author: BOYD, Chief Justice. McDONALD, Justice, OVERTON, J.,

text:
    Edward Clifford THOMAS, Appellant, v. STATE, of Florida, Appellee.
    No. 61170.
    Supreme Court of Florida.
    Sept. 13, 1984.

      Sheldon Golding, Sp. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Chief Justice.

This cause is before the Court on appeal from a judgment of conviction for two counts of murder in the first degree. For one of the counts of first-degree murder the trial court sentenced appellant to death. Appellant is entitled to appeal both convic- ’ tions and the sentence of death, and this Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant Edward Clifford Thomas stands convicted of the premeditated murders of James Walsworth, an elementary school principal, and Russell Bettis. On the night of December 2, 1980, James Walsworth’s body was found lying beside his car in a parking lot. He had been stabbed in the chest. The next morning Russell Bettis was discovered lying unconscious in an alley near the parking lot. Bettis had been severely beaten. He never regained consciousness and died several months later. Appellant was sentenced to life imprisonment for the murder of Wals-worth and to death for the murder of Bet-tis. For the reasons that follow, we affirm the convictions and the sentence of death.

A few days after the discovery of the Walsworth homicide, the police received a call from a citizen informant who said that appellant Thomas had killed the school principal and attacked Bettis, and told the police where Thomas worked. On December 8, 1980, several detectives went to appellant’s place of work and asked him to accompany them to their offices for questioning. Appellant agreed and on the way to the police station said, “I know what this is all about. I beat up Russell, but I didn't kill the principal.” At police headquarters, the officers advised appellant of his constitutional rights and appellant signed a form giving his consent to be questioned.

At first appellant told the police that he had been in a fight with Bettis several weeks prior to when the injured Bettis was found. Then he admitted giving Bettis a beating on the night of December 2. The officers had him repeat his statement and they recorded it on tape. After a short interval, the officers again advised appellant of his rights and he again agreed to be questioned. This time they asked him about the murder of Walsworth. At first appellant denied knowing anything about it, but later admitted that he killed Wals-worth. After questioning appellant about the details, the police took the second confession in tape-recorded form.

Appellant was initially charged with first-degree murder for the killing of Wals-worth and the attempted murder of Bettis. After Bettis died, however, the latter charge was amended so as to charge a second count of murder in the first degree. In addition to his confessions, the evidence at trial included the testimony of two other persons — appellant’s father and the citizen who initially notified the police — who testified to incriminating admissions on the part of the appellant. The jury found appellant guilty of first-degree murder on both counts.

After the sentencing hearing, the jury recommended life sentences for both murders. The judge followed the recommendation with regard to the murder of Wals-worth but, finding additional aggravating circumstances associated with the subsequent murder of Bettis, imposed a sentence of death for the second murder.

Appellant contends that there is insufficient evidence to support his conviction for the premeditated murder of Russell Bettis; that the trial court erred in refusing to exclude appellant’s confessions from evidence; that the trial court erred in allowing testimony about blood found on appellant’s shirt; and that the trial judge made an improper and prejudicial comment concerning a defense witness. Appellant also contends that the sentence of death is improper and that the death penalty law is unconstitutional.

The evidence showed that Bettis was beaten, kicked, or bludgeoned so severely that his skull was fractured in many places. He was rendered unconscious and was not treated until he was discovered the next day. He remained comatose and over the next several months was treated by brain surgeons in a futile effort to save his life. On May 16, 1981, he died without ever having regained consciousness. Appellant contends that he may not be found guilty of premeditated murder since Bettis was still alive when appellant left him in the alley after beating him. Appellant’s contention is without merit. The evidence showed the nature of the injuries intentionally inflicted on Bettis. Whether the jury believed that appellant used a weapon or only his fists and feet, the evidence is clear in either event that appellant attacked Bet-tis with lethal force. The wounds inflicted resulted in death. Thus it was proper for the jury to presume that appellant intended the consequences of his actions. Buford v. State, 403 So.2d 943 (Fla.1981), cert, denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982); Rhodes v. State, 104 Fla. 520, 140 So. 309 (1932). Moreover, the detectives who testified concerning appellant’s statements said that appellant told them he had killed Bettis because Bettis had seen him kill Walsworth. If the jury believed this testimony, it could have concluded that appellant not only intended to kill Bettis but thought he had done so months before Bettis died.

