Petition for Writ of Certiorari — Michael Bernard Bell, Petitioner v. Florida

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

MICHAEL BERNARD BELL,

Petitioner,

v.

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

ROBERT A. NORGARD

Norgard, Norgard, & Chastang

310 East Main Street

Bartow, Florida 33830

Tallahassee, Florida 32301

(863) 354-0508

Norgardlaw@verizon.net

BILLY H. NOLAS

Counsel of Record

SEAN GUNN

KIMBERLY NEWBERRY

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

INDEX TO APPENDIX

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

Exhibit 2 — Florida Supreme Court Order to Show Cause (Sep. 25, 2017) ..... 4a

Exhibit 3 — Duval County Circuit Court Order Denying Relief

(Mar. 9, 2017) .................................................................................. 5a

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

(Oct. 16, 2017) ............................................................................... 12a

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

(Oct. 20, 2017) ............................................................................... 35a

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

Order to Show Cause (Nov. 6, 2017) ............................................ 50a

Exhibit 7 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 62a

(Source: Death Penalty Information Center)

Exhibit 8 — List of Florida Supreme Court Opinions Summarily

Denying Relief in Light of Hitchcock (Jan.–Feb. 2018) ............. 70a

Supreme Court of Florida

____________

No. SC17-1045

____________

MICHAEL BERNARD BELL,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[January 29, 2018]

PER CURIAM.

We have for review Michael Bernard Bell’s appeal of the circuit court’s

order denying Bell’s motion filed pursuant to Florida Rule of Criminal Procedure

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

Bell’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). This Court stayed Bell’s appeal pending the disposition of Hitchcock v.

State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this

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Court decided Hitchcock, Bell responded to this Court’s order to show cause

arguing why Hitchcock should not be dispositive in this case.

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

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

convicted Bell of two counts of first-degree murder and unanimously

recommended a sentence of death for both murders. Bell v. State, 699 So. 2d 674,

675 (Fla. 1997). Following the jury’s recommendations, the trial court sentenced

Bell to death on both counts. Id. at 976. Bell’s sentences of death became final in

1998. Bell v. Florida, 522 U.S. 1123 (1998). Thus, Hurst does not apply

retroactively to Bell’s sentences of death. See Hitchcock, 226 So. 3d at 217.

Accordingly, we affirm the denial of Bell’s motion.

The Court having carefully considered all arguments raised by Bell, 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

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

opinion in Hitchcock.

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

Charles Warner Arnold, Jr., Judge - Case No. 161994CF009776AXXXMA

Robert A. Norgard of Norgard, Norgard & Chastang, Bartow, Florida,

for Appellant

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

General, Tallahassee, Florida,

for Appellee

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Supreme Court of Florida

MONDAY, SEPTEMBER 25, 2017

CASE NO.: SC17-1045

Lower Tribunal No(s).:

161994CF009776AXXXMA

MICHAEL BERNARD BELL

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant shall show cause on or before Monday, October 16, 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 Thursday, October 26, 2017, limited to no

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

before Monday, November 6, 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:

lc

Served:

ROBERT ANTHONY NORGARD

JENNIFER ANN DONAHUE

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5a

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Filing # 62871457 E-Filed 10/16/2017 01:26:01 PM

No. SC17-1045

IN THE

Supreme Court of Florida

___________________________________________________________

MICHAEL BERNARD BELL,

RECEIVED, 10/16/2017 01:28:33 PM, Clerk, Supreme Court

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S RESPONSE TO

SEPTEMBER 25, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Robert A. Norgard

Attorney at Law

P.O. Box 811

Bartow, FL 33831

(863) 533-8556

Counsel for Appellant

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TABLE OF CONTENTS

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

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................1

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

I.

Appellant’s

death

sentence

violates

Hurst...............................................................................................................2

This Court’s “retroactivity cutoff” at Ring is unconstitutional and

should

not

be

applied

to

Appellant..........................................................................................................3

II.

A.

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

B.

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...........................................................................................................10

A.

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral

review....................................................................................................10

B.

The Hurst decisions announced substantive rules that must be applied

retroactively

to

Appellant

under

the

Supremacy

Clause......................………………………………………………………..12

C.

The “harmless error” doctrine does not preclude Hurst relief............15

CONCLUSION.......................................................................................................20

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INTRODUCTION

Mr. Bell’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 Mr. Bell 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 Mr. Bell. Denying Mr. Bell Hurst relief because his sentence became final in

1998, rather than some date between 2002 and 2016, would violate the Sixth,

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

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

Mr. Bell respectfully requests oral argument on this and related issues

pursuant to Fla. R. App. P. 9.320. Mr. Bell also requests that the Court permit full

briefing in this case in accord with the normal, untruncated rules of appellate

practice.2

1

Relief should not be denied here in light of Hitchcock v. State, No. SC17-445,

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).

2

Depriving Mr. Bell full briefing would constitute an arbitrary deprivation of the

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

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ARGUMENT

I.

Appellant’s death sentence violates Hurst

Mr. Bell 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.

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

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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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 Mr. Bell’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.

II.

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,

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

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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.

This Court’s current Ring-based retroactivity cutoff violates the United

States Constitution and should not be applied to deny Mr. Bell the relief being

granted in scores of materially indistinguishable collateral cases. Denying Mr. Bell

Hurst retroactivity because his death sentence became final in 1998, while

affording retroactivity to similarly-situated defendants who were sentenced (or

resentenced) between 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

A.

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

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

manner.” Gregg v. Georgia, 428 U.S. 153, 188 (1976); see also Furman v.

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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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;4 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;5 whether an extension was sought for a rehearing

motion and whether such a motion was filed; whether there was a scrivener’s error

4

See, e.g., Lugo v. State, 845 So. 2d 74 (Fla. 2003) (two-year delay between the

time defense counsel filed a notice of appeal and the record on appeal being

transmitted to this Court, almost certainly resulting in the direct appeal being

decided post-Ring)[Docket].

5

Compare dockets of Booker v. State, 773 So. 2d 1079 (Fla. 2000) (opinion issued

within one year after briefing completed, before Ring), with Hall v. State, 201 So.

3d 628 (Fla. 2016) (opinion issued twenty-three months after the last brief was

submitted).

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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.

In one striking example, this Court affirmed Gary Bowles’ and James Card’s

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

October 11, 2001. See Bowles v. State, 804 So. 2d 1173 (Fla. 2001); Card v. State,

803 So. 2d 613, 617 (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). However, Mr. Bowles’s sentence

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. However, Mr. Bowles, 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 other side of this Court’s current retroactivity

cutoff and was denied relief.

