Spaziano v. State, No. 50250

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; ALDERMAN; McDONALD; McDONALD
• Citation: 433 So.2d 508
• Docket Number: No. 50250
• Decision Date: 26 May 1983
• Parties: Joseph Robert SPAZIANO, Appellant, v. STATE of Florida, Appellee.

Page 508

433 So.2d 508 Joseph Robert SPAZIANO, Appellant,
v.
STATE of Florida, Appellee. No. 50250. Supreme Court of Florida. May 26, 1983.
Rehearing Denied July 13, 1983.

Page 509

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender and Jerry L. Schwarz, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Tallahassee, Richard W. Prospect and Sean Daly, Asst. Attys. Gen., Daytona Beach, for appellee.

Page 510

PER CURIAM.

This is an appeal from a death sentence which was reimposed upon appellant following a resentencing hearing ordered by this Court in Spaziano v. State, 393 So.2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 S.Ct. 581, 70 L.Ed.2d 484 (1981). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm.

Appellant was convicted in 1976 of the first-degree murder of Laura Harberts. The testimony at appellant's trial revealed that appellant "often bragged about the girls he had mutilated and killed," and that on one occasion he had taken two individuals to a dump site to show them two corpses to substantiate his claim of responsibility for the murders. One of the individuals accompanying appellant to the dump site later directed police officers to the bodies, one of which was identified through the use of dental records as being that of Miss Harberts.

The jury recommended that appellant be sentenced to life imprisonment. The trial judge, at the initial sentencing proceeding, ordered and considered a presentence investigation report. He imposed the death sentence, finding two aggravating circumstances: (1) that the offense was committed in a manner which was heinous, atrocious, and cruel; and (2) that the defendant was previously convicted of felonies involving the use or threat of violence to the person. These felony convictions were listed in the presentence investigation report, and included two convictions discussed in a confidential section of the report which the appellant was not given the opportunity to explain or deny.

On appeal, we affirmed appellant's conviction, but remanded for resentencing to comply with the dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), which was decided after the trial of this case.

Following our remand, the trial judge ordered a new presentence investigation report and conducted a hearing to provide appellant the opportunity to respond to the report. Following this sentencing hearing, the trial judge reimposed the death sentence, once again finding two aggravating and no mitigating circumstances. Appellant raises five asserted errors in the resentencing proceedings.

Appellant first contends that at the resentencing hearing the trial judge improperly allowed the state to introduce new evidence in support of an aggravating circumstance. In the original sentencing phase, the trial judge rejected the state's proffer of evidence to the jury which established the appellant's conviction of forcible carnal knowledge and aggravated battery because the conviction was then on appeal. This information was also contained in the original presentence investigation report. Upon remand, because this conviction was affirmed on appeal, the trial judge did consider it as an aggravating circumstance in the resentencing proceedings. Appellant contends that the consideration of this conviction improperly expanded the scope of the remand in violation of 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), and Dougan v. State, 398 So.2d 439 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981), and in effect allowed the state to reopen its case to prove additional aggravating factors in the sentencing phase in violation of the double jeopardy rule set out in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). We reject this contention.

Neither Songer nor Dougan is applicable here. In each case this Court rejected appellant's attempt to expand the Gardner remand proceedings beyond the limited purpose of explaining or denying the contents of the presentence investigation report by either calling character witnesses whose testimony was not relevant to the report or by attempting to create a full-blown sentencing proceeding. The conviction considered by the court in the resentencing...