Craig v. Florida Petition for Writ of Certiorari to the Supreme Court of Florida

    I n  t h e

m tu ' (Emtrt n! thp United States
O ctobeb T erm , 1965 

No..............

W illiam  B e n ja m in  C raig,

— v . ----
Petitioner,

F lorida.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

J ack  G reenberg 
J am es M . N abrit , III 
L eroy D . C lark  
M ic h ael  M eltsneii 
C harles S teph en  R alston  

10 Columbus Circle 
New York, New York 10019

T obias S im on  
H. W. D ixon  
M aurice R osen

223 Southeast First Street 
Miami 32, Florida

Attorneys for Petitioner

J ay H . T opkis
575 Madison Avenue 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania

Of Counsel



I N D E X

Opinion B elow ....................................................................... 1

Jurisdiction .................................................... -.....................  1

Questions Presented ....... ...................................................  2

Constitutional and Statutory Provisions Involved .....  2

Statement ................................................-.............................  3

How the Federal Questions Were Raised and De­
cided Below .............      9

Reasons for Granting the Writ ....................................... 10

I. Certiorari Should Be Granted to Determine 
Whether the Application to Petitioner of 
Florida’s Death Penalty for Rape Is Uncon­
stitutional Because an Unrebutted Prima 
Facie Showing Has Been Made of Its Racial 
Application in Violation of the Equal Protec­
tion Clause of the Fourteenth Amendment .... 10

II. The Court Should Grant Certiorari to Con­
sider Petitioner’s Contention That His Sen­
tence Is Unconstitutional Under the Eighth 
and Fourteenth Amendments .................... ......  19

III. The Court Should Grant Certiorari to Decide 
Whether Florida’s Single Verdict Procedure 
Allowing the Jury Which Determines Guilt 
Simultaneously to Fix Capital Punishment 
for Rape Violates the Due Process Clause 
of the Fourteenth Amendment .......................  22

PAGE

Conclusion 27



11

T able of C ases

page

Aaron v. Holman, U.S. Dist. Ct., M.D. Ala., C.A.
No. 2170-N ............... .............. -.... -.......... - ................ ..  13

Alabama v. Billingsley, Cir. Ct. Etowah County,
No. 1159 .................................................. -........................  13

Bell v. State, 93 So.2.1 575 (1957) .............. ........ ..... -  7, 8
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 ..........- 18
Bush v. Kentucky, 107 U.S. 110 .......... ........................  14

Cline v. Frink Dairy Co., 274 U.S. 445 ...................... - 18
Formally v. General Construction Co., 269 U.S. 385 .... 18
Cox v. Louisiana, 379 U.S. 536 ........... .......................... - 18
Craig v. State, 168 So.2d 747 (Fla. 1964)  ................ 3
Craig v. State, 179 So.2d 202 (Fla. 1965)  ........... ..1,5,10

Davis v. State, 123 So.2d 703 (1960) .................. 7,23,24
Dombrowski v. Pfister, 380 U.S. 479 — ........... ............. - 18

Fowler v. Rhode Island, 345 U.S. 67 (1953) .......... . 14
Frady v. United States, 348 F.2d 84 (D.C. Cir. 1965) .... 26 
Freedman v. Maryland, 380 U.S. 51 ............................... 18

G-iacco v. Pennsylvania, ------  U.S. ------ , 34 U.S.L.W.
4099 .................. ...... ....... ........ ....... -.... -....  - .................. 20

Gomillion v. Lightfoot, 364 U.S. 339 .................... .........  15

Hamilton v. Alabama, 376 U.S. 650 ...... — ................ -  14
Harris v. State, 162 So.2d 262 (1964) .................. ..  7
Hernandez v. Texas, 347 U.S. 475 ........ ................ — 14,15
Herndon v. Lowry, 301 U.S. 242 .............................—  18

Jackson v. Denno, 378 U.S. 368 ....... ...... ....... ............ 24, 26



Ill

Lombard v. Louisiana, 373 U.S. 267 ..... ...... ........ .........  17
Louisiana v. United States, 380 U.S. 145 .......................  18
Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist. Ct., 

Parish of West Feliciana ..............................................  13

McLaughlin v. Florida, 379 U.S. 184 ................... ... 15,17
Malloy v. Hogan, 378 U.S. 1 _______ _____ ___ ____ _ 22
Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965)

cert, denied,------ U.S. ------- , 15 L.ed.2d 353 ........... 13,19
Mitchell v. Stephens, 232 F. Supp. 497 (E.D. Ark.

1964) ....... ..... ................. ............................. .................... . 13
Moorer v. MacDougall, U.S. Dist. Ct., E.D.S.C.,

No. AC-1583 ........ ..............................................................  13

N.A.A.C.P. v. Button, 371 U.S. 415 ...............................  18
Nash v. United States, 54 F.2d 1006 (2d Cir. 1932),

cert, denied, 285 U.S. 556 ........................................... 23
Neal v. Delaware, 103 U.S. 370 (1881) .................. ........  14
Niemotko v. Maryland, 340 U.S. 268 ............................... 14
Norris v. Alabama, 294 U.S. 587 ....................................... 15

Oyama v. California, 332 U.S. 633 ...................................  15

Peterson v. City of Greenville, 373 U.S. 244 ............... 17

Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964),
cert, denied, 380 U.S. 925 ......... ............. ...................  19

Raulerson v. State, 102 So.2d 281 (1958) ................... . 7
Robinson v. Florida, 378 U.S. 153 ................ ..............  17
Rudolph v. Alabama, 375 U.S. 889 ...............................19, 21

Shepherd v. Florida, 341 U.S. 50 ....................... ..........  8
Sims v. Georgia, 144 S.E.2d 103 ........ ......... ............. . 13

PAGE



IV

Skinner v. Oklahoma, 316 U.S. 535 ..............................  21
Smith v. Cahoon, 283 U.S. 553 ____________ _________ 18
Swain v. Alabama, Ala. Sup. Ct., 7 Div. No. 699, 

cert, denied, ------  U.S. ------ , 15 L.ed.2d 353 ...........  13

Tniluck v. State, 108 So.2d 748 (1959) ....................... 7

United States v. Curry, -----  F.2d ------  (2nd Cir.
No. 29000, Dec. 22, 1965) .... ..... ........ .............. ........... . 26

United States ex rel. Rucker v. Myers, 311 F.2d 311
(3rd Cir. 1962), cert, denied, 374 U.S. 844 ...............  26

United States ex rel. Scoleri v. Bonmiller, 310 F.2d 720 
(3rd Cir. 1962), cert, denied, 374 U.S. 828 ................... 26

Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) .......  25
Williams v. New York, 337 U.S. 241 ........................... 23, 25
Williams v. Oklahoma, 358 U.S. 576 ...... ...... .............  23
Williams v. State, 110 So.2d 654 (1959) ......................  23
Winters v. New York, 333 U.S. 507 ......................... . 18

Yick Wo v. Hopkins, 118 U.S. 356 ..............................  14

F ederal S tatutes

Civil Rights Act of April 9, 1866, ch. 31, §1,
14 Slat, 27 ................ ............ .......................... ........... . 13

Enforcement Act of May 31, 1870, ch. 114, §§16, 18,
16 Stat. 140 ................. ........... ....... ............... .............. . 13

Federal Rules of Criminal Procedure, Rule 32(a) .......  26

Rev. Stat. §1977 (1875) ............ ......... ................................  13

10 U.S.C. §920 (1964) ........................................................ 11

18 U.S.C. §2031 (1964) ............................ .........................  11

PAGE



18 U.S.C. §2113(e) ............................................................25,26

28 U.S.C. §1257(3) ........................................................   1

42 U.S.C. §1981 (1964) .......      13

S tate S tatutes

Ala, Code §§14-395, 14-397, 14-398 (Recomp. Vol.
1958) .......................................................................... .......  10

Ark. Stat. Ann. §§41-3403, 41-3405, 41-3411, 43-2153 
(1964 Repl. Vols.) ....... .... ............................ ................ . 10

D.C. Code Ann. §22-2801 (1961) ...................................... 11

Fla. Const., Art. 16, §24 ..................................................  17
Fla. Stat. Ann., Chapter 924, Florida Criminal Proce­

dure Rule No. 1 ............................... ..............................  9
Fla. Stat. Ann. §§741.11-741.16 ......................................  17
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ....... 3, 5, 9,10,

19, 22
Fla, Stat. Ann. §798.04 ......................................................  17
Fla. Stat. Ann. §798.05 .. ................................................ 17
Fla. Stat. Ann. §913.11 ................. .....................................  24
Fla. Stat. Ann. §921.13 ......................................................  23

Ga, Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.) .... 10

Ky. Rev. Stat. Ann. §435.090 (1963) ...... ................. ......  10

La, Rev. Stat. Ann. §14:42 (1950) ............. .....................  10

Md. Ann. Code, art. 27, §12, §§461, 462 (1957) ........ . 10
Miss. Code Ann. §2358 (Recomp. Vol. 1956) ............. . 10
Vernon’s Mo. Stat. Ann. §559.260 (1953) ..................  10

Nev. Rev. Stat. §200.360, §200.400 (1963) ................ ..... . 10
N.C. Gen. Stat. §14-21 (Recomp. Vol. 1953)  ..........  10

Okla. Stat. Ann., tit, 21, §§1111, 1114, 1115 (1958) ____ 10

PAGE



VI

S.C. Code Ann. §§16-72, 16-80 (1962) .......... .......... .....  10

Tenn. Code Ann. §§39-3703, 39-3704, 39-3705 (1955) 10
Tex. Pen. Code Ann. arts. 1183, 1189 (1961) ...... ........  11

Va. Code Ann. §18.1-16, §18.1-44 (Repl. Vol. 1960) .......  11

O th e r  A uthorities

A.L.I., Model Penal Code, Tent. Draft No. 9 (May 8, 
1959), Comment to §201.6.......... .......... ........ ................  23

tenBroek, Thirteenth Amendment to the Constitution 
of the United States, 39 Ca l if . L. R ev . 171 (1951) .... 13

Bullock, Significance of the Racial Factor in the 
Length of Prison Sentences, 52 J. Ceim. L., Cbim. &
P ol. S ci. 411 (1961) ........... ....... .............. ....................  17

