Petition for Writ of Certiorari — Jeffrey Glenn Hutchinson, Petitioner v. Florida

Supreme Court briefJul 19, 2018

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

JEFFREY GLENN HUTCHINSON,

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

BILLY H. NOLAS

Counsel of Record

SEAN T. GUNN

Office of the Federal Public Defender

Northern District of Florida

Capital Habeas Unit

227 North Bronough St., Suite 4200

Tallahassee, Florida 32301

(850) 942-8818

billy_nolas@fd.org

sean_gunn@fd.org

INDEX TO APPENDIX

Exhibit 1 — Florida Supreme Court Opinion Below (Mar. 15, 2018) ....................... 1a

Exhibit 2 — Florida Supreme Court Rehearing Denial (Apr. 26, 2018) ................. 12a

Exhibit 3 — Florida Supreme Court Order to Show Cause (Aug. 22, 2017) ........... 14a

Exhibit 4 — Okaloosa County Circuit Court Order (May 30, 2017)........................ 16a

Exhibit 5 — Petitioner/Appellant’s Response to Order to Show Cause

(Sep. 11, 2017) ....................................................................................... 34a

Exhibit 6 — Respondent/State’s Response to Order to Show Cause

(Sep. 14, 2017) ....................................................................................... 72a

Exhibit 7 — Petitioner/Appellant’s Reply in Support of Response to

Order to Show Cause (Sep. 19, 2017) ................................................... 95a

Exhibit 8 — Petitioner/Appellant’s Rehearing Motion (Mar. 28, 2018) ................ 109a

Exhibit 9 — Declarations of Kimberly Ward and Jeffrey Hutchinson, Filed

in Okaloosa County Circuit Court (Mar. 28, 2018) ........................... 122a

Exhibit 10 — Florida Death Penalty Appeals Decided in Light of Hurst ............. 135a

(Source: Death Penalty Information Center)

EXHIBIT 1

Supreme Court of Florida

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No. SC17-1229

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JEFFREY GLENN HUTCHINSON,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[March 15, 2018]

PER CURIAM.

Jeffrey Glenn Hutchinson appeals an order of the circuit court summarily

denying a motion to vacate a judgment of conviction of first-degree murder and a

sentence of death under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the circuit court’s

summary denial of Hutchinson’s postconviction claim in light of our decisions in

Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016), and Mullens v. State, 197 So. 3d

16, 38-40 (Fla. 2016).

Hutchinson murdered Renee Flaherty and her three children, Logan,

Amanda, and Geoffrey. Hutchinson v. State, 882 So. 2d 943, 948-49 (Fla. 2004).

A jury convicted him of four counts of first-degree murder with a firearm. Id. at

948. Hutchinson waived his right to a penalty phase jury and presented mitigation

to the trial judge. Id. On January 21, 2001, the trial court conducted a colloquy,

found his waiver voluntary, and excused the jury. Id. at 949. Hutchinson was

sentenced to life imprisonment for the murder of Renee Flaherty and to a death

sentence for each child’s murder. Id. at 948. The trial court found two aggravators

for the murders of Logan and Amanda: (1) previously convicted of another capital

felony for the murders of the other children; and (2) victim under 12 years of age.

The trial court found three aggravators for Geoffrey’s murder: (1) previously

convicted of another capital felony for the murders of the other children; (2) victim

under 12 years of age; and (3) heinous, atrocious, or cruel (HAC). Hutchinson

raised ten issues in his direct appeal, and this Court affirmed the four convictions

and three death sentences. Id. at 961.1

1. Hutchinson raised the following issues:

(1) whether the trial court improperly instructed the jury; (2) whether

the trial court erred in admitting certain testimony as an excited

utterance; (3) whether the trial court erred in repeatedly overruling

objections to the State’s closing argument; (4) whether the trial court

erred in denying Hutchinson’s motion for mistrial; (5) whether the

trial court erred in denying Hutchinson’s motion for judgment of

acquittal; (6) whether the trial court erred in denying Hutchinson’s

motion for a new trial; (7) whether the trial court erred in considering

section 921.141(5)(1), Florida Statutes (2000), as an aggravating

circumstance; (8) whether the trial court erred in finding that

Hutchinson committed the murder of the children during the course of

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In 2005, Hutchinson filed his initial postconviction motion and an amended

motion following the withdrawal of counsel and appointment of new counsel.

Hutchinson v. State, 17 So. 3d 696, 699 (Fla. 2009). The circuit court denied the

motion following an evidentiary hearing on some of the claims. Hutchinson raised

three issues in his appeal of the circuit court’s denial. Id. at 700.2 This Court

affirmed the denial of relief. Id. at 704.

Hutchinson filed a federal habeas petition pro se on July 24, 2009, and

Hutchinson’s habeas counsel filed an amended habeas petition on November 23,

2009. The district court dismissed the amended petition as untimely. Hutchinson

v. Florida, No. 5:09-CV-261-R5, 2010 WL 3833921 (N.D. Fla. Sept. 28, 2010).

an act of aggravated child abuse; (9) whether the trial court erred in

finding heinous, atrocious, or cruel (HAC) as an aggravating

circumstance in the murder of Geoffrey Flaherty; and (10) whether

death is a proportional sentence.

Hutchinson, 882 So. 2d at 949-50.

2. Hutchinson raised the following claims before this Court on appeal:

(1) trial counsel rendered ineffective assistance during the guilt phase

by failing to present evidence that Hutchinson’s voice was not on the

911 audio tape; (2) trial counsel rendered ineffective assistance during

the guilt phase by failing to introduce into evidence the nylon stocking

found at the crime scene; and (3) the trial court erred in summarily

denying Hutchinson’s claims of actual innocence and conflict of

interest.

Hutchinson, 17 So. 3d at 700.

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The Eleventh Circuit Court of Appeals affirmed. Hutchinson v. Florida, 677 F.3d

1097 (11th Cir.), cert. denied, 568 U.S. 947 (2012). Hutchinson filed a rule 60(b)

motion to reopen his federal habeas case pro se. The federal district court assigned

the capital habeas unit (CHU) as federal habeas counsel of record. This motion

remains pending in federal court and is stayed pending the outcome of this appeal.

On January 11, 2017, Hutchinson’s CHU counsel filed a successive

postconviction motion in state court seeking relief under Hurst v. Florida, 136 S.

Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.

Ct. 2161 (2017). The State filed its answer on January 27, 2017, asserting that the

motion should be summarily denied because Hutchinson waived any right to Hurst

relief when he waived his penalty phase jury. Hutchinson filed a reply on March

29, 2017. The circuit court summarily denied Hutchinson’s motion on May 30,

2017. This appeal followed.

A circuit court’s decision on whether to grant an evidentiary hearing on a

postconviction motion is a pure question of law, reviewed de novo. Mann v. State,

112 So. 3d 1158, 1162 (Fla. 2013). When determining whether an evidentiary

hearing is required on a successive rule 3.851 motion, this Court considers the

entire record. “If the motion, files, and records in the case conclusively show that

the movant is entitled to no relief, the motion may be denied without an evidentiary

hearing.” Fla. R. Crim. P. 3.851(f)(5)(B). Although evidentiary hearings on

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factually based claims raised in successive rule 3.851 motions are not

automatically required, courts are encouraged to liberally allow such hearings on

timely raised claims. See Amends. to Fla. Rules of Crim. Pro. 3.851, 797 So. 2d

1213, 1219-20 (Fla. 2001).

To the extent that Hutchinson asserts that his penalty phase jury waiver was

invalid because counsel was ineffective, the circuit court properly found that

Hutchinson is not entitled to relief. This Court has determined that in order to

succeed on a claim for ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984), the claimant must identify counsel’s deficient

performance and demonstrate that counsel’s deficiency so affected the proceeding

that it undermined confidence in the outcome. Occhicone v. State, 768 So. 2d

1037, 1045 (Fla. 2000). In Occhicone, this Court held that “strategic decisions do

not constitute ineffective assistance of counsel if alternative courses have been

considered and rejected and counsel’s decision was reasonable under the norms of

professional conduct.” Id. at 1048. Counsel’s properly advising Hutchinson of the

law at the time and recommending jury waiver was not deficient performance.

Hutchinson is not entitled to relief on an ineffective assistance claim.

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While Hurst is retroactive to defendants whose sentences became final after

Ring3 was decided, Hurst relief is not available for defendants who have waived a

penalty phase jury. See Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016); Mullens

v. State, 197 So. 3d 16, 38-40 (Fla. 2016). In consideration of a penalty phase jury

waiver in the context of a guilty plea on direct appeal, this Court opined:

If a defendant remains free to waive his or her right to a jury

trial, even if such a waiver under the previous law of a different

jurisdiction automatically imposed judicial factfinding and sentencing,

we fail to see how [the defendant], who was entitled to present

mitigating evidence to a jury as a matter of Florida law even after he

pleaded guilty and validly waived that right, can claim error. As our

sister courts have recognized, accepting such an argument would

encourage capital defendants to abuse the judicial process by waiving

the right to jury sentencing and claiming reversible error upon a

judicial sentence of death. [State v.]Piper, 709 N.W.2d [783,] 808

[(S.D. 2006)] (citing People v. Rhoades, 753 N.E.2d 537, 544 (2001)).

This we refuse to permit.

Mullens v. State, 197 So. 3d 16, 39-40 (Fla. 2016). This Court has also held that

“[a] similar claim in postconviction proceedings is necessarily precluded.” Brant,

197 So. 3d at 1079.

Although Mullens is distinguishable from this case because the defendant in

that case pled guilty, this Court’s determination that his jury waiver precluded

Hurst relief is applicable to this case. Here, the circuit court properly found that

Hutchinson’s colloquy supported the conclusion that his waiver was knowing,

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

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intelligent, and voluntary. Hutchinson maintains that his waiver became invalid as

a result of the change in the law after Hurst.

Hutchinson contends that his case is distinguishable from Mullens and Brant

because he challenges the validity of his waiver. Contrary to Hutchinson’s

assertion, the defendant in Brant also challenged the validity of his waiver, arguing

that counsel was ineffective in light of the change in Hurst just as Hutchinson

argues in this case. In both Mullens and Brant, this Court found that the

defendants’ waivers were knowingly, intelligently, and voluntarily made based on

their colloquies, even though those waivers were made with the advice of counsel

based on pre-Hurst law. See Brant, 197 So. 3d at 1066; Mullens, 197 So. 3d at 3940. Hutchinson’s waiver is no different.

Hutchinson also argues that he is entitled to an evidentiary hearing on this

claim because this Court granted evidentiary hearings in Meeks v. Dugger, 576 So.

2d 713, 716 (Fla. 1991), and Hall v. State, 541 So. 2d 1125, 1128 (Fla. 1989), to

determine the effect of constitutional error on defense counsel. Following the

United States Supreme Court’s decision in Hitchcock v. Dugger, 481 U.S. 393

(1987), providing that jurors must be instructed on and the defendant allowed to

present nonstatutory mitigation, this Court considered Meeks’ Hitchcock claim.

The affidavits in Meeks’ case demonstrated that counsel did not seek to develop

nonstatutory mitigation because of the then-prevailing statutory construction which

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only provided for mitigation enumerated in the statute. Meeks, 576 So. 2d at 716.

This Court granted an evidentiary hearing. Id. In Hall, this Court granted an

evidentiary hearing on the defendant’s Hitchcock claim based on the affidavits of

numerous mental health experts regarding nonstatutory mitigation which would

have been available had counsel believed nonstatutory mitigation was available

under the law. Hall, 541 So. 2d at 1127.

A defendant’s ability to waive a penalty phase jury did not change after

Hurst. Unlike Hutchinson, the defendants in Meeks and Hall did not waive any

rights. Had they waived their rights to present evidence during the penalty phase,

they would not have been eligible for relief on their Hitchcock claims. See Tafero

v. Dugger, 520 So. 2d 287, 289 (Fla. 1988) (denying relief on a Hitchcock claim

where the defendant validly waived his right to present evidence at his penalty

phase). Similarly, Hutchinson is not entitled to relief on this Hurst claim where he

waived his right to a jury trial. Unlike the change of law in Hitchcock, the change

of law under Hurst does not have any bearing on the evidence that a lawyer might

choose to develop or that expert witnesses may present. Hurst relief is not

available to individuals who waived their right to a penalty phase jury.

Hutchinson also contends that under Halbert v. Michigan, 545 U.S. 605, 623

(2005), he could not have waived a post-Hurst right to a unanimous jury

recommendation before the imposition of death because the courts did not

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recognize the right at the time. The United States Supreme Court held in Halbert

that the Due Process and Equal Protection Clauses require appointment of first-tier

postconviction counsel for indigent defendants and that the defendant’s plea of

nolo contendere did not preclude the court from granting him relief. Hutchinson

contends that this Court should follow Halbert in finding that Hurst created a new

right to a jury trial distinct from the pre-Hurst right, and further find that his jury

waiver does not preclude Hurst relief. The United States Supreme Court rejected

an argument similar to Hutchinson’s in McMann v. Richardson, 397 U.S. 759, 77374 (1970), holding that a change in the law regarding coerced confessions did not

liberate a defendant from a plea entered under the old law.

Unlike the right to first-tier postconviction counsel in Halbert, the right to a

jury trial was well recognized before Hurst. Although Hutchinson contends that

Halbert affected postconviction proceedings and therefore should be followed

here, Halbert did not establish any rights related to successive postconviction

proceedings like this one. As previously stated, this Court has explicitly rejected

Hutchinson’s argument, opining that “accepting such an argument would

encourage capital defendants to abuse the judicial process by waiving the right to

jury sentencing and claiming reversible error upon a judicial sentence of death.

This we refuse to permit.” Mullens, 197 So. 3d at 40 (citations omitted).

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Based on the foregoing, we affirm the decision of the circuit court and deny

relief on Hutchinson’s claim.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,

IF FILED, DETERMINED.

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

John T. Brown, Judge - Case No. 461998CF001382XXXACX

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

Northern District of Florida, Tallahassee, Florida; and Clyde M. Taylor, Jr. of

Taylor & Taylor, LLC, St. Augustine, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant

Attorney General, Tallahassee, Florida,

for Appellee

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EXHIBIT 2

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Supreme Court of Florida

THURSDAY, APRIL 26, 2018

CASE NO.: SC17-1229

Lower Tribunal No(s).:

461998CF001382XXXACX

JEFFREY GLENN HUTCHINSON

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant’s Motion for Rehearing and Clarification is hereby denied.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,

and LAWSON, JJ., concur.

A True Copy

Test:

Served:

BILLY H. NOLAS

CHARMAINE M. MILLSAPS

CLYDE M. TAYLOR, JR.

HON. JOHN T. BROWN, JUDGE

HON. J.D. PEACOCK, II, CLERK

HON. LINDA LEE NOBLES, CHIEF JUDGE

JOHN A. MOLCHAN

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EXHIBIT 3

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Supreme Court of Florida

TUESDAY, AUGUST 22, 2017

CASE NO.: SC17-1229

Lower Tribunal No(s).:

461998CF001382XXXACX

JEFFREY GLENN HUTCHINSON

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

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

Mullens v. State, 197 So. 3d 16 (Fla. 2016). Parties may include a brief statement

to preserve arguments as to the merits of this Court’s 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 September 11, 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.

A True Copy

Test:

Served:

BILLY H. NOLAS

CHARMAINE M. MILLSAPS

CLYDE M. TAYLOR, JR.

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EXHIBIT 4

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EXHIBIT 5

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Filing # 61471763 E-Filed 09/11/2017 04:34:16 PM

No. SC17-1229

IN THE

Supreme Court of Florida

___________________________________________________________

JEFFREY GLENN HUTCHINSON,

RECEIVED, 09/13/2017 08:13:37 AM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S BRIEF

IN RESPONSE TO AUGUST 22, 2017

ORDER TO SHOW CAUSE

_____________________________________________________

Clyde M. Taylor, Jr.

