SC20-323 V. Original Proceedings Case No. 48-2012-CF-014950/A-O

Home , Capital punishment

Filing # 107202061 E-Filed 05/07/2020 03:36:06 PM

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA,

Petitioner, CASE NO.: SC20-323 v. Original Proceedings Case No. 48-2012-CF-014950/A-O

BESSMAN CHARLES OBINNA OKAFOR

Respondent. ______/

PETITIONER’S CONSOLIDATED REPLY AND RESPONSE TO AMICUS BRIEF

SUMMARY

The State petitions this Court to address whether Respondent is entitled to

Hurst v. State relief in 2020. Specifically, whether, after a “wrong” decision that

imposed unconstitutional requirements has been overturned by this Court, a trial

court must blindly execute an order entirely based upon that overturned decision.

Respondent devotes a majority of his response attacking the constitutionality of the

decision in Poole and heedlessly accusing the State of attempting to relitigate Hurst,

rather than addressing this fundamental issue. Respondent’s death sentence was RECEIVED, 05/07/202003:36:36 PM,Clerk,Supreme Court vacated by this Court in Okafor v. State, 225 So.3d 768 (Fla. 2017), based upon

Hurst v. State, 202 So.3d 40 (Fla. 2016). It is clear from its prior mandate that this

Court remanded this case for a new penalty phase because there was not a unanimous

jury recommendation of death. As the United States Supreme Court has

1 unequivocally held, “a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found.” McKinney v. Arizona, 140 S. Ct.

702, 705 (2020)1. Furthermore, this Court has unequivocally held that an aggravating circumstance can include a contemporaneous violent felony conviction or a prior violent felony conviction. See State v. Poole, No. --- So.3d ---, 2020 WL

370302, at *15 (Fla. Jan. 23, 2020), reh’g denied, clarification granted, --- So.3d ---

, 2020 WL 1592953 (Fla. Apr. 2, 2020) (holding that contemporaneous violent felony convictions “satisfied the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt.”); see also Smith v. State, ---

So.3d ---, 2020 WL 1057243, at *6 (Fla. Mar. 5, 2020) (“The existence of previous violent felonies was an aggravating circumstance that rendered Smith eligible for the death penalty and satisfied the mandates of the United States and Florida

Constitutions.”).

In Respondent’s case the jury unanimously convicted him for two (2) counts attempted first-degree murder and one (1) count of armed burglary of a dwelling with explosives or a dangerous weapon and in doing so unanimously found the prior violent felony aggravating factor. To use the terminology of Poole, Respondent’s

1 Notably, the Court also held that Hurst v. Florida, like Ring before it, is not retroactive. McKinney, 140 S. Ct. at 708 (“Ring and Hurst do not apply retroactively on collateral review”).

2 eligibility for a death sentence was established and all constitutional requirements are satisfied. Because Poole recedes from the unanimous-jury-recommendation-of- death requirement in Hurst, and because Respondent otherwise satisfies the requirements of Poole it is appropriate for the trial court to disregard the prior mandate and reinstate the sentence of death. Respondent’s original death sentence is and always has been devoid of any constitutional error. McKinney clearly shows that

Hurst v. State was wrongly decided (and, conversely, that Poole was correctly decided); additionally, Poole clearly articulates how Hurst v. State imposed unconstitutional requirements on the trial courts of this State. Thus, as subsequent decisions clearly indicate, there was never any need to resentence Respondent in the first place.

Respondent further faults the State with attempting to strip Respondent of an assumed interest in the final judgement issued in Okafor v. State, 225 So. 2d. 3d 768

(Fla. 2017) and the State’s purported violation of Ex Post Facto laws. At most, as

Respondent acknowledges on page 20 of his Response, Respondent received a hope for a better outcome on resentencing. However, resentencing has not occurred. The order granting a resentencing is not truly final until the resentencing is complete, and a new judgment and sentence is entered. A judgment is a sentence in a criminal case.

Burton v. Stewart, 549 U.S. 147, 156 (2007).

Despite the clarity of this Court’s decision in Poole, the trial court believed that it lacked the authority to reinstate Respondent’s original death sentence. The trial court reached this conclusion even though Respondent has yet to be resentenced, even though no Double Jeopardy protections have attached, and even though McKinney and Poole completely invalidated the entire basis for resentencing

Respondent in the first place.

