Opposition Brief — Troy Victorino, Petitioner v. Florida

CASE NO. 18-5434

IN THE SUPREME COURT OF THE UNITED STATES

TROY VICTORINO

Petitioner,

v.

STATE OF FLORIDA

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA SUPREME COURT

PAMELA JO BONDI

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI*

Associate Deputy Attorney General

Florida Bar #158541

*Counsel of Record

Carolyn.Snurkowski@myfloridalegal.com

capapp@mpyfloridalegal.com

DORIS MEACHAM

ASSISTANT ATTORNEY GENERAL

Fla. Bar #63265

444 Seabreeze Blvd., 5th Floor

Daytona Beach, FL 32118

(386) 238-4990

Fax # (386) 226-0457

doris.meacham@myfloridalegal.com

CapApp@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

[Capital Case]

Whether this Court should exercise its certiorari jurisdiction to review the Florida

Supreme Court’s ruling that Hurst does not require death sentences imposed in

violation of Hurst to be commuted to life, where the decision is based on adequate

independent state grounds and the issue presents no conflict between the decisions

of other state courts of last resort or federal courts of appeal, does not conflict with

this Court’s precedent, and does not otherwise raise an important federal question?

TABLE OF CONTENTS

CONTENTS

QUESTION PRESENTED o.oo ccccceessseseceseeceeeaseeneeseeseeesseeseeesaseseessnsserseesstseseeaes i

TABLE OF CONTENTS . 0.0... ccccccecccseccecesssceeseessesseesecesseesaeeeseensesnesseseesseesareeaeens il

TABLE OF AUTHORITIES. ....... cc ccccceeecseseessseeeteseeesecesaeeeseesatessecsseeeeeseeseeseneeaes ill

CITATION TO OPINION BELOW ...... ccc cccessseesssssesesesssetsssesssessseseeeseesseseesseessesas 1

STATEMENT OF JURISDICTION ...0... eee eeescesscseeesseeeseceseessaeesseeeseeesnsessessaeeenees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED eseseevennees ]

FACTS AND PROCEDURAL BACKGROUND ........ceecceesssssesssceseessecscsssessneseeesnes 1

REASONS FOR DENYING THE WRIT... ecesessseecsecsseessecseessesseesensseeseeesees 6

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE THE FLORIDA

SUPREME COURT’S RULING ON THE APPLICATION OF HURST RELIES

ON STATE LAW TO PROVIDE THAT SECTION 775.082(2), FLORIDA

STATUTES DOES NOT REQUIRE DEATH SENTENCES IMPOSED IN

VIOLATION OF HURST V. FLORIDA TO BE COMMUTED TO LIFE, AND

THE COURT’S RULING DOES NOT VIOLATE THE FIFTH

AMENDMENT’S DOUBLE JEOPARDY CLAUSE OR THE PROHIBITION

AGAINST EX POST FACTO LAWS AND DOES NOT CONFLICT WITH

ANY DECISION OF THIS COURT OR INVOLVE AN IMPORTANT,

UNSETTLED QUESTION OF FEDERAL LAW. .0......ccccccsscesessteessseeensseeseeessseens 6

1. Florida Statutes Section 775.082 Does Not Entitle Victorino To A

Commutation Of His Sentence Of Death. ..............cccccsssccsssccesesceeseessesessessseees 8

2. There Is No Underlying Constitutional Error................cccccccccccsssscssscssesseseees 15

3. The Prohibition Against Double Jeopardy Does Not Applly...............:0008 18

3. Ex Post Facto Considerations Do Not Apply. ...........:ccsscssccsseeetsesesesseeeneeaes 20

CONCLUSION oes cecessccssstcessseccsscessnsccseeesnsecsseesseneesetseesseesesseeesseesesuessseesessanenes 25

CERTIFICATE OF SERVICE..........::cccccssssesssessesssessssessssesaseesacesseeeesseeeecseeeseeenssens 26

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Cases

Allen v. Butterworth,

756 So. 2d 52 (Fla. 2000)... 2. ee 21

Alleyne v. United States,

570 U.S.99 (2013). 2 ce ee ee ee 16

Almendarez-Torres v. United States,

523 U.S. 224 (1998). we ee es 16

Bautista v. State,

863 So. 2d 1180 (Fla. 2003)... 2... 2c ee es 12

Beazell v. Ohio,

269 U.S. 167 (1925). ce es 22

Brown v. State,

521 So. 2d 110 (Fla. 1988). 2... ee 19

Cardinale v. Louisiana,

394 U.S. 437 (1969). we ee 8

Carmell v. Texas,

529 U.S. 513 (2000)... ee 23

Collins v. Youngblood,

497 U.S. 37 (1990). we ee 23

Cuyuhoga River Power Co. v. Northern Ohio Traction & Light Co.,

252 U.S. 388 (1920). wc ee 7

Davis v. Mich. Dep't of Treasury,

489 U.S. 803 (1989). 2 ee ee 12

Dobbert v. Florida,

432 U.S. 282 (1977). ees 21, 22

Enmund v. State,

458 U.S. 782 (1982). oe ee ee 19

Fasenmyer v. State,

457 So, 2d 1361 (Fla. 1984)... cc eee 20

Florida v. Powell,

559 U.S. 50 (2010)... ce ee ee 8

iti

Food & Drug Admin. y. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000). 2. ees 12

