Petition for Writ of Certiorari — Toney Deron Davis, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

Supreme Court briefJun 14, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

TONEY DERON DAVIS,

Petitioner,

JULIE L. JONES, SECRETARY

FLORIDA DEPARTMENT OF CORRECTIONS

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

RICK SICHTA

JOE HAMRICK

The Sichta Firm

301 W. Bay Street, Suite 14124

Jacksonville, Florida 32202

(904) 329-7246

rick@sichtalaw.com

joe@sichtalaw.com

BILLY H. NOLAS

Counsel of Record

SEAN GUNN

KIMBERLY NEWBERRY

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

billy_nolas@fd.org

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (Jan. 30, 2018) ................ 1a

Exhibit 2 — Florida Supreme Court Order to Show Cause (Sep. 27, 2017) ..... 4a

Exhibit 3 — Petitioner’s Response to Order to Show Cause

(Oct. 17, 2017) ................................................................................. 6a

Exhibit 4 — Respondent/State’s Response to Order to Show Cause

(Nov. 6, 2017) ................................................................................ 41a

Exhibit 5 — Petitioner’s Reply in Support of Response to

Order to Show Cause (Nov. 20, 2017) .......................................... 60a

Exhibit 6 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 71a

(Source: Death Penalty Information Center)

Exhibit 7 — List of Florida Supreme Court Opinions Summarily

Denying Relief in Light of Hitchcock (Jan.–Feb. 2018) ............. 80a

Supreme Court of Florida

____________

No. SC17-1711

____________

TONEY DERON DAVIS,

Petitioner,

vs.

JULIE L. JONES, etc.,

Respondent.

[January 30, 2018]

PER CURIAM.

Toney Deron Davis petitions this Court for a writ of habeas corpus seeking

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 has

jurisdiction. See art. V, § 3(b)(9), Fla. Const.

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

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

should not be dispositive in this case.

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

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

was sentenced to death following a jury’s recommendation for death by a vote of

eleven to one. Davis v. State, 703 So. 2d 1055, 1057 (Fla. 1997). Davis’s sentence

of death became final in 1998. Davis v. Florida, 524 U.S. 930 (1998). Thus, Hurst

does not apply retroactively to Davis’s sentence. See Hitchcock, 226 So. 3d at

217. Accordingly, we deny Davis’s petition.

The Court having carefully considered all arguments raised by Davis, 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.

Original Proceeding – Habeas Corpus, Duval County,

Case No. 161992CF013193AXXXMA

Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC,

Jacksonville, Florida,

-2-

for Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney

General, Tallahassee, Florida,

for Respondent

-3-

Supreme Court of Florida

WEDNESDAY, SEPTEMBER 27, 2017

CASE NO.: SC17-1711

Lower Tribunal No(s).:

161992CF013193AXXXMA

TONEY DERON DAVIS

Petitioner(s)

vs.

JULIE L. JONES, ETC.

Respondent(s)

Petitioner shall show cause on or before Tuesday, October 17, 2017, why the

habeas corpus should not be denied in light of this Court's decision Hitchcock v.

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

Respondent may file a reply on or before Wednesday, November 1, 2017, limited

to no more than 15 pages. Petitioner may file a reply to the Respondent’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:

jat

Served:

JOE HAMRICK

JENNIFER L. KEEGAN

SUSANNE K. SICHTA

CASE NO.: SC17-1711

Page Two

RICK A SICHTA

Filing # 62966839 E-Filed 10/17/2017 09:32:19 PM

FLORIDA SUPREME COURT

500 South Duval Street

Tallahassee, Florida 32399

CASE NO.: SC17-1711

L.T. NO.:

16-1992-CF-13193

RECEIVED, 10/17/2017 09:33:29 PM, Clerk, Supreme Court

TONEY DERON DAVIS

STATE OF FLORIDA

__________________________________________________________________

Petitioner.

Respondent.

PETITIONER’S RESPONSE TO THIS COURT’S

SEPTEMBER 27, 2017 HITCHCOCK SHOW CAUSE ORDER

INTRODUCTION

At 10:13 p.m. on Friday, September 22, 2017, Petitioner filed a petition for

writ of habeas corpus. By Wednesday, September 27, 2017, this Court had already

issued a show cause order in Petitioner’s case, ordering Petitioner to explain why,

in twenty pages or less, that his “habeas corpus should not be denied in light of this

Court’s decision Hitchcock v. State, SC17-445.”

Hitchcock answered none of the relevant arguments presented in Mr. Davis’

habeas petition, as a brief overview of the Hitchcock and Asay decisions makes

evident. As this Court has never ruled upon Mr. Davis’ substantive arguments, it

would be a violation of his constitutional rights for this Court to limit his appellate

rights by denying his petition upon a decision of no precedential value for the

arguments that Davis has presented.

HITCHCOCK/ASAY

In Hitchcock, the majority wrote: “Although Hitchcock references various

constitutional provisions as a basis for arguments that Hurst v. State should entitle

him to a new sentencing proceeding, these are nothing more than arguments that

Hurst v. State should be applied retroactively to his sentence, which became final

prior to Ring. As such, these arguments were rejected when we decided Asay.

Hitchcock, 2017 WL 3431500, at *2. But, as Justice Pariente pointed out in her

dissent, “[t]his Court did not in Asay, however, discuss the new right announced

by this Court in Hurst to a unanimous recommendation for death under the Eighth

Amendment. . . . Therefore, Asay does not foreclose relief in this case, as the

majority opinion assumes without explanation.” Id., at *4 (Pariente, J., dissenting).

In Asay v. State, 210 So. 3d 1, 14 (Fla. 2016), this Court acknowledged that the

U.S. Supreme Court in Hurst v. Florida did not address “whether Florida’s

sentencing scheme violated the Eighth Amendment.” The entirety of the Court’s

analysis in Asay hinged on whether Hurst v. Florida, 136 S. Ct. 616 (2016) should

apply retroactively to Asay. See id. at 15. Hurst v. Florida is a Sixth Amendment

case. The Sixth Amendment rights addressed in Hurst v. Florida have nothing to

do with the substantive Eighth Amendment rights addressed in Hurst v. State.

The Asay majority acknowledged that “Hurst v. Florida derives from Ring

[v. Arizona, 536 U.S. 584 (2002)],” 210 So. 3d at 15, and ultimately concluded that

Hurst v. Florida should not apply retroactively under Witt v. State, 387 So. 2d 922

(Fla. 1980) to people whose convictions were final before Ring. But as this Court

also recognized in Asay, Hurst v. Florida did not address the question of whether

Florida’s scheme violated the Eighth Amendment. Id. at 14 (emphasis added).

Thus, although this Court decided in Asay that Hurst v. Florida should not apply to

pre-Ring individuals, Asay did not foreclose Eighth Amendment relief under

Hurst v. State. In Hitchcock, the Court declined to analyze the other “various

constitutional provisions” cited by Hitchcock, and those issues were not decided in

Hitchcock. 2017 WL 3431500, at *2.

Therefore, Hitchcock has no precedential value and does not foreclose relief.

It is axiomatic that “[t]o be of value as a precedent, the questions raised by the

pleadings and adjudicated in the case cited as a precedent must be in point with

those presented in the case at bar.” Twyman v. Roell, 166 So. 215, 217 (Fla. 1936).

In other words, “no decision is authority on any question not raised and considered,

although it may be involved in the facts of the case.” State v. Du Bose, 128 So. 4, 6

(Fla. 1930). Florida courts have held that where an “issue was not presented to

the court, and . . . was not decided by the court,” then the decision issued by that

court is not binding on lower courts on that issue. Speedway SuperAmerica, LLC v.

Tropic Enters., Inc., 966 So. 2d 1, 3 (Fla. 2d DCA 2007); see also Benson v.

Norwegian Cruise Line Ltd., 859 So. 2d 1213, 1218 (Fla. 3d DCA 2003) (rejecting

argument that two cases were binding precedent and must be followed because

“neither of these cases decided the point now before us”). Because Asay is silent on

the issue of whether Florida’s scheme violates the Eighth Amendment under

Hurst v. State, and Hitchcock merely cites to Asay, stare decisis does not apply and

Hitchcock is not binding precedent on issues not raised or decided in Asay.

Furthermore, this Court has recognized that stare decisis is not immutable, and

may yield if there has been an error in legal analysis. See Brown v. Nagelhout, 84

So.3d 304, 309 (Fla. 2012).

Hitchcock, for which a petition for certiorari is pending before the U.S.

Supreme Court, is both unsound in principle and unworkable in practice.

Hitchcock is unsound in principle because it cites to Asay for the proposition

that neither Hurst decision should apply to Hitchcock retroactively, when Asay

only addressed the Sixth Amendment implications of Hurst v. Florida. And it is

unworkable in practice because each appeal raises unique issues, and due process

requires a full consideration of those issues in each individual appeal. This Court

has created an unworkable practice by attempting to dispose of dozens of cases

under Hitchcock without further analysis.

Mr. Davis’ habeas petition challenges this Court’s retroactivity decision on

several bases. First, Mr. Davis argues that under federal retroactivity analysis, as

applied to the states through Montgomery v. Louisiana, Hurst v. Florida and

Hurst v. State establish new substantive constitutional rights. Second, Mr. Davis

argues that the current position of this Court, that retroactivity only reaches back to

cases that became final at least one day after Ring, violates the following

constitutional rights of Mr. Davis: (a) the Eighth and Fourteenth Amendments’

prohibition against arbitrary and capricious imposition of the death penalty, and (b)

the Fourteenth Amendment’s guarantee of equal protection and due process. The

arguments asserted in appealing to these “various constitutional provisions” are

fundamental and deserve a full briefing and hearing before this Court, as well as

written analysis as to their merit, which they have not yet received from this Court

in any case.

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This case 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. Petitioner respectfully requests oral argument on this and related issues

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

review in this case in accord with the normal, untruncated habeas rules.

Mr. Davis is exercising a substantive right to petition this Court for habeas

relief. See Fla. R. App. P. 9.100(a); Art. 1, Sec. 13, Fla. Const. His habeas petition

presents issues which concern the continued viability and constitutionality of Mr.

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Davis’ death sentence. The Florida Constitution guarantees that “[t]he writ of

habeas corpus shall be grantable of right, freely and without cost.” Art. I, § 13, Fla.

Const. Pursuant to Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const.

Because he has been provided this substantive right, Mr. Davis’s right to litigate

his habeas petition is protected by the Due Process and Equal Protection Clauses of

the Fourteenth Amendment. Evitts v. Lucy, 469 U.S. 387, 393 (1985) (“if a State

has created appellate courts as “an integral part of the ... system for finally

adjudicating the guilt or innocence of a defendant,” Griffin v. Illinois, 351 U.S. at

18, 76 S.Ct., at 590, the procedures used in deciding appeals must comport with the

demands of the Due Process and Equal Protection Clauses of the Constitution.”).

In a capital case in which a death sentence has been imposed, courts are

required to go further when considering challenges to the death sentence. The

Eighth Amendment requires more due to a special need for reliability. Johnson v.

Mississippi, 486 U.S. 578, 584 (1988) (“The fundamental respect for humanity

underlying the Eighth Amendment's prohibition against cruel and unusual

punishment gives rise to a special ‘need for reliability in the determination that

death is the appropriate punishment’ in any capital case.”). The process by which

the Court has directed Mr. Davis to proceed in his appeal, indicates its intention on

binding Mr. Davis to the outcome rendered in Hitchcock’s appeal, regardless of the

fact the record on appeal in each case is distinct and separate from one another.

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The fact that this Court has sua sponte issued identical orders, in numerous other

cases, employing the same truncated procedure it does here, reflects a prejudgment

of the appeals and their scope. Mr. Davis deserves an individualized appellate

process, particularly because Hitchcock did not raise the same issues at stake here.

