State v. Dixon

These cases pose several questions arising from the possibility of the imposition of the penalty of death pursuant to Fla. Stat. § 921.141, F.S.A., which became effective December 8, 1972.

Four cases are here consolidated on the issue of the constitutionality of the capital punishment statutes of the State of Florida. The case of State v. Setser is before this Court on the basis of a certified question from the Circuit Court of Dade County. The case of State v. Hunter and Moore is before this Court on the certified question of the Circuit Court for Duval County. The case of State v. Sheppard is before this Court on the certified question of the Circuit Court for Orange County. We have jurisdiction to determine the questions certified pursuant to Fla.Const., art. V, § 3(b)(3), F.S.A. The case of State v. Dixon, Lester and Sawyer is before this Court on appeal from a decision of the Circuit Court for Dade County that Fla.Stat. §§ 775.082, 921.141, F.S.A., are unconstitutional. We have jurisdiction pursuant to Fla.Const., art. V, § 3(b)(1), F.S.A.

The question certified in the case of State v. Setser is:

“Whether the provisions of Chapter 72-724, Laws of Florida, 1972, prescribing the method and means of determining the penalty to be imposed in a capital case violates the Constitution of the State of Florida and the Constitution of the United States in light of the decision of the United States Supreme Court in the case of Furman v. Georgia, 408 U.S. 238, 32 [33] L.Ed.2d 346, 92 S.Ct. 2726 (1972), and the decision of the Supreme Court of Florida in Donaldson v. Sack, (Florida 1972), 265 So.2d 499.”

In the case of State v. Hunter and Moore, the questions certified are:

“1. Whether the new Florida Murder Statute, Ch. 72-724, Laws of Florida (1972) amending Florida Statute sections 782.04 and 921.141, is unconstitutionally vague in violation of the due process and equal protection guaranteed by the Constitutions of the United States and of the State of Florida because a grand jury when called upon to consider bringing an indictment would be unable to distinguish the language between Murder in the First Degree and Murder in the Second Degree.

“2. Whether the new Florida Murder Statute, Ch. 72-724, Laws of Florida (1972), amending Florida Statute sections 782.04 and 921.141, is unconstitutionally vague in violation of the due process and equal protection guaranteed by the Constitutions of the United States and of the State of Florida because a trial judge cannot determine what specific crimes are embodied within the divisions of Murder in the First Degree and Murder in the Second Degree in order to properly instruct a jury and conduct a trial under the requirements set forth by the Supreme Court of Florida in State v. Washington, 268 So.2d 901 (Fla.1972).”

In the case of State v. Sheppard, the questions certified are:

“Whether the provisions of Florida Statutes 782.04, 775.082 and 921.141 prescribing the penalties for felonies and misdemeanors, the definitions of the degrees of murder and the methods and means of determining the penalty to be imposed upon conviction or adjudication of guilt of a defendant of a capital felony:

“A. Is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States ?

“B. Is an arbitrary infliction of punishment as to deprive the defendant of life, liberty or property without due process of law ?

“C. Is guided by insufficient and arbitrary standards which are vague, indefinite and uncertain as to be contrary to the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Section 12 of the Declaration of Rights of the Constitution of the State of Florida?

“D. Is vague, ambiguous and indefinite as to deprive the defendant of his right to know the nature of the charges, the differentiation between the degrees of homicide and to be able to prepare a defense accordingly ?

“E. Is placing upon the defendant the burden of proving mitigating circumstances in violation of his right against self-incriminating as provided in the Fifth Amendment to the Constitution of the United States ?”

The statutes involved in the questions before this Court are Fla.Stat. §§ 775.082, 782.04, and 921.141, F.S.A. Fla.Stat. § 775.-082, F.S.A., deals with penalties for criminal convictions and provides, in pertinent part:

“(1) A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than twenty-five (25) calendar years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in section 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.”

Fla.Stat. § 782.04, F.S.A., the statute under which all the accuseds before this Court are charged, deals with the crime of murder and provides:

“(l)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed, by a person engaged in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a distructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen (17) years when such drug is proven to be the proximate cause of the death of the user shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.-082.

“(b) In all cases under this section the procedure set forth in section 921.141 shall be followed in order to determine sentence of death or life imprisonment.

