Rose v. State

We have on appeal the judgment of the trial court denying James Franklin Rose, an inmate under sentence of death, relief requested under Rule 3.850, Florida Rules of Criminal Procedure. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm in part, reverse in part and remand for a new sentencing proceeding before a jury.

PROCEDURAL STATUS

A more detailed description of the facts of this case is contained in the initial direct appeal, Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), wherein we affirmed Rose’s convictions and vacated his death sentence and remanded for resentenc-ing. Upon resentencing, the death sentence was reimposed and we affirmed. Rose v. State, 461 So.2d 84 (Fla.1984), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985).

In his subsequent rule 3.850 motion, Rose challenged the lawfulness of his conviction and death sentence on a variety of grounds. The trial court summarily denied Rose’s motion without conducting an evidentiary hearing. On appeal, we reversed and directed the trial court to “reconsider Rose’s motion and to hold an evidentiary hearing on the ineffective assistance of counsel claims and any other appropriate factual issues presented in the motion.” Rose v. State, 601 So.2d 1181, 1184 (Fla.1992).

The trial court reconsidered Rose’s 3.850 motion and held an evidentiary hearing on Rose’s claims that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. The trial court again denied relief as to all claims and ruled that Rose’s claims of ineffective assistance of counsel did not meet the standards set forth in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 668 (1984).

APPEAL

In this appeal, Rose raises numerous claims, most of which are procedurally barred, meritless, or moot in light of this opinion. The remaining issues consist of Rose’s claims that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. We affirm the trial court’s denial of relief as to Rose’s claim of ineffective assistance of counsel at the guilt phase. Because we find that counsel at the penalty phase was ineffective for failing to investigate and present mitigation evidence, we reverse the trial court’s order denying postconviction relief and remand for a new sentencing proceeding.

GUILT PHASE PERFORMANCE OF COUNSEL

First, we consider the trial court’s ruling that appellant’s claims of ineffective assistance of trial counsel, based on counsel’s inadequate performance during the guilt phase of his trial, were insufficient to meet the standards set forth under Strickland’s two-prong test. Under Strickland, a defendant must establish two components in order to demonstrate that counsel was ineffective: (1) counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced the defense. As to the first prong, the defendant must establish that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687, 104 S.Ct. at 2064. As to the second prong, the defendant must establish that, “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. Applying this standard, we find no error by the trial court in rejecting these claims.

Rose simply has failed to demonstrate both a deficient performance and the probability of a different outcome based on the alleged deficiencies. Rose alleges trial counsel was ineffective for failing to call as witnesses several people who were at the bowling alley on the night of the victim’s disappearance and who gave statements to the police that they saw the victim alive, or saw Rose’s van during the time period when the State maintained that Rose had taken the victim from the bowling alley in his van and killed her. In addition, Rose alleges trial counsel was ineffective for failing to use statements from some of these witnesses to refute the State’s “jealous boyfriend” theory.

At the evidentiary hearing below, trial counsel testified that each of these witnesses had inherent problems. Some were key witnesses for the State, others were very emotional and counsel felt he would be unable to control them if called to testify. Most importantly, all of these witnesses would relate testimony damaging to Rose. Many of these witnesses had told police that they saw blood on Rose’s pants when he returned to the bowling alley and then saw him go to the bathroom and try to cover it up with grease. Others saw blood on Rose’s van and heard Rose say the blood was from cutting himself while changing a tire. These same witnesses checked Rose’s van and did not believe that a tire had been changed. At the evidentiary hearing, trial counsel testified that he was well aware of the problems with each witness and consciously decided not to call any of these witnesses who said they had seen the victim or Rose’s van because their testimony would have been more detrimental than helpful.

