Petition for Writ of Certiorari — Louis B. Gaskin, Petitioner v. Florida

Supreme Court briefJul 26, 2018

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CAPITAL CASE

DOCKET NO.

IN THE SUPREME COURT OF THE UNITED STATES

LOUIS B. GASKIN,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE FLORIDA SUPREME

COURT

APPENDIX

INDEX OF APPENDICES

APPENDIX A: The order of the Circuit Court of the Seventh Judicial

Circuit denying the Second Successive Motion to Vacate Judgment of

Conviction and Sentence at issue. (Unreported).

APPENDIX B: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner’s Second Successive Motion to

Vacate. Gaskin v. State, 237 So.3d 928 (Fla. 2018)

APPENDIX C: The opinion of the Supreme Court of Florida following

direct appeal of Petitioner’s judgment and sentence of death.

Gaskin v. State, 591 So.2d 917 (Fla. 1991).

APPENDIX D: The opinion of the Supreme Court of Florida following

remand from this Court. Gaskin v. State, 615 So.2d 679 (Fla. 1993).

APPENDIX E: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner's first successive

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

reh'g denied, No. SC15-1884, 2017 WL 2210388 (Fla. May 17, 2017)

APPENDIX F: The order of the Circuit Court of the Seventh Judicial

Circuit denying Petitioner’s First Successive Motion to Vacate

Judgment of Conviction and Sentence. (Unreported) .

APPENDIX G: Corrected Judgment and Sentence. Vacating the Death

Penalty Imposed In Counts II and IV of the Indictment and the

Adjudication of Guilt in Said Counts. (Unreported).

APPENDIX A: The order of the Circuit Court of the Seventh Judicial

Circuit denying the Second Successive Motion to Vacate Judgment of

Conviction and Sentence at issue. (Unreported).

IN THE CIRCUIT COURT,

SEVENTH JUDICIAL CIRCUIT, IN

AND FOR FLAGLER COUNTY,

FLORIDA

CASE NO.: 1990 CF 01; 1990 CF 07

_ DIVISION: 56

STATE OF FLORIDA,

VS.

LOUIS B. GASKIN,

Defendant.

ORDER ON DEFENDANT’S SECOND SUCCESSIVE MOTION

TO VACATE JUDGMENT OF CONVICTION AND SENTENCES

THIS CAUSE came before the Court on Defendant’s second “Successive

Motion to Vacate Judgment of Conviction and Sentences” filed pursuant to Rule

3.851, Florida Rules of Criminal Procedure on January 10, 2017. The Court has

reviewed and considered Defendant’s motion and the State’s response thereto, has

heard and considered the argument of counsel presented at the October 2, 2017 case

management conference and the supplemental authority filed thereafter, and being

fully advised in the premises finds as follows:

In 1989, Defendant was convicted of four counts of first degree murder in the

deaths of Robert and Georgette Sturmfels (premeditated and felony murder), the

i The State filed a Motion to Dismiss Successive Motion to Vacate on February 10, 2017 in which it argued the

present motion should be dismissed or in the alternative, summarily denied following a case management

conference,

attempted murder of Joseph Rector, two counts of armed robbery with a firearm and

two counts of burglary with a firearm, The jury recommended death for both

murders and the court imposed the death penalty for both murders. Defendant was

sentenced to consecutive life sentences for the non-capital offenses. On December

5, 1991, the Florida Supreme Court affirmed Defendant’s premeditated murder

convictions and two death sentences, reversed the two felony murder convictions

that were duplicative of the premeditated murder convictions, and remanded to the

trial court for proceedings consistent with its decision. Gaskin v. State, 591 So. 2d

917 (Fla. 1991), Defendant’s sentences became final in 1993 when the United States

Supreme Court denied certiorari relief. Gaskin v. State, 510 U.S. 925 (1993).

Defendant’s initial motion for post-conviction relief was denied on August 23, 2000

after an evidentiary hearing. The Florida Supreme Court affirmed the denial on June

13, 2002. Gaskin vy. State, 822 So. 2d 1243 (Fla. 2002). On June 25, 2003,

Defendant filed a petition for writ of habeas corpus in the United States District

Court for the Middle District of Florida. The petition for. writ of habeas corpus was

denied on March 23, 2006. On August 3, 2007, the Eleventh Circuit affirmed the

denial of habeas relief. Gaskin v. Secretary, Department of Corrections, 494 F. 3d

997 (11" Cir. 2007). On August 12, 2014, pursuant to the Florida Supreme Court’s

1991 directive, the Court issued a corrected judgment and sentence vacating the

felony murder convictions for each victim. On May 6, 2015, Defendant filed his

First Successive Motion to Vacate Judgment of Conviction and Sentence. On

August 6, 2015, the Court rendered an Order Denying First Successive Motion to

Vacate Judgment of Conviction and Sentence. Defendant appealed and the Court’s

Order was affirmed on January 19, 2017. In affirming the Court’s denial of

Defendant’s First Successive Motion to Vacate Judgment of Conviction and

Sentence, the Florida Supreme Court held that any Hurst error did not require

resentencing because Hurst is not retroactive to cases that were final when Ring was

decided. Gaskin vy. State, 218 So. 3d 399, 401 (Fla. 2017), reh'g denied, SC15-1884,

2017 WL 2210388 (Fla. May 17, 2017).

Presently before the Court is Defendant’s second “Successive Motion to

Vacate Judgment of Conviction and Sentences,” filed January 10, 2017. The

Defendant seeks to have his death sentence vacated pursuant to Hurst v. Florida,

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

many of Defendant’s arguments flow from some of the more nuanced matters

inherent in Florida’s post-Hurst retroactivity decisions, including whether a Ringlike challenge was previously raised, a distinction between the Sixth Amendment

and Eighth Amendment issues addressed in Hurst v. State, substantive versus

procedural rule changes and applicability of the Supremacy Clause, and the -

potentially arbitrary effects of using Ring as a bright-line cutoff for retroactivity.

