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 Public Defender
Attorneys, Collateral Appeals:
Daphney E. Gaylord & Robert T. Strain – CCRC-Middle
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:
On 10/03/86, Kenneth Allen
Stewart was sentenced to 15 years for second-degree arson and death for
first-degree murder.
Ruben Diaz was found dead on the
morning of 12/06/84. Diaz had been shot twice in the head, from a
distance of one foot or less, once in front of the head and the other
behind the right ear. A resident of a nearby neighborhood told officers
that he heard gunshots around 12:15 a.m.
Later that day, police
officers discovered Diaz’s car, which had been set on fire at a shopping
mall parking lot. Several months later, officers arrested Stewart in
connection to similar offenses and, while in custody, charged him with
first-degree murder and second-degree arson for the 12/06/84 offenses.
During trial, the state employed
two key witnesses to testify against Stewart, Randall Bilbrey and Terry
Smith. Bilbrey, who shared a trailer with Stewart for about ten days,
testified that Stewart admitted robbing a man matching Diaz’s
description.
According to Bilbrey’s testimony, on the night of the
murder, Stewart and his accomplice targeted the driver of a big,
expensive-looking car that was parked outside a bar, and they intended
to rob him. The two men approached and conversed with Diaz, who was
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
that Diaz drive to a wooded area. At the site, Stewart ordered Diaz to
get out of the car, lie on the ground, and place his hands on his head.
Stewart took 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 do so. The two men left Diaz’s body at the site, drove to
a nearby shopping mall, parked the car, and set the car on fire to
destroy fingerprints.
According to Smith’s testimony,
Stewart told him that a man picked him up as he was hitchhiking.
Stewart pulled out a gun and ordered the man to drive to a certain
location. Once at the site, Stewart ordered the man out of the car,
made him lie on the ground, robbed him, and shot him twice.
Codefendant Information:
Stewart’s accomplice remained unnamed in the duration of the trial.
Stewart is also sentenced to death for the 04/14/88 murder of Mark
Harris (CC# 85-4825).
Additional Information:
Stewart’s connections with the offenses of 12/06/84 were not yet
discovered until he was apprehended for a later offense (CC# 85-4825)
that was similar. These offenses were tried separately as capital
cases.
Trial Summary:
06/05/85 Indicted as follows:
Count I: First-Degree
Murder
Count II: Second-Degree
Arson
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 death by a vote of
12-0.
08/06/01 Resentenced to death.
Case Information:
Stewart filed a direct appeal to the Florida Supreme Court on 03/20/87.
There were numerous issues raised. First, Stewart claimed that the
trial court deprived him of an effective defense. Second, he claimed
that the trial court wrongly allowed a police investigator to testify as
to what Stewart told Smith about the shootings. Third, Stewart claimed
that the trial court erred by allowing into evidence testimony by
victims of crimes for which he earlier had been convicted. Fourth, he
claimed that the jury should not have been advised to consider the
“cold, calculated, premeditated” factor since the judge made no mention
of this factor when he was sentenced.
Finally, Stewart claimed that
ample evidence was presented to support that the crimes he committed,
while under the influence of extreme mental or emotional disturbance,
allowed him to appreciate the criminality of his conduct.
On 03/15/90,
the Court affirmed Stewart’s conviction of second-degree arson, but
reversed the death sentence and remanded for resentencing because the
trial court failed to instruct the jury on the impaired capacity
mitigating factor.
On
01/14/91, Stewart filed a direct appeal (Resentence I) to the Florida
Supreme Court. The Court affirmed the death sentence on 05/13/93.
Stewart filed for a motion for a rehearing on 05/27/93, which was denied
on 06/23/93. A mandate was issued on 07/23/93.
Stewart filed a petition for a Writ of Certiorari to the United States
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 State Circuit 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 (Resentence II) to the
Florida Supreme Court, which was affirmed on 09/11/03.
Stewart filed a petition for a Writ of Habeas Corpus to the Florida
Supreme Court on 06/21/04, which was denied on 3/18/05.
On
05/31/05, Stewart filed a Habeas Appeal in the United States District
Court, Middle District. The appeal is currently pending.
On
07/25/05, Stewart filed a 3.851 Motion in the Circuit Court and amended
the motion on 02/06/06. The motion is currently pending.
Floridacapitalcases.state.fl.us
