Case Involving a Prosecutor Who Had Ex Parte Communication With the Judge

In State v. Riechmann, 777 So. 2d 342, 351 (Fla. 2000), the postconviction court concluded that Riechmann was denied an independent weighing of aggravating and mitigating circumstances because the trial judge, through an ex parte communication with the prosecutor, delegated to the prosecutor the responsibility of writing the order sentencing Riechmann to death. The court upheld the postconviction court's findings, noting that section 921.141, Florida Statutes (1985), required the trial judge to independently weigh the aggravating and mitigating circumstances to determine what penalty should be imposed upon the defendant and to draft the order sentencing the defendant to death. See Riechmann, 777 So. 2d at 351. In Spencer v. State, 615 So. 2d 688, 691 (Fla. 1993), defense counsel happened upon the trial judge, the state attorney, and the state attorney's assistant proofreading an order sentencing Spencer to death. 615 So. 2d at 689. When questioned by defense counsel, the trial judge admitted that the State had prepared a draft of the sentencing order and that defense counsel had not been given notice of the process employed by the prosecutor and the judge. Id. at 690. The court reversed the defendant's conviction and remanded the case for a new trial based on reversible error occurring in both the jury selection process and the sentencing portion of the penalty phase. Our decision was predicated in part on the trial judge's error of formulating his decision prior to giving the defendant an opportunity to be heard and in part on the improper ex parte communication. Id. at 690-91.