Opinion
No. 75-893.
February 23, 1977.
Appeal from the Circuit Court, Sarasota County, Roy E. Dean, J.
Jack O. Johnson, Public Defender, Steven H. Denman and Robert H. Grizzard, II, Asst. Public Defenders, and Charles L. Carlton, Legal Intern, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of first degree murder for the fatal shooting of her husband, Richard Quick. She was sentenced to life imprisonment without eligibility for parole for 25 years as mandated by Section 775.082, Florida Statutes.
Appellant challenges several rulings of the trial court. In addition, she contends Section 775.082, which requires that she serve no less than 25 years before becoming eligible for parole is unconstitutional.
After hearing oral argument and carefully examining the record and briefs, we have concluded that none of the points cited by appellant rises to the magnitude of reversible error. Appellant received a fair trial. The evidence is sufficient to sustain her conviction, although the testimony reveals many factors which facially indicate some mitigating circumstances of her crime.
In our judgment there may be a question of the wisdom of a statute which provides that every person convicted of a capital felony and not executed shall serve no less than 25 years in prison before becoming eligible for parole. This question, however, is for legislative rather than judicial involvement.
Accordingly, the judgment and sentence is affirmed.
HOBSON, Acting C.J., concurs.
McNULTY, J., dissents with opinion.
I would agree that no reversible error appears in the record of the trial and that the judgment of guilt herein should stand. But as noted, appellant urges that the mandatory minimum twenty-five year imprisonment without eligibility for parole provision of our first degree murder statute is unconstitutional as violative of the Eighth Amendment to the U.S. Constitution which proscribes cruel and unusual punishment. I think she's right.
Sec. 782.04, Fla. Stat. (1975) as read in pari materia with Sec. 775.082(1), Fla. Stat. (1975).
This is a different constitutional argument than that which was rejected by our Supreme Court in Owens v. State, 316 So.2d 537 (Fla. 1975) and in Dorminey v. State, 314 So.2d 134 (Fla. 1975). In both those cases the assault on the statute's validity was predicated on the contention that the restriction on the parole powers of the executive branch of government was a void usurpation by the legislature of an executive function contrary to the doctrine of separation of powers.
The facts of this case, while technically sufficient to support a verdict of guilt of premeditated murder, prima facie cry out for the further invocation of mercy and mitigation of punishment apart from sparing appellant from death. Under the statute this is impossible.
At some point in the sphere of crime and punishment the currently evolved, prevalent sensitivities of society to the severity of a prescribed punishment must be cranked in. A mandatory minimum six months to a given number of years sentence is unquestionably, under current social sensitivities, constitutionally tolerable as is, most likely, a mandatory minimum of two, three or even five year sentence without hope of parole. But in my view, a twenty-five year sentence, without hope of parole for such period and without discretion to consider and give effect to strong mitigating factors as they relate to current standards of decency, retribution and mercy, transcends constitutional tolerance under the same rationale upon which the United States Supreme Court relied in voiding a mandatory, nondiscretionary death sentence in Woodson v. North Carolina.
See the plurality opinion of the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
Id.
I would, accordingly, affirm the judgment of guilt but would strike as void that portion of the sentence imposing a minimum twenty-five year imprisonment without eligibility for parole.