Taylor & Taylor, LLC

2303 N. Ponce De Leon Blvd., Ste. L

St. Augustine, FL 32084

ct@taylor-taylor-law.com

(904) 687-1630

Florida Bar No. 129747

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Counsel for Appellant

35a

TABLE OF CONTENTS

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

REQUEST FOR ORAL ARGUMENT................................................................2

BACKGROUND ....................................................................................................3

ARGUMENT ..........................................................................................................6

II.

This Court should remand for a hearing based on Appellant’s

challenge to the validity of his waiver and evidentiary proffer in the

circuit court..................................................................................................6

Appellant’s proffer is sufficient to afford him the opportunity to

establish at a hearing that his jury waiver is not a valid basis to deny

Hurst relief...........................................................................................6

Mullens precludes Hurst relief based on valid or unchallenged jury

waivers; not waivers, like Appellant’s, that are challenged as invalid

based on a substantial evidentiary proffer............................................9

A remand for a hearing is supported by this Court’s long- established

precedent, grounded in principles of fairness and due process,

encouraging evidentiary hearings to establish the impact of

constitutional errors in capital sentencing proceedings........................12

The Hurst decisions apply retroactively, and the “harmless error”

doctrine is not an impediment to relief................................................15

Even without a remand for a hearing, the circuit court’s ruling should be

vacated and Appellant should be granted Hurst relief..............................17

This Court can conclude based on Appellant’s proffer that his jury

waiver is not valid in the Hurst context and that Mullens therefore does

not apply..............................................................................................18

Under United States Supreme Court precedent, Appellant could not

have waived the rights afforded by Hurst because at the time of his jury

waiver, he had no recognized right to unanimous jury fact-finding in

capital sentencing................................................................................20

Because the current record and federal law provide a sufficient basis to

conclude that Appellant’s waiver is invalid, and because the Hurst

decisions are retroactive to Appellant and harmless-error analysis in

this case would be impermissibly speculative, Appellant should be

granted Hurst relief..............................................................................22

CONCLUSION.......................................................................................................25

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INTRODUCTION

This appeal seeks review of the circuit court’s failure to hold an evidentiary

hearing and denial of Appellant Jeffrey Hutchinson’s claim for relief under Hurst v.

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

is no dispute that the Hurst decisions apply retroactively to Appellant, or that this

Court’s current “harmless error” analysis does not apply in his case. The basis for

the circuit court’s denial of Hurst relief was Appellant’s “jury waiver,” and a

misunderstanding of this Court’s decision in Mullens v. State, 197 So. 3d 16 (Fla.

2016). Mullens precludes Hurst relief based on valid or unchallenged jury waivers.

But here, unlike in Mullens or any other “jury waiver” Hurst case this Court has

reviewed, Appellant challenged his waiver as invalid to bar Hurst relief and

requested a hearing in the circuit court based on a substantial evidentiary proffer.

Appellant’s proffer alerted the circuit court, and a hearing would establish,

that Appellant’s jury waiver is invalid because (1) his decision to waive was based

solely on trial counsel’s advice, (2) counsel’s advice was grounded entirely on

Florida’s pre-Hurst unconstitutional sentencing scheme, (3) counsel would not have

advised Appellant to waive in a constitutional post-Hurst proceeding, (4) Appellant

would not have waived absent counsel’s advice, and (5) at least one juror in a

constitutional proceeding would have voted for life based on the substantial

mitigation in the case.

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In light of Appellant’s proffer, the circuit court should have held an

evidentiary hearing on the validity of Appellant’s waiver as a barrier to Hurst relief.

This Court should remand for a hearing. Allowing a hearing is consistent with

Mullens and this Court’s other “jury waiver” cases. A remand for a hearing is also

supported by this Court’s long-established precedent, grounded in principles of

fairness and due process, encouraging evidentiary hearings to establish the impact

of constitutional errors like Hurst in capital sentencing proceedings.

Even if this Court does not remand for a hearing, the circuit court’s ruling

should be vacated and Appellant should be granted Hurst relief because this Court

can conclude based on Appellant’s proffer that his waiver is not valid in the Hurst

context, and because Appellant could not have waived rights that were not

recognized at the time. 1

REQUEST FOR ORAL ARGUMENT AND FULL BRIEFING

This appeal presents important issues of first impression regarding the need

for evidentiary development where, unlike in Mullens and this Court’s other “jury

waiver” Hurst cases, the defendant proffers evidence in the circuit court that his

waiver of a penalty-phase jury is invalid because the waiver was the direct result of

the unconstitutional pre-Hurst sentencing statute’s influence on counsel’s advice to

All emphasis herein in supplied unless otherwise indicated. Parallel citations

generally are omitted.

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waive. Appellant respectfully requests oral argument on this and related issues

pursuant to Fla. R. App. P. 9.320, and also requests that the Court allow him the

opportunity to brief this case in accord with the normal, untruncated rules of

appellate practice.

BACKGROUND

In 1998, Appellant was convicted of multiple counts of murder following a

jury trial in Okaloosa County. Hutchinson v. State, 882 So. 2d 943 (Fla. 2004).

After the guilt phase, Appellant’s counsel advised him to waive a jury for the penalty

phase. Counsel’s advice to waive a jury was based on “the death-sentencing scheme

in place in 2001,” and counsel’s determination that “we would not get a majority [of

the jury] to vote for life.” Record on Appeal (“ROA”) at 88. This “convinced”

Appellant, and he waived a jury based solely on counsel’s advice. Id. at 93.

Appellant’s counsel presented mitigation evidence to the court, including but

not limited to Appellant’s lack of prior criminal history, his decorated service in

Desert Storm, and his diagnosis of Gulf War Syndrome. As a result, the court found

more than 20 mitigating factors applicable.2

The mitigation the court found included that Appellant (1) had no criminal history;

(2) was a decorated military veteran of the Gulf War; (3) is the father of a son for

whom he has provided financial and emotional support; (4) has potential for

rehabilitation and productivity in prison; (5) was intoxicated with a blood alcohol

content of .21 to .26 on the night of the offense; (6) was a soldier for eight years and

was honorably discharged; (7) provided financial and emotional support to his

family; (8) has the ability to show compassion; (9) has a good employment history;

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The court, not a jury, made the findings of fact required to sentence Appellant

to death under Florida law. The court found beyond a reasonable doubt that three

aggravating circumstances had been established,3 and that those aggravators were

“sufficient” to impose the death penalty and not outweighed by the mitigation.

Based upon this fact-finding, the court sentenced Appellant to death for three of the

four murders of which he was convicted.

This Court affirmed on direct appeal.

Hutchinson, 882 So. 2d at 948.

Appellant’s sentences became final in 2004, when the time expired to seek a writ of

certiorari in the United States Supreme Court. See Fla. R. Crim. P. 3.851(d)(1)(A).

In 2009, this Court affirmed the denial of Appellant’s initial Rule 3.851

motion. See Hutchinson v. State, 17 So. 3d 696 (Fla. 2009). Appellant did not

receive federal habeas review because his attorneys failed to file a timely federal

petition, despite their assurances to Appellant that they would do so. See Hutchinson

v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012).

(10) has family who support him; (11) has ability as a mechanic; (12) sought

motorcycle patents; (13) was diagnosed with Gulf War illness; (14) was recognized

as security officer of the year; (15) never abused drugs; (16) is a high school

graduate; (17) was active in disseminating information about Gulf War illness; (18)

has religious faith; (19) was distressed during the 911 call; (20) has friends who

testified on his behalf; and (21) was diagnosed with ADD. Id. at 959-60.

The aggravators found by the judge included that the offense involved (1) multiple

victims; (2) victims less than twelve years of age; and (3) circumstances that were

heinous, atrocious, or cruel. Id. at 959.

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In January 2017, Appellant filed a Rule 3.851 motion in the circuit court

seeking relief under Hurst v. Florida and Hurst v. State. ROA at 46-66. Appellant

argued, and the State did not dispute, that the Hurst decisions applied retroactively

because Appellant’s sentences became final after Ring. With respect to the jury

waiver, Appellant argued that the waiver is invalid to preclude Hurst relief,

notwithstanding this Court’s decision in Mullens and its progeny, because unlike in

those cases, (1) Appellant’s decision to waive was based solely on trial counsel’s

advice, (2) counsel’s advice was grounded entirely on counsel’s knowledge of

Florida’s unconstitutional pre-Hurst sentencing scheme, (3) counsel would not have

advised Appellant to waive in a constitutional post-Hurst proceeding, (4) Appellant

would not have waived absent counsel’s advice, and (5) at least one juror in a

constitutional proceeding would have voted for life based on the substantial

mitigation in the case. Appellant requested a hearing on the validity of his waiver

to preclude Hurst relief, and proffered evidence that he would present at a hearing,

including declarations from trial counsel and himself.

The circuit court denied relief without addressing Appellant’s proffer or his

request for a hearing. This Court directed the parties to file briefs addressing why

the circuit court’s order should not be affirmed based on Mullens.4

Appellant has provided a condensed brief per this Court’s August 22, 2017 order,

but requests the opportunity to provide a standard initial brief, consistent with Fla.

R. App. P. 9.210, so that he can fully present all of his issues on appeal.

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ARGUMENT

This Court should remand for a hearing based on Appellant’s challenge

to the validity of his waiver and evidentiary proffer in the circuit court

Appellant should have been afforded a hearing in the circuit court to establish

that his jury waiver is invalid to preclude Hurst relief. Because Appellant argued

below that his waiver is invalid and proffered evidence that he would not have

waived absent the advice counsel provided in the context of the unconstitutional

statute, the circuit court should not have summarily denied Hurst relief under

Mullens. This Court should remand to afford Appellant the opportunity to present

his evidence, a decision that would be consistent with Mullens, this Court’s other

Hurst “waiver” decisions, and long-established precedent encouraging hearings to

establish the impact of constitutional errors in capital sentencing proceedings,

particularly with respect to the impact of a constitutional error on defense counsel.

Appellant’s proffer is sufficient to afford him the opportunity to

establish at a hearing that his jury waiver is not a valid basis to

deny Hurst relief

Appellant’s proffer in the circuit court is sufficient to afford him the

opportunity to establish at a hearing that his jury waiver is invalid to bar Hurst relief.

In the circuit court, Appellant specifically challenged the validity of his waiver.

Appellant’s Rule 3.851 motion stated that his waiver “was based upon the advice of

counsel, which was grounded in Florida’s law at the time, by which the judge

sentenced after a bare majority of the jury was asked to make an advisory

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recommendation,” ROA at 46-47, and that “counsel would not have advised

[Appellant] to waive a jury vote, and [Appellant] would not have waived had the law

been what [the Hurst decisions] now require: a unanimous finding by the jury,

agreed to by every juror, that aggravation exists, that it is sufficient for death, that it

outweighs the mitigation, and that death is the proper sentence,” id. at 47.

Appellant stated that at a hearing he would “show that the result of this

proceeding would have been different had Florida’s scheme not been

unconstitutional when [Appellant], on the advice of counsel, waived a jury.” ROA

at 55; see also ROA at 59-60, 106. In support of his request for a hearing, Appellant

proffered substantial evidence regarding the invalidity of his waiver. ROA at 84-95.

First, Appellant proffered a declaration from his trial counsel, Kimberly Ward,

Esq.5 Id. at 88-91 (also attached here as Attachment A). Counsel confirmed in the

declaration that all of counsel’s decisions and advice to Appellant “were affected by

the Florida capital sentencing statute under which we operated.” Id. at 88. Counsel

further explained that counsel’s “advice to Mr. Hutchinson to waive a penalty phase

jury was based on that statute,” and that, “[h]ad this trial taken place under a

sentencing scheme as required by Hurst v. Florida and Hurst v. State, we would

have given different advice to Mr. Hutchinson.” Id. at 89-90. Critically, counsel

stated that counsel “would not have advised him to waive a jury because the jury’s

At the time of trial, counsel’s surname was Cobb.

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role is different when it is instructed that it is solely responsible for finding sufficient

aggravating circumstances, considering mitigating factors and imposing a death

sentence.” Id. at 90. And counsel noted, “[t]his different advice would have affected

Mr. Hutchinson’s decision on whether to waive a penalty phase jury, and I believe

that Mr. Hutchinson would not have waived a jury.” Id. at 90.

Appellant also submitted a declaration from himself regarding the effect of

the pre-Hurst law on his decision to waive a jury. Id. at 93-95 (also attached here as

Attachment B). Appellant confirmed in his declaration that counsel advised him to

waive a penalty jury. Id. at 93. He stated that his decision to waive was based on

the advice of counsel, and that counsel “convinced” him that he should waive. Id.

Appellant made it clear to counsel that he did not wish to receive a death sentence,

and “accepted their advice to waive a jury after their explanation that it was the judge

who would be imposing sentence and the jury was essentially superfluous.” Id. at

94. Appellant would not have waived a jury with the knowledge that the jury’s role

was to make unanimous, binding findings on aggravating circumstances, mitigating

factors, and whether to impose a death sentence. Id. Appellant would not have

agreed to waive his penalty jury if he had known that his defense only had to

convince one juror for life instead of a majority of the jurors. Id.

Appellant’s proffered evidence alerted the circuit court, and a hearing would

establish, that his jury waiver is not a valid basis to deny Hurst relief. Based on his

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proffer, an evidentiary hearing will establish that, had the proceeding comported

with the Sixth and Eighth Amendments by requiring unanimous jury fact-finding in

death sentencing, counsel would not have advised Appellant to waive, Appellant

would not have waived, and Appellant would not have been sentenced to death.

Mullens precludes Hurst relief based on valid or unchallenged jury

waivers; not waivers, like Appellant’s, that are challenged as

invalid based on a substantial evidentiary proffer

The circuit court’s failure to allow Appellant to present his proffered evidence

undermining the validity of his jury waiver was premised on a misunderstanding of

Mullens. See ROA at 160-61. In Mullens, this Court denied Hurst relief based on a

valid, unchallenged jury waiver. See 197 So. 3d at 39-40. Neither Mullens nor this

Court’s other “waiver” cases preclude Hurst relief, at least without further

evidentiary development, based on jury waivers that are challenged based on

substantial evidentiary proffers.

The underlying facts of Mullens, as well as the Hurst litigation in that case,

are readily distinguishable from those presented here. In Mullens, a jury was never

empaneled for the guilt phase because Mr. Mullens pleaded guilty. Id. at 38-40.

Appellant here did not plead guilty and had a jury at the guilt phase. Mr. Mullens

did not, as Appellant did, accept counsel’s advice to forego at the penalty phase the

same jury that had convicted him at the guilt phase. Counsel’s advice here was

entirely based on counsel’s belief that a majority of the jury could not be swayed for

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life, and counsel has made it clear that the advice to Appellant would have been

different post-Hurst. In contrast, Mr. Mullens did not challenge the validity of his

jury waiver in his Hurst litigation, based on either the voluntariness of the waiver

itself or on the detrimental effect of the unconstitutional statute on defense counsel’s

advice to waive a jury. Mr. Mullins did not allege that his wavier was invalid, that

he waived a penalty jury based on the advice of counsel in the context of the

unconstitutional statute, or that he would not have waived a penalty jury in a postHurst proceeding. Mr. Mullins did not request an evidentiary hearing or proffer

evidence undermining the validity of his waiver. As such, this Court evaluated

whether Mr. Mullens’s waiver was valid to bar Hurst relief without considering

arguments or evidence regarding the validity of the waiver itself.

In Wright v. State, 213 So. 3d 881 (Fla. 2017), this Court did confront a

challenge to the validity of the penalty-phase jury waiver to bar Hurst relief and,

importantly, the Court considered whether there was evidence that undermined the

waiver.

Mr. Wright alleged that he was entitled to Hurst relief because his

intellectual disability rendered his jury waiver invalid. See id. at 902-03. But unlike

in Appellant’s case where significant evidence was proffered, Mr. Wright provided

no mental health reports or other information specifically addressing the validity of

his waiver, relying exclusively on the intellectual disability diagnosis. Still this

Court denied relief only after concluding that Mr. Wright “was not intellectually

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disabled under Florida law.” Id. The Court relied, in part, on two evidentiary

hearings that the circuit court afforded Mr. Wright to present evidence of his

intellectual disability. Id. at 896. Unlike the circumstances of this case, the Court

did not examine the validity of Mr. Wright’s waiver in terms of counsel’s advice to

waive, based on counsel’s understanding of Florida’s prior scheme, because Mr.