As the State will demonstrate, there is no constitutional need to resentence a defendant whose sentence is devoid of any constitutional error and there is no constitutional basis to proceed with resentencing when that resentencing is based entirely on the Court’s “wrong” decision in Hurst v. State.2

2 A Motion for Leave to File Amicus Curiae Brief in Support of Respondent was filed on April 27, 2020 along with Respondent’s Reply. The value of an Amicus Curiae lays in bringing to the attention of the Court relevant matter not already brought to its attention by the parties. “An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” Rule 37(1), Rules of the Supreme Court of the U.S. Amici bring nothing new or of value to the court and instead merely reiterate the arguments advanced by Respondent, often using the same jargon. Amici make no argument that Respondent could not or should not have made on its own behalf. As such, it is respectfully requested that the Amici’s motion to appear as amicus curiae be denied.

ARGUMENT I

JURISDICTION

Respondent argues that this Court’s ultimate jurisdiction is not at issue here, since this Court must review Respondent’s case on direct appeal if his resentencing results in the imposition of the death penalty. This argument misses the central issue raised in the Petition; this Court cannot review whether a trial court has the authority to dismiss a non-final order vacating a death sentence and ordering a new penalty phase under Hurst v. State in light of this Court’s change in decisional law announced in Poole. If Respondent’s resentencing occurs and he is sentenced to life, double jeopardy protections preclude the State from asserting that Respondent should never have received a new penalty phase in the first place.3 Cf. Victorino v.

State, 241 So.3d 48, 50 (Fla. 2018) (holding that a criminal defendant entitled to

Hurst v. State relief was required to undergo a new penalty phase instead of automatically receiving life in prison because the defendant was “not [] acquitted of the death penalty or deemed to be an inappropriate candidate for the death penalty”).

Similarly, if Respondent’s resentencing occurs and he is sentenced to death, the State cannot appeal (or cross appeal) the issue of whether the trial court could have

3 The State is not seeking to reinstate the original sentences for defendants who have already received a new penalty phase and been sentenced to life. See State v. Barry Trynell Davis, 2013-CF-124 (Walton County).

5 declined to grant Respondent a new penalty phase because the issue is rendered moot. Godwin v. State, 593 So. 2d 211, 212 (Fla. 1992)).

The Florida Supreme Court has “exclusive jurisdiction to review all types of collateral proceedings in death penalty cases” and that “[t]his includes cases in which this Court has vacated a death sentence and remanded for further penalty phase proceedings”). Farina v. State, 191 So.3d 454, 454-55 (Fla. 2016); see also Bedford v. State, 633 So. 2d 13, 14 (Fla. 1994) (using the “all writs” provision of the Florida

Constitution to correct an illegal kidnapping sentence imposed on a criminal defendant, originally sentenced to death, after a lower court denied the defendant’s request to correct his sentence because of a mandate issued by the Florida Supreme

Court in the defendant’s direct appeal).

A writ of prohibition is “an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside that jurisdiction.” Mandico v. Taos Construction,

Inc., 605 So. 2d 850, 853-54 (Fla. 1992). The writ also allows a superior court to prevent a lower court from acting without the “authority of law.” English v.

McCrary, 348 So. 2d 293, 297 (Fla. 1977) (“Furthermore, only when damage is likely to follow the inferior court’s acting without authority of law or in excess of jurisdiction will the writ issue”) (emphasis added).

Contrary to Respondent’s colorful characterization, the State’s Petition is not a “flanking maneuver” used to “evade”, “dodge”, or “get around” procedural rules.

In Respondent’s criminal case, there is no constitutional basis to proceed with resentencing. More specifically, the trial court in this case is without the authority of law to conduct a resentencing in Respondent’s case because this Court, in Poole, stated that the portions of Hurst v. State requiring a jury to do more than unanimously find the existence of a statutory aggravator beyond a reasonable doubt violated the

Florida Constitution in two distinct ways. Poole, 2020 WL 370302 at 15* (indicating that Hurst v. State violated article II, section 3 of the Florida Constitution; “We simply have restored discretion that Hurst v. State wrongly took from the political branches”); id. at *13 (indicating Hurst v. State violated article I, section 17 of the

Florida Constitution; “Last, lest there be any doubt, we hold that our state constitution’s prohibition on cruel and unusual punishment, article I, section 17, does not require a unanimous jury recommendation –or any jury recommendation— before a death sentence can be imposed”).

