dead body lying on the floor behind the front register counter. A newspaper distribution man arrived at the store shortly after the customer and together, they called the police. When the police arrived, they discovered a hold-up note requesting money. The store clerk was shot three times and the medical examiner testified that the clerk was only alive for about one minute after he was shot. The total amount missing from the cash register was $23.34.
Two weeks after the aforementioned robbery and murder, Herring was observed entering and exiting a car that had been stolen in a different convenience store robbery. Herring was subsequently arrested and taken to the Daytona Beach Police Department where he was interrogated. Herring was questioned about several other robberies, including the robbery on May 29th. Herring claimed in his first statement that he had premeditated the robbery and prepared a hold-up note, but things did not go as planned. He stated that when he was approaching the counter, a different man proceeded to the counter with a gun and asked the clerk for money. Once the money was given to him, he demanded that the clerk lie on the floor. Herring claims that as all of this was occurring, he backed down the aisle looking for cover, and then the other man shot and killed the clerk and promptly left the store. This statement was taped.
An investigating officer testified that Herring asked to speak with him privately after he made his first statement. Herring admitted to the officer that he did indeed kill the clerk and that the story he had just told them was false. Herring also told the officer that he shot the clerk a second time to keep him from testifying against him. Herring denied at trial that the conversation ever took place.
Herring made a third statement later in the investigation, which was also taped. This time, Herring stated that upon entering the store, he asked the clerk for cigarettes, and then gave him the hold-up note. Herring said that the clerk made a movement that looked as if he was going to grab for the gun. Herring then admitted to shooting the clerk once in the head and a second time when he hit the floor.
During trial, Herring testified that the last statement was made only to appease the police officers because they were harassing him. Herring did testify that he wrote the hold-up note and experts identified his fingerprints on the note.
Additional Information:
Herring was found guilty of a May 11th, 1981 robbery and sentenced to 25 years in prison.
Trial Summary:
06/30/81 Defendant indicted with the following:
Count I: First-Degree Murder
Count II: Robbery with a Deadly Weapon
02/25/82 Defendant was found guilty by the trial jury on both counts
02/26/82 The jury recommended Death by a vote of 8 to 4
03/03/82 Defendant was sentenced as follows:
Count I: First-Degree Murder – Death
Count II: Robbery with a Deadly Weapon – 99 years
Appeal Summary:
Florida Supreme Court – Direct Appeal
FSC #61,994
446 So. 2d 1049
04/26/82 Appeal filed.
02/02/84 FSC affirmed the conviction of First-Degree Murder and the sentence of Death.
04/11/84 Rehearing denied.
United States Supreme Court – Petition for Writ of Certiorari
USSC #83-6921
469 U.S. 989
06/11/84 Petition filed.
11/05/84 Petition denied.
State Circuit Court – 3.850 Motion
CC #81-1957
04/04/85 Motion filed.
07/24/85 Motion denied.
Florida Supreme Court – 3.850 Appeal
FSC #67,524
501 So. 2d 1279
08/15/85 Appeal filed.
12/30/86 Trial court’s decision was affirmed.
03/02/87 Rehearing denied.
Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC #70,185
528 So. 2d 1176
03/10/87 Petition filed.
06/23/88 Petition denied.
08/25/88 Rehearing denied.
United States District Court (Middle District) – Petition for Writ of Habeas Corpus
USDC #88-791
09/09/88 Petition filed.
02/16/89 Petition dismissed.
State Circuit Court – 3.850 Motion
CC #81-1957
03/10/89 Motion filed.
11/05/89 Motion denied.
12/01/89 Rehearing denied.
Florida Supreme Court – 3.850 Appeal
FSC #75,209
580 So. 2d 135
12/26/89 Appeal filed.
05/02/91 Remanded to circuit court for evidentiary hearing.
06/12/91 Rehearing denied.
06/12/91 Mandate issued.
State Circuit Court – 3.850 Motion (On remand)
CC #81-1957
12/18/92 Evidentiary Hearing held, relief denied.
Florida Supreme Court – 3.850 Appeal
FSC #81,649
676 So. 2d 369
04/26/93 Appeal filed.
03/07/96 Denial of 3.850 vacated, remanded to circuit court.
07/10/96 Rehearing denied.
08/09/96 Mandate issued.
State Circuit Court – 3.850 Motion (On remand)
CC #81-1957
08/09/96 Motion filed.
01/31/97 Motion denied.
Florida Supreme Court – 3.850 Appeal
FSC #89,937
730 So. 2d 1264
02/21/97 Appeal filed.
09/24/98 Trial court’s denial of 3.850 affirmed.
01/14/99 Rehearing denied.
02/15/99 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
USSC #98-1493
527 U.S. 1003
03/18/99 Petition filed.
06/14/99 Petition denied.
United States District Court (Middle District) – Petition for Writ of Habeas Corpus
USDC #99-1413
11/03/99 Petition filed.
04/14/03 Petition denied.
United States Court of Appeals, 11th Circuit – Habeas Appeal
USCA #03-12598
397 F. 3d 1338
05/14/03 Appeal filed.
01/31/05 USCA affirmed denial of Petition.