Forsythe v. Longboat Key Beach Erosion Control Dist.,

604 So.2d 452 (Fla. 1992)... cc ee ees 14

Fox Film Corp. v. Muller,

296 U.S. 207 (1935). we es 8

Franklin v. State,

209 So. 3d 1241 (Fla. 2016)... cc ee ee 10

Golf Channel v. Jenkins,

752 So. 2d 561 (Fla. 2000)... es 14

Hurst v. Florida,

136 S. Ct. 616 (2016)... ee Passim

Hurst v. State,

202 So. 3d 40 (Fla. 2016)... ee ee Passim

Jenkins v. Hutton,

137 S.Ct. 1769 (2017). 0 es 16

Johnson v. State,

205 So. 3d 1285 (Fla. 2016)... cee es 10

Kansas v. Carr,

136 S.Ct. 633 (2016)... ec eee 15

Kasischke v. State,

991 So. 2d 803 (Fla. 2008)... ce ee 14

Lambrix v. Sec’y, Fla. Dep’t of Corr.,

851 F.3d 1158 (11th Cir. 2017)... ee 17

Lynce v. Mathis,

519 U.S. 433 (1997). cs 21

McKibben v. Mallory,

293 So. 2d 48 (Fla.1974). 0. ee es 12, 13

Michigan v. Long,

463 U.S. 1032 (1983)... cs 8

Perry v. State,

210 So. 3d 630 (Fla. 2016)... 0 ee ee ee 9,14

Ring v. Arizona,

536 U.S. 584 (2002). 2. ce ee 5

iv

Rockford Life Ins. Co. v. Illinois Dep’t of Revenue,

482 U.S. 182 (1987). we es 7

Sattazahn v. Pennsylvania,

537 U.S. 101 (2003)... 1 ee ee ee ee 18

State v. Anderson,

764 So. 2d 848 (Fla. 3d DCA 2000)... 2 ee es 12

State v. C.M.,

154 So. 3d 1177 (Fla. 4th DCA 2015)... 1. ee es 14

State v. Mason,

2018 WL 1872180 (Ohio Apr. 18, 2018)... 0. eee ee 15

Schriro v. Summerlin,

542 U.S. 348 (2004) 2. ees 11,17

Troupe v. Rowe,

283 So. 2d 857 (Fla. 1973)... ee es 20

U.S. v. Shabani,

513 U.S. 10 (1994). wc ees 14

United States v. Sampson,

486 F.3d 13 (1st Cir. 2007)... 2.2 es 15

Victorino v. State,

23 So. 3d 87 (Fla. 2009)... ce es 1,4, 5

Victorino v. State,

127 So. 3d 478 (Fla. 2013)... ee es 5

Victorino v. State,

241 So. 3d 48 (Fla. 2018)... ee 1, 6, 21

Witt v. State,

387 So. 2d 922 (Fla. 1980)... ee 17

Wright v. State,

586 So. 2d 1024 (Fla. 1994)... ee 20

Ybarra v. Filson,

869 F.3d 1016 (9th Cir. 2017)... 2. ee es 17

Statutes

Fla. Stat. § 775.082 (1). ee ees 11

Fla. Stat. § 921.141(2) (2017). 2 es 21

FL. Const. Art. 1 §10 2 es 6

28 U.S.C. § 1257 (a). es 1

U.S. Const. Art. 1 § 9

Other Authorities

Senate Bill 153....

vi

CITATION TO OPINION BELOW

The decision of the Florida Supreme Court is reported at Victorino v. State,

241 So. 3d 48 (Fla. 2018) (Pet. App. A-2), reh'g denied, 2018 WL 2069254 (Fla.

May 3, 2018) (Pet. App A-14).

STATEMENT OF JURISDICTION

The judgment of the Florida Supreme Court was entered on March 8, 2018.

(Pet. App. A-2). Petitioner asserts that this Court’s jurisdiction is based upon 28

U.S.C. § 1257(a). Respondent agrees that this statutory provision sets out the scope

of this Court’s certiorari jurisdiction, but submits that this case is inappropriate for

the exercise of this Court’s discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent accepts Petitioner’s statement regarding the applicable

constitutional and statutory provisions involved.

FACTS AND PROCEDURAL BACKGROUND

On August 27, 2004, Troy Victorino was charged in a fourteen-count

superseding indictment that included six counts of first-degree murder in the deaths

of Erin Belanger, Roberto Gonzalez, Michelle Nathan, Anthony Vega, Jonathon

Gleason, and Francisco “Flaco” Ayo—Roman. Victorino v. State, 23 So. 3d 87, 91

(Fla. 2009). The evidence presented at trial established that the August 6, 2004,

murders were the culmination of events that began several days before. On Friday,

July 30, Erin Belanger contacted police concerning suspicious activity at her

grandmother's vacant house on Providence Boulevard in Deltona. Without the

owner's permission, Victorino and codefendant Hunter had recently moved into the

home with their belongings. On Saturday, Belanger again contacted police; this time

she reported that several items were missing from her grandmother's house. Late

Saturday night, Victorino appeared at Belanger's own residence on Telford Lane. He

demanded the return of his belongings, which he believed Belanger had taken from

the Providence Boulevard residence. Shortly after leaving Belanger's residence early

on the morning of Sunday, August 1, Victorino contacted law enforcement to report

the theft of his belongings from the Providence Boulevard residence. The responding

officer advised Victorino that he had to provide a list of the stolen property. This

angered Victorino, and he said, “T'll take care of this myself.”

