436 U.S. 935 (1978)

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U.S. Supreme Court

ALFORD v. FLORIDA , 436 U.S. 935 (1978)

436 U.S. 935

Learie Leo ALFORD
State of FLORIDA
No. 77-1490

Supreme Court of the United States

May 30, 1978

On petition for writ of certiorari to the Supreme Court of Florida.

The petition for a writ of certiorari is denied.

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),

Page 436 U.S. 935 , 936

and this Court denied certiorari. 428 U.S. 912 (1976).1 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. [Footnote 2]

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 [436 U.S. 935 , 937]

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