Appellant contends that the trial judge should have excluded appellant’s statements to police as the product of coercion, confusion, and intoxication. A confession that is obtained by coercion may not be used in evidence. Brewer v. State, 386 So.2d 232 (Fla.1980). Techniques calculated to exert improper influence, to trick, or to delude the suspect as to his true position' will also result in the exclusion of self-incriminating statements thereby obtained. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Frazier v. State, 107 So.2d 16 (Fla.1958); Harrison v. State, 152 Fla. 86, 12 So.2d 307 (1943). To render a confession inadmissible, however, the delusion or confusion must be visited upon the suspect by his interrogators; if it originates from the suspect’s own apprehension, mental state, or lack of factual knowledge, it will not require suppression. See State v. Caballero, 396 So.2d 1210 (Fla. 3d DCA 1981); Ebert v. State, 140 So.2d 63 (Fla. 2d DCA 1962). Here there was no evidence of threats, promises, or other improper influences.

Appellant also says that because of his youth and his state of intoxication when questioned, he was incapable of validly waiving his rights and knowingly making voluntary incriminating statements. However, “this Court has recognized that youthful age, although a factor to be considered in determining the voluntariness of a statement, will not render inadmissible a confession which is shown to have been made voluntarily. State v. Francois, 197 So.2d 492 (Fla.1967).” Ross v. State, 386 So.2d 1191, 1195 (Fla.1980). Regarding intoxication, at the suppression hearing appellant and another witness testified that appellant got drunk before he was taken in for questioning. The detectives who questioned appellant testified that he did not appear intoxicated, that they advised him of his rights, that he intelligently waived those rights, and that he voluntarily gave the statements. The mere fact that a suspect was under the influence of alcohol when questioned does not render his statements inadmissible as involuntary. “The rule of law seems to be well settled that the drunken condition of an accused when making a confession, unless such drunkenness goes to the extent of mania, does not affect the admissibility in evidence of such confession, but may affect its weight and credibility with the jury.” Lindsey v. State, 66 Fla. 341, 343, 63 So. 832, 833 (1913). See generally Deconingh v. State, 433 So.2d 501 (Fla.1983); Reddish v. State, 167 So.2d 858 (Fla.1964); McCray v. State, 289 So.2d 765 (Fla. 3d DCA 1974). The trial judge found that the state had carried its burden of showing that appellant’s confessions were freely and voluntarily given. Appellant has failed to show that the trial judge’s determination was erroneous.

Appellant contends that it was error to admit his slightly bloodstained shirt into evidence because there was nothing to logically relate it to the murders. We find this position to be without merit. There was evidence that appellant wore the shirt on the night of the murder of Walsworth. The shirt was properly determined to be relevant and its probative value was for the jury to consider. The defense was allowed to bring out evidence of a study showing that a large portion of randomly selected clothing sent to laundries contains some blood.

Appellant contends that the trial judge uttered an improper and prejudicial remark about one of the defense witnesses within the hearing of the jury. The defense witness in question was an admitted homosexual prostitute whose testimony about typical amounts paid for sexual services of male prostitutes was intended to undermine the state’s evidence pertaining to the motive for the killing of one of the victims. After the witness had testified, the judge said, “Get him out of here.” Defense counsel immediately approached the bench, objected, and moved for a mistrial. The judge denied the motion on the ground that the tone and expression of the remark were such that it was not likely to have been interpreted as a comment on the credibility of the witness. The judge also instructed the jury to disregard his remark and not to interpret it as reflecting on the character or credibility of the witness. We conclude that the curative instruction was sufficient to correct any negative inference the jury may have drawn from the comment.' There is no basis for reversal on this point. Mayan v. State, 325 So.2d 442 (Fla. 3d DCA), cert, denied, 339 So.2d 1170 (Fla.1976); Rembert v. State, 311 So.2d 199 (Fla. 3d DCA 1975). Even though the judge admitted at the bench that he found the defense witness disgusting, the words, “Get him out of here,” may be seen as the judge’s way of ordering that the trial should proceed with the calling of the next witness. The judge must supervise the trial so that it proceeds in an orderly fashion. See Hamilton v. State, 366 So.2d 8 (Fla.1978).

