Opposition Brief — Mark A. Twilegar, Petitioner v. Florida

DOCKET NO. 17-8236

IN THE SUPREME COURT OF THE UNITED STATES

MARK TWILEGAR,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF FLORIDA

PAMELA JO BONDI

ATTORNEY GENERAL

SCOTT A. BROWNE

Senior Assistant Attorney General

Florida Bar No. 0802743

TIMOTHY A. FREELAND

Senior Assistant Attorney General

Florida Bar No. 539181

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

scott.browne@myfloridalegal.com

timothy.freeland@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

[Capital Case]

In 2007, Mark Twilegar was found guilty of premeditated

murder.

Prior

to

trial

and

against

his

attorney’s

advice,

Twilegar announced to the court that if he were found guilty, he

intended to waive his right to a penalty phase jury. He told the

trial court that he did not want to spend his life in prison if

he were found guilty; he would rather be given a death sentence.

Twilegar was undeterred by the trial court’s warning that the

law

might

change,

and

several

times

Twilegar

remained

accepted

Twilegar’s

even

during

the

firm

though

months

the

matter

leading

in

his

stance.

waiver

as

being

up

was

to

his

Eventually,

knowing

and

revisited

trial,

the

court

voluntary.

Significantly, Twilegar also directed his attorney to withdraw a

previously filed motion that, if granted, would have required

unanimity

guilty,

from

the

his

court

penalty

held

a

phase

non-jury

jury.

After

penalty

he

phase

was

found

hearing

and

Twilegar was sentenced to death.

In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court

disallowed

Florida’s

procedure

permitting

trial

judges

(as

opposed to juries) to make findings of fact in capital cases. In

response,

Florida

adopted

new

procedural

requirements

that,

among other things, mandated that all factual findings necessary

i

to

impose

death

be

found

by

a

unanimous

jury.

The

Florida

Supreme Court subsequently held that the new procedure did not

apply to all capital cases; specifically, it excluded them from

applying to any capital defendant who, like Twilegar, waived his

penalty phase jury. 1

Despite

Twilegar

the

sought

Florida

Supreme

post-conviction

Court’s

relief

clear

and

directive,

asserted

for

the

first time in 2017 that his penalty-phase waiver of jury factfinding

was

unanimous

involuntary.

penalty-phase

Had

he

verdict,

known

he

Twilegar

was

entitled

claimed,

he

to

a

would

never have waived that right. The Florida Supreme Court affirmed

the

trial

court’s

finding

that

his

waiver

was

knowing

and

voluntary. Twilegar v. State, 228 So. 3d 550 (2017). Twilegar’s

claim gives rise to the following question before this Honorable

Court:

Does Florida’s change in capital sentencing procedures

render Twilegar’s decision to waive jury fact-finding

involuntary when his waiver was based on law that was

correct at the time?

1

Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016).

ii

PARTIES TO THE PROCEEDINGS

The

following

were

parties

to

the

proceedings

in

Florida Supreme Court:

1) Mark Twilegar, Petitioner in this Court, was the

appellant below.

2) The State of Florida, Respondent in this Court, was

the appellee below.

iii

the

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.................................. i

