Opposition Brief — Donald H. Davidson, Jr., Petitioner v. Florida

Supreme Court briefJan 14, 2022

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No. 21-6654

In The

Supreme Court of the Anited States

DONALD DAVIDSON,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION TO CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Jason William Rodriguez

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

QUESTION PRESENTED

Donald Davidson was sentenced to death after pleading guilty to the firstdegree murder of Roseann Welsh and subsequent rape of her ten-year-old daughter.

He seeks certiorari review of the Florida Supreme Court's rejection of his argument

that the weighing and sufficiency selection criteria in Florida’s capital system are

subject to the beyond a reasonable doubt standard. Under Florida’s system, the

finding of a single aggravator renders a defendant eligible for a capital sentence.

When—as Davidson did below—a defendant waives his penalty phase jury, the

sentencing court is only required to consider the aggravation and mitigation and find

an aggravator before imposing death. Florida’s system does not require the

sentencing judge to determine either sufficiency of the aggravators or weigh them

against the mitigation when a penalty-phase jury is waived. And even when a jury is

involved, the weighing and sufficiency are mere selection criterium rather than facts

that render a defendant eligible for a capital sentence.

This Court should accordingly decline to exercise certiorari jurisdiction over

the following question presented:

I. Does the Fourteenth Amendment’s due process clause require a judge under

Florida’s capital system to weigh the sufficiency of the aggravators and

determine whether they outweigh the mitigation under a beyond a reasonable

doubt standard when a defendant waives his right to a penalty phase jury?

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED. .......... cece cceeeceeesssessssenessnesaseauueeesenseeneseeaseeseanenseneneoneeneneenes i

TABLE OF CONTENTS ...00 oo iecccccecccceeeeseeeeneeneeseaeeeneenseeeess “eeseeeeeeersceeeessnseseseesecess ii

TABLE OF CITATIONS AND AUTHORITIES 00... ccceeeeeesesteenceeenseeetenneeteeees lv

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

JURISDICTION .............cceeceecceeeeeneceesseeeeeseeeesssseasenaussaeauussseeeeeeesseneeeesseesacessaeesesneenersees 1

CONSTITUTIONAL PROVISION INVOLVED ...0..... eee cccceceeeeeeeeeeneeeeeseeenaneneennentees 1

STATEMENT OF THE CASE ....0........esesccccceesceeesesneeeaeesenancaeeeeeeeeessaseneesesnaneeseaneneeseanees 1

REASONS FOR DENYING THE WRIT ...00 cece ccccccceeeeesseneeeeesseeeneneeeeseeneenseanenenens 9

CONCLUSION ..00....ccccccccccccceessseceessneeersececreneesesseesscseceenaaeasasseneesesessnaeseseaeeessaeersnmegeageas 18

CERTIFICATE OF SERVICES 2.0... ccceecccscsccsesscecseeessseeeeeenseeeeeeeessannessnneeesseaeerseasanaaeas 19

TABLE OF CITATIONS AND AUTHORITIES

Cases

Alleyne v. United States, 570 U.S. 99 (2018) ......ccccecseccsscssceeceeeseesteseessessensensereseeeneees 15

Apprendi v. New Jersey, 530 U.S. 466 (2000) ..........csecesesessessssestseseesesensaeeeeees 12, 15, 16

Bright v. Florida, 141 S. Ct 1697 (Mar. 22, 2021).......ccccccccsseceseesessseseeeeseesnsecaeseeseeeens 17

Davidson v. State, 2021 WL 4145236 (Fla. Sept. 18, 2021)..........:c:eeeesesseesseeeteeenteenes 1

Davidson v. State, 323 So. 3d 1241 (Fla. 2021) .........cccccccessssesceneereeseeseeeteeneaes 1, 4,7, 18

Eddings v. Oklahoma, 455 U.S. 104 (1982)........cccscsscsceseesessesseecsseeseeeeeeenesesseneneesenees 13

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

Hurst v. Florida, 577 U.S. 92 (2016) ......cccccccccscsssesssssecsscescsseesseecaeeneeeeeeeseeessessesesseaeates 16

