Petition for Writ of Certiorari — Richard Barry Randolph, Petitioner v. Florida
Supreme Court briefNov 18, 2021
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No. _____
OCTOBER TERM 2021
IN THE SUPREME COURT OF THE UNITED STATES
═════════════════════════════════
RICHARD BARRY RANDOLPH,
Petitioner,
v.
STATE OF FLORIDA
Respondent.
═════════════════════════════════
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
═════════════════════════════════
CAPITAL CASE
═════════════════════════════════
Marie-Louise Samuels Parmer
Special Assistant CCRC-South
Fla. Bar No.: 0005584
Counsel of Record
OFFICE OF THE CAPITAL COLLATERAL
REGIONAL COUNSEL-SOUTHERN REGION
110 SE 6th St., Suite 701
Fort Lauderdale, FL 33301
TEL: (954) 713-1284
FAX: (954) 713-1299
COUNSEL FOR PETITIONER
CAPITAL CASE
QUESTIONS PRESENTED
1.
Whether the Florida Supreme Court’s decision in Hurst v. State constitutes
statutory construction of substantive law, and if so, whether the Due Process Clause
of the Fourteenth Amendment requires that this substantive law govern the law in
existence at the time of Richard Barry Randolph’s alleged offense.
2.
Whether Florida’s capital sentencing scheme requires a factual finding proven
beyond a reasonable doubt that sufficient aggravating circumstances are not
outweighed by the available mitigating circumstances to sentence someone to in
conformity with the Eighth, Sixth, and Fourteenth Amendments.
ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioner, Richard Barry Randolph, a death-sentenced individual in the state
of Florida, was the appellant in the Florida Supreme Court.
Respondent, the State of Florida, was the appellee in the Florida Supreme
Court.
iii
NOTICE OF RELATED CASES
Per Rule 14.1(b)(iii) of the Rules of the Supreme Court of the United States,
the following cases relate to this petition:
Underlying Trial:
Circuit Court of Putnam County, Florida
State of Florida v. Richard Barry Randolph, Case No. 88-1357-CF-M
Judgment Entered: April 5, 1989
Direct Appeal:
Florida Supreme Court, Case No. SC60-74083
Randolph v. State, 562 So. 2d 331 (Fla. 1990)
Judgment Entered: May 3, 1990
Supreme Court of the United States, Case No. 90-5949
Randolph v. Florida, 498 U.S. 992 (1990)
Judgment Entered: November 26, 1990
Initial Postconviction Proceedings:
Circuit Court of Putnam County, Florida
State of Florida v. Richard Barry Randolph, Case No. 88-1357-CF-M
Judgment Entered: April 2, 1993 (Claim 5); February 24, 1998 (Claims 1-19);
and May 14, 1998 (Claim 20)
Florida Supreme Court, Case No. SC60-81950
Randolph v. State, 676 So. 2d 369 (Fla. 1996)
Judgment Entered: March 7, 1996
Florida Supreme Court, Case No. SC60-93675
Randolph v. State, 853 So. 2d 1051 (Fla. 2003)
Judgment Entered: April 24, 2003
State Habeas Proceedings
Florida Supreme Court, Case No. SC01-2855
Randolph v. James v. Crosby, Jr., etc., 853 So. 2d 1051 (Fla. 2003)
Judgment Entered: April 24, 2003
Second State Habeas Proceedings
Florida Supreme Court, Case No. SC03-1056
Randolph v. James v. Crosby, 861 So. 2d 430 (Fla. 2003)
Judgment Entered: November 21, 2003
iv
Supreme Court of the United States, Case No. 03-8419
Randolph v. Sec’y, Fla. Dep’t of Corr., 541 U.S. 961 (2004)
Judgment Entered: March 29, 2004
Federal Habeas Proceedings
United States District Court for the Middle District of Florida
Randolph v. Walter A. McNeil, No. 3:04-CV-1206-J-33, 2008 WL 11438125, at
*1 (M.D. Fla. Feb. 19, 2008)
Judgment Entered: February 19, 2008
United States Court of Appeals for the Eleventh Circuit, Case No. 08-12854
Randolph v. Walter A. McNeil, Bill McCollum, 590 F.3d 1273 (11th Cir. 2009)
Judgment Entered: December 22, 2009
Supreme Court of the United States, Case No. 10-5601
Randolph v. Walter A. McNeil, Sec’y, Fla. Dep’t of Corr., et al., 131 S. Ct. 506
(2010)
Judgment Entered: November 1, 2010
First Successive Postconviction Proceedings
Circuit Court of Putnam County, Florida
State of Florida v. Richard Barry Randolph, Case No. 88-1357-CF-M
Judgment Entered: March 7, 2011
Florida Supreme Court, Case No. SC11-725
Randolph v. State, 91 So. 3d 782 (Fla. 2012)
Judgment Entered: April 26, 2012
Second Successive Postconviction Proceedings
Circuit Court of Putnam County, Florida
State of Florida v. Richard Barry Randolph, Case No. 88-1357-CF-M
Judgment Entered: December 31, 2019
Florida Supreme Court, Case No. SC20-287
Randolph v. State, 320 So. 3d 629 (Fla. 2021)
Judgment Entered: February 4, 2021
Rehearing Denied: June 22, 2021
v
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................ ii
PARTIES TO THE PROCEEDINGS BELOW .......................................................... iii
NOTICE OF RELATED CASES ................................................................................ iv
TABLE OF CONTENTS ............................................................................................. vi
INDEX TO APPENDIX ............................................................................................ viii
TABLE OF AUTHORITIES ..................................................................................... viii
PETITION FOR A WRIT OF CERTIORARI .............................................................. 1
CITATIONS TO OPINION BELOW ........................................................................... 1
STATEMENT OF JURISDICTION ............................................................................ 1
CONSTITUTIONAL PROVISIONS INVOLVED ....................................................... 2
STATUTORY PROVISIONS INVOLVED .................................................................. 2
STATEMENT OF THE CASE AND PROCEDURAL HISTORY .............................. 2
I.
LEGAL BACKGROUND............................................................................ 2
II.
FACTUAL BACKGROUND .................................................................... 13
III.
PROCEEDINGS BELOW ..................................................................... 16
REASONS FOR GRANTING THE WRIT ................................................................ 22
I.
THE FLORIDA SUPREME COURT’S DECISION IN THIS CASE IS
CONTRARY TO THE FOURTEENTH AMENDMENT’S PROTECTION
THAT THE STATE PROVE EACH ELEMENT OF A CRIMINAL OFFENSE
BEYOND A REASONABLE DOUBT AND THIS COURT’S PRECEDENT
REQUIRING JUDICIAL STATUTORY INTERPRETATION TO DATE
BACK TO THE STATUTE’S ORIGINAL ENACTMENT. .............................. 22
vi
II. THE FLORIDA SUPREME COURT’S DECISION IN FOSTER V.
STATE AND STATE V. POOLE DIRECTLY CONFLICT WITH THIS
COURT’S DECISIONS IN APPRENDI V. NEW JERSEY, RING V.
