In Re BakerAnnotate this Case
267 So. 2d 331 (1972)
In re Bernard R. BAKER, and Other Persons Similarly Situated (Now or Previously under Sentence of Death, but Not Resentenced).
Supreme Court of Florida.
September 26, 1972.
Rehearing Denied November 3, 1972.
Tobias Simon, Miami, for petitioner.
Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
We have under consideration an original petition for constitutional writ filed by Bernard R. Baker, previously convicted of murder and sentenced to death (Baker v. State, Fla., 202 So. 2d 563; Baker v. State, Fla., 241 So.2d 683). It is, further, a petition on behalf of a class of other persons similarly situated, who are now, or previously have been under sentence of death in this State, but who have not yet been re-sentenced. The Attorney General has filed a motion to dismiss the petition. This motion is denied and we now consider the merits of the petition.
Baker asserts that under the decision of the Supreme Court of the United States, in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the death sentences imposed upon persons in this State are illegal, and thereby void. This Court has itself never declared the death penalty unconstitutional, but has recognized and followed the decision of the United States Supreme Court in Furman v. Georgia, supra. See Donaldson v. Sack, Fla., 265 So. 2d 499 (opinion filed July 17, 1972) and Anderson v. State, Fla., 267 So. 2d 8 (opinion filed September 8, 1972). Baker's assertion that death sentences previously imposed are void is therefore correct.
On June 29, 1972, when Furman was decided, there were 100 persons under sentence *332 of death in Florida. Since their death sentences were then voided, it became necessary for the courts to arrange for, and impose, legal and appropriate sentences upon them.
At that time, forty of these persons had cases pending before this Court. The Attorney General filed a motion on July 24, 1972, requesting this Court to relinquish jurisdiction in those cases to the respective circuit courts for the purpose of re-sentencing under Rule 3.800 F.R.P., 33 F.S.A. Our decision, however, for reasons set forth at length in Anderson, supra, was for this Court to correct the illegal death sentences and as to the 27 persons convicted of murder this Court imposed a sentence of "confinement in the State prison for the term of his natural life." Only the 13 persons in that group, convicted of rape, were remanded to the circuit courts for resentencing. This was because each of those persons, if his crime was committed prior to January 1, 1972, is entitled to a hearing prior to re-sentencing; and may be sentenced to imprisonment to life or for any term of years within the discretion of the Court. F.S. § 794.01 (1969), F.S.A.
*333 There were an additional 60 persons convicted of both murder and rape under sentences of death at the time Furman was decided. Their cause was before the United *334 States District Court (M.D.Fla.) sub nom. Adderly v. Wainwright, 46 F.R.D. 97. On August 1, 1972, that Court vacated the death sentences and remanded each of the 60 persons to his respective circuit court for re-sentencing.
According to the petitioner, neither he nor all other persons will be re-sentenced prior to October 1, 1972. Petitioner requests that he, and the entire class be re-sentenced prior to that date so as to avoid the operation of Ch. 72-118, which requires sentences re-imposed after that date to be life terms without benefit of parole.
What petitioner requests is that this Court (rather than the circuit courts) impose life sentences on convicted murderers and indeterminate sentences of time served to life imprisonment on convicted rapists; and as to the latter, and following this sentencing, remand them to the circuit courts for the discretionary sentencing procedure to which our statutes (until January 1, 1972) entitled them. The circuit courts would then decide the term of imprisonment to be imposed.
As stated in Anderson v. State, supra:"We are aware of the many problems involved, when it is necessary to transport a large number of convicted murderers from the State prison to the trial court for the purpose of sentence. The safety of the law-abiding citizen is a matter of paramount concern to the Court. Also, many hours of manpower would be consumed by law enforcement officers in transporting the prisoners. Some local jail facilities are crowded and inadequate. Since the death sentence has been outlawed, there is a greater possibility of murder for the sake of escape, particularly when the penalty to be imposed for the taking of an additional human life can be no greater than that previously imposed by the Court. The above factors are sufficient to create an exception to Rule 3.180, F.R.Cr.P., requiring the presence of the defendants at sentencing. Their absence deprives them of no rights."
