Petition for Writ of Certiorari — Gary Ray Bowles, Petitioner v. Florida

Supreme Court briefJun 8, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

GARY RAY BOWLES,

Petitioner,

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

BILLY H. NOLAS

Counsel of Record

SEAN T. GUNN

KELSEY PEREGOY

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

billy_nolas@fd.org

sean_gunn@fd.org

kelsey_peregoy@fd.org

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (Jan. 29, 2018) ................ 1a

Exhibit 2 — Duval County Circuit Court Order Denying Relief

(August 21, 2017) ............................................................................ 3a

Exhibit 3 — Florida Supreme Court Order to Show Cause (Oct. 2, 2017) ...... 10a

Exhibit 4 — Bowles/Appellant’s Response to Order to Show Cause

(Oct. 11, 2017) ............................................................................... 11a

Exhibit 5 — Appellee/State’s Response to Order to Show Cause

(Oct. 23, 2017) ............................................................................... 34a

Exhibit 6 — Bowles/Appellant’s Reply in Support of Response to

Order to Show Cause (Nov. 15, 2017) .......................................... 50a

Exhibit 7 — Bowles/Appellant’s Motion for a Rehearing (Feb. 13, 2018) ....... 63a

Exhibit 8 — Florida Supreme Court Order Striking Rehearing

(Feb. 22, 2018) .............................................................................. 69a

Exhibit 9 — Florida Death Penalty Appeals Decided in Light of Hurst

(Source: Death Penalty Information Center) ............................ 70a

Exhibit 10 — List of Florida Supreme Court Opinions Summarily

Denying Relief in Light of Hitchcock (Jan.–Feb. 2018) ............. 79a

Supreme Court of Florida

____________

No. SC17-1754

____________

GARY RAY BOWLES,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[January 29, 2018]

PER CURIAM.

We have for review Gary Ray Bowles’ appeal of the circuit court’s order

denying Bowles’ motion filed pursuant to Florida Rule of Criminal Procedure

3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Bowles’s motion sought relief pursuant to the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on

remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.

2161 (2017). After this Court decided Hitchcock v. State, 226 So. 3d 216 (Fla.

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2017), cert. denied, 138 S. Ct. 513 (2017), we ordered Bowles to show cause why

Hitchcock should not be dispositive in this case.

After reviewing Bowles’ response to the order to show cause, as well as the

State’s arguments in reply, we conclude that Bowles is not entitled to relief.

Bowles was sentenced to death following a jury’s unanimous recommendation for

death. Bowles v. State, 804 So. 2d 1173, 1175 (Fla. 2001). Bowles’s sentence of

death became final on June 17, 2002. Bowles v. Florida, 536 U.S. 930 (2002).

Thus, Hurst does not apply retroactively to Bowles’ sentence of death. See

Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of Bowles’

motion.

The Court having carefully considered all arguments raised by Bowles, we

caution that any rehearing motion containing reargument will be stricken. It is so

ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock

v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now

final. However, I continue to adhere to the views expressed in my dissenting

opinion in Hitchcock.

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An Appeal from the Circuit Court in and for Duval County,

Bruce R. Anderson, Jr., Judge - Case No. 161994CF012188AXXXMA

Francis Jerome Shea, Jacksonville, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney

General, Tallahassee, Florida,

for Appellee

-3-

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Supreme Court of Florida

MONDAY, OCTOBER 2, 2017

CASE NO.: SC17-1754

Lower Tribunal No(s).:

161994CF012188AXXXMA

GARY RAY BOWLES

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant shall show cause on or before Monday, October 23, 2017, why the

trial court’s order should not be affirmed in light of this Court’s decision Hitchcock

v. State, SC17-445. The response shall be limited to no more than 20 pages.

Appellee may file a reply on or before Tuesday, November 7, 2017, limited to no

more than 15 pages. Appellant may file a reply to the Appellee’s reply on or

before Friday, November 17, 2017, limited to no more than 10 pages.

Motions for extensions of time will not be considered unless due to a

medical emergency.

A True Copy

Test:

Served:

CHARMAINE M. MILLSAPS

JENNIFER ANN DONAHUE

FRANCIS JEROME SHEA

010a

RECEIVED, 10/11/2017 04:53:27 PM, Clerk, Supreme Court

Filing # 62716758 E-Filed 10/11/2017 04:49:51 PM

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TABLEOFCONTENTS

INTRODUCTION................................................................................................... 1

REQ UEST FOR ORAL ARGUMENT AND FULL BRIEFING ...................... 1

ARGUMENT ........................................................................................................... 2

Appellant's death sentence violates Hurst.......................................................2

II.

This Court's "retroactivity cutoff" at Ring is unconstitutional and

shouldnotbeappliedtoAppellant...................................................................3

III.

This Court's retroactivity cutoff violates the Eighth and Fourteenth

Amendments' prohibition against arbitrary and capricious imposition

of the death penalty...............................................................................4

This Court's retroactivity cutoff violates the Fourteenth Amendment's

guarantee of equal protection and due process.......................................8

Because the Hurst decisions announced substantive constitutional rules, the

Supremacy Clause of the United States Constitution requires state courts to

apply those rules retroactively to all cases on collateral review......................10

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review........10

The Hurst decisions announced substantive rules that must be applied

retroactively to Appellant under the Supremacy Clause......................12

The "harmless error" doctrine does not preclude Hurst relief............15

CONCL U S ION...................................................................................................... 20

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INTRODUCTION

Appellant's death sentence was imposed pursuant to a capital sentencing

scheme that was ruled unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016),

and Hurst v. State, 202 So. 3d 40 (Fla. 2016). A core issue in this case is whether

this Court should apply its "retroactivity cutoff" to deny Appellant Hurst relief on

the ground that his sentence did not become final at least one day after the 2002

decision in Ring v. Arizona, 536 U.S. 584 (2002).

This Court has created a state-law retroactivity cutoff at the date Ring was

decided-June 24, 2002. The cutoff is unconstitutional and should not be applied

to Appellant. Denying Appellant Hurst relief because his sentence became final on

June 17, 2002, rather than some date between June 24, 2002 and 2016, would violate

the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.¹

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This appeal presents an important issue: whether federal law requires this

Court to extend Hurst retroactivity to death sentences that became final before Ring,

rather than narrowly applying Hurst relief to post-Ring death sentences. Appellant

respectfully requests oral argument on this and related issues pursuant to Fla. R.

I Relief should not be denied here in light ofHitchcock v. State, No. SCl 7-445, 2017

WL 3431500 (Fla. Aug. 10, 2017). Appellant notes that there is a petition for a writ

of certiorari pending in Hitchcock (No. 17-6180).

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App. P. 9.320. Appellant also requests that the Court permit full briefing in this case

in accord with the normal, untruncated rules of appellate practice 2

ARGUMENT

Appellant's death sentence violates Hurst

Appellant was sentenced to death pursuant to an unconstitutional Florida

capital sentencing scheme. In Hurst v. Florida, the United States Supreme Court

held that Florida's scheme violated the Sixth Amendment because it required the

judge, not the jury, to make the findings of fact required to impose the death penalty

under Florida law.

136 S. Ct. at 620-22.

Those findings included: (1) the

aggravating factors that were proven beyond a reasonable doubt; (2) whether those

aggravators were "sufficient" to justify the death penalty; and (3) whether those

aggravators outweighed the mitigation. Under Florida's unconstitutional scheme,

an "advisory" jury rendered a generalized recommendation for life or death by a

majority vote, without specifying the factual basis for the recommendation, and then

the sentencing judge alone, notwithstanding the jury's recommendation, conducted

the fact-finding. Id. at 622. In striking down that scheme, the Supreme Court held

that the jury, not the judge, must make the findings required to impose death. Id.

2 Depriving Appellant full briefing would constitute an arbitrary deprivation of the

vested state right to a mandatory plenary appeal in capital cases. See Doty v. State,

170 So. 3d 731, 733 (Fla. 2015); see also Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982); Hicks v. Oklahoma, 447 U.S. 343 (1980).

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On remand, this Court applied the holding of Hurst v. Florida, and further

held that the Eighth Amendment requires unanimous jury fact-finding as to each of

the required elements, and also a unanimous recommendation by the jury to impose

the death penalty. Hurst v. State, 202 So. 3d at 53-59. The Court also noted that,

even if the jury unanimously finds that each of the required elements is satisfied,

the jury is not required to recommend the death penalty, and the judge is not

required to sentence the defendant to death. Id. at 57-58.

Appellant's jury was never asked to make unanimous findings of fact as to

any of the required elements. Instead, after being instructed that its decision was

advisory, and that the ultimate responsibility for imposing a death sentence rested

with the judge, the jury rendered a generalized recommendation for death. The

record does not reveal whether Appellant's jurors unanimously agreed that any

particular aggravating factor had been proven beyond a reasonable doubt, or

unanimously agreed that the aggravators were sufficient for death, or unanimously

agreed that the aggravators outweighed the mitigation.

This Court's "retroactivity cutoff" at Ring is unconstitutional and should

not be applied to Appellant

Beginning with Mosley v. State, 209 So. 3d 1248 (Fla. 2016), this Court has

applied Hurst retroactively as a matter of state law and granted relief in dozens of

collateral-review cases where the defendant's sentence became final after Ring. But

the Court has created a state-law cutoff at the date Ring was decided-June 24,

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2002--to deny relief in dozens of other collateral-review cases. The Court recently

reaffirmed its retroactivity cutoff in Hitchcock v. State, No. SC17-445, 2017 WL

3431500 (Fla. Aug. 10, 2017). The Court has not addressed in any case whether this

retroactivity cutoff at Ring is constitutional as a matter of federal law.

The Ring-based retroactivity cutoffviolates the United States Constitution and

should not be applied to deny Appellant the same Hurst reliefbeing granted in scores

of materially indistinguishable collateral-review cases. Denying Appellant Hurst

retroactivity because his death sentence became final only one week before Ring on

June 17, 2002, while affording retroactivity to similarly-situated defendants who

were sentenced (or resentenced) between June 24, 2002 and 2016, would violate the

Eighth and Fourteenth Amendments' prohibition against arbitrary and capricious

imposition of the death penalty, as well as the Fourteenth Amendment's guarantee

of equal protection and due process.3

This Court's retroactivity cutoff violates the Eighth and

Fourteenth Amendments' prohibition against arbitrary and

capricious imposition of the death penalty

This Court's retroactivity cutoff violates the Eighth and Fourteenth

Amendments' prohibition against arbitrary and capricious imposition of the death

penalty. The death penalty cannot "be imposed under sentencing procedures that

3 This Court is obligated to meaningfully address Appellant's federal retroactivity

arguments. See Testa v. Katt, 330 U.S. 386, 392-93 (1947) (state courts must

entertain federal claims in the absence of a "valid excuse").

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create[] a substantial risk that it would be inflicted in an arbitrary or capricious

manner." Gregg v. Georgia, 428 U.S. 1 53, 188 ( 1976); see also Furman v. Georgia,

408 U.S. 238, 310 (1972) ("[T]he Eighth and Fourteenth Amendments cannot

tolerate the infliction of a sentence of death under legal systems that permit this

unique penalty to be so wantonly and so freakishly imposed.") (Stewart, J.,

concurring). In other words, the death penalty cannot be imposed in a way that is

comparable to being "struck by lightning." Furman, 408 U.S. at 308.

Experience has already shown the arbitrary results inherent in this Court's

application of the Ring-based retroactivity cutoff. The date of a particular death

sentence's finality on direct appeal in relation to the June 24, 2002 decision in

Ring--and thus whether this Court has held Hurst retroactive based on its brightline cutoff-has at times depended on whether there were delays in transmitting the

record on appeal to this Court for the direct appeal; whether direct appeal counsel

sought extensions of time to file a brief; whether a case overlapped with this Court's

summer recess; how long the assigned Justice of this Court took to submit the

opinion for release; whether an extension was sought for a rehearing motion and

whether such a motion was filed; whether there was a scrivener's error necessitating

issuance of a corrected opinion; whether counsel chose to file a petition for a writ of

certiorari in the United States Supreme Court or sought an extension to file such a

petition; and how long a certiorari petition remained pending in the Supreme Court.

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For example, this Court affirmed Petitioner's and James Card's unrelated

death sentences in separate opinions that were issued on the same day, October 11,

2001. Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State, 803 So. 2d 613

(Fla. 2001). Both inmates petitioned for a writ of certiorari in the United States

Supreme Court. Mr. Card's sentence became final four (4) days after Ring was

decided-on June 28, 2002-when his certiorari petition was denied.

Card v.

Florida, 536 U.S. 963 (2002). Petitioner's sentence, however, became final seven

(7) days before Ring was decided-on June 17, 2002-when his certiorari petition

was denied. Bowles v. Florida, 536 U.S. 930 (2002). This Court recently granted

Hurst relief to Mr. Card, ruling that Hurst was retroactive because his sentence

became final after the Ring cutoff. See Card, 219 So. 3d at 47. Petitioner, on the

other hand, whose case was decided on direct appeal on the same day as Mr. Card's,

and who filed his certiorari petition in the Supreme Court after Mr. Card, now finds

himself on the pre-Ring side of this Court's current retroactivity cutoff.

