The Commission on Capital Cases updates thisinformation regularly. This information; however, is subject to changeand may not reflect the latest status of an inmate’s case and should not berelied upon for statistical or legal purposes.
STEWART, Kenneth Allen (W/M)
DOB: 08/26/63
Thirteenth Judicial Circuit, Hillsborough County Case # 85-4825
Sentencing and Resentencing Judge: The Honorable John P.Griffin
Attorney, Trial and Resentencing: Rex M. Barbas –Court-appointed
Attorney, Direct Appeal: Douglas S. Connor – AssistantPublic Defender
Attorneys, Collateral Appeals: Robert Norgard – Registry
Date of Offense: 04/14/85
Date of Sentence: 10/03/86
Circumstances of Offense:
On 10/03/86, Kenneth Allen Stewart was sentenced to deathfor the first-degree murder of Mark Harris, 15 years for the attemptedfirst-degree murder of Michele Acosta, 27 years for armed robbery, and 15 yearsfor arson.
On the evening of 04/14/85, Stewart was hitchhiking and waspicked up by Michele Acosta, who was driving with Mark Harris. Stewartclimbed into the back seat and requested a location to be dropped off. When Acosta stopped at the desired location, Stewart struck Acosta on the headwith the end of his gun and fired three gunshots. Acosta suffered agunshot wound to the shoulder and Harris suffered a gunshot wound to thespine.
Stewart forced Acosta and Harris out of the car and drove topick up his friend, Terry Smith. The two men removed items found in thetrunk of the car, and Stewart set the car on fire after telling Smith that thecar belonged to a woman and man whom he shot.
Some time later, Stewart was arrested and immediatelycharged. Stewart allowed officers to search his apartment, which yieldeditems he and Smith had taken from Acosta’s car. Investigators presentedphotographs of potential suspects to Acosta and Harris. Acosta, who hadrecovered from her injuries, identified Stewart as the attacker. Harris,who was dying from his injury, also identified Stewart as his attacker, anddied shortly afterward.
During trial, Acosta testified as a surviving victim. Smith served as a secondary witness and testified that Stewart admitted to theshootings and provided details of the offense.
Codefendant Information:
There is no evidence that Terry Smith was an accessory tothe crimes; therefore, he was not charged.
Additional Information:
A few days after the hitchhiking incident, Stewart shot aconvenience store worker, James Harville, in the head, between the eyes. Harville survived his injury and served as a trial witness.
Stewart is also sentenced to death for the 12/06/84 murderof Ruben Diaz (CC# 85-5667).
Prior Incarceration History in the State of Florida:
| Offense Date | Offense | Sentence Date | County | Case No. | Prison Sentence Length | | |
| 04/20/1980 | BURG/DWELL/OCCUP. CONVEY | 12/23/1980 | HILLSBOROUGH | 8004283 | 3Y 0M 0D | | |
| 04/21/1980 | GRAND THEFT MOTOR VEHICLE | 12/23/1980 | HILLSBOROUGH | 8004284 | 3Y 0M 0D | | |
| 10/12/1980 | BURG/DWELL/OCCUP. CONVEY(ATTEMPTED) | 12/23/1980 | HILLSBOROUGH | 8008816 | 2Y 6M 0D | | |
| 10/12/1980 | BURGLARY TOOLS-POSSESS | 12/23/1980 | HILLSBOROUGH | 8008816 | 2Y 6M 0D | | |
Prior Community Supervision History in the State ofFlorida:
| Offense Date | Offense | Sentence Date | County | Case No. | Community Supervision Length | | |
| 04/20/1980 | BURG/DWELL/OCCUP. CONVEY | 12/23/1980 | HILLSBOROUGH | 8004283 | 0Y 7M 14D | | |
| 04/21/1980 | GRAND THEFT MOTOR VEHICLE | 12/23/1980 | HILLSBOROUGH | 8004284 | 0Y 7M 14D | | |
| 10/12/1980 | BURG/DWELL/OCCUP. CONVEY(ATTEMPTED) | 12/23/1980 | HILLSBOROUGH | 8008816 | 0Y 7M 14D | | |
| 10/12/1980 | BURGLARY TOOLS-POSSESS | 12/23/1980 | HILLSBOROUGH | 8008816 | 0Y 7M 14D | | |
| 09/05/1983 | CARRYING CONCEALED FIREARM | 11/08/1983 | HILLSBOROUGH | | 5Y 5M 9D | | |
Trial Summary:
05/22/85 Indicted as follows:
Count I: First-Degree Murder (Mark Harris)
Count II: Attempted First-DegreeMurder (Michele Acosta)
Count III: Armed Robbery
Count IV: Arson
08/27/86 Jury returned guilty verdicts on all counts of the indictment.