The issue of the judge’s comment was again raised by motion for new trial. At the hearing on the motion for new trial, the court reporter testified concerning the tone and loudness of the judge’s utterance. Defense counsel moved for a continuance of the hearing on the ground that personal circumstances had rendered him unprepared. The judge refused to grant a continuance and denied the motion for new trial. Appellant argues that the denial of a continuance was reversible error. The hearing on the motion for new trial, however, was held approximately six weeks after the motion was filed. We conclude that the refusal to continue the motion hearing was not an abuse of discretion. Magill v. State, 386 So.2d 1188 (Fla.1980), cert, denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981).

Appellant’s arguments that the use of death penalty constitutes cruel or unusual punishment are not novel ones. In effect we are asked to reconsider past holdings. The legislature’s action prescribing capital punishment has been upheld and this Court is bound by those past decisions. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert, denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Regarding the sentence of death imposed in this case, appellant argues that it is improper because the jury recommended life imprisonment and the judge failed to give it adequate consideration and failed to properly weigh all the circumstances.

Pursuant to section 921.141, Florida Statutes (1979), the trial judge found as aggravating circumstances that appellant had been convicted of another capital felony (the murder of Walsworth), id. § 921.-141(5)(b); that the murder of Bettis was committed for the purpose of avoiding arrest or preventing prosecution for the murder of Walsworth, § 921.141(5)(e); that it was committed to disrupt or hinder the exercise of a governmental function, § 921.141(5)(g); that it was especially heinous, atrocious, or cruel, § 921.141(5)(h); and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, § 921.141(5)(i). The sentencing court found that these aggravating circumstances outweighed the two mitigating circumstances found to exist: that appellant had no significant record of prior criminal activity, § 921.141(6)(a), and that he was only twenty years of age at the time of the capital felony, § 921.141(6)(g).

Appellant argues and the state concedes that the court erred in giving separate consideration to the two statutory factors of avoidance of arrest and disruption or hindrance of a governmental function. We agree since the two aggravating circumstances are both based on the same essential feature of the capital felony. White v. State, 403 So.2d 331 (Fla.1981); Welty v. State, 402 So.2d 1159 (Fla.1981). Only one of these two statutory aggravating factors may be based on the evidence that appellant killed Bettis to prevent him from informing on or testifying against appellant. This error, however, does not necessarily require reversal of the sentence under our system of appellate review in capital cases.

Appellant does not argue that any of the remaining aggravating circumstances considered are invalid. We have reviewed the evidence and find them valid and proper for consideration.

Appellant contends that the sentencing court erred in sentencing him to death after receiving the verdict of the jury recommending a sentence of life imprisonment. He relies on this Court’s decision in Tedder v. State, 322 So.2d 908 (Fla.1975), where it was said: “A jury recommendation under our ... death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Id. at 910. In McCaskill v. State, 344 So.2d 1276 (Fla.1977), a case where the appellants’ liability for murder rested on the felony murder rule because there was no evidence that they had killed or shared in the intent to kill the victim, the Court interpreted Tedder to have held “that to sustain a sentence of death following a jury recommendation of life, the facts justifying a sentence of death must be clear and convincing.” 344 So.2d at 1280.

Although a jury recommendation of life in a capital case is to be given great weight, “the ultimate decision as to whether the death penalty should be imposed rests with the trial judge.” Hoy v. State, 353 So.2d 826, 832 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978). The sentence of death in such a situation will be upheld if the facts “supporting the sentence of death are clear and convincing.” Id. at 833.

On numerous occasions this Court has upheld death sentences imposed following jury recommendations of life where there were several aggravating circumstances, the judge properly found no mitigating circumstances, and where generally from the “totality of the circumstances” it was believed that the jury override was proper. See, e.g., Johnson v. State, 393 So.2d 1069, 1074 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976).

Where there are one or more aggravating circumstances and the trial judge has found no mitigating circumstances sufficient to outweight the aggravating circumstances, application of the Tedder rule calls for inquiry into whether there was some reasonable ground for a life sentence that might have influenced the jury to make such a recommendation. Where the jury recommendation is not based on some “valid mitigating factor discernible from the record,” the Tedder standard for a jury override is met. Lusk v. State, 446 So.2d 1038, 1043 (Fla.1984); Stevens v. State, 419 So.2d 1058, 1065 (Fla.1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). Where a sentence of death is otherwise appropriate and it appears that some matter not reasonably related to a valid ground of mitigation has swayed the jury to recommend life, such as through emotional appeal, prejudice, or some similar impact, it is proper for the judge to overrule the jury’s recommendation. See Porter v. State, 429 So.2d 293 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).

