IN THE SUPREME COURT OF THE STATE OF FLORIDA

GEORGE MICHAEL HODGES DEFENDANT/APPELLANT

CASE NO. 89-CF-002165-A VS.

STATE OF FLORIDA PLAINTIFF/APPELLEE

APPELLATE CASE NO: SC17-1586

APPEAL FROM THE CIRCUIT COURT, CRIMINAL DIVISION, OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY

THE HONORABLE MICHELLE SISCO JUDGE OF CIRCUIT COURT CRIMINAL DIVISION

LINDA MCDERMOTT, ESQ. ASSISTANT ATTORNEY GENERAL 20301 GRANDE OAK BLVD. CONCOURSE CENTER NO. 4 SUITE 118-61 3507 E FRONTAGE ROAD, STE 200 ESTERO, FLORIDA 33928 TAMPA, FLORIDA 33607

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE MASTER INDEX INDEX TO THE ORIGINAL RECORD ON APPEAL ITEM FILE DATE INSTRUMENT PAGE 89-CF-002165-A 1 9/14/2017 APPEAL CASE SUMMARY 1 - 43 2 12/14/2016 SUCCESSIVE MOTION TO VACATE DEATH SENTENCE 44 - 79 PURSUANT TO FLA RULE OF CRIMINAL PROCEDURE 3.851 3 12/14/2016 MOTION TO EXTEND PAGE LIMITATION 80 - 81 4 12/14/2016 NOTICE OF FILING ATTACHMENT TO SUCCESSIVE 82 - 87 RULE 3.851 MOTION 5 3/1/2017 AMENDED SUCCESSIVE MOTION TO VACATE DEATH 88 - 128 SENTENCE PURSUANT TO FLA RUE OF CRIMINAL PROCEDURE 3.851 6 3/28/2017 STATE'S ANSWER TO DEFENDANT'S AMENDED 129 - 146 SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF 7 4/18/2017 MOTION FOR LEAVE TO AMEND PENDING AMENDED 147 - 152 SUCCESSIVE MOTION TO VACATE DEATH SENTENCE, PURSUANT TO FLA RULE OF CRIMINAL PROCEDURE 3.851 8 4/27/2017 ORDER ON APRIL 26, 2017 CASE MANAGEMENT 153 - 155 CONFERENCE, SIGNED BY MICHELLE SISCO ON 04/27/17 NUNC PRO TUNC 04/26/17 9 5/8/2017 SECOND AMENDED SUCCESSIVE MOTION TO VACATE 156 - 205 DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851 10 5/23/2017 STATE'S ANSWER TO DEFENDANT SECOND AMENDED 206 - 225 SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF 11 6/1/2017 STATE'S NOTICE OF SUPPLEMENTAL AUTHORITY 226 - 235 12 7/31/2017 ORDER DENYING DEFENDANT'S SECOND AMENDED 236 - 246 SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851, SIGNED BY MICHELLE SISCO ON 07/31/17 13 8/28/2017 NOTICE OF APPEAL 247 - 248 14 8/28/2017 STATEMENT OF JUDICIAL ACTS TO BE REVIEWED 249 - 249 15 8/28/2017 DIRECTIONS TO THE CLERK 250 - 251 16 8/28/2017 DESIGNATION TO COURT REPORTER 252 - 254 17 8/30/2017 TRANSCRIPT OF TESTIMONY AND PROCEEDINGS T1 - T10 TAKEN BEFORE MICHELLE SISCO ON 02/01/17 18 8/30/2017 TRANSCRIPT OF TESTIMONY AND PROCEEDINGS T1 - T10 TAKEN BEFORE MICHELLE SISCO ON 04/26/17 19 8/30/2017 TRANSCRIPT OF TESTIMONY AND PROCEEDINGS T1 - T11 TAKEN BEFORE MICHELLE SISCO ON 06/15/17 P1

TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A STATE OF FLORIDA vs HODGES, GEORGE § Location: Trial Division 2 MICHAEL § Judicial Officer: Sabella, Christopher C § Filed on: 02/22/1989 § Case Number History: § BOOKING NUMBER: 00564376 § Uniform Case Number: 291989CF002165000AHC

CASE INFORMATION

Offense Statute Deg Date Case Type: FELONY CAPITAL MURDER Municipality: HILLSBOROUGH COUNTY 1. SEE DOCKET OR CASE FILE FOR 782041A FC 01/08/1987 Case Flags: FILE HOME LOCATION - CHARGES RECORDS CENTER OBTS: 0 Sequence: 1 ACN: 8700010354 Arrest: 02/22/1989 HCSO - Hillsborough County Sheriff's Office

DATE CASE ASSIGNMENT

Current Case Assignment Case Number 89-CF-002165-A Court Trial Division 2 Date Assigned 03/09/2017 Judicial Officer Sabella, Christopher C

PARTY INFORMATION Lead Attorneys Defendant HODGES, GEORGE MICHAEL MCDERMOTT, LINDA Other Agency Number: 00267293 HCSO SOID Retained 850-322-2172(W)

Plaintiff STATE OF FLORIDA

Converted BLANCO, KATHERINE VICKERS Attorney MCDERMOTT, LINDA Removed: 12/02/2010 Ended Converted Party

DATE EVENTS & ORDERS OF THE COURT INDEX

08/30/2017 TRANSCRIPT Index # 12

08/30/2017 TRANSCRIPT Index # 11

08/30/2017 TRANSCRIPT Index # 10

08/29/2017 ORDER FROM SUPREME COURT Index # 9 08/29/17 SC17-1586

08/29/2017 ACKNOWLEDGEMENT OF NEW CASE Index # 8 SC17-1586

08/29/2017 ORDER FROM SUPREME COURT Index # 7 08/29/17 SC17-1586

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

08/29/2017 LETTER OF TRANSMITTAL Index # 6 NOA SENT TO SUPREME COURT

08/28/2017 DESIGNATION TO COURT REPORTER Index # 5

08/28/2017 DIRECTIONS TO THE CLERK Index # 4

08/28/2017 JUDICIAL ACTS TO BE REVIEWED Index # 3 STATEMENT OF

08/28/2017 NOTICE OF APPEAL Index # 2

07/31/2017 ORDER DENYING DEFT'S SECOND AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE Index # 1 PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.850--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTY, ATTORNEY GENERAL OFFICE AND SAO--VBA

POST CONVICTION RELIEF STATUS HEARING (1:30 PM) (Judicial Officer: SISCO, 06/15/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MANAGEMENT CONFERENCE

06/15/2017 COURT DOCKET PAGE

06/15/2017 ORDER TO BE PREPARED

06/15/2017 ALSO PRESENT GENERAL OFFICE - SUZANNE BECHARD

06/15/2017 ASSISTANT STATE ATTORNEY JAY PRUNER

06/15/2017 BY ATTORNEY LINDA MCDERMOTT

06/15/2017 NO HEARING NO FUTURE DATE SET

06/01/2017 NOTICE STATE'S OF SUPPLEMENTAL AUTHORITY

05/23/2017 STATES RESPONSE TO DEFTS 2ND AMENDED SUCCESSIVE MOTN FOR POSTCONVICTION RELIEF

05/08/2017 3.850 MOTION FILED

04/28/2017 NOTICE OF HEARING Court Date: 06/15/2017 Party: Defendant HODGES, GEORGE MICHAEL FELONY NOTICE OF HEARING

04/28/2017 NOTICE OF HEARING Court Date: 06/15/2017 Party: Private Attorney MCDERMOTT, LINDA

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A FELONY NOTICE OF HEARING

04/27/2017 ORDER ON APRIL 26, 2017 CASE MANAGEMENT CONFERENCE--SIGNED BY JUDGE SISCO-- COPIES SENT TO ATTY, SAO AND ATTORNEY GENERAL OFFICE--VBA

04/26/2017 COURT DOCKET PAGE

04/26/2017 DEFENSE COUNSEL ORALLY REQUEST TO AMEND CLAIMS - GRANTED ; DEFENSE COUNSEL HAS UNTIL 08-MAY-2017 BY 5:PM ; ATTY GENERAL OFFICE HAS UNTIL 24-MAY-2017 BY 5PM TO RESPOND

04/26/2017 COURT REPORTER OFFICIAL - MARY BLAZER

04/26/2017 ASSISTANT STATE ATTORNEY JAY PRUNER

04/26/2017 ATTORNEY GENERAL OFFICE SUZANNE BECHARD

04/26/2017 BY ATTORNEY LINDA MCDERMOTT - TELEPHONICALLY HEARING

POST CONVICTION RELIEF STATUS HEARING (11:00 AM) (Judicial Officer: SISCO, 04/26/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MGMT CONFERENCE

04/18/2017 MOTION FOR LEAVE TO AMEND PENDING AMENDED SUCCESSIVE MOTN TO VACATE DEATH SENTENCE PURSUANT TO FLA RULE OF CRIMINAL PROCEDURE 3.851

04/05/2017 NOTICE OF HEARING Court Date: 04/26/2017 Party: Defendant HODGES, GEORGE MICHAEL FELONY NOTICE OF HEARING

04/05/2017 NOTICE OF HEARING Court Date: 04/26/2017 Party: Private Attorney BECHARD , C SUZANNE FELONY NOTICE OF HEARING

04/04/2017 REQUEST TO ADD CASE ON DOCKET PER JUDGE'S OFFICE MEMO SET FOR CASE MGMT CONFERENCE

03/28/2017 STATES RESPONSE TO DEFTS AMENDED SUCCESSIVE MOTN FOR POSTCONVICTION RELIEF

03/01/2017 FELONY RELATED 3.850 AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851--FILED BY LINDA MCDERMOTT

03/01/2017 3.850 MOTION FILED SUCCESSIVE TO VACATE DEATH SENTENCE PURSUANT TO FLA RUE OF CRIMINAL PROCEDURE 3.851

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

02/08/2017 ORDER ON CASE MANAGEMENT CONFERENCE AND ORDER GRANTING DEFT'S ORE TENUS MOTION TO AMEND SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTY, ATTY GENERAL OFFICE AND SAO--VBA

02/01/2017 COURT DOCKET PAGE

02/01/2017 DEFENSE COUNSEL CAN ADD CLAIM TO BE SUBMITTED WITHIN 30 DAYS 01-MAR-2017 BY 5:PM ; SWP HAS 30 DAYS TO RESPOND TO THE CLAIM BY 29-MAR-2017

02/01/2017 STATE ATTORNEY OFFICE OBJECTS

02/01/2017 DEFENSE COUNCEL REQUEST TO ADD AMENDMENTS

02/01/2017 SEE DOCKET TEXT NO DAE SET AT THIS TIME

02/01/2017 COURT REPORTER OFFICIAL - MARY BLAZER

02/01/2017 ASSISTANT STATE ATTORNEY C EUGENE BECHARD

POST CONVICTION RELIEF STATUS HEARING (1:30 PM) (Judicial Officer: SISCO, 02/01/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MGT CONFERENCE

02/01/2017 BY PUBLIC DEFENDER (Judicial Officer: SISCO, MICHELLE ) LINDA MCDERMOTT

01/27/2017 NOTICE OF HEARING Court Date: 02/01/2017 Party: Defendant HODGES, GEORGE MICHAEL FELONY NOTICE OF HEARING

01/27/2017 NOTICE OF HEARING Court Date: 02/01/2017 Party: Private Attorney BECHARD , C SUZANNE FELONY NOTICE OF HEARING

01/23/2017 REQUEST TO ADD CASE ON DOCKET PER JUDGE'S OFFICE MEMO SET FOR CASE MGMT CONF

01/03/2017 STATES RESPONSE TO DEFTS SUCCESSIVE MOTN FOR POSTCONVICTION RELIEF

12/15/2016 NOTICE OF APPEARANCE

12/14/2016 MOTION TO EXTEND PAGE LIMITATION

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

12/14/2016 NOTICE OF FILING ATTACHMENT TO SUCCESSIVE RULE 3.851 MOTION

12/14/2016 3.850 MOTION FILED SUCCESSIVE TO VACATE DEATH SENTENCE PURSUANT TO FLA RULE OF CRIMINAL PROCEDURE 3.851

09/09/2013 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL JUSTICE ADMINISTRATIVE COMMISSION'S NOTICE TO COURT AS REQUIRED BY SECTION 27.710(4), FLORIDA STATUTES--FILED BY ASSIST GENERAL COUNSEL- BRADLEY BISCHOFF(JAC) User ID=BENSON

06/03/2013 ORDER Party: Defendant HODGES, GEORGE MICHAEL ON MOTION FOR ATTORNEYS FEES--SIGNED BY JUDGE BEHNKE User ID=BENSON

08/13/2012 MANDATE AFFIRMED Party: Defendant HODGES, GEORGE MICHAEL SC 11-762, TR-2, NCR User ID=REYESN

07/27/2012 ORDER Party: Defendant HODGES, GEORGE MICHAEL FROM SUPREME COURT, 7/23/12, SC11-762 User ID=MANRESAE

12/09/2011 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER ON MOTION FOR ATTORNEY'S FEES User ID=HERZOGDA

12/09/2011 MOTION FOR DISCHARGE AND AWARD ATTORNEY FEE Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR ATTORNEY'S FEES AND EXPENSES (FILED BY LINDA MCDEMOT, ATTORNEY FOR DEFENDANT User ID=HERZOGDA

06/10/2011 LETTER OF TRANSMITTAL Party: Defendant HODGES, GEORGE MICHAEL RECORD SENT TO SUPREME COURT, AG, & LINDA MCDERMOTT, ESQ. (APPEAL INDEX ATTACHED). EM User ID=MANRESAE

06/08/2011 APPEAL CASE PREPARED FOR COURT Party: Defendant HODGES, GEORGE MICHAEL User ID=BENNIFIE

06/08/2011 APPEAL PREPARED Party: Defendant HODGES, GEORGE MICHAEL READY TO BE COPIED AND SENT OUT/FB User ID=BENNIFIE

05/20/2011 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL REPORT ON PREPARATION OF HTE APPELLATE RECORD--CONFORMED COPY SENT TO THE CLERK'S OFFICE--ORIGINAL SENT TO SUPREME COURT BY JA User ID=BENSON

05/17/2011 NOTICE Party: Defendant HODGES, GEORGE MICHAEL TO THE CLERK filed by LINDA MCDERMOTT, Esq.

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A {Forwarded to APPEALS DEPT} User ID=KIRKCONNELL

05/10/2011 EVENT MODIFIED Party: Defendant HODGES, GEORGE MICHAEL Event Change,DIVJ,05-MAY-2011,09:15:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BEALS User ID=BEALS

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: KATHERINE BLANCO ATTY GENERAL OFFICE , LISA MANN APPEALS DEPARTMENT , AUTIN ELLABY COURT REPORTERS OFFICE Hearing: DIVJ-2011-05-06; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ATTY-ATTORNEY: Text: TO MODIFY REQUEST TO THE COURT REPORTERS OFFICER Hearing: DIVJ-2011-05-06; Motion By: ; Ruling: Ruling Desc: ATTORNEY:

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2011-05-06; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL RCR-COURT REPORTER Text: E ELLIS OFFICIAL CEIGE AMES Hearing: DIVJ-2011-05- 06; Motion By: ; Ruling: Ruling Desc: COURT REPORTER

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ASSA-ASSISTANT STATE ATTORNEY Text: Hearing: DIVJ-2011-05-06; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY

05/06/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL BYAT-BY ATTORNEY Text: LINDA MCDERMOTT TELEPHONIC HEARING Hearing: DIVJ-2011-05-06; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY

POST CONVICTION RELIEF MOTION HEARING (8:00 AM) (Judicial Officer: Sexton, 05/06/2011 Susan ;Location: COURTROOM 10 1ST FLOOR)

POST CONVICTION RELIEF MOTION HEARING (9:15 AM) (Judicial Officer: Sexton, 05/05/2011 Susan ;Location: COURTROOM 10 1ST FLOOR) STATUS HRGING.

05/04/2011 TRANSCRIPT FILED Party: Defendant HODGES, GEORGE MICHAEL FEB 4, 2011 AND CD. ALL TRANSCRIPTS IN APPEALS TO COMPLETE THE RECORD User ID=REYESN

04/28/2011 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING--FOR STATUS HRGING-- 5-6-11@9:15AM--FILED BY JUDGE'S OFFICE User ID=BENSON

04/28/2011 POST CONVICTION RELIEF MOTION HEARING Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,DIVJ,06-MAY-2011,09:15, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON

04/28/2011

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A REQUEST TO ADD CASE ON DOCKET Party: Defendant HODGES, GEORGE MICHAEL PER JUDGE'S OFFICE MEMO SET FOR 5-6-11@9:15AM FOR STATUS User ID=BENSON

04/27/2011 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SUPREME COURT ORDER DATED 04/19/10 HAND DELIVERED TO FELONY MANAGER FOR JUDGE AND TO BE IMAGED. User ID=MANRESAE

04/26/2011 EVIDENCE INVENTORIED - GENERAL Party: Defendant HODGES, GEORGE MICHAEL All non-sensitive except S-11 poster User ID=CHERRYE

04/25/2011 ORDER Party: Defendant HODGES, GEORGE MICHAEL FROM SUPREME COURT, 04/19/11, SC11-762 User ID=MANRESAE

04/12/2011 WRITTEN DIRECTIONS TO CLERK Party: Defendant HODGES, GEORGE MICHAEL Forwarded to APPEALS DEPT User ID=KIRKCONNELL

04/12/2011 DESIGNATION TO COURT REPORTER Party: Defendant HODGES, GEORGE MICHAEL Forwarded to APPEALS DEPT User ID=KIRKCONNELL

04/12/2011 JUDICIAL ACTS TO BE REVIEWED Party: Defendant HODGES, GEORGE MICHAEL Forwarded to APPEALS DEPT User ID=KIRKCONNELL

04/06/2011 CERTIFIED COPIES TO APPEALS DEPARTMENT Party: Defendant HODGES, GEORGE MICHAEL User ID=KIRKCONNELL

04/06/2011 NOTICE OF APPEAL Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEAL filed by LINDA MCDERMOTT, ESQ. User ID=KIRKCONNELL

03/08/2011 CASE STATUS UPDATED User ID=RODRIGZ

03/08/2011 TRANSCRIPT OF PROCEEDING Party: Defendant HODGES, GEORGE MICHAEL HEARD ON FEB.4,2011 User ID=VILLEGAS

03/04/2011 3.850 MOTION DENIED Party: Defendant HODGES, GEORGE MICHAEL FINAL ORDER DENYING DEFT'S MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND--SIGNED BY JUDGE SEXTON(COPIES SENT TO ATTY,SAO AND ATTY GENERAL BY JA) User ID=BENSON

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: KATHERINE BLANCO - PRESENT (ATTY GEN OFFICE) Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A 02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL OTBP-ORDER TO BE PREPARED Text: WRITTEN Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: ORDER TO BE PREPARED

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL MTUA-MOTION TAKEN UNDER ADVISEMENT Text: PER JUDGE Hearing: DIVJ-2011- 02-04; Motion By: ; Ruling: Ruling Desc: MOTION TAKEN UNDER ADVISEMENT

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL DEPW-DEFENDANT'S PRESENCE WAIVED Text: Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: DEFENDANT'S PRESENCE WAIVED

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL RCR-COURT REPORTER Text: K. HICKS / MARY BLAZER Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: COURT REPORTER

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ASSA-ASSISTANT STATE ATTORNEY Text: jJAY PRUNER Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY

02/04/2011 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL BYAT-BY ATTORNEY Text: LINDA MCDERMOTT Hearing: DIVJ-2011-02-04; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY

POST CONVICTION RELIEF MOTION HEARING (9:45 AM) (Judicial Officer: Sexton, 02/04/2011 Susan ;Location: Annex Courtroom 8) STATUS HEARING. CASE MANAGEMENT CONFERENCE.