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Other arbitrary factors affecting whether a defendant receives Hurst relief

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

resentencing based on relief 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 (granting Hurst relief to a defendant whose crime occurred in 1981 but

was 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 ten-year delay

before the trial). Under this Court’s approach, a defendant who was originally

sentenced to death before Mr. Bell, but who was later resentenced to death after

Ring, would receive Hurst relief and Mr. Bell would not.

B.

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

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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

becomes “whether there is some ground of difference that rationally explains 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 must be strictly scrutinized. 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

those capital 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 justification for that line must satisfy strict scrutiny. This

Court’s Hurst retroactivity cutoff lacks even a rational connection to any legitimate

state interest.

As a due process matter, denying the benefit of Florida’s new post-Hurst

capital sentencing statute to “pre-Ring” defendants like Mr. Bell 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 v. Oklahoma, 447 U.S. 343,

346 (1980) (liberty interest in state-created sentencing procedures); Ford v.

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Wainwright, 447 U.S. 399, 427-31 (1986) (O’Connor, J., concurring) (liberty

interest in meaningful state proceedings to adjudicate competency to be executed);

Ohio Adult Parole Authority 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 necessary to implement a

substantive guarantee is established by state law, the violation of the life and

liberty interest it creates is governed by federal constitutional law. See Hicks, 447

U.S. at 347; Ford, 477 U.S. 399, 428-29 (O’Connor, J., concurring); 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). Instead, 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 (O’Connor, J., concurring). Courts have found in a variety of contexts that

state-created death penalty procedures vest in a capital defendant life and liberty

interests that are protected by due process. See. e.g., Ohio Adult Parole Authority,

523 U.S. at 272; Ford, 477 U.S. at 427-31 (O’Connor, J., concurring).

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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

A.

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 73234. 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 their confinement, States cannot refuse to give retroactive effect to a

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substantive constitutional right that determines the outcome of that challenge,” id.

at 731-32.

The Supreme Court found the Miller rule substantive in Montgomery 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)) (first alteration added). 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.

B.

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. First, a Sixth

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Amendment rule was established requiring that a jury find as fact: (1) each

aggravating circumstance; (2) that those aggravators together are “sufficient” to

justify imposition of the death penalty; and (3) that those aggravators together

outweigh the mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Each of

those findings is required to be made by the jury beyond a reasonable doubt. 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 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 deathsentencing scheme complies with the Eighth Amendment and to “achieve the

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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 of jury 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 fact-finding procedures could

not legitimatize 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 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

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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).

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

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

are substantive. See, e.g., Ivan V. v. City of New York, 407 U.S. 203, 205 (1972)

(explaining that “the major purpose of the constitutional standard of proof beyond

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a reasonable doubt announced in [In re Winship, 397 U.S. 358 (1970)] was to

overcome an aspect of a criminal trial that substantially impairs the truth-finding

function, and Winship is thus to be given complete retroactive effect.”).

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 Mr.

Bell to death.6 This Court’s per se rule that Hurst errors are harmless in every 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. Mr.

Bell’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 all the other requisite

elements for a death sentence. There is a reasonable probability that individual

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 “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).

15

28a

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). Mr. Bell’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 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 Mr. Bell’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.

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

16

29a

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 Bell’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 Mr.

Bell about the penalty phase. All of this stands against a harmless error ruling

without at least remanding the matter to afford Mr. Bell 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 findings 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

likelihood” that the jury was impeded from consideration of constitutionally

relevant evidence. Id. at 380.

17

30a

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.”) . In Mr. Bell’s and other preHurst 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 proof-beyond-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,

18

31a

but whether the guilty verdict actually rendered in 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 Mr. Bell’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, 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

19

32a

beyond a reasonable doubt.

Florida’s pre-Hurst jury determinations, including

the advisory recommendation in Mr. Bell’s case, did not incorporate the beyond-areasonable-doubt standard.

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

prior convictions, the judge’s finding of such aggravators does not render the Hurst

error harmless. As noted above, Florida law requires fact-finding as to both the

existence of aggravators and the “sufficiency” of the particular aggravators to

warrant imposition of the death penalty. 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 Mr. Bell and this case be remanded to the circuit court for a

new penalty phase or the imposition of a life sentence.

Respectfully submitted,

/s/Robert A. Norgard

ROBERT A. NORGARD

20

33a

CERTIFICATE OF SERVICE

I hereby certify that on October 16, 2017, the foregoing was electronically

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

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

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY the size and style font used in the preparation of this

Response is New Time Roman 14 in compliance with Fla. R. App. P. 9.210.

/s/Robert A. Norgard

Robert A. Norgard

Norgard, Norgard & Chastang

Attorney at Law

P.O. Box 811

Bartow, FL 33831

(863) 533-8556

Fax (753)533-1334

Norgardlaw@verizon.net

Fla. Bar No.: 322059

Counsel for Appellant

21

34a

Filing # 63135910 E-Filed 10/20/2017 04:26:03 PM

IN THE SUPREME COURT OF FLORIDA

MICHAEL BERNARD BELL,

Appellant,

CASE NO. SC17-1045

Lower Tribunal No.

1994CF9776

DEATH PENALTY CASE

v.

RECEIVED, 10/20/2017 04:28:26 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 SEPTEMBER 25, 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

35a

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES..................................... iii, iv

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

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

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

CONCLUSION..................................................... 9

CERTIFICATE OF SERVICE........................................ 10

CERTIFICATE OF FONT COMPLIANCE................................ 10

ii

36a

TABLE OF AUTHORITIES

CASES

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, 3, 6

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

Bell v. Bondi, 134 S.Ct. 2290 (2014)........................... 1

Bell v. Fla. Atty Gen., 2012 WL 386253 (11th Cir. 2012)........ 1

Bell v. Florida, 522 U.S. 1123 (1998).......................... 1

Bell v. Florida, 552 U.S. 1011 (2007).......................... 1

Bell v. State, 699 So.2d 674 (Fla. 1997)....................... 1

Bell v. State, 965 So.2d 48 (Fla. 2007)........................ 1

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

Bogle v. Florida, 516 U.S. 978 (1995).......................... 6

Bogle v. State, 213 So.3d 833 (Fla. 2017)...................... 6

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).......................... 6

Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)............ 6

Dobbert v. Florida, 432 U.S. 282 (1977)........................ 5

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

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

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

Hamilton v. Florida, 524 U.S. 956 (1998)....................... 6

Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017).......... 6

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

Hitchcock v. State, 2017 WL 3431500 (Fla. Aug. 10, 2017). 2, 6, 7

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

iii

37a

Jones v. State, 2017 WL 4296370 (Fla. 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, 5

Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017)..... 5, 7

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

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

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

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

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).......................... 5

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).......................... 6

Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............. 6

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).................... 6

Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)....... 6

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

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

iv

38a

OTHER AUTHORITIES

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

v

39a

STATEMENT OF THE CASE AND FACTS

Appellant, Michael Bell, was convicted of first-degree murder

and was sentenced to death after a unanimous jury recommendation.