Cong. Globe, 39th Cong. 1st. Sess. 475, 1758, 1759 
(1/29/1866, 4/4/1866) .... ....... ............................. ........  14

Fairman, Does the Fourteenth Amendment Incor­
porate the Bill of Rights, 2 S t a n . L. R ev . 5 (1949) .... 13

Hartung, Trends in the Use of Capital Punishment,
284 A nn als  8 (1952) ................... .................. ............ . 17

Letter of Deputy Attorney General Ramsey Clark to 
the Honorable John L. McMillan, Chairman, District 
of Columbia Committee, House of Representatives,
July 23, 1965, New York Times, July 24, 1965, p. 1,
col. 5 .... ........................ ...... ..... ...... ............. ...................  21

Lewis, The Sit-In Cases: Great Expectations [1963] 
S uprem e  C ourt R eview  101 ................ .................... . 18

Note, 109 U.Pa.L.Rev. 67 (1960) ..................................... 18

PAGE



V l l

Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071 (1964) ...................................20, 21

United States Department of Justice, Bureau of 
Prisons, National Prisoner Statistics, No. 32; Ex­
ecutions, 1962  (April 1963) ......... ......... .................. . 11

Weihofen, The Urge to Punish (1956) ........ ..............  17

Wolfgang, Kelly &Nolde, Comparison of the Executed 
and the Commuted among Admissions to Death Row,
53 J. Crim. L., Cbim. & P ol. Sci. 301 (1962) ........ . 17

PAGE



In t h e

(Burnt nf %  Irnfrft BM?b
O ctober T erm , 1965 

No..............

W illiam  B e n ja m in  C raig ,
Petitioner,

—v.—

F lorida.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Florida entered in 
the above-entitled case on October 13, 1965.

Opinion Below

The opinion of the Supreme Court of Florida and the 
dissenting opinion of Judge Ervin are reported at 179 
So.2d 202. They are set forth in the Appendix, pp. la-16a.

Jurisdiction

The judgment of the Supreme Court of Florida was 
entered October 13, 1965. The time for filing this petition 
for writ of certiorari was extended by Mr. Justice Fortas 
to and including February 11, 1965. The jurisdiction of 
this Court is invoked pursuant to 28 U.S.C. §1257(3), 
petitioner having asserted below and asserting here dep­
rivation of rights secured by the Constitution of the 
United States.



2

Questions Presented

1. Petitioner, a Negro, has been sentenced to death for 
the rape of a white woman. He has shown that in the 
past twenty-five years only one white man has been exe­
cuted for rape, and that for the rape of a white child under 
aggravated circumstances. On the other hand, twenty-nine 
Negroes have been executed, all for the rape of white 
adult women. No white or Negro male has ever been 
executed for the rape of a Negro, child or adult. In con­
trast, the number of Negroes convicted for rape is only 
slightly higher than the number of whites. Under these 
circumstances, has petitioner made sufficient showing of a 
denial of the equal protection of the laws in violation of 
the Fourteenth Amendment to require the State to come 
forward with some evidence that the disproportion of 
Negroes executed for rape is not accounted for by race?

2. Does the imposition of the death penalty for the 
offense of rape by the State of Florida on the basis of 
the jury’s unfettered, unreviewable discretion constitute 
cruel and unusual punishment in violation of the Eighth 
and Fourteenth Amendments?

3. Does the assigning to the jury in a capital rape case 
under Florida law the function of deciding simultaneously 
both the guilt of the defendant and the penalty to be in­
flicted constitute a denial of due process of law in viola­
tion of the Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

This case involves the Eighth Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.



3

This case also involves the following statute of the 
State of Florida:

Section 794.01—Rape and forcible carnal knowledge; 
penalty.

Whoever ravishes and carnally knows a female of 
the age of ten years or more, by force and against 
her will, or unlawfully or carnally knows and abuses 
a female child under the age of ten years, shall be 
punished by death, unless a majority of the jury in 
their verdict recommend mercy, in which event pun­
ishment shall be by imprisonment in the state prison 
for life, or for any term of years within the discretion 
of the judge. It shall not be necessary to prove the 
actual emission of seed, but the crime shall be deemed 
complete upon proof of penetration only.

Statement

Petitioner William Benjamin Craig was indicted on June 
6, 1963, by the Grand Jury of Leon County, Florida for 
the crime of rape upon a female person over the age of 
ten years. Petitioner Craig is a Negro and the victim is 
an adult white female. He was tried before a jury in the 
Circuit Court of the Second Judicial Circuit in and for 
Leon County. Under provisions of Florida law, the same 
jury considered simultaneously the questions of the guilt 
of petitioner and the sentence to be imposed. The jury 
returned a verdict of guilty without a recommendation 
of mercy on June 20, 1963 (R., p. 6).

On June 27, 1963, a judgment and sentence of death was 
entered by the Court. An appeal was taken from the ver­
dict and sentence, they were affirmed October 21, 1964, by 
the Supreme Court of Florida (Craig v. State, 168 So.2d



4

747; R., pp. 32-34), and an order denying a petition for 
rehearing was entered December 7, 1964.

On February 10, 1965 petitioner filed a motion for re­
duction of sentence from death to life imprisonment or 
less in the Circuit Court of Leon County. The bases for 
the motion were that:

(1) Imposition of the death penalty on petitioner denied 
him the equal protection of the laws guaranteed by the 
Fourteenth Amendment of the Constitution of the United 
States because the death penalty had been used as an 
instrument of racial discrimination against Negroes con­
victed of the rape of white women.

(2) The procedure under Florida law which allows the 
jury which determines the guilt of a person accused of 
rape also to determine simultaneously the punishment to 
be imposed violated the due process clause of the Four­
teenth Amendment.

(3) The imposition of the death sentence for rape sub­
jected the petitioner to cruel and unusual punishment and 
violated due process of law in violation of the Eighth and 
Fourteenth Amendments to the Constitution. (See Record,
pp. 8-10.)

In support of this motion the petitioner introduced 
statistical data regarding the imposition of the death 
penalty for rape. The State did not object to or contra­
dict the data and it was accepted as accurate by the trial 
court in deciding the motion for reduction of sentence 
(R., p. 26).1 The motion for reduction of sentence was

1 The Court said:
The Defendant offered to prove up the statistics therein contained 
with the respective files of each of the 285 convictions from the 
several Florida counties involved should this Court feel such proof



5

denied in the trial court on February 17, 1965 (R., p. 26). 
An appeal was taken to the Supreme Court of Florida, 
and on October 13, 1965, the decision of the trial court 
was affirmed by the Supreme Court of Florida (179 So.2d 
202). (Appendix, pp. la-3a.) Judge Ervin dissented on the 
ground that by permitting the same jury to decide both 
the guilt and punishment of the petitioner the State had 
denied due process of law in violation of the Fourteenth 
Amendment to the United States Constitution (179 So.2d 
at 204-210). (Appendix, pp. 3a-16a.)

Capital Punishment for  Rape

In his motion for reduction of sentence, petitioner main­
tained that Section 794.01 of the Florida statutes, which 
imposes the death sentence for the crime of rape, was 
unconstitutional as applied to him. In support of this 
contention, statistics were introduced which revealed the 
pattern of discrimination against Negroes in the imposi­
tion of the death sentence.2 The statistics, which were ac-

desirable or necessary in addition to the verification o f the memo­
randum brief by counsel. This Court does not feel that such proof 
is required, desirable or necessary, and for the purposes of this 
motion accepts the statistics contained in the memorandum as sub­
stantially correct. The State of Florida voiced no objection to this 
procedure (R., p. 26).

2 This footnote sets out in tabular form the statistics discussed in the 
text infra:

TABLE A
R ape Convictions 1940-1964

T otal : D epen dant V ictim

(Negro) (White) (Indian) (Negro) (White)

285a 152 68b 84c
132 7 125a

1 0 1

(footnote 2 continued on next page)



6

cepted as accurate by the trial court, may be summarized 
as follows:

During the 25-year period between January 1, 1940 to 
December 31, 1964, there have been a total of 285 convic­
tions for the crime of rape for which information con­
cerning the race of the victims and the defendants is avail­
able.3 (R., p. 18) One hundred and thirty-two white men, 
or 46% of the total, have been convicted for the rape of 
125 white and 7 Negro women (Ibid.). One hundred and 
fifty-two Negro men, or 54% of the total, have been con­
victed for the rape of 84 white and 68 Negro women (Ibid.). 
The remaining conviction was that of an Indian who raped

2 ( continued)  TABLE B
D isposition  of 54 R ape D efen dants  Sentenced  to D e a th , 

b y  R ace of D efen dant  and  R ace of V ictim —1940-1964

Defendant Victim
Negro White Negro White

30 Electrocutions 29 0 29
1 1®

5 Commutations 2 0 2
3 0 3e

12 Awaiting Execution 12 2e 10

1 Killed 1 0 1

6 Death Judgment
Reversed 4 1 3

2 0 2
Totals 54 48 6 3 51

a— Excluding 13 eases from Brevard and Hillsborough Counties because 
race information is unavailable, 

b— Includes 26 children under 14. 
c—Includes 3 children under 14. 
d—Includes 34 children under 14. 
e— Children under 14.

(R., pp. 21-22)
3 There were 13 other cases in two counties for which no information 

as to race was available (R., p. 18).



7

a white woman. Fifty-four men have been sentenced to 
death for rape; 48 Negroes and six whites (R., p. 14).

There have been 125 cases of white females being raped 
by white men; 34 of the victims were children under 14 
(R., p. 19). Six white men have been sentenced to death 
for these offenses but only one has been electrocuted (R., 
p. 19). The single white man actually electrocuted, Robert 
Wesley Davis, was convicted of raping an eleven-year old 
white child under extraordinarily aggravated circumstances 
(see, Davis v. State, 123 So.2d 703 (Fla., I960)).