In re Winship, 397 U.S. 358 (1970).......cccccccssssssesesseseeeseseeeeeeeaeaecaeseescensnessaneees 15, 16, 17

Kansas v. Carr, 136 S. Ct. 633 (2016) .......cccccccsssecsseseeseeseeseecseeceeeeenseaneesnenseseecaeseeeens 13

Kansas v. Marsh, 548 U.S. 163 (2006) .........c.scecseececeseceseseeteceseeneeseesecseseesenenesesenennseeess 17

McKinney v. Arizona, 140 S. Ct. 702 (2020) ......cccccecceceeccececeeeeeseseeeeeesneneesees 13, 14, 17

Poole v. Florida, 141 S. Ct. 1051 (2021) .......cccccscsseseseeceseseseeeeeenesecseseeseeesteseenseeeneneees 12

Ring v. Arizona, 536 U.S. 584 (2002) .......ccccsssscsceseeeeeeeeeeeeeeseeseessenstesseeneneenees 14, 15, 16

Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020) .........ecescesceseeceeeeeeeeeeeseeseessseeaenteaeenenees 17

Santiago-Gonzalez v. Florida, 2021 WL 2519344 (June 21, 2021).......... eee 17

State v. Poole, 297 So. 3d 487 (Fla. 2020) .........cccccescsscsceseeseeeeecscesseesseesnesseaseaneneaes 12,13

Other Authorities

§ 921.141, Fla. Stat...c.ccccccccsssssscsccsscscscsecsescsesssesesesceesesseessesseeaceeeesseesesees 9, 10, 11, 12

QB U.S.C. § L257 coeccecccscescecsssscsssscsescssssescassscacacasasseseseaesesecaesusnenssosaseaesneaesensnseececseseseeeees 1

QB U.S.C. § QUOD oocceccccscscssscccsssssscscscscscecsesesecscsscseseseceecseseseseaueeceeeeeecscseeeesesnsnseeeaseseeeesees i

Fourteenth Amendment to the United States Constitution. .............ccssscsssesesseeeeeeeeeeees 1

OPINION BELOW

The Florida Supreme Court’s decision petitioned for review appears as

Davidson v. State, 323 So. 3d 1241, 1247 (Fla. 2021), reh’g denied, No. SC19-1851,

2021 WL 4145236 (Fla. Sept. 13, 2021).

JURISDICTION

This Court has jurisdiction over the Florida Supreme Court’s determination

that the federal due process clause does not require a determination that the

aggravators are sufficient and outweigh the mitigators beyond a reasonable doubt.

See 28 U.S.C. § 1257(a); 28 U.S.C. § 2101(d).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States Constitution, section one:

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

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

This certiorari petition arises from the Florida Supreme Court’s affirmance of

Petitioner’s conviction and capital sentence for the first-degree murder of Roseann

Welsh.

Facts

The underlying facts are set forth in the opinion below. Davidson, 323 So. 3d

at 1243-44. While Davidson was on conditional release from prison and wearing an

ankle monitor, he visited the victim’s home while she was alone. Jd. at 1243. He

tricked her into letting him into her bedroom under the guise of playing video games,

choked her, and tried to rape her. /d.

During this attempted rape, the victim’s ten-year-old daughter arrived home

from school. Jd. When the victim heard the school bus arrive, she broke free from

Davidson and ran into the bathroom. /d. Davidson followed her, removed a lace from

a shoe, and strangled her until she lost consciousness. Jd. When Davidson realized

she was still alive, he stabbed her three times in the throat with a buck knife. Jd. He

then left the bedroom and sexually assaulted the victim’s daughter. /d.

While Davidson assaulted the daughter, the victim’s thirteen-year-old son

returned home. Jd. Davidson confronted him at the front door and told him his mother

and sister were not home. /d. The son then left to search for his sister and mother.

