Petition for Writ of Certiorari — Scottie D. Allen, Petitioner v. Florida

Supreme Court briefNov 15, 2021

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No.

In the

Supreme Court of the United States

SCOTTIE D. ALLEN

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

_____________

PETITION FOR A WRIT OF CERTIORARI

JESSICA J. YEARY

Public Defender

BARBARA J. BUSHARIS*

Assistant Public Defender

*Counsel of Record for Petitioner

SECOND JUDICIAL CIRCUIT OF FLORIDA

OFFICE OF PUBLIC DEFENDER

301 South Monroe Street, Ste. 401

Tallahassee, Florida 32301

(850) 606-1000

barbara.busharis@flpd2.com

CAPITAL CASE

QUESTIONS PRESENTED

Whether the Florida Supreme Court’s rejection of Petitioner’s claim of

error based on the jury being affirmatively misinformed about its role in the

sentencing process violates this Court’s holding in Caldwell v. Mississippi, 472 U.S.

30 (1985), that the Eighth Amendment requires that the sentencer understand “the

gravity of its task.”

II.

Under Florida’s capital sentencing scheme, in addition to finding at

least one aggravating factor exists, the factfinder must make additional

determinations before a capital sentence can be imposed: (1) whether “sufficient

aggravating factors exist,” and (2) whether “aggravating factors exist which

outweigh the mitigating circumstances.” See Fla. Stat. § 921.141(2) (2019). The

second question presented is whether, considering the operation and effect of

Florida’s capital sentencing scheme, the Due Process Clause requires these

additional determinations to be made beyond a reasonable doubt.

STATEMENT OF RELATED PROCEEDINGS

Allen v. State, No. SC19-1313, 322 So. 3d 589 (Fla. 2021) (Fla. opinion and

judgment rendered June 3, 2021; order denying rehearing issued on August 17,

2021; mandate issued on September 2, 2021).

State v. Allen, No. 2018 203 CFA (Fla. 2d Cir. Ct. judgment and sentence

entered on July 23, 2019).

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

STATEMENT OF RELATED PROCEEDINGS ........................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

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

OPINION BELOW......................................................................................................... 1

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

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 2

INTRODUCTION AND STATEMENT OF THE CASE .............................................. 3

REASONS FOR GRANTING THE PETITION .......................................................... 11

The Florida Supreme Court’s Decision Conflicts with this

Court’s Holding in Caldwell v. Mississippi that Misinforming

the Jury About the Gravity of Its Role in Sentencing is

Inconsistent with the Eighth Amendment....................................................... 11

II.

The Florida Supreme Court’s Decision Directly Conflicts

With This Court’s Decisions on the Standard of Proof for

Functional Elements of an Offense, Including Apprendi v. New

Jersey, Ring v. Arizona, Alleyne v. United States, and Hurst v.

Florida, and Is Inconsistent with Due Process. ............................................... 13

III. The Questions Presented Have the Potential to Affect

Present and Future Capital Defendants. ......................................................... 22

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

iii

APPENDIX

Opinion of the Florida Supreme Court

Rendered on June 3, 2021 .....................................................................................A-1

Order of the Florida Supreme Court Denying Motion for Rehearing

Rendered on August 17, 2021................................................................................B-1

TABLE OF AUTHORITIES

PAGES

CASES

Allen v. State, 322 So. 3d 589 (Fla. 2021) ............................................. ii, 1, 3, 9, 10, 12

Alleyne v. United States, 570 U.S. 99 (2013). ....................................................... 16, 21

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................... 14, 16, 17, 21, 22, 24

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

Bright v. State, 299 So. 3d 985, 998 (Fla. 2020), cert. denied, 141 S. Ct.

1697 (2021) ............................................................................................................. 23

Caldwell v. Mississippi, 472 U.S. 30 (1985)............................................. i, 1, 11, 13, 22

Craven v. State, 310 So. 3d 891, 902 (Fla. 2020), cert. denied, 2021 WL

4508396 (Oct. 4, 2021) ............................................................................................ 23

Foster v. State, 258 So. 3d 1248 (Fla. 2018) .......................................................... 18, 19

Hurst v. Florida, 136 S. Ct. 616 (2016) ............................................... 16, 17, 19, 20, 21

Hurst v. State, 202 So. 3d 40 (Fla. 2016) ........................................................ 17, 18, 23

In re Winship, 397 U.S. 358 (1970) ............................................................................. 21

Newberry v. State, 288 So. 3d 1040, 1047 (Fla. 2019), cert. denied, 141

S. Ct. 625 (2020) ..................................................................................................... 23

Perry v. State, 210 So. 3d 630 (Fla. 2016) ....................................................... 17, 18, 23

Ring v. Arizona, 536 U.S. 584 (2002) .................................................................... 14, 21

Rogers v. State, 285 So. 3d 872, 885-86 (Fla. 2019), cert. denied, 141 S.

