Melvin TROTTER, Appellant, v. STATE of Florida, Appellee, 690 So. 2d 1234

PER CURIAM. We have on appeal a trial court order imposing the death penalty upon Melvin Trotter following resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm. Trotter was convicted of first-degree murder for stabbing a grocery store owner to death during a robbery on June 16, 1986. The facts are set out fully in Trotter v. State, 576 So.2d 691 (Fla.1990). In conformity with the jury’s nine-to-three vote, the trial court imposed the death penalty after finding four aggravating circumstances, two statutory mitigating circumstances, and several non-statutory mitigating circumstances.

Trotter raised eight issues on appeal. This Court affirmed the conviction but reversed the death sentence on the basis of a single error: The trial court found as an aggravating circumstance that Trotter had been on community control at the time he committed the murder. We held that community control was not an aggravating circumstance authorized by statute and remanded for resentencing before a jury.

At resentencing, the trial court followed the jury’s eleven-to-one vote and again imposed the death penalty after finding four aggravating circumstances, two statutory mitigating circumstances, and several non-statutory mitigating circumstances. Trotter raises ten issues in his present appeal. Trotter claims' — as he did in his original appeal — that the trial court erred in finding that community control is an aggravating circumstance. We agreed with Trotter originally, but in light of subsequent legislation making clear legislative intent, we now disagree.

At the time of Trotter’s initial appeal, the capital sentencing statute was ambiguous — it failed to mention community control specifically, speaking instead of “sentence of imprisonment” broadly:

(5) AGGRAVATING CIRCUMSTANCES. — Aggravating circumstances shall [include] the following: (

a) The capital felony was committed by a person under sentence of imprisonment. § 921.141, Fla. Stat. (1985). Although the phrase “under sentence of imprisonment” was read by two members of this Court in Trotter as embracing community control, the majority felt compelled under traditional rules of statutory construction to give the phrase a strict construction: As his fifth point, appellant asserts that it was error to consider his violation of community control as an aggravating factor in sentencing. We agree.

Subsection 948.10(1), Florida statutes (1985), provides that community control is “an alternative, community-based method to punish an offender in lieu of incarceration.” Moreover, we have held that violation of probation is not an aggravating circumstance — probation is not equivalent to being under sentence of imprisonment, for the appellant was not incarcerated. Penal statutes must be strictly construed in favor of the one against whom a penalty is to be imposed.

Because the trial judge erroneously treated violation of community control as an aggravating factor in sentencing, and because there were four aggravating and four mitigating circumstances, we remand to a jury for resentencing. Trotter, 576 So.2d at 694 (footnote and citations omitted). Immediately following our decision in Trotter, the legislature — in its next regular session — amended

section 921.141(5)(

a) to specifically address community control:

(5) AGGRAVATING CIRCUMSTANCES. — Aggravating circumstances shall [include] the following: (

a) The capital felony was committed by a person under sentence of imprisonment or placed on community control. § 921.141, Fla. Stat. (1991). Trotter claims that the trial court’s use of community control as an aggravating circumstance constitutes an ex post facto violation because his crime and initial sentencing took place before the above amendment was enacted. We disagree and find no.violation, just as we have found no violation in every other case where an aggravating circumstance was applied retroactively — even on resentencing. See, e.g., Zeigler v.

State, 580 So.2d 127, 130 (Fla.1991) (no ex post facto violation in applying “cold, calculated, and premeditated” aggravating circumstance retroactively on resentencing where Zeigler committed the crime and was originally sentenced before the circumstance was enacted); Hitchcock v. State, 578 So.2d 685, 693 (Fla.1990) (no ex post facto violation in applying “sentence of imprisonment” aggravator retroactively on resentencing where Hitchcock committed the crime and was originally sentenced before this Court held that parole is embraced within the circumstance). See also Jackson v.

State, 648 So.2d 85, 92 (Fla.1994) (no ex post facto violation in applying “victim was a law enforcement officer” aggravator retroactively). Custodial restraint has served in aggravation in Florida since the “sentence of imprisonment” circumstance was created, and enactment of community control simply extended traditional custody to include “custody in the community.” See § 948.001, Fla. Stat. (1985). Use of community control as an aggravating circumstance thus constitutes a refinement in the “sentence of imprisonment” factor, not a substantive change in Florida’s death penalty law.

Trotter further contends that application of this circumstance to his case constitutes a violation of the “law of the case” doctrine because this Court has already decided this issue in his favor. See generally Brunner Enters., Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla.1984). Again, we disagree. An intervening act of the legislature refining a portion of Florida’s death penalty statute may be sufficiently exceptional to warrant modification of the law of the case. In light of the specificity and promptness of the 1991 amendment to

section 921.141(5)(a), and in view of our prior case-law giving retroactive application to other aggravating circumstances effecting a refinement in the law, reliance on Trotter would result in manifest injustice to the people of Florida by perpetuating an anomalous and incorrect application of the capital sentencing statute. We recede from our ruling in Trotter on the use of community control as an aggravating circumstance and note that this renders Trotter’s original trial error-free. See Trotter (reversal was based on single error). We find the remainder of Trotter’s present claims to be without merit.

Accordingly, we affirm Trotter’s current sentence of death. It is so ordered. OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., dissents with an opinion, in which KOGAN, C.J., concurs. .The crime was committed while the defendant was under sentence of imprisonment; the defendant had previously been convicted of a felony involving use or threat of violence; the crime was committed while the defendant was engaged in the commission of a robbery; and the crime was especially wicked, evil, atrocious, and cruel. .

The defendant was under the influence of mental and emotional disturbance; and the capacity of the defendant was substantially impaired. . The defendant has a below average I.Q. and a history of family and developmental problems; and the defendant is remorseful. .

The court failed to excuse four jurors for cause; the court failed to investigate extraneous influ-enees on the jury; the court refused to disqualify the prosecutor; the court removed a particular juror for cause; the court counted community control as an aggravating circumstance; the court refused to admit Trotter's artwork in mitigation; the instruction on heinous, atrocious, or cruel was vague; the evidence failed to support the court's finding that the murder was heinous, atrocious, or cruel. .

Trotter was on community control at the time of the murders; Trotter had been convicted of a prior violent felony; the crime took place while Trotter was engaged in a robbeiy and was for pecuniary gain (although the court listed these two circumstances separately in its written order, it stated at sentencing that it considered the two as a single factor); and the murder was especially wicked, evil, atrocious and cruel. . Trotter was under the influence of extreme mental and emotional disturbance; and the capacity of the defendant was substantially impaired. .

Trotter has a below average I.Q., has both family and developmental problems, and has a disadvantaged background; Trotter may have suffered from a frontal lobe brain disorder; the defendant is remorseful; and other nonstatutory factors. .

The court counted community control as an aggravating circumstance; victim impact evidence is impermissible in general; admission of victim impact evidence here was improper; Trotter should have been allowed to raise the validity of his prior conviction; the court failed to investigate Trotter's claim of racial bias in seeking the death penalty; the court denied Trotter's challenges for cause; the court denied a particular challenge for cause; the court allowed evidence of a nonstatutory aggravating circumstance to be introduced; the prosecutor made improper comments; and the sentencing order is deficient. .

See Trotter v. State, 576 So.2d at 691, 696 (Fla.1990) (McDonald, J., concurring in part, dissenting in part with Grimes, J., concurring) ("I am satisfied that one sentenced to community control is under sentence of imprisonment within the definition .of subsection 921.141 (5)(a).'')