Craig v. State, No. 34101

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; THORNAL; THOMAS; ERVIN; ERVIN
• Citation: 179 So.2d 202
• Docket Number: No. 34101
• Decision Date: 13 October 1965
• Parties: William Benjamin CRAIG, Appellant, v. STATE of Florida, Appellee.

Page 202

179 So.2d 202 William Benjamin CRAIG, Appellant,
v.
STATE of Florida, Appellee. No. 34101. Supreme Court of Florida. Oct. 13, 1965.

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Howard W. Dixon, Tobias Simon, Maurice Rosen, Miami, Jack Gdreenberg and Leroy D. Clark, New York City, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

PER CURIAM.

The appellant Craig was convicted of the crime of rape and sentenced to pay the supreme penalty. The conviction was affirmed on direct appeal. Craig v. State, Fla., 168 So.2d 747.

Craig filed in the trial court a 'Motion for reduction of sentence from death to life.' Allegedly, he moved under Section 921.24, Florida Statutes, F.S.A., which authorizes the correction of an illegal sentence in a criminal case. By his motion, the appellant contended that:

(a) Sec. 794.01, Fla.Stat., F.S.A., which imposes the death sentence for the crime of rape, is violative of the constitutional prohibition of cruel and unusual punishment prescribed by the Eighth Amendment, Constitution of the United States.

(b) Sec. 794.01, supra, is patently unconstitutional because it requires the trial jury simultaneously to determine both guilt or innocence and the penalty.

(c) Sec. 794.01, supra, is patently applied to appellant. It is alleged that statistics reveal a pattern of discrimination against negroes in the imposition of the death sentence. Craig is a negro.

The Circuit Judge denied the Motion and expressly upheld the validity of Section 794.01, supra, against all attacks leveled at it. Craig appeals.

We have considered the Motion as a collateral, post conviction assault on a judgment of conviction within the scope of our Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix. Regardless of the title of the document, its purpose is to attack the judgment on constitutional grounds. We, therefore, treat appellant's Motion as if it were filed under Rule 1, supra.

We take jurisdiction because the trial judge passed directly on the validity of Section 794.01, supra. Article V, Section 4(2), Florida Constitution, F.S.A. We do not construe the instant judgment as one imposing the death penalty. That was done by the original judgment of conviction which was assaulted by the post conviction Motion. The judgment here was final because the Circuit Judge had fully completed his judicial labor. We regard it as appealable just as any other Rule 1 order is appealable. We have held that such orders will be reviewed by this Court, or an

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appropriate District Court, depending upon the content of the order. Roy v. Wainwright, Fla., 151 So.2d 825. Where, as here, such an order passes directly on the validity of a state statute it comes directly to the Supreme Court from the trial court. We have said that the procedure is the same as in habeas corpus. Mitchell v. Wainwright, Fla., 155 So.2d 968. When the order does not bring the case within our appellate jurisdiction, it should go to the proper District Court.

On the merits we find that the circuit Judge ruled correctly in sustaining the validity of the statute against the attack made upon it.

The judgment in affirmed.

THORNAL, C. J., and ROBERTS, DREW, O'CONNELL and CALDWELL, JJ., concur.

THOMAS, J., dissents.

ERVIN, J., dissents with opinion.

ERVIN, Justice (dissenting).

Appellant was convicted in the Circuit Court of Leon County, Florida, of rape of a female over the age of ten years and sentenced to death pursuant to F.S. § 794.01, F.S.A., such sentence being mandatory there being no recommendation of mercy by the jury.

He appealed his conviction to this Court and the judgment of conviction was affirmed. See Craig v. State, Fla., 168 So.2d 747.

This is a second appeal to this Court. In this appeal it appears the Appellant, as defendant, filed motion for reduction of sentence from death to life imprisonment or less with the Circuit Court of Leon County, pursuant to F.S. § 921.24, F.S.A., which provides a trial court at any time may correct an illegal sentence. The motion was denied by the Circuit Court. In its denial the Circuit Court upheld the constitutionality of F.S. § 794.01, F.S.A. It follows our jurisdiction is properly invoked by the Appeal under Section 4(2), Article V, State Constitution.

Appellant, a member of the Negro race, urges reversal and assigns four reasons as follows:

No. 1. Imposition of the death penalty on Craig pursuant to Florida's practice of racial discrimination in capital punishment for rape denies him the equal protection of the laws guaranteed by the Fourteenth Amendment.

No. 2. Florida's grant to juries and the Pardon Board of unlimited, undirected and unreviewable discretion in the imposition of the death penalty for rape violates the due process clause of the Fourteenth Amendment.

No. 3. Florida's single verdict Procedure allowing the jury which determines guilt to fix capital punishment for rape violates the due process clause of the Fourteenth Amendement.

No. 4. Florida's imposition of the death sentence for rape where no life was taken and without consideration of the aggravating or mitigating circumstances of the particular offense subjects Appellant to cruel and unusual punishment in violation of the Eighth Amendment as incorporated in the Fourteenth Amendment.

By motion supported by affidavit, Appellant brought to the attention of the trail court the following statistical data which was not contradicted by the State:

'6. In the 25-year period between January 1, 1940, and December 31, 1964, inclusive of the case at bar, 285 persons

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have been convicted of the crime of rape in the State of Florida. Of these, 152 have been Negoroes, 132 have been White, and one was an Indian. Nevertheless, only 6 Whites and 48 Negroes have been sentenced to death; of these, only 1 White man has died, while 29 Negroes have been electrocuted and 12 more await execution in Death Row at Florida State Penitentiary at Raiford. * * *'

Based on this data, Appellant contends under Reason No. 1 that F.S. § 194.01, F.S.A., which reads as follows:

'Rape and forcible carnal knowledge; penalty.--Whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death, unless a majority of the jury in their verdict recommend mercy, in which event punishment shall be by imprisonment in the state rison for life, or for any term of years within the discretion of the judge. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.',

is unconstitutional because juries in the State of Florida have systematically applied this statute mainly against members of the Negro race. He argues the statute violates the equal protection clause of the Federal Constitution because the history and statistics of its application by juries in the state disclose the infliction of death sentences in rape cases has been much greater upon Negroes than upon white persons. He cites in support of this contention Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Watson v. City of Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.E.2d 529 (1963); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124 (1940); Fowler v. State of Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Hamilton v. Alabama, 376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 979 (1964); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal.Rptr. 852; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 LEd.2d 991 (1958); Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Oyama v. State of California, 332 U.S. 633, 92 L.Ed. 249 (1948); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

In support of Reason No. 2, Appellant contends that the authority given to juries to make recommendations of mercy as to death sentences for rape, amounts to an unlimied, undirected and unreviewable discretion violation of due process of law. The Appellant contends no standards are prescribed for the exercise of this authority and that the same is exercised arbitrarily and irrationally by juries. He cites in support Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 81 L.Ed. 1066 (1937); Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 LEd. 1264 (1931); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).

As to reason No. 3, Appellant contends the single verdict phase procedure now followed in our state authorizing juries which

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determine guilt simultaneously to fix capital punishment for rape violates due process of law in that this procedure tends to deny a defendant a fair...