State v. Lee

• Decision Date: 27 November 1973
• Docket Number: No. R--452,R--452
• Citation: 286 So.2d 596
• Parties: STATE of Florida, Appellant, v. Rudolph Valentine LEE, Appellee.
• Court: Florida District Court of Appeals

Page 596

286 So.2d 596

STATE of Florida, Appellant, v. Rudolph Valentine LEE, Appellee.

No. R--452.

District Court of Appeal of Florida, First District.

Nov. 27, 1973.

Rehearing Denied Jan. 7, 1974.

Donald G. Nichols, State's Atty., Bartley K. Vickers, Asst. State's Atty. and Raymond L. Marky, Asst. Atty. Gen., for appellant.

Roy E. Dezern, and Walter R. Stedeford, Jacksonville, for appellee.

SPECTOR, Judge.

The State of Florida seeks reversal of an order entered by the circuit court which vacated and set aside a death sentence entered against appellee upon his conviction of murdering a police officer and instead imposed a life sentence. We agree with appellant and reverse and remand for a new trial to be held on the issue of penalty only, pursuant to the newly enacted death penalty statute, Section 921,141, Florida Statutes, F.S.A., which has recently been upheld by the Florida Supreme Court, infra.

Appellee, Rudolph Valentine Lee, was found guilty of murdering a police officer, Edward James Parker, who accosted Lee during the alleged commission of a rape in Jacksonville, Florida. Apparently seeking to escape and avoid arrest, Lee jumped out of the car where he was detaining the two alleged rape victims at gunpoint and shot and killed the officer as he was approaching to investigate the presence of the parked car.

The jury failed to recommend mercy, and on June 22, 1972, the trial court imposed the death penalty on appellee. One week later, June 29, 1972, the United states Supreme Court rendered its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reversing the death sentence of the appellants on the ground that:

'(T)he imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment.' pp. 239--240, 92 S.Ct. p. 2727.

Shortly after Furman, supra, the appellee, on July 19, 1972, filed his motion pursuant to Rule 1.800 (now 3.800), Florida Rules of Criminal Procedure, 33 F.S.A., seeking to set aside the death sentence earlier imposed upon him on the stated ground that the 'United States Supreme Court effectively struck down capital punishment throughout the country in its decision in Furman v. Georgia, 40 L.W. 4923'. On July 21, 1972, the trial court entered its order the judgment granting appellee's motion and finding that the death sentence was illegal on authority of Furman v. Georgia. Thereupon the court vacated the death sentence and imposed a life sentence upon the appellee.

The State took a timely appeal from that order contending that by its order the trial court erroneously ruled all death penalties, no matter how imposed or carried out, to be unconstitutional. Furman did not hold that the death penalty, per se, is unconstitutional. A number of legal scholars have announced that Furman abolished the ultimate penalty, but few judicial officers agree. The former simply are substituting their personal predilections as to what the law ought to be, while the latter are duty bound to follow and apply without equivocation the duly enacted laws until held invalid by a court of competent jurisdiction.

The State's apprehension that the order vacating appellee's sentence was erroneous is understandable when one examines the only contention made in support of the motion to vacate, i.e., that the United States Supreme Court struck down capital punishment. Much has been said by judges and lawyers about the Furman decision and its import. However, the one thing that has Not been authoritatively said about Furman is that it abolished the death penalty.

At the time of the murder for which appellee was convicted, the law of Florida provided that a person convicted of a capital felony Shall be punished by death Unless there was a recommendation of mercy, and of course there was none in the case at bar. Since the Furman decision did not invalidate the death penalty per se, the only other portion of our death penalty statute which could have been affected was that portion which related to or provided for recommendations of mercy by a jury. Indeed, wading through the morass of verbiage in all nine of the separate Furman opinions convinces me that it was the manner in which the jury played its role in granting or withholding mercy in death cases with which the court found fault.

Thus, the motion to vacate and the order granting same erroneously assumed that the death penalty per se had been abolished by the Furman decision.

During the pendency of this appeal, the legislature enacted Chapter 72--72, Laws of Florida, 1972, appearing in Florida Statutes as Section 921.141, F.S.A. That statutory provision was enacted following the United States Supreme Court's decision in Furman in an obvious effort to retain capital punishment in a form and under circumstances believed to be acceptable to the United States Supreme Court. In State v. Dixon, State v. Setser, State v. Hunter and State v. Sheppard, 283 So.2d 1, decided July 26, 1973, the Florida Supreme Court considered the various objections to the unbridled discretion vested in pre-Furman juries and ruled that such defects of infirmities which were held to exist in Furman had been cured by Section 921,141, the new death penalty law. Accordingly, the State now has a valid law whereunder the death penalty may be constitutionally imposed.

At the time of the offense and trial herein, Florida law provided for the death penalty in capital cases unless the jury recommended mercy. The provision for mercy which was embodied in our law having been held defective, has since been replaced by a valid proviso recently upheld by the Florida Supreme Court, supra. The rectification, as it were, occurred during the pendency of this appeal and therefore before the order and judgment vacating appellee's death sentence became final.

It has long been recognized that an appellate court will apply the law which obtains at the time the appeal is decided in determining the correctness of the order or judgment before it. See R & R Lounge, Inc. v. Wynne, Fla.App., dated November 27, 1973; Florida East Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1967); and Ingerson v. State Farm Mutual Automobile Insurance Co., 272 So.2d 862 (Fla.App.1973). Obviously, the application of that principle in a criminal case is subject to the constitutional prohibition against ex post facto laws discussed hereinafter. See also Blackmon v. State, 262 So.2d 264 (Fla.App.1972).

Since during the pendency of this appeal the statute providing for the manner in which the penalty is to be determined in capital felonies has been changed, we are bound to reverse the order setting aside appellee's death sentence and remand with directions that appellee be given a new trial on the issue of penalty only in acordance with Section 921.141, Florida Statutes, F.S.A., which has recently been upheld by our Supreme Court in State v. Dixon, supra.

In reversing and remanding this case for a new penalty trial, we are not unmindful of the possible contention that a retrial under the newly enacted death penalty statute may collide...