Summary:

At approximately 10:30 a.m., 10-year-old Elisa Nelson was riding her bike to school. She was late for school because she had a dentist appointment that morning, and her mother had given her a note excusing her absence.

Elisa’s bicycle was found later that day in a ditch approximately one mile from Elisa’s school. Her body was found the next day after an extensive seach. She died from a skull fracture possibly caused by a single blow to the head.

The same day that Elisa disappeared, Mann attempted to commit suicide by slashing both of his forearms and stated that he had “done something stupid and needed help.” A month later, Mann asked his wife to retrieve his glasses from his 1957 Chevy pickup truck. Upon doing so, she found a bloodstained note that Elisa’s mother had written to excuse her from school. A friend of Mrs. Mann’s reported this finding to the police and that resulted in a search warrant of Mann’s truck and house. Inside the truck, a bloodstain was found with the same blood type as both Mann and Elisa.

Mann had a history of attempted suicides, pedophilia and psychotic depressions.

Citations:

Mann v. State, 420 So.2d 578 (Fla. 1982). (Direct Appeal)
Mann v. State, 453 So.2d 784 (Fla. 1984). (Direct Appeal - After Resentencing)
Mann v. State, 482 So.2d 1360 (Fla. 1986). (PCR)
Mann v. State, 603 So.2d 1141 (Fla. 1992). (Direct Appeal - After Resentencing)
Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988). (Federal Habeas)

Final / Special Meal:

Fried shrimp, fish and scallops, stuffed crabs, hot butter rolls, cole slaw, pistachio ice cream and a Pepsi.

Final Words:

None.

ClarkProsecutor.org

DC Number: 077663
Name: MANN, LARRY E
Race: WHITE
Sex: MALE
Hair Color: BROWN
Eye Color: Hazel
Height: 5'11"
Weight: 183 lbs.
Birth Date: 06/09/1953
Initial Receipt Date: 04/06/1981
Aliases: LARRY E MANN, LARRY EUGENE MANN

Current Prison Sentence History:

Offense Date-Offense-Sentence Date-County-Case No.-Prison Sentence Length

11/04/1980
1ST DG MUR/PREMED. OR ATT.
03/26/1981
PINELLAS
8008741
DEATH SENTENCE

11/04/1980
KIDNAP;COMM.OR FAC.FELONY
03/26/1981
PINELLAS
8008741
99Y 0M 0D

Florida executes man for 1980 murder of 10-year-old schoolgirl

Reuters.com

Apr 10, 2013

(Reuters) - Florida executed one of its longest-serving death row inmates on Wednesday for kidnapping and killing a 10-year-old girl in 1980. Larry Eugene Mann, 59, was pronounced dead from a lethal injection at 7:19 p.m. EDT (2319 GMT) at the Florida State Prison in Starke, the Florida Department of Corrections said. A last-minute appeal had been denied shortly before the execution.

Mann, a pedophile who had previously served time in prison for sexual battery, snatched Elisa Nelson from her bicycle as she pedaled to school on November 4, 1980, in the Gulf Coast town of Palm Harbor, according to court documents. He threw the bicycle in a ditch and drove the girl to an orange grove, where he beat her, stabbed her and crushed her head with a concrete-encased pole, trial evidence showed. Elisa had carried a note in her pocket explaining that she was late for school because she had a dental appointment. The blood-stained note was found in Mann's truck.

Mann was convicted of murder and sentenced to die in 1981, then received the death penalty again in 1990 after a federal court granted him a re-sentencing.

In an appeal rejected by the U.S. Supreme Court last week, Mann's lawyers argued that Florida's death penalty law failed to meet evolving standards of decency, in part because it allows a jury to recommend death by a simple majority rather than requiring unanimity. They also said Mann had been arbitrarily chosen for execution from among more than 400 Florida Death Row inmates, 94 of whom had exhausted their appeals.

Since his 1990 re-sentencing, Mann's case had been reviewed by dozens of judges and justices, according to Florida Attorney General Pam Bondi.

Larry Mann executed for Palm Harbor girl's 1980 killing

By Dan Sullivan - TampaBay.com

Wednesday, April 10, 2013

STARKE — Larry Eugene Mann, who crushed a little girl's skull 32 years ago, died Wednesday night as chemicals coursed through his veins. Mann was executed by lethal injection at Florida State Prison for the murder of 10-year-old Elisa Vera Nelson, whom he abducted one morning in 1980 as she rode her bicycle to school in Palm Harbor. He was pronounced dead at 7:19 p.m. He was 59.

Afterward, Jeff Nelson, Elisa's brother, stood in the light of a setting sun outside the prison, joining a crowd of about 50 people who turned out to offer support. Nelson, who was 12 when his sister was killed, thanked authorities for the capture and prosecution of Mann. He also thanked Gov. Rick Scott, who signed Mann's death warrant. For three decades, he said, lawyers have talked about how Mann has changed in prison, how he studied the Bible and prayed and expressed remorse. But no one ever talked about Elisa, he said. She had a cheeky grin and bested a little league team full of boys. She was a cheerleader and dancer who loved to play teacher and tutored neighborhood kids. She was a fun-loving fifth-grader with big blue eyes and shades of gold running through long, blond hair. She loved reading and learning and meeting new people. She tumbled through gymnastic lessons. At home, she hung posters of John Travolta on her bedroom wall. She had a cat named Smokey and a dog named Stupid. Her parents, David and Wendy Nelson, moved to Florida from Michigan in the early 1970s and started a successful construction business.

On the morning of Nov. 4, 1980, Wendy Nelson took her daughter to an orthodontist to be fitted with braces. She wrote a note to excuse Elisa's tardiness from class at Palm Harbor Middle School. Just after 10:30 a.m., Elisa pedaled off to school on her blue and silver bike. Elisa's parents reported her missing later that day and Pinellas sheriff's deputies launched a massive search. Nearly half of Palm Harbor turned out to help, one deputy later testified. Before sunset, a sheriff's helicopter spotted Elisa's bike in a drainage ditch north of the school. The next day, two men searching an isolated, weed-choked orange grove west of County Road 39 found her body beneath an avocado tree. Her throat had been cut, an autopsy showed, but she died from a single blow to the head from a concrete block.

The crime began to unravel after someone phoned a TV station and said authorities should look at Mann. Detectives later learned the call came from one of his neighbors, who had seen him washing dirt off the tires on his 1957 Chevrolet pickup shortly after Elisa went missing. It wasn't the first time Mann had been investigated for a violent crime. In 1973, in Mississippi, he forced his way into an apartment where a woman was baby-sitting a 1-year-old boy. He made the woman commit a sex act, threatening to harm the child if she didn't. He was later arrested and served time in prison. Before that, when he was a teen, Mann kidnapped a 7-year-old girl from a church parking lot and molested her. A forensic exam of Elisa's bike turned up a set of fingerprints under the seat and near the front tire. They belonged to Mann.

But the case's biggest break came a few days later when Mann's wife, Donna, went to his truck to retrieve his glasses. On the front seat, she found Wendy Nelson's note excusing Elisa for being late to school. It was stained with blood. She gave the note to detectives. They searched his truck and found blood and hair matching Elisa's inside the cab. A paint scraping from the rear bumper matched paint from Elisa's bike. And pieces of foam rubber from the front seat matched pieces stuck to Elisa's clothing. Prosecutors theorized that Mann abducted Elisa intending to molest her, but did not go through with it. When she tried to escape, he killed her. A jury convicted him of first-degree murder in April 1981 and recommended death by a 7-5 vote.

But legal errors led him to be resentenced twice — in 1983 and 1990. And appeals kept him alive on death row for more than three decades. Few men on death row had been there longer. In that time, lawyers argued, Mann changed. He corresponded with Sister Loretta Pastva, a nun and professor at Notre Dame College in Ohio, writing her more than 400 letters. "He realizes the seriousness of the thing he did," Pastva testified in a 1998 appellate hearing. "He is very sorry about it. He does not expect anything, any special treatment, but he would wish for some mercy."

Such thoughts stoked the ire of Elisa's surviving family. "It is glaringly apparent that there is something fundamentally flawed with a justice system that takes over 32 years to bring to justice a pedophile who confessed to kidnapping and murdering a 10-year-old girl," Jeff Nelson said. "Several juries of Mann's peers decided that his crime was so heinous that he should die for it. For the last 12,000 days, there have been arguments about pieces of paper that have no bearing on the facts of this case. … But there is never any deliberation about what he did to Elisa in that orange grove on that November morning." Earlier in the day, Mann prepared a written statement. It quoted Bible verse, Romans 6:23: "For the wages of sin is death: but the gift of God is eternal life in Christ Jesus our Lord."

