James Franklin Rose

Case information

James Franklin Rose was convicted of kidnapping (Count I) and first-degree murder (Count II).

Background

Rose met his former girlfriend, Barbara Berry, at a bowling alley around 9 p.m. on the evening of 10/22/76. Berry’s eight-year-old daughter accompanied Rose to the snack bar area of the bowling alley, and this was the last time the girl was seen that evening.

Rose left the bowling alley, presumably with the girl. Rose later paged Ms. Berry, and when Ms. Berry returned the page, Rose asked her what time she would be finished bowling.

Rose was a painter.

The offence

After Rose’s return to the bowling alley, patrons noted that Rose had a large red spot on his trousers that was later determined to be the same blood type as the girl.

Prior to Rose’s return to the bowling alley, at about 11:45 p.m., Rose’s white van was seen behind the Pantry Pride store near the bowling alley.

The little girl’s green sweater and pink pants were found behind the same store the next afternoon. Rose’s van contained her pink blouse. Her shoes were found on a road between a canal and the bowling alley. Her nude body was found four days after her disappearance in a canal approximately ten miles from the bowling alley.

A paint-stained hammer was found six feet from the girl’s body.

The girl died from severe head injuries caused by blunt force.

A green fiber taken from Rose’s clothing was consistent with fibers from the girl’s green sweater. A crushed hair from Rose’s sock was consistent with hair from the girl’s hairbrush.

Investigation

The jury found that Rose had a large red spot on his trousers that was later determined to be the same blood type as the girl. The physical evidence described included items found behind the Pantry Pride store and in Rose’s van, and the discovery of the girl’s nude body in a canal about ten miles from the bowling alley.

Arrest

No arrest details were provided in the case summary.

Trial

Charges and indictment

On 11/09/76, Rose was indicted on the following:

• Count I: Kidnapping
• Count II: First-Degree Murder

Verdict and recommendations

On 05/06/77, Rose was found guilty on all counts charged in the indictment. The jury recommended death penalty by a majority vote.

Sentencing

On 05/13/77, Rose was sentenced as follows:

• Count I: Kidnapping — Life
• Count II: First-Degree Murder — Death

Allen charge and juror matters at trial

Rose challenged his conviction of first-degree murder and kidnapping along with the sentence of death and life imprisonment. He argued insufficient evidence, the giving of an “Allen charge” to the jury, excusal of three jurors for cause, as well as other issues that the court found to have no merit.

The Florida Supreme Court affirmed the conviction, but vacated the death sentence and remanded for resentencing on 12/09/82.

Appeals

First direct appeal and certiorari

Rose filed a Direct Appeal in the Florida Supreme Court on 05/25/77.

Rose filed a Petition for Writ of Certiorari in the United States Supreme Court on 03/14/83. This petition was denied on 04/25/83.

Resentencing direct appeal and certiorari

A second sentencing jury recommended the death penalty for Rose by an 11-1 vote, and Rose was resentenced to death on 07/15/83.

Rose filed a second Direct Appeal in the Florida Supreme Court on 07/21/83. He challenged his resentencing to death on seventeen grounds. The court discussed a few of the grounds including:

• prosecutorial error in opening statement
• juror error
• denial of a motion for an updated presentence investigation report
• failing to grant a continuance for the sentencing phase of the trial
• erroneous juror instructions
• inclusion of prior convictions
• improper aggravating circumstances

The Florida Supreme Court affirmed the resentencing to death on 12/06/84.

Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court on 03/22/85. This petition was denied on 06/03/85.

On 08/05/86, Governor Graham signed a death warrant, and Rose’s execution was set for 09/03/86.

Habeas corpus proceedings

Rose filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court along with a Stay of Execution on 08/25/86. The Florida Supreme Court issued a stay of execution on 08/27/86 to allow it to consider the issues raised by Rose.

Rose claimed:

• denial of opportunity for full appellate review due to indigency
• the death penalty was imposed in an arbitrary and discriminatory manner
• ineffective assistance of counsel

The Florida Supreme Court denied the Petition and vacated the Stay of Execution on 05/07/87.

Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court on 09/10/87. This petition was denied on 11/02/87.

3.850 motions and appeals

Rose filed a 3.850 Motion in the Circuit Court on 10/11/88, which was denied on 03/13/89.

Rose filed a 3.850 Motion Appeal in the Florida Supreme Court on 06/01/89. Rose argued he was denied due process by the lower court’s refusal of the 3.850 motion and claimed ineffective assistance of counsel and that error occurred in not having an evidentiary hearing.

On 05/28/92, the Florida Supreme Court reversed the lower court’s denial of the 3.850 Motion and remanded the issue for an evidentiary hearing.

On 03/09/94, the Circuit Court denied Rose’s 3.850 Motion.

Rose filed a second 3.850 Motion Appeal in the Florida Supreme Court on 04/29/94. Rose argued ineffective assistance of counsel at both the guilt phase and penalty phases of the trial.

On 03/07/96, the Florida Supreme Court reversed the trial court’s denial of the 3.850 Motion, vacated the death sentence, and remanded the case for resentencing.

Third resentencing and subsequent direct appeal

The jury recommended a death sentence by a vote of 9-3, and Rose was resentenced to death on 02/13/98.

