#### In re Bernard R. BAKER, and other persons similarly situated (now or previously under sentence of death, but not resentenced).

No. 42821.

Supreme Court of Florida.

Sept. 26, 1972.

Rehearing- Denied Nov. 3, 1972.

Tobias Simon, Miami, for petitioner.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.

ADKINS, Justice.

We have under consideration an original petition for constitutional writ filed by Bernard R. Baker, previously convicted of murder and sentenced to death (Baker v. State, Fla., 202 So.2d 563; Baker v. State, Fla., 241 So.2d 683). It is, further, a petition on behalf of a class of other persons similarly situated, who are now, or previously have been under sentence of death in this State, but who have not yet been re-sentenced. The Attorney General has filed a motion to dismiss the petition. This motion is denied and we now consider the merits of the petition.

Baker asserts that under the decision of the Supreme Court of the United States, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the death sentences imposed upon persons in this State are illegal, and thereby void. This Court has itself never declared the death penalty unconstitutional, but has recognized and followed the decision of the United States Supreme Court in Furman v. Georgia, *supra.*See Donaldson v. Sack, Fla., 265 So.2d 499 (opinion filed July 17, 1972) and Anderson v. State, Fla., 267 So.2d 8 (opinion filed September 8, 1972). Baker’s assertion that death sentences previously imposed are void is therefore correct.

On June 29, 1972, when *Furman*was decided, there were 100 persons under sen*332tence of death in Florida. Since their death sentences were then voided, it became necessary for the courts to arrange for, and impose, legal and appropriate sentences upon them.

At that time, forty of these persons had cases pending before this Court. The Attorney General filed a motion on July 24, 1972, requesting this Court to relinquish jurisdiction in those cases to the respective circuit courts for the purpose of re-sentencing under Rule 3.800 F.R.P., 33 F.S.A. Our decision, however, for reasons set forth at length in *Anderson, supra,*was for this Court to correct the illegal death sentences and — as to the 27 persons convicted of murder1 — this Court imposed a sentence of “confinement in the State prison for the term of his natural life.” Only the 13 2 persons in that group, convicted of rape, were remanded to the circuit courts for resentencing. This was because each of those persons, if his crime was committed prior to January 1, 1972, is entitled to a hearing prior to re-sentencing; and may be sentenced to imprisonment to life or for any term of years within the discretion of the Court. F.S. § 794.01 (1969), F.S.A.

*333There were an additional 60 persons convicted of both murder and rape under sentences of death at the time *Furman*was decided.3 Their cause was before the United

*334States District Court (M.D.Fla.) sub nom. Adderly v. Wainwright, 46 F.R.D. 97. On August 1, 1972, that Court vacated the death sentences and remanded each of the 60 persons to his respective circuit court for re-sentencing.

According to the petitioner, neither he nor all other persons will be re-sentenced prior to October 1, 1972. Petitioner requests that he, and the entire class be re-sentenced prior to that date so as to avoid the operation of Ch. 72-118, which requires sentences re-imposed after that date to be life terms without benefit of parole.4

What petitioner requests is that this Court (rather than the circuit courts) impose life sentences on convicted murderers and indeterminate sentences of time served to life imprisonment on convicted rapists; and as to the latter, and following this sentencing, remand them to the circuit courts for the discretionary sentencing procedure to which our statutes (until January 1, 1972) entitled them. The circuit courts would then decide the term of imprisonment to be imposed.

As stated in Anderson v. State, *supra:*

> “We are aware of the many problems involved, when it is necessary to transport a large number of convicted murderers from the State prison to the trial court for the purpose of sentence. The safety of the law-abiding citizen is a matter of paramount concern to the Court. Also, many hours of manpower would be consumed by law enforcement officers in transporting the prisoners. Some local jail facilities are crowded and inadequate. Since the death sentence has been outlawed, there is a greater possibility of murder for the sake of escape, particularly when the penalty to be imposed for the taking of an additional human life can be no greater than that previously imposed by the Court. The above factors are sufficient to create an exception to Rule 3.180, F.R.Cr.P., requiring the presence of the defendants at sentencing. Their absence deprives them of no rights.”

