Dougan v. State

Citation398 So.2d 439
Decision Date09 April 1981
Docket NumberNo. 47260,47260
PartiesJacob John DOUGAN, Jr., Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

Joseph M. Nursey, Atlanta, Ga., for appellant.

Jim Smith, Atty. Gen., Wallace E. Allbritton and David P. Gauldin, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Jacob Dougan was convicted of first degree murder and sentenced to death in a trial proceeding which we affirmed on direct appeal. Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978). At approximately the same time that our decision was rendered in that case, the United States Supreme Court released its opinion in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), holding that it is a denial of due process for the death sentence to be imposed when the trial judge, in weighing the aggravating and mitigating circumstances of the case, considers information which the defendant had no opportunity to deny or explain.

In order to provide for all persons whose sentences of death had been approved by this Court the protections which Gardner required, and to provide for a uniform procedure to hear applications for relief filed in reliance on Gardner, we entered so-called "Gardner relief orders" for all affected individuals. After one such order was entered for Dougan, we vacated Dougan's sentence and remanded for resentencing, Barclay v. State, 362 So.2d 657 (Fla.1978), because the record and response of the trial judge did not clearly indicate that Dougan's counsel had a meaningful opportunity to be heard on any of the matters contained in the pre-sentence investigation report which the trial judge had considered in his original sentencing order. In taking that action, we expressly remanded the case for a new hearing "at which the defense (would have) the opportunity to rebut any of the information contained in the pre-sentence investigation reports ...." Id. at 658. Our directive was quite clear that this Court would review a reimposition of the death penalty. "limited to matters related to the compliance with this order." Id.

The trial judge who originally sentenced Dougan conducted a three-day hearing at which Dougan's attorney produced twenty-six character witnesses and made a number of motions. All motions were denied by the trial judge, and at the conclusion of the hearing a new death sentence was imposed. The case is now back in this Court to review that sentence of death. On the basis of a close review of the transcript of the three-day hearing and all other matters submitted to the Court in conjunction with the appeal now pending, we are satisfied that the trial judge's new sentence of death is appropriate.

Counsel for Dougan filed multiple motions during the course of the Gardner remand proceeding, not one of which was directed to the mandate we had issued. Treating the remand as an opportunity to revisit the constitutionality of the death penalty, the bias of the trial judge, the impropriety of articulated aggravating circumstances found in the original sentencing order, and a range of other matters unrelated to our directive, Dougan's counsel endeavored to treat the remand as a full-blown sentencing proceeding. The trial judge properly rejected counsel's attempt to expand the proceeding. Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). 1

Our vacation of Dougan's death sentence for Gardner relief was technically-based, serving the sole purpose of allowing Dougan's counsel to demonstrate that matters contained in the pre-sentence investigation report were improper and prejudicial. Dougan has now had that opportunity, and from the record he has failed to show that any information contained in the pre-sentence investigation report was in any way erroneous, misleading or prejudicial.

We now hold that Dougan was not prejudiced by the trial court's early consideration of a pre-sentence investigation report which his counsel originally had no opportunity to rebut, that the original findings of the trial court were not tainted or otherwise rendered invalid by the pre-sentence investigation report, and that the reimposition of a death penalty was proper. We affirm the sentence imposed by the trial judge. 2

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and ALDERMAN, JJ., concur.

McDONALD, J., dissents with an opinion with which OVERTON, J., concurs.

McDONALD, Justice, dissenting.

I dissent. The original sentence in this cause was vacated. If execution as ordered is to take place,...

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12 cases
  • Barclay v. Florida
    • United States
    • United States Supreme Court
    • July 6, 1983
    ...mitigating circumstances. It is allowed to draw on any considerations reasonably relevant to the question of mitigation of punishment." 398 So.2d, at 439. In addition, in some cases decided under the pre-1979 statute, see n. 2, supra, the Florida Supreme Court did not expressly conduct the ......
  • Spaziano v. Singletary, 93-2049
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 7, 1994
    ...State, 365 So.2d 696, 699-700 (Fla.1978) (per curiam), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); Dougan v. State, 398 So.2d 439, 440 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981); and, Barclay v. State, 411 So.2d 1310 (Fla.1982), aff'd, 46......
  • Cutbirth v. State, 86-53
    • United States
    • United States State Supreme Court of Wyoming
    • March 11, 1988
    ...with initial affirmation of Dougan's conviction in Barclay, and following remand again affirmed and sentenced to death in Dougan v. State, Fla., 398 So.2d 439, cert. denied 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). In Dougan v. Wainwright, supra, 448 So.2d 1005, the Supreme Court ......
  • Hardwick v. Crosby, 97-2319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 31, 2003
    ......While Hardwick told Dr. Levin that he had killed Pullum, he described his state of mind at the time of the homicide "as foggy, implying that he didn't have complete knowledge of ......
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