459 U.S. 1128 (1983)

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U.S. Supreme Court

HARVARD v. FLORIDA , 459 U.S. 1128 (1983)

459 U.S. 1128

William Lanay HARVARD, petitioner,
No. 82-5444

Supreme Court of the United States

January 10, 1983

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

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

The issue presented by this case is whether a violation of Gardner v. Florida, 430 U.S. 349 (1977), can be remedied by a remand to the original sentencing judge for a limited hearing in which the burden is placed upon the defendant to rebut or explain the information which had not been disclosed to him at the initial sentencing proceeding.


In 1974 petitioner was convicted after a jury trial of the first- degree murder of his ex-wife. In a separate sentencing proceeding a majority of the jury voted to recommend a death sentence. Under the Florida capital sentencing statute the jury's verdict in the sentencing proceeding is only advisory; the actual sentence is determined by the judge. See Fla.Stat.Ann. 921.141 (Supp.1982). In this case the judge found that

Page 459 U.S. 1128 , 1129

two statutory aggravating circumstances were applicable. He determined that the defendant had previously been convicted of a felony involving the use of violence to the person, and that the murder was especially heinous, atrocious, or cruel. The judge also found that none of the statutorily enumerated mitigating circumstances were applicable. He concluded that a death sentence should be imposed.

On appeal, the Florida Supreme Court affirmed petitioner's conviction and sentence in a brief per curiam opinion, with two judges dissenting from the affirmance of the death sentence. 375 So.2d 833 (1977), cert. denied, 441 U.S. 956 (1979). Petitioner sought rehearing in light of Gardner v. Florida, 430 U.S. 349 (1977), suggesting that the trial judge, in making his sentencing decision, may have "considered matters not provided to the jury or defense counsel." The Florida Supreme Court issued an order directing the trial judge to indicate whether he had in fact relied on undisclosed information. In response the judge stated that he had examined a confidential portion of a presentence report as well as information furnished by the United States Marine Corps concerning the defendant's military record. After receiving this response, the Florida Supreme Court vacated petitioner's death sentence and remanded to the trial judge for resentencing following a hearing concerning the previously undisclosed information. 375 So.2d, at 835.

On remand the trial judge denied petitioner's motion to substitute another judge. A hearing was held in the trial court on February 9, 1979. The scope of the hearing was narrowly limited. The judge provided petitioner with the previously undisclosed material and invited him to correct or rebut any misstatements. The presentence report discussed a prior assault committed by petitioner against his first wife and her sister. Since one of the aggravating circumstances that the judge had found at the initial sentencing proceeding was that petitioner had previously been convicted of a felony involving violence, petitioner's counsel attempted to show [459 U.S. 1128 , 1130]

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