“The death penalty is the gravest sentence our society may impose. Persons

facing that most severe sanction must have a fair opportunity to show that the

Constitution prohibits their execution.” Hall v. Florida, 134 S. Ct. 1986, 2001

(2014). Yet, Mr. Davis is being denied that opportunity by this Court’s attempt to

confine him to the outcome in Hitchcock without first providing a fair opportunity

of his own to demonstrate how the record and facts in his particular case prohibit

his execution. Moreover, in denying relief in Hitchcock, this Court relied upon

Asay v. State for the determination that Hurst was not retroactive to cases final

before Ring v. Arizona. Hitchcock v. State, Case No. SC17-445 at *2-3. This Court

did so despite the fact that the opinion in Asay was not premised upon, nor did it

even address, the holding in Hurst v. State, 202 So. 3d 40 (Fla. 2016).

It is in that regard that this Court must acknowledge that the holding in Asay,

and this Court’s reliance upon that holding in Hitchcock, does not foreclose the

availability of Hurst relief to Mr. Davis. Hurst v. Florida was a momentous shift in

United States Supreme Court’s jurisprudence in the manner which it recognized

that Florida’s capital sentencing scheme violated the Sixth Amendment where it

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did not require the jury to make the requisite findings of fact necessary to impose a

sentence of death. However, its most important role was to serve as the catalyst for

this Court’s decision in Hurst v. State.

Depriving Petitioner the opportunity for full merits review would constitute

an arbitrary deprivation of the vested state right to habeas corpus review under

Article I, § 13, and Article V, § 3(b)(9), of the Florida Constitution. See Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks v. Oklahoma, 447 U.S. 343

(1980).

In this case, the initial habeas petition thoroughly addressed this Court’s

question in its show cause order, including why the Hurst decisions are substantive

new rules that apply retroactively under federal law and how the current Ringbased cutoff violates the federal guarantee of equal protection and due process. The

petition also explained that this Court’s failure to address federal retroactivity in

this or any other case precluded this Court from relying on its recent, state-lawbased Hurst jurisprudence to deny Petitioner’s claims, which were based in federal

retroactivity law. Petitioner submits a condensed version of those argument below,

but requests that this Court address the arguments from his habeas petition in full.

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RELEVANT PROCEDURAL HISTORY

The penalty phase of Davis’ case was conducted pursuant to the former

version of F.S. 921.141, which the U.S. Supreme Court in Hurst v. Florida in

January of 2016 held to be unconstitutional. The single aggravating factor that was

submitted to the jury was that the crime was committed in the course of a sexual

battery or an attempt to commit sexual battery. Davis I, 703 So. 2d at 1060. The

jury was instructed that its verdict was merely advisory to the trial court. Davis II,

136 So. 3d at 1201. The jury deliberated for only thirty-four minutes and returned

a recommendation of death by an 11-1 vote. (32 R 1143.)

The trial judge set a sentencing hearing for June 28, 1995, and told each side

they could present sentencing memoranda prior to the hearing. (32 R 1147, 1148.)

The judge instructed each side that they would be able to “present any matters that

you think are relevant to sentencing.” (32 R 1148.) The State filed its sentencing

memorandum on June 27, 1995 – the day before the hearing – and for the first

time referenced a second aggravating circumstance – heinous, atrocious and

cruel (“HAC”). (3 R 404-408.) The State then argued HAC to the judge at the

hearing, and the judge considered and found HAC and the contemporaneous

sexual battery to be proven by the State beyond a reasonable doubt. Davis I,

703 So. 2d at 1060. The trial court determined that both aggravators had been

proven, weighed them against the mitigation offered by Davis, and sentenced him

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to death. Id. at 1060.

Davis raised eight claims on direct appeal. Id. at 1057-58. Davis argued in

Claim V of the appeal that the trial court erred in finding HAC, when that

aggravator had not been submitted to the jury. Davis asserted, “Here, the record

establishes that the court neither instructed the jury that it could consider HAC and

the State neither presented nor argued that particular aggravating circumstance but

moreover, the court’s instructions specifically took consideration of HAC from the

purview of the jury by its specific instruction that the only aggravating

circumstance it could consider was death during the course of sexual battery.”

(Direct Appeal IB 27 (emphasis added).)

This Court denied relief on all claims on November 6, 1997. Davis I, 703

So. 2d at 1062.

As to Claim V, this Court rejected the claim as not being

sufficiently preserved at the trial level and denied it on the merits as well, relying

on pre-Ring caselaw. Id. at 1060-61 (citing “Hoffman v. State, 474 So. 2d 1178

(Fla. 1985) (court’s finding of HAC was not error even though jury was not

instructed on it); Fitzpatrick v. State, 437 So. 2d 1072, 1078 (Fla. 1983) (finding of

previous conviction of violent felony was proper even though jury was not

instructed on it.); Engle v. State, 438 So. 2d 803, 813 (Fla. 1983) . . . ”).

Davis timely filed a motion for postconviction relief pursuant to Florida

Rule of Criminal Procedure 3.851 on May 3, 1999. (14 PCR 2558.) He filed an

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amended 3.851 motion on May 6, 2004 and a “Third Motion, as Amended” on July

27, 2006. Within these motions, Davis alleged 14 claims with numerous subclaims, including claim twelve that “Davis was denied a reliable sentencing when

the jury’s role was diminished in violation of Caldwell v. Mississippi, 472 U.S.

320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), and claim thirteen that “Davis was

denied a reliable sentencing when the jury’s role was diminished in violation of

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).”

Davis II, 136 So. 3d at 1183.

ARGUMENT

Petitioner’s death sentence violates Hurst, and the error is not

“harmless”

Petitioner was sentenced to death pursuant to an unconstitutional Florida

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

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

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

penalty under Florida law. 136 S. Ct. at 620-22. Those findings included: (1) the

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

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

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

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

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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 Court held

that the jury, not the judge, must make the findings of fact required to impose

death. Id.

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

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

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

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

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

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

not required to sentence the defendant to death. Id. at 57-58.

Davis’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 sentenced Davis to death. The record does not reveal whether

Davis’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

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the mitigation. But the record is clear that Davis’s jurors were not unanimous as to

whether the death penalty should even be recommended to the court.

Davis’s pre-Hurst jury recommended the death penalty by a vote of 11-1.

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

To the extent any of the aggravators applied to Davis 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

See, e.g., Bailey v. Jones, No. SC17-433, 2017 WL 2874121, at *1 (Fla. July 6,

2017) (11-1 jury vote).

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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

Further, Davis’ jury was instructed that its recommendation would only be

advisory, so it did not feel the full burden of its decision in recommending death

for Davis, which Hurst found to be a critical flaw in Florida’s death penalty

scheme.

Thus, the jury instructions in this case also violated the Eighth

Amendment, as set forth in Caldwell v. Mississippi, 472 U.S. 320, 341 (1985)

(“This Court has always premised its capital punishment decisions on the

assumption that a capital sentencing jury recognizes the gravity of its task and

proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ In

this case, the State sought to minimize the jury’s sense of responsibility for

determining the appropriateness of death. Because we cannot say that this effort

Moreover, although this Court’s state-law precedent is sufficient to resolve any

harmless-error inquiry in this case, the United States Constitution would also

prohibit a denial of relief based on the harmless error doctrine because any attempt

to discern what a jury in a constitutional proceeding would have decided—based

solely on the pre-Hurst jury’s advisory recommendation—would violate the Sixth

and Eighth Amendments. 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, 279-80

(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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had no effect on the sentencing decision, that decision does not meet the standard

of reliability that the Eighth Amendment requires.”).

As recognized by the three dissenting votes on the U.S. Supreme Court to

Monday’s denial of certiorari in the cases of Truehill and Oliver:

At least twice now, capital defendants in Florida have raised an

important Eighth Amendment challenge to their death sentences that

the Florida Supreme Court has failed to address. Specifically, those

capital defendants, petitioners here, argue that the jury instructions in

their cases impermissibly diminished the jurors’ sense of

responsibility as to the ultimate determination of death by repeatedly

emphasizing that their verdict was merely advisory. “This Court has

always premised its capital punishment decisions on the assumption

that a capital sentencing jury recognizes the gravity of its task,” and

we have thus found unconstitutional under the Eighth Amendment

comments that “minimize the jury’s sense of responsibility for determining the appropriateness of death.” Caldwell v. Mississippi, 472 U.

S. 320, 341 (1985).

Although the Florida Supreme Court has rejected a Caldwell

challenge to its jury instructions in capital cases in the past, it did so in

the context of its prior sentencing scheme, where “the court [was] the

final decision-maker and the sentencer—not the jury.” Combs v. State,

525 So.2d 853, 857 (1988). In Hurst v. Florida, 577 U. S. ___,

___(2016) (slip op., at 10), however, we held that process, “which

required the judge alone to find the existence of an aggravating

circumstance,” to be unconstitutional.

With the rationale underlying its previous rejection of the

Caldwell challenge now undermined by this Court in Hurst,

petitioners ask that the Florida Supreme Court revisit the question.

The Florida Supreme Court, however, did not address that Eighth

Amendment challenge.

Truehill v. Florida, 16-9448; Oliver v. Florida, 17-5083 (Justice Sotomayor, with

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whom Justice Ginsburg and Justice Breyer join, dissenting from the denial of

certiorari).

II.

Because the Hurst decisions announced substantive constitutional rules,

the Supremacy Clause of the United States Constitution requires state

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

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review

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

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

state courts to apply “substantive” constitutional rules retroactively as a matter of

federal constitutional law, notwithstanding any separate state-law retroactivity

analysis. In Montgomery, a Louisiana state prisoner filed a claim in state court

seeking retroactive application of the rule announced in Miller v. Alabama, 567

U.S. 460 (2012) (holding that imposition of mandatory sentences of life without

parole on juveniles violates the Eighth Amendment). The state court denied the

prisoner’s claim on the ground that Miller was not retroactive as a matter of state

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

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

law, the state court was obligated to apply it retroactively. See id. at 732-34.

Montgomery clarified that the Supremacy Clause requires state courts to

apply substantive rules retroactively, notwithstanding state-law analysis.

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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, 567 U.S. at 483. Instead, “it mandate[d] only that a sentence

follow a certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty.” Id. Despite Miller’s

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

procedural requirement necessary to implement a substantive guarantee with a rule

that ‘regulate[s] only the manner of determining the defendant’s culpability.’”

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

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

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

22a

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

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

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

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

The Hurst decisions announced substantive rules that must be

applied retroactively to Petitioner under the Supremacy Clause

The Hurst decisions announced substantive rules that this Court must apply

retroactively to Petitioner under the Supremacy Clause. At least two substantive

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

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

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

aggravating circumstances together are “sufficient” to justify imposition of the

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

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

findings are manifestly substantive. See Montgomery, 136 S. Ct. at 734 (holding

that the decision whether a juvenile is a person “whose crimes reflect the transient

immaturity of youth” is a substantive, not procedural, rule). As in Montgomery,

these requirements amounted to an “instance[] in which a substantive change in the

law must be attended by a procedure that enables a prisoner to show that he falls

within a category of persons whom the law may no longer punish.” Id. at 735.

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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.”

202 So. 3d at 60-61. The function of the unanimity rule is to ensure that Florida’s

death-sentencing scheme complies with the Eighth Amendment and to “achieve

the important goal of bringing [Florida’s] capital sentencing laws into harmony

with the direction of the society reflected in [the majority of death penalty] states

and with federal law.” Id. As a matter of federal retroactivity law, the rule is

therefore substantive. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016)

(“[T]his Court has determined whether a new rule is substantive or procedural by

considering the function of the rule”). This is true even though the rule’s subject

concerns the method by which a jury makes its decision. See Montgomery, 136 S.

Ct. at 735 (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

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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. Welch 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

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

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reasonable doubt, and the Eighth Amendment requirement of jury unanimity in

fact-finding, are substantive constitutional rules as a matter of federal law because

they place certain murders “beyond the State’s power to punish,” Welch, 136 S. Ct.

at 1265, with a sentence of death. 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.”).

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

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

habeas case. 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 factfinding 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

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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 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.”).3

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

2017 WL 4416205 (11th Cir. Oct. 5, 2017), does not negate Petitioner’s

arguments. First, Lambrix was decided in the context of the current federal habeas

statute, which dramatically curtails review: “A state court’s decision rises to the

level of an unreasonable application of federal law only where the ruling is

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This Court has an obligation to address Petitioner’s federal

retroactivity arguments

Because this Court is bound by the federal constitution, it has the obligation

to address Petitioner’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. Dismissing this appeal on the

basis of Hitchcock would compound that error.