Here there were several aggravating circumstances and the trial judge determined that they were not outweighed by the mitigating circumstances found to exist. Other than the two statutory mitigating circumstances which the trial judge found were entitled to little weight, there does not appear to be any reasonable basis discernible from the record to support the jury’s recommendation. The fact that the first victim may have been a homosexual and that he may have used the services of appellant as a prostitute, even if it were a valid basis for mitigating the first murder, which we do not hold, is clearly not a valid basis for mitigating the seriousness of the second murder. It was the second murder, which the evidence showed was committed because the victim had witnessed the first murder, that was deemed by the trial court to merit a sentence of death. See Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (fact that victims were armed dealers in illegal drugs was not a valid ground of mitigation supporting life recommendation). We therefore hold that the trial judge met the Tedder standard in sentencing appellant to death.

The proven and properly considered aggravating circumstances are: (1) the previous murder of Walsworth; (2) that the murder of Bettis was committed to eliminate him as a possible witness to the murder of Walsworth; (3) that the method of the murder of Bettis rendered it especially heinous, atrocious, or cruel; and (4) that the murder was committed in a cold, calculated and premeditated manner without pretense of legal or moral justification. We conclude that the sentencing judge could properly determine that these factors outweighed the mitigating circumstances found even in view of the jury’s recommendation of a life sentence. The sentence of death represents a reasoned judgment based on the circumstances of the capital felony and the character of the offender after giving due consideration to the recommendation of the jury.

We affirm the judgments of conviction for two first-degree murders. We affirm the sentence of death.

It is so ordered.

ADKINS, ALDERMAN and EHRLICH, JJ., concur.

McDONALD, J., concurs on conviction, dissents on sentence with an opinion, in which OVERTON, J., concurs.

OVERTON, J., dissents with an opinion.

McDONALD, Justice,

concurring on conviction, dissenting on sentence.

I concur with the affirmance of conviction but dissent to the imposition of the death penalty. The jury recommended life. Juries reflect the conscience of the community. Twelve people, all from different walks of life but representing a community’s views, after being instructed on the matters that they should consider, have exercised their discretion to recommend life imprisonment on two counts of homicide. The trial judge has rejected their recommendations and imposed death. Why? The answer is not apparent.

I suggest that the collective judgment of the jury should prevail unless the trial judge, and we likewise on review, can find that there is no rational basis for a life sentence — not that the sentencing judge simply disagrees with the jury’s recommendations. Many intangibles enter the recommendation of life over death, and I feel that when a jury makes such a recommendation it assuredly should be followed, excepting in only the most extreme and clear circumstances. The United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), sought to eliminate the arbitrary imposition of the death penalty. It expected judges to preclude the passionate imposition of the death penalty by juries infected with visceral reactions to the crime, or in response to the clamor of the vociferous. These factors were to be replaced with guided discretion. That Court, I submit, did not envision judges frequently imposing death sentences when juries recommend life. The prediction of the Supreme Court that Florida would have more uniformity in the imposition of the death penalty if the final decision is left in the hands of the judge is likely true. However, that result seemingly is being attained in part by trial judges imposing death in numerous instances where the jury has recommended life rather than imposing life when the jury suggests death. I question whether that was contemplated or intended.

In this case it cannot be said, notwithstanding the grossness of this defendant’s acts, that death is the only proper sentence. The trial judge should have accepted the jury’s recommendations and imposed life sentences. Since he did not, we should direct him to do so.

OVERTON, J., concurs.

OVERTON, J.,

dissenting.

I concur with the dissent of Justice McDonald. I find that the unanimous jury recommendation of a life sentence was not unreasonable under the total circumstances of this case. I respect the jurors, who heard the evidence and saw the witnesses. The majority fails to properly apply Tedder and McCaskill and appears to have granted unlimited life and death power to the trial judge, at least in this cause.


source: Caselaw Access Project

author: McDonald, justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Stan Jerome RIVERS, Respondent.
    No. 63145.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Jim Smith, Atty. Gen., and Sharon Lee Stedman and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   McDonald, justice.