However, the Florida Supreme Court’s recent decisions clearly establish that

defendants whose sentences of death became final pre-Ring are not entitled to relief

via retroactive application of Hurst v. Florida and its Florida progeny. |

Because the Defendant’s judgment and sentence became final in 1993, before

the Ring v. Arizona, 536 U.S. 583 (2002) opinion was issued on June 24, 2002, the

Defendant is not entitled to retroactive Hurst relief. See Asay v. State, 210 So. 3d 1

(Fla. 2016), reh'g denied, SC16-102, 2017 WL 431741 (Fla. Feb. 1, 2017), cert.

denied, 16-9033, 2017 WL 1807588 (U.S. Aug. 24, 2017); Asay v. State, 42 Fla. L.

Weekly S755 (Fla. Aug. 14, 2017); Hitchcock v. State, 42 Fla. L. Weekly $753 (Fla.

Aug. 10, 2017), reh'g denied SC17-445, 2017 WL 4118830 (Fla. Sept. 18, 2017);

Lambrix v. State, SC17-1687, 2017 WL 4320637, at *1 (Fla. Sept. 29, 2017).

Regarding Defendant’s contention that his case became final in 2014 when the trial

court vacated the two felony murder convictions, the Florida Supreme Court

specifically held that Defendant’s judgment and sentence became final in 1993 when

the United States Supreme Court denied certiorari review. Gaskin v. State, 218 So.

3d at 401. Further, the Court incorporates by reference the State’s response and the

State’s hearing argument, and adopts the State’s reasoning in finding the remaining

claims procedurally barred and/or beyond the scope of Hurst relief.

Finally, the timeliness of the instant motion turns on whether Hurst v. Florida

and its Florida progeny have been held to apply retroactively to Defendant. Rule

3,.851(d) provides, in relevant part, that “any motion to vacate judgment of

4 |

conviction and sentence of death shall be filed by the defendant within 1 year after

the judgment and sentence become final” unless “the fundamental constitutional

right asserted was not established within the period provided for in subdivision (d)(1)

and has been held to apply retroactively.” Fla. R. Crim. P. 3.851. Because Hurst

and the fundamental constitutional rights relied on by Defendant have not been held

to apply retroactively to defendants whose judgment and sentence became final prior

to Ring, the instant motion is untimely under Rule 3.851(d).

Defendant is not entitled to relief under any of his current claims, all of which

depend upon a retroactive application of Hurst, because his judgment and sentence

became final in 1993. Accordingly, it is:

ORDERED AND ADJUDGED that:

1. Defendant’s second “Successive Motion to Vacate Death Sentence” is

hereby DENIED.

| 2. Defendant shall have 30 days from the date of this Order to appeal this

Court’s decision.

DONE AND ORDERED in Chambers, in St. Johns County, St. Augustine,

A St ene

Florida, this LA day of October, 2017. a

a“ :

Va a penep llores ;

ra — - _ ones

Lo Kv)

/ Wa HOWARD M. MALTZ

fy £ f-"Circuit Judge

Copies furnished to:

Scott A. Browne, Senior Asst. Attorney General

scott.browne@myfloridalegal.com; capapp@myfloridalegal.com

Rosemary Calhoun, Asst. State Attorney

calhounr@sao7.org; eservicestjohns@sao7.org

James L. Driscoll, Jr., Asst. CCRC

driscoll@ccmr.state.fl.us

David D. Hendry, Asst. CCRC

hendry@ccmr.state.fl.us

Gregory W. Brown, Asst. CCRC

brown@ccmr.state. fl.us

APPENDIX B: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner’s Second Successive Motion to

Vacate. Gaskin v. State, 237 So.3d 928 (Fla. 2018)

Gaskin v. State, 237 So.3d 928 (2018)

43 Fla. L. Weekly $114

237 So.3d 928

Supreme Court of Florida.

Louis B. GASKIN, Appellant,

STATE of Florida, Appellee.

No. SC17—2190

[February 28, 2018]

Synopsis

Background: Defendant filed motion for collateral relief, after his murder convictions and death sentences were

affirmed on appeal, 615 So.2d 679. The Circuit Court, Flagler County, Nos. 181990CFO00001IAXXXXX and

181990CF000007XXXXXX, Howard M. Maltz, J., denied the motion. Defendant appealed.

[Holding:] The Supreme Court held that requirement that jury recommend death sentence by unanimous vote did not

apply retroactively.

Affirmed.

Pariente, J., concurred in result and filed opinion.

Lewis and Canady, JJ., concurred in result.

*929 An Appeal from the Circuit Court in and for Flagler County, Howard M. Maltz, Judge—Case Nos.

181990CF000001AXXXXX and 181990CFO00007XXXXXX

Attorneys and Law Firms

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll Jr., David Dixon Hendry and

Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for

Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, Senior Assistant Attorney General,

Tampa, Florida, for Appellee

Opinion

PER CURIAM.

We have for review Louis B. Gaskin’s appeal of the circuit court’s order denying Gaskin’s motion filed pursuant to

Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Gaskin’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, —U.S.——,

136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016),

cert. denied, —- U.S. ——, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). After this Court decided Hitchcock v. State, 226

Gaskin v. State, 237 So.3d 928 (2018)

43 Fla. L. Weekly $114

So.3d 216 (Fla.), cert. denied, —- U.S. ——, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), Gaskin responded to this Court’s

order to show cause arguing why Hitchcock should not be dispositive in this case.

[1] After reviewing Gaskin’s response to the order to show cause, as well as the State’s arguments in reply, we conclude

that Gaskin is not entitled to relief. Gaskin was sentenced to two sentences of death following a jury’s recommendation

for “two death sentences for [two] murders [both] by a vote of eight to four.” Gaskin v. State, 218 So.3d 399, 400 (Fla.

2017) (citing Gaskin v. State, 591 So.2d 917, 919 (Fla. 1991)). Gaskin’s sentence of death became final in 1993. Jd. at

401. Thus, as this Court has previously determined, Hurst does not apply retroactively to Gaskin’s sentence of death.

See Hitchcock, 226 So.3d at 217; Gaskin, 218 So.3d at 401 (denying Gaskin’s claim to relief under Hurst v. Florida ).

Accordingly, we affirm the denial of Gaskin’s motion.

The Court having carefully considered all arguments raised by Gaskin, we caution that any rehearing motion containing

reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert.

denied, —- U.S. ——, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views

expressed in my dissenting opinion in Hitchcock.

