Opposition Brief — Lenard James Philmore, Petitioner v. Florida

CASE NO. 17-9556

IN THE UNITED STATES SUPREME COURT

October 2017, Term

LENARD PHILMORE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

LESLIE T. CAMPBELL*

Sr. Asst. Attorney General

Florida Bar No. 0066631

Office of the Attorney General

1515 N. Flagler Dr.; Suite 900

West Palm Beach, FL 33401

Telephone (561) 837-5016

Facsimile (561) 837-5108

QUESTIONS PRESENTED FOR REVIEW

[Capital Case]

[Restated]

Whether certiorari review should be denied because (1)

the state court afforded Petitioner a constitutionally

adequate opportunity to show why his death sentence

based on a unanimous jury recommendation was

harmless beyond a reasonable doubt in light of Hurst v.

Florida and Hurst v. State; (2) Petitioner’s capital

sentenced comports with Caldwell v. Mississippi; and (3)

the Florida Supreme Court’s decision does not conflict

with any decision of this Court or involve an important,

unsettled question of federal law? (restated)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW 000.0... ceccccccccceceeeeeeseneeeesneeeeseeeseneensas 1

TABLE OF CONTENTS 2.0. ecceeeccccesceceeeeesseeeeseaeeeeeenaeeeenneeeeeeseeenaeeessseessees re

TABLE OF CITATIONS 20.0. ceecceeeceeeeeseeeeeeeaneceseeeeeeseeeesneeesseeeeneneeneas i

CITATION TO OPINION BELOW 0.0... cee cceccccccceseeceeteeeeeeneeeeeseeetessseeessecenseeess 1

JURISDICTION 000. ceeseeeeneeeceaeessaeeeeseaeeeesaneeceeaaeeessaeeeessaeeeststensseensaes 1

CONSTITUTIONAL PROVISIONS INVOLVED ....00.. oo. ccccectenseeteseeeneeees 1

STATEMENT OF CASE AND FACTS ooo. ceeccceeennceceeeneeeeseeeeeneeeneseeeseeees 2

REASON FOR DENYING THE WRIT oo... eect eee eteseee eee eeensnenenenenenees 10

ISSUE I

WHETHER CERTIORARI REVIEW SHOULD BE DENIED BECAUSE THE

FLORIDA SUPREME COURT'S DECISION DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT OR INVOLVE AN IMPORTANT,

UNSETTLED QUESTION OF FEDERAL LAW WHERE (A) THE STATE

COURT AFFORDED PETITIONER A CONSTITUTIONALLY ADEQUATE

OPPORTUNITY TO SHOW WHY HIS DEATH SENTENCE BASED ON A

UNANIMOUS JURY RECOMMENDATION WAS HARMLESS BEYOND A

REASONABLE DOUBT IN LIGHT OF BURST V. FLORIDA AND HURST

V. STATE, AND (B) PETITIONER’S CAPITAL SENTENCED COMPORTS

WITH CALDWELL V. MISSISSIPPP (RESTATED..........ccccsccccesceseseeseeseseees 10

CONCLUSION 0.00... eee eccececceeseceseessseeeseecseeceeeecesaeessaeeeeseeenarecneeeneeseeesseeegs 23

CERTIFICATE OF SERVICE ooo... ieee ecscccesesessseceeeressseeeeeeeessneeeeessseeeeeesenees 24

INDEX TO APPENDIX... ieee cecsceeccesscceeeesssaeeeescesuaeeeeeessaneeesenseeeeensanees 25

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States, 133 S. Ct. 2151 (2018) ooo. eeccecceceeccccccesscesceeceneeeceeneeeease 18

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ......ccccccccccccssscesessceeeeeeceeees 18

Anders v. California, 386 U.S. 738 (1967) ..eceecccccccccsccccccecececececeetrsscecessseeessrsseceenterssese 14

Apprendi v. New Jersey, 530 U.S. 466 (2000) .....cceeeeceeccecccesececeseeeceecesceeeceseessnsenees 18

Batson v. Kentucky, 476 U.S. 79 (1986) ......ccccecceeccccssccescesceseccasceeccsseceecenscesesreeses 9, 16

Bounds v. Smith, 480 U.S. 817 (1977) occccecccceeccccecsccsssccescccsacecececececessensesseeenseees 14, 15

Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).....8, 10

Chapman v. California, 386 U.S. 18 (1967) .....cccccccecccessessesseescesscesessssssessesscesaseeseeeaees 19

Darden v. Wainwright, 477 U.S. 168 (1986) ......ceecccccccecscesceceeccecececesccesceeseesseeeeesues 20

Davis v. State, 207 So.3d 142 (Fla. 2016) .......eeceeccessecssseeseeeeceeesseeseeeeseeseeseseees 9, 11, 16

Douglas v. People of State of California, 372 U.S. 353 (1968) .......eeccececceseceeceeeeeees 14

Dugger v. Adams, 489 U.S. 401 (1989) ....ccccccccccccccc ccc cescescessceceecceecsevsseeenecneees 20, 22

Erie R. Co. v. Tompkins, 304 U.S. 64 (1986) oo..eccee ec cccccesececcesecesecesceeseeseesevseeessseees 12

Evitts v. Lucey, 469 U.S. 887 (1985) ...cccceccceccscessssenscessceseceseceseesessesesseessessesaseessees 14

General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175 (1924) ......... 19

Harris v. Alabama, 513 U.S. 504 (1995) oo...eeeccceccessccesesssccecscecesseceessssecssecsssseesssseeeseses 21

Hurst v. Florida, 136 S.Ct. 616 (2016) ........c.cecseecceee ee eseeesecseeeeeeeeseenseneeeee 2, 7, 10, 17

Hurst v. State, 202 So.3d 40 (Fla. 2016) .......cecceececeesseeseseeeeseeeeseeeeteeeseesesesseees 2, 11, 16

Jenkins v. Hutton, 137 S. Ct. 1769 (2017) o..ceeecseecceceecsseseseeeeeneeeseseeneseeneeteneaeeeees 18, 19