Mann had a last meal of fried shrimp, fish and scallops, stuffed crabs, hot butter rolls, cole slaw, pistachio ice cream and Pepsi.

Twenty-one witnesses stared at their reflections in a rectangular window as the execution team prepared behind a brown curtain. At 7:03 p.m., the curtain rose. Mann lay strapped to a gurney. His bald white head peeked out the end of a white sheet that covered his body. An intravenous tube pierced his left arm. He lifted his head and looked through the window. He leaned back and gazed at the ceiling. A prison official asked if he wanted to say anything. "Uh, no, sir.," Mann said. The chemicals began flowing at 7:04. The witnesses watched in silence. Mann closed his eyes. His chest rose and fell. At 7:07, his mouth slipped open. His cheeks turned ashen. At 7:19, a man in a white coat appeared from behind a curtain. He lifted Mann's eyelids and shined a light. He put a stethoscope to his chest.

It was over in 15 minutes. The curtain closed.

*****

Execution nears for killer of Pinellas girl, possibly linked to more deaths

By Dan Sullivan

Sunday, April 7, 2013

PALM HARBOR — No one doubts what Larry Eugene Mann did the morning of Nov. 4, 1980. It has been well established, through forensic evidence, witness statements and Mann's own words — that he abducted 10-year-old Elisa Nelson as she rode her bicycle to school that Tuesday morning 32 years ago. Mann has never claimed he didn't snatch the blond-haired fifth-grader off a Palm Harbor street. He has never denied taking her to the orange grove where she was killed.

Still, years of legal wrangling has prolonged the dreadful story of one of the worst crimes in Pinellas County history. This week, the final chapter might finally be written. Barring a successful last-minute appeal, Mann will be strapped to a gurney at 6 p.m. Wednesday inside Florida State Prison and injected with a lethal cocktail of chemicals. It will mean justice for Elisa's family. But when the 59-year-old former well-driller draws his final breath, he may take with him knowledge of other murders that remain unsolved.

Two states and more than 500 miles away from the place where Elisa died, authorities in south Mississippi have scoured old case files in recent years, trying to link Mann to three of the area's cold cases from the 1970s. A Mississippi native, Mann lived in Pascagoula in that decade. Despite remarkable similarities to Elisa's case, authorities have never been able to say for certain that he committed any of the murders. "I just can't fathom that he had never done that before," said Pascagoula police Detective Darren Versiga. "Are there things he got away with? Absolutely."

• • •

On Feb. 1, 1973, Rose Marie Levandoski vanished after she left class to use a restroom at St. Martin Junior High School in southern Mississippi. Three weeks later, authorities found the 13-year-old's nude body floating in a river near Biloxi. She had been stabbed to death. In October of that year, Larry Mann forced his way into an apartment on Lanier Street in Pascagoula, where a woman was babysitting a 1-year-old boy, according to police. He grabbed the woman by the hair and forced her to her knees. If you don't give me what I want, Mann told the woman, I will take it from the baby. He forced her to commit a sex act on him. Police later caught up with Mann. He was convicted of sexual battery and burglary and sentenced to prison.

Two years later, Mann was living in a work-release camp, which allowed him limited access to the outside world while he served his sentence. On Sept. 24, 1975, Janie Sanders disappeared after walking home with classmates along Lanier Street in Pascagoula. A wildlife officer found the 16-year-old's body the same day, dumped in the woods near Grand Bay, Ala. She had been raped and stabbed. Even with numerous leads and a handful of other suspects, the Levandoski and Sanders cases both eventually went cold.

In 2009, Pascagoula police, who investigated the Sanders kidnapping, began to re-examine their unsolved cases. Detective Versiga looked for patterns of predatory behavior. He noted the obvious similarities with the Sanders and Levandoski slayings and the December 1978 murder of 20-year-old Debra Gunter, who was kidnapped from her job as a clerk at a Gautier, Miss., convenience store and found stabbed to death five days later. He learned of Mann and studied the Nelson case. "He is a predator," Versiga said. "Predators don't just wake up during the night and say, 'I think I'm going to go kill somebody today.' "

Mann once lived on Lanier Street in Pascagoula, Versiga said, where Sanders was last seen, and where he attacked the woman in the 1973 rape case. Despite exhaustive efforts, the detective was unable to determine if Mann was indeed involved in the other cases. "I have looked at him and I can't say he didn't do it," Versiga said. "He was in jail in '81 and a lot of things stopped after that."

• • •

In his years on death row, Mann has maintained he is no longer the violent sexual predator he was three decades ago. After Gov. Rick Scott signed his death warrant March 1, Mann's legal team filed a lengthy appeal with the state Supreme Court. In it, the attorneys noted Mann's spotless prison record, his status as a revered figure among prison guards and fellow inmates, and his in-depth studies of the Bible. They noted remorse he has expressed for killing Elisa, an act he once described as "the cross on which I am crucified daily."

That is little consolation for Elisa's family, who have called for the death penalty since the day he was charged with her murder. For 32 years, they have watched and waited and hoped as Mann's first execution date was stayed, as his death sentence was twice vacated and reinstated. In the 1980s and 1990s, Elisa's mother, Wendy Nelson, was involved in victim advocacy issues, forming the League of Victims and Empathizers (LOVE). In 1994, she appeared in a campaign advertisement for Jeb Bush during his first run for governor. In the ad, Nelson accused then-Gov. Lawton Chiles of being soft on crime for not signing Mann's death warrant.

This month, the state Supreme Court denied Mann's last appeal. The Nelson family has declined to speak publicly since the latest death warrant was signed. "What we're pushing for is to have the law enforced," Wendy Nelson told a reporter in 1982. "Maybe there will be a little girl alive 10 years from now because of this."

Florida authorities have a sample of Mann's DNA in a database, making links to other crimes possible. Still, answers in the Mississippi cases may never be known. Hurricane Katrina destroyed much of the records and evidence there in 2005, Versiga said. "It would be nice if he decided to give a confession in the last few days here," he said. "He might want to cleanse his soul."

Florida executes man for 1980 murder of 10-year-old schoolgirl

Sun-Sentinel.com

April 10, 2013

(Reuters) - Florida executed one of its longest-serving death row inmates on Wednesday for kidnapping and killing a 10-year-old girl in 1980. Larry Eugene Mann, 59, was pronounced dead from a lethal injection at 7:19 p.m. EDT (2319 GMT) at the Florida State Prison in Starke, the Florida Department of Corrections said. A last-minute appeal had been denied shortly before the execution.

Mann, a pedophile who had previously served time in prison for sexual battery, snatched Elisa Nelson from her bicycle as she pedaled to school on Nov. 4, 1980, in the Gulf Coast town of Palm Harbor, according to court documents. He threw the bicycle in a ditch and drove the girl to an orange grove, where he beat her, stabbed her and crushed her head with a concrete-encased pole, trial evidence showed. Elisa had carried a note in her pocket explaining that she was late for school because she had a dental appointment. The blood-stained note was found in Mann's truck.

Mann was convicted of murder and sentenced to die in 1981, then received the death penalty again in 1990 after a federal court granted him a re-sentencing. In an appeal rejected by the U.S. Supreme Court last week, Mann's lawyers argued that Florida's death penalty law failed to meet evolving standards of decency, in part because it allows a jury to recommend death by a simple majority rather than requiring unanimity. They also said Mann had been arbitrarily chosen for execution from among more than 400 Florida Death Row inmates, 94 of whom had exhausted their appeals.

Since his 1990 re-sentencing, Mann's case had been reviewed by dozens of judges and justices, according to Florida Attorney General Pam Bondi.

Florida man executed in girl's 1980 slaying

By Brendan Farrington MiamiHerald.com

April 10, 2013

STARKE, Fla. -- Florida executed one of the longest-serving inmates on its death row Wednesday evening, 32 years after he kidnapped and murdered a 10-year-old girl who was riding her bike to school after a dentist put on her braces. Larry Eugene Mann was put to death by lethal injection for kidnapping and murdering Elisa Vera Nelson on Nov. 4, 1980. Melissa Sellers, a spokeswoman for Gov. Rick Scott's office, said Mann was pronounced dead at 7:19 p.m. at the Florida State Prison in Starke. He was 59.