On Thursday, August 5, codefendants Graham, Salas, and Cannon met with

Victorino and Hunter at their residence. There, Victorino outlined the following plan

to obtain his belongings from Belanger. Victorino said that he had seen a movie

named Wonderland in which a group carrying lead pipes ran into a home and beat

the occupants to death. Victorino stated that he would do the same thing at the

Telford Lane residence. He asked Graham, Salas, and Cannon if they “were down

for it” and said to Hunter, “I know you're down for it” because Hunter had

belongings stolen as well. All agreed with Victorino's plan. Victorino described the

layout of the Telford Lane residence and who would go where. Victorino said that

he particularly wanted to “kill Flaco,” and told the group, “You got to beat the

bitches bad.” Graham described Victorino as “calm, cool-headed.” codefendant

Hunter asked if they should wear masks; Victorino responded, “No, because we're

not gonna leave any evidence. We're gonna kill them all.”

On the morning of Friday, August 6, a coworker of two of the victims

discovered the six bodies at the Belanger residence and called 911. Officers

responding to the 911 call arrived to find the six victims in various rooms. The

victims had been beaten to death with baseball bats and had sustained cuts to their

throats, most of which were inflicted postmortem. Belanger also sustained

postmortem lacerations through her vagina up to the abdominal cavity of her body,

which were consistent with having been inflicted by a baseball bat. The medical

examiner determined that most of the victims had defensive wounds. The front door

had been kicked in with such force that it broke the deadbolt lock and left a footwear

impression on the door. Footwear impressions were also recovered from two playing

cards, a bed sheet, and a pay stub. All of these impressions were linked to Victorino's

Lugz boots. Furthermore, DNA testing linked bloodstains on Victorino's Lugz boots

to several of the victims.

On July 25, 2006, Victorino was convicted of six counts of first-degree murder

(Counts II—-VIJ); one count of abuse of a dead human body (Count VIII); one count

of armed burglary of a dwelling (Count XIII); one count of conspiracy (to commit

aggravated battery, murder, armed burglary of a dwelling, and tampering with

physical evidence) (Count J); and one count of cruelty to an animal (Count XIV). Jd.

at 91-3. The jury recommended life sentences for the murders of Michelle Nathan

and Anthony Vega and death sentences for the murders of Erin Belanger (by a vote

of ten to two), Francisco Ayo—Roman (by a vote of ten to two), Jonathan Gleason

(by a vote of seven to five), and Roberto Gonzalez (by a vote of nine to three). Id.

The trial court followed the jury's recommendation by imposing four death

sentences. Id. The trial court found the following five aggravating factors

applicable to each of the four murders and accorded them the weight indicated: (1)

the defendant had a prior felony conviction and was on probation at the time of the

murders (moderate weight); (2) the defendant had other capital felony convictions

(very substantial weight); (3) the defendant committed the murders in the course of

a burglary (moderate weight); (4) the murders were especially heinous, atrocious, or

cruel (HAC) (very substantial weight); and (5) the murders were cold, calculated,

and premeditated (CCP) (great weight). In addition, the court found a sixth

aggravator in the murders of Gleason and Gonzalez—that the murders were

committed to avoid arrest (substantial weight). The trial court found no statutory

mitigation but did find several nonstatutory mitigating factors. The trial court

determined that the aggravating factors far outweighed the mitigating circumstances

and, in accord with the jury's recommendation, sentenced Victorino to death for each

of the four murders. Victorino, 23 So. 3d at 94-95 (footnotes omitted). The

convictions and death sentences were affirmed on direct appeal. Jd. at 108.

Victorino’s case became final on direct appeal on March 1, 2010, when the petition

for writ of certiorari would have been due to this Court.

Victorino filed an amended motion for postconviction relief on August 1,

2011, asserting 17 claims. Victorino v. State, 127 So. 3d 478, 485 (Fla. 2013). One

of the claims alleged that the trial court erred in failing to find that his death

sentences were illegal under Ring v. Arizona, 536 U.S. 584 (2002). Victorino, 127

So. 3d at 485. An evidentiary hearing was held and the postconviction court issued

an amended order on February 17, 2012, denying relief. The Florida Supreme

Court affirmed the denial on October 10, 2013, and denied Victorino’s petition for

writ of habeas corpus. Jd. at 503.

On December 28, 2016, Victorino filed a successive postconviction motion

based upon Hurst v. Florida, 136 S. Ct. 616 (2016) and Hurst v. State, 202 So. 3d

40 (Fla. 2016). The trial court granted in part and denied in part the successive

motion. The trial court ruled that Hurst applied to Victorino’s case because it became

final after Ring, and that the Hurst error was not harmless beyond a reasonable doubt

because the jury recommendations for the death penalty were not unanimous. The

trial court denied Victorino’s argument that he was entitled to be resentenced to life

in prison, as well as his arguments regarding double jeopardy and ex post facto laws.