The opinion of the district court of appeal, Rivers v. State, 423 So.2d 444 (Fla. 4th DCA 1982), is quashed on the authority of State v. Page, 449 So.2d 813 (Fla.1984). However, because on remand Rivers pled guilty to the charge, was sentenced, and has now served that sentence, no further proceedings are proper.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.


author: SHAW, Justice.

text:
    Jeffrey K. SMITH, Petitioner, v. George P. RUSSELL, Respondent.
    No. 64086.
    Supreme Court of Florida.
    Sept. 13, 1984.

      Joseph M. Ciarciaglino, Jr. and Robert L. Paver of Osborne & Ciarciaglino, St. Pe-tersburg, for petitioner
    Elihu H. Berman of Krug, Berman & Silverman, Clearwater, for respondent
    Parker D. Thomson, Sanford L. Bohrer and Gary B. Pruitt of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, and Richard J. Ovelmen, General Counsel, Miami, amicus curiae for The Miami Herald Publishing Company.
   SHAW, Justice.

This cause, Russell v. Smith, 434 So.2d 342 (Fla. 2d DCA 1983), is before us as conflicting with other decisions of the district courts of appeal. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Respondent Russell, the defendant, was arrested for driving while intoxicated (DWI) by petitioner/plaintiff Smith, a City of St. Petersburg police officer. At the time of his arrest and later to the judge when he pleaded nolo contendere to the DWI charge, the defendant complained about the arrest procedure and the plaintiffs use of unnecessary force. Both the judge and the plaintiff suggested to the defendant that he register a complaint with the chief of police.

The defendant wrote three letters detailing his complaints about the plaintiff, one or more of which were sent to the police chief, the traffic court judge, the plaintiff, defendant’s attorney, and Judge Shingler, a friend of the defendant. The plaintiff subsequently was passed over for promotion and sued the defendant for defamation.

At trial the defendant requested jury instructions that the plaintiff, as a police officer, was a public official as a matter of law, and that criticism of a public official relating to his official conduct was actionable only upon a showing of actual malice under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The trial court refused, but did instruct the jury to consider the applicability of a privilege under the common interest doctrine (the conditional privilege enjoyed by one with an interest or duty regarding the subject matter to comment to another with a corresponding interest or duty). See, e.g., Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978). The jury found for the plaintiff, awarding compensatory and punitive damages.

The defendant appealed, claiming the trial court erred in refusing to instruct the jury on the qualified privilege to criticize a public official. The district court reversed on the basis that a policeman is a public official who in order to recover for defamation must establish that a defamatory communication about him was made with actual malice or reckless disregard for the truth.

The plaintiff argues that refusal to instruct on the public official privilege was harmless error in that a finding of malice was implicit in the jury’s punitive damage award; thus, even had the public official instruction been given, the jury’s finding of malice would have defeated the privilege. The district court disagreed, finding that “[t]he ‘common interest’ instruction left the jury free to consider the case as if no qualified privilege existed, whereas the ‘public official’ instruction would have bound the jury to give consideration to a qualified privilege.” Smith, 434 So.2d at 344. We approve the district court’s decision. A police officer qualifies as a public official as defined in Rosenblatt v. Baer, 383 U.S. 75, 85-86, 86 S.Ct. 669, 675-676, 15 L.Ed.2d 597 (1966):

Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very-least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
... Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance all government employees, ... the New York Times malice standards apply. (Footnotes omitted.)

The plaintiff is a highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power. There are probably no public employees more recognizable than armed uniformed police officers. Most citizens are interested in the qualifications and performance of policemen beyond their general interest in the qualifications and performance of all government employees.

The refusal to give the requested instruction in this instance was not harmless error because the applicable New York Times standard allows public figures or public officials to recover for injury to reputation only upon clear and convincing proof of actual malice. See Bose Corp. v. Consumers Union of United States, Inc., — U.S. —, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Under the proper instruction to which the defendant was entitled, the jury might well have found that there was no showing of malice sufficient to overcome the privilege.

The decision under review is approved.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    Jack C. VANDERGRIFF, Petitioner, v. Wallyce V. VANDERGRIFF, Respondent.
    No. 64514.
    Supreme Court of Florida.
    Sept. 13, 1984.

      David H. Levin and Richard E. Scherling of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for petitioner.
    John L. Myrick of Kinsey, Myrick, Troxel & Johnson, Pensacola, for respondent.
   SHAW, Justice.