01/26/2011 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL STATE'S SECOND SUPPLEMENTAL AUTHORITY (CIRCUIT COURT ORDER DENYING SUCCESSIVE MOTIONS TO VACATE BASED ON PORTER v MCCOLLUM) User ID=SIMSSO

01/21/2011 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 2-4-11 / ALREADY SET User ID=SCOTTS

01/18/2011 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL STATE'S NOTICE LOF FILING SUPPLEMENTAL AUTHORITY(CIRCUIT ORDERS DENYING SUCCESSIVE MOTIONS TO VACATE BASED ON PORTER V MCCOLLUM)-- FILED PRO-SE User ID=BENSON

01/18/2011 LETTER Party: Defendant HODGES, GEORGE MICHAEL TO THE CLERK User ID=BENSON

01/14/2011

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL STATE'S NOTICE OF FILING INDEX TO DEFT HODGE'S PRIOR COURT OPINIONS-- FILED BY ATTY GENERAL KATHERINE V BLANCO User ID=BENSON

12/10/2010 POST CONVICTION RELIEF MOTION HEARING Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,DIVJ,04-FEB-2011,09:45, Judge:SEXTON, SUSAN, Room:CR8, Room Location:AN, User ID = HERZOGDA User ID=HERZOGDA

12/10/2010 COURT EVENT DELETED Party: Defendant HODGES, GEORGE MICHAEL Event Deleted,DIVJ,21-JAN-2011,09:00:00, Judge:SEXTON, SUSAN, Room:CR8, Room Location:AN, User ID = HERZOGDA User ID=HERZOGDA

12/09/2010 REQUEST TO ADD CASE ON DOCKET Party: Defendant HODGES, GEORGE MICHAEL PER MEMO FROM JUDGE SUSAN SEXTON, STRIKE CURRENT EVENT SET FOR 1/21/2011 @ 9:00 AM AND SET FOR 2/4/2011 @ 9:45 A.M. FOR STATUS HEARING/ CASE MANAGEMENT CONFERENCE User ID=HERZOGDA

12/03/2010 POST CONVICTION RELIEF MOTION HEARING Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,DIVJ,21-JAN-2011,09:00, Judge:SEXTON, SUSAN, Room:CR8, Room Location:AN, User ID = BEALS User ID=BEALS

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL TEXT-SEE FREE FORM TEXT Text: MOTION TO VACATE JUDGEMENTS OF CONVICTION & SENTENCE Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL RCR-COURT REPORTER Text: CEIGE AMES , STENOGRAPHER Hearing: DIVJ-2010-12- 02; Motion By: ; Ruling: Ruling Desc: COURT REPORTER

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL TEXT-SEE FREE FORM TEXT Text: SUPREME COURT TO FLORIDA ORDER TO TERMINATION Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL TEXT-SEE FREE FORM TEXT Text: COPY OF SUPREME COURT ORDER ASSIGNING POST CONVICTION MOTION TO DIVISION J GIVEN TO JUDGE IN COURT BY AAG R V BLANCO Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL CONT-CONTINUED Text: CASEMANAGEMENT HEA STATUS 21-JAN-2011 Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: CONTINUED

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING

12/02/2010 CONVERTED MINUTE CODE

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL RCR-COURT REPORTER Text: T. STUBBS Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: COURT REPORTER

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: ATTY GEN KATHERIN BLANCO Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ASSA-ASSISTANT STATE ATTORNEY Text: JAY PRUNER Hearing: DIVJ-2010-12-02; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY

12/02/2010 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL BYAT-BY ATTORNEY Text: LINDA MCDERMOTT - VIA TELEPHONE Hearing: DIVJ- 2010-12-02; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY

12/02/2010 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL COPIES OF SUPREMEM COURT OF FLORIDA RELATED DOCUMENTS TO ORDER OF TERMINATION OF JUDGE MALONEY'S APPOINTMENT FILED BY ASSISTANT ATTORNEY GENERAL LINDA MCDERMOTT IN COURT 12-02-2010 User ID=HERZOGDA

POST CONVICTION RELIEF MOTION HEARING (9:15 AM) (Judicial Officer: Sexton, 12/02/2010 Susan ;Location: Annex Courtroom 8) STATUS HRGING.

11/22/2010 POST CONVICTION RELIEF MOTION HEARING Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,DIVJ,02-DEC-2010,09:15, Judge:SEXTON, SUSAN, Room:CR8, Room Location:AN, User ID = BENSON User ID=BENSON

11/19/2010 REQUEST TO ADD CASE ON DOCKET Party: Defendant HODGES, GEORGE MICHAEL PER JUDGE'S OFFICE SET FOR STATUS 12-02-10@9:15AM User ID=BENSON

11/12/2010 REOPEN CASE User ID=RODRIGZ

11/12/2010 REOPEN CASE Party: Defendant HODGES, GEORGE MICHAEL User ID=BENSON

11/09/2010 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL STATE'S ANSWER TO DEFT'S SUCCESSIVE RULE 3.851 MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE--FILED BY SAO/ATTY GENERAL User ID=BENSON

10/21/2010 3.850 MOTION FILED Party: Defendant HODGES, GEORGE MICHAEL MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST OF LEAVE TO AMEND--FILED BY ATTY LINDA MCDERMOTT User ID=BENSON

10/21/2010 LETTER Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A TO THE CLERK FROM ATTY LINDA MCDERMOTT User ID=BENSON

02/16/2010 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SUPREME COURT ORDER DATED 01/11/10 HAND DELIVERED TO FELONY MANAGER FOR JUDGE AND TO BE IMAGED User ID=MANRESAE

02/10/2010 ORDER Party: Defendant HODGES, GEORGE MICHAEL FROM SUPREME COURT, 01/11/10, SC09-575 User ID=MANRESAE

09/29/2009 ORDER Party: Defendant HODGES, GEORGE MICHAEL ON MOTION FOR ATTORNEY FEES-GRANTED(SIGNED BY JUDGE ANTHONY K. BLACK) User ID=LANTZ

09/24/2009 MOTION Party: Defendant HODGES, GEORGE MICHAEL FOR ATTORNEY FEES User ID=LANTZ

04/16/2009 ORDER GRANTING Party: Defendant HODGES, GEORGE MICHAEL REIMBURSEMENT OF COSTS AND FEES(SIGNED BY JUDGE BLACK) User ID=LANTZ

04/02/2009 MOTION Party: Defendant HODGES, GEORGE MICHAEL FOR COSTS AND EXPENSES User ID=LANTZ

03/24/2009 LETTER OF TRANSMITTAL Party: Defendant HODGES, GEORGE MICHAEL RECORD SENT TO SUPREME COURT, AG, & LINDA, MCDERMOTT, ESQ. FC User ID=CONCEPCI

03/20/2009 APPEAL CASE PREPARED FOR COURT Party: Defendant HODGES, GEORGE MICHAEL User ID=HARRISD

03/20/2009 LETTER OF TRANSMITTAL Party: Defendant HODGES, GEORGE MICHAEL 3.850 appeal sent to Supreme Court User ID=HARRISD

03/12/2009 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL STATE ATTORNEY and PUBLIC DEFENDER (Notice of Appeal w/attachments) User ID=KIRKCONNELL

03/12/2009 CERTIFIED COPIES TO APPEALS DEPARTMENT Party: Defendant HODGES, GEORGE MICHAEL User ID=KIRKCONNELL

03/12/2009 WRITTEN DIRECTIONS TO CLERK Party: Defendant HODGES, GEORGE MICHAEL User ID=KIRKCONNELL

03/12/2009 JUDICIAL ACTS TO BE REVIEWED Party: Defendant HODGES, GEORGE MICHAEL User ID=KIRKCONNELL

03/12/2009 NOTICE OF APPEAL Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEAL filed by LINDA McDERMOTT, Esq. User ID=KIRKCONNELL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

02/13/2009 CASE STATUS UPDATED User ID=LYNN

02/13/2009 3.850 MOTION DENIED Party: Defendant HODGES, GEORGE MICHAEL ORDER DENYING FOURTH AMENDED MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES WITH SPECIAL REQUEST FOR LEAVE TO AMEND-- SIGNED BY JUDGE BLACK(copies sent to attys and sao by ja) User ID=BENSON

10/03/2008 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL LETTER TO CHIEF JUSTICE,SUPREME COURT OF FLORIDA FROM MANUEL M/WITH ATTACHMENTMENTS User ID=BENSON

08/13/2008 LETTER Party: Defendant HODGES, GEORGE MICHAEL TO PAT FRANK/ FROM ATTY GENERAL User ID=MORANKE

08/13/2008 FELONY RELATED 3.850 Party: Defendant HODGES, GEORGE MICHAEL STATE'S ANSWER TO DEFENDANT'S SUCCESSIVE RULE 3.851 MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE User ID=DIPIAZZAS

08/13/2008 STATES RESPONSE Party: Defendant HODGES, GEORGE MICHAEL ERROR INCORRECT CODE User ID=DIPIAZZAS

07/28/2008 3.850 MOTION FILED Party: Defendant HODGES, GEORGE MICHAEL MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCES WITH SPECIAL REQUEST FOR LEAVE TO AMEND--FILED BY ATTY L INDA MCDERMOTT User ID=BENSON

09/17/2007 ORDER Party: Defendant HODGES, GEORGE MICHAEL APPOINTING REGISTRY COUNSEL - SIGNED BY JUDGE MALONEY ON 9-12-07(OUT OF COUNTY JUDGE PER JUDGE PADGETT'S RECUSAL) User ID=ROBINSONS

09/05/2007 MOTION FOR APPOINTMENT Party: Defendant HODGES, GEORGE MICHAEL OF REGISTRY COUNSEL User ID=FREESTON

09/05/2007 LETTER TO JUDGE Party: Defendant HODGES, GEORGE MICHAEL ATTY LINDA MCDERMOTT,ESQ User ID=FREESTON

01/06/2007 EVIDENCE INVENTORIED - SENSITIVE Party: Defendant HODGES, GEORGE MICHAEL NO EDS S-14 User ID=ARAGOND

01/06/2007 EVIDENCE INVENTORIED - SENSITIVE Party: Defendant HODGES, GEORGE MICHAEL NO EDS, S-15 User ID=ARAGOND

01/06/2007 EVIDENCE INVENTORIED - SENSITIVE Party: Defendant HODGES, GEORGE MICHAEL NO EDS#, S-12. User ID=ARAGOND

04/15/2005 TRANSCRIPTS BOXED/SENT Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A BOX 645 User ID=CHATMAN

04/14/2005 EVIDENCE RETURNED TO EVIDENCE DEPT Party: Defendant HODGES, GEORGE MICHAEL FROM APPEAL REL#1247 User ID=LOVELACE

11/02/2004 ORDER Party: Defendant HODGES, GEORGE MICHAEL OCT 14, 2004 (CORRECTED ORDER) FROM SUPREME COURT-IN LIGHT OF THE REVISED OPINION, THE MOTION FOR REHEARING IS HEREBY DENIED. LM User ID=MANN

12/09/2003 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION ALLOWING THE BELOW SIGNED COUSEL TO WITHDRAW FROM FUTHER REPRESENTATION OF THE DEFENDAT. SENT TO APPEALS.(ORDER FROM SUPREME COURT ATTACHED) -VE User ID=ESCALONA

08/13/2003 ORDER DENYING Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR REHEARING AND RECONSIDERATIOIN OF APPOINTMENT OF COUNSEL - WO User ID=OWENSW

08/05/2003 ORDER Party: Defendant HODGES, GEORGE MICHAEL APPOINTING COUNSEL - DWIGHT WELLS - WO User ID=OWENSW

07/31/2003 ORDER FROM 2ND DCA COURT Party: Defendant HODGES, GEORGE MICHAEL DATED 7-25-03: UPON CONSIDERATION OF THE MOTION FOR APPOINTMENT OF COUNSEL FILED BY LINDA MCDERMOTT, AND THE MOTION TO WITHDRAW AS COUNSEL FILED BY THE CAPITAL COLLATERAL REGIONAL COUNSEL NORTHERN REGION IT IS ORDERED THAT THE JURISDICTION OF THE ABOVE CAUSES IS TEMPORARILY RELINQUISHED TO THE CIRCUIT COURT FOR 30 DAYS FOR THE PURPOSE OF APPOINTING COUNSEL GEORGE M. HODGES PURSUANT TO SECTIONS 27.710 AND 27.711 FLORIDA STATUTES. THE TRIAL COURT SHOULD NOTE THAT AN OPINION HAS ISSUED ON THESE CASES. THE TIME FOR THE FILING OF A MOTION FOR REHEARING IS HEREBY STAYED UNTIL 30 DAYS AFTER APPOINTMENT OF COUNSEL. THE CIRCUIT COURT SHALL IMMEDIATELY NOTIFY THIS COURT UPON APPOINTMENT OF COUNSEL. IN THE EVENT THE CIRCUIT COURT CANNOT APPOINT COUNSEL WITHIN THE TIME ALLOTTED, THE CIRCUIT COURT SHALL FILE A STATUS REPORT IN THIS COURT AT THE CONCLUSION OF THE TIME PROVIDED ADVISING THIS COURT OF WHAT STEPS HAVE BEEN TAKEN TOWARD THE APPOINTMENT OF COUNSEL STATING WHAT ADDITIONAL STEPS STILL NEED TO BE TAKEN TOWARD THE APPOINTMENT OF COUNSEL AND INDICATING HOW LONG THE CIRCUIT COURT ANTICIPATES IT WILL TAKE TO APPOINT COUNSEL FOR GEORGE M. HODGES. User ID=CHATMAN

07/25/2003 MOTION FOR REHEARING Party: Defendant HODGES, GEORGE MICHAEL AND RECONSIDERATION OF APPOINTMENT OF COUNSEL - WO User ID=OWENSW

09/26/2002 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CORRECTION: ORIGINAL EXHIBITS MAILED TO FLORIDA SUPREME COURT ON 9- 26-02;NOT TO DISTICT COURT. User ID=COHNN

09/26/2002 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MAILED ORIGINAL EXHIBITS TO 2ND DCA User ID=COHNN

02/25/2002 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A (ALL TRANSCRIPTS IN APPEALS FOR RECORD) STILL NEED DISKS FOR BOTH DATES User ID=PROCTOR

02/25/2002 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 1-29-01 User ID=PROCTOR

02/15/2002 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 1-25-99 User ID=PROCTOR

02/07/2002 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S DESIGNAITON TO COURT REPORT AND REPORTER'S ACKNOWLEDGMENT - WO User ID=OWENSW

10/19/2001 LETTER OF TRANSMITTAL Party: Defendant HODGES, GEORGE MICHAEL User ID=DETROY

09/28/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER'S CERTIFICATE BY ANITA HENRIQUEZ: DATES OF 9-28-96; 2-23- 99; 10-22-99; 11-1-99; 1-21-00 & 1-26-01 DID NOT COME TO BE HEARD OR, IF HEARD, WAS NOT REPORTED OF RECORD; THUS NO TRANSCRIPT OF PROCEEDINGS FOR DATES SPECIFIED User ID=PROCTOR

09/26/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER CERTIFICATE BY BERRYHILL: THERE WAS NOT A COURT REPORTER FROM OUR OFFICE FOR THE FOLLOWING DATES: 9-9-96; 9-28-96; 10- 21-96; 10-28-96; 2-23-99; 10-22-99; 11-1-99; 10-23-00; 1-26-01; 11-1-00; 1-9-01; & 1-21- 00 (ALL TRANSCRIPTS IN APPEALS TO COMPLETE RECORD) User ID=PROCTOR

09/26/2001 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL

11-2,3-00 (VOL 2-4) User ID=PROCTOR

09/19/2001 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 10-23-00; 10-21-96; 9-9-96; 10-28-98; User ID=PROCTOR

08/16/2001 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 6-21-99 User ID=PROCTOR

08/16/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL Letter from Office of the Attorney General referencing It is the responsibility of the court reporter to file with the clerk of the lower court sufficient ciopies of the transcripts on disk to be included with the records. wo User ID=OWENSW

08/14/2001 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 12-2-99 User ID=PROCTOR

08/14/2001 TRANSCRIPT FOR APPEAL Party: Defendant HODGES, GEORGE MICHAEL 1-25-99 User ID=PROCTOR

07/30/2001 CERTIFIED COPIES TO APPEALS DEPARTMENT

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

07/30/2001 WRITTEN DIRECTIONS TO CLERK Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

07/30/2001 WRITTEN DIRECTIONS TO CLERK Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

07/30/2001 JUDICIAL ACTS TO BE REVIEWED Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

07/30/2001 NOTICE OF APPEAL TO 2ND DCA Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

06/19/2001 MOTION FOR REHEARING Party: Defendant HODGES, GEORGE MICHAEL User ID=OWENSW

06/01/2001 ORDER DENYING Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR POST CONVICTION RELIEF - WO User ID=OWENSW

03/02/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REBUTTAL CLOSING ARGUMENT - WOW User ID=OWENSW

02/28/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REBUTTAL CLOSING ARGUMENT - WO User ID=OWENSW

02/19/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLOSING ARGUMENT User ID=ESCALONA

02/15/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLOSING ARGUMENT - LINDA MCDUNN FOR BRET STRAND - WO User ID=OWENSW

02/15/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLOSING ARGUMENTS - BRET STRAND - WO User ID=OWENSW

02/15/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLOSING ARGUMENT User ID=ESCALONA

01/30/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL EVIDENCE DATA SHEETS FILED (4) User ID=CARROLL

01/29/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REPLY TO STATE'S RESPONSE TO MOTION IN LIMINE AND MOTION TO STRIKE User ID=OWENSW

01/29/2001 DEFENDANT NOTICE OF HEARING

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL FOR 1/26/01 MOTION IN LIMINE REC'D IN CLERK'S OFFICE 1/29/01 User ID=OWENSW

01/29/2001 WITNESS LIST Party: Defendant HODGES, GEORGE MICHAEL DEFENSE User ID=OWENSW

01/29/2001 MOTION IN LIMINE Party: Defendant HODGES, GEORGE MICHAEL ATTACHEMENT - RESPONSE TO APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL User ID=OWENSW

HEARING (8:30 AM) (Judicial Officer: Padgett, J 01/29/2001 Rogers ;Location: COURTROOM 24 2ND FLOOR) EVIDENTIARY HEARING TO BE COMPLETED. TO BE HEARD BY JUDGE DENNIS MALONEY.

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: BRENT STRAND-CAPITAL COLLATERAL Hearing: HEA- 2001-01-29; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL RCR-COURT REPORTER Text: SHERRY JACKSON-BERRYHILL Hearing: HEA-2001-01- 29; Motion By: ; Ruling: Ruling Desc: COURT REPORTER

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: SHARON VOLRATH-SAA Hearing: HEA-2001-01-29; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: JUDGE MALONEY FOR JUDGE PADGETT Hearing: HEA- 2001-01-29; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL ALSO-ALSO PRESENT: Text: KIMBERLY HOPKINS AND BRENT STRANO-ATTY`S. Hearing: HEA-2001-01-29; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL TEXT-SEE FREE FORM TEXT Text: MOTION TAKEN UNDER ADVISEMENT Hearing: HEA-2001-01-29; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT

01/29/2001 CONVERTED MINUTE CODE Party: Defendant HODGES, GEORGE MICHAEL TEXT-SEE FREE FORM TEXT Text: CONT FROM LAST HEARING DATED 11/03/00 Hearing: HEA-2001-01-29; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT

01/25/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REPLY TO STTE'S RESPONSE TO MOTIN IN LIMINE AND MOTION TO STRIKE - WO User ID=OWENSW

01/25/2001 MOTION TO STRIKE Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A RESPONSE TO DEFENDANT HODGE'S MOTION IN LIMINE, OR MOTION TO STRIKE (BD) User ID=DRAKEB

01/25/2001 AMENDED NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL SECOND AMENDED FOR 1-29-01 - ALREADY SET (BD) User ID=DRAKEB

01/25/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL notice of rebuttal witnesses - wow User ID=OWENSW

01/24/2001 AMENDED NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 1-29-01 - ALREADY SET (BD) User ID=DRAKEB

01/23/2001 MOTION IN LIMINE Party: Defendant HODGES, GEORGE MICHAEL User ID=OWENSW

01/18/2001 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL User ID=MILLRK

01/16/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING/LB User ID=BOOKIN

01/11/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL STATE'S RESPONSE TO DEFENDANT HODGES' MOTION TO MOVE JANUARY 29TH EVIDENTIARY HEARING TO THE POLK COUNTY COURTHOUSE/LB User ID=BOOKIN

01/11/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO MOVE JANUARY 29TH EVIDENTIARY HEARING TO THE POLK COUNTY COURTHOUSE/LB User ID=BOOKIN

01/10/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COPY OF NOTICE OF HEARING MAILED TO OFFICE OF THE CAPITAL COLLATERAL COUNSEL AS REQUESTED/LB User ID=BOOKIN

01/10/2001 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 1-9-01 RECEIVED IN OUR OFFICE 1-9-01 AT 2:18 PM FOR MOTION TO BE HEARD BY JUDGE MALONEY TELEPHONICALLY/LB User ID=BOOKIN

01/09/2001 ORDER Party: Defendant HODGES, GEORGE MICHAEL DIRECTING THE SHERIFF OF HILLSBOROUGH COUNTY TO ADMIT MENTAL HEALTH EXPERT INTO THE JAIL FOR THE PURPOSE OF EVALUATING GEORGE MICHAEL HODGES. - WO User ID=OWENSW

01/09/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING - WO User ID=OWENSW

01/09/2001 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 1-29-01 - EVIDENTIARY HEARING, ALREADY SET (BD) User ID=DRAKEB

