Petition for Writ of Certiorari — Dusty Ray Spencer, Petitioner v. Florida

Supreme Court briefMar 13, 2019

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No.

IN THE SUPREME COURT OF THE UNITED STATES

_____________

DUSTY RAY SPENCER,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent

_____________________________________________________

On Petition for a Writ of Certiorari to the Florida Supreme Court

_____________________________________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________________________________

JULISSA R. FONTÁN*

FLORIDA BAR NUMBER 0032744

CHELSEA RAE SHIRLEY

FLORIDA BAR NUMBER 112901

KARA OTTERVANGER

FLORIDA BAR NUMBER 112110

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FL 33637

TELEPHONE: (813) 558-1600

COUNSEL FOR THE PETITIONER

*COUNSEL OF RECORD

CAPITAL CASE

QUESTIONS PRESENTED

Whether structural error occurs when, after having been affirmatively misled

regarding its role in the sentencing process so as to diminish its sense of responsibility, the jury

fails to return a verdict as to multiple critical elements necessary to impose the death penalty.

2. Whether structural error occurs when, after having been affirmatively misled regarding

its role in the sentencing process so as to diminish its sense of responsibility, the jury fails to

unanimously return factual findings or a unanimous verdict for the death penalty.

LIST OF PARTIES

All parties appear on the caption to the case on the cover page. Spencer was the Appellant

below. The State of Florida was the Appellee below.

iii

TABLE OF CONTENTS

PAGE(S)

CONTENTS

QUESTION PRESENTED ............................................................................................................. ii

LIST OF PARTIES ........................................................................................................................ iii

TABLE OF CONTENTS............................................................................................................... iv

INDEX OF APPENDICES .............................................................................................................v

TABLE OF AUTHORITIES ......................................................................................................... vi

STATUTES.................................................................................................................................. viii

OTHER AUTHORITIES ............................................................................................................. viii

PETITION FOR A WRIT OF CERTIORARI.................................................................................1

CITATION TO OPINION BELOW ................................................................................................1

JURISDICTION ..............................................................................................................................1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......................................2

STATEMENT OF THE CASE ........................................................................................................3

A. Florida’s Capital Sentencing Structure ................................................................................3

B. Trial Court Proceedings .......................................................................................................4

C. State Post-conviction Motion and Successive Post-conviction Motion .............................5

D. Proceedings in the Florida Supreme Court .........................................................................6

REASONS FOR GRANTING THE WRIT.....................................................................................6

The Florida Supreme Court’s Decision Undermines Multiple Federal Constitutional

Rights And Conflicts with Binding Precedent of This Court ..........................................7

A. Error Occurred Below When The Jury Failed To Return A Verdict Beyond A

Reasonable Doubt As To Multiple Critical Elements Necessary To Impose The

Death Penalty ............................................................................................................7

B. Error Occurred Below When The Jury Failed To Return A Unanimous Verdict As

To The Elements Or The Ultimate Sentence...........................................................11

C. The Error Were Structural .......................................................................................13

II.

The Questions Presented Were Properly Raised But Went Unaddressed Below, And

Have Been Repeatedly Ignored By The Florida Supreme Court ..................................19

A. The Questions Were Properly Presented To The Florida Supreme Court ..............19

B. The Florida Supreme Court Has Repeatedly Failed To Address A Crucial

Component Of The Questions Presented ................................................................20

CONCLUSION ..............................................................................................................................24

INDEX TO APPENDICES

APPENDIX A— Florida Supreme Court opinion

APPENDIX B— Trial court order

APPENDIX C— Florida Supreme Court order on Motion for Rehearing

APPENDIX D—Florida Supreme Court Order requesting additional briefing

TABLE OF AUTHORITIES

PAGE(S)

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) .......................................................................5, 7, 10

Arizona v. Fulminante, 499 U.S. 279 (1991) .................................................................................14

Atkins v. Virginia, 536 U.S. 304 (2002).........................................................................................12

Blackwelder v. State, 851 So.2d 650 (Fla. 2003) .............................................................................3

Blakely v. Washington, 542 U.S. 296 (2004) .................................................................................16

Bonifay v. State, 680 So.2d 413 (Fla.1996) ...................................................................................16

Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) ................................................................................5

Caldwell v. Mississippi, 472 U.S. 320 (1985)........................................................................ passim

California v. Ramos, 463 U.S. 992 (1983) ....................................................................................23

Chambers v. Mississippi, 410 U.S. 284 (1973)..............................................................................20

Chapman v. California, 386 U.S. 18 (1967) ..................................................................................13

Clemons v. Mississippi, 494 U.S. 738 (1990) ..........................................................................17, 24

Cozzie v. Florida, 138 S. Ct. 1131 (2018) ...............................................................................21, 22

Duncan v. Louisiana, 391 U.S. 145 (1968) ...................................................................................15

Eddings v. Oklahoma, 455 U.S. 104 (1982) ..................................................................................24

Fiore v. White, 531 U.S. 225 (2001) ................................................................................................9

Furman v. Georgia, 408 U.S. 238 (1972) ......................................................................................12

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................................12

Guardado v. Jones, 226 So. 3d 213 (Fla. 2017) ............................................................................22

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

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

Kaczmar v. State, 228 So. 3d 1 (Fla. 2017) ...................................................................................22

King v. Dugger, 555 So.2d 355 (Fla.1990) ....................................................................................16

King v. State, 211 So. 3d 866 (Fla. 2017) ......................................................................................22

Knight v. State, 225 So. 3d 661 (Fla. 2017) ...................................................................................22

Lockett v. Ohio, 438 U.S. 586 (1978) ......................................................................................11, 24

McCoy v. Louisiana, 138 U.S. 1500 (2018) ..................................................................................14

Middleton v. State, 220 So. 3d 1152 (Fla. 2017) ...........................................................................22

Morton v. State, 789 So. 2d 324 (Fla. 2001) ..................................................................................16

Neder v. U.S., 527 U.S. 1 (1999) .............................................................................................14, 15

Oregon v. Guzeh, 546 U.S. 517 (2006)..........................................................................................18

Parker v. Dugger, 498 U.S. 308 (1991).........................................................................................24

Penry v. Lynaugh, 492 U.S. 302 (1989) ..................................................................................12, 18

