# Petition — DAVID L. FUNCHESS v. FLORIDA (No. 81-5329) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1755%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 ## Text 81-5329 RECEIVED No. AUG 2 8 198) IN THE SUPREME crc UERK SUPREME COURT OF THE UNITED STATES Octoper Term, 1980 DAVID LIVINGSTON FUNCHESS, PETITIONER, -V- STATE OF FLORIDA. RESPONDENT. Petition For Writ Or Certiorari To THe Supreme CourT oF FLORIDA P, Douctas BRINKMEYER Assistant PuBLic DEFENDER Second Jupiciat CircuIT Post OrFice Box 671 TALLAHASSEE. FioripA 32302 (904) 488-2458 (MemBper Of THe Bar OF THis Court) QUESTIONS PRESENTED PAGE(S) QUESTION #1 WHETHER STANDARDLESS APPL{‘CATION OF A MITIGATING CIRCUMSTANCE THAT “THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY" THAT BY STATUTE IS ONE OF SEVERAL FACTORS TO BE DETERMINATIVE OF THE SENTENCE CONSTITUTES A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WHEN A SENTENCE OF DEATH IS IMPOSED. and WHETHER ARBITRARY APPLICATION FROM CASE TO CASE OF THE SAME MITIGATING FACTOR, RESULTING IN PREJUDICIAL APPLICATION TO THE PETITIONER, VIO- LATES THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT. 3 QUESTION #2 WHETHER IT IS CONSTITUTIONALLY PER- MISSIBLE FOR THE STATE TO PLACE THE BURDEN ON THE DEFENDANT TO PROVE BEYOND A REASONABLE DOUBT THAT HIS IS NOT A DEATH PUNISHABLE CRIME. 7 QUESTION #3 WHETHER THE SUPREME COURT OF FLORIDA HAS FASHIONED ADEQUATE RELIEF FOR VIOLATIONS OF GARDNER v. FLORIDA, and WHETHER THE SUPREME COURT OF FLORIDA HAS ENGAGED IN RUBBER-STAMP REVIEW OF DEATH SENTENCES RE-IMPOSED BY TRIAL JUDGES. 10 TABLE OF CONTENTS PAGE (S) QUESTIONS PRESENTED i TABLE OF CONTENTS ii TABLE OF CITATIONS iii CITATION TO OPINION BELOW JURISDICTION CONSTITUTION & STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW ~ wn FY FY FY REASONS FOR GRANTING WRIT QUESTION #1 WHETHER STANDARDLESS APPLICATION OF A MITIGATING CIRCUMSTANCE THAT “THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY" THAT BY STATUTE IS ONE OF SEVERAL FACTORS TO BE DETERMINATIVE OF THE SENTENCE CONSTITUTES A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WHEN A SENTENCE OF DEATH IS IMPOSED, and WHETHER ARBITRARY APPLICATION FROM CASE TO CASE OF THE SAME MITIGATING FACTOR, RESULTING IN PREJUDICIAL APPLICATION TO THE PETITIONER, VIOLATES THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT. 3 QUESTION #2 WHETHER IT IS CONSTITUTIONALLY PERMISSIBLE FOR THE STATE TO PLACE THE BURDEN ON THE DEFENDANT TO PROVE BEYOND A REASONABLE DOUBT THAT HIS IS NOT A DEATH PUNISHABLE CRIME. 7 QUESTION #3 , WHETHER THE SUPREME COURT OF FLORIDA HAS FASHIONED ADEQUATE RELIEF FOR VIOLATIONS OF GARDNER v. FLORIDA, and WHETHER THE SUPREME COURT OF FLORIDA HAS ENGAGED IN RUBBER-STAMP REVIEW OF DEATH SENTENCES RE-IMPOSED BY TRIAL JUDGES. 10 CONCLUSION 13 CERTIFICATE OF SERVICE 14 - fi- ie TABLE OF CITATIONS CASES: Combs v. State, _‘ So.2d_ _—s (Fla. S.Ct. Case #59,425) Dougan v. State, 398 So.2d 439 (Fla. 1981) Funchess v. State, 341 So.2d 762 (Fla. 1977) cert. den. 434 U.S. 78 (1977) Funchess v. State, 367 So.2d 1007 (Fla. 1979) Funchess v. State, 399 So.2d 356 (Fla. 1981) Furman v. Georgia, 408 U.S. 238 (1972) Gardner v. Florida, 430 U.S. 349 (1977) Godfrey v. Georgia, 446 U.S. 420, 423 (1980) Hankerson v. North Carolina, 432 U.S. 233 (1977) Hargrave v. State, 366 So.2d 1 (Fla. 1978) Mullaney v. Wilbur, 421 U.S. 684 (1975) Proffitt v. State, 315 So.2d 461, 466 (Fla. 1975), aff'd, 428 U.S. 242 (1976) Ross v. State, 386 So.2d 1191 (Fla. 1980) Salvatore v. State, 366 So.2d 745 (Fla. 1978) State v. Dixon, 283 So.2d 1 (Fla. 1973) CONSTITUTION United States Constitution Eighth Amendment Fourteenth Amendment 28 U.S.C. § 1257 STATUTES Florida Statutes (1975) Section 921.141 Section 921.141(5) & (6) Section 921.141(6) (a) - iii - PAGE(S) 3, 5,11, 12 4 4,5,8,11 2, 3 CITATION TO OPINION BELOW The opinion of the Supreme Court of Florida is reported as Funchess v. State, 399 So.2d 356 (Fla. 1981), and is set forth in Appendix D. The motion for rehearing and the denial thereof are set forth in Appendix E. JURISDICTION Review is sought pursuant to 28 U.S.C. § 1257(3). Rehearing was denied below by the Supreme Court of Florida on June 30, 1981 (Appendix E). CONSTITUTION & STATUTORY PROVISIONS INVOLVED This cace ‘nvolves the constitutionality of a death sentence imposed pursuant to Section 921.141, Florida Statutes (1975), which is set forth in Appendix A. It involves the Eighth and Fourteenth Amendments to the United States Constitution. STATEMENT OF THE CASE On July 18, 1975, two death sentences were imposed upon petitioner by the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida (Appendix F). By its opinion in Funchess v. State, 341 So.2d 762 (Fla. 1977), cert. den. 434 U.S. 78 (1977), the Supreme Court of Florida upheld the sentences (Appendix B). Because of a violation of Gardner v. Florida, 430 U.S. 349 (1977), the death sentences were vacated and the case remanded for resentencing by the judge. Funchess v. State, 367 So.2d 1007 (Fla. 1979). On December 6, 1979, two death sentences were again imposed upon petitioner by the trial judge (Appendix G). These sentences were again upheld by the Supreme Court of Florida (Appendix D). HOW THE FELERAL QUESTIONS WERE RAISED AND DECIDED BELOW Petitioner argued in the trial court and on appeal that the failure of the trial or appellate court to find that petitioner had no significant history of prior criminal activity, a miti- gating circumstance as defined by Section 921.141(6) (a), Florida Statutes (1975), rendered his death sentence unconstitutional, in violation of the Eighth Amendment to the United States Constitution. Petitioner argued in the appellate court that the jury was improperly instructed concerning the burden of proof of aggravating and mitigating circumstances, in violation of the Fourteenth Amendment to the United States Constitution. Petitioner argued on appeal that his death sentences were unconstitutional if they were upheld only upon a cursory review by the Supreme Court of Florida. - REASONS FOR GRANTING WRIT QUESTIONS PRESENTED Question #1 THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER STANDARDLESS APPLICATION OF A MITIGATING CIRCUM- STANCE THAT "THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY" THAT BY STATUTE IS ONE OF SEVERAL FACTORS TO BE DETERMINATIVE OF THE SENTENCE CONSTITUTES A VIOLA- TION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WHEN A SENTENCE OF DEATH IS IMPOSED, and WHETHER ARBITRARY APPLICATION FROM CASE TO CASE OF THE SAME MITIGATING FACTOR, RESULTING IN PREJUDICIAL APPLICATION TO THE PETITIONER, VIO- LATES THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT. The