Johnson v. State,__ So. 8d ____, 2018 WL 1633043 (Fla. April 5, 2018) 0.0... 21

Lil

Jones v. Barnes, 463 U.S. 745 (1988) .occcecccccccscscccececsscssesstsecccessessuecseessesesseeseseeseee 14, 15

Kansas v. Carr, 186 S. Ct. 633 (2016) .o.ecceeccecccccccccssccesscsesecsssccceseeeseceessscetsesessaseaaee 17

Lawrence v. Chater, 516 U.S. 163 (1996) oo... ceccecccccceceseccecceseceeseesseessuesseessesessecseens 13

Middleton v. Florida, 138 S. Ct. 829 (2018) .......c.cecescceesescceesceeseseseeeceeeeeeeeeeestenesesens 21

Mosley v. State, 209 So.3d 1248 (Fla. 2016) ....eceecceeeseeeseeeseseseseseeeseseseees 8, 11, 16

Neder v. United States, 527 U.S. 1 (1999) ....ecceccccccccesececscsececessececseceesssecsseeecsecensacens 19

Page v. Arkansas Natural Gas Corp., 286 U.S. 269 (1932) ......cccccccccsccesseeeseeetseeeseesees 19

Patrick v. State, 104 S0.3d 1046 (Fla. 2012).0.....ccceeesecsceeseseeeeteeeeeeeseseetetseesseseaeees 20

Patterson v. New York, 432 U.S. 197 (1977) ooo. .cecccceccsccseccccessccecesceceetssecesseeecessseeeses 12

Pennsylvania v. Finley, 481 U.S. 551 (1987) .....cccceeceececcesseeccccsssereeseseeeeeeeseeseseeseees 14

Philmore v. McNeil, 575 F.3d 1251 (11th Cir. 2009)... .ececeeseeeeessesesteseeesseneseeees 7

Philmore v. State, 234 S0.38d 567 (Fla. 2018)......cccccccccccccceccecesssescesecsseveeeereeaes passim

Philmore v. State, 820 So.2d 919 (Fla. 2002).....0.ccccccccecccecccecssssescesecsseeeveneees passim

Philmore v. State, 937 So2d 578 (Fla. 2006) ........ccccccccccccsesececsscsceesceceescseceessecceessees 7, 25

Reynolds v. State,__ So. 3d ____, 2018 WL 1633075 (Fla. April 5, 2018)........... 20, 21

Ring v. Arizona, 536 U.S. 584 (2002) .....cccceeccccesscessccsscesecsecesscsececeeeeseeeseessecane 17, 21

Rockford Life Insurance Co. v. Illinois Department of Revenue, 482 U.S. 182 (1987)

bocce eecececececceeesaaececeauesauaeeeeceuseeecaeeeeeaeeeaueeeeeueseeaeeeeeeaeeeseaeeeeseeeesseuasetsanecesaecesaeesseeeceuuneesens 19

Romano v. Oklahoma, 512 U.S. 1 (1994) wo.ceceeeeceeceseseeseeeeeeeneeeseseeeesesestensneaeseaes 20, 22

State v. Gales, 658 N.W.2d 604 (Neb. 2003) ......c.cscceceseces esses eseseseeteeeeeeeeeeseeeeeeteatees 22

State v. Mason, __ N.E.3d __, 2018 WL 1872180 (Ohio, April 18, 2018) .......0....... 21

Stutson v. United States, 516 U.S. 163 (1996) ooo. cecccccecsecsesscececscesesssseeessscecesssceesses 13

United States v. Johnston, 268 U.S. 220 (1925) .....ecccceccccccscccessscceesscessesseceesssccesssseees 19

iv

United States v. McCollom, 426 U.S. 317 (1976) o....eecccccceccccceecccccecensseeeetsceessseeceseess 15

United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) .......ceccccecccescececseeeeseeeessensecees 22

United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) ccc ceccccsceesecescesseeesesecenes 21

Waldrop v. Comm 'r, Alabama Dept. of Corr., 2017 WL 4271115 (11th Cir. Sept. 26,

QOL T) oeeceecececeecesceseseesesseeeseseseesesecssessssssecsssassessesessesaceessesssecsecsseseesesscssesessvacessasevacees 22

Wellons v. Hall, 558 U.S. 220 (2010)....... ec cecccccecccceccecceeseceeeccceesetseseseassceesscecensaeeses 13

Statutes

28 U.S.C. § 125 7(a) oes eecesees es eseeeeseeeceeseesecensecansucseeaseneaseeseeseesasensasensassesieeesneaneseeeess 1

Art. V, § 3(b)(1), Fla. Const ......ccccceccccecccssccscccsscesscesceseeceseceaeccsseceaesesseeaseesecseessuecssessees 8

§921.141(2)(c), Fla. Stat. (2017) .o..ccccccccccccccescessssessescescescesceecseessesusaevsecseeeeaeeeeenes 22

Rules

Fla. R. App. P. 9.210(a)(5)(B) ooo. ccccecccscessceescescecerecesecescenseenaeenseentesstesseeseees 15

Fla. R. Crim. P. 3.851(€)(2) ....ceccccccccccccscssssescsscseescsecsessesesscsecsscscesesscescaecsesscaeesvessscaeeeses 15

Florida Rule of Criminal Procedure 3.851 o0.....cccccccccccesscesssesessseeeseeesseeensscessecesseessenses 7

U.S. Sup. Ct. Re 10 veeccceccccccssscssecssessusssvcssessuessuessusesvessusesessusssssssessesssessesssesseessesssessseeeees 10

U.S. Sup. Ct. R. 88 occ cc ccccccccccccceeeececcccceseeessesssssasecevseececeececceeceecesececececceeeeeerenens 14

CITATION TO OPINION BELOW

The decision of which Petitioner seeks discretionary review is reported as Philmore

v. State, 234 So.3d 567 (Fla. 2018).

JURISDICTION

Petitioner, Lenard Philmore, (“Philmore”), is seeking jurisdiction pursuant to

28 U.S.C. § 1257(a). This is the appropriate provision.

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent, State of Florida (hereinafter “State”), accepts as accurate

Petitioner’s recitation of the applicable constitutional provisions involved.

