Petition for Writ of Certiorari — Michael Anthony Tanzi, Petitioner v. Florida
Supreme Court briefJul 5, 2018
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DOCKET NO. __________
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2017
═════════════════════════════════
MICHAEL A. TANZI,
Petitioner
vs.
STATE OF FLORIDA,
Respondent.
═════════════════════════════════
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
═════════════════════════════════
INDEX TO APPENDICES
Appendix A
Florida Supreme Court opinion affirming the denial of postconviction relief,
reported as Tanzi v. State, ___ So. 3d ___, 2018 WL 1630749 (Fla. Apr. 5,
2018).
Appendix B
Trial court’s Order Denying Successive Motion For Postconviction Relief,
referenced as Tanzi v. State, Order, Case No. 2000-CF-00573-A-K (Fla. 16th
Jud. Cir. Apr. 24, 2017).
APPENDIX A
Tanzi v. State, --- So.3d ---- (2018)
43 Fla. L. Weekly S173
2018 WL 1630749
Only the Westlaw citation
is currently available.
NOTICE: THIS OPINION HAS NOT
BEEN RELEASED FOR PUBLICATION
IN THE PERMANENT LAW REPORTS.
UNTIL RELEASED, IT IS SUBJECT
TO REVISION OR WITHDRAWAL.
Supreme Court of Florida.
Michael Anthony TANZI, Appellant,
v.
STATE of Florida, Appellee.
No. SC17–1640
|
[April 5, 2018]
Synopsis
Background: Defendant moved to vacate
murder conviction and death sentence,
after defendant's convictions and sentence
were affirmed on appeal, 964 So.2d
106, and after the denial of his initial
postconviction motion and habeas petition
were affirmed on appeal, 94 So.3d 482.
The Circuit Court, Monroe County, No.
442000CF000573000AKW, Luis M. Garcia,
J., denied the motion. Defendant appealed.
[Holding:] The Supreme Court held that
error in having judge rather than jury make
necessary findings to impose death sentence
was harmless.
Affirmed.
Canady and Polston, JJ., concurred in result.
Quince, J., filed dissenting opinion.
An Appeal from the Circuit Court in and for
Monroe County, Luis M. Garcia, Judge—
Case No. 442000CF000573000AKW
Attorneys and Law Firms
Neal Dupree, Capital Collateral Regional
Counsel, Scott Gavin, Staff Attorney, and
Paul Kalil, Assistant Capital Collateral
Regional Counsel, Southern Region, Fort
Lauderdale, Florida, for Appellant
Pamela Jo Bondi, Attorney General,
Tallahassee, Florida, and Scott A. Browne,
Senior Assistant Attorney General, Tampa,
Florida, for Appellee
Opinion
PER CURIAM.
*1 Michael A. Tanzi appeals an order
denying a motion to vacate judgments of
conviction, including one of first-degree
murder, and a sentence of death under
Florida Rule of Criminal Procedure 3.851. 1
The underlying facts of this case were
described in this Court's opinion on direct
appeal. Tanzi v. State, 964 So.2d 106,
110–12 (Fla. 2007). Tanzi pled guilty to
the first-degree murder of Janet Acosta.
Id. at 111. He carjacked, kidnapped, beat,
sexually battered, robbed, and strangled
Ms. Acosta. Id. at 110–11. Following a
unanimous jury recommendation for death,
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
1
Tanzi v. State, --- So.3d ---- (2018)
43 Fla. L. Weekly S173
the trial court sentenced Tanzi to death for
Ms. Acosta's murder. Id. at 111. The trial
court found seven aggravating factors 2 and
ten mitigating circumstances. 3 We affirmed
Tanzi's convictions and sentence of death.
Id. at 121. We also affirmed the denial of
Tanzi's initial postconviction motion and
denied relief on his habeas petition. Tanzi v.
State, 94 So.3d 482, 497 (Fla. 2012).