08/27/86 Jury recommended death by a vote of 10-2.
10/03/86 Sentenced as follows:
Count I: First-Degree Murder (Felony Murder) – Death
Count II: AttemptedFirst-Degree Murder – Life
Count III: Armed Robbery – 27 Years
CountIV: Arson – 15 Years
12/05/89 Remand hearing held before Judge Griffin for first-degree murder and armedrobbery convictions.
Appeal Summary:
Florida Supreme Court – Direct Appeal
FSC# 70,015
549 So. 2d 171
02/09/87 Appeal filed.
08/31/89 FSC affirmed convictions and death sentence, but reversed life sentence for attemptedfirst-degree murder and remanded for written findings of fact.
09/15/89 Motion for rehearing filed.
11/16/89 Rehearing denied and mandate issued.
U.S. Supreme Court – Petition for Writ of Certiorari
USSC# 91-7505
503 U.S. 976
03/02/92 Petition filed.
04/06/92 USSC denied petition.
State Circuit Court – 3.850 Motion
CC# 85-4825
09/02/93 Motion filed.
04/08/94 Motion amended.
01/27/95 Motion amended.
09/17/96 Motion amended.
08/04/97 Motion denied in part.
12/17/98 Evidentiary Hearing held.
03/19/99 Evidentiary Hearing held.
06/25/99 Circuit Court denied motion.
Florida Supreme Court – 3.850 Motion Appeal
FSC# 96,177
801 So. 2d 59
07/21/99 Appeal filed.
09/20/01 FSC affirmed denial of motion.
05/28/04 Motion for Rehearing filed.
11/26/01 Rehearing denied.
12/31/01 Mandate issued.
Florida Supreme Court – Petition for Writ of HabeasCorpus
FSC# 02-2716
880 So. 2d 529
01/10/03 Petition filed.
05/13/04 FSC denied petition.
08/10/04 Rehearing denied.
Florida Supreme Court – Petition for Writ of HabeasCorpus
FSC# 04-1241
905 So. 2d 126
06/21/04 Petition filed.
03/18/05 FSC denied petition.
05/26/05 Rehearing denied.
U.S. District Court, Middle District – Petition forWrit of Habeas Corpus
USDC #05-1022
05/31/05 Petition filed.
07/13/05 Amended petition filed.
02/06/06 USDC denied petition.
U.S. Court of Appeals, 11th Circuit – Petition forWrit of Habeas Corpus Appeal
USCA# 06-11684
476 F.3d 1193
03/09/06 Appeal filed.
01/31/07 USCA affirmed denial of petition.
03/01/07 Mandate issued.
Factors Contributing to the Delay in Imposition ofSentence:
On Stewart’s direct appeal, the Florida Supreme Courtaffirmed all convictions and his death sentence but reversed and remanded thelife sentence imposed for the attempted first-degree murder count and remandedfor written findings of fact for the death sentence.
On Stewart’s direct appeal (resentencing), the FloridaSupreme Court affirmed the life sentence for the attempted first-degree murderconviction, but reversed and remanded his conviction of armed robbery.
Case Information:
Stewart filed a direct appeal to the Florida Supreme Courton 02/09/87. There were several issues raised. First, Stewart claimedthat his “right to be secure against any unreasonable interception of privatecommunications by any means” was violated as police investigators recorded atelephone conversation between him and his grandmother, in which Stewartallegedly admitted to shooting Acosta and Harris. Second, Stewart claimedthat evidence of that conversation was obtained in violation of his SixthAmendment right to counsel. Third, Stewart claimed that Harris’ fathershould not have been allowed to address the judge during the sentencingstage. Fourth, Stewart claimed that the trial court erred in failing toprovide written findings in support of its imposition of the deathpenalty. Finally, Stewart claimed the trial court erred by failing togive written reasons for departing from the guidelines where it imposed lifeimprisonment on the attempted murder count. On 08/31/89, the Courtaffirmed the death sentence, but reversed the life sentence for attemptedfirst-degree murder and remanded for written findings of fact for the deathsentence.
Stewart filed a petition for a Writ of Certiorari to theU.S. Supreme Court on 03/02/92, which was denied on 04/06/92.
