Petition — Leslie H. Jones v. Florida (No. 81-6891)

Supreme Court brief1981

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SUPREN™ PAN ho

IN THE oo

SUPREME COURT OF THE UNITED STATES

October Term, 1981

LESLIE R. JONES,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREMF COURT OF FLORIDA

STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

(Member of the Bar of This Court)

QUESTIONS PRESENTED

TION PAGE(S)

IMPOSITION OF THE DEATH PENALTY, BASED IN

PART UPON AGGRAVATING CIRCUMSTANCES FOUND BY

THE TRIAL COURT IN A SUBSEQUENT PENALTY PRO-

CEEDING, WHERE THE SAME AGGRAVATING CIRCUMSTANCES

WERE EXPRESSLY FOUND NOT TO EXIST IN AN EARLIER

PENALTY PROCEEDING, IS VIOLATIVE OF THE GUARANTEE

AGAINST DOUBLE JEOPARDY PROVIDED BY THE FIFTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND

MADE APPLICABLE TO THE STATES BY THE FOURTEENTH

AMENDMENT . 4

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED i

TABLE OF CONTENTS ii

TABLE OF CITATIONS iii

CITATION TO OPINION BELOW 1

JURISDICTION 1

CONSTITUTIONAL ANL STATUTORY PROVISIONS

INVOLVED 1

STATEMENT OF THE CASE 1

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED

BELOW 2

REASONS FOR GRANTING WRIT 4

QUESTION 4

IMPOSITION OF THE DEATH PENALTY, BASED

IN PART UPON AGGRAVATING CIRCUMSTANCES

POUND BY THE TRIAL COURT IN A SUBSEQUENT

PENALTY PROCEEDING, WHERE THE SAME AGGRA-

VATING CIRCUMSTANCES WERE EXPRESSLY FOUND

NOT TO EXIST IN AN EARLIER PENALTY PRO-

CEEDING, IS VIOLATIVE OF THE GUARANTEE

AGAINST DOUBLE JEOPARDY PROVIDED BY THE

FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND MADE APPLICABLE TO THE

STATES BY THE FOURTEENTH AMENDMENT. 4

CONCLUSION 10

CERTIFICATE OF SERVICE ll

TABLE OF CITATIONS

CASES: PAGE(S)

Alford v. State, 307 So.2d 433 (Fla. 1975) 5

Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 27

L.Ed.2d 469 (1970) 2,6,8

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056,

23 L.Ed.2a 707 (1969) 1

Bullington v. Missouri, U.S. __, 101 S.Ct.

, 68 L.Ed.24 270 11981) 3,4,5

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141

57 L.Bd.2d 1 (1978) 2,5

Hall v. State, 381 So.2d 683 (Fla. 1978) 5

Jones v. State, 362 So.2d 1334 (Fla. 1982) 1

Jones v. State, 411 So.2d 165 (Fla. 1982) 1,2

North Carolina v. Pearce, 395 U.S. 7ll, 89 S.Ct.

2072, 23 L.E@.2d 656 (1969)

Ross v. State, 386 So.2d 1191 (Fla. 1980) 5

State v. Dixon, 283 So.2d 1 (Fla. 1973) 5

State v. Silhan, 275 SE.2d 450 (N.C. 1981) 7

Stephens v. Zant, 631 F.2d 397 (Sth Cir. 1980)

Tedder v. State, 322 So.2d 908 (Fla. 1975) 6

Williams v. State, 386 So.2d 538 (Fla. 1980) 5

Zant v. Redd, 290 SE.2d 36 (Ga. 1982) a

Zant v. Stephens, U.S. (1982) (case no. 81-89,

opinion filed May 3, 1582) (31 Cr.L. 3035) 6

28 U.S.C. §1257(3) 1

STATUTES

Plorida Statutes (1973)

Section 921.141 1

Section 921.141(3) 5

CONSTITUTIONS

United States Constitution, Fifth Amendment 1, 8

United States Constitution, Fourteenth Amendment 1

- 41% -

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Florida is Jones v.

State, 411 So.2d 165 (Fla. 1982), and is set forth in Appendix A.

The motion for rehearing and denial thereof are set forth in

Appendix B.

JURISDICTION

Review is sought pursuant to 28 U.S.C. §1257(3). The

judgment below was entered January 21, 1982, and petitioner's

timely motion for rehearing was denied on April 8, 1982.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the constitutionality of a death sentence

imposed pursuant to Section 921.141, Florida Statutes (1973),

which is set forth in Appendix C. This case involves the

Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution [as made applicable to the States through

the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794,

89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)].

STATEMENT OF THE CASE

Petitioner was convicted of first degree murder, assault

with intent to commit first degree murder, and robbery, and

on May 15, 1975 was sentenced to death. The Supreme Court of

Florida, on June 30, 1978, reversed the conviction and sentence

and remanded the case for a new trial. Jones v. State, 362 So.2d

1334 (Fla. 1982) [Appendix H]. Upon retrial, petitioner was

again convicted of the same three offenses, and on February 16,

1979 the death penalty was again imposed.

In the second penalty proceeding, the trial judge found

that five aggravating circumstances were present, two of which

he had expressly found not to be present in the first penalty

proceeding. Specifically, the court found that the defendant was

-l-

under sentence of imprisonment at the time of the offense, in

that he was on parole, and that the offense was committed to

disrupt or hinder the enforcement of laws, in that the defendant

shot the victims because they could recognize him [Appendix £).

In the initial penalty proceeding, the same trial judge found,

inter alia, "A. The defendant was not under sentence of imprison-

ment for any other crime” and “H. This capital felony was not

committed to disrupt or hinder the lawful exercise of any govern-

mental function or the enforcement of laws." [Appendix D).

The Supreme Court of Florida affirmed the conviction and

death sentence. Jones v. State, 411 So.2d 165 (Fla. 1982)

{Appendix A]. Petitioner's motion for rehearing was denied on

April 8, 1982 [Appendix B).

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

In his brief on appeal, petitioner asserted that the

Florida Supreme Court was constitutionally compelled to reject

the trial court's findings that the capital offense was committed

while under sentence of imprisonment and that the capital offense

was committed to disrupt or hinder the enforcement of laws

{Appendix F). As authority for his argument, petitioner relied

on this Court's decisions in North Carolina v. Pearce, 395 U.S.

7ll, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (due process); Burks

vy. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)

(double jeopardy); and Ashe v. Swenson, 397 U.S. 436, 90 &.Ct.

11869, 27 L.Ed.2d 469 (1970) (double jeopardy/collateral estoppel)

[Appendix F, Appendix G]. Petitioner argued that the state

was constitutionally prohibited from taking “two bites at the

apple of proof" [Appendix F).

In its opinion affirming petitioner's conviction and ‘eath

sentence, the Florida Supreme Court did not discuss the issue,

or acknowledge that it was raised [Appendix A].