death sentences imposed upon petition at the resenten- cing resulted from findings that certain aggravating factors were present in the case and that one mitigating factor existed, to wit: that petitioner was under the influence of extreme mental and emotional disturbance at the time of the commission of the capital crimes (Appendix G). The sentencing judge found inapplicable the mitigating factor found in Section 921.141(6) (a), Florida Statutes (1975) that "The defendant has no significant history of prior criminal activity." Thus, the sentencing decision was made without regard to that mitigating consideration (Appendix G 3-4). The mitigating factor of lack of a significant history of prior criminal activity has been applied in a standardless manner by the courts of the State of Florida resulting in sub- stantial prejudice to this petitioner. ~ In Proffitt v. State, 315 So.2d 461, 466, (Pla. 1975), aff'd, 428 U.S. 242 (1976) the Supreme Court of Florida approved a finding that one previous conviction for breaking and entering without permission was sufficient to negate the mitigating factor. However, exami- nation of certain other decisions reveals the standardless and arbitrary application of that same mitigating factor, NN In Salvatore v. State, 366 So.2d 745 (Fla. 1978), the same court held that a conviction for one burglary, for which the defendant received probation, is not a significant history of prior criminal activity. In Hargrave v. State, 366 So.2da 1 (Fla. 1978), the same court held that prior criminal activity not resulting in a conviction is not to be considered as significant. On the other hand, in Ross v. State, 386 So.2d 1191 (Fla. 1980), the court found “petty offenses" (Boyd, J., dissent- ing at 1198) to constitute significant criminal activity. Most recently, in Combs v. State, So.2d (Fla. S.Ct. Case #59,425, Opinion filed July 30, 1981) (slip opinion at 4), the court approved a finding that: The trial court determined that ‘the defendant, who is twenty years of age, had no significant history of prior criminal activity although he had previously pled guilty to third degree burglary and had been placed on probation for two years’ and that the defendant, thoughout the day prior to the murder, had, by his own account, consumed alcoholic beverages and indulged in cocaine. Petitioner, DAVID LIVINGSTON FUNCHESS, was denied any mitigating consideration of the same mitigating factor by the sentencing court although petitioner had not previously been convicted of a felony nor ever been sentenced to prison (Appendix G 3-4). Although in State v. Dixon, 283 So.2d 1 (Fla. 1973), the court set some guidelines for utilization by sentencing courts of the statutory mitigating factor at issue here, that standard has been abandoned in application of the law in Florida. In State v. Dixon, supra, at 9 the court stated: As to what is significant criminal activity, an average man can easily look at a defendant's record, weigh traffic offenses on the one hand and armed robberies on the other, and determine which represents signi- ficant prior criminal activity. Also, the less criminal activity on the defendant's record, the more consi- deration should be afforded this mitigating circumstance. It is plain from analysis of the above cases that any standard which may have existed originally has been negated by application of the statute in petitioner's case. Consistency by the sentencer is essential to constitutional application of a death penalty procedure. In Godfrey v. Georgia, 446 U.S. 420, 423 (1980), the Court stated that the issue was whether a broad and vague construction of an aggravating circumstance in Georgia's capital sentencing law had been adopted that violated the Eighth and Fourteenth Amendments. The court so found in citing to Furman v. Georgia, 408 U.S. 238 (1972), "that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” Godfrey v. Georgia, supra, at 427. The Florida death penalty scheme was upheld as facially constitutional in Proffitt v. Florida, 428 U.S. 242 (1976), where this court noted that the Florida Supreme Court held as its function te "[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached in another case... ." Id. at 251. The abdication of that function in the present case controverts the notion that Plorida does not engage in “only cursory or rubber-stamp review of death penalty cases... ." Id. at 259. If, as stated by the Florida Supreme Court in State v. Dixon, supra, that anyone can tell the difference between petty offenses and a significant prior history of criminal activity, then this petitioner's death sentense rests upon an impermis- sible basis because it has been imposed by a procedure that has failed to eliminate a high risk of arbitrary application by virtue of the absence of adequate standards to ensure uni- formity and consistency in application of the controlling legal criteria. Since death is presumed to be the proper sentence under Florida law upon proof of the existence of a - §- single aggravating circumstance, the application of the mitiga- ting factors required by the statute to be considered must meet the same standards of consistency applicable to use of the aggravating factors in determining a proper sentence. Thus the decision in Godfrey v. Georgia, supra, should apply equally to application of the statutory mitigating factor which petitioner has asserted throughout these proceedings that he is entitled to have considered by the sentencer in determining a proper sentence for his crimes. In his petition for rehearing filed in the Florida Supreme Court, petitioner prayed consideration by that court of the fact that the mitigating circumstance of lack of a significant prior history of criminal activity would have established that he was not a career criminal who would be unamenable to correction by society. Since the death penalty represents the utter rejection of rehabilitation, the rational and consistent application of statutory guidelines is required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Petitioner prays this Court will issue its writ of certiorari to review the decision of the Supreme Court of Florida. Question #2 THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER IT IS CONSITITUTION- ALLY PERMISSIBLE FOR THE STATE TO PLACE THE BURDEN .ON THE DEFENDANT TO PROVE BEYOND A REASONABLE DOUBT THAT HIS IS NOT A DEATH PUNISHABLE CRIME. Petitioner submits that the instruction given to his jury at the penalty phase of his capital trial violates the Fourteenth Amendment to the United States Constitution as interpreted in Mullaney