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3779
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MARVIN MANDEL, Governor
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5. A recommendation of a sentence of life
imprisonment may be based upon the majority decision of
the jury.
Notwithstanding the recommendation of the jury, the
trial judge after weighing the aggravating and mitigating
circumstances, shall enter a sentence of life
imprisonment or death, but if he imposes a sentence of
death, he must set forth in writing his findings upon
which the sentence of death is based, including whether
sufficient aggravating circumstances exist or whether
there are insufficient mitigating circumstances to
outweigh the aggravating circumstances. If the judge
does not make the findings requiring the death sentence,
he shall impose a sentence of life imprisonment.
Senate Bill 106 also sets out a new appellate
procedure for reviewing the findings and sentences of the
trial court whenever the death penalty is imposed.
All cases in which the death penalty is imposed are
to be automatically appealed directly to the Court of
Appeals which shall have the power to review the
punishment and consider any other errors enumerated by
way of appeal. With regard to the sentence, the Court of
Appeals shall determine whether the sentence of death was
imposed under the influence of passion, prejudice or any
other arbitrary factor; whether the evidence supports the
jury's or judge's finding of a statutory aggravating
circumstance; and whether the sentence of death is
excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant.
The Court of Appeals is required to include in its
decision a reference to those similar cases which it took
into consideration. In addition to its authority
regarding the correction of errors on appeal, the Court,
with regard to the review of death sentences, is
authorized to affirm the sentence of death or set aside
and remand the case for resentencing by the trial judge
based on the record and argument of counsel.
From our previous analysis of the Supreme Court
decisions on capital punishment we may conclude that the
states have been afforded reasonable latitude in enacting
laws relating to the death penalty. The statutes of
Florida, Georgia and Texas utilized three distinct and
different procedures for imposition of the death penalty
and each was upheld. Three broad requirements run
through the Supreme Court analysis of these statutes
which govern the constitutional acceptability of a death
penalty statute, viz: (1) a bifurcated hearing on the
issue of guilt and penalty, (2) most importantly (and
what we judge to be an absolute prerequisite), a
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