III.

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

should not be applied to Davis

objectively unreasonable, not merely wrong; even clear error will not suffice.” Id.

at *8 (internal quotation marks omitted). In contrast, this Court’s application of

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

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

Supreme Court’s decision in Hurst v. Florida requires that all critical findings

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

found unanimously by the jury . . . . We also hold . . . under the Eighth

Amendment to the United States Constitution, that in order for the trial court to

impose a sentence of death, the jury’s recommended sentence must be

unanimous”). Second, Lambrix dealt with an idiosyncratic issue—the

“retroactivity” of Florida’s new capital sentencing statute. Lambrix did not argue,

as Petitioner does here, for the retroactivity of the constitutional rules arising from

the Hurst decisions. Third, the Eleventh Circuit did not address the specific

arguments about federal retroactivity that are raised here. Fourth, almost needless

to say, an Eleventh Circuit panel decision has no precedential value in this forum.

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

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

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

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

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

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

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

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

The Ring-based retroactivity cutoff violates the United States Constitution

and should not be applied to deny Davis the same Hurst relief being granted in

scores of materially indistinguishable collateral-review cases. Denying Davis 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.

This Court’s retroactivity cutoff violates the Eighth and

Fourteenth Amendments’ prohibition against arbitrary and

capricious imposition of the death penalty

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition of the death

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

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

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

Georgia, 408 U.S. 238, 310 (1972) (“[T]he Eighth and Fourteenth Amendments

cannot tolerate the infliction of a sentence of death under legal systems that permit

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

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

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

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

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

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

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

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

counsel sought extensions of time to file a brief; whether a case overlapped with

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

submit the opinion for release; whether an extension was sought for a rehearing

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

necessitating issuance of a corrected opinion; whether counsel chose to file a

petition for a writ of certiorari in the United States Supreme Court or sought an

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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’s and James

Card’s unrelated death sentences in separate opinions that were issued on the same

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

803 So. 2d 613 (Fla. 2001). Both inmates petitioned for a writ of certiorari in the

United States Supreme Court. Mr. Card’s sentence became final four (4) days after

Ring was decided—on June 28, 2002. Card v. Florida, 536 U.S. 963 (2002). Mr.

Bowles’s sentence, however, became final seven (7) days before Ring was

decided—on June 17, 2002. Bowles v. Florida, 536 U.S. 930 (2002). This Court

recently granted Hurst relief to Mr. Card, ruling that Hurst was retroactive because

his sentence became final after the Ring cutoff. See Card, 219 So. 3d at 47. Mr.

Bowles, on the other hand, whose case was decided on direct appeal on the same

day as Mr. Card’s, and who filed his certiorari petition in the Supreme Court after

Mr. Card, now finds himself on the pre-Ring side of this Court’s current

retroactivity cutoff.

Other arbitrary factors affecting whether a defendant receives Hurst relief

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

resentencing was granted. Under the Court’s current approach, “older” cases dating

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

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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); 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 Davis, but who was later

resentenced to death after Ring, would receive Hurst relief and Davis 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 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).4

Even if this Court were to maintain its unconstitutional retroactivity “cutoff” at

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

such as Petitioner, 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.”). Petitioner urges that the Court allow him to brief this aspect

of his case in an untruncated fashion.

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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 v. Florida, 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.

This Court’s retroactivity cutoff violates the Eighth

Amendment’s guarantee of reliability in capital sentencing

Hurst v. State was premised upon this Court’s interpretation of what the

Florida Constitution and the national consensus required under the Eighth

Amendment to ensure reliability of death sentences. In Hurst v. State this Court

held that it is reliability that is the touchstone of the Eighth Amendment in capital

cases. And it is the need for reliability that led to this Court’s decision in Hurst v.

State, requiring unanimity under the Eighth Amendment and the Florida

Constitution. That decision by necessity inherently implied this Court

acknowledged the constitutional requirement for reliability in a death sentence and

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recognized the need for enhancing reliability in Florida under its capital sentencing

statute. This Court’s opinion in its simplest terms is the acknowledgement that

cases in which unanimity was not required are inherently less reliable and carry

with that lack of reliability the impermissible likelihood that the decision to impose

death was made arbitrarily and wantonly in violation of the Eighth Amendment.

See Furman v. Georgia; 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153

(1976). Thus, it is within that context that the proper basis for Mr. Davis’s

argument against this Court’s approach to limited retroactive application of Hurst

in both Asay and Hitchcock is properly understood. This Court’s continued reliance

on Asay to repeatedly reject Hurst claims similar to Mr. Davis’s will amount to the

denial of due process and a fair opportunity to challenge his sentences of death.

Mr. Davis challenges his death sentence on the basis of the conclusion in

Hurst v. State that a death sentence flowing from a death recommendation in which

the jury was not required to return a unanimous verdict on all findings of fact lacks

reliability. This is a much different and stronger argument in support of

retroactivity under Hurst v. State than the one made by Mr. Hitchcock. The Eighth

Amendment requires that a death sentence carry extra reliability in order to insure

that it was not imposed arbitrarily. Heightened reliability in capital cases is a core

value of the Eighth Amendment and Furman v. Georgia.

34a

In Hurst v. State, this Court held that enhanced reliability warranted the

requirement that a death recommendation be returned by a unanimous jury. In

doing so, the Court effectively recognized that a death sentence without the

unanimous consent of the jury was lacking in reliability and thus did not carry the

heightened reliability required by the Eighth Amendment. In that context, this

Court’s decisions in Mosley and Asay established a bright line cutoff as to the date

at which the State’s interest in finality trumped the interests of fairness and curing

individual injustice, such a bright line cutoff violated the Eighth Amendment

principle set forth in Hall v. Florida. Mr. Hitchcock did not make this argument as

to the retroactive benefit of Hurst v. State being arbitrarily limited by a bright line

cutoff in violation of the Eighth Amendment, nor has this Court addressed this

issue.

While this Court in Hurst v. State found non-unanimous death

recommendations were lacking in reliability, the level of unreliability is obviously

compounded in some cases by matters and issues that increase the unreliability of a

particular death sentence. Just as there were death sentenced individuals on the

wrong side of the 70 IQ score cutoff who were likely intellectually disabled and

erroneously under sentence of death as discussed in Hall, there are individuals with

pre-Ring death sentences that are founded upon proceedings layered in error to the

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extent that the cumulative unreliability overcomes any interests the State may have

in finality.

Additionally, it is important to also note that while the State’s interest in

finality increases the older the case is, older cases will often have greater

unreliability due to advances in science and improvements in the quality of

representation in capital cases over time. This is especially accurate in Mr. Davis’s

case where he has raised claims in postconviction challenging the reliability of the

forensic evidence at trial and the ineffective assistance counsel at both guilt and

penalty phase. On appeal from denial of those claims by the circuit court, this

Court determined that Mr. Davis was incapable of establishing prejudice at penalty

phase given the “substantial aggravation” in the case and the “brutal and disturbing

nature” of the murders. Davis v. State, 940 So. 2d 1109, 1137-38 (Fla. 2006). That

finding was premised upon this Court’s understanding that a jury’s advisory

recommendation would not be altered in favor of life unless six jurors would have

been convinced to vote in favor of life--a standard which, of course, has since been

rejected by this Court in Bevel v. State, __ So. 3d __, 2017 WL 2590702 (Fla. June

15, 2017).

As such, death sentences imposed after a jury did not return unanimous

findings on all facts necessary to impose a sentence of death before June 24, 2002,

are just as unreliable as similar death sentences imposed after June 24, 2002. The

36a

older the death sentence, the more likely it is as to the unreliability of the death

sentence due to the less reliable scientific methodology the further back in time the

death sentence was imposed.

Drawing a line at June 24, 2002 is just as arbitrary and imprecise as the

bright line cutoff at issue in Hall v. Florida, 134 S. Ct. at 2001 (“A State that

ignores the inherent imprecision of these tests risks executing a person who suffers

from intellectual disability.”). When the United States Supreme Court declared that

cutoff unconstitutional, those death sentenced individuals with IQ scores above 70

were found to be entitled to a case by case determination of whether the Eighth

Amendment precludes their execution. The unreliability of the proceedings giving

rise to Mr. Davis’s death sentence compounds the unreliability of his death

recommendation. A recommendation that was returned by a jury unaware of its

sentencing responsibility, as recognized in Hurst v. State, to such an extent that the

interests of fairness outweigh the State’s interest in finality in his case.

This Court’s retroactivity cutoff violates the Fourteenth

Amendment’s guarantee of equal protection and due process

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

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

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

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

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

37a

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

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

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

requires that distinctions in state criminal laws that impinge upon fundamental

rights be strictly scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541

(1942). Capital defendants have a fundamental right to a reliable determination of

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

a line between defendants who will receive the benefit of the rules designed to

enhance the quality of decision-making by a penalty-phase jury and those who will

not, the state’s 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, 533 (1973).

As a due process matter, denying Hurst retroactivity to “pre-Ring”

defendants like Petitioner violates the Fourteenth Amendment because once a state

requires certain sentencing procedures, it creates Fourteenth Amendment life and

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

(1985) (due process interest in state-created right to direct appeal); Hicks, 447 U.S.

at 346 (liberty interest in state-created sentencing procedures); Ford v. Wainwright,

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

38a

meaningful state competency proceedings); Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272, 288-89 (1998) (O’Connor, J., with Souter, Ginsburg, & Breyer, JJ.,

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

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

violation of the life and liberty interest it creates is governed by federal

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

Evitts, 469 U.S. at 393. Defendants have “a substantial and legitimate expectation

that [they] will be deprived of [their] liberty only to the extent determined by the

jury in the exercise of its discretion . . . and that liberty interest is one that the

Fourteenth Amendment preserves against arbitrary deprivation by the State.”

Hicks, 447 U.S. at 346. Courts have found in a variety of contexts that state-created

death penalty procedures vest in a capital defendant life and liberty interests that

are protected by due process. See, e.g., Ohio Adult Parole Auth., 523 U.S. at 272;

Ford, 477 U.S. at 427-31. 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.

447 U.S. at 343.

39a

CONCLUSION

This Court should find that Hitchcock is not binding on any of the issues

raised by Davis in his habeas petition, hold full briefing on these arguments, and

ultimately conclude that federal law requires the Hurst decisions to be applied

retroactively to Davis, vacate his death sentence, and remand to the circuit court

for a new penalty phase or imposition of a life sentence.

Respectfully submitted,

/s/ Rick Sichta________

Rick A. Sichta, Esq.

Fla. Bar No.: 669903

Susanne K. Sichta

Fla. Bar No. 059108

Joe Hamrick, Esq.

Fla. Bar No.: 047049

301 W. Bay St., Ste. 14124

(904) 329-7246

rick@sichtalaw.com

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on October 17, 2017, the foregoing was electronically

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

jennifer.keegan@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Rick Sichta___________

ATTORNEY

40a

Filing # 63837852 E-Filed 11/06/2017 06:23:32 PM

IN THE SUPREME COURT OF FLORIDA

TONEY DERON DAVIS,

Petitioner,

CASE NO. SC17-1711

CAPITAL CASE

RECEIVED, 11/06/2017 06:28:26 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Respondent.

