SMITH
v.
FLORIDA
Justice Brennan,
dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in,,this case.
Justice Marshall,
dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, I would grant certio-rari and vacate petitioner’s death sentence on this basis alone.
However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence on the ground that neither the jury that convicted petitioner of murder nor the judge who sentenced him found that he “kill[ed], attempt[ed] to kill, or intended] that a killing take place or that lethal force ... be employed.” Enmund v. Florida, 458 U. S. 782, 797 (1982).
The jury was instructed that “liability for first degree murder extends to all co-felons who are personally present during the commission of the felony” and that “[ujnder the felony murder rule, [the] state of mind of the defendant is immaterial.” Tr.
2678. In imposing sentence, the trial judge did not find that petitioner himself killed, attempted to kill, or intended to kill. Although the Supreme Court of Florida concluded that “there was sufficient evidence from which the jury could have found [petitioner] guilty of premeditated murder,” 424 So. 2d 726, 733 (1982) (emphasis added), neither the jury nor the judge actually made such a finding. Under these circumstances our decision in Enmund v. Florida requires that petitioner’s death sentence be vacated.
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Swafford v. State, 533 So. 2d 270 (Fla. 1988)…and sexual abuse. See, e.g., Routly v. State, 440 So. 2d at 1264; Lightboume v. State, 438 So. 2d 380, 391 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); Smith v. State, 424 So. 2d 726, 733 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Griffin v. State, 414 So. 2d at 1029. In Parker v. State, 476 So. 2d 134, 139 (Fla. 1985), we quoted the statement in Adams v. State, 412 So. 2d 850, 857 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74…
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Bundy v. State, 471 So. 2d 9 (Fla. 1985)…ave found the manner of the killing to be the conscienceless or pitiless type of killing which warrants a finding that the capital felony was especially heinous, atrocious or cruel. See, e.g., Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983) (where evidence showed the victim was abducted, confined, and sexually abused by the defendant and then lead into a wooded area and killed execution-style by three shots to the back of her head); Bolender v. S…
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Hamblen v. State, 527 So. 2d 800 (Fla. 1988)…that he decided to kill her. Unlike those cases in which robbery victims have been transported to other locations and killed some time later, e.g., Parker v. State, 476 So. 2d 134 (Fla.1985); Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983), Hamblen’s conduct was more akin to a spontaneous act taken without reflection. While the evidence unquestionably demonstrates premeditation, we are unable to say that it meets the standard of heightened preme…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gregg v. Georgia, 428 U.S. 153 (U.S. 1976)
- Enmund v. Florida, 458 U.S. 782 (U.S. 1982)
- THE Florida BAR v. Merwin, 424 So. 2d 726 (Fla. 1982)