STATEMENT OF THE CASE AND FACTS

This capital case is before this Court upon the Florida Supreme Court’s

affirmance of the denial of Philmore’s successive postconviction relief motion

addressed to Hurst v. Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202 So.3d 40

(Fla. 2016) upon a finding that any Hurst error and claims of due process and

Eighth Amendment violations were harmless beyond a reasonable doubt. Philmore

v. State, 234 So. 3d 567, 568 (Fla. 2018)

On December 16, 1997, Philmore and Anthony A. Spann (“Spann”) were

indicted for the November 14, 1997 murder, conspiracy to commit robbery with a

deadly weapon, carjacking with a firearm or deadly weapon, kidnapping, robbery

with a firearm or deadly weapon, and grand theft of Kazue Perron (“Perron”).

Following severance of their trials, Philmore was tried by a jury and on January 20,

2000, a guilty verdict was returned. On January 28, 2000, the jury unanimously

recommended Philmore be executed for Perron’s murder, however, sentencing was

continued until after Spann, was tried. On July 21, 2000, the trial court entered its

judgment and sentencing order, imposing the death sentence for the first-degree

murder,! five years for grand theft, 15 years for conspiracy to commit robbery with a

' The court found five aggravators: (1) prior violent felony; (2) felony murder

(kidnapping); (3) avoid arrest; (4) pecuniary gain; and (5) cold, calculated, and

premeditated ("CCP"), no statutory mitigation and eight nonstatutory mitigators:

(1) defendant was victim and witness of physical/verbal abuse by alcoholic father;

(2) history of extensive drug/alcohol abuse; (3) severe emotional trauma and

posttraumatic stress; (4) molested and/or raped when young; (5) classified as

severely emotionally handicapped; (6) able to form close loving relationships; (7)

cooperation with State; and (8) remorse. The prior violent felonies included the

August 22, 1995 battery of a corrections officer in a detention facility, a 1993

deadly weapon, and life for the remaining non-capital crimes to run consecutive to

each other and consecutive to the sentence of death. See Philmore v. State, 820

So.2d 919, 926, n.10 (Fla. 2002).

Philmore appealed his convictions and sentences to the Florida Supreme

Court and on direct appeal, the Florida Supreme Court found the following facts:

Philmore, who was twenty-one at the time of the

commission of the crimes, was charged and convicted of

first-degree murder, conspiracy to commit robbery with a

deadly weapon, carjacking with a deadly weapon,

kidnapping, robbery with a deadly weapon, and thirddegree grand theft based upon the events surrounding the

November 14, 1997, abduction and murder of Perron.

The evidence presented at trial revealed the following.

Philmore and codefendant Anthony Spannl wanted

money so they could go to New York. On November 13,

1997, Philmore, Spann, and Sophia Hutchins, with whom

Philmore was sometimes living, were involved in a

robbery of a pawn shop in the Palm Beach area. However,

the robbery was unsuccessful. Consequently, Philmore

and Spann decided to rob a bank the following day.

On the evening of November 138, Philmore and Spann

picked up their girlfriends, Ketontra "Kiki" Cooper and

Toya Stevenson, respectively, in Spann's Subaru and

stayed at a hotel for the evening. The following morning,

Spann told Philmore that they needed to steal a car asa

getaway vehicle in order to facilitate the robbery. Spann

told Philmore that they would have to kill the driver of

the vehicle they stole.

robbery, the November 4, 1997 robbery of a jewelry store and attempted murder of

the owner, and the November 13, 1995 armed robbery of a pawn shop. The court

rejected the alleged mitigation of: “(1) murder committed under influence of extreme

mental/emotional disturbance; (2) acting under extreme duress or substantial

domination of another; (3) capacity to appreciate the criminality of conduct or to

conform conduct to the requirements of law was substantially impaired; and (4)

defendant's age of 21. Philmore v. State, 820 So.2d 919, 926, n.9 (Fla. 2002).

At approximately 11:30 a.m. on November 14, Philmore

and Spann dropped their girlfriends off at their houses,

and went in search of a car to steal. Philmore and Spann

first looked for a car at the Palm Beach Mall, but were

unsuccessful. They then followed a woman to another

mall, but by the time they reached her car, she was

already outside of her car, making it difficult for them to

steal the car. They ultimately spotted Perron driving a

gold Lexus in a residential community, and the two

followed her.

At approximately 1 p.m., Perron entered the driveway of a

friend with whom she intended to run errands. Upon

entering the driveway, Spann told Philmore to "get her."

Philmore approached the driver's side of the vehicle and

asked Perron if he could use her phone. Perron stated

that she did not live there, and Philmore took out his gun

and told Perron to "scoot over." Philmore drove Perron's

car, with Spann following in his Subaru. During the drive,

Perron was crying and told Philmore that she was scared.

Spann flashed his car lights at Philmore, and the two cars

pulled over. Spann told Philmore to "take the bitch to the

bank." Philmore asked Perron if she had any money, and

Perron responded that she did not have any money in the

bank, but that he could have the $40 she had on her.

Philmore told her to keep the money. Perron took off her

rings, and Philmore placed them inside the armrest of the

Lexus.2 Perron asked Philmore if he was going to kill her,

and he said "no." She also asked if Spann was going to kill

her, and Philmore again said "no."

Philmore and Spann passed a side road in an isolated

area in western Martin County, and Spann flashed his

lights, indicating that they turn around and head down

the road. Philmore chose the place to stop. Philmore

ordered Perron out of the vehicle and ordered her to walk

towards high vegetation containing maiden cane, which is

a tall brush. Perron began "having a fit," and said "no."

Philmore then shot her once in the head. Philmore picked

up Perron's body and disposed of it in the maiden cane.

Spann did not assist in disposing of the body.

Philmore and Spann then drove the two vehicles to

Indiantown, where they stopped at a store. Spann pointed

out a bank to rob, and Philmore, following Spann, drove to

the bank parking lot. Philmore parked the Lexus a short

distance from the bank, and got into Spann's Subaru. At

approximately 1:58 p.m., Spann drove Philmore to the

bank to commit the robbery. Philmore entered the bank

while Spann waited in the car. Philmore grabbed

approximately $1100 that a teller was counting and ran

out of the bank. After robbing the bank, Philmore and

Spann returned to the Lexus, and concealed the Subaru.