_____________________________/

RESPONDENTS’ REPLY TO PETITIONER’S

RESPONSE TO THIS COURT’S SEPTEMBER 27, 2017,

HITCHCOCK SHOW CAUSE ORDER

PAMELA JO BONDI

ATTORNEY GENERAL

JENNIFER L. KEEGAN

ASSISTANT ATTORNEY GENERAL

Florida Bar No.: 0105283

PL-01, The Capitol

Tallahassee, FL 32399-1050

jennifer.keegan@myfloridalegal.com

capapp@myfloridalegal.com

Phone: (850)414-3579

Counsel for Respondents

41a

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................................3

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

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT .............................................................................................................3

A. Davis’ Hurst Claim is Barred by the Doctrine of Res Judicata ........................4

B. The June 24, 2002, Cutoff for Hurst Retroactivity is Not Unconstitutional ....5

C. Hurst Does Not Establish a New Substantive Constitutional Rule ................10

CONCLUSION ........................................................................................................13

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TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) .....................................................7, 8

Archer v. Jones, No. SC16-2111, 2017 WL 1034409 (Fla. Mar. 17, 2017) ............9

Asay v. State, 210 So. 3d 1 (Fla. 2016) .......................................................... passim

Asay v. State, 224 So. 3d 695 (Fla. 2017) ............................................................7, 9

Atkins v. Virginia, 536 U.S. 304 (2002) ....................................................................6

Bogle v. State, 213 So. 3d 833 (Fla. 2017) ...............................................................9

Caldwell v. Mississippi, 472 U.S. 320 (1985) ......................................................7, 8

Cherry v. Jones, No. SC16-694, 2017 WL 1033693 (Fla. Mar. 17, 2017) ..............9

Danforth v. Minnesota, 522 U.S. 264 (2008) ...........................................................4

Davis v. State, 703 So. 2d 1055 (Fla. 1997) ..........................................................1, 8

Davis v. Florida, 524 U.S. 930 (1998) .......................................................................1

Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17, 2017) ........... 2, 5, 9

Durocher v. Singletary, 623 So. 2d 482 (Fla.1993) ...................................................2

Faretta v. California, 422 U.S. 806 (1975) ................................................................2

Fla. Dept. of Transportation v. Juliano, 801 So. 2d 101 (Fla. 2001) ....................4, 5

Floyd v. State, 497 So. 2d 1211 (Fla. 1986) ...........................................................10

Gaskin v. State, 218 So. 3d 399 (Fla. 2017) .................................................... 2, 8, 9

Geralds v. Jones, No. SC16-659, 2017 WL 944236 (Fla. Mar. 10, 2017) ...............9

Griffith v. Kentucky, 479 U.S. 314 (1987) ...............................................................6

Hartley v. Jones, No. SC16-1359, 2017 WL 944232 (Mar. 10, 2017) .....................9

Hamilton v. Jones, No. SC16-984, 2017 WL 836807 (Fla. Mar. 3, 2017) ..............9

Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017) .............

passim

Hurst v. Florida, 136 S. Ct. 616 (2016) ........................................................... passim

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

Ivan V. v. City of New York, 407 U.S. 203 (1972) ............................................9, 10

Johnson v. State, 904 So. 2d 400 (Fla. 2005) ...........................................................4

Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Mar. 17, 2017) ........................9

Jones v. State, No. SC15-1549, 2017 WL 4296370 (Fla. Sept. 28, 2017) ................9

Kimbrell v. Paige, 448 So. 2d 1009 (Fla. 1984) .......................................................4

Lambrix v. Florida, 872 F. 3d 1170 (11th Cir. 2017) ...................................... 12, 13

Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla. Sep. 29, 2017) 7, 8, 9

iii

43a

Lambrix v. State, 217 So. 3d 977 (Fla. 2017) ...........................................................9

Lawrence v. Chater, 516 U.S. 163 (1996) ................................................................4

Lukehart v. Jones, No. SC16-1255, 2017 WL 1033691 (Fla. Mar. 17, 2017) .........7

Marshall v. Jones, SC16-779, 2017 WL 1739246 (Fla. May 4, 2017)......................9

Mosley v. State, 209 So. 3d 1248 (Fla. 2016) .......................................................2, 8

Oats v. Jones, 220 So. 3d 1127 (Fla. 2017) ...............................................................9

Penry v. Lynaugh, 492 U.S. 302 (1989) ...................................................................6

Powell v. Delaware, 153 A. 3d 69 (Del. 2016) ................................................ 10, 11

Rauf v. State, 145 A. 3d 430 (Del. 2016) ........................................................ 10, 11

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

Rodriguez v. State, 219 So. 3d 751 (Fla. 2017) ........................................................9

Schriro v. Summerlin, 542 U.S. 348 (2004) .................................................... 11, 13

Smith v. State, 598 So. 2d 1063 (Fla. 1992) .............................................................6

Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3, 2017) .....................9

Suggs v. Jones, No. SC16-1066, 2017 WL 1033680 (Fla. Mar. 17, 2017) ..............9

Teague v. Lane, 489 U.S. 288 (1989) ..................................................................4, 10

Trease v. State, 41 So. 3d 119 (Fla. 2010) ................................................................3

Wainwright v. State, No. SC15-2280, 2017 WL 394509 (Fla. Jan. 30, 2017) .........9

Welch v. U.S., 136 S. Ct. 1257 (2016) ...................................................................12

Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017) .............9

Witt v. State, 387 So. 2d 922 (Fla. 1980) ..................................................................4

Youngblood v. Taylor, 89 So. 2d 503 (Fla. 1956) .....................................................5

Zack v. State, No. SC15-1756, 16-1090, 2017 WL 2590703 (Fla. June 15, 2017) ..9

Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017) ....................................................9

Zeigler v. State, 580 So. 2d 127 (Fla. 1991) ...........................................................10

OTHER AUTHORITIES

Fla. R. Crim. P. 3.851 ................................................................................................2

44a

STATEMENT OF THE CASE AND FACTS

Toney Deron Davis was convicted of first-degree murder, aggravated child

abuse, and sexual battery for the murder of a two-year-old child, Caleasha

Cunningham. Davis v. State, 703 So. 2d 1055 (Fla. 1997). In the penalty phase, the

jury recommended a death sentence by a vote of eleven to one. The trial court found

the following aggravating factors (“aggravators”): (1) the murder was committed

during the course of a sexual battery; and (2) the murder was especially heinous,

atrocious, or cruel (HAC). Id. at 1057. The trial court did not find any statutory

mitigating circumstances (“mitigators”) and found one nonstatutory mitigator

focusing on positive aspects of Davis’ family background. Id. The Florida Supreme

Court affirmed petitioner’s conviction and death sentence on direct appeal on

November 6, 1997. Id. (rehearing denied January 9, 1998). His conviction and

sentence became final when the United States Supreme Court declined to grant

certiorari review in his case on June 15, 1998. Davis v. Florida, 524 U.S. 930 (1998).

In 2016, Davis appealed to this Court the trial court’s denial of a successive

postconviction motion. When this Court affirmed the lower court’s order, this Court

addressed whether Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202

So. 3d 40 (Fla. 2016), applied retroactively to Davis’ case. On February 17, 2017,

this Court denied retroactive application of Hurst to Davis’ case pursuant to Asay v.

45a

State (Asay V), 210 So. 3d 1 (Fla. 2016). Davis v. State, No. SC16-264, 2017 WL

656307 (Fla. Feb. 17, 2017).

On January 12, 2017, Davis filed another Successive Postconviction Motion

(“Successive Motion”) in the trial court seeking Hurst relief. On February 17, 2017,

the trial court denied the Successive Motion, holding that Asay V, 210 So. 3d at 1,

Mosley v. State, 209 So. 3d 1248 (Fla. 2016), and Gaskin v. State, 218 So. 3d 399

(Fla. 2017), barred retroactive application of Hurst to Davis’s case, and as such, the

Successive Motion was untimely under Rule 3.851(d), Florida Rules of Criminal

Procedure. In lieu of appealing the lower court’s order, on September 22, 2017,

Davis filed a Petition for Writ Habeas Corpus (“Habeas Petition”) in this Court

seeking relief under Hurst v. Florida and Hurst v. State.

On August 10, 2017, this Court affirmed the lower court’s denial of Hurst

relief in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10, 2017),

in accordance with this Court’s prior decision in Asay V. On September 27, 2017,

this Court issued an order for Davis to show cause as to “why the habeas corpus

should not be denied in light of this Court's decision in Hitchcock v. State, SC17445.” On October 17, 2017, Davis filed his “Petitioner’s Response to This Court’s

September 27, 2017 Hitchcock Show Cause Order” (“Response”). Davis also filed

a Motion to Accept Enlarged Brief. The following day, Respondents submitted a

written objection and asked this Court to toll time for Respondent to file its reply

46a

until the Motion to Accept Enlarged Brief was disposed of. On October 25, 2017,

this Court issued its Order granting Davis’ Motion to Accept Enlarged Brief and

granting Respondents’ request to toll time to file its reply. This is Respondents’

Reply to Davis’s Response.

SUMMARY OF THE ARGUMENT

Davis has failed to show cause as to why his case should be excluded from

this Court’s precedent in Asay V as reaffirmed by Hitchcock. Because Davis’s case

was final before Ring, and because Hurst is not retroactive under federal law, this

Court should deny Davis’s pending Habeas Petition.

ARGUMENT

Davis argues that various constitutional rules mandate the retroactive

application of Hurst v. Florida and Hurst v. State to his case. Davis is not entitled to

relief based on this Court’s precedent, and he has failed to show cause as to why his

Habeas Petition should not be denied.

In Asay v. State (Asay V), 210 So. 3d 1, 22 (Fla. 2016), this Court held that

Hurst v. State, 202 So. 3d 40 (Fla. 2016), is not retroactive to any case in which the

death sentence was final prior to the June 24, 2002, decision in Ring v. Arizona, 536

U.S. 584 (2002). This Court performed a retroactivity analysis under state law using

47a

the standard set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980), which provides

“more expansive retroactivity standards than those adopted in Teague,1” which

enumerates the federal retroactivity standards. Asay V, 210 So. 3d at 15-16

(emphasis in original) (quoting Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005));

see also Danforth v. Minnesota, 522 U.S. 264, 280-81 (2008) (allowing states to

adopt a retroactivity test that is broader that Teague).2

A. Davis’ Hurst Claim is Barred by the Doctrine of Res Judicata

Davis presents multiple arguments for why Hurst should be applied

retroactively to his case. However, the doctrine of res judicata bars any Hurst relief

in Davis’ case because this Court has previously rejected his claim that Hurst applies

retroactively to his case. Florida law establishes that

[a] judgment on the merits rendered in a former suit between the same

parties or their privies, upon the same cause of action, by a court of

competent jurisdiction, is conclusive not only as to every matter which

was offered and received to sustain or defeat the claim, but as to every

other matter which might with propriety have been litigated and

determined in that action.”

Fla. Dept. of Transportation v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (quoting

Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984)). “Based on principles of res

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

Davis appears to complain about being bound by the limited briefing order in this case and the holdings

in Asay and Hitchcock on due process grounds. This Court’s long-standing tag procedure does not violate

due process. Indeed, the United States Supreme Court has long employed a somewhat similar procedure.

See, e.g., Lawrence v. Chater, 516 U.S. 163, 166 (1996) (“the [grant, vacate, remand] order has, over the

past 50 years, become an integral part of this Court's practice, accepted and employed by all sitting and

recent Justices”).

48a

judicata, a judgment on the merits will thus bar ‘a subsequent action between the

same parties on the same cause of action.’” Id. (quoting Youngblood v. Taylor,

89 So. 2d 503, 505 (Fla. 1956) (emphasis omitted)).

This Court has already issued a ruling denying Hurst relief in Davis’ case.3 In

2016, Davis appealed to this Court a trial court denial of a successive postconviction

motion. When this Court affirmed the lower court’s order, this Court addressed

whether Hurst v. Florida and Hurst v. State applied retroactively to Davis’ case, and

held that it did not. Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17,

2017) (relying on Asay V, 210 So. 3d at 1). As this Court has already issued a final

order denying retroactive application of Hurst to Davis’ case, res judicata bars

reconsideration of this claim here.

B. The June 24, 2002, Cutoff for Hurst Retroactivity is Not Unconstitutional

Davis alleges that the retroactivity cutoff for Hurst relief established by Asay

V, 210 So. 3d at 1, violates various constitutional principles, including the Due

Process Clause, the Equal Protection Clause, fundamental fairness, and the Eighth

Amendment protection against unreliable and arbitrary and capricious punishment.

To support his point, Davis notes various facts in other cases, such as how long this

Court took to issue its opinion in a case. (Response at 25-27). He asserts that the

This Court’s ruling in Davis’ prior appeal is now final as the time for filing a petition for writ of

certiorari in the United States Supreme Court has expired.

