TheCommission on Capital Cases updates this information regularly. Thisinformation, however, is subject to change and may not reflect the lateststatus of an inmate’s case and should not be relied on for statistical or legalpurposes.

CHERRY,Roger Lee (B/M)

AKA:Johnny L. Hill

DC#   021641

DOB:06/14/51

SeventhJudicial Circuit, Volusia County, Case #86-4473-A

SentencingJudge: The Honorable Uriel Blount Jr.

Attorney,Trial: David R. Miller – Private

Attorney,Direct Appeal: Larry B. Henderson – Private

Attorney,Collateral Appeals: Linda McDermott – Registry

Date ofOffense:         06/28/86

Date ofSentence:       09/26/87

Circumstancesof Offense:

Aroundnoon on June 28, 1986, the son of Leonard Wayne and Esther Wayne arrived at hisparents’ home in Deland for a visit.  He noticed that the couple’s car wasgone and the door to the house was ajar.  Upon entering the bedroom hediscovered his parents lying on the floor, dead.  Autopsies revealed thatMrs. Wayne died of multiple blows to the head and that Mr. Wayne died ofcardiac arrest.

AtCherry’s trial, state’s witness Lorraine Nelomstestified that the defendant left the apartment they shared between 11 and11:30 p.m. on June 27, saying that he needed some money.  He returnedabout an hour later with two or three rifles and a wallet containing a bankcardand a license identifying a man named Wayne.  She asked where he had been,and he responded that he went inside a home near the armory.  She saidCherry told her that after entering the home Mrs. Wayne tried to fight him andthat he pushed Mr. Cherry who then clutched his chest.  Neloms also testified that Cherry bled from a wound on hisright thumb, which he stated was the result of cutting a line.

Cherryleft the apartment twice more that evening.  The first time, he went to abank and upon his return stated that a card was stuck in the automatic tellermachine.  The second time, he left “to ditch the car he stole.”

A Sunbank supervisor testified that the ATM three blocks fromthe Wayne home captured a Master Card and a Sun Bank Card belonging to the Waynes on June 28, 1986.  An audit revealed that fiveor six transactions were unsuccessfully attempted between 1:55 and 2 a.m.

Policetestimony indicated that the telephone wire outside the house has been cut andthat blood had been discovered on a piece of discarded paper near the wire, onthe walkway leading to the rear of the home, and on at least one of threejalousie panes found in a wooded thicket to the rear of the home.  Thepanes had been removed form the rear porchwindow.  Cherry’s blood was consistent with the blood found on the paperand the jalousie.

Cherry wasarrested on July 2 at this home.  Police noted at that time that Cherryhad a cut on his thumb, which he said was the result of having cut the head offa fish.

Additionalinformation:

Cherrywas previously convicted of numerous offenses, including that of robbery in1971 and 1979.

On11/19/04, the Florida Supreme Court relinquished jurisdiction for a mentalretardation determination.  On 10/12/05, the Circuit Court determined thatCherry was not mentally retarded. 

TrialSummary:

09/25/87         As charged in the indictment,the defendant was convicted as followed: 

Count I:          Burglary – guilty

Count II:        Second-Degree Grand Theft – guilty

Count III:       First-Degree Murder – guilty

Count IV:       First-Degree Murder – guilty

09/26/87         Upon advisory sentence, the jury by a vote of 7 to 5 recommended the

death penalty for the murder ofLeonard Wayne, and by a vote of 9 to 3

recommended the death penalty for murder ofEsther Wayne.

09/26/87         The defendant was sentenced as followed: 

Count I:          Burglary – Life

Count II:        Grand Theft (Second-Degree) - 5 years

Count III:       First-Degree Murder – Death

Count IV:       First-Degree Murder – Death. 

Thesentences for Counts I and II were to run concurrent with each other.

AppealSummary:

FloridaSupreme Court – Direct Appeal

FSC#71,341

544 So.2d 184

10/23/87         Appeal filed.

04/27/89         FSC affirmed the conviction and sentences.

07/07/89         Rehearing denied.

UnitedStates Supreme Court – Petition for Writ of Certiorari

USSC#89-5485

494 U.S.1090

08/31/89         Petition filed.

04/16/90         USSC denied petition for writ of certiorari.

StateCircuit Court – 3.850 Motion (1st)

CC#86-4473-A

04/16/92         Motion filed.

03/12/93         Trial court denied motion.

04/25/94         Rehearing denied.

FloridaSupreme Court – 3.850 Motion Appeal

FSC#83,773

659 So. 2d1069

05/31/94         Appeal filed.

08/31/95         FSC affirmed in part, reversed in part and remanded for an evidentiary

hearing.

10/16/95         Mandate issued.

StateCircuit Court – 3.850 Motion (On Remand From FSC)

CC#86-4473-A

08/31/95         FSC remanded for an evidentiary hearing.

10/16/95         Motion returned to trial court.

12/06/96         Evidentiary hearing held.

01/27/97         Trial court denied motion.

04/11/97         Rehearing denied.