Davidson removed his ankle monitor, forced the victim’s daughter into the

family’s minivan, and drove away. Jd. He threw out his cell phone and ordered her to

duck any time they passed vehicles. /d. He fondled “her vagina, placing his penis in

her mouth, and placing his penis in or around her anus and vagina.” Jd. Eventually,

he returned her to a location near her home and allowed her to exist. Jd. She was

found by police (the son called after he eventually returned to the home and found his

mother dead). Jd. at 1243-44. The victim’s daughter recounted the details about her

encounter with Davidson. /d. at 1244.

After Davidson confessed, the State charged him with nine crimes: “first-

degree premeditated murder, kidnapping, and multiple counts of sexual battery upon

a child twelve years of age or younger.” Jd. The State sought the death penalty. Jd.

Davidson pled guilty on all counts and waived his right to a penalty phase jury.

Id. The court found his plea to be “knowingly, freely, voluntarily, and intelligently

given.” Jd. The court then held a bench penalty phase and found:

five aggravating factors to be proven beyond a reasonable doubt, with

the noted weight: Davidson committed the murder while under a

sentence of imprisonment for a felony (great weight); Davidson

committed prior violent felonies consisting of the 2010 aggravated

battery, as well as the sexual batteries on and kidnapping of M.S. (great

weight); Davidson murdered Welsh after attempting to commit a sexual

battery upon her (great weight); the murder was especially heinous,

atrocious, or cruel (great weight); and Davidson committed the murder

after having been designated a sexual predator (moderate weight).

Id. at 1246. The court also evaluated the mitigating circumstances and assigned them

weight. Jd. at 1246-47. “Ultimately, the court concluded that the aggravating

circumstances heavily outweighed the mitigating circumstances, thereby warranting

imposition of the death penalty.” Jd. at 1247. Davidson then appealed to the Florida

Supreme Court. /d.

Decision Below

Davidson argued—for the first time on appeal—that the sentencing court erred

by failing to find “beyond a reasonable doubt that sufficient aggravating

circumstances existed and that those aggravating circumstances outweighed the

mitigating circumstances.” Jd. The Florida Supreme Court rejected this argument

and noted it had “consistently held the reasonable-doubt standard inapplicable to

either the sufficiency or weighing determination.” Jd. at 1248.

Davidson timely filed his petition for certiorari seeking review of the Florida

Supreme Court’s decision on November 19, 2021. This is the State’s Brief in

Opposition.

REASONS FOR DENYING THE WRIT

Donald Davidson (Petitioner) seeks certiorari review of the Florida Supreme

Court’s decision rejecting his claim that the Fourteenth Amendment’s due process

clause requires a sentencer to find the aggravators are sufficient and outweigh the

mitigation presented beyond a reasonable doubt. He argues that the sufficiency and

weighing selection criterium under section 921.141(2)(b)2.a.—b., Florida Statutes, are

the functional equivalent of elements and must be found beyond a reasonable doubt.

This Court should deny review for two independent reasons. First, the section

921.141(2)(b)2.a—b. provisions that Petitioner argues are elements do not apply to

his case because he waived his penalty phase jury. Second, even if these provisions

applied to Petitioner’s case, the sufficiency and weighing determinations are not

elements that require a beyond a reasonable doubt determination.

A. Florida’s Statutory Selection Criteria for Sufficiency and Weighing Do Not

Apply to Petitioner’s Case.

This Court should deny review because the section 921.141(2)(b)2.a—b.,

Florida Statutes, provisions that Petitioner argues are the functional equivalent of

elements do not apply to his case. A decision from this Court would therefore afford

him no relief and be purely advisory. |

By way of background, the Florida Legislature has adopted a comprehensive

statutory system applicable when the State seeks a capital sentence. See § 921.141,

Fla. Stat. This system gives the defendant a right to a penalty phase before a jury

(unless waived) and requires that jury to determine whether the “the state has

proven, beyond a reasonable doubt, the existence of at least one aggravating factor.”

§ 921.141(2)(a), Fla. Stat. If the jury finds one aggravating circumstance beyond a

reasonable doubt, “the defendant is eligible for a sentence of death.” § 921.141(2)(b)2.,

Fla. Stat.