On motion for rehearing, petitioner pointed out that the

Court had not addressed his due process/double jeopardy claim

-2-

involving the two additional aggravating circumstances found

in the second penalty proceeding [Appendix D). Petitioner also

called the Court's attention to this Court's intervening decision

in Bullington v. Missouri, _—*U.S. _, 101 &.Ct. , 68 L.Ed.2d

2/70 (1981) (Appendix B). This was the only issue raised on

motion for rehearing. The motion was denied without opinion on

April 8, 1982 [Appendix B).

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In Bullington v. Missouri, ___ U.S. ___, 101 S.Ct. __,

68 L.Ed.24 270 (1981), this Court held that where, under applic-

able Missouri procedure, a jury has heard evidence in aggravation

and mitigation in a separate penalty proceeding and has imposed

@ life sentence upon a defendant, the Double Jeopardy Clause

prohibits imposition of the death penalty on his subsequent

retrial. In contrast to the usual sentencing proceeding, it

can be demonstrated that a Missouri jury's life sentence amounts

to an “acquittal* of the elements necessary to impose the death

penalty, because (1) the state must prove additional facts, at

@ proceeding resembling a trial, to warrant imposition of «4

death sentence, and (2) in order to impose a sentence of death,

the jury must designate the aggravating circumstances it has

found beyond a reasonable doubt, and must be convinced beyond «4

reasonable doubt that such aggravating circumstances are suffi-

cient to warrant the death penalty. This Court said:

The ‘unacceptabl — risk that the

(prosecution), with its superior

resources, would wear down a defendant’

(United States v. Difrancesco, U.s.

» 66 L.B4.24 328, 101 8.ct. T%6

TISB0)},

imposed death sentence, would exist if

to rely only “ios "ab toe ess cankiceting

circumstances it » ae to prove at

petitioner's first trial or upon its

statement that it “sould introduce no

new evidence in support of its contention

that petitioner deserves the death penalty.

Having received ‘one yt eee to

offer whatever proof it assemble’,

Burks v. United States, 437 U.S., at 16,

57 L.Bd.24 1, 98 S.Ct. 2141, the State

is not entitled to another.

Bullington v. Missouri, supra, 68 L.Ed.2¢ at 283.

In Florida, as in Missouri, the reasonable doubt standard

is used to determined whether a given aggravating circumstance

has been proven. State v. Dixon, 283 So.2¢d 1 (Fla. 1973);

Alford v. State, 307 So.2d 433 (Fla. 1975); Williams v. State,

386 So.24¢ 538 (Fla. 1980). In Florida, unlike Missouri, the

jury's verdict as to penalty in @ capital case is advisory;

the sentencing authority is the trial judge. Fla. Stat. §921.141

(2) and (3); see Ross v. State, 386 So.2d 1191 (Fla. 1980).

The Florida judge, like the Missouri jury, must set forth in

writing his findings upon which the death sentence is based.

Fla. Stat. §921.141(3); see Hall v. State, 381 So.24 683 (Fla.

1978) (Order for Clarification).

In the instant case, following the first trial and penalty

proceeding, the trial court expressly found that petitioner was

not under sentence of imprisonment and that the crime was not

committed to disrupt or hinder the lawful exercise of any govern-

mental function or the enforcement of laws. Following the second

trial and penalty proceeding, on the basis of additional evidence

adduced by the state, the trial court changed ‘ts mind and found

that these aggravating circumstances did apply. This amounts to 4

Classic example of the state taking a second bite at the apple;

a bite which was available only because appellant had successfully

appealed his first conviction. These aggravating circumstances

were therefore improperly found, under the doctrines of double

jeopardy, Bullington v. Missouri, supra; Burks v. United States, 437 U.S.

1, 96 S.Ct. 2141, 57 L.Bd.24 1 (1978); and collateral estoppel,

-$§-

Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1169, 25 L.Ed.2d 469

(1970).

It cannot be assumed that the trial court's error in

corsidering additional evidence of aggravating circumstances of

which appellant had previously been “acquitted” was harmless.

The jury was thereby exposed to facts which may have improperly

influenced its decision to return a recommendation of death

rather than a life recommendation. “See Stephens v. Zant, 631 F.

24 397 (Sth Cir. 1980).2 mad the jury recommended life, the

trial court might well have concluded that the facts suggesting

@ death sentence were not so clear and convincing as to

justify overriding the jury's recommendation. See Tedder v.

State, 322 So.24 908 (Fla. 1975).

In addition to its impact on petitioner individually, the

issue involved in this case will be a recurring one. Any time

an appellate court reverses a conviction upon which the death

penalty has been imposed for a new trial,or reverses a death

sentence for a new trial on the issue of penalty, the question

may arise as to whether the state can present evidence of aggra-

vating circumstances it failed to prove the first time around.

Like Florida, a substantial majority of those states which

allow the death penalty require the trier of fact to designate

the specific aggravating circumstances which have been proven

*in PST Stages u.s. (1982) (case no. 81-89 opinion

fi ’ . this Court directed the Supreze

+ Pursuant to that state's certification procedure,

premises of state law which support its conclusion

the death sentence was not impaired the

the aggravating circumstances upon which the

;

ee ee eee ee Se Te

: : -

ye le

by the state.” The Supreme Court of North Carolina discussed the

double jeopardy ramifications of re-sentencing in capital cases

in State v. Silhan, 275 SE.24 450, 482 (N.C. 1981):

- « « We derive the following principles

applicable to our capital sentencing pro-

cedure: The Double Jeopardy Clause is a

limitation on the state's, not the defendant's

power to proceed. If a life sentence is

imposed following conviction for a capital

crime, the state may not appeal nor may «4

new sentencing hearing be ordered on

Gefendant's appeal of his conviction even

if the life sentence was the result of

trial error favorable to defendant. This

would be tantamount to defendant's having

been acquitted of the death penalty. If

upon defendant's appeal of a death sentence

the case is remanded for « new sentencing

hearing, double jeopardy prohibitions would

not preclude the state from relying on any

avating circumstance of which it offered

sufficient evidence at the hearing appealed

from and which was either not then submitted

to the jury or, if submitted, the jury then

found it to exist. The dictates of double

jeopardy would preclude the state from

relying on any ym circumstance of

which it offered insufficient evidence at

the hearing appealed from. This would be

tantamount to the state's having offered

insufficient evidence of an essential element

of a criminal offense in which case the

state, because of double jeopardy considera-

tions, could not retry the defendant even

it had sufficient evidence which could be

offered at a new trial. Similarly the

prohibition against double jeopardy would

preclude the state from relying, at 4 new

sentencing hearing, on any avating

circumstance the existence of which the

jury at the hearing appealed from, upon

considering it, failed to find. The jury's

failure to find the existemweof the aggravating

circumstance, after it had considered it,

would be tantamount to defendant's having

been acquitted of this circumstance.

