Barclay v. Florida

Justice Marshall, with whom Justice Brennan joins, dissenting.

Based on a sentencing order rife with errors, the trial judge condemned petitioner Elwood Barclay to death. The Florida Supreme Court then conducted a perfunctory review and affirmed the sentence. Today the plurality approves this miscarriage of justice. In doing so it is utterly faithless to the safeguards established by the Court’s prior decisions. I dissent.

*975I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 358-369 (1972) (Marshall, J., concurring). I would vacate petitioner’s death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would vacate the death sentence imposed in this case.

I — I HH

In order to assess the process by which petitioner was sentenced to death, it is vital to understand the trial judge’s explanation for his sentence of death and the subsequent review of that sentence by the Florida Supreme Court. In my view the plurality’s discussion of these matters is woefully incomplete. I therefore begin by setting out the facts necessary for our review.

A

Under Florida law, if a defendant is found guilty of a capital offense, a separate sentencing hearing is held. Fla. Stat. §921.141(1) (1977). After hearing evidence relating to aggravating and mitigating circumstances, the jury renders an advisory verdict. § 921.141(2). The judge then imposes sentence. In this case, the jury concluded that sufficient aggravating circumstances did not exist to justify a death sentence and that mitigating circumstances existed which outweighed any aggravating circumstances.1 It therefore recommended life imprisonment. The trial judge rejected *976the jury’s recommendation, however, and sentenced petitioner to death. The rationale for the judge’s decision is set forth in his sentencing order, which states his findings as to the mitigating and aggravating circumstances set out in the Florida capital punishment statute. See App. 1; §921.141(3).

The trial judge found that none of the statutory mitigating circumstances applied to Barclay.2 Instead, the judge concluded that the absence of one of the mitigating circumstances itself constituted an aggravating circumstance. Florida law identifies as a mitigating circumstance the fact that a defendant “has no significant history of prior criminal activity.” §921.141(6)(a). The statute does not make the presence of a significant history of prior criminal activity an aggravating circumstance. §921.141(5). See Maggard v. State, 399 So. 2d 973, 977-978 (Fla. 1981). Nonetheless, after finding that petitioner had a criminal record, the trial judge stated that the prior record constituted an aggravating circumstance. App. 19. This determination was clearly lawless. The Florida Supreme Court has expressly held that a “substantial history of prior criminal activity is not an aggravating circumstance under the statute.” Mikenas v. State, 367 So. 2d 606, 610 (1978).

The trial judge then turned to the eight aggravating circumstances that the Florida Legislature had actually estab*977lished.3 Even though the State had relied on only one of these circumstances during the sentencing hearing,4 the trial judge managed to find that six were relevant.

The first aggravating circumstance applies if a capital felony has been “committed by a person under sentence of imprisonment.” §921.141(5)(a). The judge stated that Barclay was not under imprisonment at the time of the capital offense — a fact which should have been dispositive under the plain language of the statute. Nonetheless, the judge then pointed to Barclay’s prior arrests and the fact that he had previously been on probation for a felony, and he again stated that petitioner’s record constituted an aggravating circumstance. App. 33. Reliance on the arrests was certainly improper under Florida law, because any charge which has “not resulted in a conviction at the time of the [capital] trial” is “a nonstatutory aggravating factor.” Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977). See also Provence v. State, 337 So. 2d 783, 786 (Fla. 1976). Reliance on the fact that petitioner had formerly been on probation was also error, since the sentence of imprisonment must exist at the time of the capital felony. See Ferguson v. State, 417 So. 2d 631, 636 (Fla. 1982); Peek v. State, 395 So. 2d 492, 499 (Fla. 1980).

