Petition for Writ of Certiorari — Eriese Alphonso Tisdale, Petitioner v. Florida

Supreme Court briefFeb 6, 2019

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No.

October Term 2018

IN THE SUPREME COURT OF THE UNITED STATES

ERIESE ALPHONSO TISDALE

Petitioner,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

CAPITAL CASE

JEFFREY H. GARLAND

Counsel of Record

Fla. Bar No. 320765

JEFFREY H. GARLAND, P.A.

2500 Rhode Island Ave., Suite B

Fort Pierce, FL 34947-4771

Telephone (772) 489-2200

Facsimile (772) 489-610

E-mail: jgarland@treasurecoastlawyer.com

February 6, 2019

CAPITAL CASE

QUESTION PRESENTED

Whether the Florida Supreme Court’s failure to apply a statutory amendment,

Chapter 2016-13, Laws of Florida, which required a vote of no less than 10

jurors to impose the death penalty to a 9-3 vote and where sentence was

imposed after the effective date of the amendment, violates due process and

double jeopardy under the Fifth, Sixth, Eighth and Fourteenth Amendments.

LIST OF PARTIES

[ X ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of all parties to the

proceeding in the court whose judgment is the subject of this petition is as follows:

TABLE OF CONTENTS

JURISDICTION..............................................................................................................................vi

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED......................................vii

STATEMENT OF THE CASE........................................................................................................1

REASONS FOR GRANTING THE WRIT......................................................................................3

CONCLUSION...............................................................................................................................10

INDEX TO APPENDICES

(Separately Bound)

APPENDIX A - Reported Opinion in Tisdale v. State

APPENDIX B - Appellee’s Notice to Court and for Motion for Clarification (filed 11/15/18)

APPENDIX C - 11/29/18 Notice of Correction

APPENDIX D - 11/29/18 Corrected Opinion in Tisdale v. State

APPENDIX E - 11/29/18 Mandate

iii

TABLE OF AUTHORITIES

Cases

Alabama v. Smith, 490 U.S. 794 (1989)...........................................................................................8

Alleyne v. United States, 133 S.Ct. 2151 (2013)..............................................................................7

Apprendi v. New Jersey, 530 U.S. 466 (2000)..................................................................................7

Arizona v. Rumsey, 467 U.S. 2003 (1984)................................................................................3, 8, 9

Brown v. State, 358 So.2d 16 (Fla. 1978).........................................................................................6

Bullington v. Missouri, 451 U.S. 430 (1981)............................................................................7, 8, 9

Burks v. United States, 437 U.S. 1 (1978)........................................................................................8

Dobbert v. Florida, 432 U.S. 282 (1977).........................................................................................6

Evans v. State, 213 So.3d 856 (Fla. 2017)........................................................................................4

Furman v. Georgia, 408 U.S. 238 (1972)........................................................................................7

Hurst v. Florida,

U.S.

, 136 S.Ct. 161 (2016).....................................................2, 3, 5

Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017)............................3, 5

Miller v. Florida, 482 U.S. 423 (1987)............................................................................................6

North Carolina v. Pearce, 395 U.S. 711 (1969)...............................................................................8

Perry v. State, 210 So.3d 630 (Fla. 2016).....................................................................................3, 4

Ring v. Arizona, 536 U.S. 584 (2002)...........................................................................................2, 3

Tisdale v. State,

So.3d

(Fla. Nov. 8, 2018, Case No. SC16-1032)......................iii, vi

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).....................................................9

Laws of Florida

Chapter 2016-13..................................................................................................i, 2, 3, 4, 5, 6, 9, 10

Chapter 2017-1.................................................................................................................................3

Statutes

775.082(1)........................................................................................................................................2

775.082(1)(a).................................................................................................................................3, 5

782.04(1)(b)..........................................................................................................................2, 3, 4, 5

921.141.................................................................................................................................2, 3, 4, 5

921.141(3)(a)(1)...............................................................................................................................5

United States Code

28 U.S.C. §1257(a)..........................................................................................................................vi

28 U.S.C. §2101(d)..........................................................................................................................vi

Constitutional Provisions

Fifth Amendment..................................................................................................i, vii, 3, 7, 8, 9, 10

Sixth Amendment.........................................................................................................i, vii, 3, 9, 10

Eighth Amendment................................................................................................i, vii, 3, 6, 7, 9, 10

Fourteenth Amendment.........................................................................................i, vii, 3, 6, 7, 9, 10

PARTIES TO THE PROCEEDINGS BELOW

The Petitioner, Eriese Alphonso Tisdale, an indigent, death-sentenced Florida prisoner, was

the Appellant in the Florida Supreme Court.