Florida’s system then requires the jury to make a recommendation on what the

appropriate sentence is. § 921.141(2)(b)2., Fla. Stat. In relevant part, the jury’s

recommendation must be “based on a weighing” of: “a. Whether sufficient aggravating

factors exist” and “b. Whether aggravating factors exist which outweigh the

mitigating circumstances found to exist.” § 921.141(2)(b)2.a.b., Fla. Stat. Petitioner

argues that these provisions governing a jury’s recommendation are the functional

equivalent of elements and therefore must be proven beyond reasonable doubt.

Notably, however, these provisions only apply “if the defendant has not waived

his or her right to a sentencing proceeding by a jury.” § 921.141(2), Fla. Stat. If a

defendant waives a penalty phase jury (as Petitioner did in this case), then Florida

employs a much simpler process:

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.

§ 921.141(3)(b), Fla. Stat. The statutory sufficiency and weighing provisions are

omitted from this process; the sentencing court must simply find an aggravator and

consider the aggravation and mitigation before imposing a capital sentence. §

921.141(3)(b), Fla. Stat.

Petitioner’s argument is thus predicated on a clear misreading of the statutory

provisions applicable when a defendant in Florida waives a penalty phase jury.

Florida law is clear that, when a defendant waives a penalty phase jury, the

sentencing court must only find an aggravator and consider the aggravation and

mitigation before imposing a capital sentence. § 921.141(3)(b), Fla. Stat. Since

Petitioner waived his penalty phase jury, he was subject exclusively to the framework

found in section 921.141(8)(b), rather than the jury recommendation provisions found

in § 921.141(2)(b). This framework only required the trial court to “consider” the

aggravation and mitigation and find an aggravator before imposing death. §

921.141(3)(b), Fla. Stat. The sufficiency and weighing statutory language—on which

Davidson relies—is exclusively found in the inapplicable jury recommendation

provisions that Petitioner waived when he waived his right to a penalty phase jury.

As a result of his waiver—regardless of the answer to the question Petitioner has

presented to this Court—his sentence will remain unaffected. This Court should deny

review on that basis alone.

B. Alternatively, Sufficiency and Weighing Are Not Elements that Require a

Finding Beyond a Reasonable Doubt.

Moving past the obvious inapplicability of the statutory provisions that

Petitioner argues are elements, he is substantively incorrect that the sufficiency and

weighing selection criteria are elements or their functional equivalent.

Florida’s statute specifically details the findings necessary to make a

defendant eligible for a capital sentence:

If the jury .. . [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.

§ 921.141(2)(b)2., Fla. Stat. (emphasis added). Once a defendant is eligible for a

capital sentence, the jury must then determine their view of the appropriate sentence

based on the facts of the case. In relevant part, this recommendation is “based on a

weighing” of “[wlhether sufficient aggravating factors exist” and “[wlhether

aggravating factors exist which outweigh the mitigating circumstances found to

exist.” § 921.141(2)(b)2.a.-b., Fla. Stat.

The Florida Supreme Court recently explained why these selection criteria are

not “facts” subject to the beyond a reasonable doubt standard. State v. Poole, 297 So.

3d 487, 503 (Fla. 2020),! cert. denied sub nom. Poole v. Florida, 141 S. Ct. 1051 (2021).

In rejecting the argument that weighing is the functional equivalent of an element,

the Florida Supreme Court acknowledged this Court’s precedent in Apprendi? and

noted that weighing is not a factual determination. Poole, 297 So. 3d at 503. Indeed,

“the ultimate question whether mitigating circumstances outweigh aggravating

1 Poole was sentenced under the 2011 version of Florida’s capital sentencing statute

rather than the one applicable to Davidson. Poole, 297 So. 3d at 495 & n.3. That

version of the statute did require a court to consider the sufficiency of the aggravators

and weigh them against the mitigators. Jd. But the present version of the statute has

no such requirement.

