Donaldson v. Sack

• Decision Date: 17 July 1972
• Docket Number: No. 42569,42569
• Citation: 265 So.2d 499
• Parties: Anthony DONALDSON, Petitioner, v. The Honorable Martin SACK, as Circuit Judge of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
• Court: Florida Supreme Court

Page 499

265 So.2d 499

Anthony DONALDSON, Petitioner, v. The Honorable Martin SACK, as Circuit Judge of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.

No. 42569.

Supreme Court of Florida.

July 17, 1972.

Lacy Mahon, Jr., of Mahon & Mahon, Jacksonville, for petitioner.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.

DEKLE, Justice.

This original proceeding in prohibition requires us immediately to determine the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its companion cases pertaining to capital punishment, upon the jurisdiction of the circuit courts and courts of record in this state and upon related matters in capital cases. Our jurisdiction derives from Fla.Const. art. V, § 4(2), F.S.A.

INTRODUCTION

It is as a matter of great public interest and for the orderly procedure of speedy trials in our courts that we proceed to an opinion in this matter, even though it must of necessity be subject to any stay that might be granted by the U.S. Supreme Court on or before July 24, 1972. ¹ During this interim our trial courts require guidance and defendants must be afforded proper procedures to follow which accord with due process. It is with this in mind and subject to what may be the outcome of any stay or rehearing by the U.S. Supreme Court that we proceed with this opinion because the matter is for this period somewhat in a state of flux and guidance should be promptly extended by this Court.

FACTS

As revealed by petitioner's suggestion and brief, the facts presented in this prohibition are as follows: Petitioner has been indicted for murder in the first degree under Fla.Stat. § 782.04, F.S.A. Immediately prior to the commencement of his scheduled trial, petitioner moved to dismiss or to transfer the cause to the Criminal Court of Record of Duval County on the ground that the circuit court lacked jurisdiction. The motion states that Furman divests the circuit court of its jurisdiction in first degree murder cases. Relying upon the Attorney General's comprehensive opinion analyzing Furman, the respondent circuit judge denied the motion, thus confirming the circuit court's jurisdiction in cases charging first degree murder.

JURISDICTION

Petitioner seeks prohibition to prevent respondent circuit judge from proceeding with the trial set and contends that the Criminal Court of Record of Duval County now has sole jurisdiction by virtue of the U.S. Supreme Court rulings voiding capital punishment as now legislated; ergo, 'no capital punishment, no 'capital case."

Fla.Const. art. V, § 9(2), vests jurisdiction in the criminal courts of record of this state of 'all criminal cases not capital.' Fla.Const. art. V, § 6(3), ² provides the jurisdiction of our circuit courts as 'all criminal cases not cognizable by subordinate courts.' Since Furman v. Georgia, Supra, in effect 'removes' (until new legislation which may revive it) 'capital cases,' then there appears to be no logical escape from the fact that our circuit courts at this time, and until any legislation which may revive 'capital cases,' do not have jurisdiction in those cases heretofore delineated as 'capital' and accordingly subsequent to Furman jurisdiction in such cases now pending or being filed vests in the courts of record and may be transferred there in those 17 counties of Florida which have such courts. Of course there is no change with respect to the remaining circuit courts in the other counties of Florida where all such jurisdiction remains in the circuit court for the trial of all felonies. Furman has no jurisdictional effect in those counties.

VALIDITY

We have examined every reasonable avenue to uphold the several statutes and rules insofar as they assert 'capital offense,' as we must do under the rule favoring validity unless clearly indicated otherwise. ³ We are unable in the face of existing authorities and logic to find support for the continuance of 'capital offense' as heretofore applied. Accordingly, it must fall with the U.S. Supreme Court's holding against the death penalty as provided under present legislation. Our decision is compelled by that Court's action.

The Attorney General makes a valiant attempt to analyze and to analogize the statutes to support the continued existence of a 'capital offense' which would retain jurisdiction for trial thereof exclusively in the circuit courts of this state. He suggests that the new definition of 'capital felonies' under Fla.Stat. 775.081(1), F.S.A. makes these three offenses of first degree murder, kidnaping and rape 'capital' for purposes of jurisdiction. We are afraid that this effort meets the same fate as the other arguments for a continuing existence of 'capital offense'; we must refer to the penalty section, § 775.082(1) in this consideration, and this leads us right back to the old language of 'punishable by death'.