Bell v. State, 699 So.2d 674, 676 (Fla. 1997).

The judgment and

sentence became final upon denial of certiorari by the United

States Supreme Court on February 23, 1998.

Bell v. Florida, 522

U.S. 1123 (1998); 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

postconviction

motion and denied a previous writ of habeas corpus.

Bell v. State,

965 So.2d 48 (Fla. 2007).

The United States Supreme Court again

denied

v.

certiorari.

Bell

Florida,

552

U.S.

1011

(2007).

Appellant sought a writ of habeas corpus in federal court, and the

Eleventh Circuit affirmed the denial of the writ by the United

States District Court for the Middle District of Florida.

Bell v.

Fla. Atty Gen., No. 09-10782, 2012 WL 386253 (11th Cir. 2012).

The United States Supreme Court again denied certiorari.

Bell v.

Bondi, 134 S.Ct. 2290 (2014).

On

January

6,

2017,

Appellant

filed

a

successive

post-

conviction motion, which was denied by the circuit court on March

9, 2017.

On June 5, 2017, Appellant filed a notice of appeal.

On

June 7, 2017, this Court stayed the appeal pending the disposition

of

Hitchcock.

On

August

10,

2017,

this

Court

affirmed

the

1

40a

conviction and sentence in Hitchcock in accordance with this

Court’s decision in Asay.

Hitchcock v. State, No. SC17-445, 2017

WL 3431500, *2 (Fla. Aug. 10, 2017); Asay v. State, 210 So.3d 1

(Fla. 2016).

On September 25, 2017, this Court issued an order

for 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.”

On October 16, 2017, Appellant

filed his “Appellant’s Response to September 25, 2017 Order to

Show

Cause”

(Response).

This

is

the

Appellee’s

reply

to

Appellant’s 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

In

Asay,

this

Court

held

that

Hurst

v.

State

is

not

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

to the June 24, 2002, decision in Ring.

Asay, 210 So.3d at 22;

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,

2

41a

1991, and thus Asay was not eligible for any relief under Hurst.

Asay, 210 So.3d at 8.

In

Asay,

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

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

a

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

3

42a

held that Ring did not create a substantive constitutional rule

and is not retroactive, and Hurst is based on Ring, Hurst is also

not a substantive constitutional rule, nor is it retroactive under

federal law.

Appellant asserts the Eleventh Circuit declined to extend

Hurst retroactively because they were bound by a narrow standard

of review.

However, the Eleventh Circuit denied Hurst relief

because 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 to death-penalty cases already final on direct

review.).”

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,

or

an

unreasonable

4

43a

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

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

of

the

decision

date

in

Hurst,

benefits

more

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.

5

44a

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

1

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 (Fla. 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 in final 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,

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

6

45a

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,

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

as

in

Hitchcock,

Appellant

raises

various

constitutional provisions to argue that Hurst v. State should be

retroactively applied to him.

reaffirmed

by

Hitchcock,

retroactively to Appellant.

However, just as in Asay, as

Hurst

v.

State

does

not

apply

This case became final on February

So.3d 399, 400 (Fla. Jan. 19, 2017)(sentence final in 1993; see Gaskin

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

7

46a

23, 1998, which is prior to the June 24, 2002, decision in Ring.

As such, Hurst v. State is not retroactive to this case. 2

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.

2

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).

8

47a

CONCLUSION

WHEREFORE, this Court should affirm the denial of Appellant’s

post-conviction motion and affirm the conviction and sentence.

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

9

48a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 20th 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: Robert Norgard, Esq.,

at norgardlaw@verizon.net, 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

10

49a

Filing # 63789465 E-Filed 11/06/2017 10:40:47 AM

No. SC17-1045

IN THE

Supreme Court of Florida

___________________________________________________________

MICHAEL BERNARD BELL,

RECEIVED, 11/06/2017 10:43:26 AM, Clerk, Supreme Court

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S REPLY IN SUPPORT OF RESPONSE TO

SEPTEMBER 25, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Robert A. Norgard

Attorney at Law

P.O. Box 811

Bartow, FL 33831

(863) 533-8556

Norgardlaw@verizon.net

Fla. Bar No. 322059

Counsel for Appellant

50a

ARGUMENT

I.

The State is incorrect that the state-law Witt test is the only retroactivity

doctrine this Court need follow

The State incorrectly asserts that this Court used the appropriate test for

retroactivity in Asay v. State, 210 So. 3d 1 (Fla. 2016), where it applied the statelaw-based retroactivity test from Witt v. State, 387 So. 2d 922 (Fla. 1980), to hold

that Hurst is not retroactive to any defendant whose conviction was final when the

United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). While

states are permitted to develop their own retroactivity doctrines, they must still

abide by federal constitutional requirements. The United States Supreme Court

made clear in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), “when a new

substantive rule of constitutional law controls the outcome of a case, the

Constitution requires state collateral review courts to give retroactive effect to that

rule.” Id. at 729. Here, as Mr. Bell explained in his initial response, Hurst was a

substantive new rule that requires retroactive effect. See Appellant’s Response,

p.15.

II.

The State is incorrect that prior decisions by this Court and the

Eleventh Circuit already addressed Appellant’s federal retroactivity

arguments

The State is incorrect in its claim that both state and federal courts have

already rejected Mr. Bell’s federal retroactivity arguments.

The State erroneously suggests that Appellant “raises various constitutional

1

51a

provisions” that have already been rejected in Hitchcock v. State, No. SC17-445,

2017 WL 3431500 (Fla. Aug. 10, 2017), and Asay. See State’s Resp. at 7. This

Court’s decision in Hitchcock did not explicitly address or reject any of the federal

retroactivity arguments in Mr. Bell’s response to the order to show cause. See

Appellant’s Resp. at 3-15.

This Court’s opinion in Hitchcock relied exclusively on the reasoning in

Asay v. State, 210 So. 3d 1 (Fla. 2016). As the State acknowledges, the Court’s

decision in Asay rested entirely on the state retroactivity law articulated in Witt.