PARTIES TO THE PROCEEDINGS................................... iii

TABLE OF CONTENTS............................................. iv

TABLE OF CITATIONS............................................. v

CITATION TO OPINION BELOW...................................... 1

JURISDICTION................................................... 1

STATEMENT OF THE CASE.......................................... 2

REASONS FOR DENYING THE WRIT................................... 7

CONCLUSION.................................................... 15

CERTIFICATE OF SERVICE........................................ 16

iv

TABLE OF CITATIONS

Cases

Bartlett v. Stephenson,

535 U.S. 1301 (2002) ........................................ 14

Blakely v. Washington,

542 U.S. 296 (2004) .......................................... 9

Boykin v. Alabama,

395 U.S. 238 (1969) .......................................... 8

Brady v. United States,

397 U.S. 742 (1970) ......................................... 13

Braxton v. United States,

500 U.S. 344 (1991) .......................................... 7

Halbert v. Michigan,

545 U.S. 605 (2005) .......................................... 8

Hurst v. Florida,

136 S. Ct. 616 (2016) ........................................ i

Iowa v. Tovar,

541 U.S. 77 (2004) ........................................ 8, 9

Mullens v. State,

197 So. 3d 16 (Fla. 2016),

cert. denied, 137 S. Ct. 672 (2017) .................. ii, 9, 11

Ring v. Arizona,

536 U.S. 584 (2002) ......................................... 11

Rockford Life Insurance Co. v. Illinois Dept. of Revenue,

482 U.S. 182 (1987) ...................................... 8, 14

Texas v. Mead,

465 U.S. 1041 (1984) ........................................ 14

Twilegar v. State,

228 So. 3d 550 (2017) ................................. ii, 1, 9

Twilegar v. State,

42 So. 3d 177 (Fla. 2010) .................................... 6

v

United States v. Johnston,

268 U.S. 220 (1925) ......................................... 14

United States v. Mezzanatto,

513 U.S. 196 (1995) .......................................... 9

Other Authorities

18 U.S.C. § 1201(a)........................................... 13

28 U.S.C. § 1257............................................... 1

Fla. R. Crim. P. 3.851......................................... 1

Sup. Ct. R. 10.............................................. 7, 8

vi

CITATION TO OPINION BELOW

The matter before this Honorable Court is the affirmance of

the denial of relief on a successive motion for postconviction

relief

under

published

Florida

opinion

of

Rule

of

Criminal

the

Florida

Procedure

Supreme

Court

3.851.

is

found

The

at

Twilegar v. State, 228 So. 3d 550 (Fla. 2017), which is attached

hereto as Appendix A.

JURISDICTION

Petitioner asserts that this Court’s jurisdiction is based

upon 28 U.S.C. § 1257. Respondent acknowledges that section 1257

sets out the scope of this Court’s certiorari jurisdiction, but

submits that this case is inappropriate for the exercise of this

Court’s discretionary jurisdiction.

1

STATEMENT OF THE CASE

Petitioner,

Mark

Twilegar,

was

convicted

of

first-degree

murder. The following facts are drawn from the Florida Supreme

Court’s opinion affirming Twilegar’s direct appeal:

On April 3, 2003, Mark Twilegar was charged with

first-degree murder, either by premeditated design or

in the course of a robbery, for the shooting death of

David Thomas in Fort Myers on August 7, 2002. The

evidence presented at trial showed that Twilegar came

to Fort Myers from Missouri in the spring of 2002 and

lived for a couple of weeks with his niece, Jennifer

Morrison, who rented a residence from the victim,

David

Thomas,

and

his

wife,

Mary

Ann

Lehman.

Twilegar's mother arrived a few weeks later and also

moved in with Morrison. After several weeks, Twilegar

moved out and eventually pitched a three-room tent in

an undeveloped area adjacent to the backyard of a

house at 412 Miramar Road, which was occupied by

Britany and Shane McArthur. Twilegar did not own a car

and did not have a regular job. In lieu of paying

rent, he worked as a handyman on the premises. His

possessions included a couch, a TV, some clothes and a

twelve-gauge shotgun, which he kept in the tent. The

McArthurs moved out of the house in June 2002, and

Britany's younger brother, Spencer, moved into the

house in September. Prior to moving in, Spencer

stopped by the house on a regular basis to perform

renovations, as discussed below.

