DAVID LIVINGSTON FUNCHESS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Funchess was convicted of two counts of first-degree murder and sentenced to death. After the U.S. Supreme Court's decision in Gardner v. Florida, the Florida Supreme Court vacated his sentences and remanded for resentencing. On remand, the trial court again imposed death sentences, which the Florida Supreme Court affirmed.
The trial court properly resentenced Funchess to death. The remand was limited to complying with Gardner v. Florida's requirements and did not mandate reconvening an advisory jury. Substantial competent evidence supports the trial judge's findings that death sentences were appropriate.
[1] A remand for resentencing following a U.S. …
[2] A trial court must have substantial competent evidence to support its findings regarding aggravating and mitigating circumstances when imposing a death sentence.
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Join FLexlaw to unlock all legal intelligence“The purpose for our remand was to comply with the dictates of the United States Supreme Court in Gardner v. Florida; it was not to provide an entirely new sentencing proceeding at which a new advisory jury could be reconvened.”
Establishes the limited scope of the remand and rejects Funchess's argument that resentencing required a new advisory jury proceeding.
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Join FLexlaw to unlock all legal intelligenceFunchess was tried and convicted of two counts of murder in the first degree and initially sentenced to death. Following Gardner v. Florida, the Flori…
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PER CURIAM.
David Livingston Funchess was tried and convicted of two counts of murder in the first degree and was sentenced to death in trial court proceedings affirmed by this Court.1 Following a subsequent United States Supreme Court decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we vacated Funchess’ death sentences and remanded his case to the trial court for resentencing without an advisory jury proceeding.2
On remand, an evidentiary hearing was conducted by the trial court at which Fun-chess presented evidence in mitigation of his sentences. Nonetheless, the trial court in due course entered an order again sentencing Funchess to death, following which Funchess brought this case to us for review.
Funchess makes a number of legal attacks on the propriety of instructions given to the jury at the sentencing proceeding of his first trial, arguing that the order remanding for so-called ‘‘Gardner relief” should have included a mandate for reconvening an advisory jury. We reject all of these contentions. The purpose for our remand was to comply with the dictates of the United States Supreme Court in Gardner v. Florida; it was not to provide an entirely new sentencing proceeding at which a new advisory jury could be reconvened. Songer v. State, 365 So. 2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Complying with our mandate, the trial court properly rejected all legal points raised by Funchess’ counsel.
The only proper question now presented is whether there is substantial competent evidence to support the express findings of the trial judge that sentences of death are appropriate for Funehess. We are satisfied from our review of the evidence presented at the resentencing procedure, and from the record of the original sentencing proceeding: first, that the trial jiidge properly performed his weighing function with respect to the one new mitigating circumstance developed at the resentencing proceeding and the aggravating factors which had been established at the original proceeding (all but one of which were unchallenged on remand); and second, that there was substantial and competent evidence to support the findings of the trial judge with respect to the aggravating and mitigating circumstances articulated in his resentencing order. The dictates of Gardner v. Florida have been faithfully met by the trial court in this case, and sentences of death were properly imposed. We affirm the trial court’s new death sentences.
It is so ordered.
SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur. McDONALD, J., dissents.
. Funchess v. State, 341 So. 2d 762 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).
. Funchess v. State, 367 So. 2d 1007 (Fla.1979).
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Dougan v. State, 398 So. 2d 439 (Fla. 1981)…roper. We affirm the sentence imposed by the trial judge.2 It is so ordered. ADKINS, Acting C. J., and BOYD, ENGLAND and ALDERMAN, JJ., concur. McDONALD, J., dissents with an opinion with which OVERTON, J., concurs. . See also Funchess v. State, 399 So. 2d 356 (Fla.1981) (trial court on remand for Gardner relief properly refused to provide an entirely new sentencing proceeding in which a new advisory jury could be reconvened). . Our disposition of this proceeding in accordance with the limitations impose…
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Funchess v. State, 449 So. 2d 1283 (Fla. 1984)…encing without an advisory jury proceeding pursuant to Gardner v. Florida 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Funchess v. State, 367 So. 2d 1007 (Fla.1979); and on appeal following resen-tenee of death, affirmed in Funchess v. State, 399 So. 2d 356 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). On June 23, 1982, Governor Bob Graham signed Funchess’ death warrant. Shortly thereafter a proceeding was filed by Fun-chess, in federal district court, seeking relief from t…
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Funchess v. Louie L. Wainwright, 486 So. 2d 592 (Fla. 1986)…U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977), and after ordering resentencing in light of Gardner v. State, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we affirmed the trial court’s order resentencing Fun-chess to death. Funchess v. State, 399 So. 2d 356 (Fla), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). We have also affirmed the trial court’s denial of post-conviction relief and denied Fun-chess’ first petition for habeas corpus. Funchess v. State, 449 So. 2d 1283 (Fla.1984).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gardner v. Florida, 430 U.S. 349 (U.S. 1977)
- Songer v. State, 365 So. 2d 696 (Fla. 1978)
- Middleton v. South Carolina, 434 U.S. 878 (U.S. 1977)
- Magda v. United States, 434 U.S. 878 (U.S. 1977)
- Voyles v. Mississippi, 441 U.S. 956 (U.S. 1979)
- Harvard v. Florida, 441 U.S. 956 (U.S. 1979)
- Broward Cnty. v. COE, 341 So. 2d 762 (Fla. 1976)
- Funchess v. State, 367 So. 2d 1007 (Fla. 1979)