
    James S. McDOLE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 43489.
    Supreme Court of Florida.
    April 10, 1974.
    James S. McDole, m pro. per.
    Ernest E. Mason, Pensacola, for respondent.
   BOYD, Judge.

This cause is before us on petition for writ of habeas corpus, or, in the alternative, a constitutional writ. We treated the matter as a petition for writ of mandamus. We issued the alternative writ to the Honorable Ernest E. Mason, Circuit Judge of the First Judicial Circuit, in and for Es-cambia County, the trial court judge, and he has promptly filed his return thereto.

Petitioner seeks a writ of mandamus, compelling Judge Mason to conduct a hearing, in Petitioner’s presence, for mitigation of sentence pursuant to our decision in In re Baker, and Rule 3.780, Florida Rules of Criminal Procedure, 33 F.S.A.

Petitioner and a co-defendant were tried and convicted of a rape which occurred on August 10, 1971. The jury returned a verdict of guilty, without recommendation of mercy, and both defendants were sentenced to death. Subsequent to Petitioner’s conviction and sentence, this Court, in Baker, declared the death sentence previously imposed upon Petitioner void on the authority of the Supreme Court of the United States decision in Furman v. Georgia. Subsequent to the decisions in Furman and Donaldson, but prior to our decision in Baker, Judge Mason, upon his own motion, and without Petitioner’s presence, vacated Petitioner’s sentence of death, and resentenced him to life imprisonment. After his resen-tencing, Petitioner filed four separate petitions in seriatim, each, in effect, requesting a hearing on mitigation of sentence in his presence. All four petitions were denied by Judge Mason on grounds similar to those relied upon in his return.

In Baker, we said:

“All of the members of the class of persons under sentence of death who have been convicted of rape are hereby sentenced to life imprisonment. The cases of these persons, however, are remanded to their respective circuit courts for the sole purpose of further consideration of this sentence, and each of such persons may, within 90 days from this date, file a motion with the trial court for mitigation of sentence. If such a motion is filed by any person, a hearing thereon may thereafter be held under F.R.P. Rule 3.780 to determine first the date of the crime for which the defendant stands convicted. If committed after January 1, 1972, the life sentence shall not be mitigated. See Anderson v. State, supra. If committed prior to January 1, 1972, the Court may conduct a hearing under Rule 3.780, F.R.P., for the purpose of inquiring into all factors relevant to sentencing and shall then resentence such person to a term of life imprisonment or a term of years, in the discretion of the court. The defendant has the right to be present at any such hearing and the right to retain counsel, or have counsel appointed if indigent. These rights may be waived in writing by a defendant.”

The return has properly noted that, in Baker, this Court reduced Petitioner’s sentence to life imprisonment, and remanded his case to the Circuit Court of Escambia County, holding that the Judge “may” conduct a hearing, for the purpose of further reconsideration of sentence according to Rule 3.780. The return has additionally noted the Judge’s grounds for denial of such a hearing, to-wit: Petitioner’s failure to allege, and the Judge’s lack of knowledge of, mitigating circumstances entitling Petitioner to further reduction of sentence; the security risk in transporting Petitioner to the hearing; Petitioner’s prior conviction for rape and sentence to life imprisonment; and, acts of perversion committed during the instant rape.

Our careful analysis of the petition, the return, and the record, in light of the discretionary language of In re Baker, supra, sustains the view that, faced with the facts and circumstances of the instant case, the Judge’s determination, not to hold an additional Rule 3.780 hearing in the presence of the defendant, was correct.

Accordingly, the peremptory writ of mandamus should not issue, and the alternative writ of mandamus should be, and hereby is, discharged.

It is so ordered.

ADKINS, C. J., and ROBERTS, Mc-CAIN, DEKLE and CARLTON (Retired), JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge

(dissenting) :

The return admits that in In re Baker, supra, this Court reduced petitioner’s sentence to life imprisonment and remanded his case to the Circuit Court of Escambia County for the purpose of further reconsideration of sentence according to Rule 3.-780, provided petitioner timely filed a motion for mitigation of sentence. The record before us reflects that petitioner timely filed such a motion for mitigation of sentence on November 29, 1972, within ninety days of the filing date of Baker on September 26, 1972, and that petitioner stands convicted of the crime of rape committed prior to January 1, 1972, thus clearly bringing him within the class of persons entitled to a hearing pursuant to Baker. This raises a conflict between the permissive language of Baker and the mandatory language of the Rule. In Baker we provided that in such circumstances “the Court may conduct a hearing under Rule 3.780.” (Emphasis supplied.) The Rule, which applies when the Court has discretion as to the sentence to be imposed, provides, however, that “it shall, upon the suggestion of either party” hear evidence thereon in open court. (Emphasis supplied.) The record shows the requisite discretion of the court as to petitioner’s penalty and petitioner’s motion for mitigation hearing are both present herein, thereby invoking the mandatory language of the Rule entitling petitioner to the hearing sought. The additional permissive language of the Rule as to inquiry on the court’s own motion is applicable only where no request is made by either party and is inapplicable to the facts sub judice.

The common law rule is universal that a person found guilty by the trier of fact is entitled as an indispensable necessity to an allocutionary hearing before the judge prior to sentencing. See IS Am.Jur. Criminal Law, § 457, page 114, and United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (5th head note). Denial of such a hearing because of the imprecise language of Baker would appear to be fundamental error. The rule, which carries forward the rule of law of England and later in the United States, appears to follow the traditional and ancient guaranteed right of a defendant. Baker does not.

Thus, I would hold that, unless waived, petitioner is entitled to a resentencing hearing in his presence and with counsel. The facts that petitioner has already been resentenced to life imprisonment without a hearing in his presence and without counsel and did not allege mitigating circumstances in his petition do not, in my opinion, constitute a waiver nor abridge his right to a hearing in accord with Baker, at which such circumstances should be raised.

I would issue the peremptory writ accordingly. 
      
      . 267 So.2d 331 (Fla.1972).
     
      
      . Said Buie provides: “When the court has discretion as to the penalty to be inflicted on the defendant, it shall, upon the suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the same summarily in open court, either immediately or at a specified time and upon such notice to the adverse party as the court may direct; or the court may inquire into such circumstances on its own motion.”
     
      
      . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Anderson v. State, 267 So.2d 8 (Fla.1972); Donaldson v. Sack, 265 So.2d 499 (Fla.1972).
     
      
      . 267 So.2d at 335 (Emphasis supplied.)
     