TEXAS INTERNATIONAL AIRLINES, INC. v. NATIONAL AIRLINES, INC.
No. 83-932
C. A. 5th Cir.
1052
No. 83-932. TEXAS INTERNATIONAL AIRLINES, INC. v. NATIONAL AIRLINES, INC. C. A. 5th Cir. Motion of petitioners in No. 83-1111, Heublein, Inc. v. General Cinema Corp., to consolidate with this petition denied. Certiorari denied.
No. 83-962. MEAT PRICE INVESTIGATORS ASSN. ET AL. v. SAFEWAY STORES, INC., ET AL. C. A. 5th Cir. Certiorari denied. JUSTICE O‘CONNOR took no part in the consideration or decision of this petition.
No. 83-991. ALUMINUM COMPANY OF AMERICA ET AL. v. UTILITIES COMMISSION OF NORTH CAROLINA ET AL. C. A. 4th Cir. Certiorari denied. JUSTICE BRENNAN and JUSTICE WHITE would grant certiorari.
No. 83-1023. DATA PROBE ACQUISITION CORP. ET AL. v. DATATAB, INC., ET AL. C. A. 2d Cir. Certiorari denied. JUSTICE POWELL would grant certiorari.
No. 83-5874. WITHERS v. ILLINOIS. App. Ct. Ill., 1st Dist. Certiorari denied. JUSTICE BRENNAN and JUSTICE MARSHALL would grant certiorari.
No. 83-5956. JUSTUS v. FLORIDA. Sup. Ct. Fla. Certiorari denied.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
Petitioner Justus was sentenced to death through the retroactive application of a statutory aggravating factor in violation of the Federal Constitution‘s prohibition against ex post facto punishments.
In Weaver v. Graham, 450 U. S. 24, 30 (1981), this Court held that a change in sentencing procedures violates the Constitution‘s prohibition against ex post facto punishments “if it is both retrospective and more onerous than the law in effect on the date of the offense.” Both the Florida Supreme Court and the State‘s Attorney General concede that the constitutionality of applying Florida‘s new aggravating factor to petitioner must be measured by the Weaver test. See Combs v. State, 403 So. 2d 418, 421 (Fla. 1981), cert. denied, 456 U. S. 984 (1982), quoted in 438 So. 2d 358 (Fla. 1983); Brief in Opposition 4.
The State‘s sole argument is that the application of this new aggravating factor had no detrimental effect on petitioner, and therefore was not onerous under Weaver. See 438 So. 2d, at 368. The State‘s view is that, since premeditation was already an element of first-degree murder, the retroactive application of Florida‘s new aggravating factor placed no additional burden on petitioner. Indeed, the Florida Supreme Court has taken the peculiar position that this new factor “inure[s] to the benefit of a defendant” because the factor adds to premeditation the limitations of “cold, calculated and . . . without . . . moral or legal justification.” Combs v. State, supra, at 421.
The State‘s position is simply untenable. A Florida Circuit Judge relied upon Florida‘s new aggravating factor to sentence petitioner to death. Before 1979, the Florida death penalty statute contained no aggravating factor analogous to the one added by 1979 Fla. Laws, ch. 79-353. Had the new factor not been applied at petitioner‘s sentencing trial, the sentencing judge would have found only one aggravating factor, and it is impossible to know whether he still would have chosen to impose the death penalty. The application of the new aggravating factor made it easier for the Florida judge to sentence petitioner to death, and for that reason alone was more onerous for petitioner than the sentencing procedure in place at the date of his offense. See Weaver v. Graham, supra.
The detrimental effect of 1979 Fla. Laws, ch. 79-353, on petitioner is in no way ameliorated by the fact that premeditation was
More importantly, defending an aggravating factor by reference to elements of the underlying offense is inconsistent with this Court‘s prior death penalty decisions. The sole purpose of requiring a sentencing authority to balance aggravating factors against mitigating circumstances is to force the sentencer to look beyond the offense to determine whether capital punishment is warranted given the totality of the circumstances surrounding the crime. By amending its death penalty statute, Florida changed the ground rules for judging the totality of the circumstances. This change most definitely prejudiced petitioner.
As the State itself concedes, “[w]hether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor is a federal question.” Brief in Opposition 3. Because I believe that the Florida Supreme Court incorrectly decided this question, I would grant the petition and vacate the sentence.* I dissent.
No. 83-6042. JOHNSON v. UNITED STATES. Ct. App. D. C. Certiorari denied. JUSTICE BLACKMUN would grant certiorari.
No. 82-2004. NIBUNGCO v. UNITED STATES, 464 U. S. 823;
No. 83-561. MORETTI ET AL. v. MULTI-PAK CORP. ET AL., 464 U. S. 988;
No. 83-662. GAINES v. MERCHANTS NATIONAL BANK & TRUST CO., 464 U. S. 1013; and
No. 83-668. PACE v. SOUTHERN RAILWAY CO., 464 U. S. 1018. Petitions for rehearing denied.