On 09/02/93, Stewart filed a 3.850 Motion to the CircuitCourt, and amended the motion on 04/08/94, 01/27/95, and 09/17/96. On08/04/97, the motion was denied in part. Evidentiary Hearings were heldon 12/17/98 and 03/19/99. On 06/25/99, the CircuitCourt denied the motion.
Stewart appealed his 3.850 motion denial to the FloridaSupreme Court on 08/04/99. The Court affirmed the motion’s denial on09/20/01.
On 01/10/03, Stewart filed a petition for a Writ of HabeasCorpus to the Florida Supreme Court, which was denied on 05/13/04. Stewart filed a Motion for Rehearing on 05/28/04, which was denied on 08/10/04.
Stewart filed a petition for a Writ of Habeas Corpus to theFlorida Supreme Court on 06/21/04, which was denied on 3/18/05.
On 05/31/05, Stewart filed a Petition for Writ of HabeasCorpus in the U.S. District Court, Middle District. On 07/13/05, thepetition was amended, and on 02/06/06, the USDC denied the petition.
Stewart filed a Petition for Writ of Habeas Corpus Appeal inthe U.S. Court of Appeals, 11th Circuit on 03/09/06, and on 01/31/07, the USCAaffirmed the denial of the petition.
The Commission on Capital Cases updates thisinformation regularly. This information; however, is subject to changeand may not reflect the latest status of an inmate’s case and should not berelied upon for statistical or legal purposes.
STEWART, Kenneth Allen (W/M)
DOB: 08/26/63
Thirteenth Judicial Circuit, Hillsborough County Case #85-5667
Sentencing Judge: The Honorable John P. Griffin
Resentencing Judge (I): The Honorable William Fuente
Resentencing Judge (II): The Honorable Barbara Fleisher
Attorney, Trial and Resentencing: Michael Jones –Court-appointed
Attorney, Direct Appeal: A. Anne Owens – Assistant PublicDefender
Attorneys, Collateral Appeals: Robert A. Norgard – Registry
Date of Offense: 12/06/84
Date of Sentence: 10/03/86
Date of Resentence: 11/21/90
Date of Resentence: 08/06/01
Circumstances of Offense:
Ruben Diaz was found dead on the morning of 12/06/84. Diazhad been shot twice in the head, from a distance of one foot or less, once infront of the head and the other behind the right ear. A resident of anearby neighborhood told officers that he heard gunshots around 12:15a.m. Later that day, police officers discovered Diaz’s car, which hadbeen set on fire at a shopping mall parking lot. Several months later,officers arrested Stewart in connection to similar offenses and, while incustody, charged him with first-degree murder and second-degree arson for the12/06/84 offenses.
During trial, the state employed two key witnesses to testifyagainst Stewart, Randall Bilbrey and Terry Smith. Bilbrey, who shared atrailer with Stewart for about ten days, testified that Stewart admittedrobbing a man matching Diaz’s description. According to Bilbrey’stestimony, on the night of the murder, Stewart and his accomplice targeted thedriver of a big, expensive-looking car that was parked outside a bar, and theyintended to rob him. The two men approached and conversed with Diaz, whowas inside the bar, convincing him to give them a ride. Once in the car,Stewart, who was sitting in the back seat, pulled out a gun and demanded thatDiaz drive to a wooded area. At the site, Stewart ordered Diaz to get outof the car, lie on the ground, and place his hands on his head. Stewarttook Diaz’s wallet, which contained $50, and a small vial of cocaine. Stewart shot Diaz twice in the head, as the second man was urging him to doso. The two men left Diaz’s body at the site, drove to a nearby shoppingmall, parked the car, and set the car on fire to destroy fingerprints.
According to Smith’s testimony, Stewart told him that a manpicked him up as he was hitchhiking. Stewart pulled out a gun and orderedthe man to drive to a certain location. Once at the site, Stewart orderedthe man out of the car, made him lie on the ground, robbed him, and shot himtwice.
Codefendant Information:
Stewart’s accomplice remained unnamed in the duration of thetrial.
Stewart is also sentenced to death for the 04/14/88 murderof Mark Harris (CC# 85-4825).
Additional Information:
Stewart’s connections with the offenses of 12/06/84 were notyet discovered until he was apprehended for a later offense (CC# 85-4825) thatwas similar. These offenses were tried separately as capital cases.