See State’s Resp. at 3 (In Asay, “[t]his Court applied the Witt analysis for

retroactivity under state law”); see also 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.”).1 Asay did not address whether federal law required the Hurst

decisions to be applied retroactively, and certainly did not address the federal

retroactivity arguments raised in Mr. Bell’s response to the order to show cause in

this proceeding. Namely, Asay did not address 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

1

As this Court has repeatedly emphasized, Witt addresses retroactivity as a matter

of state law, which is separate and distinct from federal retroactivity analysis. See,

e.g., Falcon v. State, 162 So. 3d 954, 955-56 (Fla. 2015).

2

52a

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 in light of Montgomery.

Hitchcock, in relying totally on Asay, also did not explicitly address or reject

Appellant’s federal retroactivity arguments. See Hitchcock, 2017 WL 3431500, at

*1 (“We affirm because we agree with the circuit court that our decision 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.”). The State’s response here 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 to Ring.”

State’s Resp. at 7 (citing Hitchcock, 2017 WL 3431500, at *2) (emphasis added).

But the Hitchcock Court’s reference to “constitutional provisions” cannot be

reasonably read to address Appellant’s federal retroactivity arguments, as the very

next sentence in Hitchcock reads: “As such, these arguments were rejected when

we decided Asay.”). Hitchcock, 2017 WL 3431500, at *2. As explained, Asay

rested its analysis entirely on state retroactivity law and the Florida Constitution.

3

53a

During the nearly eight months between this Court’s decisions in Asay and

Hitchcock, many Hurst defendants have raised federal retroactivity arguments in

this Court and the circuit courts, explaining that Asay did not resolve those matters

in its exclusively state-law analysis and imploring that federal law be addressed.

Those defendants, appellants, and petitioners, as Mr. Bell does here, advanced

federal retroactivity arguments under the Eighth and Fourteenth Amendments, as

well as the Supremacy Clause and Montgomery. If this Court had intended to put

those arguments to rest in Hitchcock, it could have done so. But any fair reading of

Hitchcock leads to the conclusion that those issues remain unresolved in light of

the Court’s wholesale reliance on Asay. Indeed, Hitchcock neither mentions the

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

death penalty, nor the Fourteenth Amendment’s Equal Protection and Due Process

Clauses. Nor does Hitchcock cite Montgomery or otherwise explain why the

Supremacy Clause does not require the substantive rules announced in the Hurst

decisions to be retroactively applied by state courts. The State’s response to the

order to show cause in this case does not contend otherwise.2

2

The State refers to twenty-three other cases where, like Hitchcock, this Court

relied on Asay’s state-law retroactivity principles to deny relief because the

defendants’ sentences were final before Ring. Because these cases did not address

federal retroactivity arguments like those Appellant makes here, they do not

preclude relief in this case.

4

54a

The State also suggests that Mr. Bell’s federal arguments have been

addressed in the Eleventh Circuit’s decision in Lambrix v. Sec’y, Fla. Dep’t of

Corr., No. 17-14413, 2017 WL 4416205 (11th Cir. Oct. 5, 2017). Lambrix is not

precedential in this Court and was decided in the context of the current federal

habeas statute, which dramatically restricts federal review of state-court decisions.

This Court’s application of federal constitutional protections, on the other hand, is

not circumscribed. More importantly, Lambrix dealt with an idiosyncratic issue.

Contrary to the State’s assertion that Lambrix found that the Hurst decisions are

not retroactive under federal law, see State’s Resp. at 4, Lambrix actually dealt

with the “retroactivity” of Florida’s new capital sentencing statute and did not

squarely address the retroactivity of the constitutional rules arising from the Hurst

decisions. Similar idiosyncratic presentations also render inapplicable to Mr. Bell

this Court’s recent 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).

Finally, the State relies on Schriro v. Summerlin, 542 U.S. 348, 358 (2004),

for the proposition that even under federal law, the United States Supreme Court’s

ruling in Summerlin—that Ring is not a substantive new rule and thus not

retroactive in a federal habeas proceeding—means that Hurst is also not retroactive

5

55a

in any proceeding. See State’s Resp. at 3-4. However, this argument speciously

glosses over the differences between Arizona’s former capital statute and Florida’s

former capital statute, and the effect that Ring and Hurst had on each one

respectively. As Mr. Bell explained initially, see Appellant’s Resp. at 14-15, the

Arizona statute at issue in Ring and Summerlin did not require fact-finding

regarding the aggravators and their “sufficiency” to justify the death penalty. That

difference is critical for federal retroactivity. 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 the Hurst

decisions where, for the first time, the United States Supreme Court and this Court

found it unconstitutional for a judge alone to make a finding of fact as to the

“sufficiency” of the aggravation.

III.

The State’s blurring of Teague-based retroactivity cutoffs and this

Court’s Ring-based retroactivity cutoff overlooks the equal protection

and due process violations and arbitrary sentencing caused by the Ringbased cutoff

The State’s argument that retroactivity always includes a cutoff is

unpersuasive and exposes the exact equal protection and due process errors and

unconstitutionally arbitrary and capricious sentencing that results from any Ringbased cutoff. As Mr. Bell previously explained, the Ring cutoff takes similarly

situated death row prisoners on collateral review and arbitrarily divides them

depending on when their convictions became final in relation to Ring. See

6

56a

Appellant’s Resp. at 4-7. This differs from Teague v. Lane, 489 U.S. 288 (1989),

which simply asks whether a defendant’s conviction was final at the time the new

rule was announced. See id. at 310. Contrary to the State’s assertion that the Ring

cutoff “benefits more defendants” than Teague would allow, see Appellant’s Resp.

at 5, the Ring cutoff injects into Florida’s death penalty jurisprudence a level of

arbitrariness and capriciousness—and also denial of equal protection and due

process—that is not present in typical circumstances where retroactivity is

withheld based on widely-recognized pragmatic necessity for courts to evolve

constitutional protections prospectively without undue cost to the finality of

preexisting judgments.

A Hurst retroactivity cutoff at Ring inaugurates a degree of capriciousness

that far exceeds the level justified by “normal” jurisprudence. To see why this is

so, one need only consider how Florida’s pre-Ring inmates do and do not differ

from their post-Ring peers. The two groups were both sentenced under a procedure

that allowed death sentences to be predicated upon factual findings not tested by a

jury trial. But inmates whose death sentences became final before Ring have been

on death row longer than their post-Ring counterparts and 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.