“(2) When perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life, or for such term of years as may be determined by the court.

“(3) When perpetrated without any design to effect death, by a person engaged in the perpetration of or in the attempt to perpetrate any felony, other than arson, rape, robbery, burglary, kid-naping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, it shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.” (Emphasis supplied)

Fla.Stat. § 921.141, F.S.A., provides the procedure to be followed in determining what penalty should be assessed following a conviction for a crime designated as a capital felony. It provides:

“(1) Upon conviction or adjudication of guilt of a defendant of a capital felony the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by section 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If the trial jury has been waived or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall inchide matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7) of this section. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; and further provided that this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Florida. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

“(2) After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court based upon the following matters:

“(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (6), and

“(b) Whether sufficient mitigating circumstances exist as enumerated in subsection (7), which outweigh aggravating circumstances found to exist, and

“(c) Based on these considerations whether the defendant should be sentenced to life or death.

“(3) Notwithstanding the recommendation of a majority of the jury, the court after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

“(a) That sufficient aggravating circumstances exist as enumerated in subsection (6), and

“(b) That there are insufficient mitigating circumstances, as enumerated in subsection (7), to outweigh the aggravating circumstances. In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (6) and (7) and based upon the records of the trial and the sentencing proceedings.

“(4) If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with section 775.082.

“(5) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within sixty (60) days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed thirty (30) days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Supreme Court.

“(6) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:

“(a) The capital felony was committed by a person under sentence of imprisonment ;

“(b) The defendant was previously convicted of another capital felony or of a felony involving th'e use or threat of violence to the person;

“(c) The defendant knowingly created a great risk of death to many persons;

“(d) The capital felony was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit any robbery, rape, arson, burglary, kidnaping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive-device or bomb;

“(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;

“(f) The capital felony was committed for pecuniary gain;

“(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws;

“(h) The capital felony was especially heinous, atrocious or cruel.

“(7) Mitigating circumstances.' — Mitigating circumstances shall be the following:

“(a) The defendant has no significant history of prior criminal activity;

“(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance;

“(c) The victim was a participant in the defendant’s conduct or consented to the act;

“(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor;

“(e) The defendant acted under extreme duress or under the substantial domination of another person;

“(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;

“(g) The age of the defendant at the time of the crime.” (Emphasis supplied)

The Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and subsequent decisions struck down the previously existing death provisions of the several states with the possible exception “of a very few mandatory statutes” (See 408 U.S. 417, n. 2, 92 S.Ct. 2818), by holding:

“[T]he imposition and carrying out of the death penalty in [these cajej] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” (Emphasis supplied) (pp. 239-240, 92 S.Ct. p. 2727)

This is the only controlling law which Furman v. Georgia, supra, provides, as no more specific statement of the law could garner a majority of the members of the high court. It is not in the province of this Court to attempt to predict the future holdings of the Supreme Court of the United States and to attempt to weigh the laws of the State of Florida in light of the separate opinions of the five justices who constituted the majority in Furman v. Georgia, supra.

Two points can, however, be gleaned from a careful reading of the nine separate opinions constituting Furman v. Georgia, supra. First, the opinion does not abolish capital punishment, as only two justices — Mr. Justice Brennan and Mr. Justice Marshall — adopted that extreme position. The second point is a corollary to the first, and one easily drawn. The mere presence of discretion in the sentencing procedure cannot render the procedure vio-lative of Furman v. Georgia, supra; it was, rather, the quality of discretion and the manner in which it was applied that dictated the rule of law which constitutes Furman v. Georgia, supra.

Discretion and judgment are essential to the judicial process, and are present at all stages of its progression — arrest, arraignment, trial, verdict, and onward through final appeal. Even after the final appeal is laid to rest, complete discretion remains in the executive branch of government to honor or reject a plea for clemency. See Fla.Const., art. IV, § 8, F.S.A., and U.S. Const., art. II, § 2.

Thus, if the judicial discretion possible and necessary under Fla.Stat. § 921.141, F.S.A., can be shown to be reasonable and controlled, rather than capricious and discriminatory, the test of Furman v. Georgia, supra, has been met. What new test the Supreme Court of the United States might develop at a later date, it is not for this Court to suggest.