Ct. 284 (2020).......................................................................................................... 19

Santiago-Gonzalez v. State, 301 So. 3d 157, 177 (Fla. 2020), cert.

denied, 2021 WL 2519344 (June 21, 2021) ............................................................ 23

Spencer v. State, 615 So. 2d 688 (Fla. 1993) ................................................................. 3

State v. Poole, 297 So. 3d 487, 490 (Fla. 2020), cert. denied, 141 S. Ct.

1051 (2021) ................................................................................................. 19, 20, 22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI ................................................................................................... 2

U.S. Const. amend. VIII .......................................................................................... 2, 13

U.S. Const. amend. XIV ................................................................................................. 2

STATUTES

Fla. Stat. § 775.082(1)(a) (2019) .................................................................................. 14

Fla. Stat. § 782.04(1)(a)1 (2019) .................................................................................. 14

Fla. Stat. § 921.141 (2011)........................................................................................... 20

Fla. Stat. § 921.141 (2019)................................................................ i, 12, 13, 15, 16, 20

PETITION FOR WRIT OF CERTIORARI

Petitioner, Scottie D. Allen, respectfully requests that this Court issue a writ

of certiorari to review the decision of the Florida Supreme Court affirming the

judgment and sentence of death in his case. The Florida Supreme Court’s decision is

incompatible with this Court’s holding in Caldwell v. Mississippi, 472 U.S. 30

(1985), that a death sentence cannot constitutionally imposed when the jury is

misinformed about its role in the sentencing process as to minimize the importance

of its role in that process. In addition, federal due process requires that findings

increasing the available penalty from life to death under Florida law be made

beyond a reasonable doubt.

OPINION BELOW

The opinion below is reported at Allen v. State, 322 So. 3d 589 (Fla. 2021),

and a copy is attached to this Petition as Appendix A. The order of the Florida

Supreme Court denying Petitioner’s motion for rehearing is attached to this

Petition as Appendix B.

JURISDICTION

The Florida Supreme Court issued its judgment affirming Petitioner’s death

sentence on June 3, 2021 and denied Petitioner’s motion for rehearing on August

17, 2021. This Court has jurisdiction pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides: “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.”

The Eighth Amendment to the United States Constitution provides:

“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

relevant part: “[N]or 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.”

INTRODUCTION AND STATEMENT OF THE CASE

Petitioner Scottie D. Allen, who was subjected to childhood experiences

including repeated sexual abuse, killed a fellow inmate who was in prison for childsex-related offenses. Following a jury trial, Mr. Allen was sentenced to death on

July 23, 2018. Mr. Allen represented himself without standby counsel in both the

guilt and penalty phases of his capital trial; the trial court appointed special counsel

to present mitigation at a Spencer hearing. 1 The Florida Supreme Court issued its

opinion affirming Mr. Allen’s death sentence on June 3, 2021. Allen v. State, 322 So.

3d 589 (Fla. 2021) (Exhibit A).

Pretrial Proceedings.

Mr. Allen was charged with the first-degree murder of Ryan Mason, a fellow

inmate; after counsel was appointed for him, Mr. Allen sought to waive his right to

counsel and represent himself. (R. 53, 57.) The trial court ordered a competency

evaluation and deferred ruling on Mr. Allen’s request to waive counsel. (R. 71-74.)

In January 2019 an expert submitted two reports: one opined Mr. Allen was

competent to proceed to trial, and the other that he was competent to represent

himself. (R. 106, 113.) The expert diagnosed Mr. Allen with depressive disorder,

antisocial personality disorder, cannabis use disorder, and opiod use disorder. (R.

104, 111.)

The reports indicated that Mr. Allen grew up in a broken home, having

limited contact with his biological father, and that his mother and stepfather

1 See Spencer v. State, 615 So. 2d 688 (Fla. 1993).

divorced when he was six years old. (R. 102, 109.) Beginning when Mr. Allen was

eight years old he was repeatedly sexually abused, first by a cousin and then by his

grandfather. (R. 102, 109.) By the time he was 12 years old Mr. Allen had tried

alcohol, was using marijuana daily, and had been involved in the juvenile justice

system. (R. 102-03, 109-10.) Although he was academically gifted, he dropped out of

school after the eleventh grade. (R. 102, 109.) He began abusing Oxycontin as a

young adult. (R. 103, 110.) At the time of the charged offense he was serving a 25year prison term and had been treated for clinical depression. (R. 103-04, 110-11.)

The court found Mr. Allen competent to proceed and to represent himself. (R.

118-20, 933-35, 941-42.) Mr. Allen immediately demanded a speedy trial and

announced he would not call defense witnesses or present mitigating evidence. (R.

98, 944-45, 951.)