All Citations

237 So.3d 928, 43 Fla. L. Weekly S114

APPENDIX C: The opinion of the Supreme Court of Florida following

direct appeal of Petitioner’s judgment and sentence of death.

Gaskin v. State, 591 So.2d 917 (Fla. 1991).

Gaskin v. State, 591 So.2d 917 (1991)

16 Fla. L. Weekly S762

591 So.2d 917

Supreme Court of Florida.

Louis B. GASKIN, Appellant,

Vv.

STATE of Florida, Appellee.

No. 76326.

Dec. 5, 1991.

Synopsis

Defendant was convicted of first-degree murder and related offenses, following jury trial in the Circuit Court, Flagler

County, Kim C. Hammond, J., and defendant appealed. The Supreme Court, Barkett, J., held that: (1) defendant was

not entitled to change of venue; (2) trial court improperly convicted defendant of both premeditated and felony-murder

for each death; and (3) trial court properly considered aggravating and mitigating circumstances.

Affirmed in part, vacated in part, and remanded.

Attorneys and Law Firms

*918 James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit,

Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

Opinion

BARKETT, Justice.

Louis B. Gaskin appeals from convictions for first-degree murder and related offenses and sentences, including the death

penalty. :

We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

The convictions arise from events occurring on the night of December 20, 1989, when Gaskin drove from Bunnell to

Palm Coast and spotted a light in the house of the victims, Robert and Georgette Sturmfels. Gaskin parked his car in

the woods and, with a loaded gun, approached the house. Through a window he saw the Sturmfels sitting in their den.

After circling the house a number of times, Gaskin shot Mr. Sturmfels twice through the window. As Mrs. Sturmfels rose

to leave the room, Gaskin shot her and then shot Mr. Sturmfels a third time. Mrs. Sturmfels crawled into the hallway,

and Gaskin pursued her around the house until he saw her through the door and shot her again. Gaskin then pulled

out a screen, broke the window, and entered the home. He fired one more bullet into each of the Sturmfels' heads and

covered the bodies with blankets. Gaskin then went through the house taking lamps, video cassette recorders, some cash,

and jewelry.

Gaskin then proceeded to the home of Joseph and Mary Rector, whom he again spied through a window sitting in their

den. While Gaskin cut their phone lines, the Rectors went to bed and turned out the lights. In an effort to roust Mr.

Rector, Gaskin threw a log and some rocks at the house. When Mr. Rector rose to investigate, Gaskin shot him from

4h Fe be Lae # Ay ER A LE OT La gm ero TO hen Bf omg jgrere Behe om ed ey i Pm see gg, wees, yg, ig a, BF ebro

Gaskin v. State, 591 So.2d 917 (1991)

16 Fla. L. Weekly S762

outside the house. The Rectors managed to get to their car and drive to the hospital in spite of additional shots fired at

their car as they sped away. Gaskin then burglarized the house.

Gaskin's involvement in the shootings was brought to the attention of the authorities by Alfonso Golden, cousin

of Gaskin's girlfriend. The night of the murders, Gaskin had appeared at Golden's home and asked to leave some

“Christmas presents.” Gaskin told Golden that he had “jacked” the presents and left the victims “stiff.” Golden learned

of the robberies and murders after watching the news and called the authorities to report what he knew. The property

that had been left with Golden was subsequently identified as belonging to the Sturmfels.

Gaskin was arrested on December 30, and a search of Gaskin's home produced more of the stolen items. After signing

a rights-waiver form, Gaskin confessed to the crimes and directed the authorities to further evidence of the crime ina

nearby canal.

The jury found Gaskin guilty of two counts of first-degree murder in the death of Robert Sturmfels (premeditated and

felony murder); two counts of first-degree murder in the death of Georgette Sturmfels (premeditated and first-degree

murder); one count of armed robbery of the Sturmfels; one count of burglary of the Sturmfels' home; one count of

attempted first-degree murder of Joseph Rector; one count of armed robbery of the Rectors; and one count of burglary

of the Rector's home. The jury found Gaskin not guilty of attempted first-degree murder of Mary Rector.

During the penalty phase, the State introduced ballistics evidence by firing various types of bullets from the rifle used

in the murders to demonstrate that the ammunition Gaskin chose to use in the murders *919 supports a finding that

the murders were heinous, atrocious, or cruel. The defense introduced the testimony of Janet Morris, Gaskin's cousin,

who testified that she and Gaskin were raised by their great-grandparents, who were very strict, and that Gaskin never

gave anyone any trouble during his formative years. The jury recommended death for both murders by a vote of eight to

four. In addition to the penalty phase testimony, the judge was given a certified judgment and sentence for an unrelated

burglary, a copy of Gaskin's statement, and a copy of a psychiatric report by Dr. Jack Rotstein to consider in sentencing

Gaskin.

The trial judge found in aggravation that (1) both murders were committed in a cold, calculated, and premeditated

manner; 2 (2) Gaskin had previously been convicted of another capital offense or of a felony involving the use or threat

of violence; 3 and (3) that the murders were committed while the defendant was engaged in the commission of a robbery

or burglary. 4 Additionally, the trial court found that the murder of Georgette Sturmfels was especially wicked, evil,

atrocious, or cruel. > The court found in mitigation of both murders that (1) the murders were committed while Gaskin

was under the influence of extreme mental or emotional disturbance; and (2) that Gaskin had a deprived childhood. The

court concluded that the aggravating circumstances outweighed the mitigating circumstances and imposed the death

penalty for both murders. The court also sentenced Gaskin to consecutive life terms for the noncapital offenses.

2 See §921.141(5)(i), Fla Stat. (1987).

Id. § 921.141(5)(b). The trial judge supported this factor in Robert Sturmfels' death with the contemporaneous convictions

for the offenses involving the Rectors and Georgette Sturmfels; and in Georgette Sturmfels' death, with the contemporaneous

convictions involving the Rectors and Robert Sturmfels.

4 Id. §921.141(5)(d).

5 Id. § 921.141(5)(h). The trial judge found this factor inapplicable to Robert Sturmfels because he was shot in rapid succession

and died quickly.