Applying the Strickland standard to these claims, we conclude that the trial court did not err in concluding that Rose’s claims of ineffective assistance of trial counsel during the guilt phase constitute claims of disagreement with trial counsel’s choices as to strategy. See Cherry v. State, 659 So.2d 1069 (Fla.1995) (concluding standard is not how current counsel would have proceeded in hindsight). In light of counsel’s testimony at the hearing, it is apparent that counsel was aware of the witnesses in question and knowledgeable about the pros and cons of calling them as witnesses. Based upon this knowledge, counsel made an informed strategic decision not to call them. In light of the strong likelihood that the State could have successfully impeached each of these witnesses, it is apparent that there was a reasoned basis for counsel’s decision. Hence, the trial court did not err in concluding that Rose failed to demonstrate that trial counsel’s performance was deficient, or that these alleged errors undermined confidence in the outcome of the guilt phase proceedings. Therefore, we affirm the trial court’s denial of relief as to Rose’s claims of ineffective assistance of counsel at the guilt phase of his trial.

PENALTY PHASE PERFORMANCE OF COUNSEL

We reach a contrary result on Rose’s claim of ineffective assistance of counsel at the penalty phase. In this context, assuming there were errors, Rose “must demonstrate that but for counsel’s errors he would have probably received a life sentence.” Hildwin v. Dugger, 654 So.2d 107, 109 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 420, 133 L.Ed.2d 337 (1995). Such a demonstration is made if “counsel’s errors deprived [defendant] of a reliable penalty phase proceeding.” Id. at 110 (emphasis added). The failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so. Id. at 109-10.

In Baxter v. Thomas, 45 F.3d 1501, 1512-13 (11th Cir.), cert. denied, — U.S. -, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995), the United States Court of Appeals for the Eleventh Circuit outlined the legal framework for considering a claim of ineffective assistance of counsel at the penalty phase of a capital trial:

An ineffective assistance of counsel claim is a mixed question of law and fact subject to plenary review under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir.1991). In order to obtain a reversal of his death sentence on the ground of ineffective assistance of counsel, Baxter

must show both (1) that the identified acts or omissions of counsel were deficient, or outside the wide range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.

Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064), cert. denied, — U.S. -, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).

“An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, — U.S.-, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). The failure to do so “may render counsel’s assistance ineffective.” Bolender, 16 F.3d at 1557.

Rose claims that he is entitled to relief under Hildivin and Baxter since the record reflects that counsel made practically no investigation of mitigation and presented little evidence of mitigation in the sentencing proceedings despite the existence of substantial evidence of mitigating circumstances that would have been uncovered if counsel had made a reasonable investigation.

Rose presented evidence at the hearing below that the following information was available had counsel conducted a reasonable investigation: (1) Rose grew up in poverty; (2) Rose was emotionally abused and neglected throughout his childhood; (3) Rose’s mother locked him in a closet for extended periods of time as a child and tried to lose him and leave without him when they were out; (4) Rose was a slow learner and was retained in the fourth, fifth, and seventh grades; (5) Rose’s I.Q. is 84; (6) Rose was severely injured in a 30-foot fall and suffered head trauma, chronic blackouts, dizziness, and blurred vision; (7) Rose is a chronic alcoholic; and (8) Rose had previously been characterized by a physician as schizoid.

In addition, Dr. Jethro Toomer, a clinical and forensic psychologist, testified that: (1) Rose suffers from organic brain damage; (2) Rose has a longstanding personality disorder; (3) Rose is a chronic alcoholic; (4) Rose meets the criteria for the statutory mitigator of being under the influence of an extreme emotional or mental disturbance at the time of the offense, see § 921.141(6)(b) Fla.Stat. (1993); and (5) Rose’s ability to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was impaired at the time of the offense, see id. § 921.141(6)(f). Dr. Toomer’s opinion was based on a psychosocial evaluation of Rose in which he administered a battery of psychological tests and reviewed Rose’s school, hospital, medical and prison records. His testimony was essentially uncontested. In addition to the evidence outlined above, Rose presented substantial lay testimony regarding mitigation at the postconviction hearing which had not been investigated or was not presented by counsel during the penalty phase proceedings.

It is apparent from the record that counsel never attempted to meaningfully investigate mitigation, and hence violated the duty of counsel “to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Baxter, 45 F.3d at 1513. In short, Rose has demonstrated, largely without dispute, that there was substantial mitigation present and available in this case that was not investigated or presented by defense counsel. In fact, the trial court, in subsequently sentencing Rose after the penalty phase in question, found no mitigating circumstances to have been established by the defense. See Rose v. State, 461 So.2d 84, 85 (Fla.1984), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985).