We have already granted this requested relief to 27 members of the class of persons under sentence of death. There appears to be no reason why the remaining members of the class need be treated differently. To do so would create a class statutorily denied parole, while facing life terms in prison. The uniqueness of this position would foster litigation attacking both *335 the facial validity of the Statute (C. 72-118) and its selective application to an indistinguishable few a seeming denial of equal protection.
Under these circumstances, it is clearly to the best interest of the public that this Court impose sentences upon the class of petitioners as follows:
1. All of the members of the class of persons under sentence of death who have been convicted of murder are hereby sentenced to life imprisonment.
2. All of the members of the class of persons under sentence of death who have been convicted or rape are hereby sentenced to life imprisonment. The cases of these persons, however, are remanded to their respective circuit courts for the sole purpose of further consideration of this sentence, and each of such persons may, within 90 days from this date, file a motion with the trial court for mitigation of sentence. If such a motion is filed by any person, a hearing thereon may thereafter be held under F.R.P. Rule 3.780 to determine first the date of the crime for which the defendant stands convicted. If committed after January 1, 1972, the life sentence shall not be mitigated. See Anderson v. State, supra. If committed prior to January 1, 1972, the Court may conduct a hearing under Rule 3.780, F.R.P., for the purpose of inquiring into all factors relevant to sentencing and shall then resentence such person to a term of life imprisonment or a term of years, in the discretion of the court. The defendant has the right to be present at any such hearing and the right to retain counsel, or have counsel appointed if indigent. These rights may be waived in writing by a defendant.
3. Defendants in both categories, who have been convicted of two or more crimes in one or more counties, are hereby resentenced in accordance with the foregoing for each of such crimes.
The sentence of life imprisonment hereby imposed shall remain in full force and effect, and the defendant shall be held in custody under such sentences unless subsequently mitigated in accordance with the procedure set forth herein.
The Clerk of this Court shall furnish a certified copy of this order to the Clerks of the Circuit Courts in which each of the above-named defendants was convicted. If a defendant has not previously been resentenced, the Clerk of the Circuit Court in which he was convicted shall thereupon issue a commitment in each case based upon his sentence of life imprisonment and shall forward the commitment to the Division of Corrections. In the event the life imprisonment of a defendant charged with rape is mitigated by the trial court to a term of years, the Clerk of said Circuit Court shall thereupon issue an amended commitment reflecting the mitigated sentence and shall forward the amended commitment to the Division of Corrections.
Petitioner, Bernard R. Baker, who was convicted of murder in the first degree without recommendation of mercy, is controlled by our decision in Anderson v. State, supra. His sentence is corrected so as to provide that he shall be imprisoned by confinement in the State prison for life and an amended commitment shall be issued by the Clerk of the Circuit Court of Indian River County reflecting this sentence.
Many of the persons formerly under death sentence have already been resentenced by their respective circuit courts. For these persons, and to the extent that they have been resentenced in accordance with the procedures outlined herein, this order is inapplicable. It is, however, the purpose of the Court by this order to conclude the resentencing of all other persons in the class. All that remains to be accomplished are the hearings on behalf of persons who may move for a mitigation of their sentence by the trial court. These motions must be filed with the trial court within 90 days from this date, and they may thereafter be heard by the trial court within a reasonable time.
It is so ordered.
*336 ROBERTS, C.J., and ERVIN, CARLTON and BOYD, JJ., concur.
DEKLE, J., dissents.
DEKLE, Justice (dissenting):
I respectfully dissent.
The orderly processes of resentencing should not be interdicted by precipitous action of this Court. The matter should be left to proceed in due course. This opinion seems to lend itself to an apparent effort to nullify in advance the Legislature's action by Ch. 72-118 to restrict such resentencing.