Philmore threw his tank top out of the Lexus by the side

of the road after the robbery and wore Spann's tank top.

The discarded tank top, which contained Perron's blood,

was subsequently recovered by the authorities.

After concealing the Subaru, Philmore and Spann

returned to Palm Beach County to pick up Cooper and

Stevenson at their houses. They then went to a fast food

restaurant to get food and Cooper's paycheck. Afterwards,

Philmore wanted to go to Hutchins' house because he left

his shoes there. However, as they approached Hutchins’

house, Philmore spotted an undercover police van sitting

at a nearby house, and stated that it "looked like trouble."

An officer of the West Palm Beach Police Department,

who happened to be engaged in a stakeout in the area,

observed Spann driving the Lexus and recognized him

because there was an outstanding warrant for his arrest

on an unrelated matter. Spann sped away and a highspeed chase ensued on Interstate 95.

As the high-speed chase proceeded into Martin County, a

tire blew out on the Lexus. Philmore and Spann, followed

by Cooper and Stevenson, exited the vehicle and hid in an

orange grove. While in the orange grove, Philmore and

Spann encountered the manager of the grove, John

Scarborough, and his assistant. Although Spann first told

Scarborough that they were running from the police

because of a speeding incident, when Scarborough

expressed his disbelief, Spann said that they were

running from the police because of drug- related

activities. Spann offered Scarborough money to get them

out of the grove, and Scarborough refused. Scarborough

drove away and informed the police, who were already

searching the grove, where he saw them. Philmore and

Spann were apprehended and charged with armed

trespass. The authorities recovered firearms from a creek

in the orange grove a few days later.

From November 15 through November 26, Philmore gave

several statements to the police in which he ultimately

confessed that he robbed the bank and abducted and shot

Perron. On November 21, Philmore led the police to

Perron's body, which was found in the maiden cane.

Philmore was charged in a six-count indictment, and the

jury found Philmore guilty on all counts.

Philmore, 820 So. 2d at 923-25 (footnotes omitted).

The trial record reveals that the jury was instructed that its reeommendation

must be given “great weight” and that the aggravators it found had to be proven

beyond a reasonable doubt before it may be considered and the jury need only be

“reasonably convinced” that a mitigator exists. Further the jury was asked to

provide a recommendation based upon its “determination as to whether sufficient

aggravating circumstances exist to justify the imposition of the death penalty. And,

whether sufficient mitigating circumstances exist to outweigh any aggravating

circumstances found to exist.” (Appendix A} ROA-27 2560-61, 2565) The jury was

instructed should it find the aggravators were insufficient to recommend death,

then life must be recommended. However, should it find sufficient aggravators,

then it must consider whether the mitigation outweighs the aggravation. (Appendix

A; ROA-27 2564-65) While the jury was instructed its reeommendation did not have

to be unanimous, Philmore’s jury was unanimous. (Appendix A; ROA-27 2565-66,

2582-85) .

On May 30, 2002, the Florida Supreme Court rejected Philmore’s eleven

appellate issues, and the Court affirmed. Philmore, 820 So.2d at 940. On June 21,

2002, the mandate issued and on October 7, 2002, this Court denied certiorari

review. Philmore v. Florida, 537 U.S. 895 (2002) . Philmore, on September 16,

2003, filed his Florida Rule of Criminal Procedure 3.851 postconviction motion. On

May 12, 2004, following an evidentiary hearing, relief was denied on all the claims.

The Florida Supreme Court affirmed the denial of relief and denied his state habeas

petition. Philmore v. State, 937 So2d 578 (Fla. 2006). Following his state

postconviction litigation, Philmore pursued a writ of habeas corpus in federal court.

The district court denied relief, and the circuit court of appeals affirmed. Philmore

v. McNeil, 575 F.3d 1251, 1255-59 (11th Cir. 2009), cert. denied, 559 U.S. 1010

(2009)

On January 12, 2016, Hurst v. Florida issued and on January 9, 2017,

Philmore filed a successive Rule 3.851 motion based on it. On March 17, 2017, a

Case Management Conference was held and the trial court denied postconviction

relief. Philmore appealed and the Florida Supreme Court affirmed stating:

Lenard James Philmore is a prisoner under sentence of

death whose sentence became final on October 7, 2002.

See Philmore v. State, 820 So.2d 919 (Fla.), cert. denied,

537 U.S. 895, 123 S.Ct. 179, 154 L.Ed.2d 162 (2002). The

facts underlying Philmore's sentence of death, which was

imposed after a jury unanimously recommended death, id.

at 925, were fully explained in this Court's opinion on

direct appeal. Jd. at 923-25. Following the United States

Supreme Court's decision in Hurst v. Florida, —— U.S. —

—, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this

Court's decision on remand in Hurst v. State (Hurst), 202

So.3d 40 (Fla. 2016), cert. denied, —— U.S. , 187 S.Ct.

2161, 198 L.Ed.2d 246 (2017), Philmore filed a successive

motion for postconviction relief pursuant to Florida Rule

of Criminal Procedure 3.851, arguing that these decisions

render his death sentence unconstitutional under both the

United States and Florida Constitutions.’N! This Court

has jurisdiction. Art. V, § 3(b)(), Fla. Const. For the

reasons explained below, we affirm the postconviction

court's order denying relief.

FN1 Specifically, Philmore relied on Hurst v.

Florida and Hurst to argue in the court

below that his death sentence is

unconstitutional under the Fifth, Sixth, and

Kighth Amendments to the United States

Constitution, as well as the corresponding

provisions of the Florida Constitution.

Philmore's Eighth Amendment claim also

includes the assertion that the jury was

improperly instructed as to its sentencing

responsibility pursuant to Caldwell v.

Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86

L.Ed.2d 231 (1985).