The death sentence was carried out more than an hour after the U.S. Supreme Court denied Mann's latest appeal. The condemned man answered "Uh, no sir," when asked if he had any last words before the procedure began. There were 28 witnesses to the execution, including media and corrections personnel, and a group of Elisa's relatives sat in the front row wearing buttons with her photo on them. Afterward, Elisa's family was joined by a group of friends and family as her brother, Jeff Nelson, read a statement describing his sister as a "bright, funny, caring, beautiful little girl" who loved to play baseball and pretend to be a school teacher. He said she was a Girl Scout who would take in stray pets and donated money she earned to charity. She was a cheerleader who loved to dance and sing.

Then he described in horrifying detail how she died, saying Mann abducted her less than 100 yards from her school in Pinellas County. He said his sister fought hard, and Mann beat her, sending blood and hair throughout his pickup truck, as well as the note his mother wrote excusing Elisa from being late to school. He described how Mann pulled over into an abandoned orange grove, slit her throat twice, and then bludgeoned her head with a pipe with a cement base. He paused from the written statement to add, "We just watched that same man slip into a very peaceful sleep. That's a far cry from how my sister passed." Earlier, Nelson's wife Debbie grasped his arm as Mann's sentence was carried out. Asked by the execution team leader if he had any final words, Mann said, "Uh,no sir." Elisa's parents, David and Wendy Nelson, watched in silence. Her father kept his arms cross as he stared at Mann, who kept his eyes closed except for a brief moment throughout the procedure.

Outside the prison, there were 43 people gathered in favor of the execution and, in a separate area, 38 people were protesting the death penalty.

In 1980, Mann tried killing himself immediately after the girl's slaying, slashing his wrists and telling responding police officers he had "done something stupid." They thought he was talking about the suicide attempt until a couple of days later when Mann's wife found the bloodied note Elisa's mother wrote. While Mann sought to die the day he killed Elisa, his lawyers had succeeded in keeping him alive for decades through scores of appeals. His lawyers didn't contest his guilt during appeals, but rather whether he had been properly sentenced to death. Jeff Nelson criticized the justice system for making his family wait so long. "Elisa was only in our lives for less than 3,800 days and this pedophile and his lawyers have spent nearly 12,000 days - over three times her entire life - making a mockery of our legal system," he said.

Of the 406 inmates on death row in Florida, only 28 had been there longer than Mann.

Mann woke up at 6 a.m. and had his final meal at 10 a.m, including fried shrimp, fish and scallops, stuffed crabs, ice cream and a soda. His only visitors were his two lawyers and a spiritual adviser. His mood was calm and somber in the hours leading up to the execution time, said Department of Corrections spokeswoman Ann Howard. While Mann didn't make a last statement in the death chamber, he did ask that "last words" be handed out after the execution. He chose a Bible verse. "For the wages of sin is death, but the gift of God is eternal life in Christ Jesus our Lord," Mann wrote out by hand.

Elisa's brother said the family has had to hear over the years that Mann would kneel in prayer while in prison and express remorse for his crime. "He just had his chance to say something and he didn't say anything," Nelson said. "We question whether he was really remorseful."

Larry Eugene Mann

Inmate: Mann, Larry
DC#: 077663

Last Action
08/09/02 USDC 02-1439 Habeas Corpus
08/16/02 USDC 02-1439 Case administratively closed
11/18/04 USDC 02-1439 Case reopened
01/18/05 USDC 02-1439 Amended
10/19/06 USDC 02-1439 Response
11/10/10 USDC-M 02-1439 Petition denied
12/09/10 USDC-M 02-1439 Motion to alter judgment filed
12/17/10 USDC-M 02-1439 Response filed
01/21/11 USDC-M 02-1439 Motion denied
02/22/11 USDC-M 02-1439 Application for Certificate of Appealability was filed
01/11/08 FSC 08-62 3.851 Appeal filed
05/27/08 FSC 08-62 Initial brief filed
06/30/08 FSC 08-62 Answer brief filed
02/06/09 FSC 08-62 Disposition affirmed
02/22/11 USCA 11-10855 Habeas Appeal filed
04/16/07 CC 8008741 (RS) 3.851 Motion filed
09/21/07 CC 8008741 (RS) Amended
11/21/07 CC 8008741 (RS) 3.851 denied
11/26/07 CC 8008741 (RS) SC

Last Updated: 2011-06-28 12:28:07.0

Case Summary

MANN, Larry Eugene (W/M)
DC# 077663
DOB: 06/09/53

Sixth Judicial Circuit, Pinellas County, Case# 80-8741
Sentencing Judge: The Honorable Philip A. Federico
Attorneys, Trial: Susan F. Schaeffer & Patrick D. Doherty – Private
Attorney, Direct Appeal: David A. Davis – Assistant Public Defender
Attorney, Collateral Appeals: Marie-Louise Parmer & Leslie Scalley – CCRC-M

Date of Offense: 11/04/80
Date of Sentence: 03/26/81
Date of Resentence (I): 01/14/83
Date of Resentence (II): 03/02/90

Circumstances of the Offense:

At approximately 10:30 a.m. on 11/04/80, 10-year-old, Elisa Nelson was riding her bike to school. She was late for school because she had a dentist appointment that morning, and her mother had given her a note excusing her absence. Elisa’s bicycle was found later that day in a ditch approximately one mile from Elisa’s school. A search party, which included police officers and community members, was initiated. Elisa’s body was found on 11/05/80. Elisa died from a skull fracture possibly caused by a single blow to the head. A cement-encased steel pipe was found lying next to the body. There were two lacerations approximately 3.5 and 4.5 inches along the girl’s neck. The medical examiner could not discern if the lacerations were made before or after the child’s death, but they were not the cause of death. There were no signs of molestation on the body.

The same day that Elisa disappeared, Larry Mann attempted to commit suicide by slashing both of his forearms. The police were summoned to help, and Mann stated to them that he had “done something stupid and needed help.” Mann was taken to the hospital were the doctor ruled that Mann had made a serious attempt to end his life. On 11/08/80, Mann asked his wife to retrieve his glasses from his 1957 Chevy pickup truck. Upon doing so, Mrs. Mann found the bloodstained note that Elisa’s mother had written to excuse her from school. A friend of Mrs. Mann’s reported this finding to the police and that resulted in a search warrant of Mann’s truck and house. Inside the truck, a bloodstain was found with the same blood type as both Mann and Elisa. On 11/10/80, Mann was arrested. Prior to the above incident, Mann had previously attempted suicide at least three or four times. Mann also has a history of pedophilia and psychotic depressions.

Trial Summary:

11/18/80 Defendant indicted on the following charges: Count I: First-Degree Murder, Count II: Kidnapping
11/20/80 Defendant entered a written plea of not guilty
03/19/81 Defendant found guilty on both counts
03/20/81 A majority of the jury recommended the death penalty.
03/26/81 The defendant was sentenced as follows: Count I: First-Degree Murder – Death, Count II: Kidnapping – 99 years to run consecutive to Count I.
09/02/82 Trial remanded to Circuit Court for resentencing by FSC
01/14/83 Order denying advisory jury panel
01/14/83 Defendant resentenced as follows: Count I: First-Degree Murder – Death Count II: Kidnapping – 99 years to run consecutive to Count I
04/02/88 Trial remanded to Circuit Court for resentencing by the USCA 11th Circuit
02/06/90 Upon advisory sentencing, the jury, by a 9-3 majority, voted for the death penalty.
03/02/90 Defendant was resentenced to death on Count I, First-Degree Murder.

