Messer v. State 384 So. 2d 644

PER CURIAM.

The decision and opinion rendered by the Court on April 26, 1979, are withdrawn.

This case was previously before the Court on appeal. Art. V, § 3(b)(1), Fla.Const. The sentence of death was vacated and the case remanded for a second sentencing trial. Messer v. State, 330 So.2d 137 (Fla.1976). The second sentencing proceeding resulted in a sentence of death and this appeal followed.

Subsequently, following the decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), this Court issued an order on June 16, 1977, requiring the trial judge to state whether he imposed the death sentence in consideration of any information not known to the appellant and to furnish this Court with any presentence investigation reports and other reports which were before him for consideration in imposing sentence.

On September 26, 1977, the trial judge filed a response stating that at sentencing he had before him a presentence investigation report and that it contained no information not known to the appellant at the time of sentencing. The response did not state whether a copy of the report was furnished to the appellant, nor was it accompanied by a copy of the report when filed with this Court.

Previously, on March 30, 1977, this Court had ordered the Parole and Probation Commission to furnish a copy of the presentence investigation report. The Commission’s response of April 5,1977 stated that it had no record of a presentence investigation conducted on the appellant.

A communication from the Clerk of the Circuit Court for Santa Rosa County, dated October 11, 1977, states that all reports before the court at sentencing were transmitted to this Court with the record on appeal. It specifically states that there was no presentence investigation ordered.

The appellant has moved that we require clarification of the trial judge’s response to our Gardner order. In light of the above-*645recited facts, we have decided that a clarification is necessary.

The trial court is directed to hold a hearing to determine whether the sentence of death was imposed in consideration of any information not disclosed to appellant or any reports not furnished to him prior to sentencing. The court will report its findings to this Court within sixty days of receipt of this order.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and SUNDBERG, JJ., concur.

On Rehearing

PER CURIAM.

The Court having considered the trial judge’s response to our November 8, 1979, order directing a hearing on the question of a possible violation of the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and the appellant’s motions in reference thereto, it is hereby concluded and adjudged that:

A hearing held to determine whether a sentence of death was imposed in consideration of any information not disclosed to the defendant is a critical stage of the criminal proceedings, at which the defendant is entitled to be represented by counsel.

Therefore, the trial court erred in concluding that there was no need for the appellant to have legal representation at the hearing.

When this Court, during the penden-cy of an appeal from a judgment imposing a sentence of death, orders a hearing on the issue of whether the sentence was imposed in consideration of any information not disclosed to the appellant, such hearing is a part of the appellate process and it is proper for appointed appellate counsel to represent the appellant at such hearing.

The trial court shall hold a further hearing to determine whether the sentence of death was imposed in consideration of any information not disclosed to the appellant or any reports not furnished to him prior to sentencing, and the Public Defender of the Second Judicial Circuit is hereby directed to represent the appellant at the hearing.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.