The Guilt Phase.

Mr. Allen repeated his waiver of counsel at jury selection and represented

himself during the guilt phase. (R. 1250.) A correctional officer testified that on

October 2, 2017, Mr. Allen came up to her and said “I just murdered my roommate.”

(T. 55-56.) Another officer, who had conducted a morning count that day at which

both Mr. Allen and Mr. Mason were present, went to investigate and found Mr.

Mason on his bunk with a t-shirt ligature around his neck. (T. 21-26, 32-33, 40-46,

50, 80-82, 96-97, 163-66.) A medical examiner testified ligature strangulation was

the cause of death. (T. 162-63, 171-74.) A Florida Department of Law Enforcement

(FDLE) agent interviewed Mr. Allen that afternoon. (T. 184-86.) Mr. Allen waived

his Miranda rights and denied telling the first officer he had killed Mr. Mason,

saying instead that he woke up and found Mr. Mason dead. (T. 190-93.)

About three weeks later, however, the State Attorney received a letter from

Mr. Allen in which Mr. Allen stated he had planned the killing over a period of

weeks, and added that he had planned to rape Mr. Mason as well. (R. 352-53; T.

142-43, 198-99, 213-16.) The medical examiner had stated there were no signs of

sexual trauma when he examined Mr. Mason’s body. (T. 180.)

When the FDLE agent re-interviewed Mr. Allen. (T. 201-13.) In the interview

Mr. Allen stated he killed Mr. Mason because Mr. Mason was a child molester and

“a waste of space.” (T.202-03.) He said he decided to kill Mr. Mason when he found

out Mr. Mason was lying about why he was in prison, and claimed he raped him

several times as “retribution.” (T. 206-07.) On the day of the offense Mr. Allen

attacked Mr. Mason after the morning count, eventually pinning him down and

telling him “I’m going to strangle the life out of you.” (T. 207-08.) He strangled Mr.

Mason to the point of unconsciousness and then tied a t-shirt around Mr. Mason’s

neck. (T. 208-09.) He claimed he was going to do “awful stuff” to Mr. Mason later

but did not when he realized Mr. Mason had defecated on himself. (T. 209.) That

afternoon, Mr. Allen told an officer he had killed his roommate. (T. 211-12.)

Mr. Allen presented no case and waived closing argument. (T. 270.) During

the final guilt phase instructions, the trial court stated “It is the judge’s job to

determine a proper sentence if the defendant is found guilty.” (R. 153; T. 251.) The

jury returned a verdict of guilty as charged. (R. 160; T. 288-29.)

The Penalty Phase, Spencer Hearing, and Sentencing.

The court told the jury they were about to enter a “second phase” and

“separate proceeding.” (T. 289, 293.) They returned later that day for the penalty

phase. At the end of the State’s opening, the State told the jury it would be asking

the jury to return a “recommendation” that Mr. Allen be sentenced to death. (T.

333.) Mr. Allen waived an opening statement (T. 334) and presented no case (T.

359.)

The State presented a second letter from Mr. Allen to the State Attorney in

which he repeated he had planned the killing and had ensured that Mr. Mason

suffered. (R. 405; T. 338-39, 345-46.) The State introduced evidence relating to the

second-degree murder for which Mr. Allen was incarcerated at the time of the

offense, which also involved strangulation. (R. 359-71; T. 347-59.)

The jury was instructed about its “duty to make a decision as to the

appropriate sentence” (R. 161-66; T. 359-67) and that it should “realiz[e] a human

life was at stake.” (R. 166; T. 367.) The jury was instructed on five statutory

aggravating factors: (1) that Mr. Allen was under sentence of imprisonment; (2) that

Mr. Allen had a prior violent felony conviction; (3) that the killing was for pecuniary

gain; (4) that the killing was especially heinous, atrocious, or cruel; and (5) that the

killing was cold, calculated, and premeditated. (R. 161-63; T. 360-62.) The jury was

also instructed that “the law neither compels nor requires you to determine that the

defendant should be sentenced to death.” (R. 165; T. 380.) The jury returned a

verdict finding all but the pecuniary gain aggravator were present. (R. 169-80; T.

396-98.) It found no mitigating circumstances. (R. 170; T. 398.) It found the

aggravating factors were sufficient to warrant a death sentence and outweighed the

mitigating circumstances. (R. 170-71; T. 398.) The jury had not been instructed that

these determinations required any particular burden of proof. (R. 164-65; T. 37680.) It recommended a death sentence. (R. 171; T. 398.)

The trial court ordered a presentence investigation (PSI) and confirmed that

Mr. Allen did not want counsel for the penalty phase. (R. 414; T. 401-04.) At a

subsequent hearing the court informed Mr. Allen it had not renewed the offer of

counsel between the guilt and penalty phase, and asked him to confirm whether he

would have accepted the appointment of counsel. (R. 892-93.) The court also

appointed special counsel to present mitigation at a Spencer hearing prior to

imposing sentence. (R. 416-17, 893-97.)