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A 01/05/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR AN ORDER ALLOWING DEFENSE MENTAL HEALTH EXPERT ENTRY INTO THE HILLSBOROUGH COUNTY JAIL TO PERFORM A CLINICAL INTERVIEW AND TESTING OF MR. HODGES. - WOW MOTION FOR AN ORDER DIRECTING THE STATE TO TURN OVER DISCOVERY REQUESTED PURSUANT TO FLORIDA CRIMINAL PROCEDURE RULE 3.220(b), OR IN THE ALTERNATIVE, ISSUANCE OF AN ORDER OF SANCTIONS PRECLUDING THE STATE FROM INTRODUCING THE TESTIMONY AND/OR REPORT OF STATE MENTAL HEALTH EXPERTS. - WOW NOTICE OF DEPOSITION - WOW MOTION FOR AN ORDER REQUIRING "REASONABLE COMPENSATION OF THE STATE'S EXPERT FOR PARTICIPATING IN THE DEFENSE'S DEPOSITION. WOW User ID=OWENSW

01/03/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR AN ORDER DIRECTING THE STATE OF FLORIDA TO TURN OVER DISCOVERY REQUESTED PURSUANT TO FLA. CRIM. PROCEDURE RULE 3.22(B), OR IN THE ALTERNATIVE, ISSUANCE OF AN ORDER OF SANCTIONS PRECLUDING THE STATE FROM INTRODUCING THE TESTIMONY &/OR REPORT OF STATE MENTAL HEALTH EXPERTS. - WO User ID=OWENSW

01/03/2001 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR AN ORDER REQUIRING "REASONABLE" COMPENSATION OF THE STATE'S EXPERT FOR PARTICIPATING IN THE DEFENSE'S DEPOSITION - WO User ID=OWENSW

12/18/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL 11-17-00 FROM SUPREME COURT APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST-CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL IS HEREBY DISMISSED. User ID=FERNANDEZA

12/12/2000 HEARING SET AND NOTICE SENT Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,HEA,29-JAN-2001,08:30, Judge:PADGETT, J. ROGERS, Room:CR24, Room Location:NT, User ID = BADSTEIN User ID=BADSTEIN

12/11/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO DEFT'S DEMAND FOR DISCOVERY User ID=ESCALONA

12/11/2000 ORDER FROM 2ND DCA COURT Party: Defendant HODGES, GEORGE MICHAEL 12-4-00 NOTICE OF APPEAL RECEIVED BY THE FLORIDA SUPREME COURT ON 11/18/00. User ID=FERNANDEZA

12/08/2000 DEMAND FOR DISCOVERY Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO DEFENDANTS DEMAND FOR DISCOVERY - WO User ID=OWENSW

12/07/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER DIRECTING THE SHERIFF OF HILLSBOROUGH COUNTY TO ADMIT MENTAL HEALTH EXPERT INTO THE JAIL FOR THE PURPOSE OF OBSERVIN THE EVALUATION OF GEORGE MICHAEL HODGES. User ID=BADSTEIN

12/05/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF DISCOVERY PURSUANT TO FLORIDA RULES OF CRIMINAL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A PROCEDURE RULE 3.220 (B) - WOW User ID=OWENSW

12/05/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER SETTING HEARING DATE (FROM JUDGE DENNIS MALONEY) SET 1/29/01 User ID=BADSTEIN

12/04/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SUPREME COURT OF FLORIDA ACKNOWLEDGING RECEIPT OF NOTICE OF APPEAL - WO User ID=OWENSW

11/17/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RULING FROM SUPREME COURT OF FLORIDA - DISMISSING APPELLANTS EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST-CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL - WO User ID=OWENSW

11/16/2000 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL User ID=OWENSW

11/07/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SUPPLEMENT TO APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST- CONVICTION CASE AND EMRGENCY MOTIONS TO STAY PROCEEDINGS PENDING APPEAL - WO User ID=OWENSW

11/07/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ACKNOWLEDGMENT OF NEW CASE BY FLORIDA SUPREME COURT DATED 11-2-00 User ID=PROCTOR

11/06/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REPLY TO RESPONSE TO APPELLANT'S EMERGENCY PEITITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST-CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL - WO User ID=OWENSW

11/03/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST- CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL - WO User ID=OWENSW

11/03/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEF.'S SECOND AMENDED MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING - WO User ID=OWENSW

11/03/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL EXCERPT OF TRANSCRIPT OF PROCEEDINGS OF 11/3/00 - WO User ID=OWENSW

HEARING (9:00 AM) (Judicial Officer: Padgett, J 11/03/2000 Rogers ;Location: COURTROOM 24 2ND FLOOR) EVIDENTIARY HEARING - TO BE HEARD BY. JUDGE DENNIS P. MALONEY - CR 4

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A MAIN CH.

11/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ADDENDUM TO APPELLANAT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST- CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINS PENDING APPEAL - WO User ID=OWENSW

11/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST-CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDING APPEAL - WO User ID=OWENSW

11/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ACKNOWLEDGEMENT OF NEW CASE - SUPREME COURT OF FLORIDA - WO User ID=OWENSW

11/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL APPELLANT'S EMERGENCY PETITION INVOKING THIS COURT'S JURISDICTION TO ENTERTAIN AN INTERLOCUTORY APPEAL IN A CAPITAL POST-CONVICTION CASE AND EMERGENCY MOTION TO STAY PROCEEDINGS PENDIND APPEAL - WO User ID=OWENSW

11/02/2000 CERTIFIED COPIES TO APPEALS DEPARTMENT Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

11/02/2000 NOTICE OF APPEAL TO 2ND DCA Party: Defendant HODGES, GEORGE MICHAEL User ID=DAWSONS

HEARING (9:00 AM) (Judicial Officer: Padgett, J 11/02/2000 Rogers ;Location: COURTROOM 24 2ND FLOOR) EVIDENTIARY HEARING - TO BE HEARD BY. JUDGE DENNIS P. MALONEY, CR4 MAIN CH.

11/01/2000 ORDER GRANTING Party: Defendant HODGES, GEORGE MICHAEL FOR ACCESS TO DEFENDANAT TO CONDUCT MENTAL HEALTH EXAMINATION - WO User ID=OWENSW

11/01/2000 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 11-1-00 - NOT SET, RECEIVED 11-1-00 @ 11:27AM (BD) User ID=DRAKEB

11/01/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO MOTION FOR ORDER GRANTING ACCESS TO DEFT TO CONDUCT METAL HEALTH EVALUATIONN User ID=ESCALONA

11/01/2000 ADDITIONAL LIST OF WITNESSES Party: Defendant HODGES, GEORGE MICHAEL User ID=ESCALONA

10/31/2000 MOTION Party: Defendant HODGES, GEORGE MICHAEL FOR ORDER GRANTING ACCESS TO DEFENDANT TO CONDUCT MENTAL HEALTH

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A EXAMINATION (BD) User ID=DRAKEB

10/30/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING - WOW User ID=OWENSW

10/26/2000 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 11-2-00 AND 11-3-00 - ALREADY SET (BD) User ID=DRAKEB

MOTION/CLOSED CASE (8:30 AM) (Judicial Officer: Padgett, J 10/23/2000 Rogers ;Location: COURTROOM 24 2ND FLOOR) MOTION TO TAKE DEPOSITIONS OF DEFENSE'S. EXPERT WITNESSES.

10/20/2000 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,MOC,23-OCT-2000,08:30, Judge:PADGETT, J. ROGERS, Room:CR24, Room Location:NT, MOTION TO TAKE DEPOSITIONS OF DEFENSE'S EXPERT WITNESSES User ID = DRAKEB User ID=DRAKEB

10/19/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL ON MOTION TO TRANSPORT User ID=BADSTEIN

10/19/2000 MOTION Party: Defendant HODGES, GEORGE MICHAEL TO TAKE DEPOSITIONS OF DEFENSE'S EXPERT WITNESSES (BD) User ID=DRAKEB

10/19/2000 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR 10-23-00 (BD) User ID=DRAKEB

10/19/2000 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant HODGES, GEORGE MICHAEL User ID=RUTLAND

10/19/2000 WRIT OF HABEAS CORPUS AD PROSE Party: Defendant HODGES, GEORGE MICHAEL User ID=RUTLAND

10/19/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S MOTION FOR ORDER TO TRANSPORT DEFENDANT AND PROPOSED ORDER - FILED BY CCR User ID=BADSTEIN

10/16/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S SECOND AMENDED WITNESS LIST User ID=OWENSW

10/11/2000 DEMAND FOR DISCOVERY Party: Defendant HODGES, GEORGE MICHAEL User ID=ESCALONA

10/02/2000 WITNESS LIST Party: Defendant HODGES, GEORGE MICHAEL AMENDED User ID=ESCALONA

09/25/2000 NOTICE OF APPEARANCE BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL KIMBERLY NOLEN HOPKINS - WOW User ID=OWENSW

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

09/21/2000 HEARING SET AND NOTICE SENT Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,HEA,03-NOV-2000,09:00, Judge:PADGETT, J. ROGERS, Room:CR24, Room Location:NT, User ID = BADSTEIN User ID=BADSTEIN

09/21/2000 HEARING SET AND NOTICE SENT Party: Defendant HODGES, GEORGE MICHAEL Event Scheduled,HEA,02-NOV-2000,09:00, Judge:PADGETT, J. ROGERS, Room:CR24, Room Location:NT, User ID = BADSTEIN User ID=BADSTEIN

08/21/2000 HEARING SET AND NOTICE SENT Party: Defendant HODGES, GEORGE MICHAEL SET NOV. 2 & NOV. 3 @ 9:00 AM TO BE HEARD BY JUDGE DENNIS P. MALONEY, CTRM. 4 User ID=OWENSW

MOTION/CLOSED CASE (9:00 AM) (Judicial Officer: Padgett, J 05/05/2000 Rogers ;Location: COURTROOM 24 2ND FLOOR) DEFENDANT'S MOTION FOR POST CONVICTION. RELIEF.

MOTION/CLOSED CASE (9:00 AM) (Judicial Officer: Padgett, J 05/04/2000 Rogers ;Location: COURTROOM 24 2ND FLOOR) DEFENDANT'S MOTION FOR POST CONVICTION. RELIEF.

04/05/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL PUBLIC DEFENDER'S RESPONSE TO ORDER OF MARCH 24,2000 - WO User ID=OWENSW

03/29/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL (FOR PD RECORDS) User ID=BADSTEIN

03/29/2000 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL User ID=ESCALONA

03/27/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL (PROPOSED)COPY RETURNED TO CCR User ID=BADSTEIN

03/15/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO MOTION FOR ORDER TO COMPEL PRODUCTION OF TRIAL FILE User ID=BADSTEIN

03/14/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO CONTINUE EVIDENTIARY HEARING User ID=BADSTEIN

03/14/2000 NOTICE OF APPEARANCE Party: Defendant HODGES, GEORGE MICHAEL BY BRET B. STRAND - ASSISTANT CCC - NORTHERN REGION User ID=BADSTEIN

03/09/2000 NOTICE Party: Defendant HODGES, GEORGE MICHAEL OF PRODUCTION OF PUBLIC RECORDS User ID=ESCALONA

03/08/2000 AFFIDAVIT FILED Party: Defendant HODGES, GEORGE MICHAEL OF JOLEEN HARDEN User ID=ESCALONA

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

03/08/2000 AFFIDAVIT FILED Party: Defendant HODGES, GEORGE MICHAEL OF PHILLIP R. NEWTON User ID=ESCALONA

03/08/2000 AFFIDAVIT FILED Party: Defendant HODGES, GEORGE MICHAEL OF LEON D MASON User ID=ESCALONA

03/08/2000 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL User ID=ESCALONA

03/08/2000 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR ORDER TO COMPEL PRODUCTION OF DEFENDANT'S TRIAL FILE/FILED W/O NOTICE OF HEARING User ID=DRAKEB

02/07/2000 REOPEN CASE User ID=JONESV

02/07/2000 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL User ID=DRAKEB

02/07/2000 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL User ID=DRAKEB

02/07/2000 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL User ID=DRAKEB

02/07/2000 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL FOR MAY 4 AND 5, 2000 FILED W/O MOTION User ID=DRAKEB

02/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED NOTICE OF EVIDENTIARY HEARING - WO User ID=OWENSW

02/02/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF PRODUCTION User ID=BADSTEIN

01/27/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL TAMPA POLICE DEPARTMENT'S COMPLIANCE WITH COURT ORDER User ID=BADSTEIN

01/27/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF NONPRODUCTION FILED W/O NOTICE OF HEARING User ID=SWEET

01/25/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL TAMPA POLICE DEPARTMENT'S COMPLIANCE WITH COURT ORDER User ID=BADSTEIN

01/24/2000 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A RESPONSE - WO User ID=OWENSW

01/23/2000 CASE STATUS UPDATED User ID=FRYMAN

01/20/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REPLY TO STATE'S MOTION TO COMPEL OR IN THE ALTERNATIVE ORDER TO SHOW CAUSE User ID=AA77

01/18/2000 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER (WAIVING ATTORNEY/CLIENT PRIVILEGE) User ID=AA77

01/13/2000 NOTICE OF APPEARANCE BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEARANCE BY ATTORNEY: RACHEL E FUGATE ESQ User ID=AA36

01/10/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL FLORIDA SUPREME COURT ORDER DATED 1-5-00: PROHIBITION WRIT DENIED User ID=AB35

01/06/2000 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CITY OF PLANT CITY'S RESPONSE TO MOTION TO COMPEL User ID=AA77

12/20/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING User ID=AA87

12/10/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL ATTORNEY CLIENT PRIVILEGE IS WAIVED - WO User ID=OWENSW

12/06/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL LETTER FILED RE: FILES POLK CNTY GEN/2A 12/02/99 AM: MOTION TO COMPEL User ID=AA81

12/06/1999 NOTICE OF FILING Party: Defendant HODGES, GEORGE MICHAEL User ID=OWENSW

12/02/1999 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 1/21/00 AM -- REMOVED FROM CALENDAR User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER DIRECTING TPD TO RESPOND TO BE PREPARED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER DIRECTING MEDIATION & DIVERSION TO BE PREPARED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL ORDER DIRECTING RESPONSE FROM F TO BE PREPARED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL 13TH SAO PRODUCTION FILED IN FILED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL 13TH SAO JUDICIAL OBJECTION-GRANTED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL FDLE OBJECTION-GRANTED EVAL AND DISCIPLINE OF WORK PRODUCT- GRANTED IN PART User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SAO 10TH CIRCUIT-OBJECTION-UPON APPROPRIATE IDENTIFICATION SAO TO PRODUCE FILE WITH NEW RULE User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL KEN BUCKMAN PLANT CITY POLICE DEPARTMENT CRAIG COWSER FDLE User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL POLK CO. SHERRIFFS OFFICE-GRANTED IN PART User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL LAKELAND POLICE RECORDS-OBJECTION SUSTAINED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL FDLE COST-CCR TO TREATED AS LAW ENFORCEMENT AGENCY FOR THIS CASE PLANT CITY-RECORDS -GRANTED User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEF PRESENCE WAIVED User ID=AAAZ

12/02/1999 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO DETERMINE STATUS OF LAWYER-CLIENT PRIVLEGE AND TO PRODUCE DEFENSE TRIAL FILE-GRANTED PRIVLEDGE WAIVERED-ORDER TO BE PREPARED User ID=AAAZ

12/02/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: SLYVIA SMITH/ADA JOE MCCARTHY/SAO 10TH CIRCUIT CHARLES JACOBSON/LAKELAND SHERIFF(POLICE) MR BURGDOFF/LAKELAND SHERRIFF (POLK CO) User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL WITHOUT COUNSEL User ID=AAAZ

12/02/1999 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: SHARON VAROUTH User ID=AAAZ

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ELANOR MASSAW-BERRYHILL User ID=AAAZ

12/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: MALONEY, DENNIS P. FOR PADGETT User ID=AAAZ

HEARING (8:00 AM) (Judicial Officer: Padgett, J 12/02/1999 Rogers ;Location: COURTROOM 24 2ND FLOOR) EVIDENTIARY HEARING. MOTION TO DETERMINE STATUS OF LAWYER-. CLIENT PRIVILEGE AND TO PRODUCE DEFENSE . TRIAL FILE

11/29/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 1/21/00 9:00AM 24 FOR: MOTION ADD'L HRNG: EVIDENTIARY HEARING User ID=AB34

11/29/1999 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 1-21-00 EVIDENTIARY HEARING GEN/2A 12/02/99 AM: TRIAL FILE ADD'L HRNG: CLIENT PRIVILEGE AND TO PRODUCE DEFE ADD'L HRNG: MOTION TO DETERMINE STATUS OF LAWYER User ID=AB34

11/24/1999 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION STATES'S MOTION TO DETERMINE STATUS OF LAWYER-CLIENT PRIVILEGE AND TO PRODUCE DEFENSE TRIAL FILE User ID=AB34

11/24/1999 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 12-02-99 User ID=AB34

11/24/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL FDLE'S POSITION RE PAYMENT FOR CRIMINAL HISTORY RECORDS - WO User ID=OWENSW

11/17/1999 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL User ID=OWENSW

11/16/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING (FROM SAO) User ID=AA77

11/12/1999 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: CCC-NORTHERN REGION User ID=AA77

11/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S NOTICE OF FILING(CCC) User ID=AA77

11/09/1999 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: CCRC-NORTHERN REGION OF FL User ID=AA69

11/09/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A NOTICE OF APPEARANCE BY SYLVIA W. SMITH User ID=AA69

11/01/1999 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: SYLVIA SMITH AND CANDACE SABELLA User ID=AA77

10/29/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER DENYING MOTION TO HOLD PROCEEDINGS IN ABEYANCE PENDING REVIEW User ID=AA77

10/29/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER ON HUFF HEARING, DENYING, IN PART, DEFENDANT'S AMENDED MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO User ID=AA77

10/29/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL AMEND AND FOR EVIDENTIARY HEARING User ID=AA77

10/29/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED WITNESS LIST - WO User ID=OWENSW

10/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF TELEPHONIC STATUS CONFERENCE User ID=AA77

10/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL EMERGENCY MOTION TO CONTINUE STATUS HEARING User ID=AA72

10/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE MALONEY TO HEAR MOTIONS AND AND HEARINGS User ID=AA77

10/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/22/99 AM -- REMOVED FROM CALENDAR User ID=AA77

10/19/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO HOLD PROCEEDINGS IN ABEYANCE PENDING REVIEW-FILED BY CCC- NR User ID=AA77

10/07/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER DENYING MOTION TO DISQUALIFY JUDGE User ID=AB34

10/07/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/22/99 11:30AM 24 FOR: HEARING ADD'L HRNG: STATUS HEARING User ID=AB34

10/07/1999 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 10-22-99 STATUS HEARING User ID=AB34

10/07/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A GEN/2A 12/02/99 9:00AM 24 FOR: HEARING ADD'L HRNG: EVIDENTIARY HEARING User ID=AB34

10/07/1999 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 12-02-99 EVIDENTIARY HEARING User ID=AB34

10/01/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO DISQUALIFY JUDGE AND MEMORANDUM OF LAW User ID=AA77

10/01/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL PETITION FOR WRIT OF PROHIBITION - WO User ID=OWENSW

07/21/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER FROM SUPREME COURT (APPOINTING JUDGE DENNIS MALONEY - 10TH JUDICIAL CIRCUIT) User ID=AA77

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL (POLK CO-JUDGE MALONEY) POSSIBLY -SUPREME COURT TO APPOINT User ID=AC36

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL TO BE TRANSFERRED TO ANOTHER COUNTY User ID=AA3R

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE PADGETT RECUSED HIMSELF User ID=AA3R

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL IN CHAMBERS BY TELEPHONE CONFERENCE W/SYLVIA SMITH User ID=AA3R

06/21/1999 DEFENDANT NOT PRESENT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT NOT PRESENT User ID=AA3R

06/21/1999 ATTORNEY NOT PRESENT Party: Defendant HODGES, GEORGE MICHAEL ATTORNEY NOT PRESENT -SYLVIA SMITH User ID=AA3R

06/21/1999 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: SHARON VOLLRATH User ID=AA3R

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: MIA CRUZ-BERRYHILL User ID=AA3R

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA3R

06/21/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO TRANSPORT DEFENDANT (FILED BY CCC-NR) User ID=AA77

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A 06/17/1999 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO TRANSPORT DEFENDANT W/ORDER ATTACHED FILED W/O NOTICE OF HEARING GEN/2A 6/21/99 AM: PRETRIAL CONFERENCE User ID=AB34

06/17/1999 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL REOPEN MOTION User ID=AB34

06/16/1999 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 6-21-99 PRETRIAL CONFERENCE User ID=AB34

06/15/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S WITNESS LIST FILED User ID=AA77

06/15/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S ADDRESS NOT IN FILE - NOTICE NOT SENT User ID=AA9A