ARIZONA AND HURST V. FLORIDA. ........................................................... 29
III. THIS ISSUE IS OF GREAT IMPORTANCE TO THE
CONSTITUTIONAL INTERESTS OF DEATH SENTENCED INDIVIDUALS
IN FLORIDA, AS WELL AS THE OPERATIONAL INTERESTS OF THE
STATE. .............................................................................................................. 32
CONCLUSION ........................................................................................................... 33
INDEX TO APPENDIX
Opinion of the Florida Supreme Court Under Review (Fla. February 4, 2021)……A4
Unreported Circuit Court Order Denying Successive Motion, Amended Motion to
Vacate Judgment of Conviction and Sentence, and Second Amendment to Motion to
Vacate Judgment of Conviction and Sentence with Special Request for Leave to
Amend (Fla. Cir. Ct. December 31, 2019)……………………………………………...…A9
Unreported Florida Supreme Court Order Denying Petition for Writ of Habeas
Corpus (Fla. November 21, 2003)…………………………………………………………A21
Unreported Order of the Florida Supreme Court Denying Rehearing (Fla. June 22,
2021) )…………………………………………………………………………………………A23
Florida Statute § 775.082 (2021)………………….………………………………………A26
Florida Statute § 782.04 (2021)………………………...…………………………………A31
Florida Statute § 921.141 (2021)………………………….………………………………A35
vii
TABLE OF AUTHORITIES
Cases
Alleyne v. United States, 570 U.S. 99 (2013) ................................................................ 5
Almendarez-Torres v. United States, 523 U.S 224 (1998) ............................................ 4
Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................... 3, 4, 5, 29, 30
Asay v. State, 224 So. 3d 695 (Fla. 2016) ................................................................ 9, 11
Bogle v. State, 213 So. 3d 833 (Fla. 2017) ................................................................... 12
Bousley v. United States, 523 U.S. 614 (1998) ...................................................... 10, 24
Bunkley v. Florida, 538 U.S. 835 (2003) ..................................................................... 25
Caldwell v. Mississippi, 472 U.S. 320 (1985) .............................................................. 14
Danforth v. Minnesota, 552 U.S. 264 (2008). ................................................................ 9
Fiore v. White, 531 U.S. 225 (2001) ........................................................... 11, 24, 25, 29
Fla. Dep’t of Children and Families v. F.L., 880 So. 2d 602 (Fla. 2004) ............. 11, 24
Foster v. State, 258 So. 3d 1248 (Fla. 2018) .......................................................... 30, 31
Gaskin v. State, 218 So. 3d 399 (Fla. 2017) ................................................................ 12
Gregg v. Georgia, 428 U.S. 153 (1976) ......................................................................... 32
Hildwin v. Florida, 490 U.S. 638 (1989) ..................................................................... 16
Hurst v. Florida, 577 U.S. 92 (2016) ........................................................... 5, 26, 29, 30
Hurst v. State, 202 So. 3d 40 (Fla. 2016) .............................................. 6, 22, 25, 26, 28
James v. State, 615 So. 2d 668 (Fla. 1993) ................................................................. 12
Johnson v. State, 904 So. 2d 400 (2005)........................................................................ 9
Lambrix v. State, 217 So. 3d 977 (Fla. 2017) .............................................................. 12
Marshall v. Jones, 226 So. 3d 211 (Mem) (Fla. 2017) ................................................ 12
McKinney v. Arizona, 140 S. Ct. 702 (2020) ......................................................... 23, 32
Montgomery v. Louisiana, 577 U.S. 190 (2016) .................................................... 10, 24
viii
Mosley v. State, 209 So. 3d 1248 (Fla. 2016) ......................................................... 11, 12
Padgett v. Dep't of Health & Rehab. Servs., 577 So. 2d 565 (Fla.1991)..................... 24
Perry v. State, 210 So. 3d 630 (2016)............................................................................. 6
Randolph v. Crosby, 861 So. 2d 430 (Fla. 2003) (unpublished table opinion)........... 21
Randolph v. Florida, 498 U.S. 992 (1990) .................................................................. 16
Randolph v. State, 320 So. 3d 629 (Fla. 2021) ............................................................ 21
Randolph v. State, 562 So. 2d 331 (Fla. 1990) ...................................................... 13, 16
Randolph v. State, 676 So. 2d 369 (Fla. 1996). ........................................................... 17
Randolph v. State, 853 So. 2d 1051 (Fla. 2003) .......................................................... 20
Randolph v. State, No. SC20-287, 2021 WL 2550663 (Fla. 2021) ............................. 22
Ring v. Arizona, 536 U.S. 584 (2002) ................................................................ 4, 29, 30
Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994)..................................................... 11
Schriro v. Summerlin, 542 U.S. 348 (2004) .......................................................... 10, 23
State v. Dixon, 283 So. 2d 1 (Fla.1973) ................................................................. 25, 32
State v. Poole 297 So. 3d 487 (Fla. 2020) .............................................................. 12, 30
Stringer v. Black, 503 U.S. 222 (1992) ........................................................................ 31
Teague v. Lane, 489 U.S. 288 (1989) ............................................................................. 8
Wharton v. Bockting, 549 U.S. 406 (2007) .................................................................. 23
Windom v. State, 886 So. 2d 915 (Fla. 2004) ................................................................ 9
Witt v. State, 387 So. 2d 922 (Fla. 1980) ....................................................................... 8
Zack v. State, 228 So. 3d 41 (Fla. 2017) ...................................................................... 12
Zant v. Stephens, 462 U.S. 862 (1983) ........................................................................ 31
Zommer v. State, 31 So. 3d 733 (Fla. 2010) .......................................................... 11, 28
ix
Statutes
§ 775.082, Fla. Stat. (2021) ............................................................................................ 2
§ 921.141, Fla. Stat. (1983) ............................................................................................ 3
§ 921.141, Fla. Stat. (2021) ............................................................................................ 7
§ 921.141, Fla. Stat. (2016) ........................................................................................ 5, 7
§ 921.141, Fla. Stat. (2017) ............................................................................................ 7
§ 921.141, Fla. Stat. (2015) ............................................................................................ 5
28 U.S.C. § 1257(a) ......................................................................................................... 1
Constitutional Provisions
U.S. Const. amend. VIII ................................................................................................ 2
U.S. Const. amend. XIV ................................................................................................. 2
x
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Richard Barry Randolph, is a condemned prisoner in the State of
Florida. Petitioner respectfully requests that this Honorable Court issue a writ of
certiorari to review the decision of the Florida Supreme Court.
CITATIONS TO OPINION BELOW
The Florida Supreme Court’s opinion that is the subject of this Petition is
reported as Randolph v. State, 312 So. 3d 59 (Fla. 2021), and attached hereto as
“Appendix A.” The Florida Supreme Court’s order denying Mr. Randolph’s motion for
rehearing is unreported but referenced as Randolph v. State, No. SC19-2123, 2021
WL 914174, at *1 (Fla. Mar. 10, 2021), and is attached hereto at “Appendix D.” The
state circuit court order denying Mr. Randolph’s successive motion for postconviction
relief is unreported and attached hereto as “Appendix B.”
STATEMENT OF JURISDICTION
The Florida Supreme Court entered its opinion on February 4, 2021, and
denied Mr. Randolph’s timely Motion for Rehearing on June 22, 2021. This petition
is timely filed in light of the Court’s directive due to the COVID-19 pandemic
extending the deadline to file any petition for writ of certiorari due on or after March
19, 2020, to 150 days from the date of the lower court order denying a petition for
rehearing. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a), with
Petitioner having asserted in the state court below and asserting in this Court that
the State of Florida has deprived him of rights secured by the Constitution of the
1
United States.
CONSTITUTIONAL PROVISIONS INVOLVED
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: “No State shall . . . deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
STATUTORY PROVISIONS INVOLVED
Fla. Stat. § 775.082 (2021)
Fla. Stat. § 782.04 (2021)
Fla. Stat. § 921.141 (2021)
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
I.
LEGAL BACKGROUND
1. Florida’s Original Sentencing Scheme. Florida’s death penalty sentencing
scheme requires the cross-referencing of multiple statutes. Fla. Stat. §§ 782.04,
775.082, 921.141. Under Florida law, a first-degree murder conviction constitutes a
“capital felony” and is automatically subject to a life sentence without parole. §
775.082, Fla. Stat. (2021). § 775.082(1)(a) reads that a person convicted of a capital
2
felony “shall be punished by death if the proceeding held to determine sentence
according to the procedure set forth in s. 921.141 results in a determination that such
person shall be punished by death, otherwise such person shall be punished by life
imprisonment. . . .” § 775.082(1)(a), Fla. Stat. (2019) (emphasis added).