The Respondent, the State of Florida, was the Appellee in the state court proceedings.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Eriese Alphonso Tisdale prays that a Writ of Certiorari issue to review the opinion

of the Florida Supreme Court.

CITATIONS TO OPINION BELOW

The opinion of the Florida Supreme Court in this case, reported as Tisdale v. State,

So.3d

(Fla. Nov. 8, 2018, Case No. SC16-1032), is attached to this Petition as “Exhibit A”.

STATEMENT OF JURISDICTION

Petitioner invokes this Court’s jurisdiction to grant the Petition for a Writ of Certiorari to the

Florida Supreme Court on the basis of 28 U.S.C. §§ 1257(a) and 2101(d). The Florida Supreme

Court issued its original opinion on November 8, 2018, and a corrected opinion on November 29,

2018. This Petition is timely filed.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in pertinent part:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of

life or limb...

[N]or be deprived of life, liberty, or property, without due process of law.

The Sixth Amendment to the United States Constitution provides, in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury...

The Eighth Amendment to the United States Constitution provides, in pertinent part:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides, in pertinent part:

No State shall...deprive any person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction the equal protection of the laws.

vii

STATEMENT OF THE CASE

Petitioner, Eriese Alphonso Tisdale, was indicted for the February 28, 2013 murder, and

related charges, of St. Lucie County Sheriff’s Office Sargent Gary Morales. He was found guilty of

all counts, including first degree murder, on October 1, 2015.

At the conclusion of the penalty proceeding, the jury returned an advisory sentence in favor

of death by a vote of 9-3.

Petitioner was sentenced to death on April 29, 2016. His appeal to the Florida Supreme

Court was denied by an opinion issued November 8, 2018. On November 15, 2018, the State filed

a timely motion for clarification. The Florida Supreme Court issued its corrected opinion on

November 29, 2018. The Florida Supreme Court also issued its mandate on November 29, 2018.

STATEMENT OF THE FACTS

Following receipt of the jury’s 9-3 advisory sentence in favor of death, the trial court set the

final sentencing hearing for January 15, 2016.

On January 12, 2016, the United States Supreme Court held that Florida’s death penalty

sentencing scheme was unconstitutional. Hurst v. Florida,

U.S.

, 136 S.Ct. 161 (2016). The

trial court then continued the final sentencing hearing.

While Petitioner’s case was pending for final sentencing, the Florida legislature, effective

March 7, 2016, substantially amended Florida’s death penalty sentencing procedures contained in

Sections 775.082(1), 782.04(1)(b), and 921.141, Florida Statutes (2016). Among other things, these

amendments required that at least 10 jurors must concur in the death recommendation. Under the

amended death penalty scheme, the trial court would be required to impose a life sentence if the jury

recommends life. Chapter 2016-13, Laws of Florida.

Petitioner maintained that the Chapter 2016-13 amendments applied to his case, because

sentencing had not yet been imposed. Petitioner maintained that the 9-3 vote was the equivalent of

an acquittal on the findings necessary to impose a death sentence under the amended sentencing

procedures which went into effect before Petitioner’s final sentencing.

The trial court overruled these objections and imposed a death sentence on April 29, 2016.

Despite a lack of jury findings, the trial court found the existence of two aggravating circumstances

and 41 mitigating circumstances. See Tisdale, slip opinion at 5 and fn 4.

While Petitioner’s direct appeal was pending, the Florida Supreme Court held that Chapter

2016-13 is to be applied retroactively, but that the 10-2 vote requirement is unconstitutional. The

Florida Supreme Court modified Chapter 2016-13 to require a unanimous jury recommendation.