Other arbitrary factors affecting whether a defendant receives Hurst relief

under this Court's date-of-Ring-based retroactivity approach include whether a

resentencing was granted. Under the Court's current approach, "older" cases dating

back to the 1980s with a post-Ring resentencing are subject to Hurst, while other

less "old" cases are not. See, e.g., Johnson v. State, 205 So. 3d 1285, 1285 (Fla.

2016) (granting Hurst relief to a defendant whose crime occurred in 1981 but was

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granted relief on a third successive post-conviction motion in 2010, years after the

Ring decision); Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose

crime occurred in 1981 but was afforded relief on a second successive postconviction motion in 2002-just four days after Ring was decided); cf Calloway v.

State, 210 So. 3d 1160 (Fla. 2017) (granting Hurst relief in a case where the crime

occurred in the late 1990s, but interlocutory appeals resulted in a 10-year delay

before the trial).

Under this Court's approach, a defendant who was originally

sentenced to death before Appellant, but who was later resentenced to death after

Ring, would receive Hurst relief and Appellant would not.

Moreover, under the Court's current approach, litigants whose Ring claims

were wrongly rejected on the merits during the 2002-2016 period will be denied the

benefit of Hurst because the Court addressed the issue in a post-conviction rather

than direct appeal posture. See, e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.

2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d

1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).4

4 Even if this Court were to maintain its unconstitutional retroactivity "cutoff" at

Ring, individuals who preserved the substance of the Hurst decisions before Hurst,

such as Appellant, should receive retroactivity under the "fundamental fairness"

doctrine, which this Court has previously applied in other contexts, see, e.g., James

v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the Court has applied once in

the Hurst context, see Mosley, 209 So. 3d at 1274, but inexplicably never addressed

since. Justice Lewis recently endorsed this "preservation" approach in Hitchcock.

See 2017 WL 3431500, at *2 (Lewis, L, concurring) (stating that the Court should

"simply entertain Hurst claims for those defendants who properly presented and

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This Court's retroactivity cutoff violates the Fourteenth

Amendment's guarantee of equal protection and due process

This Court's retroactivity cutoff violates the Fourteenth Amendment's

guarantee of equal protection and due process. As an equal protection matter, the

cutoff treats death-sentenced prisoners in the same posture-on collateral review-

differently without "some ground of difference that rationally explains the different

treatment." Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). When two classes are

created to receive different treatment by a state actor like this Court, the question is

whether there is a rational basis for the different treatment. Id.; see also McLaughlin

v. Florida, 379 U.S. 184, 191 (1964). The Fourteenth Amendment requires that

distinctions in state criminal laws that impinge upon fundamental rights be strictly

scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Capital

defendants have a fundamental right to a reliable determination of their sentences.

See Lockett v. Ohio, 438 U.S. 586, 604 (1978). When a state draws a line between

defendants who will receive the benefit of the rules designed to enhance the quality

of decision-making by a penalty-phase jury, and those who will not, the state's

justifi cation for that line must satisfy strict scrutiny. Far from meeting strict scrutiny,

this Court's .Hurst retroactivity cutoff lacks even a rational connection to any

legitimate state interest. See Dep't ofAgric. v. Moreno, 413 U.S. 528, 533 (1973).

preserved the substance of the issue, even before Ring arrived."). Appellant urges

that the Court allow him to brief this aspect of his case in an untruncated fashion.

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As a due process matter, denying Hurst retroactivity to "pre-Ring" defendants

like Appellant violates the Fourteenth Amendment because once a state requires

certain sentencing procedures, it creates Fourteenth Amendment life and liberty

interests in those procedures. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985)

(due process interest in state-created right to direct appeal); Hicks, 447 U.S. at 346

(liberty interest in state-created sentencing procedures); Ford v. Wainwright, 477

U.S. 399, 427-31 (1986) (O'Connor, J., concurring) (liberty interest in meaningful

state competency proceedings); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,

288-89 (1998) (O'Connor, J., with Souter, Ginsburg, & Breyer, JJ., concurring) (life

interest in state-created right to capital clemency proceedings).

Although the right to the particular procedure is established by state law, the

violation of the life and liberty interest it creates is governed byfederal constitutional

law. See Hicks, 447 U.S. at 347; Ford, 477 U.S. at 399, 428-29; Evitts, 469 U.S. at

393 (state procedures employed "as 'an integral part of the . . . system for finally

adjudicating the guilt or innocence of a defendant'" must comport with due process).

Defendants have "a substantial and legitimate expectation that [they] will be

deprived of [their] liberty only to the extent determined by the jury in the exercise

of its discretion . . . and that liberty interest is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State." Hicks, 447 U.S. at 346. Courts

have found in a variety of contexts that state-created death penalty procedures vest

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life and liberty interests that are protected by due process. See. e.g., Ohio Adult

Parole Auth., 523 U.S. at 272; Ford, 477 U.S. at 427-31.

III.

Because the Hurst decisions announced substantive constitutional rules,

the Supremacy Clause of the United States Constitution requires state

courts to apply those rules retroactively to all cases on collateral review

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review

In Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016), the United States

Supreme Court held that the Supremacy Clause of the Constitution requires state

courts to apply "substantive" constitutional rules retroactively as a matter of federal

constitutional law, notwithstanding any separate state-law retroactivity analysis. In

Montgomery, a Louisiana state prisoner filed a claim in state court seeking

retroactive application of the rule announced in Miller v. Alabama, 567 U.S. 460

(2012) (holding that imposition of mandatory sentences of life without parole on

juveniles violates the Eighth Amendment). The state court denied the prisoner's

claim on the ground that Miller was not retroactive as a matter of state retroactivity

law. Montgomery, 136 S. Ct. at 727. The United States Supreme Court reversed,

holding that because the Miller rule was substantive as a matter of federal law, the

state court was obligated to apply it retroactively. See id. at 732-34. The Court

explained that "the Constitution requires state collateral review courts to give

retroactive effect to that rule," id. at 728-29 (emphasis added), and that, "[w]here

state collateral review proceedings permit prisoners to challenge the lawfulness of

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their confinement, States cannot refuse to give retroactive effect to a substantive

constitutional right that determines the outcome of that challenge," id. at 731-32.

The Montgomery Court found the Miller rule substantive even though the rule

had "a procedural component." Id. at 734. Miller did "not categorically bar a

penalty for a class of offenders or type of crime-as, for example, [the Court] did in

Roper or Graham." Miller, 567 U.S. at 483. Instead, "it mandate[d] only that a

sentence follow a certain process-considering an offender's youth and attendant

characteristics-before imposing a particular penalty."

Id.

Despite Miller's

procedural mandates, the Court in Montgomery warned against "conflat[ing] a

procedural requirement necessary to implement a substantive guarantee with a rule

that 'regulate[s] only the manner of determining the defendant's culpability.'"

Montgomery, 136 S. Ct. at 734 (quoting Schriro v. Summerlin, 542 U.S. 348, 353

(2004)). Instead, the Court explained, "[t]here are instances in which a substantive

change in the law must be attended by a procedure that enables a prisoner to show

that he falls within a category of persons whom the law may no longer punish," id.

at 735, and that the necessary procedures do not "transform substantive rules into

procedural ones," id. Miller "bar[red] life without parole . . . . For that reason, Miller

is no less substantive than are Roper and Graham." Id. at 734.

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The Hurst decisions announced substantive rules that must be

applied retroactively to Appellant under the Supremacy Clause

The Hurst decisions announced substantive rules that must be applied

retroactively to Appellant by this Court under the Supremacy Clause. At least two

substantive rules were established by Hurst v. Florida and Hurst v. State. First, a

Sixth Amendment rule was established requiring that a jury find as fact beyond a

reasonable doubt: (1) each aggravating circumstance; (2) that those particular

aggravating circumstances together are "sufficient" to justify imposition of the death

penalty; and (3) that those particular aggravating circumstances together outweigh

the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Such findings are

manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding that the decision

whether a juvenile is a person "whose crimes reflect the transient immaturity of

youth" is a substantive, not procedural, rule). As in Montgomery, these requirements

amounted to an "instance[] in which a substantive change in the law must be attended

by a procedure that enables a prisoner to show that he falls within a category of

persons whom the law may no longer punish." Id. at 735.

Second, an Eighth Amendment rule was established that requires the elements

to be found unanimously by the jury. The substantive nature of the unanimity rule

is apparent from this Court's explanation in Hurst v. State that unanimity (1) is

necessary to ensure compliance with the constitutional requirement that the death

penalty be applied narrowly to the worst offenders, and (2) ensures that the

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sentencing determination "expresses the values of the community as they currently

relate to the imposition of the death penalty." 202 So. 3d at 60-61. The function of

the unanimity rule is to ensure that Florida's death-sentencing scheme complies with

the Eighth Amendment and to "achieve the important goal of bringing [Florida's]

capital sentencing laws into harmony with the direction of the society reflected in

[the majority of death penalty] states and with federal law." Id. As a matter of

federal retroactivity law, the rule is therefore substantive. See Welch v. United

States, 136 S. Ct. 1257, 1265 (2016) ("[T]his Court has determined whether a new

rule is substantive or procedural by considering the function of the rule"). This is

true even though the rule's subject concerns the method by which a jury makes its

decision. See Montgomery, 136 S. Ct. at 735 (state's ability to determine method of

enforcing constitutional rule does not convert rule from substantive to procedural).

The Sixth Amendment requirement that each element of a Florida death

sentence must be found beyond a reasonable doubt, and the Eighth Amendment

requirement ofjury unanimity in fact-finding, are substantive constitutional rules as

a matter of federal law because they place certain murders "beyond the State's power

to punish," Welch, 136 S. Ct. at 1265, with a sentence of death. Following the Hurst

decisions, "[e]ven the use of impeccable factfinding procedures could not legitimate

a sentence based on" the judge-sentencing scheme. Id. The "unanimous finding of

aggravating factors and [of] the facts that are sufficient to impose death, as well as

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the unanimous finding that they outweigh the mitigating circumstances, all serve to

help narrow the class of murderers subject to capital punishment," Hurst, 202 So.

3d at 60 (emphasis added), i.e., the new law by necessity places certain individuals

beyond the state's power to impose a death sentence. Thus, a substantive rule, rather

than a procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at

1264-65 (a substantive rule "alters . . . the class of persons that the law punishes").

Hurst retroactivity is not undermined by Summerlin, 542 U.S. at 364, where

the United States Supreme Court held that Ring was not retroactive in a federal

habeas case. Summerlin did not review a statute, like Florida's, that required the

jury not only to conduct the fact-finding regarding the aggravators, but also as to

whether the aggravators were sufficient to impose death and whether death was an

appropriate sentence. Summerlin acknowledged that if the Court itself "[made] a

certain fact essential to the death penalty . . . [the change] would be substantive."

542 U.S. at 354. Such a change occurred in Hurst where, for the first time, the Court

found it unconstitutional for a judge alone to find that "sufficient aggravating factors

exist and [t]hat there are insufficient mitigating circumstances to outweigh the

aggravating circumstances." 136 S. Ct. at 622 (internal citation omitted). Moreover,

Hurst, unlike Ring, addressed the proof-beyond-a-reasonable-doubt standard in

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addition to the jury trial right, and proof-beyond-a-reasonable-doubt decisions are

substantive. See, e.g., Ivan V. v. City ofNew York, 407 U.S. 203, 205 (1972).5

IV.

The "harmless error" doctrine does not preclude Hurst relief

The "harmless error" doctrine does not preclude Hurst relief in this case,

notwithstanding the pre-Hurst jury's unanimous recommendation to sentence

Appellant to death.6 This Court's per se rule that Hurst errors are harmless in every

5 The recent ruling of an Eleventh Circuit panel in Lambrix v. Sec 'y, No. 17-14413,

2017 WL 4416205 (1lth Cir. Oct. 5, 2017), does not negate Appellant's arguments.

First, Lambrix was decided in the context of the current federal habeas statute, which

dramatically curtails review: "A state court's decision rises to the level of an

unreasonable application of federal law only where the ruling is objectively

unreasonable, not merely wrong; even clear error will not suffice." Id. at *8 (internal

quotation marks omitted).

In contrast, this Court's application of federal

constitutional protections is not circumscribed, as this Court noted in the Hurst

context in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016) ("[W]e hold that the Supreme

Court's decision in Hurst v. Florida requires that all critical findings necessary

before the trial court may consider imposing a sentence of death must be found

unanimously by the jury . . . . We also hold . . . under the Eighth Amendment to the

United States Constitution, that in order for the trial court to impose a sentence of

death, the jury's recommended sentence must be unanimous"). Second, Lambrix

dealt with an idiosyncratic issue the "retroactivity" of Florida's new capital

sentencing statute. Lambrix did not argue, as Appellant does here, for the

retroactivity of the constitutional rules arising from the Hurst decisions. Third, the

Eleventh Circuit did not address the specific arguments about federal retroactivity

that are raised here. Fourth, almost needless to say, an Eleventh Circuit panel

decision has no precedential value in this forum.

6 Hurst errors should be deemed "structural" and not subject to harmlessness review.

See Arizona v. Fulminante, 499 U.S. 279, 307-09 (1991). The Sixth Amendment

error identified in Hurst stripping the capital jury of its constitutional fact-finding

role--represents a "defect affecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself." Id. at 310. Hurst errors "infect

the entire trial process," Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), and

027a

case where the pre-Hurst jury unanimously recommended death, see, e.g., Davis v.

State, 207 So. 3d 142, 175 (Fla. 2016), violates the United States Constitution.