On June 14, 2017, the trial court vacated Victorino’s death sentences and ordered

that new penalty phase proceedings be held. On July 11, 2017, Victorino filed a

notice of appeal in the Florida Supreme Court, challenging the denial of several

claims! raised in his successive postconviction motion. On March 8, 2018, the

Florida Supreme Court issued its Opinion affirming the trial court’s denial of such

claims. Victorino v. State, 241 So. 3d 48, 49-50 (Fla. 2018), reh'g denied, 2018 WL

2069254 (Fla. May 3, 2018).

On July 30, 2018, Victorino filed a Petition for Writ of Certiorari to this Court.

REASONS FOR DENYING THE WRIT

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE THE

FLORIDA SUPREME COURT’S RULING ON THE

APPLICATION OF HURST RELIES ON STATE LAW TO

PROVIDE THAT SECTION 775.082(2), FLORIDA STATUTES

DOES NOT REQUIRE DEATH SENTENCES IMPOSED IN

VIOLATION OF HURST V. FLORIDA TO BE COMMUTED TO

LIFE, AND THE COURT’S RULING DOES NOT VIOLATE

THE FIFTH AMENDMENT’S DOUBLE JEOPARDY CLAUSE

OR THE PROHIBITION AGAINST EX POST FACTO LAWS

AND DOES NOT CONFLICT WITH ANY DECISION OF THIS

COURT OR INVOLVE AN IMPORTANT, UNSETTLED

QUESTION OF FEDERAL LAW.

Victorino requests that this Court review the Florida Supreme Court’s post-

1 Issue I-Florida Statutes Section 775.082(2) requires a life sentence without

parole; Issue II-Double Jeopardy claim; and Issue III- Prohibition against ex post

facto laws contained in Article 1, Sections 9 and 10 of the United States Constitution

and in Article 1, Section 10, of the Florida Constitution. (Pet. App. A-16).

6

Hurst decision vacating his four death sentences and remanding for a new penalty

phase. Victorino claims that the State should not be allowed to seek the death penalty

at the new penalty phase as it would be a violation of the Fifth Amendment’s Double

Jeopardy Clause as well as a violation of Ex Post Facto laws. Victorino fails to

establish why a Hurst error entitles him to a life sentence, when neither Hurst nor

any other defendant seeking relief pursuant to Hurst has been afforded one. There is

no basis to grant certiorari on this issue.

Citing to the Fifth and Fourteenth Amendments does not automatically

convert Victorino’s claims to due process violations. Cuyuhoga River Power Co. v.

Northern Ohio Traction & Light Co., 252 U.S. 388, 397 (1920) (explaining that a

federal question must exist “not in mere form but in substance, and not in mere

assertion, but in essence and effect.”). As will be shown, nothing about the Florida

Supreme Court’s decision is inconsistent with the United States Constitution.

Victorino’s claims do not otherwise involve an unsettled, important federal question

or a federal question with ramifications beyond the case presented, and cases that do

not present a decisional split or unresolved federal question do not merit certiorari

review. Rockford Life Ins. Co. v. Illinois Dep't of Revenue, 482 U.S. 182, 184 n.3

(1987). Victorino does not provide any “compelling” reason for this Court to

review his case, nor can he cite to any decision from this or any appellate court that

conflicts with the Florida Supreme Court’s denial of Victorino’s automatic

resentencing to life claim. Victorino’s petition is no more than an attempt to have

this Court review his case as he disagrees with the Florida Supreme Court’s holding.

Nothing presented in the petition justifies the exercise of this Court’s certiorari

jurisdiction.

1. Florida Statutes Section 775.082 Does Not Entitle Victorino To A

Commutation Of His Sentence Of Death.

This Court’s review of the Florida Supreme Court’s interpretation of Florida

law is not warranted. The Florida Supreme Court’s interpretation of §775.082 (2) is

not violative of federal law or this Court’s precedent. This Court has repeatedly

recognized that where a state court judgment rests on non-federal grounds, where

the non-federal grounds are an adequate basis for the ruling independent of the

federal grounds, “our jurisdiction fails.” Fox Film Corp. v. Muller, 296 U.S. 207,

210 (1935); see also Michigan v. Long, 463 U.S. 1032, 1040 (1983) (“Respect for

the independence of state courts, as well as avoidance of rendering advisory

opinions, have been the cornerstones of this Court's refusal to decide cases where

there is an adequate and independent state ground.”); Cardinale v. Louisiana, 394

US. 437, 438 (1969) (reaffirming that this Court has no jurisdiction to review a state

court decision on certiorari review unless a federal question was raised and decided

in the state court below). If a state court’s decision is based on separate state law,

this Court “of course, will not undertake to review the decision.” Florida v. Powell,

559 U.S. 50, 57 (2010); Long, 463 U.S. at 1041.

8

Victorino’s case became final on direct appeal on March 1, 2010, when the

petition for writ of certiorari would have been due to this Court. After filing a

successive postconviction motion based upon Hurst v. Florida, and Hurst v. State,

the trial court ruled that Hurst applied to Victorino’s case because it became final

after Ring, and that the Hurst error was not harmless beyond a reasonable doubt

because the jury recommendations for the death penalty were not unanimous. The

trial court vacated Victorino’s death sentences and ordered that new penalty phase

proceedings be held.