As will be discussed hereafter, we have determined that each of the questions certified by the three circuit courts involved in the case sub judice must be answered in the negative, and the circuit court in the case of State v. Dixon, case No. 43,521, must be reversed.

Capital punishment is not, per se, violative of the Constitution of the United States (Furman v. Georgia, supra) or of Florida. Wilson v. State, 225 So.2d 321 (Fla.1969).

Death is a unique punishment in its finality and in its total rejection of the possibility of rehabilitation. It is proper, therefore, that the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of most serious crimes. In so doing, the Legislature has also r'ecognized the inability of man to predict the myriad tortuous paths which criminality can choose to follow. If such a prediction could be made, the Legislature could have merely programmed a judicial computer with all of the possible aggravating factors and all of the possible mitigating factors included — with ranges of possible impact of each — and provided for the imposition of death under certain circumstances, and for the imposition of a life sentence under other circumstances. However, such a computer could never be fully programmed for every possible situation, and computer justice is, therefore, an impossibility. The Legislature has, instead, provided a system whereby the possible aggravating and mitigating circumstances are defined, but where the weighing process is left to the carefully scrutinized judgment of jurors and judges.

It is necessary at the outset to bear in mind that all defendants who will face the issue of life imprisonment or death will already have been found guilty of a most serious crime, one which the Legislature has chosen to classify as capital. After his adjudication, this defendant is nevertheless provided with five steps between conviction and imposition of the death penalty— each step providing concrete safeguards beyond those of the trial system to protect him from death where- a less harsh punishment might be sufficient.

First, the question of punishment is reserved for a post-conviction hearing so that the trial judge and jury can hear other information regarding the defendant and the crime of which he has been convicted before determining whether or not death will' be required. Both the State and the defendant are allowed to present evidence at the hearing, evidence which might have been barred or withheld from a trial on the issue of guilt or innocence.

The discretion of the trial judge in determining what evidence might be relevant to the sentence is not unbridled. It is merely a necessary power to avoid a needlessly drawn out proceeding where one party might choose to go forward with evidence which bears no relevance to the issues being considered. It is easily determined from the broadness of the statute that a narrow interpretation of the rules of evidence is not to be enforced, whether in regards to relevance or to any other matter except illegally seized evidence.

Another advantage to the defendant in a post-conviction proceeding, is his right to appear and argue for mitigation. The State can cross-examine the defendant on those matters which the defendant has raised, to get to the truth of the alleged mitigating factors, but cannot go beyond them in an attempt to force the defendant to prove aggravating circumstances for the State. A defendant is protected from self-incrimination through the Constitutions of Florida and of the United States. Fla. Const., art. I, § 9, F.S.A., and U.S.Const., Amend. V. In no event, is the defendant forced to testify. However, if he does, he is protected from cross-examination which seeks to go beyond the subject matter covered on his direct testimony and extend to matters concerning possible aggravating circumstances.

The second step of the sentencing procedure is that the jury — the trial jury if there was one, or a specially called jury if jury trial was waived — must hear the new evidence presented at the post-conviction hearing and make a recommendation as to penalty, that is, life or death. With the issue of guilt or innocence disposed of, the jury can then view the question of penalty as a separate and distinct issue. The fact that the defendant has committed the crime no longer determines automatically that he must die in the absence of a mercy recommendation. They must consider from the facts presented to them — facts in addition to those necessary to prove the commission of the crime — whether the crime was accompanied by aggravating circumstances sufficient to require death, or whether there were mitigating circumstances which require a lesser penalty.

The third step added to the process of prosecution for capital crimes is that the trial judge actually determines the sentence to be imposed — guided by, but not bound by, the findings of the jury. To a layman, no capital crime might appear to be less than heinous, but a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activity which can only be developed by involvement with the trials of numerous defendants. Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is viewed in the light of judicial experience.

The fourth step required by Fla.Stat. § 921.141, F.S.A., is that the trial judge justifies his sentence of death in writing, to provide the opportunity for meaningful review by this Court. Discrimination or capriciousness cannot stand where reason is required, and this is an important element added for the protection of the convicted defendant. Not only is the sentence then open to judicial review and correction, but the trial judge is required to view the issue of life or death within the framework of rules provided by the statute.

