Petition for Writ of Certiorari — Ronald Palmer Heath, Petitioner v. Florida

Supreme Court briefJun 14, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

RONALD PALMER HEATH,

Petitioner,

STATE OF FLORIDA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

______________________________________________________________

PETITIONER’S APPENDIX

______________________________________________________________

THIS IS A CAPITAL CASE

SONYA RUDENSTINE

Attorney at Law

224 NW 2nd Avenue

Gainesville, Florida

(352) 359-3972

srudenstine@yahoo.com

BILLY H. NOLAS

Counsel of Record

SEAN T. 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 (Feb. 28, 2018) ................ 1a

Exhibit 2 — Florida Supreme Court Order to Show Cause (Oct. 18, 2017) ...... 5a

Exhibit 3 — Alachua County Circuit Court Order (Sep. 7, 2017) ..................... 7a

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

(Nov. 7, 2017) ................................................................................ 12a

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

(Nov. 8, 2017) ................................................................................ 36a

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

Order to Show Cause (Dec. 1, 2017) ............................................. 56a

Exhibit 7 — Florida Death Penalty Appeals Decided in Light of Hurst ......... 70a

(Source: Death Penalty Information Center)

Exhibit 8 — List of Florida Supreme Court Opinions Summarily

Denying Relief in Light of Hitchcock ........................................... 80a

EXHIBIT 1

Supreme Court of Florida

____________

No. SC17-1808

____________

RONALD PALMER HEATH,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[February 28, 2018]

PER CURIAM.

We have for review Ronald Palmer Heath’s appeal of the circuit court’s

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

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

Heath’s motion sought relief pursuant to the United States Supreme Court’s

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

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

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

denied, 138 S. Ct. 513 (2017), Heath responded to this Court’s order to show cause

arguing why Hitchcock should not be dispositive in this case.

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

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

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

ten to two. Heath v. State, 648 So. 2d 660, 663 (Fla. 1994). Heath’s sentence of

death became final in 1995. Heath v. Florida, 515 U.S. 1162 (1995). Thus, Hurst

does not apply retroactively to Heath’s sentence of death. See Hitchcock, 226 So.

3d at 217. Accordingly, we affirm the denial of Heath’s motion.

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

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

James M. Colaw, Judge - Case No. 011989CF003026AXXXXX

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,

Northern District of Florida, Tallahassee, Florida; and Sonya Rudenstine,

Gainesville, Florida,

-2-

for Appellant

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

General, Tallahassee, Florida,

for Appellee

-3-

EXHIBIT 2

Supreme Court of Florida

WEDNESDAY, OCTOBER 18, 2017

CASE NO.: SC17-1808

Lower Tribunal No(s).:

011989CF003026AXXXXX

RONALD PALMER HEATH

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant shall show cause on or before Tuesday, November 7, 2017, why

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

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

pages. Appellee may file a reply on or before Wednesday, November 22, 2017,

limited to no more than 15 pages. Appellant may file a reply to the Appellee’s

reply on or before Monday, December 4, 2017, limited to no more than 10 pages.

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

medical emergency.

A True Copy

Test:

Served:

SONYA RUDENSTINE

BILLY H. NOLAS

JENNIFER ANN DONAHUE

EXHIBIT 3

IN THE CIRCUIT COURT OF

THE EIGHTH JUDICIAL CIRCUIT

IN AND FOR ALACHUA COUNTY, FLORIDA

STA.TE OF FLORIDA,

CASE NO.:

01-1989-CF-003026-A

DIVISION:

Plaintiff,

RONALD HEATH,

Defendant.

ORDER DENYING SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

THIS CAUSE comes before the Court upon Defendant's "Successive Rule 3.851 Motion for

Post-Conviction Relief in light of Hurst v. Florida and Hurst v. State," filed May 22, 2017. The

State filed a response to the motion on June 12, 2017. On August 28, 2017, a non-evidentiary

hearing was held on the motion at which the Court heard legal argument. Upon consideration ofthe

motion, the State's response, the legal argument of the parties, and the record, this Court finds and

concludes as follows:

PROCEDURAL HISTORY

On November 15, 1990, Defendant was found guilty, after a jury trial, of the first-degree

murder ofMichael Sheridan, armed robbery, conspiracy to commit uttering a forgery, conspiracy to

commit forgery, forgery (seven counts), and uttering a forgery (seven counts). Heath v. State, 648

So.2d 660, 662-63 (Fla.1994), cert. denied, Heath v. Florida, 515 U.S. 1162 (1995). For the murder

of Sheridan, the jury recommended the death penalty by a vote of ten to two. Id. at 663. Following

that recommendation, the trial court sentenced Heath to death for the murder. The death sentence

was affirmed on appeal. Id. at 661.

ORDER DENYING SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

STATE VS. RONALD HEATH

CASE NO. 01-1989-CF-003026-A

PAGE 2

On March 27, 2007, the trial court denied Defendant's initial rule 3.851 motion. The Florida

Supreme Court affirmed the denial. Heath v. State, 3 So. 3d 1017, 1019 (Fla. 2009).

On May 22, 2017, Defendant filed this successive motion.

ANALYSIS

In his motion, Defendant alleges that the death sentence imposed on Defendant "is

unconstitutional under the Sixth and Eighth Amendments in light ofHurst v. Florida and Hurst v.

State." However, as the Florida Supreme Court recently stated in Hitchcock v. State,

We have consistently applied our decision in Asay, denying the retroactive

application of Hurst v. Florida as interpreted in Hurst v. State to defendants whose

death sentences were final when the Supreme Court decided Ring v. Arizona, 536

U.S. 5 84, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See, e.g., Zackv. State, - So.3d

-, 42 Fla. L. Weekly S656, 2017 WL 2590703 (Fla. June 15, 2017); Marshall v.

Jones, - So.3d

, 42 Fla. L. Weekly S533, 2017 WL 1739246 (Fla. May 4,

2017); Lambrix v. State, 217 So.3d 977 (Fla. 2017); Willacy v. Jones, No. SC16-497,

2017 WL 1033679 (Fla. Mar. 17, 2017); Bogle v. State, 213 So.3d 833 (Fla. 2017);

Gaskin v. State, 218 So.3d 399 (Fla. 2017). Hitchcock is among those defendants

whose death sentences were final before Ring, and his arguments do not compel

departing from our precedent.

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. Accordingly, we affirm the circuit

court's order summarily denying Hitchcock's successive postconviction motion

pursuant to Asay.

ORDER DENYING SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

STATE VS. RONALD HEATH

CASE NO. 01-1989-CF-003026-A

PAGE 3

SC17-445, 2017 WL 3431500, at *1-2 (Fla. Aug. 10, 2017).l .In denying Asay's last habeas petition

on August 14, 2017, the Florida Supreme Court, again, affirmatively held that its decision in Hurst v.

State is inapplicable to those cases which became final pre-Ring. Asay v. State, SC17-1400, 2017

WL 3472836, at *6 (Fla. Aug. 14, 2017).2

In light ofthe Florida Supreme Court's decisions and the fact that Defendant's case was final

on June 26, 1995, when certiorari was denied in his case Heath v. Florida, 515 U.S. 1162 (1995),

this Court finds Defendant's claims to be without merit.

Based on the foregoing, it is ORDERED AND ADJUDGED that:

Defendant's motion is hereby DENIED. Defendant may appeal this decision to the Florida

Supreme Court within thirty (30) days of this Order's effective date.

DONE AND ORDERED in Chambers at Gainesville, Alachua County, Florida, on this

7th day of September 2017.

JAMES M. COLAW,

CIRCUIT JUDGE

I Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16-9033 (U.S. Apr. 29, 2017).

2 "Asay's petition nominally raises four claims attacking the constitutionality of his death sentences. However, these

claims are, in essence, an Eighth Amendment attack on his sentences based on the nonunanimous verdicts using this

Court's decision in Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, - U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d

246 (2017) and the Legislature's revision of section 921.121, Florida Statutes, in response to this Court's decision in

Perry v. State, 210 So.3d 630 (Fla. 2016). In other words, Asay asserts that his death sentences cannot withstand

Eighth Amendment scrutiny because this Court's refusal to grant him relief is arbitrary and capricious. Asay's

argument is not novel and has been previously rejected by this Court. Accordingly, Asay has not presented a basis

for relief." Asay, SC17-1400, 2017 WL 3472836, at *6 (Fla. Aug. 14, 2017) (emphasis added).

10a

ORDER DENYING SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

STATE VS. RONALD HEATH

CASE NO. 01-1989-CF-003026-A

PAGE 4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true copy of the foregoing Order was furnished by U.S. mail/e-mail

delivery, on this 7th Septdaymf Mmeh:2017, to the following:

Sonya Rudenstine, Esq.