At the Spencer hearing a licensed investigator and mitigation specialist

testified Mr. Allen and his mother moved in with his maternal grandparents

because his mother’s divorce from his stepfather left them unable to make ends

meet. (R. 998, 1005-06.) Mr. Allen’s grandfather began molesting him soon after

they moved in. Mr. Allen’s grandfather was already sexually abusing two of Mr.

Allen’s cousins and was later convicted of molesting other children. (R. 481, 487,

497-513, 998, 1006-10.) Mr. Allen’s mother began smoking marijuana with him

when he was about nine years old. (R. 482, 490, 1005, 1010.) As he got older, he

regularly abused marijuana, cocaine, and opiates. (R. 482, 490-91, 1016-19.) He was

in the juvenile justice system and spent time in foster care. (R. 482, 490, 755-92,

1015-18.)

Dr. Martin Falb, a psychologist, testified that he reviewed extensive

documentation and interviewed Mr. Allen, and was of the opinion that Mr. Allen

suffered from both antisocial personality disorder and post-traumatic stress

disorder. (R. 1067-94.) He stated Mr. Allen had suffered “extreme measures of

trauma” beginning at a young age. (R. 1077-78.) The court continued the hearing to

allow the State to prepare a rebuttal witness. (R. 1107-09.) The State’s witness

diagnosed Mr. Allen with antisocial personality disorder, cannabis use disorder, and

possible alcohol use disorder, but disagreed with the defense expert’s diagnosis of

post-traumatic stress disorder. (R. 1178-1235.)

The trial court imposed a death sentence based on the four aggravating

circumstances reflected in the jury verdict. (R. 814-17, 965-68.) It found several

mitigating circumstances had been established and assigned weight to each: (1) Mr.

Allen’s capacity to conform his conduct to the requirements of the law was

substantially impaired (moderate weight); (2) Mr. Allen suffered from major

depression (moderate weight); (3) Mr. Allen had been diagnosed with alcohol and

drug dependency (some weight); (4) Mr. Allen did not want his family contacted for

the penalty phase (some weight); Mr. Allen was courteous, respectful, and

considerate at every court appearance (some weight); and Mr. Allen was raised in a

dysfunctional family setting (great weight). (R. 818-20, 970-73.)

The Direct Appeal.

Mr. Allen, through counsel, made four arguments on appeal. See Allen, 322

So. 3d at 596. First, he argued fundamental error occurred when the trial court

failed to renew the offer of counsel before the penalty phase trial. Second, he argued

constitutional error occurred when the State, without objection, indicated to the

jury that it would return a “recommendation” regarding the sentence because the

State’s comments misled the jury regarding its sentencing role so as to diminish its

sense of responsibility. Third, he argued fundamental error occurred when the trial

court admitted expert testimony because, through that testimony the State was

able to use compelled statements Mr. Allen made to the expert. And fourth, he

argued a denial of due process occurred when the court failed to instruct the jury to

determine beyond a reasonable doubt whether the aggravating factors were

sufficient and outweighed the mitigating circumstances.

The Florida Supreme Court rejected the argument that the trial court’s

failure to renew an offer of counsel before the penalty phase began created

fundamental error. The court did not reach the issue of fundamental error because

it held the trial court cured the error through a retroactive inquiry into whether Mr.

Allen had wanted counsel. Allen, 322 So. 3d at 596-97. The court also rejected the

argument that the jury instructions and closing argument created fundamental

error under Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), where this Court

held it was unconstitutional to base 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.” Allen, 322 So. 3d at 597600. Next, the court rejected an argument that introducing certain statements Mr.

Allen made during a mental health examination violated his right against

compelled self-incrimination. Id. at 601-02. Finally, the court rejected Mr. Allen’s

challenge to the penalty phase jury instructions regarding whether aggravating

factors were sufficient to justify death and whether those factors outweighed

mitigating circumstances, stating “We have repeatedly held that ‘these

determinations are not subject to the beyond a reasonable doubt standard of proof.’”

Id. at 603.

REASONS FOR GRANTING THE PETITION

The Florida Supreme Court’s Decision

Conflicts with this Court’s Holding in Caldwell v.

Mississippi that Misinforming the Jury About the

Gravity of Its Role in Sentencing is Inconsistent

with the Eighth Amendment.

During Mr. Allen’s guilt phase, the trial court instructed the jury that “It is

the judge’s job to determine a proper sentence if the defendant is found guilty.” (R.