04/06/05 Mandate issued.
Circuit Court – 3.851 Motion
CC #81-1957
(Pending)
06/20/03 Motion filed.
11/03/05 Evidentiary Hearing held.
Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC #03-1144
862 So. 2d 727
06/24/03 Petition filed.
12/10/03 Petition denied.
United States Supreme Court – Petition for Writ of Certiorari
USSC# 03-1144
541 U.S. 1042
03/09/04 Petition filed.
05/17/04 Petition denied.
United States Supreme Court – Petition for Writ of Certiorari
USSC# 05-16
126 S. Ct. 171
06/27/05 Petition filed.
10/03/05 Petition denied.
Florida Supreme Court – State 3.850 Appeal
FSC# 09-2200
(Pending)
12/02/09 Appeal filed.
Factors Contributing to the Delay in Imposition of Sentence:
The number of appeals and the time required to process each one has contributed to the delay. In addition, the procedural errors made during the 3.850 resulted in remanding the case.
Case Information:
A Direct Appeal was filed with the Florida Supreme Court (FSC) on 04/26/82. Some of the issues raised included: (1) whether the trial court erred by excusing one of the prospective jurors for cause; (2) whether the trial court erred by refusing to allow testimony by attorneys who represented other murder defendants in similar cases that were able to obtain life sentences. The FSC found all of the claims either without merit or harmless and affirmed the conviction and sentence of death on 02/02/84.
A Petition for Writ of Certiorari was filed with the United States Supreme Court (USSC) on 06/11/84 and denied on 11/05/84.
A 3.850 motion was filed with the circuit court on 04/04/85 and denied on 07/24/85.
A 3.850 Appeal was filed with the FSC on 08/15/85. The FSC deemed that all of the issues raised were improper for a 3.850 Appeal and thus affirmed the trial court’s denial of relief on 12/30/86.
A Petition for Writ of Habeas Corpus was filed with the FSC on 03/10/87. Issues raised included: (1) whether the trial court erred in allowing the admission of statements made by Herring to a probation officer while in custody; (2) whether the cold, calculated, and premeditated aggravating circumstance applied to Herring’s case. The FSC found all of the claims either without merit or harmless, thus denying the Habeas Corpus on 06/23/88.
A Petition for Writ of Habeas Corpus was filed with the United States District Court on 09/09/88, but the petition was dismissed on 02/16/89.
A 3.850 was filed with the circuit court on 03/10/89 and denied on 11/05/89.
A 3.850 Appeal was filed with the FSC on 12/26/89. The FSC remanded the case to the circuit court for an evidentiary hearing on the grounds of whether Herring’s public defender’s service as a special duty sheriff affected his ability to provide effective legal assistance. Relief was denied on all other grounds on 05/02/91.
Another 3.850 Appeal was filed with the FSC on 04/26/93. The circuit court’s denial of the 3.850 was vacated on 03/07/96. The FSC determined the trial court erred in not allowing Herring an individual hearing in addition to other due process violations.
The circuit court received the 3.850 on remand on 08/09/96 and denied the motion on 01/31/97.
A 3.850 Appeal was filed with the FSC on 02/21/97. The FSC affirmed the trial court’s denial of the 3.850 on 09/24/98.
A Petition for Writ of Certiorari was filed with the USSC on 03/18/99 and denied on 06/14/99.
A Petition for Writ of Habeas Corpus was filed with the USDC on 11/03/99 and denied on 04/14/03.
A Habeas Appeal was filed with the United States Court of Appeals on 05/14/03. On 01/31/05, the USCA affirmed the denial of the Petition.
A 3.851 Motion was filed with the circuit court on 06/20/03, and an Evidentiary Hearing was held on 11/02/05. The motion is currently pending.
A Petition for Writ of Habeas Corpus was filed with the FSC on 06/24/03 and was denied on 12/10/03.
A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 03/09/04 and denied on 05/17/04.
A Petition for Writ of Certiorari was filed with the U.S. Supreme Court on 06/27/05 that was denied on 10/03/05.
On 11/24/09 the Circuit Court filed a Final Order Vacating Sentence of Death.
3.850 Appeal was filed by the State with the Florida Supreme Court on 12/03/09. This appeal is pending.
Institutional Adjustment:
THE FOLLOWING ENTRIES REFLECT DISCIPLINARY ACTIONS AGAINST THE INMATE
FOR VIOLATION OF THE RULE CITED AND INDICATE THE GAIN TIME DAYS LOST.
DATE DAYS VIOLATION LOCATION
02/07/83 0 FIGHTING CENTRAL OFFICE
02/08/83 0 DISORDERLY CONDUCT CENTRAL OFFICE
04/18/85 30 DISOBEYING ORDER FLORIDA STATE PRISON
08/03/92 0 DISOBEYING ORDER FLORIDA STATE PRISON
11/29/95 0 UNAUTH USE OF DRUGS UNION C. I.
12/25/95 0 POSS OF CONTRABAND UNION C. I.
04/09/97 0 DISOBEYING ORDER UNION C. I.
________________________________________________________________________
Report Date: 01/25/02 cc
Approved: 02/13/02 ws
Updated: 02/03/10 CAR