In this successive postconviction motion,
Tanzi argues that he is entitled to relief
pursuant to Hurst v. Florida, ––– U.S. ––––,
136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and
Hurst v. State (Hurst ), 202 So.3d 40 (Fla.
2016), cert. denied, ––– U.S. ––––, 137 S.Ct.
2161, 198 L.Ed.2d 246 (2017). We agree with
Tanzi that Hurst is applicable in his case.
See Mosley v. State, 209 So.3d 1248 (Fla.
2016). However, because we find that the
Hurst error in this case is harmless beyond
a reasonable doubt, we affirm the denial of
postconviction relief. As we stated in Davis
v. State, 207 So.3d 142, 175 (Fla. 2016), cert.
denied, ––– U.S. ––––, 137 S.Ct. 2218, 198
L.Ed.2d 663 (2017):
*2 [T]he jury unanimously
found all of the necessary
facts for the imposition
of death sentences by
virtue of its unanimous
recommendations. .... The
unanimous
recommendations
here
are precisely what we
determined in Hurst to be
constitutionally necessary
to impose a sentence of
death.
We reject Tanzi's assertion that the Hurst
error was not harmless because the jury was
not given a mercy instruction. See Knight v.
State, 225 So.3d 661, 683 (Fla. 2017), cert.
denied, No. 17–7099, ––– U.S. ––––, –––S.Ct.
––––, ––– L.Ed.3d ––––, 2018 WL 1369193
(U.S. Mar. 19, 2018).
Additionally, we reject Tanzi's Hurstinduced Caldwell 4 claim. See Reynolds v.
State, No. SC17–793, slip op. at 26–36 (Fla.
Apr. 5, 2018).
Accordingly, the Hurst violation in this case
is harmless beyond a reasonable doubt and,
as in Davis, does not entitle Tanzi to relief.
Thus, we affirm the denial of postconviction
relief. 5
It is so ordered.
LABARGA, C.J., and PARIENTE,
LEWIS, and LAWSON, JJ., concur.
CANADY and POLSTON, JJ., concur in
result.
QUINCE, J., dissents with an opinion.
QUINCE, J., dissenting.
I cannot agree with the majority's finding
that the Hurst error was harmless beyond
a reasonable doubt. As I have stated
previously, “[b]ecause Hurst requires ‘a jury,
not a judge, to find each fact necessary
to impose a sentence of death,’ the error
cannot be harmless where such a factual
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
2
Tanzi v. State, --- So.3d ---- (2018)
43 Fla. L. Weekly S173
determination was not made.” Hall v.
State, 212 So.3d 1001, 1036–37 (Fla. 2017)
(Quince, J., concurring in part and dissenting
in part) (citation omitted) (quoting Hurst v.
Florida, ––– U.S. ––––, 136 S.Ct. 616, 619,
193 L.Ed.2d 504 (2016) ); see also Truehill
v. State, 211 So.3d 930, 961 (Fla.) (Quince,
J., concurring in part and dissenting in part),
cert. denied, ––– U.S. ––––, 138 S.Ct. 3,
199 L.Ed.2d 272 (2017). The jury did not
make the specific factual findings that Hurst
requires a jury to find in order to impose
some of the most serious aggravators at issue
in this case. Therefore, I dissent.
All Citations
--- So.3d ----, 2018 WL 1630749, 43 Fla. L.
Weekly S173
Footnotes
We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
1
The trial court found the following aggravating factors: (1) that the murder was committed by a person previously convicted
2
3
4
5
of a felony and under sentence of imprisonment or on felony probation; (2) that the murder was committed during the
commission of a kidnapping; (3) that the murder was committed during the commission of two sexual batteries; (4) that
the crime was committed for the purpose of avoiding arrest; (5) that the murder was committed for pecuniary gain; (6)
that the murder was especially heinous, atrocious, or cruel (HAC); and (7) that the murder was committed in a cold,
calculated, and premeditated (CCP) manner. Tanzi, 964 So.2d at 111 n.1. “The court gave each aggravator ‘great weight’
except the HAC aggravator, which the court gave ‘utmost weight.’ ” Id.