v. Wilbur, 421 U.S. 684 (1975). Petitioner's jury was instructed as follows concerning its recommendation of whether petitioner should be sentenced to death or to life imprisonment: The aggravating and mitigating circum- stances must be proved beyond a reason- able doubt. In Mullaney, this Court held that the Due Process Clause of the Fourteenth Amendment prohibited a state from placing the burden on the accused to bear the burden of persuasion, and risk of non-persuasion, in order to reduce the crime and the punishment to a lesser degree. In the present case, petitioner met the burden of production of evidence and does not complain of the burden to produce mitigating evidence. However, peti- tioner asserts, as he did below, that the constitution forbids placing upon him the same burden that is placed upon the state as prosecuting party. Petitioner was saddled with the burden of proving that his evidence in mitigation proved the existence of mitigating circumstances beyond a reasonable doubt. Moreover, the instruction that the jury, upon finding a single aggrava- ting circumstance, should then determine whether mitigating circumstances which were proved were sufficient to outweigh aggravating circumstances resulted in placing the ultimate burden upon the petitioner in exactly the same manner that this declared unconstitutional in Mullaney v. Wilbur. In State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), it was held that Plorida's capital sentencing law, Section 921.141(5) and (6), Florida Statutes (1973) defines the category of capital crimes to which Plorida's death penalty may be applied. As such, the statutory elements, although defined as sentencing criteria, a part of the state's required proof for imposition of a death sentence. The court likewise held in the same case that aggravating circumstances must be established beyond a reasonable doubt. Id. The court did not hold that migitating circumstances must be established beyond a reasonable doubt, and to that extent the instructions given to the trial jury in this case were erroneous under both Florida law and federal law. However, the Supreme Court of Florida affirmed this death sentence and totally rejected the arguments petitioner has made concerning the fundamentally erroneous instructions to his jury at the sentencing phase of the trial. The shifting of the burden to the defendant to bear the burden of persuasion as to the degree of culpability and punish- ment erodes the basic premise of due process of law under our constitution that the burden of proof on the ultimate matters to be proved always remains with the state in criminal matters. Hankerson v. North Carolina, 432 U.S. 233 (1977) held that the decision in Mullaney is fully retroactive. Accordingly, it is applicable to this case. The failure of the Supreme Court of Florida to apply the fundamental principle at issue here should warrant granting of the within petition for certiorari review of the decision below. Question #3 THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER THE SUPREME COURT OF FLORIDA HAS FASHIONED ADE- QUATE RELIEF FOR VIOLATIONS OF GARDNER v. FLORIDA, and WHETHER THE SUPREME COURT OF FLORIDA HAS ENGAGED IN RUBBER-STAMP REVIEW OF DEATH SENTENCES RE-IMPOSED BY TRIAL JUDGES. Petitioner was originally sentenced to death by a trial judge who based his sentence in part upon consideration of a non-disclosed presentence investigative report. In Funchess v. State, 367 So.2d 1007 (Fla. 1979), petitioner's death sentences were vacated and the cause was remanded to the trial court for resentencing. The trial court reimposed death sentences but upon dramatically different findings of fact. The present death sentences rest upon fewer aggravating cir- cumstances, and the trial judge found the presence of one mitigating circumstance while the original death sentences were imposed upon a finding that no mitigating circumstances existed. The aggravating circumstances found by the court in support of the present death sentences are that the capital felonies were committed during commission of a robbery, that the capital felonies were committed for the purpose of avoid- ing lawful arrest and that the capital felonies were “heinous, atrocious and cruel" (Appendix G-6-8). The mitigating circum- stance found by the trial court at resentencing was that the defendant suffered from extreme mental and emotional distur- bance at the time of the capital crimes (Appendix G-4). Thus, originally the court found four aggravating circumstances (Appendix F-8-10) while at the resentencing the court found three such circumstances. At the original sentencing the trial court found no mitigating circumstances (Appencix F-5-7) while at the resentencing the court found the existence of one mitigating circumstance under Florida's statute. @ 169 - Depsite the significantly different findings of fact, the Supreme Court of Florida gave these re-imposed death sentences less than the full review to accorded death sentences under Proffitt v. Florida, supra, and State v. Dixon, supra. The Florida Supreme Court regards the scope of review on appeal from a Gardner remand at which the death sentence is re-imposed as a limited review, consisting solely of determining whether the trial judge complied with the remand order. Dougan v. State, 398 So.2d 439 (Fla. 1981). As stated by the Supreme Court of Florida in its decision below, the scope of review is technically limited. The court stated in Funchess v. State, 399 So.2d 356, 357 (Fla. 1981): The only proper question now pre- sented is whether there is substan- tial competent evidence to support the express findings of the trial judge that sentences of death are appropriate for Funchess. We are satisfied from our review of the evidence presented at the resenten- cing procedure, and from the record of the original sentencing proceed- ing: first, that the trial judge properly performed his weighing function with respect to the one new mitigating circumstance developed at the resentencing proceeding and the aggravating factors which had been established at the original proceeding (all but one of which were unchallenged on remand); and second, that there was substantial and compe- tent evidence to support the findings of the trial judge with respect to the aggravating and mitigating cir- cumstances articulated in his resen- tencing order. If the new sentencing hearing is not a “full blown senten- cing proceeding” then the new death sentence suffers infirmities identified in Furman v. Georgia, supra. That that is exactly what the Florida Supreme Court Court has said -- that the resentencing