Prior Incarceration History in the State of Florida:
| Offense Date | Offense | Sentence Date | County | Case No. | Prison Sentence Length | | |
| 04/20/1980 | BURG/DWELL/OCCUP. CONVEY | 12/23/1980 | HILLSBOROUGH | 8004283 | 3Y 0M 0D | | |
| 04/21/1980 | GRAND THEFT MOTOR VEHICLE | 12/23/1980 | HILLSBOROUGH | 8004284 | 3Y 0M 0D | | |
| 10/12/1980 | BURG/DWELL/OCCUP. CONVEY(ATTEMPTED) | 12/23/1980 | HILLSBOROUGH | 8008816 | 2Y 6M 0D | | |
| 10/12/1980 | BURGLARY TOOLS-POSSESS | 12/23/1980 | HILLSBOROUGH | 8008816 | 2Y 6M 0D | | |
Prior Community Supervision History in the State ofFlorida:
| Offense Date | Offense | Sentence Date | County | Case No. | Community Supervision Length | | |
| 04/20/1980 | BURG/DWELL/OCCUP. CONVEY | 12/23/1980 | HILLSBOROUGH | 8004283 | 0Y 7M 14D | | |
| 04/21/1980 | GRAND THEFT MOTOR VEHICLE | 12/23/1980 | HILLSBOROUGH | 8004284 | 0Y 7M 14D | | |
| 10/12/1980 | BURG/DWELL/OCCUP. CONVEY(ATTEMPTED) | 12/23/1980 | HILLSBOROUGH | 8008816 | 0Y 7M 14D | | |
| 10/12/1980 | BURGLARY TOOLS-POSSESS | 12/23/1980 | HILLSBOROUGH | 8008816 | 0Y 7M 14D | | |
| 09/05/1983 | CARRYING CONCEALED FIREARM | 11/08/1983 | HILLSBOROUGH | | 5Y 5M 9D | | |
Trial Summary:
06/05/85 Indicted as follows:
Count I: First-Degree Murder
Count II: Second-DegreeArson
09/24/86 Jury returned guilty verdicts on all counts of the indictment.
09/25/86 Jury recommended death by a vote of 12-0.
10/03/86 Sentenced as follows:
Count I: First-Degree Murder – Death
Count II: Second-Degree Arson –15 Years
11/21/90 Jury recommended death by a vote of 12-0.
11/21/90 Resentenced as follows:
Count I: First-Degree Murder – Death
Count II: Second-Degree Arson –15 Years
05/04/00 State agrees to a new penalty phase.
03/21/01 Penalty phase filed.
03/31/01 Trial court held Spencer hearing and jury returned a recommendation for deathby a vote of 12-0.
08/06/01 Resentenced to death.
Appeal Summary:
Florida Supreme Court – Direct Appeal
FSC# 70,245
558 So. 2d 416
03/20/87 Appealfiled.
03/15/90 FSCreversed death sentence and remanded for resentencing.
04/14/90 Mandateissued.
Florida Supreme Court – Direct Appeal (Resentence I)
FSC# 77,217
620 So. 2d 177
01/14/91 Resentencingappeal filed.
05/13/93 FSCaffirmed death sentence.
05/27/93 Motionfor rehearing filed.
06/23/93 Rehearingdenied.
07/23/93 Mandateissued.
U.S. Supreme Court – Petition for Writ of Certiorari
USSC# 93-6143
510 U.S. 980
09/20/93 Petitionfiled.
11/15/93 Petitiondenied.
State Circuit Court – 3.850 Motion
CC# 85-5667
06/09/95 Motionfiled.
11/15/95 Motionamended.
02/18/99 Motionamended.
05/04/00 Stateagrees for new penalty phase.
Florida Supreme Court – Direct Appeal (Resentence II)
FSC# 01-1998
872 So. 2d 226
09/10/01 Appealfiled.
09/11/03 FSCaffirmed death sentence.
09/25/03 Motionfor rehearing filed.
04/20/04 Rehearingdenied and mandate issued.
Circuit Court – 3.851 Motion
CC# 85-5667
07/25/05 Motionfiled.
02/06/06 Motionamended.
10/08/08 Motiondenied.
Florida Supreme Court – 3.851 Appeal
FSC# 08-2075
37 So.3d 243
11/06/08 Motion filed.
05/27/10 FSC affirmed the denial of 3.851 Motion.
06/25/10 Mandate issued.
Florida Supreme Court – Petition for Writ of HabeasCorpus
FSC# 09-814
37 So.3d 243
03/27/09 Petition filed.