Wright’s jury waiver was his own idea and preference. See id. at 903.

Here, Appellant’s case was tried before a jury at the guilt phase and, based

solely on counsel’s advice, Appellant waived presenting his penalty-phase evidence

to that same jury. In his Hurst claim, in contrast to what occurred in Mullens and

Wright, Appellant challenged the validity of the waiver, requested a hearing on the

validity of the waiver for Hurst purposes, and proffered evidence that he would

develop at a hearing to establish that the waiver is invalid as a bar to relief. Indeed,

counsel’s advice flowed directly from the unconstitutional pre-Hurst scheme.

It is true that Mullens supports the proposition that Hurst relief is precluded

based on valid or unchallenged jury waivers, but Mullens does not bar a hearing and

relief based on invalid waivers that are challenged based on substantial evidentiary

proffers. And Wright suggests that a challenged waiver should be tested for validity

in the course of Hurst analysis, and that the Court should look to all available

evidence. In Mullens, there was no challenge to the waiver and therefore no reason

for this Court to order a hearing. In Wright, the defendant’s challenge was not

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supported by any proffer of evidence, leaving this Court with no option but to

evaluate the waiver’s validity for Hurst purposes based on the existing record. But

here, Appellant challenged his waiver and proffered substantial evidence

undermining the validity of his waiver to bar Hurst relief. This Court therefore has

an opportunity that it did not have in Mullens or Wright. In light of Appellant’s

proffer, the Court can and should remand for a hearing.

A remand for a hearing is supported by this Court’s longestablished precedent, grounded in principles of fairness and due

process, encouraging evidentiary hearings to establish the impact

of constitutional errors in capital sentencing proceedings

A remand for a hearing is not only consistent with Mullens and Wright, but is

also supported by this Court’s long-established precedent, grounded in principles of

fairness and due process, encouraging evidentiary hearings to establish the impact

of constitutional errors in capital sentencing proceedings. Consistent with this

precedent, Appellant should be afforded the opportunity to establish that trial

counsel’s advice to waive a penalty-phase jury, and Appellant’s decision to waive a

jury pursuant to that advice, would not have occurred in a constitutional proceeding

where only one juror, rather than a majority of jurors, needed to be convinced that

life was the appropriate sentence.

As a general matter, this Court maintains a presumption that Florida

defendants be granted evidentiary hearings. See Freeman v. State, 761 So. 2d 1055,

1061 (Fla. 2000). A court should only find a defendant’s presumed entitlement to

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an evidentiary hearing overcome if the motion is legally insufficient or the alleged

facts and claims are conclusively refuted by the record. Ventura v. State, 2 So. 3d

194, 197-98 (Fla. 2009). A circuit court’s decision to grant an evidentiary hearing

on a Rule 3.851 motion is a pure question of law, and thus subject to de novo review.

Long v. State, 183 So.3d 342, 344 (Fla. 2016). All allegations made by the defendant

are accepted as true unless they are “conclusively refuted by the record.” Ventura,

2 So. 3d at 197-98.

This Court’s precedent also makes clear that the effect of an unconstitutional

death penalty statute on defense counsel—like the impact of the Hurst error on

Appellant’s counsel’s advice to waive a jury—must be considered as part of the

analysis. That is how this Court proceeded after the United States Supreme Court

held that a capital jury must be allowed to consider non-statutory mitigating

circumstances in Hitchcock v. Dugger, 481 U.S. 393 (1987).

In response to

arguments from the State that Hitchcock errors did not impact the outcome of the

sentencing, this Court did not confine the inquiry to the original record. Instead, it

permitted defendants who proffered evidence about the impact of the constitutional

error on the decisions of counsel and the defendant’s opportunity to present and

develop that evidence at a hearing. For example, in Meeks v. Dugger, 576 So. 2d

713, 716 (Fla. 1991), the defendant proffered evidence of how Florida’s preHitchcock capital scheme affected his penalty-phase counsel’s approach to the

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proceedings. This Court held that the defendant’s proffer warranted a hearing in the

circuit court, ruling that “the merits of [Meeks’] claims can only be determined by

an evidentiary hearing.” Id. Similarly, in Hall v. State, 541 So. 2d 1125, 1128 (Fla.

1989), this Court granted relief on the basis of the extra record proffer concerning

the effect of the constitutional error on defense counsel.

Appellant argued below that his waiver is invalid and requested a hearing

based on an evidentiary proffer, including a declaration from trial counsel, indicating

that he would not have waived a jury absent counsel’s advice. That advice resulted

from Florida’s pre-Hurst scheme. As in the cases cited above, the effect of the Hurst

error on counsel’s advice to Appellant to waive—and the validity of the waiver itself

to preclude Hurst relief—are at the core of the constitutional analysis.6 Appellant

should be afforded the opportunity to establish that his decision to waive was based

on trial counsel’s advice, that counsel’s advice was grounded in counsel’s

knowledge of Florida’s pre-Hurst unconstitutional sentencing scheme, that counsel

would not have advised Appellant to waive in a constitutional post-Hurst

proceeding, and that Appellant would not have waived absent counsel’s advice.

The circuit court’s construing of Appellant’s argument regarding the effect of the

unconstitutional statute on counsel’s advice to waive as a claim of ineffective

assistance of counsel is inaccurate. See ROA at 161. Appellant is not arguing a

claim that counsel was ineffective, but instead that counsel’s advice to Appellant to

waive a penalty jury would not have occurred in a constitutional proceeding where

a single juror, as opposed to a majority of jurors, needed to be persuaded in order to

result in a life-sentence recommendation.

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Without a hearing, the circuit court could not reasonably conclude that

Appellant’s waiver was valid to preclude Hurst relief. The court should have at least

addressed Appellant’s proffer. Considerations of fairness and due process favor a

remand for the circuit court respond appropriately to Appellant’s proffer.

The Hurst decisions apply retroactively to Appellant, and the

“harmless error” doctrine is not an impediment to relief

A hearing on Appellant’s proffer is critical because the only issue in this Hurst

case is whether Appellant’s jury waiver is a valid basis to preclude Hurst relief. That

is because the Hurst decisions apply retroactively to Appellant, and the “harmless

error” doctrine is not an impediment to relief.

As the State has conceded, there is no dispute that the Hurst decisions apply

retroactively to Appellant because his death sentences became final in 2004, after

Ring was decided. See Mosley v. State, 209 So. 3d 1248 (Fla. 2016); see also ROA

at 148 (counsel for the Attorney General acknowledging that “the State agrees that

Hurst is retroactive as to Mr. Hutchinson.”). 7

In addition, Appellant’s Hurst claim is not impeded by the “harmless error”

doctrine. Appellant’s counsel advised him to waive a jury based on counsel’s

As Appellant argued in the circuit court, the Hurst decisions are also retroactive as

a matter of federal law. See ROA at 55-58 (Appellant’s Rule 3.851 motion, filed

Jan. 11, 2017) (discussing federal cases, including Montgomery v. Louisiana, 136 S.

Ct. 718, 731-32 (2016) (holding that federal law requires states to make substantive

rules retroactive on collateral review)).

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knowledge of Florida’s unconstitutional capital sentencing scheme in effect at the

time. As a result, there is no jury recommendation that this Court can subject to its

current harmless-error analysis, which looks to whether the jury was unanimous in

recommending death. See, e.g., Hurst v. State, 202 So. 3d at 68; Dubose v. State,

210 So. 3d 641, 657 (Fla. 2017). Given the lack of any jury recommendation in this

case, there is no reliable basis for this Court to conclude beyond a reasonable doubt

whether a jury in a constitutional proceeding would have found all of the facts

necessary to impose a death sentence. This Court has cautioned against finding

Hurst errors harmless based upon “speculation” that a jury would have unanimously

found beyond a reasonable doubt that death was the proper sentence. See Hurst v.

State, 202 So. 3d at 69. Indeed, the Court has said that engaging in speculation

“would be contrary to our clear precedent governing harmless error review.” Id.

The prohibition against harmless-error speculation carries particular force in

Appellant’s case, which contains extensive mitigation that surely could have

convinced at least one reasonable juror to vote for life. The trial judge found more

than 20 mitigating circumstances in this case, including but not limited to

Appellant’s lack of prior criminal history, his decorated service in Desert Storm, and

his diagnosis of Gulf War Syndrome. See supra at 3 & n.2. As detailed in

Appellant’s Rule 3.851 motion, the circumstances of his military service in

particular would likely have persuaded at least some jurors in a post-Hurst

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proceeding that a life sentence was more appropriate than death. See ROA at 61-65

(describing Appellant’s service in Airborne Rangers and Operation Desert Storm,

during which he experienced combat trauma and chemical weapon exposure).

Because there is no dispute that Hurst applies retroactively to Appellant, and

under this Court’s precedent it would be inappropriate to undertake what would

necessarily be a purely speculative harmless-error analysis, the only issue is whether

Appellant’s jury waiver is a valid basis to preclude Hurst relief. In order to make

that determination, further evidentiary development is necessary. 8

II.

Even without a remand for a hearing, the circuit court’s ruling should be

vacated and Appellant should be granted Hurst relief

As explained in Section I, a remand to the circuit court for an evidentiary

hearing is consistent with Mullens and this Court’s other “jury waiver” Hurst cases,

and is appropriate under this Court’s precedent addressing the need for hearings to

assess constitutional errors in capital cases. However, even if this Court does not

remand for a hearing, the circuit court’s ruling should be vacated and Appellant

should be granted relief. This Court can conclude based on Appellant’s proffer that

As explained in Section II, while further evidentiary development is necessary to

determine whether Appellant’s jury waiver is a valid basis to preclude Hurst relief,

this Court can also conclude based on the present record, including Appellant’s

proffer in the circuit court, that his waiver is not a valid basis to preclude Hurst relief.

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his waiver is not valid in the Hurst context.9 And, even if the Court finds that

Appellant’s decision to waive a jury based on counsel’s pre-Hurst advice does not

by itself render his jury waiver invalid, United States Supreme Court precedent

provides that Appellant could not have waived the rights afforded by the Hurst

decisions because at the time of his jury waiver, he had no recognized right to

unanimous jury fact-finding in capital sentencing. Because the current record and

federal precedent are sufficient to conclude that Appellant’s waiver is invalid, this

Court can grant relief now because the Hurst decisions are retroactive to Appellant

and harmless-error analysis in this case would be inappropriately speculative.

This Court can conclude based on Appellant’s proffer that his jury

waiver is not valid in the Hurst context and that Mullens therefore

does not apply

Appellant’s proffer is sufficient to allow this Court to conclude that his waiver

is not valid in the Hurst context. Trial counsel verified in a declaration that counsel’s

advice to Appellant, including the advice to waive a penalty jury, was inextricably

linked with counsel’s knowledge of Florida’s pre-Hurst unconstitutional sentencing

scheme, and that had Appellant been afforded a constitutional sentencing

proceeding, counsel would not have advised him to waive a jury. Counsel states that

As explained in Section I, the current record is insufficient to conclude that

Appellant’s waiver is valid to preclude Hurst relief. In light of Appellant’s challenge

to the waiver and evidentiary proffer, a hearing should precede a finding that the

waiver can serve as the basis to deny Hurst relief. However, this Court can choose

to accept Appellant’s proffer and grant relief without a hearing.

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counsel would not have advised him to waive a jury in a post-Hurst proceeding

because understands that a jury’s decision making is impacted by its knowledge that

it is solely responsible for the fact-finding that leads to a death sentence. Counsel

also states that her different advice would have affected Appellant’s decision on

whether to waive a penalty jury. And counsel notes that Appellant would not have

waived a jury absent counsel’s pre-Hurst advice. ROA at 89-90.

Appellant, in both his Rule 3.851 motion and his declaration, confirmed that

it was counsel’s advice that convinced him to waive a jury, and that he would not

have waived a jury absent counsel’s advice. Id. at 60, 93. Appellant made it clear

to counsel that he did not wish to receive a death sentence, and accepted counsel’s

advice to waive a jury after hearing the explanation that it was the judge who would

be imposing sentence, and that the “advisory” jury was essentially superfluous in the

pre-Hurst sentencing scheme. Id. at 94. Had the penalty phase taken place in a

proceeding comporting with Hurst, Appellant would not have agreed to waive a jury

with the knowledge that the jury’s role was to make unanimous, binding findings on

aggravating circumstances, mitigating factors, and whether to impose a death

sentence. Id. Appellant would not have agreed to waive his penalty jury if he had

known that his defense only had to convince one juror for life, instead of a majority

of the jurors, as Florida’s unconstitutional scheme required. Id.

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In light of this evidence, this Court can conclude that Appellant’s waiver is

not valid in the Hurst context. Because Appellant’s jury waiver was solely the result

of counsel’s advice, and counsel’s advice was entirely the product of counsel’s

knowledge of Florida’s unconstitutional sentencing scheme, it would violate

Appellant’s due process rights to preclude him from seeking relief under the Hurst

decisions, which invalidated the very scheme that gave rise to his waiver.

Mullens therefore loses all relevance to this case. As explained above, the

Court’s opinions in Mullens and its progeny make clear that Hurst relief is only

precluded in cases where the jury waiver is valid, and that is not the case here.

Under United States Supreme Court precedent, Appellant could

not have waived the rights afforded by Hurst because at the time of

his jury waiver, he had no recognized right to unanimous jury factfinding in capital sentencing

Even if the Court finds that Appellant’s decision to waive a jury based on

counsel’s pre-Hurst advice does not by itself render his jury waiver invalid,

Appellant could not have waived the rights afforded by the Hurst decisions because

at the time of his jury waiver, he had no recognized right to unanimous jury factfinding in capital sentencing. In Halbert v. Michigan, 545 U.S. 605, 623 (2005), the

United States Supreme Court reaffirmed that defendants cannot waive rights that are

not recognized by the courts at the time of the waiver. In Halbert, the Court rejected

the State’s contention that the defendant waived his right to appointed appellate

counsel, despite the fact that at the time of the alleged waiver, the right to appointed

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appellate counsel had not yet been recognized. Id. The Supreme Court’s ruling in

Halbert is consistent with earlier decisions explaining that “[a] waiver is ordinarily

an intentional relinquishment or abandonment of a known right or privilege,”

Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (emphasis added), and that waivers of

“constitutional rights in the criminal process generally must be a knowing, intelligent

act done with sufficient awareness of the relevant circumstances,” Iowa v. Tovar,

541 U.S. 77, 81 (2004) (citing Brady v. United States, 397 U.S. 742, 748 (1970))

(internal quotation marks omitted). When in doubt, “courts indulge every reasonable

presumption against waiver of fundamental constitutional rights and [] do not

presume acquiescence in the loss of fundamental rights.” Johnson, 304 U.S. at 464

(internal quotation marks omitted).

As in Halbert, Appellant could not have waived a right that had not yet been

recognized at the time of the jury waiver. At the time of Appellant’s jury waiver,

the right to unanimous jury fact-finding in Florida capital sentencing had not yet

been recognized. A pre-Hurst jury waiver involved giving up only the right to a jury

that would make an advisory, generalized recommendation to the judge by a bare

majority vote. So, at the time of his jury waiver, Appellant could only waive his

right to a generalized, majority-vote jury recommendation, not the right to binding

unanimous jury fact-finding. Today, the right to binding unanimous jury factfinding in Florida capital sentencing has been recognized, as the decisions in Hurst

57a

v. Florida and Hurst v. State make clear, and the right is retroactively applicable to

those, like Appellant, whose death sentences became final after Ring. And under

Halbert, Appellant did not knowingly waive that right. To the extent Mullens

conflicts with Halbert by approving the denial of Hurst relief to defendants who

waived a penalty jury without knowledge of the right that would be recognized in

the Hurst decisions, Halbert and federal law should control.10

Because the current record and federal precedent provide a

sufficient basis to conclude that Appellant’s waiver is invalid, and

because the Hurst decisions are retroactive to Appellant and

harmless-error analysis in this case would be impermissibly

speculative, Appellant should be granted Hurst relief

Because the current record is sufficient for this Court to conclude that

Appellant’s jury waiver is invalid in the Hurst context, Appellant should be granted

relief. As explained in Section I, the State conceded below that the Hurst decisions

There are other reasons to doubt the continuing validity of Mullens that are evident

from the Court’s opinion itself. For example, Mullens cites to cases from other

jurisdictions to show that “[o]ther states have reached similar conclusions in the

context of capital sentencing. In states where defendants who pleaded guilty to

capital offenses automatically proceeded to judicial sentencing, courts have held that

Ring did not invalidate their guilty plea and associated waiver of jury factfinding.”