Appellant's jury made only a recommendation to impose the death penalty, without

making any findings of fact as to any of the elements required for a death sentence

under Florida law. This Court cannot reliably infer from the jury's recommendation

whether the jury unanimously found-or a hypothetical jury in a constitutional

proceeding would have unanimously found--all the other requisite elements for a

death sentence. There is a reasonable probability that individual jurors based their

overall recommendation for death on a different underlying calculus. See Hall v.

State, 212 So. 3d 1001, 1037 (Quince, J., dissenting).

This uncertainty as to what the advisory jury would have decided if tasked

with making the critical findings of fact takes on additional significance in light of

Caldwell v. Mississippi, 472 U.S. 320 (1985)(holding that a death sentence is invalid

if imposed by a jury that believed the ultimate responsibility for determining the

appropriateness of a death sentence rested elsewhere). Appellant's jury was led to

believe that its role was diminished when the court instructed it that the jury's role

was advisory and that the judge would ultimately determine the sentence. In light

of Caldwell, this Court cannot even be certain that the jury would have made the

"deprive defendants of basic protections without which a [capital] trial cannot

reliably serve its function as a vehicle for determination" of whether the elements

necessary for a death sentence exist, Neder v. United States, 527 U.S. 1, 8-9 (1999).

028a

same unanimous recommendation without the Hurst error, and thus cannot be certain

that the jury would have unanimously found the preceding required elements beyond

a reasonable doubt. Without the Hurst error, where the jury was properly apprised

of its fact-finding role, there is a reasonable likelihood that it would have afforded

greater weight to Appellant's mitigation. As such, the Court cannot conclude that a

jury would have unanimously found or rejected any specific mitigators in a

constitutional proceeding.7 Cf Mills v. Maryland, 486 U.S. 367, 375-84 (1988);

McKoy v. North Carolina, 494 U.S. 433, 444 (1990) (both holding in mitigation

context Eighth Amendment is violated when there is uncertainty about jury's vote).

The jury's recommendation in Appellant's case also does not account for the

possibility that defense counsel's approach to diminishing the weight of the

aggravating factors and presenting mitigation at the penalty phase would have been

different had counsel known that the jury, not the judge, would be required to

unanimously agree on each of the elements required to impose the death penalty.

Counsel's approach to the mitigation surely would have differed had counsel known

that the jury would render the findings regarding the weight of aggravation and

mitigation. Just as surely, counsel would have given different advice to Appellant

7 Proper judicial review measures the impact of the unconstitutional jury scheme and

instructions on the jury's consideration of mitigation against the standard articulated

in Boyde v. California, 494 U.S. 370 (1990). In Boyde, the Supreme Court explained

that the proper standard is whether there is a "reasonable likelihood" that the jury

was impeded from consideration of constitutionally relevant evidence. Id. at 380.

029a

about the penalty phase. All of this stands against a harmless error ruling without at

least remanding the matter to afford Appellant an evidentiary hearing in the trial

court_ where the effect of the error on counsel could be addressed.

The jury's unanimous recommendation also does not account for the

possibility that the sentencing court may have exercised its discretion to impose a

life sentence if the court had been bound by the jury 's fmdings on each of the

elements required for a death sentence, rather than the court's own findings on those

elements. See Hurst v. State, 202 So. 3d at 57 (noting that nothing in Hurst has

diminished "the right of the trial court, even upon receiving a unanimous

recommendation for death, to impose a sentence of life."); Fla. Stat. § 921.141(3)(2)

(revised Florida capital sentence statute providing that, even if the jury recommends

death, "the court, after considering each aggravating factor found by the jury and all

the mitigating circumstances, may impose a sentence of life imprisonment without

the possibility of parole or a sentence of death. The court may consider only an

aggravating factor that was unanimously found to exist by the jury.").

As a matter of federal constitutional law, any reliance on the jury's

recommendation in denying Hurst relief on harmless error grounds would

contravene the Sixth Amendment in light of Sullivan v. Louisiana, 508 U.S. 275,

279 (1993) (emphasizing that "harmless-error review looks, we have said, to the

basis on which the jury actually rested its verdict.") (internal quotation marks

030a

omitted).

In Appellant's and other pre-Hurst Florida cases, there was no

constitutionally valid jury verdict containing the findings of fact required to impose

a death sentence.

Sullivan requires that, before a reviewing court may apply

harmless error analysis, there must be a valid jury verdict, grounded in the proofbeyond-a-reasonable-doubt standard.

Although Sullivan addressed a jury verdict as to guilt, the logic of Sullivan

applies equally in the capital penalty-phase context:

The inquiry, in other words, is not whether, in a trial that occurred

without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered m this trial was surely

unattributable to the error. That must be so, because to hypothesize a

guilty verdict that was never in fact rendered-no matter how

inescapable the findings to support that verdict might be-would

violate the jury-trial guarantee.

Id. at 279-80.

In Appellant's case too, any reliance on his advisory jury's

recommendation would constitute a violation of the Sixth Amendment.

In addition, the Due Process Clause of the Fourteenth Amendment requires

that the State must prove each element beyond a reasonable doubt. In re Winship,

397 U.S. at 364. This requirement attaches to any factual finding necessitated by

the Sixth Amendment. In Sullivan, the Court observed that "the Fifth Amendment

requirement of proof beyond a reasonable doubt and the Sixth Amendment

requirement of a jury verdict are interrelated." 508 U.S. at 278. "It would not satisfy

the Sixth Amendment to have a jury determine that the defendant is probably guilty,

031a

and then leave it up to the judge to determine (as Winship requires) whether he is

guilty beyond a reasonable doubt . . . . In other words, the jury verdict required by

the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt." Id

This requirement is incorporated into the Hurst line of cases, beginning with

Apprendi, 530 U.S. at 476 ("[A]ny fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt."). Any reliance upon the jury recommendation requires the

underpinnings of the recommendation to be made beyond a reasonable doubt.

Florida's pre-Hurst jury determinations, including the advisory recommendation in

Appellant's case, did not incorporate the beyond-a-reasonable-doubt standard.

To the extent any aggravators applied to Appellant were based on prior

convictions, those aggravators do not render the Hurst error harmless. Florida law

requires fact-finding as to the "sufficiency" of the aggravators to warrant death.

There is no way to conclude whether the jury would have made the same sufficiency

determination as the judge. See, e.g., Franklin v. State, 209 So. 3d 1241, 1248 (Fla.

2016) (rejecting "the State's contention that Franklin's prior convictions for other

violent felonies insulate Franklin's death sentence from Ring and Hurst").

CONCLUSION

This Court should hold that federal law requires the Hurst decisions to be

applied retroactively to Appellant and remand for a hearing concerning the effect of

the error on counsel, or a new penalty phase, and/or imposition of a life sentence.

032a

Respectfully submitted,

Francis JerM Shea

Fla. Bar No. 292524

644 Cesery Blvd., Suite 250

Jacksonville, FL 32211

Telephone: (904) 399-1966

Fax: (904) 399-4866

legal@attorneyshea.com

Atty. for Gary Ray Bowles

Counselfor Appellant

CERTIFICATE OF SERVICE

I hereby certify that on October 10, 2017, the foregoing was electronically

served via the e-portal to Assistant Attorney General Jennifer A. Donahue at

jennifer.donahue@myfloridalegal.com and capapp@myfloridalegal.com.

Francis JeromWa

033a

Filing # 63189665 E-Filed 10/23/2017 02:52:31 PM

IN THE SUPREME COURT OF FLORIDA

GARY RAY BOWLES,

Appellant,

CASE NO. SC17-1754

Lower Tribunal No.

1994CF12188

DEATH PENALTY CASE

RECEIVED, 10/23/2017 02:53:29 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Appellee.

______________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE FOURTH JUDICIAL CIRCUIT,

IN AND FOR DUVAL COUNTY, FLORIDA

APPELLEE’S REPLY TO APPELLANT’S RESPONSE

TO OCTOBER 2, 2017, ORDER TO SHOW CAUSE

PAMELA JO BONDI

ATTORNEY GENERAL

JENNIFER A. DONAHUE

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 50639

The Capitol, PL-01

Tallahassee, Florida 32311

Telephone: (850) 414-3300

Facsimile: (850) 414-0997

Jennifer.Donahue@myfloridalegal.com

capapp@myfloridalegal.com

Counsel for Appellee

034a

TABLE OF CONTENTS

TABLE OF CONTENTS............................................. ii

TABLE OF AUTHORITIES....................................... iii-v

STATEMENT OF THE CASE AND FACTS................................ 1

SUMMARY OF THE ARGUMENT........................................ 2

ARGUMENT....................................................... 2

CONCLUSION.................................................... 10

CERTIFICATE OF SERVICE........................................ 11

CERTIFICATE OF FONT COMPLIANCE................................ 11

035a

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000).................... 5

Archer v. Florida, 519 U.S. 876 (1996)......................... 6

Archer v. Jones, 2017 WL 1034409 (Fla. Mar. 17, 2017).......... 6

Asay v. Florida, 502 U.S. 895 (1991)........................... 6

Asay v. State, 210 So.3d 1 (Fla. 2016)................... 2, 5, 6

Asay v. State, 224 So.3d 695 (Fla. 2017)....................... 7

Bevel v. State, 221 So.3d 1168 (Fla. 2017)..................... 8

Bogle v. Florida, 516 U.S. 978 (1995).......................... 7

Bogle v. State, 213 So.3d 833 (Fla. 2017)...................... 7

Bowles v. McNeil, 562 U.S. 1068 (2010)......................... 1

Bowles v. Sec’y, Fla. Dep’t of Corr., 608 F.3d 1313 (11th Cir.