05/27/10 Petition denied.
United States District Court, Middle District –Petition for Writ of Habeas Corpus
USDC# 11-00044
(Pending)
01/06/11 Petition filed.
Factors Contributing to the Delay in Imposition of Sentence:
During Stewart’s direct appeal, the Florida Supreme Courtaffirmed the conviction of second-degree arson and sentence of 15 years. The Court reversed the death sentence and mandated a new sentencing proceedingbecause the trial judge failed to determine the sentence with advice andguidance provided by the jury. The Court took three years to get to thisconclusion. Stewart was resentenced to death by the Court on 05/13/93.
Stewart was resentenced to death twice in a ten-year timespan by the Circuit Court.
On 10/20/97, the CCRC filed a Motion for Continuance becauseStewart was without designated CCRC counsel.
Case Information:
Stewart filed a direct appeal to the Florida Supreme Courton 03/20/87. There were numerous issues raised. First, Stewartclaimed that the trial court deprived him of an effective defense. Second, he claimed that the trial court wrongly allowed a police investigatorto testify as to what Stewart told Smith about the shootings. Third,Stewart claimed that the trial court erred by allowing into evidence testimonyby victims of crimes for which he earlier had been convicted. Fourth, heclaimed that the jury should not have been advised to consider the “cold,calculated, premeditated” factor since the judge made no mention of this factorwhen he was sentenced. Finally, Stewart claimed that ample evidence waspresented to support that the crimes he committed, while under the influence ofextreme mental or emotional disturbance, allowed him to appreciate the criminalityof his conduct. On 03/15/90, the Court affirmed Stewart’s conviction ofsecond-degree arson, but reversed the death sentence and remanded forresentencing because the trial court failed to instruct the jury on theimpaired capacity mitigating factor.
On 01/14/91, Stewart filed a direct appeal (Resentence I) tothe Florida Supreme Court. The Court affirmed the death sentence on05/13/93. Stewart filed for a motion for a rehearing on 05/27/93, whichwas denied on 06/23/93. A mandate was issued on 07/23/93.
Stewart filed a Petition for Writ of Certiorari to the U.S.Supreme Court on 09/20/93, which was denied on 11/15/93.
On 06/09/95, Stewart filed a 3.850 motion in the StateCircuit Court. The motion was amended on 11/15/95 and again on 02/18/99. The state agreed to a new penalty phase on 05/14/00.
On 09/10/01, Stewart filed another direct appeal (ResentenceII) to the Florida Supreme Court, which was affirmed on 09/11/03.
On 07/25/05, Stewart filed a 3.851 Motion in the CircuitCourt and amended the motion on 02/06/06. Evidentiary Hearings were heldon 05/24/06 and 11/28/06. The motion was denied on 10/08/08.
On 11/06/08, Stewart filed a 3.851 Appeal in the FloridaSupreme Court. The Florida Supreme Court affirmed the denial of the 3.851Motion on 05/27/10. A mandate was issued on 06/25/10.
On 03/27/09, Stewart filed a Petition for Writ of HabeasCorpus in the Florida Supreme Court. This petition was denied on 05/27/10.
Stewart filed a Petition for Writ of Habeas Corpus in the UnitedStates District Court, Middle District on 01/06/11. This petition is currentlypending.
Institutional Adjustment:
DATE DAYS VIOLATION LOCATION
-------- ---- ----------------- -------------------
06/23/88 0 POSSOF ESCAPEPARA. FLORIDA STATE PRISON
06/23/88 120 DEST. OF ST.PROP. FLORIDA STATE PRISON
09/23/88 30 POSS OFNEGOTIABLES FLORIDA STATE PRISON
12/23/90 30 POSS OF UNAUTHBEV. FLORIDA STATE PRISON
08/21/92 0 CONSUME INTOXICANTS FLORIDA STATE PRISON
02/05/93 0 DEST. OF ST.PROP. FLORIDA STATE PRISON
11/27/93 0 POSS OFCONTRABAND UNION C.I.
01/08/94 0 DISOBEYINGORDER UNION C. I.
06/14/94 0 POSS OFNARCOTICS UNION C. I.
12/28/94 0 DISORDERLYCONDUCT UNION C. I.
04/15/98 0 UNARMEDASSAULT UNION C. I.
_______________________________________________________________________
Report Date: 12/07/04 NRC
Approved: 12/07/04 JFL
Updated: 01/25/11 EMJ