We have already granted this requested relief to 27 members of the class of persons under sentence of death. There appears to be no reason why the remaining members of the class need be treated differently. To do so would create a class statutorily denied parole, while facing life terms in prison. The uniqueness of this position would foster litigation attacking both *335the facial validity of the Statute (C. 72-118) and its selective application to an indistinguishable few — a seeming denial of equal protection.

Under these circumstances, it is clearly to the best interest of the public that this Court impose sentences upon the class of petitioners as follows:

1. All of the members of the class of persons under sentence of death who have been convicted of murder are hereby sentenced to life imprisonment.

2. All of the members of the class of persons under sentence of death who have been convicted or rape are hereby sentenced to life imprisonment. The cases of these persons, however, are remanded to their respective circuit courts for the sole purpose of further consideration of this sentence, and each of such persons may, within 90 days from this date, file a motion with the trial court for mitigation of sentence. If such a motion is filed by any person, a hearing thereon may thereafter be held under F.R.P. Rule 3.780 to determine first the date of the crime for which the defendant stands convicted. If committed after January 1, 1972, the life sentence shall not be mitigated. See Anderson v. State, *supra.*If committed prior to January 1, 1972, the Court may conduct a hearing under Rule 3.780, F.R.P., for the purpose of inquiring into all factors relevant to sentencing and shall then resen-tence such person to a term of life imprisonment or a term of years, in the discretion of the court. The defendant has the right to be present at any such hearing and the right to retain counsel, or have counsel appointed if indigent. These rights may be waived in writing by a defendant.

3. Defendants in both categories, who have been convicted of two or more crimes in one or more counties, are hereby re-sentenced in accordance with the foregoing for each of such crimes.

The sentence of life imprisonment hereby imposed shall remain in full force and effect, and the defendant shall be held in custody under such sentences unless subsequently mitigated in accordance with the procedure set forth herein.

The Clerk of this Court shall furnish a certified copy of this order to the Clerks of the Circuit Courts in which each of the above-named defendants was convicted. If a defendant has not previously been re-sentenced, the Clerk of the Circuit Court in which he was convicted shall thereupon issue a commitment in each case based upon his sentence of life imprisonment and shall forward the commitment to the Division of Corrections. In the event the life imprisonment of a defendant charged with rape is mitigated by the trial court to a term of years, the Clerk of said Circuit Court shall thereupon issue an amended commitment reflecting the mitigated sentence and shall forward the amended commitment to the Division of Corrections.

Petitioner, Bernard R. Baker, who was convicted of murder in the first degree without recommendation of mercy, is controlled by our decision in Anderson v. State, *supra.*His sentence is corrected so as to provide that he shall be imprisoned by confinement in the State prison for life and an amended commitment shall be issued by the Clerk of the Circuit Court of Indian River County reflecting this sentence.

Many of the persons formerly under death sentence have already been resen-tenced by their respective circuit courts. For these persons, and to the extent that they have been resentenced in accordance with the procedures outlined herein, this order is inapplicable. It is, however, the purpose of the Court by this order to conclude the resentencing of all other persons in the class. All that remains to be accomplished are the hearings on behalf of persons who may move for a mitigation of their sentence by the trial court. These motions must be filed with the trial court within 90 days from this date, and they may thereafter be heard by the trial court within a reasonable time.

It is so ordered.

*336ROBERTS, C. J., and ERVIN, CARLTON and BOYD, JJ., concur.

DEKLE, J., dissents.