Perry v. State, 210 So. 3d 630 (Fla. 2016) .......................................................................................8

Phillips v. State, 705 So.2d 1320 (Fla.1997) .................................................................................16

Reynolds v. State, 251 So. 3d 881 (Fla. 2018) ...............................................................................22

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

Romanov. Ohlahoma, 512 U.S. 1 (1994) .......................................................................................18

Rose v. Clark, 478 U.S. 570 (1986) ...................................................................................14, 15, 16

Sochor v. Florida, 504 U.S. 527 (1992) ..................................................................................17, 24

Spaziano v. Florida, 468 U.S. 447 (1984) ...............................................................................10, 23

Spencer v. Florida, 118 S.Ct. 213 (1997) ........................................................................................5

Spencer v. State, 645 So.2d 377 (Fla. 1994) ................................................................................4, 5

Spencer v. State, 691 So.2d 1062 (Fla. 1997) ..................................................................................5

Spencer v. State, 842 So.2d 52 (Fla. 2003) ..................................................................................5, 6

State v. Fleming, 61 So.3d 399 (Fla. 2011) ...................................................................................17

Tedder v. State, 322 So.2d 908 (Fla. 1975) .....................................................................................3

Teffeteller v. State, 495 So.2d 744 (Fla.1986) ...............................................................................16

Truehill v. Florida, 138 S. Ct. 3 (2017) ...................................................................................21, 22

Tundidor v. State, 221 So. 3d 587 (Fla. 2017) ...............................................................................22

vii

United States v. Afartin Linen Supply Co., 430 U.S. 564 (1977)...................................................15

United States v. Gauldin, 515 U.S. 506 (1995) ...............................................................................7

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ...........................................................13, 14

Walton v. Arizona, 497 U.S. 639 (1990) ..........................................................................................9

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)...................................................................14, 15

Wike v. State, 698 So.2d 817 (Fla.1997) ........................................................................................16

Woodson v. North Carolina, 428 U.S. 280 (1976) ..................................................................16, 17

STATUTES

Fla. Stat. §775.082 (1) (2013) ................................................................................................. 3, 7, 9

Fla. Stat. §921.141(3)...................................................................................................................3, 8

18 U.S.C. §3593 .............................................................................................................................12

28 U.S.C. § 1257 ............................................................................................................................. 1

OTHER AUTHORITIES

Fed. R. Crim. P. 31(a) ....................................................................................................................12

Fla. R. Crim. P. 3.850 ......................................................................................................................5

Constitutional Provisions

U.S. CONST. AMEND. VI .................................................................................................................. 2

U.S. CONST. AMEND. VIII ............................................................................................................... 2

U.S. CONST. AMEND. XIV ............................................................................................................... 2

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner, Dusty Ray Spencer, respectfully requests that this Court issue a writ of certiorari

to review the judgment of the Florida Supreme Court and address the important questions of

federal constitutional law presented.

This case presents a fundamental question concerning the Sixth Amendment right to a jury

trial, the Due Process Clause requirement of proof beyond a reasonable doubt, and the Eighth

Amendment need for a reliable capital sentencing determination.

CITATION TO OPINIONS BELOW

The opinion of the Florida Supreme Court is reported at 2018 WL 5839055 and reproduced

at App. A. The trial court’s order denying Spencer’s successive motion for post-conviction relief

is reproduced at Appendix B.

JURISDICTION

The opinion of the Florida Supreme Court was entered on November 8, 2018. (Appendix

A). A Motion for Rehearing was filed and was denied by the Florida Supreme Court on December

13, 2018. (Appendix C). This petition is due on March 13, 2019, and is timely filed. This Court

has jurisdiction pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONST. AMEND. VI.

The Sixth Amendment to the Constitution of the United States

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

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.

U.S. CONST. AMEND. VIII.

The Eighth Amendment to the Constitution of the United States

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

unusual punishments inflicted.

U.S. CONST. AMEND. XIV.

The Fourteenth Amendment to the Constitution of the United States

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State 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.

STATEMENT OF THE CASE

A. Florida’s Capital Sentencing Structure

In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court described the capital sentencing

scheme under which Spencer was sentenced to death.1

First-degree murder is a capital felony in Florida. See Fla. Stat. §

782.04(1)(a) (2010). Under state law, the maximum sentence a capital felon may

receive on the basis of the conviction alone is life imprisonment. § 775.082(1). “A

person who has been convicted of a capital felony shall be punished by death” only

if an additional sentencing proceeding “results in findings by the court that such

person shall be punished by death.” Ibid. “[O]therwise such person shall be

punished by life imprisonment and shall be ineligible for parole.” Ibid.

The additional sentencing proceeding Florida employs is a “hybrid”

proceeding “in which [a] jury renders an advisory verdict but the judge makes the

ultimate sentencing determinations.” Ring v. Arizona, 536 U.S. 584, 608, n.6 ...

(2002). First, the sentencing judge conducts an evidentiary hearing before a jury.

Fla. Stat. § 921.141(1) (2010). Next, the jury renders an “advisory sentence” of life

or death without specifying the factual basis of its recommendation. § 921.141(2).

“Notwithstanding the recommendation of a majority of the jury, the court, after

weighing the aggravating and mitigating circumstances, shall enter a sentence of

life imprisonment or death.” § 921.141(3). If the court imposes death, it must “set

forth in writing its findings upon which the sentence of death is based.” Ibid.

Although the judge must give the jury recommendation “great weight,” Tedder v.

State, 322 So.2d 908, 910 (Fla. 1975) (per curiam), the sentencing order must

“reflect the trial judge’s independent judgment about the existence of aggravating

factors and mitigating factors,” Blackwelder v. State, 851 So.2d 650, 653 (Fla.

2003) (per curiam ).

In Hurst, this Court considered Florida’s capital sentencing scheme as it existed in 2010. Hurst,

136 S. Ct. at 620. Spencer was sentenced to death under Florida’s capital sentencing scheme as it

existed in 1992. However, as relevant here, those two schemes were identical. Compare Fla. Stat.

§ 775.082(1) (2010) and Fla. Stat.§ 921.141 (2010) with Fla. Stat. § 775.082(1) (1999) and Fla.

Stat.§ 921.141 (1999).