The second aggravating circumstance found by the trial judge was that petitioner had been “previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” §921.141(5)(b). The court based this finding on petitioner’s presentence report, which showed an earlier conviction for breaking and entering with intent to commit grand larceny. Although there was absolutely no evidence that this prior felony involved the use or threat of violence, the judge asserted that “such crime can *978and often does involve violence or threat of violence.” App. 35. The judge’s reliance on this aggravating circumstance was contrary to Florida law. This statutory factor applies only where “the judgment of conviction discloses that it involved violence,” Mann v. State, 420 So. 2d 578, 581 (Fla. 1982), and the Florida Supreme Court has explicitly held that the crime of breaking and entering with intent to commit a felony does not constitute a crime of violence within the meaning of this provision. Lewis v. State, 398 So. 2d 432, 438 (1981); Ford v. State, 374 So. 2d 496, 501-502, and n. 1 (1979), cert. denied, 445 U. S. 972 (1980). Moreover, the trial judge’s reliance on information contained in the presen-tence report to establish this aggravating circumstance itself constituted an error under state law. See Williams v. State, 386 So. 2d 538, 542-543 (Fla. 1980).

The trial court next found that petitioner had “knowingly created a great risk of death to many persons.” § 921.141(5) (c). This statutory circumstance was directed at conduct creating a serious danger to a large group of people, such as exploding a bomb in a public place or hijacking an airplane.5 Thus, something in the nature of the homicidal act itself or in the conduct immediately surrounding the act must create a great risk to many people. Bolender v. State, 422 So. 2d 833, 838 (Fla. 1982); Ferguson v. State, 417 So. 2d 639, 643, 645 (Fla. 1982); Tafero v. State, 403 So. 2d 355, 362 (Fla. 1981); Kampff v. State, 371 So. 2d 1007, 1009 (Fla. 1979); Elledge v. State, supra, at 1004. For example, the aggravating circumstance does not apply when “no one else was around” at the time of the capital felony, even though the murderer then flagged down a passing motorist and struck *979him with a machete, drove at high speeds over a significant distance, and took a hostage and threatened to kill her. Mines v. State, 390 So. 2d 332, 337 (Fla. 1980). It is undisputed in this case that the murder took place at “an isolated trash dump” where no one other than the perpetrators and the single victim was present. See Barclay v. State, 343 So. 2d 1266, 1267 (Fla. 1977). The trial judge incorrectly relied on conduct occurring both before and after the capital felony. App. 38. Invocation of this aggravating circumstance was therefore clearly unauthorized by state law.

The trial court’s remaining findings are also problematic. For example, the judge found as a fourth aggravating circumstance that the murder was committed during a kidnap-ing. Id., at 39-40; see §921.141(5)(d). However, the only witness who testified about the circumstances prior to the murder noted that the victim, a hitchhiker, willingly entered the car and rode with the defendants voluntarily.6 At the close of the trial on the issue of guilt, the trial judge himself had deemed the evidence insufficient to establish a kidnaping for purposes of giving a jury instruction as to felony murder.

The trial judge’s explanation of his sentence is all the more remarkable in light of two salient requirements of the Florida death penalty scheme. First, each of the statutory aggravating circumstances “must be proved beyond a reasonable doubt before being considered by judge or jury.” State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), cert. denied, 416 U. S. 943 (1974). Second, when the jury has recommended a life sentence, the judge may not impose a death sentence unless “ ‘the facts suggesting a sentence of death [are] so clear and convincing that no reasonable person could differ.’” Proffitt v. Florida, 428 U. S. 242, 249 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), quoting Tedder v. State, 322 *980So. 2d 908, 910 (Fla. 1975). In light of these standards, the judge’s sentencing order in this case was totally inadequate.

B

Nor can the sentencing judge’s abysmal performance be deemed inadvertent or aberrant. To begin with, after the Florida Supreme Court had vacated the original sentence and remanded the case for reconsideration in light of Gardner v. Florida, 430 U. S. 349 (1977), petitioner’s counsel brought to the attention of the trial judge several flagrant legal errors in the original sentencing order.7 For example, counsel noted that defendant’s prior criminal record was not a proper aggravating circumstance, citing a controlling decision of the Florida Supreme Court, Mikenas v. State, 367 So. 2d 606 (1978).8 Even the plurality acknowledges that the trial judge erred in this finding. Ante, at 946. Nonetheless, the trial judge drafted a new sentencing order which simply repeated his prior erroneous analysis. App. 107-108.