Irrespective of the court’s decision, Victorino asserts that he is entitled to a

life sentence pursuant to section 775.082(2), Florida Statutes, which provides:

(2) In the event the death penalty in a capital felony is held to be

unconstitutional by the Florida Supreme Court or the United States

Supreme Court, the court having jurisdiction over a person previously

sentenced to death for a capital felony shall cause such person to be

brought before the court, and the court shall sentence such person to

life imprisonment as provided in subsection (1). No sentence of death

shall be reduced as a result of a determination that a method of

execution is held to be unconstitutional under the State Constitution or

the Constitution of the United States.

However, this section only applies if capital punishment as a penalty is

declared unconstitutional, and that clearly has not happened. Perry v. State, 210 So.

3d 630, 633 (Fla. 2016) (explaining that Hurst v. State did not declare the death

penalty unconstitutional); and Hurst, 202 So. 3d at 65 (Hurst v. Florida was decided

on Sixth Amendment grounds and “nothing in that decision suggests a broad

indictment of the imposition of the death penalty generally[...]the death penalty still

remains the ultimate punishment in Florida.”).

Contrary to Victorino’s arguments, he is not entitled to be resentenced to life

in prison in accordance with Florida Statutes, section 775.082(2), or based upon the

Hurst ruling. Neither this Court nor the Florida Supreme Court declared Florida’s

death penalty statute to be unconstitutional post-Hurst. As the Florida Supreme

Court has distinctly explained, the statute “does not mandate automatic commutation

to life sentences after the decision in Hurst v. Florida.” Hurst, 202 So. 3d at 65.

Moreover, the Florida Supreme Court has consistently rejected similar claims to life

sentences. See Johnson v. State, 205 So. 3d 1285, 1289 (Fla. 2016) (rejecting

Johnson's argument that his case should be remanded to the trial court for imposition

of a life sentence); Franklin v. State, 209 So. 3d 1241, 1248 (Fla. 2016) (refusing to

remand Franklin’s case to the trial court for imposition of a life sentence); and Hurst

v. State, 202 So. 3d 40, 65 (Fla. 2016) (rejecting Hurst’s claim that section

775.082(2) of Florida Statues entitles him to a life sentence because that section is

only imposed if capital punishment as a penalty is declared unconstitutional).

Likewise, this Court did not eliminate capital sentencing as an option in

Florida. Rather, this Court ruled in Hurst that Florida’s sentencing scheme, not the

statute itself, was unconstitutional. Any argument to the contrary goes beyond the

holding in Hurst. The new rule announced in Hurst v. Florida, and expanded in

10

Hurst v. State, allocated the authority regarding capital sentencing decisions from

the judge to the jury. This Court’s ruling was a narrow one: “Florida’s sentencing

scheme, which required the judge alone to find the existence of an aggravating

circumstance, is . .. unconstitutional.” Hurst v. Florida, 136 S. Ct. at 624 (emphasis

added). However, Hurst, like Ring, was a procedural change, not a substantive one.

See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (“Ring announced a new

procedural rule that does not apply retroactively to cases already final on direct

review.”).

This Court noted that under Florida Statutes, section 775.082 (1) the jury

played an advisory role in the sentencing of capital defendants in Florida, with the

trial court being the fact finder as to whether or not aggravating circumstances

existed to impose a death sentence. Hurst, 136 S. Ct. at 622. This Court ruled that

the state’s sentencing scheme violated the Sixth Amendment, which this Court stated

“required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a

judge’s factfinding.” Jd. at 624. However, this Court did not declare that Florida’s

death penalty was unconstitutional. It simply ruled that the procedure for imposition

of such sentence was unconstitutional. Moreover, the fact that this Court remanded

for a determination of harmless error shows that Florida’s death penalty has not been

held unconstitutional. Otherwise, this Court would have directed that Hurst’s death

sentence be vacated.

11

Furthermore, the Florida Supreme Court has soundly rejected the view that

section 775.082 applies post-Hurst. It is a “‘fundamental canon of statutory

construction that the words of a statute must be read in their context and with a view

to their place in the overall statutory scheme.’” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep't

of Treasury, 489 U.S. 803, 809 (1989)). “To discern legislative intent, courts must

consider the statute as a whole, including the evil to be corrected, the language, title,

and history of its enactment, and the state of law already in existence on the statute.”

Bautista v. State, 863 So. 2d 1180, 1185-86 (Fla. 2003) (citing State v. Anderson,

764 So. 2d 848, 849 (Fla. 3d DCA 2000) (citing McKibben v. Mallory, 293 So. 2d

48, 52 (Fla.1974)). The first step is to examine the plain language of the statute. In

deciding that all death-sentenced defendants are not entitled to a commutation of

their death sentences to life, the Florida Supreme Court found as follows:

When section 775.082(2) is viewed in the context of this State's

response to the plurality opinion in Furman, and in light of the fact that

Furman was based on Eighth and Fourteenth Amendment principles,

we conclude that the statute does not mandate automatic commutation

to life sentences after the decision in Hurst v. Florida. Hurst v. Florida

was decided on Sixth Amendment grounds and nothing in that decision

suggests a broad indictment of the imposition of the death penalty

generally. Ring was also decided on Sixth Amendment grounds, and

that decision did not require the state court to vacate all death sentences

and enter sentences of life and did not address the range of conduct that

a state may criminalize. After Hurst v. Florida, the death penalty still

remains the ultimate punishment in Florida, although the Supreme

Court has now required that all the critical findings necessary for

imposition of the death penalty be transferred to the jury.