Rose filed a third Direct Appeal in the Florida Supreme Court on 11/12/98, citing seventeen issues. The Florida Supreme Court affirmed the sentence of death on 04/05/01.

Rose filed a Petition for Writ of Certiorari in the United States Supreme Court on 10/31/01, which was denied on 03/18/02.

Additional 3.850 motion

Rose filed a 3.850 Motion in the Circuit Court on 09/17/03. The motion was denied on 02/09/06.

On 03/10/06, Rose filed a 3.850 Appeal in the Florida Supreme Court, which was currently pending.

Sentencing

Rose’s sentencing and resentencing history included:

• 05/13/77: Count I kidnapping — Life; Count II first-degree murder — Death
• 07/15/83: Rose was resentenced to death after remand; the jury recommended death by an 11-1 vote
• 02/13/98: Rose was resentenced to death after further remand; the jury recommended death by a 9-3 vote

Outcome

Rose’s conviction for kidnapping and first-degree murder was affirmed by the Florida Supreme Court, and the death sentence for first-degree murder was ultimately affirmed following subsequent resentencings and appeals.

Timeline

• 10/22/76 — Rose met Barbara Berry at a bowling alley around 9 p.m.; Berry’s eight-year-old daughter accompanied Rose to the snack bar area; this was the last time the girl was seen that evening.
• 11:45 p.m. — Rose’s white van was seen behind the Pantry Pride store near the bowling alley.
• Next afternoon — Berry’s green sweater and pink pants were found behind the Pantry Pride store.
• Four days after disappearance — The girl’s nude body was found in a canal approximately ten miles from the bowling alley.
• 11/09/76 — Rose was indicted on Count I: Kidnapping and Count II: First-Degree Murder.
• 05/06/77 — Rose was found guilty on all counts.
• 05/13/77 — Rose was sentenced: Count I kidnapping — Life; Count II first-degree murder — Death.
• 05/25/77 — Rose filed a Direct Appeal in the Florida Supreme Court.
• 12/09/82 — The Florida Supreme Court remanded the case for resentencing.
• 07/15/83 — Jury recommended death by an 11-1 vote; Rose was resentenced to death.
• 03/14/83 — Rose filed a Petition for Writ of Certiorari in the United States Supreme Court.
• 04/25/83 — The Petition for Writ of Certiorari was denied.
• 07/21/83 — Rose filed a second Direct Appeal in the Florida Supreme Court.
• 12/06/84 — The Florida Supreme Court affirmed resentencing to death.
• 03/22/85 — Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court.
• 06/03/85 — The Petition was denied.
• 08/05/86 — Governor Graham signed a death warrant; execution was set for 09/03/86.
• 08/25/86 — Rose filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court along with a Stay of Execution.
• 08/27/86 — The Florida Supreme Court issued a stay of execution to consider the issues raised.
• 05/07/87 — The Florida Supreme Court denied the Petition and vacated the Stay of Execution.
• 09/10/87 — Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court.
• 11/02/87 — The Petition was denied.
• 10/11/88 — Rose filed a 3.850 Motion in the Circuit Court.
• 03/13/89 — The 3.850 Motion was denied.
• 06/01/89 — Rose filed a 3.850 Motion Appeal in the Florida Supreme Court.
• 05/28/92 — The Florida Supreme Court reversed the lower court’s denial of the 3.850 Motion and remanded for an evidentiary hearing.
• 03/09/94 — The Circuit Court denied Rose’s 3.850 Motion.
• 04/29/94 — Rose filed a second 3.850 Motion Appeal in the Florida Supreme Court.
• 03/07/96 — The Florida Supreme Court reversed the trial court’s denial, vacated the death sentence, and remanded for resentencing.
• 02/13/98 — Jury recommended death by a 9-3 vote; Rose was resentenced to death.
• 11/12/98 — Rose filed a third Direct Appeal in the Florida Supreme Court.
• 04/05/01 — The Florida Supreme Court affirmed the sentence of death.
• 10/31/01 — Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court.
• 03/18/02 — The Petition for Writ of Certiorari was denied.
• 09/17/03 — Rose filed a 3.850 Motion in the Circuit Court.
• 02/09/06 — The 3.850 Motion was denied.
• 03/10/06 — Rose filed a 3.850 Appeal in the Florida Supreme Court, pending at the time of the summary.

Other details

Rose’s date of birth was 12/19/45.

The case was in the Seventeenth Judicial Circuit, Broward County, Case #76-5036 (venue was changed to Hillsborough County, Thirteenth Circuit).

Sentencing Judge was The Honorable M. Daniel Futch, Jr.

Resentencing Judge was The Honorable Paul L. Backman.

Trial Attorney was Craig S. Barnard.

Direct Appeal (First and Second) attorneys were Richard L. Jorandby — Public Defender and Louis G. Carres — Assistant Public Defender.

Direct Appeal (Third) attorney was Richard L. Rosenbaum, Esq.

Collateral Appeals attorney was Steven Hammer.

Rose filed a Petition for a Writ of Certiorari in the United States Supreme Court on multiple occasions, and each petition was denied on the dates stated in the timeline.

The jury votes for resentencings were recorded as 11-1 on 07/15/83 and 9-3 on 02/13/98.