Perry v. State, 210 So.3d 630, 640 (Fla. 2016); Hurst v. State, 202 So.3d 40, (Fla. 2016), cert.

denied, 137 S.Ct. 2161 (2017); Tisdale, slip opinion at 5-6.

The Florida legislature subsequently enacted Chapter 2017-1, Laws of Florida, which

requires a unanimous jury recommendation of death. The Florida Supreme Court has reversed Hurst

cases for resentencing pursuant to the retroactive procedures set forth in Chapter 2016-13 and

Chapter 2017-1.

Petitioner presented arguments to the Florida Supreme Court that the jury’s 9-3 vote

constitutes an acquittal under both Chapter 2016-13 and Chapter 2017-1; and that the case at bar was

entitled to application of the amendments which were explicitly to be applied in a retroactive

fashion. The Florida Supreme Court rejected these due process, equal protection and double

jeopardy arguments; and further rejected the claim that retroactive application of the amended

procedures to all resentencings, but not to Petitioner’s sentencing, constitutes an arbitrary and

capricious carve out of an exception for Petitioner’s case in violation of the Eighth Amendment.

REASONS FOR GRANTING THE PETITION

The Florida Supreme Court’s failure to apply Chapter 2016-13 to cases

pending for sentencing violates double jeopardy, equal protection and due

process under the Fifth, Sixth, Eighth and Fourteenth Amendments.

In Hurst v. Florida, the United States Supreme Court extended the decision in Ring v.

Arizona, 536 U.S. 584 (2002), to Florida’s death penalty sentencing scheme; and held that

aggravating circumstances were an element to be determined by a jury as required by the Sixth

Amendment. The Florida legislature promptly responded by enacting amendments to Sections

775.082(1)(a), 782.04(1)(b) and 921.141. By their own terms, these amendments were procedural.

Section 775.082(1)(a) was amended to require a jury “determination” instead of the judicial

findings previously specified; and that the determination was to be made “[a]ccording to the

procedure set forth in s. 921.141":

[A] person who has been convicted of a capital felony shall be punished by death if

the proceeding held to determine sentence according to the procedure set forth in s.

921.141 results in a determination that such person shall be punished by death,

otherwise such person shall be punished by life imprisonment and shall be ineligible

for parole.

Chapter 2016-13, Section 1 (emphasis supplied).

The description of Section 921.141 as a “procedure” is echoed in the amendments to Section

782.04(1)(b):

In all cases under this section, the procedure set forth in s. 921.141 shall be followed

in order to determine sentence of death or life imprisonment...

Chapter 2016-13, Section 2 (emphasis supplied).

Section 921.141 was amended to require that any death recommendation must be agreed to

by at least 10 jurors. A death recommendation by less than 10 jurors must result in a sentence of life

without the possibility of parole:

If fewer than 10 jurors determine that the defendant should be sentenced to death, the

jury’s recommendation to the court shall be a sentence of life...

Chapter 2016-13, Section 3. Following a jury recommendation of life, the “[c]ourt shall impose the

recommended sentence”. Id.

Petitioner was a person convicted of a capital felony. The amendments did not exclude a

person convicted before March 7, 2016, but whose final sentencing was to take place after the

effective date of the amendments. The Florida Supreme Court has expressly held that the

amendments set forth in Chapter 2016-13 are to be applied retroactively. Perry v. State, 210 So.3d

at 640; Evans v. State, 213 So.3d 856, 859 (Fla. 2017).

Petitioner maintains that he was to be sentenced according to the amended procedure set forth

in Section 921.141. There were to be no exceptions. The amended procedure set forth in Section

921.141 “[s]hall be followed” in “[a]ll cases”. §782.04(1)(b), as amended by Ch. 2016-13, §2.

Petitioner could not be sentenced to death under the amended procedure set forth in Section

921.141, because “[f]ewer than 10 jurors” voted in favor of death. §921.141(3)(a)(1), as amended

by Ch. 2016-13, §3. If the amended procedures applied to Petitioner’s final sentencing, the jury’s

advisory verdict constituted an acquittal.