The Supreme Court of Georgia reached a contrary conclusion

Cal. Penal Code §190.4(a); Comm. Penal Code §53a-46a(d); Georgia Code

$27-2534.1ic); Idaho Code §19-2515(d); - Penal Code 532.025(3);

La. C.Cr.P., Art. 905.7; ua. Code, Art. 7, $413(5) (1); Mass. Laws,

C. 279, §54; Mies. Code §99-19-101(3); Mo. Rev. Stat. §565.012(4);

Mont. Rev. Codes §95-2206.11; Neb. Rev. Stat. §29-2522; N.M. Stat.

$31-20A-3; N.C. Gen. Stat., Art. 100, §15A-2000(c) (1); Okla. Stat.

701.11; Pa. Cons. Stat. §1311(f) (1); Tenn. Code §39.2404(g); &.D.

Comp. Laws §23A-27A-5; Wyo. Stat. §6-4-102(e).

in Zant v. Redd, 290 SE.2¢ 36 (Ga. 1982), holding that the Double

Jeopardy Clause did not preclude consideration at re-sentencing

of aggravating circumstances submitted to, but not designated by,

the original sentencing jury. Since conflict among state courts

of last resort on a federal constitutional issue is a prime

consideration in this Court's determination of whether to grant

certiorari [Supreme Court Rule 17.1(b)), that is all the more

reason why this petition should be granted.

Moveover, Zant v. Redd, supra, is distinguishable from the

present case in one highly significant respect. In that case,

the Georgia Court said:

An alternative process is not involved

in a jury's consideration of aggravating

circumstances. .. . The jury's decision

with regard to aggravating circumstances

is not a mutually exclusive one as it is

with regard to the choice of life or death.

Consequently, we cennot say, as the Supreme

Court did with regard to the choice of

life or death, that the listing of only one

of three aggravating circumstances in

support of the death penalty is an ‘acquittal’

of the other two. The procedural basis which

lead the court to its decision in Bullington

does not exist in this case.

In the present case, in contrast, the trial court in the

first sentencing proceeding did not merely fail to list the two

aggravating circumstancem rather, he made express findings of

fact that these circumstances did not exist. In Ashe v. Swenson,

supra, this Court held that collateral estoppel, which it defined

as “the principle that bars relitigation between the same parties

of issues actually determined at a previous trial", is embodied

in the Fifth Amendment guarantee against double jeopardy. In

the initial sentencing proceeding in the present case, the trial

court's express findings that the defendant was not under sentence

of imprisonment, and that —ne capital felony was not committed to

Gisrupt or hinder the enforcement of laws, were determinations

of ultimate fact. The Double Jeopardy Clause t’erefore prohibited

the state from offering proof of those aggravating circumstances

at the second penalty proceeding. The jury should not have heard

- 6 -

evidence of those aggravating circumstances before return 19 @

recommendation of life or death. The trial court could not

constitutionally consider those circumstances in imposing the

Geath penalty, and the state appellate court could not consider

those circumstances in reviewing the death penalty.

This constitutional issue will continue to arise until it

is resolved. This Court should grant certiorari to resolve it.

CONCLUSION

WHEREFORE, the petition for writ of certiorari should be

granted.

Respectfully submitted,

Sten L135

Assistant Public Defender

Second Judicial Circuit

Pe st Office Box 671

Tallahassee, Florida 32302

(904) 468-2458

ATTORNEY FOR PETITIONER

- 10 -

Ce rE ee Se -—————~ — Se > -_— | ae

RECEIVED

JUN 1 4 1982

Ore... ‘ betit

SU>8E i:

NO. 81 6891 ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

LESLIE R. JONES,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX

STEVEN L. BOLOTIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR PETITIONER

(MEMBER OF THE BAR OF THIS COURT)

APPENDIX

TABLE OF CONTENTS

APPENDIX

Jones v. State, 411 So.2d 165 (Fla. 1982)

Motion for Rehearing dated March 4, 1982,

and Denial of Rehearing dated April 8, 1982.

Section 921.141, Florida Statutes (1973)

Trial Court's Finding of Aggravating and

Mitigating Circumstances (First Trial)

Trial Court's Finding of Aggravating and

Mitigating Circumstances (Second Trial)

Excerpt from Initial Brief of Appellant in

the Supreme Court of Florida (Second Appeal)

Excerpt from Reply Brief of Appellant in

the Supreme Court of Florida (Second Appeal)

Jones v. State, 362 So.2¢ 1334 (Pla. 1978)

PAGE(S)

1-5

l= 2

1-2

1-4

1-2

A= 3

Pia.

Cite an, fm. 611 Seas 168

3 Judges =51(2)

JONES +. STATE

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7 -_—«

166 Pe

Michael M. Corin, Asst. Public Defender,

Tallahassee, for appellant

Jim Smith, Atty. Gen. and David PF

Gawidin, Asst. Atty. Gen. Tallahassee, for

appellee.

PER CURIAM

This cause is before the Court on appeal

from a judgment of conviction of first-de-

gree murder, assault with intent to commit

first-degree murder, and robbery, and «

sentence of death We have jurisdiction

Art. V, § Mby1), Pla Const

FACTS

Appellant was trned, convicted, and sen-

tenced after this Court reversed his earlier

The evidence showed that appellant en-

tered a liquor store armed with a 32 caliber

pistol His accomplice Calvin Dugan en-

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[

Calvin Dugan testified that he heard

three shots after leaving the store and that

appellant later told him he shoi the victims

because they recognized him. The state's

evidence also included a tape recorded con-

fesmon in which appellant admitted that he

did the shooting Al trial, appellant testi-

fied that he participated in Une robbery but

had entered a back room of the store when

he heard three shots

After the jury was selected and sworn,

but before the commencement of Une state's

case, one of the jurors turned to the victim's

daughter, Betty Petros, and asked, “Betty

what are you doing here™ Ms. Petros re

plied, “I'm « spectator, and I'm not allowed

to speak to anyone.” The defendant ob

served thes exchange and informed his at-

terney Defense counse! brought the mat-

ter to the court's attention, and an exten-

the grounds that « juror talked with the

daughter of the deceased victim and that

there was testimony that another juror also

talked with her. The court denied the mo-

After the guilt phase of

ry,

JONES +. STATE

Pie. 167

Cite an, Pla. 6:1 Sade 108

counts, but before the commencement of

the sentencing phase, the defense moved to

disqualify the judge from presiding at the

sentencing poruon of the tinal The ground

of the motion was that since the judge had

already once sentenced appellant to death,

he was prejudiced in favor of a sentence of

death. The judge denied the motion saying

that his having followed the law in earlier

sentencing appellant to death was no

ground for a claim of prejudice

ISSUES ON APPEAL OF THE

JUDGMENT OF CONVICTION

[1] Appellant contends that the trial

court coramitted reversible error in its in-

structions to the jery, by engendering con-

fusion on the issue of separate considera lion

of each count of the indictment. It was not

The defendant, however, did not object to

these instructions Florida Rule of Crimi-

Fett

Fee

if 1

e " FF

44}

. 3

: 1

denied, 4 US 100, 97 SCL 739. SO

L.Ed2d 752 (1977); Johnson v. United

States, 27 F.2d 314 (Sth Cir. 1953), cert

denied, 47 US. 906, 74 S.Ct. 632, 98 L.Ed.