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SABELLA,CANDANCE M (ADA) ON 06/15/99 User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SMITH,SYLVIA W CCRC (ADA) ON 06/15/99 User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SHABAZZ,HARUN (ADA) ON 06/15/99 User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO HODGES,GEORGE MICHAEL(DEA) ON 06/15/99 User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 6/21/99 9:00AM 24 FOR: STATUS REVIEW ADD'L HRNG: STATUS REPORT User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 6/28/99 AM -- REMOVED FROM CALENDAR User ID=AA9U

06/14/1999 REQUEST NOTICE TO DEFENSE ATTORNEY AND BONDSMAN Party: Defendant HODGES, GEORGE MICHAEL REQUEST FOR NOTICE TO DEFENDANT, ATTY, & BONDSMAN User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SET 6-21 STATUS REPORT User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CASE STRICKEN OFF DOCKET 6-28-99 User ID=AA9U

06/14/1999 NO ONE PRESENT Party: Defendant HODGES, GEORGE MICHAEL NO ONE PRESENT User ID=AA9U

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ, OFFICIAL User ID=AA9U

06/14/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA9U

06/07/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF PRODUCTION FILED BY AHCA User ID=AA77

05/03/1999 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER ON DEFENDANT'S AMENDED MOTION TO COMPEL AGAINST THE POLK COUNTY SHERIFF'S OFFICE User ID=AA77

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 6/28/99 9:00AM 24 FOR: HEARING ADD'L HRNG: EVIDENTIARY HEARING User ID=AF04

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL BY 6-14-99 User ID=AF04

04/12/1999 STATE MOTION Party: Defendant HODGES, GEORGE MICHAEL STATE MOTION FOR WITNESS LIST - GRANTED TO BE FILED User ID=AF04

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED MOTION TO COMPEL TO BE FILED- MATERIAL SUPPLIED User ID=AF04

04/12/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: CANDANCE M.SABELLA-ATTY GENERAL'S OFFICE User ID=AF04

04/12/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: INVESTIGATOR RICHARD HURD SAO-PRESENT User ID=AF04

04/12/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: POLK CTY S.O.- DAVID BERGDALL-PRESENT User ID=AF04

04/12/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: BROOK NUTTER- HCSO PRESENT User ID=AF04

04/12/1999 BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL BY ATTORNEY SYLVIA W. SMITH & RACHEL FUGATE-CCR User ID=AF04

04/12/1999 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: SHARON VOLLRATH User ID=AF04

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A COURT REPORTER: TAMMY JOHNSON-BERRYHILL &ASSOC User ID=AF04

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AF04

04/12/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING FROM CCR - RECEIVED LATE User ID=AA77

04/01/1999 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO DISCLOSE WITNESS LIST FILED W/O NOTICE OF HEARING User ID=AB34

03/30/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SECOND AMENDED MOTION TO CONTINUE EVIDENTIARY HEARING User ID=AA77

03/29/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OBJECTION TO DEFENDANT'S REQUEST FOR PRODUCTION OF ADDITIONAL PUBLIC RECORDS User ID=AB34

03/29/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF COMPLIANCE BY LAW ENFORCEMENT AGENCY User ID=AB34

03/26/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OBJECTION TO DEFENDNAT'S REQUEST FOR PRODUCTION OF ADDITIONAL PUBLIC RECORDS - WO User ID=OWENSW

03/19/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL EMERGENCY AMENDED MOTION TO CONTINUE EVIDENTIARY HEARING(FILED BY CCR User ID=AA77

03/18/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SHERIFF RICE'S OBJECTIONS TO DEFENDANT'S AMENDED MOTION TO COMPEL DATED MARCH 2,1999 User ID=AA77

03/11/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S AMENDED MOTION TO COMPEL RETURNED (POLK COUNTY SHERIFF'S OFF.) User ID=AA77

03/11/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S AMENDED MOTION TO COMPEL RETURNED (JUDGE JOHN GRIFFIN) User ID=AA77

03/08/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED MOTION TO COMPEL User ID=AA77

03/04/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLERK'S,RICHARD M. WEISS, RESPONSE TO DEFENDANT'S DEMAND FOR ADDITIONAL RECORDS PURSUANT TO EMERGENCY RULE OF CRIMINAL PROCEDURE 3.852(H)(2) User ID=AA77

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

03/02/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE AND OBJECTIONS TO DEFENDANT'S WRITTEN DEMANDS FOR ADDITIONAL PUBLIC RECORDS AND MOTION FOR PROTECTIVE ORDER - WO User ID=OWENSW

03/01/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CLERK'S RICHARD M. WEISS, RESPONSE TO DEFENDANT'S DEMAND FOR ADDITIONAL RECORDS PURSUANT TO EMERGENCY RULE OF CRIMINAL PROCEDURE 3.852 (H)(2) User ID=OWENSW

02/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO CONTINUE EVIDENTIARY HEARING User ID=AA77

02/04/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING User ID=AA81

02/04/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF NON-PRODUCTION User ID=AA81

02/04/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OBJECTION TO PUBLIC RECORDS REQUEST -2 COPIES User ID=AA81

01/26/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S AMENDED WRITTEN DEMAND FOR ADDITIONAL PUBLIC RECORDS PURSUANT TO EMERGENCY FLORIDA RULE OF CRIMINAL PROCEDURE 3.852(H)(2) User ID=AA77

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 4/12/99 8:30AM 24 FOR: HEARING ADD'L HRNG: AMENDED MOTION TO COMPEL TO BE FILED ADD'L HRNG: EVIDENTIARY HEARING User ID=AA90

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED MOTION TO COMPEL TO BE FILED User ID=AA90

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL EVIDENTIARY HEARING TO BE HEARD ON 2,3,4 User ID=AA90

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEF'S PRESENCE WAIVED User ID=AA90

01/25/1999 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: CANDACE SABELLA-ATTY GEN OFF User ID=AA90

01/25/1999 BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL BY ATTORNEY RACHEL FRUGATE-CCCR SYLVIA SMITH-CCCR User ID=AA90

01/25/1999 ASSISTANT STATE ATTORNEY

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: SHARON VOLLRATH User ID=AA90

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: KIM TABARES,BERRYHILL User ID=AA90

01/25/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA90

01/19/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OBJECTION TO REQUEST FOR PUBLIC RECORDS - WO User ID=OWENSW

01/06/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL RESPONSE TO DEFENDANT'S WRITTEN DEMAND FOR ADDITIONAL PUBLIC RECORDS PURSUANT TO EMERGENCY FLORIDA RULE OF CRIMINAL PROCEDURE 3.852 (H) (2) AND NOTICE User ID=AA77

01/06/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OF OBJECTIONS User ID=AA77

01/05/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S WRITTEN DEMAND FOR ADDI- TIONAL PUBLIC RECORDS PURSUANT TO EMERGENCY FLORIDA RULE OF CRIMINAL PROCEDURE 3.852(H) (2) TO:MEDIATION User ID=AA77

01/05/1999 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DIVERSION SERVICES User ID=AA77

12/30/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S WRITTEN DEMAND FOR ADDITIONAL PUBLIC FECORDS PURSUANT TO EMERGENCY FLORIDA RULE OF CRIMI- NAL PROCEDURE 3.852(H)(2) X25 User ID=AA77

11/10/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL STATE'S RESPONSE TO 1997 AMENDED MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING User ID=AA77

11/10/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL OFFICE OF THE ATTORNEY GENERAL'S NOTICE OF TRANSMITTAL OF DOCUMENTS UNDER SEAL FOR IN CAMERA REVIEW User ID=AA77

10/26/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 1/25/99 9:00AM 24 FOR: HEARING ADD'L HRNG: HUFF HEARING User ID=AA90

10/26/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CASE STRICKEN OFF DOCKET User ID=AA90

10/26/1998 NO ONE PRESENT

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL NO ONE PRESENT User ID=AA90

10/26/1998 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: SHARON VOLLRATH User ID=AA90

10/26/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ,OFFICIAL User ID=AA90

10/26/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA90

10/23/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/26/98 AM -- REMOVED FROM CALENDAR User ID=AA77

10/23/1998 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER CANCELLING 10/26/98 DATE AND SETTING HUFF HEARING FOR 1/25/99 GEN/2A 10/26/98 AM: TO SEE IF PLEADINGS ARE FILED User ID=AA77

10/14/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF FILING - CCR User ID=AA77

10/14/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR LEAVE TO FILE STATUS REPORT AND FOR CANCELLATION OF OCTOBER 26,1998 STATUS CONFERENCE User ID=AA77

10/07/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SABELLA,CANDANCE M (ADA) ON 10/08/98 User ID=AA77

10/07/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SMITH,SYLVIA W CCRC (ADA) ON 10/08/98 User ID=AA77

10/07/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/26/98 9:00AM 24 FOR: STATUS REVIEW User ID=AA77

09/28/1998 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AA90

09/28/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL HUFF HEARING TO BE SET User ID=AA90

09/28/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ALL PLEADINGS AND RESPONSES TO BE FILED BEFORE HEARING User ID=AA90

09/28/1998 BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL BY ATTORNEY: CANDANCE SABELLA -ATTY GENERALS OFFICE AND SYLVIA SMITH - CCR NORTHERN REGION User ID=AA90

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

09/28/1998 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: ROBERT SHIMBERG User ID=AA90

09/28/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ,OFFICIAL User ID=AA90

09/28/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA90

09/09/1998 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 9/28/98 8:30AM 24 FOR: STATUS REVIEW User ID=AA21

09/09/1998 REOPEN CASE REVIEW Party: Defendant HODGES, GEORGE MICHAEL REOPEN CASE REVIEW User ID=AA21

09/08/1998 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 9-28-98/STATUS HEARING User ID=AA21

09/30/1997 NOTICE OF APPEARANCE BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEARANCE BY ATTORNEY: SYLVIA W. SMITH, ESQ User ID=AA04

09/30/1997 NOTICE OF APPEARANCE BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASSISTANT CCRC - NORTHERN REGION User ID=AA04

08/04/1997 NOTICE OF APPEARANCE BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEARANCE BY ATTORNEY: CANDANCE M SABELLA,ESQ-ASSISTANT ATTORNEY GENERAL User ID=AA67

02/28/1997 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL VERIFICATION - FILED User ID=AA9O

02/28/1997 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S AMENDED MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING - FILED W/O NOTICE OF HEARING User ID=AA9O

02/26/1997 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER: GRANTING AMENDED MOTION FOR EXTENSION OF TIME User ID=AA11

02/18/1997 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED MOTION FOR EXTENSION OF TIME - FILED W/O User ID=AA9O

02/18/1997 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING User ID=AA9O

01/07/1997 COPIES SENT TO

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: SAO, & CAPITAL COLLATERAL REP User ID=AA11

01/07/1997 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER: GRANTING MOTION FOR EXTENSION OF TIME (2-21-97) User ID=AA11

01/07/1997 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR EXTENSION OF TIME User ID=AA11

11/19/1996 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER: DENYING IN PART AND GRANTING IN PART MOTION TO COMPEL DISCLOSURE OF DOCUMNETS PURSUANT TO CHAPTER 119.01 TRANSCRIPT OF 10- 28-96 PROCEEDING User ID=AA72

11/19/1996 ORDER Party: Defendant HODGES, GEORGE MICHAEL ATTACHED--COPIES SENT TO SAO,C SABELLA ATTY GENERAL H. SHABAZZ CCR AND DEFENDANT User ID=AA72

10/28/1996 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AA9U

10/28/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SAO TO PREPARE ORDER SAO TO PREPARE ORDER FOR HILLS COUNTY JAIL TO PROVIDE MEDICAL RECORDS FOR MARCH, APRIL AND MAY OF 1989 User ID=AA9U

10/28/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL REQUEST TO INTERVIEW HERTZ - DENIED User ID=AA9U

10/28/1996 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL MOTION TO COMPEL DISCLOSURE OF DOCUMENTS - DENIED AS TO OFFICERS NOTES DENIED AS TO PERSONNEL FILES DENIED AS TO LAST ITEMS ON MOTION User ID=AA9U

10/28/1996 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL DENIED AS TO RECORDS FROM MR. MINTON GRANTED AS TO HILLSBOROUGH COUNTY JAIL PARAGRAPH C DENIED IN ITS ENTIRTY SUBSECTION D - DENIED User ID=AA9U

10/28/1996 MOTION TO COMPEL Party: Defendant HODGES, GEORGE MICHAEL ENTIRE MOTION DENIED W/EXCEPTION OF HILLS COUNTY JAIL MEDICAL RECORDS User ID=AA9U

10/28/1996 ALSO PRESENT Party: Defendant HODGES, GEORGE MICHAEL ALSO PRESENT: CANDICE SABELLA User ID=AA9U

10/28/1996 BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL BY ATTORNEY: HARUN SHABAZZ User ID=AA9U

10/28/1996 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A ASST STATE ATTY: KAREN COX User ID=AA9U

10/28/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ - OFFICIAL User ID=AA9U

10/28/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA9U

10/21/1996 DATE ALREADY SET FOR Party: Defendant HODGES, GEORGE MICHAEL DATE ALREADY SET FOR: 10-28-96 MOTION User ID=AA9U

10/21/1996 NO ONE PRESENT Party: Defendant HODGES, GEORGE MICHAEL NO ONE PRESENT User ID=AA9U

10/21/1996 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: KAREN COX User ID=AA9U

10/21/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ - OFFICIAL User ID=AA9U

10/21/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA9U

10/16/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/28/96 9:00AM 24 FOR: MOTION ADD'L HRNG: MOTION TO COMPEL DISCLOSURE OF DOCUM User ID=AA9O

10/16/1996 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL REOPEN/MOTION: User ID=AA9O

10/15/1996 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING:AMENDED FOR 10-28-96 W/O MOTION ATTACH User ID=AA9O

10/11/1996 NOTICE SENT FILE NOT RECEIVED INFORMATION Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT FILE NOT RECE'D INFO NOT VERIFIED User ID=AA59

10/10/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL NOTICE SENT TO SHABAZZ,HARUN (ADA) ON 10/11/96 User ID=AA10

10/10/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 10/21/96 9:00AM 24 FOR: MOTION ADD'L HRNG: PURSUANT TO CHAPTER 119.01 ET SEQ.,F ADD'L HRNG: MOTION TO COMPEL DISCLOSURE OF DOCUM User ID=AA72

09/30/1996 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: SAO,PD & LAWCLERK User ID=AA32

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A 09/30/1996 PRO SE Party: Defendant HODGES, GEORGE MICHAEL PRO-SE MOTION TO COMPEL DISCLOSURE OF DOCUMENTS PURSUANT TO CHAPTER 119.01 ET., FLA. STAT User ID=AA32

09/23/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL LETTER FROM CCR TO CLERKS OFFICE FILED User ID=AA72

09/23/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COPY OF LETTER FROM CCR TO STATE FILED User ID=AA72

09/09/1996 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AA15

09/09/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CCR TO FILE MOTION TO COMPEL (SPECIFICALLY W/IN 14 DAYS) User ID=AA15

09/09/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CCR: HARUN SHABAZZ & SYLVIA SMITH User ID=AA15

09/09/1996 BY ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL BY ATTORNEY: CANDACE SABELLA User ID=AA15

09/09/1996 ASSISTANT STATE ATTORNEY Party: Defendant HODGES, GEORGE MICHAEL ASST STATE ATTY: KAREN COX User ID=AA15

09/09/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ,OFFICIAL User ID=AA15

09/09/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA15

09/05/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 9/09/96 9:00AM 24 FOR: STATUS REVIEW User ID=AA9O

09/05/1996 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL REOPEN/MOTION: User ID=AA9O

08/30/1996 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER: DENYING DEFENDANT'S MOTION FOR RECONSIDERATION AND/OR REHEARING User ID=AA72

08/19/1996 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 9-9-96 STATUS HEARING User ID=AA9O

08/19/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT'S MOTION FOR RECONSIDERATION AND/OR REHEARING - FILED W/O

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A NOTICE OF HEARING User ID=AA9O

08/06/1996 COPIES SENT TO Party: Defendant HODGES, GEORGE MICHAEL COPIES SENT TO: STATE,PD, & DEFT. (PER JA) User ID=AA52

08/06/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER GRANTING IN PART ND DENYING IN PART DEFENDANT'S AMENDED MOTION FOR POST-CONVICTION RELIEF User ID=AA52

07/31/1996 ORDER GRANTING Party: Defendant HODGES, GEORGE MICHAEL IN PART AND DENYING IN PART DEFENDANT'S AMENDED MOTION FOR POST CONVICTION RELIEF - WO User ID=OWENSW

02/06/1996 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER: DEF MOTION TO STRIKE STATE'S NOTICE OF HEARING AND REMOVED FROM COURT'S CALENDAR FOR 2-5-96 User ID=AA29

02/05/1996 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AA33

02/05/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CASE STRICKEN OFF DOCKET (DEFENSE REQUESTED) User ID=AA33

02/05/1996 NO ONE PRESENT Party: Defendant HODGES, GEORGE MICHAEL NO ONE PRESENT User ID=AA33

02/05/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT REPORTER: ANITA HENRIQUEZ - OFFICIAL User ID=AA33

02/05/1996 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL JUDGE: PADGETT User ID=AA33

01/23/1996 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO STRIKE STATE'S MOTION TO HOLD HEARING REGARDING DEFENDANT'S PENDING REQUEST FOR PUBLIC RECORDS AND MOTION TO STRIKE STATE'S NOTICE OF HEARING - FILED User ID=AA9O

12/22/1995 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 2/05/96 9:00AM 24 FOR: MOTION ADD'L HRNG: RECORDS ADD'L HRNG: DEFENDANT'S PENDING REQUEST FOR PUBL ADD'L HRNG: MOTION TO HOLD HEARING REGARDING User ID=AA9O

12/22/1995 REOPEN MOTION Party: Defendant HODGES, GEORGE MICHAEL REOPEN/MOTION: User ID=AA9O

12/22/1995 NOTICE OF HEARING Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF HEARING: FOR 2-5-96 User ID=AA9O

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A 12/21/1995 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO HOLD HEARING REGARDING DEFENDANT'S PENDING REQUEST FOR PUBLIC RECORDS - FILED User ID=AA9O

11/29/1995 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL AMENDED MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING User ID=AA29

06/23/1995 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO ADMIT COUNSEL PRO HAC VICE User ID=AA21

06/23/1995 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO DETERMINE DEFENDANT'S INDIGENCY TO INSTITUTE AND PROSECUTE POST-CONVICTION PROCEEDINGS User ID=AA21

06/23/1995 MOTION Party: Defendant HODGES, GEORGE MICHAEL MOTION TO VACATE JUDGMENT OF CONVICTION AND ORDER AND MANDATE FROM SUPREME COURT AND FOR EVIDENTIARY HEARING User ID=AA21

06/17/1992 ORDER FROM 2ND DCA COURT Party: Defendant HODGES, GEORGE MICHAEL ORDER FROM SECOND DISTRICT COURT OF APPEALS: MOTION FOR REHEARING IS DENIED MANDATE FILED FROM SUPREME COURT AFFIRMED User ID=AA97

03/12/1991 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER DENYING MOTION FOR NEW TRIAL User ID=AA71

03/11/1991 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER DENYING MOTION FOR NEW TRIAL User ID=AA71

12/11/1990 ORDER Party: Defendant HODGES, GEORGE MICHAEL ORDER User ID=AA77

12/11/1990 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL PRO SE MOTION TO DISMISS COUNSEL User ID=AA77

10/10/1990 LETTER OF TRANSMITTAL Party: Defendant HODGES, GEORGE MICHAEL LETTER OF TRANSMITTAL FILED User ID=AA61

10/08/1990 DESIGNATION TO COURT REPORTER Party: Defendant HODGES, GEORGE MICHAEL DESIGNATION TO THE COURT REPORTER: SUPPLEMENTAL User ID=AA61

10/08/1990 WRITTEN DIRECTIONS TO CLERK Party: Defendant HODGES, GEORGE MICHAEL WRITTEN DIRECTIONS TO THE CLERK SUPPLEMENTAL User ID=AA61

12/05/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER User ID=AA77

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A

12/04/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION TO WITHDRAW FILED User ID=AA77

11/02/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ORDER PAYMENT OF EXPERT WITNESS User ID=AA77

10/05/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL LETTER OF TRANSMITTAL User ID=CONVERT1

08/23/1989 DESIGNATION TO COURT REPORTER Party: Defendant HODGES, GEORGE MICHAEL DESIGNATION TO THE COURT REPORTER: User ID=CONVERT1

08/23/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL WRITTEN DIRECTIONS TO CLERK User ID=CONVERT1

08/23/1989 JUDICIAL ACTS TO BE REVIEWED Party: Defendant HODGES, GEORGE MICHAEL JUDICIAL ACTS TO BE REVIEWED User ID=CONVERT1