Mullens, 197 So. 3d at 38. But, in most of those cases, the defendants, unlike

Appellant and other Florida defendants, already had state statutory rights to jury factfinding at sentencing that they had explicitly waived. See, e.g., State ex rel. Taylor

v. Steele, 341 S. W. 3d 634 (Mo. 2011); State v. Piper, 709 N.W. 2d 783, 805 (S.D.

2006); State v. Downs, 604 S.E.2d 377, 380 (2004); Lewis v. Wheeler, 609 F.3d 291

(4th Cir. 2010); Colwell v. State, 59 P.3d 463, 473 (Nev. 2002) (waivers by

defendants who already had state statutory right to penalty-phase jury sentencing).

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apply retroactively to Appellant because his death sentences became final in 2004,

after Ring. See Mosley, 209 So. 3d 1248; see also ROA at 148.

In addition, Appellant’s Hurst claim is not impeded by the “harmless error”

doctrine. Because the unconstitutional statute caused Appellant’s counsel to advise

him to waive a jury, there is no jury recommendation this Court can subject to its

current harmless-error analysis, which looks to whether the jury was unanimous in

recommending death. See, e.g., Hurst v. State, 202 So. 3d at 68; Dubose, 210 So.

3d at 657. Without a jury recommendation, there is no reliable basis for this Court

to conclude beyond a reasonable doubt whether a jury in a constitutional proceeding

would have found all of the facts necessary to impose a death sentence. This Court’s

precedent does not permit speculation as to whether a hypothetical jury would

unanimously find beyond a reasonable doubt that (1) specific aggravating factors

were proven, (2) the aggravators were sufficient to impose the death penalty, and (3)

the aggravators were not outweighed by the mitigation. See Hurst v. State, 202 So.

3d at 69. Engaging in such speculation “would be contrary to [the Court’s] clear

precedent governing harmless error review.”

Id.

This is particularly true in

Appellant’s case, which contains extensive mitigation that surely could have

convinced at least one reasonable juror to vote for life. After all, the trial judge found

more than 20 mitigating circumstances, including Appellant’s lack of prior criminal

history, his decorated service in Desert Storm, and his diagnosis of Gulf War

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Syndrome. See supra at 3 & n.2. As detailed in Appellant’s Rule 3.851 motion, the

mitigating circumstances arising from Appellant’s military service certainly would

have persuaded at least some jurors in a post-Hurst proceeding that a life sentence

was more appropriate than a death sentence. See ROA at 61-65.

Because there is no dispute that Hurst applies retroactively to Appellant, and

under this Court’s precedent it would be inappropriate to undertake what would

necessarily be a purely speculative harmless-error analysis, relief should be granted.

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CONCLUSION

Appellant respectfully asks this Court to vacate the circuit court’s order and

remand for an evidentiary hearing on the validity of his jury waiver to preclude Hurst

relief, or allow a new penalty phase proceeding that complies with the Hurst

decisions. Appellant also requests the opportunity for full briefing under the normal

rules and for oral argument.

Respectfully submitted,

/s/ Clyde M. Taylor, Jr.

Clyde M. Taylor, Jr.

Taylor & Taylor, LLC

2303 N. Ponce De Leon Blvd., Ste. L

St. Augustine, FL 32084

ct@taylor-taylor-law.com

(904) 687-1630

Florida Bar No. 129747

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2017, the foregoing was electronically

served via the e-portal to Clyde Taylor at ct@taylor-taylor-law.com, and Assistant

Attorney General Charmaine Millsaps at charmaine.millsaps@myfloridalegal.com

and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

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ATTACHMENTS

62a

ATTACHMENT A

63a

STATE OF FLORIDA

)

COUNTY OF LEON

)

Declaration of Kimberly Sisko Ward

I, Kimberly Ward, declare on this

day of February, 2017, and pursuant to 28

U.S.C.§1746, that the following is true and correct.

1. My name is Kimberly Sisko Ward. I am an attorney licensed to practice in

the State of Florida. My husband at the time and I represented Jeffrey Glenn

Hutchinson at his 2001 trial in which Mr. Hutchinson was convicted in

Okaloosa County of four counts of first-degree murder and sentenced to

death on three counts. In particular, I was responsible for the penalty-phase.

All of our decisions and advice to Mr. Hutchinson were affected by the

Florida capital sentencing statute under which we operated.

2. At the time of trial, Mr. Hutchinson was subjected to an unconstitutional

sentencing statute that had a majority of jurors provide an advisory

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recommendation to the judge, who made the sentencing decision. The jurors

were to be told that their recommendation was advisory and the judge alone

would be responsible for sentencing Mr. Hutchinson to death or life. My

advice to Mr. Hutchinson to waive a penalty phase jury was based on that

statute: i.e., on Florida's standard jury instructions and the death-sentencing

scheme in place in 2001. The unconstitutional law had an effect on our

investigation, how we prepared our defense and on our advice to Mr.

Hutchinson to waive the jury. We anticipated that Judge Barron would

instruct the jury with the unconstitutional statutory language as is evident by

the pre-trial motions we filed challenging the constitutionality of Florida's

death sentencing statutes, which were all denied.

3. After seeing the jury at the guilt phase, we concluded we would not get a

majority to vote for life; so, we advised our client to waive a jury. Our

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thinking and advice to our client would have been different if we were in a

post-Hurst situation requiring findings be made by the jury unanimously.

4. Had this trial taken place under a sentencing scheme as required by Hurst v.

Florida and Hurst v. State, we would have given different advice to Mr.

Hutchinson. We would not have advised him to waive a jury because the

jury's role is different when it is instructed that it is solely responsible for

finding sufficient aggravating circumstances, considering mitigating factors

and imposing a death sentence. This different advice would have affected

Mr. Hutchinson's decision on whether to waive a penalty phase jury, and I

believe that Mr. Hutchinson would not have waived a jury.

5. Mr. Hutchinson did not want to receive a death sentence. He accepted our

advice to waive a jury after we explained that it was the judge who would be

imposing the sentence and, thus, a non-unanimous jury recommendation

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would be pointless. Our advice was based on the scheme then in effect, preHurst, in Florida.

6. Similarly, our investigation and preparation would have been different had

we been trying the penalty case in a unanimous jury setting, as we would

have done post-Hurst.

7 I understand that my co-counsel is providing a similar affidavit describing

this matter.

8. I hereby certify that the facts set forth are true and correct to the best of my

personal knowledge, information and belief, subject to the penalty of

perjury, pursuant to 28 U.S.C. §1746.

Kimberly Sisko Ward (formerly Kimberly

Sisko Cobb)

Date: February_/_d_, 2017

KARENJ.CHI

Commission # FF 986548

EgissAprH27,2020

samanwrem«rue.sosas.nts

67a

ATTACHMENT B

68a

STATE OF FLORIDA

)

COUNTY OF UNION

)

Declaration of Jeffrey Glenn Hutchinson

I, Jeffrey Glenn Hutchinson, declare on this / day of February, 2017, and pursuant

to 28 U.S.C.§1746, that the following is true and correct.

1. My name is Jeffrey Glenn Hutchinson. In 2001, I was convicted in

Okaloosa County of four counts of first-degree murder and sentenced to

death on three counts. I was represented at trial by Stephen and Kimberly

Cobb. I had a jury trial for guilt phase, but my attorneys convinced me that I

should waive a jury for penalty phase. All of my decisions were based on

the advice of counsel. Counsel told me that under Florida law in effect at

the time, the jury could only give an advisory "majority-vote"

recommendation to the judge. They would not be responsible for the

sentencing findings. These findings about the aggravators would be made

by the judge. I understood this from my counsel and it was on their advice,

based on the law at the time that I decided to waive a jury and have the

judge, who would make the ultimate decision anyway, decide my sentence.

2. After watching the jury at guilt phase, my attorneys told me our ability to get

a majority ofjurors in our favor was impossible, so they advised me to

69a

waive a penalty phase jury. This was because of Florida's standard jury

instructions and the death-sentencing scheme in place in 2001.

3. I made it clear to my attorneys that I did not want to receive a death

sentence. I accepted their advice to waive a jury after their explanation that

it was the judge who would be imposing the sentence and the jury was

essentially superfluous. I discussed the matter with my family and we

decided to take their advice.

4. Had this trial taken place under a sentencing scheme as required by Hurst v.

Florida and Hurst v. State, I would not have agreed to waive a jury if I knew

the jury's role was to make unanimous, binding findings on aggravating

circumstances, mitigating factors and whether to impose a death sentence.

5. I would not have agreed to waive my penalty phase jury if I had known that

we only had to convince one juror for life instead of a majority. In a

unanimous jury setting, I would not have waived my constitutional right to

have a penalty phase jury find the sufficiency of the aggravators or make a

unanimous recommendation for death. I would have asked my lawyers to

present all of my mitigating evidence if it was a setting where a unanimous

jury decides.

70a

6. I hereby certify that the facts set forth are true and correct to the best of my

personal knowledge, information and belief, subject to the penalty of

perjury, pursuant to 28 U.S.C. §1746.

FURTHER AFFIANT SAYETH NAUGHT.

Jeffrey Glenn Hutchinson

Sworn and subscribed before me this d of February, 2017, by

Jeffrey Glenn Hutchinson, who i

on ly known me or has

produced the following identification

Notary Public, State of Florida

My Commission Expires:

Notary Public State of Florida

Terri L Backhus

p res

18 20

71a

EXHIBIT 6

72a

Filing # 61558492 E-Filed 09/14/2017 05:33:08 PM

In the Supreme Court of Florida

JEFFREY GLENN HUTCHINSON,

Appellant,

RECEIVED, 09/14/2017 05:33:30 PM, Clerk, Supreme Court

CASE NO. SC17-1229

STATE OF FLORIDA,

Appellee.

________________________________/

ON APPEAL FROM THE CIRCUIT COURT

OF THE FIRST JUDICIAL CIRCUIT,

IN AND FOR OKALOOSA COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI

ATTORNEY GENERAL

CHARMAINE M. MILLSAPS

SENIOR ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3300

COUNSEL FOR THE STATE

primary email:

capapp@myfloridalegal.com

secondary email:

charmaine.millsaps@myfloridalegal.com

73a

TABLE OF CONTENTS

PAGE(S)

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE I

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE

SUCCESSIVE 3.851 MOTION RAISING A SIXTH AMENDMENT RIGHT

TO A JURY TRIAL CLAIM BASED ON HURST V. FLORIDA, 136 S.CT.

616 (2016), AND HURST V. STATE, 202 SO.3D 40 (FLA. 2016), IN A

CASE INVOLVING A WAIVER OF THE PENALTY PHASE JURY?

(Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The postconviction court’s ruling. . . . . . . . . . . . . . . . . . . . . . . . . . 6

Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Waiver of the right to a penalty phase jury. . . . . . . . . . . . . . . . 8

Validity of the waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Waivers and subsequent changes in the law. . . . . . . . . . . . . . . 11

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF FONT AND TYPE SIZE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

-i-

74a

TABLE OF CITATIONS

CASES

PAGE(S)

Apprendi v. New Jersey,

530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,15

Arizona v. Rumsey,

467 U.S. 203 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Barnes v. State,

124 So.3d 904 (Fla. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Blakely v. Washington,

542 U.S. 296 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bottoson v. Moore,

833 So.2d 693 (Fla. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Brady v. United States,

397 U.S. 742 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12,13,14,15

Brant v. State,

197 So.3d 1051 (Fla. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Brown v. State,

521 So.2d 110 (Fla. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Covington v. State,

2017 WL 3764377 (Fla. Aug. 31, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . 8,11

Davis v. State,

207 So.3d 142 (Fla. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Evans v. Sec’y, Fla. Dept. of Corr.,

699 F.3d 1249 (11th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Halbert v. Michigan,

545 U.S. 605 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13,14

Haynes v. United States,

390 U.S. 85 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hurst v. Florida,

136 S.Ct. 616 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hurst v. State,

202 So.3d 40 (Fla. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hutchinson v. State,

882 So.2d 943 (Fla. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,7

- ii -

75a

Hutchinson v. Florida,

2010 WL 3833921 (N.D.Fla. Sept. 28, 2010) . . . . . . . . . . . . . . . . . . . . . . . . 2

Iowa v. Tovar,

541 U.S. 77 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Martinez v. Ryan,

566 U.S. 1 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

McMann v. Richardson,

397 U.S. 759 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12,14,15

Mullens v. State,

197 So.3d 16 (Fla. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ring v. Arizona,

536 U.S. 584 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,10

Seibert v. State,

64 So.3d 67 (Fla. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Shepard v. United States,

544 U.S. 13 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Ballard,

956 So.2d 470 (Fla. 2d DCA 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tedder v. State,

322 So.2d 908 (Fla.1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Adams,

814 F.3d 178 (4th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Booker,

543 U.S. 220 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15

United States v. Copeland,

707 F.3d 522 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Green,

405 F.3d 1180 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Grinard-Henry,

399 F.3d 1294 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,15

United States v. Lockett,

406 F.3d 207 (3rd Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Palacios-Casquete,

55 F.3d 557 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

- iii -

76a

United States v. Ruiz,

536 U.S. 622 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13,14,15

United States v. Saac,

632 F.3d 1203 (11th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Sahlin,

399 F.3d 27 (1st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Sanchez,

269 F.3d 1250 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Vela,

740 F.3d 1150 (7th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Walton v. State,

847 So. 2d 438 (Fla. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Williams v. State,

595 So.2d 936 (Fla. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wright v. State,

213 So.3d 881 (Fla. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Young v. United States,

124 F.3d 794 (7th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

OTHER AUTHORITIES

Rule 9.210(b), Fla. R. App. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rule 3.851, Fla. R. Crim P. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

- iv -

77a

PRELIMINARY STATEMENT

Appellant, JEFFREY GLENN HUTCHINSON, the defendant in the trial court,

will be referred to as appellant or by his proper name. Appellee, the State of

Florida, will be referred to as the State.

Pursuant to Rule 9.210(b), Fla. R. App. P. (1997), this brief will refer to a

volume according to its respective designation within the Index to the Record on

Appeal. A citation to a volume will be followed by any appropriate page number

within the volume. The symbol "IB" will refer to appellant’s initial brief and will

be followed by any appropriate page number. All double underlined emphasis is

supplied.

STATEMENT OF THE CASE AND FACTS

Hutchinson murdered his live-in girlfriend, Renee Flaherty, and her three

young children: Logan, Amanda, and Geoffrey. Hutchinson v. State, 882 So.2d 943,

948-49 (Fla. 2004). The jury convicted him of four counts of first-degree murder

with a firearm. Id. at 948. Hutchinson waived his right to a penalty phase jury but

presented mitigation to the trial judge at the bench penalty phase. Id. On January

21, 2001, the trial court conducted a colloquy, found the waiver voluntary, and

excused the jury. Id. at 949. He was sentenced to life imprisonment for the

murder of Renee Flaherty and to death for the murder of each of the three

children. Id. The trial court found two aggravating circumstances for the murders

of Logan and Amanda: 1) previously convicted of another capital felony for the

murders of the other children and 2) the victim was less than 12 years of age, but

found three aggravating circumstances for the murder of Geoffrey Flaherty: 1)

previously convicted of another capital felony for the murders of the other

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78a

children; 2) the victim was less than 12 years of age; and 3) heinous, atrocious,

or cruel (HAC).

On appeal to the Florida Supreme Court, Hutchinson raised 10 issues.

Hutchinson, 882 So.2d at 949-50. The Florida Supreme Court affirmed the four

convictions of first-degree murder and affirmed the three death sentences for the

murders of the three children. Id. at 961.