The court found the following mitigating circumstances: (1) that Tanzi suffered from “axis two” personality disorders; (2)
that he was institutionalized as a youth; (3) that his behavior benefited from psychotropic drugs; (4) that he lost his father
at an early age; (5) that he was sexually abused as a child; (6) that he twice attempted to join the military; (7) that he
cooperated with law enforcement; (8) that he assisted inmates by writing letters and that he enjoys reading; (9) that his
family has a loving relationship for him; and (10) that he had a history of substance abuse. Tanzi, 964 So.2d at 111 n.1.
Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
We also reject Tanzi's claim that the change in law following Hurst and Perry v. State, 210 So.3d 630 (Fla. 2016), entitles
him to have his previously denied postconviction claims revisited.
End of Document
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
3
APPENDIX B
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
LOWER KEYS, CRIMINAL DIVISION
STATE OF FLORIDA,
Plaintiff,
CASE NO. 2000-CF-00573-A-K
v.
MICHAEL A. TANZI,
Defendant.
I
ORDER DENYING SUCCESSIVE MOTION TO VACATE
JUDGMENTS OF CONVICTION AND SENTENCE
THIS CAUSE came before the Court on Defendant's "Successive
Motion
to
through
counsel
Criminal
Vacate
Judgments
on
Procedure
Defendant's
motion
3.851(f)(5)(B),
of
Conviction
January
12,
2017,
under
Florida
3.851.
The
State
filed
a
2017.
As
on
March
3,
and
Sentence"
filed
Rule
of
response
to
required
by
rule
this Court held a case management conference on
March 31, 2017, at 1:30 p.m. to determine whether an evidentiary
hearing
should be
held and hear argument
on
any purely legal
claims.
On May 16,
2000,
Michael
Tanzi was
charged by indictment
with the first-degree murder of Janet Acosta.
(Rl/13-14). He was
also
carjacking
charged
weapon,
by
amended
information
kidnapping to facilitate a
with
with
felony with a weapon,
a
armed
robbery and two counts of sexual battery with a deadly weapon.
(R7/1235-37).
wanted
to
kidnapping
On
January
31,
plead
guilty
to
and
armed
written guilty plea,
2003,
Tanzi
first-degree
murder,
(Rll/1886).
robbery.
announced
Tanzi
that
he
carjacking,
submitted
a
which indicated that the plea had not been
induced by any promises.
(R7/1242-44; Rll/1886-87).
After considering this evidence and the parties' arguments,
the jury returned a unanimous recommendation of death.
(R8/1430;
R26/1821-22).
Following
followed
the
jury's
(Rl0/1804-32;
a
Spencer
hearing,
the
recommendation
and
sentenced
Tanzi
R12/2197-2213).
In doing so,
imprisonment--great
weight;
during
to
death. 1
the court found that
the State had proven seven aggravating factors:
of
court
the
under a sentence
course
of
a
kidnapping--great weight; during the course of sexual batteries-great weight 2 ; avoid arrest--great weight; pecuniary gain--great
weight;
heinous,
atrocious
cold,
calculated
and
or
cruel
(HAC) --utmost
premeditated
weight;
(CCP)--great
and
weight.
(Rl0/1805-17).
The trial court also sentenced
sentences
for
the
carjacking,
( Rl 0I18 31) . ( Rl 0I18 O3) .
1
Tanzi to consecutive life
kidnapping
and
robbery.
The course of a felony was counted as two aggravating
circumstances because it was based on two separate felonies.
That aggravator remains valid; it was error, however, to count
it as two separate aggravating circumstances. See Tanzi v.
State, 964 So. 2d 106, 117 (Fla. 2007).