At the time of Randolph’s sentencing in 1989, the relevant portion of § 921.141
read:
(2) ADVISORY SENTENCE BY THE JURY.—After hearing all the
evidence, the jury shall deliberate and render an advisory sentence to
the court, based upon the following matters:
(a) Whether sufficient aggravating circumstances exist. . . .;
(b) Whether sufficient mitigating circumstances exist which
outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be
sentenced to life imprisonment or death.
§ 921.141(2), Fla. Stat. (1983). As indicated, this role was advisory in nature with the
judge making the ultimate sentencing determinations. Id.
2. Addressing the Role of Juries. In 2000, this Court issued Apprendi v. New
Jersey holding that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (emphasis added). The Court focused on whether “the required
finding expose[d] the defendant to a greater punishment than that authorized by the
jury’s guilty verdict[.]”. Id. at 494. The Majority also noted that “due process and
associated jury protections extend, to some degree, ‘to determinations that [go] not to
3
a defendant’s guilt or innocence, but simply to the length of his sentence.’” Id. (quoting
Almendarez-Torres v. United States, 523 U.S 224, 484 (1998)) (emphasis added).
In 2002, this Court issued Ring v. Arizona, finding that Arizona’s capital
sentencing scheme violated a defendant’s Sixth Amendment right to a jury trial when
it allowed “a judge, sitting without a jury, to find the aggravating circumstance
necessary for imposition of the death penalty.” Ring v. Arizona, 536 U.S. 584, 609
(2002). The Majority reasoned that because the enumerated aggravating factors
function as “element[s] of a greater offense,” the Sixth Amendment requires they be
found by a jury. Id. at 585 (quoting Apprendi, 530 U.S. at 494). Further, “[i]f a State
makes an increase in a defendant's authorized punishment contingent on the finding
of a fact, that fact—no matter how the State labels it—must be found by a jury beyond
a reasonable doubt.” Id. at 585-86 (emphasis added). In his concurrence, Justice
Scalia noted that “the accelerating propensity of both state and federal legislatures
to adopt ‘sentencing factors’ determined by judges… cause[s] me to believe that our
people’s traditional belief in the right of trial by jury is in perilous decline.” Ring, 536
U.S. at 611-12 (Scalia, J., concurring); see also Id. at 610 (“the fundamental meaning
of the jury-trial guarantee of the Sixth Amendment is that all facts essential to
imposition of the level of punishment . . . —whether the statute calls them elements
of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a
reasonable doubt.”); Apprendi, 530 U.S. at 494 (“[T]he relevant inquiry is one not of
form, but of effect-does the required finding expose the defendant to a greater
4
punishment than that authorized by the jury's guilty verdict?”).
3. Applying Apprendi and Ring to Florida. Fourteen years after Ring, this
Court issued Hurst v. Florida holding Florida’s 2010 capital sentencing scheme
unconstitutional to the extent it allowed the judge, not the jury, to determine the
sufficient aggravating circumstances necessary to impose a sentence of death. Fla.
Stat. § 775.082(1)(a) (2010); Fla. Stat. § 921.141 (2010); Hurst v. Florida, 577 U.S. 92
(2016) [hereinafter Hurst I]. The Majority made clear that it is constitutionally infirm
for a judge to make the factual findings supporting the determination that sufficient
aggravating factors exist and are not outweighed by mitigating circumstances
because the Sixth Amendment and the Due Process Clause “require[ ] that each
element of a crime be proved to a jury beyond a reasonable doubt.” Hurst I, 577 U.S.
at 97 (citing Alleyne v. United States, 570 U.S. 99 (2013)).
In response to Hurst I, the Florida Legislature partly amended § 921.141. Fla.
Stat. § 921.141 (2016). The statute now, for the first time, required a life sentence
unless at least 10 jurors voted to recommend a death sentence. Id. at § 3(2)(c). The
specific factual findings required for a recommendation of death remained the same.
Compare § 921.141, Fla. Stat. (2015) with § 921.141, Fla. Stat. (2016) (noting that
both Subsection (2) of the 2015 statute and Subsection (2)(2) of the 2016 statute
require the jury to make its recommendation based on whether sufficient aggravating
factors exist that are not outweighed by sufficient mitigating circumstances).
On October 14, 2016, the Florida Supreme Court decided Hurst v. State and
5
reinforced the Sixth Amendment’s requirement that a jury be the “finder of every
fact, and thus every element, necessary for the imposition of the death penalty.” Hurst
v. State, 202 So. 3d 40, 53 (Fla. 2016) [hereinafter Hurst II]. Hurst II found that
whether sufficient aggravating circumstances exist and whether they outweigh
mitigating circumstances are “critical findings necessary for imposition of a death
sentence [and] are the sole province of the jury.” Id. at 57. The court ultimately held:
[T]he Sixth Amendment right to a trial by jury mandates that under
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 a death sentence in
Florida has in the past required, and continues to require, additional
factfinding that now must be conducted by the jury. As the Supreme
Court long ago recognized in Parker v. Dugger, 498 U.S. 308, 111 S.Ct.
731, 112 L.Ed.2d 812 (1991), under Florida law, “The death penalty may
be imposed only where sufficient aggravating circumstances exist
that outweigh mitigating circumstances.” Id. at 313, 111 S.Ct.
731 (emphasis added) (quoting § 921.141(3), Fla. Stat. (1985)). 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.
Id. at 53. In addition to these findings, the Florida Supreme Court held that the
Eighth Amendment requires “juror unanimity in any recommended verdict resulting
in a death sentence.” Id. at 59. This principle was further cemented in Perry v. State,
210 So. 3d 630, 639 (2016) (“Consistent with our decision in Hurst, we construe
section 921.141(2)(b) 2. to require the penalty phase jury to unanimously find beyond
a reasonable doubt that each aggravating factor exists, that sufficient aggravating
6
factors exist to impose death, and that they outweigh the mitigating circumstances
found to exist.”). With these decisions, the Florida Supreme Court expressly intended
to ensure the “future validity and long-term viability of the death penalty in Florida”
in accordance with federal law. Hurst II, 202 So. 3d at 61-62.
On March 13, 2017, in response to Hurst II, the Florida Legislature again
amended § 921.141 to accord with the announced rule of law. The modified statute
required a life sentence unless a unanimous jury recommends death. Fla. Stat. §
921.141 (2017). As was the case with the 2016 amendments, the specific factual
findings required to recommend death remained unmodified. Compare § 921.141, Fla.
Stat. (2016) with § 921.141, Fla. Stat. (2017) (noting the only change between the two
statutes occurred in Subsection (2)(c) which went from requiring at least 10 jurors to
recommend death to requiring a unanimous recommendation). § 921.141(2) currently
provides that the jury shall unanimously determine that the State has proven beyond
a reasonable doubt that at least one aggravating factor exists in order to make a
defendant eligible for a death sentence. § 921.141(2), Fla. Stat. (2021). If the jury
finds that at least one aggravating factor exists, it is then instructed to make a
recommendation to the court by weighing whether sufficient aggravating factors
outweigh the mitigating circumstances. Id. at § (b)(2).
4. Applying Hurst Retroactively. Following Hurst I & II, Florida courts saw
an influx of relief claims from individuals on death row who were sentenced under
Florida’s original statutory scheme. The issue then became whether the decisions
7
announced applied to those whose sentences had already been finalized. The question
of retroactivity is not a new one. It carries a complicated history and difficult
application that many lower courts, as well as this Court, continue to work through
today.
Analyzing retroactive application in the state of Florida most notably starts in
1980 with Witt v. State where the Florida Supreme Court held that a change in law
can only apply retroactively if “the change: (a) emanates from this Court or the United
States Supreme Court, (b) is constitutional in nature, and (c) constitutes a
development of fundamental significance.” Witt v. State, 387 So. 2d at 931 (Fla. 1980).