As the postconviction court found, Hurst applies

retroactively to Philmore's sentence of death. See Mosley

v. State, 209 So.3d 1248, 1283 (Fla. 2016). In its order

below, the postconviction court found “beyond a

reasonable doubt that any Hurst error was harmless,”

stating:

This was a highly aggravated case, the jury

was instructed that the aggravators must be

established beyond a reasonable doubt, the

evidence supporting the aggravators for prior

and contemporaneous’ violent felony

convictions was significant and uncontested,

there was no statutory mitigation, the

nonstatutory mitigation was minimal, the

jury was not required to recommend death if

the aggravators outweighed the mitigators,

and the jury recommendation was

unanimous. And to date, the Florida

Supreme Court has not found Hurst error

harmful in any unanimous jury cases.

(Citation omitted.) Based on the jury's unanimous

recommendation for a sentence of death, coupled with

Philmore's confession and the aggravation in this case, we

agree with the postconviction court that the Hurst error

in Philmore's case is harmless beyond a reasonable doubt.

See Davis v. State, 207 So.3d 142, 173-75 (Fla. 2016), cert.

denied, —— U.S. , 187 S.Ct. 2218, 198 L.Ed.2d 663

(2017).

As to Philmore's other claims alleging due process and

Eighth Amendment violations, we conclude that Philmore

is not entitled to relief on these claims because the jury's

unanimous recommendation renders any Hurst error

harmless beyond a reasonable doubt.

Finally, Philmore is not entitled to relitigate his Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69

(1986), claim in light of Hurst, which does not affect the

merits of a Batson claim. A Batson claim addresses who

sits on the jury while Hurst affects what the jury must do,

once empaneled, in order to constitutionally sentence the

defendant to death.

Accordingly, we affirm the postconviction court's order

denying relief.

Philmore, 234 So. 3d at 568-69. Philmore seeks certiorari review of this decision.

REASONS FOR DENYING THE WRIT

ISSUE I

WHETHER CERTIORARI REVIEW SHOULD BE

DENIED BECAUSE THE FLORIDA SUPREME

COURTS DECISION DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT OR INVOLVE AN

IMPORTANT, UNSETTLED QUESTION OF FEDERAL

LAW WHERE (A) THE STATE COURT AFFORDED

PETITIONER A CONSTITUTIONALLY ADEQUATE

OPPORTUNITY TO SHOW WHyY HIS’ DEATH

SENTENCE BASED ON A UNANIMOUS JURY

RECOMMENDATION WAS HARMLESS BEYOND A

REASONABLE DOUBT IN LIGHT OF AURST V.

FLORIDA AND AURST V. STATE AND (B)

PETITIONER'S CAPITAL SENTENCED COMPORTS

WITH CALDWELL V. MISSISSIPPP (RESTATED).

It is Philmore’s assertion that he was denied access to the courts in violation

of the Eighth Amendment to the United States Constitution as well as the Due

Process and Equal Protection clauses when the Florida Supreme Court limited his

briefing of his Hurst claim. Philmore was afforded twenty-five pages for his brief,

but filed a brief of only twenty pages. He did not complain to the Florida Supreme

Court about that procedure. Additionally, he maintains the jury was instructed in

his case that its role was advisory in violation of Caldwell v. Mississippi, 472 U.S.

320 (1985) and the Eighth Amendment which must be reviewed in the wake of

Hurst v. Florida. As will be shown, nothing about the process employed by the

Florida Supreme Court rejecting Philmore’s Hurst and Caldwell] claims was

inconsistent with the Constitution. Philmore does not provide any “compelling”

reason for this Court to review his case on procedural or constitutional grounds.

U.S. Sup. Ct. R. 10. Indeed, Philmore has failed to cite to any decision from this or

10

any appellate court that conflicts with the Florida Supreme Court’s procedure in

limiting the length of the brief to twenty-five pages or its decision in Philmore v.

State, 234 So.3d 567 (Fla. 2018).

A. The Florida Supreme Court’s Briefing Order in Petitioner’s

Successive Postconviction Appeal Is a Matter of State Court Procedure

that Does Not Implicate the Federal Constitution, Due Process or

Equal Protection.

Philmore focuses his efforts on complaining about the procedure and page

limitations? the Florida Supreme Court used to reach its decision that any Hurst v.

Floridal Hurst v. State error in this successive postconviction litigation case was

harmless beyond a reasonable doubt in light of the “jury's unanimous

recommendation for a sentence of death, coupled with Philmore's confession and the

aggravation in this case.” Philmore, 234 So.3d at 568-69. He does not challenge the

2 The Florida Supreme Court’s order provided in part:

The parties in the above case are directed to file briefs

addressing why the lower court's order should not be

affirmed based on this Court's precedent in Hurst v. State

(Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-998

(U.S. May 22, 2017), Davis v. State, 207 So. 3d 142 (Fla.

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

Parties may include a brief statement to preserve

arguments as to the merits of the previously decided

cases, as deemed necessary, without additional argument.

Appellant's initial brief, which is not to exceed twenty-five

pages, is to be filed by June 26, 2017. Appellee's answer

brief, which shall not exceed fifteen pages, shall be filed

ten days after filing of appellant's initial brief. Appellant's

reply brief, which shall not exceed ten pages, shall be filed

five days after filing of Appellee's answer brief.

(Appendix B)

11

merits of that decision,but complains he should be afforded additional pages to brief

the issue. This issue was not raised before the Florida Supreme Court and should

be denied on that basis alone, as it is unexhausted. Moreover, Petition filed a

twenty-page brief even though he could have filed one of twenty-five pages. This

fact too undercuts any complaint Petition raises here as to the constitutionality of

the procedure or relief to which he asserts he is entitled.

Even so, the Florida Supreme Court’s determination of appropriate page

limits for a successive postconviction appeal is solely a matter of state court

procedural law. Consequently, this determination concerns only state law and is

outside the scope of this Court’s certiorari jurisdiction. See, e.g., Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1936) (noting “whether the law of the state shall be

declared by its Legislature in a statute or by its highest court in a decision is not a

matter of federal concern” and that “[e]lxcept in matters governed by the Federal

Constitution or by acts of Congress, the law to be applied in any case is the law of

the state”); Patterson v. New York, 482 U.S. 197, 201 (1977) (observing “it is

normally within the power of the State to regulate procedures under which its laws

are carried out”) Gnternal quotes/citations omitted). Accordingly, the constitutional

protestations of Petition before this Court do not support certiorari review.