In fact, this Court specifically stated that the court in Hurst v. State acted

“[w]ithout legal justification” to “disregard decades of settled Supreme Court and

Florida precedent.” Id. at *14 (emphasis added). Accordingly, the trial court in

Respondent’s case cannot resentence Respondent on the basis of the unconstitutional requirements that were imposed by Hurst v. State because there is no legal

7 justification for that resentencing. In short, just as the Court in Hurst v. State violated the Florida Constitution, so too would the trial court in Respondent’s case violate the Constitution if it continues to follow Hurst v. State.

Accordingly, since the additional Hurst v. State requirements struck down in

Poole were violations of the Florida Constitution, they must be deemed void from inception. Cf. Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).

Consequently, they cannot be given legal effect – and any non-final judicial action

(absent Double Jeopardy protections) that relied upon those unconstitutional additional requirements cannot be given legal effect either. Cf. Sarasota Citizens For

Responsible Gov’t v. City of Sarasota, 48 So.3d 755, 762 (Fla. 2010). To hold otherwise would impermissibly place this Court’s judicial decisions above the

Constitution itself. Cf. Gamble v. United States, 139 S. Ct. 1960, 1984 (2019)

(Thomas, J., concurring) (“The Constitution, federal statutes, and treaties are the law, and the systematic development of the law is accomplished democratically.”)

(emphasis in original).

MANDATE

Noting that in cases where the jury makes a non-unanimous recommendation of death, the Hurst error is not harmless, and bound by such decisions at that time, this Court vacated Respondent’s death sentence and granted him a new penalty phase trial by mandate rendered September 18, 2017.

As its name suggests, it is “mandatory” that the court follow the appellate court’s rulings. A trial court's role in carrying out a mandate is a purely ministerial act, and the trial court usually does not have authority to "modify, nullify, or evade the mandate." Manata v. State, 226 So.3d 1027,1028 (Fla. lst DCA 2017). But as is often the case, even the “mandatory” nature of the mandate rule has exceptions.

Appellate courts, have carved out a narrow exception to this rule: A "clear example of a case in which an exception to the general rule [binding the parties to the law of the case] should be made results from an intervening decision by a higher court contrary to the decision reached on the former appeal . . . ." Marshall v. State, --- So.3d ---, 2019 WL 5296709 (Fla. 2d DCA 2019) (quoting Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965); see also Morales v. State, 580 So. 2d

788 (Fla. 3d DCA 1991) (declining to enforce the mandate that was superseded by intervening decisions of Florida Supreme Court). In certain narrow circumstances, the court may revisit issues decided on appeal or covered by the mandate. For instance, the mandate may not preclude a court’s reconsideration where there are subsequent factual discoveries or changes in the law. Invention

Submission Corp. v. Dudas, 413 F.3d 411, 414–15 (4th Cir. 2005) (finding reconsideration of an appellate determination appropriate if there is a dramatic change in law, significant new evidence, or blatant error that would result in

9 serious injustice); EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 796 (7th Cir.

2005) (finding reconsideration of an appellate determination appropriate where there has been an intervening change in law). Thus, the judge-made mandate rule is not wholly inflexible. United States v. Bell, 988 F.2d 247, 251 (1st Cir.

1993) (“After all, the so-called ‘mandate rule’ . . . is simply a specific application of the law of the case doctrine and, as such, is a discretion-guiding rule subject to an occasional exception in the interests of justice.”). 4

While Respondent briefly cites to State v. Owen, 696 So. 2d 715 (Fla.

