Learie Leo ALFORD, Appellant, v. STATE of Florida, Appellee, 355 So. 2d 108

ADKINS, Judge. We have for consideration a motion of Learie Leo Alford to vacate his sentence of death. Alford’s judgment and sentence were affirmed by this Court (Alford v. State, Fla., 307 So.2d 433), and the United States Supreme Court denied his petition for writ of certiorari (428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221). In accordance with the rule of law pronounced in Gardner v. State, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393, this Court ordered the sentencing judge to state whether he based his sentencing decision upon any information not known to Alford.

The trial judge responded that he did not consider any information unknown to Alford and enclosed a letter which he wrote to the probation supervisor prior to sentencing, saying: ' “I know you have expended a great deal of time, effort and conscientious evaluation in the preparation of the pre-sentence report concerning Learie Leo Alford. I recall that you indicated to me that the revelation of the confidential

section of this report to the defense would be damaging and compromising to sources who had confided in you. I respect your judgment in this. “I feel, however, in a case in which the jury has recommended the supreme penalty known to our law, that there well may be a constitutional right to disclosure of this confidential

section to the defendant. As far as I know, there is not yet a judicial decision on what the meaning of ‘factual material’ in Rule 3.713(

b) may be. I feel that if I cannot release the confidential

section to the defendant, I should not review it myself in this particular case. I know that this means that I shall not have the benefit of a major portion of your work in this report because of this view and I regret that this is so. “Accordingly, do not deliver that

section of your report to me.” During the course of the clemency proceeding, the Governor wrote Alford’s attorney and enclosed a copy of the confidential evaluation portion of the pre-sentence investigation. The first paragraph of the confidential evaluation indicates that the sentencing judge was “made aware of some of these facts” by the supervisor. In response to the motion to vacate, the State says that, assuming the judge was “made aware” of certain facts, that doesn’t mean that he “considered” those facts in imposing the sentence.

The State draws a distinction between being “aware” of certain facts and “considering” them. We agree. The United States Supreme Court in Gardner recognized the ability of the sentencing judge to disregard material in imposing sentence when it said: “In those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material.” (Emphasis supplied.) The judicial discretion exercised in imposing the death sentence is limited in such a manner that the judge may not consider many factors of which he is aware. As pointed out in Proffitt v.

Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), “[I]t has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.

At 252, 96 S.Ct. at 2966. “Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. At 253, 96 S.Ct. at 2967. ****** “The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones.

As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” (Emphasis supplied.) At 258, 96 S.Ct. at 2969. In considering the imposition of the sentence, the trial judge’s discretion is guided and channeled by statute and case law. He may be “aware” of other factors, but he does not “consider” these factors in the exercise of his discretion.

For example, the judge may be “aware” of inadmissible evidence after a proffer has been made, but this evidence is never “considered” by the judge. The record clearly shows that the trial judge complied with the requirements of Gardner and the motion to vacate is denied. It is so ordered. OVERTON, C. J., and ENGLAND and KARL, JJ., concur. BOYD, J., dissents with an opinion. HATCHETT, J., dissents with an opinion with which BOYD and SUNDBERG, JJ., concur.