The Commission on Capital Cases updates thisinformation regularly. This information, however, is subject to change and maynot reflect the latest status of an inmate’s case and should not be relied onfor statistical or legal purposes.

PRESTON,Jr., Robert Anthony (W/M)

DC#072593

DOB: 11/13/57

EighteenthJudicial Circuit, Seminole County Case# 78-41 CFA

Sentencingand Resentencing Judge:  The Honorable S. Joseph Davis, Jr.

Attorney,Trial:  Arthur Kutsche – Assistant Public Defender

Attorney,Direct Appeal:  Joan H. Bickerstaff – Private

Attorney,Collateral Appeals:  Robert T. Strain & David Gemmer – CCRC-M

Date ofOffense:  01/09/78

Date ofSentence:  11/06/81

Date ofResentence:  05/08/91

Circumstancesof Offense:

Thedefendant, Robert Preston, robbed and killed Earline Walker in Seminole Countyin 1978.

On theafternoon of 01/09/78, the nude and mutilated body of Earline Walker wasdiscovered in an open field in Seminole County by police.  Multiple stabwounds and lacerations on the body were so severe that they resulted in neardecapitation.

Walkerhad been employed as a clerk at a convenience store.  An officer of theAltamonte Springs Police Department on routine patrol discovered her missingfrom the store at approximately 3:30 a.m.  He also discovered that $574.41was missing from the store.

Prestonwas arrested the following day on an unrelated charge.  While he was incustody, a deputy recovered a pubic hair from Preston’s belt buckle.  Theday after the arrest, police searched the home of Preston’s mother with herconsent.  The defendant also lived there.  In his bedroom, they founda jacket belonging to Preston and several detached food stamp coupons.  Ananalysis confirmed the coupons had been used at the convenience store topurchase items several days before the murder.  Blood samples from Walkerand Preston were compared with blood stains found on Preston’s jacket. The stains were of the same blood type and enzyme group as those of the victim. Analysis revealed that the hair recovered from Preston’s belt and anotherdiscovered on his jacket could have originated from the victim.

Additionalinformation:

In 1980,Preston was sentenced to six years imprisonment after being convicted ofthrowing a deadly missile into an occupied vehicle.  The offense occurredon 01/05/78, four days prior to the murder.  In 1989, Preston obtained anorder on motion for postconviction relief, which vacated the conviction. The Fifth Circuit Court of Appeal affirmed the order in 1990.

Thedefendant was acquitted on one count of felony murder committed during thecourse of a sexual battery, and one count of sexual battery.  Sentence waswithheld on counts II and III of the indictment.

Trial Summary:

06/9/81            Indictedas follows: 

Count I:           First DegreeMurder

Count II:         Felony MurderCommitted During the Course of a Robbery

CountIII:        Felony Murder Committed During the Course of a Kidnapping

Count IV:        Robbery

Count V:         Kidnapping

06/10/81          Jury returnedguilty verdicts on all counts of the indictment and recommended death by a voteof 7-5

11/06/81          Sentencedas follows:

Count I:           First DegreeMurder – Death

Count IV:        Robbery – 15years imprisonment

Count V:         Kidnapping –Life imprisonment

04/19/91          Juryrecommended death by a vote of 12-0

05/08/91          Defendantwas resentenced to death

AppealsSummary:

Florida Supreme Court – Direct Appeal

FSC#61,475

444So.2d 939

12/09/81          Appealfiled.

01/19/84          FSCaffirmed the conviction and sentence.

02/27/84          Rehearingdenied.