2
2
In
mitigation,
disorders--some
the
court
small weight;
his
found
personality
Tanzi's
history of
substance abuse--
some weight; his institutionalization in his youth--some weight;
his positive response to treatment with psychotropic medication-some weight;
the loss of his father--some weight;
sexual abuse
as a child--some weight; his attempts to join the military--some
weight;
his
cooperation with the police after his arrest--some
weight;
his
assistance
other inmates
family'~
some weight; and his
weight.
to
and love
of reading--
loving relationship with him--some
(Rl0/1817-30). The court also considered and rejected as
mitigation the assertion that Tanzi was under the influence of
an extreme mental or emotional disturbance at
crime,
the
assertion
that
Tanzi' s
capacity
to
conform
his
to
the time of the
appreciate
the
conduct
the
criminality
of
his
conduct
or
requirements
of the
law was
substantially impaired.
to
(Rl0/1817-
30).
The
Florida Supreme Court affirmed Tanzi' s
sentence of death.
Tanzi v.
cert.
U.S.
denied,
postconviction
552
relief
in
State,
postconviction
2d 10 6
1195
(2008).
Tanzi
this
Court,
and
evidentiary hearing on his motion,
denying
964 So.
relief.
3
this
The
conviction and
(Fla.
2007) ,
thereafter
sought
after
Court
Florida
conducting
an
issued an order
Supreme
Court
affirmed the denial of postconviction relief on April 19,
2012.
Tanzi v. State, 94 So. 3d 482 (Fla. 2012).
On
motion
January
for
12,
2017,
Tanzi
filed
the
postconviction
relief
pursuant
instant
to
successive
Florida
Rule
of
Criminal Procedure 3.851. Tanzi raised two related claims in his
motion based on Hurst v. Florida, 136 S. Ct. 616 (2016):
CLAIM 1: MR. TANZI'S DEATH SENTENCE IS UNCONSTITUTIONAL
UNDER THE SIXTH AND EIGHTH AMENDMENTS IN LIGHT OF HURST
V. FLORIDA AND HURST V. STATE.
CLAIM 2: HURST V. STATE, PERRY V. STATE, AND THE RECENT
ENACTMENT OF A REVISED SENTENCING STATUTE REQUIRE THIS
COURT TO REVISIT MR. TANZI' S PREVIOUSLY PRESENTED BRADY
AND STRICKLAND CLAIMS AND DETERMINE WHETHER THE EVIDENCE
PRESENTED TO SUPPORT EACH CLAIM UNDERMINES CONFIDENCE IN
THE OUTCOME OF THE PENALTY PHASE IN LIGHT OF NEW LAW.
WHEN THE PROPER ANALYSIS IS CONDUCTED, THERE IS A
REASONABLE LIKELIHOOD OF A DIFFERENT OUTCOME. RULE 3.851
RELIEF IS REQUIRED.
The
State
Florida,
argued
applies
in
its
response
that,
retroactively to Tanzi' s
although
case,
Hurst
v.
see Mosley v.
State, 209 So. 3d 1248 (Fla. 2016), any Hurst error was harmless
beyond a reasonable doubt.
In
Hurst
v.
Florida,
136
S.
Ct.
616
(2016),
the
United
States Supreme Court declared the portion of Florida's capital
sentencing scheme
requiring the
judge,
rather than a
jury,
find
necessary
impose
a
of
each
fact
unconstitutional
(2002),
in
light
to
of
Ring
v.
and remanded the case to the
4
sentence
Arizona,
536
U.S.
to
death
584
Florida Supreme Court to
determine whether the error was harmless. On remand, the Florida
Supreme
Court
held
that
"before
a
sentence
of
death
may
be
considered by the trial court in Florida, the jury must find the
existence of the aggravating factors proven beyond a reasonable
doubt,
that
the
aggravating
death,
and that the aggravating factors outweigh the mitigating
circumstances." Hurst v.
The
court
recognized,
factors
State,
are
202 So.
however,
sufficient
3d 40,
that Hurst
53
to
(Fla.
error is
impose
2016).
capable of
harmless error review.
Id.
at 67.