1

. NAME RAPE OFFENSE SENTENCED COUNTY

ANDERSON, Earnest Eugene CM Murder 10-19-71 Dade

BARLOW, David Edward WM Murder 6-29-71 Franklin

BAULDREE, John Phillip WM Murder 3-05-71 Orange

BISHOP, Sylvian Dale WM Murder 5-14-71 Indian River

BOATWRIGHT, Kenneth L. OM Murder 1-31-72 Pinellas

OOBB, Charles Elwood CM Murder 10-26-70 Dade

COON, Douglas Dwight CM Murder 10-12-71 Leon

DEMPS, Bennie Eddie CM Murder 7-02-71 St. Johns

EVANS, Lawrence Dean CM Murder 10-26-70 Dade

FORWARD, James E. CM Murder 5-24-72 Bay

FOWLER, Jerry Dwayne WM Murder 7-23-70 Pinellas

FUSSELL, James CM Murder 4-21-72 Leon

GUICE, Marvin Louis CM Murder 6-07-71 Lake

HALL, Roger L. WM Murder 6-09-72 Hillsborough

HARKELROAD, James Wesley WM Murder 5-27-71 Hillsborough

HIGGS, Macon, Jr. CM Murder 2-23-71 Broward

JOHNSON, Richard M., Jr. WM Murder 12-07-71 Orange

JONES, Wayne WM Murder 12-18-69 Manatee

KEATON, Dave Roby CM Murder 5-11-71 Leon

PAULK, Roy Carroll WM Murder 3-22-72 Orange

PRESSLEY, Nathaniel CM Murder 10-26-70 Dade

PYE, Benjamin Franklin CM Murder 10-12-71 Leon

REED, Craig V. WM Murder 6-05-70 Broward

REED, Gene R. WM Murder 6-05-70 Broward

RESNICK, Errol WM Murder 10-28-71 Pinellas

VAILLANCOURT, Paul Arthur WM Murder 4-14-72 Citrus

WARRICK, Samuel Wade CM Murder 12-03-71 Palm Beach

2

. NAME RACE OFFENSE SENTENCED COUNTY

BERNOVICH, Dennis WM Rape 9-24-71 Seminole

BLACKWELL, Thomas Henry CM Rape 1-07-72 Escambia

BYRD, Robert Lee CM Rape 5-26-71 Seminole

CHANEY, Cornelius Lewis CM Rape 2-19-70 Bay

CORRIEA, Raymond Robert WM Rape 6-29-71 Broward

GORHAM, Douglas WM Rape 6-08-72 Hillsborough

ASHFORD, Willie CM Rape 11-3-70 Lake

HORTON, Leslie D. WM Rape 10-18-71 Hillsborough

HOUSE, Anthony Wayne WM Rape 5-19-72 Franklin

HOUSE, Herbert Eugene, Jr. WM Rape 5-19-72 Franklin

McDOLE, James Steddo CM Rape 1-07-72 Escambia

ROSEMAN, Andrew James CM Rape 10-22-71 Broward

WARREN, Robert CM Rape 10-29-70 Pinellas

3

. NAME RACE OFFENSE SENTENCED COUNTY

ADDERLY, John A. CM Murder 7-24-61 Broward

ALLEN, Thomas CM Murder 2-11-64 Columbia

ANDERSON, Alvin Eugene CM Rape 5-20-69 Marion

ASHLEY, Henry Thomas WM Murder 12-11-70 Pasco

BAKER, Bernard R. WM Murder 4-18-66 Indian River

BAKER, Rudolph CM Murder 5-11-67 Lee

BAXTER, John Alvin WM Murder 6-02-72 Broward

BOYKIN, Willie James CM Murder 4-03-70 Duval

BROWN, Bill, Jr. CM Murder 10-03-69 Leon

BRYANT, Bobby CM Murder 5-27-69 Dade

CAMPBELL, Calvin Carlos WM Murder 5-11-66 Union

CARSWELL, Henry J. CM Murder 12-28-61 Palm Beach

CHATMAN, James S. CM Murder 1-20-66 Lake

CIRACK, Charles Alexander WM Murder 3-28-66 Volusia

CLOWERS, Joe Nathan CM Murder 10-17-69 Dade

COLLINS, James E CM Rape 10-20-64 Duval

CRAIG, William Benjamin CM Rape 6-27-63 Leon

DALTON, Charles O., Jr. WM Murder 4-18-66 Indian River

DRUMWRIGHT, Jimmie Lee CM Rape 8-23-65 Seminole

FIELDS, Bobby CM Rape 12-16-70 Marion

GILLEY, Israel CM Rape 8-23-65 Seminole

ARRINGTON, Marie CF Murder 12-6-68 Hernando

GRANT, Daniel CM Murder 12-19-61 Dade

GRIMES, Nathaniel, Jr. CM Murder 10-03-69 Leon

HARDIE, Jackie CM Murder 7-02-71 St. Johns

HAWKINS, Charles C. CM Murder 3-13-66 Marion

HENNINGER, John WM Murder 5-16-69 Dade

HOLSTON, Leon C. CM Murder 9-29-66 Broward

JOHNSON, Cleveland Lee CM Murder 1-16-70 Pinellas

LAND, James Matthew WM Murder 5-18-62 Duval

LEE, Wilbert CM Murder 3-15-72 Jackson

McCLENDON, Eddie Thomas CM Rape 12-16-65 Palm Beach

NEWMAN, Richard Carter CM Rape 12-16-65 Palm Beach

PARAMORE Emmett J. CM Murder 3-01-68 Dade

PERKINS, Cecil CM Rape 1-31-68 Gadsden