Of the other five whites originally condemned to die, 
three raped white children ranging in age from 9 to 13, 
and in all three cases the State Pardon Board commuted 
their sentence to life imprisonment (R., p. 15). The final 
two were co-defendants convicted of raping a single white 
adult (R., p. 15). The jury verdicts finding them guilty 
without recommendation of mercy were reversed by the 
Supreme Court of Florida which found that the judgment 
of death had been the result of prejudicial comments made 
by the trial judge. Raulerson v. State, 102 So.2d 281 (1958). 
No white man has been electrocuted for the rape of a white 
adult or even sentenced to death for the rape of a Negro 
adult or child.

The remaining 48 men who received sentences of death 
were all Negroes (R., p. 16). Of these, 29 have already 
been electrocuted, and 12 others are presently awaiting 
execution on death row at the Florida State Prison (R., 
pp. 16-17). The death sentences of four other Negroes wrere 
reversed by the Supreme Court of Florida (R., p. 17) 
(.Harris v. State, 162 So.2d 262 (1964); Bell v. State, 93 
So.2d 575 (1957); Truluck v. State, 108 So.2d 748 (1959)); 
they thereafter received lesser sentences. A  sheriff killed 
one Negro en route to a new trial after his conviction was



8

reversed by Shepherd v. Florida, 341 U.S. 50. The Pardon 
Board commuted the death sentences of the remaining two 
Negroes who wrnre given the death penalty for rape (R., 
p. 17).

Of 84 convictions of Negro men for the rape of white 
women, 45 resulted in sentences of death (53%) (R., p. 19). 
Only one of these cases involved the rape of a white child. 
Thus, 44 Negro defendants have been sentenced to death 
for the rape of white adult women; 29 of them have been 
executed and ten await execution (Ibid.).

On the other hand, in the 68 cases in which Negro males 
have been convicted of raping Negro women (26 cases in­
volving children under 14), only three have been sentenced 
to death. All three of these convictions were for attacks 
on children; two defendants are presently awaiting exe­
cution (Ibid.). The third conviction was reversed by the 
Supreme Court of Florida. (Bell v. State, 93 So.2d 575 
(1957).) Therefore, to date no Negro has been electrocuted 
for the rape of another Negro adult or child.

Statistics introduced with regard to the actions of the 
Florida State Board of Pardons also show a disparity in 
the treatment of white and Negro defendants. The Board 
has heard 38 appeals for clemency from convicted rapists 
out of the 54 death sentences for rape, and commuted three 
of the four white death sentences. On the other hand, it 
denied relief to 32 of the 34 Negro applicants (R., p. 20).

These results contrast sharply with treatment afforded 
those convicted of murder. Since January 1, 1924, the 
Pardon Board heard pleas from 216 convicted murderers, 
of which 129 were Negroes and 85 white, and two of un­
known race. Thirty-three, or 25.6%, of the Negroes and 
21, or 24.7%, of the whites secured commutation of sen­



9

tence (R., p. 20). In other words, for murder, no racial 
factor seems to operate in deciding clemency applications.

To summarize, between January 1, 1940 and December 
31, 1964, fifty-four men were sentenced to death in Florida 
following convictions for the crime of rape. Six of the 54 
men who received the death sentence were white, the bal­
ance, 48, were Negroes. However, only one white was 
actually executed (for the aggravated rape of a white 
child), while ,29 Negroes have been electrocuted, (all of 
whom were convicted of raping white adult women) and 
twelve others (ten of whom raped white women) are pres­
ently awaiting execution.

These statements of fact are not disputed. No inference 
other than one of racial discrimination in application of 
the death penalty has been offered.

How the Federal Questions Were Raised 
and Decided Below

After the affirmance of his conviction and sentence by 
the Supreme Court of Florida on June 27, 1963, petitioner 
filed a motion for reduction of sentence from death to a 
term of years in the Circuit Court of Leon County (R., 
pp. 8-10). The ground for the motion was that the sentence 
of death was a denial of the equal protection of the laws 
and of due process of law in violation of the Fourteenth 
Amendment to the Constitution of the United States. 
Therefore, See. 794.01, Fla. Stat. Ann., was unconstitu­
tional on its face and as applied to him. The motion was 
denied, and petitioner appealed to the Supreme Court of 
Florida. That court accepted jurisdiction, considering the 
motion as a collateral, post-conviction assault on a judg­
ment of conviction within the scope of the Florida Criminal 
Procedure Rule No. 1, Fla, Stat. Ann., Chapter 924, Ap­



10

pendix. The denial of the motion by the lower court, up­
holding the statute as valid under the federal Constitution, 
was affirmed on the merits. (179 So.2d at 204.)

Reasons for Granting the Writ.

I.

Certiorari Should Be Granted to Determine Whether 
the Application to Petitioner o f  Florida’ s Death Pen­
alty for  Rape Is Unconstitutional Because an Unre­
butted Prima Facie Showing Has Been Made o f  Its 
Racial Application in Violation o f  the Equal Protec­
tion Clause o f  the Fourteenth Amendment.

Seventeen American States retain capital punishment for 
rape. Nevada permits imposition of the penalty only if 
the offense is committed with extreme violence and great 
bodily injury to the victim;4 5 the remaining sixteen juris­
dictions—which allow their juries absolute discretion to 
punish any rape with death—are all southern or border 
states.6 The federal jurisdiction and the District of Colum­

4 Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated 
assault with intent to rape).

5 The following sections punish rape or carnal knowledge unless other­
wise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp. Yol. 1958); 
Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. V ols .); see also §41-3405
(administering potion with intent to rape); §41-3411 (forcing marriage); 
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ; Ga. Code Ann. §§26-1302, 
26-1304 (1963 Cum. Supp.) ; Ky. Rev. Stat. Ann. §435.090 (1963); La. 
Rev. Stat. Ann. §14:42 (1950) (called aggravated rape but slight force 
is sufficient to constitute offense; also includes carnal knowledge); Md. 
Ann. Code, art. 27, §§461, 462 (1957) ; see also art. 27, §12 (assault with 
intent to rape); Miss. Code Ann. §2358 (recomp. Vol. 1956); Vernon’s 
Mo. Stat. Ann. §559.260 (1953); N.C. Gen. Stat. §14-21 (Recomp. Yol. 
1953); Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958); S.C. Code 
Ann, §§16-72, 16-80 (1962) (includes assault with attempt to rape as 
well as rape and carnal knowledge); Tenn. Code Ann. §§39-3702, 39-3703,



11

bia, with its own strong southern traditions, also allow 
the death penalty for rape.* * * * 6

Between 1930 and 1962, two years before petitioner was 
sentenced to die, 446 persons were executed for rape in 
the United States. Of these, 399 were Negroes, 45 were 
whites, and 2 were Indians. All were executed in southern 
or border States or the District. The percentages—89.5% 
Negro, 10.1% white— are revealing when compared to 
similar racial percentages of persons executed during the 
same years for murder and other capital offenses. Of 
the total number of persons executed in the United States, 
1930-1962, for murder, 49.1% were Negro; 49.7% were 
white. For other capital offenses, 45,6% were Negro; 
54.4% were white. Louisiana, Mississippi, Oklahoma, Vir­
ginia, West Virginia and the District of Columbia never 
executed a white man for rape during these years. Together 
they executed 66 Negroes. Arkansas, Delaware, Florida, 
Kentucky and Missouri each executed one white man for 
rape between 1930 and 1962. Together they executed 71 
Negroes. Putting aside Texas (which executed 13 whites 
and 66 Negroes), sixteen Southern and border States and 
the District of Columbia between 1930 and 1962 executed 
30 whites and 333 Negroes for rape: a ratio of better than 
one to eleven. Clearly, unless the incidence of rape by 
Negroes is many times that of rape by whites, capital 
punishment for rape survives in the twentieth century 
principally as an instrument of racial discrimination.7

39-3704, 39-3705 (1955); Tex. Pen. Code Ann., arts. 1183, 1189 (1961);
Va. Code Ann. §18.1-44 (Repl. Vol. 1960); see also §18.1-16 (attempted
rape).

s 18 U.S.C. §2031 (1964); 10 U.S.C. §920 (1964); D.C. Code Ann.
§§22-2801 (1961).

7 The figures in this paragraph are taken from U nited  States D epart­
m e n t  of J ustice , B ureau of P rison s , Natio n al  P risoner  Statistics , 
No. 32; Executions, 1962 (April 1963). Table 1 thereof shows the follow-



12

If this be so—if the racially unequal results in these 
States derive from any cause which takes account of race

ing executions under civil authority in the United States between 1930 
and 1962:

MURDER
Total White Negro Other

Number 3298 1640 1619 39
Per Cent 100.0 49.7 49.1 1.2

RAPE
Total White Negro Other

Number 446 45 399 2
Per Cent 100.0 10.1 89.5 .04

OTHER OFFENSES
Total White Negro Other

Number 68 37 31 0
Per Cent 100.0 54.4 45.6 0.0

Table 2 thereof shows the following executions under civil authority in the
United States between 1930 and 1962, for the offense of rape, by State:

White Negro Other

Federal 2 0 0
Alabama 2 20 0
Arkansas 1 17 0
Delaware 1 3 0
District o f Columbia 0 2 0
Florida 1 35 0
Georgia 3 58 0
Kentucky 1 9 0
Louisiana 0 17 0
Maryland 6 18 0
Mississippi 0 21 0
Missouri 1 7 0
North Carolina 4 41 2
Oklahoma 0 4 0
South Carolina 5 37 0
Tennessee 5 22 0
Texas 13 66 0
Virginia 0 21 0
West Virginia 0 1 0

45 399 2



1 3

as a factor in meting out punishment—a Negro punished 
by death is denied, in the most radical sense, the equal 
protection of the laws.8 One of the cardinal purposes of 
the Fourteenth Amendment was the elimination of racially 
discriminatory criminal sentencing. The First Civil Eights 
Act of April 9, 1866, ch. 31, §1, 14 Stat. 27, declared the 
Negroes citizens of the United States and guaranteed that 
“ such citizens, of every race and color, . . . shall be subject 
to like punishment, pains, and penalties [as white citi­
zens], and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwithstanding.” 
The Fourteenth Amendment was designed to elevate the 
Civil Rights Act of 1866 to constitutional stature. See, e.g., 
tenBroek, Thirteenth Amendment to the Constitution of 
the United States, 39 Ca lif . L. E ev . 171 (1951); Fairman, 
Does the Fourteenth Amendment Incorporate the Bill of 
Rights, 2 S t a n . L. R ev . 5 (1949). The Enforcement Act 
of May 31, 1870, ch. 114, §§16, 18, 16 Stat. 140, 144, im­
plemented the Amendment by re-enacting the 1866 act and 
extending its protection to all persons. This explicit stat­
utory prohibition of racially discriminatory sentencing sur­
vives today as R ev . S tat . §1977 (1875), 42 U.S.C. §1981 
(1964). * 7