Appeal Summary:

Florida Supreme Court – Direct Appeal
FSC# 60,569
420 So. 2d 578
05/04/81 Appeal filed
09/02/82 FSC affirmed the conviction but vacated death sentence
11/03/82 Rehearing denied
12/07/82 Mandate issued

Florida Supreme Court – Direct Appeal (RS 1)
FSC# 63,438
453 So. 2d 784
03/25/83 Appeal filed
05/24/84 FSC affirmed the conviction and sentence
08/30/84 Rehearing denied
10/12/84 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari
USSC# 84-5632
469 U.S. 1181
10/22/84 Petition filed
01/14/85 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8741
01/30/86 Motion filed
01/31/86 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 68,261
482 So. 2d 1360
02/01/86 Appeal filed
02/01/86 FSC affirmed trial court denial of the postconviction relief. The rehearing was denied.
02/10/86 Mandate issued

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 68,262
482 So. 2d 1360
02/01/86 Petition filed
02/01/86 Petition and rehearing denied
02/10/86 Mandate issued

United States District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 86-135
02/03/86 Petition filed
02/19/86 Petition denied

United States Court of Appeals, 11th Circuit – Petition for Habeas Corpus
USCA# 86-3182
817 F.2d 1471
03/19/86 Appeal filed
05/14/87 USCA denied relief for the conviction but reversed the sentence and remanded the case for resentencing
09/10/87 Vacated previous opinion and petition for rehearing in banc granted
12/14/87 Case reheard
04/21/88 USDA denied relief for the conviction but reversed the sentence and remanded the case for resentencing

United States Supreme Court – Petition for Certiorari filed by the State
USSC# 87-2073
489 U.S. 1071
06/19/88 Petition filed
03/06/89 Petition denied

Florida State Supreme Court – Direct Appeal (RS II)
FSC# 75,952
603 So. 2d 1141
05/04/90 Appeal filed
04/02/92 FSC affirmed the conviction and sentence
08/27/92 Revised opinion and rehearing denied
09/28/92 Mandate issued

United States Supreme Court – Petition for Writ of Certiorari
USSC# 92-6757
506 U.S. 1085
11/25/92 Petition filed
01/19/93 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8471
04/28/94 Motion filed
04/22/96 Motion denied in part and evidentiary hearing granted
03/27/97 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 90,452
697 So. 2d 511
04/30/97 Appeal filed
06/25/97 Appeal dismissed

State Circuit Court – 3.850 Motion
CC# 80-8741
07/07/97 Motion filed
07/29/98 Motion denied on most issues but an evidentiary hearing was ordered
12/01/98 Evidentiary hearing held
01/13/99 Motion denied

Florida Supreme Court – 3.850 Appeal
FSC# 94,885
770 So. 2d 1158
02/15/99 Appeal filed
09/28/00 FSC affirmed the trial court’s denial of the 3.850 Motion
10/31/00 Rehearing denied
11/27/00 Mandate issued

Florida Supreme Court – Petition for Writ of Habeas Corpus
FSC# 00-2602
794 So. 2d 595
12/20/00 Petition filed
07/12/01 Petition denied
09/05/01 Rehearing denied

United States Supreme Court – Petition for Writ of Certiorari
USSC# 01-7092
536 U.S. 962; 122 S. Ct. 2669; 153 L. Ed. 2d 843
11/28/01 Petition filed
06/28/02 Petition denied

State Circuit Court – 3.850 Motion
CC# 80-8471
08/06/02 Motion filed
10/22/02 Motion denied

United States District Court, Middle District – Petition for Writ of Habeas Corpus
USDC# 02-1439
08/09/02 Petition filed
08/16/02 Administratively closed
11/18/04 Case reopened
01/18/05 Petition amended
11/10/10 Petition denied
12/09/10 Motion to Alter Judgment filed
01/21/11 Motion denied
02/22/11 Certificate of Appealability filed

Florida Supreme Court – 3.850 Appeal
FSC# 03-394
868 So.2d 524
03/17/03 Appeal filed
02/02/04 FSC affirmed the trial court’s denial of the 3.850 Motion
04/26/04 Rehearing denied

State Circuit Court – 3.851 Motion
CC# 80-8741
04/16/07 Motion filed
09/21/07 Amended Motion filed
11/21/07 Motion denied

Florida Supreme Court – 3.851 Appeal
FSC# 08-62
01/11/08 Appeal filed
02/06/09 Disposition affirmed

United States Court of Appeals – Habeas Appeal
USCA# 11-10855 (Pending)
02/22/11 Appeal filed

Death Warrant:
01/07/86 Death Warrant signed by Governor Bob Graham
02/03/86 United States District Court, Middle District, granted a stay of execution

Clemency Hearing:
11/20/85 Clemency hearing denied

Factors Contributing to the Delay in Imposition of Sentence:
The main factor that has contributed to the delay in this case in the fact that Mann has been resentenced twice. Additional factors are the number of appeals that have been filed in addition to the 3.850 Motion that was filed on 04/28/94 was pending for three years and a Petition for Writ of Habeas Corpus that was pending for eight years in the United States District Court, Middle District.

Case Information:

Mann filed a Direct Appeal to the Florida Supreme Court on 05/04/81. Mann contended that the trial court improperly allowed into evidence the bloodstains found in his truck due to the fact that the blood type matched both him and the victim. The Court ruled that the trial court properly admitted this evidence and found the conviction free from substantive error. The conviction was affirmed. In regard to his sentencing, the Court found that the trial court improperly applied the aggravating factors of prior conviction of a felony involving violence and the homicide to have been committed in a cold, premeditated manner. The Court vacated the sentence and remanded the case to the trial court for a new sentencing proceeding without a jury.

Mann was resentenced to death by the Circuit Court on 01/14/83. He filed a Direct Appeal after resentencing to the Florida Supreme Court on 03/25/83. Mann contended that the Court’s original opinion barred the state from presenting additional evidence at the resentencing. The Court found no error and affirmed the sentence of death.

Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 10/22/84. The petition was denied on 01/14/84. Governor Graham signed a Death Warrant for Mann on 01/07/86. A 3.850 motion and a stay of execution were filed to the Circuit Court on 01/30/86. The motion and the stay of execution were denied on 01/31/86. On 01/31/86, Mann filed for a stay of execution pending the appeal on 01/31/86, the stay was denied on the same day. On 02/01/86 Mann filed a 3.850 appeal, a Petition for Writ of Habeas Corpus, and a stay of execution to the Florida Supreme Court. Mann’s main claim was ineffective trial counsel because of his attorney’s failure to object to statements made by the prosecutor during closing arguments of the penalty phase. The Court ruled that these comments did not constitute a reversible error. The Court denied the habeas and the stay and affirmed the trial court’s denial of the 3.850 motion on 02/01/86. No rehearing was allowed and a mandate was issued on 02/10/86.

On 02/03/86, Mann filed a petition for Writ of Habeas Corpus with the United States District Court, Middle District. The District Court granted the stay of execution on 02/03/86, but denied the Habeas on 02/19/86.

On 03/19/86, Mann filed Habeas Appeal to the United States Court of Appeals, Eleventh Circuit. Mann raised only one issue in reference to his conviction. He states that he was involuntarily absent from the jury’s presence when they were allowed to view the crime scene, which violated his rights under the 6th, 8th, and 14th Amendments. The USCA found this to be a harmless error and denied all relief as to his conviction. In regard to his sentence, Mann raised five issues. Three did not entitle Mann to relief, but the claim that the court diminished the jury’s sense of responsibility in imposing the death sentence entitled Mann to relief in the form of a resentencing proceeding. Due to this finding, the USCA stated that the need to render a comment on the fifth issue was moot. The sentence was reversed and the case was remanded to the circuit court for a new jury sentencing proceeding on 05/14/87. On 09/10/87 the previous opinion was vacated and a rehearing en banc was scheduled. The case was reheard en banc on 12/14/87, and a new opinion was issued on 04/02/88 again reversing the sentence and remanding the case to the circuit court for re-sentencing.

The State filed a Petition for Writ of Certiorari to the United States Supreme Court on 06/19/88. The petition was denied on 03/06/89. On 02/06/90, a jury recommended the death penalty by majority. Mann was resentenced to death on Count I, Murder in the First Degree on 03/02/90. Mann filed a Direct Appeal to the Florida Supreme Court on 05/04/90. The Court affirmed the sentence of death on 04/02/92. The rehearing was denied and a revised opinion was issued on 08/27/92. The Court again affirmed the sentence of death. A mandate was issued on 09/28/92. Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 11/25/92. The petition was denied on 01/19/93.

A 3.850 Motion was filed to the Circuit Court on 04/28/94. The motion was denied in part and an evidentiary hearing was granted. The motion was denied on 03/27/97. A 3.850 Appeal was filed in the Florida Supreme Court on 04/30/97. The appeal was dismissed and CCRC was directed to file an amended 3.850 motion within ten days on 06/25/97. An amended 3.850 Motion was filed to the Circuit Court on 07/07/97. The motion was granted in part and an evidentiary hearing was granted on 07/29/98. The evidentiary hearing was held on 12/01/98 and the motion was denied on 01/13/99. A 3.850 Appeal was filed in the Florida Supreme Court on 02/15/99. Mann raised ten issues. The Court found five to be procedurally barred and the remaining issues without merit. On 09/28/00, they affirmed the trial court’s denial of the 3.850 Motion. The rehearing was denied on 10/31/00, and the mandate was issued on 11/27/00.