1997), for the proposition that a trial court does not have authority to disregard a mandate, that case is distinguishable. To start, Owen5 addressed intervening

4 The law of the case doctrine does not preclude reconsideration of an issue if there has been a contrary intervening decision of a higher court. See Brunner Enterprises, Inc. v. Dept. of Revenue, 452 So. 2d 550 (Fla. 1984); State v. Owen, 696 So. 2d 715 (Fla. 1997); Dept. of Agriculture and Consumer Services v. Schick, 580 So. 2d 648 (Fla. 1st DCA 1991), approved and remanded, 599 So. 2d 641 (Fla. 1992); Harmon v. State, 547 So. 2d 1027 (Fla. 1st DCA 1989); Tiede v. Satterfield, 870 So. 2d 225 (Fla. 2d DCA 2004); Maserati Automobiles Inc. v. Caplan, 551 So. 2d 501 (Fla. 3d DCA 1989); United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982); Trotter v. State, 690 So. 2d 1234, 1237 (Fla. 1996)

5 In Owen, this Court had previously vacated the defendant’s conviction and sentence in a death penalty case because this Court held that the trial court impermissibly allowed the defendant’s confession into evidence based on Florida law at the time. 696 So. 2d at 717. Subsequent to that decision, but before Owen was retried, the United States Supreme Court issued an opinion in Davis v. United States, 512 U.S. 452 (1994), which caused this Court to rethink its decision and adopt the rationale for admissibility of a confession that the Supreme Court utilized in Davis. Owen, 696 So. 2d at 718-20.

United States Supreme Court opinions that this Court had yet to address. Further, contrary to Owen's refusal to reinstate a conviction6 after a change in the law,

Florida decisional law does permit reinstating a sentence after a change in the law. See. e.g., Marshall, --- So.3d ---, 2019 WL 5296709; Morales, 580 So. 2d at 788. Only this Court itself can change the law of the case established by this

Court. This Court has explicitly receded from its own prior opinion in Hurst. As such, the “intervening decision” has been provided by this Court itself.

Therefore, there is no longer any legal basis for the mandate in the instant case and the trial court is permitted to deny the mandated resentencing based on that intervening decision.

It is clear from the mandate that this Court remanded the case for a new penalty phase because there was not a unanimous jury recommendation of death.

Poole, however, concluded that the court erred in Hurst by holding that the "Eighth

Amendment requires a unanimous jury recommendation of death." Poole, --- So.3d

6 The Court then refused to reimpose Owen’s original death sentence. As the Court clearly noted, Owen’s convictions could not be reinstated because after the Court issued the mandate there was nothing left of Owen’s final judgment to reinstate. There was no conviction and correspondingly there was no sentence. Respondent’s convictions have been affirmed and final September 18, 2017. Okafor v. State, 225 So.3d 768 (Fla. 2017). Unlike the defendant in Owen, no jury or court needs to decide whether Respondent committed the charged offenses before a sentence can be imposed. Respondent’s convictions are final, remain unaffected by this Court’s change in decisional law, and merely require the entry of a sentence to form a final judgment.

---, 2020 WL 370302 at 12-13. According to Poole, there are two principles underlying the Supreme Court's capital punishment cases. Id. at 9. One is an eligibility finding, the other a selection finding. Id. The eligibility decision narrows the class of those that commit murder to persons eligible for a more severe sentence.

Id. The selection decision involves whether a person eligible for the death penalty should receive the sentence. Id. Poole went on to say that, pursuant to Hurst, the jury needs to find only the existence of at least one aggravator for the eligibility requirement, and not a separate finding as to the sufficiency of an aggravator(s) for the selection determination. Id. at 11-12. The Court reasoned that a jury must find facts, such as the existence of an aggravating factor, and not make subjective determinations as to the sufficiency of an aggravating factor. Id. Poole makes clear the jury is constitutionally required to make only one finding: “the existence of one or more statutory aggravating circumstances." Id. In Respondent’s criminal case, the jury unanimously convicted him for two (2) counts attempted first-degree murder and one (1) count of armed burglary of a dwelling with explosives or a dangerous weapon and in doing so unanimously found the prior violent felony aggravating factor. Applying Poole to the case at bar, Respondent’s trial and death sentence are constitutional.