The matter of sentencing (other than that which is simply automatic, in effect, as in Anderson, supra) is generally for a trial court, which should be left unfettered in the exercise of its function.NOTES
 RACE OFFENSE SENTENCED COUNTY ANDERSON, Earnest Eugene CM Murder 10-19-71 Dade BARLOW, David Edward WM Murder 6-29-71 Franklin BAULDREE, John Phillip WM Murder 3-05-71 Orange BISHOP, Sylvian Dale WM Murder 5-14-71 Indian River BOATWRIGHT, Kenneth L. CM Murder 1-31-72 Pinellas COBB, Charles Elwood CM Murder 10-26-70 Dade COON, Douglas Dwight CM Murder 10-12-71 Leon DEMPS, Bennie Eddie CM Murder 7-02-71 St. Johns EVANS, Lawrence Dean CM Murder 10-26-70 Dade FORWARD, James E. CM Murder 5-24-72 Bay FOWLER, Jerry Dwayne WM Murder 7-23-70 Pinellas FUSSELL, James CM Murder 4-21-72 Leon GUICE, Marvin Louis CM Murder 6-07-71 Lake HALL, Roger L. WM Murder 6-09-72 Hillsborough HARKELROAD, James Wesley WM Murder 5-27-71 Hillsborough HIGGS, Macon, Jr. CM Murder 2-23-71 Broward JOHNSON, Richard M., Jr. WM Murder 12-07-71 Orange JONES, Wayne WM Murder 12-18-69 Manatee KEATON, Dave Roby CM Murder 5-11-71 Leon PAULK, Roy Carroll WM Murder 3-22-72 Orange PRESSLEY, Nathaniel CM Murder 10-26-70 Dade PYE, Benjamin Franklin CM Murder 10-12-71 Leon REED, Craig V. WM Murder 6-05-70 Broward REED, Gene R. WM Murder 6-05-70 Broward RESNICK, Errol WM Murder 10-28-71 Pinellas VAILLANCOURT, Paul Arthur WM Murder 4-14-72 Citrus WARRICK, Samuel Wade CM Murder 12-03-71 Palm Beach
 RACE OFFENSE SENTENCED COUNTY BERNOVICH, Dennis WM Rape 9-24-71 Seminole BLACKWELL, Thomas Henry CM Rape 1-07-72 Escambia BYRD, Robert Lee CM Rape 5-26-71 Seminole CHANEY, Cornelius Lewis CM Rape 2-19-70 Bay CORRIEA, Raymond Robert WM Rape 6-29-71 Broward GORHAM, Douglas WM Rape 6-08-72 Hillsborough ASHFORD, Willie CM Rape 11-3-70 Lake HORTON, Leslie D. WM Rape 10-18-71 Hillsborough HOUSE, Anthony Wayne WM Rape 5-19-72 Franklin HOUSE, Herbert Eugene, Jr. WM Rape 5-19-72 Franklin McDOLE, James Steddo CM Rape 1-07-72 Escambia ROSEMAN, Andrew James CM Rape 10-22-71 Broward WARREN, Robert CM Rape 10-29-70 Pinellas
 RACE OFFENSE SENTENCED COUNTY ADDERLY, John A. CM Murder 7-24-61 Broward ALLEN, Thomas CM Murder 2-11-64 Columbia ANDERSON, Alvin Eugene CM Rape 5-20-69 Marion ASHLEY, Henry Thomas WM Murder 12-11-70 Pasco BAKER, Bernard R. WM Murder 4-18-66 Indian River BAKER, Rudolph CM Murder 5-11-67 Lee BAXTER, John Alvin WM Murder 6-02-72 Broward BOYKIN, Willie James CM Murder 4-03-70 Duval BROWN, Bill, Jr. CM Murder 10-03-69 Leon BRYANT, Bobby CM Murder 5-27-69 Dade CAMPBELL, Calvin Carlos WM Murder 5-11-66 Union CARSWELL, Henry J. CM Murder 12-28-61 Palm Beach CHATMAN, James S. CM Murder 1-20-66 Lake CIRACK, Charles Alexander WM Murder 3-28-66 Volusia CLOWERS, Joe Nathan CM Murder 10-17-69 Dade COLLINS, James E. CM Rape 10-20-64 Duval CRAIG, William Benjamin CM Rape 6-27-63 Leon DALTON, Charles O., Jr. WM Murder 4-18-66 Indian River DRUMWRIGHT, Jimmie Lee CM Rape 8-23-65 Seminole FIELDS, Bobby CM Rape 12-16-70 Marion GILLEY, Israel CM Rape 8-23-65 Seminole ARRINGTON, Marie CF Murder 12-6-68 Hernando GRANT, Daniel CM Murder 12-19-61 Dade GRIMES, Nathaniel, Jr. CM Murder 10-03-69 Leon HARDIE, Jackie CM Murder 7-02-71 St. Johns HAWKINS, Charles C. CM Murder 3-13-66 Marion HENNINGER, John WM Murder 5-16-69 Dade HOLSTON, Leon C. CM Murder 9-29-66 Broward JOHNSON, Cleveland