49a

differing circumstances of a case will affect when the case was final and thereby

affect whether a given defendant is entitled to a review of Hurst error in his case.

Davis appears to conclude that it is unconstitutional to extend Hurst relief to some

defendants and not others based on when their convictions and sentences became

final.

While every case is different, and these differences may impact when a

conviction and sentence become final, these differing outcomes arise in every

circumstance where a new constitutional rule is not applied retroactively to cases on

collateral review. If Davis’s complaints were valid, they would compel retroactive

application to every case every time a change in the law occurred. Such a result

would upend any semblance of finality in the criminal justice system.

Finality is a significant consideration when determining whether to apply new

rules to existing cases. Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (holding finality

concerns in retroactivity are applicable in the capital context) (abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002)). In Griffith v. Kentucky, 479

U.S. 314, 328 (1987), the Supreme Court held “that a new rule for the conduct of

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

pending on direct review or not yet final, with no exception for cases in which the

new rule constitutes a ‘clear break’ with the past.” See also Smith v. State, 598 So.

2d 1063, 1065 (Fla. 1992). Under this “pipeline” concept, only those still pending

50a

direct review would receive the benefit of relief from Hurst error. The fact that this

Court has drawn the line at the decision date in Ring instead of the decision date in

Hurst benefits more appellants instead of less.

Davis argues that failing to apply Hurst retroactively to his case violates the

Eighth Amendment’s guarantee of reliable sentencing because his jury did not vote

unanimously for death. In a similar vein, he also argues that the June 24, 2002, Hurst

retroactivity cutoff violates the Due Process Clause, the Equal Protection Clause,

and the Eighth Amendment’s prohibition of arbitrary and capricious punishments.

(Response at 24-34) He argues these alleged constitutional errors entitled him to

retroactive application of Hurst. These claims are clearly meritless.

Recently, Cary Lambrix raised similar claims in his 2017 appeal in this Court.

Initial Brief of Appellant, Lambrix v. State, No. SC17-1687, 2017 WL 4320637 (Fla.

Sep. 29, 2017). In its Lambrix opinion, this Court made clear that its opinions in

Hitchcock, 2017 WL 3431500 at *1, and Asay v. State (Asay VI), 224 So. 3d 695

(Fla. 2017), contemplated and rejected such constitutional arguments.4 Lambrix, at

*1-2. Moreover, the process under which Davis was sentenced was reliable5. The

Davis’s argument that it is unfair to extend Hurst retroactivity to the Ring decision date but not to the June

26, 2000, decision date of Apprendi v. New Jersey, 530 U.S. 466 (2000), is meritless. Unlike Ring, the

Apprendi opinion clearly states it does not apply to capital cases, and thus the decision date should not serve

as an end for Hurst retroactivity. Apprendi, 530 U.S. at 496-97. Further, this Court has declined to extend

Hurst relief in Lukehart v. Jones, No. SC16-1255, 2017 WL 1033691, *1 (Fla. Mar. 17, 2017), in which

the conviction and sentence became final after Apprendi, but before June 24, 2002.

To the extent Davis argues the role of his jury was diminished in violation of Caldwell v. Mississippi, 472

U.S. 320 (1985), because the jury was instructed that its death recommendation was advisory, this claim is

51a

jury in his case was instructed that a majority vote was required for a death

recommendation, and they returned a verdict of eleven to one. Davis’ jury was never

instructed in a way that would jeopardize the reliability of its verdict. Davis, 703 So.

2d at 1055. Davis’ death sentence is not unreliable, and neither the Due Process

Clause, the Equal Protection Clause, nor the Eighth Amendment entitle him to

retroactive application of Hurst.

Further, Davis asserts briefly that this Court must extend Hurst retroactively

to his case under the fundamental fairness doctrine. (Response at 27, fn. 4). Davis

misinterprets the Mosley v. State, 209 So. 3d 1248 (Fla. 2016), holding to extend

Hurst relief to pre-Ring cases through the fundamental fairness doctrine when an

Apprendi or Ring claim was previously raised. The Mosley fundamental fairness

discussion concerned the impact this Court’s reliance on pre-Hurst precedent had on

Mosley’s post-Ring case. Specifically, the Court noted that Mosley had previously

sought Ring relief and was denied on bases this Court now considers incorrect.

Mosley, 209 So. 3d at 1275. Mosley’s fundamental fairness discussion was never

intended to create an exception to the June 24, 2002, Hurst retroactivity cutoff, and

this Court has confirmed this by rejecting the same argument in Gaskin v. State, 218

meritless. This Court has repeatedly rejected challenges to the standard jury instructions in death penalty

cases pursuant to Caldwell. Hall v. State, 212 So. 3d 1001, 1032-33 (Fla. 2017).

52a

So. 3d 399 (Fla. 2017). Fundamental fairness does not compel retroactive application

of Hurst to Davis’ case.

This Court has consistently adhered to using June 24, 2002 as the cutoff point

for retroactivity.6 This Court’s Hitchcock opinion reaffirmed the decision in Asay V

and rejected Hitchcock’s various constitutional arguments. This Court noted that

Hitchcock’s constitutional arguments against the Ring retroactivity cutoff had

already been considered and rejected in the Asay V opinion. Hitchcock, 2017 WL

3431500 at *2; see also Asay VI, 224 So. 3d at 703 (rejecting the claim that Chapter

2017-1, Laws of Florida, “creates a substantive right to a life sentence unless a jury

unanimously recommends otherwise”); Lambrix, 2017 WL 4320637 at *1 (rejecting

arguments based on the Eighth Amendment, denial of due process and equal

protection, and a substantive right based on new legislation).

See Asay, 210 So. 3d at 8, 22; Jones v. State, No. SC15-1549, 2017 WL 4296370, *2 (Fla. Sept. 28, 2017);

Hitchcock, 2017 WL 3431500; Zack v. State, Nos. SC15-1756, SC16-1090, 2017 WL 2590703, *5 (Fla.

June 15, 2017); Zakrzewski v. Jones, 221 So. 3d 1159 (Fla. 2017); Oats v. Jones, 220 So. 3d 1127 (Fla.

2017); Marshall v. Jones, No. SC16-779, 2017 WL 1739246 (Fla. May 4, 2017); Rodriguez v. State, 219

So. 3d 751 (Fla. 2017); Willacy v. Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17, 2017); Suggs v.

Jones, No. SC16-1066, 2017 WL 1033680, *1 (Fla. Mar. 17, 2017); Lukehart, No. SC16-1225, 2017 WL

1033691, *1; Cherry v. Jones, No. SC16-694, 2017 WL 1033693, *1 (Fla. Mar. 17, 2017); Archer v. Jones,

No. SC16-2111, 2017 WL 1034409, *1 (Fla. Mar. 17, 2017); Jones v. Jones, No. SC16-607, 2017 WL

1034410 (Mar. 17, 2017); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1 (Mar. 10, 2017); Geralds

v. Jones, No. SC16-659, 2017 WL 944236, *1 (Fla. Mar. 10, 2017); Lambrix v. State, 217 So. 3d 977 (Fla.

2017); Stein v. Jones, No. SC16-621, 2017 WL 836806 (Fla. Mar. 3, 2017); Hamilton v. Jones, No. SC16984, 2017 WL 836807 (Fla. Mar. 3, 2017); Davis v. State, No. SC16-264, 2017 WL 656307 (Fla. Feb. 17,

2017); Bogle v. State, 213 So. 3d 833 (Fla. 2017); Wainwright v. State, No. SC15-2280, 2017 WL 394509

(Fla. Jan. 30, 2017); Gaskin, 218 So. 3d at 399.

53a

In sum, the June 24, 2002 Hurst retroactivity cutoff date is not

unconstitutional. Davis’ various constitutional arguments are unpersuasive and have

been previously rejected by this Court in other cases.

C. Hurst Does Not Establish a New Substantive Constitutional Rule

Davis alleges that Hurst is retroactive under the United States Supreme

Court’s retroactivity test put forth in Teague v. Lane, 489 U.S. 288 (1989), because

Hurst constitutes a substantive change. (Response at 18). Davis relies upon Ivan V.

v. City of New York, 407 U.S. 203, 205 (1972), and Powell v. Delaware, 153 A. 3d

69 (Del. 2016), to support his argument. (Response at 22). He claims that Hurst is

a substantive change because it “addressed the proof-beyond-a-reasonable-doubt

standard.” (Response at 22). However, the standard of proof for proving aggravating

factors in Florida has been beyond a reasonable doubt long before Hurst was

decided. See Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986); Zeigler v. State,

580 So. 2d 127, 129 (Fla. 1991). Davis’s reliance on Powell is misplaced because

the Delaware Supreme Court in Powell agreed that Ring and Hurst did not change

the burden of proof that was used in those cases. Powell, 153 A. 3d at 74 (“neither

Ring nor Hurst involved a Due Process Clause violation caused by the

unconstitutional use of a lower burden of proof”).

Powell, 153 A. 3d at 74.

Furthermore, Powell addressed the retroactivity of Rauf v. State, 145 A. 3d 430 (Del.

2016), the Delaware Court’s initial case interpreting Hurst v. Florida. The Delaware

54a

Court distinguished Rauf from Hurst and Ring because Rauf addressed burden-ofproof issues that existed under Delaware state law. Rauf, at 74. Because the

Delaware Court held Rauf retroactive based on issues specific to Delaware state law,

the Powell case is easily distinguishable from Hurst and fails to support Davis’s

claim.

Importantly, the United States Supreme Court addressed the retroactivity of

Ring, and found that it was a procedural rule that did not justify retroactive

application. In Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court

determined that Ring was not a substantive constitutional change in the law because

it only “altered the range of permissible methods for determining whether a

defendant’s conduct is punishable by death, requiring that a jury rather than a judge

find the essential facts bearing on punishment.” Id., at 353. Ring did not alter the

type of conduct that is punishable nor the group or class of people that can be

punished under the law. Id. Thus, the new rule established by Ring was procedural

in nature and not retroactive to convictions and sentences that were already final. Id.

at 358. Since the Supreme Court held that Ring did not create a substantive

constitutional rule, and Hurst is simply an extension of Ring to Florida’s sentencing

scheme, Hurst is likewise procedural in nature and is not retroactive to convictions

and sentences that are already final.

55a

Davis further relies on Welch v. U.S., 136 S. Ct. 1257 (2016), to assert that

Hurst “place[s] certain murders ‘beyond the State’s power to punish,’” and is thereby

substantive in nature. (Response at 22). Contrary to Davis’s assertion, Hurst does

not change the definition of first-degree murder, nor exclude a class of persons from

being subject to the death penalty. Rather, Hurst modifies the procedural steps

required to impose the death penalty. The very case Davis relies on aptly illustrates

the State’s point. In Welch, the United States Supreme Court held that striking the

definition of “prior violent felony” in the Armed Career Criminal Act was a

substantive change that must be applied retroactively. 136 S. Ct. at 1259. The United

States Supreme Court explained that by striking the definition of a prior violent

felony, “the same person engaging in the same conduct is no longer subject to the

Act.” Id. at 1265. In contrast to Welch, Hurst did not change the definition of firstdegree murder, but rather, changed the procedural requirements for determining the

penalty for first-degree murder. As such, Hurst is plainly procedural in nature.

Davis acknowledges that the Eleventh Circuit has declined to extend Hurst

retroactively in Lambrix v. Florida, 872 F. 3d 1170 (11th Cir. 2017), but he attempts

to explain this ruling away as a product of a narrow standard of review. (Response

at 22-23, fn. 3). However, the Eleventh Circuit’s ruling reached the merits of the

retroactivity issue and clearly held that Hurst is not retroactive under federal law.

56a

The opinion explained that denying Hurst retroactivity was in full accord with Ring

and Schriro, 542 U.S. at 348. Lambrix, 872 F. 3d at 1182-83.

Here, just as in Hitchcock, Davis raises various constitutional provisions to

argue that Hurst should be retroactively applied to him. However, just as in Asay,

as reaffirmed by Hitchcock, Hurst does not apply retroactively to Davis. This case

became final on June 15, 1998, which is well prior to the June 24, 2002, decision in

Ring. As such, Hurst is not retroactive to this case. Thus, the Habeas Petition should

be denied.

