State v. BellState v. Bell
No Motion for Rehearing will be entertained by the Court. See
ENGLAND, C.J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.
ALDERMAN, J., dissents with an opinion, with which ADKINS and BOYD, JJ., concur.
ALDERMAN, Justice, dissenting.
Relying upon State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla. 1974), Lowe v. Stack, 326 So.2d 1 (Fla. 1974), and Miller v. State, 332 So.2d 65 (Fla. 1976), the District Court of Appeal, Second District, reversed the denial of the defendant‘s motion to vacate his judgment and sentence on the basis that the trial court did not have jurisdiction to try him. Manucy, Lowe, and Miller, however, are factually distinguishable and do not reach the question posed by the defendant‘s motion to vacate, i.e., whether a conviction for first-degree murder on a properly filed information is void because the trial commenced after the death penalty was reinstated. I conclude that this Court has jurisdiction because the district court‘s reliance on these decisions constitutes a misapplication of the law.
On the merits, the issue before us is whether the defendant‘s conviction and sentence should be vacated and the cause remanded so that he may be tried on a validly returned indictment for the offense of first-degree murder. I disagree with the district court that the judgment and sentence should be vacated; instead, I would quash the decision of the district court and affirm the trial court‘s denial of the motion to vacate.
The defendant was arrested on June 10, 1972, and charged by information on July 27, 1972, with first-degree murder. Because he was found to be mentally incompetent to stand trial at that time, he was committed to the Florida State Hospital, Division of Mental Health. He subsequently was tried on the information by a six-person jury on January 17, 1974, was convicted, and was sentenced to life imprisonment.
At the time the information was filed, Florida‘s statutory procedure for imposing the death penalty had been declared unconstitutional by the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Subsequently, this Court, in Donaldson v. Sack, 265 So.2d 499 (Fla. 1972),
The constitutional requirement for indictment for “capital crime” only by a grand jury does not mean that a person cannot now be indicted or informed against and thereupon tried for what has heretofore been delineated as a “capital crime“. It simply is no longer a “capital crime” and therefore it proceeds as any other felony under the same
Fla. Const. art. I, § 15(a) , in its 2nd clause: “or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court ...”
At the time the defendant in the present case was charged, there were no capital crimes in Florida, the information charging him with first-degree murder was valid, and the circuit court had jurisdiction of this case.
A different situation was presented in State ex rel. Manucy v. Wadsworth, where the defendant was charged by information with first-degree murder after the effective date of the statute reinstating the death penalty, and this Court held that, since Manucy was charged after the revitalization of capital crimes, the constitution required that he be charged by indictment.
The defendant in Lowe v. Stack was informed against on November 20, 1972, for murder in the first degree committed November 13, 1972, after the new death penalty procedure became effective on October 1, 1972. In that case, we held that the defendant should have been indicted as required by
In Miller v. State, the first-degree murder was committed in December 1970, and the indictment was returned before Furman. The defendant in that case thereafter was committed to the Florida State Hospital upon the trial court‘s finding that he was incompetent to stand trial. He was tried in 1974, found guilty, and sentenced to death. Although he argued that he could not be sentenced to death for a capital crime committed before December 8, 1972, this Court held that imposition of the death sentence did not violate
The district court in the present case was led into error by its assumption that the defendant had been tried for a capital offense. In fact, he was not tried for a capital offense because the state had elected to proceed against the defendant by information for the noncapital crime of murder. As we held in Reino v. State, 352 So.2d 853 (Fla. 1977), for an offense to be a “capital offense,” the death penalty must be a possible punishment. In Reino, Justice Sundberg, speaking for the Court, said: “The authorities cited in Donaldson uniformly hold that the death penalty must be a possible punishment in order for the offense to be a `capital offense.‘” 352 So.2d at 857. By proceeding to trial under the validly filed information rather than electing to withdraw the information and indict the defendant, the state precluded the possibility of imposing the death penalty. The death penalty was not a possible punishment, and therefore defendant was not being prosecuted for a capital crime. Cf. Reino v. State. The defendant received a life sentence, and the trial court never treated this case as anything but a noncapital case. He raised no objection and proceeded to trial, secure in the knowledge that his life
ADKINS and BOYD, JJ., concur.