224 NW 2nd Ave

Gainesville, FL 32601

studenstine@yahoo.com

Jeanne Singer, Chief Asst. State Attorney

State Attorney's Office

120 West University Ave.

Gainesville, FL 32601

singerj@sao8.org

eservice@sao8.org

Billy H. Nolas, Chief, Capital Habeas Unit

Carolyn Snurkowski,

Asst. Attorney General

Office of the Attorney General

PL-01, The Capitol

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 N. Bronough St., Ste. 4200

Tallahassee, FL 32301

Billy nolas@fd.org

Tallahassee, F1 32399

capapp@myfloridalegal.com

carolyn.snurkowski@myfloridalegal.com

Ronald Palmer Heath - DC# 065145

Tangy R. Williams

Union Correctional Institution

Capital Case Clerk

Ra fo d, FL

Florida Supreme Court

083

500 South Duval Street

Tallahassee, FL 32399

hardyt@ficourts.org

davisch@ficourts.org

W. Thurow, udicial Assistant

11a

EXHIBIT 4

12a

Filing # 63854408 E-Filed 11/07/2017 10:44:00 AM

No. SC17-1808

IN THE

Supreme Court of Florida

___________________________________________________________

RONALD PALMER HEATH,

RECEIVED, 11/07/2017 10:48:27 AM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S RESPONSE TO

OCTOBER 18, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Sonya Rudenstine

Attorney at Law

224 NW 2nd Avenue

Gainesville, FL

srudenstine@yahoo.com

(352) 359-3972

Fla. Bar No. 0711950

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Appellant

13a

TABLE OF CONTENTS

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

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING .......................2

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

Appellant’s death sentence violates Hurst, and the error is not “harmless”......2

II.

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

should not be applied to Appellant...................................................................5

III.

This Court’s retroactivity cutoff violates the Eighth and Fourteenth

Amendments’ prohibition against arbitrary and capricious imposition

of the death penalty...............................................................................6

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

guarantee of equal protection and due process.....................................10

Because the Hurst decisions announced substantive constitutional rules, the

Supremacy Clause of the United States Constitution requires state courts to

apply those rules retroactively to all cases on collateral review......................13

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review........13

The Hurst decisions announced substantive rules that must be applied

retroactively to Appellant under the Supremacy Clause......................15

This Court has an obligation to address Appellant’s federal retroactivity

arguments............................................................................................20

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

14a

INTRODUCTION

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

scheme that was ruled unconstitutional by the United States Supreme Court in Hurst

v. Florida, 136 S. Ct. 616 (2016), and this Court in Hurst v. State, 202 So. 3d 40

(Fla. 2016). The issue in this case is whether this Court will continue to apply its

unconstitutional “retroactivity cutoff” to deny Appellant Hurst relief on the ground

that his sentence did not become final at least one day after the 2002 decision in Ring

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

This Court has already applied Hurst retroactively as a matter of state law in

dozens of collateral-review cases where the defendant’s sentence became final after

Ring. But the Court has also 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 Ring-based cutoff is unconstitutional and should not be applied to Appellant.

Denying Appellant Hurst relief because his sentence became final in 1995, rather

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

Fourteenth Amendments to the United States Constitution. Appellant is entitled to

Hurst retroactivity as a matter of federal law.1

Relief should not be denied here in light of Hitchcock v. State, No. SC17-445, 2017

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

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

15a

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This appeal presents an important issue of first impression: whether federal

law requires this Court to extend Hurst retroactivity to death sentences that became

final before Ring, rather than cabining Hurst relief to post-Ring death sentences.

Appellant respectfully requests oral argument on this and related issues pursuant to

Fla. R. App. P. 9.320. Appellant also requests that the Court permit full briefing in

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

Depriving Appellant the opportunity for full briefing in this case would

constitute an arbitrary deprivation of the vested state right to a mandatory plenary

appeal in capital cases. See Doty v. State, 170 So. 3d 731, 733 (Fla. 2015) (“[T]his

Court has a mandatory obligation to review all death penalty cases to ensure that the

death sentence is imposed in accordance with constitutional and statutory

directives.”); see also Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hicks

v. Oklahoma, 447 U.S. 343 (1980).

ARGUMENT

Appellant’s death sentence violates Hurst, and the error is not “harmless”

Appellant was sentenced to death pursuant to an unconstitutional Florida

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

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

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

16a

under Florida law.

136 S. Ct. at 620-22.

Those findings included: (1) the

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

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

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

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

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

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

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

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

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

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

with the judge, the jury rendered a non-unanimous, generalized recommendation

17a

that the judge sentence Appellant to death. The record does not reveal whether

Appellant’s jurors unanimously agreed that any particular aggravating factor had

been proven beyond a reasonable doubt, or unanimously agreed that the aggravators

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

the mitigation. But the record is clear that Appellant’s jurors were not unanimous

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

Appellant’s pre-Hurst jury recommended the death penalty by a vote of 102. 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.2

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

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

harmless. Even if the jury would have found the same aggravators, Florida law does

not authorize death sentences based on the mere existence of an aggravator. As

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

2017) (11-1 jury vote); Hertz v. Jones, 218 So. 3d 428, 431-32 (Fla. 2017) (10-2 jury

vote); Hernandez v. Jones, 217 So. 3d 1032, 1033 (Fla. 2017) (11-1 jury vote); Card

v. Jones, 219 So. 3d 47, 48 (Fla. 2017) (11-1 jury vote); McMillian v. State, 214 So.

3d 1274, 1289 (Fla. 2017) (10-2 jury vote).

18a

noted above, Florida law requires fact-finding as to both the existence of aggravators

and the “sufficiency” of the particular aggravators to warrant imposition of the death

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

sufficiency determination as the judge. That is why this Court has consistently

rejected the idea that a judge’s finding of prior-conviction aggravators is relevant in

the harmless-error analysis of Hurst claims, and has granted Hurst relief despite the

presence of such aggravators. See, e.g., Franklin v. State, 209 So. 3d 1241, 1248

(Fla. 2016) (rejecting “the State’s contention that Franklin’s prior convictions for

other violent felonies insulate Franklin’s death sentence from Ring and Hurst”).3

II.

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

not be applied to Appellant

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

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

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

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

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).

19a

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 Appellant the same Hurst relief being granted in scores

of materially indistinguishable collateral-review cases. Denying Appellant Hurst

retroactivity because his death sentence became final in 1995, 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

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

20a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

21a

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

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

was decided—on June 28, 2002—when his certiorari petition was denied. Card v.

Florida, 536 U.S. 963 (2002). Mr. Bowles’s sentence, however, became final seven

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

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

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

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

less “old” cases are not. See, e.g., Johnson v. State, 205 So. 3d 1285, 1285 (granting

Hurst relief to a defendant whose crime occurred in 1981 but was granted relief on

a third successive post-conviction motion in 2010, years after the Ring decision);

Card, 219 So. 3d at 47 (granting Hurst relief to a defendant whose crime occurred

in 1981 but was afforded relief on a second successive post-conviction motion in

22a

2002—just four days after Ring was decided); cf. Calloway v. State, 210 So. 3d 1160

(Fla. 2017) (granting Hurst relief in a case where the crime occurred in the late

1990s, but interlocutory appeals resulted in a ten-year delay before the trial). Under

this Court’s approach, a defendant who was originally sentenced to death before

Appellant, but who was later resentenced to death after Ring, would receive Hurst

relief and Appellant would not.

Moreover, under the Court’s current rule, some litigants whose Ring claims

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

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

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

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

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

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

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

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

of his case in an untruncated fashion.

23a

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 Fourteenth

Amendment’s guarantee of equal protection and due process

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

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

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

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

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

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

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

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

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

24a

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 Appellant violates the Fourteenth Amendment because once a state requires

certain sentencing procedures, it creates Fourteenth Amendment life and liberty

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

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

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

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

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

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

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

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

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

25a

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

393 (state procedures employed “as ‘an integral part of the . . . system for finally

adjudicating the guilt or innocence of a defendant’” must comport with due process).

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

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

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

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

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

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.

III.

Because the Hurst decisions announced substantive constitutional rules,

the Supremacy Clause of the United States Constitution requires state

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

The Supremacy Clause requires state courts to apply substantive

constitutional rules retroactively to all cases on collateral review

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

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

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

26a

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. 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

27a

class of offenders or type of crime—as, for example, [the Court] did in Roper or

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

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

characteristics—before imposing a particular penalty.”

Id.

Despite Miller’s

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

procedural requirement necessary to implement a substantive guarantee with a rule

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

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

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

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

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

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

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

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

The Hurst decisions announced substantive rules that must be

applied retroactively to Appellant under the Supremacy Clause

The Hurst decisions announced substantive rules that this Court must apply

retroactively to Appellant 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

28a

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

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

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

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

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

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

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

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

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

Second, an Eighth Amendment rule was established that requires 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

29a

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

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

30a

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

reasonable doubt, and the Eighth Amendment requirement of jury unanimity in factfinding, are substantive constitutional rules as a matter of federal law because they

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

1265, with a sentence of death. Following the Hurst decisions, “[e]ven the use of

impeccable factfinding procedures could not legitimate a sentence based on” the

judge-sentencing scheme.

Id.

And in the context of a Welch analysis, the

“unanimous finding of aggravating factors and [of] the facts that are sufficient to

impose death, as well as the unanimous finding that they outweigh the mitigating

circumstances, all serve to help narrow the class of murderers subject to capital

punishment,” Hurst, 202 So. 3d at 60 (emphasis added), i.e., the new law by

necessity places certain individuals beyond the state’s power to impose a death

31a

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

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

32a

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.”).5

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 Appellant’s arguments.