2010) ........................................................ 1

Bowles v. Sec’y, Fla. Dep’t of Corr., No. 3:08-cv-00791-HLA

(M.D. Fla. 2010) ............................................. 1

Bowles v. State, 716 So.2d 769 (Fla. 1998)..................... 1

Bowles v. State, 804 So.2d 1173 (Fla. 2001).................... 1

Bowles v. State, 979 So.2d 182 (Fla. 2008)..................... 1

Caldwell v. Mississippi, 472 U.S. 320 (1985)................... 9

Cherry v. Florida, 494 U.S. 1090 (1990)........................ 6

Cherry v. Jones, 2017 WL 1033693 (Fla. Mar. 17, 2017).......... 6

Cozzie v. State, 2017 WL 1954976 (Fla. May 11, 2017)........... 8

Danforth v. Minnesota, 552 U.S. 264 (2008)..................... 3

Davis v. Florida, 524 U.S. 930 (1998).......................... 7

Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)............ 7

Dobbert v. Florida, 432 U.S. 282 (1977)........................ 4

Gaskin v. Florida, 510 U.S. 925 (1993)......................... 7

Gaskin v. State, 218 So.3d 399 (Fla. 2017).................. 7, 9

Gaskin v. State, 591 So.2d 917 (Fla. 1991)..................... 9

Geralds v. Florida, 519 U.S. 891 (1996)........................ 6

Geralds v. Jones, 2017 WL 944236 (Fla. Mar. 10, 2017).......... 6

Griffith v. Kentucky, 479 U.S. 314 (1987)...................... 5

Guardado v. Jones, 2017 WL 1954984 (Fla. May 11, 2017)......... 8

Hall v. State, 212 So.3d 1001 (Fla. 2017)................... 8, 9

Hamilton v. Florida, 524 U.S. 956 (1998)....................... 7

Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017).......... 7

Hartley v. Florida, 522 U.S. 825 (1997)........................ 6

Hartley v. Jones, 2017 WL 944232 (Fla. Mar. 10, 2017).......... 6

Hitchcock v. Florida, 531 U.S. 1040 (2000)..................... 6

iii

036a

Hurst v. State, 202 So.3d 40 (Fla. 2016)....................... 2

Johnson v. State, 904 So.2d 400 (Fla. 2005).................... 3

Jones v. Florida, 515 U.S. 1147 (1995)......................... 6

Jones v. Jones, 2017 WL 1034410 (Fla. Mar. 17, 2017)........... 6

Jones v. State, 2017 WL 4296370 (Sept. 28, 2017)............... 6

Kaczmar v. State, 2017 WL 410214 (Fla. Jan. 31, 2017).......... 8

King v. State, 211 So.3d 866 (Fla. 2017)....................... 8

Knight v. State, 2017 WL 411329 (Fla. Jan. 31, 2017)........... 8

Lambrix v. Florida, 2017 WL 4456332 (Oct. 5, 2017)............. 4

Lambrix v. Sec’y, Fla. Dep’t of Corr., 2017 WL 4416205 (11th

Cir. Oct. 5, 2017) ........................................... 4

Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017)..... 5, 8

Lambrix v. State, 217 So.3d 977 (Fla. 2017).................... 6

Lukehart v. Florida, 533 U.S. 934 (2001).................... 6, 7

Lukehart v. Jones, 2017 WL 1033691 (Fla. Mar. 17, 2017)..... 6, 7

Marshall v. Florida, 508 U.S. 915 (1993)....................... 6

Marshall v. Jones, 2017 WL 1739246 (Fla. May 4, 2017).......... 6

Middleton v. State, 220 So.3d 1152 (Fla. 2017)................. 8

Morris v. State, 219 So.3d 33 (Fla. 2017)...................... 8

Mosley v. State, 209 So.3d 1248 (Fla. 2016).................... 9

Oats v. Florida, 474 U.S. 865 (1985)........................... 6

Oats v. Jones, 220 So.3d 1127 (Fla. 2017)...................... 6

Oliver v. State, 214 So.3d 606 (Fla. 2017)..................... 8

Penry v. Lynaugh, 492 U.S. 302 (1989).......................... 4

Ring v. Arizona, 536 U.S. 584 (2002)........................... 2

Rodriguez v. Florida, 510 U.S. 830 (1993)...................... 6

Rodriguez v. State, 219 So.3d 751 (Fla. 2017).................. 6

Schriro v. Summerlin, 542 U.S. 348 (2004)................... 3, 4

Smith v. State, 598 So.2d 1063 (Fla. 1992)..................... 5

Stein v. Florida, 513 U.S. 834 (1994).......................... 7

Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............. 7

Suggs v. Florida, 514 U.S. 1083 (1995)......................... 6

Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017)........... 6

Teague v. Lane, 489 U.S. 288 (1989)............................ 3

Truehill v. State, 211 So.3d 930 (Fla. 2017)................... 8

Tundidor v. State, 221 So.3d 587 (Fla. 2017)................... 8

Wainwright v. Florida, 523 U.S. 1127 (1998).................... 7

Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)....... 7

Willacy v. Florida, 522 U.S. 970 (1997)........................ 6

Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017)......... 6

Witt v. State, 387 So.2d 922 (Fla. 1980)....................... 3

037a

Wood v. State, 209 So.3d 1217 (Fla. 2017)...................... 8

Zack v. Florida, 531 U.S. 858 (2000)........................... 6

Zack v. State, 2017 WL 2590703 (Fla. June 15, 2017)............ 6

Zakrzewski v. Florida, 525 U.S. 1126 (1999).................... 6

Zakrzewski v. Jones, 221 So.3d 1159 (Fla. 2017)................ 6

OTHER AUTHORITIES

Fla. R. Crim. P. 3.851(d)(1)(B)................................ 1

038a

STATEMENT OF THE CASE AND FACTS

Appellant, Gary Bowles, pled guilty to premeditated firstdegree murder and was and sentenced to death.

Bowles v. State,

716 So.2d 769, 770 (Fla. 1998). This Court affirmed the conviction

but reversed and remanded for a new sentence.

Id. at 773.

At a

new penalty proceeding, Appellant was again sentenced to death

following

unanimous

jury

recommendation,

and

this

Court

affirmed.

Bowles v. State, 804 So.2d 1173, 1175 (Fla. 2001).

The

judgment and sentence became final upon denial of certiorari by

the United States Supreme Court on June 17, 2002.

Bowles v.

Florida, 536 U.S. 930 (2002); Fla. R. Crim. P. 3.851(d)(1)(B) (A

judgment and sentence become final “on the disposition of the

petition for writ of certiorari by the United States Supreme Court,

if filed.”).

This Court affirmed the denial of Appellant’s post-

conviction motion and denied a writ of habeas corpus.

State, 979 So.2d 182, 194 (Fla. 2008).

Bowles v.

Appellant sought a writ of

habeas corpus in federal court, which was denied. Bowles v. Sec’y,

Fla. Dep’t of Corr., No. 3:08-cv-00791-HLA (M.D. Fla. 2010),

affm’d. 608 F.3d 1313, 1317 (11th Cir. 2010), cert. denied, 562

U.S. 1068 (2010).

On June 13, 2017, Appellant filed a successive motion for

post-conviction

relief,

which

the

circuit

court

denied.

September 29, 2017, Appellant filed a notice of appeal with this

Court.

On October 2, 2017, this Court issued an order for

039a

Appellant to show cause as to “why the trial court’s order should

not be affirmed in light of this Court’s decision in Hitchcock v.

State, SC17-455.”

October

11,

2017,

Appellant

filed

his

“Response to October 2, 2017 Order to Show Cause” (Response). This

is the Appellee’s reply to the Response.

SUMMARY OF THE ARGUMENT

Appellant has failed to show cause as to why his case should

be excluded from this Court’s precedent in Asay as reaffirmed by

Hitchcock.

Because Appellant’s case was final before Ring, and

Hurst is not retroactive under federal law, this Court should

affirm the trial court’s denial of Appellant’s successive postconviction motion.

ARGUMENT

Asay,

this

Court

held

that

Hurst

State

not

retroactive to any case in which the death sentence was final prior

to the June 24, 2002, decision in Ring.

Asay v. State, 210 So.3d

1, 22 (Fla. 2016); Hurst v. State, 202 So.3d 40 (Fla. 2016); Ring

v. Arizona, 536 U.S. 584 (2002).

The judgment in Asay became final

October 7, 1991, and thus Asay was not eligible for any relief

under Hurst.

Asay,

Asay, 210 So.3d at 8.

this

Court

discussed

applying retroactivity to Hurst.

the

appropriate

test

Asay, 210 So.3d at 15-16.

for

This

Court applied the Witt analysis for retroactivity under state law,

“which provides more expansive retroactivity standards than those

040a

adopted in Teague,” which enumerates the federal retroactivity

standards.

Id. (emphasis in original), quoting Johnson v. State,

904 So.2d 400, 409 (Fla. 2005); Witt v. State, 387 So.2d 922 (Fla.

1980); Teague v. Lane, 489 U.S. 288 (1989); see also Danforth v.

Minnesota, 552 U.S. 264, 280-81 (2008) (allowing states to adopt

a retroactivity test that is broader than Teague).

Further,

despite

Appellant’s

claim

that

Hurst

created

substantive change requiring federal retroactivity, in Schriro,

the Supreme Court determined that Ring was a procedural rule and

did not create a substantive constitutional change in the law

because it only “altered the range of permissible methods for

determining whether a defendant’s conduct is punishable by death,

requiring that a jury rather than a judge find the essential facts

bearing on punishment.”

(2004).

Schriro v. Summerlin, 542 U.S. 348, 353

Ring did not alter the “range of conduct or the class of

persons that the law punishes.”

Id.

Thus, Ring “announced a new

procedural rule that does not apply retroactively to cases already

final on direct review.”

Id. at 358.

Since the Supreme Court

held that Ring did not create a substantive constitutional rule

and

not

retroactive,

Hurst

also

not

substantive

constitutional rule, nor is it retroactive under federal law.

Appellant asserts the Eleventh Circuit declined to extend

Hurst retroactively because it was bound by a narrow standard of

review.

However, the Eleventh Circuit denied Hurst relief because

041a

Hurst is not retroactive under federal law, stating: “[t]he Supreme

Court has held that Ring does not apply retroactively to cases on

collateral review.

See Schriro v. Summerlin, 542 U.S. 348, 358[

] (2004) (holding that Ring does not apply retroactively under

federal

law

review.).”

death-penalty

cases

already

final

direct

Lambrix v. Sec’y, Fla. Dep’t of Corr., No. 17-14413,

2017 WL 4416205, *8 (11th Cir. Oct. 5, 2017), cert. denied, Lambrix

v. Florida, Nos. 17-6290, 17A380, 2017 WL 4456332 (Oct. 5, 2017).

Further, the Eleventh Circuit held that this Court’s ruling, that

Hurst did not retroactively apply to Lambrix, whose judgment was

final in 1986, “is fully in accord with the U.S. Supreme Court’s

precedent in Ring and Schriro.”

Lambrix, 2017 WL 4416205 at *8.

The Eleventh Circuit also rejected the statutory retroactivity

argument stating

jurists of reason would not find this position

debatable: the Florida court’s rejection of

Lambrix’s constitutional-statutory claim was

not

contrary

to,

unreasonable

application of, the holding of a Supreme Court

decision.

Id. at *9; see also Dobbert v. Florida, 432 U.S. 282, 301 (1977).

Additionally, with retroactivity, there is usually a cutoff

date to provide for finality in appellate proceedings.

Penry v.

Lynaugh, 492 U.S. 302, 314 (1989) (holding finality concerns in

retroactivity are applicable in the capital context). In Griffith,

the Supreme Court held “that a new rule for the conduct of criminal

042a

prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a ‘clear

break’ with the past.”

Griffith v. Kentucky, 479 U.S. 314, 328

(1987); see also Smith v. State, 598 So.2d 1063, 1065 (Fla. 1992).

Under this “pipeline” concept, only those still pending direct

review would receive the benefit of relief from Hurst error.

The

fact that this Court has drawn the line at the decision date in

Ring

instead

the

decision

date

Hurst,

benefits

appellants.

Further, this Court has previously heard and rejected

Appellant’s

due

arguments.

See Lambrix v. State, No. SC17-1687, 2017 WL 4320637,

process,

*1 (Fla. Sept. 29, 2017).

equal

protection,

and

arbitrariness

Thus, this Court’s retroactivity cutoff

does not violate the Fourteenth Amendment’s guarantee of equal

protection and due process.

Though Appellant does not raise the argument that Apprendi

should be the line for retroactivity rather than Ring, since

Appellant falls between the two decisions and he raised the issue

in the lower court, discussion is warranted.

In Asay, this Court

discussed Apprendi’s role in developing the Court’s decisions in

Ring and Hurst.

Asay, 210 So.3d at 11-19.

However, “the Supreme

Court distinguished capital cases from its holding in Apprendi.”

Id. at 19; citing Apprendi v. New Jersey, 530 U.S. 466, 496-97

(2000) (“this Court has previously considered and rejected the

043a

argument that the principles guiding our decision today render

invalid state capital sentencing schemes . . .”). Because Apprendi

does not apply to capital cases, it should not be used as the

cutoff date for Hurst retroactivity.

After Asay, this Court continuously adhered to using the Ring

decision date as the cutoff point for retroactivity.

Thus far,

this Court has chosen not to extend Hurst v. State to 23 cases,

including Asay, based solely on the fact that the judgments were

finalized prior to the decision in Ring. 1

Further, this Court

See Asay, 210 So.3d at 8, 22 (sentence final in 1991; see Asay v.

Florida, 502 U.S. 895 (1991)); Jones v. State, No. SC15-1549, 2017 WL

4296370, *2 (Sept. 28, 2017); Hitchcock, 2017 WL 3431500(sentence final

in 2000; see Hitchcock v. Florida, 531 U.S. 1040 (2000)); Zack v. State,

Nos. SC15-1756, SC16-1090, 2017 WL 2590703, *5 (Fla. June 15,

2017)(sentence final in 2000; see Zack v. Florida, 531 U.S. 858 (2000));

Zakrzewski v. Jones, 221 So.3d 1159, 1159 (Fla. 2017)(sentence final in

1999; see Zakrzewski v. Florida, 525 U.S. 1126 (1999)); Oats v. Jones,

220 So.3d 1127, 1129 (Fla. 2017)(sentence final in 1985; see Oats v.

Florida, 474 U.S. 865 (1985)); Marshall v. Jones, No. SC16-779, 2017 WL

1739246 (Fla. May 4, 2017)(sentence final in 1993; see Marshall v.

Florida, 508 U.S. 915 (1993)); Rodriguez v. State, 219 So.3d 751, 760

(Fla. 2017)(sentence final in 1993; see Rodriguez v. Florida, 510 U.S.

830 (1993)); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar.

17, 2017)(sentence final in 1997; see Willacy v. Florida, 522 U.S. 970

(1997)); Suggs v. Jones, No. SC16-1066, 2017 WL 1033680, *1 (Fla. Mar.

17, 2017)(sentence final in 1995; see Suggs v. Florida, 514 U.S. 1083

(1995)); Lukehart v. Jones, No. SC16-1225, 2017 WL 1033691, *1 (Mar. 17,

2017)(sentence final in 2001; see Lukehart v. Florida, 533 U.S. 934

(2001)); Cherry v. Jones, No. SC16-694, 2017 WL 1033693, *1 (Fla. Mar.

17, 2017)(sentence final in 1990; see Cherry v. Florida, 494 U.S. 1090

(1990)); Archer v. Jones, No. SC16-2111, 2017 WL 1034409, *1 (Fla. Mar.

17, 2017)(sentence final in 1996; see Archer v. Florida, 519 U.S. 876

(1996)); Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Fla. Mar. 17,

2017)(sentence final in 1995; see Jones v. Florida, 515 U.S. 1147

(1995)); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1 (Mar. 10,

2017)(sentence final in 1997; see Hartley v. Florida, 522 U.S. 825

(1997)); Geralds v. Jones, No. SC16-659, 2017 WL 944236, *1 (Fla. Mar.

10, 2017) (sentence final in 1996; see Geralds v. Florida, 519 U.S. 891

(1996)); Lambrix v. State, 217 So.3d 977, 989 (Fla. 2017)(sentence final

in 1986); Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3,

044a

declined to retroactively apply Hurst to Lukehart because his

sentence became final prior to Ring.

Lukehart v. Jones, No. SC16-

1255, 2017 WL 1033691, *1 (Fla. Mar. 17, 2017).

Lukehart became

final June 25, 2001, after the June 26, 2000, decision in Apprendi,

but before Ring.

Lukehart v. Florida, 533 U.S. 934 (2001).

Thus,

this

addressed

extend

Court

has

the

issue

and

declined

retroactivity to post-Apprendi/pre-Ring cases.

On August 10, 2017, in Hitchcock, this Court reaffirmed the

decision in Asay stating

[a]lthough

Hitchcock

references

various

constitutional provisions as a basis for

arguments that Hurst v. State should entitle

him to a new sentencing proceeding, these are

nothing more than arguments that Hurst v.