Review of a sentence of death by this Court, provided by Fla.Stat. § 921.141, F. S.A., is the final step within the State judicial system. Again, the sole purpose of the step is to provide the convicted defendant with one final hearing before death is imposed. Thus, it again presents evidence of legislative intent to extract the penalty of death for only the most aggravated, the most indefensible of crimes. Surely such a desire cannot create a violation of the Constitution.

We also consider it reasonable to require that a finding that life imprisonment be imposed rather than death should be supported in writing by the trial judge. This we do require under our constitutional power to regulate practice and procedure in the courts. Fla.Const., art. V, § 2(a), F.S.A.

Cases involving life imprisonment would not be directly reviewable by this Court, and the District Courts of Appeal would not be empowered to overturn the trial judge on the issue of sentence. However, requiring these findings by the judge provides an additional safeguard for the defendant sentenced to death in that it provides a standard for life imprisonment against which to measure the standard for death established in the defendant’s case, and again avoids the possibility of discriminatory sentences of death.

The most important safeguard presented in Fla.Stat. § 921.141, F.S.A., is the propounding of aggravating and mitigating circumstances which must be determinative of the sentence imposed. It is argued that the circumstances are vaguely worded in some cases, and that they do not provide meaningful restraints and guidelines for the discretion of judge and jury. We disagree.

The aggravating circumstances of Fla. Stat. § 921.141(6), F.S.A., actually define those crimes — when read in conjunction with Fla.Stat. §§ 782.04(1) and 794.01(1), F.S.A. — to which the death penalty is applicable in the absence of mitigating circumstances. As such, they must be proved beyond a reasonable doubt before being considered by judge or jury.

Considered in that vein, Fla.Stat. § 921.-141(6), subsections (a) and (b), F.S.A., prescribe the death penalty for a capital felony committed by a prisoner or by one previously convicted of a capital felony. These conditions represent two situations wherein the death penalty has been determined by the Legislature to be applicable, absent overriding mitigating factors.

Likewise, Fla.Stat. § 921.141(6) (c), F.S. A., provides the death penalty for one who is convicted of a capital felony in which he knowingly created a great risk of death to many persons. The use of the adjectives “great” and “many” is attacked as vague, but we feel that a man of ordinary intelligence and knowledge easily conceives the concepts involved.

Fla.Stat. § 921.141 (6>(d), F.S.A., provides that the commission of a capital felony as part of another dangerous and violent felony constitutes not only a capital felony under Fla.Stat. § 782.04(1), F.S.A., but also an' aggravated capital felony. Such a determination is, in the opinion of this Court, reasonable.

Capital felonies committed with the motive of avoiding arrest, escape, monetary gain, or the disruption or hinderance of the lawful exercise of government or law enforcement have also been designated as aggravated capital felonies pursuant to Fla.Stat. § 921.141, F.S.A., subsections (e), (f) and (g), F.S.A., and we again feel that the definitions of the crimes intended to be included are reasonable and easily understood by the average man.

The aggravating circumstance which has been most frequently attacked is the provision that commission of an especially heinous, atrocious or cruel capital felony constitutes an aggravated capital felony. Fla.Stat. § 921.141(6) (h), F.S.A. Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more, of the mitigating circumstances provided in Fla.Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.

The first mitigating circumstance is that the defendant has no prior significant history of criminal activity. Fla.Stat. § 921.-141(7) (a), F.S.A. As to what is significant criminal activity, an average man can easily look at a defendant’s record, weigh traffic offenses on the one hand and armed robberies on the other, and determine which represents significant prior criminal activity. Also, the less criminal activity on the defendant’s record, the more consideration should be afforded this mitigating circumstance.

Extreme mental or emotional disturbance is a second mitigating consideration, pursuant to Fla.Stat. § 921.141(7) (b), F.S.A., which is easily interpreted as less than insanity but more than the emotions of an average man, however inflamed.

If the victim was a participant in or consented to the criminal conduct, or if the defendant was found guilty of a capital felony as an accomplice and did not play any major part in the capital felony, these factors are also to be considered. Fla.Stat. § 921.141(7), subsections (c) and (d), F. S.A.