On occasion, Twilegar worked as a handyman for the

victim, David Thomas, and on August 2, 2002, the two

drove in Thomas's pickup truck to Montgomery, Alabama,

where Twilegar had agreed to install a deck on a house

Thomas owned there. Thomas told his wife that he would

be gone six to eight weeks. On the morning of August

6, 2002, Thomas withdrew $25,000 in cash from a bank

in Montgomery, ostensibly to purchase a house at an

auction, and then later that same morning he rented a

Dodge Neon, arranging to return the car in Montgomery

on August 9, 2002. Thomas called his girlfriend,

Valerie Bisnett Fabina, in Fort Myers and told her

that he and Twilegar would be returning to Fort Myers

2

that night. Thomas's neighbor last saw Thomas and

Twilegar at the Montgomery house at approximately 3

p.m. that afternoon. Thomas and Twilegar then returned

to Fort Myers, where Thomas met with Fabina at

approximately 11 p.m. and obtained a motel room key

card from her. At the meeting, Fabina observed

Twilegar sitting in the passenger seat of the Neon.

The next evening, August 7, 2002, Thomas visited

Fabina at her job at 7 or 7:30 p.m. and returned the

motel key card. When he opened his wallet to remove

the key card, Fabina noticed that he had an unusually

large amount of cash. Thomas told her that he and

Twilegar were going to go look at a truck to buy for

Twilegar to use on the job in Alabama, and that he

would meet her later that night at the motel. Fabina

never saw or heard from him again. Thomas spoke with

his wife, Mary Ann Lehman, by phone a little after 9

p.m. that evening, and they made arrangements to speak

again in the morning. She never saw or heard from him

again. Later that night, Twilegar, alone, arrived at

Jennifer Morrison's house, where Twilegar's mother was

staying. Morrison then drove Twilegar to 7–Eleven

where he purchased cell-phones and supplies. She also

drove him to Wal–Mart where he made additional

purchases. When they arrived back at the house,

Morrison went to bed. When she woke the next morning,

Twilegar and his mother and their possessions were

gone. Morrison would never see Twilegar in Fort Myers

again.

After Britany and Shane moved out of the Miramar house

in June but before Spencer moved into the house in

September, Spencer arrived at the house one day at 4

p.m. to perform renovations and he saw Twilegar

digging in the backyard on the far side of his tent.

Spencer watched him briefly, unobserved, then returned

to the front of the house. A few minutes later,

Twilegar approached him and explained that a man would

be stopping by to deliver a couple of pounds of “weed”

and that the man would not stop if he saw Spencer

there. Twilegar asked him to leave the premises and

told him that if he did he would give him either $100

or an ounce of weed. Spencer left, and when he

returned the next day, he found a $100 bill in the

prearranged spot. He also found Twilegar's tent

3

disassembled

and

smoldering

in

the

backyard

incinerator. Most of Twilegar's possessions were gone,

including

the

shotgun.

Spencer

would

never

see

Twilegar in Fort Myers again. On September 26, 2002,

after Thomas's disappearance was publicized, Spencer

went to the spot where Twilegar had been digging and

found that the area was covered by Twilegar's couch.

He moved the couch aside and found an area of freshly

dug dirt, covered with palm fronds. Beneath the palm

fronds was a piece of plywood, and beneath that a

couple of cinder blocks and a car ramp. After digging

several feet, he detected a strong odor. Police were

called and they discovered Thomas's body.