State Circuit Court – 3.850 Motion

CC#78-41-CFA

10/31/85          Motionfiled

02/12/87          Motiondenied

06/10/87          Rehearingdenied

FloridaSupreme Court – 3.850 Appeal

FSC#70,835

528So.2d 896

07/13/87          Appealfiled

05/26/88          FSCaffirmed trial court’s denial of 3.850 motion

08/19/88          Rehearingdenied

United States Supreme Court – Application for a Stay of Execution

USSC#A-216

109 S. Ct. 28

09/13/88          Application filed

09/23/88          USSC granted a stay of execution

Florida Supreme Court – Petition for Writ of Habeas Corpus

FSC#73,067

531So.2d 154

09/20/88          Petitionfiled

09/22/88          Petitiondenied

United States Supreme Court – Petition for Writ of Certiorari

USSC#88-6121

109 S. Ct. 1356

11/17/88          Petitionfiled

03/06/89          Petitiondenied

FloridaSupreme Court – Petition for Writ of Habeas Corpus

FSC#74,038

545 So. 2d 1368

04/19/89         Petition filed

05/24/89         Petition denied

State Circuit Court – 3.850 Motion

CC#78-41-CFA

03/20/90          Motionfiled

03/30/90          Motiondenied

FloridaSupreme Court – 3.850 Appeal

FSC#75,794

564So.2d 120

04/04/90          Appealfiled

06/07/90          FSCvacated the sentence and remanded for a new trial

FloridaSupreme Court – Direct Appeal (RS)

FSC#78,025

607 So. 2d 404

06/05/91          Appealfiled

10/29/92          FSCaffirmed trial court’s denial of 3.850 motion

10/29/92          Rehearingdenied

11/30/92          Mandateissued

United States Supreme Court – Petition for Writ of Certiorari

USSC#92-7627

113 S. Ct. 1619

01/27/93          Petitionfiled

03/22/93          Petitiondenied

State Circuit Court – 3.850 Motion

CC#78-41-CFA

05/23/94          Motionfiled

02/28/00          Amendedmotion filed

03/31/05          Motiondenied

FloridaSupreme Court – 3.850 Appeal

FSC#05-781

970So.2d 789 (2007)

05/05/05          Appealfiled

05/31/07          FSCaffirmed trial court’s denial of Preston’s 3.850 Motion

06/15/07          Motionfor Rehearing filed

12/10/07          Motionfor Rehearing denied

12/26/07          Mandateissued

FloridaSupreme Court – Petition for Writ of Habeas Corpus

FSC#06-351

970So.2d 789 (2007)

02/21/06          Petitionfiled

05/31/07          Petitiondenied

12/26/07          Mandateissued

UnitedStates District Court, Middle District – Habeas Petition

USDC#08-2085

(Pending)

12/15/08          Petitionfiled

DeathWarrant:

10/08/85          GovernorGraham signed death warrant

11/04/85          Scheduledexecution date

10/31/85          Trialcourt granted stay of execution

08/25/88          GovernorMartinez signed death warrant

09/27/88          Scheduledexecution date

09/23/88          U.S.Supreme Court granted stay of execution

03/30/89          GovernorMartinez signed death warrant

04/27/89          Scheduledexecution date

04/19/89          FloridaSupreme Court granted stay of execution

03/08/90          GovernorMartinez signed death warrant

04/04/90          Scheduledexecution date

04/03/90          FloridaSupreme Court granted stay of execution

Clemency Hearing:

07/02/85          Hearingdenied

Factors Contributing to the Delay in the Imposition of the Sentence:

Preston’sthird 3.850 Motion had been pending since 1994.  The reasons for the delayas cited by the CCRC-Middle are outstanding public records requests, a changein representation of Preston to the CCRC and the misplacement of the trial fileby the State Attorney’s Office.

CaseInformation:

Preston’sconviction and sentence were affirmed by the Florida Supreme Court on DirectAppeal in 1984.

GovernorGraham signed Preston’s first death warrant in October 1985, prompting thedefendant to file a 3.850 Motion with the trial court in 1985.  The courtgranted a stay of execution the same day the motion was filed and denied themotion in 1987.  On appeal, the Florida Supreme Court in May 1988 affirmedthe trial court’s ruling.

GovernorMartinez signed Preston’s second death warrant in August 1988.  Thedefendant responded by filing an application for a stay of execution with theUnited States Supreme Court and by petitioning the Florida Supreme Court for aWrit of Habeas Corpus. Thepetition was denied without prejudice to raise the same issues by 3.850 motion. The following month, the United States Supreme Court stayed the executionand the Florida Supreme Court denied the habeas petition.  The UnitedStates Supreme Court denied the Certiorari in 1989.