12

There is no indication in the Hurst v. Florida decision that the Supreme

Court intended or even anticipated that all death sentences in Florida

would be commuted to life, or that death as a penalty is categorically

prohibited. Moreover, the text of section 775.082(2) refers to the

occasion that “the death penalty” is held to be unconstitutional to

determine when, and if, automatic sentences of life must be imposed.

This provision is intended to provide a “fail safe” sentencing option in

the event that “the death penalty’—as a penalty—is declared

categorically unconstitutional.?!

[FN21]. Our construction of section 775.082(2) is supported by

historical records concerning this legislation at the time it was being

considered by the Legislature. For example, in a September 13, 1971,

letter from then-Attorney General Robert L. Shevin to Senator David

McClain, who introduced Senate Bill 153 which enacted the statutory

language at issue, the Attorney General stated, “I have read with interest

your prefiled bill to amend the State's death penalty statute to provide

life imprisonment if the Supreme Court of the United States bans the

death penalty.” (Available at Fla. Dep't of State, Div. of Archives,

Tallahassee, Fla., Series 19, Box 458). Within those same records

appears a report titled “Subject: SB 153 by McCLAIN declaring that

persons sentenced to death shall, if the death penalty is ruled

unconstitutional, be sentenced to life imprisonment.” In _ that

memorandum, it is also stated, “The death penalty is currently being

considered by the Supreme Court. If it is declared unconstitutional,

some disposition will need to be made of persons who are currently

under a death sentence.” Id. The memorandum further states,

“Assuming that capital punishment is held unconstitutional, life

imprisonment would still be a constitutional means of punishment.” Jd.

The Supreme Court in Hurst v. Florida focused its decision on that

portion of the capital sentencing process requiring a judge rather than a

jury to make all the findings critical to the imposition of the death

penalty. The Court did not declare the death penalty unconstitutional.

Accordingly, we hold that section 775.082(2) does not require

commutation to life under the holding of Hurst v. Florida, which did

not invalidate death as a penalty, but invalidated only that portion of the

13

process which had allowed the necessary factfinding to be made by the

judge rather than the jury in order to impose a sentence of death.

Hurst v. State, 202 So. 3d 40, 65-66 (Fla. 2016). See also Perry, 210 So. 3d at 633

(explaining that Hurst v. State did not declare the death penalty unconstitutional).

Finally, Victorino seeks to avail himself of the rule of construction, also

referred to as the rule of lenity. But the rule of lenity does not help him here. The

Florida Supreme Court has stated “the rule of lenity is a canon of last resort.”

Kasischke v. State, 991 So. 2d 803, 814 (Fla. 2008) (citing U.S. v. Shabani, 513 U.S.

10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting

traditional canons of statutory construction, we are left with an ambiguous statute.”).

This Court only looks to the rule of lenity if, after examining all other canons of

statutory construction, the legislative intent is still ambiguous. Here, no such

egregious ambiguity exists. Accordingly, neither a plain reading of section 775.082

(2) nor the rule of lenity supports Victorino’s argument.

The Separation of Powers Clause of the constitution does not allow the courts

to rewrite statutes. See State v. C.M., 154 So. 3d 1177, 1180 (Fla. 4th DCA 2015)

(internal citation and quotation marks omitted) (“The courts are not at liberty to add

words to statutes that were not placed there by the Legislature. To do so, would be

an abrogation of legislative power.”). “It is a fundamental principle of statutory

construction that where a statute is plain and unambiguous there is no occasion for

judicial interpretation.” Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000)

14

(alteration in the original) (quoting Forsythe v. Longboat Key Beach Erosion Control

Dist., 604 So.2d 452, 454 (Fla. 1992)). Certiorari review should be denied.

2. There Is No Underlying Constitutional Error

Certiorari is unwarranted in this case because there was no underlying

constitutional error warranting resentencing in this case. The Florida Supreme

Court’s vast expansion of the holding in Hurst v. Florida was not required or even

suggested by this Court’s holding. For example, Hurst v. Florida requires the jury

to find one aggravating circumstance existed, not that every aggravating

circumstance must be found to exist, before rendering a defendant eligible for the

death penalty. Likewise, Hurst v. Florida did not establish a new Sixth Amendment

right to have a jury determine whether mitigating circumstances exist and determine

whether mitigation is sufficiently substantial to warrant leniency.* Additionally,

Hurst v. Florida did not hold that there is a constitutional right to jury sentencing.

*See SeeSeKansas v. Carr, 136 S.Ct. 633, 642 (2016) (rejecting a claim that

the constitution requires a burden of proof on whether or not mitigating

circumstances outweigh aggravating circumstances, noting that such a question is

“mostly a question of mercy”). See also State v. Mason, 2018 WL 1872180, *5-6

(Ohio Apr. 18, 2018) (“Nearly every court that has considered the issue has held that

the Sixth Amendment is applicable to only the fact-bound eligibility decision

concerning an offender’s guilt of the principle offense and any aggravating

circumstances” and that “weighing is not a factfinding process subject to the Sixth

Amendment.”); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (“As other

courts have recognized, the requisite weighing constitutes a process, not a fact to be

found.”).

15

Since the Florida Supreme Court’s holding in Hurst v. State was a product of state

law, and does not present a federal question, this Petition should be denied.