However, we must also consider the reasons advanced at the evidentiary hearing as to why resentencing counsel did not investigate and present available mitigating evidence at the penalty phase. In evaluating the competence of counsel, we must examine the actual performance of counsel in preparation for and during the penalty phase proceedings, as well as the reasons advanced therefor. As we have already noted in our rejection of the claim of ineffectiveness during the guilt phase, counsel is entitled to great latitude in making strategic decisions.

Initially, we note that Rose was not represented by the same counsel at resentencing as the counsel who represented him in the original guilt phase of the trial. In contrast to the experience of guilt phase counsel, re-sentencing counsel had never handled a capital case before being appointed to represent Rose, and counsel was totally unfamiliar with the concept of aggravating and mitigating factors. He failed to investigate Rose’s background and obtain the school, hospital, prison, and other records and materials that contained the information outlined above as to Rose’s extensive mental problems, etc. Moreover, counsel testified that he felt restricted by the limited time (79 days) he had to prepare for sentencing, during a part of which counsel was married and went away on a ten-day honeymoon. Counsel also expressed concern with the trial judge’s attitude that the case was a simple one requiring little preparation since there had already been one sentencing hearing.

Under these circumstances resentencing counsel chose to present an “accidental death” theory urged upon him by an appellate attorney who had previously represented Rose on appeal, but had not been appointed to represent Rose at sentencing or in any other capacity at the time. It appears that counsel acquiesced in this strategy simply because of the pressure of time and his lack of competence and experience in handling a capital sentencing proceeding. Resentencing counsel also chose to present this theory even though he thought it was far-fetched .at the time. At the hearing below, resentenc-ing counsel testified that,

I would have never in my wildest dreams gone on the theory that it was an accidental death and that it may have been a manslaughter instead of a murder and that he freaked and disposed of the body. That was something that I would have never formulated, okay. To me the better strategy would have been to constantly maintain that he did not do the crime, it’s a circumstantial case, and gone with other areas of mitigation or things of that nature.

When specifically asked if appellate counsel’s assistance was more help or hindrance, counsel replied, “Hindrance. He took me off track of what I would have done. I would have focused on things that would have hopefully established to a jury that he should get life.”

We find counsel’s performance, when considered under the standards set out in Hildwin and Baxter, to be deficient. It is apparent that counsel’s decision, unlike experienced trial counsel’s informed choice of strategy during the guilt phase, was neither informed nor strategic. Without ever investigating his options, counsel latched onto a strategy which even he believed to be ill-conceived. Here, there was no investigation of options or meaningful choice. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991) (“[C]ase law rejects the notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.”), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992). As noted above, it appears to have been a choice directly arising from counsel’s incom-peteney and lack of experience. However, counsel, regardless of his inexperience, was not at liberty to abdicate his responsibility to Rose by substituting his own judgment with that of an appellate colleague.

We still must determine the prejudicial effect, if any, of counsel’s performance. In evaluating the harmfulness of resentenc-ing counsel’s performance, we have consistently recognized that severe mental disturbance is a mitigating factor of the most weighty order, Hildwin, 654 So.2d at 110; Santos v. State, 629 So.2d 838, 840 (Fla.1994), and the failure to present it in the penalty phase may constitute prejudicial ineffectiveness. Hildwin, 654 So.2d at 110. For example, in Baxter the court held:

We hold that Baxter suffered prejudice from his attorneys’ failure to conduct a reasonable investigation into his background. Psychiatric mitigating evidence “has the potential to totally change the evidentiary picture.” Middleton [v. Dugger], 849 F.2d [491] at 495 [ (1988) ]. We have held petitioners to be prejudiced in other cases where defense counsel was deficient in failing to investigate and present psychiatric mitigating evidence. See Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir.) (“prejudice is clear” where attorney failed to present evidence that defendant spent time in mental hospital), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Blanco [v. Singletary], 943 F.2d [1477] at 1503; Middleton, 849 F.2d at 495; Armstrong v. Dugger, 833 F.2d 1430, 1432-34 (11th Cir.1987) (defendant prejudiced by counsel’s failure to uncover mitigating evidence showing that defendant was “mentally retarded and had organic brain damage”).