This Court’s rulings in Asay and Hitchcock apply to Davis, and he has

demonstrated no cause for this Court to recede from its lengthy case precedent.

Because Davis’s judgment and sentence were final prior to the decision in Ring,

Hurst is not retroactive to him.

CONCLUSION

WHEREFORE, Respondents pray this Court deny Davis’s Habeas Petition.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/Jennifer L. Keegan_____

JENNIFER L. KEEGAN

ASSISTANT ATTORNEY GENERAL

Florida Bar No.: 0105283

PL-01, The Capitol

Tallahassee, FL 32399-1050

jennifer.keegan@myfloridalegal.com

capapp@myfloridalegal.com

57a

Phone: (850)414-3579

Counsel for Respondents

58a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished via the eportal to Rick Sichta, Esq., rick@sichtalaw.com, and Suzanne

Sichta, Esq., Suzanne@sichtalaw.com, Attorneys for Petitioner; this 6th day of

November, 2017.

CERTIFICATE OF FONT COMPLIANCE

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

14-point Times New Roman, in compliance with Fla. R. App. P. 9.210.

/s/ Jennifer L Keegan_____________

Counsel for Respondents

59a

Filing # 64379728 E-Filed 11/18/2017 08:49:08 AM

FLORIDA SUPREME COURT

500 South Duval Street

Tallahassee, Florida 32399

CASE NO.: SC17-1711

L.T. NO.:

16-1992-CF-13193

RECEIVED, 11/18/2017 08:53:29 AM, Clerk, Supreme Court

TONEY DERON DAVIS

STATE OF FLORIDA

__________________________________________________________________

Petitioner.

Respondent.

PETITIONER’S REPLY TO RESPONDENT’S REPLY TO RESPONSE TO

THIS COURT’S SEPTEMBER 27, 2017 HITCHCOCK SHOW CAUSE

ORDER

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT

Petitioner renews his requests that the Court permit untruncated briefing and

grant oral argument.

ARGUMENT

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

Eleventh Circuit addressed Petitioner’s federal retroactivity arguments

The State is incorrect that Petitioner’s constitutional arguments are similar to

those in Hitchcock v. State, No. SC17-445, 2017 WL 3431500 (Fla. Aug. 10,

2017), Asay v. State, 224 So. 3d 695 (Fla. 2017), and Lambrix v. State, No. SC171687, 2017 WL 4320637 (Fla. Sep. 29, 2017). State’s Resp. at 7. Those cases did

not explicitly address or reject any of the federal retroactivity arguments Petitioner

raised in response to the order to show cause. See Petitioner’s Resp. at 16-34.

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, Hitchcock

60a

addressed arguments that “had already been considered and rejected in the Asay V

opinion.” See State’s Resp. at 9; see also Asay, 210 So. 3d at 16 (“this Court must

conduct a retroactivity analysis pursuant to the dictates of Witt.”).1 Asay did not

address whether federal law required the Hurst decisions to be applied

retroactively, and did not address the federal retroactivity arguments raised by

Petitioner. 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 Eighth Amendment’s requirement of

reliability in capital sentencing. Further, Asay did not address whether the Ring

retroactivity cutoff violates the Fourteenth Amendment’s Equal Protection and Due

Process Clauses. Nor did Asay address whether the Hurst decisions are

“substantive” under 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

Petitioner’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

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).

61a

summarily denying Hitchcock’s successive postconviction motion pursuant to

Asay.”). Indeed, in the entire Hitchcock opinion, the only language that addresses

any constitutional rights is a single cursory statement: “Although Hitchcock

references various constitutional provisions as a basis for arguments that Hurst v.

State should entitle him to a new sentencing proceeding, these are nothing more

than arguments that Hurst v. State should be applied retroactively to his sentence,

which became final prior to Ring.” Hitchcock, 2017 WL 3431500, at *2) (emphasis

added). Moreover, the Hitchcock Court’s reference to “constitutional provisions”

cannot be reasonably read to address Petitioner’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. 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 Petitioner 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

62a

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

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

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

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

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

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

decisions to be retroactively applied by state courts. The State’s response does not

contend otherwise.

To the extent the State suggests that Petitioner’s federal arguments have

been addressed in other cases, those decisions are not applicable here. As

Petitioner noted in his initial response to the order to show cause, 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 Petitioner this Court’s recent active-death-warrant decisions in Asay

63a

v. State, 224 So. 3d 695 (Fla. 2017), and Lambrix v. State, No. SC17-1687, 2017

WL 4320637 (Fla. Sep. 29, 2017); see also Hannon v. Sec’y, Fla. Dept. of Corr.,

M.D. Fla. No. 8:17-cv-02609-MSS-TGW (M.D. Fla. Nov. 8, 2017) (Martin, J.,

concurring).

II.

This Court’s prior decisions in this case do not bar Petitioner from

raising his federal constitutional right to retroactivity

For the same reasons as those in Part I, the Court’s prior decisions in this

case do not bar Petitioner from raising his federal constitutional right to

retroactivity in a separate habeas petition. While Petitioner previously filed an

appeal of the denial of his successive 3.851 motion asserting Hurst retroactivity

under state law, this Court has never dealt with the question of Petitioner’s right to

Hurst retroactivity as guaranteed by the federal constitution, specifically the Eighth

Amendment prohibition of arbitrary and capricious punishment and the Fourteenth

Amendment rights to equal protection and due process, in this or any case.

III.

The State’s cursory arguments are not persuasive

First, the State misreads Petitioner’s argument that the Fourteenth

Amendment equal protection right requires Hurst to apply retroactively as arguing

that retroactivity is required in “every case every time a change in the law

occurred.” State’s Resp. at 6. Petitioner is speaking only to a class of similarlysituated defendants on collateral review. See Petitioner’s Resp. at 32-34. Under

Teague v. Lane, 489 U.S. 288 (1989), courts look to whether a conviction was final

64a

on the date of the new rule. Id. at 295. Here, the Ring-based cutoff takes a group of

defendants whose decisions were final at the time of the Hurst decisions and grants

and denies relief based on arbitrary factors. 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 pragmatic necessity for

courts to evolve constitutional protections prospectively without undue cost to the

finality of preexisting judgments.

A Hurst retroactivity cutoff at Ring causes capriciousness that exceeds the

level justified by “normal” jurisprudence. For instance, Florida’s pre-Ring

prisoners and their post-Ring peers were both sentenced under a procedure that

allowed death sentences based on factual findings not tested by a jury. But preRing prisoners have been on death row longer than their post-Ring counterparts

and have demonstrated over a longer time that they are capable of adjusting to that

environment.

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

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

prosecution or sentence today. In the generation since Ring, prosecutors and juries

have been increasingly unlikely to seek and impose death sentences. And pre-Ring

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

65a

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.

This is especially true here, where the medical science used to determine the

cause of death in this case has evolved and rendered the trial analysis completely

defunct and sheds a whole new light on this case. Indeed, the victim may have died

of natural causes. Furthermore, the State here withheld exculpatory evidence from

trial counsel, such as multiple sources who could have confirmed that the childvictim exhibited vaginal bleeding and a bump on her head, weeks before her death.

This Court acknowledged that such evidence should have been disclosed. See

Davis v. State, 136 So. 3d 1169, 1185-86 (Fla. 2014). Thus, this case illustrates the

many problems with flawed science, exacerbated by the prosecutorial misconduct

that further casts the medical science used in this case into doubt, that is less likely

to be tolerated in post-Ring trials. Taken together, these considerations show that a

Ring-based retroactivity cutoff involves a level of caprice that exceeds that

tolerated by standard retroactivity rules. A Ring cutoff’s denial of relief in

precisely the class of cases in which relief makes the most sense is inconsistent

66a

with the Eighth and Fourteenth Amendments.

The State’s assertion that the Hurst decisions were not substantive is equally

unpersuasive. The State argues that Welch v. United States, 136 S. Ct. 1257 (2016),

changed the definition of prior violent felony while Hurst did not change the

definition of first-degree murder. The State fatally confuses the determination of

the underlying crime with the determination of sentence eligibility. In Welch, the

United States Supreme Court determined that its ruling in Johnson v. United

States, 135 S. Ct. 2551 (2015), striking the prior violent felony sentence

enhancement language in the Armed Career Criminal Act as vague, applied

retroactively. 136 S. Ct. at 1266. The decision affected the eligibility for an

enhanced sentence rather than any underlying crime. Similarly, Hurst affected the

categorization of those eligible for a death sentence. The State’s attempt to

distinguish Hurst from Welch falls into the very trap the United States Supreme

Court warned about in Montgomery v. Louisiana, 136 S. Ct. 718 (2016):

“conflat[ing] a procedural requirement necessary to implement a substantive

guarantee with a rule that ‘regulate[s] only the manner of determining the

defendant’s culpability.” Id. at 734 (quoting Schriro v. Summerlin, 542 U.S. 348,

353 (2004)) (first alteration added).

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

67a

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

retroactive in any proceeding. See State’s Resp. at 11. But as Petitioner explained

initially, see Petitioner’s Resp. at 21-22, 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. 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 State’s

Resp. at 10-11. But 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

distinction between the holding of Summerlin and the retroactivity of Hurst

because of the beyond-a-reasonable-doubt standard has already been observed. 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

68a

requirement for proof beyond a reasonable doubt,” and “[t]he Supreme Court has

held a proof-beyond-a-reasonable-doubt decision retroactive”).

IV.

Fundamental fairness requires relief in this case

The State again relies on other unrelated and distinguishable cases to suggest

that the fundamental fairness test applied in Mosley v. State, 209 So. 3d 1248 (Fla.

2016), which requires relief where a defendant had previously raised a Ring claim,

should not apply here. As Petitioner previously explained, see Petitioner’s Resp. at

9, 27 n.4, it is abundantly clear in this case that the sentencing judge relied on an

HAC aggravator never considered by the jury. This did not apply in any of the

other cases the State cites. See State’s Resp. at 9 n.6.

The State abandons any “harmless error” arguments

The State abandons any argument that the Hurst error in Petitioner’s case

was harmless by failing to even reference the harmless error doctrine in its

response. See Hoskins, 75 So. 3d at 257. As Petitioner 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 Petitioner’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 Petitioner’s death sentence.

69a

The Sichta Firm, LLC

Respectfully submitted,

/s/ Rick Sichta________

Rick A. Sichta, Esq.

Fla. Bar No.: 669903

Susanne K. Sichta

Fla. Bar No. 059108

Joe Hamrick, Esq.

Fla. Bar No.: 047049

301 W. Bay St., Ste. 14124

(904) 329-7246

rick@sichtalaw.com

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on October 18, 2017, the foregoing was electronically

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

jennifer.keegan@myfloridalegal.com and capapp@myfloridalegal.com.

/s/ Rick Sichta___________

ATTORNEY

70a

5/21/2018

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EXECUTION DATABASE

STATE-BY-STATE

Florida Death-Penalty Appeals Decided in Light of Hurst

Last updated: May 15, 2018

Total number of prisoners whose cases have been reviewed by Florida Supreme Court (or, if relief is granted, by a Circuit Court) in light of Hurst: 259

Number of prisoners who have obtained relief under Hurst: 128 (49.42%)

Number of prisoners who have been denied relief under Hurst: 131 (50.58%)

The Florida Supreme Court has declared that it will apply its decisions in Hurst v. State and Asay v. State—which held that non-unanimous jury recommendations

of death violate the Florida state constitution and the Sixth Amendment of the U.S. Constitution—to new death penalty cases and to older cases in which the

direct appeal process was final on or before the U.S. Supreme Court decided Ring v. Arizona in June 2002.

Prisoner Name

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Abdool, Dane

Orange

Allred, Andrew

Seminole

WAIVED JURY

Alston, Pressley Bernard

Duval

Altersberger, Joshua Lee

Highlands

Anderson, Charles L.