The trial judge’s actions in other capital cases are also instructive. Judge Olliff has sentenced three other defendants to death besides petitioner and his codefendant.9 In each of these cases, as in petitioner’s case, Judge Olliff ignored a jury’s advisory sentence of life imprisonment.10 In each of the cases, as in petitioner’s case, the judge failed to find a single mitigating circumstance. The judge has repeatedly found *981that the felony was committed by a person under a sentence of imprisonment, that the defendant had previously been convicted of a violent felony, and that the defendant created a great risk of death to many persons, even though virtually all of these findings had no foundation in Florida law.11 And each time, Judge Olliff has recounted his experiences during World War II and recited boilerplate language to the effect that he was not easily shocked but that the offense involved shocked him.12

*982c

In reviewing the hopelessly flawed sentencing order, the Florida Supreme Court did not identify a single error in the trial judge’s explanation. Instead, it praised Judge Olliff’s performance:

“The trial judge here painstakingly and with reasoned judgment detailed the factors which caused his departure from the jury’s recommendation. His thorough analysis is precisely the type we would expect from mature, deliberative judges in this state. It suggests why the Legislature put the trial judges of Florida in the middle of the sentencing process for capital cases.” 343 So. 2d, at 1271, n. 8 (emphasis added).

*983The Florida Supreme Court’s perfunctory analysis focused on the death sentence imposed on petitioner’s codefendant, Jacob Dougan. Id., at 1270-1271. The court subsequently indicated that “virtually the same considerations” applied to Barclay. Id., at 1271. As a result, it never discussed the trial judge’s specific findings concerning Barclay. With respect to the aggravating circumstances applicable to Dou-gan, the Florida Supreme Court stated that “the trial judge recited that four factors essentially had no relevance here.” Ibid, (footnote omitted). However, two of the factors referred to in this sentence were aggravating circumstances that the trial judge had explicitly discussed.13 In short, the Florida Supreme Court mischaracterized the trial judge’s opinion as to these aggravating circumstances.14 The Florida Supreme Court then listed the four other aggravating circumstances that had been relied upon and stated in conclusory fashion that the trial judge’s findings were “well documented in the record before us.” Ibid.

The Florida Supreme Court recognized that the jury had recommended a life sentence for Barclay. But the court stated that this recommendation was properly rejected so that there would be no disparity of treatment between Dougan and Barclay: “ ‘Equal Justice Under Law’ is carved over the doorway to the United States Supreme Court build*984ing in Washington. It would have a hollow ring in the halls of that building if the sentences in these cases were not equalized.” Ibid. The court ignored the differences between Barclay and Dougan which the jury had apparently found decisive. In addition to obscuring the proper focus on the individual offender, the court’s invocation of principles of equal justice is particularly inappropriate in this case in light of the treatment of two of petitioner’s codefendants, Evans and Crittendon. Both of these individuals participated in the murder of Stephen Orlando; indeed, Evans was the first to stab Orlando.15 Moreover, after Orlando was murdered, Evans and Crittendon committed a second murder in the name of the Black Liberation Army in which petitioner Barclay played absolutely no part.16 Yet, these two received prison sentences while Barclay was condemned to death.

HH I — I t — I

The procedures by which Elwood Barclay was condemned to die cannot pass constitutional muster. First, the trial judge’s reliance on aggravating circumstances not permitted under the Florida death penalty scheme is constitutional error that cannot be harmless. Second, the Florida Supreme Court’s failure to conduct any meaningful review of the death sentence deprived petitioner of a safeguard that the Court has deemed indispensable to a constitutional capital sentencing scheme.

A

Under Florida law the imposition of the death sentence depends critically on the findings of statutory aggravating circumstances. First, for a defendant to be sentenced to death, the court must determine that “sufficient [statutory] aggravating circumstances exist.” § 921.141(3)(a) (emphasis added). Second, the court must determine that there *985are “insufficient mitigating circumstances ... to outweigh the aggravating circumstances.” §921.141(3)(b). The sen-tencer therefore not only weighs aggravating against mitigating circumstances, but even in the absence of mitigating circumstances the sentencer must weigh the statutory circumstances alone to determine their sufficiency.

