Davis v. State

• Decision Date: 19 October 1960
• Parties: Robert Wesley DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 703

123 So.2d 703

Robert Wesley DAVIS, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Oct. 19, 1960.

Donald O. Hartwell, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

DREW, Justice.

Robert Wesley Davis was indicted by the Grand Jury of Leon County for the rape of an eleven year old girl. Counsel was appointed to conduct his defense and thereafter a plea of guilty was entered in open court.

Before accepting the plea, the trial court, pursuant to Florida Statutes, § 917.01, F.S.A., ¹ on its own motion appointed two medical experts to examine appellant and, after testimony, the court adjudged the appellant to have been legally responsible at the time of the commission of the act in question and at the time of the trial. ² Evidence was then presented as to the facts and circumstances of the crime and also such matters in mitigation or explanation as should be offered by the defendant. The trial judge made no recommendation of mercy and sentenced the appellant to death.

Appellant has suggested seven questions for our review and they will be considered seriatim:

1. The court erred in permitting the state, after a plea of guilty, to introduce evidence of the commission of a crime, in that such evidence was immaterial and irrelevant to the issue before the court, and that such action on the part of the state resulted in an adversary proceeding contrary to the intent and purpose of Section 921.13, Florida Statutes, F.S.A.

2. The court erred in failing to consider the overwhelming and uncontroverted testimony of mitigating circumstances.

3. The court abused its discretion in imposing the death sentence upon the appellant by disregarding and failing to consider the overwhelming and uncontroverted evidence of mitigating circumstances.

4. The court erred in concluding that the evidence produced on the issue of the sentence to be imposed was not legally sufficient to constitute mitigating circumstances.

5. The court erred in denying the motion for new trial and petition for rehearing on sentence.

6. The sentence imposed was contrary to the manifest weight of the evidence, or was motivated by prejudice, passion, mistake or other improper cause.

7. The sentence imposed by the court was excessive.

These may be reduced to three questions:

1. Whether the failure of the trial judge to find that the appellant was entitled to a recommendation to mercy was an abuse of discretion which is reviewable on appeal.

2. Whether or not, after the appellant entered a plea of guilty, it was an abuse of discretion for the trial court to permit the state to introduce evidence of the facts and circumstances surrounding the commission of the crime charged against the appellant.

3. Whether or not a review of the evidence taken after the entry of the appellant's plea of guilty shows the interests of justice require a new trial within the contemplation of Section 924.32, Florida Statutes, F.S.A. ³ Section 794.01, Florida Statutes, F.S.A., under which the death penalty was imposed appears in the footnote. ⁴

We now turn to the first point on appeal: whether the failure of the trial judge to find that the appellant was entitled to a recommendation to mercy was an abuse of discretion which is reviewable on appeal.

In a long adhered to line of cases, we have held that where a sentence is within the statutory limit, the extent of it cannot be reviewed on appeal regardless of the existence or nonexistence of mitigating circumstances. Section 794.01, supra, fixes the maximum penalty for the offense of the appellant at death and since this is within the statutory limit, it is not reviewable. It is true in 1942 in the case of Nowling v. State, ⁵ we reversed a conviction because, among other things, the sentence was excessive. If the language of the opinion with regard to the length of the sentence was not pure obiter and could be said to establish the law that this Court would review the extent of a sentence within the statutory limits on appeal, such doctrine was receded from the following year in Brown v. State. ⁶ In that case we unequivocally held that the Nowling case, insofar as it could be construed to hold that this Court could review the extent of such a sentence when within the statutory limits, was overruled. There has been no deviation from the rule announced in the Brown case since 1943. ⁷

The question of the severity of the sentence is one, therefore, which must be considered in light of the words of the Court in Stanford v. State, Fla.1959, 110 So.2d 1, 2,

'The length of the sentences imposed in these cases on these young men sounds harsh when viewed in the cold light of this record, but such sentences are less than the maximum fixed by law and this Court has no power to reduce or modify them * * *.' ⁸