7

57a

Pre-Ring inmates also are more likely than their post-Ring counterparts to

have been sent to death row under standards that would not produce a capital

sentence—or even a capital prosecution—under the conventions of decency

prevailing today. In the generation since Ring, prosecutors and juries have been

increasingly unlikely to seek and impose death sentences. A significant number of

cases which terminated in a death verdict before Ring are cases where a death

sentence would not be imposed, or even pursued, in the modern era. And pre-Ring

inmates are more likely to have received death sentences in trials involving

problematic fact-finding: the past two decades have witnessed a broad-spectrum

recognition of the unreliability of numerous kinds of evidence—flawed forensicscience theories and practices, hazardous eyewitness identification testimony, and

so forth—that was accepted without question in pre-Ring capital trials. Doubts that

would cause today’s prosecutors, juries, and judges to hesitate to seek or impose a

death sentence were unrecognized in the pre-Ring era.

Taken together, these considerations s that a Ring-based retroactivity cutoff

involves a level of caprice that exceeds that tolerated by standard-fare retroactivity

rules. A Ring cutoff’s denial of relief in precisely the class of cases in which relief

Makes the most sense is irremediably perverse and inconsistent with the Eighth

8

58a

and Fourteenth Amendments.3

IV.

The State’s “harmless error” arguments are inconsistent with the

United States Constitution

The State’s “harmless error” arguments rely entirely on the unconstitutional

bright-line test, established in Davis v. State, 207 So. 3d 142, 176 (Fla. 2016),

holding that Hurst errors are per se harmless in every unanimous-recommendation

case. See State’s Resp. at 8 n.2. The State ignores Mr. Bell’s arguments that this

bright-line test is unconstitutional. See Appellant’s Resp. at 15-20.

A 12-0 recommendation does not demonstrate that a jury in a constitutional

proceeding would have made the three unanimous, beyond-a-reasonable-doubt

findings required by Hurst and the Sixth and Eighth Amendments (the existence of

specific aggravating factors, whether those specific aggravators are together

“sufficient” to impose the death penalty, and whether those specific aggravators

together outweigh the mitigation). Hurst v. State, 202 So. 3d 40, 53-59 (Fla. 2016).

3

The State also suggests that any interest in finality outweighs Mr. Bell’s

constitutional rights. However, the State relies on Penry v. Lynaugh, 492 U.S. 302

(1989) in making this assertion. Penry itself makes clear that finality does not

outweigh constitutional rights:

[A] new rule placing a certain class of individuals beyond the State’s

power to punish by death is analogous to a new rule placing certain

conduct beyond the State’s power to punish at all. In both cases, the

Constitution itself deprives the State of the power to impose a certain

penalty, and the finality and comity concerns . . . have little force.

Id. at 2953.

9

59a

Moreover, as Mr. Bell argued in the circuit court and this Court, the

uncertainty as to what jurors would have decided in a constitutional proceeding is

exacerbated by the jury being instructed that its role was merely 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. 169448, 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”).

Finally, any reliance on the advisory jury recommendation for harmlesserror 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), because the recommendation does not constitute a constitutionally-valid

“verdict” grounded in fact-finding governed by the beyond-a-reasonable-doubt

standard.

CONCLUSION

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

applied

retroactively

and

vacate

10

Appellant’s

death

sentence.

60a

Respectfully submitted,

/s/ Robert A. Norgard

Robert A. Norgard

Attorney at Law

P.O. Box 811

Bartow, FL 33831

(863) 533-8556

norgardlaw@verizon.net

Fla. Bar No.: 322059

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2017, the foregoing was electronically

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

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

/s/ Robert A. Norgard

Robert A. Norgard

61a

5/21/2018

Home

Florida Death-Penalty Appeals Decided in Light of Hurst | Death Penalty Information Center

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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

N

N

Allred, Andrew

Seminole

N

WAIVED JURY

Alston, Pressley Bernard

Duval

Y

N

Altersberger, Joshua Lee

Highlands

N

Anderson, Charles L.

Broward

Anderson, Richard

Jury Vote(s)

Date of Court

Order

Y

4/6/17

N

11/16/17

9-3

N

1/22/18

N

9-3

Y

4/27/17

N

N

8-4

Y

3/9/17

Hillsborough

Y

N

11-1

N

1/26/18

Archer, Robin Lee

Escambia

Y

N

7-5

N

3/17/17

Armstrong, Lancelot

Uriley

Broward

N

N

9-3

Y

1/19/17

Asay, Marc

Duval

Y

N

9-3, 9-3

N (EXECUTED)

12/22/16

Atwater, Jeffrey Lee

Pinellas

Y

N

11-1

N

1/23/18

Ault, Howard Steven

Broward

N

N

9-3, 10-2

Y

3/9/17

Bailey, Robert J.

Bay

N

N

11-1

Y

7/6/17

Baker, Cornelius

Flagler

N

N

9-3

Y

3/23/17

Banks, Donald

Duval

N

N

10-2

Y

4/20/17

Bargo, Michael Shane

Marion

N

N

10-2

Y

6/29/17

Barnhill, Arthur

Seminole

N

N

9-3

Y

2/20/17

Barwick, Darryl Brian

Bay

Y

Y

12-0

N

2/28/18

Bates, Kayle Barrington

Bay

Y

N

9-3

N

1/22/18

Beasley, Curtis W.

Polk

Y

N

10-2

N

1/23/18

Belcher, James

Duval

N

N

9-3

Y

11/2/17

Bell, Michael

Duval

Y

Y

12-0, 12-0

N

1/29/18

Bevel, Thomas

Duval

N

N

8-4, 12-0

Y*

6/15/17

Booker, Stephen Todd

Duval

Y

N

8-4

N

1/30/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

10-2

Death Sentence

Reversed?

62a

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5/21/2018

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

Y

Y

12-0

N

1/29/18

Braddy, Harrel

Miami-Dade

N

N

11-1

Y

6/15/17

Bradley, Brandon Lee

Brevard

N

N

10-2

Y

3/30/17

Bradley, Donald

Clay

Y

N

10-2

N

1/22/18

Branch, Eric Scott

Escambia

Y

N

10-2

N (EXECUTED)

1/22/18

Brookins, Elijah

Gadsden

N

N

10-2

Y

4/20/17

Brooks, Lamar

Okaloosa

N

N

9-3, 11-1

Y

3/10/17

Brown, Paul Alfred

Hillsborough

Y

N

7-5

N

1/29/18

Brown, Paul Anthony

Volusia

Y

Y

12-0

N

2/28/18

Burns, Daniel Jr.