[1] Gaskin raises numerous claims of error which he argues require a reversal of his convictions or sentences. Gaskin

first argues that the trial court erroneously denied his motion for a change of venue because pretrial publicity precluded

See? AR ON OEP OR EF OT he oy yay ery ae, BO yon imagen Paley prbost m aspiomeenf FER oo gg oly aes ony oy SUSE Tay pode ew

Gaskin v. State, 591 So.2d 917 (1991)

16 Fla. L. Weekly $762

selection of a fair and impartial jury. “An application for change of venue is addressed to a court's sound discretion,

and a trial court's ruling will not be reversed absent a palpable abuse of discretion.” Davis v. State, 461 So.2d 67, 69

(Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). The test for changing venue is

“whether the general state of mind of the inhabitants of a community is so infected by knowledge

of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not

possibly put these matters out of their minds and try the case solely on the evidence presented in

the courtroom.”

Id. (quoting Manning v. State, 378 So.2d 274, 276 (Fla.1979). The trial court did not abuse its discretion in finding that

the test had not been met here. While many of the venire admitted to knowing that the crime had been committed, those

with any significant knowledge were excused. All jurors who served affirmatively and unequivocally stated that they

could put aside any prior knowledge and decide the case solely on the evidence presented at trial. There is nothing in

the record that suggests otherwise.

Moreover, the judge liberally excused jurors for cause when challenged, and he granted each attorney an additional five

peremptory challenges, indicating that he would give more if needed. When the list of jurors chosen to sit was read,

defense counsel did not request additional peremptory challenges and did not even use all the peremptory challenges

available. The court also granted the defense motion for individual voir dire regarding publicity and feelings on capital

punishment, and the court allowed wide latitude in the questioning. There is nothing in the record to *920 indicate

defense counsel was precluded from striking any undesirable juror. Nor has Gaskin demonstrated he was otherwise

prejudiced by any knowledge the jurors may have possessed. Accordingly, on the facts presented here we find no abuse

of discretion in the judge's denial of the change of venue motion.

[2] Gaskin next argues that the trial court erred in adjudicating him guilty of both premeditated and felony murder

for each of the two deaths for a total of four convictions. We agree that each death will support only one adjudication.

See Lamb y, State, 532 So.2d 1051 (Fla.1988); Houser v. State, 474 So.2d 1193 (Fla.1985). Accordingly, we vacate one

adjudication for first-degree murder for each victim.

[3] [4] We reject Gaskin’'s claim that his constitutional rights were violated because the court stenographer did not

record certain proceedings at the bench. See Bruno v. State, 574 So.2d 76, 81 (Fla.), cert. denied, 502 U.S. 834, 112 S.Ct.

112, 116 L.Ed.2d 81 (1991). We also reject Gaskin's claim that the trial court erred in instructing the jury on the definition

of reasonable doubt. See, e.g., Brown v. State, 565 So.2d 304 (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d

547 (1990). We likewise find no merit to Gaskin's claim that the trial court erred in admitting several pieces of physical

evidence. The trial court has great latitude in determining the relevance of evidence, and such determinations will not be

disturbed absent an abuse of discretion. See Hardwick y. State, 521 So.2d 1071 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct.

185, 102 L.Ed.2d 154 (1988). We have reviewed the record and find no abuse in the admission of the evidence in question.

Turning to the penalty phase, we find no reversible error in Gaskin's claim that the trial judge made an impermissible

comment on the evidence during the penalty phase. We also reject without discussion Gaskin's multiple assertions

regarding the constitutionality of the capital-sentencing statute as each of his arguments has previously been decided

adversely to his position.

Gaskin next argues that the record fails to reflect Gaskin's presence at the firing range where the State presented its

ballistics evidence. To the contrary, the record reflects that the trial judge specifically stated that Gaskin was present in

a patrol car with the windows rolled down so he could observe the demonstration. Defense counsel did not dispute this

statement or otherwise object to the proceeding. We thus reject this claim.

Gaskin v. State, 591 So.2d 917 (1991)

16 Fla. L. Weekly S762

[5] Finally, Gaskin alleges error in the consideration of aggravating and mitigating circumstances. Gaskin first argues

that the trial court erred in finding that the murder of Georgette Sturmfels was heinous, atrocious, or cruel. © We find

no abuse of discretion in the trial court's conclusion.

This argument does not apply to the death sentence imposed for Robert Sturmfels because the trial court did not find the

aggravating circumstance of heinous, atrocious, or cruel. See supra note 5.

According to Gaskin's own statement, after twice shooting Mr. Sturmfels, “his wife realized what was going on.” She

tried to run away but Gaskin shot her. Gaskin turned back to Mr. Sturmfels, who was still standing, and shot him

again. When Mrs. Sturmfels attempted to crawl out of view, Gaskin shot her still again as she continued to try to crawl

to safety. Gaskin then tracked her around the house until he got her in view through the other doors that faced the

hallway. “She was sitting there holding her head, looking at the blood.” Gaskin then shot her again, and she fell over.

While Mrs. Sturmfels lay there “groggily or dying,” Gaskin subsequently entered the home through a window. Although

Mr. Sturmfels was already dead, Gaskin “shot him again in the head at point-blank range.” He then sought out Mrs.

Sturmfels and “shot her again in the head at point-blank range.”

The facts show that Mrs. Sturmfels knew her husband was being murdered, and that she must have contemplated her

own death. She was shot at least twice before crawling down the hall where she *921 watched blood pour from her

wounds. She must have been in physical pain and mentally aware of her impending death as Gaskin first disabled her

and then stalked her throughout the house. We find under the totality of facts presented here that the trial court did

not abuse its discretion in concluding that this circumstance had been proven beyond a reasonable doubt. We note that

even if this aggravating circumstance had not been found, we are persuaded that the trial court would have nevertheless

imposed the death penalty, as it did for the death of Mr. Sturmfels in the absence of this aggravating circumstance.

[6] Gaskin also alleges that the trial court erred in its consideration of the mitigating evidence regarding his mental

state. We find no error in the trial court's assessment. Dr. Rotstein, the psychiatrist, reported the following diagnosis:

Schizotypal personality disorder appears to best fit this man's behavior. He is uncomfortable

around others socially. He has preoccupations which almost or perhaps do reach the level of

delusions and has perceptional experiences which sound very strongly like auditory hallucinations.

He also describes episodes of Derealization or Depersonalization during the assault on the Rectors.