Since this Court’s decision in Hurst, legislative changes have been made to Florida’s

capital sentencing scheme. See Act effective March 7, 2016, §§ 1, 3, 2016 Fla. Laws ch. 2016-13

(codified as amended at Fla. Stat.§ 775.082(1) (2017) and Fla. Stat.§ 921.141 (2017); Act effective

March 13, 2017 §§ 1, 3, 2017 Fla. Laws ch. 2017-1 (codified as amended at Fla. Stat.§ 775.082(1)

(2017) and Fla. Stat. § 921.141 (2017). Unless otherwise stated, references in this petition to

Florida’s capital sentencing scheme refer to the scheme that was in existence prior to those

changes, that was considered in Hurst, and under which Spencer was sentenced to death.

Hurst, 136 S. Ct. at 620.

B. Trial Court Proceedings, Initial Direct Appeal, Resentencing and Appeal

Mr. Spencer was tried by a jury and found guilty on November 7, 1992, of first degree

murder, aggravated battery and attempted second degree murder in Orange County. Prior to trial,

Spencer filed various pretrial motions contesting the constitutionality of the death penalty, which

included challenges to the jury instructions and lack of unanimity2. See TR 1992 VIII: 657-76;

TR IX: 677-85, 798-17, 818-23, 824-38 and 839-41. The jury recommended a sentence of death

for the first degree murder conviction on December 8, 1992, by a non-unanimous vote of seven to

five. The trial court sentenced Spencer to death on December 21, 1992. Spencer appealed to the

Florida Supreme Court.

Amongst the issues Spencer raised was the unconstitutionality of

Florida’s death penalty statute. Spencer challenged the lack of specialized verdict forms and “the

lack of a unanimous jury verdict as to any aggravating circumstance violated Article I, sections

9,16 and 17 of the Florida Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments

to the United States Constitution.” See Initial Brief of Appellant, Case No. 80,987. The Florida

Supreme Court denied his claim as being “without merit and has been consistently rejected by this

Court.” Spencer v. State, 645 So.2d 377, 384 (Fla. 1994). This rejection was based upon the

precedent in Thompson v. State, 619 So.2d 261, 267 (Fla. 1993). None of this precedent is valid.

On September 22, 1994, the Florida Supreme Court affirmed the conviction, but vacated

Spencer’s death sentence because the trial court improperly instructed the jury on and considered

the aggravating circumstance of “cold, calculated and premeditated” (CCP) and failed to consider

2 “…[O]ur statute is unconstitutional because it authorizes a death verdict on the basis of a bare

majority vote.” TR IX:886.

the two mental health statutory mitigating circumstances. Spencer v. State, 645 So.2d 377 (Fla.

1994). On remand, the trial court, without empaneling a new jury, again sentenced Spencer to

death and the Florida Supreme Court affirmed. Spencer v. State, 691 So.2d 1062 (Fla. 1997). To

be clear, Spencer did not waive his right to a jury. Spencer filed a petition for writ of certiorari

this Court denied certiorari on October 6, 1997. Spencer v. Florida, 118 S.Ct. 213 (1997).

Spencer’s petition for writ of certiorari at the time raised the issue that Florida’s death penalty

statute was unconstitutional because the trial court and the Florida Supreme Court refused to

consistently apply and weigh unrebutted mitigating factors and argued that it resulted in an

arbitrary and capricious application of the death penalty. At the time the petition was written,

Apprendi v. New Jersey, 539 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002) had not

been decided.

However, Spencer argued the rudimentary ideas regarding the weighing of

aggravators and mitigators that were later fully developed in those decisions.

C. State Post-conviction Motion and Successive Post-conviction Motion

On July 13, 1998, Spencer filed a Motion to Vacate Judgment and Sentence pursuant to

Fla. R. Crim. P. 3.850. The circuit court denied the Motion after a limited evidentiary hearing.

Spencer appealed and filed a petition for state habeas relief to the Florida Supreme Court. In that

appeal, Spencer argued that a jury should have been empaneled to consider the mitigating and

aggravating circumstances. Again, the Florida Supreme Court stated that Spencer’s argument had

no merit, because Apprendi did not apply to Florida’s capital sentencing scheme. Spencer v. State,

842 So.2d 52, 73 (Fla. 2003). Furthermore, Spencer argued that his sentence violated Ring v.

Arizona, 536 U.S. 584 (2002). At the time, the Florida Supreme Court rejected that argument

based on Bottoson v. Moore, 833 So.2d 693 (Fla. 2002). Spencer v. State, 842 So.2d 52, 72 (Fla.

2003). This Court affirmed the denial of his 3.850 Motion and denied his state habeas petition.

Spencer v. State, 842 So.2d 52 (Fla. 2003).

D. Proceedings in the Florida Supreme Court

Subsequently, Spencer filed a successive 3.851 motion based upon Hurst v. Florida3 and

Hurst v. State4. The successive motion was subsequently summarily denied by the trial court. The

denial was appealed to the Florida Supreme Court. The Florida Supreme Court initially issued an

Order to Show Cause. Both Mr. Spencer and the State responded. On January 25, 2018, the

Florida Supreme Court directed the parties to further brief “the non-Hurst related issues in this

case.” See Appendix D. The Florida Supreme Court ultimately denied relief on November 8,

2018. A motion for rehearing was filed and that was denied on December 13, 2018.

REASONS FOR GRANTING THE WRIT

Structural error occurs when, after having been affirmatively misled regarding its role in

the sentencing process so as to diminish its sense of responsibility, a jury fails to return a verdict

of guilty beyond a reasonable doubt as to multiple critical elements necessary to impose the death

penalty, and when it fails to return a unanimous verdict for death. The Florida Supreme Court’s

refusal to conclude that such an error is structural, and instead subjecting it to harmless error

review, undermines multiple federal constitutional rights. Finally, the present case presents an

ideal vehicle to clarify analytical tension in critical areas of this Court’s structural error

jurisprudence.

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

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

THE FLORIDA SUPREME COURT’S DECISION UNDERMINES MULTIPLE

FEDERAL CONSTITUTIONAL RIGHTS AND CONFLICTS WITH BINDING

PRECEDENT OF THIS COURT.

A. Error Occurred Below When The Jury Failed To Return A Verdict Beyond A

Reasonable Doubt As To Multiple Critical Elements Necessary To Impose The

Death Penalty.