153, T. 251.) With that as a backdrop, the State began the penalty phase with an

opening statement telling the jury the State would be asking it to return a

“recommendation” that Mr. Allen be sentenced to death. (T. 333.) These statements

were, at best, an incomplete statement of the law that misled the jury regarding its

role in sentencing and misstated the operation of the sentencing scheme under

which Mr. Allen was sentenced.

In Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), this Court held “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 sentence rests elsewhere.” When the

sentencer is misled regarding its role, the reliability of the resulting sentence is

undermined. See id. at 330. When a sentencing jury does not fully appreciate its

role in the process, the jury may minimize its own role or assume that a too-harsh

sentence will be corrected. See id. at 331-32. Misinformation regarding the nature of

the jury’s responsibility raises concerns about arbitrary or capricious sentencing.

See id. at 343 (O’Connor, J., concurring). The instruction and argument at issue

here created the concern noted in Justice O’Connor’s concurrence in Caldwell,

namely that the jury failed to wholly appreciate its responsibility in the sentencing

process.

The Florida Supreme Court rejected the challenge to the State’s argument

outright, stating “a sentencing ‘recommendation’ is precisely what the penaltyphase jury provides.” Allen, 322 So. 3d at 598. The court acknowledged the guiltphase instructions should not have included the phrase “It is the judge’s job to

determine a proper sentence if the defendant is found guilty,” id., but held the

phrase did not violate Caldwell because “Florida’s statutory scheme remains a

hybrid sentencing scheme that does not place the ultimate responsibility for

sentencing the defendant on the jury.” Id. at 600.

The capital sentencing scheme under which Mr. Allen was sentenced,

however, gives the jury more than simply advisory power. It gives the jury selection

power, because the “recommendation” of a life sentence is binding:

(3) IMPOSITION OF SENTENCE OF LIFE

IMPRISONMENT OR DEATH.—

(a) If the jury has recommended a sentence of:

1. Life imprisonment without the possibility of parole,

the court shall impose the recommended sentence.

2. Death, the court, after considering each aggravating

factor found by the jury and all mitigating circumstances,

may impose a sentence of life imprisonment without the

possibility of parole or a sentence of death. The court may

consider only an aggravating factor that was unanimously

found to exist by the jury.

(b) If the defendant waived his or her right to a

sentencing proceeding by a jury, the court, after

considering all aggravating factors and mitigating

circumstances, may impose a sentence of life

imprisonment without the possibility of parole or a

sentence of death. The court may impose a sentence of

death only if the court finds that at least one aggravating

factor has been proven to exist beyond a reasonable doubt.

Fla. Stat. § 921.141(3) (2019).

Under this system, a jury can recommend either a life sentence, in which case

the court has no discretion to override the jury’s recommendation, or a death

sentence, in which case the court can choose between imposing a death sentence

and imposing a sentence of life in prison. Allowing — or, worse, causing — the jury

to misapprehend the nature of its sentencing authority and the limits on the court’s

discretion to choose a sentence creates the risk that the jury will devalue its

sentencing responsibility. Because of the unanimity requirement, if a single juror

had disagreed about sentencing Mr. Allen to death, the trial court would have

lacked discretion to impose a death sentence. Characterizing the jury’s verdict as a

mere recommendation likely diminished the jury’s sense of responsibility for the

outcome of the penalty phase, which in turn violates Caldwell and undermines the

reliability required by the Eighth Amendment.

II.

The Florida Supreme Court’s Decision

Directly Conflicts With This Court’s Decisions on

the Standard of Proof for Functional Elements of

an Offense, Including Apprendi v. New Jersey, Ring

v. Arizona, Alleyne v. United States, and Hurst v.

Florida, and Is Inconsistent with Due Process.

The Florida Supreme Court’s decision in this case conflicts with the principle

that any fact that “expose[s] the defendant to a greater punishment than that

authorized by the jury verdict” is functionally an element of the offense, which the

State must prove beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466,

490, 494 n.19 (2000). In Ring v. Arizona, 536 U.S. 584, 605 (2002), this Court stated

the finding of aggravating circumstances under Arizona’s capital sentencing scheme

was the “functional equivalent” of an element of a greater offense, stating that “the

characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is

not determinative.” Because that finding exposed defendants to a sentence of death,

which exceeded the statutory maximum under Arizona law, it had to be made by a

jury. Id.

Under Florida’s capital sentencing scheme, the determination as to whether

the aggravating factors are sufficient to justify imposing death is the functional

equivalent of an element because it is one of the determinations that expose a

defendant to a greater punishment than that authorized by statute for capital

murder.

A murder with premeditation is a first-degree murder under Florida law,

classified as a capital felony. Fla. Stat. § 782.04(1)(a)1 (2019). A person who is

convicted of a capital felony can 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.” Fla. Stat. § 775.082(1)(a) (2019). Before the

sentencer uses whatever discretion it has to select the appropriate sentence, the

sentencing scheme requires the jury (or judge, in a bench trial) to make three

determinations: that at least one aggravating factor exists, that the aggravating

factor or factors are sufficient in themselves, and that the aggravating factor or

factors outweigh the mitigating circumstances.

