Barclay v. State

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362 So. 2d 657 (1978)

Elwood Clark BARCLAY and Jacob John Dougan, Jr., Appellants, v. STATE of Florida, Appellee.

No. 47260.

Supreme Court of Florida.

September 7, 1978.

Certiorari Denied October 10, 1978.

Ernest D. Jackson, Sr., Releford McGriff, Jacksonville, for appellants.

Wallace E. Allbritton, Tallahassee, for appellee.

Certiorari Denied October 10, 1978. See 99 S. Ct. 249.



The judge who sentenced Elwood Barclay and Jacob Dougan to death for the murder of Anthony Orlando has responded to the order[1] providing for a uniform means of determining Gardner[2] relief. In his response he states that the sentences of death were not imposed on appellants based on any information unknown to them and that, prior to sentencing, the defense was provided copies of the presentence investigation reports prepared in the case by the Probation *658 and Parole Commission. It does not appear clearly from the response or the record, however, precisely when the reports were released to the defense and whether it had a meaningful opportunity to be heard on any of the matter in either report.

To assure that the sentencing procedure in this case satisfies the constitutional command of the Due Process Clause,[3] the death sentences are vacated and the cause is remanded to the trial court. The court is directed to provide a hearing at which the defense has the opportunity to rebut any of the information contained in the presentence investigation reports, whether in the confidential portion of the report or any other part. This direction, of course, requires that the defense have access to the reports-in-full with sufficient time before the hearing to prepare rebuttal. Following the hearing the court is to impose sentences. If death is imposed as to either appellant there will be available in this Court review, limited to matters related to compliance with this order.

Accordingly, the death sentences are vacated and the case is remanded to the Circuit Court, in and for Duval County, with directions to conduct the proceeding outlined in this order.

It is so ordered.


ADKINS, J., dissents.


[1] The order was issued May 6, 1977.

[2] See Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).

[3] 14th Amendment, U.S. Constitution. See Gardner, above.

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