1087 (1954); Hendrix v. State, 136 Fila 800,

187 So. 500 (1999). Nor did the scquain-

tance between the two persons, having been

determined to be distant and superficial,

require that a mistrial be declared See

Hartley v. State, 214 Sold 429 (Pia. ist

DCA 1968). We find no abuse of discretion.

{3} Appellant contends thai the trial

SF Et

—

- Sereda 2-9-2 BST SFP e

eee

SES 2 .

168 Pie

Since we find no merit in any of appel-

lant's contentions that are properly before

us, we affirm the convictions

SENTENCE

(4) Appellant contends that his sentence

of death must be vacated because of im-

in the county was unsupported by evidence

and inflamed the jury to appellant's preju-

dice. Appellant is precluded from present-

ing this argument since he failed to object

to the comments at trial. Gibson v. State,

351 So.2d 948 (Fin. 1977), cert. denied, 435

US. 1064, 3 SCL 1600, % LEAS

(1978), State v. Jones, 24 So2d 515 (Fis

;

{5} Appellant contends that the trial

judge erred at the penalty phase of the wial

by mot instructing the jury that the mitigat-

ing carcumstances i{ could consider were not

limited to those listed in section 921.141/6),

Florida Statutes (1977), While such an in-

struction would be conswstent with our case

itt

pellant’s sister testified in his defense. No

limitations were placed on the kinds of mat-

lers about which she was sllowed to testify

The judge's instructions followed the

Statute in telling the jury that the aggre

on miligaling arcumstances, the judge did

mot say that consideration was similarty

limited By instructions the jury was

[6] We come now to consideration of the

ahh:

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against him for the crime of

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The finding that the murder was espe-

cially Seinova, atrocious, of crvel was sup

ported by the evidence that appellant, ¢-

noring the victim's plea to be spared, shot

hem to death pount-blank, in the style of an

exneculon

There are several aggravating circum.

propmate penalty

The judgment and sentence are affirmed

It @ 80 ordered

SUNDBERG, C. J. and ADKINS, BOYD,

OVERTON, ALDERMAN ond Me

DONALD. JJ , concur

HTH

Bite!

+. STATE ra 169

Che mn Pea. 40) Sane 1

egal; and (5) trial court's finding that

warranties search of defendants van was

conducted with defendant's consent was

supported by suffiment evidence

Affirmed

1. Inapection 2

Statute requiring “motor vehicles ex-

West's FSA § 870.15

1 lnapection 3

Despite defendant s contention Una his

ven was customized in such a fashion Lhai it

was a motor home, his vehicle came within

meaning of “truck,” under statute making

ial . a

Is THUD SUPREME COURT OF FLORIDA

LESLIC R. JONES, :

Appellant, :

vs. : CASE NO. 56,199

STATC OF FLORIDA, :

Appellee. :

MOTIO. FOR ROHEARING

COMES NOW the appellant, LESLIE R. JONES, pursuant to Rule

9.330(a) of the Florida Rules of Appellate Procedure, and moves

this Court for rehearing in the above-styied case. As grounds

therefor, appellant states:

1. This Court did not address in iis opinion appellant's

contention that the trial court improperly found as aggravating

circumstances that the crime was committed while appellant was

under sentence of imprisonment, and that the crime was committed

to disrupt or hinder law enforcement (see Initial Brief of Appel-

lant, p. 44-46), notwithstanding the fact that in imposing the

Geath penalty after appellant's earlier conviction (which was

subsequently reversed and remanded by this Court for a new trial)

the trial court had expressly made findings of fact that ehese

aggravating circumstances did not apply (see Appendix to Initial

Brief of Appellant). Appellant, relying on Burks v. United States,

437 U.S. 1 (1978) and Ashe v. Swenson, 397 U.S. 436 (1970), argued

that since the state had failed to prove these aggravating circum-

stances in the earlier proceeding, it was not entitled to a second

“bite at the apple". (Initial Brief of Appellant, p. 46.)

Appellant also contended that the principles of North Carolina v.

Pearce, 395 U.S. 711 (1969) precluded consideration of these factors

in the second penalty proceeding. (Initial Brief of Appellant,

p. 45.)

* *

>, ft- woelinine to wedross this issue, this Court may “9

overlouked the decision of the United States Supreme Court in

Bullinaton v. Missouri, U.S. , 68 L.td.2d 270, 101 S.Ct.

(1981). tn that case, relying substantially on Burks, te

Court held that where, under applicable Missouri procedure, a

jury has heard evidence in aggravation and mitigation in a separate

penalty proceeding and has imposed a life sentence upon a defendant,

the Double Jeopardy Clause prohibits imposition of the death

penalty on his subsequent retrial. In contrast to the usual senten-

cing proceeding, it can be demonstrated that a Missour: jury's

life sentence amounts to an “acquittal” of the elements necessary

to impose the death penalty, because (1) the state must prove

additional facts, at a proceeding resembling a trial, to warrant

imposition of a death sentence, and (2) in order to impose 4

sentence of death, the jury must designate the aggravating circum-

stances it has found beyond a reasonable doubt, and must be

convinced beyond a reasonable doubt that such aggravating cir-

cumstances are sufficient to warrant the death penalty. The

Supreme Court said:

The ‘unacceptibly high risk that the

{prosecution], with its superior

resources, would wear down a defendant"

(United States v. DiFfrancesco, u.s.

. 66 L.Ed.24 328, 101 s.ct. 426 (1980)),

thereby leading to an erroneously

death sentence, would exist if the State

were to have a further opportunity to

convince a jury to impose the ultimate

punishment. Missouri's use of the

reasonable doubt standard indicates that

in a capital sentencing proceeding, it is

the State, not the defendant, that should

bear ‘almost the entire risk of error’.

Addington v. Texas, 441 U.S., at 424,

60 L.Bd.2¢ 323, 99 S.Ct. 1804. Given

these considerations, our decision

today does not at all depend upon the

State's announced intention to rely only

upon the same aggravating circumstances

it sought to prove at petitioner's first

trial or upon its statement that it

would introduce no new evidence in support

of its contention that petitioner deserves

the death penalty. Having received ‘one

fair uni to offer whatever proof

it could assemble,’ Burks v. United States,

437 U.S., at 16, 57 L.Bd.2d 1, 98 &.Ct.

2141, the State is not entitled to

another.