Succinctly, we must determine the meaning of 'capital offense' following the abolition of the death penalty as heretofore imposed in this state. Some of our sister states have faced a similar situation under slightly different circumstances. In these states, the state legislatures abolished capital punishment and subsequent judicial cases construed its impact upon the constitutional term 'capital offenses.'

'Since there is now no capital punishment in this state, there are no capital offenses . . ..'

State v. Johnston, 83 Wash. 1, 2, 144 P. 944, 945 (1914).

'Murder in the first degree is not a capital offense when it cannot be punished by death.'

State v. Pett, 253 Minn. 429, 432--433, 92 N.W.2d 205, 207 (1958).

Earlier cases from the U.S. Supreme Court defining 'capital offense' support this rationale. They hold that the death penalty must be a possible punishment in all 'capital' cases. Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078 (1900); Rakes v. United States, 212 U.S. 55, 29 S.Ct. 244, 53 L.Ed. 401 (1909).

Our own Court in the early case of Cox v. State, 63 Fla. 12, 15, 58 So. 49, 50 (1912), citing the relevant provisions of our constitution and statutes held:

'Under the above-quoted provisions of the organic law, a trial on the third count of the indictment should not have been had in the circuit court, since such count charges an offense not capital, and there is a criminal court of record established in Dade county. The circuit court had no jurisdiction to try the defendant on the count charging an offense not capital, or to render a judgment or sentence of conviction predicated on a verdict of guilty under such count.'

In Adams v. State, 56 Fla. 1, 14, 48 So. 219, 224 (1908), we defined the term 'capital case':

'A 'capital case' is a case in which a person is tried for a capital crime. A 'capital crime' is one for which the punishment of death is inflicted. The crime of murder in the second degree is punished by imprisonment in the state prison for life, and is not a capital crime.' (emphasis added)

In Cotton v. State, 85 Fla. 197, 202, 95 So. 668, 670 (1923), this Court again made reference to 'capital offense':

'The issue presented was whether the defendant had been lawfully indicted for A capital offense; that is to say, whether an indictment upon which he should be put on trial for his life had been returned against him.' (emphasis added)

SENTENCING

We find no difficulty with a continuation of the Sentencing for these former 'capital offenses' under § 775.082(1) as automatically life imprisonment upon conviction, inasmuch as that is the only offense left in the statute. (This was not the case when we had before us the earlier case of Barlow v. Taylor, 249 So.2d 437 (Fla.1971).) The elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of course this clearly exists in these circumstances. ⁴ The comprehensive opinion by Mr. Justice Roberts (now Chief Justice) in Small v. Sun Oil Co., 222 So.2d 196 (Fla.1969), skillfully analyzes this rule of severability. This position is consistent with the Legislature's express intent in this area. At their 1972 Session, the Legislature foresaw the possibility of the current situation and provided:

'775.082 Penalties for felonies and misdemeanors--(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, a person who has been convicted of a capital felony shall be punished by life imprisonment.'

Ch. 72--118, effective 10--1--72.

RULES--JURY

Consistent with our consideration of the constitutional and jurisdictional questions is a review of our own Court rules which are likewise affected. No longer applicable are those portions of rules which are based upon 'capital offenses,' such as Criminal Court Rule 3.270, 33 F.S.A. requiring twelve persons to constitute a jury to try 'all capital cases.' ⁵ That portion of the rule remains, however, for the six person jury to try 'all other criminal cases,' now including those formerly designated as 'capital'. There is no constitutional denial of due process here inasmuch as the Florida constitutional provision in art. I, § 22, is only that the number of jurors shall be 'not fewer than six' and 'shall be fixed by law.' Pursuant thereto the law fixed the number at twelve for 'capital cases' but 'capital cases' having been eliminated by the U.S. Supreme Court ruling leaves in effect the six jurors for all cases. There may be defendants who would prefer a 12-man jury, but unfortunately this 'went by the board' along with these U.S. Supreme Court holdings. This would not constitute a ground for remaining in the circuit court where formerly 12-man juries were provided by the statute ⁶ nor for retaining 12-man juries in interim 'capital' trials in circuit courts or...