At the time of Petitioner’s final sentencing hearing, the United States Supreme Court had

already struck down Florida’s death penalty sentencing scheme to the extent that jurors did not make

the determinations of the existence of aggravating and mitigating circumstances, and the balancing

required to vote for life or death. Hurst v. Florida, supra. The only death penalty sentencing

procedure in effect at the time of Petitioner’s sentencing were Sections 775.082(1)(a), Section

782.04(1)(b) and 921.141, as amended by Chapter 2016-13.

Under the unique facts of Petitioner’s prosecution, the 9-3 jury recommendation constitutes

a verdict of life. The amended death penalty sentencing procedure applied, without exception, to all

persons convicted of a capital felony. In such circumstances, all cases are to be determined

according to the amended sentencing procedures. Section 921.141(3)(a)(1), of these amended

procedures, mandates a life sentence.

The Florida Supreme Court has effectively carved out a special exception for Petitioner’s

case. In numerous cases, the Florida Supreme Court has routinely reversed death sentences for new

sentencing proceedings under the amended sentencing procedures, and in accordance with Hurst v.

Florida and Hurst v. State.

But in Petitioner’s case, the Florida Supreme Court failed to apply the amended procedure

to a case pending for final sentencing. This carve out has no authorization in the amended

sentencing procedure and runs contrary to the express language of the amended sentencing

procedures. This carve out of Petitioner from “all” creates a special class and, therefore, denies

Petitioner equal protection under law in violation of the Eighth and Fourteenth Amendments.

The amended sentencing procedures do not change the potential penalty applicable to a

capital murder. Similar retroactive procedural changes were approved when Florida, in 1972,

enacted new death penalty procedures. See Dobbert v. Florida, 432 U.S. 282, 293-94 (1977) (“The

new statute simply altered the methods employed in determining whether the death penalty was to

be imposed; there was no change in the quantum of punishment attached to the crime.”).

Clearly, the amended procedures were beneficial to Petitioner. If the amended procedures

were not beneficial, they could not be applied retroactively to Petitioner. Miller v. Florida, 482 U.S.

423, 435 (1987) (Retrospective application of revised sentencing guidelines were held to be ex post

facto, because they “[d]irectly and adversely affect[ed] the sentence petitioner receive[d]”.).

The Florida legislature chose to include no clause in Chapter 2016-13 to exclude any case,

such as Petitioner’s, which had already been submitted to a jury, and was pending for sentencing at

the time the amendments went into effect on March 7, 2016. See Brown v. State, 358 So.2d 16, 20

(Fla. 1978) (“When the subject statute in no way suggests a saving construction, we will not abandon

judicial restraint and effectively rewrite the enactment.”). Consequently, the amended death penalty

sentencing procedure transformed Petitioner’s 9-3 advisory verdict in favor of death into a 9-3

“determination” in favor of life.

Petitioner contends that the Florida Supreme Court’s failure to apply the amended sentencing

procedure was a denial of due process under the Fifth and Fourteenth Amendments, and that it was

also an arbitrary and capricious application of the amended sentencing procedure in violation of the

Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 248-49 (1972) (“A

penalty...should be considered ‘unusually’ imposed if it is administered arbitrarily...”) (Douglas, J

concurring) (citations omitted).

The Florida Supreme Court has reversed Petitioner’s sentence, but has allowed the State

another “bite at the apple” by remanding for a new death penalty proceedings. Tisdale, slip opinion

at 10. Such a resentencing is prohibited, submits Petitioner, by double jeopardy considerations.

Here, the State had placed Petitioner in jeopardy, but failed to secure the necessary votes to impose

the death penalty. That failure to secure the necessary votes is an acquittal of the facts required to

enhance the maximum penalty from life up to death. Alleyne v. United States, 133 S.Ct. 2151, 2162

(2013) (“[W]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the

fact necessarily forms a constituent part of a new offense and must be submitted to the jury.”).

The State’s failure to prove the essential element, absent which death cannot be imposed,

constitutes an acquittal of that enhancement. Apprendi v. New Jersey, 530 U.S. 466, 494 (2000)

(“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

The “acquittal” on the death determination precludes a new penalty phase proceeding.