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

circumstances is mostly a question of mercy.” Jd. (quoting Kansas v. Carr, 136 S. Ct.

633 (2016)). Subjective determinations, like weighing of the aggravators against the

mitigators, “cannot be analogized to an element of a crime” because they are

discretionary judgment calls. Jd.

Finally, as a matter of Florida law, the Florida Supreme Court held that the

finding of an aggravator is the sole eligibility criteria for a capital sentence. Jd. “The

role of the” weighing selection finding “is to give the defendant an opportunity for

mercy if it is justified by the relevant mitigating circumstances and by the facts

surrounding his crime.” /d. And, again as a matter of Florida law, the Florida

Supreme Court held that the sufficiency of the aggravators criteria is met once a jury

finds a single aggravating circumstance. Jd. at 502. This requirement was therefore

automatically satisfied below when the court found the existence of aggravating

circumstances beyond a reasonable doubt. See Davidson, 323 So. 3d at 1246 (“In the

sentencing order, the trial court found five aggravating factors to be proven beyond a

reasonable doubt.”).

This Court’s recent decision in McKinney v. Arizona, 140 S. Ct. 702 (2020),

confirms that the sufficiency and weighing selection criteria are not the functional

equivalent of elements. In McKinneyError! Bookmark not defined., a capital

defendant challenged his death sentence because the sentencing judge had failed to

consider his posttraumatic stress disorder (PTSD) as a mitigating factor, thereby

violating Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding that a capital sentencer

may not refuse as a matter of law to consider relevant mitigating evidence). On

remand from the Ninth Circuit, the Arizona Supreme Court performed its own de

novo weighing of the aggravators and mitigators, including the defendant’s PTSD,

and upheld the sentence. McKinney, 140 S. Ct. at 706. In the state supreme court’s

independent judgment, the balance of the aggravators and mitigators warranted the

death penalty. /d.

On certiorari review, the defendant argued that “a jury must resentence him”

because a court “could not itself reweigh the aggravating and mitigating

circumstances.” McKinney, 140 S. Ct. at 706. This Court rejected that claim. “Under

Rings and Hurst,*”” this Court explained, “a jury must find the aggravating

circumstance that makes the defendant death eligible.” Jd. at 707. “[I]mportantly,”

however, “in a capital sentencing proceeding just as in an ordinary sentencing

proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the

aggravating and mitigating circumstances or to make the ultimate sentencing

decision within the relevant sentencing range.” Jd; see also id. at 708 (explaining that

“Ring and HurstError! Bookmark not defined. did not require jury weighing of

aggravating and mitigating circumstances”).

Because the Sixth Amendment permits the “weighling] [of] aggravating and

mitigating” evidence by judges, McKinney, 140 S. Ct. at 707, the determination that

aggravators outweigh mitigators cannot be considered an “element” of the offense.

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

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

And because that determination is not an element, it is not subject to the beyond a

reasonable doubt standard. See Alleyne v. United States, 570 U.S. 99, 107 (2013)

(“The touchstone for determining whether a fact must be found by a jury beyond a

reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the

charged offense.”). In other words, this Court in McKinney already rejected an

essential premise of Petitioner's argument: that the sufficiency and weighing of

aggravators and mitigators is either an “element” or the “functional equivalent” of an

element.

Particularly viewed in light of McKinney, there is no conflict between the

Florida Supreme Court’s decision below and this Court’s precedent. Petitioner asserts

that the Florida Supreme Court’s decision “conflicts with this Court’s opinions in

Apprendi, Ring, Alleyne and Hurst.” Petition at 8. Petitioner is simply incorrect. The

cases he cites do not conclude that the beyond a reasonable doubt standard applies to

non-factual determinations intended to guide a jury’s sentencing recommendation.

On the contrary, those cases evince this Court’s understanding that that standard of

proof is limited to factual findings.

By its terms, Jn re Winship applies the beyond a reasonable doubt standard

only to “the factfinder.” 397 U.S. 358, 363-64 (1970); see also id. (referencing “the

trier of fact”). The Court there held that the due process clause “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” Jd. at 364; see also

Alleyne, 570 U.S. at 103 (“Any fact that, by law, increases the penalty for a crime is

an ‘element’ that must be submitted to the jury and found beyond a reasonable

doubt.”).