This is a petition to review Vandergriff v. Vandergriff, 438 So.2d 452 (Fla. 1st DCA 1983) on the ground of conflict with various decisions of this Court and other district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This cause presents the issue of whether the district court applied the correct standard of review in reversing the judgment of the trial court in a dissolution action. We hold that it did not.

In its judgment dissolving the Vander-griff marriage, the trial court ordered, inter alia, that petitioner husband pay respondent wife $300 per month rehabilitative alimony for a period of three years, and pay child support of $180 per month and private school tuition for a minor child of fifteen years of age until the child reached her majority, died, or married. The respondent was granted ownership of a car and exclusive use of the unencumbered family home until the minor child reached her majority or the respondent died or remarried. Petitioner was granted ownership of a truck and was ordered to accomplish certain repairs of the family home, and to pay real estate taxes on the family home and adjacent lot. Petitioner was to receive credit for sums expended repairing the family home and paying real estate taxes. The evidence showed that the respondent was a college graduate, had not worked at gainful employment for some twenty-six years, but was active in family, community and personal interests, suffered from some medical ills arising primarily from the strains of the dissolution proceedings, and did not desire employment, preferring that petitioner support her. The total income of the parties, approximately $3,300 per month, comes from petitioner’s employment. The parties had been married for thirty-two years and had two adult daughters, both college graduates, who lived at home with respondent, along with respondent’s mother who had lived with the family for over twenty years.

On appeal, the district court reversed the award of $300 per month in rehabilitative alimony and remanded with directions that the award be designated as permanent alimony and increased to reflect the needs of respondent and the ability of petitioner to pay. All three judges agreed that the sum of alimony was inadequate, but split three ways as to whether it was error to award rehabilitative instead of permanent alimony. Writing for the court, Judge Shivers held it was error not to award permanent alimony; Judge Robert Smith saw no error, per se, in awarding rehabilitative alimony; and Judge Nim-mons opined that it was error but only because the trial judge failed to support the decision with factual findings. The case thus comes to us in the posture of having been examined by four judges, all of whom disagree in whole or part with each other. The parties have dutifully presented us with various legal theories and facts based on which we could render additional opinions as to the equities and legal rights of the parties. We will not regurgitate the guidance we have previously issued in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and its progeny or conduct a de novo review of the evidence. We will, instead, confine ourselves to the controlling legal issue of whether the district court applied the correct standard of review. First, as Canakaris makes clear, the standard of review is whether the trial judge abused his discretion and the test is whether any reasonable person would take the view adopted by the trial judge. We are not prepared to say as a matter of law that respondents, such as here, are entitled to permanent, as opposed to rehabilitative, alimony; nor are we prepared to say that it was unreasonable to award rehabilitative alimony, and reserve jurisdiction, as a method of encouraging respondent to seek employment. To the extent that the district court decision below suggests otherwise, we disapprove the decision. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). At the same time, however, we agree with the court below that the award of $300 per month was facially inadequate in view of petitioner’s monthly income of $3,300 per month. We are not prepared to hold, as Judge Nimmons apparently would, that trial judges must support their decisions with factual findings. This would be contrary to the well established rule that trial court decisions are presumptively valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous. 3 Fla.Jur.2d Appellate Review § 296 (1978). Petitioner’s effort to supply the missing reasons are unpersuasive and would necessitate our conducting a de novo review of the various factors on which the trial court might have grounded its decision.

In view of our disposition of the case, we decline to address the non-dispositive points raised by the parties.

In summary, we disapprove and quash the portion of the district court decision holding that it was error to grant rehabilitative alimony and ordering that permanent alimony be granted. We approve the remainder of the decision. We note that the judgment is now eighteen months old and that one-half of the three-year period of rehabilitative alimony has elapsed. Under the circumstances, we remand with directions that the trial court revisit the adequacy of the $300 per month rehabilitative alimony award and enter such order as the trial judge deems appropriate. In addition, as pointed out by the district court below, the trial court should also address the status of the Telco savings account.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


author: PER CURIAM. OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. James Dupree HENRY, Respondent. James Dupree HENRY, Petitioner, v. Louie L. WAINWRIGHT, Respondent. James Dupree HENRY, Petitioner, v. STATE of Florida, Respondent.
    Nos. 65866, 65874 to 65876.
    Supreme Court of Florida.
    Sept. 17, 1984.