Manatee

Y

Y

12-0

N

1/23/18

Buzia, John

Seminole

N

N

8-4

Y

4/6/17

Byrd, Milford Wade

Hillsborough

Y

Unknown

Unknown

N

2/28/18

Calloway, Tavares David

Miami-Dade

N

N

7-5, 7-5, 7-5,

7-5, 7-5

Y

1/26/17

Campbell, John

Citrus

N

N

8-4

Y

8/30/17

Card, James

Bay

N

N

11-1

Y

5/4/17

Carr, Emilia

Marion

N

N

7-5

Y

2/7/17

Carter, Pinkney

Duval

N

N

9-3, 8-4

Y

10/4//17

Caylor, Matthew

Bay

N

N

8-4

Y

5/18/17

Clark, Ronald Wayne Jr.

Duval

Y

N

11-1

N

1/23/18

Cole, Loran

Marion

Y

Y

12-0

N

1/23/18

Cole, Tiffany Ann

Duval

N

N

9-3, 9-3

Y

6/29/17

Conde, Rory

Miami-Dade

N

N

9-3

Y

8/31/17

Consalvo, Robert

Broward

Y

N

11-1

N

1/31/18

Cox, Allen

Lake

N

N

10-2

Y

7/23/17

Cozzie, Steven Anthony

Walton

N

Y

12-0

N

5/11/17

Crain, Willie Seth

Hillsborough

N

Y

12-0

N

4/5/18

Damren, Floyd William

Clay

Y

Y

12-0

N

2/2/18

Darling, Dolan a/k/a

Sean Smith

Orange

N

N

11-1

Y

3/29/17

Davis, Adam W.

Hillsborough

N

N

7-5

Y

5/2/17

Davis, Barry T.

Walton

N

N

9-3, 10-2

Y

5/11/17

Davis, Jr., Leon

Polk

N

Y

12-0, 12-0, 8-4

N

11/10/16

Davis, Jr., Leon

Polk

N

WAIVED JURY

N

11/10/16

Davis, Mark Allen

Pinellas

Y

N

8-4

N

1/29/18

Davis, Toney D.

Duval

Y

N

11-1

N

2/17/17

Dennis, Labrant

Miami-Dade

N

N

11-1, 11-1

Y

7/7/17

Deparvine, Williams

James

Hillsborough

N

N

8-4, 8-4

Y

4/6/17

Derrick, Samuel Jason

Pasco

Y

N

7-5

N

2/2/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

63a

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5/21/2018

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

N

WAIVED JURY

Deviney, Randall

Duval

N

N

Diaz, Joel

Lee

N

Dillbeck, Donald David

Leon

Doorbal, Noel

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

N

11/16/17

8-4

Y

3/23/17

N

9-3

Y

6/15/17

Y

N

8-4

N

1/24/18

Miami-Dade

N

N

8-4, 8-4

Y

9/20/17

Doty, Wayne

Bradford

N

N

10-2

Y

8/7/17

Douglas, Luther

Duval

N

N

11-1

Y

6/29/17

Dubose, Rasheem

Duval

N

N

8-4

Y

2/9/17

Durousseau, Paul

Duval

N

N

10-2

Y

1/31/17

Eaglin, Dwight

Charlotte

N

N

8-4, 8-4

Y

4/3/17

England, Richard

Volusia

N

N

8-4

Y

5/22/17

Evans, Paul H.

Indian River

N

N

9-3

Y

3/20/17

Evans, Steven Maurice

Orange

Y

N

11-1

N

1/24/18

Evans, Wydell Jody

Brevard

N

N

10-2

Y

Finney, Charles

Hillsborough

Y

N

9-3

N

1/26/18

Floyd, Maurice Lamar

Putnam

N

N

11-1

Y

5/17/17

Ford, James D.

Charlotte

Y

N

11-1, 11-1

N

1/23/18

Foster, Charles

Bay

Y

N

8-4

N

1/29/18

Foster, Kevin Don

Lee

Y

N

9-3

N

1/29/18

Fotopoulos,

Konstantinos

Volusia

Y

N

8-4, 8-4

N

1/29/18

Frances, David

Orange

N

N

9-3, 10-2

Y

3/29/17

Franklin, Richard P.

Columbia

N

N

9-3

Y

11/23/16

Gamble, Guy R.

Lake

Y

N

10-2

N

1/29/18

Gaskin, Louis

Flagler

Y

N

8-4, 8-4

N

2/28/18

Geralds, Mark Allen

Bay

Y

Y

12-0

N

2/28/18

Glover, Dennis T.

Duval

N

N

10-2

Y

9/14/17

Gonzalez, Leonard

Escambia

N

N

10-2

Y

5/23/17

Gonzalez, Ricardo

Miami-Dade

Y

N

8-4

N

3/23/18

Gordon, Robert R.

Pinellas

Y

N

9-3

N

1/31/18

Gregory, William

Volusia

N

N

7-5, 7-5

Y

8/31/17

Griffin, Michael Allen

Miami-Dade

Y

N

10-2

N

2/2/18

Grim, Norman

Santa Rosa

N

Y

12-0

N

3/29/18

Guardado, Jesse

Walton

N

Y

12-0

N

5/11/17

Gudinas, Thomas Lee

Collier

Y

N

10-2

N

1/30/18

Guzman, James

Volusia

N

N

11-1

Y

2/22/18

Guzman, Victor

Miami-Dade

N

N

7-5

Y

4/6/17

Hall, Donte Jermaine

Lake

N

N

8-4

Y

6/15/17

Hall, Enoch D.

Volusia

N

Y

12-0

N

2/9/17

Hamilton, Richard

Hamilton

Y

N

10-2

N

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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

N

N

9-3

Y

5/4/17

Hannon, Patrick

Hillsborough

Y

Y

12-0

N (EXECUTED)

11/1/17

Hartley, Kenneth

Duval

Y

N

9-3

N

1/26/18

Hayward, Steven

St. Lucie

N

N

8-4

Y

3/24/17

Heath, Ronald Palmer

Alachua

Y

N

10-2

N

2/28/18

Hernandez, Michael

Santa Rosa

N

N

11-1

Y

5/11/17

Hernandez-Alberto,

Pedro

Hillsborough

N

N

10-2, 10-2

Y

5/9/17

Hertz, Gerry

Wakulla

N

N

10-2, 10-2

Y

5/18/17

Heyne, Justin

Brevard

N

N

10-2, 8-4

Y

4/6/17

Hitchcock, James

Orange

Y

N

10-2

N

8/10/17

Hobart, Robert

Santa Rosa

N

N

7-5

Y

2/21/18

Hodges, George

Michael

Hillsborough

Y

N

10-2

N

2/2/18

Hodges, Willie James

Escambia

N

N

10-2

Y

3/16/17

Hojan, Gerhard

Broward

N

N

9-3, 9-3

Y

1/31/17

Huggins, John

Orange

N

N

9-3

Y

5/23/17

Hunter, Jerone

Volusia

N

N

10-2, 10-2, 93, 9-3

Y

6/16/17

Hurst, Timothy

Escambia

N

N

7-5

Y

10/14/16

Hutchinson, Jeffrey

Okaloosa

N

WAIVED JURY

WAIVED

JURY

N

3/15/18

Israel, Connie Ray

Duval

N

N

7-5

Y

3/21/17

Jackson, Etheria Verdell

Duval

Y

N

7-5

N

1/24/18

Jackson, Kenneth R.