In order to be harmless,
State
that
there
is
must
establish
no
reasonable
the
possibility
that the Hurst error contributed to Tanzi's death sentence.
at
68;
see also
Davis v.
State,
207
2016)
and King v.
State,
So.
3d
Jan.
26,
2017),
reh'g denied,
3d 142,
So.
,
SC14-1949,
Id.
173-75
(Fla.
2 0 1 7 WL 3 7 2 0 81
(Fla.
2 0 1 7 WL
(Fla.
9 61818
Mar. 13, 2017).
This Court finds that the Hurst error was harmless beyond a
reasonable doubt in this case. First, there is no doubt that any
rational jury would have found all of the aggravators utilized
by the trial court in sentencing Tanzi this case. Several of the
aggravators
were
based
aggravating
factors
of
directly
on
in
course
the
Tanzi's
of
guilty
a
pecuniary gain were directly based upon Tanzi' s
first
degree murder,
carjacking,
5
plea.
The
kidnapping
and
guilty plea to
kidnapping and armed robbery.
(Rll/1886).
Therefore,
uncontestable.
time
he
these
aggravators
Tanzi
was
Further,
committed
qualified for
the
on
are
felony
established
probation
and
at
the
the
murder
and
therefore
unquestionably
under
sentence
of
imprisonment
or probation
aggravator.3 The remaining aggravators are uncontrovertable under
the
facts
of
this
course
of
case,
which
included
felony
aggravator
Tanzi's
detailed
confession.
The
a
kidnapping and two sexual batteries.
established
by
Tanzi's
perform oral
sex on him,
confession
was
The sexual batteries were
to
forcing
along with DNA of Tanzi
victim's
the
examiner testified that a
the
and DNA from semen found
matched to Tanzi
of
supported by both
jeans.
found
(Rl0/1808-09).
victim
to
in the van
on the
inside
The
medical
laceration to the lower part of the
victim's labia as well as bruising to the tissue under the skin
surrounding the victim's vagina were sustained while the victim
was alive and were consistent with a
sexual battery.
(T.
82) .
the
a
That
the
murder
occurred
during
course
of
879-
sexual
3 As the trial court noted in the sentencing order, "On February
1, 1999, the Defendant, who was represented by counsel, entered
a plea of guilty to the felony offense of breaking and entering
in the nighttime with intent to commit a felony.
He was
sentenced to an 18-month term of imprisonment to be followed by
two years of probation. Six months of the incarcerative portion
of his sentence were suspended." (Rl0/1806).
6
battery is simply uncontestable based upon the physical evidence
and Tanzi's confession.
The
detailed
things,
avoiding
arrest
confession
in
aggravator
which
he
was
based
upon
acknowledged,
Tanzi's
among
other
that he would be caught if he let her go and that he
could not leave any "witnesses." See Rl0/1810-11.
The heinous,
powerful
facts,
and
atrocious and cruel aggravator was based upon
uncontroverted
evidence.
Under
Janet Acosta's murder was heinous,
any
view
of
the
atrocious and cruel.
The medical examiner testified that the victim suffered multiple
blows to her face and head which caused swelling of the brain.
The
victim
was
bound
and
gagged,
sexually
violated,
threatened by Tanzi to cut her ear from ear if she
cooperate.
Ultimately,
These circumstances led
the court to conclude in its
sentencing order,
that
her
the
moments
failed to
Tanzi strangled the victim to death over
the course of more than twenty minutes.
in
and
before
death,
must
have
suffered great terror as well as pain." See Rl0/1812-14.
Under
any conceivable view of the facts,
the
"it is obvious
victim
the murder of Janet Acosta
was heinous, atrocious, and cruel.
Finally,
aggravator,
as
the
to
the
court
cold,
reviewed
calculated
the
and
overwhelming
supporting this aggravator in the sentencing order:
7
premeditated
evidence
Ms. Acosta's murder was the product of cool and calm
reflection and was not prompted by emotional frenzy,
rage or uncontrollable impulse.