Bullington v. Missouri, supra, 68 L.Ed.2¢ at

a) oes

3. In Florida, as in Missouri, the reasonable doubt standaré

is uses to determines whether 3 given aggravating circumstance

has been proven. State v. Dixon, 283 So.2d 1 (Fla. 1973); Alford

v. State, 307 So.2d 433 (Pla. 1975); Williams v. State, 386 So.2d

$38 (fla. 1980). In Florida, unlike Missouri, the jury's verdict

as to penalty in a capital case is advisory; the sentencing authority

is the trial judge. Fla. Stat. § 921.141(2) and (3); see Ross v._

State, 386 So.2d 1191 (Fla. 1980). The Florida judge, like the

Missouri jury, must set forth in writing his findings upon which

the death sentence is based. Fla. Stat. § 921.141(3); see Hall v.

State, 381 So.2d 683 (Fla. 1978) (Order for Clarification).

In the instant case, following the first trial and penalty

proceeding, the trial court expressly found that appellant was not

under sentence of imprisonment and that the crime was not committed

to disrupt or hinder the lawful exercise of @ny governmental

function or the enforcement of laws. Following the second trial

and penalty proceeding, on the basis of additional evidence adduced

by the state, the trial court changed his mind and found that these

aggravating circumstances did apply. This amounts to @ classic

example of the state taking 4 second bite at the apple; a bite which

was available only because appellant had successfully appealed his

first conviction. These aggravating circumstances were therefore

improperly found, under the doctrines of double jeopardy, Bullincton

v. Missouri, supra; Burks v. United States, supra, and collateral

estoppe!, Ashe v. Swenson, supra.

4. It cannot be said that the trial court's al in consider-

ing additional evidence of aggravating circumstances of which

appellant had previously been “acquitted” was harmless. The jury

was thereby exposed to facts which may have improperly influenced

its decision to return a recommendation of death rather than 4

life recommendation. See Stephens v. Zant, 631 F.2¢ 397, 406-06

(Sth Cir. 1980). Had the jury recommended life, the trial court

might well have concluded that the facts suggesting a death sentence

were not so clear and convincing as to justify overriding the jury's

recommendation. See Tedder v. State, 322 So.2¢ 908 (Fla. 1975).

. 4

WHIRETORE, based upon the foregoing reasons and authoritics,

appellant respectfully requests that this Court grant his Mot:on

for Rehearing, and remand this case to the trial court with directions

to conduct a new penalty phase of the trial.

Respectfully submitted,

“ »

Cte L Sellen

NL.

Assistant Public Defender

Second Judicial Circuit

Post Office Box 671

Tallahassee, Florida 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that @ copy of the foregoing Motion for

Rehearing has been furnished by hand-delivery to David P. Gauldin,

Assistant Attorney General, The Capitol, Tallahassee, Florida;

and by U.S. mail to Mr. Leslie R. Jones, #47325, Post Office Box

747, Starke, Florida 32091; on this 4th day of March, 1982.

Sten Bobotix

STEVEN L. BOLOTIN 7

> ® .

* .

Sunteme Court of Florida

LESLIE R. JONES,

Appellant,

Vv.

STATE OF FLORIDA,

Appellee.

THURSDAY, APRIL 8, 1982

CASE NO. 56,199.

Circuit Court No. 74-1810

(Escambia) .,--

AF > J —

PUSLIC . ot eet ‘DER

2nd JUDICIAL ClaCUIT

Upon consideration of the Motion for Rehearing filed in

the above cause by attorney for Appellant, and response thereto,

IT IS ORDERED that said Motion be and the same is hereby

denied.

ce: Hon. Ernie Lee Magaha, Clerk

Hon. William &. Rowley, Judge

Steven L. Bolotin, Esquire

David P. Gauldin, Esquire

————

P2Z1.141 Senter wef dently oe life temgertseeet- davs after cortific stem by the sentence court

coven far congue Gehonerss fastioee prewewstonsts 0 ett entire tecura unions the

alt SEPARATE PROCEEDINGS oN ty thee wmbidhiuenal — treet te eaceed dave

E OF rennet rye eae oS review hy the supreme court shall have

caine court shall conduct 2 separate sen Ky cone ont awe oe m a

tencing proceeding to determine © the de promulgated supreme

fondant shold be sentenersl Wo ta pre MS) AGGRAVATING CIRCUMSTANCES.

[

ceeding shall be conducted by the puadgce bee the

fore the trail jury as sunn as practicable. If the in} The enpital felony was committed by ©

trial jury has been waived of the ~ under sentence of impnaonment

guilty, the semtencene shall ih) «The wee convicted

conducted before « jury unpaneled for that of capital felony of of a feluny involving

preceeding. R _oyyscnicd as to any te) |6The defendant created a great

matter that t Tour devs rics ant to sentence, risk of death to man persons

and shall include matters relating te an) of the id} The capital sy was committed while

aggravating oF mite atin incumetance® ene the defendant was engared, of was en accom.

met in subsections wr oud 47) Of this see plice, in the commission of, or an attempt ve cute

tran Any such evidence which the court deems ‘or Might after committing or attemptiny 1°

BFS

less of its actmunstlanty wnuer the exclusionary RApmnd aircraft or the unlawful

rules of eviderme, provers the defendant ts» throwing, plecing | ae ng destruc

accorded a Laie opportunity o rebut any hearsay mag Any Vy =e

statements liwwever. this subsection shel not te) «6 The caprtal leluny was committed for the

be construed to author: the wnt reduction of any : purpose of averding or preventing » lawful arrest

evidence secured in viel twn of Une constitulions or etfectung an escape from custody.

St the United States or uf the State of Flurda iw The capital felony was committed for

The state anu detendant or his counsel shall ’ pecun aan

permitted te present argument for or against | is) capital felony was committed to die

rept or hinder the lawful exercise of gov:

ADVISOKY SENTENCE BY THE vvemental function or the enforcement of

JURY.—After hearme all the evidence jury th) The capital felony was especially hen

dcliverate and render an advisory sentence ove, strecious Ne

te the court, based wpon the following maticrs 6) TING CIRCUMSBTANCES.—

(a) «Whether sufficent aggravating cwceum Mingating circumetances eh s iheant histor

stances exist as cnumerated in subsection (6 (a) defendant has no significant history

(>) Whether sufficient miugeung circum of prin eens ot hom

stances exist as enumerated im subsection (7), : The capital felony was committed while

which outweigh the aggravating circumstances the defendant was under the influence of em

found to exist, and treme mental or emotional disturbance.