Any fact that “expose[s] the defendant to a greater punishment than that authorized by the

jury’s guilty verdict” is an “element” that must be submitted to a jury. Apprendi v. New Jersey,

530 U.S. 466, 494 (2000). “Taken together,” the Sixth Amendment right to a jury trial and the Due

Process Clause requirement of proof beyond a reasonable doubt “indisputably entitle a criminal

defendant to a ‘jury determination that [he] is guilty of every element of the crime with which he

is charged beyond a reasonable doubt.’” Id. at 476-77 (quoting United States v. Gauldin, 515 U.S.

506, 510 (1995)). This ruling was extended to include capital punishment in Ring v. Arizona, 436

U.S. 584 (2002).

In Hurst v. Florida, this Court held that the Sixth Amendment right to a jury trial “requires

a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere

recommendation is not enough.” 136 S. Ct. 616, 619 (2016). “This right required Florida to base

[Dusty Spencer’s] death sentence on a jury’s verdict, not a judge’s factfinding.” Id. at 624.

Florida law provides that “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 [section] 921.141 results in findings by the court that such person shall be punished by death,

otherwise such person shall be punished by life imprisonment.” Fla. Stat. § 775.082 (1) (2010).

That proceeding results in those findings only if the court sets “forth in writing its findings ... as to

the facts: [t]hat sufficient aggravating circumstances exist ... and [t]hat there are insufficient

mitigating circumstances to outweigh the aggravating circumstances.” Fla. Stat. § 921.141(3)

(2010).

The Florida Supreme Court has construed those state laws and declared:

[U]nder Florida’s capital sentencing scheme, the jury – not the judge – must be the

finder of every fact, and thus every element, necessary for the imposition of the

death penalty. These necessary facts include, of course, each aggravating factor that

the jury finds to have been proven beyond a reasonable doubt. However, the

imposition of death sentence in Florida has in the past required, and continues to

require, additional factfinding that now must be conducted by the jury…Thus,

before a sentence of death may be considered by the trial court in Florida, the jury

must find the existence of the aggravating factors proven beyond a reasonable

doubt, that the aggravating factors are sufficient to impose death, and that the

aggravating factors outweigh the mitigating circumstances.

Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016); see also Perry v. State, 210 So. 3d 630, 633 (Fla.

2016).

The error occurred in Spencer’s case when the jury failed to return a verdict of guilty

beyond a reasonable doubt as to multiple critical elements necessary to impose the death penalty:

(1) the existence of the aggravating factors proven beyond a reasonable doubt; (2) that the

aggravating factors are sufficient to impose death; and (3) that the aggravating factors outweigh

the mitigating circumstances. Further, the Florida Supreme Court has acknowledged that in

Spencer’s case, the trial court initially erred by considering a weighty aggravator (cold, calculated

and premeditated) that was not proved beyond a reasonable doubt, which was a clear error. Finally,

when Mr. Spencer was resentenced, the judge alone reweighed the aggravators and the mitigators

without the benefit of fact-finding by a jury.

In Hurst v. Florida, this Court described the illusory nature of the jury’s “findings” under

Florida’s capital sentencing scheme.

Like Arizona at the time of Ring, Florida does not require the jury to make the

critical findings necessary to impose the death penalty. Rather, Florida requires a

judge to find these facts. Although Florida incorporates an advisory verdict that

Arizona lacked, we have previously made clear that this distinction is immaterial:

“It is true that in Florida the jury recommends a sentence, but it does not make

specific factual findings with regard to the existence of mitigating or aggravating

circumstances and its recommendation is not binding on the trial judge. A Florida

trial court no more has the assistance of a jury’s findings of fact with respect to

sentencing issues than does a trial judge in Arizona.”

136 S. Ct. at 622 (quoting Walton v. Arizona, 497 U.S. 639, 648 (1990)). This Court also explicitly

found that under state law, a defendant can only be sentenced to death based on “findings by the

court that such person shall be punished by death.” Hurst, 136 S. Ct. at 620. (emphasis added).

Thus, for purposes of the Sixth Amendment, multiple critical elements necessary to impose

the death penalty in Florida were essentially not submitted to the jury. Instead, the trial court

directed a verdict for the State as to those critical elements. The trial court alone determined

Spencer’s eligibility for the death penalty by failing to empanel a new jury. See id. (“[T]he Florida

sentencing statute does not make a defendant eligible for death until ‘findings by the court that

such person shall be punished by death.’” (quoting Fla. Stat. § 775.082(1) (2010))).

The failure to submit critical elements necessary to impose the death penalty to the jury

also violated Spencer’s Due Process rights. This Court previously held that:

[Defendant’s] conviction and continued incarceration on this charge violate due

process. We have held that the Due Process Clause of the Fourteenth Amendment

forbids a State to convict a person of a crime without proving the elements of that

crime beyond a reasonable doubt.

Fiore v. White, 531 U.S. 225, 228-29 (2001). Because Fiore had not been found guilty of an

essential element of the substantively defined criminal offense, his conviction was not

constitutionally valid.

In Spencer’s case in particular, it would be unjust, fundamentally unfair and error for Hurst

to not apply to him, especially in light of the fact that Spencer raised a Ring-like Sixth Amendment

claim that his non-unanimous death sentence was unconstitutional. Spencer has consistently raised

this issue since his trial in 1992 including in his initial direct appeal which was concluded, prior to

Ring. He raised similar challenges to his death sentence in a timely fashion before and when

Apprendi was decided. He raised a challenge again when Ring was decided, only to be denied

because of Florida’s then erroneous interpretation of Ring’s non-applicability to Florida. Together,

these efforts constitute a pre-Ring effort to raise a Ring-like claim. Spencer also cited, and was

forced to fit his direct appeal arguments within, the framework of Spaziano v. Florida, 468 U.S.

447 (1984), which was held unconstitutional by the United States Supreme Court in Hurst v.

Florida. To deny Spencer the retroactive effect of Hurst would be a substantial injustice and a

violation of his Sixth and Eighth Amendment rights.

Hurst v. Florida and Hurst v. State announced a substantive Sixth Amendment rule

requiring that a jury find as fact: (1) each aggravating circumstance; (2) that those particular

aggravating circumstances together are “sufficient” to justify imposition of the death penalty; and

(3) that those particular aggravating circumstances together outweigh the mitigation in the case.