proceedings is not a full new sentencing hearing. See Dougan v. State, supra, at 400. “Ss Thus, the relief fashioned by the State of Florida pursuant to Gardner v. Florida is inadequate because neither the resen- tencing hearing nor the review of the newly imposed death sentence meets the standards articulated in Proffitt v. Florida, supra, because neither the sentencing proceeding itself nor the review by the Florida Supreme Court are adequate to afford the defendant an adequate opportunity to be heard as to why he should not receive the death penalty. As Justice McDonald of the Florida Supreme Court stated, dissenting, in Dougan v. State, supra, at 441: Just because it is the same as a prior affirmed sentence does not necessarily make this one correct; it must pass constitutional muster on its own. Since petitioner could not be heard in either the trial court or the appellate court concerning the propriety of the sentence, could not have legal issues decided affecting that sentence and could not challenge the jury's death recommen- dation even on grounds of fundamental constitutional error, this court should grant certiorari to determine whether the relief fashioned by the State of Florida and the procedure employed for violations of Gardner v. Florida, is sufficient to erase the constitutional error that affected the decision to impose death as the sentence. - 12 - CONCLUSION WHEREFORE, the petition for writ of certiorari should be granted. Respectfully submitted, SC. Norgl Som P. DOUGLAS BRINKMEYER Assistant Public Defender Second Judicial Circuit Post Office Box 671 Tallahassee, Florida 32302 (904) 488-2458 ATTORNEY FOR PETITIONER e 13 = — RECEIVED AUG 28 1981 Orrwt OF THE CLERK £ COURT, US. CERTIFICATE OF SERVICE ] _ SUPREME C I HEREBY CERTIFY that a copy of the foregoing Petition for Writ of Certiorari to the Supreme Court of the United States has been furnished by U.S. mail to the Honorable Michael Rodak, Jr., Clerk of the United States Supreme Court, First and Maryland Avenue, Northeast, Washington, D.C. 20543; Mr. David Livingston Funchess, #047886, Florida State Prison, Post Office Box 747, Starke, Florida 32091; and by hand-delivery to the Honorable Sid White, Clerk of the Supreme Court of Florida, Supreme Court Building, Tallahassee, Florida; and the Honorable Jim Smith, Attorney General, The Capitol, Tallahassee, Florida; on this 2S wy of August, 1981. - 14 laste 70 339 1998, CGL 1940 Supp eeeh284), © 121. 921.12 Fees of hysicians when pregnancy is alleged as cause for not pronouncing sentence. _The court shall! allow reasonable fees to the vq cians appointed to examine a defendant who alleged her pregnancy a5 & cause for not pronounc- ing sentence. The fees shall be paid by the county in which the indictment was found or the information or affidavit filed. Mistery. —« 258, ch 19684, 1999, OGL 1860 Supp Q66%267), & 122, ch 921.141 Sentence of death or life imprison- ment for capital felonies; further ings to determine sentence.— ay) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon conviction or adjudication guilt of « defendant of » capital felony, the court shal! conduct a separate sentencing ing to determine whether the defendant should be sen- tenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted the trial judge before the trial ry as soon as pract based = the following matters: (a) hether sufficient aggravating circum stances exist as enumerated in subsection (6r, (b) Whether sufficient mitigating circumstances exist as enumerated in subsection (7), which out- —_ the aggravating circumstances found to exist; a (c) Based on these considerations, whether the defendant should be sentenced to life *[imprison- ment] or death. (3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH _.Notwithstanding the recomme tion of a majority of the jury. the court, after weigh- ing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sen- tence of death is based as to the facts: (a) That sufficient aggravating circumstances exist as enumerated in subsection (6), and (b) That there are insufficient mitigating circum stances, as enumerated in subsection (7), to outweigh the aggravating circumstances. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based in subsections (6) and (7) and trial and the sentencing pro requiring the death sentence, sentence of life imprisonment in with 6. 775.082 (4) REVIEW OF JUDGMENT AND SEN- 2210 Ch. 921 TENCE.—The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within 60 days after certi- fication by the sentencing court of the entire record, unless the time is exte for an additional period not to exceed 30 days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the supreme court. (5) AGGRAVATING CIRCUMSTANCES —Ag. pong circumstances shall be limited to the fol- a’ The capital felony was committed by a person under sentence of imprisonment. (b) The defendant was fiously convicted of another capital felony or of a felony involving the use or threat of violence to the person. (c) The defendant knowingly created a great risk of death to many persons. (d) The capital felony was committed while the lefendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or fight ifler committing or attempting to commit, any rob- ery, rape, arson, burglary, kidnapping, or aircraft iracy or the unlawful Guavien placing, or dis- harging of a destructive device or bomb. (e) capital felony was committed for the pur- ose of avoiding or preventing a lawful arrest or ffecting an escape from custody. if The capital felony was committed for pecu- jiary gain. (g) The capital felony was committed to disrupt r hinder the lawful exercise of any governmental unction or the enforcement of laws. th) The capital felony was especially heinous, trocious, or cruel. (6) MITIGATING CIRCUMSTANCES. —Miti- ating circumstances shal! be the following: (a) The defendant has no significant history of rior criminal activity. (b) The capital felony was committed while the efendant was under the influence of extreme men- al or emotional disturbance. ‘c) The victim was a participant in the defend- nt's conduct or consented to the act. (d) The defendant was an accomplice in the capi- tl felony committed by another person and his par- Cipation was relatively minor. (e) The defendant acted under extreme duress or nder the substantial domination of another person. (f) The capacity of the defendant to appreciate ve criminality of his conduct or to conform his con- uct to the requirements of law was substantially npaired. (g) The age of the defendani at the time of the Ime. History 7s. ch. 19554_ 1999, COL 1940 Supp e6en 206) 1 ch 309 ¢ ich T2720 Bch M2 eh8 bch th dee : Note Bracketed word inserted by jin essiors Note. Former « $1923 i C quention of sentence to fine; proceedings.