te) Based on these considerations, (c) The victim was @ parucipant in the de

defendant should be sentenced to life “lum fendant’s conduct or consented to the act

prisonment| or death (d) The defendant was an accomplice in the

@ FINDINGS IN SUPPORT OF SEX capital felony committed by another person and

TENCE OF DEATH —Notwithstanding the his participation was relatively mance

recommendation of 2 majority of the jury. the fe} The defendant under extreme

court after wexhing the aggroveung mit dunes or under the substantial domination of

circumstances shall enter a sentence of another

Sie unprisonment or death but if the court im in capacity of the defendant to apprect

poses a sentence of death it shall set forth ate the criminality of his conduct or to conform

its findings upon which the sentence of Ie conduct to the requirements of law was oul

death is based as to the farts stantially impaired

(a) That sufficient egereveting crcum « age of the defendant at the time of

stances exist os enumerated in subsection (6) the crume. .

cireumstances, a8 enumerated 1” subsection on eae

outweigh the aggravating circumstances.

each case in which the court imposes the

deuth semcence, the determination of the court

grail be supported by speriic written findings

of fact based wpon the circumstances i”

of inns ¢) and (7) ead wpan the records of the

trial and the proceedings If the court

does not make the requiring the death

sentence, the court shall sentence vi lite

ve ced SENT ARD-

Same wa Aare

- jndamens of conviction Se re

tence of death Ww aviomalic

ee iy the Bepremne Curt of Flurida within 0

STATE OF FLORIDA,

Plaintiff,

“ao. = .

v. Case No. 74-1810 ao on. ©

g#i AD

“LESLIE R. JONES, Sie a *

Defendant. €== 8 ¢

aoe = 56

<= ea

THE COURT'S FINDING OF ACGRAVATING <i ing

AND MITIGATING CIRCUMSTANCES

(FIRST TRIAL)

The Court having heard the evidence in both trials

and having considered the ectter, makes the following findings

of aggravating circumstances:

A. The defendant was not under sentence of impri-

sonment for any other crime.

B. The defendant has never been convicted of a

capitsl felony to the Court's knowledge; but has been convicted

of a felony involving the use or threat of violence to snother

person.

C. The defendant did not knowingly create a great

risk of death to many persons.

D. This capital felony was committed while the de-

fendant was engaged or was an accomplice in the coamission of a

robbery.

E. This capital felony of murder in the first degree

was not committed while the defendant was engaged in the commis-

sion of or in flight after committing a life felony.

F. This capital felony was not committed for the

purpose of avoiding or preventing a lawful arrest or effecting

an escape from custody.

Cc. This capital feloay was committed for pecuniary

gein.

H. This capital felony was not committed to disrupt

or hinder the lawful exercise of any governmental function or the

enforcement of laws.

This <apital felony was especially heinous,

Mit.gat.ng circumstances:

A. ais defendant has 3 significant history of prior

criminal activity.

3. This defendant was not under the inf.scace of cx-

treme mental or emotional disturbance when the capital felony was

- comaitted.

C. The victim was not a participant in defendant's

cenéuct or consent to his acts.

| D. Vais defendant was an accomplice in the capitai

felony committed, there being another participant; but the de-

fencant, besed upon the evidence, was the perpetrator or fired

the shots thc. -ssulted in the capital felony.

E. This defendant did not act under extreme duress

or uncer the substantial domination of another person in the

commission of this capitcl] felony.

F. The capacity of this defendant to appreciate the

criminality of his conduct or to conform his conduct to the re-

quirements of law was not substantially impaired.

G. The «ze of this defendant at the time of the

commission of the crime is not a factor, he having reached ma-

jority of 18 some 7 years prior to the commission of the crime.

The Court's finding that this offense was especially

heinous, atrocious and cruel, is based upon the evidence that

the defendant forced the decedent to lay prone faced down on the

ground and after having taken the money in the crime of robbery,

and while the decedent and another person were pleading and beg -

ging for their lives, and without there being any threat of

violence, harm or injury to the defendant in anyway, the defcn-

gant fired a .32 caliber slug into the back of the head of the

decedent and fired two shots; one into the back of the head of

the other person and one into her arm and chest.

ee A

. poe TRIAL alte FINDING OF AGGRAVATING AND MITIGATING CIRCUMSTANCES _

shot them because OA ig » him. The exact amount

obtained was never testified to.

Defendant Jones took the stand in his own behalf and

denied that the confession was given freely and voluntarily,

testifying that prior to giving the confession he had been

threatened by an officer who had told him something to the

effect that there was an officer who was good at killing niggers,

and had killed some other niggers and another one wouldn't make

any difference to him, but did not identify this officer as any

of the officers who had appeared and testified they were present

when the waivers and confessions were taken. The defendant denied

that he had killed anyone and denied shooting the victims. He

testified that the weapon he had was not the weapon introduced

in evidence as the one firing the shots. He testified he had

thrown the weapon that he had away.

PACTS OF RECORD

Based upon the evidence, the Court finds there was a

robbery and Leslie Jones was one of the co-principals

participating in the robbery and in the process one person

was shot and later died from wounds received and another was

shot but survived.

Based upon the evidence the record would support Leslie

Jones was the person who fired the shot.

Based upon the record Leslie Jones was one of the persons

who was a participant in the robbery.

Based upon the record at the time it was to obtain money.

That the record would support that he gave a confession

on more than one occasion after being advised of his constitutional

rights to remain silent and right to counsel.

+ oGRAVATING AND MITIGATING CIRCUMSTANCES

The aggravating circumstances in this case are:

1: Thet-the defendant had previously been convicted

of a-félony. MLA.

2. That the defendant had been previously convicted

of another felony involving violence or the threat of violence.

Bes 803

—° ai -".* te ;

x a = =.

“* ” — ———- as ap a | a. <. f quasee aaa oS am -_*

rs 4 ( - ° @ és - — - > - - a= - al S

‘ *t

3. That the crime was committed while the defendant was

under sentence for a prior offense, he being on parole for the

prior robbery which was committed.

4. The crime for which the defendant is to be sentenced

was committed while the defendant was engaged in the commission

or a robbery.

5. That the crime for which the defendant is to be

sentenced was committed to disrupt or hinder the lawful exercise

of any governmental function or the enforcement of laws; to-wit:

he shot them because they could recognize him.

6. That the cime for which the defendant is to be

sentenced was especially heinous, atrocious or cruel.

There are no mitigating circumstances presented. 4

oe. « 4

- .

IN THE SUPREME COURT OF FLORIDA

LESLIE R. JONES, :

Appellant, :

Vv. CASE NO. 56,199

STATE OF FLORIDA,

Appellee. :

ON APPEAL FROM THE

FIRST JUDICIAL CIRCUIT, IN AND

FOR ESCAMBIA COUNTY, FLORIDA

INITIAL BRIEF OF APPELLANT

MICHAEL M. CORIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

There are no mitigating circumstances presented (R-803-

804).

The above-cuoted findings should be read in conjunction

with the court's oral pronouncements at the sentencing hearinc.