Mann filed a Petition for Writ of Habeas Corpus on 12/20/00 to the Florida Supreme Court. The State claimed that the Florida Rule of Appellate Procedure 9.140 bars Mann’s Petition for Writ of Habeas Corpus. The Court did not bar the petition under Rule 9.140, but stated that as of 01/01/02, all petitions for extraordinary relief must be filed simultaneously with the initial brief appealing the denial of a rule 3.850 Motion. The Court accepted the Petition and addressed Mann’s five issues. The claims raised were either without merit, rejected, or procedurally barred; therefore, the Court denied the petition on 07/12/01. The rehearing was denied on 09/05/01. Mann filed a Petition for Writ of Certiorari to the United States Supreme Court on 11/28/01. The petition was denied on 06/28/02. Mann filed a 3.851 Motion to the State Circuit Court on 08/06/02. The motion was denied on 10/22/02.

On 08/09/02, Mann filed a Petition for Writ of Habeas Corpus to the United States District Court, Middle District. It was administratively closed on 08/16/02 due to pending cases in the Circuit Court. The case was reopened on 11/18/04. The petition was amended on 01/18/05. On 11/10/10, the petition was denied. A Motion to Alter Judgment was filed on 12/09/10, and it was denied on 01/21/11. A Certificate of Appealability was filed on 02/22/11. Mann filed a 3.850 Appeal to the Florida Supreme Court on 03/17/03. The Court affirmed the trial court’s denial of Mann’s 3.850 Motion. On 04/16/07, a 3.851 motion was filed with the State Circuit Court. Mann amended this motion on 09/21/07. This successive motion was denied 11/21/07. On 01/11/08, Mann filed a 3.851 Appeal to the Florida Supreme Court. On 02/06/09, the Florida Supreme Court affirmed disposition of the State Circuit Court. Mann filed a Habeas Appeal in the United States Court of Appeals on 02/22/11. This case is currently pending.

Mann v. State, 420 So.2d 578 (Fla. 1982). (Direct Appeal)

Defendant was convicted before the Circuit Court, Pinellas County, Philip A. Federico, J., of first-degree murder, with capital punishment imposed, and defendant appealed. The Supreme Court held that: (1) although defendant and victim had same blood type and enzymes, evidence that several bloodstains found at scene matched those found on seat of defendant's truck was relevant; (2) although evidence at sentencing phase of Mississippi burglary prosecution showed that during burglary defendant had committed sexual battery on an occupant that conviction did not constitute an aggravating circumstance of prior conviction of a felony involving use of threat or violence of person; (3) findings in regard to death sentence should be of unmistakable clarity; and (4) trial court improperly found homicide to have been committed in a cold, calculated, premeditated manner. Conviction affirmed; sentence vacated for new sentencing proceeding. Alderman, C.J., concurred in part and dissented in part with an opinion in which Adkins and Boyd, JJ., concurred.

PER CURIAM.

This is an appeal from a conviction of first-degree murder and a sentence of death. We have jurisdiction FN1 Art. V, § 3(b)(1), Fla.Const., and affirm the conviction but vacate the sentence.

On November 4, 1980 ten-year-old Elisa Nelson was abducted while bicycling to school after a dentist's appointment. Her bicycle was found later that day, and searchers found her body the following day. She died from a skull fracture and had been stabbed and cut several times. The afternoon of the 4th Mann attempted to commit suicide. The police took him to a hospital where he stayed several days. On November 8th Mann's wife, while looking in his pickup truck for his eyeglasses, found a bloodstained note written by Elisa's mother explaining her daughter's tardiness because of the dentist's appointment. The police obtained a warrant to search Mann's truck and home and arrested him on the 10th.

The jury convicted Mann of first-degree murder and recommended the death penalty. The trial court agreed with the recommendation, finding four aggravating factors FN2 and, possibly, one mitigating circumstance. FN3 On appeal Mann alleges one trial error and seven sentencing errors. FN2. Prior conviction of violent felony; felony murder; heinous, atrocious, and cruel; and cold, calculated, and premeditated. FN3. Psychotic depression and paranoid feelings of rage.

The claimed trial error is that the trial court should not have allowed into evidence the fact that several bloodstains found at the crime scene and on the seat of Mann's truck matched the bloodtype of and had the same type of enzymes as the victim. Mann agrees that such evidence would normally be admitted as relevant, but in this case his bloodtype and type of enzymes are the same as those of the victim. He argues, therefore, that this evidence tends to prove nothing, particularly since he presented evidence that he had, prior to the homicide, bled profusely in the truck from an injury. He argues that, since it is equally as likely that the blood was his as that of the victim, the bloodstains in the truck were irrelevant and should have been excluded.

The court properly admitted this evidence. Relevant evidence is evidence tending to prove a material fact and is admissible, except as provided by law. §§ 90.401, 94.402, Fla.Stat. (1979). The bloodstained note had been found in the truck; the fact of blood in the truck had some relevance whether it came from the victim or from Mann. If it were the victim's, it was evidence of her or her body being in the truck; if Mann's, it could explain the blood on the note. Either theory tended to prove some connection between Mann and the victim. In addition to this claimed trial error we have independently reviewed the record to assure ourselves of the propriety of the conviction. We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it. Mann's main arguments center upon the imposition of the death penalty. His first contention is that the trial judge allowed inadmissible testimony in connection with a prior felony conviction in Mississippi to be introduced into evidence, compounded that error when he found that Mann had been convicted of a burglary during the course of which he used violence, and then used that fact as an aggravating factor in his sentencing order.

One of the aggravating circumstances that a trial judge may consider in determining whether or not to impose the death penalty is set out in section 921.141(5)(b), Florida Statutes (1979): “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Mann had been convicted in Mississippi of the crime of burglary, an offense that, standing alone, would not fall within the foregoing definition. Lewis v. State, 398 So.2d 432 (Fla.1981). See Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

The facts adduced at the sentencing phase of the trial showed that during that burglary the defendant committed a sexual battery upon the occupant of the house he burglarized. Had he been convicted of that sexual battery, the aggravating factor would apply. We must determine whether on sentencing it is proper, in an effort to prove conviction of a prior felony involving the use or threat of violence, to show what actually transpired when the conviction itself was for a crime which, by itself, is not a crime involving the use of violence. Must the conviction itself have inherently included a prior jury's determination of violence, or is it enough to show a prior conviction and let the sentencing jury find, based upon the evidence, whether that prior conviction included violence? Section 921.141(5)(b) does not contain the “during which” language utilized by the trial judge. We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence. The record of Mann's conviction, as presented to this Court, does not disclose a conviction of a crime of violence. We hold that a prior conviction of a felony involving violence must be limited to one in which the judgment of conviction discloses that it involved violence.FN4 On the record in this case the trial judge improperly found prior conviction of a felony involving violence. FN4. Such as a conviction under § 810.02(2)(a), Fla.Stat.

Another area of concern is the trial judge's attention to Mann's evidence in mitigation. This is particularly significant because it relates to the properly found aggravating circumstance of the crime being especially heinous, atrocious, and cruel. There is frequently a significant connection between the grossness of a homicide and the perpetrator's mental condition. A psychiatrist testified that Mann's mental condition was of such a nature that he was under the influence of extreme mental or emotional disturbance when he committed this atrocity and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. § 921.141(6)(b), (f). Although this witness was cross-examined, his opinions were neither rebutted nor contradicted by another witness. The trial judge's reference to the testimony is:

The only mitigating circumstance apparent to the Court which is based solely upon the opinion of Dr. Alfred Fireman, a local psychiatrist, is that the defendant suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges. From this we are unable to discern if the trial judge found that the mental mitigating circumstances did not exist. If so it appears that he misconstrued the doctor's testimony. On the other hand, he may have found them to exist and weighed them against the proper aggravating circumstances. We, however, cannot tell which occurred. The trial judge's findings in regard to the death sentence should be of unmistakable clarity so that we can properly review them and not speculate as to what he found; this case does not meet that test.

We also find that the trial court improperly found the homicide to have been committed in a cold, calculated, premeditated manner. § 921.141(5)(i). The state's evidence failed to support finding this aggravating circumstance. See Jent v. State, 408 So.2d 1024 (Fla.1981). We find Mann's other sentencing challenges to be without merit.

The conviction is affirmed, but the sentence is vacated. The trial court is directed to conduct a new sentencing proceeding without a jury. It is so ordered. OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur. ALDERMAN, C.J., concurs in part and dissents in part with an opinion, with which ADKINS and BOYD, JJ., concur.