Hurst v. State, 202 So. 3d at 53-59. And, each of those findings is required to be made by the jury

beyond a reasonable doubt.

In order to become death eligible, each of those three findings must be independently and

unanimously found by the jury beyond a reasonable doubt. A conviction of capital murder alone

does not render a defendant death eligible. A death sentence cannot be imposed without a finding

that the State proved those additional elements beyond a reasonable doubt. Anything less violates

the Due Process Clause. Without a constitutional conviction of capital first degree murder, coupled

with the requisite findings of fact in the penalty phase, any death sentence imposed is illegal

because it is in excess of the statutory maximum for a conviction of first degree murder.

The increase in penalty imposed on Spencer was without any jury at all and fundamental

error. Spencer’s death sentence was based on flawed jury instructions, given to a jury who did not

recommend death unanimously and the fact-finding of a trial court, who chose to adopt, for a

second time, the fundamentally flawed recommendation. No unanimous jury found "all

aggravating factors to be considered," "sufficient aggravating factors exist[ed] for the imposition

of the death penalty," or that "the aggravating factors outweigh the mitigating circumstances." In

fact, in Spencer’s case, the trial court initially ignored evidence of statutory mitigation the first

time Spencer was sentenced to death. Lastly, there was no "unanimity in the final jury

recommendation for death." Spencer had a number of other rights under the United States

Constitution, and possibly more extensive. Failure to apply Hurst retroactively to Spencer,

especially where he raised a Ring-like claim at his first opportunity, would be a violation of his

due process and equal protection rights under the federal constitution and would result in a death

sentence that is arbitrary and capricious in violation of the Sixth Amendment and Eighth

Amendment of the United States Constitution and the corresponding provision of the Florida

Constitution. His death sentence must accordingly be vacated.

B. Error Occurred Below When The Jury Failed To Return A Unanimous Verdict on

As To The Elements Or The Ultimate Sentence.

One of the foundational precepts of the Eighth Amendment, that death is different, requires

unanimity in any death recommendation. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(finding there is a “qualitative difference” between death and other penalties requiring “a greater

degree of reliability when the death sentence is imposed”); Gregg v. Georgia, 428 U.S. 153, 187–

88 (1976) (stating that “death is different in kind” and as a punishment is “unique in its severity

and irrevocability”); Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring)

(“Death is a unique punishment in the United States.”). This is to ensure that the death penalty is

not being arbitrarily or capriciously imposed, but properly tailored to the most aggravated and least

mitigated of murders. “If death is to be imposed, unanimous jury sentencing recommendations,

when made in conjunction with the other critical findings unanimously found by the jury, provide

the highest degree of reliability in meeting these constitutional requirements in the capital

sentencing process.” Hurst v. State, 202 So. 2d at 60.

Like most states which have retained the death penalty, federal law requires the jury’s

verdict in a capital case to be unanimous. See 18 U.S.C. § 3593(e); Fed. R. Crim. P. 31(a). This

Court reiterated that the “clearest and most reliable objective evidence of contemporary values is

the legislation enacted by the country’s legislatures.” Atkins v. Virginia, 536 U.S. 304, 312 (2002)

(quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989) (abrogated on other grounds in Atkins, 536

U.S. at 321)). Thus, the vast majority of capital sentencing laws provide clear and reliable evidence

that contemporary values demand a defendant not be put to death except upon the unanimous

consent of the jurors who have deliberated and found all of the requisite findings of fact. Of the

states that have retained the death penalty, Alabama is now the only state which does not require

a unanimous jury recommendation for death. See Ala. Code § 13A-5-46 (“The decision of the jury

to recommend a sentence of death must be based on a vote of at least 10 jurors.”).

As a result, the Florida Supreme Court held that the Eighth Amendment and Florida’s right

to trial by jury, requires jury unanimity in all death cases. Hurst v. State, 202 So. 3d at 61.

The error occurred in Spencer’s case when the jury returned none of the required findings

of facts at all – let alone unanimously – and, when the jury failed to return a unanimous death

recommendation. Additionally, the jury in Spencer’s case was instructed to consider an aggravator

which was not proven by competent evidence, which was an error that affected the death

recommendation. The effect of the error was such that the Florida Supreme Court struck the

erroneous aggravator and vacated the death sentence and remanded for a resentencing. The trial

court at Spencer’s second sentencing did not empanel a new jury and took the recommendation

from the original tainted sentence and used it in its analysis to justify sentencing Spencer to death

a second time. Under the Sixth Amendment, Spencer was entitled to have a jury independently

weigh and evaluate the evidence from his new penalty phase and come up with a new

recommendation. This failure deprived Spencer of a proper individualized sentencing as required

by the Constitution. Spencer’s jury returned an advisory recommendation of death by a vote of

seven-to-five, a mere majority vote. This does not satisfy the Sixth or Eighth Amendment and his

death sentence cannot stand.

C. The Errors Were Structural.

Whether “a conviction for crime should stand when a State has failed to accord federal

constitutionally guaranteed rights is every bit as much of a federal question as what particular

federal constitutional provisions themselves mean, what they guarantee, and whether they have

been denied.” Chapman v. California, 386 U.S. 18, 21 (1967). In fulfilling its “responsibility to

protect” federal constitutionally guaranteed rights “by fashioning the necessary rule[s],” id., this

Court has distinguished between two classes of constitutional errors: trial errors and structural

errors, United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006). Trial errors are “simply ...

error[s] in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Such errors

occur “during presentation of the case to the jury and their effect may ‘be quantitatively assessed

in the context of other evidence presented in order to determine whether [they were] harmless

beyond a reasonable doubt.’” Gonzalez-Lopez, 548 U.S. at 148 (quoting Fulminante, 499 U.S. at

307-08).

In contrast, structural errors “are structural defects in the constitution of the trial

mechanism.” Fulminante, 499 U.S. at 309. They affect “the framework within which the trial

proceeds.” Id. at 310. “Errors of this type are so intrinsically harmful as to require automatic

reversal ... without regard to their effect on the outcome.” Neder v. U.S., 527 U.S. 1, 7 (1999). Put

another way, structural “errors require reversal without regard to the evidence in the particular

case.” Rose v. Clark, 478 U.S. 570, 577 (1986). “The purpose of the structural error doctrine is to

ensure insistence on certain basic, constitutional guarantees that should define the framework of

any trial.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017). With that in mind, the “precise

reason why a particular error is not amenable to [harmless error] analysis – and thus the precise

reason why the Court has deemed it structural – varies in a significant way from error to error.”