To be a “development of fundamental significance,” the change in law must “place
beyond the authority of the state the power to regulate certain conduct or impose
certain penalties,” or alternatively, be “of sufficient magnitude to necessitate
retroactive application as ascertained by the three-fold test of Stovall and Linkletter.”
Id. at 929. That threefold test requires courts to weigh: (a) the purpose to be served
by the rule, (b) the extent of reliance on the prior rule, and (c) the effect that
retroactive application of the new rule would have on the administration of justice.
Id. at 926.
Nine years after Witt, this Court issued Teague v. Lane, addressing and
ultimately reworking the federal analysis of retroactive rule application. Teague v.
Lane, 489 U.S. 288, 302 (1989) (“The Linkletter retroactivity standard has not led to
consistent results.”). While primarily focusing on cases in direct appeal, the opinion
8
observed that the Linkletter standard resulted in disparate treatment of “similarly
situated defendants on collateral review.” Id. at 305. The Majority likened the
disparity to both its “failure to treat retroactivity as a threshold question and the
Linkletter standard's inability to account for the nature and function of collateral
review.” Id. To remedy the disconnect, this Court held that “decisions announcing
new constitutional rules would only be applied retroactively on collateral review
under two circumstances: (1) decisions placing conduct beyond the power of the
government to proscribe; and (2) decisions announcing a ‘watershed’ rule of criminal
procedure that is ‘implicit in the concept of ordered liberty.’” Windom v. State, 886 So.
2d 915 (Fla. 2004) (quoting Teague, 489 U.S. at 311).
Teague effectively became the floor of retroactivity application and state
supreme courts were free to adopt more expansive standards. Danforth v. Minnesota,
552 U.S. 264, 281 (2008). Florida has continued to use Witt to analyze its retroactivity
cases. Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005) (“We continue to apply our
longstanding Witt analysis, which provides more expansive retroactivity standards
than those adopted in Teague.”); see generally Asay v. State, 224 So. 3d 695 (Fla. 2016)
(conducting a full Witt analysis).
Despite being given a green light to apply more expansive retroactivity
standards than Teague, state courts are not free to “establish the scope of [their] own
habeas corpus proceedings.” Danforth, 552 at 299. The Danforth Court left open the
question of whether state courts were required to apply Teague’s “substantive rule”
9
exception. This issue was later addressed in Montgomery v. Louisiana, where this
Court first highlighted that the classification of new substantive rules as an
“exception” to Teague was misleading; rather, substantive rules “are more accurately
characterized as . . . not subject to the bar [on retroactive application].” Montgomery
v. Louisiana, 577 U.S. 190, 198 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348,
352 n.4 (2004)). The Court then clarified that “when a new substantive rule of
constitutional law controls the outcome of a case, the constitution requires state
collateral review courts to give retroactive effect to that rule.” Id. at 200.
The question of whether a rule applies retroactively weighs heavily, if not
entirely, on whether an announced rule is substantive or procedural. A rule is
substantive if it narrows the scope of a criminal statute by interpreting it in a way
that “alters the range of conduct or the class of persons that the law punishes.”
Summerlin, 542 U.S. at 353. A rule is procedural if it regulates only “the manner of
determining the defendant’s culpability . . . .” Id.
These new substantive rules, as recently clarified by Montgomery, are exempt
from Teague’s retroactivity analysis. Montgomery, 577 U.S. at 198. Similarly, outside
of Teague’s scope are decisions that interpret a statute. When a court of law interprets
a statute, it is simply clarifying the language of the statute as it has always existed.
See Bousley v. United States, 523 U.S. 614, 625 (1998) (Stevens, J., concurring in part
and dissenting in part) (“This case does not raise any question concerning the possible
retroactive application of a new rule of law, cf. Teague . . . because our decision in
10
Bailey v. United States, 516 U.S. 137 . . . (1995), did not change the law. It merely
explained what § 924(c) had meant ever since the statute was enacted.”). That
construction is “an authoritative statement of what the statute meant before as well
as after the decision of the case giving rise to that construction.” Rivers v. Roadway
Exp., Inc., 511 U.S. 298, 312-13 (1994); see also Fiore v. White, 531 U.S. 225, 228–29
(2001) (holding that the interpretation of the specific statute at issue “furnish[ed] the
proper statement of law at the date Fiore’s conviction became final.”). After such
interpretations are decided by a court, the legislature is presumed to have adopted
those judicial constructions, unless it vocalizes otherwise. Zommer v. State, 31 So. 3d
733, 754 (Fla. 2010) (quoting Fla. Dep’t of Children & Families v. F.L., 880 So. 2d 602,
609 (Fla. 2004)).
The Florida Supreme Court has consistently treated Hurst I & II as introducing
new procedural law, barring its retroactive application.
On December 22, 2016, the Florida Supreme Court decided Asay v. State and
Mosley v. State addressing the issue of retroactivity. Asay, 224 So. 3d 695; Mosley v.
State, 209 So. 3d 1248 (Fla. 2016). The cases collectively held that death sentences
finalized before the June 24, 2002 decision of Ring v. Arizona are not entitled to Hurst
relief. Asay, 224 So. 3d 695; Mosley, 209 So. 3d 1248. Within that bright-line rule the
court emphasized that sometimes it is necessary to forgo standard retroactivity
analysis when “fundamental fairness alone” requires retroactive application of
certain decisions in death penalty jurisprudence. Mosley, 209 So. 3d at 1274-75 (citing
11
James v. State, 615 So. 2d 668 (Fla. 1993)). In James v. State, the Court found it
unjust to deprive someone of relief simply because their sentence was finalized before
the principle of law they had properly preserved throughout the course of their initial
trial and direct appeal had a case name. James v. State, 615 So. 2d 668 (Fla. 1993);
e.g., Mosley, 209 So. 3d at 1274-75 (reasoning that because Mr. Mosley had
consistently argued that Florida’s capital sentencing scheme was unconstitutional
under Ring to no avail that it would be fundamentally unfair to deny him relief under
the decision that ultimately embraced his initial arguments simply because it was
not precedent at the time of his sentencing).
Despite this reasoning, the Florida Supreme Court has consistently stuck to its
hardline litmus test, only affording Hurst relief to individuals whose sentences
became finalized before June 24, 2002. See e.g. Zack v. State, 228 So. 3d 41 (Fla. 2017);
Marshall v. Jones, 226 So. 3d 211 (Mem) (Fla. 2017); Lambrix v. State, 217 So. 3d 977
(Fla. 2017); Bogle v. State, 213 So. 3d 833 (Fla. 2017); Gaskin v. State, 218 So. 3d 399
(Fla. 2017).
5. Receding from Hurst. On January 23, 2020, a newly composed five-Justice
Florida Supreme Court partially receded from Hurst II. State v. Poole 297 So. 3d 487
(Fla. 2020). By re-instating the death sentence of an individual who had previously
been granted relief, the Florida Supreme Court walked back its holdings in Hurst II
and articulated its new “understanding” of Hurst I. Id. at 501. The court held that §
921.141(3) requires two separate findings. Id. at 502. First, the “eligibility finding”
12
that aggravating circumstances exist. Id. Then, the “selection finding” that sufficient
aggravating factors are not outweighed by mitigating circumstances. Id. The court
overruled its Hurst II decision to the extent it required juries to unanimously decide
on the “selection finding;” and instead, held that juries are only required to
unanimously find the existence of at least one aggravating circumstance. Id. Whether
the aggravating circumstance is sufficient and whether it is outweighed by any
mitigation is under the purview of the court. Id. at 503. It further overruled Hurst
II’s holding “that the Eighth Amendment requires a unanimous jury recommendation
of death.” Id. at 504. As a result, only three years after Hurst II issued, the new court
effectively overruled Hurst II “except to the extent it requires a jury unanimously to
find the existence of a statutory aggravating circumstance.” Id. at 491.