Florida law clearly limits aggravating circumstances to those enumerated in the statute. §921.141(5). Thus, “the specified statutory circumstances are exclusive; no others may be used for that purpose. ” Purdy v. State, 343 So. 2d 4, 6 (Fla. 1977). Accord, Odom v. State, 403 So. 2d 936, 942 (Fla. 1981); Spaziano v. State, 393 So. 2d 1119, 1122-1123 (Fla. 1981); Miller v. State, 373 So. 2d 882, 885 (Fla. 1979); Provence v. State, 337 So. 2d, at 786.17

Because Florida law prohibits reliance on nonstatutory aggravating circumstances, the trial judge’s invocation of such circumstances in this case assumes special significance. In Hicks v. Oklahoma, 447 U. S. 343 (1980), this Court held that when a State has provided for the imposition of criminal punishment subject to certain procedural protections, it is not correct to say that the denial of one of those protections “is merely a matter of state procedural law.” Id., at 346. Eight Justices agreed that the defendant in such a case “has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent” provided for by state law, and that such an interest is constitutionally protected. Ibid. See also Vitek v. Jones, 445 U. S. 480, 488-489 (1980).

The State of Florida has determined that a trial judge may not rely upon nonstatutory aggravating circumstances in sen*986tencing a defendant to death. The propriety of a death sentence imposed on the basis of nonstatutory aggravating circumstances is therefore not merely a matter of state law. A criminal defendant has a substantial and legitimate expectation that such circumstances will not be employed in sentencing him to death. The state-created protection cannot be arbitrarily abrogated, as it was here, without violating the Constitution.

Reliance on nonstatutory aggravating factors also runs afoul of this Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). Fairness and consistency cannot be achieved without “ ‘clear and objective standards’ that provide ‘specific and detailed guidance.’” Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion), quoting Proffitt v. Florida, 428 U. S., at 253 (opinion of Stewart, Powell, and Stevens, JJ.), and Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opinion).18 Indeed, the Florida death penalty scheme was approved on the understanding that it required “an informed, focused, guided, and objective inquiry into the question whether [a defendant] should be sentenced to death.” Proffitt v. Florida, supra, at 259 (opinion of Stewart, Powell, and Stevens, JJ.).

Because Florida limits consideration of aggravating circumstances to certain enumerated factors and because the weighing of those factors plays a crucial role in the sentencing process, fairness and consistency cannot be achieved if nonstatutory aggravating circumstances are randomly introduced into the balance. If one judge follows the law in sentencing a capital defendant but another judge injects into the weighing process any number of nonstatutory factors in aggravation, or if the same judge selectively relies on such circumstances, the fate of an individual defendant will inev*987itably depend on whether on a given day his sentencer happened to respect the constraints imposed by Florida law. The decision to execute a human being surely should not depend on such potluck.

The plurality opinion departs from the Court’s past insistence on consistency and fairness in the capital sentencing process. Under the plurality’s view, the standard for review of a death sentence would apparently be “limited” to whether its imposition was “so unprincipled or arbitrary as to somehow violate the United States Constitution.” Ante, at 947.19 This standard is devoid of any meaningful content. It is simply tautological: a decision to impose the death sentence is not unconstitutional so long as it “is not so wholly arbitrary as to offend the Constitution.” Ante, at 950-951. This implies that in death cases there are degrees of acceptable arbitrariness and that there exists some undefined point at which a sentence crosses over into the nether world of “wholly” arbitrary decisionmaking. I see no way to reconcile this standard with the requirements of the Constitution.