With the foregoing legal precept as the keystone, we must further proceed logically to the general rule that the Court has the same power to fix the punishment as the jury would have on the verdict of guilty. ⁹ Recommendation of mercy is a question to be decided on a plenary basis by the trial judge where there is a plea of guilty and is as binding as a jury's decision in that regard. Under Section 794.01, supra, and 919.23(2), ¹⁰ where the defendant is found guilty by a jury, the penalty is death unless a majority of the jurors recommend mercy and where there is no jury such as in the instant case, Section 919.23(2) Florida Statutes, F.S.A., gives the judge power to recommend mercy and thereby eliminate the death penalty.

The finality of the action of the jury in the exercise of its discretion to either recommend or not recommend mercy is not reviewable on appeal. The appellant, having plead guilty here, must be confronted with the proposition that the judge's decision not to grant mercy is likewise unappealable. ¹¹ This Court may not substitute its views for those of the trial judge with respect to whether the death sentence should have been imposed. While the record is silent as to the reason for the plea of guilty by the appellant, it is clear the appellant was willing to leave up to the court the decision of whether he should receive the death penalty or some lesser sentence. ¹²

The second point wherein appellant alleges error was after the plea of guilty was made and the State introduced evidence as to the facts and circumstances surrounding the commission of the crime charged against the appellant. Appellant complains the trial judge, over objection, permitted the State to adduce evidence to prove its case just as though the appellant had been tried by a jury on a not guilty plea. Appellant relies upon Section 921.13, Florida Statutes, F.S.A., as authority for this position. ¹³ Under this statute, which recognizes those instances where trial judges are granted wide discretion as to the penalty to be inflicted on the defendant, express authorization is given on the suggestion of either party to make an independent investigation or inquiry into the circumstances in order to determine the extent of the sentence to be imposed. ¹⁴ To have refused the admission of evidence on the part of the State would be an admission that the trial judge was not entitled to be fully informed of all the facts as a guide in determining what penalty should be imposed. The statute does not proscribe his discretion as to what he desires to learn and we see no reason to do so. The statute mentions, 'circumstances which may be taken into consideration'. The factual data is part of that delimiting area. ¹⁵

To understand the purposefulness of the evidence taken into consideration by the trial judge, the court's findings and judgment are incorporated in the footnotes. ¹⁶

The final point which we must consider, after exacting compliance with Section 924.32, F.S.A., supra, which requires us to read carefully all of the evidence, is to determine whether or not the ends of justice require a new trial. This must be answered in the negative.

The evidence taken in determination of the penalty was strictly speaking taken not at the trial but in compliance with Section 921.13, Florida Statutes, F.S.A., the plea of guilty having eliminated the need for a trial. Since the original trial is the foundation of a new trial, the technical application of Section 924.32, F.S.A. is doubtful. Nevertheless we have observed it meticulously.

The theories of many reputable criminalogists on the responsibility for crime tend to explain the seemingly incomprehensible act of this appellant. Crime must be punished but it is the consideration of the individual that should determine the kind of treatment appropriate to his case. ¹⁷ Responsibility should be the basis of punishment, and individualization the criterion of its application; such is the formula of modern penal law. Whether this product of heredity and environment is given the benefit of further consideration as to the severity of his punishment is a matter for the Pardon Board to decide.

Affirmed.

THOMAS, C. J., and TERRELL, HOBSON, ROBERTS, THORNAL and O'CONNELL, JJ., concur.

1 '917.01 Examination of defendant's mental condition to determine whether he shall be tried.--(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The court may appoint two disinterested qualified experts to examine the defendant and to testify at the hearing as to his mental condition. Other evidence regarding the defendant's mental condition may be introduced at the hearing by either party.

'(2) If the court, after the hearing, decides that the defendant is sane, it shall proceed with the trial. If, however, it decides that the defendant is insane, it shall take proper steps to have the defendant committed to the proper...