8 The contention that racially discriminatory application of the death 
penalty in rape cases denies equal protection has been raised in a number 
o f cases now pending in state and federal courts. See, e.g., Mitchell v. 
Stephens, 232 F. Supp. 497, 507 (E.D. Ark. 1964), appeal pending; 
Moorer y. MacDougall, U.S. Dist. Ct., E.D.S.C., No. AC-1583, appeal 
pending; Aaron v. Holman, U.S. Dist. Ct., M.D. Ala., C.A. No. 2170-N, 
proceedings on petition for writ of habeas corpus stayed pending ex­
haustion of state remedies July 2, 1965; Swain v. Alabama, Ala. Sup. Ct.,
7 Div. No. 699, petition for leave to file petition for writ of error
coram nobis denied June 25, 1965, cert, denied, ——  U.S. ------ , 15
L.ed.2d 353; Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), cert.
denied, ------  U.S. ------ , 15 L.ed.2d 353; Alabama v. Billingsley, Cir. Ct.
Etowah County, No. 1159, motion for new trial and motion for reduction 
o f sentence pending; Sims v. Georgia, 144 S.E.2d 103, petition for cert, 
pending, Misc. 918; Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist. 
Ct., Parish of West Feliciana, petition for habeas corpus pending.



1 4

For purposes of the prohibition, it is of course im­
material whether a State writes on the face of its statute 
books: “Rape shall be punishable by imprisonment . . 
except that rape by a Negro of a white woman, or any other 
aggravated and atrocious rape, shall be punishable by death 
by electrocution,” or whether the State’s juries read a 
facially color-blind statute to draw the same racial line. 
Discriminatory application of a statute fair upon its face 
is more difficult to prove, but no less violates the State’s 
obligation to afford all persons within its jurisdiction the 
equal protection of the laws. See, e.g., Yick Wo v. Hopkins, 
118 U.S. 356; Niemotko v. Maryland, 340 U.S. 268 (alter­
nate ground); Fowler v. Rhode Island, 345 U.S. 67; Hamil­
ton v. Alabama, 376 U.S. 650 (per curiam). And it does not 
matter that the discrimination is worked by a number of 
separate juries functioning independently of each other 
rather than by a single state official. However it may divide 
responsibility internally, the State is federally obligated to 
assure the equal application of its laws. This Court has 
long sustained claims of discriminatory jury exclusion upon 
a showing of exclusion continuing during an extended 
period of years, without inquiry whether the same jury 
commissioners served throughout the period. E.g., Neal v. 
Delaware, 103 U.S. 370; Bush v. Kentucky, 107 U.S. 110; 
Hernandez v. Texas, 347 U.S. 475. Congress, when it en­
acted the 1866 Civil Rights Act knowing that “In some com­
munities in the South a custom prevails by which different 
punishment is inflicted upon the blacks from that meted 
out to whites for the same offense,” 9 intended precisely by 
the Act, and subsequently by the Fourteenth Amendment, 
to disallow such “ custom” as it operated through the sen­
tences imposed by particular judges and juries.

3 Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) (remarks of 
Senator Trumbull, who introduced, reported and managed the bill which 
became the act.) See also, Id., at 475 (1/29/1866) and 1759 (4/4/1866).



15

The petitioner asks this court to consider whether he has 
not made a showing of racially discriminatory capital sen­
tencing under Florida’s rape statute sufficient to throw some 
burden of explanation on the state. Because of the Four­
teenth Amendment’s overriding purpose to secure racial 
equality, “ racial classifications [are] ‘constitutionally sus­
pect,’ . . . and subject to the ‘most rigid scrutiny’ .” 
McLaughlin v. Florida, 379 U.S. 184, 192. This principle 
has as its corollary that a sufficient initial showing of un­
equal treatment of the races is made whenever it appears 
that the races are substantially disproportionately repre­
sented in groups of persons differently disposed of under 
those procedures: such a showing compels the inference 
that a State is drawing the racial line unless the State 
offers some justification in non-racial factors for the dis­
proportion. See, e.g., Norris v. Alabama, 294 U.S. 587; 
Hernandez v. Texas, 347 U.S. 475; Gomillion v. Lightfoot, 
364 U.S. 339; cf. Oyama v. California, 332 U.S. 633.

Here the demonstrated disproportion is extreme. Over 
a twenty-five year period, between January 1, 1940 and 
December 31, 1964, 48 of the men sentenced to die for rape 
were Negroes and only 6 were white—a ratio of eight to 
one. The evidence also shows that this disparity cannot be 
accounted for by a greater number of Negroes being con­
victed for rape, since in the same period 152 Negroes, 132 
Whites, and 1 Indian were so convicted.

The Florida statistics take on added significance when the 
race of the rape victim is considered. In the twenty-five 
year period only one white man was actually executed and 
that was for the rape of an eleven year old white child 
under extremely aggravated circumstances. Of the five 
other whites sentenced to death (but whose sentences were 
either reversed or commuted) three had raped white chil­



16

dren ranging in age from nine to five, and the other two 
had raped a single white adult.

All twenty-nine of the Negroes who have been executed, 
and ten of the twelve presently awaiting execution, were 
convicted of raping white women. (The other seven Ne­
groes sentenced to die have had their sentences of death 
reversed by a higher court, or have had their death sen­
tences commuted by the Pardon Board.) A total of forty- 
four of the forty-eight Negro defendants have been sen­
tenced to death or electrocuted for the rape of white adult 
women. No Negro or white, to date, has been electrocuted 
for the rape of a Negro adult or child. Three other Negroes 
have been sentenced to death for raping Negro children, 
with one having his conviction reversed by the Supreme 
Court of Florida. (See Statement, supra.)

This is at least sufficient evidence to make an initial 
showing of racial discrimination and to transfer the burden 
of explanation to the State. While determination of the 
relative influence of the racial factor, as opposed to factors 
arising from the circumstances of the individual cases, 
would be aided by data detailing the facts of each prosecu­
tion for rape, the burden should be on the state to demon­
strate the countervailing influence of such factors since it 
should have the responsibility of rebutting the inference 
raised by the above statistics, and since if such a showing 
can be made, the state has the resources available to do so.

The trial court, and the Supreme Court of Florida, al­
though accepting the correctness of petitioner’s statistical 
showing, held that the Florida statute was constitutional 
both on its face and as applied to petitioner without dis­
cussion. No attempt was made by the state at any part of 
the proceeding to explain or justify the discrepancy in the 
application of the death penalty clearly demonstrated by 
the statistics summarized above.



17

This Court should hold that the State may not thus re­
main silent in the face of such a record. Several considera­
tions support the holding.

First, the hypothesis of racial discrimination is particu­
larly likely in view of the coincidence between the Florida 
figures and those of the other jurisdictions—all southern— 
which have executed persons for rape during the past thirty 
years. For all jurisdictions, the Negro-white ratio is nine 
to one—although for other crimes than rape it is about one 
to one. Studies and observations by students of the crimi­
nal process tend to support the hypothesis of discrimina­
tion. E.g., Bullock, Significance of the Racial Factor in the 
Length of Prison Sentences, 52 J. G r im . L., Cr im . & P ol. 
S ci. 411 (1961); Wolfgang, Kelly & Nolde,. Comparison of 
the Executed and the Commuted among Admissions to 
Death Row, 53 J. Cr im . L., Cr im . & P ol. S ci. 301 (1962); 
Hartung, Trends in the Use of Capital Punishment, 284 
A nn als  8, 14-17 (1952); W eih o een , T h e  U rge to P u n ish  
164-165 (1956).

Second, put in the context of the broader picture of 
Florida life and law, the inference that these death penalties 
were racially motivated becomes overwhelming. Florida 
still by statute forbids the intermarriage of whites with 
Negroes, (Fla. Const., Art. 16, §24; Fla. Stat. Ann. §§741.11- 
741-16), and only recently was its statute prohibiting inter­
racial cohabitation struck down by this Court. McLaughlin 
v. Florida, 379 U.S. 184. (Fla. Stat. Ann. §798.05. See also, 
§798.04.) The lesson the State thus officially teaches its citi­
zens respecting the abhorrence in which even voluntary 
interracial sexual relations should be held cannot help but 
have an impact on the views which a criminal jury will hold 
of an interracial rape. Cf. Peterson v. City of Greenville, 
373 U.S. 244; Lombard v. Louisiana, 373 U.S. 267; Robin­
son v. Florida, 378 U.S. 153.



18

Finally, in this context, the absolute discretion which 
Florida law gives jurors to decide between life and death, 
undirected by any rational standards for making that deci­
sion (see part II infra), invites the influence of arbitrary 
and discriminatory considerations. This Court has long 
been concerned with a vagueness of criminal statutes which 
“ licenses the jury to create its own standard in each case.” 
Herndon v. Lowry, 301 U.S. 242, 263. See, e.g., Smith v. 
Cahoon, 283 U.S. 553; Cline v. Frink Dairy Co., 274 U.S. 
445; Connolly v. General Construction Co., 269 U.S. 385; 
Winters v. New York, 333 U.S. 507. The vice of such 
statutes is not alone their failure to give fair warning of 
prohibited conduct, but the breadth of room they leave for 
jury caprice and suasion by impermissible considerations, 
N.A.A.C.P. v. Button, 371 U.S. 415, 432-433; Freedman v. 
Maryland, 380 U.S. 51, 56; Lewis, The Sit-In Cases: Great 
Expectations, [1963] S uprem e  C ourt R eview  101, 110; 
Note, 109 U.Pa.L.Rev. 67, 90 (1960), including racial con­
siderations, see Louisiana v. United States, 380 U.S. 145; 
Dombrowski v. Pfister, 380 U.S. 479; Cox v. Louisiana, 379 
U.S. 536. Unlimited sentencing discretion in a capital jury 
presents this vice in the extreme. To paraphrase Joseph 
Burstyn, Inc. v. Wilson, 343 U.S. 495, 505: “Under such a 
standard the most careful and tolerant [lay juror] . . . 
would find it virtually impossible to avoid favoring one 
[race] . . . over another.”

