# Mark James Asay v. State of Florida, SC16-102 Mark James Asay v. Julie L. Jones, etc. & SC16-628 Mark James Asay v. Julie L. Jones, etc.

> Supreme Court of Florida · December 22, 2016 · 210 So. 3d 1

URL: https://www.frixlaw.com/law-library/cases/9870674

## Case

- **Full name:** Mark James ASAY, Appellant, v. STATE of Florida, Appellee; Mark James Asay, Petitioner, v. Julie L. Jones, Etc., Respondent; Mark James Asay, Petitioner, v. Julie L. Jones, Etc., Respondent
- **Court:** Supreme Court of Florida
- **Decided:** December 22, 2016
- **Citations:** 210 So. 3d 1
- **Precedential status:** Published
- **Opinion:** Concurrence by Polston
- **Judges:** Labarga, Quince, Polston, Lewis, Canady, Pariente, Perry
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9870674

## How later opinions describe it (automated extraction)

- finding that Witt’s first factor weighed in favor of retroactively applying Hurst v. Florida and Hurst v. State to capital defendants whose sentences were final before Ring because “the ultimate decision of whether a defendant lives or dies rests on these factual findings, onl…
- stating that, by calling the defendant a pedophile, 9 the prosecutor “suggests the defendant has engaged in repeated sexual abuse of 10 minors and raises a profiling argument, namely that because he is a pedophile, it is 11 likely that he would sexually molest children, includ…
- holding that Hurst is not retroactive to cases that became final before the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
- holding that Hurst does not apply retroactively to sentences of death that became final before the Supreme Court issued its 2002 decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)
- holding that Hurst v. Florida does not apply retroactively to cases that were final before Ring v. Arizona, 536 U.S. 584 , 122 S. Ct. 2428 (2002), was 6 Case: 17-14935 Date Filed: 11/08/2017 Page: 7 of 8 decided

## Opinion text

POLSTON, J.,
concurring.
I agree with the majority that Hurst v. Florida, _ U.S. _, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016), does not apply retroactively to cases that were final when Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), was decided. To be clear, this decision does not address whether Hurst v. Florida applies retroactively to those cases that were not final when Ring was decided but were final when Hurst v. Florida was decided.
However, while I agree with the majority that Hurst v. Florida is not retroactive to pre-Ring cases under Witt v. State, 387 So.2d 922 (Fla. 1980), I believe that the retroactivity analysis the United States Supreme Court announced in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 *30 L.Ed.2d 334 (1989), is the proper and applicable test. See Johnson v. State, 904 So.2d 400, 413 (Fla. 2005) (Cantero, J., concurring). I also continue to dissent to the majority’s expansion of the meaning of Hurst v. Florida as well as the majority’s holding that chapter 2016-13, Laws of Florida, is unconstitutional. See Hurst v. State, 202 So.3d 40, 77-83 (Fla. 2016) (Canady, J., dissenting); Perry v. State, 41 Fla. L. Weekly S449 , 210 So.3d 630 , 2016 WL 6036982 (Fla. Oct. 14, 2016) (Canady, J., concurring in part and dissenting in part).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9870674. Public record. Not legal advice.