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

dramatically curtails review: “A state court’s decision rises to the level of an

unreasonable application of federal law only where the ruling is objectively

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

quotation marks omitted). In contrast, this Court’s application of federal

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

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

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

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

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

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

death, the jury’s recommended sentence must be unanimous”). Second, Lambrix

dealt with an idiosyncratic issue—the “retroactivity” of Florida’s new capital

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

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

Eleventh Circuit did not address the specific arguments about federal retroactivity

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

decision has no precedential value in this forum.

33a

This Court has an obligation to address Appellant’s federal

retroactivity arguments

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

to address Appellant’s federal retroactivity arguments. See Testa v. Katt, 330 U.S.

386, 392-93 (1947) (state courts must entertain federal claims in the absence of a

“valid excuse”); Martin v. Hunter’s Lessee, 14 U.S. 304, 340-42 (1816).

Addressing those claims meaningfully in the present context requires full

briefing and oral argument. The federal constitutional issues were raised to this

Court in Hitchcock, but this Court ignored them. Dismissing this appeal on the basis

of Hitchcock would compound that error.

CONCLUSION

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

applied retroactively to Appellant, vacate Appellant’s death sentence, and remand to

the circuit court for a new penalty phase or imposition of a life sentence.

34a

Respectfully submitted,

/s/ Sonya Rudenstine

Sonya Rudenstine

Attorney at Law

224 NW 2nd Avenue

Gainesville, FL

srudenstine@yahoo.com

(352) 359-3972

Fla. Bar No. 0711950

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2017, the foregoing was electronically

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

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

/s/ Billy H. Nolas

Billy H. Nolas

35a

EXHIBIT 5

36a

Filing # 63948421 E-Filed 11/08/2017 03:20:05 PM

IN THE SUPREME COURT OF FLORIDA

RONALD PALMER HEATH,

Appellant,

CASE NO. SC17-1808

Lower Tribunal No.

1989CF003026

DEATH PENALTY CASE

RECEIVED, 11/08/2017 03:23:26 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Appellee.

______________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE EIGHTH JUDICIAL CIRCUIT,

IN AND FOR ALACHUA COUNTY, FLORIDA

APPELLEE’S REPLY TO APPELLANT’S RESPONSE

TO OCTOBER 18, 2017, ORDER TO SHOW CAUSE

PAMELA JO BONDI

ATTORNEY GENERAL

JENNIFER A. DONAHUE

ASSISTANT ATTORNEY GENERAL

Florida Bar No. 50639

The Capitol, PL-01

Tallahassee, Florida 32311

Telephone: (850) 414-3300

Facsimile: (850) 414-0997

Jennifer.Donahue@myfloridalegal.com

capapp@myfloridalegal.com

Counsel for Appellee

37a

TABLE OF CONTENTS

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

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

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

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

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

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

CERTIFICATE OF SERVICE........................................ 14

CERTIFICATE OF FONT COMPLIANCE................................ 14

38a

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000).................... 9

Archer v. Florida, 519 U.S. 876 (1996)........................ 11

Archer v. Jones, 2017 WL 1034409 (Fla. Mar. 17, 2017)......... 11

Asay v. Florida, 502 U.S. 895 (1991).......................... 11

Asay v. State, 210 So.3d 1 (Fla. 2016)............... 1, 3, 9, 11

Asay v. State, 224 So.3d 695 (Fla. 2017)...................... 12

Basse v. State, 740 So.2d 518 (Fla. 1999)...................... 2

Bogle v. Florida, 516 U.S. 978 (1995)......................... 11

Bogle v. State, 213 So.3d 833 (Fla. 2017)..................... 11

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

Cherry v. Florida, 494 U.S. 1090 (1990)....................... 11

Cherry v. Jones, 2017 WL 1033693 (Fla. Mar. 17, 2017)......... 11

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

Davis v. Florida, 524 U.S. 930 (1998)......................... 11

Davis v. State, 2017 WL 656307 (Fla. Feb. 17, 2017)........... 11

Dobbert v. Florida, 432 U.S. 282 (1977)........................ 7

Dugger v. Adams, 489 U.S. 401 (1989).......................... 10

Evitts v. Lucey, 469 U.S. 387 (1985)........................... 2

Finney v. State, 660 So.2d 674 (Fla. 1995)..................... 6

Floyd v. State, 497 So.2d 1211 (Fla. 1986)..................... 6

Gaskin v. Florida, 510 U.S. 925 (1993)........................ 11

Gaskin v. State, 218 So.3d 399 (Fla. 2017).................... 11

Geralds v. Florida, 519 U.S. 891 (1996)....................... 11

Geralds v. Jones, 2017 WL 944236 (Fla. Mar. 10, 2017)......... 11

Griffith v. Kentucky, 479 U.S. 314 (1987)...................... 8

Hamilton v. Florida, 524 U.S. 956 (1998)...................... 11

Hamilton v. Jones, 2017 WL 836807 (Fla. Mar. 3, 2017)......... 11

Hannon v. State, 2017 WL 4944899 (Fla. Nov. 1, 2017)...... 11, 12

Hartley v. Florida, 522 U.S. 825 (1997)....................... 11

Hartley v. Jones, 2017 WL 944232 (Fla. Mar. 10, 2017)......... 11

Heath v. Florida, 515 U.S. 1162 (1995)......................... 1

Heath v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 1202 (11th Cir.

2013) ........................................................ 1

Heath v. State, 3 So.3d 1017 (Fla. 2009)....................... 1

Heath v. State, 648 So.2d 660 (Fla. 1994)...................... 1

Henry v. State, 937 So.2d 563 (Fla. 2006)...................... 2

Hitchcock v. Florida, 531 U.S. 1040 (2000).................... 11

Hitchcock v. State, 226 So.3d 216 (Fla. 2017).......... 1, 11, 12

iii

39a

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

Ivan V. v. City of New York, 407 U.S. 203 (1972)............... 6

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

Jones v. Florida, 515 U.S. 1147 (1995)........................ 11

Jones v. Jones, 2017 WL 1034410 (Fla. Mar. 17, 2017).......... 11

Jones v. State, 2017 WL 4296370 (Fla. Sept. 28, 2017)......... 11

Lambrix v. Florida, 2017 WL 4456332 (Oct. 5, 2017)............. 7

Lambrix v. Sec’y, Fla. Dep’t of Corr., 872 F.3d 1170 (11th Cir.

2017) ........................................................ 7

Lambrix v. State, 2017 WL 4320637 (Fla. Sept. 29, 2017).... 9, 12

Lambrix v. State, 217 So.3d 977 (Fla. 2017)................... 11

Lukehart v. Florida, 533 U.S. 934 (2001)...................... 11

Lukehart v. Jones, 2017 WL 1033691 (Fla. Mar. 17, 2017)....... 11

Marshall v. Florida, 508 U.S. 915 (1993)...................... 11

Marshall v. Jones, 226 So.3d 211 (Fla. 2017).................. 11

Miller v. Alabama, 567 U.S. 460 (2012)......................... 4

Montgomery v. Louisiana, 136 S. Ct. 718 (2016).............. 4, 5

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

Oats v. Florida, 474 U.S. 865 (1985).......................... 11

Oats v. Jones, 220 So.3d 1127 (Fla. 2017)..................... 11

Pennsylvania v. Finley, 481 U.S. 551 (1987).................... 2

Penry v. Lynaugh, 492 U.S. 302 (1989)....................... 5, 8

Powell v. Delaware, 153 A.3d 69 (Del. 2016).................... 6

Rauf v. State, 145 A.3d 430 (Del. 2016)........................ 6

Ring v. Arizona, 536 U.S. 584 (2002)........................... 3

Rodriguez v. Florida, 510 U.S. 830 (1993)..................... 11

Rodriguez v. State, 219 So.3d 751 (Fla. 2017)................. 11

Romano v. Oklahoma, 512 U.S. 1 (1994)......................... 10

Schriro v. Summerlin, 542 U.S. 348 (2004)................ 4, 5, 7

Smith v. State, 598 So.2d 1063 (Fla. 1992)..................... 8

Stein v. Florida, 513 U.S. 834 (1994)......................... 11

Stein v. Jones, 2017 WL 836806 (Fla. Mar. 3, 2017)............ 11

Suggs v. Florida, 514 U.S. 1083 (1995)........................ 11

Suggs v. Jones, 2017 WL 1033680 (Fla. Mar. 17, 2017).......... 11

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

Wainwright v. Florida, 523 U.S. 1127 (1998)................... 11

Wainwright v. State, 2017 WL 394509 (Fla. Jan. 30, 2017)...... 11

Welch v. United States, 136 S. Ct. 1257 (2016)................. 5

Willacy v. Florida, 522 U.S. 970 (1997)....................... 11

Willacy v. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017)........ 11

Williams v. State, 595 So.2d 936 (Fla. 1992).................. 10

40a

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

Zack v. Florida, 531 U.S. 858 (2000).......................... 11

Zack v. State, 2017 WL 2590703 (Fla. June 15, 2017)........... 11

Zakrzewski v. Florida, 525 U.S. 1126 (1999)................... 11

Zakrzewski v. Jones, 221 So.3d 1159 (Fla. 2017)............... 11

Zeigler v. State, 580 So.2d 127 (Fla. 1991).................... 6

OTHER AUTHORITIES

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

41a

STATEMENT OF THE CASE AND FACTS

Appellant,

Ronald

Heath,

was

convicted

first-degree

murder, armed robbery, conspiracy to commit uttering forgery,

conspiracy to commit forgery, seven counts of forgery, and seven

counts of uttering forgery and was sentenced to death.