Id. at 1908.

For instance, “an error has been deemed structural if the error always results in fundamental

unfairness,” such as where a defendant is denied a reasonable-doubt jury instruction. Id. Further,

“an error has been deemed structural if the effects of the error are simply too hard to measure.” Id.

“[I]f the right at issue is not designed to protect the defendant from erroneous conviction but

instead protects some other interest,” the error is structural. McCoy v. Louisiana, 138 U.S. 1500,

1510 (2018) (internal citations omitted). Additionally, in deciding whether an error is structural,

this Court has repeatedly considered whether the error undermined the reliability of the

adjudicative process. See, e.g., Neder, 527 U.S. at 8-9 (observing that structural “errors deprive

defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function’”

(quoting Rose, 478 U.S. at 577-78)). But “[t]hese categories are not rigid,” Weaver, 137 S. Ct. at

1908, and in “a particular case, more than one of these rationales may be part of the explanation

for why an error is deemed to be structural.” Id. (citing Sullivan, 508 U.S. at 280-82 (1993)).

In the present case, structural error occurred when the jury failed to return a verdict of

guilty beyond a reasonable doubt as to multiple critical elements necessary to impose the death

penalty, failed to find elements unanimously, and when the jury failed to return a unanimous

recommendation of death. These errors were different in order of magnitude than a simple error

occurring in the process of a trial. Instead, the errors amounted to a structural defect in the

framework underlying the trial process. It undermined the core foundation on which the process

of determining death eligibility depended. The error is further compounded in cases where trial

judges rely on faulty jury recommendations and resentence defendants to death, without the benefit

of a jury.

Multiple rationales dictate that conclusion. First, the jury’s failure to return a verdict of

guilty beyond a reasonable doubt as to multiple critical elements necessary to impose the death

penalty always results in fundamental unfairness. “The guarantees of jury trial in the Federal and

State Constitutions reflect a profound judgment about the way in which law should be enforced

and justice administered.” Duncan v. Louisiana, 391 U.S. 145, 155 (1968). In particular, a jury’s

“overriding responsibility is to stand between the accused and a potentially arbitrary or abusive

Government that is in command of the criminal sanction.” United States v. Afartin Linen Supply

Co., 430 U.S. 564, 572 (1977). “For this reason, a trial judge is prohibited from entering a

judgment of conviction or directing the jury to come forward with such a verdict, regardless of

how overwhelmingly the evidence may point in that direction.” Id. at 572-73 (internal citations

omitted). And “every defendant has the right to insist that the prosecutor prove to a jury all facts

legally essential to the punishment,” Blakely v. Washington, 542 U.S. 296, 313 (2004), including

“each fact necessary to impose a sentence of death,” Hurst v. Florida, 136 S. Ct. at 619.

In light of those first constitutional principles, it is always fundamentally unfair for a trial

court to direct a verdict for the State as to multiple critical elements necessary to impose the death

penalty. Simply put, “the wrong entity judged the defendant,” Rose, 478 U.S. at 578, to be eligible

for a penalty “qualitatively different from a sentence of imprisonment, however long.” Woodson

v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). This is particularly true in

Spencer’s case where he was not provided a jury in his second sentencing. In Florida, “[w]here a

defendant's death sentence has been vacated and the case is remanded to the trial court to conduct

a new penalty phase proceeding before a new jury, ‘[t]he resentencing should proceed de novo on

all issues bearing on the proper sentence which the jury recommends be imposed. A prior sentence,

vacated on appeal, is a nullity’.” Morton v. State, 789 So. 2d 324, 334 (Fla. 2001), citing Teffeteller

v. State, 495 So.2d 744, 745 (Fla.1986); see also Wike v. State, 698 So.2d 817, 821 (Fla.1997)

(citing Bonifay v. State, 680 So.2d 413 (Fla.1996) (emphasis added). “In fact, as we have

explained, a resentencing is a ‘completely new proceeding,’ and the trial court is under no

obligation to make the same findings as those made in a prior sentencing proceeding.” Id., citing

Phillips v. State, 705 So.2d 1320, 1322 (Fla.1997) (citing King v. Dugger, 555 So.2d 355, 358–59

(Fla.1990)) (emphasis added). “[W]hen a sentence is vacated the defendant is resentenced at a

new proceeding subject to the full panoply of due process rights…” State v. Fleming, 61 So.3d

399, 408 (Fla. 2011). However, in Spencer’s case, this was ignored and he was not afforded “a

new proceeding subject to the full panoply of due process rights.” Id.

The trial judge alone heard arguments and reweighed the aggravation and the mitigation in

this case and gave great weight to the jury recommendation of death, even though that jury based

their recommendation on an erroneous instruction of CCP, one of the weightiest aggravators.

“Employing an invalid aggravating factor in the weighing process ‘creates the possibility ... of

randomness,’ by placing a ‘thumb [on] death's side of the scale,’ thus ‘creat[ing] the risk [of]

treat[ing] the defendant as more deserving of the death penalty,’” Sochor v. Florida, 504 U.S. 527,

532 (1992)(internal citations omitted). “Even when other valid aggravating factors exist, merely

affirming a sentence reached by weighing an invalid aggravating factor deprives a defendant of

‘the individualized treatment that would result from actual reweighing of the mix of mitigating

factors and aggravating circumstances’.” Id., citing Clemons v. Mississippi, 494 U.S. 738, 752

(1990). As is clear, the weighing of aggravators and mitigators, under the Sixth Amendment,

should be done “by the jury beyond a reasonable doubt.” Ring v. Arizona, 536 U.S. 584, 610

(2002) (Scalia, J. concurring).

Third, the error undermined the reliability of the process for determining eligibility for the

death penalty. In the capital context, a particular constitutional consideration arises. Again, “the

penalty of death is qualitatively different from a sentence of imprisonment, however long.”