Bullington v. Missouri, 451 U.S. 430, 441-42 (1981), determined that a second death penalty

proceeding would violate where the initial jury returned a non-unanimous recommendation, which

constituted a life sentence under the Missouri death penalty sentencing scheme:

A defendant may not be retried if he obtains a reversal of his conviction on the

ground that the evidence was insufficient to convict.

See Burks v. United States, 437 U.S. 1, 15-16 (1978) (“[W]e necessarily accord absolute finality to

a jury’s verdict of acquittal...”) (emphasis in original).

Arizona v. Rumsey, 467 U.S. 2003 (1984), considered whether the State could seek the death

penalty after a judge had determined that no aggravating circumstances existed, and imposed a life

sentence. Rumsey observed that Arizona’s sentencing procedure, where the penalty was then decided

by a judge, was no different than Missouri’s, where the penalty was decided by a jury, for double

jeopardy purposes. Id at 209-10. Rumsey held that retrial was barred by double jeopardy in both

circumstances:

The double jeopardy principle relevant to respondent’s case is the same as that

invoked in Bullington: an acquittal on the merits by the sole decision maker in the

proceedings if final and bars retrial on the same charge. Application of the

Bullington principle renders respondent’s death sentence a violation of the Double

Jeopardy Clause because respondent’s initial sentence of life imprisonment was

undoubtedly an acquittal on the merits of the central issue in the proceeding whether death was the appropriate punishment for respondent’s offense.

Id at 211.

The Fifth Amendment’s double jeopardy clause provides that no person shall “[b]e subject

for the same offense to be twice put in jeopardy of life or limb”. Double jeopardy protects against

punishment greater than authorized. In addition, “[i]t protects against a second prosecution for the

same offense after acquittal. It protects against a second prosecution for the same offense after

conviction.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds;

Alabama v. Smith, 490 U.S. 794 (1989).

Unless jeopardy attached to the jury’s “determination” of life, Petitioner is at risk of a

successive attempt to secure a death sentence. Regardless of any errors or mistakes which may have

occurred at trial, the acquittal of the death enhancing determination is a bar to any second attempt

to secure a death sentence: “[t]he one thing that had always been clear was that no appeal [could] be

taken by the government from an acquittal no matter how erroneous the legal theory underlying the

decision.” United States v. Martin Linen Supply Co., 430 U.S. 564, 577 (1977) (Stevens, J

concurring) (citation and internal quotation marks omitted).

The amended death penalty sentencing procedure, put into place effective March 7, 2016, by

Chapter 2016-13, was retroactive and applicable to all cases in which a person has been convicted

of a capital felony. This amended sentencing procedure designated the jury as the sole decision

maker upon which a death penalty may be predicated. In Petitioner’s case, just as in Bullington v.

Missouri, and in Arizona v. Rumsey, the decision maker had determined that a life sentence must be

imposed, because the 9-3 vote reflects fewer than the 10 jurors required for a recommendation of

death. Under such circumstances, the trial court was required to impose a sentence of life. The

failure to apply the plain language of the amended sentencing procedure denied due process and

equal protection in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments; and was

arbitrary and capricious in violation of the Eighth Amendment. The decision of the Florida Supreme

Court to permit a new death penalty sentencing procedure, after a jury acquittal on the question

whether death should be imposed, violates double jeopardy under the Fifth and Fourteenth

Amendments.

CONCLUSION

Although the Florida Supreme Court has ruled that the amended death penalty procedures

are to be applied retroactively, it failed to apply those amended sentencing procedures to Petitioner’s

case which had already been submitted to a jury and was awaiting final sentencing. The language

of Chapter 2016-13 provided no special exception for cases, like Petitioner’s, which had already

been submitted to a jury, but were awaiting final sentencing. The Florida Supreme Court’s

application of these amended sentencing procedures denied Petitioner due process and equal

protection; and was arbitrary and capricious in violation of the Fifth, Sixth, Eighth and Fourteenth

Amendments. The Florida Supreme Court’s decision to permit a new death penalty sentencing

procedure violates double jeopardy under the Fifth and Fourteenth Amendments.

Respectfully submitted,