Photographs of the abduction site showed the victim's
quiet place. The area was adjacent to the Japanese
Gardens Park located just off the MacArthur Causeway.
The Defendant could have just taken the victim's van
and fled. By the time the victim could have gotten
help, the Defendant and the vehicle would have been
long gone. Therefore,
the decision to kidnap the
victim as well as steal her van showed a deliberate
act prompted by the Defendant's desire to possess more
than the van. The motive for kidnapping the victim
became apparent very soon thereafter.
Rather than expelling his [sic] bound the victim along
the way, 40 miles later in Florida City, the Defendant
forced the victim to perform oral sex on him. He told
her that he needed a sexual favor and she was the only
person
there;
she
was
the
perfect
person.
Significantly, he also said, "No one is going to find
out." Obviously, this statement showed very early in
the crime that the Defendant had already decided to
kill the victim.
The Defendant's full intentions were made manifest
after he drove an additional 30 miles to Tavernier. In
an Ace Hardware store there, he purchased a package of
razor blades and a roll of duct tape. The purchases
were for the sole purpose of facilitating the murder
of the victim.
The razor blades were needed to cut the ropes from the
victim's body rather than taking the time to untie
her. The Defendant could then dispose of the body more
quickly. The duct tape was· not needed to restrain the
victim since she was already effectively restrained by
the ropes and tied to the back seat. In fact, the
Defendant was able to leave the van three times
without being concerned about her. He got out to use
the ATM and make the purchases in Tavernier and to use
the ATM in Marathon. The sole purpose of the duct tape
was to muffle the victim's screams.
8
The Defendant drove south another 50 miles to carry
out his true intentions. He turned off U.S. Highway 1
onto Crane Boulevard on Sugarloaf Key and looked for a
remote thickly wooded area. When he did not find a
site that provided enough cover, he returned to U.S. 1
and drove back to the north a few miles to Blimp Road
on Cudjoe Key. The Defendant drove west 1.9 miles
until he came to a secluded boat ramp. There he found
a place where the mangroves grew thickly enough to
enable him to carry out the murder of the victim
without being seen or heard.
The Defendant told police off ice rs that he had been
curious about Blimp Road and what it looked like down
the road. In the past, he had seen a blimp there. Now,
on his way to kill the victim, the Defendant was
wondering about the appearance of things further out
on Blimp Road. Clearly, the Defendant was unconcerned
about the life of another human being that he was
about to end.
The cold and calculated nature of the murder is shown
by the
Defendant's purchase in Tavernier of the
specific tools needed to carry out his already formed
intention.
And it is further demonstrated by the
Defendant's time-consuming search for the right place
to put his plan into action. He rejected Sugarloaf Key
because he could not find a place that provided enough
cover and was distant enough from residential areas
and people who might interfere with his plans. And
obviously, it is made clear by the act itself. The
Defendant had to continue to strangle the victim for
25 minutes before she quit shaking.
From the Japanese Gardens Park up to and including the
doing of the murder itself, the Defendant had a great
deal
of
time
to
ref le ct
upon
the
act
he
was
contemplating. He could have changed his course of
conduct at any time, yet he continued until Janet
Acosta was dead.
(Rl0/1814-17).
9
Again,
case,
under
any
conceivable
view
of
the
facts
in
this
the CCP aggravator was proven beyond and to the exclusion
of any reasonable doubt.
Tanzi
notably
failed
which
these
aggravators
motion
for
postconviction
Court
during
372081
challenge
were
based
relief,
the
case
(affirming
as
harmless
HAC,
CCP,
King
did
evidence
of
the
circumstances-which
overwhelming
also
to
did
and
management
essentially
challenge
not
or
any
of
the
facts
either
in
his
successive
in
argument
hearing.
any
Hurst
and
not
See
avoid
contest
2017
where
direct
Notably,
sufficiency
the
of
WL
"the
appeal-was
uncontroverted. fl) •
the
this
aggravating
arrest
on
before
King,
error
upon
Tanzi
evidence
supporting these aggravators on direct appeal. 4
Had the
jury would
jury been instructed,
have
found
each
of
the
this Court is convinced the
aggravating
factors
relied
upon by the court to impose a death sentence in this case.