State should be applied retroactively to his

sentence, which became final prior to Ring. As

such, these arguments were rejected when we

decided Asay. Accordingly, we affirm the

circuit

court's order

summarily

denying

Hitchcock's successive postconviction motion

pursuant to Asay.

Hitchcock, 2017 WL 3431500 at *2; see also Asay v. State, 224 So.3d

695, 703 (Fla. 2017) (rejecting the claim that Chapter 2017-1,

2017)(sentence final in 1994; see Stein v. Florida, 513 U.S. 834 (1994));

Hamilton v. Jones, No. SC16-984, 2017 WL 836807 (Fla. Mar. 3,

2017)(sentence final in 1998; see Hamilton v. Florida, 524 U.S. 956

(1998)); Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17,

2017)(sentence final in 1998; see Davis v. Florida, 524 U.S. 930 (1998));

Bogle v. State, 213 So.3d 833, 855 (Fla. 2017)(sentence final in 1995;

see Bogle v. Florida, 516 U.S. 978 (1995)); Wainwright v. State, No.

SC15-2280, 2017 WL 394509 (Fla. Jan. 30, 2017)(sentence final in 1998;

see Wainwright v. Florida, 523 U.S. 1127 (1998)); Gaskin v. State, 218

So.3d 399, 400 (Fla. 2017)(sentence final in 1993; see Gaskin v. Florida,

510 U.S. 925 (1993)).

045a

Laws of Florida, “creates a substantive right to a life sentence

unless a jury unanimously recommends otherwise”); Lambrix, 2017 WL

4320637 at *1 (rejecting arguments based on the Eighth Amendment,

denial of due process and equal protection, and a substantive right

based on new legislation).

Here,

just

Hitchcock,

Appellant

raises

various

constitutional provisions to argue that Hurst v. State should be

retroactively applied to him.

reaffirmed

Hitchcock,

retroactively to Appellant. 2

However, just as in Asay, as

Hurst

State

does

not

apply

This case became final on June 17,

Appellant also raises the issue that should Hurst apply to his case,

the error would not be harmless. However, because the jury unanimously

recommended death in this case, Appellant’s argument is contrary to this

Court’s precedent.

In the 14 post-Ring cases reviewed by this Court

where the jury has unanimously recommended death, this Court has held

Hurst error to be harmless beyond a reasonable doubt.

See Bevel v.

State, 221 So.3d 1168, 1175 (Fla. 2017); Cozzie v. State, No. SC13-2393,

2017 WL 1954976, *13 (Fla. May 11, 2017); Guardado v. Jones, No. SC17389, 2017 WL 1954984, *2 (Fla. May 11, 2017); Morris v. State, 219 So.3d

33, 46 (Fla. 2017); Tundidor v. State, 221 So.3d 587, 605 (Fla. 2017);

Oliver v. State, 214 So.3d 606, 617-18 (Fla. 2017); Middleton v. State,

220 So.3d 1152, 1185 (Fla. 2017); Jones v. State, 212 So.3d 321, 343-44

(Fla. 2017); Truehill v. State, 211 So.3d 930, 956-57 (Fla. 2017); Hall

v. State, 212 So.3d 1001, 1034-36 (Fla. 2017); Kaczmar v. State, No.

SC13-2247, 2017 WL 410214 (Fla. Jan. 31, 2017); Knight v. State, Nos.

SC14-1775, SC15-1233, 2017 WL 411329, *14-15 (Fla. Jan. 31, 2017); King

v. State, 211 So.3d 866, 890-93 (Fla. 2017); Davis v. State, 207 So.3d

142, 175 (Fla. 2016). The two unanimous cases where the sentence was

reversed was done so on proportionality and ineffective assistance of

counsel grounds. See Wood v. State, 209 So.3d 1217, 1226, 1238 (Fla.

2017) (vacating the sentence because “his death sentence is

disproportionate when [CCP and avoid arrest] aggravating factors are

struck”); Bevel, 221 So.3d at 1182 (Fla. 2017) (vacating the 12-0 death

sentence due to ineffective assistance of counsel).

046a

2002, which is prior to the June 24, 2002, decision in Ring.

such, Hurst v. State is not retroactive to this case. 3

Additionally, Appellant argues that he “should receive the

retroactive

benefit

fairness’ doctrine.”

Hurst

under

(Response at 9).

this

Court’s

‘fundamental

Though Appellant raised a

Ring claim in his second post-conviction motion in the circuit

court, which was denied April 4, 2003, the fundamental fairness

doctrine

discussed

Mosley

does

not

create

retroactive application of Hurst to pre-Ring cases.

State, 209 So.3d 1248, 1274-75 (Fla. 2016).

this argument in Gaskin.

basis

for

See Mosley v.

This Court rejected

Gaskin, 218 So.3d at 401.

Gaskin raised

the substance of a Hurst claim both at his trial and on direct

appeal. Gaskin v. State, 591 So.2d 917, 920 (Fla. 1991).

However,

this Court held “[b]ecause Gaskin’s sentence became final in 1993,

Gaskin is not entitled to relief under Hurst v. Florida.”

218 So.3d at 401.

Gaskin,

Like in Gaskin, Appellant is not entitled to

retroactive application of Hurst because his judgment and sentence

became final pre-Ring.

Appellant has demonstrated no cause that this Court should

review his case.

This Court’s rulings in Asay and Hitchcock apply

Appellant also argues that since the jury only recommended imposition

of the death penalty, this Court cannot find the Hurst error harmless.

However, this Court has repeatedly rejected challenges to the standard

jury instructions in death penalty cases pursuant to Caldwell. Hall v.

State, 212 So.3d 1001, 1032-33 (Fla. 2017); Caldwell v. Mississippi, 472

U.S. 320 (1985).

047a

to Appellant. Because Appellant’s judgment and sentence were final

prior to the decision in Ring, Hurst is not retroactive to him.

CONCLUSION

This Court’s rulings in Asay and Hitchcock apply to Appellant.

Appellant has demonstrated no cause for this Court to recede from

its lengthy case precedent.

Because Appellant’s judgment and

sentence were final prior to the decision in Ring, Hurst is not

retroactive to him.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Jennifer A. Donahue

Assistant Attorney General

Florida Bar No. 50639

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399

Telephone: (850)414-3580

Facsimile: (850)414-0997

capapp@myfloridalegal.com

Jennifer.donahue@myfloridalegal.com

COUNSEL FOR APPELLEE

048a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 23rd day of October, 2017, I

electronically filed the foregoing with the Clerk of the Court by

using the Florida Courts E-Portal Filing System which will send a

notice of electronic filing to the following: Francis Jerome Shea,

Esq., at legal@attorneyshea.com, Attorney for Appellant.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of the type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

/s/ Jennifer A. Donahue

COUNSEL FOR APPELLEE

049a

Filing # 64223125 E-Filed 11/15/2017 12:17:06 PM

No. SC17-1754

IN THE

Supreme Court of Florida

___________________________________________________________

GARY RAY BOWLES,

RECEIVED, 11/15/2017 12:18:30 PM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S REPLY IN SUPPORT OF

RESPONSE TO ORDER TO SHOW CAUSE

_____________________________________________________

Francis Jerome Shea

Fla. Bar No. 292524

644 Cesery Blvd., Suite 250

Jacksonville, FL 32211

Telephone: (904) 399-1966

Fax: (904) 399-4866

legal@attorneyshea.com

Atty. for Gary Ray Bowles

Counsel for Appellant

050a

TABLE OF CONTENTS

ARGUMENT...........................................................................................................1

Appellee is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context.........................................1

II.

Appellee’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi death sentences is meritless..............................4

III.

Appellee’s cursory response to Appellant’s more general federal

retroactivity arguments regarding the Ring cutoff should also be

rejected............................................................................................................6

IV.

Appellee’s harmless error argument is meritless……......................................8

CONCLUSION......................................................................................................10

051a

ARGUMENT

Appellee is incorrect in suggesting that Hitchcock and prior cases

addressed federal retroactivity in the Hurst context

Appellee is incorrect in suggesting that Hitchcock v. State, No. SC17-445,

2017 WL 3431500 (Fla. Aug. 10, 2017), and prior cases addressed whether federal

constitutional law requires Hurst to be applied retroactively to the small number of

Florida death sentences, including Appellant’s, that became “final” on direct appeal

during the two-year period between the decisions in Apprendi v. New Jersey, 530

U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). See Appellee’s Resp.

at 6-9. In fact, Hitchcock did not specifically address the “Apprendi gap” or any of

Appellant’s federal retroactivity arguments at all. See Appellant’s Resp. at 5-20.

This Court’s opinion in Hitchcock did not even state that Mr. Hitchcock’s

death sentence became final between Apprendi and Ring, let alone specifically

address the current federal constitutional arguments. Hitchcock did not address

whether the federal Constitution permits a retroactivity “cutoff” that affords Hurst

relief to defendants sentenced after the 2002 decision in Ring while denying Hurst

relief to defendants sentenced before Ring but after the 2000 decision in Apprendi.

Instead, Hitchcock relied exclusively on the Court’s state-law reasoning in Asay v.

State, 210 So. 3d 1 (Fla. 2016), which did not involve a post-Apprendi sentence. As

Appellee acknowledges, the reasoning in Asay rested entirely on the state

retroactivity law first articulated in Witt v. State, 387 So. 2d 922 (Fla. 1980). See

052a

Appellee’s Resp. at 2 (“In Asay . . . . [t]his Court applied the Witt analysis for

retroactivity under state law.”); Asay, 210 So. 3d at 16 (“To apply a newly announced

rule of law to a case that is already final at the time of the announcement, this Court

must conduct a retroactivity analysis pursuant to the dictates of Witt.”).

Asay did not address whether federal law required the Hurst decisions to be

applied retroactively in post-Apprendi death sentences like Appellee’s, and did not

address the federal retroactivity arguments raised in Appellee’s response to the order

to show cause. Namely, Asay did not address whether it would violate the Eighth

and Fourteenth Amendments to draw a Hurst retroactivity “cutoff” at Ring, rather

than Apprendi, in light of the fact that Apprendi was the constitutional basis for both

Ring and Hurst. Neither did Asay address more generally whether a retroactivity

cutoff drawn at Ring violates the Eighth Amendment’s prohibition against arbitrary

and capricious imposition of the death penalty, or the Fourteenth Amendment’s

Equal Protection and Due Process Clauses. Nor did Asay address whether the Hurst

decisions are “substantive” within the meaning of federal law, such that the

Supremacy Clause of the Constitution requires state courts to apply the decisions

retroactively under Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Hitchcock, in relying totally on Asay, also did not address Appellant’s “postApprendi” and other federal retroactivity arguments. See Hitchcock, 2017 WL

3431500, at *1 (“We affirm because we agree with the circuit court that our decision

053a

in Asay forecloses relief.”); id. at *2 (“Accordingly, we affirm the circuit court’s

order summarily denying Hitchcock’s successive postconviction motion pursuant to

Asay.”). Appellee attempts to highlight the conclusory sentence in Hitchcock that

reads: “Although Hitchcock references various constitutional provisions as a basis

for arguments that Hurst v. State should entitle him to a new sentencing proceeding,

these are nothing more than arguments that Hurst v. State should be applied

retroactively to his sentence, which became final prior Ring.” Appellee’s Resp. at 7

(citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added). But the Hitchcock

Court’s reference to “constitutional provisions” cannot be read to address

Appellant’s federal arguments, as the very next sentence reads: “As such, these

arguments were rejected when we decided Asay.” Hitchcock, 2017 WL 3431500, at

*2. As explained above, Asay was premised entirely on state retroactivity law.

Hitchcock does not even mention the small number of death sentences that

became final between Apprendi and Ring, the Eighth Amendment’s prohibition

against arbitrary and capriciousness, or the Fourteenth Amendment’s Equal

Protection and Due Process Clauses. Nor does Hitchcock cite Montgomery or

address whether the Hurst rules are “substantive.” These matters all remain open

questions that this Court should address.

To the extent Appellee suggests that Appellant’s federal arguments have been

addressed in other cases, those decisions did not involve post-Apprendi death

054a

sentences and, in any event, are not applicable here. For instance, the Eleventh

Circuit’s decision in Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205 (11th Cir.

Oct. 5, 2017), does not deal with a post-Apprendi case, is not precedential in this

Court, and was decided in the context of the federal habeas statute. Moreover,

Lambrix dealt primarily with an idiosyncratic issue—the “retroactivity” of Florida’s

new capital sentencing statute—and did not focus squarely on the retroactivity of the

constitutional rules arising from the Hurst decisions.

Similar idiosyncratic

presentations and “pre-Apprendi” postures also render inapplicable to Appellant this

Court’s active-death-warrant decisions in Asay v. State, 224 So. 3d 695 (Fla. 2017),

Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29, 2017), and

Hannon v. State, No. SC17-1837, 2017 WL 4944899 (Fla. Nov. 1, 2017). There are

real, unresolved issues here. Appellant urges this Court to address them.

II.