— (1) When a defendant is sentenced to pay a fine, Shall have the right to give bail for payment of the ne and the costs of tion. The bond shall be ecuted by the defendant and two sureties ap __&. 821 proved by the sheriff or the officer charged with exe- cution of the judgment. (2) The bond shall be made povable in 90 days to the governor and his successors in office. (3) If the bond is not paid ai the expiration of 90 days, the sherif! or the officer charged with execu- tion of the judgment shall indorse the default on the bond and file it with the clerk of the court in which the judgment was rendered. The clerk shall issue an execution as if there had been a judgment at law on the bond, and the same proceedings shal! be followed as in other executions. After default of the bond, the convicted person may be proceeded against as if bond had not been given. History.—« 26s ch {9554 1999, COL #426 S477. COL 1900 Supp 66770 6 123. ch 70-399 921.16 When sentences to be concurrent and when consecutive.—A defendant convicted of two or more offenses charged in the same indictment. information, or affidavit or in consolidated indict ments, informations, or affidavits, shall serve th: sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment. infor- mation, or affidavit shall be served consecutively un- jess the court directs that two or more of the sentences be served concurrently. wae 281, ch 19554. 1999. COL 1900 Supp 86607710 6 120 cd 921.161 Sentence not to run until imposed; credit for county jail time after sentence; certifi- cate of sheriff.— (1) Asentence of imprisonment shall not bezin to run before the date it is imposed, but the court im- posing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence. (2) In addition to other credits, a person sen- tenced to imprisonment in custody of the '|Depart- ment of Offender Rehabilitation] shall receive credit on his sentence for all time spent between sentenc- ing and being placed in custody of the ‘(Department of Offender habilitation) When delivering a pris- oner to the ‘| rtment of Offender Rehabili- tation}, the sheriff shall certify in writing to the ‘[department} (a) The date the sentence was imposed and the date the prisoner was delivered to the ‘[depar: ment}. (b) The dates of any periods after sentence the prisoner was at liberty on bond. (c) The dates and reasons for any other times the prisoner was at liberty after sentence. The certificate shall be prima facie evidence of the facts certified. Wistery.—« 1, ch €3-457, an 19, 35. ch €9-108 « 125, ch 70.339, « 1. ch 7441, © ich 737 "Nate.-Sees DS) ch zoe, Ker powere Gution ond functions of the Divi wou @f Corrections U enslerred to department 921.18 Sentence for indeterminate period for noncapital felony.—The court in its discretion may sentence a defendant convicted of a noncapital felo- ny to the custody of the "(Department of Offender 2211 762 Fla rights and remedies known at common law obviously affords no basis for the award of attorneys’ fees in actions brought under them. Accordingly, the judgment below is re- versed insofar as it awards an attorney's fee to appellee, Fairchild-Florida Construc- tion Co. In every other respect, the judg- ment is affirmed. OVERTON, C. J., and ROBERTS, AD- KINS, BOYD, ENGLAND and SUND- BERG, JJ., concur. BROWARD COUNTY, Florida, Appellant, v. Constance D. COE et al, Appellees. Ne. 49049. Supreme Court of Florida. Nov. 30, 1976. Rehearing Denied Feb. 15, 1977. Appeal from District Court of Appeal, Fourth District. Betty Lynn Lee, Gen. Counsel, Edward J. Williams, Asst. Gen. Counsel, and Alexan- der Cocalis, Deputy Gen. Counsel, Fort Lauderdale, for appellant. Barry Scott Richard, of Snyder, Young, Stern, Barrett & Tannenbaum, North Mi- ami Beach, for appellees. ENGLAND, Justice. The constitutional challenge in this case with respect to Chapter 74-434, Laws of Florida, involves the same point of law as was raised and rejected in prior decisions of this Court. See Wilson v. Hillsborough County Aviation Auth, 138 So.2d 65 (Fla. 1962). As to appellant's other contentions, we adopt the views expressed by Judge Owen in the decision below, reported at 327 So.2d 69 (Fla. 4th DCA 1976). The decision below is affirmed. 341 SOUTHERN REPORTER, 2d SERIES OVERTON, C. J., and SUNDBERG, HATCHETT and DREW (Retired), JJ., con- cur. ADKINS and BOYD, JJ., dissent. a © pn David Livingston FUNCHESS, Appellant, v. STATE of Florida, Appellee. No. 47828. Supreme Court of Florida. Dec. 9, 1976. Rehearing Denied Feb. 15, 1977. Defendant was convicted in the Circuit Court, Duval County, Gordon A. Duncan, Jr., J., of two counts of first-degree murder. Consecutive sentences of death were im- posed and defendant appealed. The Su- preme Court held that, on considering all the mitigating and aggravating circum- stances and carefully reviewing the entire record in the case, the trial court was justi- fied in imposing the death penalty for the commission of atrocious and heinous mur- ders in the course of a robbery. Affirmed. England, J., concurred with an opinion. Homicide © 3M Upon Supreme Court's consideration of all mitigating and aggravating circum- stances and careful review of entire record | in case, trial court was justified in imposing | consecutive death sentences for commission of two atrocious and heinous murders in course of robbery. FUNCHESS v. STATE Fla. 763 Cite as, Fla. 341 So.2d 762 Louis G. Carres, Asst. Public Defender, for appellant. Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowksi, Asst. Atty. Gen., for appel- lee PER CURIAM. We here review on direct appeal the first degree murder convictions and consecutive sentences of death imposed upon appellant by the Circuit Court in and for Duval Coun- ty, Florida. Article V, Section %b\(1), Con- stitution of Florida. Appellant was indicted in a two count indictment for the stabbing death of Anna Waldrop and for the stabbing death of Clayton Ragan. He was cunvicted on both counts of murder in the first degree, and was sentenced to two consecutive sentences of death after recommendation by the jury that appellant be sentenced to death. Ap- pellant’s motion to dismiss the indictment on the ground that the death penalty stat- ute is unconstitutional was denied. Pursu- ant to Rule 3.210, Florida Criminal Proce- dure Rules, the trial judge granted appel- lant's motion suggesting that he was insane and ordered a psychiatric examination. A sanity hearing was held and appellant was adjudged sane. Three persons, two of whom died, were discovered seriously stabbed at Avondale Liquors in Jacksonville, Florida. At the time of the murders, appellant was in the act of .ommitting robbery. The trial juég- 1188 Where the trial judge, at the time he imposed death sentence, had before him a confidential portion of the presentence in- vestigation report, and where defendart, by affidavit, asserted that he was not shown that report and requested relief pursuant to the United States Supreme Court's Gardner decision, the sentence would be vacated and the case remanded for resentencing. West's F.S.A. § 921.141. Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant. Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee. ORDER Pursuant to the dictates of Gardner v. Florida, 430 US. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), this Court ordered the trial judge who imposed the death sentence to advise the Court whether he imposed the death sentence after consideration of any information not known to appellant. His initial response stated that no information undisclosed to appellant was considered. Upon order for clarification, however, the trial judge advised the Court that he had before him « confidential portion of the presentence investigation report on appel- lant. Appellant asserts, by affidavit, that he was not shown that report and requests relief pursuant to Gardner. On consideration of appellant's petition and the trial court's responses to our Gard- ner order and our order for clarification, and pursuant to the decision of the United States Supreme Court in Gardner v. Flori- da, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), appellant's sentence of death in this cause is vacated. The case is remanded to the trial court for resentencing, without the necessity of an advisory jury, but with directions to provide counsel for the state and the defendant an opportunity to ex- plain, contradict, and argue regarding the relevance, materiality, and import of the confidential information, as well as other matters properly considered by the trial court concerning appellant's sentence under section 921.141, Florida Statutes (1977). It is so ordered. ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur. NEP nn I i il ELIE ERS OO APL ear, SOT 5 0 em ect le OL LL IE 356 Fla ® . David Livingston FUNCHESS, Appellant, ¥. STATE of Florida, Appellee. No. 47828. Supreme Court of Florida. April 2, 1981. Rehearing Denied June 30, 1981. After death sentences imposed or de- fendant, who was convicted on two counts of first-degree murder, were affirmed, 341 So.2d 762, and subsequently vacated, 367 So.2d 1007, the death sentences, on remand, were again ordered by the Circuit Court, Duval County, Gordon A. Duncan, Ie., 4. and defendant appealed. The Supreme Court held that: (1) on remand, reconven- ing of an advisory jury was not required, and (2) there was substantial competent evidence to support express findings of trial judge that death sentences were aj >ropri- ete for defendant. Affirmed. McDonald, J., dissented. 1. Criminal Law ©1192 Trial court, on remand for resentencing of defendant after his death sentences had been vacated in light of United States Su- preme Court decision, was not required to reconvene an advisory jury. 2. Criminal Law @ > 1208(1) On remand for resentencing after de- fendant’s death sentences had been vacated, substantial competent evidence supported express findings of trial judge that defend- ant's death sentences were appropriate, and trial judge properly performed his weighing function with respect to mitigating and ag- gravating circumstances. Louis G. Carres, Asst. Public Defender, Tally hassee, for =ppellant. i. Funchess v. State, 341 So2d 762 (Fla. 1976), cert. denied, 434 US. 878, 98 S.Ct 231, 4 L.E42d 158 (1977). 399 SOUTHERN REPORTER, 2d SERIES Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee. PER CURIAM. David Livingston Funchess was tried and convicted of two counts of murder in the first degree and was sentenced to death in trial court proceedings affirmed by this Court! Following a subsequent United States Supreme Court decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we vacated Funchess’ death sentences and remanded his case to the trial court for resentencing without an advisory jury proceeding? On remand, an evidentiary hearing was conducted by the trial court at which Fun- chess presented evidence in mitigation of his sentences. Nonetheless, the trial court in due course entered an order again sen- tencing Funchess to death, following which Funchess brought this case to us for review. [1] Funchess makes a number of legal attacks on the propriety of instructions giv- en to the jury at the sentencing i of his first trial, arguing that the order remanding for so-called “Gardner relief” should have included a mandate for recon- vening an advisory jury. We reject all of these contentions. The purpose for our re- mand was to comply with the dictates of the United States Supreme Court in Gard- ner v. Florida; it was not to provide an entirely new sentencing proceeding at which a new advisory jury could be recon- vened. Songer v. State, 365 So.2d 696 (Fla. 1978), cert. denied, 441 US. 956, 9 S.Ct 2185, 60 L.Ed2d 1060 (1979). Complying with our mandate, the trial court properly rejected all legal points raised by Furchess’ counsel. [2] The only proper question now presented is whether there is substantial competent evidence to support the express finding» of the trial judge that sentences of 2. Funchess v. State, 367 So.2d 1007 (Fla 1979). - THE FLORIDA BAR v. G. B. T. Fla. 357 Cite as, Fla. 399 So.26 357 death are appropriate for Funchess. We are satisfied from our review of the evi- dence presented at the resentencing proce- dure, and from the record of the original sentencing proceeding: first, that the trial judge properly performed his weighing function with respect to the one new miti- gating circumstance developed at the resen- tencing proceeding and the aggravating factors which had been established at the original proceeding (all but one of which were unchallenged on remand), and second, that there was substantial and competent evidence to support the findings of the trial judge with respect to the aggravating and mitigating circumstances articulated in his resentencing order. The dictates of Gardner v. Florida have been faithfully met by the trial court in this case, and sentences of death were properly imposed. We affirm the trial court's new death sentences. It is so ordered. SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur. McDONALD, J., dissents. THE FLORIDA BAR, Petitioner, ¥. G. B. T., Respondent. Neo. 593M. Supreme Court of Florida. April 23, 1981. Rehearing Denied June 30, 1981. In disciplinary proceeding, the Supreme Court, England, J., held that failure for six months to deliver to client status report and refusal to respond to client's inquiries re- garding an unemployment claim, for which statute of limitations had elapsed prior to date of retention of services, constitute ne- glect of legal matter and warrant repri- mand. Order accordingly. 