Thomas died from a single shotgun blast to his upper

right back, delivered at close range. The 7 1/2

birdshot, from a twelve-gauge shell, had travelled

through his body at a downward trajectory. He had died

within minutes of being shot. Soft fine sand, similar

to that which covered the exterior of his body, was

found

deep

inside

his

throat,

in

his

larynx,

indicating that he had still been breathing, though

not necessarily conscious, when buried. He was still

wearing the same clothes he had been wearing when

Fabina last saw him on August 7, 2002, but his wallet

was missing. His body was badly decomposed, and the

time of death was uncertain. A spent twelve-gauge

shell was found in the incinerator, along with a

broken D-shaped garden tool handle. Twilegar's shotgun

was never found. Several live twelve-gauge shells were

found discarded in the area, along with a shovel with

a broken handle. Thomas's rental car key fob was found

approximately 100 feet from the body. The rental car

was found earlier, on August 13, 2002, burned in a

remote area of Lee County. Twilegar was apprehended

September 20, 2002, in Greenville, Tennessee, where he

had been staying at a campground since August 21,

2002. Among the property seized at the campground were

numerous retail receipts totaling thousands of dollars

for camping supplies and other items purchased after

Twilegar had left Fort Myers. The merchandise was all

purchased with cash. While awaiting trial, Twilegar

made several incriminating phone calls, which were

recorded.

4

Twilegar's trial began January 16, 2007, and he

testified in the guilt phase. He stated that the

“weed” incident had in fact occurred but that it had

happened before he left for Alabama with Thomas, not

after he returned. He said that he had often dug holes

near his tent for latrine purposes. He also testified

that he had returned from Alabama not with Thomas on

August 6, 2002, but alone on August 5, 2002, in a car

Thomas had given him as partial payment for the deck

work he was doing, and that he had later sold the car

to an itinerant in Palm Beach. He testified that

during the early morning hours of August 8, 2002,

after shopping at 7–Eleven and Wal–Mart, he had driven

his mother's car, which was already packed with their

possessions, back to his tent to get his shaving kit

and that someone had pointed a shotgun at him in the

dark and that he had deflected the shot, injuring his

hand. He kicked the assailant and ran away.

After closing arguments, the jury deliberated for

little more than an hour and on January 26, 2007,

returned a verdict finding Twilegar guilty of firstdegree premeditated murder. Twilegar waived a penalty

phase jury and waived both the investigation and the

presentation

of

mitigation.

The

penalty

phase

proceeding was held before the judge on February 16,

2007, and the State presented argument in aggravation,

while the defense stood mute. The Spencer1 hearing was

held February 19, 2007. On August 14, 2007, the court

sentenced Twilegar to death, based on two aggravating

circumstances,2 no statutory mitigating circumstances,

and four nonstatutory mitigating circumstances.3

[FN1] Spencer v. State, 615 So. 2d 688, 690–91

(Fla. 1993)(“[T]he trial judge should hold a

hearing to: a)give the defendant, his counsel,

and the State, an opportunity to be heard;

b)afford, if appropriate, both the State and the

defendant an opportunity to present additional

evidence; c)allow both sides to comment on or

rebut information in any presentence or medical

report;

and

d)afford

the

defendant

an

opportunity to be heard in person.”).

[FN2]

The

court

found

that

the

following

aggravating circumstances had been established,

5

with the following weights: (1)the capital

felony was committed for pecuniary gain (great

weight); and (2)the capital felony was committed

in a cold, calculated and premeditated manner

(CCP) (great weight).

[FN3]

The

court

found

that

the

following

nonstatutory mitigating circumstances had been

established, with the following weights: (1)the

defendant had a disadvantaged and dysfunctional

family background and childhood (little weight);

(2)the defendant had received a limited formal

education in that he had completed only the

seventh grade (little weight); (3)the defendant

had abused drugs as a teenager (very little

weight); and (4)the alternative punishment to

death

is

life

in

prison

without

parole

(significant weight).

Twilegar v. State, 42 So. 3d 177, 185-188 (Fla. 2010).

6

REASONS FOR DENYING THE WRIT

Twilegar’s petition should be rejected. The primary purpose

for which

this

Court

uses

its

certiorari

jurisdiction

is

to

resolve conflicts among the United States courts of appeal and

state courts “concerning the meaning and provisions of federal

law.”

Braxton

Twilegar’s

identify

v.

United

argument

any

is

federal

States,

of

500

or

extremely

state

U.S.

344,

limited

court

348

scope,

conflict,

and

(1991).

does

not

instead

amounts to nothing more than his general disagreement with how

Florida has elected to apply its own death penalty laws. In

short, there is no federal constitutional question here and no

reason for this Court to grant review. See Braxton, id.