FloridaSupreme Court – 3.850 Motion Appeal

FSC#90,511

781 So.2d 1040

05/12/97         Appeal filed.

09/28/00         FSC affirmed trial court’s denial of 3.850 Motion.

03/27/01         Rehearing denied.

05/01/01         Mandate issued.

StateCircuit Court – 3.850 Motion (2nd)

CC#86-4473-A

08/07/97         Motion filed.

10/16/01         Motion denied.

10/31/01         Rehearing granted.

06/24/02         Evidentiary hearing held.

08/12/02         Motion denied.

UnitedStates Supreme Court – Petition for Writ of Certiorari

USSC#00-10781

534 U.S.878

06/22/01         Petition filed.

10/01/01         Petition denied.

FloridaSupreme Court – Petition for Writ of Habeas Corpus

FSC#SC01-2862

829 So.2d 873

12/28/01         Petition filed.

10/03/02         Petition denied.

FloridaSupreme Court – 3.850 Motion Appeal

FSC#SC02-2023

959 So.2d 702

09/12/02         Appeal filed.

11/18/04         FSC remanded for mental retardation determination.

04/12/07         FSC affirmed denial of motion.

07/16/07         Mandate issued.

StateCircuit Court – 3.203 Motion

CC#86-4473-A

11/30/04         Motion filed.

07/25/05         Evidentiary Hearing held.

10/14/05         Motion denied.

06/26/07         Mandate issued.

StateCircuit Court – 3.850 Motion (3rd)

CC#86-4473-A

04/19/02         Motion filed.

11/30/04         Motion amended.

10/14/05         Motion denied.

UnitedStates Supreme Court – Petition for Writ of Certiorari

USSC#07-5482

128 U.S.490

07/19/07         Petition filed.

10/29/07         Petition denied.

UnitedStates District Court, Middle District – Petition for Writ of Habeas Corpus

USDC#08-1011

(Pending)

06/20/08          Petition filed.

10/26/10          Motion to Stay.

11/08/10          Motion granted.

StateCircuit Court – 3.850 Motion

CC#86-4473-A

(Pending)

10/07/10          Motion filed.

Clemency:

06/19/90         Hearing held (denied).

FactorsContributing to the Delay in the Imposition of Sentence:

Cherry’sfirst 3.850 Motion was pending for nearly five years.  It was originally deniedat the trial court level on 03/12/93; however, following FSC’s remand for anevidentiary hearing, the case reentered the trial court in 1995.  Cherry’sfirst 3.850 Motion was again denied in 1997.  Additionally, Cherry’ssecond 3.850 Motion was pending for over five years.

CaseInformation:

Cherryfiled a Direct Appeal in the Florida Supreme Court in 1987.  In 1989, FSCaffirmed the conviction and sentences.  The U.S. Supreme Court deniedcertiorari in 1990.

In 1992,the defendant filed a 3.850 motion with the trial court.  The court deniedthe motion in 1993.  Cherry appealed the order to the Florida SupremeCourt in 1994.  The court rejected all of his 19 claims except for hisargument that his trial counsel was ineffective during the penalty phase. In 1995, the court remanded for an evidentiary hearing on that claim. After conducting a hearing, the trial court in 1997 again denied relief. On appeal, the Florida Supreme Court affirmed.

In 1997,Cherry filed his second 3.850 Motion with the trial court.  The courtdenied the motion on 10/16/01, but granted an order for rehearing on10/31/01. 

In 2001,Cherry was denied Certiorari by the United States Supreme Court.

On12/28/01, Cherry filed a Petition for Writ of Habeas Corpus in the FloridaSupreme Court that was denied on 10/03/02.

After arehearing was granted in Cherry’s second 3.850 Motion, the trial court held anevidentiary hearing on 06/24/02, and subsequently denied the motion on08/12/02.  Cherry then filed an appeal in the Florida Supreme Court, andon 11/19/04, the FSC relinquished jurisdiction to the Circuit Court todetermine if Cherry is mentally retarded.   On 04/12/07, the FSCaffirmed the denial of the motion.  On 06/26/07, FSC issued a mandate. 

Cherryfiled a 3.203 Motion on 11/30/04 that was denied on 10/14/05. A mandate wasissued on 06/26/07

On04/19/02, Cherry filed a third 3.850 Motion in the State Circuit Court andamended the motion on 11/30/04, which was denied 10/13/05.

On 07/19/07,Cherry filed a Writ of Certiorari in the United States Supreme Court. This petition was denied on 10/29/07.

On06/20/08, Cherry filed a Petition for Writ of Habeas Corpus in the UnitedStates District Court. On 10/26/10, Cherry filed a Motion to hold theproceedings in abeyance while the circuit court considered his 3.850 Motion.The Motion to Stay was granted on 11/08/10.

On10/07/10, Cherry filed a 3.850 motion in the Circuit Court. That motion ispending.

________________________________________________________________

08/07/01– tb

08/09/01– approved – whs

04/15/11– updated – jjk