(2) FINDINGS AND RECOMMENDED SENTENCE BY

THE JURY.—This subsection applies only if the

defendant has not waived his or her right to a sentencing

proceeding by a jury.

(a) After hearing all of the evidence presented regarding

aggravating factors and mitigating circumstances, the

jury shall deliberate and determine if the state has

proven, beyond a reasonable doubt, the existence of at

least one aggravating factor set forth in subsection (6).

(b) The jury shall return findings identifying each

aggravating factor found to exist. A finding that an

aggravating factor exists must be unanimous. If the jury:

1. Does not unanimously find at least one aggravating

factor, the defendant is ineligible for a sentence of death.

2. Unanimously finds at least one aggravating factor,

the defendant is eligible for a sentence of death and the

jury shall make a recommendation to the court as to

whether the defendant shall be sentenced to life

imprisonment without the possibility of parole or to

death. The recommendation shall be based on a weighing

of all of the following:

Whether sufficient aggravating factors exist.

b. Whether aggravating factors exist which outweigh the

mitigating circumstances found to exist.

c. Based on the considerations in sub-subparagraphs a.

and b., whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to

death.

Fla. Stat. § 921.141 (2) (2019).

Until each of those preliminary determinations is made, even though

premeditated murder is labeled a “capital felony,” the death penalty is not

available. See id. The actual selection of the death penalty or a penalty of life in

prison takes place separately under Fla. Stat. § 921.141 (3). The determinations

that one or more aggravating factors have been proved, that aggravating factors are

sufficient to justify death, and that they outweigh the mitigating evidence are the

findings that increase the potential sentence from life in prison to death.

In Apprendi, this Court held that any circumstance that increases a sentence

“beyond the maximum authorized statutory sentence…is the functional equivalent

of an element of a greater offense than the one covered by the jury’s guilty verdict.”

530 U.S. at 494 n.19. See also Blakely v. Washington, 542 U.S. 296, 302-05 (2004)

(applying Apprendi to reverse a sentence that exceeded the standard sentencing

range for a particular offense, even though the sentence did not exceed the overall

statutory maximum for that class of offenses); Alleyne v. United States, 570 U.S. 99

(2013) (applying Apprendi to factors increasing mandatory minimum sentences).

The Court applied these principles in Hurst v. Florida, 136 S. Ct. 616 (2016),

holding unconstitutional the then-existing Florida capital sentencing scheme

because it allowed a death sentence to be imposed without submitting all necessary

findings to a jury. The Court’s opinion began with the principle that “[t]he Sixth

Amendment 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. at 619.

Under the sentencing statute in effect at the time, imposing a death sentence

required a separate sentencing proceeding leading to an “advisory sentence” from

the jury, which was not required to give a factual basis for its recommendation. See

id. at 620. Then, “[n]otwithstanding the recommendation of a majority of the jury,

the court, after weighing the aggravating and mitigating circumstances, [was

required to] enter a sentence of life imprisonment or death.” Id. (citing § 921.141(3),

Fla. Stat. (2010)). Hurst had been sentenced to death based on the sentencing

judge’s determination that two aggravating circumstances existed. Id.

This Court concluded Hurst’s death sentence violated the Sixth Amendment

because the statutory scheme at issue did not “require the jury to make the critical

findings necessary to impose the death penalty.” Id. at 622. The Court pointed out

that the statute did not make a defendant eligible for death until those findings

were made. Id.

The Florida Legislature rewrote the state’s capital sentencing scheme

following Hurst v. Florida, eventually creating the system under which Mr. Allen

was sentenced. Although the Florida Supreme Court initially interpreted the

revised statute consistently with the Apprendi line of cases, the court changed

direction and began receding from its own holdings about the operation and effect of

the revised statute. The result has created conflict between Florida law and this

Court’s precedent.

The Florida Supreme Court initially held in Hurst v. State, 202 So. 3d 40

(Fla. 2016) and Perry v. State, 210 So. 3d 630 (Fla. 2016) that, before a death

sentence could be imposed, a jury must find unanimously and beyond a reasonable

doubt the existence of aggravators, the sufficiency of the aggravators, and whether

the aggravators outweighed the mitigation:

[W]e hold that the Supreme Court's decision in Hurst v.