In contrast to the defendant in Hurst, here, Petitioner was found guilty of

multiple counts of first degree murder, which satisfied the contemporaneous violent

felony aggravator under Florida law. See Jenkins v. Hutton, 137 S.Ct. 1769, 1772

(2017) (noting that the jury’s findings that defendant engaged in a course of conduct

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

aggravated murder rendered him eligible for the death penalty). Petitioner also

possessed a prior violent felony conviction. Consequently, Petitioner entered the

penalty phase eligible for a death sentence. See Alleyne v. United States, 570 U.S.

99, 111 n.1 (2013) (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998))

(prior convictions are “a narrow exception” to the Sixth Amendment requirement

that defendants have a right to have a jury find facts which expose a defendant to a

greater punishment). Based on these two factors in Petitioner’s case, there was no

Hurst v. Florida error.

The error complained of in the instant petition is the violation of the expanded

sentencing requirements created in Hurst v. State, not the federal constitutional

requirements set forth in Hurst v. Florida. Thus, any violation of that state holding

in Petitioner’s case would not be reviewed under federal law. No question of federal

law has been presented for this Court’s review.

16

Aside from failing to present any federal constitutional error, this case is also

inappropriate for certiorari review because this Court would first have to decide the

predicate question of retroactivity. Petitioner’s case was final in 2010, well before

this Court decided Hurst. Hurst is only applicable to Petitioner through a more

expansive state law test for retroactivity, providing retroactive application to the date

this Court decided Ring in 2002. As Ring, and by extension Hurst, has been held

not to be retroactive under federal law, Florida has implemented a test which

provides relief to a broader class of individuals in applying Witt v. State, 387 So. 2d

922, 926 (Fla. 1980) instead of Teague for determining the retroactivity of Hurst.

See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that “Ring announced

a new procedural rule that does not apply retroactively to cases already final on direct

review’). Federal courts have had little trouble determining that Hurst, like Ring, is

not retroactive at all under Teague. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851

F.3d 1158, 1165 n.2 (11th Cir. 2017) (“under federal law Hurst, like Ring, is not

retroactively applicable on collateral review”), cert. denied, 138 S. Ct. 217 (2017);

Ybarra v. Filson, 869 F.3d 1016, 1032-33 (9th Cir. 2017) (denying permission to

file a successive habeas petition raising a Hurst v. Florida claim concluding that

Hurst v. Florida did not apply retroactively). Consequently, this Court would first

have to find Hurst retroactive under federal law, overruling Schriro vy. Summerlin,

before reaching the underlying question of harmlessness. Certiorari should be

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denied.

3. The Prohibition Against Double Jeopardy Does Not Apply.

Victorino argues that because his death sentence was vacated as a result of the

Hurst decisions, the Florida and United States Constitutions prohibit him from being

subjected to the death penalty again because of double jeopardy. Victorino was never

“acquitted” of capital murder. Victorino confuses a remand for retrial or

resentencing with an acquittal in his argument pertaining to double jeopardy.

This Court’s precedent is clear that the Fifth Amendment’s Double Jeopardy

Clause would not bar the State from seeking the death penalty at a new penalty phase

following the Florida Supreme Court’s reversal of Victorino’s previous four death

sentences. As this Court discussed in Sattazahn v. Pennsylvania, 537 U.S. 101, 114

(2003), a retrial of a capital defendant does not implicate double jeopardy, stating,

“[nJor, in these circumstances, does the prospect of a second capital-sentencing

proceeding implicate any of the perils against which the Double Jeopardy Clause

seeks to protect.” (internal quotations omitted). This Court rejected the defendant’s

double jeopardy claim because he had not been “acquitted” of the offense of “murder

plus aggravating circumstance(s).” Jd. at 112. This Court noted that the first

sentencing jury deliberated and did not make any findings regarding aggravating and

mitigating circumstances and thus, there was no double jeopardy bar to Pennsylvania

seeking the death penalty on retrial. /d. at 112-13.

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Similarly, in this case, Victorino was never “acquitted” of capital murder and

the jury was not asked, nor did they make, any findings regarding the existence of

aggravating or mitigating circumstances. Rather, the jury simply returned a

recommendation that Victorino receive the death penalty on four counts of first

degree murder. Based on this Court’s Hurst decision, as well as the Florida Supreme

Court’s interpretation of Hurst on remand, the Florida Supreme Court ruled that the

Hurst error in Victorino’s case was not harmless and reversed for a new penalty

phase. Since the jury never acquitted Victorino of capital murder and the death

penalty, the Fifth Amendment Double Jeopardy Clause does not prohibit the State

from again seeking the death penalty at the new penalty phase.

Victorino’s argument that the “Florida Supreme Court has consistently ruled

that once a Florida judge or jury deems a defendant an inappropriate candidate for

the death penalty, that Defendant cannot again be put at risk of receiving the death

penalty,” has no relevance here. Victorino has not been found an inappropriate

candidate for the death penalty. The fact that he was convicted of six counts of first

degree murder in a case in which the State is seeking the death penalty makes him

eligible for the death penalty. None of the cases cited by Victorino prove otherwise.