Hillsborough

N

N

11-1

Y

3/23/17

Jackson, Michael James

Duval

N

N

8-4, 8-4

Y

6/9/17

Jackson, Ray

Volusia

N

N

9-3

Y

4/24/17

Jeffries, Kevin G.

Bay

N

N

10-2

Y

7/13/17

Jeffries, Sonny Ray

Orange

Y

N

11-1

N

1/26/18

Jennings, Brandy Bain

Collier

Y

N

10-2, 10-2, 102

N

1/29/18

Johnson, Emanuel

Sarasota

Y

N

8-4, 10-2

N

2/2/18

Johnson, Paul Beasley

Polk

N

N

11-1, 11-1, 111

Y

12/1/16

Johnson, Richard Allen

St. Lucie

N

N

11-1

Y

3/24/17

Johnson, Ronnie

Miami-Dade

Y

N

7-5, 9-3

N

3/27/18

Johnston, Ray

Hillsborough

N

N

11-1

Y

7/21/17

Johnston, Ray

Hillsborough

N

Y

12-0

N

7/21/17

Jones, Henry Lee

Brevard

N

Y

12-0

N

3/2/17

Jones, Marvin Burnett

Duval

Y

N

9-3

N

1/22/18

Jones, Victor

Miami-Dade

Y

Y/N

10-2, 12-0

N

9/28/17

Jordan, Joseph

Volusia

N

N

10-2

Y

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

N

Y

12-0

N

1/31/17

Kelley, William H.

Highlands

Y

N

8-3 [not a typo] N

1/26/18

King, Cecil

Duval

N

N

8-4

Y

7/12/17

King, Michael L.

Sarasota

N

Y

12-0

N

1/26/17

Kirkman, Vahtiece

Brevard

N

Y

10-2

Y

1/11/18

Knight, Richard

Broward

N

Y

12-0, 12-0

N

1/31/17

Kocaker, Genghis

Pinellas

N

N

11-1

Y

10/6/17

Kokal, Gregory Alan

Duval

Y

Y

12-0

N

1/24/18

Kopsho, William M.

Marion

N

N

10-2

Y

1/19/17

Krawczuk, Anton

Duval

Y

Y

12-0

N

1/31/18

Lamarca, Anthony

Pinellas

Y

N

11-1

N

1/30/18

Lambrix, Cary Michael

Glades

Y

N

8-4, 10-2

N (EXECUTED)

9/29/17

Lawrence, Gary

Santa Rosa

Y

N

9-3

N

2/2/18

Lebron, Joel

Osceola

N

N

7-5

Y

4/20/17

Lightbourne, Ian

Marion

Y

N

Unrecorded

N

1/26/18

Long, Robert Joe

Hillsborough

Y

Y

12-0

N

1/29/18

Lucas, Harold Gene

Lee

Y

N

11-1

N

1/24/18

Marquard, John

St. Johns

Y

Y

12-0

N

1/24/18

Martin, David

Clay

N

N

9-3

Y

7/13/17

Matthews, Douglas

Volusia

N

N

10-2

Y

12/5/17

McCoy, Richard (aka

Jamil Rashid)

Duval

N

N

7-5

Y

9/6/17

McCoy, Thomas

Walton

N

N

11-1

Y

11/8/17

McGirth, Renaldo Devon

Marion

N

N

11-1

Y

1/26/17

McKenzie, Norman

Blake

St. Johns

N

N

10-2, 10-2

Y

6/19/17

McLean, Derrick

Orange

N

N

9-3

Y

4/24/17

McMillian, Justin

Duval

N

N

10-2

Y

4/13/17

Melton, Antonio Lebaron

Escambia

Y

N

8-4

N

2/2/18

Mendoza, Marbel

Miami-Dade

Y

N

7-5

N

1/30/18

Merck, Jr., Troy

Pinellas

N

N

9-3

Y

5/5/17

Middleton, Dale

Okeechobee

N

Y

12-0

N

3/9/17

Miller, David Jr.

Duval

Y

N

7-5

N

1/31/18

Miller, Lionel Michael

Orange

N

N

11-1

Y

5/8/17

Morton, Alvin

Pasco

Y

N

11-1, 11-1

N

2/2/18

Morris, Dontae

Hillsborough

N

Y

12-0, 12-0

N

4/27/17

Morris, Dontae

Hillsborough

N

N

10-2

Y

1/11/18

Morris, Robert D.

Polk

Y

N

8-4

N

1/26/18

Mosley, John F.

Duval

N

N

8-4

Y

12/22/16

Mullens, Khadafy

Pinellas

N

WAIVED JURY

N

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

N

N

11-1

Y

4/4/17

Nelson, Joshua D.

Lee

Y

Y

12-0

N

1/31/18

Nelson, Micah

Polk

N

N

9-3

Y

3/8/17

Newberry, Rodney

Duval

N

N

8-4

Y

4/6/17

Oats, Jr. Sonny Boy

Marion

Y

UNKNOWN

N

5/25/17

Occhicone, Dominick A.

Pasco

Y

N

7-5

N

1/30/18

Okafor, Bessman

Orange

N

N

11-1

Y

6/8/17

Oliver, Terence Tabius

Brevard

N

Y

12-0, 12-0

N

4/6/17

Orme, Roderick

Bay

N

N

11-1

Y

3/30/17

Overton, Thomas M.

Monroe

Y

N

8-4, 9-3

N

2/2/18

Pace, Bruce Douglas

Santa Rosa

Y

N

7-5

N

1/30/18

Pagan, Alex

Broward

N

N

7-5, 7-5

Y

2/1/18

Parker, J.B.