II.
FACTUAL BACKGROUND1
1. Initial Trial. On August 15, 1988, two witnesses observed Richard Barry
Randolph leaving a Handy-Way store. Randolph v. State, 562 So. 2d 331, 332 (Fla.
1990). Shortly thereafter, Minnie Ruth McCollum was discovered on the floor of the
store having suffered an assault. Id. She was brought to a nearby hospital, but
succumbed to her injuries six days later. Id. at 333. Mr. Randolph was arrested and,
1 References to the record on appeal transmitted to the Florida Supreme Court from the initial trial
will be designated “R-1990 ___”; References to the record on appeal transmitted to the Florida
Supreme Court on the “Howard Pearl” issue will be designated “R-1996 ___”; References to the
record on appeal transmitted to the Florida Supreme Court from the initial 3.850 motion will be
designated “R-2003 ___”; References to the Supplemental Record transmitted to the Florida Supreme
Court after the relinquishment proceedings will be designated “Supp. R-2001.___”; References to the
record on appeal transmitted to the Florida Supreme Court from the Second Successive 3.851 Motion
will be designated “R-2020.___”.
13
after waiving his Miranda rights, confessed to the murder of Ms. McCollum. Id.
The trial court appointed the Putnam County Public Defender Howard Pearl to
represent Mr. Randolph. (R-1990.19). Before trial began, Mr. Pearl made multiple
motions including two regarding the role of the jury in Mr. Randolph’s case. Id. at
105-32. He requested that the jury be required to find all statutory aggravating
circumstances unanimously, arguing that aggravating circumstances are elements in
Florida statutory schemes and thus the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution require they be found unanimously by a jury. Id.
Anticipating a potential Caldwell issue, the defense also motioned to prohibit the jury
from hearing reference to its advisory role. Caldwell v. Mississippi, 472 U.S. 320, 32829 (1985) (“It is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe, as the jury was in
this case, that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere.”); (R-1990.127-28). The defense supported its
motion arguing that when a jury hears its sentence is merely an advisory
recommendation it is more inclined to recommend death, and such an inclination
misleads the jury in violation of the Eighth Amendment. (R-1990.127-29). The
motions were denied, and, with respect to the anticipated Caldwell claims, the court
and State agreed to modify the instruction language. Id. at 777-92, 1507-09 (removing
statements that the jury “is not responsible for the penalty in any way because of
your verdict.”).
14
After a brief three-day trial, Mr. Randolph was convicted as charged on February
23, 1989. Id. at 583-84. At the end of the guilt phase, Randolph renewed his previous
motions, including a motion for new trial. Id. at 1620. The court once again denied
them. Id. at 1620-21. During the penalty phase, Randolph renewed the pretrial
motion to have the jury agree unanimously in determining the statutory aggravating
factors. Id. at 1797-98. This renewed motion was also denied. Id. at 1798. Before being
sent to deliberate, the jury was instructed of its duty “to advise the court as to what
punishment should be imposed . . . .” Id. at 1841. With respect to the warnings of
Caldwell, the court highlighted that “the final decision as to what punishment shall
be imposed is the responsibility of the Judge. However, . . . [the jury’s]
recommendation is important and will be given great weight.” Id. at 1841. While the
jury was deliberating, Randolph renewed “every objection heretofore overruled and
every Motion for Mistrial heretofore denied.” Id. at 1849. The motion was denied, and
the rulings on the objections were affirmed. Id. After deliberations, the jury
recommended death by a vote of eight to four. Id. at 1850.
Randolph promptly filed a Motion for a New Trial on the grounds that “the
statutory scheme by which an advisory verdict is decided by a majority, rather than
unanimously, fails to genuinely limit the class of persons eligible for the death
penalty . . . .” Id. at 600. The sentencing court denied the motion for a new trial, and
on April 5, 1989, sentenced Mr. Randolph to death. Id. at 610, 641-47.
15
2. Direct Appeal. Mr. Randolph timely appealed his conviction and sentence to
the Florida Supreme Court raising, amongst other claims, that Florida’s capital
sentencing scheme violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of
the United States Constitution both on its face and as it is being applied. (Appellant’s
Initial Br.) Between trial and direct appeal, however, this Court rendered its decision
in Hildwin v. Florida finding no Sixth Amendment requirement “that the specific
findings authorizing the imposition of the sentence of death be made by the jury.”
Hildwin v. Florida, 490 U.S. 638, 640-41 (1989). Randolph acknowledged this Court’s
holding and argued that without a unanimous sentencing recommendation
requirement, or even a substantial majority, one is denied their right to a jury and to
due process of law. (Appellant’s Initial Br. at 76 (1989)). Such a scheme, lacking “any
structured means by which to review” the factual findings made by a jury is arbitrary.
Id. at 54. Without analysis, the Florida Supreme Court rejected the claim that
Florida’s capital sentencing statute was unconstitutional as meritless and affirmed
Randolph’s conviction and sentences. Randolph v. State, 562 So. 2d 331 (Fla. 1990),
cert. denied, Randolph v. Florida, 498 U.S. 992 (1990).
III.
PROCEEDINGS BELOW
1. Initial 3.850. On April 6, 1992, Mr. Randolph timely filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. (R-2003.1-12).
Among other claims, Mr. Randolph argued that Howard Pearl’s undisclosed status as
a Special Deputy Sheriff while representing Randolph violated Randolph’s Sixth,
16
Eighth, and Fourteenth Amendment rights. Id. at 8. Mr. Randolph’s case was
consolidated with a group of others that brought identical conflict of interests claims
as a result of Howard Pearl’s representation during their initial trials. Randolph v.
State, 676 So. 2d 369, 370 (Fla. 1996). During the consolidated evidentiary hearing,
the appellants’ counsel objected to the courtroom conditions and procedure. Id.
(“[A]ppellants were unable to consult with counsel during the hearing because the
appellants were seated in the jury box while counsel were seated across the courtroom
in the pews. . . . preclud[ing] them from consulting their files and referencing
documents during testimony.”)
Due to an unwarranted delay in receiving his public records production,
Randolph filed an amended Rule 3.850 motion on July 6, 1992. (R-2003.47-171). A
second amended Rule 3.850 motion was filed on February 23, 1993 after testimony of
Randolph’s trial judge, Judge Perry, revealed for the first time that he too had been
a special deputy sheriff during Randolph’s capital trial. Id. at 6337-58.
The circuit court partially denied the initial 3.850 motion on April 2, 1993
finding insufficient proof that Mr. Pearl’s status as special deputy sheriff resulted in
any real or implied prejudice towards Mr. Randolph. (Order, Apr. 2, 1993, No. 881357). That denial was appealed to the Florida Supreme Court where it was vacated
citing the procedurally flawed evidentiary hearings that violated Mr. Randolph’s due
process. Randolph v. State, 676 So. 2d at 371. The Florida Supreme Court held that
Mr. Randolph was entitled to a new individual evidentiary hearing on his post17
conviction claims. Id.
Shortly after his new evidentiary hearing, Mr. Randolph filed an amendment to
his Rule 3.850 motion after discovering a draft judgment and sentence with
handwritten notes in the State Attorney’s files which did not exist in Pearl’s file and
did not match the final judgement and sentence signed and filed by Judge Perry. (R2003.4239-300). The amendment alleged that, beyond disregarding the procedures
set forth in § 921.141, the apparent ex parte communications between the judiciary
and the state’s office undermined Mr. Randolph’s right to an individualized and
reliable sentencing proceeding in violation of the Eighth and Fourteenth
Amendments. Id. at 4247. On February 24, 1998, Mr. Randolph was granted an
evidentiary hearing on the basis of this amendment, but all other grounds in the
initial 3.850 motion were denied. (Order on Mot. for Post Conviction Relief, No. 881357, 24 Feb. 1998).
The post-conviction court conducted the evidentiary hearing in April of 1998.