In addition, each of Victorino’s cases are distinguishable. In Brown v. State,

521 So. 2d 110 (Fla. 1988), the trial court erroneously ruled that Enmund v. State,

458 U.S. 782 (1982) barred the imposition of the death penalty in the case. Brown,

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521 So. 2d at 111-112. No such ruling has taken place in the instant case. In

Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984), which did not involve the death

penalty, the trial court increased the severity of the defendant’s sentence following

a successful appeal. Troupe v. Rowe, 283 So. 2d 857 (Fla. 1973), also a non-death

penalty case, involved a prosecutor trying to increase a defendant’s sentence after

the defendant had been sentenced and jeopardy attached. Because Victorino was

previously sentenced to death, which is the most severe punishment any defendant

can receive, a new penalty phase would not increase the severity of his sentence.

Thus, Fasenmyer and Troupe do not apply here. Wright v. State, 586 So. 2d 1024

(Fla. 1994), involved a trial judge’s override of a jury’s recommendation for a life

sentence. In contrast, Victorino’s trial court followed the jury's recommendation

by imposing four death sentences. As a result, Wright is not applicable. Petitioner

identifies no conflict in authority, let alone a conflict that warrants this Court’s

review. The ruling below did not conflict with any relevant decision of this Court,

federal circuit courts of appeal, or the highest court of a state on an important legal

principle, nor did it decide an unsettled question of federal law.

3. Ex Post Facto Considerations Do Not Apply.

Florida's revised capital sentencing scheme, which requires the jury to

unanimously and expressly find all the aggravating factors that were proven beyond

a reasonable doubt, unanimously find that sufficient aggravating factors exist to

20

impose death, unanimously find that the aggravating factors outweigh the mitigating

circumstances, and unanimously recommend a sentence of death before the trial

judge may consider imposing a sentence of death, see § 921.141(2), Fla. Stat. (2017),

neither alters the definition of criminal conduct nor increases the penalty by which

the crime of first-degree murder is punishable. Victorino v. State, 241 So. 3d 48 (Fla.

2018). The range of conduct punished by death in Florida remains the same.

Nevertheless, Victorino argues that to apply the recent, post-Hurst case law

retroactively to make the defendant death-eligible would violate the constitutional

prohibitions against ex post facto laws.

Generally, under the Florida Constitution, the legislature is empowered to

enact substantive law while the Florida Supreme Court has the authority to enact

procedural law. See Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000). For a

criminal law to be ex post facto it must be retrospective, that is, it must apply to

events that occurred before its enactment; and it must alter the definition of criminal

conduct or increase the penalty by which a crime is punishable. Lynce v. Mathis, 519

US. 433, 441 (1997). In Dobbert v. Florida, 432 U.S. 282, 292 (1977), this Court

held that ex post facto prohibitions reach only those legislative enactments that affect

substantive criminal law. This Court summarized the categories of laws constituting

substantive changes to criminal law:

[A]ny statute which punishes as a crime an act previously committed,

which was innocent when done; which makes more burdensome the

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punishment for a crime, after its commission, or which deprives one

charged with crime of any defense available according to law at the

time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).

This Court did not rule Florida’s death penalty to be unconstitutional, but

simply mandated that imposition of the sentence be supported by jury fact-finding.

In response, Florida adopted new procedural requirements that, among other

things, mandated that all factual findings necessary to impose death be found by a

unanimous jury. The Florida Supreme Court’s interpretation of Hurst v. Florida in

Hurst v. State greatly expanded that procedural rule. Nevertheless, it remained a

procedural rule and not a “definition” of Florida’s death penalty statute.

In Dobbert v. Florida, this Court ruled that even a procedural change that may

work to the disadvantage of the defendant is not ex post facto. Dobbert v. Florida,

432 U. S. 282, 293 (1977). The defendant there committed first degree murders in

1971 and 1972. The procedures used in Florida’s then-existing capital sentencing

statute were found unconstitutional in June of 1972, and the revised capital

sentencing statute was enacted in late 1972, after the commission of Dobbert’s last

murder. Not only were ex post facto challenges to the application of the revised

statute to Dobbert rejected by this Court, but the Court emphasized the “operative

fact” of the existence of the prior death penalty statute at the time of the offenses

served to warn Dobbert of the penalty that could be imposed. Dobbert, 432 U.S. at

22

298. The existence of the statutory sentence of death at the time of the commission

of the offense served as an indication of the controlling legislative intent, i.e., that

the Florida Legislature intended that a sentence of death be a viable option in that

case. Significantly, the Dobbert Court expressly concluded that the revised

procedures implemented by the Florida Legislature did not violate the rule

forbidding application of ex post facto laws, as the changes effected were merely a

matter of procedure.

Thus, a legislative act affecting changes in criminal procedure, including

procedural changes that disadvantage a defendant, generally does not violate the ex

post facto clause. Carmell v. Texas, 529 U.S. 513, 543-44 (2000) (recognizing no

one has vested right in mode of procedure); Collins v. Youngblood, 497 U.S. 37, 45

(1990) (“[Procedural] refers to changes in the procedures by which a criminal case

is adjudicated, as opposed to changes in the substantive law of crimes.”).

A new penalty phase proceeding does nothing to criminalize behavior that

was not criminalized when Victorino was originally tried, and ex post facto laws

simply do not apply. Victorino fails to articulate any law that would be erroneously

applied retrospectively or even any aggravating circumstance that the State would

be seeking in a new penalty phase proceeding that was not sought in his original

proceeding. Victorino was granted no “immunity” from the death penalty and is not

a member of any protected class for which the death penalty cannot be sought. There

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