Nor can I agree that reliance on nonstatutory aggravating circumstances under the Florida scheme can be deemed harmless error. Florida law puts special emphasis on the finding of an aggravating circumstance.20 Moreover, the sentencer always has discretion not to impose the death sentence in an individual case. Under these circumstances, we are “not at liberty to assume that items given . . . emphasis by the sentencing court did not influence the sentence which the prisoner [received].” Townsend v. Burke, 334 U. S. 736, 740 (1948). Protecting against the arbitrary im*988position of the death penalty “must not become simply a guessing game played by a reviewing court in which it tries to discern whether the improper nonstatutory aggravating factors exerted a decisive influence on the sentence determination. The guarantee against cruel and unusual punishment demands more.” Henry v. Wainwright, 661 F. 2d 56, 59-60 (CA5 1981). Where a life is at stake, the risk that a particular defendant has been selected for the wrong reason is unacceptable and incompatible with the Eighth and Fourteenth Amendments. See Lockett v. Ohio, 438 U. S. 586, 605 (1978). Given the “extraordinary measures” this Court has undertaken to guarantee “as much as is humanly possible” that a death sentence has not been imposed by “mistake,” Eddings v. Oklahoma, supra, at 118 (O’Connor, J., concurring), a remand for resentencing is the least that is required.

B

To avoid the arbitrary and capricious imposition of the death penalty, this Court has also stressed “the further safeguard of meaningful appellate review.” Gregg v. Georgia, 428 U. S., at 195 (opinion of Stewart, Powell, and Stevens, JJ.). See Proffitt v. Florida, supra, at 253 (opinion of Stewart, Powell, and Stevens, JJ.); Godfrey v. Georgia, supra, at 429 (plurality opinion); Zant v. Stephens, 456 U. S. 410, 413-414 (1982). In his opinion concurring in the judgment, Justice Stevens notes the importance of this safeguard. Ante, at 973-974. In my view, the failure of the Florida Supreme Court to conduct any considered appellate review in this case requires that petitioner’s death sentence be vacated.

If appellate review is to be meaningful, it must fulfill its basic historic function of correcting error in the trial court proceedings. A review for correctness reinforces the authority and acceptability of the trial court's decision and controls the adverse effects of any personal shortcomings in the *989initial decisionmaker.21 The Florida Supreme Court’s review of Barclay’s sentence utterly failed to fulfill this function. The court glossed over all of the errors in the sentencing order. Instead, it lauded the trial judge’s performance, stating that Judge Olliff’s “thorough analysis is precisely the type we would expect.” 343 So. 2d, at 1271, n. 8. Given such encouragement, it is hardly surprising that in subsequent cases Judge Olliff has persisted in misapplying the Florida death penalty statute.22

The trial judge in this case plainly misapplied aggravating circumstances enumerated in Florida law. For example, he relied upon a conviction for breaking and entering to establish that petitioner had previously been convicted of a violent felony, even though the Florida Supreme Court has expressly held that such a crime does not satisfy the statutory factor. Similarly, the judge concluded that petitioner had created a great risk of death to many persons even though the homicidal act itself created no such risk. Faced with such findings, the Florida Supreme Court simply failed to consider whether they were consistent with Florida law. Conceivably it would have been possible to reconcile the findings in this case with other decisions which the Florida Supreme Court has rendered, although I doubt it. But if the process of appellate review means anything, it requires that the legal principles applied in one case be harmonized with settled law.

The plurality proceeds on the unfounded assumption that, although errors may have been made by the trial judge, the Florida Supreme Court nonetheless concluded that the errors were harmless. The plurality states:

“[T]he Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechnical fashion, but rather upholds death sentences on the basis of this *990analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance.” Ante, at 958.

The plurality’s reliance on the harmless-error doctrine has no relation to the Florida Supreme Court’s decision in this case. As one might surmise from the terminology, a “harmless-error” inquiry refers to a process by which an appellate court identifies legal errors and then determines whether they could have affected the judgment being reviewed. Here, the Florida Supreme Court did not identify any legal errors in the trial judge’s sentencing order; it extolled the merits of the sentencing order. It therefore never reached the question whether the error was harmless. The Florida Supreme Court’s decision in this case can readily be contrasted with those decisions in which it actually conducted a harmless-error analysis. For example, in White v. State, 403 So. 2d 331 (1981), cited ante, at 955, the court examined each of the aggravating circumstances upon which the sentencer had relied, explained the errors that the sentencer had committed, and then assessed the significance of the errors. 403 So. 2d, at 337-339.