45 F.3d at 1515. Indeed, the substantial mitigation that has been demonstrated on this record is similar to the mitigation found in Hildwin and Baxter to require a resen-tencing proceeding where such evidence may be properly presented. Phillips v. State, 608 So.2d 778, 783 (Fla.1992) (prejudice established by “strong mental mitigation” which was “essentially unrebutted”), cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993); Mitchell v. State, 595 So.2d 938, 942 (Fla.1992) (prejudice established by expert testimony identifying statutory and nonstatu-tory mitigation and evidence of brain damage, drug and alcohol abuse, and child abuse); State v. Lara, 581 So.2d 1288, 1289 (Fla.1991) (prejudice established by evidence of statutory mitigating factors and abusive childhood).

We also note that in rejecting Rose’s claim, the trial court misconstrued the effect of our prior opinion in this ease by stating: “[T]he Florida Supreme Court has already ruled in the case at bar that the aggravating circumstances were so severe that even a jury override would have been upheld.” Hence, the court reasoned, as urged by the State, that counsel’s failure to investigate and present mitigation would have made no difference. In fact, however, our prior opinion made clear that, because the prior sentencing court found no mitigating circumstances to counter the aggravation, a death sentence could be sustained. In other words, contrary to the trial judge’s conclusion, our prior holding indicates the importance of the absence of mitigation in this case, and supports a conclusion that the failure to present mitigation was extremely harmful to appellant’s case before the sentencing jury.

Our confidence in the outcome of this proceeding is further undermined by the fact that at Rose’s original sentencing trial, even without the presentation of substantial mitigation, the jury was deadlocked at a six-to-six vote on the recommendation of life or death. Rose v. State, 425 So.2d at 525. The jury recommended death only after the trial court gave the jury an Allen charge. We vacated that death sentence and remanded for resentencing because the trial court reversibly erred in charging the jury to continue deliberations when it should have properly instructed them that a six-to-six vote constitutes a recommendation for life imprisonment. In effect, Rose has once received a recommendation of life imprisonment from a jury even without the substantial mitigation set out above.

CONCLUSION

In light of the substantial mitigating evidence identified at the hearing below as compared to the sparseness of the evidence actually presented, we find that counsel’s errors deprived Rose of a reliable penalty phase proceeding. We further conclude that Rose was prejudiced by the ineffective assistance of counsel at the penalty phase for failing to investigate and present available mitigating evidence. See Hildwin, 654 So.2d at 110.

We affirm the trial court’s denial of relief as to all claims raised in the 3.850 motion and hearing below except for Rose’s claim alleging that counsel was ineffective during the resentencing proceeding. We reverse the denial of relief as to that claim, vacate the death sentence, and remand for a new sentencing proceeding before a jury during which the jury may properly consider available evidence of aggravation and mitigation before rendering a verdict.

It is so ordered.

GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion.

. Claims barred because they were or should have been raised on direct appeal are: (1) that Rose’s in-custody statements were obtained and admitted over his assertion of his right to counsel; (2) that the State knowingly used the misleading and false testimony of the medical examiner who performed the autopsy in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); (3) that autopsy photographs were withheld by the state in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (4) that Rose’s confrontation rights were violated when certain proceedings were conducted outside his presence; and (5) that the State withheld material information concerning Rose's statements to police in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the related assertion that the officer’s testimony at the suppression hearing was false. See Medina v. State, 573 So.2d 293, 295 (Fla.1990) (holding that allegations of ineffective assistance cannot be used to circumvent rule that post-conviction proceedings cannot serve as second appeal).

. We find the claim that Rose was prejudiced by an alleged conflict of interest based'on Broward County's budgeting for capital improvements and special assistant public defenders meritless on its face. As to Rose's claim that he did not receive a full and fair 3.850 hearing, we find that the trial court did not abuse its discretion in the way it conducted the evidentiary hearing. See Medina v. State, 573 So.2d at 295.