In October of 2005, Hutchinson filed a 3.851 motion for postconviction relief

in state trial court. Hutchinson v. State, 17 So.3d 696, 699 (Fla. 2009). A second

amended

postconviction

motion

was

filed

after

Hutchinson’s

original

postconviction counsel withdrew and the trial court appointed new postconviction

counsel. Id. at 699. Following an evidentiary hearing on some of the claims, the

trial court denied the motion for postconviction relief. State v. Hutchinson, 2008

WL 8948638 (Fla. Cir. Ct. Jan. 3, 2008).

In his postconviction appeal to the Florida Supreme Court, Hutchinson raised

three issues. Hutchinson v. State, 17 So.3d 696, 700 (Fla. 2009). The Florida

Supreme Court affirmed the denial of postconviction relief. Id. at 704.

On July 24, 2009, Hutchinson filed a pro se federal habeas petition in district

court. (Doc. #1). On November 23, 2009, habeas counsel Todd Doss, filed an

amended habeas petition. (Doc. #19). The amended petition raised five grounds.

On December 13, 2009, Respondents filed a motion to dismiss the petition as

untimely. The district court granted the motion and dismissed the amended

petition as untimely. Hutchinson v. Florida, 2010 WL 3833921 (N.D. Fla. Sept. 28,

2010).

The Eleventh Circuit affirmed the dismissal of Hutchinson’s original habeas

petition as being untimely, finding that equitable tolling did not apply. Hutchinson

v. Florida, 677 F.3d 1097 (11th Cir. 2012). Hutchinson then filed a petition for

writ of certiorari in the United States Supreme Court raising three issues related

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to equitable tolling. On October 9, 2012, the United States Supreme Court denied

the petition. Hutchinson v. Florida, 568 U.S. 947 (2012) (No. 12-5582).

In 2014, Hutchinson filed a pro se rule 60(b) motion to reopen his capital

federal habeas case based on Martinez v. Ryan, 566 U.S. 1 (2012). The federal

district court then appointed the capital habeas unit (CHU) as federal habeas

counsel of record. The 60(b)(6) motion is still pending in federal court and is being

stayed pending the outcome of this appeal. (Doc. #70).

On January 11, 2017, Hutchinson, represented by registry counsel Clyde M.

Taylor and Billy Nolas of the Capital Habeas Unit (CHU) of the Federal Defender’s

Office, filed a successive 3.851 motion for postconviction relief in this capital case

raising a claim based on Hurst v. Florida, 136 S.Ct. 616 (2016) (Hurst v. Florida),

and Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst II), in the state court. (Succ.

PC at 46-66). On January 27, 2017, the State filed an answer to the successive

motion asserting the motion should be summarily denied because Hutchinson

waived any right to Hurst relief by waiving his penalty phase jury. (Succ. PC at

67-81). On March 29, 2017, Hutchinson filed a reply. (Succ. PC at 115-138). On

May 10, 2017, the trial court held a case management conference on the

successive motion. (Succ. PC at 140-157). On May 30, 2017, the trial court

summarily denied the successive motion. (Succ. PC at 158-174).

This appeal follows.

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SUMMARY OF ARGUMENT

Hutchinson asserts that his death sentence violates Hurst v. Florida, 136 S.Ct.

616 (2016) (Hurst v. Florida), and Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst

II). But he waived any right to Hurst relief by waiving his penalty phase jury.

Under this Court’s precedent, a defendant who waives his right to a penalty phase

jury is not entitled to any Hurst relief. Mullens v. State, 197 So.3d 16, 38-40 (Fla.

2016). In this Court’s words, a defendant may not “subvert the right to jury

factfinding by waiving that right and then suggesting that a subsequent

development in the law has fundamentally undermined his sentence.” Mullens,

197 So.3d at 40. The Hurst claim was waived.

Contrary to opposing counsel’s attack on the validity of the waiver, subsequent

changes in the law do not render prior waivers invalid. As the United States

Supreme Court has explained, a defendant who waives a proceeding or right does

so under the current law. And those waivers remain valid regardless of later

developments in the law. So, the waiver of the penalty phase jury remains valid

in the wake of Hurst. The trial court properly summarily denied the successive

postconviction motion based on the waiver and this Court’s precedent.

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ARGUMENT

ISSUE I

WHETHER THE TRIAL COURT PROPERLY SUMMARILY DENIED THE

SUCCESSIVE 3.851 MOTION RAISING A SIXTH AMENDMENT RIGHT TO

A JURY TRIAL CLAIM BASED ON HURST V. FLORIDA, 136 S.CT. 616

(2016), AND HURST V. STATE, 202 SO.3D 40 (FLA. 2016), IN A CASE

INVOLVING A WAIVER OF THE PENALTY PHASE JURY? (Restated)

Hutchinson asserts that his death sentence violates Hurst v. Florida, 136 S.Ct.

616 (2016) (Hurst v. Florida), and Hurst v. State, 202 So.3d 40 (Fla. 2016) (Hurst

II). But Hutchinson waived any right to Hurst relief by waiving his right to a jury

at the penalty phase. Under this Court’s precedent, a defendant who waives his

right to a penalty phase jury is not entitled to any Hurst relief. Mullens v. State,

197 So.3d 16, 38-40 (Fla. 2016). In this Court’s words, a defendant may not

“subvert the right to jury factfinding by waiving that right and then suggesting

that a subsequent development in the law has fundamentally undermined his

sentence.” Mullens, 197 So.3d at 40. Contrary to opposing counsel’s attack on

the validity of the waivers, subsequent changes in the law do not render prior

waivers invalid. A waiver remains valid regardless of later developments in the

law.

The trial court properly summarily denied the successive postconviction

motion based on the waiver and this Court’s precedent.

Standard of review

The standard of review for a summary denial of a postconviction motion is de

novo. Because a trial court’s decision to summarily deny a postconviction motion

is “ultimately based on written materials before the court, its ruling is tantamount

to a pure question of law, subject to de novo review.” Barnes v. State, 124 So.3d

904, 911 (Fla. 2013) (citing Seibert v. State, 64 So.3d 67, 75 (Fla. 2010)).

Furthermore, the scope of a waiver is a question of law and questions of law are

reviewed de novo. United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016)

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82a

(stating that the validity and scope of appellate waivers are reviewed de novo). The

standard of review, therefore, is de novo.

The postconviction court’s ruling

On January 11, 2017, Hutchinson file a 3.851 successive postconviction

motion raising a claim based on Hurst v. Florida and Hurst II in the state trial

court. (Succ. PC at 46-66). On January 27, 2017, the State filed an answer to the

successive Hurst postconviction motion asserting that the successive motion

should be summarily denied because Hutchinson waived any right to Hurst relief

by waiving his penalty phase jury. (Succ. PC at 67-81).

The State cited Mullens

v. State, 197 So.3d 16, 38-40 (Fla. 2016), and Wright v. State, 213 So.3d 881, 903

(Fla. 2017), in support of its argument. (Succ. PC at 74-75). On March 29, 2017,

Hutchinson filed a reply arguing that the waiver was not knowing, intelligent, and

voluntary due to ineffectiveness of counsel in advising him to waive the jury at the

penalty phase. (Succ. PC at 115-138). Hutchinson relied on an affidavit from

penalty phase counsel, Kimberly Ward, claiming her advice to waive the penalty

phase was based on the law at the time. (Succ. PC at 131-134).

On May 10, 2017, the trial court held a case management conference on the

successive motion at which the Court heard the arguments of counsel regarding

the Hurst motion. (Succ. PC at 140-157). Billy Nolas of the CHU presented the

argument for Hutchinson. (Succ. PC at 141). The State emphasized the waiver

of the penalty phase jury during its presentation. (Succ. PC at 147-148). The

State also noted, that in a waiver case, a court cannot perform a harmless error

analysis on the Hurst error because there was no jury recommendation. (Succ. PC

at 148-149).

On May 30, 2017, the trial court summarily denied the Hurst claim based on

the waiver. (Succ. PC at 158-174). The trial court noted that Hutchinson had

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83a

waived his penalty phase jury attaching the waiver colloquy at trial to its order.

(Succ. PC at 160 citing Exhibit A of the trial transcript including page 2313-2316).

The trial court cited and quoted Mullens and Brant v. State, 197 So.3d 1051, 1079

(Fla. 2016), in support of its ruling that a defendant who waives a penalty phase

jury is not entitled to Hurst relief. (Succ. PC at 160). The trial court found that the

“Defendant is not entitled to Hurst relief.” (Succ. PC at 161). Alternatively, the

trial court rejected any ineffectiveness claim for epnalty phase counsel advising

Hutchinson to waive the penalty phase jury because counsel is not ineffective for

failing to anticipate changes in the law, such as Hurst. (Succ. PC at 161 citing

Walton v. State, 847 So.2d 438, 445 (Fla. 2003)).1

The trial court summarily

denied the successive motion. (Succ. PC at 161).

Merits

Hutchinson waived his Hurst claim by waiving his right to a penalty phase

jury. At the penalty phase, Hutchinson waived the jury. Hutchinson, 882 So.2d

at 948. Under this Court’s precedent, a defendant who waives his right to a

penalty phase jury is not entitled to any Hurst relief.

The trial court accurately characterized the claim that penalty phase

counsel should not have advised Hutchinson to waive the penalty phase jury as

a claim of ineffective assistance of counsel, opposing counsel’s protests to the

contrary notwithstanding. This Court has never remanded a Hurst claim for

factual development at an evidentiary hearing in any of the dozens of such cases

where the issue was raised despite repeated invitations by the defense bar to do

so. Nor has this Court remanded cases raising Hurst claims involving waivers for

evidentiary hearings and certainly did not do so in Covington v. State, 2017 WL

3764377, *14 (Fla. Aug. 31, 2017) (No. SC15-1252). The interaction between

Hurst and Mullens is a pure issue of law that does not require any factual

development.

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Waiver of the right to a penalty phase jury

In Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016), the Florida Supreme

Court rejected a Hurst claim in a case where the defendant had waived his penalty

phase jury. Mullens pleaded guilty to two counts of first-degree murder and one

count of attempted first-degree murder and waived his right to a penalty phase

jury. The Florida Supreme Court observed that, regardless of the exact scope and

nature of the rights established in Hurst v. Florida, the defendant was entitled to

no relief because he waived the penalty phase jury. Mullens, 197 So.3d at 38. The

Florida Supreme Court observed that the United States Supreme Court in Hurst

v. Florida “said nothing” about waiving the rights established by Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), but the

United States Supreme Court, in the non-capital context, had stated that “nothing

prevents a defendant from waiving his Apprendi rights” and that even “a defendant

who stands trial may consent to judicial factfinding as to sentence

enhancements.” Id. at 38 (quoting Blakely v. Washington, 542 U.S. 296, 310

(2004)). The Florida Supreme Court observed that “accepting such an argument

would encourage capital defendants to abuse the judicial process by waiving the

right to jury sentencing and claiming reversible error upon a judicial sentence of

death. Id. at 40. The Florida Supreme Court wrote that “Mullens cannot subvert

the right to jury factfinding by waiving that right and then suggesting that a

subsequent development in the law has fundamentally undermined his sentence.”

Id. at 40. The Florida Supreme Court denied any Hurst relief. See also Covington

v. State, 2017 WL 3764377, *14 (Fla. Aug. 31, 2017) (No. SC15-1252) (stating that

a defendant “who has waived the right to a penalty phase jury is not entitled to

relief under Hurst” citing Mullens); Wright v. State, 213 So.3d 881, 903 (Fla. 2017)

(rejecting a Hurst claim because the defendant waived his penalty phase jury

citing Mullens); Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016) (rejecting a Hurst

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claim in the postconviction context due to defendant’s waiver of his right to a

penalty phase jury citing and quoting Mullens).

Opposing counsel is ignoring this Court’s statement in Mullens that a

defendant “cannot subvert the right to jury factfinding by waiving that right and

then suggesting that a subsequent development in the law has fundamentally

undermined his sentence.” Mullens, 197 So.3d at 40. It is this logic that is at the

core of this Court’s decision in Mullens and it is this logic that opposing counsel

does not address in his brief.

A defendant who waives a jury trial has waived his Sixth Amendment right to

a jury trial, which is the basis for Hurst v. Florida and Hurst II in the first place.

Cf. Shepard v. United States, 544 U.S. 13, 16 (2005) (noting that sentencing a

defendant based on facts that the defendant assented to during the plea colloquy

does not violate Apprendi). This claim is akin to a defendant insisting on a bench

trial after a waiver colloquy and then asserting on appeal that the bench trial

violated his right to a jury trial. A defendant may not waive a penalty phase jury

and then insist on his rights to jury findings.

Furthermore, due to the waiver, this Court cannot conduct a harmless error

analysis. Under this Court’s current precedent, this Court looks to whether the

jury’s final recommendation of death was unanimous to determine if the Hurst

error is harmless. Davis v. State, 207 So.3d 142 (Fla. 2016). But, in a case where

the defendant has waived a penalty phase jury, obviously, there is no jury vote.

This Court cannot conduct its standard harmless error analysis in this case and

that inability is due to the defendant’s own conduct of waiving the penalty phase

jury.

The result of adopting opposing counsel’s position would be that a

defendant who waived the penalty phase jury would automatically obtain Hurst

relief without any harmless error review. IB at 15. Such a defendant would be in

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a better position than a defendant who did not waive his jury but whose jury

recommended death.

Hutchinson’s claim that he is entitled to Hurst relief regardless of his waiver

of the penalty phase jury is contrary to this Court’s controlling precedent. Mullens

controls and mandates denial of this claim.

Validity of the waiver

Hutchinson’s waiver of the penalty phase jury was knowing, intelligent, and

voluntary. Under the pre-Hurst law, a jury’s recommendation was not some sort

of empty formality. It was nearly impossible for a trial judge to override a jury’s

recommendation of life under Tedder v. State, 322 So.2d 908 (Fla. 1975). As the

Eleventh Circuit observed, this Court’s “stringent application” of the Tedder

standard meant that the last override affirmed on appeal was over 20 years ago.

Evans v. Sec'y, Fla. Dept. of Corr., 699 F.3d 1249, 1258 (11th Cir. 2012). But a

trial court could, as a practical matter, totally ignore a jury’s recommendation of

death because the State could not appeal such a ruling under double jeopardy

principles.2

The law in Florida at the time of Hutchinson’s waiver in 2001 was

well established — a jury recommendation mattered a great deal. And all this was

true even before Ring was decided in 2002, much less before Hurst was decided

Williams v. State, 595 So.2d 936 (Fla. 1992) (holding that the Double

Jeopardy Clause prohibits a new penalty phase where the judge had imposed a

life sentence at the first penalty phase citing Brown v. State, 521 So.2d 110 (Fla.

1988)); Arizona v. Rumsey, 467 U.S. 203 (1984) (concluding that the Double

Jeopardy Clause barred a new penalty phase where trial judge had found no

aggravating circumstances and sentenced the defendant to life at the first penalty

phase because a life sentence constitutes an “acquittal of the death penalty”);

State v. Ballard, 956 So.2d 470, 475 (Fla. 2d DCA 2007) (Villanti, J., concurring)

(noting that it is only a judge's decision to override a jury's recommendation of life

that is appealable; conversely, a decision to override a jury's recommendation of

death is not appealable).

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in 2016. Hutchinson waived his right to a penalty phase jury despite the clear

importance of the jury’s recommendation in Florida’s capital jurisprudence at the

time of his waiver.

Waivers and subsequent changes in the law

Opposing counsel asserts that the waiver of the jury trial in this case was

involuntary because Hutchinson could not have anticipated the change in the law

that Hurst wrought. Opposing counsel is actually making the same arguments

that this Court rejected in Mullens and Covington. Indeed, Covington in his reply

brief cited to, and relied heavily, on Halbert v. Michigan, 545 U.S. 605 (2005), just

as opposing counsel does in this case. See Covington, SC15-1252, RB at 26. And

Covington distinguished the other state cases relied on by this Court in Mullens

in his reply brief as well, just as opposing counsel does in his brief. Covington,

SC15-1252, RB at 26-31.

