 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Merck v. State7/13/2000
State, 417 So. 2d 631, 636 (Fla. 1982); Bolender v. State, 422 So. 2d 833, 837 (Fla. 1982); Peek v. State, 395 So. 2d 492, 499 (Fla. 1980). Thereafter, the Legislature amended section 921.141(5)(a) to add "or on probation," ch. 96-290, § 5, Laws of Fla., and further revised subsection (5)(a) again to specify "felony probation" and previous felony conviction. Ch. 6-302, § 1, Laws of Fla. Pursuant to these amendments, probationary status did not become a statutory aggravator until May 30, 1996.
In this case, the trial court instructed the jury that in deliberating its sentencing recommendation it could consider as an aggravating circumstance the fact that Merck was on felony probation. In her sentencing order, the judge found felony probation as one of three aggravating circumstances. Merck contends that the Legislature's amendment of section 921.141(5)(a) subsequent to the instant crime to add probation to the list of statutory aggravators was a substantive change in the law, not a mere refinement of the law as this Court found the "community control" aggravating circumstance to be in Trotter v. State, 690 So. 2d 1234 (Fla. 1996). In Trotter, this Court held that the trial court's use of the fact that the murder was committed while the defendant was on community control did not violate the defendant's ex post facto rights, even though the crime and sentencing took place before the sentencing provision was amended to add the "community control" aggravator. Id. at 1237. However, during the time that this case has been under review, this Court has found ex post facto violations in two applications of the felony probation aggravator. See Lukehart v. State, 25 Fla. L. Weekly S489 (Fla. June 22, 2000); Zack v. State, 753 So. 2d 9 (Fla. 2000). On the basis of the present record, we cannot find the error harmless beyond a reasonable doubt.
In view of our finding of error in the trial court's sentencing order and our striking of the felony probation aggravator, we find that this case must be remanded for a resentencing. Accordingly, we vacate the sentence of death and order a complete new penalty-phase proceeding before a jury.
It is so ordered.
WELLS, C.J., and HARDING, PARIENTE, LEWIS and QUINCE, JJ., concur.
SHAW and ANSTEAD, JJ., concur in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
Page 1 2 3 4 Florida DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|