PITTS, Freddie Lee CM Murder 3-15-72 Jackson

PLEAS, Wallace CM Murder 3-09-65 Leon

PORTEE, Larry CM Rape 10-10-69 Dade

PORTER, Willie CM Murder 5-18-62 Martin

James Joseph CM Murder

RILEY, John WM Murder 4-29-70

RIVERS, Willie CM Murder 2-13-68

ROBERTS, John Henry CM Murder 7-24-61

PASCHAL, Albert CM Murder 1-2-70

SCHNEBLE, Donald Felix WM Murder 12-31-65 Walton

SCHNEIDER, Raymond A. WM Murder 3-16-62 Palm Beach

SIMMONS, Joseph Nathaniel CM Rape 5-08-72 Pinellas

SIMON, Harold CM Murder 10-27-60 Duval

THOMAS, Calvin W. CM Murder 10-27-60

THOMAS, Ellis, Jr. CM Rape 1-21-63 Highlands

THOMAS, John D. CM Murder 5-16-67 Leon

THOMPSON, Albert Bone CM Rape 4-14-69 Polk

VAN EATON, Richard CM Murder 2-16-67 Pinellas

WASLEY, Richard Lee WM Murder 6-11-69 Pinellas

WHITNEY, Dennis M. WM Murder 6-11-60 Dade

WILLIAMS, Edward CM Murder 2-14-68 Martin

WILLIAMS, John G. WM Rape 10-30-69

WILSON, Fulton Lewis T. CM Murder 9-11-67 Alachua

WILSON, Willie Pinkney CM Murder 9-11-67 Alachua

YOUNG, Willie CM Murder 10-27-60

4

. The Petitioner asserts that the Attorney General, the several circuit judges, State attorneys, public defenders have all shown great concern and have worked hard and cooperatively to achieve these re-sentenc-ings in a speedy manner, thereby avoiding unnecessary litigation as to the validity of C. 72-118.

> Unfortunately, the logistics of moving this number of convicted men from their central location on Death Row, scheduling hearings, locating counsel, etc., have stymied the best of motives and efforts of the judges and law enforcement officers and prison officials of this state. As of this date, an unidentifiable number of men have, in fact, been re-sentenced; but an unknown number of men have not yet left prison, and there is no information as yet available as to the fate of the balance of persons.

> Moreover, thirteen persons convicted of rape, whose death sentences were vacated by the Supreme Court of Florida in *Anderson, supra,*have not even as yet been moved from prison to the respective circuit courts for re-sentencing. Our experience indicates grave doubts that they can be re-sentenced before October 1, 1972, since they will be adding to the problems of the courts and law enforcement officers who have not as yet re-sentenced all of the fifty-seven men whose sentences were vacated in *Adderly.*

> To allow this burdensome situation to fester into great constitutional litigation when all concerned have worked hard to avoid such a confrontation seems pointless. Moreover, since the Supreme Court of Florida has already acted with dispatch on behalf of a number of these persons, it would be a denial of equal protection of the laws and due process of law to deny similar relief to all persons whose death sentences have been vacated, but who have not yet been re-sentenced to a term of years or life imprisonment, as the case may be.

> He asserts further a different reason for his own inability to be re-sentenced— namely his post-sentence adjudication of insanity.

DEKLE, Justice

(dissenting) :

I respectfully dissent.

The orderly processes of resentencing should not be interdicted by precipitous action of this Court. The matter should be left to proceed in due course. This opinion seems to lend itself to an apparent effort to nullify in advance the Legislature’s action by Ch. 72-118 to restrict such resentencing.

The matter of sentencing (other than that which is simply automatic, in effect, as in *Anderson, supra)*is generally for a trial court, which should be left unfettered in the exercise of its function.