Not only did this Court reject this argument but the United States Supreme

Court has rejected it as well. The United States Supreme Court has held that

pleas are not rendered involuntary due to later changes in the law. McMann v.

Richardson, 397 U.S. 759, 773-74 (1970).

Richardson argued his plea was

involuntary when a new decision regarding coerced confessions was issued by the

United States Supreme Court. Richardson argued that he could now challenge

his confession under the new decision instead of having to plead guilty. The

United States Supreme Court rejected the argument that subsequent changes in

the law rendered an earlier plea involuntary. The Supreme Court explained that

when a defendant waives his right to a jury trial “he does so under the law then

existing.” Richardson, 397 U.S. at 774. The High Court observed that, regardless

of whether a defendant might have “pleaded differently” had the later decided

cases been the law at the time of the plea, “he is bound by his plea.” Id. The Court

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noted the damage that would be wrought on the finality of pleas if courts

permitted later changes in the law to be a basis for claiming a plea was

involuntary. See also Brady v. United States, 397 U.S. 742, 757 (1970) (rejecting

an argument that the plea was involuntary because it was based in part on a

statute that was declared unconstitutional years later because the fact the

defendant did not anticipate a change in the law “does not impugn the truth or

reliability of his plea”); United States v. Ruiz, 536 U.S. 622, 630 (2002) (stating

that the Constitution, in respect to a defendant’s awareness of relevant

circumstances,

does

not

require

complete

knowledge

the

relevant

circumstances, but permits a court to accept a guilty plea, with its accompanying

waiver of various constitutional rights, despite various forms of misapprehension

under which a defendant might labor including a defendant’s failure “to anticipate

a change in the law regarding relevant punishments”).

The federal appellate courts have followed the logic of Richardson regarding

pleas.3

As the Seventh Circuit explained, if the law allowed the defendant to get

off scot free in the event the argument later is shown to be a winner, then every

plea would become a conditional plea, with the (unstated) condition that the

defendant obtains the benefit of favorable legal developments, while the prosecutor

is stuck with the original bargain no matter what happens later. Young v. United

States, 124 F.3d 794, 798 (7th Cir. 1997). And the reasoning of the Richardson

Court applies to all types of waivers, not merely pleas, which are really a type of

United States v. Lockett, 406 F.3d 207, 214 (3rd Cir. 2005) (observing that

“the possibility of a favorable change in the law occurring after a plea agreement

is merely one of the risks that accompanies a guilty plea”); United States v. Sahlin,

399 F.3d 27, 31 (1st Cir. 2005) (stating the possibility of a favorable change in the

law occurring after a plea agreement is “one of the normal risks that accompanies

a guilty plea”).

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waiver — the waiver of a jury trial. Several federal circuits have followed the logic

of Richardson regarding appellate waivers including the Eleventh Circuit.4

The same rationale expressed by the United States Supreme Court in

Richardson, Brady, and Ruiz applies to Hutchinson’s waiver of a jury trial as well.

He was not required to foresee Hurst for his waiver of the penalty phase jury to be

valid. The validity of a waiver is not dependent on subsequent changes in the

law.5

Opposing counsel mistakenly asserts that the holding of Halbert v. Michigan,

545 U.S. 605 (2005), was a defendant cannot waive a right that has not yet been

United States v. Vela, 740 F.3d 1150 (7th Cir. 2014) (holding a defendant’s

waiver of his right to appeal was not rendered involuntary by subsequent Supreme

Court ruling citing Brady and Richardson); United States v. Copeland, 707 F.3d

522, 529 (4th Cir. 2013) (stating that a criminal defendant “cannot invalidate his

appeal waiver now to claim the benefit of subsequently issued caselaw”); United

States v. Grinard-Henry, 399 F.3d 1294, 1295 (11th Cir. 2005) (refusing to

reconsider the dismissal of an appeal based on an appellate waiver in a plea in

light of a later decision being issued in United States v. Booker, 543 U.S. 220

(2005)); United States v. Green, 405 F.3d 1180, 1190 (10th Cir. 2005) (rejecting a

claim that an appellate waiver was involuntary because the Supreme Court has

made it clear that a defendant's decision to give up some of his rights “remains

voluntary and intelligent or knowing despite subsequent developments in the law”

citing Brady and Ruiz).

Nor is it even likely that Hutchinson actually relied on pre-Hurst law as

a basis of his decision to waive a penalty phase jury. It is much more likely that

the desire to keep a jury from hearing in greater detail the gruesome facts of the

crime which included killing three young children with a Mossberg pump shotgun

which literally tore them apart was the basis of the decision to waive a penalty

phase jury rather than any real reliance on Bottoson v. Moore, 833 So.2d 693 (Fla.

2002). Even if this Court was willing to entertain a claim that subsequent

developments rendered a prior waiver involuntary, contrary to United States

Supreme Court precedent, the Court should not do so automatically but only in

those rare cases where the particular caselaw that changed was actually a critical

part of the decision to waive. Opposing counsel makes no real argument

attempting to show why he believes that Bottoson was a critical part of the

decision to waive in this particular case.

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90a

recognized by the Courts. IB at 20. But that was not the holding of Halbert. The

Court in Halbert held that the Equal Protection and Due Process clauses required

the appointment of counsel for defendants seeking first-tier review of a conviction

based on a plea or nolo contendere. The State of Michigan did contend that

Halbert had waived the newly-created right to appellate counsel by entering a plea

of nolo contendere and the Court rejected that waiver argument. Id. at 623. The

Halbert Court observed, at the time he entered his plea, Halbert “had no

recognized right to appointed appellate counsel he could elect to forgo.” Id. In a

footnote to that observation, the Supreme Court stated that a “conditional waiver,”

which it defined, as one in which a defendant agrees that, if he has a right, he

waives it was not at issue in the case because nothing in the plea colloquy

indicated that Halbert waived an “unsettled” right to appellate counsel. Id. at n.7.

The Court noted that the trial court, during the plea colloquy, did not tell Halbert,

simply and directly, that there would be no access to appointed counsel. Id. at

624. The Court wrote that a waiver must be a “knowing, intelligent act done with

sufficient awareness of the relevant circumstances.” Id. (quoting Iowa v. Tovar,

541 U.S. 77, 81 (2004), and citing Brady v. United States, 397 U.S. 742, 748

(1970)).

The Halbert Court did not overrule Richardson, Brady, or Ruiz. Moreover, the

waiver logic of Halbert does not apply to this case. Halbert involved a totally

unknown right. The right to a jury at the penalty phase in Florida was not

unknown at the time of the waiver. There was no doubt that a capital defendant

in 2001 was entitled to a jury at the penalty phase under the explicit text of

Florida’s death penalty statute. While Hurst v. Florida and Hurst II expanded those

rights, the right to a jury existed prior to either decision. While the full extent of

the constitutional right was unsettled prior to Hurst, the existence of that right

was not. The law in Florida at the time of Hutchinson’s waiver in 2001 regarding

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91a

the right to a jury at penalty phase was well established. Hutchinson knew that

he had a right to a jury trial at the penalty phase but he waived that known right.

Opposing counsel’s reliance on United States v. Saac, 632 F.3d 1203, 1208

(11th Cir. 2011), and United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th

Cir. 1995), is equally misplaced. The Eleventh Circuit in Saac stated that “a guilty

plea does not waive the right of an accused to challenge the constitutionality of the

statute under which he is convicted” citing Palacioss-Casquete, and Haynes v.

United States, 390 U.S. 85, 87 & n.2 (1968). Saac, 632 F.3d at 1208. But this

simply is not the Eleventh Circuit’s position regarding whether waivers are

rendered involuntary due to subsequent changes in the law. Regarding that issue,

which is the real issue in this case, the Eleventh Circuit, not surprisingly, follows

the United States Supreme Court’s decisions in Richardson, Brady, and Ruiz.6

Opposing counsel is mischaracterizing the issue and then citing caselaw that is

totally inapplicable to the real issue in this case.

A defendant may not claim a waiver is “unknowing” based on future changes

in the law under both Florida Supreme Court and United States Supreme Court

precedent.

Voluntariness of the waiver is determined under the law and

knowledge that exists at the time. The waiver was not rendered involuntary due

to the subsequent decision in Hurst. Hutchinson is not entitled to any Hurst relief

due to his waiver.

United States v. Cardenas, 230 Fed. Appx. 933, 935 (11th Cir. 2007)

(stating “a guilty plea is not invalidated by a later change in the law” citing United

States v. Sanchez, 269 F.3d 1250, 1283-85 (11th Cir. 2001) (en banc) (applying

Brady to reject argument that defendants' guilty pleas had been rendered

involuntary and unknowing in the light of the later decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000)); United States v. Grinard-Henry, 399 F.3d 1294, 1295

(11th Cir. 2005) (refusing to reconsider the dismissal of an appeal based on an

appellate waiver in a plea in light of a later decision being issued in United States

v. Booker, 543 U.S. 220 (2005)).

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92a

Accordingly, the trial court properly summarily denied the successive

postconviction motion.

CONCLUSION

The State respectfully requests that this Honorable Court affirm the trial

court’s summary denial of the successive postconviction motion.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

/s/ Charmaine Millsaps

CHARMAINE M. MILLSAPS

SENIOR ASSISTANT ATTORNEY

GENERAL

FLORIDA BAR NO. 0989134

OFFICE OF THE ATTORNEY GENERAL

PL-01, THE CAPITOL

TALLAHASSEE, FL 32399-1050

(850) 414-3300

primary email:

capapp@myfloridalegal.com

secondary email:

charmaine.millsaps@myfloridalegal.com

COUNSEL FOR APPELLEE

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93a

CERTIFICATE OF SERVICE

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

BRIEF has been furnished by e-portal to CLYDE M. TAYLOR, JR. of Taylor &

Taylor, LLC, 2303 N. Ponce De Leon Blvd., Suite L, St. Augustine, FL 32084;

Phone (904) 687-1630; email ct@talyor-taylor-law.com and BILLY H. NOLAS,

Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern

District of Florida, 227 N. Bronough St., Ste. 4200, Tallahassee, FL 32301-1300;

phone: (850) 942-8818; email: billy_nolas@fd.org this 14th day of September,

2017.

/s/ Charmaine Millsaps

Charmaine M. Millsaps

Attorney for the State of Florida

CERTIFICATE OF FONT AND TYPE SIZE

Counsel certifies that this brief was typed using Bookman Old Style 12 point

font.

/s/ Charmaine Millsaps

Charmaine M. Millsaps

Attorney for the State of Florida

- 17 -

94a

EXHIBIT 7

95a

Filing # 61739490 E-Filed 09/19/2017 08:51:40 PM

No. SC17-1229

IN THE

Supreme Court of Florida

___________________________________________________________

JEFFREY GLENN HUTCHINSON,

RECEIVED, 09/19/2017 08:53:26 PM, Clerk, Supreme Court

Appellant,

STATE OF FLORIDA,

Appellee.

_____________________________________________________

APPELLANT’S REPLY BRIEF

_____________________________________________________

Clyde M. Taylor, Jr.

Taylor & Taylor, LLC

2303 N. Ponce De Leon Blvd., Ste. L

St. Augustine, FL 32084

ct@taylor-taylor-law.com

(904) 687-1630

Florida Bar No. 129747

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

Counsel for Appellant

96a

TABLE OF CONTENTS

RENEWED REQUESTS FOR FULL BRIEFING

AND ORAL ARGUMENT....................................................................................1

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

The State fails to address Appellant’s argument that a remand is

appropriate for a hearing based on his challenge to the validity of his

waiver and evidentiary proffer in the circuit court....................................1

II.

The State misunderstands Mullens, which only precludes Hurst relief

based on valid or unchallenged jury waivers and does not address

waivers, like Appellant’s, that are challenged as invalid based on a

substantial evidentiary proffer.....................................................................3

III.

The State does not recognize that Appellant waived only his pre-Hurst

right to a generalized, majority-vote jury recommendation, not his postHurst right to binding, unanimous jury fact-finding..................................5

IV.

The State’s argument that defendants can waive constitutional rights that

are not yet recognized by the courts cannot be squared with United States

Supreme Court precedent or federal principles of due process..................7

The State does not dispute that Hurst applies retroactively to

Appellant, and the State correctly concedes that the “harmless error”

doctrine is not an impediment to relief in this case......................................9

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

97a

RENEWED REQUESTS FOR FULL BRIEFING AND ORAL ARGUMENT

Appellant respectfully renews his requests to allow oral argument pursuant to

Fla. R. App. P. 9.320, and for the opportunity to file a full, untruncated brief pursuant

to the standard Florida Rules of Appellate Procedure. This appeal presents important

issues of first impression regarding the need for evidentiary development where,

unlike in Mullens and this Court’s other “jury waiver” Hurst cases, the defendant

proffers evidence in the circuit court indicating that his waiver of a penalty-phase

jury is invalid because the waiver was the direct result of the unconstitutional preHurst sentencing statute’s influence on counsel’s advice to waive. These issues are

more complex than the State’s brief suggests and warrant full briefing and argument.

ARGUMENT 1

The State fails to address Appellant’s argument that a remand is

appropriate for a hearing based on his challenge to the validity of his

waiver and evidentiary proffer in the circuit court

The State’s brief fails to address Appellant’s argument that a remand is

appropriate for a hearing based on his challenge to the validity of his waiver and

evidentiary proffer in the circuit court. The State acknowledges that Appellant

proffered a declaration from trial counsel in the circuit court indicating that

Appellant’s decision to waive an “advisory” penalty-phase jury was based solely on

The State is correct that the correct standard of review is de novo. See Answer Br.

at 5-6. The circuit court’s order denying relief is entitled to no appellate deference.

98a

trial counsel’s advice, and that trial counsel’s advice was grounded entirely on

Florida’s pre-Hurst unconstitutional sentencing scheme. See Answer Br. at 6. But

the State fails to recognize the significance of this proffer as creating a mixed

question of law and fact that should trigger an evidentiary hearing under this Court’s

precedent. Brushing aside the arguments spanning the bulk of Appellant’s initial

brief in a single paragraph, the State mischaracterizes the issue of Appellant’s waiver

in the Hurst context as a “pure question of law that does not require any factual

development.” Answer Br. at 7 n.1. The State ignores the cases Appellant cited in

his initial brief, including Meeks v. Dugger, 576 So. 2d 713, 716 (Fla. 1991), and

Hall v. State, 541 So. 2d 1125, 1128 (Fla. 1989), establishing the opposite. Those

cases make clear that a hearing should be held when evidence is proffered regarding

the effect of an unconstitutional death-sentencing law on defense counsel. Initial Br.

at 12-15. And the State’s own brief highlights the need for factual development in

this case by disputing facts in Appellant’s evidentiary proffer concerning the reason

he waived. See Answer Br. at 13 n.5 (speculating that, in contrast to the declarations

Appellant proffered in the circuit court, it is not “likely that Hutchinson relied on

pre-Hurst law as a basis of his decision to waive a penalty phase jury.”). 2

The State elsewhere continues to mischaracterize Appellant’s Hurst claim as a

claim of ineffective assistance of counsel. See id. As explained in Appellant’s initial

brief, he is not arguing a claim that counsel was ineffective, but instead that counsel’s

advice to Appellant to waive a penalty jury would not have occurred in a

99a

The only case the State cites in support of its assertion that this case “does not

require any factual development” is this Court’s recent opinion in Covington v. State,

No. SC15-1252, 2017 WL 3764377 (Fla. Aug. 31, 2017).

But Covington is

inapposite because, unlike Appellant, the defendant in that case did not challenge

the validity of his waiver based on an evidentiary proffer in the circuit court. In fact,

the defendant in Covington could not have sought such evidentiary development

because Covington, like Mullens, is a direct appeal case. As the Covington defendant

noted in his initial brief, challenges to a waiver of a penalty-phase jury “should be

fleshed out in a post-conviction motion.” See id., Initial Brief of Appellant at 101 &

n.25 (filed June 27, 2016). Here, unlike in Convington, Appellant sought evidentiary

development in a Rule 3.851 proceeding and proffered evidence in support of his

request for a hearing. For the reasons discussed in Appellant’s initial brief, which

are largely unaddressed by the State, this Court should remand for a hearing.