Petitioner requests the Court to grant certiorari to re­
view" and reverse the judgment of the Supreme Court of 
Florida, which left the sentence of death standing after 
petitioner had made an unrebutted prima facie showing that 
he had been denied equal treatment in the most grievous 
penalty known to law.



19

II.

The Court Should Grant Certiorari to Consider 
Petitioner’ s Contention That His Sentence Is Uncon­
stitutional Under the Eighth and Fourteenth Amend­
ments.

Petitioner alleged that he was unconstitutionally sen­
tenced without consideration of aggravating or mitigating 
circumstances, pursuant to §794.01 of the Florida Statutes 
Annotated, which statute on its face and as applied pre­
scribes the imposition of cruel and unusual punishment in 
violation of the Fourteenth Amendment. This question, 
which three Justices of the Court thought deserving of 
certiorari in Rudolph v. Alabama, 375 U.S. 889, has been 
deemed by both the Fourth and Eighth circuits as one 
which “must be for the Supreme Court in the first instance.” 
Maxwell v. Stephens, 348 F.2d 325, 332 (8th Cir. 1965)
cert, denied, .... . U.S.........., 15 L.Ed. 2d 353. The Fourth
Circuit has taken the same view. Ralph v. Pepersaclc, 335 
F.2d 128, 141 (4th Cir. 1964), cert, denied, 380 U.S. 925. 
Petitioner respectfully requests the judgment of the Court 
on the issue.

The question posed is not whether on any rational view 
which one might take of the purpose of criminal punish­
ment, the defendant’s conduct as the jury might have found 
it at its worst on this record could support a death sen­
tence consistent with civilized standards for the adminis­
tration of criminal law. As the issue of penalty was sub­
mitted to the jury in their unlimited discretion under 
Florida procedure, their attention was directed to none 
of the purposes of criminal punishment, nor to any aspect 
or aspects of the defendant’s conduct. They were not in­
vited to consider the extent of physical harm to the prose­



20

cutrix, the moral heinousness of the defendant’s acts, his 
susceptibility or lack of susceptibility to reformation, the 
extent of the deterrent effect of killing the defendant “pour 
decourager les autres.”  Cf. Packer, Making the Punish­
ment Fit the Crime, 77 Harv. L. Rev. 1071 (1964).

The absence of these or any other standards to guide a 
Florida jury in determining whether a defendant should 
live or die render the procedure violative of due process 
under the rationale of Giacco v. Pennsylvania, —-— U.S.
------ , 34 U.S.L.W. 4099. There this Court struck down the
Pennsylvania statute allowing a jury to assess the costs 
of a criminal proceeding on an acquitted defendant, be­
cause of an absence of any standards on which the jury 
could rationally base its decision. The Court said:

Certainly one of the basic purposes of the Due 
Process Clause has always been to protect a person 
against having the Government impose burdens upon 
him except in accordance with the valid laws of the 
land. Implicit in this constitutional safeguard is the 
premise that the law must be one that carries an un­
derstandable meaning with legal standards that courts 
must enforce. 34 U.S.L.W. 4100.10

Under the Florida procedure the jurors were permitted 
to choose between life and death upon conviction for any 
reason, rational or irrational, or for no reason at all: at 
a whim, a vague caprice or because of the color of peti­
tioner’s skin if that did not please them. In making the 
determination to impose the death sentence, they acted

10 Petitioner recognizes that the Court disclaimed any implications as 
to the validity of established sentencing procedures. However, he submits 
that the combination o f the evident intrusion of race as a factor in the 
decision, the imposition of the extreme penalty, and the simultaneous 
decision as to verdict and sentence (see Part III, infra) involved here 
make the rational of Giacco particularly applicable.



21

wilfully and unreviewably, without standards and without 
direction. Nothing assured that there would be the slight­
est thread of connection between the sentence they exacted 
and any reasonable justification for exacting it. Of. Skinner 
v. Oklahoma, 316 U.S. 535. A judgment so unconfined, so 
essentially erratic, is per se cruel and unusual because it 
is purposeless, lacking in any relationship by which its fit­
ness to the offense, or to the offender or to any legitimate 
social purpose may be tested. It is cruel not only because 
it is extreme but because it is wanton; and unusual not 
only because it is rare, but because the decision to remove 
the defendant from the ordinary penological regime is ar­
bitrary. To concede the complexity and interrelation of 
sentencing goals, see Packer, supra, is no reason to sustain 
a statute which ignores them all. It is futile to put for­
ward justifications for a death so inflicted; there is no as­
surance that the infliction responds to the justification or 
will conform to it in operation. Inevitably under such a 
sentencing regime, capital punishment in those few, arbi­
trarily selected cases where it is applied both is “  ‘dispro- 
portioned to the offenses charged’ ” and constitutes “ ‘un­
necessary cruelty.’ ” Rudolph v. Alabama, supra, 375 U.S. 
at 891.11

11 The United States Department of Justice has taken the following 
position on continued imposition of the death penalty: “We favor the 
abolition of the death penalty. Modern penology with its correctional and 
rehabilitation skills affords greater protection to society than the death 
penalty which is inconsistent with its goals. This Nation is too great in 
its resources and too good in its purposes to engage in the light of present 
understanding in the deliberate taking of human life as either a punish­
ment or a deterrent to domestic crime.” Letter o f Deputy Attorney Gen­
eral Ramsey Clark to the Honorable John L. McMillan, Chairman, Dis­
trict of Columbia Committee, House of Representatives, July 23, 1965, 
reported in New York Times, July 24, 1965, p. 1, col. 5.



22

III.

The Court Should Grant Certiorari to Decide Whether 
Florida’ s Single Verdict Procedure Allowing the Jury 
Which Determines Guilt Simultaneously to Fix Capital 
Punishment fo r  Rape Violates the Due Process Clause 
o f  the Fourteenth Amendment.

Under the procedure here employed by the State of 
Florida, the jury which found petitioner guilty of rape was 
required simultaneously to determine by its vote whether 
he should be electrocuted or suffer imprisonment. Section 
794.01, Florida Statutes, provides:

Whoever ravishes and carnally knows a female of the 
age of ten years or more . . . shall be punished by 
death, unless a majority of the jury in their verdict 
recommend mercy, in which event punishment shall be 
by imprisonment in the state prison for life, or for 
any term of years within the discretion of the 
judge. . . .

The Florida courts read this statute as requiring a single 
verdict: a jury which finds guilt determines sentence with­
out receiving further evidence or instruction, indeed, with­
out even returning to the courtroom.

This procedure thrust upon petitioner, at the outset of 
the trial, an intolerable choice: On the one hand, he could 
decide not to testify, relying on his privilege under the 
Fifth and Fourteenth Amendments. Malloy v. Hogan, 378 
U.S. 1. But were he convicted, the jury would determine 
his sentence with no knowledge whatsoever of his back­
ground or personality or of any mitigating circumstances; 
the jury would know none of the information which settled 
views of penology consider indispensable to a rational sen­



2 3

tencing decision. See Williams v. New York, 337 U.S. 241, 
247-8. Indeed, the full consideration of the circumstances 
of a crime may be necessary for “ the exercise of a sound 
discretion” as required by due process. See, Williams v. 
Oklahoma, 358 U.S. 576, 585.

On the other hand, the petitioner could at the outset of 
the trial decide to take the stand, so that, in the event of 
a guilty verdict, his jury could impose sentence based on 
some quantum of information. But petitioner could thus 
purchase a rational sentence only by surrender of his privi­
lege against self-incrimination. The surrender could be 
costly: the prosecution would be permitted to counter with 
otherwise inadmissible evidence, e.g., evidence of bad char­
acter, including unrelated crimes, Section 921.13, Florida 
Statutes; Williams v. State, 110 So.2d 654, 661 (1959); 
Davis v. State, 123 So.2d 703 (1960). Even were a jury 
given cautionary instructions that such evidence should be 
considered on the issue of sentence alone, the determina­
tion of guilt would inevitably be prejudiced. As Judge 
Learned Hand remarked, such cautionary instructions are 
only “ the recommendation to the jury of a mental gym­
nastic which is beyond, not only their powers, but any­
body’s else.” See Nash v. United States, 54 F.2d 1006, 1007 
(2d Cir. 1932), cert, denied, 285 U.S. 556.

In  sum, the Florida single-verdict procedure here em­
ployed requires a defendant to choose between a procedure 
that threatens a fair trial on the issue of guilt and one 
that detracts from a rational determination of the sentence. 
See, A.L.I., M odel P en al  C ode, Tent. Draft No. 9 (M a y  
8, 1959), Comment to $201.6, at 74-76.

Other procedures employed by Florida in rape prosecu­
tions exacerbate, rather than mitigate, the harshness of 
the choice which a defendant is required to make. The jury



24

is given no instruction by the court on the manner in which 
it should proceed in imposing sentence; it is left completely 
without guidance. The juror’s oath offers no help: on the 
subject of sentence, it is silent.12 Thus deterred by neither 
instruction nor oath, the jury is free to vote its prejudices. 
(The comparative record of death sentences imposed on 
Negro and white defendants in rape cases suggests that 
Florida juries make full use of this freedom.) Moreover, 
if the jury is unable to decide by majority vote whether a 
defendant shall live or die, the statute requires that he 
die—only the vote of a “ majority” for mercy permits the 
court to impose a jail sentence rather than death. Finally, 
the sentence resulting from these procedures may not be 
reviewed or modified on appeal; as long as it is within the 
statute, review of the sentence is outside the jurisdiction 
of any appellate court, Davis v. State, 123 So.2d 703 (1960).