. Because we remand this case for a new sentencing proceeding, the fact that the jury was not instructed on the definitions of premeditated and felony murder at the penalty phase is now a moot issue.

.In Strickland, the Supreme Court explained in some detail the standard chosen:

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, cf. United States v. Valenzuela—Bernal, 458 U.S. 858, 866-867 [102 S.Ct. 3440, 3445-3446, 73 L.Ed.2d 1193] (1982), and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors "impaired the presentation of the defense.” Brief for Respondent 58. That standard, however, provides no workable principle. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. See Brief for United States as Amicus Curiae 19-20, and nn. 10, 11. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. Cf. United States v. Johnson, 327 U.S. 106, 112 [66 S.Ct. 464, 466, 90 L.Ed. 562] (1946). An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution. United States v. Agurs, 427 U.S., at 104, 112-113 [96 S.Ct., at 2397-98, 2401-02], and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, 458 U.S., at 872-874 [102 S.Ct., at 3449-50], The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

466 U.S. at 693-94, 104 S.Ct. at 2067-68.

. The strategy appears to be closely akin to a claim of residual or lingering doubt, a claim which this Court has repeatedly held is not an appropriate matter to be raised in mitigation during the penalty phase proceedings of a capital case. See King v. State, 514 So.2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988); Aldridge v. State, 503 So.2d 1257 (Fla.1987); Burr v. State, 466 So.2d 1051 (Fla.), cert. denied, 474 U.S. 879, 106 S.Ct. 201, 88 L.Ed.2d 170 (1985).

.The State suggests that resentencing counsel did not investigate and present mitigating evidence because Rose insisted that counsel put on the "accidental death" theory at the penalty phase, rather than pursue mitigation. However, a careful reading of the record indicates otherwise. Resentencing counsel testified that the accidental death theory "changed everything that Mr. Rose ever stood for as far as his view of this case. He never admitted to me he did this crime. Never. Okay. So I mean this theory was a Mr. Carres [the appellate attorney] theory.” We find no support in the record for the position that counsel's strategy was forced upon him by the defendant.

.In its order, the circuit court presumably is referring to the following language from Rose v. Dugger, 508 So.2d 321 (Fla.), cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 267 (1987):

In sentencing Rose to death, the trial judge found no mitigating circumstances and three aggravating circumstances: 1) Rose was under sentence of imprisonment when he committed the murder; 2) Rose had been previously convicted of a violent felony; and 3) the murder was committed during the commission of a kidnapping. If the jury had recommended life, the judge would have been obligated to determine whether "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Even applying this strict standard, we are satisfied that a death penalty would have been imposed and there is no reasonable probability that the result would have been different.

Id. at 324 (emphasis added). The court failed to consider that this Court's observation in Rose v. Dugger was made with respect to the then-existent record. That is, this Court's analysis was not based on a record containing any of the mitigating evidence presented at the 3.850 evi-dentiary hearing now under review.

. The State repeats the same argument on appeal.

. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

. We note the jury's vote only as part of the factual background we must consider in determining the issue of prejudice. We have previously determined that this vote, which the trial court erroneously found to be unacceptable, did not have the legal effect of a jury recommendation for life, which recommendation in turn would have sharply limited the judge's sentencing discretion under Tedder v. State, 322 So.2d 908 (Fla.1975). See Rose v. State, 461 So.2d 84 (Fla.1984). In our initial review of Rose's conviction, we held:

Defendant also challenges his death sentence. He contends that the trial court reversibly erred in giving the "Allen charge” during the penalty phase of the trial. We agree. The record indicates that the charge was given after the jury advised the court by a note which read, "We are tied six to six, and no one will change their mind at the moment. Please instruct us." At that point, the trial judge should have advised the jury that it was not necessary to have a majority reach a sentencing recommendation because, if seven jurors do not vote to recommend death, then the recommendation is life imprisonment. There was no reason to give the “Allen charge” during the penalty phase of the trial.

Rose v. State, 425 So.2d 521, 524-25 (Fla.1983).