State, 648 So.2d 660, 661-62 (Fla. 1994).

Heath v.

The judgment and

sentence became final upon denial of certiorari by the United

States Supreme Court on June 26, 1995.

Heath v. Florida, 515 U.S.

1162 (1995); Fla. R. Crim. P. 3.851(d)(1)(B) (A judgment and

sentence become final “on the disposition of the petition for writ

of certiorari by the United States Supreme Court, if filed.”).

This Court affirmed the denial of Appellant’s post-conviction

motion.

Heath v. State, 3 So.3d 1017, 1035 (Fla. 2009). Appellant

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

Circuit affirmed the denial of the writ by the United States

District Court for the Middle District of Florida. Heath v. Sec’y,

Fla. Dep’t of Corr., 717 F.3d 1202, 1205 (11th Cir. 2013).

On May 22, 2017, Appellant filed a successive post-conviction

motion, which was denied by the circuit court on September 7, 2017.

On October 6, 2017, Appellant filed a notice of appeal.

On August

10, 2017, this Court affirmed the conviction and sentence in

Hitchcock

accordance

with

this

Court’s

decision

Asay.

Hitchcock v. State, 226 So.3d 216, 217 (Fla. 2017); Asay v. State,

210 So.3d 1 (Fla. 2016).

On October 18, 2017, this Court issued

42a

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

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

Hitchcock v. State, SC17-455.”

On November 7, 2017, Appellant

filed “Appellant’s Response to October 18, 2017 Order to Show

Cause” (Response).

This is the Appellee’s reply to Appellant’s

Response.

SUMMARY OF THE ARGUMENT

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

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

Hitchcock.

Because Appellant’s case was final before Ring, and

Hurst is not retroactive under federal law, this Court should

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

ARGUMENT

Appellant’s

request

should be denied.

for

oral

argument

and

full

briefing

The placement of reasonable page limitations is

necessary to improve the ability of this Court to issue rulings in

a more timely and efficient fashion.

See Henry v. State, 937 So.2d

563, 575-76 (Fla. 2006), quoting Basse v. State, 740 So.2d 518

(Fla.

1999).

There

are

federal

state

constitutional

violations in this Court’s placing a reasonable page limitation on

the pleadings in this case.

See Pennsylvania v. Finley, 481 U.S.

551, 555-57 (1987) (finding no federal constitutional right to

post-conviction relief); Evitts v. Lucey, 469 U.S. 387, 393 (1985)

43a

(entitlements only apply to first appeal as a matter of right).

Appellant’s arguments that this Court’s procedure violates federal

or state constitutional provisions is without merit and devoid of

any supporting caselaw.

Asay,

this

Court

held

that

Hurst

State

not

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

to the June 24, 2002, decision in Ring.

Asay, 210 So.3d at 22;

Hurst v. State, 202 So.3d 40 (Fla. 2016); Ring v. Arizona, 536

U.S. 584 (2002).

The judgment in Asay became final October 7,

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

Asay, 210 So.3d at 8.

This Court discussed the appropriate test

for applying retroactivity to Hurst.

Id. at 15-16.

This Court

applied the Witt analysis for retroactivity under state law, “which

provides more expansive retroactivity standards than those adopted

in Teague,” which enumerates the federal retroactivity standards.

Id. (emphasis in original), quoting Johnson v. State, 904 So.2d

400, 409 (Fla. 2005); Witt v. State, 387 So.2d 922 (Fla. 1980);

Teague

Lane,

489

U.S.

288

(1989);

see

also

Danforth

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

a retroactivity test that is broader than Teague).

Despite Appellant’s claim that Hurst created a substantive

change requiring federal retroactivity, in Schriro, the Supreme

Court determined that Ring was a procedural rule and did not create

a substantive constitutional change in the law because it only

44a

“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.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). Ring

did not alter the “range of conduct or the class of persons that

the law punishes.”

Id.

Thus, Ring “announced a new procedural

rule that does not apply retroactively to cases already final on

direct review.”

Id. at 358.

Since the Supreme Court held that

Ring did not create a substantive constitutional rule and is not

retroactive, Hurst is also not a substantive constitutional rule,

nor is it retroactive under federal law.

Appellant first relies on Montgomery to argue that Hurst was

a substantive change, analogizing Hurst to Miller.

Montgomery v.

Louisiana, 136 S. Ct. 718 (2016); Miller v. Alabama, 567 U.S. 460

(2012); (Response at 12). Appellant argues that like Miller, Hurst

“conflates

procedural

requirement

necessary

implement

substantive guarantee with a rule that ‘regulate[s] only the manner

of determining the defendant’s culpability.’”

Montgomery, 136 S.

Ct. at 734-35, quoting Schriro, 542 U.S. at 353 (emphasis in

original).

But Montgomery found Miller to be substantive because

“it rendered life without parole an unconstitutional penalty for

‘a class of defendants because of their status’ — that is juvenile

offenders . . .” and Miller to be retroactive because “the vast

majority of juvenile offenders — ‘“faces a punishment that the law

45a

cannot impose upon him.”’”

Montgomery, 136 S. Ct. at 734, quoting

Penry, 492 U.S. at 330; Schriro, 542 U.S. at 352.

Hurst is procedural.

Unlike Miller,

The same class of defendants committing the

same range of conduct face the same punishment.

can still be imposed under the law.

The death penalty

Instead, Hurst, like Ring,

merely “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.”

Schriro, 542 U.S. at 353.

Thus, Hurst is a

procedural change and not retroactive under federal law.

Appellant next relies on Welch to argue that Hurst was a

substantive change and thus retroactive under federal law.

Welch

v. United States, 136 S. Ct. 1257 (2016); (Response at 16).

Welch

quotes

the

same

portions

Schriro

quoted

the

paragraph to describe the distinctions between a substantive and

a procedural change.

Id. at 1265.

In Welch, this Court found

that striking down the residual clause of the Armed Career Criminal

Act in Johnson caused a substantive change because “the same person

engaging in the same conduct is no longer subject to the Act.”

Id.

Unlike Welch, after Ring and Hurst, Florida’s death penalty

sentencing scheme still applies to the same persons engaging in

the same conduct.

Neither the range of conduct nor the class of

persons has been altered.

The only change is the manner of

46a

determining a defendant’s sentence. Thus, Ring and Hurst announced

a procedural change, not a substantive one.

Appellant relies upon Ivan V. and Powell for the premise that

Hurst should be retroactive under the federal Teague standard as

a substantive change.

(Response at 18-19); Ivan V. v. City of New

York, 407 U.S. 203, 205 (1972); Powell v. Delaware, 153 A.3d 69

(Del. 2016).

Appellant argues that Hurst “addressed the proof-

beyond-a-reasonable-doubt standard.”

(Response at 18).

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); Finney v. State, 660

So.2d 674, 680 (Fla. 1995).

The Delaware Court in Powell agreed:

“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.

The Delaware Supreme Court used this fact

to distinguish Delaware’s “watershed ruling” in Rauf which was the

basis for Delaware to find that retroactivity applied to Powell

under Teague, from Ring and Hurst.

Powell, 153 A.3d at 74; Rauf

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

Thus, Powell applies to

Delaware cases and distinguishes Hurst and Ring under Delaware

law.

47a

Appellant

also

asserts

the

Eleventh

Circuit

declined

extend Hurst retroactively because they were bound by a narrow

standard of review and were focused on the “idiosyncratic issue”

whether

retroactive.

Florida’s

new

capital

(Response at 19 n.5).

sentencing

statute

However, the Eleventh Circuit

denied Hurst relief because Hurst is not retroactive under federal

law, stating: “[t]he Supreme Court has held that Ring does not

apply retroactively to cases on collateral review.

See Schriro v.

Summerlin, 542 U.S. 348, 358[ ] (2004) (holding that Ring does not

apply

retroactively

under

federal

already final on direct review.).”

law

death-penalty

cases

Lambrix v. Sec’y, Fla. Dep’t

of Corr., 872 F.3d 1170, 1182 (11th Cir. 2017), cert. denied,

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

2017).

Further, the Eleventh Circuit held that this Court’s

ruling, that Hurst did not retroactively apply to Lambrix, whose

judgment was final in 1986, “is fully in accord with the U.S.

Supreme Court’s precedent in Ring and Schriro.”

1182.

The

Eleventh

Circuit

also

Lambrix, 872 F.3d

rejected

the

statutory

retroactivity argument stating

jurists of reason would not find this

proposition debatable: the Florida court’s

rejection

Lambrix’s

constitutionalstatutory claim was not contrary to, or an

unreasonable application of, the holding of a

Supreme Court decision.

Id. at 1183; see also Dobbert v. Florida, 432 U.S. 282, 301 (1977).

48a

Additionally, with retroactivity, there is usually a cutoff

date to provide for finality in appellate proceedings.

Penry v.