Appellee’s argument regarding the constitutionality of denying Hurst

retroactivity to post-Apprendi death sentences is meritless

Appellee makes only passing reference to Appellant’s arguments regarding

the federal constitutionality of drawing a Hurst retroactivity cutoff at Ring, given

that Apprendi is the constitutional basis for both Ring and Hurst. See Appellant’s

Resp. at 6-9; Appellee’s Resp. at 5. Appellee acknowledges that Appellee’s death

sentence became final on June 17, 2002, see Appellee’s Resp. at 8-9, after Apprendi

and only seven days prior to Ring, and also recognizes “Apprendi’s role in

developing the Court’s decisions in Ring and Hurst,” id. at 6. But confronted with

055a

Appellant’s argument that a Hurst retroactivity cutoff, if there must be a cutoff,

should be drawn at Apprendi, not Ring, Appellee offers only the superficial

assertion: “Apprendi does not apply to capital cases.” Id.

Appellee’s superficial assertion is meritless. As Appellant explained, a Ringbased cutoff cannot be squared with federal constitutional requirements, particularly

in cases with post-Apprendi sentences. Appellee’s contention that “Apprendi does

not apply to capital cases” is belied by the Ring and Hurst decisions. Indeed, as the

United States Supreme Court stated in Hurst, Ring applied Apprendi’s analysis to

conclude that Mr. Ring’s death sentence violated the Sixth Amendment. See 136 S.

Ct. at 621.

In Hurst, the Court repeatedly stated that Florida’s scheme was

incompatible with “Apprendi’s rule,” of which Ring was an application. 136 S. Ct.

at 621. Both Ring and Hurst make clear that their operative constitutional holdings

derived directly from Apprendi.

And this Court in Mosley v. State recently

reaffirmed that Ring was an application of Apprendi. See 209 So. 3d 1248, 1279-80

(Fla. 2016) (stating that in Ring the Court “applied its reasoning from Apprendi”).

There are only 22 prisoners in Florida in a non-waiver, non-unanimous jury,

post-Apprendi posture. In light of Apprendi’s fundamental importance to Ring and

Hurst, it would violate the federal constitutional prohibition against arbitrary and

capricious death sentencing, and the guarantees of equal protection and due process,

to extend Hurst retroactivity to 14 years of post-Ring death sentences while denying

056a

retroactivity to the small number of non-unanimous-recommendation sentences, like

Appellant’s, that were finalized in the two years between Apprendi and Ring.

III.

Appellee’s cursory response to Appellant’s more general federal

retroactivity arguments regarding the Ring cutoff should also be rejected

Appellee fails to substantively engage most of Appellant’s more general

federal retroactivity arguments regarding the Ring cutoff. Appellee does not even

mention or address Appellant’s argument that a retroactivity cutoff at Ring violates

the Eighth Amendment’s prohibition against arbitrary and capricious imposition of

the death penalty. See Appellant’s Resp. at 9-13. Appellee also does not cite

Montgomery, let alone meaningfully address Appellant’s argument that because the

Hurst decisions are substantive, the Supremacy Clause of the Constitution requires

state courts to apply them retroactively. See id. at 15-20. Appellee has therefore

abandoned any arguments on those issues. Cf. Hoskins v. State, 75 So. 3d 250, 257

(Fla. 2011) (“[A]n issue not raised in an initial brief is deemed abandoned”).

Appellee offers only a cursory response to Appellant’s arguments under the

Fourteenth Amendment. See Appellee’s Resp. at 5-6. Appellee assumes that

“partial” retroactivity is constitutional because it “benefits more appellants,” no

matter where the line is drawn.

Id. at 5. But Appellee fails to provide an example

of any previous constitutional ruling that has been given only “partial” retroactive

effect, and does not engage in any specific due process or equal protection analysis.

057a

Appellee’s failure to address Appellant’s Eighth Amendment arguments and

cursory treatment of his Fourteenth Amendment arguments is telling. A Ring cutoff

injects into Florida’s death penalty jurisprudence a level of arbitrariness and

capriciousness, as well as a denial of equal protection and due process, that is not

present in typical circumstances where retroactivity is withheld based on the

pragmatic necessity to evolve constitutional protections prospectively without undue

cost to the finality of preexisting judgments. Indeed, a Ring-based cutoff precludes

relief in precisely the class of cases in which relief makes the most sense.

For instance, inmates whose death sentences became final before Ring have

been on death row longer than post-Ring inmates. They have demonstrated over a

longer time that they are capable of adjusting to that environment and continuing to

live without endangering any valid interest of the State. Pre-Ring inmates are more

likely to have been given death sentences under standards that would not produce a

capital sentence or even a capital prosecution under the conventions prevailing

today. These considerations highlight that a Ring-based retroactivity cutoff involves

a level of caprice that runs beyond that tolerated by typical retroactivity rules.

Appellee’s remaining arguments can be dispensed with briefly. Appellee cites

Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for the proposition that the Supreme

Court’s ruling that Ring is not retroactive in a federal habeas proceeding means that

Hurst is not retroactive in any proceeding. See Appellee’s Resp. at 3-5. But as

058a

Appellant explained in his earlier response, see Appellant’s Resp. at 19-20, the

Arizona statute at issue in Ring and Summerlin did not require, as Florida’s statute

did, factfinding regarding both the aggravators and their “sufficiency” for the death

penalty. Summerlin acknowledged that if the Court itself “[made] a certain fact

essential to the death penalty . . . [the change] would be substantive.” 542 U.S. at

354. Such a change occurred with the Hurst decisions, due to the sufficiency

requirement. See also Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May 27,

2016) (contrasting Hurst to Ring and Summerlin because the latter decisions “did

not address the requirement for proof beyond a reasonable doubt,” and “[t]he

Supreme Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).

IV.

Appellee’s harmless error argument is meritless

Appellee addresses Appellant’s harmless-error arguments in a footnote,

characterizing them as “contrary to this Court’s precedent.” Appellee’s Resp. at 8,

n.2. Appellee ignores that reliance on the advisory jury recommendation for

harmless-error analysis contravenes the Sixth and Fourteenth Amendments in light

of Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), and In re Winship, 397 U.S. 358

(1970), as such a recommendation is not a constitutionally-valid “verdict” grounded

in factfinding governed by the beyond-a-reasonable-doubt standard.

Moreover, the advisory jury’s unanimous recommendation in Appellant’s preHurst sentencing does not demonstrate that any reasonable jury in a constitutional

059a

proceeding would have made the three unanimous, beyond-a-reasonable-doubt

findings required by Hurst and the Sixth and Eighth Amendments. This Court has

made clear that the jury must be unanimous as to each aggravating circumstance,

and the sufficiency of those specific aggravators to justify the death penalty, and the

weightier nature of those aggravators relative to the mitigation. Hurst v. State, 202

So. 3d 40, 57 (Fla. 2016). Even though Appellant’s jury unanimously recommended

death, this Court cannot know whether the jury in fact unanimously agreed upon—

or any reasonable jury in a constitutional proceeding would have unanimously

agreed upon—all the other requisite elements for a death sentence.

Given the uncertainty about the basis for the advisory jury’s recommendation,

a bright-line rule that Hurst errors are harmless in every unanimous-juryrecommendation case—without allowing for at least some review of the underlying

record—does not comport with the harmless-error standard imposed by Chapman v.

California, 386 U.S. 18 (1967). The United States Supreme Court has consistently

made clear that this Court’s and other state courts’ harmless-error review requires

individualized analysis of a particular case whether there is a possibility that a

reasonable jury could have reached a different conclusion without the constitutional

error. See, e.g., Barclay v. Florida, 463 U.S. 939, 954 (1983) (“[T]he Florida

Supreme Court does not apply its harmless error analysis in an automatic or

mechanical fashion, but rather upholds death sentences on the basis of this analysis

060a

only when it actually finds that the error is harmless.”). As such, error in this case

cannot be said to be harmless based on the jury’s recommendation alone, which does

not indicate what a post-Hurst, non-advisory jury would have decided.

The uncertainty as to what jurors would have decided in a constitutional

proceeding is exacerbated by the jury being instructed that its role was advisory. The

jury’s understanding of its diminished role resulted in an Eighth Amendment

violation in light of Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). Although

this Court held in the past that Florida’s prior scheme did not violate Caldwell, those

decisions are obviated by Hurst. See Truehill v. Florida, No. 16-9448, 2017 WL

2463876 (Oct. 16, 2017) (Sotomayor, J., dissenting from denial of certiorari)

(“Although the Florida Supreme Court has rejected a Caldwell challenge to its jury

instructions in capital cases in the past, it did so in the context of its prior sentencing

scheme”). Denying Appellant’s Hurst claim on harmless-error grounds in sole

reliance on the advisory jury would violate the Eighth Amendment under Caldwell.

CONCLUSION

The Court should hold that federal law requires the Hurst decisions to be

applied retroactively to Appellant’s post-Apprendi death sentence and grant relief.

061a

Respectfully submitted,

/s/ Francis Jerome Shea

Francis Jerome Shea

Fla. Bar No. 292524

644 Cesery Blvd., Suite 250

Jacksonville, FL 32211

Telephone: (904) 399-1966

Fax: (904) 399-4866

legal@attorneyshea.com

Atty. for Gary Ray Bowles

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served via the e-portal to Assistant

Attorney General Jennifer A. Donahue at jennifer.donahue@myfloridalegal.com

and capapp@myfloridalegal.com.

/s/ Francis Jerome Shea

Francis Jerome Shea

062a

RECEIVED, 02/13/2018 02:58:29 PM, Clerk, Supreme Court

Filing # 67906757 E-Filed 02/13/2018 02:57:27 PM

063a

past, this Court recognized that the constitutional error at issue in Hurst was

identified by Apprendi, not just by Ring, so that if there is to be a retroactivity cut-

off, that line should be drawn at Apprendi, not at Ring. This Court's current decision

fails to address this crucial distinction between a post-Apprendi case, such as this

one, and the general group of pre-Ring cases. After all, without Apprendi there is no

Hurst just as there is no Ring.

Rehearing and clarification are appropriate because of this significant

consideration with which the Court's decision did not grapple. Further, this Court

should grant oral argument and full, untruncated briefing to address the unique

circumstances of a post-Apprendi case situation such as the instant.

This Court's opinion did not grapple with the difference between cases

that became "final" after Apprendi and those that became "final" before

Apprendi.

This Court's Ring-based retroactivity cutoff is simply not reasonable as

applied to Mr. Bowles's death sentence, which became final after Apprendi, because

the rule announced in Apprendi was the constitutional basis for both Ring and Hurst.

It was Apprendi, not Ring, which first articulated the principle that the Sixth

Amendment requires any finding that increases a defendant's maximum sentence to

be understood as an element of the offense that must be found by a jury beyond a

reasonable doubt. See Apprendi, 530 U.S. at 490. In the Hurst decision itself, the

United States Supreme Court explained that Ring applied Apprendi's analysis in

064a

finding Arizona's capital sentencing scheme unconstitutional. See Hurst, 136 S. Ct.

at 621. The foundation of Ring is Apprendi, and if there is to be a bright line for

retroactivity in these cases, the line should be drawn at Apprendi, not at Ring. To

draw a line at Ring instead of Apprendi is to fundamentally misunderstand the

relationship between the two cases.

In fact, this Court previously recognized that the "jury sentencing" idea

originated with Apprendi. In those days, the Court denied reliefto petitioners relying

on Apprendi because the United States Supreme Court had not held that Apprendi

applied to capital sentencing schemes such as Florida's. See, e.g., Mills v. Moore,

786 So. 2d 532, 537 (Fla. 2001) ("No court has extended Apprendi to capital

sentencing schemes . . ."). In the current era, this Court has not addressed the

argument that post-Apprendi cases are in a different posture than other pre-Ring

cases. Neither Hitchcock nor any other current case has acknowledged that the

Apprendi argument even exists.

There are only 22 Florida cases, including Mr. Bowles's, without penalty-

phase waivers and with non-unanimous jury recommendations that became "final"

after Apprendi but before Ring. These individuals were sentenced under the same

infirm system as individuals who have been granted Hurst relief. The partial

retroactivity approach that this Court has now fashioned is unusual in American

jurisprudence. But even within that unusual setting, the distinct issue involved in the

065a

post-Apprendi cases remains hanging in the wind. The Court should grant rehearing

and address the issue.

II.

This Court should grant rehearing to clarify its position on the

constitutional questions raised.

A wave of certiorari petitions, approximately 100, challenging this Court's

Hurst retroactivity framework is set to flood the United States Supreme Court's

docket in the coming months. In 2017, this Court entered stays, followed by orders

to show cause, in over 100 appeals and state habeas proceedings, including Mr.

Bowles's. In January 201 8, this Court embarked on the mass-denial of relief through

summary opinions that cited Hitchcock v. State, 226 So. 3d 216 (Fla. 2017). The

petitions for certiorari in these cases likely will challenge the constitutionality of this

Court's Ring-based retroactivity cutoff.

Before all these cases proceed to certiorari, this Court should grant rehearing

and address the post-Apprendi issue applicable in the few cases, like Mr. Bowles's,

that fall into the post-Apprendi/re-Ring gap. The post-Apprendi cases should not be

lumped in with the rest.

III.

The Court should permit full briefing and oral argument.

Mr. Bowles respectfully requests oral argument on this post-Apprendi issue

pursuant to Fla. R. App. P. 9.320. Mr. Bowles also requests that the Court permit

briefing of the issue. It would be very appropriate for the Court to allow briefing and

oral argument.

066a

IV.

Conclusion

This Court should grant rehearing and clarification. Hurst should be applied

retroactively to this post-Apprendi death sentence.