08/23/1989 CONVERTED EVENT Party: Defendant HODGES, GEORGE MICHAEL NOTICE OF APPEAL OB____PG____ APPEAL ______User ID=CONVERT1

08/22/1989 DEPOSITION OF Party: Defendant HODGES, GEORGE MICHAEL DEPOSITION FILED: (7) FILED User ID=CONVERT1

08/12/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL SENTENCE User ID=CONVERT1

08/10/1989 DEFENDANT CLOSED Party: Defendant HODGES, GEORGE MICHAEL DEFENDANT CLOSED User ID=AA50

08/10/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL CONFINEMENT LGTH SET TO DEATH SENTENCE COMM. ISSD. User ID=CONVERT1

08/10/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT SET SENTENCE TO BEGIN ON 08/10/89 User ID=CONVERT1

08/10/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL COURT IMPOSED SENTENCE ON 08/10/89 User ID=CONVERT1

08/10/1989 JUDGMENT OF GUILTY Party: Defendant HODGES, GEORGE MICHAEL JUDGEMENT GUILTY: JUDGE GRIFFIN REC.8-11-89 OB 309PG 59- User ID=60

08/10/1989 Sentence (Judicial Officer: Judge, Presiding) 1. SEE DOCKET OR CASE FILE FOR CHARGES CONVERTED SENTENCING EVENT Charge Reopen Status (02/07/2000, MOTION, , Comment: FREOM-REOPEN

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A MOTION; ) Charge Reopen Status (07/28/2008, POST CONVICTION RELIEF MOTION FILED, 1, Comment: FTEFO-3.850 MOTION FILED; MOTION TO VACATE JUDGMENT OF C) Charge Reopen Status (11/12/2010, OTHER, 1, Comment: FREOP-REOPEN CASE; ) Confinement (Effective 08/10/1989 at 12:00 AM, Min. Death, Max. Death, FLORIDA DEPARTMENT OF CORRECTIONS, Comment: COMTD-COMMITTED TO FSP- DEATH SENT.; ) Credit for Time Served: 0 Yr 0 Mo 0 Days Suspended for: 0 Yr 0 Mo 0 Days Drug Trafficking: 0 Yr 0 Mo 0 Days Jurisdiction Retained: 0 Yr 0 Mo 0 Days

08/09/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL ADD/2A 8/10/89 8:30AM 7 FOR: OTHER User ID=CONVERT1

08/08/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL POLYGRAPH RESULTS FILED User ID=CONVERT1

08/08/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL MOTION FOR NEW TRIAL-DENIED User ID=CONVERT1

08/08/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DEF FOUND COMPETENT User ID=CONVERT1

08/08/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DR'S REPORTS RECEIVED User ID=CONVERT1

08/01/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 08/10/89 08:30AM 7 FOR: SE User ID=CONVERT1

08/01/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 08/09/89 08:30AM 7 FOR: HE User ID=CONVERT1

08/01/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 08/08/89 08:30AM 7 FOR: MONT User ID=CONVERT1

08/01/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL GEN/2A 08/07/89 08:30AM 7 FOR: SR User ID=CONVERT1

08/01/1989 SEE DOCKET TEXT Party: Defendant HODGES, GEORGE MICHAEL DIVISION 2 ASSIGNED. User ID=CONVERT1

08/01/1989 SEE DOCKET BOOK FOR PREVIOUS ENTRIES Party: Defendant HODGES, GEORGE MICHAEL SEE DOCKET BOOK FOR PREVIOUS ENTRIES. User ID=CONVERT1

07/13/1989 AFFIDAVIT INSOLVENCY/FINAL JUDGMENT BOOK PAGE Party: Defendant HODGES, GEORGE MICHAEL AFFID. OF INSOLVENCY/FINAL JUDGMENT BK5744PG1811 $800. User ID=AA88

07/13/1989 SEE DOCKET TEXT

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TRIAL DIVISION 2 CASE SUMMARY CASE NO. 89-CF-002165-A Party: Defendant HODGES, GEORGE MICHAEL FOUND GUILTY BY JURY User ID=CONVERT1

07/13/1989 Plea (Judicial Officer: Judge, Presiding) 1. SEE DOCKET OR CASE FILE FOR CHARGES NOT GUILTY OBTS: 0 Sequence: 1

07/13/1989 Disposition (Judicial Officer: Judge, Presiding) 1. SEE DOCKET OR CASE FILE FOR CHARGES NT - ADJUDGED GUILTY OBTS: 0 Sequence: 1

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Filing # 50039786 E-Filed 12/14/2016 12:42:55 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. 89-2165 STATE OF FLORIDA, Plaintiff, v. GEORGE M. HODGES, Defendant. ______/ SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851 COMES NOW, GEORGE MICHAEL HODGES, Defendant in the above-captioned

action, and hereby files this successive motion to vacate under Fla. R. Crim. P. 3.851. This motion is filed in light of a change in Florida law following the decision in Hurst v. Florida, 136 S.Ct. 616 (2016), with the enactment of Chapter 2016-13 on March 7, 2016 (“the Act”), and the decisions in Hurst v. State, 202 So. 3d 40 (Fla. 2016), and Perry v. State, 2016 WL 6036982 (Fla. Oct. 14, 2016).

Procedural History 1. On January 8, 1987, Betty Ricks was found on the ground next to her car at the Beverage Barn where she worked (R. 256-58). Ricks died the next day of gunshot wounds to her head and neck (R. 283, 287). In 1989, the police arrested George Michael Hodges, who was indicted for first degree murder (R. 806, 815). Mr. Hodges pled not guilty, and his jury trial began on July 10, 1989.

2. Following the conclusion of the trial, the jury convicted Mr. Hodges (R. 650).

Thereafter, subsequent to a penalty phase, the jury recommended death by a vote of 10 to 2 (R.

741-44). A sentencing hearing was held on August 9, 1989 (R. 960-77), and the Court sentenced

Mr. Hodges to death on August 10, 1989 (R. 893-99, 902-08).1

3. On direct appeal, the Florida Supreme Court affirmed Mr. Hodges’ conviction and

1See the Attachment for Mr. Hodges’ Judgment and Sentence.

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sentence. Hodges v. State, 595 So. 2d 929 (Fla. 1992).2 However, after filing a writ of certiorari to the United States Supreme Court, the Court vacated the judgment and remanded for further consideration in light of Espinosa v. Florida, 505 U.S. 1079 (1992). On remand, the Florida Supreme Court again affirmed Mr. Hodges’ death sentence. Hodges v. State, 619 So. 2d 272 (Fla. 1993). 4. On June 20, 1995, Mr. Hodges filed a motion under Rule 3.850, Fla. R. Crim. P. (PC-R. 14-54). The Court granted an evidentiary hearing on three ineffective assistance of counsel claims and a claim under Ake v. Oklahoma, 470 U.S. 68 (1985), and summarily denied all other claims (PC-R. 210-30, 730-49). On June 6, 2001, the Court denied relief. Mr. Hodges appealed, and the Florida Supreme Court affirmed. Hodges v. State, 885 So. 2d 338 (Fla. 2003).3

5. On April 22, 2002, Mr. Hodges filed a habeas corpus petition in the Florida Supreme Court, which denied relief on June 19, 2003. Hodges v. State, 885 So. 2d 338 (Fla. 2003).4 On March 4, 2005, Mr. Hodges filed a second habeas corpus petition in the Florida

2Mr. Hodges raised the following grounds on direct appeal: 1) inadmissible hearsay was admitted during the guilt phase; 2) inadmissible hearsay was admitted during the penalty phase; 3) the trial court allowed admission of evidence that the trial prosecutor’s personal opinion was that Mr. Hodges was guilty; 4) the trial court erred in failing to hold a competency hearing during the penalty phase; 5) Mr. Hodges’ right to be present for all critical stages of his trial was violated; 6) a Booth claim; 7) improper prosecutorial argument in the penalty phase; and 8) improper aggravating factors. The Court denied relief. The Florida Supreme Court also found that the evidence was sufficient to convict Mr. Hodges and that his sentence of death was proportionate. 3Mr. Hodges raised the following issues on appeal: 1) trial counsel was ineffective at the penalty phase; 2) Mr. Hodges received ineffective assistance of counsel and expert assistance as to mental health issues; 3) the trial court denied Mr. Hodges’ due process right to a full and fair hearing and impartial judge; 4) trial counsel was ineffective in failing to present evidence showing that Mr. Hodges’ mental capacity precluded him from acting in a cold, calculated, and premeditated manner; 5) the jury instructions shifted the burden to Mr. Hodges to prove that the death sentence was inappropriate and the sentencing judge employed the same standard; 6) Florida’s death penalty statute is unconstitutional as applied because aggravating factors are not charged in the indictment and proven beyond a reasonable doubt by a unanimous jury verdict; and 7) the lower court erred in denying an evidentiary hearing on a number of Mr. Hodges’ claims.

4In his petition for writ of habeas corpus, Mr. Hodges repeated his claims regarding the burden shifting and aggravating factors. He also argued that appellate counsel rendered ineffective assistance by failing to challenge on appeal the introduction of collateral crime (continued...) 2

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Supreme Court, which denied relief on June 23, 2005. Hodges v. Crosby, 907 So. 2d 1170 (Fla. 2005).5 6. On January 4, 2006, Mr. Hodges filed a federal habeas corpus petition. The petition was denied by the district court on February 22, 2007. Mr. Hodges appealed to the Eleventh Circuit, which affirmed the district court’s order on November 9, 2007. Hodges v. Attorney General, 506 F.3d 1337 (11th Cir. 2007). Mr. Hodges’ petition for writ of certiorari was denied by the United States Supreme Court. Hodges v. McNeil, 129 S.Ct. 122 (2008). 7. On July 28, 2008, Mr. Hodges filed a successive postconviction motion in this Court based on a lethal injection issue (PC-R2. 12). On February 13, 2009, the Court issued an order summarily denying Mr. Hodges’ motion (PC-R2. 64-82). Mr. Hodges appealed, and the Florida Supreme Court affirmed. Hodges v. State, SC09-575 (Fla. Jan. 11, 2010).6 8. On October 21, 2010, Mr. Hodges filed a successive Rule 3.851 motion based upon Porter v. McCollum, 130 S.Ct. 447 (2009). On March 4, 2011, this Court denied Mr. Hodges’ motion. Mr. Hodges appealed, and the Florida Supreme Court affirmed. Hodges v.

State, 94 So. 3d 498 (Fla. 2012).7

Relevant Facts A. The Trial 1. In 1987, Betty Ricks was shot and killed as she exited her car at the Beverage

4(...continued) evidence and the trial court’s erroneous exclusion of a potential juror. Mr. Hodges further claimed that Florida’s death penalty statute is unconstitutional because it fails to prevent arbitrary and capricious imposition of the death penalty, violates due process, and constitutes cruel and unusual punishment.

5Mr. Hodges’ successive petition for writ of habeas corpus was based on Crawford v. Washington, 124 S.Ct. 1354 (2004).

6Mr. Hodges raised the following issue on appeal: The existing procedure that the State of Florida utilizes for lethal injection violates the Eighth Amendment to the United States Constitution as it constitutes cruel and unusual punishment.

7Mr. Hodges raised the following issue on appeal: Hodges was deprived of the effective assistance of trial counsel at the penalty phase of his trial, in violation of Porter v. McCollum, 130 S.Ct. 447 (2009). 3

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Barn in Plant City to begin work in the early morning hours on January 10th. In 1989, over two years after Ms. Ricks’ death, the police arrested George Michael Hodges and he was indicted for first degree murder (R. 815). 2. Trial commenced six (6) months after Mr. Hodges’ arrest, in July, 1989. The testimony presented at the guilt phase of Mr. Hodges’ capital trial was entirely circumstantial. 3. Over defense objections, the State presented evidence that Ms. Ricks had accused Mr. Hodges of exposing himself to her in November, 1986 (R. 296), and that she was adamant about prosecuting Mr. Hodges (R. 297). Mr. Hodges was directed into an arbitration hearing and was scheduled to attend on January 8th (R. 488). That day he called the program and said there was no reason for him to go through the diversion program (R. 489). 4. Additionally, the State presented a witness, Janetta Hansen, who worked with Mr. Hodges at Zayre, which was located across the street from the Beverage Barn (R. 306). On the morning of the crime, while it was still dark, Ms. Hansen saw a truck that looked like Mr. Hodges’ near the Beverage Barn, but she did not see the victim’s car (R. 311). 5. The medical examiner testified that Ms. Ricks had been shot twice (R. 288). Testimony was presented that Mr. Hodges owned a shotgun, as did his step-son (R. 387). 6. Detective Miller testified that Mr. Hodges maintained that his step-son, Jesse Watson, drove his car to school on the morning of the crime, but returned home around 8:30 a.m. because he felt ill (R. 333).8 Mr. Hodges also surrendered his shotgun to the police (R. 333). 7. In order to refute Mr. Hodges’ statements, the State presented testimony from Mr. Hodges’ family members. Jessie Watson, Mr. Hodges’ step-son, testified that he awoke at 5:30 a.m. on the morning of the crime, when he heard Mr. Hodges come home (R. 417). He testified

that Mr. Hodges entered the house with his shotgun in his hands (R. 418). Mr. Watson told Mr.

Hodges that he was not feeling well and Mr. Hodges told him to drive his truck to school (R.

8Peggy Lewandowski, a neighbor of the Hodges, testified that in 1988 she provided a statement to the police in which she stated that she saw a truck pull in the Hodges’ driveway at approximately 8:00 a.m. (R. 353). 4

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420). Mr. Watson testified that his shotgun had scratches on it, and he identified the shotgun in evidence as his (R. 416). 8. Mr. Watson testified that he lied to the police when he was interviewed about the crime (R. 425). On cross examination, Mr. Watson testified that Mr. Hodges admitted that he was involved in the crime, but that Mr. Watson did not believe him (R. 428). Mr. Watson was also impeached with letters he wrote to Mr. Hodges, while he was incarcerated, admitting that he lied to the police about Mr. Hodges’ alleged confession and informing Mr. Hodges that the police and prosecutors were pressuring him (R. 430). Mr. Watson also admitted that he was a drug addict and that he was undergoing treatment for his problem at the time of the trial (R. 434). 9. Mr. Hodges’ wife, Harriet Hodges, testified that on the evening before the crime, she and Mr. Hodges stayed up late and played cards with some friends (R. 382). When she awoke the morning of the crime she heard Mr. Hodges speaking to her son, Jessie Watson (R. 383). Mr. Watson drove Mr. Hodges’ truck to school that morning (R. 386). Mrs. Hodges did not know whether, on the morning of the crime, Mr. Hodges left the house or not (R. 390). Mrs. Hodges also admitted that she had made a false statement to the police in 1987 (R. 393). 10. Vickie Boatwright, Jesse Watson’s girlfriend, testified that Mr. Hodges had told her in 1988, that he had shot a woman and she had died (R. 367). She also testified that Mr. Hodges stated that nothing happened because he gave the police Mr. Watson’s gun. On cross examination, Ms. Boatwright testified that she thought Mr. Hodges was kidding (R. 387). She also admitted that she did not tell the police about this conversation until after she was questioned twice and spoke to Mr. Watson (R. 371). 11. The defense presented evidence that a witness saw a truck, not Mr. Hodges’, in

the parking lot of the Beverage Barn around 6:00 a.m., on the morning of January 8th (R. 539-1).

12. Further, Detective Rick Orzechowski testified that he was aware that the victim’s

step-father ran for a position on the city commission in order to remove the current police chief

and replace him with an individual who would pursue the investigation of his step-daughter’s

murder (R. 299).

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13. The jury convicted Mr. Hodges (R. 650). 14. On July 14, 1989, one day after the jury found George Hodges guilty of first degree murder, the jury reconvened to hear the penalty phase evidence. 15. The penalty phase hearing lasted less than forty-five minutes. During that forty- five minutes, the State of Florida presented three witnesses: Detectives Orzechowski and Horn as well as Debra Ricks, the victim's sister. All three of the witnesses' testimony consisted of the hearsay testimony that the victim, Betty Ricks, told them that George Hodges approached her and attempted to convince her to drop the exposure charge (R. 681, 685, 689). During Debra Ricks's testimony the defense objected because she was crying before the jury (R. 688). 16. Mr. Hodges' trial attorney presented the testimony of two witnesses: Lula Hodges and Harold Stewart, Mr. Hodges' mother and brother-in-law, respectively. Mrs. Hodges testified while her husband sat in the courtroom. Mrs. Hodges testified that George grew up in West Virginia; the family moved around a lot; that George did not finish high school, but obtained a GED and that George's brother drowned and "[i]t seemed to change [George] completely, because they was real close." (R. 694). Mr. Stewart testified that George was a good worker and a good father (R. 697, 698). 17. The State argued that two aggravating factors applied: 1) the crime was committed to disrupt or hinder the lawful exercise of governmental function or the enforcement of laws; and 2) the crime was committed in a cold, calculated and premeditated manner, without any pretense of moral or legal justification. While the prosecutor argued that two (2) aggravating factors applied in Mr. Hodges’ case, he told the jury: “The State of Florida is limited to proving ten aggravating circumstances.” (R. 711).

18. Also, the Florida Supreme Court recognized on direct appeal that the prosecutor

made an improper "Golden Rule" argument to the jury which was not objected to by Mr. Hodges'

trial counsel. Hodges v. State, 595 So. 2d 929, 933-934 (1992).

What about life in imprisonment (sic)? What can a person do in jail for life? You can cry. You can read. You can watch TV. You can listen to the radio. You can talk to people. In short, you are alive. People want to live. You are

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living. All right? If Betty Ricks had had a choice between spending life in prison or lying on that pavement in her own blood, what choice would Betty Ricks have made? But, you see, Betty Ricks didn’t have that choice. (R. 716-7). 19. Mr. Hodges’ trial attorney argued that recommending life for Mr. Hodges would mean that Mr. Hodges would serve a minimum of twenty-five (25) years in prison. Trial counsel then read the entire list of the aggravating circumstances, even those that had already been determined, and the State conceded, were inapplicable to Mr. Hodges’ case (R. 722-3). Also, counsel argued that Mrs. Hodges loved her son and the jury should be compassionate (R. 723). 20. Following closing arguments, the jury was improperly instructed about the cold, calculated and premeditated aggravating factor (R. 726). Trial counsel failed to object to the unconstitutionally vague instruction. Hodges v. State, 619 So. 2d 272, 273 (Fla. 1993). As to mitigation, the jury was told that they could consider “any aspect of the defendant’s character or record and any other circumstance of the offense.” (R. 726-7). The jury did not hear the instructions regarding any other statutory mitigators. 21. During deliberations, the jury requested a list of the inadmissible aggravating circumstances (R. 731). 22. Also, while the jury deliberated, Mr. Hodges attempted to commit suicide by hanging himself and was taken to the hospital (R. 732). His attorneys did not request that the court inform the jury about the suicide attempt or request the assistance of a mental health expert. However, the court appointed two (2) experts to determine if Mr. Hodges was competent to be sentenced (R. 890). 23. After hearing almost no evidence about Mr. Hodges’ background the jury

recommended death by a vote of ten (10) to two (2) (R. 739).

24. In accordance with the jury’s recommendation, the trial court sentenced Mr.

Hodges to death. The court found two (2) aggravating circumstances: (1) The crime was

committed to disrupt or hinder the lawful exercise of any governmental function or the

enforcement of laws; and (2) The crime was committed in a cold, calculated and premeditated

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manner (R. 906-8). The court’s order stated: “the Court has attempted to find mitigating circumstances sufficient in weight to offset the [] aggravating circumstances . . . Mr. Hodges’ family has spoken as to his character and dedication to his family.” (R. 908). The trial court found no other mitigation.

B. The Direct Appeal 25. During Mr. Hodges’ direct appeal, the Florida Supreme Court found several errors had occurred at his capital trial. The Court found that inadmissible hearsay was admitted during the guilt phase regarding the victim’s statements and state of mind that she was adamant about prosecuting Mr. Hodges for the indecent exposure. Hodges v. State, 595 So. 2d 929, 931-932 (Fla. 1992). 26. Further, the Florida Supreme Court found that the prosecutor’s closing argument during the penalty phase was error. Id. at 933-934. However, this Court found that the error was harmless and there was no objection. Id. 27. The Florida Supreme Court also found that the cold, calculated and premeditated instruction was not unconstitutional and the issue was meritless. Hodges, 595 So. 2d at 934. However, the United States Supreme Court vacated Mr. Hodges’ sentence and remanded to the Florida Supreme Court in light of Espinosa v. Florida, 505 U.S. 1079. Hodges v. Florida, 506 U.S. 803 (1992). On remand, the Florida Supreme Court found that the issue was procedurally barred because counsel failed to object at trial. Hodges v. State, 619 So. 2d 272, 273 (Fla. 1993).