Philmore’s Eighth Amendment, Due Process and Equal Protection claims to

invalidate the state court procedure is unavailing. He cannot show that the Florida

court’s longstanding “tag” procedure violates any federal constitutional right. Here,

the Florida Supreme Court merely limited the number of pages for a successive

12

appeal to twenty-five. There is no constitutional infirmity involved in this

procedure and, therefore, no basis for the exercise of this Court’s certiorari

jurisdiction. In fact, this Court employs a similar procedure when dealing with

numerous cases involving the same issue. It decides the lead case, and then vacates

and remands the other cases to the lower courts in light of the new decision in the

lead case. This “grant, vacate, and remand,” or “GVR” procedure has “become an

integral part of this Court’s practice, accepted and employed by all sitting and

recent Justices.” Lawrence v. Chater, 516 U.S. 163, 166 (1996). See also Wellons v.

Hal, 558 U.S. 220, 225 (2010) (observing “GVR order conserves the scarce resources

of this Court”). While some Justices have criticized the GVR practice, those

criticisms are on case‘specific grounds, not on due process grounds. See, e.g,

Stutson v. United States, 516 U.S. 163, 180-81 (1996) (Scalia, J., dissenting)

(arguing for limitations on GVRs in other situations, but noting that the “largest

category” of GVRs arise when a decision of the Supreme Court “has cast doubt on

the judgment rendered by a lower federal court or a state court” and using GVR

procedure there serves “interests of efficiency”). Petitioner cites no case from this or

any appellate court holding that the “tag” or GVR practice for dealing with a mass

of cases involving the same issue violates due process or equal protection.

Notably, Philmore was not appealing his conviction and sentence, or even the

denial of his initial postconviction motion. Rather, he was appealing from a

successive postconviction motion. There is no constitutional violation where the

courts place reasonable limitations on pleadings in this context. See, eg,

13

Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987) (finding no federal

constitutional right to postconviction relief); Evitts v. Lucey, 469 U.S. 387, 393

(1985) (entitlements apply only to first appeal as a matter of right). Indeed, rules of

court procedure place limits on briefing in every case. See, e.g., U.S. Sup. Ct. R. 33

(specifying format and limitations on briefs filed in this Court, including word

limits). See also, Jones v. Barnes, 463 U.S. 745, 753 (1983) (noting that most courts

impose page limits on briefs as well as limits on the time given for oral arguments).

Carried to its logical conclusion, Philmore’s argument suggests that any limitation

on briefing would be unconstitutional. Such would lead to the absurd and

unworkable result where litigants would have free reign to file hundreds of pages of

briefing raising frivolous issues and further burdening the court system.

Furthermore, Bounds v. Smith, 430 U.S. 817 (1977) and Douglas v. People of

State of California, 372 U.S. 353 (1963) do not advance Philmore’s plea for certiorari

review. In Douglas, this Court ruled unconstitutional California’s requirement that

appellate counsel be appointed for an indigent defendant only if the appellate court

determined such appointment would be helpful to the defendant or to the court.

Douglas, 372 U.S. at 357-58. This Court opined that the California requirement left

an indigent defendant, “where the record is unclear or the errors are hidden,” with a

“meaningless ritual, while the rich man [enjoyed] a meaningful appeal.” Jd. In

Anders v. California, 386 U.S. 738 (1967), this Court set forth procedures an

appointed counsel must follow when representing an indigent defendant on direct

appeal when the case is wholly frivolous. Jd. at 744. Additionally, Bounds does not

14

provide Philmore with a basis for certiorari review. In Bounds, 430 U.S. at 830-31,

this Court concluded that state agencies further the constitutional right of access to

court by assisting inmates in the preparation and filing of legal papers by providing

an adequate law library.

Again, this was an appeal from Philmore’s successive postconviction motion.

It was not an initial appeal as of right, or even an initial postconviction appeal.

Philmore had counsel throughout and was provided records and transcripts as well

as appeals from his state and federal proceedings. His successive postconviction

motion was submitted within the standard 25-page limit under Fla. R. Crim. P.

3.851(e)(2) and he filed his initial brief on appeal well under the 25-paqge limit

imposed by the Florida Supreme Court for Hurst claims. Philmore has not

identified any meritorious issues he was forced to abandon based on the state

court’s briefing procedure. Indeed, although permitted by Florida’s rules of

appellate procedure, Philmore never moved the court to allow him to file a longer

brief. See Fla. R. App. P. 9.210(a)(5)(E) (setting forth page limitations on briefs in

Florida’s appellate courts and providing that “[t]he court may permit longer briefs”).

See United States v. McCollom, 426 U.S. 317, 326 (1976) (opining “basic question is

one of adequacy of [defendant’s] access to procedures for review of his conviction, . . .

and [this question] must be decided in light of avenues which [defendant] chose not

to follow as well as those he now seeks to widen”). See also Jones v. Barnes, 463

U.S. 745, 749 (1983) (opining right to appellate counsel does not include right to

have counsel press every non-frivolous claim).

15

Furthermore, Philmore’s case was given an individual determination by the

Florida Supreme Court. He was granted a briefing opportunity after Hurst v.

Florida and Hurst v. State were held by the Florida Supreme Court to be retroactive

to this category of case. See Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016) The

Florida Supreme Court also pointed Philmore to its recent case, Davis v. State, 207

So. 8d 142 (Fla. 2016), wherein the state court had found any Hurst error harmless

where a unanimous jury recommendation was rendered in a highly aggravated case

even though the jury was instructed its role was advisory. Philmore, filed his brief

below the page limitation and raised various attacks on his sentence based on

Hurst, and Caldwell in addition to seeking a reconsideration of a settled Batson v.

Kentucky, 476 U.S. 79 (1986) claim. (Resp. App. C). The fact that the length of a

brief is a state law matter; Philmore never challenged the briefing procedure in

state court; and that he did not utilize all of his allotted pages support the denial of

certiorari. The state court procedure does not implicate a federal constitutional

right and Philmore has not shown that the decision conflicts with a decision of this

Court or any other federal circuit court or state supreme court. This Court should

deny certiorari.