Randolph presented evidence that his trial judge had failed to independently weigh
the aggravating and mitigating circumstances, instead relying expressly on the
findings prepared by the state and also engaged in improper ex parte communications
with the state attorney as to what should be included in the final judgment and
sentence. (R. 2003.5223-437). Despite finding the communication between the State
Attorney’s Office and the judge’s law clerk without the presence of defense counsel
“may have been improper,” the court deemed the improper contact “purely ministerial
18
in nature,” and denied the motion. (Order, No. 88-1357, 14 May 1998).
On appeal, the Florida Supreme Court relinquished jurisdiction for additional
evidentiary development of the ex parte communications between the state and the
judiciary during the trial. (Supp. R-2001.977). A hearing was set for March 21, 2001.
Id. at 980. Mr. Randolph attempted to depose additional state attorneys who had
already testified in other evidentiary hearings regarding the trial judge’s practice of
drafting sentencing orders for the judiciary, but that motion was denied for being
“speculative and not relevant to these proceedings.” Id. at 985, 1007.
In preparation for the hearing, Defense Counsel motioned to disqualify the
entire judicial circuit from hearing the case upon learning the original prosecutor
alleged to have assisted with drafting Mr. Randolph’s sentencing order now sat as a
judge in the same circuit as the judge expected to preside over the current
proceedings. Id. at 990. Randolph also motioned for additional discovery, citing the
need to gather more information on the practice of drafting sentencing orders; and
also filed a motion to continue the upcoming evidentiary hearing as a result of the
incomplete discovery. Id. at 1030-39.
At the March 21, 2001 hearing, counsel for Mr. Randolph requested the court
address the three motions previously filed. Id. at 1212. The presiding judge responded
that he had already ruled on the motions in February, denying all three. Id. Both Mr.
Randolph and the State interjected that they had never received the orders, and Mr.
Randolph expressed further confusion given that he filed the Motion to Disqualify the
19
Circuit in March. Id. The court then expressly denied the Motion to Disqualify as
“legally [in]sufficient,” but allowed Mr. Randolph to read the relevant portions of
previous testimony in which a former Assistant State Attorney admitted to drafting
the judgments and sentences for two capital defendants at the direction of Judge
Perry, Randolph’s trial judge, and further ensured it would take into consideration
the depositions that had not yet been completed. Id. at 1213, 1221. In May, before
Randolph had completed the authorized depositions, the circuit court filed a status
report with the Florida Supreme Court articulating that “no evidence [had] been
presented which would in any way support the appellant’s claim of such improper ex
parte communication.” Id. at 1055. The relinquishment proceedings were completed
and the Record on Appeal was supplemented.
Concurrently with his appeal to the Florida Supreme Court, Mr. Randolph filed
his first state petition for writ of habeas corpus in December of 2001 with the Florida
Supreme Court. On April 24, 2003, the Florida Supreme Court denied both the initial
3.850 motion as well as the petition for habeas relief. In the opinion, the justices
highlighted their disapproval of “the improper ex parte contact between Judge Perry’s
law clerk and the prosecutor,” but ultimately found his right to a neutral judge was
not violated by the communications. Randolph v. State, 853 So. 2d 1051, 1059 (Fla.
2003).
2. Second State Habeas. On June 16, 2003, Mr. Randolph filed a habeas
petition with the Florida Supreme Court premised upon Ring v. Arizona. (Pet. Writ
20
Habeas Corpus, SC03-1056) Randolph argued that: (1) Ring requires specific factual
findings by the jury to determine death eligibility; (2) aggravating factors constitute
elements of an offense; (3) his jury was not instructed that these elements must be
proven beyond a reasonable doubt; and (4) Ring and the Sixth Amendment are
violated when a jury decides death eligibility and recommends death by a mere
majority. Id. This claim was denied in an unpublished decision on November 21, 2003.
(Pet. App. 21a).
3. First Successive 3.851. On November 29, 2010, Randolph filed a successive
Rule 3.851 motion alleging that the Florida Supreme Court failed to properly analyze
prejudice based on clearly established federal law as set forth in Porter v. McCollum
and Strickland v. Washington. On March 7, 2011, the circuit court denied the motion,
and Randolph appealed to the Florida Supreme Court. On April 26, 2012, the Florida
Supreme Court affirmed the denial. Randolph v. State, 91 So. 3d 782 (Mem) (Fla.
2012).
4. Second Successive 3.851. The second successive Rule 3.851 motion, the one
at issue herein, was filed on January 10, 2017. (R-2020.43). The Motion, along with
two amendments filed at later dates, raised a variety of claims challenging Mr.
Randolph’s death sentence. Id. at 43, 119, 336. The five total claims were rooted in
the holdings of Hurst I, Hurst II, and the Florida Supreme Court’s subsequent case
law relating to Hurst’s retroactivity. See discussion infra Section (I)(4).
The circuit court entered an order denying Randolph’s 3.851 motion on
21
December 31, 2019. (R-2020.460-70). Mr. Randolph filed a motion for rehearing on
January 14, 2020, which the court denied on January 21, 2020. Id. at 471-76, 487.
Randolph timely appealed to the Florida Supreme Court, which denied his claim on
February 4, 2021. Randolph v. State, 320 So. 3d 629 (Fla. 2021). In a brief order, the
Florida Supreme Court rejected Randolph’s argument that the statutory construction
announced in Hurst II constituted substantive law requiring retroactive application
to the date of the law’s original enactment. Id. at 3 (“[T]here is no independent crime
of ‘capital first-degree murder’; the crime of first-degree murder is, by definition, a
capital crime, and Hurst v. State did not change the elements of that crime.”).
Randolph filed a motion for rehearing in February of 2021, which was denied on June
22, 2021. (Mot. Reh’g, SC20-287 (2021)); Randolph v. State, No. SC20-287, 2021 WL
2550663 (Fla. 2021). This petition timely follows.
REASONS FOR GRANTING THE WRIT
I.
THE FLORIDA SUPREME COURT’S DECISION IN THIS CASE IS
CONTRARY
TO
THE
FOURTEENTH
AMENDMENT’S
REQUIREMENT THAT THE STATE PROVE EACH ELEMENT OF A
CRIMINAL OFFENSE BEYOND A REASONABLE DOUBT AND THIS
COURT’S PRECEDENT REQUIRING JUDICIAL STATUTORY
INTERPRETATION TO DATE BACK TO THE STATUTE’S ORIGINAL
ENACTMENT.
In Hurst II, the Florida Supreme Court clarified the meaning of Florida’s
capital sentencing statutes. This interpretation constitutes substantive law falling
outside of Teague and Witt analysis and dates back to the statute’s enactment. Hurst
II, 202 So. 3d at 44. The Florida Supreme Court’s subsequent rulings have been in
22
direct conflict with this Court’s analyses and violate the Fourteenth Amendment due
process rights of Petitioner and other similarly situated Death Row inmates.
Whether a decision of this Court applies retroactively to cases on collateral
review depends almost entirely on the rule’s classification as a substantive rule or a
procedural rule. Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004). New substantive
rules apply retroactively; new rules of procedure do not. Id.
New procedural rules regulate only the manner of determining the defendant’s
culpability. This Court has previously held a variety of rules constitute procedural
rule announcements and barred their retroactive application. See generally McKinney
v. Arizona, 140 S. Ct. 702, 708 (2020) (holding Ring and Hurst I announced new
procedural rules); Wharton v. Bockting, 549 U.S. 406, 417 (2007) (holding Crawford
announced new procedural rule); Summerlin, 542 U.S. at 353 (holding Ring
introduced new procedural rule).