Lee CM Murder 1-16-70 Pinellas LAND, James Matthew WM Murder 5-18-62 Duval LEE, Wilbert CM Murder 3-15-72 Jackson McCLENDON, Eddie Thomas CM Rape 12-16-65 Palm Beach NEWMAN, Richard Carter CM Rape 12-16-65 Palm Beach PARAMORE, Emmett J. CM Murder 3-01-68 Dade PERKINS, Cecil CM Rape 1-31-68 Gadsden PITTS, Freddie Lee CM Murder 3-15-72 Jackson PLEAS, Wallace CM Murder 3-09-65 Leon PORTEE, Larry CM Rape 10-10-69 Dade PORTER, Willie CM Murder 5-18-62 Martin RICHARDSON, James Joseph CM Murder 5-31-68 Lee RILEY, John WM Murder 4-29-70 Escambia RIVERS, Willie CM Murder 2-13-68 Alachua ROBERTS, John Henry CM Murder 7-24-61 Broward PASCHAL, Albert CM Murder 1-2-70 Duval SCHNEBLE, Donald Felix WM Murder 12-31-65 Walton SCHNEIDER, Raymond A. WM Murder 3-16-62 Palm Beach SIMMONS, Joseph Nathaniel CM Rape 5-08-72 Pinellas SIMON, Harold CM Murder 10-27-60 Duval THOMAS, Calvin W. CM Murder 10-27-60 Duval THOMAS, Ellis, Jr. CM Rape 1-21-63 Highlands THOMAS, John D. CM Murder 5-16-67 Leon THOMPSON, Albert Bone CM Rape 4-14-69 Polk VAN EATON, Richard CM Murder 2-16-67 Pinellas WASLEY, Richard Lee WM Murder 6-11-69 Pinellas WHITNEY, Dennis M. WM Murder 6-11-60 Dade WILLIAMS, Edward CM Murder 2-14-68 Martin WILLIAMS, John G. WM Rape 10-30-69 Pinellas WILSON, Fulton Lewis T. CM Murder 9-11-67 Alachua WILSON, Willie Pinkney CM Murder 9-11-67 Alachua YOUNG, Willie CM Murder 10-27-60 Duval
 The Petitioner asserts that the Attorney General, the several circuit judges, State attorneys, public defenders have all shown great concern and have worked hard and cooperatively to achieve these re-sentencings in a speedy manner, thereby avoiding unnecessary litigation as to the validity of C. 72-118.
Unfortunately, the logistics of moving this number of convicted men from their central location on Death Row, scheduling hearings, locating counsel, etc., have stymied the best of motives and efforts of the judges and law enforcement officers and prison officials of this state. As of this date, an unidentifiable number of men have, in fact, been re-sentenced; but an unknown number of men have not yet left prison, and there is no information as yet available as to the fate of the balance of persons.
Moreover, thirteen persons convicted of rape, whose death sentences were vacated by the Supreme Court of Florida in Anderson, supra, have not even as yet been moved from prison to the respective circuit courts for re-sentencing. Our experience indicates grave doubts that they can be re-sentenced before October 1, 1972, since they will be adding to the problems of the courts and law enforcement officers who have not as yet re-sentenced all of the fifty-seven men whose sentences were vacated in Adderly.
To allow this burdensome situation to fester into great constitutional litigation when all concerned have worked hard to avoid such a confrontation seems pointless. Moreover, since the Supreme Court of Florida has already acted with dispatch on behalf of a number of these persons, it would be a denial of equal protection of the laws and due process of law to deny similar relief to all persons whose death sentences have been vacated, but who have not yet been re-sentenced to a term of years or life imprisonment, as the case may be.
He asserts further a different reason for his own inability to be re-sentenced namely his post-sentence adjudication of insanity.