1. Attorney and Client 48 Nowhere in Florida Integration Rule is bar counsel empowered to charge an ethical violation without a finding of probable cause by either grievance commitice or Board of Governors of the Florida Bar; on the contrary, the Integration Rule provides mechanisms by which bar counsel can pro- ceed if he deems the finding of y-rievance committee technically deficient, or if he chooses to recommend to Board of Gover- nors that it make a finding of probable cause against the attorney. 32 West's F.S.A. Rules of the Florida Bar, Art. 11, Rules 11.01 et seq. 11.04(6Xb), 11.05(2). 2 Attorney and Client = 44(1), 58 Failure for six months to deliver to client a status report and refusal to respond to client's inquiries regarding an unemploy- ment claim, for which statute of limitations had elapsed prior to date of retention of services, constitute neglect of matter and warrant reprimand. 32 West's PSA. Code of Professional Responsibility, DR6- 101(AX3). Wallace N. Maer, Bar Counsel, Miami, for petitioner. Hugh F. Quinn, Coral Gables, and Louis M. Jepeway of Jepeway & Jepeway, Miami, for respondent. ENGLAND, Justice. The Florida Bar brought a disciplinary action against G.B.T., resulting in a refer- ee’s report recommending a six-month sus- pension from the practice of law, payment of the proceedings’ costs, and his making restitution to his client. Both The Florida Bar and G.B.T. have asked us to review the report of the referee. IN THE SUPREME COURT OF FLORIDA DAVID LIVINGSTON FUNCHESS, Appellant, : vs. : Case No. 47,828 STATE OF FLORIDA, : Appellee. $ MOTION FOR REHEARING COMES NOW the appellant, DAVID LIVINGSTON FUNCHESS, pursuant to Rule 9.330(a) of the Florida Rules of Appellate Procedure and moves this Court -or rehearing in the above- styled cause. As grounds for same, the appellant would show as follows: 1. In the opinion rendered by the Court on April 2, 1981, appellant's sentences of death were upheld after a remand to the trial court for resentencing. In deciding that the trial judge properly performed his weighing function and that there was substantial and competent evidence to support his findings it would appear that this Court may have overlooked the possible existence of a statutory mitiga- ting circumstance that was not considered by the trial judge. 2. Even though appellant has never served a term of imprisonment nor been convicted of a felony, the trial judge found that the mitigating factor of no significant history of prior criminal activity did not apply. It was noted that appel- lant had prior arrests, prior misdemeanor convictions, and had admitted to previously taking money from his murder victims and using drugs. In light of appellant's history which was presented to the trial court and formed the basis for the trial judge's finding that the capital crimes were committed by appellant while he was under the influence of extreme mental and emotional -_ " edie. hae ~* - = = ; Fatt 4 . ad : i ; ee See SOs eee Tr > . ** ~ 2. capitel felonies of Murder in the First Degree. The Court therefore finds that this circumstance _of the case is not an aggravating circumstance. (b) The Defendant has not been pre- viously convicted of another capital felony or a felony involving the use or threat of violence to a person. The Court therefore finds that this circumstance of the case is not an aggra- vating circumstance. (c) The Defendant did not knowingly create a great risk of death to many persons. The Court therefore finds that this circumstance of the case is not an aggravating circumstance. (d) The capital felonies were committed while the Defendant was engaged in the commission of the life felony of Robbery. The Court there- tte i ai ee & . Ae eee ~~ > fore finds that this circumstance of the case is an aggravating circumstance. (e) The capital felonies were committed for the purpose of avoiding or preventing a lawful a a ee i, i arrest. The Defendant, David Livingston Funchess, is a former employee of Avondale Liquors where the victims were murdered and he knew that he would be recognized by thea. He was not wearing a mask.nor was he disguised in any manner. The Defendant acted accordingly; in an effort to ' avoid or prevent a lawful arrest for the crime — —- _- : . - . . > - >> ’ oe -of robbery, he committed the crimes of premeditated ag P-21 5 A : © ween Camaes e.2 = oe ee ee ee ee - - . : ¢ * murder. The Court therefore finds that this circumstance of the case is an aggravating circumstance. (f) The capital. felonies of Murder in the First Degree were committed by the Defendant for pecuniary gain. “The Defendant was endaged in the act of committing the life felony of Robbery for the purpose of personal pecuniary gain. As a former employee of Avondale Liquors, he well knew thdt the receipts for the weekend's business were there for the taking and he was willing to and did commit several murders in order to get that money without being identified. The Court therefore finds that this circumstance of the case is an aggravepine circumstance. ? / (g) The capital felonies were not commit ed to disrupt or hinder the lawful exer- cise of any governmental function or the enforcement of laws. The Court therefore finds that this circumstance of the case is not an aggravating circumstance. ‘(h) The capital felonies committed by this Defendant were heinous, atrocious and cruel. The robbery and the murders committed by the Defendant were premeditated. The » . L tee oii Defendant selected the place for a robbery and like a cobra, he carefully chose the time to strike while casually drinking a cup of coffee across the street from the scene of the crimes. The State has proven beyond a reasonable doubt that the robbery and the murders were premeditated. The objective of the Defendant was to obtain money and he was willing to take the lives of others in order to do so. By stabbing and cutting throats, he killed two people and piti- fully mangled a third person who, at this writing, has not recovered consciousness and after seven months, remains in a coma hardly more than a vegetable. The victims were all practically twice the age of the Defendant and two of the victims were women, one of whom was left gasping for breath at the scene of the crimes. These are truly some of the most senseless, heinous and horrible murders that have ever taken place in the City of Jacksonville. The Court therefore finds that this circumstance of the case is an aggravating cir- cumstance. It is the feeling of this Court that if our society is to survive and continue to exist as a society of people dependent upon each other for that existence, we must do what- . ever is necessary to stop the rapidly increasing P-23 oe mo re —— ee ee ee re . ** .