II.

The State misunderstands Mullens, which only precludes Hurst relief

based on valid or unchallenged jury waivers and does not address

waivers, like Appellant’s, that are challenged as invalid based on a

substantial evidentiary proffer

The State misunderstands Mullens as requiring summary denial of Hurst relief

in all cases in which the defendant waived a penalty-phase jury, regardless of

whether the waiver is challenged as invalid based on a substantial evidentiary

constitutional proceeding where a single juror, as opposed to a majority of jurors,

needed to be persuaded to recommend a life sentence. See Initial Br. at 14 n.6.

100a

proffer. See Answer Br. at 4-5, 8. On the contrary, nothing in Mullens or this Court’s

other “jury waiver” cases suggests that a circuit court should ignore a defendant’s

evidentiary proffer challenging the validity of his waiver to preclude Hurst relief.

As explained in Appellant’s brief, the facts of Mullens are not present in this

case. Mr. Mullens did not, as Appellant did, accept counsel’s advice to forego at the

penalty phase the same jury that had convicted him at the guilt phase. Mr. Mullens

did not, as Appellant did, challenge the validity of his jury waiver in his Hurst

litigation, based on either the voluntariness of the waiver itself or the detrimental

effect of the unconstitutional statute on counsel’s advice to waive. Mr. Mullins did

not, as Appellant did, allege that his wavier was invalid, that he waived a penalty

jury based on the advice of counsel, that counsel’s advice was grounded entirely on

pre-Hurst law, or that he would not have waived in a post-Hurst proceeding. And

Mr. Mullins did not, as Appellant did, request an evidentiary hearing or proffer

evidence undermining the validity of his waiver. This Court evaluated whether Mr.

Mullens’s waiver was valid to bar Hurst relief without considering arguments or

evidence regarding the validity of the waiver itself.

Appellant’s case was tried before a jury at the guilt phase and, based solely

on counsel’s advice, Appellant waived presenting his penalty-phase case to that

same jury. In his Hurst claim, unlike in Mullens, Appellant challenged the validity

of the waiver, requested a hearing on the validity of the waiver as a basis to deny

101a

Hurst relief, and proffered evidence that he would develop at a hearing to establish

that the waiver is invalid as a bar to relief. Those circumstances were not present in

Mullens or in any of the other cases cited in the State’s brief, including Wright v.

State, 213 So. 3d 881 (Fla. 2017) (no evidence proffered undermining the validity

of the jury-waiver to preclude Hurst relief); Covington, 2017 WL 3764377, at *14

(same); Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016) (same). Appellant is not

“ignoring” the ruling in Mullens, as the State asserts. See Answer Br. at 9. The State

is overextending Mullens by applying it to Appellant’s distinguishable case.

The State’s concern that distinguishing Appellant’s case from Mullens would

encourage capital defendants to “abuse the judicial process” is unfounded. Answer

Br. at 8. Indeed, Appellant’s challenge to the validity of his pre-Hurst jury waiver

and his request for an evidentiary hearing are entirely consistent with this Court’s

decisions following Hitchcock v. Dugger, 481 U.S. 393 (1987). As noted above, in

cases such as Meeks, 576 So. 2d at 716, and Hall, 541 So. 2d at 1128, this Court

approved of evidentiary hearings based on the defendants’ extra-record proffer

concerning the effect of the constitutional error on defense counsel.

III.

The State does not recognize that Appellant waived only his pre-Hurst

right to a generalized, majority-vote jury recommendation, not his postHurst right to binding, unanimous jury fact-finding

The State’s brief does not recognize that Appellant’s waived only his pre-

Hurst right to a generalized, majority-vote jury recommendation, not his post-Hurst

102a

right to binding, unanimous jury fact-finding that is consistent with the Sixth

Amendment.

The State wrongly asserts that Appellant “waive[d] his Sixth

Amendment right to a jury trial, which is the basis for Hurst v. Florida and Hurst II

in the first place.” Answer Br. at 9. In fact, Appellant’s pre-Hurst jury waiver did

not constitute any surrender of his Sixth Amendment rights because Florida’s preHurst scheme did not allocate fact-finding to juries.

A pre-Hurst jury

recommendation, which is the only right Appellant could have waived at the time,

was not grounded in the beyond-a-reasonable-doubt standard and therefore does not

comport with the Sixth Amendment’s definition of a jury verdict. See Sullivan v.

Louisiana, 508 U.S. 275, 279-80 (1993). This reveals the fallacy of the State’s

analogy to “a defendant insisting on a bench trial after a waiver colloquy and then

asserting on appeal that the bench trial violated his right to a jury trial.” Answer Br.

at 9. That analogy would only make sense here if the right to jury fact-finding at the

guilt phase was not recognized at the time the defendant opted for a bench trial.

The State places undue emphasis on the fact that Florida’s unconstitutional

scheme was considered valid by this Court before Hurst. See Answer Br. at 10-11,

15. The Hurst decisions make clear that Florida’s capital sentencing scheme was

unconstitutional because defendants were not afforded their right to binding,

unanimous jury fact-finding at the penalty phase. It makes no difference in this case

that, in the State’s view, “[u]nder pre-Hurst law, a jury’s recommendation was not

103a

some sort of empty formality,” or that the State believes that a pre-Hurst jury

recommendation “mattered a great deal” despite being unconstitutional. Id. at 10,

11. What matters here is that a pre-Hurst jury recommendation did not implicate the

right to binding, unanimous jury fact-finding, and therefore Appellant’s pre-Hurst

jury waiver could not have validly surrendered that right.

IV.

The State’s argument that defendants can waive constitutional rights that

are not yet recognized by the courts cannot be squared with United States

Supreme Court precedent or federal principles of due process

The State’s argument that defendants can waive constitutional rights that are

not yet recognized by the courts cannot be squared with United States Supreme

Court precedent or federal principles of due process. As explained in Appellant’s

brief, the United States Supreme Court reaffirmed in Halbert v. Michigan, 545 U.S.

605, 623 (2005), that defendants cannot waive rights that are not recognized by the

courts at the time of the waiver. See Initial Br. at 20-22. Halbert is consistent with

earlier precedent explaining that “[a] waiver is ordinarily an intentional

relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst,

304 U.S. 458, 464 (1938) (emphasis added), and that waivers of “constitutional

rights in the criminal process generally must be a knowing, intelligent act done with

sufficient awareness of the relevant circumstances,” Iowa v. Tovar, 541 U.S. 77, 81

(2004). These federal principles, grounded in due process, apply to Appellant’s pre-

104a

Hurst jury waiver, which occurred before the right to binding, unanimous jury factfinding in Florida capital sentencing proceedings was recognized.

The State misunderstands Appellant’s arguments under Halbert.

Most

fundamentally, Appellant does not argue, as the State incorrectly asserts, that his

pre-Hurst jury waiver is now invalid “due to later changes in the law.” Answer Br.

at 11. Rather, as explained in his brief, Appellant’s argument is that his pre-Hurst

jury waiver is not a valid basis to preclude Hurst relief because (1) his decision to

waive was based solely on trial counsel’s advice, (2) counsel’s advice was grounded

entirely on Florida’s pre-Hurst unconstitutional sentencing scheme, (3) counsel

would not have advised Appellant to waive in a constitutional post-Hurst

proceeding, (4) Appellant would not have waived absent counsel’s advice, and (5)

at least one juror in a constitutional proceeding would have voted for life based on

the substantial mitigation in the case. See Initial Br. at 1. Thus, the cases cited by

the State’s brief purportedly establishing that changes in law do not by themselves

render waivers invalid are not persuasive here. See Answer Br. at 11-13 & nn. 3-5.

Contrary to the State’s selective reading, the plain language of Halbert reveals

its holding. By its terms, Halbert held exactly what Appellant described in his initial

brief: a defendant cannot waive rights not yet recognized by the courts. Halbert,

545 U.S. at 624. Although the State is correct that Halbert also stands for the

proposition that the Constitution requires appellate counsel following a no contest

105a

plea, Answer Br. at 13, Halbert’s related holding, which prevents Florida from

making the same argument here that Michigan did in Halbert, cannot be ignored. 3

And the State erroneously argues that “the waiver logic of Halbert does not

apply to this case” because Halbert “involved a totally unknown right.” Answer Br.

at 14. The State reasons that “[t]he right to a jury at the penalty phase in Florida was

now unknown at the time of the waiver.” Id. The State fails to recognize that the

right to a jury before Hurst is not the same right to a jury after Hurst. Before Hurst,

Appellant waived his right to a generalized, majority-vote jury recommendation.

The post-Hurst right to binding, unanimous jury fact-finding was not yet recognized.

The State does not dispute that Hurst applies retroactively to

Appellant, and the State correctly concedes that the “harmless error”

doctrine is not an impediment to relief in this case

The State’s brief does not dispute, and the State conceded below, that Hurst

applies retroactively to Appellant because his death sentences became final in 2004,

after Ring v. Arizona, 536 U.S. 584 (2002). See Mosley v. State, 209 So. 3d 1248

(Fla. 2016); see also ROA at 148 (counsel for the Attorney General acknowledging

that “the State agrees that Hurst is retroactive as to Mr. Hutchinson.”). The State’s

brief also correctly concedes, as the State did below, that the “harmless error”

The State’s brief at points asserts that Appellant cited certain cases and made

arguments that he never did, and then engages with those cases and arguments. See

Answer Br. at 13, 15 & nn.5-6. Because Appellant never cited to those cases or

made those arguments in his initial brief, they are not addressed in this reply.

106a

doctrine is not an impediment to relief in this case. See Answer Br. at 6 (“The State

also noted, that in a waiver case, a court cannot perform harmless error analysis on

the Hurst error because there was no jury recommendation”); id. at 9-10 (“Under

this Court’s current precedent, this Court looks to whether the jury’s final

recommendation of death was unanimous to determine if the Hurst error is harmless.

But, in a case where the defendant has waived a penalty phase jury, obviously there

is no jury vote.”) (internal citation omitted). 4

Given these concessions, remanding for a hearing on Appellant’s proffer is

critical because the only issue that remains is whether Appellant’s jury waiver is a

valid basis to preclude Hurst relief.

CONCLUSION

For the reasons above and in Appellant’s initial brief in response to this

Court’s August 22, 2017 order, Appellant respectfully asks this Court to vacate the

circuit court’s order and remand for an evidentiary hearing the validity of

Appellant’s pre-Hurst jury waiver to bar Hurst relief, or allow a new penalty phase

proceeding that comports with Hurst. Appellant also requests the opportunity for

full briefing under the ordinary appellate rules and for oral argument.

Contrary to the State’s assertion, Appellant has never argued that defendants who

waived a pre-Hurst jury should automatically receive Hurst relief. See Answer Br.

at 9-10. Rather, Appellant has argued, and the State has conceded, that this Court

cannot apply its current harmless-error analysis to his Hurst claim because that

analysis relies entirely on the vote by which the jury voted to recommend death.

107a

Respectfully submitted,

/s/ Clyde M. Taylor, Jr.

Clyde M. Taylor, Jr.

Taylor & Taylor, LLC

2303 N. Ponce De Leon Blvd., Ste. L

St. Augustine, FL 32084

ct@taylor-taylor-law.com

(904) 687-1630

Florida Bar No. 129747

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

CERTIFICATE OF SERVICE

I hereby certify that on September 19, 2017, the foregoing was electronically

served via the e-portal to Clyde Taylor at ct@taylor-taylor-law.com, and Assistant

Attorney General Charmaine Millsaps at charmaine.millsaps@myfloridalegal.com

and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

108a

EXHIBIT 8

109a

Filing # 69950829 E-Filed 03/28/2018 04:30:39 PM

IN THE SUPREME COURT OF FLORIDA

JEFFREY GLENN HUTCHINSON,

Appellant,

Case No. SC17-1229

RECEIVED, 03/28/2018 04:33:26 PM, Clerk, Supreme Court

STATE OF FLORIDA,

Appellee.

________________________________/

MOTION FOR REHEARING AND CLARIFICATION

Appellant, through counsel, moves for rehearing and clarification of this

Court’s March 15, 2018, opinion affirming the denial of relief under Hurst v.

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

Court’s March 15 decision was objectively unreasonable as a matter of federal law

and state law. Under Fla. R. App. P. 9.300(a), rehearing is appropriate because the

Court overlooked and misapprehended points of fact and law establishing that

Appellant’s waiver of a penalty jury was not a valid basis for the circuit court to

summarily deny Hurst relief, particularly in light of his evidentiary proffer below in

support of a request for a hearing. Clarification is also appropriate regarding

significant matters in Appellant’s briefs not addressed by the March 15 opinion.

The Court failed to address or even acknowledge the significant evidence

Appellant proffered below in support of his request for a hearing,

including the critical declaration of trial counsel

This Court’s March 15 opinion recognized that, “[a]lthough evidentiary

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hearings on factually based claims raised in successive rule 3.851 motions are not

automatically required, courts are encouraged to liberally allow such hearings on

timely raised claims.” Hutchinson v. State, No. SC17-1229, 2018 WL 1324791, at

*2 (Fla. Mar. 15, 2018) (emphasis added).

Despite acknowledging Florida’s

“liberal” policy regarding hearings in capital cases, the Court unreasonably affirmed

the denial of Appellant’s request for a hearing—which he had sought on the question

of whether his pre-Hurst waiver of a penalty jury should preclude Hurst relief—

despite Appellant’s proffer of significant relevant evidence below. The Court did

not address or even acknowledge Appellant’s proffered evidence in its decision.

Appellant’s proffer in the circuit court included a declaration by trial counsel

indicating that (1) Appellant waived a jury based solely on counsel’s advice, (2)

counsel’s advice was grounded entirely on Florida’s pre-Hurst scheme, (3) counsel

would not have advised Appellant to waive in a post-Hurst proceeding, and (4)

Appellant would not have waived absent counsel’s advice. Even under a more

stringent standard, Appellant should have been allowed to develop this evidence at

a hearing. Certainly in a state court system like Florida’s, where hearings are

“liberally allow[ed],” the circuit court’s summary denial was inappropriate. In

affirming the circuit court’s ruling, this Court’s March 15 decision failed to address

or even acknowledge the evidence Appellant proffered in support of his request for

a hearing, including trial counsel’s declaration.

111a

The Court’s failure to grapple with the significance of Appellant’s proffer is

particularly striking in light of the Court’s attempt to distinguish this case from

Meeks v. Dugger, 576 So. 2d 713, 716 (Fla. 1991), and Hall v. State, 541 So. 2d

1125, 1128 (Fla. 1989). The Court’s March 15 opinion recounts how the defendants

in Meeks and Hall were granted hearings after proffering affidavits regarding the

effect of the constitutional error described in Hitchcock v. Dugger, 481 U.S. 393

(1987), on their defense counsel’s approach to the penalty phase. Hutchinson, 2018

WL 1324791, at *3. The Court does not reasonably explain why Appellant should

not have been granted a similar hearing after proffering affidavits regarding the

effect of the unconstitutional Florida scheme described on defense counsel’s advice

to waive a penalty jury and Appellant’s decision to follow that advice. Instead, the

Court distinguished Meeks and Hall on the grounds that “[u]nlike Hutchinson, the

defendants in Meeks and Hall did not waive any rights,” and a “defendant’s ability

to waive a penalty phase jury did not change after Hurst.” Id.

In addition to sidestepping the issue of Appellant’s facially valid proffer, this

Court’s reasoning ignores that before Hurst, a waiver of a penalty jury meant

something very different than such a waiver means post-Hurst. Appellant waived

an advisory jury, but Appellant did not waive the right to penalty-jury fact-finding,

which did not exist in Florida at the time. When a defendant knowingly and

voluntarily waives a penalty jury under current law, he does so with the

112a

understanding that he is waiving jury fact-finding on the elements for a death

sentence. Appellant’s pre-Hurst waiver meant only that he was waiving an advisory

jury in a judge-fact-finding scheme.