The trial court is bound to consider and follow the current law which, in this case, is Poole. The fact of the matter is Respondent is no longer entitled to be

12 resentenced after Poole. To hold otherwise would require the lower court to proceed with resentencing with full notice that Respondent is not entitled to be resentenced and explicitly ignore binding Florida Supreme Court precedent. It makes no difference whether the prior order that is supposedly law of the case is a final mandate or a prior trial court 3.850 order. Regardless of what kind of order was issued to grant the resentencing, the outcome is the same: any prior order granting

Hurst resentencing is not law of the case because of the injustice exception detailed in Marshall: intervening Supreme Court decisions. The Florida Supreme Court’s intervening decision in Poole overcomes “law of the case” in either situation.

ARGUMENTS II-IV

POOLE

Instead of addressing the issues presented in this case, Respondent attacks this

Court’s decision in Poole as somehow unconstitutional. But as the United States

Supreme Court’s recent decision in McKinney indicates, this Court correctly struck down the unconstitutional requirements imposed by Hurst v. State. See McKinney v.

Arizona, 140 S. Ct. 702, 705 (2020) (“In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances”). Moreover, Respondent’s arguments that Poole was wrongly decided, have already been rejected when this

Court denied Poole’s motion for rehearing and extended the holding in Poole to cases involving prior violent felony convictions. See State v. Poole, --- So. 3d ---,

2020 WL 370302, at *15 (Fla. Jan. 23, 2020), reh’g denied, clarification granted, --

- So. 3d ---, 2020 WL 1592953 (Fla. Apr. 2, 2020) (holding that contemporaneous violent felony convictions “satisfied the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt.”); see also Smith v.

State, --- So. 3d ---, 2020 WL 1057243, at *6 (Fla. Mar. 5, 2020) (“The existence of previous violent felonies was an aggravating circumstance that rendered Smith eligible for the death penalty and satisfied the mandates of the United States and

Florida Constitutions”).

With its decision in Poole, the Florida Supreme Court determined that it had erred in Hurst in several ways, including by holding that the "Eighth Amendment requires a unanimous jury recommendation of death." Poole, --- So. 3d ---, 2020 WL

370302 at 12. In reaching this conclusion, the Court outlined Florida's historical capital sentencing law, as well as, "the principles underlying the [U.S.] Supreme

Court's capital punishment cases" and noted, "Those cases 'address two different aspects of the capital decision-making process: the eligibility decision and the selection decision."' Id. at 9 (quoting Tuilaepa v. California, 512 U.S. 967, 971

(1994)). While the eligibility decision narrows the class of those who commit murder to persons eligible for a more severe sentence, the selection decision encompasses a determination whether a person eligible for the death penalty should receive such a sentence. Poole, --- So. 3d ---, 2020 WL 370302 at 10. After analyzing the

14 distinctions between those two decisions, the Poole opinion unambiguously announced:

This Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 92l.14l(3)(a) eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution, mandates that the jury make the section 94 l. l21(3)(b) selection finding or that the jury recommend a sentence of death.

Poole, --- So. 3d ---, 2020 WL 370302 at 11. Rather, the Florida Supreme Court concluded, "The section 921.141(3)(b) selection finding is not a fact."' Id. (emphasis added). The Court explained its rationale: "A subjective determination like the one that section 921.14 l(3)(b) calls for cannot be analogized to an element of a crime; it does not lend itself to being objectively verifiable. Instead, it is a 'discretionary judgment call that neither the state nor federal constitution entrusts exclusively to the jury."' Id. at 11 (quoting State v. Wood, 580 S.W.3d 566, 585 (Mo. 2019)). Thus, in partially, but significantly, receding from Hurst v. State, Poole unequivocally states that the jury is constitutionally required to make only one finding: "the existence of one or more statutory aggravating circumstances." Poole, --- So. 3d ---

2020 WL 370302 at 27; see also id. at 11.

Contrary to Respondent’s arguments, the Florida Supreme Court has repeatedly upheld Florida's death penalty statutes against claims that the death sentence is arbitrarily and capriciously imposed. See, e.g., Hodges v. State, 885 So.