In
addition,
the
to
weigh
aggravators
the
jury was
repeatedly
proven
told by
against
before making its recommendation.
the
trial
mitigation
court
presented
1811
("Should you find
sufficient aggravating circumstances do exist,
it will then be
your
duty
to
that
outweigh
determine
the
whether
See T.
the
mitigating
circumstances
aggravating circumstances. fl;
4
(T.
1813)
exist
("You
Tanzi did challenge the trial court's assessment of the course
of a felony aggravator twice in the sentencing order.
10
should
weigh
aggravating
the
mitigating
circumstances,
based
these
on
and
against
circumstances
your
advisory
considerations.").
sentence
jury's
The
the
must
be
unanimous
recommendation leaves no doubt that it viewed the aggravation as
outweighing the mitigation presented.
The
Court
repeatedly found
notes
that
the
Florida
Hurst
errors
harmless
in cases
with unanimous jury recommendations. See
King
2017 WL 727167,
So.
3d
v.
State ,
2017
Knight v . St ate ,
201 7) ; Kaczmar v.
Jan.
31,
at *23
is
"precisely
9,
what
has
like this
one
Truehill v. State,
at *19
(Fla.
Feb.
23,
2017);
(Fla.
Jan.
26,
2017);
372081,
at
So.
3d
2 0 1 7 WL 4 113 2 9 ( F1 a . Jan . 31 ,
State,
Feb.
~
Court
WL
2017); Hall v.
(Fla.
Supreme
So.
[the
2017 WL 410214
3d
State,
2017).
*19
so.
(Fla.
2 0 1 7 WL 5 2 6 5 0 9 ,
3d
The jury's unanimous recommendation
Florida
Supreme
Court]
determined
in
Hurst to be constitutionally necessary to impose a
sentence of
death."
the
Davis,
207
So.
3d
recommendation
and
the
powerful
aggravators,
at
175.
Thus,
evidence
given
jury's
establishing
the
the Court finds the Hurst error is harmless beyond
a reasonable doubt in this case.s
5
The Hurst error does not resurrect Tanzi' s previously denied
Brady or Strickland claims. Hurst represents a trial error that
should be viewed and balanced against the evidence presented in
the penalty phase.
11
Accordingly, it is
ORDERED AND ADJUDGED that Defendant's Successive Motion to
Vacate Judgments of Conviction and Sentence is hereby DENIED.
THE
CLERK
OF
THE
CIRCUIT
COURT
IS
HEREBY
DIRECTED
to
promptly serve a copy of this order, along with a certificate of
service,
upon
the
parties
listed at
the
end of
this
order as
required by Florida Rule of Criminal Procedure 3. 851 ( f) ( 5) ( F) .
DEFENDANT IS HEREBY NOTIFIED that he has 30 days from the
date of this order in which to file an appeal,
should he choose
to do so.
DONE AND ORDERED in Tavernier, Monroe County,
a!J_':ay of April,
2017.
Florida,
this
A true and correct copy of this order
has been furnished to the parties listed below.
L~
C-ircui t Judge
Copies furnished to:
.......-P aul Kalil (kalilp@ccsr.state.fl.us)
Assistant CCRC
Capital Collateral Regional Counsel - South
One East Broward Boulevard, Suite 444
Fort Lauderdale, Florida 33301
12
V'M ark Wilson (mwilson@keyssao.org)
Chief Assistant State Attorney
530 Whitehead Street, Suite 201
Key West, Florida 33040
!/'S cott A. Browne (scott.browne@myfloridalegal.com)
E-service: capapp@myfloridalegal.com
Senior Assistant Attorney General
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607-7013
13
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.