ALDERMAN, Chief Justice, concurring in part, dissenting in part.

I concur with the affirmance of Mann's conviction for first-degree murder, but I dissent to the reversal of his death sentence and the remand for a new sentencing hearing. I believe the trial court properly found the aggravating circumstance that Mann was previously convicted of a felony involving the use or threat of violence to the person. This previous crime was described by the trial court as follows:

In 1973 the defendant was convicted of the crime of burglary in Mississippi during the course of which, through threats and actual physical force, he had the victim perform fellatio upon him resulting in his ejaculation in her mouth. That victim, Deborah Richards (now Deborah Johnson), was produced by the State to testify in the penalty phase of this trial as to the above facts. The force used involved choking, hair pulling and throwing the victim across the room. The defendant was sentenced to nine (9) years imprisonment and was paroled after serving four (4) years.

Although burglary will not necessarily be a crime of violence as contemplated by this aggravating circumstance, in the present case the State proved beyond a reasonable doubt that the felony of burglary for which Mann was previously convicted involved “the use or threat of violence.” The trial court, in its findings in support of the death penalty, clearly delineated an adequate factual basis for a finding of this aggravating circumstance. I disagree with the majority's holding that this aggravating circumstance was improperly found to exist. It is not a necessary predicate to this aggravating circumstance that the judgment of conviction of the prior felony disclose that it involved violence as suggested by the majority. Rather, it is sufficient that the State prove beyond a reasonable doubt, as it did in this case, that the defendant was previously convicted of another felony and that while committing that felony the defendant used or threatened to use violence to another person.

The majority acknowledges that the trial court properly found as aggravating circumstances that the capital felony committed by Mann was especially heinous, atrocious, or cruel and that the murder was committed while Mann was engaged in a kidnapping. The majority, however, expresses concern about the trial court's attention to Mann's evidence in mitigation. It notes that there is frequently a significant connection between the grossness of a homicide and the perpetrator's mental condition. In this case, the trial court, in support of its finding that this murder was especially heinous, atrocious, or cruel, explained that the victim, a 10-year-old girl, sustained a 3 1/4-inch cut on the right side of her neck and a 4 1/2-inch cut on the left side of her neck, which cuts produced great pain and severe bleeding and that the victim was conscious for at least several minutes before elapsing into unconsciousness due to loss of blood. The court further stated that death was produced as the result of a massive skull fracture caused by blunt trauma. This was a proper finding. The heinousness, atrociousness, or cruelness of Mann's acts is determined on the basis of what Mann did and its effect on the victim. Diminished mental capacity does not abrogate this aggravating factor. A legally sane but mentally ill defendant who commits an especially heinous, atrocious, or cruel murder will have this aggravating factor weighed against him even though his mental illness contributed to the heinousness, atrociousness, or cruelness of his actions. Evidence of his mental condition is only to be considered in determining whether a mitigating circumstance is proven. Such evidence is not relevant in determining whether the murder is especially heinous, atrocious, or cruel.

In the present case the trial court considered the evidence offered in mitigation as to defendant's mental or emotional disturbance and expressly found as the sole mitigating factor that Mann suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges. It then weighed this mitigating factor against the aggravating factors and found that the aggravating factors far outweighed the mitigating.

Even if the trial court's finding that this murder was committed in a cold, calculated, and premeditated manner was not proven beyond a reasonable doubt by the State, as the majority holds, the elimination of this aggravating factor from the weighing process does not require a reversal of the death sentence. The court validly found that Mann had been previously convicted of another felony involving the use or threat of violence to the person, that the murder was committed while Mann was engaged in a kidnapping, and that the murder was especially heinous, atrocious, or cruel. These aggravating circumstances, coupled with the jury's recommendation of death, are more than sufficient to outweigh the very weak mitigating circumstance found in this case and to warrant imposition of the death penalty. This case should not be remanded for resentencing.

I not only would affirm Mann's conviction but also would affirm his sentence of death. ADKINS and BOYD, JJ., concur.

844 F.2d 1446

Larry Eugene MANN, Petitioner-Appellant,
v.
Richard L. DUGGER, Secretary, Florida Department of
Corrections, Respondent- Appellee.

No. 86-3182.

United States Court of Appeals,
Eleventh Circuit.

II.

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is best understood in the context of its facts. The case involved a challenge to a death sentence imposed pursuant to the Mississippi capital sentencing scheme. Mississippi affords capital defendants a bifurcated trial. After the jury renders a verdict of guilty, the trial court convenes a sentencing proceeding before the same jury. The jury then renders a verdict of either death or life imprisonment, and the trial court enters a sentence in accordance with the jury's verdict. If the jury renders a verdict of death, the sentence is automatically reviewed by the Supreme Court of Mississippi. Miss.Code Ann. Sec. 99-19-105; Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976). In conducting its review, that court applies a presumption of correctness to the sentencing jury's verdict. Caldwell v. State, 443 So.2d 806, 816 (Miss.1983) (Lee, J., dissenting). Under Mississippi law, the supreme court may overturn a death sentence in three situations only: (1) where the sentencing jury's verdict was so arbitrary as to be "against the overwhelming weight of the evidence," Williams v. State, 445 So.2d 798, 811 (Miss.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985); (2) where the evidence of statutory aggravating circumstances, required for the imposition of the death penalty, was so lacking that a "judge should have entered a judgment of acquittal notwithstanding the verdict," id.; or (3) where the sentence is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Id.

In Caldwell, the petitioner, Bobby Caldwell, contended that his death sentence was invalid under the eighth amendment because the sentencing jurors had been led to believe that the responsibility for determining the sentence rested not with them but with the appellate court that would later review the case. The facts supporting the claim were as follows. In closing argument before the sentencing jury, defense counsel entreated the jurors to show mercy and remarked that "[y]ou are the judges and you will have to decide [Caldwell's] fate. It is an awesome responsibility, I know--an awesome responsibility." Caldwell, 472 U.S. at 324, 105 S.Ct. at 2637. The prosecutor then sought to downplay the effect of counsel's argument by telling the jurors that "your decision is not the final decision ... [y]our job is reviewable." Id. at 325, 105 S.Ct. at 2637. Defense counsel objected to this statement, but the trial court overruled the objection, commenting that "it [is] proper that the jury realizes that it is reviewable automatically as the death penalty commands." Id., 105 S.Ct. at 2638.

The United States Supreme Court held that Caldwell's sentence was invalid under the eighth amendment because it rested on "a determination made by a sentencer who ha[d] been led to believe that the responsibility for determining the appropriateness of the defendant's death rest[ed] elsewhere." Id. at 328-29, 105 S.Ct. at 2639. The Court reasoned that the eighth amendment's need for reliability in capital sentencing required that capital sentencers "view their task as a serious one of determining whether a specific human being should die at the hands of the State." Id. at 329, 105 S.Ct. at 2640. The jurors, having been told that their decision was "automatically reviewable," were misled into believing that their judgment call on the evidence would be reviewed de novo. Thus, because the jury's sense of responsibility had likely been diminished as a result of the comments by the prosecutor and the court, the sentencing decision did not meet the standard of reliability required by the eighth amendment. Id. at 341, 105 S.Ct. at 2646.

At first blush, the attorney general's argument has some appeal. It is true that the trial court independently weighs the aggravating and mitigating circumstances and actually enters the sentence. It is also true that the statute describes the sentencing jury's function as that of "render[ing] an advisory opinion to the court." The legislature's use of the term "advisory," considered in a vacuum, could be viewed as evincing a legislative intent that the sentencing jury play a role which, in the final analysis, is in fact largely meaningless. In common parlance, we often associate the term "advisory" with the term "nonbinding"; "advice," in the minds of most people, is something that a decisionmaker may follow or reject as he or she sees fit. In analyzing the role of the jury, however, we cannot operate in a vacuum. Rather, we must look to how the Supreme Court of Florida, the final interpreter of the death penalty statute, has characterized that role.

A.