Florida’s simultaneous submission of guilt and sentence 
to a jury is much akin to New York’s former practice of 
simultaneously submitting to a jury the two issues of the 
voluntary nature of a confession and the guilt of the ac­
cused. The former New York practice was, of course, struck 
down by this Court in Jackson v. Denno, 378 IT.S. 368, 
where the Court recognized the prejudice inevitable when 
guilt and another issue are determined simultaneously:

. . .  an accused may well be deterred from testifying 
on the voluntariness issue when the jury is present 
because of his vulnerability to impeachment by proof 
of prior convictions and broad cross-examination. . . .

12 The oath administered to jurors in Florida reads, Section 913.11, 
Florida Statutes Annotated:

“ You do solemnly swear (or affirm) that you will well and truly 
try the issues between the State of Florida and the defendant whom 
you shall have in charge and a true verdict render according to the 
law and evidence, so help you God.”



2 5

Where this occurs the determination of voluntariness 
is made upon less than all of the relevant evidence. 
(378 U.S. 368, 389, n. 16.)

And see also, Whitus v. Balhcom, 333 F.2d 496 (5th Cir. 
1964), holding that a Negro defendant may not constitu­
tionally be required to choose between trial to a jury from 
which Negroes are excluded and trial to a jury prejudiced 
by defendant’s demand for Negro participation.

The single-verdict procedure not only thrusts upon the 
defendant an intolerable choice between unfairnesses, but 
it operates also to insure that, if found guilty, he will be 
sentenced upon less than all pertinent information. For as 
this Court recognized in Williams v. New York, 337 U.S. 
241, 247-8, the exclusionary rules customary and appro­
priate to trial of the issue of guilt will bar receipt of much 
evidence properly to be considered on sentence.

As pointed out in the dissent below, a simple alternative 
to the single-verdict procedure is available under the Flor­
ida statutes: the issue of innocence or guilt could be tried 
first, with all appropriate evidentiary safeguards observed. 
Should the jury return a guilty verdict, it could then hear 
all material pertinent to sentence, and then render a just, 
informed determination.

For Florida to insist upon the single verdict under these 
circumstances constitutes, petitioner submits, a denial to 
petitioner of due process of law.

The procedure employed by Florida is used by many 
states, and 18 U.S.C. §2113(e) permits federal juries to 
impose the death penalty.13 The question of whether this

1318 U.S.C. §2113(e) : “Whoever, in committing any offense defined 
in this section, or in avoiding or attempting to avoid apprehension for 
the commission of such offense, or in freeing himself or attempting to



2 6

procedure violates the requirements of due process of law 
has been raised often in the Third and Second Circuits 
and in the District of Columbia Circuit. See, United 
States ex rel. Rucker v. Myers, 311 F.2d 311 (3rd 
Cir. 1962), cert, denied, 374 U.S. 844; United States 
ex rel. Scoleri v. Bonmiller, 310 F.2d 720 (3rd Cir. 1962),
cert, denied, 374 U.S. 828; United States v. Curry, ------
F.2d ------  (2nd Cir. No. 29000, Dec. 22, 1965); Frady
v. United States, 348 F.2d 84 (D.C. Cir. 1965). Although 
the procedure has been upheld, its validity was seriously 
questioned in Frady and Curry, supra, and one jus­
tice of the Supreme Court of Florida urged in the present 
case that it violates constitutional standards; in all in­
stances the case of Jackson v. Denno, supra, was cited.

Therefore, the issue of due process here presented is of 
general importance and interest and warrants the grant of 
certiorari. Moreover, in the present case the vice of the 
Xrrocedure is demonstrated in its starkest form. Florida 
allows the jury, unguided by any standards or instructions 
and exercising a discretion not reviewable by any court, to 
send a defendant to his death; it permits the jury to exer­
cise freely the prejudices called up by the race of the de­
fendant and the victim; and it does not even give the defen­
dant an opportunity freely to present evidence to mitigate 
the penalty.

free himself from arrest or confinement for such offense, kills any person, 
or forces any person to accompany him without the consent of such per­
son, shall be imprisoned not less than ten years, or punished by death if 
the verdict of the jury shall so direct.”

However, federal courts have pointed out that having the jury decide 
the sentence after rendering the verdict is fully consistent with §2113(e) 
and is more compatible with Rule 32(a) of the Federal Rules of Criminal 
Procedure. ( “ Before imposing sentence the court shall afford the defen­
dant an opportunity to make a statement in his own behalf and to present 
any information in mitigation of punishment.” ) United States v. Gurry 
(2nd Cir. No. 29000, Dec. 22, 1965, Slip Opinion at 3560).



27

CONCLUSION

For the foregoing reasons the petition for writ of 
certiorari should be granted.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit , III 
L eroy D . Clark  
M ic h ael  M eltsner  
C harles S teph en  R alston 

10 Columbus Circle 
New York, New York 10019

T obias S im o n  
H . W . D ixon 
M aurice R osen

223 Southeast First Street 
Miami 32, Florida

Attorneys for Petitioner

J ay  H . T opkis
575 Madison Avenue 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania

Of Counsel



A P P E N D I X



O pinion o f  the Suprem e Court o f  Florida

IN THE SUPREME COURT OF FLORIDA 

J u l y  T erm , A. D. 1965 

Case N o. 34,101

W illiam  B e n ja m in  Craig, 

— vs.—
Appellant,

S tate of F lorida,
Appellee.

Opinion filed October 13, 1965

An Appeal from the Circuit Court for Leon County, 
Ben C. Willis, Judge.

Howard W. Dixon, Tobias Simon, Maurice 
Rosen, Jack Greenberg and Leroy D. Clark, 
for Appellant.

Earl Faircloth, Attorney General, and George 
R. Georgieff, Assistant Attorney General, 
for Appellee.

P er C u ria m .

The appellant Craig was convicted of the crime of rape 
and sentenced to pay the supreme penalty. The conviction 
was affirmed on direct appeal. Craig v. State, 168 So. 2d 
747.

Craig filed in the trial court a “Motion for reduction of 
sentence from death to life.” Allegedly, he moved under 
Section 921.24, Florida Statutes, which authorizes the cor­



2a

rection of an illegal sentence in a criminal case. By his 
motion, the appellant contended that:

(a) Sec. 794.01, Fla, Stat. which imposes the death sen­
tence for the crime of rape, is violative of the 
constitutional prohibition of cruel and unusual pun­
ishment prescribed by the Eighth Amendment, Con­
stitution of the United States.

(b) Sec. 794.01, supra, is patently unconstitutional be­
cause it requires the trial jury simultaneously to 
determine both guilt or innocence and the penalty.

(c) Sec. 794.01 is unconstitutional as applied to appel­
lant. It is alleged that statistics reveal a pattern of 
discrimination against negroes in the imposition of 
the death sentence. Craig is a negro.

The Circuit Judge denied the Motion and expressly up­
held the validity of Section 794.01, supra, against all 
attacks leveled at it. Craig appeals.

We have considered the Motion as a collateral, post 
conviction assault on a judgment of conviction within the 
scope of our Criminal Procedure Rule No. 1. Regardless 
of the title of the document, its purpose is to attack the 
judgment on constitutional grounds. We, therefore, treat 
appellant’s Motion as if it were filed under Rule 1, supra.

We take jurisdiction because the trial judge passed 
directly on the validity of Section 794.01, supra, Article V, 
Section 4(2), Florida Constitution. We do not construe 
the instant judgment as one imposing the death penalty. 
That was done by the original judgment of conviction 
which was assaulted by the post conviction Motion. The 
judgment here was final because the Circuit Judge had

Opinion o f the Suprem e Court o f F lorida



3a

fully completed his judicial labor. We regard it as appeal- 
able just as any other Rule 1 order is appealable. We have 
held that such orders will be reviewed by this Court, or an 
appropriate District Court, depending upon the content of 
the order. Roy v. Wainwright, 151 So. 2d 825. Where, as 
here, such an order passes directly on the validity of a 
state statute it comes directly to the Supreme Court from 
the trial court. We have said that the procedure is the 
same as in habeas corpus. Mitchell v. Wainwright, 155 
So. 2d 868. When the order does not bring the case within 
our appellate jurisdiction, it should go to the proper Dis­
trict Court.

On the merits we find that the Circuit Judge ruled cor­
rectly in sustaining the validity of the statute against the 
attack made upon it.

The judgment is affirmed.

T h o rn al , C.J., R oberts, D rew , O ’C onnell  and Caldw ell , 
JJ., concur.

T h om as , J dissents.

E r v in , J dissents w ith  op in ion .

Opinion o f the Suprem e Court o f F lorida

E rvin , J., dissenting.

Appellant was convicted in the Circuit Court of Leon 
County, Florida, of rape of a female over the age of ten 
years and sentenced to death pursuant to §794.01, F.S., 
such sentence being mandatory there being no recommenda­
tion of mercy by the jury.

He appealed his conviction to this Court and the judg­
ment of conviction was affirmed. See Craig v. State, 168 
So.2d 747.



4a

This is a second appeal to this Court. In this appeal it 
appears the Appellant, as defendant, filed motion for re­
duction of sentence from death to life imprisonment or 
less with the Circuit Court of Leon County, pursuant to 
§921.24, F.S., which provides a trial court at any time may 
correct an illegal sentence. The motion was denied by the 
Circuit Court. In its denial the Circuit Court upheld the 
constitutionality of §794.01, F.S. It follows our jurisdic­
tion is properly invoked by the Appeal under Section 4(2), 
Article Y, State Constitution.

Appellant, a member of the Negro race, urges reversal 
and assigns four reasons as follows:

No. 1. Imposition of the death penalty on Craig pursu­
ant to Florida’s practice of racial discrimination in capital 
punishment for rape denies him the equal protection of 
the laws guaranteed by the Fourteenth Amendment.

No. 2. Florida’s grant to juries and the Pardon Board 
of unlimited, undirected and unreviewable discretion in 
the imposition of the death penalty for rape violates the 
due process clause of the Fourteenth Amendment.

No. 3. Florida’s single verdict procedure allowing the 
jury which determines guilt to fix capital punishment for 
rape violates the due process clause of the Fourteenth 
Amendment.