Particularly, the judge's observation concerning the State's

lacté of redress if he decided to impose a life sentence in the

face of what he perceived to be the facts of the case -- with

special reference to the aggravating and mitigating circumstances

ané the court's interpretation of the law (R-823-829;828). In

order to facilitate this Court's required responsibility to

@etermine independently whether the imposition of the ultimate

penalty is warranted, that is, see Songer v. State, 322 So.24

46) (Fla. 1975), Adams v. State, 341 So.2d 765 (Fla. 1976), and

Aldridge v. State, 351 So.2d 942 (Fla. 1977), the appellant

will discuss separately the trial court's findings, or lack

thereof, concerning the aggravating and mitigating circumstances.

Before entering into this discussion, the appellant would

suggest that, as a matter of law, this Court should reject the

trial court's findings on the third and fifth grounds set out

above. Neither of these findings were made by the trial judge

to support the first death sentence he imposed upon the appellant.

Neither of these findings are based upon objective information

concerning identifiable conduct on the part of the appellant

occurring after the time of the original sentencing proceeding.

In factual justification for this position the appellant would

respectfully direct the Court's attention to the supplemental

transcript of record on appeal, containing the trial court's

F-2

-44-

findings of aggravating and mitigating circumstances which was

submitted to this Court during the pendency of the appellant's

oricinal appeal in Case 847,472 of which this Court can take

judicial cognizance. Roberson v. State, 45 Fla. 94, 34 So. 294

(Fla. 1903). To ease review, on this point, there is submitted

with this brief an Appendix which contains the just-described

supplemental transcript of record on appeal. A perusal of same,

will show that the trial court found that the appellant was not

under sentence of imprisonment and did not commit the capital

felony to disrupt or hinder the lawful exercise of any govern-

mental function or the enforcement of the laws. As legal authority,

the appellant would¢ rely on North Carolina v. Pearce, 395 U.S.

71l, 23 L.£d.24 656, 89 S.Ct. 2072 (1969), where it is said:

Due process of law, then, requires that vindictive-

ness against a defendant for having successfully

attackeé his first conviction must play no part in

the sentence he receives after a new trial. And P

since the fear of such vindictiveness may unconsti-

tutionally deter a defendant's exercise of the right

to appeal or collaterally attack his first conviction,

due process also requires that a defendant be freed

of apprehension of such a retaliatory motivation on

the part of the sentencing judge.

In order to assure the absence of such a motivation, /,

we have concluded that whenever a judge imposes a more

severe sentence upon a defendant after a new trial, the

reasons for his doing so must affirmatively appear.

Those reasons must be based upon objective information

concerning identifiable conduct on the part of the defen-

Gant occurring after the time of the original sentencing

proceeding. And the factual data upon which the in-

creased sentence is based must be made part of the

record, so that the consitutional legitimacy of the

increased sentence may be fully reviewed on appeal.

395 U.S. at 725-726 (footnotes omitted).

Reliance upon Pearce, supra, is not erroneous simply because the

actual sentence imposed upon the appellant was the same. The

rF-3

- £5 -

eee eeer—E~sESsS—OoOOO

@ue process question is one of vindictiveness and the fundamental

principles of fairness upon which that constitutional provision

is grounded cannot tolerate allowing the appellee two bites at opr"

1, 57 L.Bé.2€ 1, 98 S.Ct. 2141 (1978) and Ashe v. Swenson, 397

U.S. 436, 25 L.£d.2¢ 469, 90 &.Ct. 1189 (1970). Im addition to

this constitutional basis for rejecting the trial court's finding

on the third and fifth grounds, the appellant will set out below

additional reasons why the court's findings on these aggravating

circumstances should be rejected on independent review by this

Court.

‘

_ ae

1. ‘THAT THE DEFENDANT HAD PREVIOUSLY BEEN ConvicTeD oF ¢?,*

A FELONY.

In fairness to the court below, appellant would note that

his copy of the record on appeal at Page 803 appears to show that

someone, presweably the trial judge, attempted to cross out this

circumstance and placed some initials (W.S.R.) by the attempted

Geletion. This observation was somewhat verified by a telephonic

communication with the trial court clerk's office concerning what

the record in that court reveals. In any event, it should be

argued and noted that this finding is not one of the statutory

eggravating circumstances listed in Section 921.141(5), Florida

Statutes. + such, if there are any mitigating circumstances

found, even if valid aggravating circumstances exist, the

appellant's sentence must be set aside. Elledce v. State, 346

So.2¢ 996 (Fla. 1977). Furthermore, this finding when considercd

with the second finding discussed below should be disregarded

lest there be an impermissible doubling cf the aggravating

IN THE SUPREME COURT OF FLORIDA

LESLIE R. JONES,

= . E . Se

Appellant,

Vv. CASE NO. 56,199

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE

FIRST JUDICIAL CIRCUIT, IN AND

FOR ESCAMBIA COUNTY, FLORIDA

REPLY BRIEF OF APPELLANT

MICHAEL M. CORIN

ASSISTANT PUBLIC DEFENDER

SECOND JUDICIAL CIRCUIT

POST OFFICE BOX 671

TALLAHASSEE, FLORIDA 32302

(904) 488-2458

ATTORNEY FOR APPELLANT

3 C ¢

totally out of line. To even try to compare the appellant's

prior roblery and simultaneous/episodic auto theft conviction to

Dobbert's prior criminal history is really going too far. The

appeliant won't dignify the appellee's endeavor with lengthy dis-

tinctions. However, the Court's attention is respectfully directed

to 328 So.2d at 435 which will show the significant difference

between Dobbert's prior criminal history and the appellant's.

On the authority of Huckaby v. State, 343 So.2d 29 (Fla. 1977),

this Court can find statutory mitigating circumstances not found

by the trial court. On the authority of State v. Dixon, supra,

and Lewis v. State, supra, this Court should find this mitigating

at beet Bue A tue 10 Ae0e bre

Ey fo 4 vy? be

Finally, in its attempt to “summarily” dispatch (BA-31)

with the appellant's due process - double jeopardy argument

based on North Carolina v. Pearce, 395 U.S. 711, 23 L.Bd.24 656,

89 S.Ct. 2072 (1969), Burks v. United States, 437 U.S. 1, 57

L.£4.2¢ 1, 98 S.Ct. 2141 (1978) and Ashe v. Swenson, 397 U.S.

436, 25 L.Ed.2¢ 469, 90 S.Ct. 1189 (1970), relating to the

trial court's impermissibly finding aggravating circumstances

not found in the appellant's original trial, the appellee

cites to the ex post facto case of Dobbert v. Florida, 432

U.S. 282, 53 L.Bd.26 344, 97 S.Ct. 2290 (1977) (BA-43-44).

The appellant feels further distinction is unnecessary.

The appellee in its brief shows nothing which should pur-

suade the Court not to grant a new sentencing trial.

1334 262 SOUTHERN REPORTER. 24 SERIES

Leste JONES. Appetiant.