Rule 10 of the Rules of the Supreme Court of the United

States identifies the relevant considerations in determining the

propriety of certiorari review. Noting review is only granted

for “compelling reasons,” the Rule indicates consideration of a

decision

by

a

state

court

of

last

resort

should

involve

an

unresolved question of federal law or a conflict among higher

courts.

Cases that do not divide the federal or state courts or

that do not present important, unsettled questions of federal

law

usually

do

not

merit

certiorari

review.

Rockford

Life

Insurance Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 184,

7

n. 3 (1987). See also Supreme Court Rule 10.

No

conflict

or

unsettled

question

of

federal

law

is

presented in Twilegar’s petition. Instead, he seeks certiorari

review of the Florida Supreme Court’s fact-based determination

regarding the validity of his knowing and voluntary waiver of a

penalty phase jury. Specifically, he asserts that his waiver was

invalid because Florida has made procedural changes that did not

exist at the time of his waiver. The Florida Supreme Court has

determined, however, that the changes in question do not apply

to a defendant who waived his right to jury fact-finding, a

determination

that

does

not

rise

to

the

level

of

a

federal

constitutional violation. Despite his argument to the contrary,

the record shows that Twilegar’s decision to waive his penalty

phase

jury

was

not

effected

out

of

ignorance

of

his

constitutional rights, but was legitimate trial strategy.

Legal rights, even constitutional ones, are presumptively

waivable. Halbert v. Michigan, 545 U.S. 605, 637 (2005) (Thomas,

J., dissenting) (citing United States v. Mezzanatto, 513 U.S.

196,

200-01

(1995)

(additional

citations

omitted));

See

also

Boykin v. Alabama, 395 U.S. 238 (1969). Criminal defendants can

waive their constitutional rights as long as they knowingly,

intelligently, and voluntarily do so. Iowa v. Tovar, 541 U.S.

77, 78 (2004). It is enough that an individual understands the

8

waived right “in general . . . even though the defendant may not

know the specific detailed consequences of invoking it.” Tovar,

541

U.S.

at

92.

constitutional

To

escape

rights

there

the

consequence

must

be

of

waiving

affirmative

one’s

indications

that, under the relevant circumstances, the waiver was unknowing

or involuntary. Mezzanatto, 513 U.S. 806. If this Court were to

accept

review,

whether

the

surrounding

the

state

resolution

court

Twilegar’s

of

the

correctly

waiver.

In

case

would

interpreted

other

words,

turn

upon

the

facts

this

case

is

strongly fact-based and does not implicate any broad questions

of constitutional law that have not already been resolved long

ago. See, e.g., Blakely v. Washington, 542 U.S. 296, 309 (2004)

(Sixth

Amendment

right

to

jury

fact

finding

is

waivable).

Indeed, the question raised by Twilegar may only be resolved by

assessing the correctness of the trial court’s factual findings.

Accordingly, certiorari review is inappropriate here.

In rejecting Twilegar’s postconviction claim, the Supreme

Court of Florida agreed with the trial court’s determination

that Twilegar knowingly, voluntarily, and intelligently waived a

penalty-phase

jury,

and

Florida’s

own

precedent

precluded

a

grant of relief. Twilegar v. State, 228 So. 3d 550 (Fla. 2017).

See also Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016),

cert. denied, 137 S. Ct. 672 (2017). Twilegar argues, however,

9

that because he did not know he had a constitutional right to

unanimity, his waiver could not have been knowing and voluntary.