Dr. Rotstein concluded that at the time of the crimes, Gaskin was unable to conform his conduct to normal human

behavior. However, the trial court concluded that the more accurate classification would be “extreme mental or

emotional disturbance.” We find that the trial court adequately considered all the mental mitigating evidence. The

sentencing order clearly indicates a careful analysis of the psychiatric report in relation to the totality of the evidence:

The murder[s were] committed while the defendant was under the influence of extreme mental or

emotional disturbance. Although the court finds that the defendant's capacity was not impaired

the court finds that the expert testimony combined with the other facts of the case support this

finding. The court notes that it relied on the same expert testimony for the purpose of determining

the factor involving substantially impaired capacity.

In rejecting that the defendant was unable to conform his conduct to the requirements of law, the judge explained in

detail:

The defendant was capable of appreciating the criminality of his conduct or of conforming his

conduct to the requirements of law. Although there was expert testimony introduced regarding this

factor this court has considered that testimony in making a finding of extreme mental disturbance as

a mitigating circumstance. The evidence in the case shows the defendant, though crudely planned,

carried out the murder{s] in a calculated fashion in order to obtain property from his victim's [sic]

Gaskin v. State, 591 So.2d 917 (1991)

16 Fla. L. Weekly S762

and then hid the property at a friend's house. The evidence shows the defendant knew at the time

he was committing the murder that his conduct was criminal and had the capacity to conform

his conduct to the requirements of law. His careful plan to avoid detection was designed so he

would not be caught for the crime and suffer the criminal penalties. The facts do not support any

implication that the defendant was engaged in a ninja type assassination.

Dr. Rotstein's report as a whole contains sufficient information to support the trial court's conclusion that Gaskin was

able to appreciate the criminality of his conduct or to conform his conduct to normal human behavior despite being

mentally and emotionally disturbed. For example, Gaskin told Dr. Rotstein:

The devil had more of a hold than God did. I knew that I was wrong. I wasn't insane. There was

no insanity involved.

In other parts of the report, Gaskin described his thoughts just prior to the murders:

{T]he guy was on the Lazy Boy watching TV, the woman was on the sofa. I walked around a few more times. The devil

was telling me to kill him. God was telling me to go back home. I was trying to decide what to do.

*922 I aimed at the guy. God said “No”; the devil said “yes.” I pulled the trigger. There was no bullet in the chamber.

I breathed a sigh of relief and also a sigh of disappointment. I walked around four or five times more. I couldn't make

up my mind. I aimed the gun. I couldn't do it. I wasn't afraid. The shots wouldn't be heard.

We find no error in the judge's treatment of the mental mitigating evidence or in the weighing of the aggravating and

mitigating circumstances.

Accordingly, we affirm the convictions, except for two of the four adjudications for murder, and the sentences, including

two sentences of death. We remand for proceedings consistent with this opinion.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur.

All Citations

591 So.2d 917, 16 Fla. L. Weekly $762

APPENDIX D: The opinion of the Supreme Court of Florida following

remand from this Court. Gaskin v. State, 615 So.2d 679 (Fla. 1993).

Gaskin v. State, 615 So.2d 679 (1993)

18 Fla. L. Weekly S161

615 So.2d 679

Supreme Court of Florida.

Louis B. GASKIN, Appellant,

Vv.

STATE of Florida, Appellee.

No. 76326.

March 18, 1993.

Synopsis

Defendant was convicted in the Circuit Court, Flagler County, Kim C. Hammond, J., of first-degree murder and was

sentenced to death. Defendant appealed. The Supreme Court, 591 So.2d 917, affirmed in part, vacated in part and

remanded. On writ of certiorari, the United States Supreme Court, 112 S.Ct. 3022, vacated judgment and remanded. On

remand, the Florida Supreme Court, Barkett, C.J., held that issue of unconstitutional vagueness as to jury instructions

involving “especially heinous, atrocious, or cruel” aggravating factor was not preserved for review where defendant did

not object to vagueness of instruction nor request special instruction for circumstance.

Sentences affirmed.

Attorneys and Law Firms

*680 James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Chief, Capital Appeals,

Seventh Judicial Circuit, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, and Kellie A. Nielan, Asst.

Atty. Gen., Daytona Beach, for appellee.

Opinion

BARKETT, Chief Justice.

We have Gaskin v. State, 591 So.2d 917 (Fla.1991), vacated, 505 U.S. 1216, 112 S.Ct. 3022, 120 L.Ed.2d 894 (1992), on

remand from the United States Supreme Court for further consideration in light of Espinosa v. Florida, 505 U.S. 1079,

112 8.Ct. 2926, 120 L.Ed.2d 854 (1992).

I We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

The facts of this case are fully set forth in our previous opinion. The United States Supreme Court in Espinosa found

insufficient our former jury instruction on the “especially heinous, atrocious, or cruel” aggravating factor. > We must

determine what effect, if any, the reading of that same instruction had in Gaskin's case.

2 See § 921.141(5)(h), Fla Stat. (1987).

[1] We find that although Gaskin argued at trial against the instruction for the “cold, calculated and premeditated”

aggravating circumstance, 3 he did not object to the vagueness of the especially heinous, atrocious, or cruel aggravating

circumstance instruction at trial, nor did he request a special instruction for this circumstance. Thus, the issue of

RPE ORE Re EAw ON OPO Mba peer pan ED vay ptequees Some mtv borne doom pmoeteyigy en? £2 RR Pons on eineercant Uilarice

Gaskin v. State, 615 So.2d 679 (1993)

18 Fla. L. Weekly S161

unconstitutional vagueness as to the jury instruction struck down in Espinosa has not been preserved for review. See,

e.g., Ragsdale v. State, 609 So.2d 10 (Fla.1992).

3 See § 921.141(5)Q), Fla.Stat. (1987).

[2] In addition, were we to address the issue, the reading of the insufficient heinous, atrocious, or cruel aggravating

circumstance instruction as it relates to the sentence for the murder of Georgette Sturmfels would be harmless

error beyond a reasonable doubt, because the reading of this vague instruction could not have affected the jury's

recommendation of death in this case. Therefore, for the reasons stated here and in our earlier decision, we again affirm

the two death sentences.

It is so ordered.

OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

All Citations

615 So.2d 679, 18 Fla. L. Weekly S161

APPENDIX E: The opinion of the Supreme Court of Florida following

appeal of the denial of Petitioner’s first successive

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

reh'g denied, No. SC15-1884, 2017 WL 2210388 (Fla. May 17, 2017);

cert denied Gaskin v. Florida, 138 S. Ct. 471 (2017).

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

42 Fla. L. Weekly S16

218 So.3d 399

Supreme Court of Florida.

Louis B. GASKIN, Appellant,

Vv.

STATE of Florida, Appellee.

No. SC15—1884

[January 19, 2017]

Synopsis

Background: Defendant, whose two convictions for first-degree murder and two sentences of death were affirmed on

appeal, 591 So.2d 917, filed a postconviction motion to vacate judgment of conviction. The Circuit Court, Volusia

County, Joseph David Walsh, J., denied the motion and defendant appealed.

Holdings: The Supreme Court held that:

[1] defendant's judgment became final when United States Supreme Court denied certiorari review, not when the trial

court issued a corrected judgment 21 years after the initial judgment;

[2] defendant's postconviction relief claim that sought to vacate his murder conviction based on alleged improper

doubling of the aggravating factors was procedurally barred; and

[3] the holding in Hurst v. Florida, 136 S.Ct. 616, did not apply retroactively to defendant's two sentences of death for

two counts of first-degree murder.

Affirmed.

An Appeal from the Circuit Court in and for Volusia County, Joseph David Walsh, Judge—Case No.

641995CF034327XXXAES

Attorneys and Law Firms

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel—Middle Region, James Lawrence Driscoll, Jr.,

David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel—Middle Region, Tampa,

Florida, for Appellant

*400 Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott Andrew Browne, Senior Assistant Attorney

General, Tampa, Florida, for Appellee

Opinion

PER CURIAM.

This case is before the Court on appeal from an order denying appellant Louis B. Gaskin's motion to vacate a judgment

for two convictions of first-degree murder and two sentences of death under Florida Rule of Criminal Procedure 3.851.

Gaskin v. State, 218 S0.3d 399 (2017)

42 Fla. L. Weekly $16

Because the order concerns postconviction relief from two capital convictions for which two sentences of death were

imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the following

reasons, we affirm Gaskin's convictions and sentences.

The facts of this case were presented in this Court's opinion on direct appeal. Gaskin v. State, 591 So.2d 917 (Fla. 1991).

In 1989, Gaskin was convicted of two counts of first-degree murder (premeditated and felony murder) for the death

of Robert Sturmfels, two counts of first-degree murder (premeditated and felony murder) in the death of Georgette

Sturmfels, one count of armed robbery of the Sturmfels' home, one count of burglary of the Sturmfels' home, one count of

attempted first-degree murder of Joseph Rector, one count of armed robbery of Joseph and Mary Rector, and one count

of burglary of the Rectors' home. Id. at 918. In 1990, after the penalty phase, the jury recommended two death sentences

for both murders by a vote of eight to four. Id, at 919. The trial court sentenced Gaskin to death. Id. In 1991, this Court

affirmed Gaskin's premeditated murder convictions and two death sentences, reversed the two felony murder convictions

that were duplicative of the premeditated murder convictions, and remanded to the trial court for proceedings consistent

with its decision. Id. at 922. In 1993, Gaskin's sentences became final when the United States Supreme Court denied

certiorari review, Gaskin v. State, 510 U.S. 925, 114 S.Ct. 328, 126 L.Ed.2d 274 (1993). In 2002, this Court affirmed the

lower court's denial of Gaskin's initial motion for postconviction relief. Gaskin v. State, 822 So.2d 1243 (Fla. 2002). In

2014, pursuant to this Court's 1991 directive, the lower court vacated one felony murder conviction for each victim. In

2015, Gaskin filed his first successive motion to vacate the judgment of conviction, challenging the premeditated murder

convictions and death sentences, and alleging that the jury's use of both premeditated murder and felony murder as

aggravating circumstances amounted to improper doubling of aggravators. The postconviction court summarily denied

Gaskin's claims. Gaskin appealed to this Court, arguing that the postconviction court erred in summarily denying his

claim that his convictions should be vacated because the jury considered two vacated convictions to recommend the

death sentences. Gaskin also argues that he is entitled to relief in light of the United States Supreme Court's decision

Hurst v. Florida, —— U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). For the reasons below, we affirm the denial of

postconviction relief.

Standard of Review

[1] {2} A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case

conclusively show that the movant is not entitled to relief. Reed v. State, 116 So.3d 260, 264 (2013), This Court reviews

the circuit court's decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant's factual

| allegations as true to the extent that they are not refuted by the record, and affirming the ruling if the record conclusively

shows that the movant is not entitled to relief. Id.

*401 Merits

[3] Gaskin's claim of improper doubling is untimely and procedurally barred because the issue could have and should

have been raised on direct appeal.

In general, a postconviction movant must file for relief “within 1 year after [the movant's] judgment and sentence become

final.” Fla. R. Crim. P. 3.851(d)(1). A judgment and sentence become final “on the disposition of the petition for writ of

certiorari by the United States Supreme Court, if filed.” Fla. R. Crim. P. 3.851(d)(1)(B). Gaskin argues that his judgment

became final when the circuit court issued the corrected judgment in 2014. This is contrary to rule 3.851: Gaskin's sentence

became final in 1993, when the United States Supreme Court denied certiorari review. Gaskin, 510 U.S. at 936, 114S.Ct.

328: see State v. Johnson, 122 So.3d 856 (Fla. 2013) (Johnson's sentence became final in 2000, when the United States

Supreme Court denied certiorari review).

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

42 Fia. L. Weekly $16

[4] Additionally, Gaskin's claim is procedurally barred because Gaskin had the opportunity to challenge not only his

duplicative convictions on direct appeal but to challenge his sentences on the basis that the jury erroneously considered

the doubled convictions in recommending two death sentences. See Dennis v. State, 109 So.3d 680, 698 (Fla. 2012)

(holding that claims were procedurally barred because the movant could have raised them on direct appeal).