STATE of Flerida. Appetice

Ne 47472

Supreme Court of Ploruta

June 3. 1978

Rehearing Demed Oct 24, 1978

Defendant was com icted in the Cireurt

Court. Escamive County, Wiliam & Row

lew. J. of murder = the first degree, and

death sertence «as imposed. and he appeal

ed «The Supreme Court, beld that (1)

defense motion for paychiatne examination

lo determine defemiant's sami!) at the Lime

of the offense could not be dened of

ground that Une results of the examination

would be used for more than perfecting a

defense based on insanity, (2) tre! court

erre! un denying motion for examination on

sole ground that (he motion was not proper:

ty fed, ehshe prectadeng defemiant from

showing good cause for omuswon of (he

prescritei notices and procedur and (J) 19

decuiing whether lo order an craminalion

tral court must consster all the circum

stances, and uniess clearly convinced (hal

examination & uRneccesar) order an c1am-

mation before begymaing of proceeding #ith

unal

Reversed and remanded for new trai

Adkins, J. dumented

grownd (hat court was convince! (hal re

sults of Une examimation wouk! bx used for

more than perfecting a defense base! on

insanity: theagh defense counse! must

Urwubfully set forth all information required

by rule m order to recerve a faverutie rub

ing on be motwe fer cramination, once

Une information gamed therefrom in prepe-

ration for trial, for whatever lewfel per-

poses be deems ft. 33 West's FSA. Rules

of Crvmenal Procedure, rules 3.210. 3.210b)

2 Mental Health 2434

Though rule provudes that defendant

must give sotice of micntion to rely on

defense of insanity at or before arraign-

ment and defendant did not file motion for

examination until (we days after date or.gy-

nally scheduled for tal, 4 wae errer to

refuse to grant examination on ihe sole

ground that the moter was #1 propertly

filed. without allowing defendan' to show

goed cause for ommmon of pror notice, in

con m Shh So arraqgement war ever

held «33 West's PSA. Rules of Criminal

Procedure, rule 3210 b)

3. Mental Health o- aos

In deesding whether lo order an cxam-

mation to determine sanity at time of of-

fense, irval court must consider all the eir-

eumstances. including the represent vLons

of counse| anu unicss clearly comvinced (hal

an cxamination & unnecessary, order an

crammation before beguaniag of procerd.

ing with triel 33 West's FSA. Rules of

Crumenal Procedure, rule 3.2)0(b)

Henry Clay Mitchell, Jr. Pensacola, for

aye han’

Robert L. Shewin, Atty. Gen, and A. &

Johnston, Aast. Atty Gen. Tallahassee, for

the store, Mra. Hagg and Mr. Petros. Both

were forced to lic face down on the floor

‘toe += oe Fe &

Pra

Serer RP eareaesce crore?

cSeGsf FF

bisf3t

ats kieat

Q Te

Sree Rsitve

(is

JONES +

. STATE Fin 1335

Cue on. Fle. 383 be de 1300

whi Jones and Dugan emptied the cash

regwicrs Before leaving the store, one or

both of the rubber shot Mrs Hagg and Mr

Petros, Mr. Petros was fatally wounded

The testimony «as conflcting as to who

ow ned the gun and who pulled the tngger

Mra Hagg «as unatile to testify which man

fwed the fetal shots since she was lying

face down on the floor, bul she did notice

the peculiar shoes worn by one of the rob

bers and was able to relate be movements

during the robbery Important portions of

the state's evelence were presented by the

witness Anderson, whe was initially

charged with the appellant. The charges

against him were later dumused He test)

fied that at the me of the robbery he was

standing ovtaete the hquer stere and ob

served Dugan end Jones enter the store

and after severa! minutes, make thew geta-

way. Kt was bee testimony that appellant

was nol carryyng @ gun when he came oul

of Une busking

Ceture prowwdes 29 fothows

"Ti

HHI

4 The tral judge improperly expressed

an opinion as to appellants guilt

5. The court erred in denying & motion

for change of venue

& The court erred in failing te grant a

new inal because a juror fainted dunng the

taking of testimony

7. The court erred in holding that Sec-

tion THEO4 and Section O21.141, Florida

Stalvles, are consti uuuonal

Appetiant also alleges several errors in

the sentencing portion of the trial

Appellant was indicted on the 1) th day of

December, 1974. The case was set for trial

oo April 6. 1975. bet was continued on

prosecute (the (owr may cowse the defend

am to br cxamuned m the presence of ation

aeys tor the Giese ond for the Gefendem,

they chooser to be present by ome oF more

Geemeresed qualtlied CL pens Rot eK eedeng

three appoemed by (he cour at turh (ume

end place as may be Grugnated m ihe order

of the court. a6 to the sonny, @ meannty. of

arte nden 8 of (he Commission

'—

1336 Fis

{1} We reject the argument advanced

by the state that the court was justified in

denying appelianis motion on the grounds

that appellant intended to use the examina-

tron for purjames ciher than determining

his sanity at the time of the offense. These

additional intended uses ure borne out by

Une record. but. the question remains, may a

tral court deny a defendant's motion for

peychatric examination if it i convinced

Unat the results of that examination will be

used for more than perfecting « defense

based on insanity’ We think not While

ton once the examinalion = completed.

counsel may use the information gained

therefrom in preperation for trial, for

whatever la«ful purposes he deems fit

ing” cannet ber his right w examination

since the time for filing never ended The

court refused lo grant an examination on

the sole ground that the motion was not

property filed

Under Une circumstances, we agree with

appelian( Ural the (nal judge erred in den)

ing hes motion for examination In effect

Une court ehminated appeliants sole de

fense. The lest paragraph of Rule 3.21000)

sales

Upon good cause shown for the ome.

Fri

tle

}

32 SOUTHERN REPORTER. 24 SERIES

cally imsufficent motion requesting a men-

tal examination The court states

The import of cur decision in Pate +

Robinson, (983 1S. 375, #6 S.C. oe 15

L.Ed 24 815 (1966)) is that evidence of »

defendant's irrational behavior, his de-

meanor at triel, and any prier medical

Omen on competence to stand tna! arc

all relevant im determining whether [wr-

ther inquiry & required, but that even

one of these factors standing alone ma)

™ some circumstances, te sufficient

There are. of course, no fixed or immuta

ble signs which invariably indicate the

need for further inquiry to determine fit-

ness to proceed; the question is often «

diffrewt one im whnh a wide range of

manifestations and subtle nuances are

implicated. Thai they are difficult to

examination to determine a defendant's

was sought te determine the defendant's

sanity at the time of the offense. In decwi-

ing whether or not to order an examination.

the inal judge must conssder all the orcum-

Accordingly, the conviction aad sentence

ere reversed ami ihe case remanded for

new tral

It 0 ordered

OVERTON. C J. and BOYD, ENG.

LAND, SUNDBERG and HATCHETT. JJ.

concur

ADKINS, J., dessents.

S FSHSRESCIPEAELILEPIESES

eaiecree ~

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.