A review of the case law shows that the Supreme Court of Florida has interpreted section 921.141 as evincing a legislative intent that the sentencing jury play a significant role in the Florida capital sentencing scheme. See Messer v. State, 330 So.2d 137, 142 (Fla.1976) ("[T]he legislative intent that can be gleaned from Section 921.141 [indicates that the legislature] sought to devise a scheme of checks and balances in which the input of the jury serves as an integral part."); see also Riley v. Wainwright, 517 So.2d 656, 657 (Fla.1987) ("This Court has long held that a Florida capital sentencing jury's recommendation is an integral part of the death sentencing process."); Lamadline v. State, 303 So.2d 17, 20 (Fla.1974) (right to sentencing jury is "an essential right of the defendant under our death penalty legislation"). In the supreme court's view, the legislature created a role in the capital sentencing process for a jury because the jury is "the one institution in the system of Anglo-American jurisprudence most honored for fair determinations of questions decided by balancing opposing factors." Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); see also McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982) (the jury's recommendation "represent[s] the judgment of the community as to whether the death sentence is appropriate"); Chambers v. State, 339 So.2d 204, 209 (Fla.1976) (England, J., concurring) (the sentencing jury "has been assigned by history and statute the responsibility to discern truth and mete out justice").

To give effect to the legislature's intent that the sentencing jury play a significant role, the Supreme Court of Florida has severely limited the trial judge's authority to override a jury recommendation of life imprisonment. In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), the court held that a trial judge can override a life recommendation only when "the facts [are] so clear and convincing that virtually no reasonable person could differ." That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge's attempt to override a jury recommendation of life. See, e.g., Wasko v. State, 505 So.2d 1314, 1318 (Fla.1987); Brookings v. State, 495 So.2d 135, 142-43 (Fla.1986); McCampbell v. State, 421 So.2d 1072, 1075-76 (Fla.1982); Goodwin v. State, 405 So.2d 170, 172 (Fla.1981); Odom v. State, 403 So.2d 936, 942-43 (Fla.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Neary v. State, 384 So.2d 881, 885-88 (Fla.1980); Malloy v. State, 382 So.2d 1190, 1193 (Fla.1979); Shue v. State, 366 So.2d 387, 390-91 (Fla.1978); McCaskill v. State, 344 So.2d 1276, 1280 (Fla.1977); Thompson v. State, 328 So.2d 1, 5 (Fla.1976).

The attorney general argues that although the trial court may be required under Tedder to give deference to a jury recommendation of life, it is in no way similarly bound to give deference to a jury recommendation of death. Since a Florida sentencing jury can therefore never play a substantive role in imposing a death sentence, the attorney general contends, Caldwell can never be implicated in a Florida case.

One problem with this argument is that its central premise--that the sentencing jury plays no substantive role in imposing a death sentence--is contradicted by numerous pronouncements by the Supreme Court of Florida. The issue of what deference is due a jury recommendation of death would arise most directly when the jury recommends death and the trial judge rejects the recommendation and imposes life imprisonment. Such cases never appear before the supreme court, however, because the state cannot appeal a sentence of life imprisonment. See State v. Dixon, 283 So.2d 1, 8 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Nonetheless, the issue has arisen in cases where the jury recommends death, the trial court imposes death, and the defendant contends on direct appeal that the trial court improperly weighed the aggravating and mitigating circumstances. In one such recent case, Smith v. State, 515 So.2d 182 (Fla.1987), the supreme court held that "[a]lthough we find that one of the five aggravating circumstances relied on by the trial court was invalid, we approve the death sentence on the basis that a jury recommendation of death is entitled to great weight and there were no mitigating circumstances to counterbalance the four valid aggravating circumstances." Id. at 185 (emphasis added). In LeDuc v. State, 365 So.2d 149 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979), the supreme court stated that "[t]he primary standard for our review of death sentences is that the recommended sentence of a jury should not be disturbed if all reasonable data was considered, unless there appear strong reasons to believe that reasonable persons could not agree with the recommendation." Id. at 151 (citing Tedder ) (emphasis added). See also Middleton v. State, 426 So.2d 548, 552-53 (Fla.1982) (approving trial court's imposition of death sentence and reiterating in conclusion that jury had recommended death), cert. denied, 463 U.S. 1230, 103 S.Ct. 3573, 77 L.Ed.2d 1413 (1983); Francois v. State, 407 So.2d 885, 891 (Fla.1982) (same), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982); Enmund v. State, 399 So.2d 1362, 1373 (Fla.1981) (same), rev'd on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); cf. Grossman v. State, 525 So.2d 833, 839 n. 1, 13 Fla.L.Weekly 127, 133 n. 1 (Fla. 1988) ("We have ... held that a jury recommendation of death should be given great weight."). On one occasion, the supreme court went so far as to suggest that the trial judge's role in sentencing is merely to articulate findings in support of the jury's sentencing decision. See Provenzano v. State, 497 So.2d 1177, 1185 (Fla.1986) ("[T]he trial judge does not consider the facts anew. In sentencing a defendant, a judge lists reasons to support a finding in regard to mitigating or aggravating factors."), cert. denied, --- U.S. ----, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987).

Finally, we note that the Supreme Court of Florida has ordered resentencing in cases where the trial court excused a prospective juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See, e.g., Chandler v. State, 442 So.2d 171, 173-75 (Fla.1983). Under Witherspoon and its progeny, a state violates a capital defendant's right to trial by impartial jury when it excuses for cause a prospective juror who has voiced conscientious objections to the death penalty, unless the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 857, 83 L.Ed.2d 841 (1985). Witherspoon assumes, of course, that the jury will play a substantive role in the sentencing decision. By applying Witherspoon to vacate death sentences, then, the Supreme Court of Florida implicitly acknowledges that the jury plays a substantive role under the Florida capital sentencing scheme.

Thus, in various ways, the Florida case law evinces an interpretation of the death penalty statute that requires a trial judge to give great weight to a jury's sentencing recommendation. As our review of the case law shows, that requirement applies as to both recommendations of life imprisonment and recommendations of death.

B.

C.

In light of the case law, we conclude that the Florida jury plays an important role in the Florida capital sentencing scheme. The case law reflects an interpretation of the death penalty statute that requires the trial court to give significant weight to the jury's recommendation, whether it be a recommendation of life imprisonment or a recommendation of death. The case law also reflects, we think, an insightful normative judgment that a jury recommendation of death has an inherently powerful impact on the trial judge.

III.

Having determined that the sentencing jury plays a substantive role under the Florida capital sentencing scheme, we turn to the question whether the jury in this case was misled as to its role so as to render petitioner's sentence invalid under the eighth amendment. We begin with a thorough examination of the trial record.

A.

The first reference to the jury's role was made as the jury was being selected, during counsel's voir dire of the venire. The prosecutor said the following:

The recommendation that you make to Judge Federico in [the sentencing] portion of the trial is simply a recommendation, and he is not bound by it. He may impose whatever sentence the law permits. He will have been here and will have listened to all the testimony himself.

A few moments later, the prosecutor repeated this point in stronger terms:

You understand you do not impose the death penalty; that is not on your shoulders.... Again, that decision rests up here with the law, with Judge Federico. You will have the opportunity after you have heard everything there is to hear to make a recommendation to him. But it is not legally on your shoulders, though. It is not your ultimate decision. You act in that regard in an advisory capacity only.

The prosecutor repeated the point again that afternoon, in a dialogue with two veniremen:

You ... understand that the ultimate responsibility rests with the Court; that it's not the jury's responsibility?

During closing argument at the conclusion of the guilt phase of the trial, the prosecutor once again informed the jury that "[t]he matter of sentencing ultimately rests with [the] Court."

After the jury rendered its verdict of guilty, the jurors were temporarily excused from the courtroom while the court and counsel made preliminary preparations for the sentencing phase of the trial. At that time, defense counsel requested that the jury, when it returned, be instructed by the court that its sentencing recommendation would be "entitled to great weight." The court refused to grant the request:

THE COURT: Well, I think that goes without saying. I don't know if I need to instruct them that that is so.

[DEFENSE COUNSEL]: I think it is. The reason we would ask--

THE COURT: That's something that I need to do after they make their recommendation, and I will give it great weight.

[DEFENSE COUNSEL]: I know, but they need to know that so they know we're not up there just--

THE COURT: I think the standard instructions bring home to them that it is very important that they, you know, [d]o not act hastily or without due regard to the gravity of these proceedings, that they should carefully weigh and sift and consider the evidence. I think that's sufficient.

Notwithstanding his apparent understanding of the sentencing jury's function, the judge informed the jurors when they returned to the courtroom that "[t]he final decision as to what punishment shall be imposed rests solely with the judge of this court." The prosecutor repeated the point in the final statement of his closing argument at the conclusion of the sentencing phase:

What I'm suggesting to you is that the ultimate responsibility for the imposition of the sentence rests with Judge Philip Federico. That is his sworn position in the system. He's heard everything you have heard. He may have the opportunity to learn more before he imposes a sentence. I think this community, as represented by this jury, should give to him the prerogative of imposing the death penalty, if that's what he ultimately feels is required in this case.