C. Postconviction Proceedings 28. At the evidentiary hearing held on his postconviction motion, Mr. Hodges presented several lay witnesses who provided detailed testimony regarding his troubled

childhood. These witnesses included his sister Karen Sue Tucker, his brother, Robert Hodges,

and family friend Cecilia Sanson. In addition, Dr. Richard Ball, a sociologist, testified regarding

the detrimental effects growing up in the poverty stricken subculture of southern Appalachia

where the Hodges lived. Also, Dr. Marlin Delaney, a toxicologist, testified regarding the effects

of lead poisoning from the Kanawha River.

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29. Specifically, testimony was presented about the area where Mr. Hodges was raised. Mr. Hodges’ older sister, Karen Sue Tucker, testified that the family lived in a small place called Lock Seven, which was located in St. Albans, West Virginia (PC-T. 25). Cecelia Sanson testified that Lock Seven is “mainly [a] community of welfare people, drunks, druggies” (PC-T. 103). Further, Dr. Ball described the area as a “subculture of the southern Appalachian” (PC-T. 460), and he explained that a subculture consists of a “pattern of values that are somewhat different from that prevailing in the rest of the country.” (PC-T. 460). 30. The area was populated with chemical plants and industry (PC-R. 26, 100). In fact, the chemical plants spewed pollutants into the air and river near where the Hodges lived (PC-T. 27). 31. Chemical wastes and pollutants were dumped into the Kanawha River by the industrial plants causing water pollution so severe that it killed or caused mutations of the fish in the river (PC-T. 109). The waste also effected the taste and created odor problems in public water supplies obtained from the river (PC-T. 38). Traces of cyanide, manganese, lead, mercury and cadmium were also found in the river (PC-T. 274-5). 32. The witnesses also described Mr. Hodges’ dysfunctional and chaotic family life. Mrs. Tucker testified that the family moved twenty (20) to twenty-five (25) times when she and her siblings were growing up (PC-T. 30). The houses were usually two-bedroom houses, where the five (5) children shared a room and their parents had a room (PC-T. 40). In fact, the children slept in the same bed (Id.). Some of the houses did not have heat or indoor plumbing (PC-T. 39). All of the houses had rats in them (PC-T. 39). 33. Dr. Maher testified that the family lived in extreme impoverishment “of a nature

which in the modern United States is almost unheard of except in some very isolated areas.” (PC-

T. 258). Dr. Ball testified that Lock Seven is ‘just about at the bottom of the ladder

socioeconomically’ (PC-T. 474). Mrs. Tucker explained that the garbage dump was the only

place the Hodges “got anything, because, you know, we didn’t have a lot when we was growing

up. I mean, that was just simple. You know, daddy didn’t make a lot; and what he did, he drank.”

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(PC-T. 32). Due to Mr. Hodges’ father’s alcohol problem, he had difficulty holding a job (PC-T. 39). 34. As to the amenities, the witnesses testified that the Hodges children wore feed sacks as clothes or took clothes from a local garbage dump (PC-T. 31). The dump smelled vile but the family also ate from it (PC-T. 34, 38). Mrs. Tucker testified: There was a dump – we lived right here, and the dump was right here. To us, that was a fortune. We went there. We took clothes out. We got toys out. You know, if there was canned food – because you wouldn’t believe what people threw away. Other people’s trash was your fortune. (PC-T. 31). Mrs. Tucker and Robert Hodges also explained that the chemical plants used the dump to deposit chemical waste (PC-T. 34, 81). Ms. Sanson recalled when a dead baby was found in the dump (PC-T. 107). 35. As far as nutrition from sources other than the dump, the family ate mayonnaise sandwiches, contaminated fish from the contaminated Kanawha River, and potatoes and pinto beans in order to survive (PC-T. 29, 31, 60, 76). Robert Tucker, Mr. Hodges older brother, testified that the Hodges’ children were often hungry because the meals at the Hodges’ house included limited portions: “Well, you’d get maybe two spoonfuls of beans; a small piece of cornbread, about two inches square; and a couple of spoons of potatoes.” (PC-T. 78). 36. Like most impoverished families, the Hodges also did not have proper medical care. There was no money for medicine or insurance (PC-T. 84). When the children needed glasses they were provided by the Lions Club through their elementary school (PC-T. 55). Living near the dump, Mr. Hodges and his siblings were often afflicted with “fall” sores and infections that took several weeks to heal (PC-T. 35-6). Mr. Hodges suffered from whooping cough

throughout his childhood (PC-T. 37).

37. The witnesses also testified about Mr. Hodges’ father. Mrs. Tucker testified:

A: My daddy drank all the time.

Q: Is your dad still alive?

A: No, he’s not.

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Q: So, you said he drank all the time? A: He drank up until I was about 18 years old and then quit. Q: I guess – could you – could you tell the judge what your dad was like when he was – had been drinking? A: He was mean. He was mean. I mean, I loved my dad, but he was mean. Q: Let’s talk about, you know, when your dad would get drunk, would – would he do anything to [George Hodges]? A: He got to us all. Q: Well, could you tell me what – what kind of things did your dad do? A: Mainly to my mother. You know, he would — he – he’d beat my mother and then [George Hodges] and then Robert (crying) – sorry. Q: That’s okay. A: And then [George Hodges] and Robert, and Randy would try to stop him. * * * A: But they would try to stop him and he would just pick them up like rags and shook them up against the wall; and he’d tell us if we didn’t shut up, we’d be next. And, I mean, you know, you watched him beat your mother. The blood would pour from her nose; and when he gets done, you know, she’s right there with him like nothing happened. (PC-T. 41-2). Mrs. Tucker testified that the family beatings occurred three (3) to four (4) times a week (PC-T. 43). Her mother would lie about the beatings when people asked about her bruises and marks (PC-T. 42). Robert Hodges confirmed that George Hodges witnessed the brutal beatings of his mother (PC-T. 87). 38. Mr. Hodges’ father’s brutality did not focus entirely on his wife. He beat his

children with switches, belts or his bare hands when an instrument of pain was unavailable (PC-

T. 87, 304). In addition, Mrs. Hodges would beat her children, especially, if they told anyone that

their father beat their mother and them (PC-T. 43). Even when Mrs. Tucker called her aunt for

assistance a few times, her mother would turn out the lights so that it looked like no one was

home (PC-T. 43). And even when the Hodges children did what they were told, they were still

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beat (PC-T. 44). 39. Mrs. Tucker also testified about the events that occurred surrounding her parents’ marriage and the exposure to her parents’ sexual relationships. She testified that her parents had affairs (PC-T. 45). At one time, her father impregnated his sixteen (16) year old girlfriend and “[h]e brought her in the house. She lived with us. She had the baby. You know they stayed with us.” (PC-T. 45). 40. In addition to his dysfunctional family life, Mr. Hodges had a difficult childhood. “He really only had one friend, and he was – he was retarded” – Raymond Riffle (PC-T. 46). Mr. Hodges also had a speech defect (PC-T. 46). The children at school teased and made fun of him about his speech and appearance (PC-T. 46-7). 41. Mr. Hodges was close to his brother, Randy (PC-T. 47). Randy drowned in the Kanawha River (PC-T. 49). After Randy died, Mr. Hodges “was lost” (PC-T. 49). Robert Hodges described George Hodges’ reaction as: “he just withdrew off by himself, wouldn’t hardly talk to anybody. He stayed by himself.” (PC-T. 90). 42. The dysfunction and chaos of the Hodges family took a toll on all of the children: Robert has an alcohol problem, has tried to commit suicide three (3) times and has been sent to prison for a sex-crime he committed while intoxicated (PC-T. 91). While undergoing psychiatric treatment after shooting himself in the head, Robert was told that he was depressed (PC-T. 93). Randy Hodges was hyperactive and suffered from ADH which resulted in severe mood swings (PC-T. 68). He and George Hodges shared a close relationship, but an abusive one. Randy Hodges took advantage of his younger brother, engaging him in sex throughout their childhood and teenage years (Supp. T. 69). George Hodges’ records illustrate three (3) clear suicide

attempts. Once he drank disinfectant which caused him to lose consciousness and he was sent to

the hospital. Another time he slit his wrists and again was hospitalized (PC-T. 162). On the third

attempt, just after the penalty phase of his trial, he tried to hang himself (PC-T. 162). Karen Sue

Tucker, like her mother, was a victim of domestic abuse (PC-T. 50). She left home at eighteen

(18) in order to avoid a beating (PC-T. 61).

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43. Dr. Ball described the Hodges’ environment as an area of social disorganization (PC-T. 475). He stated: In an area of social disorganization, there is – that’s usually indicated by such factors as low levels of home ownership, high transients in the population, people coming and going. It’s usually indicated by high rates of alcoholism and drug abuse, high levels of truancy, teenage pregnancy, various indicators of social instability or what we typify as social disorganization, so that some impoverished areas at least have stability and organization and structure to them; and some impoverished areas, the socially disorganized areas, are not only poor, but they’re also disorganized. They manifest all those characteristics. That was true of Lock Seven . . . (PC-T. 475-6). In addition, Dr. Ball concluded that Mr. Hodges had no protective factors or support from his community or home (PC-T. 489). 44. Dr. Marlin Delaney, a toxicologist, confirmed Mrs. Tucker, Ms. Sanson and Robert Hodges’ suspicions about the problems in the Kanawha River. Dr. Delaney described the area near where the Hodges lived as a “cesspool” because of the “tremendous amount of dumping” (PC-T. 128). Large volumes of hazardous wastes and other waste residuals were disposed of in landfills, dumps, and surface impoundments that were not properly designed, constructed, or maintained to adequately contain the toxic substances present in the wastes (Id.). As a result, toxic pollutants were released to the air, to surface water, and to groundwater (PC-T. 278-80). 45. Also, the lead in the water would uptake in the fish and “once you consume the fish, you’ve taken in lead” (PC-T. 129). Dr. Delaney testified and Dr. Beaver concurred that children who ingest lead can develop neurological deficits, low IQ, behavioral problems and nervous system problems (PC-T. 131, 231). 46. As to Mr. Hodges’ mental health, Dr. Michael Maher, M.D., a psychiatrist,

diagnosed Mr. Hodges with chronic depressive disorder, that he had brain damage and that Mr.

Hodges suffered from “an extreme, beyond even what would normally be considered significant

or dramatic, pattern of impoverishment and abuse as a child.” (PC-T. 257-8). Dr. Maher

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clarified that Mr. Hodges suffered from impoverishment in terms of family structure (Id.).9 47. In addition to the information regarding Mr. Hodges’ family life, Dr. Maher testified that Mr. Hodges’ history was filled with negative factors which impacted his mental health and behavior, including exposure to toxins in the area where he grew up (PC-T. 279), his malnutrition he suffered as a child (PC-T. 271), and his suicide attempts (PC-T. 283). 48. Dr. Maher also concluded that Mr. Hodges was under the influence of an extreme mental or emotional disturbance at the time of the crime (PC-T. 292). He also concluded that there was evidence to rebut the cold, calculated and premeditated aggravating factor (PC-T. 300). 49. As to non-statutory mitigation, Dr. Maher testified: Q: When we’re talking about someone who suffers from extreme trauma as a child and into early adolescence, does time heal the physical and mental state that’s caused by those factors? A: Certainly, time and subsequent experience can be very helpful in healing those kinds of wounds and injuries. One of the most troubling, frustrating, difficult issues clinically is that those kinds of formative early experiences – physical abuse, sexual abuse, et cetera -- tend to have lifelong effects. It’s one of the justifications for removing children from a family where those things are occurring even in spite of parents who have some capacity to parent and continue to love those children. The fact that we know how damaging it is and that it produces lifelong problems at a very high incidence is one of the problems with those kind of disorders and history. (PC-T. 298-9). 50. Dr. Craig Beaver a forensic psychologist and neuropsychologist testified that Mr. Hodges suffers from brain dysfunction which affects him, that Mr. Hodges suffers from a verbal learning disability and that Mr. Hodges has suffered a lifelong struggle with depression (PC-T.

176-9, 180). Dr. Beaver explained: “I would view Mr. Hodges’ deficits as in the mild category;

but even though you put them in that category, they have a big impact on how a person operates

in the world, particularly under certain circumstances.” (PC-T. 179). Dr. Beaver based his

9Dr. Maher commented that in his capacity as someone who evaluates children for the Department of Children and Families, had he seen Mr. Hodges as a child, he would have recommended immediate removal from the family (PC-T. 297). 14

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opinion on neurological testing, background information and an interview with Mr. Hodges (PC- T. 140-193). Dr. Beaver also testified that individuals who suffer from depression do not handle stress well (PC-T. 181). 51. Considering the facts of the crime and Mr. Hodges’ mental make-up, Dr. Beaver agreed with Dr. Maher and concluded that Mr. Hodges was under the influence of extreme emotional distress at the time of the crime (PC-T. 188). 52. Both Dr. Beaver and Dr. Maher believed that while Mr. Hodges’ capacity to appreciate the criminality of his conduct may have been impaired, it did not rise to the level of the statutory mitigator (PC-T. 189, 293). 53. In rebuttal, the State presented the testimony of Dr. Sidney Merin. Dr. Merin concluded that Mr. Hodges suffered from an Axis I mental or emotional disorder, dysthymic disorder (Supp. T. 47). Dr. Merin explained that his diagnosis meant that Mr. Hodges suffered from a longstanding depression (Supp. T. 47). Dr. Merin stated that he diagnosed the depression in 1989 when he saw Mr. Hodges to determine his competency to be sentenced (Supp. T. 99- 100). Dr. Merin also believed that Mr. Hodges suffered from a personality disorder, not otherwise specified, with borderline features (Supp. T. 87-8). Dr. Merin described the childhood of an individual with borderline features: “Usually these people have felt and, in fact, may have been abandoned when they were kids, pretty much fending for themselves . . . inadequate parenting, inadequate affection . . . (Supp. T. 89).

Introduction to Claims On January 12, 2016, Hurst v. Florida, 136 S. Ct. 616 (2016), declared Florida’s capital sentencing scheme unconstitutional. On March 7, 2016, the governor signed into law

Chapter 2016-13, the legislature’s effort to rewrite § 921.141 in the wake of Hurst to cure the

constitutional deficiencies. It was intended to apply in any trial, penalty phase, retrial or

resentencing conducted in Florida, even when the homicide at issue had occurred prior to March

7, 2016. The revised sentencing statute provided that when 3 or more jurors voted in favor of a

life sentence, the judge could not impose a death sentence. For a death recommendation to be

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returned, 10 jurors must have voted in favor of a death sentence. On October 14, 2016, the Florida Supreme Court decided Perry v. State, __ So. 3d __, 2016 WL 6036982 (Fla. October 14, 2016), and declared the 10-2 provision contained in Chapter 2016-13 to be unconstitutional under Hurst v. Florida and Florida law. The court concluded that the Sixth and the Eighth Amendments required a unanimous jury verdict recommending a death sentence before one could be imposed. Accordingly, the jury must unanimously find that sufficient aggravators existed to justify a death sentence and that the aggravators outweighed the mitigating factors that are present. The jury must then unanimously reject mercy for the Defendant and vote in favor of a death sentence. If a unanimous death recommendation is not returned, a death sentence cannot be imposed. Thus, a life sentence is mandated if one or more jurors vote in favor of a life sentence due to a desire to be merciful even if the jury unanimously determined that sufficient aggravators existed and that they outweighed the mitigators that were present. Perry v. State, 2016WL 6036982 at *8, quoting Hurst v. State, 202 So.3d 40, 59 (Fla. 2016)) (“‘the penalty

phase jury must be unanimous in making the critical findings and recommendation that are

necessary before a sentence of death may be considered by the judge or imposed.’”)

(emphasis added). See also Hurst v. State, 202 So. 3d at 62 n.18. On the basis of the new Florida law arising from Hurst v. Florida, the enactment of Chapter 2016-13, Perry v. State, and Hurst v. State, Mr. Hodges files this motion to vacate and presents his claims for relief arising from the new Florida law resulting in the wake of Hurst v. Florida.

CLAIM I MR. HODGES’ DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLORIDA. This claim is evidenced by the following:

1. All other factual allegations in this motion and in Mr. Hodges’ previous motions

to vacate, and all evidence presented by him during his trial and previous postconviction

proceedings, are incorporated herein by specific reference.

2. This motion is filed with one year of the issuance of Hurst v. Florida, the

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enactment of Chapter 2016-13, the issuance of Perry v. State, and the issuance of Hurst v. State, all of which established new Florida law. The claims presented herein could not have been presented before the change in Florida law that these cases and statutory amendment brought about. The claims were simply not ripe before because the basis for the Defendant’s claims did not exist before the change in Florida law resulting from Hurst v. Florida, the enactment of Chapter 2016-13, the issuance of Perry v. State, and the issuance of Hurst v. State. Accordingly, this motion is timely. 3. The Sixth Amendment right enunciated in Hurst v. Florida and found applicable to Florida’s capital sentencing scheme guarantees that all facts that are statutorily necessary before a judge is authorized to impose death are to be found by a jury, pursuant to the capital

defendant’s constitutional right to a jury trial. Hurst v. Florida held, “Florida’s capital sentencing

scheme violates the Sixth Amendment . . . .” It invalidated Fla. Stat. §§ 921.141(2) and (3) as unconstitutional. Under those provisions, a defendant who had been convicted of a capital felony could be sentenced to death only after the sentencing judge entered written fact findings that: 1) sufficient aggravating circumstances existed that justify the imposition a death sentence, and 2) insufficient mitigating circumstances existed to outweigh the aggravating circumstances. Hurst, 136 S. Ct. at 620-21. Hurst v. Florida found Florida’s sentencing scheme unconstitutional because “Florida does not require the jury to make critical findings necessary to impose the death penalty,” but rather, “requires a judge to find these facts.” Id. at 622. On remand, the Florida Supreme Court held in Hurst v. State that Hurst v. Florida means “that before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find

that the aggravating factors are sufficient to impose death, unanimously find that the aggravating

factors outweigh the mitigating circumstances, and unanimously recommend a sentence of

death.” Hurst v. State, 202 So. 3d at 57.

4. Hurst v. Florida was a decision of fundamental significance that has resulted in

substantive and substantial upheaval in Florida’s capital sentencing jurisprudence. The

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fundamental change in Florida law that has resulted means that under Florida’s retroactivity test set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980),10 the decision in Hurst v. Florida must be given retroactive effect. Under Witt, Florida courts apply holdings favorable to criminal defendants retroactively provided that the decisions (1) emanate from the United States Supreme Court or the Florida Supreme Court, (2) are constitutional in nature, and (3) constitute “a development of fundamental significance.” Id. Hurst v. Florida and the change in Florida law made in its wake satisfy the first two Witt retroactivity factors—(1) Hurst v. Florida is a decision by the United States Supreme Court, and (2) its holding is constitutional in nature: the Sixth Amendment forbids a capital sentencing scheme that provides for judges, not juries, to make the factual findings that are statutorily required to authorize the imposition of a death sentence. 5. The third factor under Witt is also met because Hurst v. Florida “constitutes a development of fundamental significance,” i.e., it is a change in the law which is “‘of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of the United States Supreme Court’s decisions in Stovall v. Denno, 388 U.S. 293 (1967), and Linkletter v. Walker, 381 U.S. 618 (1965).’” Falcon, 162 So. 3d at 961 (quoting Witt, 387 So. 2d at 929) (internal brackets omitted). See also Walls v. State, __ So. 3d __, 2016 WL 6137287 (Fla. October 20, 2016). What must be considered are whether “[c]onsiderations of fairness and uniformity make it very ‘difficult to justify depriving a person of his liberty or his life under a process no longer considered acceptable and no longer applied to indistinguishable cases.’” Falcon, 162 So. 3d at 962 (quoting Witt, 387 So. 2d at 929). Accordingly, “[t]he doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications.” Witt, 387 So. 2d at 925.