While duress or domination by another person may not excuse a capital felony, the Legislature has determined that they should be considered in mitigation, not of the guilt of the defendant, but of the sentence. Fla.Stat. § 921.141 (7) (e), F.S.A. Such a consideration appears to us to be reasonable, and another protection of the defendant who has at least some basis for seeking the mercy of society.

Mental disturbance which interferes with but does not obviate the defendant’s knowledge of right and wrong may also be considered as a mitigating circumstance. Fla. Stat. § 921.141(7) (f), F.S.A. Like subsection (b), this circumstance is provided to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.

Finally, the age of the defendant may be considered pursuant to Fla.Stat. § 921.-141(7) (g), F.S.A. This allows the judge and jury to consider the effect that the inexperience of the defendant on the one hand or, in conjunction with subsection (a), the length of time that the defendant has obeyed the laws in determining whether or not one explosion of total criminality warrants the extinction of life.

Common law recognizes a presumption of the incapacity of an infant to commit a crime, and under the age of seven years, the presumption is conclusive. 43 C.J.S. Infants § 96(d)(1)(b); 6 F.L.P., Criminal Law, § 26. The possible effect of great age with its attendant weaknesses and infirmities has also been recognized as to the issue of competency, as the Ohio Court of Common Pleas held,

“[A]ge is an item of proof competent and worthy of being considered in an investigation to determine the question of competency.” Corbit v. Corbit, 7 Dec. Repr. 692, p. 697, IV Wkly.Law Bull. 1006 (Ohio Coshocton C.P.1879).

Thus, the Legislature has chosen to provide for consideration of the age of the defendant — whether youthful, middle aged, or aged — in mitigation of the commission of an aggravated capital crime. The meaning of the Legislature is not vague, and we cannot say that such a consideration is unreasonable per se. Any inappropriate application by a jury of the standard under the facts of a particular case may be corrected by the Court.

It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia, supra, can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.

The Circuit Courts of Duval and Orange Counties have also certified questions involving the interpretation of Fla.Stat. § 782.04, F.S.A., insofar as it defines the crimes of murder in the first degree and murder in the second degree. As quoted above, Fla.Stat. § 782.04(2), F.S.A., provides that murder “committed in the perpetration of or in the attempt to perpetrate” any one of seven specified violent felonies is a murder of the second degree. A murder “committed by a person engaged in the perpetration of or in the attempt to perpetrate” any of the same violent felonies is a murder in the first degree. Fla.Stat. § 782.04(1) (a), F.S.A.

The trial judge in State v. Dixon held that the distinction between the two sections of the murder statute was illusory, and that one charged with one of the crimes could interchangeably he charged with the other at the whim of the grand jury. We disagree, and hold that the statute does establish two separate and easily distinguishable degrees of crime, depending upon the presence of the defendant as a principal in the first or second degree.

Under the prior Fla.Stat. § 782.04, F.S. A. (amended effective December 8, 1972), the distinction was not present, and Fla. Stat. § 776.011, F.S.A., provides,

“Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.”

The effect of this law was that the traditional definitions of principal in the first degree, principal in the second degree, and accessory before the fact were all combined within the statutory definition of principal in the first degree in Fla.Stat. § 776.011, F.S.A., and in the repealed Fla. Stat. § 782.04, F.S.A.

The obvious intention of the Legislature in making this change is to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second degree. As to the distinction in any particular case, we need but refer to the rich heritage of case law on the distinctions between principals in the first or second degree and accessories before the fact.

Having reviewed the statutes under consideration, it is the opinion of this Court that Fla.Stat. §§ 775.082, 782.04 and 921.-141, F.S.A., are constitutional as measured by the controlling law of this State and under the constitutional test provided by Furman v. Georgia, supra.

Accordingly, the certified questions of the Circuit Courts of Dade, Orange and Duval Counties are all answered in the negative, and the decision of the Circuit Court for Dade County in State v. Setser is reversed and the causes are all remanded for further proceedings not inconsistent herewith.

It is so ordered.

CARLTON, C. J., McCAIN and DEKLE, JJ., and WILLIS, Circuit Judge, concur.

ERVIN, J., dissents with opinion.

BOYD, J., dissents with opinion.