On the other hand, new substantive rules include those that narrow the scope
of a criminal statute by interpreting its terms thereby altering the range of conduct
or the class of persons that the law punishes. Summerlin, 542 U.S. at 351-52. These
rules generally apply retroactively because they “necessarily carry a significant risk
that a defendant stands convicted of ‘an act that the law does not make criminal’” or
faces a punishment that the law cannot impose upon him. Id. While originally
classified as exceptions to Teague, this Court has recently clarified that these rules
are not exceptions but are more correctly seen as falling outside of Teague’s scope.
23
Montgomery, 577 U.S. at 198. These interpretations do not change the law, but rather
merely explain what the statute meant ever since it was enacted. See Bousley v.
United States, 523 U.S. 614, 625 (1998) (Stevens, J., concurring in part and dissenting
in part) (“This case does not raise any question concerning the possible retroactive
application of a new rule of law, cf. Teague . . . because our decision in Bailey v. United
States, 516 U.S. 137 . . . (1995), did not change the law. It merely explained what §
924(c) had meant ever since the statute was enacted.”). A decision of statutory
interpretation does not “overrule any prior decision of this Court;” rather, it finds and
establishes that the lower court decisions reading the statute in question differently
“were incorrect.” Rivers v. Roadway Express, Inc., 511 U.S. at 312 (citing Patterson v.
McLean Credit Union, 491 U.S. 164 (1989) (emphasis removed). When a court
clarifies the meaning of a statute, the statutory construction as explained by that
court dates back to the statute’s enactment. Fiore, 531 U.S. 225.
After a court interprets statutory language, the enacting Legislature is
presumed to have adopted that construction unless otherwise expressing the
contrary. Fla. Dep’t of Children & Families v. F.L., 880 So. 2d 602, 609 (Fla. 2004).
After addressing the constitutional requirements for a termination of parental rights,
the Florida Supreme Court found that the Florida Legislature adopted the
constitutional requirements described in Padgett because the enacted statute did not
abrogate that decision. Id. (citing Padgett v. Dep't of Health & Rehab. Servs., 577 So.
2d 565, 570 (Fla.1991)). In 2010, the Florida Supreme Court engaged in such a
24
presumption as it related to whether “sufficient aggravating circumstances” in the
state’s capital sentencing statute indicated a requirement that two or more of such
circumstances be found. Zommer, 31 So. 3d at 733. In the 36 years between the Court
originally answering this question in State v. Dixon, holding that “sufficient
aggravating circumstances” means “one or more such circumstance,” and the case at
hand, the Florida Legislature did not amend the statute to indicate a contrary
position to that interpretation. Id. at 754 (citing State v. Dixon, 283 So. 2d 1
(Fla.1973)). As a result, the Court concluded, the Florida Legislature adopted the
interpretation. Id.
When a court construes a statute, that construction dates to the statute’s
enactment. Fiore, 531 U.S. at 228. Because the sufficiency of the aggravating
circumstances was a statutorily identified fact that had to be found before a death
sentence could be imposed, the Florida Supreme Court concluded that it was an
element of a greater offense to be found unanimously by a jury. Hurst II, 202 So.
3d at 40. The Fourteenth Amendment forbids the State from convicting a defendant
of a crime without first proving the elements of that crime beyond a reasonable
doubt. Bunkley v. Florida, 538 U.S. 835, 840 (2003). Therefore, pursuant to the
Fourteenth Amendment, the statutory construction set forth in Hurst II must have
been the governing law at the time the offense occurred in the instant case, August
15, 1988. See, e.g., Fiore, 531 U.S. 225 (holding a state court’s construction of the
state’s statutory law is binding even on the Supreme Court of the United States).
25
In Hurst I, this Court reversed and remanded the Florida Supreme Court’s
original interpretation of Florida’s capital sentencing statutes. Hurst I, 577 U.S. 92.
This Court held that Florida’s capital sentencing scheme was unconstitutional to the
extent that it failed to require the jury, rather than the judge, to find the facts
necessary to impose the death sentence. Hurst II, 202 So. 3d at 44. Further, the Court
emphasized that each finding necessary to impose a death sentence constitutes an
“element[ ]” of that offense. Hurst I, 577 U.S at 97. On remand, the Florida Supreme
Court expressly embraced this interpretation. Hurst II, 202 So. 3d at 53 (“[J]ust as
elements of a crime must be found unanimously by a Florida jury, all these findings
necessary for the jury to essentially convict a defendant of capital murder . . . are also
elements that must be found unanimously by the jury.”). Turning to Florida’s statute,
the court identified these “elements” to include: (1) the existence of aggravating
factors proven beyond a reasonable doubt; (2) the sufficiency of the factors to impose
death; and (3) that the aggravating factors outweigh the mitigating circumstances.
Id. In addition to this express language in the majority opinion, Justice Canady’s
dissenting opinion stated his disagreement with the Majority’s classification of the
aggravators’ sufficiency as an element. Id. at 81-82 (Canady, J., dissenting) (agreeing
that Ring and Hurst I categorize the existence of an aggravating circumstance as a
factor and disagreeing with the inclusion of sufficiency and weight against
mitigators). The disagreement between the Majority and the Dissent in Hurst II was
over whether the finding that the aggravating circumstances were sufficient was an
26
element of the greater offense of capital murder. This disagreement at its core was a
matter of statutory construction and fell entirely on the reading of Florida’s capital
sentencing statute. Fla. Stat. § 921.141(3) (2015).
This holding did not change Florida’s capital sentencing statute, but rather
interpreted it as it has always existed. Hurst II, at 53. (“[U]nder Florida law, ‘The
death penalty may be imposed only where sufficient aggravating circumstances exist
that outweigh mitigating circumstances.’ [Parker v. Dugger, 498 U.S. 308,] 313, 111
S. Ct. 731 (emphasis added) (quoting § 921.141(3), Fla. Stat. (1985)).”) By citing to
the 1985 decision Parker v. Dugger, the Florida Supreme Court further demonstrated
that this additional fact finding was the law in Florida at the time of Mr. Randolph’s
offense in 1988.
The Florida Legislature did amend Florida’s capital sentencing statute after
the decisions of Hurst I and Hurst II, but these actions only further prove the adoption
by the legislature that the sufficiency of the aggravating factor is an element be found
before an individual be sentenced to death. Compare Fla. Stat. § 921.141 (2014) with
Fla. Stat. § 921.141 (2017) (noting difference in unanimity requirements for finding
aggravating factor, but that the weighing of sufficient aggravating factors with
mitigating circumstances exists in both versions). The unchanging nature of the
sufficiency requirement, after being identified as an element of a greater offense by
both the United States Supreme Court and the Florida Supreme Court, establishes
that the Florida Legislature believed that the Florida Supreme Court correctly
27
construed § 921.141 in Hurst II. 202 So. 3d 40. Just as in Zommer, where the Court
held that a 36-year opportunity to abrogate its interpretation of the number of
aggravating circumstances required to sentence someone to death constituted
adoption of that ruling, the consistency of Florida’s statute requiring the factual
finding that “sufficient aggravating factors exist” not “outweigh[ed by] the mitigating
circumstances” constitutes adoption of those as elements of the greater offense.
Compare Zommer, 31 So. 3d 733 with Hurst II, 202 So. 3d 40 (by not changing the
statue after the ruling in Zommer, the Florida Legislature adopted the court’s
interpretation of the statute that only one aggravating circumstance needs to be
found).
The Florida Supreme Court clearly struggled in Hurst v. State as it tried to
determine what was a matter of statutory construction and what was a matter of
Fifth and Sixth Amendment jurisprudence under Ring v. Arizona and Hurst v.