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

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

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

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

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

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

break’ with the past.”

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

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

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

review would receive the benefit of relief from Hurst error.

Essentially, Griffith provided “partial” retroactivity to cases

that were not yet final.

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.

It is not arbitrary as Appellant

argues and was drawn at Ring instead of Hurst for a significant

purpose: “defendants who were sentenced to death based on a statute

that was actually rendered unconstitutional by Ring should not be

penalized for the United States Supreme Court’s delay in explicitly

making this determination.”

Mosley v. State, 209 So.3d 1248, 1283

(Fla. 2016); (Response at 6-10).

Thus, this Court’s retroactivity

cutoff neither violates the Eighth Amendment’s guaranty against

arbitrary and capricious application, nor does it violate the

49a

Fourteenth

process.

Amendment’s

guarantee

equal

protection

and

due

Further, this Court has previously heard and rejected

Appellant’s

due

process,

equal

protection,

and

arbitrariness

arguments.

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

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

Though Appellant’s case was not decided in between Apprendi

and Ring, appellant argues that the “fundamental unfairness” of

the Ring based cutoff date is “stark” when viewed in the context

of a Ring based cutoff rather than an Apprendi based cutoff.

(Response at 10).

However, “the Supreme Court distinguished

capital cases from its holding in Apprendi.”

Asay, 210 So.3d at

19; citing Apprendi v. New Jersey, 530 U.S. 466, 496-97 (2000)

(“this Court has previously considered and rejected the argument

that the principles guiding our decision today render invalid state

capital sentencing schemes . . .”).

Because Apprendi does not

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

for Hurst retroactivity.

Thus, a Ring based cutoff, rather than

an Apprendi based cutoff, is proper.

Appellant also argues that since the jury only recommended

imposition of the death penalty, there is a “Caldwell issue.”

See

Caldwell v. Mississippi, 472 U.S. 320 (1985); (Response at 5 n.3).

Further, 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).

50a

“To establish a Caldwell violation, a defendant necessarily must

show that the remarks to the jury improperly described the role

assigned to the jury by local law.”

Dugger v. Adams, 489 U.S.

401, 407 (1989); see also Romano v. Oklahoma, 512 U.S. 1, 9 (1994).

Thus, references and descriptions that accurately characterize the

jury’s and judge’s sentencing roles under Florida law do not

violate Caldwell.

Even under the current death penalty statute,

the jury’s final unanimous recommendation of death is still an

“advisory” verdict as the judge is free to disagree with the jury’s

recommendation

sentence.

death

and

sentence

defendant

life

After such a decision is made, under double jeopardy

principles a defendant “can no longer be put in jeopardy of

receiving the death penalty.”

938 (Fla. 1992).

Williams v. State, 595 So.2d 936,

The judge remains the final sentencing authority

in Florida and a jury’s recommendation of death remains “advisory.”

Thus,

characterizing

the

jury

“advisory”

accurate

description of the role assigned to the jury by Florida law and

there is no Caldwell violation.

After Asay, this Court continuously adhered to using the Ring

decision date as the cutoff point for retroactivity.

Thus far,

this Court has chosen not to extend Hurst v. State to more than 24

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

51a

were finalized prior to the decision in Ring.1

On August 10, 2017,

in Hitchcock, this Court reaffirmed the decision in Asay stating

[a]lthough

Hitchcock

references

various

constitutional provisions as a basis for

arguments that Hurst v. State should entitle

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

Florida, 502 U.S. 895 (1991)); Hannon v. State, Nos. SC17-1618, SC171837, 2017 WL 4944899, *6 (Fla. Nov. 1, 2017) (sentence final in 1995);

Jones v. State, No. SC15-1549, 2017 WL 4296370, *2 (Fla. Sept. 28, 2017);

Hitchcock, 226 So.3d at 217(sentence final in 2000; see Hitchcock v.

Florida, 531 U.S. 1040 (2000)); Zack v. State, Nos. SC15-1756, SC161090, 2017 WL 2590703, *5 (Fla. June 15, 2017)(sentence final in 2000;

see Zack v. Florida, 531 U.S. 858 (2000)); Zakrzewski v. Jones, 221 So.3d

1159, 1159 (Fla. 2017)(sentence final in 1999; see Zakrzewski v. Florida,

525 U.S. 1126 (1999)); Oats v. Jones, 220 So.3d 1127, 1129 (Fla.

2017)(sentence final in 1985; see Oats v. Florida, 474 U.S. 865 (1985));

Marshall v. Jones, 226 So.3d 211 (Fla. 2017)(sentence final in 1993; see

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

751, 760 (Fla. 2017)(sentence final in 1993; see Rodriguez v. Florida,

510 U.S. 830 (1993)); Willacy v. Jones, No. SC16-497, 2017 WL 1033679

(Fla. Mar. 17, 2017)(sentence final in 1997; see Willacy v. Florida, 522

U.S. 970 (1997)); Suggs v. Jones, No. SC16-1066, 2017 WL 1033680, *1

(Fla. Mar. 17, 2017)(sentence final in 1995; see Suggs v. Florida, 514

U.S. 1083 (1995)); Lukehart v. Jones, No. SC16-1225, 2017 WL 1033691,

*1 (Mar. 17, 2017)(sentence final in 2001; see Lukehart v. Florida, 533

U.S. 934 (2001)); Cherry v. Jones, No. SC16-694, 2017 WL 1033693, *1

(Fla. Mar. 17, 2017)(sentence final in 1990; see Cherry v. Florida, 494

U.S. 1090 (1990)); Archer v. Jones, No. SC16-2111, 2017 WL 1034409, *1

(Fla. Mar. 17, 2017)(sentence final in 1996; see Archer v. Florida, 519

U.S. 876 (1996)); Jones v. Jones, No. SC16-607, 2017 WL 1034410 (Fla.

Mar. 17, 2017)(sentence final in 1995; see Jones v. Florida, 515 U.S.

1147 (1995)); Hartley v. Jones, No. SC16-1359, 2017 WL 944232, *1 (Mar.

10, 2017)(sentence final in 1997; see Hartley v. Florida, 522 U.S. 825

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

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

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

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

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

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

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

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

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

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

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

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

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

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

510 U.S. 925 (1993)).

52a

him to a new sentencing proceeding, these are

nothing more than arguments that Hurst v.

State should be applied retroactively to his

sentence, which became final prior to Ring. As

such, these arguments were rejected when we

decided Asay. Accordingly, we affirm the

circuit

court's order

summarily

denying

Hitchcock's successive postconviction motion

pursuant to Asay.

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

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

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

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

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

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

based on new legislation); Hannon v. State, Nos. SC17-1618, SC171837, 2017 WL 4944899, *6 (Fla. Nov. 1, 2017) (noting express

rejection of statutory and Eighth Amendment arguments).

Here,

just

Hitchcock/Asay/Lambrix/Hannon

and

every

other pre-Ring case this Court has reviewed, Appellant 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

Appellant.

Appellant’s case became final on June 26, 1995, which

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

is not retroactive to Appellant.

As such, Hurst

Additionally, Appellant is “not

entitled to Hurst relief, thus, there is no Hurst error to review

for harmless error.”

Hannon, 2017 WL 4944899 at *6.

53a

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

Appellant has demonstrated no cause for this Court to recede from

its lengthy case precedent.

Because Appellant’s judgment and

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

retroactive to him.

CONCLUSION

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

post-conviction motion and affirm the conviction and sentence.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Jennifer A. Donahue

Assistant Attorney General

Florida Bar No. 50639

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399

Telephone: (850)414-3580

Facsimile: (850)414-0997

capapp@myfloridalegal.com

Jennifer.donahue@myfloridalegal.com

COUNSEL FOR APPELLEE

54a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 8th day of November, 2017, I

electronically filed the foregoing with the Clerk of the Court by

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

notice of electronic filing to the following: Sonya Rudenstine,

Esq.

srudenstine@yahoo.com,

and

Billy

Nolas,

Esq.

billy_nolas@fd.org, Attorneys for Appellant.

CERTIFICATE OF FONT COMPLIANCE

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

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

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

/s/ Jennifer A. Donahue

COUNSEL FOR APPELLEE

55a

EXHIBIT 6

56a

Filing # 64846892 E-Filed 12/01/2017 01:05:36 PM

No. SC17-1808

IN THE

Supreme Court of Florida

___________________________________________________________

RONALD PALMER HEATH,

RECEIVED, 12/01/2017 01:08:29 PM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S REPLY IN SUPPORT OF

RESPONSE TO OCTOBER 18, 2017 ORDER TO SHOW CAUSE

_____________________________________________________

Sonya Rudenstine

Attorney at Law

224 NW 2nd Avenue

Gainesville, FL

srudenstine@yahoo.com

(352) 359-3972

Fla. Bar No. 0711950

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Appellant

57a

TABLE OF CONTENTS

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT ........... 1

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

The State is incorrect in asserting that prior decisions in this Court addressed

the federal retroactivity arguments Appellant raises in this proceeding ......... 1

II.

The State’s cursory arguments concerning Hurst retroactivity are

unpersuasive ....................................................................................................5

III.

The State abandons any “harmless error” arguments ....................................10

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

58a

RENEWED REQUESTS FOR BRIEFING AND ORAL ARGUMENT

Appellant renews his requests that the Court permit untruncated briefing.

ARGUMENT

The State is incorrect in asserting that prior decisions in this Court

addressed the federal retroactivity arguments Appellant raises here

The State is incorrect that “[h]ere, just as in Hitchcock/Asay/Lambrix/Hannon

and every other pre-Ring case this Court has reviewed Appellant raises various

constitutional provisions to argue that Hurst should be retroactively applied to him.”

State’s Resp. at 12. This Court’s decision in these other cases did not explicitly

address or reject any of the federal retroactivity arguments Appellant raised in

response to the order to show cause. See Appellant’s Resp. at 5-20.

This Court’s opinion in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), relied

exclusively on the reasoning in Asay v. State, 210 So. 3d 1 (Fla. 2016). As the State

acknowledges, the Court’s decision in Asay rested entirely on the state retroactivity

law articulated in Witt v. State, 387 So. 2d 922 (Fla. 1980). See State’s Resp. at 3

(“This Court applied the Witt analysis for retroactivity under state law”); see also

Asay, 210 So. 3d at 16 (“To apply a newly announced rule of law to a case that is

already final at the time of the announcement, this Court must conduct a retroactivity

59a

analysis pursuant to the dictates of Witt.”).1 Asay did not address whether federal

law required the Hurst decisions to apply retroactively, and did not address the

federal retroactivity arguments raised in Appellant’s response to the order to show

cause in this case. Namely, Asay did not address whether a retroactivity “cutoff”

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

capricious imposition of the death penalty or the Fourteenth Amendment’s Equal

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

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

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

retroactively in light of Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

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

Appellant’s federal retroactivity arguments. See Hitchcock, 226 So. 3d at 217 (“We

affirm because we agree with the circuit court that our decision in Asay forecloses

relief.”); id. (“Accordingly, we affirm the circuit court’s order summarily denying

Hitchcock’s successive postconviction motion pursuant to Asay.”). The State’s

response here attempts to highlight the conclusory sentence in Hitchcock that reads:

“Although Hitchcock references various constitutional provisions as a basis for

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

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).

60a

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

retroactively to his sentence, which became final prior to Ring.” State’s Resp. at 1112 (citing Hitchcock, 226 So. 3d at 217) (emphasis added). But the Hitchcock

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

Appellant’s federal retroactivity arguments, as the very next sentence in Hitchcock

reads: “As such, these arguments were rejected when we decided Asay.”). Hitchcock,

226 So. 3d at 217. As explained above, Asay rested its analysis entirely on state

retroactivity law and the Florida Constitution.

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

Hitchcock, many Hurst defendants have raised federal retroactivity arguments in this

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

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

defendants, appellants, and petitioners, as Appellant does here, advanced federal

retroactivity arguments under the Eighth and Fourteenth Amendments, as well as the

Supremacy Clause and Montgomery. If this Court had intended to put those

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

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

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

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

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

61a

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

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

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

to show cause in this case does not contend otherwise.

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

addressed in other cases, those decisions are not applicable here. As Appellant noted

in his initial response to the order to show cause, the Eleventh Circuit’s decision in

Lambrix v. Sec’y, 872 F.3d 1170 (11th Cir. 2017), is not precedential in this Court

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

dramatically restricts federal review of state-court decisions. This Court’s

application of federal constitutional protections, on the other hand, is not

circumscribed. More importantly, Lambrix dealt with an idiosyncratic issue—the

“retroactivity” of Florida’s new capital sentencing statute—and did not squarely

address the retroactivity of the constitutional rules arising from the Hurst decisions.

Similar idiosyncratic presentations also render inapplicable to Appellant this Court’s

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

and Lambrix v. State, 227 So. 3d 112 (Fla. 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) (acknowledging that Lambrix precludes grant of COA on

issue of retroactivity of Florida’s new sentencing statute, but notes that “it is arbitrary

62a

in the extreme to make this distinction between people on death row based on

nothing other than the date when the constitutional defect in their sentence

occurred”).

II.

The State’s cursory arguments concerning Hurst retroactivity are

unpersuasive

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

proposition that the United States Supreme Court’s ruling in that case—that Ring is

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

retroactive in any proceeding. See State’s Resp. at 3-4. But as Appellant explained

initially, see Appellant’s Resp. at 18-19, the Arizona statute at issue in Ring and

Summerlin did not require fact-finding regarding the aggravators and their

“sufficiency” to justify the death penalty. That difference is critical for federal

retroactivity. Indeed, Summerlin acknowledged that if the Court itself “[made] a

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

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

time, the United States Supreme Court and this Court found it unconstitutional for a

judge alone to make a finding of fact as to the “sufficiency” of the aggravation.

Moreover, Hurst, unlike Ring, addressed the proof-beyond-a-reasonabledoubt standard. Although the State attempts to distinguish Ivan V. v. City of New

York, 407 U.S. 203 (1972), and Powell v. Delaware, 153 A.3d 69 (Del. 2016), see

State’s Resp. at 11-12, those attempts fall flat. Even assuming, as the State suggests,

63a

that Florida’s scheme formerly incorporated the beyond-a-reasonable-doubt

standard, that standard was misapplied to findings of fact made by the trial judge,

not by the jury. The Hurst decisions held that the jury must make the beyond-areasonable-doubt findings that subject a defendant to a death sentence. Indeed, a

federal judge in Florida, citing Ivan, has already observed the distinction between

the holding of Summerlin and the retroactivity of Hurst because of the beyond-areasonable-doubt standard. See Guardado v. Jones, No. 4:15-cv-256 (N.D. Fla. May

27, 2016) (contrasting Hurst to Ring and Summerlin, because the latter decisions

“did not address the requirement for proof beyond a reasonable doubt,” and “[t]he

Supreme Court has held a proof-beyond-a-reasonable-doubt decision retroactive”).

The State’s citation to Powell in arguing against the federal retroactivity of

Hurst, see State’s Resp. at 11-12, is particularly odd considering that in Powell, the

Delaware Supreme Court applied a retroactivity test that mirrors the federal

retroactivity test articulated in Teague v. Lane, 489 U.S. 288 (1989), and held that

Hurst should be applied retroactively in Delaware. See Powell, 153 A.3d at 75-76.

If anything, Powell favors Appellant’s position.

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

64a

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).

Next, the State suggests that the Ring cutoff is constitutionally sound because

“there is usually a cutoff date to provide for finality in appellate proceedings.”

State’s Resp. at 8. This demonstrates the State’s misunderstanding of Appellant’s

equal protection and arbitrary and capriciousness arguments. As Appellant

explained, a Ring cutoff injects into Florida’s death penalty jurisprudence a level of

arbitrariness and capriciousness and a denial of equal protection and due process of

law that is not present in typical circumstances where retroactivity is withheld based

65a

on widely-recognized pragmatic necessity for courts to evolve constitutional

protections prospectively without undue cost to the finality of preexisting judgments.

A Hurst retroactivity cutoff at Ring injects a degree of capriciousness that far

exceeds the level justified by “normal” jurisprudence. To see why, one may consider

how Florida’s pre-Ring inmates do and do not differ from their post-Ring peers. The

two groups were both sentenced under a procedure that allowed death sentences

based on factual findings not tested by a jury trial. But inmates whose death

sentences became final before Ring have been on death row longer than their postRing counterparts and have demonstrated over a longer time that they are capable of

adjusting to that environment. Pre-Ring inmates also have undergone the prolonged

suffering chronicled by Justice Breyer, dissenting from the denial of certiorari in

Sireci v. Florida, 137 S. Ct. 470 (2016), longer than their post-Ring counterparts.

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

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

sentence under the conventions of decency prevailing today. In the generation since

Ring, prosecutors and juries have been increasingly unlikely to seek and impose

death sentences. A significant number of cases which terminated in a death verdict

before Ring are cases where a death sentence would not be imposed, or even pursued,

in the modern era. And pre-Ring inmates are more likely to have received death

sentences in trials involving problematic factfinding: the past two decades have

66a

witnessed a broad-spectrum recognition of the unreliability of numerous kinds of

evidence—flawed forensic-science theories and practices, hazardous eyewitness

identification testimony, and so forth—that was accepted without question in preRing capital trials. Doubts that would cause today’s prosecutors, juries, and judges

to hesitate to seek or impose a death sentence were unrecognized in the pre-Ring era.

Taken together, these considerations highlight 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 irremediably perverse and inconsistent with the Eighth and

Fourteenth Amendments. 2

Finally, the State suggests that there is no Caldwell v. Mississippi, 472 U.S.

320 (1995), issue because the jury in Florida is still only “advisory” since the trial

judge can override a death verdict and sentence a capital defendant to life. This

The State also suggests that any interest in finality outweighs Appellant’s

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

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

outweigh constitutional rights:

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

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

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

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

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

Id. at 2953.

67a

contradicts the holding in Caldwell that “it is constitutionally impermissible to rest

a death sentence on a determination made by a sentence who has been led to believe

that the responsibility for determining the appropriateness of the defendant’s death

rests elsewhere.” Id. at 328-29. In the State’s hypothetical, there could be no

Caldwell error because any judicial override would vacate a death sentence. Here,

however, a jury that had been instructed that its role was merely advisory was

permitted to sentence Appellant to death by a non-unanimous vote and “believe[d]

that the responsibility for determining the appropriateness of the defendant’s death

rests elsewhere.” Id.

