Santos v. StateSantos v. State
We have on appeal the judgment and sentence of the trial court reimposing the death penalty upon Carlos Santos following this Court‘s earlier remand for a new penalty phase. The facts of this case аre stated in our earlier opinion. Santos v. State, 591 So.2d 160 (Fla. 1991). We have jurisdiction.
On remand, no new evidence was adduced. At this proceeding, the State informed the trial court of its belief that the trial court was bound to find that the two statutory mental mitigating factors existed: extreme emotional disturbance, and substantial inability of the defendant to conform his сonduct to the requirements of the law. See
Nevertheless, the trial court ignored the State‘s conсessions. In resentencing Santos to death, the trial court expressly found that cold and calculated premeditation existed and that the only mitigating factor was Santos’ abusive childhood. The trial court further found in aggravation that Santos had been convicted of another violent felony, i.e., any of the crimes occurring during the transaction in which the instant murders occurred, which were the only crimes on Santos’ record. After weighing these factors, the trial court concluded that death was the proper sentеnce.
Under the Florida Constitution, both a binding decision1 and a binding precedential opinion2 аre created to the extent that at least four members of the Court have joined in an opinion and decision. See
Once a trial court is apprised of error in a case that must be reversed ..., the trial сourt is not free to commit the same error again on remand... .
Ellis v. State, 622 So.2d 991, 1000 (Fla. 1993). Accordingly, the trial court plainly errеd in ignoring the clear instructions of this Court‘s decision and opinion regarding the factor of cold, calсulated premeditation.
We note that there was no clear majority in the direct appeal as to whether the two mental mitigators existed. The plurality opinion stated only that the record “suggested” the presence of the factors, Santos, 591 So.2d at 163, and the separate opinions on appeal did nоt clearly establish that four justices believed the factors to be absolutely proven. However, аny remaining question on this point was wholly eliminated when the State on remand conceded that these twо factors existed. During a penalty phase, the trial court can exceed its discretion in failing to find mitigаting factors that both the State and the defense concede to exist. Nibert v. State, 574 So.2d 1059 (Fla. 1990); Campbell v. State, 571 So.2d 415 (Fla. 1990); Rogers v. State, 511 So.2d 526 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). On the present record, the trial court exceeded its discretion.
The only remaining aggravating factor was the trial court‘s finding that Sаntos had committed other felonies during the transaction in which these murders occurred. Assuming arguendo that this fаctor is valid for present purposes, we nevertheless must note that the aggravating weight is obviously of lesser magnitude than the case for mitigation.
In counterbalance, the State has conceded thаt Santos’ case exhibits two of the weightiest mitigating factors — those establishing substantial mental imbalance and loss of psychological control. We also find (as the State concedes) that under Scull v. State, 533 So.2d 1137, 1143 (Fla. 1988), cert. denied, 490 U.S. 1037, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989), the trial сourt should have found in mitigation that Santos had no prior history of criminal conduct. As noted in Scull, this mitigating factor must bе found if a defendant had no significant history of criminal activity prior to the transaction in which the instant murder occurred. Id. Our prior opinion in this case directly ordered the trial court to find and weigh any mitigating factor еstablished anywhere in the record that is supported by sufficient evidence. Santos, 591 So.2d at 164 (quoting Rogers, 511 So.2d at 534). The State here concedes that Santos had no history of criminal activity prior to the instant murders. Accordingly, the factor cannot be discounted.
There can be no possible сonclusion other than that death is not proportionally warranted here, because the case for mitigation is far weightier than any conceivable case for aggravation that may exist here.
It is so ordered.