2d 338, 359 & n. 9 and 10 (Fla. 2004) (noting that the defendant's claim that "the

15 death penalty statute is unconstitutional because it fails to prevent the arbitrary and capricious imposition of the death penalty, violates due process, and constitutes cruel and unusual punishment," has "consistently been determined to lack merit"). The

Florida Supreme Court has also repeatedly rejected similar "cruel and unusual punishment" claims "that Florida's death penalty system is not in accord with evolving standards of decency." Correll v. State, 184 So.3d 478, 485 (Fla. 2015); see Hunter v. State, 175 So.3d 699, 710 (Fla. 2015); McLean v. State, 147 So.3d 504,

514 (Fla. 2014); Kimbrough v. State, 125 So.3d 752, 53-54 (Fla.), cert. denied, 134

S.Ct. 632 (2013); Mann v. State, 112 So.3d 1158, 1162 (Fla. 2013).

ARGUMENT V

RELITIGATION OF HURST

Unrecognized by Respondent, the central issue in this case involves the ability of the trial court to terminate a resentencing when the entire basis for that resentencing has been completely invalidated by this Court. Respondent instead argues that the State is procedurally barred from raising the issues presented in the

Petition by attempting to re-label the Petition as an impermissible 3.851 motion.

Respectfully, Respondent mischaracterizes the State’s argument.

Contrary to Respondent’s repeated assertions, the State does not seek to relitigate whether Respondent was entitled to relief under Hurst v. State back in 2017.

Rather, the State is arguing that Respondent is not entitled to relief in 2020 because

McKinney and Poole clearly show that Respondent’s death sentence is and always has been devoid of any constitutional error. McKinney v. Arizona, 140 S. Ct. 702,

705 (2020) (“a defendant convicted of murder is eligible for a death sentence if at least one aggravating circumstance is found”); State v. Poole, --- So.3d ---, 2020 WL

370302, at 11 (Fla. Jan. 23, 2020), reh’g denied, clarification granted, --- So. 3d ---,

2020 WL 1592953 (Fla. Apr. 2, 2020) (holding that contemporaneous violent felony convictions “satisfied the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt.”); Smith v. State, --- So. 3d --

-, 2020 WL 1057243, at *6 (Fla. Mar. 5, 2020) (“The existence of previous violent felonies was an aggravating circumstance that rendered Smith eligible for the death penalty and satisfied the mandates of the United States and Florida Constitutions.”).

Furthermore, Hurst v. State relief is only received upon completion of a new penalty phase and entry of a corresponding new sentence. Respondent has received neither. Thus, contrary to Respondent’s assertions, the State does not seek to appeal this Court’s 2017 order granting Respondent postconviction relief; rather, the State raises fundamental issues regarding the exercise of judicial power. Respondent’s arguments do not directly address the core issue raised by the State; instead, those arguments mischaracterize the State’s petition in an attempt to force the trial court to go down the wrong path. Nor does Respondent explain how the Petition raises the

17 issue of whether this Court should have vacated Respondent’s death sentence in the first place.

As the State does not challenge the entry of the order granting resentencing in

Respondent’s case, there is no “procedural default” or “belated appeal” in this case that would preclude this Court from addressing the State’s arguments on the merits.

ARGUMENT VI

“FINALITY-OF-JUDGMENT”

The long-settled rule in Florida is that an appeal may be taken only from final orders and judgments that bring to a close all judicial labor between the parties and dispose of every issue involved, such that no further action by the lower tribunal is necessary. Respondent’s arguments are predicated on the erroneous assumption that the order granting Respondent a new penalty phase is final as to judgment. From that misguided premise, Respondent assumes a faulty interest in this Court’s order vacating his death sentence.

The procedural decision ordering resentencing is the procedural first step in the resentencing process, which will not conclude until sentence is imposed in accordance with current law, as explicated in Poole. Since Respondent has not yet been resentenced, there is no finality as to judgment in his case. See generally,

Rogers v. State, --- S. 3d ---, 2020 WL 2091121, at *8 (Fla. 1st DCA May 1, 2020)

(“Because resentencing had not yet occurred, the trial court retained jurisdiction to

18 reconsider its original ruling. The trial court properly applied the law as it existed when it considered the motion to reconsider and did not err in denying Rogers relief under rule 3.800(a).” (citation omitted). The overall “cause” between Respondent and the State is not final until the trial court issues the ultimate judgment and sentence in the case. See generally, Taylor, 96 So. 3d at 992 (“Both Cervino and

Cooper narrowly focused on whether judicial labor was contemplated on the defendant’s postconviction motion, rather than the entire “cause” between the parties”) (emphases in original); see also S. L. T. Warehouse Co. v. Webb, 304 So.