The plurality’s reliance on the harmless-error review conducted by the Florida Supreme Court in other cases is entirely misplaced. See ante, at 955, 958. When a defendant’s life is at stake, it hardly suffices to tell him that some of the time the State’s highest court does its job. Every defendant sentenced to death is entitled to meaningful appellate review, and where it is clear that the Florida Supreme Court has not provided such review, the death sentence should be vacated.

> 1-H

This case illustrates the capital sentencing process gone awry. Relying on factors not mentioned in Florida law and *991statutory factors distorted beyond recognition, Judge Olliff overrode the jury’s recommendation of life and sentenced petitioner to death. The Florida Supreme Court failed to conduct any meaningful review and instead showered the trial judge with praise for his performance. “Justice of this kind is obviously no less shocking than the crime itself, and the new ‘official’ murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.” A. Camus, Reflections on the Guillotine 5-6 (R. Howard, trans. 1960). I therefore dissent.

See Brief for Petitioner 19 (quoting transcript of penalty trial, at 180); Fla. Stat. §921.141(2) (1977) (jury’s advisory verdict is based upon its determination of whether sufficient aggravating circumstances exist and whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances).

The trial judge did not mention the subject of nonstatutory mitigating circumstances. During closing argument at the sentencing trial, petitioner’s counsel had contended that such circumstances were present. For example, counsel noted that petitioner was the father of five children and was gainfully employed, and he argued that petitioner was a follower and not a leader among the murderers. He also pointed to the disparity in treatment among the various participants in the crime, three of whom faced punishment for only second-degree murder. The jury’s finding that sufficient mitigating circumstances existed which outweighed any aggravating circumstances indicates that the jury found some mitigating circumstances. Cf. Elledge v. State, 346 So. 2d 998, 1003 (Fla. 1977).

See Fla. Stat. § 921.141(5) (1977). Since petitioner’s trial, an additional aggravating circumstance has been added to the list. See § 921.141(5)(i) (1981).

See Tr. of Oral Arg. 5.

As the Chairman of the Select Committee on the Death Penalty of the Florida House of Representatives stated during hearings on the 1972 death penalty statute, this aggravating circumstance was intended to apply to cases in which “[t]he defendant knowingly created risk of death to many persons. That’s your hijacking sectio[n].” Hearings before the Select Committee on the Death Penalty 66 (Aug. 4, 1972).

William Hearn, a participant in the murders, testified that the victim asked the other passengers if they smoked marihuana and indicated that he had a friend from whom they could buy some. The victim also engaged in other conversation. See Tr. of Trial 1369-1372.

See Tr. of Resentencing Hearing 56-83.

See id., at 61-62.

See Lewis v. State, 398 So. 2d 432 (Fla. 1981); Dobbert v. State, 375 So. 2d 1069 (Fla. 1979); Carnes v. State, Nos. 74-2024, 74-2131 (Cir. Ct. 4th Jud. Cir., Duval County, Florida, Nov. 19, 1974), App. to Brief for Petitioner 15a.

There is only one reported decision in which Judge Olliff did not give a convicted capital felon a death sentence. Hopkins v. State, 418 So. 2d 1183 (Fla. App. 1982). In that case, however, the judge attempted to sentence the defendant to a term of 199 years and to reserve review of any *981release of the defendant for 66 years, even though such a sentence was not authorized by law. Id.., at 1183-1184. The Florida Appellate Court vacated the sentence and remanded for resentencing.

With respect to the statutory provision that the felony had been committed by a person under a sentence of imprisonment, Judge Olliff’s findings were as follows. In Dobbert, the judge concluded that the circumstance applied even though there was no evidence that Dobbert was under sentence of imprisonment at the time of the murder. See 375 So. 2d, at 1070. In Carnes, Judge Olliff concluded that although the defendant was not under sentence of imprisonment, the aggravating circumstance nonetheless applied because Carnes was out on bond on another charge at the time of the offense. App. to Brief for Petitioner 32a. In Lems, the judge correctly concluded that the aggravating circumstance applied. 398 So. 2d, at 438.