Broward

Anderson, Richard

Jury Vote(s)

Date of Court

Order

4/6/17

11/16/17

9-3

1/22/18

9-3

4/27/17

8-4

3/9/17

Hillsborough

11-1

1/26/18

Archer, Robin Lee

Escambia

7-5

3/17/17

Armstrong, Lancelot

Uriley

Broward

9-3

1/19/17

Asay, Marc

Duval

9-3, 9-3

N (EXECUTED)

12/22/16

Atwater, Jeffrey Lee

Pinellas

11-1

1/23/18

Ault, Howard Steven

Broward

9-3, 10-2

3/9/17

Bailey, Robert J.

Bay

11-1

7/6/17

Baker, Cornelius

Flagler

9-3

3/23/17

Banks, Donald

Duval

10-2

4/20/17

Bargo, Michael Shane

Marion

10-2

6/29/17

Barnhill, Arthur

Seminole

9-3

2/20/17

Barwick, Darryl Brian

Bay

12-0

2/28/18

Bates, Kayle Barrington

Bay

9-3

1/22/18

Beasley, Curtis W.

Polk

10-2

1/23/18

Belcher, James

Duval

9-3

11/2/17

Bell, Michael

Duval

12-0, 12-0

1/29/18

Bevel, Thomas

Duval

8-4, 12-0

6/15/17

Booker, Stephen Todd

Duval

8-4

1/30/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

10-2

Death Sentence

Reversed?

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Bowles, Gary Ray

Duval

12-0

1/29/18

Braddy, Harrel

Miami-Dade

11-1

6/15/17

Bradley, Brandon Lee

Brevard

10-2

3/30/17

Bradley, Donald

Clay

10-2

1/22/18

Branch, Eric Scott

Escambia

10-2

N (EXECUTED)

1/22/18

Brookins, Elijah

Gadsden

10-2

4/20/17

Brooks, Lamar

Okaloosa

9-3, 11-1

3/10/17

Brown, Paul Alfred

Hillsborough

7-5

1/29/18

Brown, Paul Anthony

Volusia

12-0

2/28/18

Burns, Daniel Jr.

Manatee

12-0

1/23/18

Buzia, John

Seminole

8-4

4/6/17

Byrd, Milford Wade

Hillsborough

Unknown

2/28/18

Calloway, Tavares David

Miami-Dade

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

7-5, 7-5

1/26/17

Campbell, John

Citrus

8-4

8/30/17

Card, James

Bay

11-1

5/4/17

Carr, Emilia

Marion

7-5

2/7/17

Carter, Pinkney

Duval

9-3, 8-4

10/4//17

Caylor, Matthew

Bay

8-4

5/18/17

Clark, Ronald Wayne Jr.

Duval

11-1

1/23/18

Cole, Loran

Marion

12-0

1/23/18

Cole, Tiffany Ann

Duval

9-3, 9-3

6/29/17

Conde, Rory

Miami-Dade

9-3

8/31/17

Consalvo, Robert

Broward

11-1

1/31/18

Cox, Allen

Lake

10-2

7/23/17

Cozzie, Steven Anthony

Walton

12-0

5/11/17

Crain, Willie Seth

Hillsborough

12-0

4/5/18

Damren, Floyd William

Clay

12-0

2/2/18

Darling, Dolan a/k/a

Sean Smith

Orange

11-1

3/29/17

Davis, Adam W.

Hillsborough

7-5

5/2/17

Davis, Barry T.

Walton

9-3, 10-2

5/11/17

Davis, Jr., Leon

Polk

12-0, 12-0, 8-4

11/10/16

Davis, Jr., Leon

Polk

WAIVED JURY

11/10/16

Davis, Mark Allen

Pinellas

8-4

1/29/18

Davis, Toney D.

Duval

11-1

2/17/17

Dennis, Labrant

Miami-Dade

11-1, 11-1

7/7/17

Deparvine, Williams

James

Hillsborough

8-4, 8-4

4/6/17

Derrick, Samuel Jason

Pasco

7-5

2/2/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Dessaure, Kenneth

Pinellas

WAIVED JURY

Deviney, Randall

Duval

Diaz, Joel

Lee

Dillbeck, Donald David

Leon

Doorbal, Noel

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

11/16/17

8-4

3/23/17

9-3

6/15/17

8-4

1/24/18

Miami-Dade

8-4, 8-4

9/20/17

Doty, Wayne

Bradford

10-2

8/7/17

Douglas, Luther

Duval

11-1

6/29/17

Dubose, Rasheem

Duval

8-4

2/9/17

Durousseau, Paul

Duval

10-2

1/31/17

Eaglin, Dwight

Charlotte

8-4, 8-4

4/3/17

England, Richard

Volusia

8-4

5/22/17

Evans, Paul H.

Indian River

9-3

3/20/17

Evans, Steven Maurice

Orange

11-1

1/24/18

Evans, Wydell Jody

Brevard

10-2

Finney, Charles

Hillsborough

9-3

1/26/18

Floyd, Maurice Lamar

Putnam

11-1

5/17/17

Ford, James D.

Charlotte

11-1, 11-1

1/23/18

Foster, Charles

Bay

8-4

1/29/18

Foster, Kevin Don

Lee

9-3

1/29/18

Fotopoulos,

Konstantinos

Volusia

8-4, 8-4

1/29/18

Frances, David

Orange

9-3, 10-2

3/29/17

Franklin, Richard P.

Columbia

9-3

11/23/16

Gamble, Guy R.

Lake

10-2

1/29/18

Gaskin, Louis

Flagler

8-4, 8-4

2/28/18

Geralds, Mark Allen

Bay

12-0

2/28/18

Glover, Dennis T.

Duval

10-2

9/14/17

Gonzalez, Leonard

Escambia

10-2

5/23/17

Gonzalez, Ricardo

Miami-Dade

8-4

3/23/18

Gordon, Robert R.

Pinellas

9-3

1/31/18

Gregory, William

Volusia

7-5, 7-5

8/31/17

Griffin, Michael Allen

Miami-Dade

10-2

2/2/18

Grim, Norman

Santa Rosa

12-0

3/29/18

Guardado, Jesse

Walton

12-0

5/11/17

Gudinas, Thomas Lee

Collier

10-2

1/30/18

Guzman, James

Volusia

11-1

2/22/18

Guzman, Victor

Miami-Dade

7-5

4/6/17

Hall, Donte Jermaine

Lake

8-4

6/15/17

Hall, Enoch D.

Volusia

12-0

2/9/17

Hamilton, Richard

Hamilton

10-2

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2/18/18

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Hampton, John

Pinellas

9-3

5/4/17

Hannon, Patrick

Hillsborough

12-0

N (EXECUTED)

11/1/17

Hartley, Kenneth

Duval

9-3

1/26/18

Hayward, Steven

St. Lucie

8-4

3/24/17

Heath, Ronald Palmer

Alachua

10-2

2/28/18

Hernandez, Michael

Santa Rosa

11-1

5/11/17

Hernandez-Alberto,

Pedro

Hillsborough

10-2, 10-2

5/9/17

Hertz, Gerry

Wakulla

10-2, 10-2

5/18/17

Heyne, Justin

Brevard

10-2, 8-4

4/6/17

Hitchcock, James

Orange

10-2

8/10/17

Hobart, Robert

Santa Rosa

7-5

2/21/18

Hodges, George

Michael

Hillsborough

10-2

2/2/18

Hodges, Willie James

Escambia

10-2

3/16/17

Hojan, Gerhard

Broward

9-3, 9-3

1/31/17

Huggins, John

Orange

9-3

5/23/17

Hunter, Jerone

Volusia

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

6/16/17

Hurst, Timothy

Escambia

7-5

10/14/16

Hutchinson, Jeffrey

Okaloosa

WAIVED JURY

WAIVED

JURY

3/15/18

Israel, Connie Ray

Duval

7-5

3/21/17

Jackson, Etheria Verdell

Duval

7-5

1/24/18

Jackson, Kenneth R.

Hillsborough

11-1

3/23/17

Jackson, Michael James

Duval

8-4, 8-4

6/9/17

Jackson, Ray

Volusia

9-3

4/24/17

Jeffries, Kevin G.

Bay

10-2

7/13/17

Jeffries, Sonny Ray

Orange

11-1

1/26/18

Jennings, Brandy Bain

Collier

10-2, 10-2, 102

1/29/18

Johnson, Emanuel

Sarasota

8-4, 10-2

2/2/18

Johnson, Paul Beasley

Polk

11-1, 11-1, 111

12/1/16

Johnson, Richard Allen

St. Lucie

11-1

3/24/17

Johnson, Ronnie

Miami-Dade

7-5, 9-3

3/27/18

Johnston, Ray

Hillsborough

11-1

7/21/17

Johnston, Ray

Hillsborough

12-0

7/21/17

Jones, Henry Lee

Brevard

12-0

3/2/17

Jones, Marvin Burnett

Duval

9-3

1/22/18

Jones, Victor

Miami-Dade

Y/N

10-2, 12-0

9/28/17

Jordan, Joseph

Volusia

10-2

8/22/17

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Kaczmar, III, Leo L.

Clay

12-0

1/31/17

Kelley, William H.

Highlands

8-3 [not a typo] N

1/26/18

King, Cecil

Duval

8-4

7/12/17

King, Michael L.

Sarasota

12-0

1/26/17

Kirkman, Vahtiece

Brevard

10-2

1/11/18

Knight, Richard

Broward

12-0, 12-0

1/31/17

Kocaker, Genghis

Pinellas

11-1

10/6/17

Kokal, Gregory Alan

Duval

12-0

1/24/18

Kopsho, William M.

Marion

10-2

1/19/17

Krawczuk, Anton

Duval

12-0

1/31/18

Lamarca, Anthony

Pinellas

11-1

1/30/18

Lambrix, Cary Michael

Glades

8-4, 10-2

N (EXECUTED)

9/29/17

Lawrence, Gary

Santa Rosa

9-3

2/2/18

Lebron, Joel

Osceola

7-5

4/20/17

Lightbourne, Ian

Marion

Unrecorded

1/26/18

Long, Robert Joe

Hillsborough

12-0

1/29/18

Lucas, Harold Gene

Lee

11-1

1/24/18

Marquard, John

St. Johns

12-0

1/24/18

Martin, David

Clay

9-3

7/13/17

Matthews, Douglas

Volusia

10-2

12/5/17

McCoy, Richard (aka

Jamil Rashid)

Duval

7-5

9/6/17

McCoy, Thomas

Walton

11-1

11/8/17

McGirth, Renaldo Devon

Marion

11-1

1/26/17

McKenzie, Norman

Blake

St. Johns

10-2, 10-2

6/19/17

McLean, Derrick

Orange

9-3

4/24/17

McMillian, Justin

Duval

10-2

4/13/17

Melton, Antonio Lebaron

Escambia

8-4

2/2/18

Mendoza, Marbel

Miami-Dade

7-5

1/30/18

Merck, Jr., Troy

Pinellas

9-3

5/5/17

Middleton, Dale

Okeechobee

12-0

3/9/17

Miller, David Jr.

Duval

7-5

1/31/18

Miller, Lionel Michael

Orange

11-1

5/8/17

Morton, Alvin

Pasco

11-1, 11-1

2/2/18

Morris, Dontae

Hillsborough

12-0, 12-0

4/27/17

Morris, Dontae

Hillsborough

10-2

1/11/18

Morris, Robert D.

Polk

8-4

1/26/18

Mosley, John F.

Duval

8-4

12/22/16

Mullens, Khadafy

Pinellas

WAIVED JURY

6/16/16

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Murray, Gerald Delane

Duval

11-1

4/4/17

Nelson, Joshua D.

Lee

12-0

1/31/18

Nelson, Micah

Polk

9-3

3/8/17

Newberry, Rodney

Duval

8-4

4/6/17

Oats, Jr. Sonny Boy

Marion

UNKNOWN

5/25/17

Occhicone, Dominick A.

Pasco

7-5

1/30/18

Okafor, Bessman

Orange

11-1

6/8/17

Oliver, Terence Tabius

Brevard

12-0, 12-0

4/6/17

Orme, Roderick

Bay

11-1

3/30/17

Overton, Thomas M.