6. Certainly, it can be shown that “ensuring fairness and uniformity” in Florida’s

10The Florida Supreme Court recently reaffirmed the continuing validity of Witt and its retroactivity test for determining when new decisions of the United States Supreme Court that are favorable to criminal defendants are to be applied to cases on collateral review in Florida’s state courts. See Falcon v. State, 162 So. 3d 954, 960 (Fla. 2015) (holding that Miller v. Alabama, 132 S. Ct. 2455 (2012) was to be applied retroactively). 18

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application of the death penalty means that Hurst v. Florida must be applied retroactively. The enactment of Chapter 2016-13 and the decision in Perry v. State demonstrate that capital defendants charged with murders that were committed long before Hurst v. Florida issued or Chapter 2016-13 was enacted will have Hurst v. Florida govern the capital sentencing procedures applicable at a retrial or resentencing occurring in the future, as well as those that have already occurred if a resulting death sentence was not final when Hurst v. Florida issued on January 12, 2016. For example, Douglas Ray Meeks will receive the benefit of Hurst v. Florida and the new Florida law when he is sentenced on two first degree murder convictions for two 1974 homicides. Meeks had separate trials on each homicide and was convicted at both trials of first degree murder. He received two death sentences. Both were affirmed in his direct appeals. Meeks v. State, 336 So. 2d 1142 (Fla. 1976); Meeks v. State, 339 So. 2d 186 (Fla. 1976). However, after Hitchcock v. Dugger, 481 U.S. 393 (1987), issued, the Florida Supreme Court ordered an evidentiary hearing on Meeks’ claims that Hitchcock error infected both death sentences. Meeks v. Dugger, 576 So. 2d 713 (Fla. 1991). Subsequently, the State stipulated that Meeks was entitled to new penalty phases due to the Hitchcock error. Meeks v. Moore, 216 F.3d 951, 959 (11th Cir. 2000) (“In its order, the [district] court observed that ‘the State of Florida stipulated that Meeks would be provided with a new penalty phase in both cases.’”). Because those new penalty phases have yet to occur, Hurst v. Florida and the new Florida law will govern the sentencing procedure in both cases. Even though Meeks was convicted of homicides that were committed in 1974, he can only get death sentences now if his juries unanimously make the requisite findings of fact and unanimously recommend a death sentence. 7. As another example, Jacob Dougan was convicted of a 1974 homicide and was

then sentenced to death. His conviction and death sentence were affirmed in his first direct

appeal which was a joint appeal with his co-defendant (Barclay) and was reported in the name of

the co-defendant. Barclay v. State, 343 So. 2d 1266 (Fla. 1977). Subsequently, the Florida

Supreme Court vacated the death sentence because of error under Gardner v. Florida, 430 U.S.

349 (1977), and remanded Barclay’s and Dougan’s cases for judge resentencing. Barclay v. State,

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362 So. 2d 657 (1978). After a death sentence was again imposed, it was affirmed in Dougan’s second direct appeal. Dougan v. State, 398 So. 2d 439 (Fla. 1981). Later on the basis of appellate counsel’s ineffective assistance in that direct appeal, the Florida Supreme Court granted Dougan habeas relief and ordered a third direct appeal. Dougan v. Wainwright, 448 So. 2d 1005 (Fla. 1984). In the third direct appeal, Dougan’s conviction was affirmed, but his death sentence was vacated and a jury resentencing was ordered. Dougan v. State, 470 So. 2d 697 (Fla. 1985). After another death sentence was imposed, the death sentence was affirmed in Dougan’s fourth direct appeal. Dougan v. State, 595 So. 2d 1 (Fla. 1992). Thereafter, Dougan filed a 3.850 motion in circuit court where it remained pending for some time. In 2013 after an evidentiary hearing was conducted, the trial court vacated Dougan’s conviction and ordered a new trial. In State v. Dougan, ___ So. 3d ___, 2016 WL 6137285 (Fla. Oct. 20, 2016), the Florida Supreme Court affirmed the order granting Dougan a new trial. Hurst v. Florida will govern at the retrial and as to the sentencing procedure if a first degree murder conviction is returned. As with Meeks, Dougan will be eligible for a death sentence for the 1974 murder only if the jury unanimously makes the necessary findings of fact and unanimously recommends a death sentence. 8. Another example is John Hardwick who was charged with a 1984 homicide. He was convicted and sentenced to death. His conviction and death sentence were affirmed in his direct appeal. Hardwick v. State, 521 So. 2d 1071 (Fla. 1988). Later, the Florida Supreme Court affirmed the denial of Hardwick’s 3.850 motion, while also denying Hardwick’s habeas petition. Hardwick v. Dugger, 648 So. 2d 100 (Fla. 1994). Hardwick then filed for habeas relief in federal court. After the district court granted habeas relief and ordered the death sentence vacated and a new penalty phase to be conducted due to trial counsel’s ineffective assistance, the Eleventh

Circuit affirmed the grant of habeas relief. Hardwick v. Sec’y Fla. Dep’t of Corr., 803 F.3d 541

(11th Cir. 2015). Currently, Hardwick’s case is pending in the trial court for a resentencing. As a

result, Hurst v. Florida and the new Florida law will govern the sentencing procedure and the

question of whether Hardwick can receive a death sentence for a 1984 murder. As with Meeks

and Dougan, Hardwick will be eligible for a death sentence only if his jury unanimously makes

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the requisite findings of fact and unanimously recommends a death sentence. 9. Yet another example is Paul Hildwin who was charged and convicted of a 1985 homicide. After a death sentence was imposed, his conviction and death sentence were affirmed in his first direct appeal. Hildwin v. State, 531 So. 2d 124 (Fla. 1988). See Hildwin v. Florida, 490 U.S. 638 (1989). In collateral proceedings, a resentencing was ordered. Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995). After the imposition of another death sentence, a second direct appeal resulted in another affirmance. Hildwin v. State, 727 So. 2d 193 (Fla. 1998). In the course of new collateral proceedings, Hildwin’s conviction was vacated by the Florida Supreme Court and a new trial ordered. Hildwin v. State, 141 So. 3d 1178 (Fla. 2014). Currently, Hildwin is awaiting his new trial. At that trial on a first degree murder charge for a 1985 homicide, Hurst v. Florida and the resulting new Florida law will govern at the retrial and as to the sentencing procedure if a first degree murder conviction is returned on the 1985 homicide. As with Meeks, Dougan, and Hardwick, he will be eligible for a death sentence only if his jury unanimously makes the requisite findings of fact and unanimously recommends a death sentence. 10. Still another example is Ana Cardona who was charged with a 1990 homicide. After she received a death sentence, her conviction and death sentence were affirmed on direct appeal. Cardona v. State, 641 So. 2d 361 (Fla. 1994), cert denied 513 U.S. 1160 (1995). Later, her conviction was vacated and a new trial ordered by the Florida Supreme Court during her appeal from the denial of 3.851 relief. Cardona v. State, 826 So. 2d 968 (Fla. 2002). After she was again convicted and again sentenced to death, the conviction and death sentence were again vacated and another new trial ordered by the Florida Supreme Court in Cardona’s second direct appeal. Cardona v. State, 185 So. 3d 514 (Fla. 2016). Currently, Cardona’s case is pending in the

circuit court as she awaits her new trial. At that trial on a first degree murder charge for a 1985

homicide, Hurst v. Florida and the resulting new Florida law will govern at the retrial and as to

the sentencing procedure if a first degree murder conviction is returned on the 1985 homicide. As

with Meeks, Dougan, Hardwick, and Hildwin, Cardona will be eligible for a death sentence only

if her jury unanimously makes the requisite findings of fact and unanimously recommends a

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death sentence. 11. There are also cases in which a capital defendant has had a death sentence vacated in collateral proceedings, a resentencing ordered, and another death sentence imposed which was pending on a direct appeal when Hurst v. Florida issued. In those circumstances, the capital defendant will receive the benefit of Hurst v. Florida because a final death sentence was not in place when Hurst issued. For example, Paul Beasley Johnson was convicted of first degree murder for three 1981 homicides and sentenced to death. His convictions and death sentences were affirmed in first direct appeal. Johnson v. State, 483 So. 2d 774 (Fla. 1983). However, habeas relief was granted on an appellate counsel ineffectiveness claim, and a new trial was ordered. Johnson v. Wainwright, 498 So. 2d 938 (Fla. 1986). His subsequent convictions and death sentences were affirmed in his second direct appeal. Johnson v. State, 608 So. 2d 4 (Fla. 1992). Later, the denial of 3.850 relief was affirmed. Johnson v. State, 769 So. 2d 990 (Fla. 2000). Then, habeas relief was denied. Johnson v. Moore, 837 So. 2d 343 (Fla. 2002). Next, the denial of a successive 3.851 motion was affirmed. Johnson v. State, 933 So. 2d 1153 (Fla. 2006) (table decision). But then in 2010, the denial of yet another successive 3.851 motion was reversed, Johnson’s death sentences were vacated, and a resentencing was ordered. Johnson v. State, 44 So. 3d 51 (Fla. 2010). Though Johnson again received death sentences, his third direct appeal was pending before the Florida Supreme Court when Hurst v. Florida issued on January 12, 2016. This means that Johnson will receive the benefit of Hurst and the resulting new Florida law even though the 1981 murders that he was convicted of were committed 35 years before the decision in Hurst was rendered. 12. With Meeks, Dougan, Hardwick, Hildwin, Cardona and Johnson all entitled to the

benefit of Hurst v. Florida and the resulting new Florida law for murders committed as early as

1974, ensuring uniformity and fairness in circumstances in Florida’s application of the death

penalty requires the retroactive application of Hurst and the resulting new Florida law. Moreover,

in Hurst v. State, the Florida Supreme Court noted that “[i]n requiring jury unanimity in [the

statutorily required fact] findings and in [the jury’s] final recommendation if death is to be

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imposed, we are cognizant of significant benefits that will further the administration of justice.” 202 So. 3d at 58. The Florida Supreme Court specifically noted that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty.” Id. at 59. Thus, the new Florida law will enhance the reliability of the death sentences that juries unanimously authorize. Clearly, uniformity and fairness require that Mr. Hodges be given the benefit of Hurst v. Florida and the resulting new Florida law. After all, “death is a different kind of punishment from any other that may be imposed in this country,” and “[i]t is of vital importance . . . that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice . . . .” Gardner v. Florida, 430 U.S. 349, 357-58 (1977). 13. The procedure employed when Mr. Hodges received a death sentence deprived him of his Sixth Amendment rights under Hurst v. Florida and the resulting new Florida law requiring the jury’s verdict authorizing a death sentence to be unanimous or else a life sentence is required. In the wake of Hurst v. Florida, the Florida Supreme Court has held that each juror is free to vote for a life sentence even if the requisite facts have been found by the jury unanimously. Hurst v. State, 202 So. 3d at 58, 62, n. 18. Individual jurors may decide to exercise “mercy” and vote for a life sentence and in so doing preclude the imposition of a death sentence. Perry v. State, 2016 WL 6036982 at *8. 14. In Hurst v. State, the Florida Supreme Court held that Sixth Amendment error under Hurst v. Florida would be subject to a strict harmless error test in which “the State bears an extremely heavy burden” of proving beyond a reasonable doubt that “the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to

Hurst’s death sentence in this case.” 202 So. 3d at 68. In other words, the State must prove

beyond a reasonable doubt that the jury’s failure to unanimously find not only the existence of

each aggravating factor, that the aggravating factors are sufficient, and that the aggravating

factors outweigh the mitigating circumstances had no effect on the death recommendations. The

State must also show beyond a reasonable doubt that no properly instructed juror would have

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dispensed mercy to Mr. Hodges by voting for a life sentence. All of these considerations must be factored into any evaluation of the reliability of Mr. Hodges’ death sentence and the likely outcome if a resentencing were conducted in conformity with Florida’s new capital sentencing procedure. 15. The Sixth Amendment error under Hurst v. Florida cannot be proven by the State to be harmless beyond a reasonable doubt in Mr. Hodges’ case. A harmless error analysis must be performed on a case-by-case basis, and there is no one-size fits all analysis; rather, there must be a “detailed explanation based on the record” supporting a finding of harmless error. See Clemons v. Mississippi, 494 U.S. 738, 753 (1990). Accord Sochor v. Florida, 504 U.S. 527, 540 (1992). 16. Mr. Hodges’ penalty phase jury did not return a verdict making any findings of fact. The only document returned by the jury was an advisory recommendation that a death sentence be imposed. And, this advisory verdict was not unanimous. Two jurors did not join in the death recommendation. One juror voting for a life sentence is all it takes, as explained in Hurst v. State, for a binding life recommendation mandating the imposition of a life sentence. That in and of itself shows that there must be doubt that a properly instructed jury would have unanimously returned a death recommendation. 17. Moreover, in the wake of Hurst v. Florida and the resulting new Florida law, the jury must be correctly instructed as to its sentencing responsibility under Caldwell v. Mississippi, 472 U.S. 320 (1985). In Hurst v. Florida, the Court wrote that “[t]he State cannot now treat the advisory recommendation by the jury as a necessary factual finding that Ring requires.” 136 S. Ct. at 622. This means that post-Hurst the individual jurors must know that the each will bear

the responsibility for a death sentence resulting in a defendant’s execution since each juror

possesses the power to require the imposition of a life sentence simply by voting against a death

recommendation. See Perry v. State. Mr. Hodges’s jury was told the exact opposite–that Mr.

Hodges could be sentenced to death regardless of the jury’s recommendation. As was explained

in Caldwell, jurors must feel the weight of their sentencing responsibility if the defendant is

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ultimately executed after no juror exercised his or her power to preclude the a death sentence. Indeed because the jury’s sense of responsibility was inaccurately diminished in Caldwell, the

Supreme Court held that the jury’s unanimous verdict imposing a death sentence in that case

violated the Eighth Amendment and required the resulted death sentence to be vacated even though the jury’s verdict there was unanimous. Caldwell, 472 U.S. at 341 (“Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.”). In Mr. Hodges’ case, two jurors voted for a life sentence. In this circumstance, the chances that at least one juror would not join a death recommendation if a resentencing were now conducted are likely given that proper Caldwell instructions would be required. The likelihood of one or more jurors voting for a life sentence increases when a jury is told a death sentence could only be authorized if the jury returned a unanimous death recommendation and that each juror had the ability to preclude a death sentence simply by refusing to agree to a death recommendation. Caldwell, 472 U.S. at 330

(“In the capital sentencing context there are specific reasons to fear substantial

unreliability as well as bias in favor of death sentences when there are state-induced

suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.”) (emphasis added). 18. The Florida Supreme Court has addressed whether or not error under Hurst v. Florida is harmless in four recent cases. In Hurst v. State, the court concluded that although “[t]he evidence of the circumstances surrounding this murder can be considered overwhelming and essentially uncontroverted,” “the harmless error test is not limited to consideration of only the evidence of aggravation, and it is not an ‘overwhelming evidence’ test.” 202 So. 3d at 69.

The court found that “the evidence of mitigation was extensive and compelling” but, absent an

interrogatory verdict, it could not “say with any certainty how the jury viewed that mitigation.”

Id. However, in light of the mitigation and the jury’s 7 to 5 death recommendation, the court

could not “find beyond a reasonable doubt that no rational jury, as the trier of fact, would

determine that the mitigation was ‘sufficiently substantial’ to call for a life sentence.” Id. at *25

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(quoting State v. Ring, 65 P.3d 915, 946 (Ariz. 2003)). 19. In Davis v. State, ___ So. 3d ___, 2016 WL 6649941 at *29 (Fla. Nov. 10, 2016), where the jury recommended two death sentences by 12 to 0 votes, the court found Hurst error harmless because the unanimous jury recommendations “allow us to conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravators to outweigh the mitigating factors.” The court based this conclusion in part on the jury instructions, including an instruction saying, “Regardless of your findings in this respect, however, you are neither compelled nor required to recommend a sentence of death.” Id. The court also relied upon “the egregious facts of this case” in which “Davis set two women on fire, one of who was pregnant, during an armed robbery, and shot in the face a Good Samaritan who was responding to the scene.” Id. Thus, the court concluded, “[t]he evidence in support of the six aggravating circumstances found as to both victims was significant and essentially uncontroverted.” Id. Earlier in the opinion in a discussion of proportionality, the court found, “This case is truly among the most aggravated and least mitigated.” Id. at *27. 20. In Franklin v. State, ___ So. 3d ___, 2016 WL 6901498 at *6 (Fla. Nov. 23, 2016), the court noted that “the jury that recommended death did not find the facts necessary to sentence him to death” because the jury returned a non-unanimous recommendation. The court rejected “the State’s contention that Franklin’s prior convictions for other violent felonies insulate Franklin’s death sentence from Ring and Hurst v. Florida.” Id. 21. In Johnson v. State, ___ So. 3d ___, 2016 WL 7013856 at *3 (Fla. Dec. 1, 2016), the jury recommended three death sentences by votes of 11 to 1. There were three victims in Johnson, as opposed to one here. The trial court found three aggravating factors in the deaths of

victims Evans and Beasley, including the cold, calculated and premeditated aggravator, and two

aggravating factors in the death of victim Burnham. Id. at *3 & n.1. The trial court also found

three statutory and ten nonstatutory mitigating circumstances. Id. at 3 & nn.2,3. The trial court

gave most of the mitigating factors slight or very slight weight. Id. In addressing whether the

Hurst error was harmless, the Florida Supreme Court first rejected “the State’s contention that

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Johnson’s contemporaneous convictions for other violent felonies insulate Johnson’s death sentences from Ring and Hurst v. Florida.” Id. at *3. The court found the case “obviously include[s] substantial aggravation”: Johnson set out on a drug-fueled hunt for money to purchase more drugs, so determined to succeed that “if he would have to shoot someone, he would have to shoot someone.” Johnson murdered a taxi driver who had been dispatched to pick up a fare, a Good Samaritan who Johnson tricked into believing that his car was broken down, and a deputy sheriff who had stopped Johnson as part of the manhunt for the perpetrator of Johnson’s two earlier murders. Id. at *4. However, the court also found that “the evidence of mitigation was extensive and compelling.” Id. Based on “a nonunanimous jury recommendation and a substantial volume of mitigation evidence,” the court could not conclude “‘beyond a reasonable doubt, that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency.’” Id. (quoting State v. Ring, 65 P.3d 915, 946 (Ariz. 2003)). 22. Under these cases, the State cannot show beyond a reasonable doubt that the Hurst error in Mr. Hodges’ case was harmless. First, as in Hurst v. State and Johnson, and as described above, Mr. Hodges’ case involved substantial and compelling mitigation. The trial court found non-statutory mitigation. Second, unlike in Davis, Mr. Hodges’ jury recommendation was not unanimous. Rather, two jurors, and one more than in Johnson, recommended a life sentence.11 23. Mr. Hodges’ death sentence stands in violation of the Sixth Amendment, Hurst v. Florida, Chapter 2016-13, Perry v. State, and Hurst v. State. His jury did not return a verdict making any findings of fact, his jury was not instructed that its death recommendation had to be unanimous, the jury’s death recommendation was not unanimous, the jury was not told that each

individual juror carried responsibility for whether a death sentence was authorized or a life

sentence was mandated, and the jurors did not know that they each were authorized to preclude a

death sentence simply to be merciful.

11Consideration must also be given to the fact that trial counsel would have tried the case differently under Hurst v. Florida and the resulting new Florida law.

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24. The Hurst error in Mr. Hodges’ case warrants relief. The State simply cannot show the error to be harmless beyond a reasonable doubt that no properly instructed juror would have refused to vote in favor of a death recommendation. Unless it is proven beyond a reasonable doubt that no juror would have voted for a life sentence and through such a vote mandated that Mr. Hodges receive a life sentence, Mr. Hodges’ death sentence must be vacated and a resentencing ordered. Because the State cannot meet its burden here, Rule 3.851 relief is required.

CLAIM II MR. HODGES’ DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDER HURST V. STATE AND SHOULD BE VACATED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Mr. Hodges’ previous motions to vacate, and all evidence presented by him during his trial and previous postconviction proceedings, are incorporated herein by specific reference. 2. In Hurst v. State, the Florida Supreme Court ruled that on the basis of the Eighth Amendment and on the basis of the Florida Constitution, the evolving standards of decency now requires jury “unanimity in a recommendation of death in order for death to be considered and imposed”. 202 So. 3d at 61. Quoting the United States Supreme Court, Hurst v. State noted, “the ‘clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures.’” Id. Then, from a review of the capital sentencing laws throughout the United States, Hurst v. State found that a national consensus reflecting society’s evolving standards of decency was apparent:

The vast majority of capital sentencing laws enacted in this country provide the clearest and most reliable evidence that contemporary values demand a defendant not be put to death except upon the unanimous consent of the jurors who have deliberated upon all the evidence of aggravating factors and mitigating circumstances.