Respectfully submitted,

/s/ Francis Jerome Shea

Francis Jerome Shea

Fla. Bar No. 292524

644 Cesery Blvd., Suite 250

Jacksonville, FL 32211

Telephone: (904) 399-1966

Fax: (904) 399-4866

legal@attorneyshea.com

Atty. for Gary Ray Bowles

Counselfor Appellant

067a

CERTIFICATE OF SERVICE

I hereby certify that on February 13, 2018, the foregoing was electronically

served via the e-portal to Assistant Attomey General Jennifer A. Donahue at

jennifer.donahue@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Francis Jerome Shea

Francis Jerome Shea

068a

Supreme Court of Florida

THURSDAY, FEBRUARY 22, 2018

CASE NO.: SC17-1754

Lower Tribunal No(s).:

161994CF012188AXXXMA

GARY RAY BOWLES

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant’s Motion for Rehearing is hereby stricken.

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

and LAWSON, JJ., concur.

A True Copy

Test:

Served:

FRANCIS JEROME SHEA

JENNIFER ANN DONAHUE

MEREDITH CHARBULA

HON. BRUCE RUTLEDGE ANDERSON JR.

HON. RONNIE FUSSELL, CLERK

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EXECUTION DATABASE

STATE-BY-STATE

Florida Death-Penalty Appeals Decided in Light of Hurst

Last updated: May 15, 2018

Total number of prisoners whose cases have been reviewed by Florida Supreme Court (or, if relief is granted, by a Circuit Court) in light of Hurst: 259

Number of prisoners who have obtained relief under Hurst: 128 (49.42%)

Number of prisoners who have been denied relief under Hurst: 131 (50.58%)

The Florida Supreme Court has declared that it will apply its decisions in Hurst v. State and Asay v. State—which held that non-unanimous jury recommendations

of death violate the Florida state constitution and the Sixth Amendment of the U.S. Constitution—to new death penalty cases and to older cases in which the

direct appeal process was final on or before the U.S. Supreme Court decided Ring v. Arizona in June 2002.

Prisoner Name

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Abdool, Dane

Orange

Allred, Andrew

Seminole

WAIVED JURY

Alston, Pressley Bernard

Duval

Altersberger, Joshua Lee

Highlands

Anderson, Charles L.

Broward

Anderson, Richard

Jury Vote(s)

Date of Court

Order

4/6/17

11/16/17

9-3

1/22/18

9-3

4/27/17

8-4

3/9/17

Hillsborough

11-1

1/26/18

Archer, Robin Lee

Escambia

7-5

3/17/17

Armstrong, Lancelot

Uriley

Broward

9-3

1/19/17

Asay, Marc

Duval

9-3, 9-3

N (EXECUTED)

12/22/16

Atwater, Jeffrey Lee

Pinellas

11-1

1/23/18

Ault, Howard Steven

Broward

9-3, 10-2

3/9/17

Bailey, Robert J.

Bay

11-1

7/6/17

Baker, Cornelius

Flagler

9-3

3/23/17

Banks, Donald

Duval

10-2

4/20/17

Bargo, Michael Shane

Marion

10-2

6/29/17

Barnhill, Arthur

Seminole

9-3

2/20/17

Barwick, Darryl Brian

Bay

12-0

2/28/18

Bates, Kayle Barrington

Bay

9-3

1/22/18

Beasley, Curtis W.

Polk

10-2

1/23/18

Belcher, James

Duval

9-3

11/2/17

Bell, Michael

Duval

12-0, 12-0

1/29/18

Bevel, Thomas

Duval

8-4, 12-0

6/15/17

Booker, Stephen Todd

Duval

8-4

1/30/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

10-2

Death Sentence

Reversed?

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Bowles, Gary Ray

Duval

12-0

1/29/18

Braddy, Harrel

Miami-Dade

11-1

6/15/17

Bradley, Brandon Lee

Brevard

10-2

3/30/17

Bradley, Donald

Clay

10-2

1/22/18

Branch, Eric Scott

Escambia

10-2

N (EXECUTED)

1/22/18

Brookins, Elijah

Gadsden

10-2

4/20/17

Brooks, Lamar

Okaloosa

9-3, 11-1

3/10/17

Brown, Paul Alfred

Hillsborough

7-5

1/29/18

Brown, Paul Anthony

Volusia

12-0

2/28/18

Burns, Daniel Jr.

Manatee

12-0

1/23/18

Buzia, John

Seminole

8-4

4/6/17

Byrd, Milford Wade

Hillsborough

Unknown

2/28/18

Calloway, Tavares David

Miami-Dade

7-5, 7-5, 7-5,

7-5, 7-5

1/26/17

Campbell, John

Citrus

8-4

8/30/17

Card, James

Bay

11-1

5/4/17

Carr, Emilia

Marion

7-5

2/7/17

Carter, Pinkney

Duval

9-3, 8-4

10/4//17

Caylor, Matthew

Bay

8-4

5/18/17

Clark, Ronald Wayne Jr.

Duval

11-1

1/23/18

Cole, Loran

Marion

12-0

1/23/18

Cole, Tiffany Ann

Duval

9-3, 9-3

6/29/17

Conde, Rory

Miami-Dade

9-3

8/31/17

Consalvo, Robert

Broward

11-1

1/31/18

Cox, Allen

Lake

10-2

7/23/17

Cozzie, Steven Anthony

Walton

12-0

5/11/17

Crain, Willie Seth

Hillsborough

12-0

4/5/18

Damren, Floyd William

Clay

12-0

2/2/18

Darling, Dolan a/k/a

Sean Smith

Orange

11-1

3/29/17

Davis, Adam W.

Hillsborough

7-5

5/2/17

Davis, Barry T.

Walton

9-3, 10-2

5/11/17

Davis, Jr., Leon

Polk

12-0, 12-0, 8-4

11/10/16

Davis, Jr., Leon

Polk

WAIVED JURY

11/10/16

Davis, Mark Allen

Pinellas

8-4

1/29/18

Davis, Toney D.

Duval

11-1

2/17/17

Dennis, Labrant

Miami-Dade

11-1, 11-1

7/7/17

Deparvine, Williams

James

Hillsborough

8-4, 8-4

4/6/17

Derrick, Samuel Jason

Pasco

7-5

2/2/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Dessaure, Kenneth

Pinellas

WAIVED JURY

Deviney, Randall

Duval

Diaz, Joel

Lee

Dillbeck, Donald David

Leon

Doorbal, Noel

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

11/16/17

8-4

3/23/17

9-3

6/15/17

8-4

1/24/18

Miami-Dade

8-4, 8-4

9/20/17

Doty, Wayne

Bradford

10-2

8/7/17

Douglas, Luther

Duval

11-1

6/29/17

Dubose, Rasheem

Duval

8-4

2/9/17

Durousseau, Paul

Duval

10-2

1/31/17

Eaglin, Dwight

Charlotte

8-4, 8-4

4/3/17

England, Richard

Volusia

8-4

5/22/17

Evans, Paul H.

Indian River

9-3

3/20/17

Evans, Steven Maurice

Orange

11-1

1/24/18

Evans, Wydell Jody

Brevard

10-2

Finney, Charles

Hillsborough

9-3

1/26/18

Floyd, Maurice Lamar

Putnam

11-1

5/17/17

Ford, James D.

Charlotte

11-1, 11-1

1/23/18

Foster, Charles

Bay

8-4

1/29/18

Foster, Kevin Don

Lee

9-3

1/29/18

Fotopoulos,

Konstantinos

Volusia

8-4, 8-4

1/29/18

Frances, David

Orange

9-3, 10-2

3/29/17

Franklin, Richard P.

Columbia

9-3

11/23/16

Gamble, Guy R.

Lake

10-2

1/29/18

Gaskin, Louis

Flagler

8-4, 8-4

2/28/18

Geralds, Mark Allen

Bay

12-0

2/28/18

Glover, Dennis T.

Duval

10-2

9/14/17

Gonzalez, Leonard

Escambia

10-2

5/23/17

Gonzalez, Ricardo

Miami-Dade

8-4

3/23/18

Gordon, Robert R.

Pinellas

9-3

1/31/18

Gregory, William

Volusia

7-5, 7-5

8/31/17

Griffin, Michael Allen

Miami-Dade

10-2

2/2/18

Grim, Norman

Santa Rosa

12-0

3/29/18

Guardado, Jesse

Walton

12-0

5/11/17

Gudinas, Thomas Lee

Collier

10-2

1/30/18

Guzman, James

Volusia

11-1

2/22/18

Guzman, Victor

Miami-Dade

7-5

4/6/17

Hall, Donte Jermaine

Lake

8-4

6/15/17

Hall, Enoch D.

Volusia

12-0

2/9/17

Hamilton, Richard

Hamilton

10-2

2/18/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Hampton, John

Pinellas

9-3

5/4/17

Hannon, Patrick

Hillsborough

12-0

N (EXECUTED)

11/1/17

Hartley, Kenneth

Duval

9-3

1/26/18

Hayward, Steven

St. Lucie

8-4

3/24/17

Heath, Ronald Palmer

Alachua

10-2

2/28/18

Hernandez, Michael

Santa Rosa

11-1

5/11/17

Hernandez-Alberto,

Pedro

Hillsborough

10-2, 10-2

5/9/17

Hertz, Gerry

Wakulla

10-2, 10-2

5/18/17

Heyne, Justin

Brevard

10-2, 8-4

4/6/17

Hitchcock, James

Orange

10-2

8/10/17

Hobart, Robert

Santa Rosa

7-5

2/21/18

Hodges, George

Michael

Hillsborough

10-2

2/2/18

Hodges, Willie James

Escambia

10-2

3/16/17

Hojan, Gerhard

Broward

9-3, 9-3

1/31/17

Huggins, John

Orange

9-3

5/23/17

Hunter, Jerone

Volusia

10-2, 10-2, 93, 9-3

6/16/17

Hurst, Timothy

Escambia

7-5

10/14/16

Hutchinson, Jeffrey

Okaloosa

WAIVED JURY

WAIVED

JURY

3/15/18

Israel, Connie Ray

Duval

7-5

3/21/17

Jackson, Etheria Verdell

Duval

7-5

1/24/18

Jackson, Kenneth R.

Hillsborough

11-1

3/23/17

Jackson, Michael James

Duval

8-4, 8-4

6/9/17

Jackson, Ray

Volusia

9-3

4/24/17

Jeffries, Kevin G.

Bay

10-2

7/13/17

Jeffries, Sonny Ray

Orange

11-1

1/26/18

Jennings, Brandy Bain

Collier

10-2, 10-2, 102

1/29/18

Johnson, Emanuel

Sarasota

8-4, 10-2

2/2/18

Johnson, Paul Beasley

Polk

11-1, 11-1, 111

12/1/16

Johnson, Richard Allen

St. Lucie

11-1

3/24/17

Johnson, Ronnie

Miami-Dade

7-5, 9-3

3/27/18

Johnston, Ray

Hillsborough

11-1

7/21/17

Johnston, Ray

Hillsborough

12-0

7/21/17

Jones, Henry Lee

Brevard

12-0

3/2/17

Jones, Marvin Burnett

Duval

9-3

1/22/18

Jones, Victor

Miami-Dade

Y/N

10-2, 12-0

9/28/17

Jordan, Joseph

Volusia

10-2

8/22/17

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Kaczmar, III, Leo L.

Clay

12-0

1/31/17

Kelley, William H.

Highlands

8-3 [not a typo] N

1/26/18

King, Cecil

Duval

8-4

7/12/17

King, Michael L.

Sarasota

12-0

1/26/17

Kirkman, Vahtiece

Brevard

10-2

1/11/18

Knight, Richard

Broward

12-0, 12-0

1/31/17

Kocaker, Genghis

Pinellas

11-1

10/6/17

Kokal, Gregory Alan

Duval

12-0

1/24/18

Kopsho, William M.

Marion

10-2

1/19/17

Krawczuk, Anton

Duval

12-0

1/31/18

Lamarca, Anthony

Pinellas

11-1

1/30/18

Lambrix, Cary Michael

Glades

8-4, 10-2

N (EXECUTED)

9/29/17

Lawrence, Gary

Santa Rosa

9-3

2/2/18

Lebron, Joel

Osceola

7-5

4/20/17

Lightbourne, Ian

Marion

Unrecorded

1/26/18

Long, Robert Joe

Hillsborough

12-0

1/29/18

Lucas, Harold Gene

Lee

11-1

1/24/18

Marquard, John

St. Johns

12-0

1/24/18

Martin, David

Clay

9-3

7/13/17

Matthews, Douglas

Volusia

10-2

12/5/17

McCoy, Richard (aka

Jamil Rashid)

Duval

7-5

9/6/17

McCoy, Thomas

Walton

11-1

11/8/17

McGirth, Renaldo Devon

Marion

11-1

1/26/17

McKenzie, Norman

Blake

St. Johns

10-2, 10-2

6/19/17

McLean, Derrick

Orange

9-3

4/24/17

McMillian, Justin

Duval

10-2

4/13/17

Melton, Antonio Lebaron

Escambia

8-4

2/2/18

Mendoza, Marbel

Miami-Dade

7-5

1/30/18

Merck, Jr., Troy

Pinellas

9-3

5/5/17

Middleton, Dale

Okeechobee

12-0

3/9/17

Miller, David Jr.