Monroe

8-4, 9-3

2/2/18

Pace, Bruce Douglas

Santa Rosa

7-5

1/30/18

Pagan, Alex

Broward

7-5, 7-5

2/1/18

Parker, J.B.

Martin

11-1

4/20/17

Partin, Phillup Alan

Pasco

9-3

3/27/17

Pasha, Khalid

Hillsborough

11-1, 11-1

5/11/17

Peterka, Daniel Jon

Okaloosa

8-4

1/22/18

Peterson, Robert Earl

Duval

7-5

7/6/17

Pham, Tai

Seminole

10-2

3/22/17

Phillips, Galante

Duval

7-5

4/20/17

Phillips, Harry Franklin

Miami-Dade

7-5

1/22/18

Philmore, Lenard James

Martin

12-0

1/25/18

Pietri, Norberto

Palm Beach

8-4

2/2/18

Poole, Mark

Polk

11-1

3/31/17

Pope, Thomas Dewey

Broward

9-3

2/28/18

Puiatti, Carl

Pasco

11-1

1/23/18

Quince, Kenneth Darcell

Volusia

WAIVED JURY

1/18/18

Raleigh, Bobby Allen

Volusia

12-0, 12-0

2/28/18

Reaves, William

Indian River

10-2

5/2/18

Reynolds, Michael

Seminole

12-0, 12-0

4/5/18

Rhodes, Richard Wallace Pinellas

10-2

1/23/18

Rigterink, Thomas

William

Polk

7-5, 7-5

4/6/17

Rimmer, Robert

Broward

9-3, 9-3

6/29/17

Robards, Richard

Pinellas

7-5, 7-5

4/6/17

Rodgers, Jeremiah

Santa Rosa

WAIVED JURY

2/8/18

Rodgers, Theodore

Orange

8-4

4/3/17

Rogers, Glen Edward

Hillsborough

12-0

1/30/18

Rodriguez, Manuel

Antonio

Miami-Dade

12-0, 12-0, 120

1/31/18

San Martin, Pablo

Miami-Dade

9-3

2/28/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Schoenwetter, Randy

Brevard

10-2, 9-3

4/7/17

Seibert, Michael

Broward

9-3

6/22/17

Serrano, Nelson

Polk

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

9-3

5/11/17

Sexton, John

Pasco

10-2

6/29/17

Silvia, William

Seminole

11-1

2/20/17

Simmons, Eric Lee

Lake

8-4

12/22/16

Sireci, Henry Perry

Orange

11-1

1/31/18

Sliney, Jack R.

Charlotte

7-5

1/31/18

Smith, Corey

Miami-Dade

9-3, 10-2

3/16/17

Smith, Joseph

Sarasota

10-2

7/13/17

Smith, Stephen V.

Charlotte

9-3

4/21/17

Smithers, Samuel

Hillsborough

12-0, 12-0

3/29/18

Snelgrove, David B.

Flagler

8-4, 8-4

5/11/17

Sochor, Dennis

Broward

10-2

1/30/18

Stein, Steven Edward

Duval

10-2

1/31/18

Stephens, Jason

Demetrius

Duval

9-3

1/22/18

Stewart, Kenneth Allen

Hillsborough

10-2

4/25/17

Stewart, Kenneth Allen

Hillsborough

10-2

1/26/18

Sweet, William Earl

Duval

10-2

1/24/18

Suggs, Ernest

Walton

7-5

3/17/17

Tanzi, Michael

Monroe

12-0

4/5/18

Taylor, John Calvin

Clay

10-2

10/12/17

Taylor, Perry

Hillsborough

8-4

5/3/18

Taylor, Steven Richard

Duval

10-2

1/24/18

Taylor, William Kenneth

Hillsborough

12-0

4/5/18

Thomas, William

Gregory

Duval

11-1

1/24/18

Trease, Robert J.

Sarasota

11-1

1/24/18

Trepal, George

Polk

9-3

1/26/18

Trotter, Melvin

Manatee

11-1

1/26/18

Troy, John

Sarasota

11-1

6/13/17

Truehill, Quentin

St. Johns

12-0

2/23/17

Tundidor, Randy W.

Broward

12-0

4/27/17

Turner, James Daniel

St. Johns

10-2

6/19/17

Twilegar, Mark

Lee

WAIVED JURY

11/2/17

Victorino, Troy

Volusia

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

6/14/17

Wade, Alan L.

Duval

11-1, 11-1

5/1/17

Walls, Frank

Okaloosa

12-0

1/22/18

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Wheeler, Jason

Lake

10-2

5/23/17

White, Dwayne

Seminole

8-4

3/30/17

Whitfield, Ernest

Sarasota

7-5

1/30/18

White, William Melvin

Orange

10-2

4/20/17

Whitton, Gary Richard

Walton

12-0

1/31/18

Willacy, Chadwick

Brevard

11-1

1/23/18

Williams, Donald Otis

Lake

9-3

1/19/17

Williams , Ronnie Keith

Broward

10-2

6/29/17

Windom, Curtis

Orange

12-0, 12-0, 120

1/23/18

Wood, Zachary Taylor

Washington

12-0

Y**

1/31/17

Woodel, Thomas

Polk

7-5

8/18/17

Zack, Michael Duane

Escambia

11-1

6/15/17

Zakrzewski, Edward

Okaloosa

7-5, 7-5, 6-6

5/25/17

Zommer, Todd

Osceola

10-2

4/13/17

* The Florida Supreme Court granted relief under Hurst on Bevel's non-unanimous death sentence, but granted relief based on ineffective assistance of counsel

on Bevel's unanimous death sentence.

** The Florida Supreme Court noted that Wood's sentence would not have been harmless under Hurst because it struck two of the three aggravating

circumstances found by the trial court; however, the court vacated the death sentence and imposed a life sentence under its statutory review for proportionality.

Not counted in total.

For more background on the Florida legislative and court actions related to the jury unanimity issue, see Hurst v. Florida Background.

To check on the status of cases involving Florida death-row prisoners with non-unanimous jury recommendations for death whose sentences became final after

the U.S. Supreme Court's June 2002 decision in Ring v. Arizona, see this chart.

Hannah Gorman, with the Florida Center for Capital Representation at Florida International University, created the pie chart below (November 16, 2017)

based on her analysis of Florida death sentences that have been or will be overturned based on Hurst, as well as sentences that have been or will be

affirmed because they either (A) became final before Ring (i.e., based on the date of their appeal) or (B) were presumed harmless based on a

unanimous jury verdict or the defendant's waiver of a jury sentence. This chart includes prisoners who have had their death sentences affirmed by

Circuit Courts. According to this information, there are a total of 377 prisoners who were sentenced under the unconstitutional sentencing scheme,

but only 42% (157) of Florida death-row prisoners who were sentenced under that scheme will be entitled to relief.

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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1. Bates v. State, 238 So. 3d 98 (Fla. 2018)

2. Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)

3. Branch v. State, 234 So. 3d 548 (Fla. 2018)

4. Jones v. State, 234 So. 3d 545 (Fla. 2018)

5. Peterka v. State, 237 So. 3d 903 (Fla. 2018)

6. Phillips v. State, 234 So. 3d 547 (Fla. 2018)

7. Stephens v. State, 238 So. 3d 94 (Fla. 2018)

8. Suggs v. State, 234 So. 3d 546 (Fla. 2018)

9. Walls v. State, 238 So. 3d 96 (Fla. 2018)

10. Atwater v. State, 234 So. 3d 550 (Fla. 2018)

11. Beasley v. State, 234 So. 3d 553 (Fla. 2018)

12. Burns v. State, 234 So. 3d 555 (Fla. 2018)

13. Clark v. State, 238 So. 3d 99 (Fla. 2018)

14. Cole v. State, 234 So. 3d 644 (Fla. 2018)

15. Ford v. State, 237 So. 3d 904 (Fla. 2018)

16. Puiatti v. State, 234 So. 3d 551 (Fla. 2018)

17. Rhodes v. State, 234 So. 3d 554 (Fla. 2018)

18. Willacy v. State, 238 So. 3d 100 (Fla. 2018)

19. Windom v. State, 234 So. 3d 556 (Fla. 2018)

20. Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)

21. Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)

22. Jackson v. State, 237 So. 3d 905 (Fla. 2018)

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23. Kokal v. State, 237 So. 3d 907 (Fla. 2018)

24. Lucas v. State, 234 So. 3d 647 (Fla. 2018)

25. Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)

26. Sweet v. State, 234 So. 3d 646 (Fla. 2018)

27. Taylor v. State, 234 So. 3d 649 (Fla. 2018)

28. Thomas v. State, 234 So. 3d 559 (Fla. 2018)

29. Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)

30. Anderson v. State, 235 So. 3d 277 (Fla. 2018)

31. Finney v. State, 235 So. 3d 279 (Fla. 2018)

32. Hartley v. State, 237 So. 3d 908 (Fla. 2018)

33. Jeffries v. State, 235 So. 3d 283 (Fla. 2018)

34. Kelley v. State, 235 So. 3d 280 (Fla. 2018)

35. Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)

36. Morris v. State, 236 So. 3d 324 (Fla. 2018)

37. Stewart v. State, 235 So. 3d 798 (Fla. 2018)

38. Trepal v. State, 235 So. 3d 281 (Fla. 2018)

39. Trotter v. State, 235 So. 3d 284 (Fla. 2018)

40. Bell v. State, 235 So. 3d 287 (Fla. 2018)

41. Bowles v. State, 235 So. 3d 292 (Fla. 2018)

42. Brown v. State, 235 So. 3d 289 (Fla. 2018)

43. Davis v. State, 235 So. 3d 295 (Fla. 2018)

44. Foster v. State, 235 So. 3d 290 (Fla. 2018)

45. Foster v. State, 235 So. 3d 294 (Fla. 2018)

81a

46. Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)

47. Gamble v. State, 235 So. 3d 288 (Fla. 2018)

48. Jennings v. State, 237 So. 3d 909 (Fla. 2018)

49. Long v. State, 235 So. 3d 293 (Fla. 2018)

50. Booker v. Jones, 235 So. 3d 298 (Fla. 2018)

51. Davis v. Jones, 235 So. 3d 301 (Fla. 2018)

52. Gudinas v. State, 235 So. 3d 303 (Fla. 2018)

53. Lamarca v. State, 237 So. 3d 914 (Fla. 2018)

54. Mendoza v. State, 235 So. 3d 302 (Fla. 2018)

55. Occhicone v. State, 235 So. 3d 299 (Fla. 2018)

56. Pace v. State, 237 So. 3d 912 (Fla. 2018)

57. Rogers v. State, 235 So. 3d 306 (Fla. 2018)

58. Sochor v. State, 235 So. 3d 304 (Fla. 2018)

59. Whitfield v. State, 235 So. 3d 297 (Fla. 2018)

60. Consalvo v. State, 235 So. 3d 307 (Fla. 2018)

61. Gordon v. State, 235 So. 3d 311 (Fla. 2018)

62. Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)

63. Miller v. Jones, 237 So. 3d 921 (Fla. 2018)

64. Nelson v. State, 235 So. 3d 308 (Fla. 2018)

65. Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)

66. Sireci v. State, 237 So. 3d 916 (Fla. 2018)

67. Sliney v. State, 235 So. 3d 310 (Fla. 2018)

68. Stein v. State, 237 So. 3d 919 (Fla. 2018)

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69. Whitton v. State, 238 So. 3d 724 (Fla. 2018)

70. Damren v. State, 236 So. 3d 230 (Fla. 2018)

71. Derrick v. State, 236 So. 3d 231 (Fla. 2018)

72. Griffin v. State, 236 So. 3d 237 (Fla. 2018)

73. Hodges v. State, 236 So. 3d 241 (Fla. 2018)

74. Johnson v. State, 236 So. 3d 232 (Fla. 2018)

75. Lawrence v. State, 236 So. 3d 240 (Fla. 2018)

76. Melton v. State, 236 So. 3d 234 (Fla. 2018)

77. Morton v. State, 236 So. 3d 242 (Fla. 2018)

78. Overton v. State, 236 So. 3d 238 (Fla. 2018)

79. Pietri v. State, 236 So. 3d 235 (Fla. 2018)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.