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3788
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VETOES
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add that reasonable arguments can be made in support of
the other alternatives and that there are risks involved
in a trial judge proceeding without the benefit of any
sentencing recommendation by a jury. While we believe
that a trial judge should proceed as we have suggested,
if confronted with a hung jury, he would to a certain
extent be doing so at the risk of a subsequent appellate
holding by the Court of Appeals that he could not and
should not have imposed a sentence, and particularly a
death sentence, without having before him a proper jury
recommendation. We believe that the risk is
substantially reduced if he places himself in the same
position he would be in if the jury had recommended life
imprisonment and applies the more stringent burden of
proof applicable in such situations if he is considering
imposing the death penalty. See fn. 11, supra, and our
response to your fifth question, infra.
5. You have next asked what standards the trial
judge must apply under §413(d) and (e) if the jury
recommends life imprisonment and the judge disregards the
recommendation and determines that the sentence of death
should be imposed. You have suggested that the statute
may be interpreted either to permit the court to make its
own independent findings or to require the court to find
the jury's recommendation to be clearly erroneous or
supported by insufficient evidence before it refuses to
accept the jury's advisory sentence and impose the death
penalty. 12
As we have noted above in response to Question #4,
the jury recommendation which the statute calls for is
clearly of an advisory nature and the ultimate sentencing
power is given to the trial judge. The trial judge is
clearly not bound to follow the jury's recommendation
but, unlike the jury (see our answer to Question #6), the
judge is clearly required (by §413 (e)) to support his
sentence determination by specific, written findings of
fact. While these features of Senate Bill 106 suggest
that the judge is free to ignore the jury's
recommendations and any subsidiary findings and make his
own findings and determine sentence independently, the
Florida Supreme Court has stated that: "A jury
recommendation under our trifurcated 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." Tedder v. State, 322
So. 2d 908, 910 (Fla., 1975); accord, Thompson v. State,
328 So. 2d 1, 5 (Fla., 1976); cf. Spinkellink v. State,
313 So. 2d 666, 671 (Fla., 1975). The quoted language
from Tedder v. State, as well as these other Florida
cases, was referred to in the Supreme Court's opinion in
Proffitt v. Florida, supra, in a context suggesting that
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