[5] Finally, Gaskin's argues that he is entitled to relief in light of Hurst v. Florida. Because Gaskin's sentence became

final in 1993, Gaskin is not entitled to relief under Hurst v. Florida. See Asay v. State, 210 So.3d 1, 29-30, 2016 WL

7406538 at *13 (Fla. 2016) (holding that Hurst is not retroactive to cases that became final before the United States

Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). Accordingly, we affirm

the circuit court's order summarily denying Gaskin's successive postconviction motion.

It is so ordered.

LABARGA, C.J., and QUINCE, and POLSTON, JJ., concur.

CANADY, J., concurs in result.

PARIENTE, J., concurs in part and dissents in part with an opinion.

PERRY, Senior Justice, concurs in part and dissents in part with an opinion.

LEWIS, J., dissents.

PARIENTE, J., concurring in part and dissenting in part.

While I agree with the majority's conclusion that Gaskin's claim of improper doubling is untimely and procedurally

barred, I write separately to express my disagreement with denying Gaskin relief under Hurst v. Florida ! and Hurst.

As I stated in my concurring in part and dissenting in part opinion in Asay, 3 fundamental fairness concerns emanating

from the constitutional rights at stake require us to hold Hurst fully retroactive to all death sentences imposed under

Florida's prior, unconstitutional capital sentencing scheme. Asay, 210 So.3d at 32, 2016 WL 7406538 (Fla. Dec. 22, 2016)

(Pariente, J., concurring in part and dissenting in part); see Hurst v. Florida, 136 S.Ct. at 622 (holding Florida's capital

*402 sentencing scheme unconstitutional). Thus, I would hold that Hurst applies retroactively to Gaskin. Further

determining that the Hurst error in Gaskin's sentence was not harmless beyond a reasonable doubt, I would grant Gaskin

a new penalty phase.

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

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

3 Asay, 210 So.3d at 26, 2016 WL 7406538 (Fla. Dec. 22, 2016).

Short of holding Hurst fully retroactive, I would at least apply Hurst to Gaskin because he, through his attorneys,

challenged the constitutionality of Florida's capital sentencing statute at trial in 1990 and, again, on direct appeal

in 1991. This Court summarily rejected Gaskin's claim on direct appeal, stating: “We also reject without discussion

Gaskin's multiple assertions regarding the constitutionality of the capital-sentencing statute as each of his arguments

has previously been decided adversely to his position.” Gaskin v. State, 591 So.2d 917, 920 (Fla. 1991). Although our

opinion did not detail Gaskin's constitutional challenges, the record on appeal reveals that Gaskin argued that “section

921.141 ... was unconstitutional on its face” for the reasons espoused by the United States Supreme Court in Ring * and

Hurst v. Florida and then further explained by this Court in Hurst:

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

42 Fla. L. Weekly S16

[Blefore a sentence of death may be considered by the trial court in Florida, the jury must find the existence of the

aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death,

and that the aggravating factors outweigh the mitigating circumstances. These same requirements existed in Florida

law when Hurst was sentenced in 2012—although they were consigned to the trial judge to make.

We also conclude that, just as elements of a crime must be found unanimously by a Florida jury, all these findings

necessary for the jury to essentially convict a defendant of capital murder—thus allowing imposition of the death

penalty—are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously

finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are

sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before

a sentence of death may be considered by the judge.

Hurst, 202 So.3d at 53-54 (footnotes omitted).

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

Amid a myriad of arguments as to how Florida's capital sentencing scheme violated the fundamental rights of

defendants facing the death penalty in Florida, Gaskin specifically argued that the statute “does not require a sentencing

recommendation by a unanimous jury or a substantial majority of the jury and thus results in the arbitrary and unreliable

application of the death sentence and denies the right to a jury and to due process of law.” ° Among Gaskin's several

motions, filed through counsel, 6 disputing the validity of Florida's *403 capital sentencing scheme was a “Motion

for Use of Special Verdict Form for the Unanimous Jury Determination of Statutory Aggravating Circumstances,”

citing among other constitutional bases the Sixth Amendment to the United States Constitution and article I, section

22, of the Florida Constitution. State v. Gaskin, No. 90-01/07/17 (Fla. May 10, 1990). Gaskin also filed a separate

motion to declare unconstitutional section 921.141, Florida Statutes, broadly arguing many of the deficiencies in the

statute that have now been recognized as constitutionally impermissible, such as jury overrides and the bare majority

jury recommendation. 7 Most closely resembling Hurst v. Florida and Hurst, Gaskin argued that section 921.141 is

facially unconstitutional because the “jury recommendation need not be unanimous,” nothing “require[s] the court to

instruct the jury that to return a recommendation of death, the jury must be convinced beyond every reasonable doubt

that the aggravating circumstances outweigh the mitigating circumstances,” “the jury is not required to list the specific

aggravating circumstances they have found beyond a reasonable doubt when they recommend the death penalty,” and

“it permits the trial judge to consider aggravating circumstances in imposing the death sentence that the advisory jury

may not have considered or that the advisory jury may have rejected.” Id. at 7-9. 8 Even without a finding a full

retroactivity, under Justice Lewis's concurring in result opinion in Asay, Hurst would apply retroactively to Gaskin under

James v. State, 615 So.2d 668 (Fla. 1993), because Gaskin asserted, presented, and preserved a challenge to the lack of

jury factfinding in Florida's capital sentencing procedure. Asay, 210 So.3d at 30, 2016 WL 7406538, at *20 (Lewis, J.,

concurring in result).

5 Gaskin v. State, No. SC76-326, Initial Br. of Appellant (Fla. Mar. 5, 1991), at 70; accord Gaskin v. State, Nos. 90-01 ; 90-07;

90-17, Motion to Preclude Imposition of the Death Penalty (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 7 (“Section 921.141

... is unconstitutional on its face because the jury recommendation need not be unanimous, thereby depriving the Defendant

to the rights to Due Process and to a unanimous jury verdict, in violation of Article I, Section 9, 16 and 22 of the Florida

Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.”).

The constitutional arguments made on behalf of Gaskin were a product of the advocacy of his lawyer Christopher S. Quarles,

an assistant public defender and a zealous advocate for his death penalty clients for decades,

7 Gaskin v. State, Motion to Preclude Imposition of the Death Penalty, Nos. 90-01 ; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla.

