#### Willie YOUNG, Calvin W. Thomas and Harold Simon, Appellants, v. STATE of Florida, Appellee.

No. L-320.

District Court of Appeal of Florida. First District.

Sept. 18, 1969.

*417Willie Young, in pro. per.

Earl Faircloth, Atty. Gen., and James Robert Yon, Asst. Atty. Gen., for appellee.

JOHNSON, Chief Judge.

This is an appeal from an order of the Circuit Court of Duval County denying the appellants’ motion to vacate and set aside judgment and sentence, entered March 11, 1969.

On the same day notice of appeal was filed in this court, on to wit: March 19, 1969, the appellants also filed in the Circuit Court, Fourth Judicial Circuit of Florida, a petition for appointment of counsel and a “petition for writ of habeas corpus and/or other appropriate relief, pursuant to Rule 1.850 [33 F.S.A.].”

These appellants are no strangers to the courts, either State or Federal, their cause having been heretofore aired before the Florida Supreme Court and the United States District Court and the United States Fifth Circuit Court of Appeals, wherein, although technically on different pleadings, were substantially upon the same grounds as contained in the appeal sub judice.

Inasmuch as the appellants have not procured counsel, nor shown their right to court-appointed counsel in the present proceeding, and have not filed briefs, but, instead, have petitioned this court to act upon the appeal “forthwith,” so that they, the appellants, might proceed further in Federal court wherein apparently they hope to find more friendly ears to their murderers’ pleas for relief, this court has elected to adjudicate this matter on the merits. In order to grasp a more complete picture of the true situation, we have carefully studied the very comprehensive findings and adjudication of the Honorable Marion W. Gooding, Circuit Judge, Duval County, Florida, as contained in his order of March 11, 1969, which constitutes the basis for this appeal, and have studied the prior decisions of this court and of the Supreme Court of this state, cited by Judge Gooding as being reported in 140 So.2d 97, and we are again convinced that no error has been committed by the trial court and the order appealed from should be and is hereby affirmed.

WIGGINTON, J., concurs.

SPECTOR, J., specially concurs.

SPECTOR, Judge

(specially concurring).

The appellants were convicted by a lawfully convened jury of the offense of murder. Their victim was Eugene Arnold Richardson, a storekeeper in the City of Jacksonville.

Their crime was committed long ago on June 9, 1960, during an attempt to hold up a small neighborhood store operated by the deceased and his wife. Upon returning its guilty verdict, the jury withheld its recommendation of mercy. Accordingly, appellants were sentenced to be put to death by electrocution. On April 4, 1962, the conviction of appellants was affirmed by our Supreme Court on direct appeal (140 So.2d 97).

Virtually the same questions of law were considered at that time as are raised in the present proceeding. More recently, those grounds were raised in a post-conviction proceeding similar to the one at hand and were decided adversely to the appellants by this court in Young et al. v. State, 213 So.2d 462.

*418Despite the numerous instances in which the legality of appellants’ convictions has been considered and upheld, we are asked to plow the same field again. Already, society has expended more funds financing the quest for exoneration by these convicted murderers than has been made available to the victims of their damnable deed. And the end is not in sight. We will doubtless be asked repeatedly to review this case and on each such review the pleadings filed will, as they have in the past, refer less and less to the facts of the murder. Ultimately the pleadings will simply state that the petitioners were convicted of a statutory offense and will then launch into the now familiar cacophony of claimed constitutional deprivations with never even the slightest reference to the almost forgotten murder.

Nearly a decade has passed since the death sentence was imposed upon appellants. Every moment of their lives since that time, they have faced the threat of electrocution. Indeed, because of an innovative federal judiciary which is never at a loss for discovering new legal doctrines, the likelihood of the sentence being carried out becomes more and more remote. Thus, the State by its failure to resolve definitively its right to carry out the death sentence perpetuates the uncertainty now existing in the minds of the public as well as in the minds of the appellants. Each added day that appellants await the final answer renders their incarceration more and more intolerable. So much more intolerable is their plight likely to be that their incarceration in the face of such uncertainty may be deemed by some as punishment more cruel and unusual than the death penalty itself.

In view of the foregoing, not only do I concur in the judgment affirming the trial court’s refusal to set aside the conviction and sentence herein, but I would also affirmatively hold that the sentence imposed upon appellants in 1960 should now be carried out lest with the passage of time it becomes more and more susceptible to claims of constitutional infirmity arising from the cruel and unusual punishment clause of the State and Federal Constitutions. The State owes its citizens convicted of capital offenses a constitutional duty to avoid inflicting the death penalty in a manner that involves a lingering or torturous death. 9 Fla.Jur., Criminal Law, Section 271. Correspondingly, it owes a duty to the public to carry out the laws duly enacted by the legislature to protect individual lives and property. Care should be taken to discharge that duty.

Affirmed.