Florida. Hurst II acknowledged that Hurst I only found Florida’s capital sentencing
statute unconstitutional as it relates to who makes the findings required to sentence
someone to death. Hurst II, 202 So. 3d. at 43-44 (“[T]he Supreme Court . . . held, for
the first time, that Florida's capital sentencing scheme was unconstitutional to the
extent it failed to require the jury, rather than the judge, to find the facts necessary
to impose the death sentence . . . .”). Beyond that, the court turned to the state’s
statute to interpret what factual findings are required before an individual is
sentenced to death. That analysis, outside of the Fifth and Sixth Amendment
28
jurisprudence, constitutes substantive statutory construction and dates back to the
statute’s enactment. Hurst II identified what statutorily identified facts were
elements of the greater offense and had to be found by a jury before a death sentence
could be imposed. Pursuant to the Fourteenth Amendment, the statutory
construction set must be applied as the governing law at the time the offense occurred
in the instant case, August 5, 1988. See, e.g., Fiore, 531 U.S. 225.
The Florida Supreme Court’s decision to apply the statute otherwise flies in
the face of this Court’s Due Process jurisprudence and violates the Fourteenth
Amendment rights of Petitioner and other similarly situated Death Row prisoners.
While this Court has previously ruled that Ring and Hurst I constitute new
procedural rules barring retroactive application, it should grant review to determine
whether the Florida Supreme Court’s interpretation and application of Hurst I & II
is consistent with the jurisprudence of this Court.
II.
THE FLORIDA SUPREME COURT’S DECISIONS IN FOSTER V.
STATE AND STATE V. POOLE DIRECTLY CONFLICT WITH THIS
COURT’S DECISIONS IN APPRENDI V. NEW JERSEY, RING V.
ARIZONA AND HURST V. FLORIDA.
This Court has explicitly held that any finding that “exposes the defendant to
a greater punishment than that authorized by the jury’s guilty verdict” constitutes
an “element of a greater offense.” Hurst I, 577 U.S. 92; Ring v. Arizona, 536 U.S. 584
(2002). The Florida Supreme Court’s holdings in Foster v. State and State v. Poole
directly contradict this by holding that Hurst determinations beyond the existence of
aggravating circumstances do not constitute “‘elements’ of that new offense” because
29
they occur only “after a jury has unanimously convicted the defendant of the capital
crime of first-degree murder.” Poole, 297 So. 3d at 503; Foster v. State, 258 So. 3d
1248, 1251 (Fla. 2018).
In State v. Poole, the court announced it was receding from Hurst II. Poole, 297
So. 3d at 502-03 (“[O]ur Court was wrong in Hurst v. State when it held that the
existence of an aggravator and the sufficiency of an aggravator are two separate
findings, each of which the jury must find unanimously.”). By rejecting the
construction of § 921.141 that had been adopted in Hurst II, the Poole court’s
construction conflicts with the jurisprudence of this Court.
Any factor that exposes a defendant to a greater punishment than that allowed
by the jury’s guilty verdict constitutes an element of the greater offense and must be
unanimously found to have been proven by the state beyond a reasonable doubt.
Hurst I, 577 U.S. 92; Ring, 536 U.S. 584; Apprendi, 530 U.S. 466. In Apprendi, this
Court dispelled the notion that sentencing factors cannot operate as elements of a
crime. Apprendi, 530 U.S. at 494 (“Despite what appears to us the clear “elemental”
nature of the factor here, the relevant inquiry is one not of form, but of effect - does
the required finding expose the defendant to a greater punishment than that
authorized by the jury's guilty verdict?”). This Court furthered this analysis in Ring
finding “a defendant may not be ‘expose[d] . . . to a penalty exceeding the maximum
he would receive if punished according to the facts reflected in the jury verdict alone.’”
Ring, 536 U.S. at 586.
30
It is not dispositive that Hurst determinations only occur “after a jury has
unanimously convicted the defendant of the capital crime of first-degree murder”
because the defendant cannot be sentenced to death on that conviction alone. Fla.
Stat. § 921.141 (2017) (“If the jury . . . does not unanimously find at least one
aggravating factor, the defendant is ineligible for a sentence of death.”); Foster, 258
So. 3d at 1251. The Eighth Amendment requires that aggravating circumstances
“genuinely narrow the class of persons eligible for the death penalty.” Zant v.
Stephens, 462 U.S. 862, 876 (1983). This Court has acknowledged the critical role
aggravating circumstances play in “circumscrib[ing] the class of persons eligible for
the death penalty” and has further held that such findings may occur at “either the
sentencing phase of the trial or the guilt phase.” Id. at 878; e.g., Lowenfield v. Phelps,
484 U.S. 231, 245 (1988).
The Florida Legislature decided that juries would carry out the narrowing
function required by Zant with the factual determination that “sufficient aggravating
circumstances existed.” Stringer v. Black, 503 U.S. 222 (1992) (comparing the capital
sentencing statutes of Louisiana, Florida, Georgia, and Texas); Zant, 462 U.S. at 878.
In Florida’s capital sentencing scheme, the maximum punishment “authorized by the
jury’s guilty verdict” alone is life in prison. Section 775.082 provides that a person
convicted of first-degree murder must be sentenced to life imprisonment “unless the
proceedings held to determine sentence according to the procedure set forth in §
921.141 result in finding by the court that such person shall be punished by death.”
31
Fla. Stat. § 775.082 (2021). The Florida Supreme Court has long held that §§ 775.082
and 921.141 do not allow imposition of a death sentence upon a jury’s verdict of guilt,
but only upon the finding of sufficient aggravating circumstances. Dixon, 283 So. 2d
at 7. Analyzing this sentencing scheme through an inquiry “not of form, but effect”
shows that the sufficiency of the aggravating circumstances and their weight against
mitigators constitutes an element intended by the Florida Legislature to be proven
by the jury beyond a reasonable doubt. Contra McKinney v. Arizona, 140 S. Ct. 702
(2020) (holding there is no constitutional requirement that juries weigh the
aggravating factors against the mitigating circumstances).
The Florida Supreme Court’s decisions in Foster and Poole are irreconcilable
with this Court’s jurisprudence. Such inconsistencies raise Eighth Amendment
concerns that should be addressed by this Court. Gregg v. Georgia, 428 U.S. 153, 188
(1976) (holding the death penalty may not be “inflicted in an arbitrary and capricious
manner.”).
III. THIS ISSUE IS OF GREAT IMPORTANCE TO THE
CONSTITUTIONAL
INTERESTS
OF
DEATH
SENTENCED
INDIVIDUALS IN FLORIDA, AS WELL AS THE OPERATIONAL
INTERESTS OF THE STATE.
The case for certiorari here is reinforced by its undeniable importance to all
who interact with Florida’s capital sentencing system—those who have already been
sentenced, those that will be sentenced in the future, and the operational interests of
the State.
The unanswered question of whether the Florida Supreme Court is applying
32
Hurst II in conformity with this Court’s precedent carries great implications for the
rights of death sentenced individuals in Florida. Further, the question of whether the
sufficiency of aggravating factors and their weight against available mitigators is an
element of the greater offense impacts every pending and future Florida capital case
and thus implicates the State’s interest to ensure “future validity and long-term
viability of the death penalty in Florida” in accordance with federal law. Hurst II, 202
So. 3d at 61-62.
Mr. Randolph’s case is not unique, making it an excellent vehicle to resolve the
question at hand. The relevant facts are undisputed, and the resolution of the
question presented will be outcome-dispositive for not only Mr. Randolph, but also for
those individuals sentenced under Florida’s capital scheme and those sentenced in
the future. Without resolution by this Court, the issue of whether the sufficiency of
aggravating circumstances and their weight against mitigators must be proven
beyond a reasonable doubt will continue to recur frequently before the Florida courts.
CONCLUSION
For the reasons set forth above, Petitioner respectfully requests this Court
grant the Petition for Writ of Certiorari to review the Florida Supreme Court’s
decision affirming the circuit court’s denial postconviction relief.
33
Respectfully submitted,
/s/ Marie-Louise Samuels Parmer
Marie-Louise Samuels Parmer
Counsel of Record
Capital Collateral Regional
Counsel-Southern Region
110 S.E. 6th St. Suite 701
Fort Lauderdale, FL 33301
November 18, 2021.
34
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.