Baker, In re, 42821
| Decision Date | 26 September 1972 |
| Docket Number | No. 42821,42821 |
| Parties | In re Bernard R. BAKER, and other persons similarly situated (now or previously under sentence of death, but not resentenced). |
| Court | Florida Supreme Court |
Tobias Simon, Miami, for petitioner.
Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
We have under consideration an original petition for constitutional writ filed by Bernard R. Baker, previously convicted of murder and sentenced to death (Baker v. State, Fla., 202 So.2d 563; Baker v. State, Fla., 241 So.2d 683). It is, further, a petition on behalf of a class of other persons similarly situated, who are now, or previously have been under sentence of death in this State, but who have not yet been resentenced. The Attorney General has filed a motion to dismiss the petition. This motion is denied and we now consider the merits of the petition.
Baker asserts that under the decision of the Supreme Court of the United States, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the death sentences imposed upon persons in this State are illegal, and thereby void. This Court has itself never declared the death penalty unconstitutional, but has recognized and followed the decision of the United States Supreme Court in Furman v. Georgia, Supra. See Donaldson v. Sack, Fla., 265 So.2d 499 (opinion filed July 17, 1972) and Anderson v. State, Fla., 267 So.2d 8 (opinion filed September 8, 1972). Baker's assertion that death sentences previously imposed are void is therefore correct.
On June 29, 1972, when Furman was decided, there were 100 persons under sentence of death in Florida. Since their death sentences were then voided, it became necessary for the courts to arrange for, and impose, legal and appropriate sentences upon them.
At that time, forty of these persons had cases pending before this Court. The Attorney General filed a motion on July 24, 1972, requesting this Court to relinquish jurisdiction in those cases to the respective circuit courts for the purpose of re-sentencing under Rule 3.800 F.R.P., 33 F.S.A. Our decision, however, for reasons set forth at length in Anderson, supra, was for this Court to correct the illegal death sentences and--as to the 27 persons convicted of murder 1--this Court imposed a sentence of 'confinement in the State prison for the term of his natural life.' Only the 13 2 persons in that group, convicted of rape, were remanded to the circuit courts for resentencing. This was because each of those persons, if his crime was committed prior to January 1, 1972, is entitled to a hearing prior to re-sentencing; and may be sentenced to imprisonment to life or for any term of years within the discretion of the Court. F.S. § 794.01 (1969), F.S.A.
There were an additional 60 persons convicted of both murder and rape under sentences of death at the time Furman was decided. 3 Their cause was before the United States District Court (M.D.Fla.) sub nom. Adderly v. Wainwright, 46 F.R.D. 97. On August 1, 1972, that Court vacated the death sentences and remanded each of the 60 persons to his respective circuit court for re-sentencing.
According to the petitioner, neither he nor all other persons will be re-sentenced prior to October 1, 1972. Petitioner requests that he, and the entire class be resentenced prior to that date so as to avoid the operation of Ch. 72-118, which requires sentences re-imposed after that date to be life terms without benefit of parole. 4
What petitioner requests is that this Court (rather than the circuit courts) impose life sentences on convicted murderers and indeterminate sentences of time served to life imprisonment on convicted rapists; and as to the latter, and following this sentencing, remand them to the circuit courts for the discretionary sentencing procedure to which our statutes (until January 1, 1972) entitled them. The circuit courts would then decide the term of imprisonment to be imposed.
As stated in Anderson v. State, Supra:
We have already granted this requested relief to 27 members of the class of persons under sentence of death. There appears to be no reason why the remaining members of the class need be treated differently. To do so would create a class statutorily denied parole, while facing life terms in prison. The uniqueness of this position would foster litigation attacking both the facial validity of the Statute (C. 72--118) and its selective application to an indistinguishable few--a seeming denial of equal protection.
Under these circumstances, it is clearly to the best interest of the public that this Court impose sentences upon the class of petitioners as follows:
1. All of the members of the class of persons under sentence of death who have been convicted of murder are hereby sentenced to life imprisonment.
2. All of the members of the class of persons under sentence of death who have been convicted or rape are hereby sentenced to life imprisonment. The cases of these persons, however, are remanded to their respective circuit courts for the sole purpose of further consideration of this sentence, and each of such persons may, within 90 days from this date, file a motion with the trial court for mitigation of sentence. If such a motion is filed by any person, a hearing thereon may thereafter be held under F.R.P. Rule 3.780 to determine first the date of the crime of which the defendant stands convicted. If committed after January 1, 1972, the life sentence shall not be mitigated. See Anderson v. State, Supra. If committed prior to January 1, 1972, the Court may conduct a hearing under Rule 3.780, F.R.P., for the purpose of inquiring into all factors relevant to sentencing and shall then resentence such person to a term of life imprisonment or a term of years, in the discretion of the court. The defendant has the right to be present at any such hearing and the right to retain counsel, or have counsel appointed if indigent. These rights may be waived in writing by a defendant.
3. Defendants in both categories, who have been convicted of two or more crimes in one or more counties, are hereby resentenced in accordance with the foregoing for each of such crimes.
The sentence of life imprisonment hereby imposed shall remain in full force and effect, and the defendant shall be held in custody under such sentences unless subsequently mitigated in accordance with the procedure set forth herein.
The Clerk of this Court shall furnish a certified copy of this order to the Clerks of the Circuit Courts in which each of the above-named defendants was convicted. If a defendant has not previously been resentenced, the Clerk of the Circuit Court in which he was convicted shall thereupon issue a commitment in each case based upon his sentence of life imprisonment and shall forward the commitment to the Division of Corrections. In the event the life imprisonment of a defendant charged with rape is mitigated by the trial court to a term of years, the Clerk of said Circuit Court shall thereupon issue an amended commitment reflecting the mitigated sentence and shall forward the amended commitment to the Division of Corrections.
Petitioner, Bernard R. Baker, who was convicted of murder in the first degree without recommendation of mercy, is controlled by our decision in Anderson v. State, Supra. His sentence is corrected so as to provide that he shall be imprisoned by confinement in the State prison for life and an amended commitment shall be issued by the Clerk of the Circuit Court of Indian River County reflecting this sentence.
Many of the persons formerly under death sentence have already been resentenced by their respective circuit courts. For these persons, and to the extent that they have been resentenced in accordance with the procedures outlined herein, this order is inapplicable. It is, however, the purpose of the Court by this order to conclude the resentencing of all other persons in the class. All that remains to be accomplished are the hearings on behalf of persons who may move for a mitigation of their sentence by the trial court. These motions must be filed with the trial court within 90 days from this date, and they may thereafter be heard by the trial court within a reasonable time.
It is so ordered.
The orderly processes of resentencing should not be interdicted by precipitous action of this Court. The matter should be left to proceed in due course. This opinion seems to lend itself to an apparent effort to nullify in advance the Legislature's action by Ch. 72-118 to restrict such resentencing.
The matter of sentencing (other than that which is simply automatic, in effect, as in Anderson, supra) is generally for a trial court, which should be left unfettered in the exercise of its function.
1 NAME RACE OFFENSE SENTENCED COUNTY ------------------------- ---- ------- --------- ------------...
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