Florida requires that all the critical findings necessary

before the trial court may consider imposing a sentence of

death must be found unanimously by the jury. We reach

this holding based on the mandate of Hurst v. Florida and

on Florida's constitutional right to jury trial, considered in

conjunction with our precedent concerning the

requirement of jury unanimity as to the elements of a

criminal offense. In capital cases in Florida, these specific

findings required to be made by the jury include the

existence of each aggravating factor that has been proven

beyond a reasonable doubt, the finding that the

aggravating factors are sufficient, and the finding that

the aggravating factors outweigh the mitigating

circumstances. We also hold, based on Florida's

requirement for unanimity in jury verdicts, and under the

Eighth Amendment to the United States Constitution,

that in order for the trial court to impose a sentence of

death, the jury's recommended sentence of death must be

unanimous.

Hurst, 202 So. 3d at 44; see also Perry, 210 So. 3d at 640 (interpreting Florida’s

revised death penalty statute). The Florida Supreme Court distinguished the

findings of sufficient aggravation and that the aggravating factors outweighed the

mitigation from the ultimate sentencing recommendation, noting that a jury is not

compelled or required to recommend a death sentence. Perry, 210 So. 3d at 640.

Subsequently, in Foster v. State, 258 So. 3d 1248, 1251-52 (Fla. 2018), the

Florida Supreme Court rejected an argument that a defendant whose sentence had

become final in 2001 should be sentenced to life because a jury had not found all the

elements of “capital first-degree murder.” The court stated the penalty phase

findings were not elements of “the capital felony of first-degree murder” but, rather,

were findings required before the death penalty could be imposed. Id. at 1252.

Foster did not recede from Hurst or Perry, and did not involve the operation and

effect of the sentencing scheme created after Hurst v. Florida. See id. at 1251-52

(describing Hurst as “a change in this state’s decisional law”).

Then, in Rogers v. State, 285 So. 3d 872, 885-86 (Fla. 2019), cert. denied, 141

S. Ct. 284 (2020), the Florida Supreme Court explicitly receded from Hurst and

Perry, holding two of the findings making a defendant eligible for the death penalty

were not elements of the offense requiring a unanimous finding beyond a reasonable

doubt:

To the extent that in Perry v. State, 210 So. 3d 630, 633

(Fla. 2016), we suggested that Hurst v. State held that the

sufficiency and weight of the aggravating factors and the

final recommendation of death are elements that must be

determined by the jury beyond a reasonable doubt, we

mischaracterized Hurst v. State, which did not require

that these determinations be made beyond a reasonable

doubt. Since Perry, in In re Standard Criminal Jury

Instructions in Capital Cases and Foster, we have

implicitly receded from its mischaracterization of Hurst v.

State. We now do so explicitly.

285 So. 3d at 885-86.

Finally, in State v. Poole, 297 So. 3d 487, 490 (Fla. 2020), cert. denied, 141 S.

Ct. 1051 (2021), the Florida Supreme Court receded from Hurst v. State “except to

the extent that it held that a jury must unanimously find the existence of a

statutory aggravating circumstance beyond a reasonable doubt.” To correctly

understand Hurst v. Florida, the court stated, that decision had to be viewed in

light of cases distinguishing “the eligibility decision and the selection decision.”

Poole, 297 So. 3d at 501 (citing Tuilaepa v. California, 512 U.S. 967, 971 (1994)).

The “eligibility” decision required a murder conviction and one aggravating

circumstance. See id. (citations omitted). The selection decision required “an

individualized determination that assesses the defendant’s culpability.” Id. (citation

omitted). The court then reasoned that Hurst v. Florida was “about eligibility, not

selection,” id., and that the only finding that had to be made by a jury was the

existence of one or more statutory aggravating circumstances, id. at 502-03.

One problem with this reasoning is that it is based on a version of the statute

predating the legislative changes that took place because of Hurst v. Florida. See

Poole, 297 So. 3d at 495-96. That statutory scheme, which still placed the jury in an

advisory role, did not describe the eligibility decision and the selection decision the

same way the current statute does. Compare Fla. Stat. § 921.141 (2011) with Fla.

Stat. § 921.141 (2019). The “eligibility finding” was “[t]hat sufficient aggravating

circumstances exist as enumerated in subsection (5).” Poole, 297 So. 3d at 502

(citing Fla. Stat. § 921.141(3)(a) (2011)). The selection finding was “[t]hat there are

insufficient mitigating circumstances to outweigh the aggravating circumstances.”

Id. (citing Fla. Stat. § 921.141(3)(b) (2011)). Under the statute at issue in Poole, the

selection finding gave the defendant “an opportunity for mercy if…justified by the

relevant mitigating circumstances and by the facts surrounding his crime. Id. at

503. On its face, that statutory scheme operated differently from the current one,

which requires the existence, sufficiency, and relative weight of aggravating

circumstances to be determined before a death sentence can be considered.

In holding that the determinations that are currently required before Florida

defendants can be subjected to a death penalty are not the elements (or the

functional equivalent of elements) requiring a verdict based on proof beyond a

reasonable doubt, Florida law directly conflicts with this Court’s decisions in

Apprendi, Ring, Alleyne, and Hurst v. Florida.

