Dobbert v. State
| Decision Date | 05 July 1979 |
| Docket Number | No. 45558,45558 |
| Parties | Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Louis O. Frost, Jr., Public Defender, William P. White, III, Chief Asst. Public Defender, and Charles M. Johnston, Asst. Public Defender, Jacksonville, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from a death sentence imposed after this Court temporarily relinquished jurisdiction to the trial court with directions to vacate the death sentence previously entered and to allow the defendant to respond to the presentence investigation report before resentencing. We affirm the new sentence of death.
In April, 1974, Ernest John Dobbert was convicted of the first-degree murder of his nine-year-old daughter. The jury, after the sentencing hearing, recommended that a life sentence be imposed, but the trial judge imposed a sentence of death. Dobbert was also convicted of the second-degree murder of his seven-year-old son, child torture of another son, and child abuse of another daughter. His judgments of conviction and sentences were affirmed by this Court. Dobbert v. State, 328 So.2d 433 (Fla.1976). Judgment of this Court was affirmed by the Supreme Court of the United States. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).
Subsequently, this Court entered an order, pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), directing the trial judge to file a response with this Court stating whether he imposed the death sentence on the basis of any information not known to Dobbert. The trial judge filed his response, and Dobbert then filed an application for relief and alleged that defense counsel was never furnished a copy of the presentence investigation report prior to sentencing. By order entered on March 31, 1978, we temporarily relinquished jurisdiction of this case to the trial court with directions to vacate the death sentence and to afford Dobbert an opportunity to respond to the presentence investigation report before his resentencing. The trial judge vacated his earlier sentence and not only afforded Dobbert an opportunity to respond to the presentence investigation report but also permitted a plenary sentencing hearing at Dobbert's request. After reconsidering all matters previously presented, plus the additional matters presented at the last sentencing hearing, the trial judge resentenced Dobbert to death.
In his lengthy sentencing order, the trial judge found no mitigating circumstances and found the following aggravating circumstances to exist: (1) Dobbert was under sentence of imprisonment when he committed the murder for which he was convicted; (2) he knowingly created a great risk of death to many persons; (3) the murder was committed to avoid or prevent a lawful arrest; and (4) the murder was especially heinous, atrocious, and cruel.
We hold that the trial judge improperly found as aggravating circumstances that Dobbert was under sentence of imprisonment when he committed the murder and that Dobbert knowingly created a great risk of death to many persons. There is no evidence that Dobbert was under sentence of imprisonment when he committed the murder for which he was convicted. Furthermore, in the murder of his nine-year-old daughter, Dobbert did not knowingly create a great risk of death to many persons as this aggravating circumstance has been construed by this Court. Kampff v. State, 371 So.2d 1007 (Fla.1979); Elledge v. State, 346 So.2d 998 (Fla.1977).
Although two aggravating circumstances were improperly determined to exist, we conclude that the trial court properly found that the murder was committed to avoid lawful arrest and was especially heinous and cruel. In support of his finding that the murder was committed to avoid lawful arrest, the trial judge explained:
The evidence and testimony showed that defendant constantly beat Kelly Ann Dobbert, kicked and hit her with fists and other objects caused her to be violently and chronically ill from such torture and that she was scarred, battered and bruised. That to prevent her condition from being known to the authorities, he denied her any medical treatment. The defendant locked her inside the home in his absence, confined her to the house when he was present and finally murdered her, placed her body in a plastic sheet and buried her in an unknown and unmarked grave. All of which was done to prevent discovery of her condition and to avoid...
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