No. 4. Florida’s imposition of the death sentence for 
rape where no life was taken and without consideration of 
the aggravating or mitigating circumstances of the par­
ticular offense subjects Appellant to cruel and unusual 
punishment in violation of the Eighth Amendment as in­
corporated in the Fourteenth Amendment.

By motion supported by affidavit, Appellant brought to 
the attention of the trial court the following statistical 
data which was not contradicted by the State:

Opinion o f the Suprem e Court o f  F lorida



5a

“ 6. In the 25-year period between January 1, 1940, and 
December 31, 1964, inclusive of the case at bar, 285 
persons have been convicted of the crime of rape in 
the State of Florida. Of these, 152 have been Negroes, 
132 have been White, and one was an Indian. Never­
theless, only 6 Whites and 48 Negroes have been 
sentenced to death; of these, only 1 White man has 
died, while 29 Negroes have been electrocuted and 12 
more await execution in Death Row at Florida State 
Penitentiary at Raiford. . . . ”

Based on this data, Appellant contends under Reason 
No. 1 that §794.01, F.S., which reads as follows:

“Rape and forcible carnal knowledge; penalty.—Who­
ever ravishes and carnally knows a female of the age 
of ten years or more, by force and against her will, 
or unlawfully or carnally knows and abuses a female 
child under the age of ten years, shall be punished 
by death, unless a majority of the jury in their verdict 
recommend mercy, in which event punishment shall 
be by imprisonment in the state prison for life, or 
for any term of years within the discretion of the 
judge. It shall not be necessary to prove the actual 
emission of seed, but the crime shall be deemed com­
plete upon proof of penetration only.” ,

is unconstitutional because juries in the State of Florida 
have systematically applied this statute mainly against 
members of the Negro race. He argues the statute vio­
lates the equal protection clause of the Federal Constitu­
tion because the history and statistics of its application 
by juries in the state disclose the infliction of death sen­
tences in rape eases has been much greater upon Negroes

Opinion o f the Suprem e Court o f  F lorida



6a

than upon white persons. He cites in support of this con­
tention Brown v. Board of Education, 347 U.S. 483 (1954); 
Watson v. City of Memphis, 373 U.S. 526 (1963); Yick Wo 
v. Hopkins, 118 U.S. 356 (1886); Tigner v. Texas, 310 U.S. 
141 (1940); Fowler v. Rhode Island, 345 U.S. 67 (1953); 
Hamilton v. Alabama, 376 U.S. 650 (1964); Oyler v. Boles, 
368 U.S. 448 (1962); Snowden v. Hughes, 321 U.S. 1 
(1944); Arnold v. North Carolina, 376 U.S. 773 (1964) • 
People v. Harris, 182 Cal.App.2d Supp. 837, 5 Cal. Reptr. 
852; Shelley v. Kraemer, 334 U.S. 1 (1948); Lombard v. 
Louisiana, 373 U.S. 267 (1963); Strauder v. West Virginia, 
100 U.S. 303 (1880); Eubanks v. Louisiana, 356 U.S. 584 
(1958); Hernandez v. Texas, 347 U.S. 475 (1954); McLaugh­
lin v. Florida, 84 S.Ct. 1693 (1964); Swain v. Alabama, 
33 U.S. L. Week 4231 (1965); Omaya v. California, 332 
U.S. 633 (1948); Gomillion v. Lightfoot, 364 U.S. 339 (1960).

In support of reason No. 2, Appellant contends that the 
authority given to juries to make recommendations of 
mercy as to death sentences for rape, amounts to an un­
limited, undirected and unreviewable discretion violation 
of due process of law. The Appellant contends no stand­
ards are prescribed for the exercise of this authority and 
that the same is exercised arbitrarily and irrationally by 
juries. He cites in support Herndon v. Lowry, 301 U.S. 
242, 263 (1937); Smith v. Cahoon, 283 U.S. 553 (1931); 
Lovell v. Griffin, 303 U.S. 444 (1938); Joseph Burstyn, 
Inc. v. Wilson, 343 U.S. 495, 505 (1952).

As to reason No. 3, Appellant contends the single ver­
dict phase procedure now followed in our state authorizing 
juries which determine guilt simultaneously to fix capital 
punishment for rape violates due process of law in that 
this procedure tends to deny a defendant a fair trial. Ap­
pellant calls attention that pursuant to Florida procedure

Opinion o f  the Suprem e Court o f F lorida



Opinion o f the Suprem e Court o f F lorida

a jury ordinarily makes its life-death choice simply on the 
evidence presented on the issue of guilt, while modern 
concepts individualizing punishment have made it all the 
more essential that a sentencing judge or jury not be 
denied a separate opportunity to receive pertinent infor­
mation, including reports from probation and parole au­
thorities relative the degree of punishment, unrestrained 
by rigid adherence to restrictive rules of evidence prop­
erly applicable to the trial of the issue of guilt; and that 
it is an imperative condition of rational sentencing- choice 
that the sentencer consider more information about the 
individual defendant than is likely to be forthcoming on 
the trial of the guilt issue. In Davis v. State (Fla.), 123 
So.2d 703, in headnotes 9-11 this Court apparently agrees 
to the modern concept of individualized punishment.

Appellant also points out that if a defendant seeks to 
present to the jury pertinent background evidence to in­
form its sentencing choice, Florida procedure permits the 
prosecution to counter with evidence of defendant’s bad 
character, including evidence of unrelated crimes, citing 
§921.13, F .S .; Williams v. State, 110 So.2d. 654, 661 (Fla. 
1959); Davis v. State, 123 So.2d 703 (Fla. 1960); Whitney 
v. Cochran, 152 So.2d 727 (Fla. 1963); Nations v. State, 
145 So.2d 259 (DCA2nd 1962). Appellant contends that 
the possibility that background information may be strong­
ly prejudicial as to issue of his guilt forces a defendant 
to a “ choice between a method which threatens the fair­
ness of the trial of guilt or innocence and one which de­
tracts from the rationality of the determination of the 
sentence.”

Appellant contends the two stage procedure now em­
ployed in a number of states and in military courts martial



8 a

should be judicially adopted in Florida to insure due 
process and avoid effects prejudicial to a fair trial.

Appellant refers to the fact that a defendant usually 
has the right of allocution; that is, the right to express 
without restraint to his sentencer why judgment or sen­
tence should not be meted out to him but he contends this 
right under present Florida procedure in rape cases is 
not freely given to him without possible jeopardy, to be 
heard by the jury on the question of punishment. Appel­
lant also points out that under existing procedure if the 
defendant in a rape case takes the stand he is subject to 
incriminating cross examination even though he limits his 
statement to the issue of a mercy recommendation.

Concerning reason No. 4 Appellant contends that a death 
sentence in a rape case without due consideration of ag­
gravating or mitigating circumstances subjects a defend­
ant to cruel and unusual punishment, and such a sentence 
is inherently cruel and unusual under modern concepts, 
citing dissenting opinion in Rudolph v. Alabama, 84 S.Ct. 
155 (1963); he also cites Weems v. United States, 217 U.S. 
349 (1910), and Trop v. Dulles, 356 U.S. 86 (1958). In 
this portion of his argument Appellant recurs to the 
statistical disproportion of death sentences meted Negro 
males compared to those imposed upon white males in 
rape cases, contending this disparity amounts to cruel and 
unusual punishment for one class of citizens not visited 
upon other citizens.

The constitutionality vel non of §794.01, F.S., is sus­
tained by the overwhelming weight of authority.

Sentence within statutory limits, no matter how harsh 
and severe, is not cruel and unusual punishment within 
the constitutional provision; 9 Fla. Jur., Criminal Law,

Opinion o f  the Suprem e Court o f F lorida



9a

§269, p. 302, citing Brown v. State (1943), 152 Fla. 853, 
23 So.2d 458.

“Punishment of death is not in violation of the consti­
tutional prohibition of cruel and unusual punishment un­
less it is so inflicted that it involves lingering death, tor­
ture, or such practices as disgraced the civilization of 
former ages.” 9 Fla. Jur., Criminal Law, §271, p. 304. 
See also, 30 A.L.R. 1452; Ferguson v. State (1925), 90 
Fla. 105, 105 So. 840, cert, denied 273 U.S. 663, 71 L.Ed. 
828, 47 S.Ct. 454.

“ The punishment for both forcible and statutory rape 
is death, unless a majority of the jury in their verdict 
recommend mercy, in which event the punishment is 
imprisonment for life, or for any term of years within 
the discretion of the judge. The controlling statute 
is not unconstitutional on its face as being violative 
of defendant’s rights under the Fourteenth Amend­
ment to the Constitution of the United States.”  27 
Fla. Jur. 581, Rape and Related Offenses, §47.

The power to define what acts shall constitute criminal 
offenses and what penalties shall be inflicted on offenders 
is legislative and not judicial. 14 Am. Jur. 766, 767; 15 
Am. Jur., paragraphs 507 to 510, inclusive.

The wisdom or policy of §794.01, F.S., lies within the 
province of the Legislature and beyond the concern of 
the judiciary. Furthermore, it is our traditional duty to 
uphold the constitutionality of the statute if it is at all 
possible to do so and resolve all doubts in its favor.

Although a statute may be constitutional upon its face, 
in a proper case an unconstitutional application of it will 
be stricken. Ex parte Wise, 141 Fla. 222, 192 So. 872

Opinion o f the Suprem e Court o f F lorida



10a

(1940), and Sutton Phosphate Go. v. Priest (1914), 67 
Fla. 370, 65 So. 282.

It is my view that §794.01, F.S., has been unconstitu­
tionally applied to the extent hereinafter indicated. I 
agree with Appellant a two-stage procedure is necessary 
to give the statute constitutional operation. See Jackson 
v. Denno, 378 U. S. 368 (1964).

There should be a separation of the jury’s determina­
tion of the issue of guilt of the defendant and the issue 
concerning the recommendation of mercy in a rape case 
if a defendant demands it prior to the time the jury re­
tires to determine the issue of guilt or if the trial court on 
its own motion directs such separation. I f  the defendant 
is found guilty of rape, then should follow the determina­
tion of whether capital punishment is to be imposed and 
the jury should decide the issue of whether a recommenda­
tion of mercy is to be made by a separate consideration. 
See: IT. S. ex rel. Scloeri v. Bonmiller, 310 F. 2d 720, and 
IT. S. ex rel. Bukery v. Bundle, 200 F. Supp. 557.