Woodson, 428 U.S. at 305 (plurality opinion). “Because of that qualitative difference, there is a

corresponding difference in the need for reliability in the determination that death is the appropriate

punishment in a specific case.” Id. Simply put, the “Eighth Amendment insists upon ‘reliability in

the determination that death is the appropriate punishment in a specific case.’” Oregon v. Guzeh,

546 U.S. 517, 525 (2006) (quoting Penry v. Lynaugh, 492 U.S. 302, 328 (1989)).

As a result, the Florida Supreme Court concluded “that juror unanimity in any

recommended verdict resulting in a death sentence is required under the Eighth Amendment.”

Hurst, 202 So. 3d at 59. Spencer’s jury never returned any unanimous verdict during the penalty

phase.

Additionally, a capital jury “must not be misled regarding the role it plays in the sentencing

decision.” Romanov. Ohlahoma, 512 U.S. 1, 8 (1994) (citing Caldwell, 472 U.S. at 336 (plurality

opinion)). More specifically, a capital jury must not be “affirmatively misled ... regarding its role

in the sentencing process so as to diminish its sense of responsibility.” Id. at 10.

But under Florida’s capital sentencing scheme, a capital jury is affirmatively misled

regarding its role in the sentencing process so as to diminish its sense of responsibility. As an initial

matter, such a jury is instructed that the “[f]inal decision as to what punishment shall be imposed

rests solely with the judge of this court; however, the law requires that you, the jury, render to the

court an advisory sentence….” Fla. Std. Jury Instr. (Crim.) 7.11 (1992). In fact, there are several

instances in the final instructions alone where the jury’s role in the sentencing process is

characterized as “recommending”, or providing a “recommendation” or “advisory sentence.” Fla.

Std. Jury Instr. (Crim.) 7.11 (1992).

Those instructions diminished the jury’s sense of responsibility throughout the sentencing

process, including during any jury determination of whether Spencer is eligible for the death

penalty. The instructions indicate that the jury’s input – including its “findings” – into the

sentencing process is not binding or controlling. In particular, those instructions convey that the

jury’s input is not binding on the trial court. Instead, the judge makes “the final decision.” In

Spencer’s case, this flaw is highlighted by the fact that the jury was instructed incorrectly on an

aggravator that was not proven by the evidence.

Further, those instructions affirmatively misled the jury regarding its role in the sentencing

process. As just discussed, the instructions convey that the jury’s input is not binding, including

on the trial court. However, the “Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.” Hurst v. Florida, 136 S. Ct. at 619. As a result, a jury’s

findings as to those elements are binding and controlling, including on the trial court. In particular,

if a jury fails to find one or more of those elements or if the jury fails to unanimously find for

death, the defendant is not eligible for death. That is “the final decision.” The judge cannot alter

it.

II.

THE QUESTIONS PRESENTED WERE PROPERLY RAISED BUT WENT

UNADDRESSED BELOW, AND HAVE BEEN REPEATEDLY IGNORED BY

THE FLORIDA SUPREME COURT.

A. The Questions Were Properly Presented To The Florida Supreme Court.

In the present case, although the Florida Supreme Court did not expressly address the

question presented to this Court, it had a fair opportunity to do so. Although his case was pre-Ring,

Spencer filed pre-trial, appeal and post-conviction motions in the circuit court raising various Ringtype claims. Without the benefit of the Ring or Hurst decisions, Spencer raised a challenge to

Florida’s capital sentencing scheme during post-conviction. See TR 1992 VIII: 657-76; TR IX:

677-85, 798-17, 818-23, 824-38 and 839-41.

Specifically, Spencer challenged the lack of

specialized verdict forms and how “the lack of a unanimous jury verdict as to any aggravating

circumstance violated Article I, sections 9,16 and 17 of the Florida Constitution and the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Constitution.” See Initial Brief of

Appellant, Case No. 80,987. This effort constituted a pre-Ring effort to raise Ring-like challenges.

Within one year from the issuance of Hurst v. Florida, Spencer filed a successive postconviction motion arguing Florida’s capital sentencing scheme was unconstitutional because it

denied criminal defendants their right to a jury verdict of guilty beyond a reasonable doubt as to

the critical elements necessary to impose death, and denied criminal defendants the right to have

those findings be unanimous. In support thereof, Spencer argued that those findings were

substantive and cited (1) the Sixth Amendment right to jury trial, as well as this Court’s decision

in Ring, 536 U.S. at 584; (2) the Eighth Amendment need for reliability in making a capital

sentencing determination; and (3) the Fourteenth Amendment requirement of proof beyond a

reasonable doubt. Id. The trial court denied that motion.

On appeal before the Florida Supreme Court, Spencer reasserted his federal constitutional

claim. In both his response to the order to show cause and reply brief, Spencer specifically argued

that the error undermined the process for determining eligibility for the death penalty in light of

this Court’s decision in Caldwell v. Mississippi, 472 U.S. 320 (1985).

For its part, and consistent with its prior conclusion in Hurst v. State, 202 So. 3d at 67, the

Florida Supreme Court simply decided that the error below was subject to harmless error review,

and thus, was not structural. See App. A. In these circumstances, despite the Florida Supreme

Court’s failure to expressly discuss the constitutional issue, Spencer’s claim that structural error

arose under the Sixth, Eighth, and Fourteenth Amendments is properly before this Court. See

Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973).

B. The Florida Supreme Court Has Repeatedly Failed To Address A Crucial

Component Of The Questions Presented.

Just recently, this Court has recognized that the Florida Supreme Court has failed to address

a substantial Eighth Amendment challenge to capital defendant’s sentences. As noted by Justice

Sotomayor, at least six capital defendants “now face execution by the State without having

received full consideration of their claims.” Cozzie v. Florida, 138 S. Ct. 1131, 1132 (2018)

(Sotomayor, J., dissenting from denial of certiorari).

In addition, three justices recently highlighted the Florida Supreme Court’s repeated failure

to address post-Hurst v. Florida Eighth Amendment challenges to Florida’s capital sentencing

scheme. Truehill v. Florida, 138 S. Ct. 3 (2017) (Sotomayor, J., joined by Ginsburg, J., and Breyer,

J., dissenting from denial of certiorari). Those justices also recognized that this Court’s recent

decision in Hurst v. Florida, 136 S. Ct. at 616, cast such Eighth Amendment challenges in a new

light.

Although the Florida Supreme Court has rejected a Caldwell challenge to its jury

instructions in capital cases in the past, it did so in the context of its prior sentencing

scheme, where “the court [was] the final decision-maker and the sentencer-not the

jury.” In Hurst v. Florida, however, we held that process, “which required the

judge alone to find the existence of an aggravating circumstance,” to be

unconstitutional.