      Jim Smith, Atty. Gen., George R. Geor-gieff, Asst. Deputy Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for petitioner/respondent.
    Richard L. Jorandby, Public Defender; Craig S. Barnard, Chief Asst. Public Defender; Richard H. Burr III, West Palm Beach, of Counsel; and Michael A. Mello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent/petitioner.
   PER CURIAM.

We have before us the state’s motion to vacate the stay of execution entered September 13, 1984, in the case of James DuPree Henry v. State, by the Honorable Michael F. Cycmanick, Circuit Judge for the Ninth Judicial Circuit of Florida. Additionally, Henry has filed two petitions for writ of habeas corpus and an application for leave to file a petition for writ of error coram nobis. Jurisdiction is vested in this Court pursuant to article V, sections 3(b)(1), (7) and (9), Florida Constitution. We deny the petitions for writ of habeas corpus and the application for leave to file a petition for writ of error coram nobis. The state’s motion to vacate the stay of execution is granted.

Henry was convicted of first degree murder in 1974. The jury recommended and the judge imposed a sentence of death. Both the conviction and the sentence were affirmed on direct appeal. Henry v. State, 328 So.2d 430 (Fla.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). Subsequently, Henry sought collateral review pursuant to Florida Rule of Criminal Procedure 3.850, claiming inter alia, ineffective assistance of counsel and unconstitutional application of the death penalty based on a disproportionate incidence of death sentences imposed in Orange'County, Florida. The trial court denied relief and this Court affirmed. Henry v. State, 377 So.2d 692 (Fla.1979).

Henry then sought relief in the federal courts. The United States District Court for the Middle District of Florida granted a petition for habeas corpus unless Henry was afforded a new sentencing proceeding. The United States Court of Appeals for the Fifth Circuit affirmed, holding that an erroneous jury instruction which allowed the jury to consider a non-statutory aggravating factor could not be harmless error. Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), vacated, 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982). The United States Supreme Court vacated the decision and remanded for consideration of whether failure to comply with state procedural requirements barred federal review on the merits. On remand, the Fifth Circuit found that all state procedural requirements had been met and again affirmed the district court. Henry v. Wainwright, 686 F.2d 311 (5th Cir.1982), vacated, — U.S. —, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983). Again the United States Supreme Court vacated and remanded, this time for reconsideration of the harmless error issue in light of Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). On remand, the Fifth Circuit reversed the district court finding no viable, claim for federal relief on any of the issues raised. Henry v. Wainwright, 721 F.2d 990 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

I

Motion to Vacate Stay Case No. 65,866

In entering the order staying the execution, the trial court relied on Henry’s claim that racial bias affected his sentence and found that the claim was not procedurally barred because the statistical evidence on which Henry based the claim had not been available at the time of the earlier rule 3.850 proceeding. This Court encourages holding evidentiary hearings whenever a colorable issue is raised under rule 3.850. Nonetheless, we find the claim to be only a variation on a theme we have rejected frequently and quite recently. State v. Washington, 453 So.2d 389 (Fla.1984); Jackson v. State, 452 So.2d 533 (Fla.1984); Ford v. Wainwright, 451 So.2d 471 (Fla.1984); Adams v. State, 449 So.2d 819 (Fla.1984); Sullivan v. State, 441 So.2d 609 (Fla.1983). On these facts, there is no theory upon which Henry may proceed which would entitle him to relief. Therefore the motion for stay should not have been granted.

Because we have had to consider the merits of this case as though every fact alleged had been proved in Henry’s favor and find that even so, no relief is warranted, and because of the time constraints facing Henry in pursuing any federal relief, we dispense with the procedural formality of directing the trial court to enter an order in the state’s favor, and deny Henry’s motion for relief pursuant to rule 3.850. The motion to vacate the stay is hereby granted.

II

Petition for Writ of Habeas Corpus Case No. 65,874

Henry petitions for a writ of habeas corpus on grounds that this Court had access to material not properly part of the record at the time we considered his direct appeal. This issue was raised in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Although Henry was not one of the original petitioners in Brown, he makes no showing that his claim is in any way different from those disposed of there. See, e.g., Ford v. Strickland, 696 F.2d 804 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed 2d 176 (1983).

The petition for writ of habeas corpus is denied.