Consistent with Winship, this Court in Apprendi expressly and repeatedly

explained that the beyond a reasonable doubt standard of proof applies to “facts.”

Apprendi, 530 U.S. at 482-84, 486, 490. Apprendi did not hold that the beyond a

reasonable doubt standard should be extended to non-factual normative judgments

of the kind at issue here.

This Court’s cases applying Apprend’to the capital sentencing context likewise

did not hold that the due process clause requires the jury to determine, beyond a

reasonable doubt, that normative considerations support the imposition of the death

penalty. In Ring, for example, this Court explained that “[clapital defendants, no less

than noncapital defendants, . . . are entitled to a jury determination of any fact on

which the legislature conditions an increase in their maximum punishment.” Hing v.

Arizona, 536 U.S. 584, 589 (2002). So too in Hurst, where this Court reiterated that

the sentencing scheme in Aing violated the defendant’s right to have “a jury find the

facts behind his punishment.” Hurst v. Florida, 577 U.S. 92, 98 (2016); see also id. at

94 (“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to

impose a sentence of death.”).

In short, the decision below does not conflict with this Court’s precedents. None

of the cases Petitioner cites held that a jury must find beyond a reasonable doubt that

aggravating factors outweigh mitigating circumstances or are sufficient to warrant

the imposition of capital punishment. What is more, the reasoning of those cases

expressly ties the beyond a reasonable doubt standard to factfinding of a kind not at

issue here—and thus undermines rather than supports Petitioner’s claim.

The Florida Supreme Court below was eminently correct to refuse to apply a

beyond a reasonable doubt standard to selection criteria based on moral judgments

rather than facts. The beyond a reasonable doubt standard ensures that the

prosecution must “persuadle] the factfinder at the conclusion of the trial of [the

defendant’s] guilt beyond a reasonable doubt.” Jn re Winship, 397 U.S. at 364. This

safeguard preserves the “moral force of the criminal law” because it does not “leavel

] people in doubt whether innocent men are being condemned.” /d. But sufficiency

and weighing do not go to whether the defendant is guilty of a capital offense—that

question is answered when the jury finds the existence of an aggravated first-degree

murder. See McKinney, 140 S. Ct. at 707; Kansas v. Marsh, 548 U.S. 163, 175-76

(2006). Sufficiency and weighing instead, go to the appropriateness of the penalty.

That is, they are normative judgments, not facts.5 Therefore, this Court should deny

certiorari review.

5 It is, therefore, unsurprising that this Court has denied certiorari in several recent

Florida cases presenting an identical issue. See Santiago-Gonzalez v. Florida, 1418.

Ct. 2828 (June 21, 2021) (No. 20-7495); Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020)

(No. 19-8473); Bright v. Florida, 141 S. Ct 1697 (Mar. 22, 2021) (No. 20-6824); Doty

v. Florida, 142 S. Ct. 449 (Nov. 1, 2021) (21-5672); Craft v. Florida, 142 S. Ct. 490

(Nov. 15, 2021) (21-5280); Craven v. Florida, 142 8. Ct. 199 (Oct. 4, 2021) (20-8403):

Newberry v. Florida, 141 S. Ct. 625 (Oct. 19, 2020) (20-5072). This Court has also

denied certiorari review in a case presenting the underlying question of whether the

Sixth and Eighth Amendments require that a jury find that the aggravators

outweighed the mitigators. See Poole v. Florida, 141 8. Ct. 1051 (Jan. 11, 2021) (No.

20-250).

CONCLUSION

The Florida Supreme Court’s decision below does not present any conflict with

any decision of this Court. Nor is any unsettled question of federal law involved. In

addition, the statutory provisions Petitioner argues are elements are inapplicable to

his sentence. Therefore, the Respondent respectfully submits that the petition for a

writ of certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL

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