Everett v. State11/24/2004
imously recommended death, and the trial court found three aggravating factors: (1) that Everett previously had been convicted of a felony and at the time of the murder was under a sentence of imprisonment; (2) that Everett committed the murder while engaged in the commission of a sexual battery or a burglary; and (3) that the murder was especially heinous, atrocious, or cruel. The latter factor is considered one of the most serious statutory aggravators. See Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999) (stating that the heinous, atrocious, or cruel, and the cold, calculated, and premeditated factors "are two of the most serious aggravators set out in the statutory sentencing scheme"). The court did find several statutory mitigating factors, including appellant's age, that appellant was under the influence of "some type of substance," his lack of a significant history of prior criminal activity, and his family background and drug use. The court also found non-statutory mitigation: appellant's remorse, his good conduct in custody, the alternative punishment of life imprisonment, and appellant's confession. The court ascribed little or very little weight, however, to the mitigating circumstances it found. We find that the sentence is proportional in relation to other death sentences that this Court has upheld. See, e.g., Johnston v. State, 841 So. 2d 349, 361 (Fla. 2002) (finding death sentence proportional where four aggravators were found--(1) previous violent felony convictions; (2) murder committed during commission of sexual battery and kidnapping; (3) murder committed for pecuniary gain; and (4) murder was especially heinous, atrocious, or cruel--and moderate weight was given one statutory mitigator and slight weight ascribed to non-statutory mitigation); Mansfield v. State, 758 So. 2d 636, 642, 647 (Fla. 2000) (holding death sentence proportional where two aggravating circumstances were found--murder was especially heinous, atrocious, or cruel and murder was committed in course of sexual battery or attempted sexual battery--and no statutory mitigators were found and five non-statutory mitigators were accorded some or very little weight); Geralds v. State, 674 So. 2d 96, 104 (Fla. 1996) (upholding death sentence where two aggravators were found--murder was especially heinous, atrocious, or cruel and committed in course of robbery or burglary--and little weight was ascribed to statutory mitigator and very little weight accorded three non-statutory mitigators). In light of the substantial aggravating circumstances and the lack of substantial mitigation, the sentence in this case is proportional.
V. CONCLUSION
Based on the foregoing, we affirm Everett's first-degree murder conviction and the sentence of death.
It is so ordered.
PARIENTE, C.J., and WELLS, QUINCE, CANTERO, and BELL, JJ., concur.
PARIENTE, C.J., concurs specially with an opinion.
ANSTEAD and LEWIS, JJ., concur as to the conviction and concur in result only as to the sentence.
PARIENTE, C.J., specially concurring.
I concur in the affirmance of the murder conviction and death penalty, including the rejection of relief under Ring v. Arizona, 536 U.S. 584 (2002), based on the unanimous death recommendation and the "murder in the course of a felony" aggravator relying on contemporaneous convictions. However, I disagree with the majority's additional reliance on the "sentence of imprisonment" aggravator as a factor that under Ring may be found by the judge alone. See Allen v. State, 854 So. 2d 1255, 1262 (Fla. 2003) (Pariente, J., specially concurring) (concluding that the "sentence of imprisonment" aggravator does not fall within the "prior convictio
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