2d 97, 99 (Fla. 1974) (“Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected”) (emphases added).

In Poole, this Court discussed its decision to correct its prior mistakes and noted that, although stare decisis is important, it does not command blind allegiance to precedent. Poole at 14. The Court noted that although reliance is a critical consideration in determining to recede from precedent, reliance considerations cut against Poole because the defendant did not alter his behavior in expectation of the new procedural rule announced in Hurst v. State. Id. The Court further noted that reliance interests lean heavily in favor of the victims of Poole’s crimes and of

19 society’s interest in holding Poole to account for his crimes, and to the substantial resources that were spent litigating and adjudicating Poole’s case. Id. Under Poole, there is no error in the death sentence, and Respondent should not receive the windfall of a resentencing proceeding to which he is not entitled.7 The greater finality interest in this case lies with respecting the outcome of the prior constitutional penalty phase proceeding and in not requiring an unnecessary and costly resentencing.

ARGUMENT VII

The Prohibition Against Ex Post Facto Laws

The United States Supreme Court has summarized the characteristics of an ex post facto law as follows:

It is settled, by decisions of this court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925). This Court has held that the state constitutional provision against ex post facto laws applies if a law “(a) ... is retrospective in effect; and (b) ... diminishes a substantial substantive right the party

7 The State is not seeking to reinstate the original sentences for defendants who have already received a new penalty phase and been sentenced to life. See State v. Barry Trynell Davis, 2013-CF-124 (Walton County).

20 would have enjoyed under the law existing at the time of the alleged offense.”

Dugger v. Williams, 593 So. 2d 180, 181 (Fla. 1991). Respondent was granted no

“immunity” from the death penalty and is not a member of any protected class for which the death penalty cannot be sought. Reinstating Respondent’s death sentence does nothing to criminalize behavior that was not criminalized when Respondent was originally tried, and ex post facto laws simply do not apply.

CONCLUSION

The State’s Petition requests that this Court address an issue of fundamental importance regarding the exercise of judicial power, whether a trial court is required to resentence a defendant whose original sentence was devoid of any constitutional error because of an overturned judicial decision violative of the Florida Constitution.

Consequently, the State seeks a constitutional writ directing the trial court to reinstate Respondent’s original death sentences. In the alternative, the State seeks a writ of prohibition that would prevent the trial court from conducting a resentencing when that resentencing is based on the unconstitutional requirements imposed by the

Court in Hurst v. State.

Respectfully submitted,

ASHLEY MOODY ATTORNEY GENERAL

s/DORIS MEACHAM DORIS MEACHAM ASSISTANT ATTORNEY GENERAL

Fla. Bar #63265 444 Seabreeze Blvd., 5th Floor Daytona Beach, FL 32118 (386) 238-4990 Fax # (386) 226-0457 [email protected] [email protected] COUNSEL FOR PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by e-service through the e-portal to: Marc J. Burham, Esq., [email protected],

Attorney for Defendant, P.O. Box 1028, Orlando, Florida 32802; Mark E. Olive,

[email protected], Law Office of Mark E. Olive PA, 320 W Jefferson Street

Tallahassee, FL 32301 and Sandra Lee Woodall, [email protected], 605

E. Robinson St., Ste. 730, Orlando, FL 32801-2007; Bradley King, [email protected], 110 NW 1st Ave., Suite 5000, Ocala, Florida 34475-

6614; Kenneth Nunnelley, [email protected], 425 N. Orange Ave., Suite 63,

Orlando, Florida 32801-1515; Honorable Julie H. O’Kane, [email protected], 425

N. Orange Ave., Orlando, Florida 32801-1515 this 7th day of May 2020.

s/DORIS MEACHAM DORIS MEACHAM ASSISTANT ATTORNEY GENERAL Fla. Bar #63265

CERTIFICATE OF FONT

I hereby certify that a true and correct copy of the foregoing Reply was generated in Times New Roman 14 point font, pursuant to Fla. R. App. 9.210.

s/DORIS MEACHAM DORIS MEACHAM ASSISTANT ATTORNEY GENERAL Fla. Bar #63265