With the rationale underlying its previous rejection of the Caldwell

challenge now undermined by this Court in Hurst, petitioners ask that the Florida

Supreme Court revisit the question. The Florida Supreme Court, however, did not

address that Eighth Amendment challenge.

Truehill, 138 S. Ct. at 3 (Sotomayor, J., joined by Ginsburg, J., and Breyer, J., dissenting from

denial of certiorari) (internal citations omitted).

Instead, the Florida Supreme Court has steadfastly refused to mention or discuss “the

fundamental Eighth Amendment principle it announced: ‘It is constitutionally impermissible to

rest a death sentence on a determination made by a sentencer who has been led to believe that the

responsibility for determining the appropriateness of the defendant’s death rests elsewhere.’

Caldwell, 472 U. S., at 328–29.” Cozzie, 138 S. Ct. at 1133.

Like the petitioners in Truehill and Cozzie, Spencer also argued that the jury instructions

in his case “impermissibly diminished the jurors’ sense of responsibility as to the ultimate

determination of death by repeatedly emphasizing that their verdict was merely advisory.” Id. As

in the cases of Spencer and the petitioners in Truehill, in other cases, the Florida Supreme Court

determined that the error was harmless without addressing the defendant’s Eighth Amendment

challenge. See King v. State, 211 So. 3d 866, 889-93 (Fla. 2017); Kaczmar v. State, 228 So. 3d 1,

7-9 (Fla. 2017); Knight v. State, 225 So. 3d 661, 682-83 (Fla. 2017); Middleton v. State, 220 So.

3d 1152, 1184-85 (Fla. 2017); Tundidor v. State, 221 So. 3d 587, 607-08 (Fla. 2017); Guardado

v. Jones, 226 So. 3d 213, 215 (Fla. 2017).

Though the Florida Supreme Court just recently, in another case, addressed that

defendant’s Eighth Amendment and Caldwell challenges to his advisory jury recommendation for

death, that case is distinguishable. See Reynolds v. State, 251 So. 3d 881 (Fla. 2018).

In dismissing Reynold’s Caldwell claim, the Florida Supreme Court completely

misapprehended, and failed to address, Reynolds’ and Spencer’s argument on this point. The

Florida Supreme Court held that Reynolds’ “jury was not misled as to its role in sentencing” at the

time of his capital trial. Id. at 827. Thus, the majority concluded that Caldwell was not violated

because, at the time they rendered their advisory recommendation, the jurors understood “their

actual sentencing responsibility” was advisory, and Caldwell does not require that jurors “must

also be informed of how their responsibilities might hypothetically be different in the future.” Id.

at 823. The Florida Supreme Court failed to address why treating this advisory, non-binding jury

recommendation as a mandatory jury verdict did not violate Caldwell, since Reynolds’ jury – and

every pre-Hurst jury in Florida – was repeatedly instructed otherwise. The issue raised by

Reynolds, and here by Spencer, is not whether their juries were properly instructed at the time of

their capital trials, but instead, whether today the State of Florida can now treat those advisory

recommendations as mandatory and binding, when the jury was explicitly instructed otherwise.

This Court, in Hurst v. Florida, warned against that very thing. This Court cautioned against using

what was an advisory recommendation to conclude that the findings necessary to authorize the

imposition of a death sentence had been made by the jury:

“[T]he jury’s function under the Florida death penalty statute is advisory only.”

Spaziano v. State, 433 So. 2d 508, 512 (Fla.1983). The State cannot now treat the

advisory recommendation by the jury as the necessary factual finding that Ring

requires.

Hurst, 136 S. Ct. at 622.

An advisory verdict (premised upon inaccurate information regarding the binding nature

of a life recommendation, the juror’s inability to be merciful based upon sympathy, and what

aggravating factors could be found and weighed in the sentencing calculus) cannot be used as a

substitute for a unanimous verdict from a properly instructed jury. California v. Ramos, 463 U.S.

992, 1004 (1983) (“Because of the potential that the sentencer might have rested its decision in

part on erroneous or inaccurate information that the defendant had no opportunity to explain or

deny, the need for reliability in capital sentencing dictated that the death penalty be reversed.”).

This error is particularly acute in this case due to the way Spencer’s ultimate sentencing

was handled. This Court has held:

“In a weighing State like Florida, there is Eighth Amendment error when the sentencer

weighs an ‘invalid’ aggravating circumstance in reaching the ultimate decision to impose

a death sentence. See Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 1450,

108 L.Ed.2d 725 (1990)…. Even when other valid aggravating factors exist, merely

affirming a sentence reached by weighing an invalid aggravating factor deprives a

defendant of ‘the individualized treatment that would result from actual reweighing of the

mix of mitigating factors and aggravating circumstances.’ Clemons, supra, 494 U.S., at

752, 110 S.Ct., at 1450 (citing Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v.

Oklahoma, 455 U.S. 104 (1982)); see Parker v. Dugger, 498 U.S. 308, 321(1991).”

Sochor v. Florida, 504 U.S. 527, 532 (1992) (emphasis added). Depriving Spencer of the

“individualized treatment” from the actual reweighing of his aggravating and mitigating factors

by a jury, placed the thumb on death’s side of the scale.

The Florida Supreme Court’s steadfast refusal to address this point, undermines multiple

federal constitutional rights, and makes this petition the ideal vehicle to clarify analytical tension

in critical areas of this Court’s jurisprudence.

CONCLUSION

For the foregoing reasons, Spencer respectfully requests that this Court grant the petition

for writ of certiorari to review the judgment of the Florida Supreme Court.

Respectfully submitted,

/S/ Julissa Fontan___

JULISSA R. FONTAN

FLORIDA BAR NO. 0032744

/S/ Chelsea Rae Shirley

CHELSEA RAE SHIRLEY

FLORIDA BAR NO. 112901

/S/ Kara Ottervanger

KARA OTTERVANGER

Florida Bar No. 112110

ASSISTANT CCRCS

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION 12973

N. TELECOM PARKWAY

TEMPLE TERRACE, FL 33637 TELEPHONE:

(813) 558-1600 COUNSEL FOR

PETITIONER

MARCH 13, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.