#### In re FLORIDA RULES OF CRIMINAL PROCEDURE, RULE 3.710.

No. 49355-D.

Supreme Court of Florida.

Sept. 7, 1978.

Ronald K. Cacciatore, Chairman, Executive Counsel, Criminal Law Section of The Florida Bar, Tampa, and John A. Weiss of The Florida Bar, Tallahassee, Bennett H. Brummer, Public Defender, and Paul Morris and Karen M. Gottlieb, Asst. Public Defenders, Miami, Bruce J. Winick, Gen. Counsel, Coral Gables, Terry L. DeMeo, Staff Counsel, South Miami, and Raymond W. Russell, Fort Lauderdale, for American Civil Liberties Union Foundation of Florida, Inc.

Richard L. Jorandby, Public Defender, and Craig S. Barnard and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, Michael J. Minerva, Public Defender, Tallahassee, and Andrew A. Graham, Rockledge, interested persons.

PER CURIAM.

On November 30, 1977, the Court initiated this rulemaking proceeding to consider whether presentence investigation reports should be eliminated from the sentencing process in all capital cases, in light of the statutory scheme for sentencing set out in Section 921.141, Florida Statutes (1975). The Court invited comment by all interested parties on a proposed change to Florida Rule of Criminal Procedure 3.710 which would achieve that objective.

After receiving briefs from many interested parties, hearing oral argument, and considering both the policy issues and the practical implications of a possible rule change, we have concluded that presentence investigation reports should continue to be available as a discretionary sentencing tool *656for trial judges in capital cases,1 and that Florida Rule of Criminal Procedure 3.710 should remain unchanged. In so concluding, we have rejected alternatives to the present rule which were suggested by various counsel, such as mandating presentenee investigation reports in all capital cases, requiring their presentation to advisory sentencing juries as well as trial judges, and requiring them only at a defendant’s request.

This rulemaking proceeding is hereby terminated.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents with an opinion.

1

. See, however, *Hargrave v. State,*Case No. 48,135 (Fla. opin. filed June 30, 1978), holding the second sentence of Rule 3.710, which *mandates*presentence investigation reports, inapplicable in capital cases.

BOYD, Justice,

dissenting.

*Hargrave v. State,*Supreme Court Case No. 48,135, Opinion filed June 30, 1978 and the committee note notwithstanding, I believe Florida Rule of Criminal Procedure 3.710 mandates presentence investigations and recommendations for the sentencing judge’s consideration in capital cases where the defendant is under 18 years of age or the conviction for the capital offense is the defendant’s first felony conviction. Given my construction of the rule, that it requires reports in some capital cases, I would amend the rule to extend the requirement to all capital cases. As Justice Hatchett has written in this proceeding, if the PSI reports have a potentially beneficial impact on the capital sentencing process every defendant facing a death sentence should be afforded the benefit. Post, at 656 (Hatchett, J., dissenting).

During oral argument a number of the parties stressed the potential benefit to the defendant conferred by the presentence investigation report. My review of the reports that have come before this Court in capital cases has led me to the conclusion that, at times, they offer the defendant some benefit. It must be taken as true that at least in some cases the report will show a defendant in a better light than the facts of the capital crime, and therefore is a mitigating aid to the defendant. In view of this fact, for the sentencing judges to provide some capital defendants resources to turn up mitigating factors, but deny those resources to others, is unquestionably a denial of equal protection. Moreover, in those cases in which the sentencing judge denies the defendant’s request for consideration of a report, I think a sentence of death may not be imposed without violating the constitutional ban on cruel and unusual punishment. In *Lockett v.*Ohio,-U.S.-, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court announced,

> [T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case [prisoner or escapee under life sentence commits murder], not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at-, 98 S.Ct. at 2965.

This announcement of the Court means to me that, as long as the court retains presen-tence investigation reports, with their potential mitigating effect, “as a discretionary tool for sentencing judges in capital cases,” it must require the sentencing judge to consider a report whenever the defendant requests consideration.

I would require consideration of the report in every capital case. And I believe that constitutionally a report must be considered by the sentencing judge at the request of any defendant convicted of a capital offense. I dissent.

HATCHETT, Justice,

dissenting.

I agreed to hear argument on suggested changes to the rule covering the use of *657presentence investigation reports in capital cases out of a concern that PSI’s were being used to override jury recommendations and render meaningless our decision in *Tedder v. State,*322 So.2d 908 (Fla.1977).

In light of the majority’s position expressed here, I abandon the hope that the degree of purity that I desire in the sentencing process in capital cases, and the purity which I believe is required by the United States and Florida Constitutions, will be achieved at this time. I would at least require a presentence investigation report in all capital cases. What is gained by having PSI reports in some capital cases but not in others, at the sole discretion of the trial judge? If these reports have a potentially beneficial impact on the capital sentencing process, our constitutional guarantees of equal protection under the laws would seem to mandate the extension of these benefits to every individual facing a sentence of death. *Furman v. Georgia,*408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In addition, the rule as presently adopted contains no standards to guide trial judges in their determinations as to whether such reports are necessary.

Therefore, I must respectfully dissent.