B. Petitioner’s Capital Sentence Comports with Caldwell

Philmore points to Hurst v. Florida, and Caldwell to assert he is entitled to

resentencing as his jury was instructed its role was advisory in violation of the

Eighth Amendment and the Florida Supreme Court did not address his Caldwell

claim sufficiently once it determined the jury had unanimously recommended death.

16

First, there is no underlying Sixth Amendment violation and no conflict between

the Florida Supreme Court’s decision and this Court’s Eighth Amendment

jurisprudence set forth in Caldwel/ and its progeny. Likewise, there is no conflict

between the Florida Supreme Court’s decision and that of any other federal

appellate court or state supreme court. Finally, there is no underlying constitutional

error under the facts of this case.

Hurst v. Florida did not require jury sentencing. Rather, Hurst v. Florida was

a Sixth Amendment case which applied Ring v. Arizona, 536 U.S. 584 (2002) to

Florida’s sentencing scheme, reiterating that a jury, not a judge, must find the

existence of an aggravating factor to make a defendant eligible for the death

penalty. Hurst v. Florida, 136 S. Ct. at 624. Hurst v. Florida did not address the

process of weighing the aggravating and mitigating circumstances or suggest that

the jury must conduct the weighing process to satisfy the Sixth Amendment. In

Kansas v. Carr, 1386 S. Ct. 633 (2016), decided eight days after this Court issued

Hurst v. Florida, this Court emphasized:

Whether mitigation exists, however, is largely a judgment call (or

perhaps a value call); what one jury might consider mitigating another

might not. And of course, the ultimate question whether mitigating

circumstances outweigh aggravating circumstances is mostly a

question of mercy—the quality of which, as we know, is not strained. It

would mean nothing, we think, to tell the jury that defendants must

deserve mercy beyond a reasonable doubt, or must more-likely-than-

not deserve it... . In the last analysis, jurors will accord mercy if they

deem it appropriate, and withhold mercy if they do not, which is what

our case law is designed to achieve.

Carr, 136 S. Ct. at 642.

As set forth above, Philmore’s jury heard his confession where he laid out the

17

reason for seeking to carjack a female in a nice car, the hunt he and Spann

conducted to find their victim, and pre-planned intent to murder her to avoid

detection, and how the victim was taken to a remote location, shot, and her body

hidden in the maiden cane. Philmore, 820 So.2d at 923-25. The jury convicted

Philmore of the related contemporaneous felonies including kidnapping and armed

robbery and knew of his prior violent felony convictions, rendering him death

eligible. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Alleyne v. United

States, 133 8S. Ct. 2151, 2160 n.1 (2013) (recognizing the “narrow exception . . . for

the fact of a prior conviction” set forth in Almendarez-Torres v. United States, 523

U.S. 224 (1998)). See also Jenkins v. Hutton, 137 S. Ct. 1769, 1772 (2017) (noting

that the jury’s findings that defendant engaged in a course of conduct designed to

kill multiple people and that he committed kidnapping in the course of aggravated

murder rendered him eligible for the death penalty). This Court’s ruling in Hurst v.

Florida did not change the recidivism exception articulated in Apprendi and Ring or

the fact that

Moreover, Philmore’s jury was instructed that the aggravators had to be

proven beyond a reasonable doubt while jury need only be “reasonably convinced” as

to existence of mitigators. The jury was also told that if it did not find the

aggravators sufficient to support death, then life had to be their recommendation.

Conversely, if the aggravation was sufficient, then the jury had to consider whether

3 From these fact, a rational jury would have found, as the trial court found, the

aggravators of (1) cold calculated and premeditated, (2) pecuniary gain, and (3)

avoid arrest. Philmore v. State, 820 So. 2d 919, 925 (Fla. 2002)

18

the mitigation outweighed the aggravation and only after doing a careful non-hasty

weighing, should the jury report its recommendation. Following these instructions,

the jury recommended death unanimously. Under the rational juror test for a

harmless error analysis discussed in Neder v. United States, 527 U.S. 1, 18-19

(1999) and Jenkins v. Hutton, 137 S.Ct. 1769 (2017) no Sixth Amendment violation

has been established. As such, Hurst v. Florida has not opened the door to

Philmore’s claim of an Eighth Amendment violation based on Caldwell.

Even so, there is no Caldwell] error and Philmore’s claim here does not merit

review. This Court has recognized that cases which have not developed conflicts

between federal or state courts or presented important, unsettled questions of

federal law usually do not deserve certiorari review. Rockford Life Insurance Co. v.

Illinois Department of Revenue, 482 U.S. 182, 184, n. 3 (1987). The law is wellsettled that this Court does not grant certiorari for the purpose of reviewing

evidence and/or discussing specific facts. United States v. Johnston, 268 U.S. 220

(1925) (denying certiorari to review evidence or discuss specific facts). Further, this

Court has rejected requests to reassess or re-weigh factual disputes. Page v.

Arkansas Natural Gas Corp., 286 U.S. 269 (1932) (rejecting request to review fact

questions); General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175,

178 (1924) (same). Also, this Court does not have jurisdiction to review the

application of the harmless-error rule where it “involves only errors of state

procedure or state law.” Chapman v. California, 386 U.S. 18, 21 (1967).

In Caldwell, error was found based on the prosecutor’s argument to the jury

19

that the appellate court would review that sentence and would decide whether a

death sentence was appropriate. “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) (determining that to prove a

Caldwell violation a defendant must show that the prosecutors comments or jury

instructions “improperly described the role assigned to the jury by local law.