III.

The State abandons any “harmless error” arguments

The State abandons any argument that the Hurst error in Appellant’s case was

harmless by failing to even reference the harmless error doctrine in its response. See

Hoskins, 75 So. 3d 250, 257 (Fla. 2011) (“An issue not raised in an initial brief is

deemed abandoned.”) (citing Hall, 823 So. 2d at 763 (Fla. 2002)) (quotation cleaned

up). As Appellant argued in his initial filing, the Hurst error is not harmless in light

of the advisory jury’s non-unanimous recommendation.

CONCLUSION

For the reasons above and in Appellant’s initial response to the Court’s order

to show cause, this Court should hold that federal law requires the Hurst decisions

to be applied retroactively and vacate Appellant’s death sentence.

68a

Respectfully submitted,

/s/ Sonya Rudenstine

Sonya Rudenstine

Attorney at Law

224 NW 2nd Avenue

Gainesville, FL

srudenstine@yahoo.com

(352) 359-3972

Fla. Bar No. 0711950

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough St., Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Fla. Bar No. 806821

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on December 1, 2017, the foregoing was electronically

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

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

/s/ Billy H. Nolas

Billy H. Nolas

69a

EXHIBIT 7

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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5/21/2018

Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Bowles, Gary Ray

Duval

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

73a

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2/18/18

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5/21/2018

Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Hampton, John

Pinellas

9-3

5/4/17

Hannon, Patrick

Hillsborough

12-0

N (EXECUTED)

11/1/17

Hartley, Kenneth

Duval

9-3

1/26/18

Hayward, Steven

St. Lucie

8-4

3/24/17

Heath, Ronald Palmer

Alachua

10-2

2/28/18

Hernandez, Michael

Santa Rosa

11-1

5/11/17

Hernandez-Alberto,

Pedro

Hillsborough

10-2, 10-2

5/9/17

Hertz, Gerry

Wakulla

10-2, 10-2

5/18/17

Heyne, Justin

Brevard

10-2, 8-4

4/6/17

Hitchcock, James

Orange

10-2

8/10/17

Hobart, Robert

Santa Rosa

7-5

2/21/18

Hodges, George

Michael

Hillsborough

10-2

2/2/18

Hodges, Willie James

Escambia

10-2

3/16/17

Hojan, Gerhard

Broward

9-3, 9-3

1/31/17

Huggins, John

Orange

9-3

5/23/17

Hunter, Jerone

Volusia

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

6/16/17

Hurst, Timothy

Escambia

7-5

10/14/16

Hutchinson, Jeffrey

Okaloosa

WAIVED JURY

WAIVED

JURY

3/15/18

Israel, Connie Ray

Duval

7-5

3/21/17

Jackson, Etheria Verdell

Duval

7-5

1/24/18

Jackson, Kenneth R.

Hillsborough

11-1

3/23/17

Jackson, Michael James

Duval

8-4, 8-4

6/9/17

Jackson, Ray

Volusia

9-3

4/24/17

Jeffries, Kevin G.

Bay

10-2

7/13/17

Jeffries, Sonny Ray

Orange

11-1

1/26/18

Jennings, Brandy Bain

Collier

10-2, 10-2, 102

1/29/18

Johnson, Emanuel

Sarasota

8-4, 10-2

2/2/18

Johnson, Paul Beasley

Polk

11-1, 11-1, 111

12/1/16

Johnson, Richard Allen

St. Lucie

11-1

3/24/17

Johnson, Ronnie

Miami-Dade

7-5, 9-3

3/27/18

Johnston, Ray

Hillsborough

11-1

7/21/17

Johnston, Ray

Hillsborough

12-0

7/21/17

Jones, Henry Lee

Brevard

12-0

3/2/17

Jones, Marvin Burnett

Duval

9-3

1/22/18

Jones, Victor

Miami-Dade

Y/N

10-2, 12-0

9/28/17

Jordan, Joseph

Volusia

10-2

8/22/17

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Kaczmar, III, Leo L.

Clay

12-0

1/31/17

Kelley, William H.

Highlands

8-3 [not a typo] N

1/26/18

King, Cecil

Duval

8-4

7/12/17

King, Michael L.

Sarasota

12-0

1/26/17

Kirkman, Vahtiece

Brevard

10-2

1/11/18

Knight, Richard

Broward

12-0, 12-0

1/31/17

Kocaker, Genghis

Pinellas

11-1

10/6/17

Kokal, Gregory Alan

Duval

12-0

1/24/18

Kopsho, William M.

Marion

10-2

1/19/17

Krawczuk, Anton

Duval

12-0

1/31/18

Lamarca, Anthony

Pinellas

11-1

1/30/18

Lambrix, Cary Michael

Glades

8-4, 10-2

N (EXECUTED)

9/29/17

Lawrence, Gary

Santa Rosa

9-3

2/2/18

Lebron, Joel

Osceola

7-5

4/20/17

Lightbourne, Ian

Marion

Unrecorded

1/26/18

Long, Robert Joe

Hillsborough

12-0

1/29/18

Lucas, Harold Gene

Lee

11-1

1/24/18

Marquard, John

St. Johns

12-0

1/24/18

Martin, David

Clay

9-3

7/13/17

Matthews, Douglas

Volusia

10-2

12/5/17

McCoy, Richard (aka

Jamil Rashid)

Duval

7-5

9/6/17

McCoy, Thomas

Walton

11-1

11/8/17

McGirth, Renaldo Devon

Marion

11-1

1/26/17

McKenzie, Norman

Blake

St. Johns

10-2, 10-2

6/19/17

McLean, Derrick

Orange

9-3

4/24/17

McMillian, Justin

Duval

10-2

4/13/17

Melton, Antonio Lebaron

Escambia

8-4

2/2/18

Mendoza, Marbel

Miami-Dade

7-5

1/30/18

Merck, Jr., Troy

Pinellas

9-3

5/5/17

Middleton, Dale

Okeechobee

12-0

3/9/17

Miller, David Jr.

Duval

7-5

1/31/18

Miller, Lionel Michael

Orange

11-1

5/8/17

Morton, Alvin

Pasco

11-1, 11-1

2/2/18

Morris, Dontae

Hillsborough

12-0, 12-0

4/27/17

Morris, Dontae

Hillsborough

10-2

1/11/18

Morris, Robert D.

Polk

8-4

1/26/18

Mosley, John F.

Duval

8-4

12/22/16

Mullens, Khadafy

Pinellas

WAIVED JURY

6/16/16

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Murray, Gerald Delane

Duval

11-1

4/4/17

Nelson, Joshua D.

Lee

12-0

1/31/18

Nelson, Micah

Polk

9-3

3/8/17

Newberry, Rodney

Duval

8-4

4/6/17

Oats, Jr. Sonny Boy

Marion

UNKNOWN

5/25/17

Occhicone, Dominick A.

Pasco

7-5

1/30/18

Okafor, Bessman

Orange

11-1

6/8/17

Oliver, Terence Tabius

Brevard

12-0, 12-0

4/6/17

Orme, Roderick

Bay

11-1

3/30/17

Overton, Thomas M.

Monroe

8-4, 9-3

2/2/18

Pace, Bruce Douglas

Santa Rosa

7-5

1/30/18

Pagan, Alex

Broward

7-5, 7-5

2/1/18

Parker, J.B.

Martin

11-1

4/20/17

Partin, Phillup Alan

Pasco

9-3

3/27/17

Pasha, Khalid

Hillsborough

11-1, 11-1

5/11/17

Peterka, Daniel Jon

Okaloosa

8-4

1/22/18

Peterson, Robert Earl

Duval

7-5

7/6/17

Pham, Tai

Seminole

10-2

3/22/17

Phillips, Galante

Duval

7-5

4/20/17

Phillips, Harry Franklin

Miami-Dade

7-5

1/22/18

Philmore, Lenard James

Martin

12-0

1/25/18

Pietri, Norberto

Palm Beach

8-4

2/2/18

Poole, Mark

Polk

11-1

3/31/17

Pope, Thomas Dewey

Broward

9-3

2/28/18

Puiatti, Carl

Pasco

11-1

1/23/18

Quince, Kenneth Darcell

Volusia

WAIVED JURY

1/18/18

Raleigh, Bobby Allen

Volusia

12-0, 12-0

2/28/18

Reaves, William

Indian River

10-2

5/2/18

Reynolds, Michael

Seminole

12-0, 12-0

4/5/18

Rhodes, Richard Wallace Pinellas

10-2

1/23/18

Rigterink, Thomas

William

Polk

7-5, 7-5

4/6/17

Rimmer, Robert

Broward

9-3, 9-3

6/29/17

Robards, Richard

Pinellas

7-5, 7-5

4/6/17

Rodgers, Jeremiah

Santa Rosa

WAIVED JURY

2/8/18

Rodgers, Theodore

Orange

8-4

4/3/17

Rogers, Glen Edward

Hillsborough

12-0

1/30/18

Rodriguez, Manuel

Antonio

Miami-Dade

12-0, 12-0, 120

1/31/18

San Martin, Pablo

Miami-Dade

9-3

2/28/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

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Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

Schoenwetter, Randy

Brevard

10-2, 9-3

4/7/17

Seibert, Michael

Broward

9-3

6/22/17

Serrano, Nelson

Polk

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

9-3

5/11/17

Sexton, John

Pasco

10-2

6/29/17

Silvia, William

Seminole

11-1

2/20/17

Simmons, Eric Lee

Lake

8-4

12/22/16

Sireci, Henry Perry

Orange

11-1

1/31/18

Sliney, Jack R.