Duval

7-5

1/31/18

Miller, Lionel Michael

Orange

11-1

5/8/17

Morton, Alvin

Pasco

11-1, 11-1

2/2/18

Morris, Dontae

Hillsborough

12-0, 12-0

4/27/17

Morris, Dontae

Hillsborough

10-2

1/11/18

Morris, Robert D.

Polk

8-4

1/26/18

Mosley, John F.

Duval

8-4

12/22/16

Mullens, Khadafy

Pinellas

WAIVED JURY

6/16/16

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Murray, Gerald Delane

Duval

11-1

4/4/17

Nelson, Joshua D.

Lee

12-0

1/31/18

Nelson, Micah

Polk

9-3

3/8/17

Newberry, Rodney

Duval

8-4

4/6/17

Oats, Jr. Sonny Boy

Marion

UNKNOWN

5/25/17

Occhicone, Dominick A.

Pasco

7-5

1/30/18

Okafor, Bessman

Orange

11-1

6/8/17

Oliver, Terence Tabius

Brevard

12-0, 12-0

4/6/17

Orme, Roderick

Bay

11-1

3/30/17

Overton, Thomas M.

Monroe

8-4, 9-3

2/2/18

Pace, Bruce Douglas

Santa Rosa

7-5

1/30/18

Pagan, Alex

Broward

7-5, 7-5

2/1/18

Parker, J.B.

Martin

11-1

4/20/17

Partin, Phillup Alan

Pasco

9-3

3/27/17

Pasha, Khalid

Hillsborough

11-1, 11-1

5/11/17

Peterka, Daniel Jon

Okaloosa

8-4

1/22/18

Peterson, Robert Earl

Duval

7-5

7/6/17

Pham, Tai

Seminole

10-2

3/22/17

Phillips, Galante

Duval

7-5

4/20/17

Phillips, Harry Franklin

Miami-Dade

7-5

1/22/18

Philmore, Lenard James

Martin

12-0

1/25/18

Pietri, Norberto

Palm Beach

8-4

2/2/18

Poole, Mark

Polk

11-1

3/31/17

Pope, Thomas Dewey

Broward

9-3

2/28/18

Puiatti, Carl

Pasco

11-1

1/23/18

Quince, Kenneth Darcell

Volusia

WAIVED JURY

1/18/18

Raleigh, Bobby Allen

Volusia

12-0, 12-0

2/28/18

Reaves, William

Indian River

10-2

5/2/18

Reynolds, Michael

Seminole

12-0, 12-0

4/5/18

Rhodes, Richard Wallace Pinellas

10-2

1/23/18

Rigterink, Thomas

William

Polk

7-5, 7-5

4/6/17

Rimmer, Robert

Broward

9-3, 9-3

6/29/17

Robards, Richard

Pinellas

7-5, 7-5

4/6/17

Rodgers, Jeremiah

Santa Rosa

WAIVED JURY

2/8/18

Rodgers, Theodore

Orange

8-4

4/3/17

Rogers, Glen Edward

Hillsborough

12-0

1/30/18

Rodriguez, Manuel

Antonio

Miami-Dade

12-0, 12-0, 120

1/31/18

San Martin, Pablo

Miami-Dade

9-3

2/28/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Schoenwetter, Randy

Brevard

10-2, 9-3

4/7/17

Seibert, Michael

Broward

9-3

6/22/17

Serrano, Nelson

Polk

9-3, 9-3, 9-3,

9-3

5/11/17

Sexton, John

Pasco

10-2

6/29/17

Silvia, William

Seminole

11-1

2/20/17

Simmons, Eric Lee

Lake

8-4

12/22/16

Sireci, Henry Perry

Orange

11-1

1/31/18

Sliney, Jack R.

Charlotte

7-5

1/31/18

Smith, Corey

Miami-Dade

9-3, 10-2

3/16/17

Smith, Joseph

Sarasota

10-2

7/13/17

Smith, Stephen V.

Charlotte

9-3

4/21/17

Smithers, Samuel

Hillsborough

12-0, 12-0

3/29/18

Snelgrove, David B.

Flagler

8-4, 8-4

5/11/17

Sochor, Dennis

Broward

10-2

1/30/18

Stein, Steven Edward

Duval

10-2

1/31/18

Stephens, Jason

Demetrius

Duval

9-3

1/22/18

Stewart, Kenneth Allen

Hillsborough

10-2

4/25/17

Stewart, Kenneth Allen

Hillsborough

10-2

1/26/18

Sweet, William Earl

Duval

10-2

1/24/18

Suggs, Ernest

Walton

7-5

3/17/17

Tanzi, Michael

Monroe

12-0

4/5/18

Taylor, John Calvin

Clay

10-2

10/12/17

Taylor, Perry

Hillsborough

8-4

5/3/18

Taylor, Steven Richard

Duval

10-2

1/24/18

Taylor, William Kenneth

Hillsborough

12-0

4/5/18

Thomas, William

Gregory

Duval

11-1

1/24/18

Trease, Robert J.

Sarasota

11-1

1/24/18

Trepal, George

Polk

9-3

1/26/18

Trotter, Melvin

Manatee

11-1

1/26/18

Troy, John

Sarasota

11-1

6/13/17

Truehill, Quentin

St. Johns

12-0

2/23/17

Tundidor, Randy W.

Broward

12-0

4/27/17

Turner, James Daniel

St. Johns

10-2

6/19/17

Twilegar, Mark

Lee

WAIVED JURY

11/2/17

Victorino, Troy

Volusia

10-2, 10-2, 93, 7-5

6/14/17

Wade, Alan L.

Duval

11-1, 11-1

5/1/17

Walls, Frank

Okaloosa

12-0

1/22/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Wheeler, Jason

Lake

10-2

5/23/17

White, Dwayne

Seminole

8-4

3/30/17

Whitfield, Ernest

Sarasota

7-5

1/30/18

White, William Melvin

Orange

10-2

4/20/17

Whitton, Gary Richard

Walton

12-0

1/31/18

Willacy, Chadwick

Brevard

11-1

1/23/18

Williams, Donald Otis

Lake

9-3

1/19/17

Williams , Ronnie Keith

Broward

10-2

6/29/17

Windom, Curtis

Orange

12-0, 12-0, 120

1/23/18

Wood, Zachary Taylor

Washington

12-0

Y**

1/31/17

Woodel, Thomas

Polk

7-5

8/18/17

Zack, Michael Duane

Escambia

11-1

6/15/17

Zakrzewski, Edward

Okaloosa

7-5, 7-5, 6-6

5/25/17

Zommer, Todd

Osceola

10-2

4/13/17

* The Florida Supreme Court granted relief under Hurst on Bevel's non-unanimous death sentence, but granted relief based on ineffective assistance of counsel

on Bevel's unanimous death sentence.

** The Florida Supreme Court noted that Wood's sentence would not have been harmless under Hurst because it struck two of the three aggravating

circumstances found by the trial court; however, the court vacated the death sentence and imposed a life sentence under its statutory review for proportionality.

Not counted in total.

For more background on the Florida legislative and court actions related to the jury unanimity issue, see Hurst v. Florida Background.

To check on the status of cases involving Florida death-row prisoners with non-unanimous jury recommendations for death whose sentences became final after

the U.S. Supreme Court's June 2002 decision in Ring v. Arizona, see this chart.

Hannah Gorman, with the Florida Center for Capital Representation at Florida International University, created the pie chart below (November 16, 2017)

based on her analysis of Florida death sentences that have been or will be overturned based on Hurst, as well as sentences that have been or will be

affirmed because they either (A) became final before Ring (i.e., based on the date of their appeal) or (B) were presumed harmless based on a

unanimous jury verdict or the defendant's waiver of a jury sentence. This chart includes prisoners who have had their death sentences affirmed by

Circuit Courts. According to this information, there are a total of 377 prisoners who were sentenced under the unconstitutional sentencing scheme,

but only 42% (157) of Florida death-row prisoners who were sentenced under that scheme will be entitled to relief.

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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5/21/2018

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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1. Bates v. State, 238 So. 3d 98 (Fla. 2018)

2. Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)

3. Branch v. State, 234 So. 3d 548 (Fla. 2018)

4. Jones v. State, 234 So. 3d 545 (Fla. 2018)

5. Peterka v. State, 237 So. 3d 903 (Fla. 2018)

6. Phillips v. State, 234 So. 3d 547 (Fla. 2018)

7. Stephens v. State, 238 So. 3d 94 (Fla. 2018)

8. Suggs v. State, 234 So. 3d 546 (Fla. 2018)

9. Walls v. State, 238 So. 3d 96 (Fla. 2018)

10. Atwater v. State, 234 So. 3d 550 (Fla. 2018)

11. Beasley v. State, 234 So. 3d 553 (Fla. 2018)

12. Burns v. State, 234 So. 3d 555 (Fla. 2018)

13. Clark v. State, 238 So. 3d 99 (Fla. 2018)

14. Cole v. State, 234 So. 3d 644 (Fla. 2018)

15. Ford v. State, 237 So. 3d 904 (Fla. 2018)

16. Puiatti v. State, 234 So. 3d 551 (Fla. 2018)

17. Rhodes v. State, 234 So. 3d 554 (Fla. 2018)

18. Willacy v. State, 238 So. 3d 100 (Fla. 2018)

19. Windom v. State, 234 So. 3d 556 (Fla. 2018)

20. Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)

21. Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)

22. Jackson v. State, 237 So. 3d 905 (Fla. 2018)

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23. Kokal v. State, 237 So. 3d 907 (Fla. 2018)

24. Lucas v. State, 234 So. 3d 647 (Fla. 2018)

25. Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)

26. Sweet v. State, 234 So. 3d 646 (Fla. 2018)

27. Taylor v. State, 234 So. 3d 649 (Fla. 2018)

28. Thomas v. State, 234 So. 3d 559 (Fla. 2018)

29. Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)

30. Anderson v. State, 235 So. 3d 277 (Fla. 2018)

31. Finney v. State, 235 So. 3d 279 (Fla. 2018)

32. Hartley v. State, 237 So. 3d 908 (Fla. 2018)

33. Jeffries v. State, 235 So. 3d 283 (Fla. 2018)

34. Kelley v. State, 235 So. 3d 280 (Fla. 2018)

35. Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)

36. Morris v. State, 236 So. 3d 324 (Fla. 2018)

37. Stewart v. State, 235 So. 3d 798 (Fla. 2018)

38. Trepal v. State, 235 So. 3d 281 (Fla. 2018)

39. Trotter v. State, 235 So. 3d 284 (Fla. 2018)

40. Bell v. State, 235 So. 3d 287 (Fla. 2018)

41. Bowles v. State, 235 So. 3d 292 (Fla. 2018)

42. Brown v. State, 235 So. 3d 289 (Fla. 2018)

43. Davis v. State, 235 So. 3d 295 (Fla. 2018)

44. Foster v. State, 235 So. 3d 290 (Fla. 2018)

45. Foster v. State, 235 So. 3d 294 (Fla. 2018)

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46. Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)

47. Gamble v. State, 235 So. 3d 288 (Fla. 2018)

48. Jennings v. State, 237 So. 3d 909 (Fla. 2018)

49. Long v. State, 235 So. 3d 293 (Fla. 2018)

50. Booker v. Jones, 235 So. 3d 298 (Fla. 2018)

51. Davis v. Jones, 235 So. 3d 301 (Fla. 2018)

52. Gudinas v. State, 235 So. 3d 303 (Fla. 2018)

53. Lamarca v. State, 237 So. 3d 914 (Fla. 2018)

54. Mendoza v. State, 235 So. 3d 302 (Fla. 2018)

55. Occhicone v. State, 235 So. 3d 299 (Fla. 2018)

56. Pace v. State, 237 So. 3d 912 (Fla. 2018)

57. Rogers v. State, 235 So. 3d 306 (Fla. 2018)

58. Sochor v. State, 235 So. 3d 304 (Fla. 2018)

59. Whitfield v. State, 235 So. 3d 297 (Fla. 2018)

60. Consalvo v. State, 235 So. 3d 307 (Fla. 2018)

61. Gordon v. State, 235 So. 3d 311 (Fla. 2018)

62. Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)

63. Miller v. Jones, 237 So. 3d 921 (Fla. 2018)

64. Nelson v. State, 235 So. 3d 308 (Fla. 2018)

65. Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)

66. Sireci v. State, 237 So. 3d 916 (Fla. 2018)

67. Sliney v. State, 235 So. 3d 310 (Fla. 2018)

68. Stein v. State, 237 So. 3d 919 (Fla. 2018)

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69. Whitton v. State, 238 So. 3d 724 (Fla. 2018)

70. Damren v. State, 236 So. 3d 230 (Fla. 2018)

71. Derrick v. State, 236 So. 3d 231 (Fla. 2018)

72. Griffin v. State, 236 So. 3d 237 (Fla. 2018)

73. Hodges v. State, 236 So. 3d 241 (Fla. 2018)

74. Johnson v. State, 236 So. 3d 232 (Fla. 2018)

75. Lawrence v. State, 236 So. 3d 240 (Fla. 2018)

76. Melton v. State, 236 So. 3d 234 (Fla. 2018)

77. Morton v. State, 236 So. 3d 242 (Fla. 2018)

78. Overton v. State, 236 So. 3d 238 (Fla. 2018)

79. Pietri v. State, 236 So. 3d 235 (Fla. 2018)

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