June 5, 1990), at 4 (“Section 921.141 ... is unconstitutional on its face because a jury recommendation of life in prison need not

be followed by the trial court judge.”); id. at 5 (“Section 921.141 ... is unconstitutional on its face because it permits the trial

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

42 Fla. L. Weekly S16

judge to overrule a jury life recommendation, contrary to the clear expression of the conscience of the community.” (citing

McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977)).

See Gaskin v. State, Motion to Prohibit Any Reference to the Advisory Role of the Jury, Nos. 90-01 ; 90-07; 90-17 (Flagler

Cty. Cir. Ct. Fla. June 5, 1990), at 2 (“Reference to the advisory role of the jury would deny the Defendant due process of

law and a fair trial ....”). See generally Hurst v. Florida, ——- U.S. ——, 136 S.Ct. 616, 193 L.Ed.2d 504; Ring, 536 U.S. 584,

122 S.Ct. 2428, 153 L.Ed.2d 556.

Because I would apply Hurst to Gaskin's case, I must now determine whether the Hurst error in Gaskin's penalty phase

was harmless beyond a reasonable doubt. On remand from the United States Supreme Court, this Court determined that

Hurst error is capable of harmless error review. Hurst, 202 So.3d at 67. In Hurst, we established the test for reviewing

these errors for harmlessness:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error

contributed to the sentence. See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the harmless error test

applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be

rigorously applied,” [State v.] DiGuilio, 491 So.2d [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy

burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the

*404 State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously

find all the facts necessary for imposition of the death penalty did not contribute to Hurst's death sentence in this

case. We reiterate:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more

probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device

for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the

effect of the error on the trier-of-fact.

DiGuilio, 491 So.2d at 1139, “The question is whether there is a reasonable possibility that the error affected the

[sentence].” Id.

202 So.3d at 68 (last alteration in original). As applied to the right to a jury trial with regard to the facts necessary to

impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found

that there were sufficient aggravating factors that outweighed the mitigating circumstances.

Gaskin's sentences became final in 1993. Majority op. at 400. The penalty phase jury voted eight to four to recommend

a sentence of death for both murders. Majority op. at 400. So not only are we unable to determine beyond a reasonable

doubt that the jury unanimously made the requisite findings to impose death as required by Hurst, but most significantly

in Gaskin's case, the jury may have relied on invalid aggravating factors to reach its mere eight to four recommendation

for death. See majority op. at 400. As the majority explained, this Court reversed and vacated Gaskin's sentences of

felony murder, which the sentencing jury likely considered in its weighing process. Majority op. at 400. Thus, for the

reasons stated above and under the test set forth by this Court in Hurst for determining whether Hurst errors are harmless

beyond a reasonable doubt, I would conclude that any error in Gaskin's nonunanimous sentencing recommendation was

not harmless beyond a reasonable doubt and Gaskin should, therefore, receive a new penalty phase under Hurst.

PERRY, Senior Justice, concurring in part and dissenting in part.

I concur in the majority's conclusion that Gaskin's claim of improper doubling is untimely and procedurally barred. See

majority op. at 401. However, I respectfully dissent from the majority's decision not to apply Hurst v. Florida, — U.S.

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

ai boty Ao A O48 Tharsenn Dartarc m lente tay minal gd et ork cen yn ment thf le

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

42 Fla. L. Weekly S16

I dissent because Hurst v. Florida does apply retroactively to Gaskin's case. In his present appeal, Gaskin once again

challenges the constitutionality of Florida's death penalty statute. The majority concluded that Gaskin was not eligible

for Hurst v. Florida relief because Gaskin's sentences became final in 1993, before the United States Supreme Court

decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See majority op. at 401.

For the reasons I dissented in part in Asay, I cannot agree with the majority's decision to limit the retroactive effect of

Hurst v. Florida to those cases that were not final before Ring. See Asay v. State, 210 So.3d 1, 37, 2016 WL 7406538

at *26 (Fla. 2016) (Perry, J., dissenting). I would find that Hurst v. Florida applies retroactively regardless of whether

asentence *405 became final before or after the Ring decision.

All Citations

218 So.3d 399, 42 Fla. L. Weekly S16

APPENDIX F: The order of the Circuit Court of the Seventh Judicial

Circuit denying Petitioner’s First Successive Motion to Vacate

Judgment of Conviction and Sentence. (Unreported) .

eee de bd ARE cend NE Gah UES

GASKINS, LOUIS vs. STATE OF FLORIDA

LT. CASE NO: 1990 CF 000001

HT. CASE NO: SC15-1884

IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT,

IN AND FOR FLAGLER COUNTY, FLORIDA

STATE OF FLORIDA

-VS- CASE NO.: 1990 CF 07

LOUIS BERNARD GASKIN, a/k/a DIVISION 50: Judge J. David Walsh

LOUIS BERNARD GASKINS,

Defendant.

ORDER DENYING FIRST SUCCEESSIVE MOTION TO VACATE JUDGMENT OF

CONVICTION AND SENTENCE .

This cause is before the court upon Defendant Gaskin’s above styled motion. A case

management conference was conducted on June 19, 2015. Both parties have submitted written

supplemental argument on the sole issue raised. This court finds as follows:

Following a jury trial Mr. Gaskin was convicted of the first degree premeditated murders

and first degree felony murders of Robert and Georgette Sturmfels, attempted murder of Joseph

Rector, two counts of armed robbery with a firearm and two counts of burglary with a firearm.

Mr. Gaskin was sentenced to four death penalties in the capital cases although there were only

two murders. On August 12, 2014 the tria) court entered a corrected judgment as directed by the

Florida Supreme Court in Gaskin y. State, 591 So.2d 917 (Fla. 1991). The Florida Supreme

Court had affirmed Gaskin’s convictions and sentences, but ordered the trial court to vacate two

of the adjudications for first-degree murder: one for each victim, leaving in place two

convictions for first degree murder and two death sentences. See Gaskin at 920. The case was

remanded to the trial court to effectuate this ministerial task.

Defendant Gaskin now alleges the corrected judgment and sentence vacating the death

penalties imposed in Counts II and IV of the indictment, and the adjudication of guilt in said

Filed in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 08/06/2015 03:36 PM

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