In resolving this question, the trial court examined the facts

and found no credible evidence to support this claim. To the

contrary, the record reflects that Twilegar declined to follow

any of counsel’s penalty phase advice, going so far as to direct

him to present no mitigation case whatsoever. Further, Twilegar

told the court that if he was found guilty, he wanted no effort

made to secure anything other than a death sentence. Even after

multiple colloquies conducted over a four-month period, 2 Twilegar

remained consistent in his view; despite counsel’s advice to the

contrary (Twilegar, clearly bored with the subject, told the

trial court he had discussed the matter “many times” with his

attorney), he wanted no effort made to secure a life sentence.

Appellant’s waiver of his penalty phase jury, granted over the

State’s

strenuous

objection,

was

consistent

with

his

contemporaneous statement that if he were found guilty, the only

sentence

he

wanted

was

death.

2

These

facts

conflict

with

Twilegar’s Affidavit opposing mitigation was signed 9/12/2006.

The record reflects that the trial court discussed the

mitigation waiver on 9/25/2006, did so again on 12/18/2006,

granted Twilegar’s motion to waive penalty phase jury after an

additional colloquy held 1/16/2007, and revisited the matter a

final time on the day of the penalty phase trial held 2/16/2007.

10

Twilegar’s “if-only-I’d-known” unanimity argument. 3

The

penalty

trial

phase

court

jury

rejected

waiver

was

Twilegar’s

invalid,

argument

finding

that

his

instead

that

Appellant’s waiver was knowing and voluntary, and though the

Florida legislature did subsequently (in 2017) change the rules

so

as

to

require

penalty

phase

unanimity,

Twilegar

was

“specifically warned during the December 18, 2006 hearing that

the law was unsettled and could change”. The Florida Supreme

Court’s denial of relief was based on these factual findings,

and certiorari review by this Court would require examination of

a

fact-based

claim

that

was

rejected

because

Florida’s

decisional law required it. Mullens v. State, 197 So. 3d 16

(Fla. 2016).

Twilegar

have

been

nevertheless

intelligent

if

insists

that

counsel’s

his

waiver

could

not

advice

(which

presumably

would have included a then-correct statement that unanimity was

not required) has since turned out to be wrong. This argument

fails, however, for two reasons.

First,

3

Twilegar’s

claim

logically

prevails

only

if

his

The State also notes that it was common practice at the time of

Twilegar’s 2007 trial to file a motion alleging that Florida’s

sentencing procedures were in violation of this Court’s decision

in Ring v. Arizona, 536 U.S. 584 (2002), and virtually every

defendant

facing

a

possible

death

sentence

(including

Petitioner) filed a motion alleging that Florida’s procedure

violated Ring. Twilegar directed his attorney to withdraw his

Ring motion, however, without seeking a ruling.

11

waiver was made in reliance on that aspect of counsel’s advice

that was later deemed erroneous. The state trial court noted,

however,

that

Twilegar

filed

but

later

withdrew

a

motion

demanding penalty phase unanimity without requesting a ruling;

this plainly undermines Twilegar’s present argument. If all he

sought was unanimity, why withdraw a motion requesting that very

thing? And while this action conflicts with his present claim,

it

is

wholly

consistent

with

Twilegar’s

contemporaneous

statements to the court in 2007 that he did not want a life

sentence if convicted. 4 Twilegar refused to cooperate with the

mitigation

specialist,

he

said

he

did

not

want

anyone

investigating his past, he told the psychologist hired by his

attorney to get out. At no time during the many colloquies with

his trial judge did he say anything about a unanimous penalty

phase. Twilegar’s waiver was clearly made for reasons unrelated

to unanimity. No other explanation fits the known facts.

Second, even if we agree that Twilegar acted only because

he did not know he was entitled to unanimity, this does not

mandate a conclusion that his waiver was invalid. This Court has

already determined that a defendant who voluntarily waives his

Sixth Amendment right to jury trial is bound by his choice, even

4

Twilegar told the trial judge “I don’t want to do 20 years on

death row waiting for it. I don’t want a life sentence. Let’s

get it done.”

12

where his decision was made in reliance on a flawed procedural

rule later deemed unconstitutional.