It does not require new legislation to inaugurate the 
two-stage procedure. Section 794.01, F.S., should be read 
in connection with §919.23, F.S., relating to verdicts gen­
erally in criminal cases. Section 919.23 reads:

“ (1) In all criminal trials, the jury, in addition to a 
verdict of guilty of any offense, may recommend the 
accused to the mercy of the court or to executive 
clemency, and such recommendation shall not qualify 
the verdict except in capital cases. In all cases the 
court shall award the sentence and shall fix the punish­
ment or penalty prescribed by lawv

“ (2) Whoever is convicted of a capital offense and 
recommended to the mercy of the court by a majority

Opinion o f the Suprem e Court o f  F lorida



11a

of the jury in their verdict, shall be sentenced to im­
prisonment for life; or if found by the judge of the 
court, where there is no jury, to be entitled to a recom­
mendation to mercy, shall be sentenced to imprison­
ment for life, at the discretion of the court.” (Em­
phasis supplied.)

I do not consider the language, “ in their verdict,” ap­
pearing in §§794.01, F.8., or in §919.23(2), F.S., is an 
absolute bar to a separate consideration by the jury of 
the issue of a mercy recommendation. The statutes re­
quire a unanimous vote for a guilty verdict in a rape 
case, but only a majority vote for a mercy recommenda­
tion. This indicates the law provides for separate con­
sideration of the two issues. The two statutes read to­
gether do not preclude the jury from considering sepa­
rately the issues of guilt and mercy recommendation and 
inserting its two findings “ in their verdict.” Under the 
two-stage procedure, after the trial of the issue of guilt, 
the jury would retire, make its finding, and then report 
to the court its first phase of its verdict that it had found 
the defendant guilty of rape. Thereupon it would hear the 
matter of the mercy recommendation, retire, make its find­
ing thereon, and add to the verdict of guilty its finding 
upon the issue of the recommendation. This procedure is 
simple and uncomplicated.

Because of the gravity of rape cases no strained con­
struction should be given the two statutes relating to ver­
dicts in such cases which would technically deny a full, 
fair and separate hearing of these two important issues 
by the jury. The two issues are separate and distinct and 
require different quantum of jury notes. The division of the 
two issues at the trial is a matter of procedure, within the

Opinion o f  the Suprem e Court o f F lorida



1 2 a

province of the judiciary to prescribe inasmuch as the 
Legislature in the two statutes has not conclusively pro­
hibited separate consideration of them by the jury. Sec­
tion 3 of Article V, State Constitution, authorizes the 
Supreme Court to promulgate the rules of practice and 
procedure in all courts. I think it lies within the power 
of this Court to prescribe the practice and procedure to 
be followed in rape trials. Bluesten v. Florida Beal Estate 
Commission, 125 So. 2d 567 (Fla. 1961); Jaworski v. City 
of Opa-Locka, 149 So. 2d 33 (Fla. 1963); State v. Robin­
son, 132 So. 2d 156 (Fla. 1961); and City of Miami v. 
Murphy, 137 So. 2d 825 (Fla.).

But aside from the procedural aspects of this case, it 
is fundamentally necessary in order to insure a defendant 
due process and to guarantee him a fair trial of the two 
issues, guilt and recommendation of mercy, that there be 
separate consideration thereof by the jury.

The reasons assigned by Appellant and hereinbefore 
outlined appear to me to support the proposition that it 
is fundamentally essential to have a separate jury deter­
mination of the two issues in a rape trial.

In 15 Am. Jur., Criminal Law, §519, the text on page 
167 reads in part:

“ §519 Hearing Evidence to Determine.— The rule is 
well settled that where the court must determine the 
punishment to be imposed, either on the finding of 
the jury or on a plea of guilty, it is correct practice 
to hear evidence, by affidavit or otherwise, in ag­
gravation or mitigation of punishment. . . . ”

Opinion o f the Suprem e Court o f  F lorida



13a

In 15 Am. Jur., Criminal Law, §457, the text on page 
114 reads in part:

“ §457. Allocution.—While there are a few decisions 
which take the view that failure to ask a prisoner if  
he has any reason to give why sentence should not 
be passed is not reversible error even in capital cases, 
unless it is apparent that the prisoner was or may 
have been injured by the omission, numerous deci­
sions follow the common-law rule and hold that ask­
ing the defendant before sentence in capital cases if 
he has anything to say why sentence of death should 
not be pronounced against him is indispensably neces­
sary. . . . ” (Emphasis supplied)

See, also, United States v. Behrens, 375 U.S. 162, 11 L.Ed. 
2d 224, 84 S.Ct. 295 (5th headnote). Under our procedure 
in rape cases where a death sentence is mandatory if 
there is no recommendation of mercy by the jury, the 
allocutionary showing of the defendant must be to the 
jury if it is to have any value to the defendant.

In trying the issue of a mercy recommendation, latitude 
should be accorded the defendant to bring to the jury’s 
attention whatever evidence, information or other showing 
he reasonably believes is necessary to show why the death 
penalty should not be inflicted upon him inasmuch as this 
phase of the matter is allocutionary but, with right on 
behalf of the state to cross examine and to give counter­
vailing evidence, data and arguments to counteract the 
showing made by the defendant. The hearing on the issue 
would be similar in many respects to a state pardon board 
hearing on the issue of commutation or clemency where 
the strict rules of trial procedure are not followed. See

Opinion o f  the Suprem e Court o f F lorida



14a

article in Florida Bar Journal, Mar., 1964, entitled “ Mili­
tary Law,” by Capt. Rex H. Conrad, p. 138, as to court 
martial procedure.

Inasmuch as the appellant did not have a jury’s deter­
mination of the issue of a recommendation of mercy sep­
arate and distinct from his trial on the issue of guilt 
because our existing procedure did not permit him a two- 
stage jury consideration— and the thrust of his appeal is 
that he has been prejudiced as a result—I believe the 
sentence below should be vacated with direction that the 
trial court empanel a jury to consider as a distinct phase 
the question of whether or not a recommendation of mercy 
should be made in favor of the defendant.

I believe also that a trial judge has the power and duty 
to direct a new trial on the issue of a mercy recommenda­
tion for a defendant pursuant to Ch. 920, F.S., if he finds 
error was committed in the jury’s trial of the issue con­
cerning a recommendation of mercy in a rape case.

In addition, I would hold that an appeal should be al­
lowed a defendant from a jury’s refusal to recommend 
mercy in a rape case; that because of the requirements of 
due process (including the necessity of avoiding arbitrari­
ness, unequal application and abuse of discretion) the 
appellate court should exercise the duty to review the find­
ing of the jury on the issue of a mercy recommendation 
pursuant to §59.34, F.S., which reads as follows:

“ Judgment; duty of appellate court in its determination 
of causes.— The court, on an appeal, shall examine the 
record, and reverse or affirm the judgment, sentence 
or decree of the court below; give such judgment, sen­
tence, or decree as the court below should have given; 
or otherwise as to it may appear according to law.” 
(Emphasis supplied.)

Opinion o f the Suprem e Court o f F lorida



15a

Thereunder it would be the duty of the appellate court to 
give such sentence as to it would seem warranted under 
the evidence and data submitted to meet the ends of justice 
if it appeared the jury had abused its discretion or other­
wise improperly or erroneously refused to recommend 
mercy.

Under the foregoing suggested judicial safeguards and 
procedures, I believe the constitutionality of §794.01, F.S., 
in respect to its operation can be sustained as against the 
several attacks made upon it by Appellant. The unreview­
ability of a non-recommendation of mercy in a guilty verdict 
mandatorily requiring a death penalty admittedly gives me 
concern. Abuse of discretion by the jury, its bias and 
prejudice—if any—undue restraints upon the admission of 
evidence and of information in the allocutionary showing 
of a defendant before the jury as to why the death penalty 
should not be imposed upon him, or other harmful unfair­
ness or unreasonableness amounting to a denial of due 
process of law in a jury’s determination whether the death 
penalty should be imposed in a rape case, all should be 
reviewable by the trial judge and appellate courts. Pro­
cedures and judicial review as indicated would go far to 
remove the constitutional objections raised by Appellant 
to the existing application of the statute. Ordinarily so 
broad an application of §59.34, F.S., is not permissible 
because the discretionary fixing of punishment within leg­
islative limits at the trial level is not subject to appellate 
modification. See Davis v. State (Fla.), 123 So. 2d 703, 
first headnote. But in this instance we are considering the 
effect of a jury’s determination affecting the extent of 
punishment to be imposed in a rape case which may, and 
often does include the mandatory death penalty. Under 
these circumstances and in view of the nature of the attack

Opinion o f the Suprem e Court o f F lorida



16a

upon the statute, I conclude due process requires that a 
jury’s determination not to recommend mercy, resulting in 
capital punishment, should be judicially reviewed and in 
such review the full and literal extent of the language of 
§59.34, F.S., should be given unrestricted application.

It is interesting to note that in certain jurisdictions 
statutes similar to §59.34, F.S., have been held to authorize 
appellate courts to exercise discretion in changing punish­
ments meted out by lower tribunals. See 5 Am. Jur. 2d, 
Appeal and Error, §§937 and 938. Also, Mitthauer v. Pat­
terson, 8 NY 2d 37, 201 NYS 2d 321, 167 N.E. 2d 731 (1960). 
See Nowling v. State, 151 Fla. 584, 10 So. 2d 130.

For the reasons set forth I believe the death sentence in 
the judgment of conviction below should be vacated with 
directions that the Circuit Court empanel a jury to retry 
the issue of a mercy recommendation only. If no recom­
mendation of mercy is made, then the death sentence should 
be reinstated.

The procedure suggested is in accord with Appellant’s 
motion in the trial court to reduce his death sentence pur­
suant to §921.24, F.S., and appears to me to be the only 
legal method by which there might possibly be any reduc­
tion of his sentence under the particular circumstances and 
law of this case.

Opinion o f the Suprem e Court o f  F lorida



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