Charlotte

7-5

1/31/18

Smith, Corey

Miami-Dade

9-3, 10-2

3/16/17

Smith, Joseph

Sarasota

10-2

7/13/17

Smith, Stephen V.

Charlotte

9-3

4/21/17

Smithers, Samuel

Hillsborough

12-0, 12-0

3/29/18

Snelgrove, David B.

Flagler

8-4, 8-4

5/11/17

Sochor, Dennis

Broward

10-2

1/30/18

Stein, Steven Edward

Duval

10-2

1/31/18

Stephens, Jason

Demetrius

Duval

9-3

1/22/18

Stewart, Kenneth Allen

Hillsborough

10-2

4/25/17

Stewart, Kenneth Allen

Hillsborough

10-2

1/26/18

Sweet, William Earl

Duval

10-2

1/24/18

Suggs, Ernest

Walton

7-5

3/17/17

Tanzi, Michael

Monroe

12-0

4/5/18

Taylor, John Calvin

Clay

10-2

10/12/17

Taylor, Perry

Hillsborough

8-4

5/3/18

Taylor, Steven Richard

Duval

10-2

1/24/18

Taylor, William Kenneth

Hillsborough

12-0

4/5/18

Thomas, William

Gregory

Duval

11-1

1/24/18

Trease, Robert J.

Sarasota

11-1

1/24/18

Trepal, George

Polk

9-3

1/26/18

Trotter, Melvin

Manatee

11-1

1/26/18

Troy, John

Sarasota

11-1

6/13/17

Truehill, Quentin

St. Johns

12-0

2/23/17

Tundidor, Randy W.

Broward

12-0

4/27/17

Turner, James Daniel

St. Johns

10-2

6/19/17

Twilegar, Mark

Lee

WAIVED JURY

11/2/17

Victorino, Troy

Volusia

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

6/14/17

Wade, Alan L.

Duval

11-1, 11-1

5/1/17

Walls, Frank

Okaloosa

12-0

1/22/18

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

77a

7/9

5/21/2018

Prisoner Name

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

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

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

78a

8/9

5/21/2018

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

https://deathpenaltyinfo.org/Hurst_Cases_Reviewed

79a

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EXHIBIT 8

80a

Alston v. State, Nos. SC17-499, SC17-983, 2018 WL 2251331 (Fla. May 17, 2018)

Bates v. State, 238 So. 3d 98 (Fla. 2018)

Bradley v. Jones, 238 So. 3d 95 (Fla. 2018)

Branch v. State, 234 So. 3d 548 (Fla. 2018)

Jones v. State, No. 234 So. 3d 545 (Fla. 2018)

Peterka v. State, 237 So. 3d 903 (Fla. 2018)

Phillips v. State, 234 So. 3d 547 (Fla. 2018)

Stephens v. State, 238 So. 3d 94 (Fla. 2018)

Suggs v. State, 234 So. 3d 546 (Fla. 2018)

10.

Walls v. State, 238 So. 3d 96 (Fla. 2018)

11.

Atwater v. State, 234 So. 3d 550 (Fla. 2018)

12.

Beasley v. State, 234 So. 3d 553 (Fla. 2018)

13.

Burns v. State, 234 So. 3d 555 (Fla. 2018)

14.

Clark v. State, 238 So. 3d 99 (Fla. 2018)

15.

Cole v. State, 234 So. 3d 644 (Fla. 2018)

16.

Ford v. State, 237 So. 3d 904 (Fla. 2018)

17.

Puiatti v. State, 234 So. 3d 551 (Fla. 2018)

18.

Rhodes v. State, 234 So. 3d 554 (Fla. 2018)

19.

Willacy v. State, 238 So. 3d 100 (Fla. 2018)

20.

Windom v. State, 234 So. 3d 556 (Fla. 2018)

21.

Dillbeck v. State, 234 So. 3d 558 (Fla. 2018)

22.

Evans v. State, No. SC17-869, 2018 WL 524796 (Fla. 2018)

23.

Jackson v. State, 237 So. 3d 905 (Fla. 2018)

81a

24.

Kokal v. State, 237 So. 3d 907 (Fla. 2018)

25.

Lucas v. State, 234 So. 3d 647 (Fla. 2018)

26.

Marquard v. State, 234 So. 3d 560 (Fla. Jan. 24, 2018)

27.

Sweet v. State, 234 So. 3d 646 (Fla. 2018)

28.

Taylor v. State, 234 So. 3d 649 (Fla. 2018)

29.

Thomas v. State, 234 So. 3d 559 (Fla. 2018)

30.

Trease v. State, No. SC17-686, 2018 WL 1959603 (Fla. Apr. 26, 2018)

31.

Anderson v. State, 235 So. 3d 277 (Fla. 2018)

32.

Finney v. State, 235 So. 3d 279 (Fla. 2018)

33.

Hartley v. State, 237 So. 3d 908 (Fla. 2018)

34.

Jeffries v. State, 235 So. 3d 283 (Fla. 2018)

35.

Kelley v. State, 235 So. 3d 280 (Fla. 2018)

36.

Lightbourne v. State, 235 So. 3d 285 (Fla. 2018)

37.

Morris v. State, 236 So. 3d 324 (Fla. 2018)

38.

Stewart v. State, 235 So. 3d 798 (Fla. 2018)

39.

Trepal v. State, 235 So. 3d 281 (Fla. 2018)

40.

Trotter v. State, 235 So. 3d 284 (Fla. 2018)

41.

Bell v. State, 235 So. 3d 287 (Fla. 2018)

42.

Bowles v. State, 235 So. 3d 292 (Fla. 2018)

43.

Brown v. State, 235 So. 3d 289 (Fla. 2018)

44.

Davis v. State, 235 So. 3d 295 (Fla. 2018)

45.

Foster v. State, 235 So. 3d 290 (Fla. 2018)

46.

Foster v. State, 235 So. 3d 294 (Fla. 2018)

82a

47.

Fotopoulos v. State, 237 So. 3d 911 (Fla. 2018)

48.

Gamble v. State, 235 So. 3d 288 (Fla. 2018)

49.

Jennings v. State, 237 So. 3d 909 (Fla. 2018)

50.

Long v. State, 235 So. 3d 293 (Fla. 2018)

51.

Booker v. Jones, 235 So. 3d 298 (Fla. 2018)

52.

Davis v. Jones, No. 235 So. 3d 301 (Fla. 2018)

53.

Gudinas v. State, 235 So. 3d 303 (Fla. 2018)

54.

Lamarca v. State, 237 So. 3d 914 (Fla. 2018)

55.

Mendoza v. State, 235 So. 3d 302 (Fla. 2018)

56.

Occhicone v. State, 235 So. 3d 299 (Fla. 2018)

57.

Pace v. State, 237 So. 3d 912 (Fla. 2018)

58.

Rogers v. State, 235 So. 3d 306 (Fla. 2018)

59.

Sochor v. State, 235 So. 3d 304 (Fla. 2018)

60.

Whitfield v. State, 235 So. 3d 297 (Fla. 2018)

61.

Consalvo v. State, 235 So. 3d 307 (Fla. 2018)

62.

Gordon v. State, 235 So. 3d 311 (Fla. 2018)

63.

Krawczuk v. State, 237 So. 3d 915 (Fla. 2018)

64.

Miller v. Jones, 237 So. 3d 921 (Fla. 2018)

65.

Nelson v. State, 235 So. 3d 308 (Fla. 2018)

66.

Rodriguez v. State, 237 So. 3d 918 (Fla. 2018)

67.

Sireci v. State, 237 So. 3d 916 (Fla. 2018)

68.

Sliney v. State, 235 So. 3d 310 (Fla. 2018)

69.

Stein v. State, 237 So. 3d 919 (Fla. 2018)

83a

70.

Whitton v. State, 238 So. 3d 724 (Fla. 2018)

71.

Damren v. State, 236 So. 3d 230 (Fla. 2018)

72.

Derrick v. State, 236 So. 3d 231 (Fla. 2018)

73.

Griffin v. State, 236 So. 3d 237 (Fla. 2018)

74.

Hodges v. State, 236 So. 3d 241 (Fla. 2018)

75.

Johnson v. State, 236 So. 3d 232 (Fla. 2018)

76.

Lawrence v. State, 236 So. 3d 240 (Fla. 2018)

77.

Melton v. State, 236 So. 3d 234 (Fla. 2018)

78.

Morton v. State, 236 So. 3d 242 (Fla. 2018)

79.

Overton v. State, 236 So. 3d 238 (Fla. 2018)

80.

Pietri v. State, 236 So. 3d 235 (Fla. 2018)

84a

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.