The circuit court and this Court were presented with compelling evidence that

the Hurst error was the only reason that Appellant waived a penalty jury. In light of

this evidence, the appropriate course for this Court was to vacate the circuit court’s

summary affirmance and either hold that Appellant should be granted Hurst relief

based on his proffer or, at a minimum, remand for the circuit court to allow Appellant

to present his evidence at a hearing. Instead, this Court’s March 15 ignored

Appellant’s proffer and affirmed based on a faulty bright-line analysis holding that

no defendants who waived a penalty jury are entitled to review of their Hurst claims,

no matter what evidence they might provide to show that the Hurst error was the

only reason for the waiver. The Court’s decision resulted in a denial of Appellant’s

due process rights and undermines the reliability of Florida’s death sentences. The

Court should grant rehearing to correct these state and federal constitutional errors.

II.

The Court misapprehended Appellant’s arguments for Hurst relief by

wrongly construing them as an ineffective-assistance-of-counsel claim

The Court’s ineffective-assistance-of-counsel analysis is inapposite and

reflects a failure by the Court to engage Appellant’s briefs, which explicitly

disclaimed an ineffectiveness claim. See Hutchinson, 2018 WL 1324791, at *2. As

Appellant repeated explained in both the circuit court and this Court in response to

113a

mischaracterizations by the State, “Appellant is not arguing a claim that counsel was

ineffective, but instead that counsel’s advice to Appellant to waive a penalty jury

would not have occurred in a constitutional proceeding where a single juror, as

opposed to a majority of jurors, needed to be persuaded in order to result in a lifesentence recommendation.” Appellant’s Initial Br. at 14 n.6; see also Appellant’s

Reply Br. at 2 n.2 (“The State elsewhere continues to mischaracterize Appellant’s

Hurst claim as a claim of ineffective assistance of counsel.”).

In fact, Appellant’s argument is the opposite of an ineffectiveness claim. As

the proffered declarations ignored by this Court indicate, Appellant’s counsel made

a strategic decision in the context of Florida’s unconstitutional capital sentencing

scheme when advising Appellant to waive a penalty jury. Knowing that Florida law

required a majority of advisory jurors to vote for a life sentence in order to avoid the

death penalty, counsel reasonably advised Appellant that, in light of the

circumstances of the case heard by the jury at the guilt phase, he had a greater chance

of avoiding death by allowing the trial judge—who would conduct the fact-finding

anyway under Florida’s prior scheme—to preside over the penalty phase without the

added layer of an advisory jury. If the proceeding had been conducted under the

current post-Hurst law, counsel states in her declaration, she would not have advised

Appellant to waive because after Hurst he would need only one juror to find that just

one element was not proven beyond a reasonable doubt in order to be given a life

114a

sentence. The proffered declarations also establish that Appellant relied totally on

counsel’s advice in deciding to waive a penalty jury, and that Appellant would not

waive a jury in a post-Hurst proceeding absent such advice.

In light of that evidence, Appellant argued to this Court that it is

constitutionally perverse to hold that his waiver, which flowed directly from the

unconstitutional statute invalidated by Hurst, totally bars any court’s consideration

of his Hurst claim. If this Court had read the declarations and Appellant’s briefs,

the inapplicability of an ineffectiveness analysis would have been clear. In taking

the State’s lead in miscasting Appellant’s Hurst arguments as an ineffectiveness

claim, this Court demonstrated a failure to grapple with the arguments and evidence

presented. Under these circumstances, rehearing is warranted.

III.

The Court overlooked or misread Appellant’s explanation of why his case

is distinguishable from Mullens and the Court’s other jury-waiver

precedent, but even if those state-law cases applied here, their holdings

conflict with the United States Constitution and should be abandoned

The March 15 opinion reflects that the Court either overlooked or misread

Appellant’s explanation of why his case is distinguishable from Mullens v. State,

197 So. 3d 16, 39-40 (Fla. 2016), and the Court’s other jury-waiver precedent. As

an initial matter, the Court erroneously stated that “Hutchinson maintains that his

waiver became invalid as a result of the change in the law after Hurst.” Id. As the

briefing in this Court made clear, Appellant has never argued that his waiver became

invalid as a result of the change in law after Hurst. Appellant has consistently argued

115a

a narrower point: because his waiver of a penalty jury was the product of counsel’s

advice, and that advice was the result of the Florida scheme that was later ruled

unconstitutional in Hurst, Appellant’s waiver is not a valid basis to deny him access

to Hurst relief. Contrary to the Court’s assumption, Appellant did not contend in

any filing that the change in law brought about by Hurst invalidated his jury waiver

as a general matter. The difference between Appellant’s case and this Court’s other

jury-waiver precedents, including Mullens, is that in those other cases the validity

of the jury waiver was either not challenged at all, or challenged on grounds that

were not directly linked to Florida’s prior unconstitutional scheme.

The Court wrongly characterized the only relevant distinguishing

characteristic between this case and Mullens as the decision to plead guilty in

Mullens versus Appellant’s decision to proceed to trial. Hutchinson, 2018 WL

1324791, at *3.

The Court then concluded that the guilty-plea distinction is

irrelevant because “the circuit court properly found that Hutchinson’s colloquy

supported the conclusion that his waiver was knowing, intelligent, and voluntary.”

Id. Again, this Court demonstrated a misunderstanding of the issue in this appeal.

It is irrelevant whether Appellant’s colloquy supported the conclusion that his

waiver was knowing, intelligent, and voluntary at the time. The issue is whether that

waiver should serve as a complete bar to consideration of his Hurst claim in light of

the evidence he proffered indicating that no waiver would have occurred without the

116a

Hurst error. None of this Court’s jury-waiver Hurst cases, including Mullens and

Brant v. State, 197 So. 3d 1051 (Fla. 2016), have involved such a proffer.

Even if this case were not readily distinguishable from Mullens and the

Court’s other jury-waiver Hurst precedents, those cases violate the United States

Constitution to the extent they erect a categorical bar on Hurst relief to all defendants

who waived a penalty jury before Hurst, regardless of any other facts or

circumstances. This Court should abandon such a rule as contrary to federal law,

which provides that defendants cannot be held to have waived rights that were not

recognized to exist at the time of the waiver. See Halbert v. Michigan, 545 U.S. 605,

623 (2005). As explained below, this Court’s March 15 opinion conflicts with

federal precedents by holding that all Florida defendants who waived a pre-Hurst

advisory jury at the penalty phase thereby waived the right to penalty-jury factfinding, even though the right to jury fact-finding was non-existent before Hurst.

The Court grant rehearing to correct this federal constitutional error.

IV.

This Court unreasonably applied the United States Supreme Court’s

decision in Halbert v. Michigan, which precludes Florida’s state courts

from ruling that Appellant waived a right to penalty jury fact-finding

that did not exist in Florida at the time of the waiver

This Court unreasonably applied the United States Supreme Court’s decision

in Halbert v. Michigan, which precludes Florida’s state courts from ruling that

Appellant waived the right to penalty-jury fact-finding that did not exist in Florida

at the time of his waiver. The Court’s March 15 decision states that “Hutchinson

117a

contends that this Court should follow Halbert in finding that Hurst created a new

right to a jury trial distinct from the pre-Hurst right, and further find that his jury

waiver does not preclude Hurst relief.” Hutchinson, 2018 WL 1324791, at *4. But

Appellant did not contend that Hurst created a “new” right to a jury trial distinct

from the pre-Hurst right—it was the United States Supreme Court that held in Hurst

that Florida’s scheme systematically denied defendants their Sixth Amendment jurytrial rights by allocating the fact-finding decision-making at the penalty phase to the

judge, rather than to the jury. As Hurst makes clear, at the time of Appellant’s

waiver, Florida law did not recognize the right to jury fact-finding at the penalty

phase. At that time, Appellant could only waive the right to an advisory jury that

would make a generalized recommendation to the judge. Under Halbert, Appellant

could not have waived a right to jury fact-finding that was not recognized at the time.

The Court’s March 15 decision insists that “[u]nlike the right to first-tier

postconviction counsel in Halbert, the right to a jury trial was well recognized before

Hurst.” Id. That conclusion is belied by Hurst itself, which held that Florida’s

scheme did not correctly recognize the right to a jury trial in failing to allow for juryfact-finding at the penalty phase.

In fact, the Court made the same mistake in Mullens when it explained that

allow defendants who waived a penalty jury to press Hurst claims “would encourage

capital defendants to abuse the judicial process by waiving the right to jury

118a

sentencing and claiming reversible error upon a judicial sentence of death.” Mullens,

197 So. 3d at 40 (citations omitted). It is inconsistent with Hurst for this Court to

equate a pre-Hurst waiver of an advisory jury with “waiving the right to jury

sentencing.” Hurst makes clear that Florida’s advisory jury scheme was anathema

to the Sixth Amendment right to a jury at a death sentencing proceeding.

In addition to insisting that the same jury trial right that exists in Florida’s

death sentencing scheme today also existed before Hurst, this Court’s March 15

opinion attempted to cast aside Halbert’s relevance in this case by citing McMann

v. Richardson, 397 U.S. 759, 773-74 (1970), a case decided 35 years earlier in which

the Court said “an argument similar to Hutchinson’s” was rejected by the United

States Supreme Court. Hutchinson, 2018 WL 1324791, at *4. But McMann

presented different circumstances than those presented here. In McMann, the United

States Supreme Court held “that a defendant who alleges that he pleaded guilty

because of a prior coerced confession is not, without more, entitled to a hearing on

his petition for habeas corpus.” McMann, 397 U.S. at 771. In that case, the

defendant argued that his guilty plea was not intelligent because counsel misjudged

the admissibility of his confession. Id. at 770. Here, Appellant does not seek

invalidation of his penalty jury waiver on the ground that counsel gave him faulty

advice, but simply asks for his Hurst claim to be considered notwithstanding his preHurst jury waiver because that waiver was entirely the result of counsel’s reasonable

119a

advice within the context of a proceeding governed by the scheme invalidated by

Hurst. Moreover, unlike in McMann, where the defendant sought a hearing on his

allegation “without more,” Appellant proffered much more in requesting a hearing,

including a declaration from trial counsel that fully supports his argument.

A recent decision of the United States Supreme Court, issued after the briefing

in this appeal, buttresses Appellant’s argument. In Class v. United States, 138 S. Ct.

798, 2018 WL 987347 (Feb. 21, 2018), the Court held that a guilty plea and related

“waivers” do not, by themselves, bar a criminal defendant “from challenging the

constitutionality of the statute of conviction on direct appeal.” Id. at *4. Class

rejected the argument that the defendant had “expressly waived” his right to appeal

“constitutional” issues because the judge informed the defendant that he “was giving

up his right to appeal his conviction.” Id. at *7 (internal brackets and quotation

marks omitted). The Court noted that the plea agreement did “not expressly refer to

a waiver of the appeal right here at issue.” Id.

Absent an express waiver of

prospective constitutional challenges, the Court explained, the defendant cannot be

said to have waived those rights. Id. at *4. Similarly, Appellant’s waiver of a

penalty jury does not forever bar him from raising constitutional claims arising under

this Court’s decision in Hurst, which found the advisory jury scheme that Appellant

decided to forego unconstitutional. Appellant is no less entitled to assert his

120a

constitutional right to jury fact-finding at a penalty phase than defendants who

elected to present their case to an advisory jury in the prior unconstitutional scheme.

Conclusion

Rehearing should be granted and the Court should hold that Hurst applies to

Appellant in light of his proffered evidence, or remand for the circuit court to make

that determination following a hearing.

Respectfully submitted,

/s/ Billy H. Nolas

Billy H. Nolas

Chief, Capital Habeas Unit

Office of the Federal Public Defender

Northern District of Florida

227 N. Bronough Street, Suite 4200

Tallahassee, FL 32301-1300

billy_nolas@fd.org

(850) 942-8818

Florida Bar No. 806821

/s/ Clyde M. Taylor, Jr.

Clyde M. Taylor, Jr.

Taylor & Taylor, LLC

2303 N. Ponce De Leon Blvd., Ste. L

St. Augustine, FL 32084

ct@taylor-taylor-law.com

(904) 687-1630

Florida Bar No. 129747

CERTIFICATE OF SERVICE

I hereby certify that on March 28, 2018, the foregoing was electronically

served via the e-portal to Clyde Taylor at ct@taylor-taylor-law.com, and Assistant

Attorney General Charmaine Millsaps at charmaine.millsaps@myfloridalegal.com

and capapp@myfloridalegal.com.

/s/ Billy H. Nolas

Billy H. Nolas

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EXHIBIT 9

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EXHIBIT 10

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5/21/2018

Home

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

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EXECUTION DATABASE

STATE-BY-STATE

Florida Death-Penalty Appeals Decided in Light of Hurst

Last updated: May 15, 2018

Total number of prisoners whose cases have been reviewed by Florida Supreme Court (or, if relief is granted, by a Circuit Court) in light of Hurst: 259

Number of prisoners who have obtained relief under Hurst: 128 (49.42%)

Number of prisoners who have been denied relief under Hurst: 131 (50.58%)

The Florida Supreme Court has declared that it will apply its decisions in Hurst v. State and Asay v. State—which held that non-unanimous jury recommendations

of death violate the Florida state constitution and the Sixth Amendment of the U.S. Constitution—to new death penalty cases and to older cases in which the

direct appeal process was final on or before the U.S. Supreme Court decided Ring v. Arizona in June 2002.

Prisoner Name

County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Abdool, Dane

Orange

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?

136a

1/9

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

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

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County of

Conviction

Conviction Final

Before Ring?

Jury Recommendation

Unanimous?

Dessaure, Kenneth

Pinellas

WAIVED JURY

Deviney, Randall

Duval

Diaz, Joel

Lee

Dillbeck, Donald David

Leon

Doorbal, Noel

Jury Vote(s)

Death Sentence

Reversed?

Date of Court

Order

11/16/17

8-4

3/23/17

9-3

6/15/17

8-4

1/24/18

Miami-Dade

8-4, 8-4

9/20/17

Doty, Wayne

Bradford

10-2

8/7/17

Douglas, Luther

Duval

11-1

6/29/17

Dubose, Rasheem

Duval

8-4

2/9/17

Durousseau, Paul

Duval

10-2

1/31/17

Eaglin, Dwight

Charlotte

8-4, 8-4

4/3/17

England, Richard

Volusia

8-4

5/22/17

Evans, Paul H.

Indian River

9-3

3/20/17

Evans, Steven Maurice

Orange

11-1

1/24/18

Evans, Wydell Jody

Brevard

10-2

Finney, Charles

Hillsborough

9-3

1/26/18

Floyd, Maurice Lamar

Putnam

11-1

5/17/17

Ford, James D.

Charlotte

11-1, 11-1

1/23/18

Foster, Charles

Bay

8-4

1/29/18

Foster, Kevin Don

Lee

9-3

1/29/18

Fotopoulos,

Konstantinos

Volusia

8-4, 8-4

1/29/18

Frances, David

Orange

9-3, 10-2

3/29/17

Franklin, Richard P.

Columbia

9-3

11/23/16

Gamble, Guy R.

Lake

10-2

1/29/18

Gaskin, Louis

Flagler

8-4, 8-4

2/28/18

Geralds, Mark Allen

Bay

12-0

2/28/18

Glover, Dennis T.

Duval

10-2

9/14/17

Gonzalez, Leonard

Escambia

10-2

5/23/17

Gonzalez, Ricardo

Miami-Dade

8-4

3/23/18

Gordon, Robert R.

Pinellas

9-3

1/31/18

Gregory, William

Volusia

7-5, 7-5

8/31/17

Griffin, Michael Allen

Miami-Dade

10-2

2/2/18

Grim, Norman

Santa Rosa

12-0

3/29/18

Guardado, Jesse

Walton

12-0

5/11/17

Gudinas, Thomas Lee

Collier

10-2

1/30/18

Guzman, James

Volusia

11-1

2/22/18

Guzman, Victor

Miami-Dade

7-5

4/6/17

Hall, Donte Jermaine

Lake

8-4

6/15/17

Hall, Enoch D.

Volusia

12-0

2/9/17

Hamilton, Richard

Hamilton

10-2

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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

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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

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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

Pinel

This text is long and has been trimmed here. Open the source document for the complete record.

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.