In

Brady

v.

United

States,

397

U.S.

742

(1970)

the

defendant was charged under a federal law (18 U.S.C. § 1201(a))

that authorized a death sentence if the jury recommended it.

Because § 1201(a) gave the judge no authority to impose death in

the

absence

of

a

jury’s

specific

findings,

it

naturally

encouraged defendants to waive jury trial, and Brady did exactly

that- he waived his Sixth Amendment right to a jury and entered

a plea. One year later, after this Court struck down § 1201(a)

as

unconstitutional,

Brady

sought

to

withdraw

his

plea

and

argued that his waiver could not have been voluntary under the

circumstances.

This

Court

disagreed-

the

record

showed

that

Brady might have had other, unrelated reasons for entering a

waiver, and Brady’s voluntary waiver of a constitutional right

was consistent with the law in effect at the time. Such a plea,

the

Court

held,

“does

not

become

vulnerable

because

later

judicial decisions indicate that the plea rested on a faulty

premise.” Id. at 757. Clearly, even if Twilegar did waive his

jury only because he could not get penalty phase unanimity, his

waiver was based on the correct law at the time of his decision.

This

explains

Twilegar

a

the

new

Florida

penalty

Supreme

phase

13

Court’s

trial;

under

decision

Florida

to

deny

law,

a

defendant is not automatically entitled to be resentenced merely

because a subsequent legal decision changed the rules regarding

penalty phase unanimity, particularly where the right to jury

fact-finding was waived for legitimate, strategic reasons. And,

the Florida Supreme Court’s conclusion in this regard is fully

consistent

with

this

Court’s

holding

Twilegar’s

claim

is

inappropriate

for

in

Brady;

accordingly,

certiorari

review.

At

bottom, Twilegar’s claim amounts to little more than a dispute

over the correctness of the state court’s ruling. 5

There is no conflict among the state courts of last resort

or the federal circuit courts on this issue and no unsettled

question of federal law. This Court has noted that cases which

have

not

divided

the

federal

or

state

courts

or

presented

important, unsettled questions of federal law do not usually

merit certiorari review. Rockford Life Insurance Co. v. Illinois

Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law

is well-settled that this Court does not grant certiorari “to

review evidence and discuss specific facts.” United States v.

Johnston, 268 U.S. 220, 227 (1925); Texas v. Mead, 465 U.S. 1041

(1984); see also Bartlett v. Stephenson, 535 U.S. 1301, 1304

(2002)

5

(issues

with

few,

if

any,

ramifications

beyond

the

The State notes that if Twilegar’s position is correct, any

defendant who waives jury trial and enters a plea would be

permitted to challenge his waiver any time the law changes.

14

presenting case do not satisfy any of the criteria for exercise

of certiorari jurisdiction). Accordingly, this Court must deny

the petition for certiorari review filed herein.

CONCLUSION

For

the

foregoing

reasons,

the

Court

should

DENY

the

petition for certiorari review of the decision of the Florida

Supreme Court entered below.

PAMELA JO BONDI

ATTORNEY GENERAL, STATE OF FLORIDA

/s/ Scott A. Browne

__________________________________

SCOTT A. BROWNE*

Senior Assistant Attorney General

Florida Bar No. 0802743

*Counsel of Record

TIMOTHY A. FREELAND

Senior Assistant Attorney General

Florida Bar No. 539181

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

scott.browne@myfloridalegal.com

timothy.freeland@myfloridalegal.com

COUNSEL FOR RESPONDENT

15

CERTIFICATE OF SERVICE

I

HEREBY

CERTIFY

that

a

true

and

correct

copy

of

the

foregoing has been submitted using the Electronic Filing System.

I further certify that a copy has been sent electronically and

by

U.S.

Capital

mail

to

Suzanne

Collateral

Boulevard,

Suite

Myers

Regional

444,

Keffer,

Chief

Counsel-South,

Ft.