* . ° - crime rate and it goes without saying that the primary responsibility in this regard rests upon the shoulders of the Criminal Justice | System. The merchants of Jacksonville have a right to and should be able to operate théir businesses without constantly being apprehensive or fearful of assault; robbery or murder. The Court has received and has been guided by the advisory sentence of the sentencing jury rendered in this cause. After weighing the aggravating and mitigating circumstances of this case, the Court finds and determines that: (a) sufficient aggravating circumstances exist as enumerated in subsection 5 of Section 921.141, Florida Statutes, and that/ (b) there are insufficient mitigating circumstances as enumerated in subsection 6 of Section 921.141,° Florida Statutes, to outweigh the aggravating circumstances. It is, therefore, the reasoned judgment of the Court and finding by this Court that the circumstances and the facts of this case justify and require two (2) separate sentences of death for the Defendant. i -——* } er) eee o rerre Geman - _———— -* wegyece-s ° . oF ee ere wee » GPP ee Tr rs een ee Loe 2 . . . The Court hereby adjudges the Defendant, David Livingston Funchess, to be guilty of Murder in the First Degree on each of the separate counts —_—_—_—_— found in the indictment herein. ae —-—- iex—<——- The Court hereby sentences the Defendant, David Livingston Funchess to death on the first count of the indictment herein; and | The Court also hereby sentences the Defendant, David Livingston Funchess to a separate, additional sentence of death on the second count of the indictment herein. It is hereby further ordered that this additional sentence of death on the second count of the indictment shall run and be consecutive to the aforesaid death sentence imposed on the first count of the indictment herein. It is the further Order of this Court that the Defendant, David Livingston Funchess, be taken by the proper authorities to the Florida State Prison, to be securely confined until his execution, on a date to be subsequently determined. The Court now advises the Defendant, David Livingston Funchess, that it is your right to appeal from this judgment and sentence within thirty (30) days from this date. You are further advised that you are entitled to assistance of counsel in taking an appeal. Upon your request, Tatas? 2 “zg: ane showing that you are entitled to an attorney at the expense of the State, the Court will appoint one for you. DONE AND ORDERED AND SENTENCED in Open Court, at the Duval County Courthouse, Jacksonville, Florida, on the 18th day of July, A. D., 1975. y 3 ANY Gp bo [? CIRCUIT JuDGe, F-26 IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA. CASE NO. 75-169-CF DIVISION "R" STATE OF FLORIDA ) ) -vs- ) SENTENC EUW, ) DAVID LIVINGSTON FUNCHESS ) alle ) Soc UTE? SUMMARY The Defendant, David Livingston Funchess, was indicted on two separate counts of murder in the first degree, was tried by jury on both counts and found guilty on both counts. A motion for new trial was denied. In a separate sentencing proceeding, the sentencing jury rendered an advisory sentence of death and the court sentenced the Defendant to a sentence of death on each of the two separate counts found in the indictment. Upon review, the Supreme Court of Florida agreed with this court that the murders committed by the Defendant were sense- less, atrocious and heinous and upon finding no reversable error, affirmed the judgment and sentence of this court. On October 3, 1977, the Supreme Court of the United i States denied Defendant's Petition for 2 Writ of Certiorari. Several years later, pursuant to the dictates of the United States Supreme Court in the case of Gardner vs. Florida, 430 U.S. 349 (1977), the Supreme Court of Florida vacated the . death sentences imposed by this court and remanded this case for resentencing, without the necessity of an advisory jury, but with directions to provide counsel for the state and the Defendant an opportunity to explain, contradict and argue, concerning the relevance, materiality and import of the confidential information ‘contained in the presentence investigation report as well as other G-27 ! matters properly considered by the trial court concerning Defend-. ' ant's sentence under Section 921.141, Florida Statutes (1977). In full compliance with the Order of the Supreme Court }. of Florida, this court has conducted resentencing proceedings, has considered and ruled upon numerous motions by the Defendant, and has afforded the Defendant the benefit of all court pro- cedures and substantive rights available to an unsentenced Defendant. ~~ At the request of the Defendant and over the objection - of the State, the court permitted a series of four psychiatric interviews of the Defendant, using an Amytal induction Technique (a type of narcosynthesis). The examining psychiatrist, Dr. — —oe_—oeo Ernest G. Miller, M. D., testified at one of the sentencing hearings and his report to the court, with copies to the Defend- ant and the State, was filed in evidence. a — ed The State and the Defendant were each furnished a copy of the presentence investigation report, including the confiden- | tial portion thereof, as well as with a copy of the psychiatrist's i report, dated April 24, 1975, both of which reports were con- - sidered by the court prior to its previous sentence. The cou:t * nee provided a full and complete sentencing hearing, entertaining a1] submissions and evidence of the State and the Defendant rele- vant to sentence, as requested by Defendant. The court has also reviewed the testimony adduced at trial. The findings and judg- ment of this court are not based upon any information not known 4 to the Defendant or the State. The Defendant, David Livingston Funchess, now stands . before this court unsentenced. Ny G-28 ad act? that he went to the Avondale Lounge in December, 1974, to rob it. FINDINGS IN SUPPORT OF SENTENCE ° Pursuant to the reauirements of law, the:court now makes and sets forth in writing the following findings of fact