The court then read its instructions to the jury. The instructions included the following statements regarding the jury's sentencing function:

Ladies and gentlemen of the jury, it is now your duty to advise the Court as to what punishment should be imposed on the Defendant for his crime of murder in the first degree. As you have been told, the final decision as to what punishment shall be imposed is the responsibility of the judge. However, it is your duty to follow the law which will now be given to you by the Court and render to the Court an advisory opinion based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty, whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.

The court's instructions also included the following statements:

The fact that the determination of whether or not a majority of you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment upon the sole issue which is submitted to you at this time, of whether a majority of your number recommend that the Defendant be sentenced to death or to life imprisonment.

After the court finished reading the instructions, it ordered the jury to retire and make a decision. When the jury returned, it announced a recommendation of death. The jury was polled and then dismissed. After the bailiff had declared that "[t]he jury has left the courtroom," the judge remarked, for the record, that "[t]he court, as required by law, will give great weight to the recommendation of the jury."

B.

In reviewing Caldwell claims, our task is twofold. First, we must determine whether the prosecutor's comments to the jury were such that they would "minimize the jury's sense of responsibility for determining the appropriateness of death." Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646. Second, if the comments would have such effect, we must determine "whether the trial judge in this case sufficiently corrected the impression left by the prosecutor." McCorquodale v. Kemp, 829 F.2d 1035, 1037 (11th Cir.1987).

In this case, the comments by the prosecutor were such that they would mislead or at least confuse the jury as to the nature of its sentencing responsibility under Florida law. It bears emphasizing that the prosecutor in Caldwell stated only that the jury's verdict would be "automatically reviewable." Technically, this statement was an accurate statement of Mississippi law--death sentences are automatically reviewed by the Supreme Court of Mississippi under Miss.Code Ann. Sec. 99-19-105. The mischief was that the statement, unexplained, would have likely been misunderstood by the jurors as meaning that their judgment call on the appropriateness of a death sentence did not really matter. We are faced with a similar situation here. The prosecutor repeatedly told the jury that its task was to render an "advisory" recommendation. As with "automatically reviewable" in Caldwell, this characterization is technically accurate, at least in the sense that the Florida death penalty statute contains the term "advisory." However, the danger exists that the jurors, because they were unaware of the body of law that requires the trial judge to give weight to the jury recommendation, were misinformed as to the importance of their judgment call. The danger is particularly strong here, because nothing in the common meaning of the term "advisory" would suggest to the layman that the trial judge would in any way be bound by the recommendation; indeed, the common meaning of the term would suggest precisely the contrary.

The only potentially corrective statement by the court came when the court instructed the jurors that they should proceed with "due regard to the gravity" of the matter and should "carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment." This statement, we conclude, did not cure the harm posed by the court's other actions. The statement would do little if anything to change a juror's misapprehension about the effect of the jury's decision; it only instructs the jurors that they should approach their task with care and deliberation. At best, it likely left some jurors confused as to their proper role. We therefore conclude that the court's actions, as considered by a reasonable juror who had been exposed to the prosecutor's misleading comments, did not correct the false impression created by those comments. Cf. Caldwell, 472 U.S. at 340 n. 7, 105 S.Ct. at 2645 n. 7 (prosecutor's later statements did not retract or undermine the misimpression created by the earlier statements). Because the overall effect of the court's actions was to diminish the jury's sense of responsibility with regard to its sentencing role, petitioner's sentence is invalid under the eighth amendment.

IV.

In conclusion, we reverse the district court's denial of the writ of habeas corpus with regard to petitioner's Caldwell claim. We remand the case to the district court with instructions to issue the writ setting aside petitioner's death sentence unless the State affords petitioner a new sentencing proceeding before a newly empaneled jury.

REVERSED and REMANDED.

It serves no purpose to dwell on the word 'advisory' [or 'recommendation'] as does the majority, because that is the procedural structure established by the Florida statutes. The jury's verdict as to the appropriate sentence is advisory. The question is whether the jury was somehow given an erroneous understanding of its responsibility.

Mann v. Dugger, 817 F.2d 1471, 1485 (11th Cir.1987) (Fay, J., dissenting) (panel opinion). Such comments are neither inaccurate nor misleading.

Defense counsel's numerous comments regarding the jury's advisory role indicate that he agreed with the explanations given by the prosecutor and the trial judge. This strengthens my conviction that the prosecutor accurately stated the Florida law and did not mislead the jury. Therefore, I am unable to find that the prosecutor's statements created a Caldwell violation.

Because I believe that the prosecutor did not mislead the jury, I do not find it necessary to determine whether the trial judge's comments were sufficiently curative. I note, however, that the trial judge's statements were not misleading. The judge explained to the jury its role in the Florida sentencing scheme.

The fact that the determination of whether or not a majority of you recommend a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that a human life is at stake, and bring to bear your best judgment upon the sole issue which is submitted to you at this time, of whether a majority of your number recommend that the Defendant be sentenced to death or to life imprisonment.

Trial Transcript at 1348-1349 (emphasis added). Such a closing instruction had to impress upon the jury the importance of their role in the sentencing process.

One other aspect of cases of this sort troubles me. Jurors are a cross section of our communities. They are our average citizens with differing degrees of education, sophistication, experiences and views of government. My experience with juries convinces me that they approach such service with great dedication and awareness. In cases involving a question of whether or not the death penalty should be imposed, great concern and seriousness of purpose literally permeates the courtroom. Jurors, like judges, lose sleep and are totally preoccupied with doing what is right and correct under the law. We, as judges, should be slow to assume that such men and women have somehow been derailed or led astray.

Finding nothing in this record, when considering such in its entirety, that would mislead or tend to diminish the responsibility of the jury, I would deny relief.

Petitioner's criminal conduct is described in Mann v. State, 420 So.2d 578 (Fla.1982)

The operation of the Florida capital sentencing scheme is explained in part II. See supra note 5 and accompanying text. Here, on petitioner's direct appeal, the Supreme Court of Florida held that the trial judge had improperly found two aggravating circumstances under Fla.Stat. Sec. 921.141(5) and had failed to specify with sufficient clarity his conclusions regarding mitigating factors, as required by Fla.Stat. Sec. 921.141(6). Mann v. State, 420 So.2d 578, 581 (Fla.1982). Accordingly, the supreme court ordered resentencing by the trial judge. Because the errors identified by the supreme court pertained only to the trial judge's findings, and not to defects before the sentencing jury, resentencing before a new jury was not deemed necessary

Petitioner has already had one resentencing, pursuant to an order by the Supreme Court of Florida. See supra note 2 and accompanying text. That resentencing was accomplished without empaneling a new jury; in resentencing petitioner, therefore, the trial court used the recommendation of the original sentencing jury. That being the case, we must examine the original jury sentencing proceeding in determining whether petitioner's sentence is valid under the eighth amendment

We affirm the district court's disposition of the remaining claims. Those claims are described in the panel opinion. See Mann v. Dugger, 817 F.2d 1471 (11th Cir.), vacated, 828 F.2d 1498 (11th Cir.1987)

The attorney general argues that petitioner's Caldwell claim is barred by procedural default because petitioner failed to raise the claim on direct appeal of his conviction and sentence. We find that the claim is not procedurally barred. Although petitioner failed to raise the claim on direct appeal, he did raise it in his Rule 3.850 motion. The circuit court denied that motion and petitioner appealed to the Supreme Court of Florida. In disposing of the appeal, the supreme court stated that its review of the record "clearly and conclusively refute[d] any claim that there was any constitutional infirmity in the trial." Mann v. State, 482 So.2d 1360, 1362 (Fla.1986) (emphasis added). We interpret this statement as indicating that the supreme court considered the merits of each claim in petitioner's Rule 3.850 motion, including the Caldwell claim. Since the Supreme Court of Florida therefore chose not to enforce its own procedural default rule, federal habeas review of the claim is not barred. See Oliver v. Wainwright, 795 F.2d 1524, 1528-29 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1380, 94 L.Ed.2d 694 (1987); Campbell v. Wainwright, 738 F.2d 1573, 1576-77 (11th Cir.1984), cert. denied, 475 U.S. 1126, 106 S.Ct. 1652, 90 L.Ed.2d 195 (1986); Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 740, 74 L.Ed.2d 961 (1983).

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