A thirddeath warrant was signed by Governor Martinez in March 1989.  Thefollowing month Preston filed his second habeas petition with the FloridaSupreme Court.  The court granted a stay of execution in April 1989 anddismissed the case without prejudice in May.

GovernorMartinez signed Preston’s fourth death warrant in March 1990, prompting Prestonto file his second 3.850 motion with the trial court.  The court deniedthe motion.  Preston appealed the trial court’s ruling and asked theFlorida Supreme Court for a stay of execution.  The Court granted thestay.  In his appeal, Preston cited the United States Supreme Court’sdecision in Johnson v. Mississippi as reason to vacate his deathsentence.  In Johnson, the court vacated the defendant’s deathsentence because it had been predicated on a prior violent felony convictionthat was overturned.  Accordingly, Preston argued that his death sentenceshould be reconsidered after the trial court overturned Preston’s unrelatedconviction in 1980 of throwing a deadly missile into an occupied vehicle. The high court agreed, and vacated the sentence and remanded for resentencing.

Thetrial court resentenced Preston to death in 1991.  The Florida SupremeCourt affirmed the sentence in 1992.  The United States Supreme Court deniedthe Certiorari in 1993.

Prestonfiled his third 3.850 Motion to the Circuit Court on 05/23/94.  An AmendedMotion was filed on 02/28/00.  The Motion was denied on 03/31/05.

On05/05/05, Preston filed a 3.850 Appeal to the Florida Supreme Court.  Of the42 claims Preston raised in his 3.850 Motion, Preston appealed the trialcourt’s denial of eight claims:  (1) Preston was denied effectiverepresentation by counsel for lack of access to public records, (2) Preston’scounsel was ineffective for failing to present a corroborating witness, (3)Florida’s rule prohibiting defense counsel from interviewing jurors violatesequal protection and due process, (4) Preston was deprived of a fair trial dueto procedural and substantive issues, (5) execution by lethal injection isunconstitutional because it is cruel and unusual punishment, (6) resentencingcounsel was ineffective for failing to challenge the credentials of the State’sexpert witness, (7) guilt phase counsel was ineffective for failing tochallenge the qualifications of the medical examiner and his testimony, and (8)Preston’s judgment and death sentence must be vacated in light of Ring. The Court found these claims procedurally barred and without merit.  On05/31/07, the Court affirmed the trial court’s denial of Preston’s 3.850Motion.  On 06/15/07, Preston filed a Motion for Rehearing, which wasdenied on 12/10/07.  The Florida Supreme Court issued a Mandate inreference to the 05/31/07 Opinion on 12/26/07.

On 02/21/06,Preston filed a Petition for Writ of Habeas Corpus to the Florida SupremeCourt.  Preston raised four issues in his Habeas petition:  (1)appellate counsel was ineffective for failing to raise the claim that Florida’scapital sentencing scheme is unconstitutional under Ring, (2) appellatecounsel was ineffective for failing to raise the claim that Preston’s dueprocess and equal protection rights were violated because his counsel wasprohibited from interviewing jurors, (3) appellate counsel was ineffective forfailing to raise the claim that the jury was unconstitutionally instructed thatits role was merely “advisory” in violation of Caldwell v. Mississippi,and (4) Preston may not be competent at the time of his execution.  TheCourt concluded that Preston is not entitled to relief on any of theseclaims.  On 05/31/07, the Court denied Preston’s Petition for Writ ofHabeas Corpus.  The Florida Supreme Court issued a Mandate in reference tothe 05/31/07 Opinion on 12/26/07.

On12/15/08, Preston filed a Habeas Petition in the United States District Court,Middle District.  This case is currently pending.

InstitutionalAdjustment:

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ReportDate:    06/21/01          TB

Approved:       06/29/01          WS

Updated          01/09/09         AEH