# Petition — Leslie H. Jones v. Florida (No. 81-6891) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0332%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 ## Text oe —_—-- - 2 ms — ——- « -- orm or RECEIVED | dgie 1.19% Orticc ws one Lack xo, 81 6891 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) 2 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). ee er rm ST —— — . . a. Ati i a: Be af : | Tau ST HET ae aTTE ne te ua aaas i al 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 7 ; 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 A 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 1-5 1 l= 2 1-2 1-4 1-2 A= 3 Pia. Cite an, fm. 611 Seas 168 3 Judges =51(2) JONES +. STATE SS A Ot Soe eee ee FTHTeR ALTE em aH AE STHIE HF iil (it HH 7 $2 ite iil Hit i Us te Ga aE Side glee til alae Ht ii He Hithid? ly ial! vat AH E ATE iif ATH RA titiaidiatil il itt | ‘ ig pita HN HU HEHE : 3 1 tie ) j333 #2 vie H ee 1] il ltt Ty i nt g§42=s* eat iejulll = Hi Hl We TRS git! 43233 “e"ONALD, J, * to file rehear- t 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- th K if t ? if if Fa fi EeEE Hi Fe As i! Fs H # ae tl i I: i i ie cf fr Tr t Fes fie rl Hib [ i i i 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- on 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 il Fee Hi if 1 e " FF 44} - | i i . 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 _ a — =. - 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 + if | i 35 itt i E if i [3 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: Lilie th | H g53 cETE | Fas iif tee si Hi i ia leet: ae. eee 2 ee ee —~ . 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 a ce HTH Bite! Hf : i | +. 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 i i F = : 5 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 > ® . a * . as 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 Ve ———— 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° : 4 2 2 32 BFS 28 i 4 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 - - 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" 3 the apple of proof. See also: Burks v. United States, 437 U.s.© 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 eraminalion © complete! covnse) ma) ux 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 H | | i} HHI H i if it | 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 } | 35 | 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 evalusie © suggested by the varying 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 ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0332%3A1. Public record. Not legal advice.