With respect to the statutory circumstance of a prior conviction involving a violent felony, in Lewis Judge Olliff erroneously relied on convictions for breaking and entering. Ibid. In Dobbert, the factor was not mentioned. In Carnes, Judge Olliff found the circumstance applicable even though the defendant had never been convicted of any offense. App. to Brief for Petitioner 33a-34a.

As for the creation of a great risk of death to many persons, the Florida Supreme Court concluded that the judge had erred in finding the circumstance applicable in both Lewis, supra, at 438, and Dobbert, supra, at 1070. In Carnes, Judge Olliff found the aggravating circumstance applicable even though there were only two other people present in the house when the defendant shot the victim and both of them were in another room. App. to Brief for Petitioner 34a-36a.

In Lewis, Judge Olliff wrote:

“My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States *982Army Paratrooper and served in ground combat in Europe. I have seen death and suffering in almost every conceivable form.
“I am not easily shocked or moved by tragedy — but this was an especially heinous, atrocious and cruel crime — and is deserving of no sentence but death.” App. to Brief for Petitioner 78a.

In Dobbert, Judge Olliff wrote:

“ ‘My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have had friends blown to bits and have seen death and suffering in every conceivable form.
“T am not easily shocked or [a]ffected by tragedy or cruelty — but this murder of a helpless, defenseless and innocent [person] is the most cruel, atrocious and heinous crime I have evefr] personally known of — and it is deserving of no sentence but death.’” Dobbert v. Florida, 432 U. S. 282, 296, n. 9 (1977).

In Carnes, Judge Olliff wrote:

“My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. During World War II, I was a United States Army Paratrooper and served overseas in ground combat. I have seen friends blown to bits and have seen death and suffering in almost every conceivable form.
“I am not easily shocked or moved by tragedy — but this was an especially shocking crime.” App. to Brief for Petitioner 43a.

Thus, in summarizing the trial judge’s findings, the Florida Supreme Court stated that “Dougan was not under sentence of imprisonment” and “had not been previously convicted of a major felony.” 343 So. 2d, at 1271, n. 3. In discussing each of these aggravating circumstances, however, the trial judge had plainly found them applicable. App. 34-35. In contrast, when a circumstance was inapplicable, the trial court was perfectly capable of saying so. For example, in discussing the murder-for-pecuniary-gain factor, § 921.141(5)(f), the trial judge stated: “This paragraph does not seem to apply to the present case.” App. 41.

The plurality compounds this distortion by relying on this sentence in the Florida Supreme Court opinion in an effort to cast aside two of the aggravating circumstances that were applied to Barclay. See ante, at 946-947.

See Tr. of Resentencing Hearing 28 (testimony of Officer Thomas Reeves, supervising investigator for the murder of Stephen Orlando).

Id., at 6-8.

The Florida death penalty scheme manifestly differs from that in Georgia, as recently interpreted by the Georgia Supreme Court. See Zant v. Stephens, 462 U. S. 862 (1983). To begin with, Georgia permits the sentencer to rely on nonstatutory aggravating factors so long as at least one valid aggravating circumstance is identified. In addition, the Georgia scheme does not require any weighing of the sufficiency of the statutory aggravating circumstances, nor does it require a weighing of aggravating against mitigating circumstances.

See also Hopper v. Evans, 466 U. S. 605, 611 (1982); Lockett v. Ohio, 438 U. S. 586, 601 (1978) (plurality opinion)

Only four Justices agree that our review is limited in this fashion. Justice Stevens, with whom Justice Powell joins, would insist on more substantial procedural protections. See ante, at 959-960.

Because the aggravating factors listed in the Florida statute are exclusive and because the sufficiency of these circumstances must always be weighed, the finding of each statutory aggravating circumstance has special significance under the Florida law, in contrast to the Georgia scheme. See Zant v. Stephens, supra.

See P. Carrington, D. Meador, & M. Rosenberg, Justice on Appeal 2 (1976); R. Pound, Appellate Procedure in Civil Cases 3-4 (1941).

See Part II-B, supra.