Martin

N

N

11-1

Y

4/20/17

Partin, Phillup Alan

Pasco

N

N

9-3

Y

3/27/17

Pasha, Khalid

Hillsborough

N

N

11-1, 11-1

Y

5/11/17

Peterka, Daniel Jon

Okaloosa

Y

N

8-4

N

1/22/18

Peterson, Robert Earl

Duval

N

N

7-5

Y

7/6/17

Pham, Tai

Seminole

N

N

10-2

Y

3/22/17

Phillips, Galante

Duval

N

N

7-5

Y

4/20/17

Phillips, Harry Franklin

Miami-Dade

Y

N

7-5

N

1/22/18

Philmore, Lenard James

Martin

N

Y

12-0

N

1/25/18

Pietri, Norberto

Palm Beach

Y

N

8-4

N

2/2/18

Poole, Mark

Polk

N

N

11-1

Y

3/31/17

Pope, Thomas Dewey

Broward

Y

N

9-3

N

2/28/18

Puiatti, Carl

Pasco

Y

N

11-1

N

1/23/18

Quince, Kenneth Darcell

Volusia

Y

WAIVED JURY

N

1/18/18

Raleigh, Bobby Allen

Volusia

Y

Y

12-0, 12-0

N

2/28/18

Reaves, William

Indian River

Y

N

10-2

N

5/2/18

Reynolds, Michael

Seminole

N

Y

12-0, 12-0

N

4/5/18

Rhodes, Richard Wallace Pinellas

Y

N

10-2

N

1/23/18

Rigterink, Thomas

William

Polk

N

N

7-5, 7-5

Y

4/6/17

Rimmer, Robert

Broward

N

N

9-3, 9-3

Y

6/29/17

Robards, Richard

Pinellas

N

N

7-5, 7-5

Y

4/6/17

Rodgers, Jeremiah

Santa Rosa

N

WAIVED JURY

N

2/8/18

Rodgers, Theodore

Orange

N

N

8-4

Y

4/3/17

Rogers, Glen Edward

Hillsborough

Y

Y

12-0

N

1/30/18

Rodriguez, Manuel

Antonio

Miami-Dade

Y

Y

12-0, 12-0, 120

N

1/31/18

San Martin, Pablo

Miami-Dade

Y

N

9-3

N

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

N

N

10-2, 9-3

Y

4/7/17

Seibert, Michael

Broward

N

N

9-3

Y

6/22/17

Serrano, Nelson

Polk

N

N

9-3, 9-3, 9-3,

9-3

Y

5/11/17

Sexton, John

Pasco

N

N

10-2

Y

6/29/17

Silvia, William

Seminole

N

N

11-1

Y

2/20/17

Simmons, Eric Lee

Lake

N

N

8-4

Y

12/22/16

Sireci, Henry Perry

Orange

Y

N

11-1

N

1/31/18

Sliney, Jack R.

Charlotte

Y

N

7-5

N

1/31/18

Smith, Corey

Miami-Dade

N

N

9-3, 10-2

Y

3/16/17

Smith, Joseph

Sarasota

N

N

10-2

Y

7/13/17

Smith, Stephen V.

Charlotte

N

Y

9-3

Y

4/21/17

Smithers, Samuel

Hillsborough

N

Y

12-0, 12-0

N

3/29/18

Snelgrove, David B.

Flagler

N

N

8-4, 8-4

Y

5/11/17

Sochor, Dennis

Broward

Y

N

10-2

N

1/30/18

Stein, Steven Edward

Duval

Y

N

10-2

N

1/31/18

Stephens, Jason

Demetrius

Duval

Y

N

9-3

N

1/22/18

Stewart, Kenneth Allen

Hillsborough

Y

N

10-2

Y

4/25/17

Stewart, Kenneth Allen

Hillsborough

Y

N

10-2

N

1/26/18

Sweet, William Earl

Duval

Y

N

10-2

N

1/24/18

Suggs, Ernest

Walton

Y

N

7-5

N

3/17/17

Tanzi, Michael

Monroe

N

Y

12-0

N

4/5/18

Taylor, John Calvin

Clay

N

N

10-2

Y

10/12/17

Taylor, Perry

Hillsborough

Y

N

8-4

N

5/3/18

Taylor, Steven Richard

Duval

Y

N

10-2

N

1/24/18

Taylor, William Kenneth

Hillsborough

N

Y

12-0

N

4/5/18

Thomas, William

Gregory

Duval

Y

N

11-1

N

1/24/18

Trease, Robert J.

Sarasota

Y

N

11-1

N

1/24/18

Trepal, George

Polk

Y

N

9-3

N

1/26/18

Trotter, Melvin

Manatee

Y

N

11-1

N

1/26/18

Troy, John

Sarasota

N

N

11-1

Y

6/13/17

Truehill, Quentin

St. Johns

N

Y

12-0

N

2/23/17

Tundidor, Randy W.

Broward

N

Y

12-0

N

4/27/17

Turner, James Daniel

St. Johns

N

N

10-2

Y

6/19/17

Twilegar, Mark

Lee

Y

WAIVED JURY

N

11/2/17

Victorino, Troy

Volusia

N

N

10-2, 10-2, 93, 7-5

Y

6/14/17

Wade, Alan L.

Duval

N

N

11-1, 11-1

Y

5/1/17

Walls, Frank

Okaloosa

Y

Y

12-0

N

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

N

N

10-2

Y

5/23/17

White, Dwayne

Seminole

N

N

8-4

Y

3/30/17

Whitfield, Ernest

Sarasota

Y

N

7-5

Y

1/30/18

White, William Melvin

Orange

N

N

10-2

Y

4/20/17

Whitton, Gary Richard

Walton

Y

Y

12-0

N

1/31/18

Willacy, Chadwick

Brevard

Y

N

11-1

N

1/23/18

Williams, Donald Otis

Lake

N

N

9-3

Y

1/19/17

Williams , Ronnie Keith

Broward

N

N

10-2

Y

6/29/17

Windom, Curtis

Orange

Y

Y

12-0, 12-0, 120

N

1/23/18

Wood, Zachary Taylor

Washington

N

Y

12-0

Y**

1/31/17

Woodel, Thomas

Polk

N

N

7-5

Y

8/18/17

Zack, Michael Duane

Escambia

Y

N

11-1

N

6/15/17

Zakrzewski, Edward

Okaloosa

Y

N

7-5, 7-5, 6-6

N

5/25/17

Zommer, Todd

Osceola

N

N

10-2

Y

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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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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