David Livingston FUNCHESS, Appellant,
v.
STATE of Florida, Appellee.
No. 47828.
Supreme Court of Florida.
February 8, 1979.Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
ORDER
Pursuant to the dictates of Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), this Court ordered the trial judge who imposed the death sentence to advise the Court whether he imposed the death sentence after consideration of any information not known to appellant. His initial response stated that no information undisclosed to appellant was considered. Upon order for clarification, however, the trial judge advised the Court that he had before him a confidential portion of the presentence investigation report on appellant. Appellant asserts, by affidavit, that he was not shown that report and requests relief pursuant to Gardner.
On consideration of appellant's petition and the trial court's responses to our Gardner order and our order for clarification, and pursuant to the decision of the United States Supreme Court in Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), appellant's sentence of death in this cause is vacated. The case is remanded to the trial court for resentencing, without the necessity of an advisory jury, but with directions to provide counsel for the state and the defendant an opportunity to explain, contradict, and argue regarding the relevance, materiality, and import of the confidential information, as well as other matters properly considered by the trial court concerning appellant's sentence under section 921.141, Florida Statutes (1977).
It is so ordered.
ENGLAND, C.J., and ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur.