Petition for Writ of Certiorari — Gary Lawrence, Petitioner v. Florida
Supreme Court briefJun 14, 2018
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No. ______
IN THE
Supreme Court of the United States
___________________________________________________________
GARY LAWRENCE,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
____________________________________________________________
On Petition for a Writ of Certiorari to the
Supreme Court of Florida
______________________________________________________________
PETITIONER’S APPENDIX
______________________________________________________________
STACY BIGGART
MATLETHA BENNETTE
Office of the Capital Collateral
Regional Counsel-North Region
1004 DeSoto Park Drive
Tallahassee, Florida 32301
(850) 487-0922
stacy.biggart@ccrc-north.org
matletha.bennette@ccrc-north.org
BILLY H. NOLAS
Counsel of Record
SEAN T. GUNN
KATHERINE A. BLAIR
Office of the Federal Public Defender
Northern District of Florida
Capital Habeas Unit
227 North Bronough St., Suite 4200
Tallahassee, Florida 32301
(850) 942-8818
billy_nolas@fd.org
sean_gunn@fd.org
katherine_blair@fd.org
INDEX TO APPENDIX
Exhibit 1 — Florida Supreme Court Opinion Below (Feb. 2, 2018) .................. 1a
Exhibit 2 — Florida Supreme Court Order to Show Cause
(Sep. 27, 2017) ................................................................................. 5a
Exhibit 3 — Santa Rosa County Circuit Court Order Denying Relief
(July 5, 2017) ................................................................................... 7a
Exhibit 4 — Petitioner/Appellant’s Response to Order to Show Cause
(Oct. 2, 2017) ................................................................................. 11a
Exhibit 5 — Respondent/State’s Response to Order to Show Cause
(Oct. 30, 2017) ............................................................................... 35a
Exhibit 6 — Petitioner/Appellant’s Reply in Support of Response to
Order to Show Cause (Nov. 2, 2017) ............................................ 50a
Exhibit 7 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 64a
(Source: Death Penalty Information Center)
Exhibit 8 — List of Florida Supreme Court Opinions Summarily
Denying Relief in Light of Hitchcock.............................. ............... 74a
EXHIBIT 1
1a
Supreme Court of Florida
____________
No. SC17-1442
____________
GARY LAWRENCE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[February 2, 2018]
PER CURIAM.
We have for review Gary Lawrence’s appeal of the circuit court’s order
denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.851.
This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Lawrence’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 Lawrence’s appeal pending the disposition of
Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017).
2a
After this Court decided Hitchcock, Lawrence responded to this Court’s order to
show cause arguing why Hitchcock should not be dispositive in this case.
After reviewing Lawrence’s response to the order to show cause, as well as
the State’s arguments in reply, we conclude that Lawrence is not entitled to relief.
Lawrence was sentenced to death following a jury’s recommendation for death by
a vote of nine to three. Lawrence v. State, 698 So. 2d 1219, 1221 (Fla. 1997). His
sentence of death became final in 1998. Lawrence v. Florida, 522 U.S. 1080
(1998). Thus, Hurst does not apply retroactively to Lawrence’s sentence of death.
See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the denial of
Lawrence’s motion.
The Court having carefully considered all arguments raised by Lawrence, we
caution that any rehearing motion containing reargument will be stricken. It is so
ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
LEWIS and CANADY, JJ., concur in result.
PARIENTE, J., concurring in result.
I concur in result because I recognize that this Court’s opinion in Hitchcock
v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now
final. However, I continue to adhere to the views expressed in my dissenting
opinion in Hitchcock.
-2-
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An Appeal from the Circuit Court in and for Santa Rosa County,
David Rimmer, Judge - Case No. 571994CF000397XXAXMX
Robert S. Friedman, Capital Collateral Regional Counsel, Stacy R. Biggart,
Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee,
Florida; and Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal
Public Defender, Northern District of Florida, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
-3-
4a
EXHIBIT 2
5a
Filing # 62046145 E-Filed 09/27/2017 09:56:48 AM
Supreme Court of Florida
WEDNESDAY, SEPTEMBER 27, 2017
CASE NO.: SC17-1442
Lower Tribunal No(s).:
571994CF000397XXAXMX
GARY LAWRENCE
Appellant(s)
vs.
STATE OF FLORIDA
Appellee(s)
Appellant shall show cause on or before Tuesday, October 17, 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 Wednesday, November 1, 2017, limited to
no more than 15 pages. Appellant may file a reply to the Appellee’s reply on or
before Monday, November 13, 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:
BILLY H. NOLAS
ALICE B. COPEK
CHARMAINE M. MILLSAPS
6a
EXHIBIT 3
7a
8a
9a
10a
EXHIBIT 4
11a
Filing # 62247232 E-Filed 10/02/2017 11:12:13 AM
No. SC17-1442
IN THE
Supreme Court of Florida
___________________________________________________________
GARY LAWRENCE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________________________________
APPELLANT’S BRIEF IN RESPONSE
TO SEPTEMBER 27, 2017 ORDER TO SHOW CAUSE
_____________________________________________________
Stacy Biggart
Assistant CCRC - North
Office of the Capital Collateral
Regional Counsel - North
1004 DeSoto Park Drive
Tallahassee, FL 32301
stacy.biggart@ccrc-north.org
Florida Bar No. 0089388
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Florida Bar No. 806821
Counsel for Appellant
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TABLE OF CONTENTS
INTRODUCTION....................................................................................................1
REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................2
ARGUMENT ............................................................................................................2
I.
Appellant’s death sentence violates Hurst, and the error is not “harmless”......2
II.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and
should not be applied to Appellant...................................................................6
III.
A.
This Court’s retroactivity cutoff violates the Eighth and Fourteenth
Amendments’ prohibition against arbitrary and capricious imposition
of the death penalty...............................................................................7
B.
This Court’s retroactivity cutoff violates the Fourteenth Amendment’s
guarantee of equal protection and due process.....................................11
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......................13
A.
The Supremacy Clause requires state courts to apply substantive
constitutional rules retroactively to all cases on collateral review........13
B.
The Hurst decisions announced substantive rules that must be applied
retroactively to Appellant under the Supremacy Clause......................15
C.
This Court has an obligation to address Appellant’s federal retroactivity
arguments............................................................................................20
CONCLUSION.......................................................................................................20
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INTRODUCTION
Appellant’s death sentence was imposed pursuant to a capital sentencing
scheme that was ruled unconstitutional by the United States Supreme Court in Hurst
v. Florida, 136 S. Ct. 616 (2016), and this Court in Hurst v. State, 202 So. 3d 40
(Fla. 2016). The issue in this case is whether this Court will continue to apply its
unconstitutional “retroactivity cutoff” to deny Appellant Hurst relief on the ground
that his sentence did not become final at least one day after the 2002 decision in Ring
v. Arizona, 536 U.S. 584 (2002).
This Court has already 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 never addressed Hurst retroactivity as a
matter of federal law, and the Court has consistently applied a state-law cutoff at the
date Ring was decided—June 24, 2002—to deny relief in dozens of other collateral
review cases. The Ring-based cutoff is unconstitutional and should not be applied
to Appellant. Denying Appellant 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. Appellant is entitled
to Hurst retroactivity as a matter of federal law.
The circuit court’s order should not be affirmed in light of Hitchcock v. State,
No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017). There is a petition for a
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writ of certiorari pending in Hitchcock (No. 17-6180). The Court should wait for
the Supreme Court to address the petition before deciding Appellant’s case.
REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING
This appeal presents an important issue of first impression: whether federal
law requires this Court to extend Hurst retroactivity to death sentences that became
final before Ring, rather than cabining Hurst relief to only post-Ring death sentences.
Appellant respectfully requests oral argument on this and related issues pursuant to
Fla. R. App. P. 9.320. Appellant also requests that the Court permit full briefing in
this case in accord with the normal, untruncated rules of appellate practice.
Depriving Appellant the opportunity for full briefing in this case would
constitute an arbitrary deprivation of the vested state right to a mandatory plenary
appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his
Court has a mandatory obligation to review all death penalty cases to ensure that the
death sentence is imposed in accordance with constitutional and statutory
directives.”); See also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks
v. Oklahoma, 447 U.S. 343 (1980).
ARGUMENT
I.
Appellant’s death sentence violates Hurst, and the error is not “harmless”
Appellant was sentenced to death pursuant to a Florida scheme that has been
ruled unconstitutional by the United States Supreme Court and this Court. In Hurst
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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 United States Supreme Court held that the jury, not the judge, must
make the findings of fact required to impose the death penalty. Id.
On remand in Hurst v. State, this Court applied the holding of Hurst v.
Florida, and further held that the Eighth Amendment requires unanimous jury factfinding as to each of the required elements, and also a unanimous recommendation
by the jury to impose the death penalty. 202 So. 3d at 53-59. In addition, the Court
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.
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Appellant’s jury was never asked to make unanimous findings of fact as to
any of the required elements. Instead, after being instructed that its decision was
advisory, and that the ultimate responsibility for imposing a death sentence rested
with the judge, the jury rendered a non-unanimous, generalized recommendation
that the judge sentence Appellant to 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. But the record is clear that Appellant’s jurors were not unanimous
as to whether the death penalty should even be recommended to the court.
The “harmless error” doctrine does not apply to the Hurst error in Appellant’s
case because his pre-Hurst jury recommended the death penalty by a vote of 9 to 3.
This Court’s precedent makes clear that Hurst errors are not harmless where the
defendant’s pre-Hurst jury recommended death by a non-unanimous vote. Dubose
v. State, 210 So. 3d 641, 657 (Fla. 2017) (“[I]n cases where the jury makes a nonunanimous recommendation of death, the Hurst error is not harmless.”). This Court
has declined to apply the harmless error doctrine in every case where the pre-Hurst
jury’s recommendation was not unanimous. 1
1
See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,
2017) (11-1 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury
vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote);
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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. Even if the jury would have found the same aggravators, Florida law does
not authorize death sentences based on the mere existence of an aggravator. 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. That is why this Court has consistently
rejected the idea that a judge’s finding of prior-conviction aggravators is relevant in
the harmless-error analysis of Hurst claims, and has granted Hurst relief despite the
presence of such aggravators. 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”).2
Caylor v. State, 218 So. 3d 416, 425 (Fla. 2017) (8-4 jury vote); Card v. Jones, 219
So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So. 3d 1274, 1289
(Fla. 2017) (10-2 jury vote); Durousseau v. State, 218 So. 3d 405, 414-15 (Fla. Jan.
31, 2017) (10-2 jury vote).
2
Moreover, although this Court’s state-law precedent is sufficient to resolve any
harmless-error inquiry in this case, it should be noted that the United States
Constitution precludes application of the harmless error doctrine because any
attempt to discern what a jury in a constitutional proceeding would have decided
would be impermissibly speculative. See, e.g., Caldwell v. Mississippi, 472 U.S.
320, 328-29 (1985) (explaining that a jury’s belief about its role in death sentencing
can materially affect its decision-making); Sullivan v. Louisiana, 508 U.S. 275, 2795
18a
II.
This Court’s “retroactivity cutoff” at Ring is unconstitutional and should
not be applied to Appellant
This Court has already 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. See, e.g., Mosley v. State, 209 So. 3d 1248 (Fla. 2016). But
the Court has never addressed Hurst retroactivity as a matter of federal law, and the
Court has consistently applied a state-law “cutoff” at the date Ring was decided—
June 24, 2002—to deny relief in dozens of other collateral cases. See, e.g., Asay v.
State, 210 So. 3d 1 (Fla. 2016). The Court recently reaffirmed its retroactivity cutoff
in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017).
This Court’s current Ring-based retroactivity cutoff violates the United States
Constitution and should not be applied to deny Appellant the same Hurst relief being
granted in scores of materially indistinguishable collateral cases. Denying Appellant
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.
80 (1993) (foreclosing application of the harmless-error doctrine to deny relief based
on jury decisions not comporting with Sixth Amendment requirements).
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A.
This Court’s retroactivity cutoff violates the Eighth and
Fourteenth Amendments’ prohibition against arbitrary and
capricious imposition of the death penalty
It has long been established that 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. 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
certain cases in a way that is comparable to being “struck by lightning.” Furman,
408 U.S. at 308. This Court’s current Hurst retroactivity cutoff results in arbitrary
and capricious denials of relief.
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; 3 whether direct appeal counsel
3
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).
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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;4 whether an extension was sought for a rehearing motion and
whether such a motion was filed; whether there was a scrivener’s error necessitating
issuance of a corrected opinion; whether counsel chose to file a petition for a writ of
certiorari in the United States Supreme Court or sought an extension to file such a
petition; and how long a certiorari petition remained pending in the Supreme Court.
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
4
Compare Booker v. State, 773 So. 2d 1079 (Fla. 2017) (this Court’s opinion issued
within one year after all briefs had been submitted, before Ring), with Hall v. State,
201 So. 3d 628 (Fla. 2016) (opinion issued twenty-three months after the last brief
was submitted). If this Court had taken the same amount of time to decide Booker
as it did Hall, Mr. Booker’s death sentence would have become final after Ring.
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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, falls on the other side of this Court’s current retroactivity cutoff.
Other arbitrary factors affecting whether a defendant receives Hurst relief
under this Court’s date-of-Ring-based retroactivity approach include whether a
resentencing based on relief was granted because of an unrelated error. 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 post-conviction 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 Appellant, but who was later
resentenced to death after Ring, would receive Hurst relief and Appellant would not.
Moreover, under the Court’s current rule, some litigants whose Ring claims
were wrongly rejected on the merits during the 2002-2016 period will be denied the
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benefit of Hurst because the Court addressed the issue in a post-conviction rather
than a direct appeal posture. See, e.g., Miller v. State, 926 So. 2d 1243, 1259 (Fla.
2006); Nixon v. State, 932 So. 2d 1009, 1024 (Fla. 2006); Bates v. State, 3 So. 3d
1091, 1106 n.14 (Fla. 2009); Bradley v. State, 33 So. 3d 664, 670 n.6 (Fla. 2010).5
Making Hurst retroactive to only post-Ring sentences also unfairly denies
Hurst access to defendants who were sentenced between Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring. The fundamental unfairness of that result is stark
given that the Supreme Court made clear in Ring that its decision flowed directly
from Apprendi. See Ring, 536 U.S. at 588-89. And in Hurst, the Court repeatedly
stated that Florida’s scheme was incompatible with “Apprendi’s rule,” of which Ring
was an application. 136 S. Ct. at 621. This Court itself has acknowledged that Ring
was an application of Apprendi. See Mosley, 209 So. 3d at 1279-80. This Court’s
drawing of its retroactivity cutoff at Ring instead of Apprendi represents the sort of
capriciousness that is inconsistent with the Eighth Amendment.
5
Even if this Court were to maintain its unconstitutional retroactivity “cutoff” at
Ring, individuals who preserved the substance of the Hurst decisions before Hurst
should receive the retroactive benefit of Hurst under this Court’s “fundamental
fairness” doctrine, which the Court has previously applied in other contexts, see,
e.g., James v. State, 615 So. 2d 668, 669 (Fla. 1993), and which the Court has applied
once in the Hurst context, see Mosley, 209 So. 3d at 1274, but inexplicably never
addressed since. Justice Lewis recently endorsed this preservation approach in
Hitchcock. See 2017 WL 3431500, at *2 (Lewis, J., concurring) (stating that the
Court should “simply entertain Hurst claims for those defendants who properly
presented and preserved the substance of the issue, even before Ring arrived.”).
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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
treatment.” McLaughlin v. Florida, 379 U.S. 184, 191 (1964). 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 . . . .” Eisenstadt v. Baird, 405 U.S. 438, 447 (1972); see also
McLaughlin, 379 U.S. at 191. The Fourteenth Amendment requires that distinctions
in state criminal laws that impinge upon fundamental rights must be strictly
scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Capital
defendants have a fundamental right to a reliable determination of their sentences.
See Lockett v. Ohio, 438 U.S. 586, 604 (1978). When a state draws a line between
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. Far from meeting strict
scrutiny, this Court’s Hurst retroactivity cutoff lacks even a rational connection to
any legitimate state interest. See Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).
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As a due process matter, denying the benefit of Florida’s new post-Hurst
capital sentencing statute to “pre-Ring” defendants like Appellant violates the
Fourteenth Amendment because once a state requires certain sentencing procedures,
it creates Fourteenth Amendment life and liberty interests in those procedures. See,
e.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985) (due process interest in state created
right to direct appeal); Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (liberty interest
in state-created sentencing procedures); Ford v. 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 is established by state law, the
violation of the life and liberty interest it creates is governed by federal constitutional
law. See id. 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.
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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). In Hicks, the
Supreme Court held that the trial court’s failure to instruct the jury that it had the
option to impose an alternative sentence violated the state-created liberty interest
(and federal due process) in having the jury select his sentence from the full range
of alternatives available under state law. 477 U.S. at 343.
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
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law. Montgomery, 136 S. Ct. at 727. The United States Supreme Court reversed,
holding that because the Miller rule was substantive as a matter of federal law, the
state court was obligated to apply it retroactively. See id. at 732-34.
Montgomery clarified that the Supremacy Clause requires state courts to apply
substantive rules retroactively, notwithstanding state-law analysis. Montgomery,
136 S. Ct. at 728-29 (“[W]hen 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.”) (emphasis added). Thus, Montgomery held, “[w]here
state collateral review proceedings permit prisoners to challenge the lawfulness of
their confinement, States cannot refuse to give retroactive effect to a substantive
constitutional right that determines the outcome of that challenge.” Id. at 731-32.
Importantly for purposes of Hurst retroactivity analysis, 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, 132 S. Ct. at 2471. 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
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27a
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. In Miller, the decision
“bar[red] life without parole . . . for all but the rarest of juvenile offenders, those
whose crimes reflect permanent incorrigibility. For that reason, Miller is no less
substantive than are Roper and Graham.” Id. at 734.
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. At least two
substantive rules were established by Hurst v. Florida and Hurst v. State.
First, a Sixth Amendment rule was established requiring that a jury find as
fact: (1) each aggravating circumstance; (2) that those particular aggravating
circumstances together are “sufficient” to justify imposition of the death penalty;
and (3) that those particular aggravating circumstances together outweigh the
mitigation in the case. Hurst v. State, 202 So. 3d at 53-59. Each of those findings
is required to be made by the jury beyond a reasonable doubt. Such findings are
15
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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 those three
beyond-a-reasonable-doubt findings to be made 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.”
Hurst v. State, 202 So. 3d at 60-61. The function of the unanimity rule is to ensure
that Florida’s death-sentencing scheme complies with the Eighth Amendment and
to “achieve the important goal of bringing [Florida’s] capital sentencing laws into
harmony with the direction of the society reflected in [the majority of death penalty]
states and with federal law.” Id. As a matter of federal retroactivity law, the rule is
therefore substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016)
(“[T]his Court has determined whether a new rule is substantive or procedural by
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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 (noting that state’s ability to determine method of enforcing constitutional
rule does not convert rule from substantive to procedural).
The United States Supreme Court’s decision in Welch is illustrative of the
substantive nature of Hurst. In Welch, the Court addressed the retroactivity of the
constitutional rule articulated in Johnson v. United States, 135 S. Ct. 2551, 2560
(2015). In Johnson, the Court held that a federal statute that allowed sentencing
enhancement was unconstitutional. Id. at 2556. In Welch, the Court held that
Johnson’s ruling was substantive because it “affected the reach of the underlying
statute rather than the judicial procedures by which the statute is applied”—therefore
it must be applied retroactively. Welch, 136 S. Ct. at 1265. The Court emphasized
that its determination whether a constitutional rule is substantive or procedural “does
not depend on whether the underlying constitutional guarantee is characterized as
procedural or substantive,” but rather whether “the new rule itself has a procedural
function or a substantive function,” i.e., whether the new rule alters only the
procedures used to obtain the conviction, or alters instead the class of persons the
law punishes. Id. at 1266. In Welch, the Court pointed out that, “[a]fter Johnson,
the same person engaging in the same conduct is no longer subject to the Act and
faces at most 10 years in prison. The residual clause is invalid under Johnson, so it
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can no longer mandate or authorize any sentence.” Id. Thus, “Johnson establishes,
in other words, that even the use of impeccable factfinding procedures could not
legitimate a sentence based on that clause.” Id. “It follows,” the Court held, “that
Johnson is a substantive decision.” Id. (internal quotation omitted).
The same reasoning applies in the Hurst context. 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 factfinding, are substantive constitutional rules as a matter of federal law because they
place certain murders “beyond the State’s power to punish,” Welch, 136 S. Ct. at
1265, with a sentence of death. Following the Hurst decisions, “[e]ven the use of
impeccable factfinding procedures could not legitimate a sentence based on” the
judge-sentencing scheme.
Id.
And in the context of a Welch analysis, 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
necessity places certain individuals beyond the state’s power to impose a death
sentence. The decision in Welch makes clear that a substantive rule, rather than a
procedural rule, resulted from the Hurst decisions. See Welch, 136 S. Ct. at 126465 (a substantive rule “alters . . . the class of persons that the law punishes.”).
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Hurst retroactivity is not undermined by Schriro v. Summerlin, 542 U.S. 348,
364 (2004), where the United States Supreme Court held that Ring was not
retroactive in a federal habeas case. In Ring, the Arizona statute permitted a death
sentence to be imposed on a finding of fact that at least one aggravating factor
existed. 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 the death penalty was an
appropriate sentence. Summerlin acknowledged that if the Court itself “[made] a
certain fact essential to the death penalty . . . [the change] would be substantive.”
542 U.S. at 354. Such a change occurred in Hurst where, for the first time, the Court
found it unconstitutional for a judge alone to find that “sufficient aggravating factors
exist and [t]hat there are insufficient mitigating circumstances to outweigh the
aggravating circumstances.” 136 S. Ct. at 622 (internal citation omitted).
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard in addition to the jury trial right, and the United States Supreme Court
has always regarded proof-beyond-a-reasonable-doubt decisions as 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 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
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thus to be given complete retroactive effect.”); Powell v. Delaware, 153 A.3d 69
(Del. 2016) (holding Hurst retroactive under Delaware’s state Teague-like
retroactivity doctrine and distinguishing Summerlin on the ground that Summerlin
“only addressed the misallocation of fact-finding responsibility (judge versus jury)
and not . . . the applicable burden of proof.”).
C.
This Court has an obligation to address Appellant’s federal
retroactivity arguments
Because this Court is bound by the federal constitution, it has the obligation
to 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”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816).
Addressing those claims meaningfully in the present context requires full
briefing and oral argument. The federal constitutional issues were raised to this
Court in Hitchcock, but this Court ignored them. To dismiss this appeal on the basis
of Hitchcock would compound that error.
CONCLUSION
This Court should hold that federal law requires the Hurst decisions to be
applied retroactively to Appellant, vacate Appellant’s death sentence, and remand to
the circuit court for a new penalty phase or imposition of a life sentence.
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Respectfully submitted,
/s/ Stacy Biggart
Stacy Biggart
Assistant CCRC - North
Office of the Capital Collateral
Regional Counsel - North
1004 DeSoto Park Drive
Tallahassee, FL 32301
stacy.biggart@ccrc-north.org
Florida Bar No. 0089388
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Florida Bar No. 806821
CERTIFICATE OF SERVICE
I hereby certify that on October 2, 2017, the foregoing was electronically
served via the e-portal to Assistant Attorney General Charmaine Millsaps at
charmaine.millsaps@myfloridalegal.com and capapp@myfloridalegal.com.
/s/ Billy H. Nolas
Billy H. Nolas
34a
EXHIBIT 5
35a
Filing # 63479645 E-Filed 10/30/2017 12:23:19 PM
In the Supreme Court of Florida
GARY LAWRENCE,
Appellant,
v.
CASE NO.: SC17-1442
CAPITAL CASE
STATE OF FLORIDA,
Appellee.
_____________________________/
STATE’S REPLY TO ORDER TO SHOW CAUSE
On September 25, 2017, this Court issued an order to Appellant to show
cause “why the trial court's order should not be affirmed in light of this Court's
decision Hitchcock v. State, SC17-445.” Under this Court’s decisions in Asay v.
State, 210 So.3d 1 (Fla. 2016), and Hitchcock v. State, 42 Fla. L. Weekly S753,
2017 WL 3431500 (Fla. Aug. 10, 2017), Lawrence is not entitled to any Hurst relief
because his sentence became final before Ring v. Arizona, 536 U.S. 584 (2002),
was decided. This Court has repeatedly rejected the same constitutional attacks
opposing counsel presents in the response. In sum, Asay and Hitchcock control.
This Court should once again follow its well-established precedent and affirm the
trial court’s summary denial of the successive postconviction motion.
36a
Procedural history of the Hurst claim
On January 20, 1998, Lawrence’s death sentence became final when the
United States Supreme Court denied the petition from the direct appeal. Lawrence
v. Florida, 522 U.S. 1080 (1998) (No. 97-6787).
On April 5, 2017, Lawrence, represented by the Capital Habeas Unit (CHU)
of the federal Public Defender’s Office, filed a successive 3.851 motion raising a
claim under Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida), and Hurst v.
State, 202 So.3d 40 (Fla. 2016) (Hurst II). On April 7, 2017, the State, citing Asay
v. State, 210 So.3d 1 (Fla. 2016), and Gaskin v. State, 218 So.3d 399 (Fla. 2017),
asserted that Hurst II did not apply to Lawrence because his sentence was final
years before Ring was decided.1
On July 5, 2017, the trial court summarily
denied the successive postconviction motion concluding that Hurst did not apply
retroactively to Lawrence.
Lawrence then appealed the denial of his successive postconviction motion
to this Court. Lawrence v. State, SC17-1442. On September 27, 2017, this Court
issued an order to show cause why Hitchcock does not control. On October 2,
1
The State simultaneously filed a motion to appoint new state
postconviction counsel in the trial court because Mary Catherine Bonner, who was
removed from the registry list, had been Lawrence’s counsel. In Re Mary Catherine
Bonner, AOSC16-100 (Fla. Nov. 8, 2016); Thomas v. McDonough, 452 F. Supp.2d
1203, 1206 (M.D. Fla. 2006) (noting Bonner missed the federal habeas deadline
in two capital cases without a “good reason or explanation” for the failure to file
on time). Ms. Bonner did not file a motion to withdraw in Lawrence’s case even
though, as the State understands it, she promised to withdraw from all her capital
cases as part of the settlement of this Court’s inquiry. On May 16, 2017, the trial
court granted the State’s motion and appointed CCRC-North as new state
postconviction counsel.
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2017, Lawrence filed his response. This is the State’s reply to the response to the
order to show cause.
Merits
Under this Court’s well-established controlling precedent, Hurst is not
retroactively applicable to Lawrence because his death sentence became final in
1998. Lawrence v. Florida, 522 U.S. 1080 (1998).
In Asay v. State, 210 So.3d 1, 11-22 (Fla. 2016), cert. denied, Asay v. Florida,
2017 WL 1807588 (Aug. 24, 2017), this Court held that any capital defendant
whose death sentence was final before Ring v. Arizona, 536 U.S. 584 (2002), was
decided in 2002 was not entitled to Hurst relief. This Court performed a full
retroactivity analysis using the state test of Witt v. State, 387 So.2d 922 (Fla.
1980). Asay, 210 So.3d at 15-22.
This Court reaffirmed its holding in Asay in Hitchcock v. State, 42 Fla. L.
Weekly S753, 2017 WL 3431500 (Fla. Aug. 10, 2017). This Court in Hitchcock
rejected several constitutional challenges to its non-retroactivity rule reaffirming
its prior holding in Asay. Opposing counsel in his response to the order to show
cause makes many of the same Eighth Amendment, equal protection, and due
process arguments that this Court explicitly rejected in Hitchcock, Asay VI, and
Lambrix. Hitchcock, 2017 WL 3431500 at *2; Asay v. Jones, 2017 WL 3472836,
*6 (Fla. Aug. 14, 2017) (Asay VI) (denying an Eighth Amendment challenge to the
holding in Asay); Lambrix v. State, 2017 WL 4320637, *1-*2 (Fla. Sept. 29, 2017)
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(denying Eighth Amendment, due process, and equal protection challenges to the
holding in Asay citing Hitchcock and Asay VI). This Court should again reject
these various constitutional challenges for the same reasons.2
Moreover, this Court has explicitly followed Asay in a number of capital
cases which are now final.3
This Court recently affirmed that holding yet again
in several cases including in two active death warrant cases. Jones v. State, 2017
WL 4296370, *2 (Fla. Sept. 28, 2017) (denying Hurst relief citing Asay); Asay v.
State, 224 So.3d 695 (Fla. 2017) (Asay VI) (same in active warrant); Lambrix v.
State, 2017 WL 4320637 (Fla. Sept. 29, 2017) (same in active warrant). So, since
December of 2016 and as recently as September of 2017, this Court has
consistently followed Asay. This Court has repeatedly held in numerous capital
cases including active warrant cases that Hurst does not apply retroactively to
defendants like Lawrence.
Asay is firmly established precedent.
Asay and
Hitchcock control.
2
The Eleventh Circuit has also rejected equal protection, due process, and
Eighth Amendment challenges to this Court’s non-retroactivity rule established
in Asay recently in Lambrix v. Sec’y, Fla. Dep’t of Corr., __ F.3d __, 2017 WL
4416205 (11th Cir. Oct. 5, 2017), cert. denied, Lambrix v. Jones, 2017 WL
4456332 (Oct. 5, 2017).
3
Bogle v. State, 213 So.3d 833, 855 (Fla. 2017) (denying Hurst relief citing
Asay); Lambrix v. State, 217 So.3d 977, 989 (Fla. March 9, 2017), rehearing
denied, SC16-56, 2017 WL 1927739 (Fla. May 10, 2017) (denying Hurst relief
citing Asay); Lukehart v. Jones, 2017 WL 1033691 (Fla. March 17, 2017) (denying
Hurst relief citing Asay); Oats v. Jones, 2017 WL 2291288 (Fla. May 25, 2017)
(denying Hurst relief citing Asay); Rodriguez v. State, 219 So.3d 751, 760 (Fla.
April 20, 2017), rehearing denied, SC15-1795, 2017 WL 2598492 (Fla. June 15,
2017) (denying Hurst relief citing Asay).
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Fundamental fairness, the Eighth Amendment, and equal protection
Opposing counsel insisted that the cut-off date of 2002 created in Asay is
arbitrary in violation of due process, the Eighth Amendment, and equal protection.
This Court has rejected those same arguments in Asay VI and Lambrix. Asay,
2017 WL 3472836 at *6 (Asay VI); Lambrix, 2017 WL 4320637at *1-*2 (denying
Eighth Amendment, due process, and equal protection challenges to the holding
in Asay citing Hitchcock and Asay VI). Indeed, many of these same arguments
were made by the dissenters in Asay itself but rejected by the majority.4 The
majority in Asay drew the cut-off in full awareness of these constitutional
challenges.
As to fundamental fairness, due process does not require courts abandon
all retroactivity analysis and apply all new rules to all cases. Such an argument
negates all finality in the criminal law and it is finality that is the overriding
concern in any retroactivity analysis including in capital cases. Penry v. Lynaugh,
4
Asay, 210 So.3d at 31 (Lewis, J., concurring) (“Florida will treat similarly
situated defendants differently – here, the difference between life and death – for
potentially the simple reason of one defendant's docket delay” and characterizing
the majority’s cut-off date based on Ring as being “arbitrary”); Asay, 210 So.3d at
35-35 (Pariente, J., dissenting) (stating that Hurst II is that “rare situation in
which finality yields to fundamental fairness” and that the majority’s rule results
in “arbitrariness as to who receives relief depending on when the defendant was
sentenced or, in some cases, resentenced” and taking the view that to “avoid such
arbitrariness and to ensure uniformity and fundamental fairness in Florida's
capital sentencing,” “Hurst should be applied retroactively to all death sentences”);
Asay, 210 So.3d at 37 (Perry, J., dissenting) (“the line drawn by the majority is
arbitrary and cannot withstand scrutiny under the Eighth Amendment because
it creates an arbitrary application of law to two groups of similarly situated
persons”); see also Gaskin v. State, 218 So.3d 399, 401 (Fla. 2017) (Pariente, J.,
dissenting) (stating that “fundamental fairness” requires us “to hold Hurst fully
retroactive to all death sentences”).
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492 U.S. 302 (1989). As the Penry Court observed, the overriding concern of
finality that underlies retroactivity is just as “applicable in the capital sentencing
context.” Id. at 314.
Furthermore, both federal and state courts have retroactivity doctrines that
depend on dates. For example, a cut-off date is part of the pipeline doctrine first
established in Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The Griffith Court
created the pipeline concept by holding that all new developments in the criminal
law must be applied retrospectively to all cases, state or federal, that are pending
on direct review. See also Smith v. State, 598 So.2d 1063, 1065 (Fla. 1992)
(discussing the history of the pipeline concept and Griffith). Griffith depends on
the date of finality of the direct appeal. The current federal test for retroactivity,
Teague v. Lane, 489 U.S. 288 (1989), also depends on a date. If a case is final on
direct review, the defendant will not receive benefit of the new rule unless one of
the exceptions to Teague applies. The date of finality is the critical date-based
toogle under Teague.
Inherent in the concept of non-retroactivity is that some cases will get the
benefit of a new development, while other cases will not, depending on a date.
Drawing a line between newer cases that will receive benefit of a new development
in the law and older final cases that will not receive benefit of the new
development is part and parcel of the landscape of retroactivity analysis. It is
simply part of the retroactivity paradigm that some cases will be treated differently
than other cases based on the age of the case. Neither Asay nor Griffith nor
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Teague violates due process. Retroactivity analysis itself is not fundamentally
unfair in violation of due process.
As to Equal Protection, it is doubtful that Equal Protection analysis even
applies to judicial decisions, such as Asay, as opposed to statutes. Bouie v. City
of Columbia, 378 U.S. 347 (1964) (using due process, not equal protection, when
a judicial decision is at issue). But even assuming it does, such an argument
makes little jurisprudential sense. A cut-off date does not create a protected class
and there is no fundamental right involved.
The date of the finality of a
defendant’s sentence is not an immutable characteristic requiring application of
strict scrutiny or intermediate scrutiny. The only possible standard of review
under equal protection principles, would be rational basis review. And the cut-off
date of Ring established by this Court in Asay more than satisfies rational basis
review. Again, all retroactivity analysis depends on cut-off dates.
According to opposing counsel’s logic, all retroactivity tests violate equal
protection. The Equal Protection Clause does not mandate that every major
change in the law be applied retroactively, which would be the necessary outcome
of adopting this view.
Neither Griffith nor Teague nor Asay violates equal
protection.
In sum, Asay V, Hitchcock, Asay VI, and Lambrix control.
-7-
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Federal retroactivity of Hurst
While opposing counsel insists that Hurst is retroactive under federal law,
it is not. The United States Supreme Court has held that Ring was not retroactive
in Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (using the federal test for
retroactivity of Teague v. Lane, 489 U.S. 288 (1989)). If a case is not retroactive
under the broader state test for retroactivity of Witt v. State, 387 So.2d 922 (Fla.
1980), which this Court used in Asay, it is certainly not retroactive under the
narrower federal test for retroactivity of Teague. See Asay, 210 So.3d at 15
(describing Witt as “more expansive” than Teague citing Johnson v. State, 904
So.2d 400, 409 (Fla. 2005)).
The Eleventh Circuit recently held that Hurst is not retroactive under federal
law. Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, 1165, n.2 (11th Cir. 2017)
(“under federal law Hurst, like Ring, is not retroactively applicable on collateral
review” citing Schriro v. Summerlin, 542 U.S. 348, 358 (2004)), cert. denied,
Lambrix v. Jones, 17-5153, 2017 WL 3008927 (Oct. 2, 2017); Lambrix v. Sec’y, Fla.
Dep’t of Corr., __ F.3d __, 2017 WL 4416205, *8 (11th Cir. Oct. 5, 2017)
(concluding this Court’s holding in Asay to be “fully in accord with the U.S.
Supreme Court's precedent in Ring and Schriro”), cert. denied, Lambrix v. Jones,
2017 WL 4456332 (Oct. 5, 2017). The Eleventh Circuit has previously held that
Ring was not retroactive under Teague. Turner v. Crosby, 339 F.3d 1247, 1282-86
(11th Cir. 2003) (performing a full Teague analysis of Ring). The Eleventh Circuit’s
decision in Lambrix is definitive precedent that Hurst is not retroactive in federal
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court under the federal retroactivity test of Teague. Hurst II is not retroactive
under federal law.
Furthermore, the Supremacy Clause does not require states to adopt
Teague. States are free to adopt their own broader retroactivity tests. Danforth
v. Minnesota, 552 U.S. 264, 280 (2008); Montgomery v. Louisiana, 136 S.Ct. 718,
728-29 (2016) (explaining that, under Danforth, states are free to have broader,
but not narrower, retroactivity tests if a new substantive rule of constitutional law
is involved).
The United States Supreme Court in Montgomery did not overrule
Summerlin. Indeed, the Montgomery Court relied upon Summerlin at a couple of
points in its discussion. Id., 136 S.Ct. at 723, 728. The United States Supreme
Court in Montgomery explained that the federal constitution requires that new
substantive rules be applied retroactively. Montgomery, 136 S.Ct. at 728. The
Montgomery Court then defined substantive as “rules forbidding criminal
punishment of certain primary conduct,” as well as “rules prohibiting a certain
category of punishment for a class of defendants because of their status or
offense.” Id. The United States Supreme Court in Summerlin, a retroactivity case,
defined substantive as a new rule that places “particular conduct or persons”
“beyond the State's power to punish.” Summerlin, 542 U.S. at 352.
Opposing counsel insists that Hurst II is retroactive under federal law
because, he claims, the right to a jury trial is a substantive right. But, according
to the United States Supreme Court, the right to a jury trial is a procedural right,
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not a substantive right. The United States Supreme Court specifically observed
in a retroactivity case that “Ring's holding is properly classified as procedural”
because the Sixth Amendment's jury-trial guarantee “has nothing to do with the
range of conduct a State may criminalize.” Summerlin, 542 U.S. at 353. The
Summerlin Court explained that rules that allocate decisionmaking authority
between the judge and the jury “are prototypical procedural rules.” Id.
The
Supreme Court noted that they had classified the right to a jury trial as
procedural “in numerous other contexts.” Id. at 353-54 (citing numerous cases).
While the opposing counsel may view the right to a jury trial as substantive, the
United States Supreme Court has repeatedly classified it as procedural and in very
similar situations. So, Hurst is not substantive under Montgomery.
Montgomery does not apply at all. And the state test for retroactivity of Witt
does not employ the substantive/procedural distinction as a factor. Opposing
counsel is really mixing and matching parts of the federal test for retroactivity
with the state test for retroactivity. He is tangling Teague with Witt. But the
United States Supreme Court in Danforth held that states are not required to
adopt the federal test for retroactivity. And, under the state test of Witt, this Court
has already granted more capital defendants Hurst relief than they would have
received under the federal test of Teague.
Opposing counsel’s reliance on Welch v. United States, 136 S.Ct. 1257
(2016), is even more misplaced. Welch concerned the retroactivity of a statutory
interpretation case, not the Sixth Amendment right-to-a-jury-trial. Welch involved
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a federal criminal statute, not the federal constitution. And Welch certainly did
not overrule Summerlin or DeStefano.
And Ivan V. v. City of New York, 407 U.S. 203 (1972), is irrelevant to any
retroactivity analysis in Florida. If a rule of law it not new, there is no retroactivity
analysis required. Butler v. McKellar, 494 U.S. 407, 412 (1990) (defining a “new
rule” for purpose of retroactivity as one that “breaks new ground or imposes a new
obligation,” such as a decision that explicitly overrules an earlier holding).
Florida’s standard of proof for aggravating circumstances is not new. Florida law
has required that the State prove aggravators at the beyond-a-reasonable-doubt
standard of proof for over three decades.5
Nor did Hurst truly involve the
standard of proof. The issue in Hurst v. Florida was who decides — the judge
versus the jury — not the standard of proof.
Nor is the new unanimity
requirement established by this Court in Hurst II the equivalent of a standard of
proof. They are two very different concepts. The “retroactivity” of the beyond-areasonable-doubt standard of proof is a non-issue in this case and all other
Florida capital cases as well.
Opposing counsel misreads Powell v. Delaware, 153 A.3d 69 (Del. 2016).
The Delaware Supreme Court in Powell distinguished Florida law as announced
5
Williams v. State, 37 So.3d 187, 194-95 (Fla. 2010) (stating that the State
has the burden to prove beyond a reasonable doubt each and every aggravating
circumstance); Aguirre-Jarquin v. State, 9 So.3d 593, 607 (Fla. 2009) (explaining
that the State must prove the existence of an aggravator beyond a reasonable
doubt citing Parker v. State, 873 So.2d 270, 286 (Fla. 2004)); Cf. Floyd v. State,
497 So.2d 1211, 1214 (Fla. 1986) (striking an aggravator that was not proven
“beyond a reasonable doubt”).
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by this Court in Hurst II from Delaware law as announced in Rauf v. State, 145
A.3d 430 (Del. 2016), pointing out that Florida law did not involve a change in the
standard of proof. Powell, 153 A.3d at 73-74 (stating that “unlike Rauf,” Hurst II
did not involve “a lower burden of proof”). Nor would the United States Supreme
Court agree with the Delaware Supreme Court about a standard of proof applying
to weighing, much less that Teague or Ivan V. mandates retroactive application of
any such new standard.6
While the Delaware Supreme Court is free to apply its
Rauf decision retroactively under state law under Danforth, the United States
Supreme Court would never agree that federal constitutional law mandates that
Rauf be applied retroactively. Such an argument is directly contrary to Danforth
itself. Powell, a state case involving a change in Delaware law, certainly does not
establish that federal constitutional law mandates the retroactivity of Hurst II,
especially not in the face of United States Supreme Court precedent and Eleventh
Circuit precedent to the contrary. Hurst II simply is not retroactive under federal
law.
6
Kansas v. Carr, 136 S.Ct. 633, 642 (2016) (expressing doubt whether it
is even possible to apply a standard of proof to either mitigation or weighing and
opining that weighing is “mostly a question of mercy,” not a fact); Kansas v. Marsh,
548 U.S. 163, 175 (2006) (holding that a death penalty statute may place the
burden on the defendant to prove that mitigating circumstances outweigh
aggravating circumstances because no particular “method for balancing mitigating
and aggravating factors in a capital sentencing proceeding is constitutionally
required”); Kansas v. Marsh, 548 U.S. 163, 187, n.2 (2006) (Scalia, J., concurring)
(observing that the federal Constitution does not require a reasonable doubt
standard as to the weighing process). Because the United States Supreme Court
does not even view weighing as a fact that is subject to any standard of proof, the
High Court would never reach the issue of retroactivity under Ivan V.
-12-
47a
Accordingly, this Court should affirm the trial court’s denial of the
successive postconviction motion.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Charmaine M. Millsaps
CHARMAINE M. MILLSAPS
SENIOR ASSISTANT ATTORNEY GENERAL
FLORIDA BAR NO. 0989134
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL, PL-01
TALLAHASSEE, FL 32399-1050
(850) 414-3300
primary email: capapp@myfloridalegal.com
secondary email:
charmaine.millsaps@myfloridalegal.com
COUNSEL FOR THE STATE
-13-
48a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing STATE’S
REPLY TO ORDER TO SHOW CAUSE has been furnished by electronic mail via
e-portal to Assistant Capital Collateral Counsel Stacy R. Biggart; Office of Capital
Collateral Regional Counsel - North, Tallahassee, FL, 32301; phone: (850) 4870922 ext. 114; email: Stacy.Biggart@ccmr-north.org; and Billy H. Nolas, Chief,
Capital Habeas Unit, Federal Public Defender, Northern District of Florida, 227 N.
Bronough St., Ste. 4200, Tallahassee, FL 32301-1300, phone: (850) 942-8818,
email: billy_nolas@fd.org this 30th day of October, 2017.
/s/ Charmaine M. Millsaps
Charmaine M. Millsaps
Attorney for the State
-14-
49a
EXHIBIT 6
50a
No. SC17-1442
IN THE
Supreme Court of Florida
___________________________________________________________
GARY LAWRENCE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________________________________
APPELLANT’S REPLY IN SUPPORT OF RESPONSE
TO SEPTEMBER 27, 2017 ORDER TO SHOW CAUSE
_____________________________________________________
Stacy Biggart
Assistant CCRC - North
Office of the Capital Collateral
Regional Counsel - North
1004 DeSoto Park Drive
Tallahassee, FL 32301
stacy.biggart@ccrc-north.org
Florida Bar No. 0089388
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough Street, Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Florida Bar No. 806821
Counsel for Appellant
51a
TABLE OF CONTENTS
RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT ........... 1
ARGUMENT ............................................................................................................1
I.
The State is incorrect in asserting that Hitchcock addressed the federal
retroactivity arguments Appellant raises in this proceeding ........................... 1
II.
The State’s cursory arguments concerning Hurst federal retroactivity are not
persuasive.........................................................................................................5
III.
The State abandons any “harmless error” arguments ....................................10
CONCLUSION.......................................................................................................10
i
52a
RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT
Petitioner renews his requests that the Court permit untruncated briefing.
ARGUMENT
I.
The State is incorrect in asserting that Hitchcock addressed the federal
retroactivity arguments Appellant raises in this proceeding
The State is incorrect that Appellant “makes many of the same Eighth
Amendment, equal protection, and due process arguments that this Court explicitly
rejected in Hitchcock, Asay IV, and Lambrix.” State’s Resp. at 3. This Court’s
decision in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10,
2017), did not explicitly address or reject any of the federal retroactivity arguments
in Appellant’s response to the order to show cause. See Appellant’s Resp. at 6-20.
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 v. State, 387
So. 2d 922 (Fla. 1980). See State’s Resp. at 3 (“In Asay . . . . [t]his Court performed
a full retroactivity analysis using the state test of Witt”); 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
1
53a
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 Appellant’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
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 v. Louisiana, 136 S. Ct. 718 (2016).
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
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
54a
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 3 (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 above, Asay
rested its analysis entirely on state retroactivity law and the Florida Constitution.
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 Appellant 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
3
55a
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.
To the extent the State suggests that Appellant’s federal arguments have been
addressed in other cases, those decisions are not applicable here. To wit, the
Eleventh Circuit’s decision in Lambrix v. Sec’y, No. 17-14413, 2017 WL 4416205
(11th Cir. Oct. 5, 2017), 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—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 Appellant this Court’s recent active-deathwarrant 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. SC171837, 2017 WL 4944899 (Fla. Nov. 1, 2017).
4
56a
II.
The State’s cursory arguments concerning Hurst federal retroactivity are
not persuasive
The State fails to engage substantively in Appellant’s argument that a
retroactivity cutoff at Ring violates the Eighth Amendment’s prohibition against
arbitrary and capricious imposition of the death penalty. See Appellant’s Resp. at 710. The State has therefore abandoned any arguments on this issue. Cf. Hoskins v.
State, 75 So. 3d 250, 257 (Fla. 2011); Hall v. State, 823 So. 2d 757, 763 (Fla. 2002).
The State’s failure to address the important Eighth Amendment problems with
a Ring-based retroactivity cutoff is telling. As Appellant explained, a Ring cutoff
injects into Florida’s death penalty jurisprudence a level of arbitrariness and
capriciousness—and also denial of equal protection and due process of law—that is
not present in typical circumstances where retroactivity is withheld based on widelyrecognized 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
5
57a
longer time that they are capable of adjusting to that environment and continuing to
live without endangering any valid interest of the State. Pre-Ring inmates also have
undergone the prolonged suffering chronicled by Justice Breyer, dissenting from the
denial of certiorari in Sireci v. Florida, 137 S. Ct. 470 (2016), longer than their postRing counterparts.
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 factfinding: 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. Evidence that led to confident
6
58a
convictions and unhesitating death sentences decades ago would have substantially
less convincing power to prosecutors, juries, and judges today.
Taken together, these considerations highlight 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 and Fourteenth Amendments.
The cursory federal retroactivity arguments the State does advance can be
dispensed with briefly. The State asserts, without any authority, that “[t]he only
possible standard of review under equal protection principles, would be rational
basis review.” State’s Resp. at 7. This ignores Skinner v. Oklahoma, 316 U.S. 535,
541 (1942), where the Court states that a law “which involves one of the basic rights
of man” is subject to strict scrutiny. The State further claims that Appellant believes
“all retroactivity tests violate equal protection.” State’s Resp. at 7 (emphasis added).
At issue here is a retroactivity test that implicates Appellant’s fundamental rights. A
retroactivity cutoff that deprives some capital defendants of their fundamental right
to a reliable determination of their sentences—while affording similarly-situated
7
59a
defendants the benefits of decision-making by a penalty-phase jury—violates the
Fourteenth Amendment’s guarantee of equal protection. 2
The State also relies on Schriro v. Summerlin, 542 U.S. 348, 358 (2004), for
the proposition that the United States Supreme Court’s ruling in that case—that Ring
is not retroactive in a federal habeas proceeding—means that Hurst is also not
retroactive in any proceeding. See State’s Resp. at 8-9. But as Appellant explained
initially, see Appellant’s Resp. at 19, 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. Indeed, 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.
Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard. Although the State attempts to distinguish Ivan V. v. City of New
York, 407 U.S. 203 (1972), and Powell v. Delaware, 153 A.3d 69 (Del. 2016), see
2
The State contends, “it is doubtful that Equal Protection analysis even applies to
judicial decisions,” citing Bouie v. City of Columbia, 378 U.S. 347 (1964). However,
the Court in Bouie did not limit application of equal protections analyses to statutes.
Id. (“We do not reach the question presented under the Equal Protection Clause, for
we find merit . . . under the Due Process Clause.”).
8
60a
State’s Resp. at 11-12, those attempts fall flat. Even assuming, as the State suggests,
that Florida’s scheme formerly incorporated the beyond-a-reasonable-doubt
standard, that standard was misapplied to findings of fact made by the trial judge,
not by the jury. The Hurst decisions held that the jury must make the beyond-areasonable-doubt findings that subject a defendant to a death sentence. Indeed, a
federal judge in Florida, citing Ivan, has already observed the distinction between
the holding of Summerlin and the retroactivity of Hurst because of the beyond-areasonable-doubt standard. See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May
27, 2016) (contrasting Hurst to Ring and Summerlin, because the latter decisions
“did not address the requirement for proof beyond a reasonable doubt,” and “[t]he
Supreme Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).
The State’s citation to Powell in arguing against the federal retroactivity of
Hurst, see State’s Resp. at 11-12, is particularly odd considering that in Powell, the
Delaware Supreme Court applied a retroactivity test that mirrors the federal
retroactivity test articulated in Teague v. Lane, 489 U.S. 288 (1989), and held that
Hurst should be applied retroactively in Delaware. See Powell, 153 A.3d at 75-76.
If anything, Powell favors Appellant’s position.
Finally, the State mischaracterizes Appellant’s arguments under Montgomery.
Appellant correctly explained that Montgomery held that states are bound by the
Supremacy Clause to apply constitutional rules retroactively when those rules are
9
61a
substantive within the meaning of federal law. See Appellant’s Resp. at 13-20;
Montgomery, 136 S. Ct. at 728-29 (“[W]hen 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.”). The Hurst decisions announced
substantive rules, and the Supremacy Clause requires this Court to apply those rules
retroactively.
III.
The State abandons any “harmless error” arguments
The State abandons any argument that the Hurst error in Appellant’s case was
harmless by failing to even reference the harmless error doctrine in its response. See
Hoskins, 75 So. 3d at 257 (“An issue not raised in an initial brief is deemed
abandoned.”) (citing Hall, 823 So. 2d at 763 (Fla. 2002)) (quotation cleaned up). As
Appellant argued in his initial filing, the Hurst error is not harmless under this
Court’s precedent in light of the advisory jury’s non-unanimous recommendation.
CONCLUSION
For the reasons above and in Appellant’s initial response to the Court’s order
to show cause, this Court should hold that federal law requires the Hurst decisions
to be applied retroactively and vacate Appellant’s death sentence.
10
62a
Respectfully submitted,
Stacy Biggart
Assistant CCRC - North
Office of the Capital Collateral
Regional Counsel - North
1004 DeSoto Park Drive
Tallahassee, FL 32301
stacy.biggart@ccrc-north.org
Florida Bar No. 0089388
/s/ Billy H. Nolas
Billy H. Nolas
Chief, Capital Habeas Unit
Office of the Federal Public Defender
Northern District of Florida
227 N. Bronough St., Suite 4200
Tallahassee, FL 32301-1300
billy_nolas@fd.org
(850) 942-8818
Florida Bar No. 806821
CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2017, this reply brief was electronically
served via the e-portal to Assistant Attorney General Charmaine M. Millsaps at
charmaine.millsaps@myfloridalegal.com and capapp@myfloridalegal.com.
/s/ Billy H. Nolas
Billy H. Nolas
63a
EXHIBIT 7
64a
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?
65a
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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
66a
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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
67a
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3/9
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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
69a
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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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EXHIBIT 8
74a
1.
Alston v. State, Nos. SC17-499, SC17-983, 2018 WL 2251331 (Fla. May 17, 2018)
2.
Bates v. State, 238 So. 3d 98 (Fla. 2018)
3.
Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)
4.
Branch v. State, 234 So. 3d 548 (Fla. 2018)
5.
Jones v. State, 234 So. 3d 545 (Fla. 2018)
6.
Peterka v. State, 237 So. 3d 903 (Fla. 2018)
7.
Phillips v. State, 234 So. 3d 547 (Fla. 2018)
8.
Stephens v. State, 238 So. 3d 94 (Fla. 2018)
9.
Suggs v. State, 234 So. 3d 546 (Fla. 2018)
10.
Walls v. State, 238 So. 3d 96 (Fla. 2018)
11.
Atwater v. State, 234 So. 3d 550 (Fla. 2018)
12.
Beasley v. State, 234 So. 3d 553 (Fla. 2018)
13.
Burns v. State, 234 So. 3d 555 (Fla. 2018)
14.
Clark v. State, 238 So. 3d 99 (Fla. 2018)
15.
Cole v. State, 234 So. 3d 644 (Fla. 2018)
16.
Ford v. State, 237 So. 3d 904 (Fla. 2018)
17.
Puiatti v. State, 234 So. 3d 551 (Fla. 2018)
18.
Rhodes v. State, 234 So. 3d 554 (Fla. 2018)
19.
Willacy v. State, 238 So. 3d 100 (Fla. 2018)
20.
Windom v. State, 234 So. 3d 556 (Fla. 2018)
21.
Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)
22.
Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)
23.
Jackson v. State, 237 So. 3d 905 (Fla. 2018)
1
75a
24.
Kokal v. State, 237 So. 3d 907 (Fla. 2018)
25.
Lucas v. State, 234 So. 3d 647 (Fla. 2018)
26.
Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)
27.
Sweet v. State, 234 So. 3d 646 (Fla. 2018)
28.
Taylor v. State, 234 So. 3d 649 (Fla. 2018)
29.
Thomas v. State, 234 So. 3d 559 (Fla. 2018)
30.
Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)
31.
Anderson v. State, 235 So. 3d 277 (Fla. 2018)
32.
Finney v. State, 235 So. 3d 279 (Fla. 2018)
33.
Hartley v. State, 237 So. 3d 908 (Fla. 2018)
34.
Jeffries v. State, 235 So. 3d 283 (Fla. 2018)
35.
Kelley v. State, 235 So. 3d 280 (Fla. 2018)
36.
Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)
37.
Morris v. State, 236 So. 3d 324 (Fla. 2018)
38.
Stewart v. State, 235 So. 3d 798 (Fla. 2018)
39.
Trepal v. State, 235 So. 3d 281 (Fla. 2018)
40.
Trotter v. State, 235 So. 3d 284 (Fla. 2018)
41.
Bell v. State, 235 So. 3d 287 (Fla. 2018)
42.
Bowles v. State, 235 So. 3d 292 (Fla. 2018)
43.
Brown v. State, 235 So. 3d 289 (Fla. 2018)
44.
Davis v. State, 235 So. 3d 295 (Fla. 2018)
45.
Foster v. State, 235 So. 3d 290 (Fla. 2018)
46.
Foster v. State, 235 So. 3d 294 (Fla. 2018)
2
76a
47.
Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)
48.
Gamble v. State, 235 So. 3d 288 (Fla. 2018)
49.
Jennings v. State, 237 So. 3d 909 (Fla. 2018)
50.
Long v. State, 235 So. 3d 293 (Fla. 2018)
51.
Booker v. Jones, 235 So. 3d 298 (Fla. 2018)
52.
Davis v. Jones, 235 So. 3d 301 (Fla. 2018)
53.
Gudinas v. State, 235 So. 3d 303 (Fla. 2018)
54.
Lamarca v. State, 237 So. 3d 914 (Fla. 2018)
55.
Mendoza v. State, 235 So. 3d 302 (Fla. 2018)
56.
Occhicone v. State, 235 So. 3d 299 (Fla. 2018)
57.
Pace v. State, 237 So. 3d 912 (Fla. 2018)
58.
Rogers v. State, 235 So. 3d 306 (Fla. 2018)
59.
Sochor v. State, 235 So. 3d 304 (Fla. 2018)
60.
Whitfield v. State, 235 So. 3d 297 (Fla. 2018)
61.
Consalvo v. State, 235 So. 3d 307 (Fla. 2018)
62.
Gordon v. State, 235 So. 3d 311 (Fla. 2018)
63.
Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)
64.
Miller v. Jones, 237 So. 3d 921 (Fla. 2018)
65.
Nelson v. State, 235 So. 3d 308 (Fla. 2018)
66.
Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)
67.
Sireci v. State, 237 So. 3d 916 (Fla. 2018)
68.
Sliney v. State, 235 So. 3d 310 (Fla. 2018)
69.
Stein v. State, 237 So. 3d 919 (Fla. 2018)
3
77a
70.
Whitton v. State, 238 So. 3d 724 (Fla. 2018)
71.
Damren v. State, 236 So. 3d 230 (Fla. 2018)
72.
Derrick v. State, 236 So. 3d 231 (Fla. 2018)
73.
Griffin v. State, 236 So. 3d 237 (Fla. 2018)
74.
Hodges v. State, 236 So. 3d 241 (Fla. 2018)
75.
Johnson v. State, 236 So. 3d 232 (Fla. 2018)
76.
Lawrence v. State, 236 So. 3d 240 (Fla. 2018)
77.
Melton v. State, 236 So. 3d 234 (Fla. 2018)
78.
Morton v. State, 236 So. 3d 242 (Fla. 2018)
79.
Overton v. State, 236 So. 3d 238 (Fla. 2018)
80.
Pietri v. State, 236 So. 3d 235 (Fla. 2018)
4
78a
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