Sup. Ct. Fla. Reported below: 355 So. 2d 108.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
The issue presented is whether a sentence of death may constitutionally be imposed by a trial judge who has been made "aware" of, but states that he has not "considered," certain information in a presentence report not revealed to the defendant.
Petitioner was convicted by a jury of first-degree murder and rape in 1973. The trial judge, following the jury's recommendation, sentenced petitioner to death. The Florida Supreme Court affirmed the judgment, 307 So. 2d 433 (1975),
and this Court denied certiorari. 428 U.S. 912 (1976).*fn1 After our decision in Gardner v. Florida, 430 U.S. 349 (1977), the Florida Supreme Court directed the trial judge to file a response "stating whether he imposed the death sentence... on the basis of consideration of any information not known to appellant," and provided that petitioner would have an opportunity to move to vacate the sentence thereafter. The trial judge filed a response, stating that he had not considered any information not known to petitioner in imposing the death penalty.*fn2
Petitioner then filed a motion to vacate the death sentence. He alleged that the "confidential evaluation" portion of the presentence report (which defense counsel had obtained after sentencing through clemency proceedings) affirmatively contradicted the trial judge's response, indicating that prior to sentencing the probation officer had given the judge certain information about petitioner which had not been disclosed to
him. In a 4-3 decision, the Florida Supreme Court denied petitioner's motion and upheld the death sentence. 355 So. 2d 108 (1978).
The majority agreed with the State that there is a difference between a trial judge's being "aware" of and "considering" facts. It purported to find support in MR. JUSTICE STEVENS' statement in Gardner, supra, at 359-360, written on behalf of himself and two other Members of the Court,*fn3
that "[in] those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material." Without further analysis,*fn4 the majority concluded that "the trial judge complied ...