Entitlement to relief under Caldwell requires that the prosecutor, judge, or jury

instructions misrepresent the jury’s role in sentencing. Darden v. Wainwright, 477

U.S. 168, 183 n.15 (1986) (rejecting a Caldwell attack, explaining that “Caldwell is

relevant only to certain types of comment—those that mislead the jury as to its role

in the sentencing process in a way that allows the jury to feel less responsible than

it should for the sentencing decision”)

The standard jury instructions in Florida, used in this case, correctly advised

the jury about its role and the weight its recommendation is given based on the law

in existence at the time of sentencing. See Reynolds v. State, ____ So. 3d ___, 2018

WL 1633075 (Fla. April 5, 2018) (explaining that under Romano v. Oklahoma, the

Florida standard jury instructions at issue “cannot be invalidated retroactively

prior to Ring simply because a trial court failed to employ its divining rod

successfully to guess at completely unforeseen changes in the law by later appellate

courts.”); Patrick v. State, 104 So.3d 1046, 1064 (Fla. 2012) (holding “standard

penalty phase jury instructions fully advise the jury of the importance of its role,

20

correctly state the law, do not denigrate the role of the jury and do not violate

Caldwell.”)(citations omitted). The instant case would be a uniquely inappropriate

vehicle for certiorari because this is a postconviction case and this Court would have

to address retroactivity before even reaching the underlying jury instruction issue.4

To the extent Philmore suggests that jury sentencing is required under

federal law, as a result of Hurst v. Florida, that is not the case. See Ring, 536 U.S.

at 612 (Scalia, J., concurring) (explaining “today’s judgment has nothing to do with

jury sentencing. What today’s decision says is that the jury must find the existence

of the fact that an aggravating factor existed.”) (emphasis in original); Harris v.

Alabama, 513 U.S. 504, 515 (1995) (holding Constitution does not prohibit the trial

judge from “imposling] a capital sentence”). No case from this Court has mandated

jury sentencing in a capital case, and such a holding would require reading a

requirement into the Constitution that is simply not there. The Constitution

provides a right to trial by jury, not to sentencing by jury.5 Here, Hurst v. Florida

4 Respondent is cognizant of the Honorable Justice Sotomayor’s dissent from the

denial of certiorari in Middleton v. Florida, 138 S. Ct. 829 (2018), wherein she

criticized the Florida Supreme Court for not addressing the Caldwell claim in cases

where Hurst was applicable under state law. The Florida Supreme Court has now,

however, explicitly rejected Caldwell] attacks on Florida’s standard penalty phase

jury instructions in the wake of Hurst. See Reynolds v. State, ___ So. 8d ___, 2018

WL 1633075 (Fla. April 5, 2018); Johnson v. State,__ So. 8d ____, 2018 WL 1633043

(Fla. April 5, 2018) (citing Reynolds in rejecting Caldwell claim).

5 See State v. Mason, __ N.E.3d ___, 2018 WL 1872180, *5-6 (Ohio, April 18, 2018)

(noting “[nlearly every court that has considered the issue has held that the Sixth

Amendment is applicable to only the fact-bound eligibility decision concerning an

offender’s guilt of the principle offense and any aggravating circumstances” and

that “weighing is not a factfinding process subject to the Sixth Amendment.”)

(string citation omitted); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007)

21

was applied to Philmore’s death sentence, however, any error was found harmless

beyond a reasonable doubt. It follows there is no bases for certiorari review as a

Florida jury’s decision regarding a death sentence was, and remains, an advisory

recommendation. See Dugger v. Adams, 489 U.S. 401 (1989). See also

§921.141(2)(c), Fla. Stat. (2017) (providing that “li]f a unanimous jury determines

that the defendant should be sentenced to death, the jury’s recommendation to the

court shall be a sentence of death”)® (emphasis added). Thus, there was no violation

of Caldwell because there were no comments or instructions to the jury that

“improperly described the role assigned to the jury by local law.” Romano, 512 U.S.

at 9. Philmore’s jury was advised accurately that its decision was an advisory

recommendation that would be accorded “great weight” and in light of that, it

recommended death unanimously. (App A ROA.27 2560-67, 2582).

(opining “[als other courts have recognized, the requisite weighing constitutes a

process, not a fact to be found.”); United States v. Purkey, 428 F.3d 738, 750 (8th

Cir. 2005) (characterizing the weighing process as “the lens through which the jury

must focus the facts that it has found” to reach its individualized determination);

Waldrop v. Comm’, Alabama Dept. of Corr., 2017 WL 4271115, *20 (11th Cir. Sept.

26, 2017) (unpublished) (rejecting Hurst claim and explaining “Alabama requires

the existence of only one aggravating circumstance in order for a defendant to be

death-eligible, and in Mr. Waldrop’s case the jury found the existence of a qualifying

aggravator beyond a reasonable doubt when it returned its guilty verdict.”) (citation

omitted); State v. Gales, 658 N.W.2d 604, 628-29 (Neb. 2003) (stating “we do not

read either Apprendi or Ring to require that the determination of mitigating

circumstances, the balancing function, or proportionality review to be undertaken

by ajury”).

6 A Florida trial court, while bound by the jury’s findings of no aggravation and a

recommendation of a life sentence, is not bound by a jury's recommendation of a

death sentence. A judge is still free to reject the jury’s death recommendation and

impose a life sentence.

22

CONCLUSION

Based on the foregoing arguments and authorities, Respondent requests

respectfully that this Honorable Court deny Petitioner's request for certiorari

review.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

sla T. Campbell

Sr. Assistant Attorney General

Florida Bar No. 0066631

OFFICE OF THE ATTORNEY GENERAL

1515 N. Flagler Dr.; 9th Floor

West Palm Beach, FL 33401

Office: (561) 837-5016

Facsimile: (561) 837-5108

COUNSEL FOR RESPONDENT

23

Case No.: 17-9556

October 2017, Term

IN THE SUPREME COURT OF THE UNITED STATE

LENARD PHILMORE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

CERTIFICATE OF SERVICE _ I, Leslie T. Campbell, a member of the Bar of

this Court, hereby certify that on July 24, 2017, a copy of the Brief for Respondent

in Opposition in the above entitled case was furnished by United States mail,

postage prepaid, to ALI A. SHAKOOR, ESQ., Office of the Capital Collateral

Regional Counsel 12973 N. Telecom Parkway; Temple Terrace, FL 33637, counsel

for Petitioner herein. I further certify that all parties required to be served have

eed T. CAMPBEt L

Assistant Attorney General

Florida Bar No. 0066631

been served.

OFFICE OF THE ATTORNEY GENERAL

1515 N. Flagler Dr.; 9th Floor

West Palm Beach, FL 33401

Office: (561) 837-5016

Facsimile: (561) 837-5108

COUNSEL FOR RESPONDENT

24

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