III

Petition for Writ of Habeas Corpus Case No. 65,875

Henry challenges the legality of his sentence on grounds that the Court failed to make a recitation in its opinion affirming the conviction and sentence on direct appeal that it had conducted a proportionality review.

We note that proportionality review is not a requirement of the federal constitution, Pulley v. Harris, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), but rather a feature of state law, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Thus, the parameters of that duty are set forth in our cases interpreting that duty. ■ Henry acknowledges as much by citing Sullivan v. State, 441 So.2d 609 (Fla.1983), for the proposition that the fact that Henry’s trial occurred fairly soon after the reinstitution of the death penalty in Florida does not invalidate the sentence for lack of proportionality review. In Messer v. State, 439 So.2d 875 (Fla.1983), this Court rejected the argument that proportionality review had to occur expressly in the opinion of the Court.

Henry’s claim of lack of due process arising therefrom misconceives the nature of proportionality review. Henry contends that'the Court violates the teaching of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), by limiting its proportionality review to statutory mitigating factors, thus failing to achieve “factual proportionality” in sentencing. This assumes that we could substitute our judgment for that of the trial court and make findings of fact from a cold record which differed from those set forth in the sentencing order. That is not the function of this or any other appellate court in this state. Absent demonstrable legal error, this Court accepts those aggravating factors and mitigating circumstances found by the trial court as the basis for proportionality review. These factors are generally set forth and discussed in the opinion of the Court. Henry fails to show how he has been denied due process by any perceived lack of discussion of the sentencing order set forth at 328 So.2d at 431.

Accordingly, the petition for writ of ha-beas corpus is denied.

IV

Application for Leave to File Petition for Writ of Error Coram Nobis Case No. 65,876

Henry bases this application on claimed recently discovered evidence of organic brain damage and emotional and intellectual impairment. These diagnoses were allegedly made possible only by advances in medical science made after Henry’s conviction and sentence. Thus, Henry contends the evidence fulfills the first three requirements for writ of error coram nobis: 1) The evidence is genuinely new, not merely a new interpretation of formerly known evidence. 2) The evidence was not known by the trial court, the party or counsel at time of trial. 3) The evidence could not have been discovered by use of due diligence. Hallman v. State, 371 So.2d 482 (Fla.1979). But the evidence fails to meet the fourth requirement: That the evidence would conclusively have prevented the entry of the judgment. Id. Henry’s position is that failure to admit this evidence, had it been available, would have been an error of sufficient magnitude to warrant a new sentencing trial; nonetheless, we find the standard for writ of error coram nobis more stringent. We cannot say that, had this evidence been before the jury, it would have conclusively precluded entry of a sentence of death. See Riley v. State, 433 So.2d 976 (Fla.1983).

The application for leave to file a petition for writ of error coram nobis is denied.

Because of the exigency of the ease, no petitions for rehearing will be entertained.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the majority’s opinion, except that part which vacates the stay granted by the trial judge. In order to provide sufficient time to hold an evidentia-ry hearing on the petitioner’s 3.850 motion, the trial judge entered this stay. The trial judge has not as yet ruled on the merits of this cause and, in setting an evidentiary hearing, properly complied with procedural and case law requirements of a 3.850 proceeding.

The state has brought this cause to us in the nature of an interlocutory appeal from the trial judge’s decision to hold an eviden-tiary hearing. In my view, the majority’s opinion opens the door to a type of interlocutory appeal that this Court has never authorized by rule. This holding creates a set of rules for death penalty cases that are different from the rules applied to all other criminal cases. It has confused the rules and procedures to be followed by trial courts and the proper method for review of those decisions by the appellate courts of this state. I am most concerned about the procedural precedent that we are setting in this cause.

I conclude that the trial judge did not abuse his discretion and should be afforded an opportunity to rule on the merits of this cause, and I find that we have no jurisdiction to consider this cause on the merits.


author: PER CURIAM.

text:
    Gary William WITLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-31.
    District Court of Appeal of Florida, Fourth District.
    Oct 3, 1984.
    Rehearing Denied Oct. 17, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is remanded for a hearing on appellant’s ability to pay costs. Sanders v. State, 450 So.2d 907 (Fla. 4th DCA 1984).

In all other respects this cause is affirmed.

DOWNEY, LETTS and WALDEN, JJ„ concur.