Lauderdale,

Assistant

1

CCRC,

East

Broward

Florida

33301,

keffers@ccsr.state.fl.us, on this 25th day of April, 2018. All

parties required to be served have been served.

/s/ Scott A. Browne

________________________________

COUNSEL FOR RESPONDENT

16

APPENDIX A

Twilegar v. State, 228 So.3d 550 (2017)

42 Fla. L. Weekly S887

228 So.3d 550

Supreme Court of Florida.

Mark A. TWILEGAR, Appellant,

v.

STATE of Florida, Appellee.

No. SC17–839

|

November 2, 2017

Synopsis

Background: Defendant, whose conviction for murder in

the first degree and sentence of death was affirmed on

direct appeal by the Supreme Court, 42 So.3d 177, sought

postconviction relief. The Circuit Court, Lee County, No.

362003CF002151000ACH, Ramiro Mañalich, J., denied

relief. Defendant appealed.

[Holding:] The Supreme Court held that Supreme Court

decision determining that Florida's capital sentencing

scheme violated Sixth Amendment right to jury trial did

not apply to defendant who waived penalty phase jury.

Affirmed.

West Headnotes (1)

[1]

Jury

Right to waive jury in general

Jury

Statutory provisions

United States Supreme Court decision in

Hurst v. Florida, 136 S.Ct. 616, determining

that Florida's capital sentencing scheme

violated Sixth Amendment right to a jury trial

did not apply to permit defendant who waived

penalty phase jury to seek relief from death

sentence. U.S. Const. Amend. 6.

Cases that cite this headnote

*551 An Appeal from the Circuit Court in and

for Lee County, Ramiro Mañalich, Judge—Case No.

362003CF002151000ACH

Attorneys and Law Firms

Neal Dupree, Capital Collateral Regional Counsel,

Suzanne Myers Keffer, Chief Assistant, and Scott

Gavin, Staff Attorney, Capital Collateral Regional

Counsel, Southern Region, Fort Lauderdale, Florida, for

Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida,

and Timothy A. Freeland, Senior Assistant Attorney

General, Tampa, Florida, for Appellee

Opinion

PER CURIAM.

Mark A. Twilegar, a prisoner under sentence of death,

appeals the circuit court's order denying his successive

motion for postconviction relief filed under Florida Rule

of Criminal Procedure 3.851 seeking relief from his death

sentence pursuant to Hurst v. Florida, ––– U.S. ––––, 136

S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202

So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct.

2161, 198 L.Ed.2d 246 (2017). We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const.

As the circuit court correctly recognized, the Hurst

decisions do not apply to defendants like Twilegar who

waived a penalty phase jury. See Mullens v. State, 197

So.3d 16, 38–40 (Fla. 2016), cert. denied, ––– U.S. ––––,

137 S.Ct. 672, 196 L.Ed.2d 557 (2017); see also Brant

v. State, 197 So.3d 1051, 1079 (Fla. 2016). Although

Twilegar urges this Court to revisit, in light of the Hurst

decisions, its prior holding in Twilegar's direct appeal

that his waiver was knowing, intelligent, and voluntary,

see Twilegar v. State, 42 So.3d 177, 204 (Fla. 2010),

cert. denied, 562 U.S. 1225, 131 S.Ct. 1476, 179 L.Ed.2d

315 (2011), that argument is without merit. See Mullens,

197 So.3d at 39–40 (explaining that a defendant “cannot

subvert the right to jury factfinding by waiving that right

and then suggesting that a subsequent development in

the law has fundamentally undermined his sentence”).

Accordingly, we affirm the circuit court's denial.

It is so ordered.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

1

Twilegar v. State, 228 So.3d 550 (2017)

42 Fla. L. Weekly S887

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE,

CANADY, POLSTON, and LAWSON, JJ., concur.

All Citations

228 So.3d 550, 42 Fla. L. Weekly S887

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2