In addition, treating a defendant as eligible for the death penalty when all

prerequisite findings have not been established beyond a reasonable doubt is

inconsistent with due process. The due process right of requiring the State to prove

every element of a crime beyond a reasonable doubt “reflects a profound judgment

about the way in which law should be enforced and justice administered.” In re

Winship, 397 U.S. 358, 361-62 (1970) (citation omitted). The requirement of proof

beyond a reasonable doubt not only guards against the danger of an erroneous

conviction, but also “provides concrete substance for the presumption of innocence.”

Id. at 363. The standard has a vital role in maintaining public confidence in the

court system. Id. at 364. The standard also protects the interests of criminal

defendants facing deprivation of life or liberty by requiring a subjective state of

certitude regarding the elements of an offense. Id. The reasonable doubt standard is

just as critical when making determinations that affect a sentence as when

determining guilt of an underlying offense:

If a defendant faces punishment beyond that provided by

statute when an offense is committed under certain

circumstances but not others, it is obvious that both the

loss of liberty and the stigma attaching to the offense are

heightened; it necessarily followed that the defendant

should not — at the moment the State is put to proof of

these circumstances — be deprived of protections that

have, until this point, unquestionably attached.

Apprendi, 530 U.S. at 484.

Finally, the Florida Supreme Court’s decision in Poole regarding which

determinations must be made beyond a reasonable doubt makes an unwarranted

and unnecessary distinction between determinations that are “purely factual,” on

one hand and those that are subjective, or that call for the exercise of moral

judgment, on the other. See 297 So. 3d at 503. Under this view, determinations that

cannot be objectively verified “cannot be analogized to an element of a crime.” Id.

This reasoning would prevent assigning the standard of proof beyond a reasonable

doubt to required findings such as the “especially heinous, atrocious, or cruel”

aggravator, which necessarily require the exercise of moral judgment. Obviously

this is not the State of Florida’s position. The result is a fundamental inconsistency

— the standard of beyond a reasonable doubt can be applied to moral judgments

favoring the death penalty, but not to those weighing against it.

The solution is to return to Apprendi and its progeny, and to look at the

operation of Florida’s current capital sentencing scheme. A determination that

increases the available penalty from life to death exposes the defendant to a greater

punishment than his conviction for the underlying crime, and thus must be proved

beyond a reasonable doubt. Under the current statute, that includes the sufficiency

of the aggravating factors and the factual conclusion that the aggravating factors

outweigh mitigating circumstances.

III. The Questions Presented Have the Potential

to Affect Present and Future Capital Defendants.

The Florida Supreme Court’s rejection of Mr. Allen’s Caldwell challenge

misstated the role of the jury, which is not wholly advisory. Under the plain terms

of the Florida capital sentencing scheme, the jury has the potential to bind the trial

court to a particular sentence. This occurs when the jury does not unanimously

recommend death. The instructions given during Mr. Allen’s penalty phase and the

State’s closing argument misled the jury as to the potential effect of its decision,

which violates Caldwell. This error is likely to be repeated to the detriment of

future capital defendants.

In addition, since receding from Hurst and Perry, the Florida Supreme Court

has repeatedly held that determinations as to whether aggravating factors are

sufficient to justify the death penalty and whether the aggravating factors outweigh

mitigating evidence “are not subject to the beyond a reasonable doubt standard of

proof.” Newberry v. State, 288 So. 3d 1040, 1047 (Fla. 2019), cert. denied, 141 S. Ct.

625 (2020); see also, e.g., Bright v. State, 299 So. 3d 985, 998 (Fla. 2020), cert.

denied, 141 S. Ct. 1697 (2021); Santiago-Gonzalez v. State, 301 So. 3d 157, 177 (Fla.

2020), cert. denied, 2021 WL 2519344 (June 21, 2021); Craven v. State, 310 So. 3d

891, 902 (Fla. 2020), cert. denied, 2021 WL 4508396 (Oct. 4, 2021). However, under

the operation and effect of Florida’s capital sentencing scheme, these

determinations are necessary to make a defendant eligible for a death penalty. A

Florida trial court cannot proceed to impose the death penalty after the jury finds

one or more aggravating circumstances. Only after the additional determinations

are made does the jury select between life and death in making its sentencing

recommendation and, if the jury selects death, the court still has discretion to

impose either a life sentence or the death penalty. Under the current statute,

therefore, consideration of mitigation is not merely an “opportunity for mercy,” but

is a necessary step in deciding whether the death penalty is available at all. The

Florida Supreme Court’s reading of the statute is depriving Florida defendants of

due process of law by lessening the State’s burden of proof as expressed in the

Apprendi line of cases. The issue has implications for every pending and future

capital case decided under Florida’s current statutory scheme.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,