Id. Accordingly, the Court in Hurst v. State concluded:

the United States and Florida Constitutions, as well as the administration of justice, are implemented by requiring unanimity in jury verdicts recommending

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death as a penalty before such a penalty may be imposed. Id. at 63. 3. What constitutes cruel and unusual punishment under the Eighth Amendment turns upon considerations of the “evolving standards of decency that mark the progress of a maturing society.” Atkins v. Virginia, 536 U.S. 304, 312 (2002).12 “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C. J., dissenting).” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). According to Hurst v. State, the evolving standards of decency are reflected in a national consensus that a defendant can only be given a death sentence when a penalty phase jury has voted unanimously in favor of the imposition of death. The United States Supreme Court has explained that the “near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not.” Burch v. Louisiana, 441 U.S. 130, 138 (1979). The near-uniform judgment of the states is that only a defendant who a jury unanimously concluded should be sentenced to death can receive a death sentence.13 As a result, those defendants who have had one or more jurors vote in favor of a life sentence are not eligible to receive a death sentence. This class of defendants, those who have had jurors formally vote in

12“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man . . . . The Amendment must draw its meaning from the evolving standards that mark the progress of a maturing society.” Atkins, 536 U.S. at 311-12 (internal quotation marks omitted). 13Former Florida Supreme Court Justice Raoul G. Cantero has written, “the national consensus demonstrates an overwhelming preference for requiring unanimity.” Raul G. Cantero & Robert M. Kline, Death is Different: The Need for Jury Unanimity in Death Penalty Cases, 22 St. Thomas L. Rev. 4, 11 (2009). Only three states—Alabama, Delaware, and Florida—permitted the imposition of a death sentence by a non-unanimous jury before the issuance of Hurst v. Florida. Justice Cantero explained the logical basis of the consensus: “If jury unanimity is required to convict a defendant of stealing a car, all the more should it be required to sentence a defendant to death.” Id. Also indicative of the nation’s current standard of decency, the American Bar Association recently adopted Resolution 108A, which urges all jurisdictions to require that “[b]efore a court can impose a sentence of death, a jury must unanimously recommend or vote to impose that sentence.” ABA Resolution 108A, available at http://americanbar.org /content/dam/aba/images/abanews/ 2015mm_hodres/108a.pdf (last visited Oct. 17, 2016). 29

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favor a life sentence, cannot be executed under the Eighth Amendment. 4. Mr. Hodges is within the protected class. At his penalty phase, three jurors voted in favor of the imposition of a life sentence. Under the Eighth Amendment, his execution would thus constitute cruel and unusual punishment. His death sentence must accordingly be vacated. 5. Under Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and under Witt v. State, the Florida Supreme Court’s ruling in Hurst v. State must be applied retroactivity. It is not constitutionally permissible to execute a defendant who is within a class that society’s evolving standards of decency has concluded to be ineligible for a death sentence. In Walls v. State, 2016 WL 6137287 at *6, the Florida Supreme Court found retroactivity must be accorded to an Eighth Amendment decision when it “places beyond the State of Florida the power to impose a certain sentence” against a category or subgroup of people. Here, the State of Florida under Hurst v. State cannot carry out a death sentence on capital defendants who had one or more of their jurors at their capital trial vote in favor of a life sentence and against recommending a death sentence. 6. Because two jurors at Mr. Hodges’ penalty phase formally voted against the imposition of a death sentence, Mr. Hodges’ sentence of death stands in violation of the Eighth Amendment and the Florida Constitution. Hurst v. State. Rule 3.851 relief must issue and Mr. Hodges’ death sentence must be vacated and a life sentence substituted.

CLAIM III THE DECISIONS IN HURST V. STATE AND PERRY V. STATE ALONG WITH THE RECENT ENACTMENT OF A REVISED SENTENCING STATUTE, ALL OF WHICH ARE NEW LAW THAT WOULD GOVERN AT A RESENTENCING AND REQUIRE THE JURY TO UNANIMOUSLY FIND THE STATUTORILY REQUIRED FACTS NECESSARY TO AUTHORIZE A DEATH SENTENCE AND ALSO REQUIRE THE JURY TO UNANIMOUSLY RECOMMEND A DEATH SENTENCE BEFORE THE JUDGE WOULD BE AUTHORIZED TO IMPOSE A DEATH SENTENCE, MUST BE PART OF THE SECOND PRONG ANALYSIS OF MR. HODGES’ PREVIOUSLY PRESENTED STRICKLAND CLAIMS. THE NEW LAW, DUE PROCESS PRINCIPLES, AND THE EIGHTH AMENDMENT ALL REQUIRE THIS COURT TO REVISIT MR. HODGES’ PREVIOUSLY PRESENTED CLAIMS AND DETERMINE WHETHER THE EVIDENCE PRESENTED TO SUPPORT EACH CLAIM AND ALL THE OTHER ADMISSIBLE EVIDENCE AT A FUTURE RESENTENCING WOULD PROBABLY RESULT IN A LIFE SENTENCE IN LIGHT OF THE NEW LAW THAT WOULD GOVERN AT A

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RESENTENCING, AND WHEN THE PROPER ANALYSIS IS CONDUCTED IT IS CLEAR THAT IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD RESULT, RULE 3.851 RELIEF IS REQUIRED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Mr. Hodges’ previous motions to vacate, and all evidence presented by him during his trial and previous postconviction proceedings, are incorporated herein by specific reference. 2. On March 7, 2016, Chapter 2016-13 was signed into law. It substantially revised Florida’s capital sentencing statute and constitutes new law cognizable in Rule 3.851 proceedings. As the Staff Analysis of the Criminal Justice Subcommittee accompanying HB 7101 (Chapter 2016-13) makes clear, its adoption was intended to cure the constitutional defect in Florida’s capital sentencing scheme identified in Hurst v. Florida, 136 S. Ct. 616 (2016).14

3. The Staff Analysis also discussed that the Petitioner in Hurst had argued that a simple majority vote by the jury violated the United States Constitution. See id. at 7 (“The

Court’s opinion did not address Hurst’s contention that a jury’s advisory verdict must be greater than a simple majority in order to comport with the Sixth and Eighth Amendments.”). Though

the Staff Analysis acknowledged that the Supreme Court did not specifically address Hurst’s argument, it noted HB 7101's requirement that at least ten jurors vote to recommend death before

a judge was authorized to impose a death sentence. See id. at 8 (“To recommend a sentence of death, a minimum of 10 jurors must concur in the recommendation. If fewer than 10 jurors

concur, a sentence of life imprisonment without the possibility of parole will be the jury’s recommendation to the court. If the jury recommends life imprisonment without the possibility of parole, the judge must impose the recommended sentence.”). 4. The new § 921.141 includes a new subsection (2) describing the jury’s function in a capital penalty phase:

14See House of Representatives Final Bill Analysis, H.B. 7101, at 8 (Fla. 2016) (“The bill amends ss. 921.141 and 921.142, F.S., to comply with the United States Supreme Court’s holding that a jury, not a judge, must find each fact necessary to impose a sentence of death.”). 31

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(2) Findings and recommended sentence by the jury.—This subsection applies only if the defendant has not waived his or her right to a sentencing proceeding by a jury. (a) After hearing all of the evidence presented regarding aggravating factors and mitigating circumstances, the jury shall deliberate and determine if the state has proven, beyond a reasonable doubt, the existence of at least one aggravating factor set forth in subsection (6). (b) The jury shall return findings identifying each aggravating factor found to exist. A finding that an aggravating factor exists must be unanimous. If the jury: 1. Does not unanimously find at least one aggravating factor, the defendant is ineligible for a sentence of death. 2. Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of death and the jury shall make a recommendation to the court as to whether the defendant shall be sentenced to life imprisonment without the possibility of parole or to death. The recommendation shall be based on a weighing of all of the following: a. Whether sufficient aggravating factors exist. b. Whether aggravating factors exist which outweigh the mitigating circumstances found to exist. c. Based on the considerations in sub-subparagraphs a. and b., whether the defendant should be sentenced to life imprisonment without the possibility of parole or to death. (c) If at least 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of death. If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole. § 921.141(2), Fla. Stat. (2016). 5. In Perry v. State, the Florida Supreme Court addressed the newly revised statute. While generally approving all other aspects of the newly revised statute, it held that the 10-2 provision was unconstitutional under Hurst v. Florida because to be constitutional the findings of

fact and the death recommendation necessary to authorize the imposition of a death sentence had

to be reached unanimously by the jury. Perry held:

to increase the penalty from a life sentence to a sentence of death, the jury must unanimously find the existence of any aggravating factor, that the aggravating factors are sufficient to warrant a sentence of death, that the aggravating factors outweigh the mitigating circumstances, and must unanimously recommend a sentence of death.

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2016 WL 6036982 at 8. In deciding whether to recommend a death sentence, jurors may choose to vote in favor of a life sentence to be merciful. Id. (“This final jury recommendation, apart from the findings that sufficient aggravating factors exist and that the aggravating factors outweigh the mitigating circumstances, has sometimes been referred to as the ‘mercy’ recommendation.”). This is the law that now governs when a death sentence is vacated and a resentencing is ordered in a capital case. In Hurst v. State, the Florida Supreme Court explained: Requiring a unanimous jury recommendation before death may be imposed, in accord with precepts of the Eighth Amendment and Florida’s right to trial by jury, is a critical step toward ensuring that Florida will continue to have a constitutional and viable death penalty law, which is surely the intent of the Legislature. The requirement will dispel most, if not all, doubts about the future validity and long- term viability of the death penalty in Florida. 202 So. 3d at 62. 6. In Hildwin v. State, 141 So.3d 1178, 1184 (Fla.2014), the Florida Supreme Court explained that when presented with qualifying newly discovered evidence: the postconviction court must consider the effect of the newly discovered evidence, in addition to all of the evidence that could be introduced at a new trial. Swafford v. State, 125 So.3d 760, 775-76 (Fla. 2013). In determining the impact of the newly discovered evidence, the court must conduct a cumulative analysis of all the evidence so that there is a ‘total picture’ of the case. In Swafford, the Florida Supreme Court indicated the evidence to be considered in evaluating whether a different outcome was probable included “evidence that [had been] previously excluded as procedurally barred or presented in another proceeding.” Swafford v. State, 125 So.3d at 775-76. The “standard focuses on the likely result that would occur during a new trial with all admissible evidence at the new trial being relevant to that analysis.” Id. Put simply, the analysis requires envisioning how a new trial or resentencing would look with all of the evidence

that would be available. Obviously, the law that would govern at a new trial must be part of the

analysis. Here, the revised capital sentencing statute would apply at a resentencing and would

require the jury to determine unanimously that sufficient aggravators exist and that they outweigh

the mitigators. It would also require the jury to unanimously recommend a death sentence before

the sentencing judge would be authorized to impose a death sentence. One single juror voting in

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favor of a life sentence would require the imposition of a life sentence. 7. This is new Florida law that did not exist when Mr.Hodges previously presented his Strickland claims. Accordingly, before the enactment of Chapter 2016-13 on March 7, 2016, and before the issuance of Perry v. State and Hurst v. State on October 14, 2016, Mr. Hodges could not present his claim as set forth herein because the new law that would govern any resentencing ordered in Mr. Hodges’ case was previously unavailable. Mr. Hodges’ previously presented claims must be re-evaluated in light of the new Florida law. 8. The Florida Supreme Court explained in Hurst v. State that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty.” 202 So. 3d at 59. See State v. Steele, 921 So. 2d 538, 549 (Fla. 2005), quoting State v. Daniels, 542 A.2d 306, 315 (Conn. 1988) (“[W]e perceive a special need for jury unanimity in capital sentencing. Under ordinary circumstances, the requirement of unanimity induces a jury to deliberate thoroughly and helps to assure the reliability of the ultimate verdict.”). The Court in Hurst v. State also held: If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process. 202 So. 3d at 60. Thus, reliability of Florida death sentences is the touchstone of the new Florida law requiring a unanimous jury to make the factual determinations necessary for the imposition of a death sentence and requiring the jury to unanimously return a death recommendation before a death sentence is authorized as a sentencing option. Implicit in the justification for the new Florida law is an acknowledgment that death sentences imposed under the old capital sentencing

scheme were (or are) less reliable. Before executions are carried out in a case in which the

reliability of a death sentence is subpar, a re-evaluation of such a death sentence in light of the

changes made by Chapter 2016-13, Hurst v. State, and Perry v. State is warranted. A previous

rejection of a death sentenced defendant’s Strickland claims should be re-evaluated in light of the

new requirement that juries must unanimously make the necessary findings of fact and return a

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unanimous death recommendation before a death sentence is even a sentencing option. The Strickland prejudice analysis requires a determination of whether confidence in the reliability of the outcome - the imposition of a death sentence - is undermined by the evidence the jury did not hear due to the Strickland error. The new Florida law should be part of the evaluation of whether confidence in the reliability of the outcome is undermined, particular since the touchstone of the new Florida law is the likely enhancement of the reliability of any resulting death sentence. 9. Because the new Florida law will apply at a retrial or resentencing, it constitutes new law within the meaning of Rule 3.851 because it extends a new right to capital defendants, i.e. the right to a life sentence if one juror votes in favor of a life sentence. This new law and the new right it extends requires this Court to revisit Mr. Hodges’ previously presented Strickland claims and determine whether a different result, i.e. a life sentence, is more likely than not. Here, with two jurors at the original penalty phase voting in favor of a life sentence, confidence in the reliability of the outcome is undermined on the basis of the Strickland claims. Accordingly, Mr. Hodges is entitled to Rule 3.851 relief on the basis of new Florida law set forth in Perry v. State and Hurst v. State. 10. Rule 3.851 relief is warranted. Mr. Hodges’ death sentence must be vacated and a new penalty phase ordered.

CONCLUSION AND RELIEF SOUGHT Based on the foregoing, Mr. Hodges prays for the following relief, based on his prima facie allegations showing violation of his constitutional rights: 1) a “fair opportunity” to demonstrate that his death sentence stands in violation of the Sixth and Eighth Amendments and Hurst v. Florida, Perry v. State and Hurst v. State; 2) a re-evaluation of his previously presented

Strickland claims in light of the new Florida law that would govern at a resentencing in order to

enhance the reliability of any resulting death sentence; 3) an opportunity for further evidentiary

development to the extent necessary; 4) authorization to proceed in forma pauperis; 5) leave to

supplement this motion should new claims, facts, or legal precedent become available to counsel;

and, 6) on the basis of the reasons presented herein, Rule 3.851 relief vacating his death sentence

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of death and substituting a life sentence on the basis of Claim II, or alternatively a new penalty phase proceeding on the basis of Claim I and Claim III.

CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851 (e) Pursuant to Fla. R. Crim P. 3.851(e)(2)(A) and (e)(1)(F), undersigned counsel hereby certifies that counsel has endeavored to fully discuss and explain the contents of this motion with Mr. Hodges, and that counsel to the best of her ability has complied with Rule 4-1.4 of the Rules of Professional Conduct, and that this motion is filed in good faith. I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished electronic service to Stephen Ake, Assistant Attorney General, Office of the Attorney General, Concourse Center 4, 3507 East Frontage Road, Suite 200, Tampa, FL 33607-7013, on this day of December, 2016.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected] Counsel for Mr. Hodges

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Filing # 50039786 E-Filed 12/14/2016 12:42:55 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. 89-2165 STATE OF FLORIDA, Plaintiff, v. GEORGE M. HODGES, Defendant. ______/ MOTION TO EXCEED PAGE LIMITATION The Defendant, GEORGE M. HODGES, by and through undersigned counsel, respectfully moves this Court to allow him to exceed the page limitation for his successive Rule 3.851 motion, filed simultaneously with this motion. In support, Mr. Hodges submits as follows: 1. Mr. Hodges is under a sentence of death. With this motion, Mr. Hodges is filing a successive motion to vacate his sentence of death pursuant to Rule 3.851. 2. Fla. R. Crim. P. 3.851(e)(2) directs that “a successive motion shall not exceed 25 pages, exclusive of attachments.” 3. Mr. Hodges’ successive motion is 36 pages in length. Mr. Hodges’ motion includes claims premised upon the January 12, 2016 ruling in Hurst v. Florida, 136 S. Ct. 616 (2016), the enactment of Chapter 2016-13 on March 7, 2016, and Perry v. State, 2016 WL 6036982 (Fla. Oct. 14, 2016), and Hurst v. State, 2016 WL 6036978 (Fla. Oct. 14, 2016). The excess pages are due to the significance of the new Florida law and Mr. Hodges’ need to

coherently set forth the significance of the new Florida law and the basis of his claims arising

from the new law.

4. The procedural, factual, and legal aspects of Mr. Hodge’s Hurst claim are

complex, particularly given the size of the record in this case and its lengthy procedural history.

Permitting Mr. Hodges to file a Rule 3.851 motion in excess of the prescribed limitation set forth in the rule allows Mr. Hodges to fully explain his claims of entitlement to relief.

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WHEREFORE, based on the foregoing, Mr. Hodges requests that this Court allow him to exceed the page limitation set forth in Rule 3.851(e)(2) in his accompanying successive Rule 3.851 motion. I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished

electronic service to all counsel of record on this 14th day of December, 2016.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

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Filing # 53171040 E-Filed 03/01/2017 08:43:38 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. 89-2165 STATE OF FLORIDA, Plaintiff, v. GEORGE M. HODGES, Defendant. ______/ AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851 COMES NOW, GEORGE MICHAEL HODGES, Defendant in the above-captioned action, and hereby files this successive motion to vacate under Fla. R. Crim. P. 3.851. This motion is filed in light the decisions in Hurst v. Florida, 136 S.Ct. 616 (2016), Hurst v. State, 202 So. 3d 40 (Fla. 2016), and Perry v. State, 2016 WL 6036982 (Fla. Oct. 14, 2016).

Procedural History 1. On January 8, 1987, Betty Ricks was shot (R. 256-58). Ricks died the next day of gunshot wounds to her head and neck (R. 283, 287). In 1989, Hodges, was indicted for first degree murder (R. 806, 815). Following a trial, a jury convicted Hodges (R. 650). 2. Subsequent to a penalty phase, the jury recommended death (R. 741-44); the Court sentenced Hodges to death (R. 893-99, 902-08). 3. On direct appeal, the Florida Supreme Court affirmed Hodges’ conviction and sentence. Hodges v. State, 595 So. 2d 929 (Fla. 1992).1 However, US Supreme Court vacated the

judgment and remanded in light of Espinosa v. Florida, 505 U.S. 1079 (1992). On remand, the

Florida Supreme Court affirmed Hodges’ sentence. Hodges v. State, 619 So. 2d 272 (Fla. 1993).

4. On June 20, 1995, Hodges filed a motion under Rule 3.850 (PC-R. 14-54). The

1Hodges raised the following grounds on appeal: 1) inadmissible hearsay was admitted at the guilt phase; 2) inadmissible hearsay was admitted at the penalty phase; 3) the improper admission of evidence; 4) failure to hold a competency hearing; 5) Hodges’ right to be present for all critical stages was violated; 6) a Booth claim; 7) improper prosecutorial argument; and 8) improper aggravating factors.

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Court granted an evidentiary hearing on four claims (PC-R. 210-30, 730-49). On June 6, 2001, the Court denied relief. Hodges appealed, and the Florida Supreme Court affirmed. Hodges v. State, 885 So. 2d 338 (Fla. 2003).2 5. On April 22, 2002, Hodges filed a habeas corpus petition in the Florida Supreme Court, which denied relief. Hodges v. State, 885 So. 2d 338 (Fla. 2003).3 On March 4, 2005, Hodges filed a second habeas corpus petition based upon Crawford v. Washington, 124 S.Ct. 1354 (2004). The petition was denied. Hodges v. Crosby, 907 So. 2d 1170 (Fla. 2005). 6. On January 4, 2006, Hodges filed a federal habeas corpus petition. The petition was denied. Hodges’ appealed was denied. Hodges v. Attorney General, 506 F.3d 1337 (11th Cir. 2007). Hodges’ petition for writ of certiorari was denied. Hodges v. McNeil, 129 S.Ct. 122 (2008).

7. On July 28, 2008, Hodges filed a successive postconviction motion in this

Court based on a lethal injection issue (PC-R2. 12). This Court issued an order summarily denying

the motion (PC-R2. 64-82). Hodges appealed, and the Florida Supreme Court affirmed. Hodges v.

State, SC09-575 (Fla. Jan. 11, 2010).

8. On October 21, 2010, Hodges filed a successive Rule 3.851 motion based upon

Porter v. McCollum, 130 S.Ct. 447 (2009). This Court denied Hodges’ motion. Hodges appealed,

and the Florida Supreme Court affirmed. Hodges v. State, 94 So. 3d 498 (Fla. 2012).

Relevant Facts

A. The Trial

1. In 1987, Betty Ricks was shot and killed as she exited her car at the Beverage Barn in

2Hodges raised the following issues on appeal: 1) trial counsel was ineffective at the penalty phase; 2) Hodges received ineffective assistance as to mental health issues; 3) Hodges was denied due process; 4) trial counsel was ineffective in failing to present evidence rebutting the cold, calculated, and premeditated aggravtor; 5) the jury instructions shifted the burden to Hodges to prove that death was inappropriate; 6) Florida’s death penalty statute is unconstitutional as applied; and 7) error in denying an evidentiary hearing on a number of claims. 3In his petition for writ of habeas corpus, Hodges repeated his claims regarding the burden shifting and aggravating factors. He also argued that appellate counsel rendered ineffective assistance by failing to challenge the introduction of collateral crime evidence and the exclusion of a potential juror. Hodges further claimed that Florida’s death penalty statute is unconstitutional. 2

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Plant City to begin work on January 10th. In 1989, the police arrested Hodges. 2. The testimony presented at the guilt phase of Hodges’ capital trial was entirely circumstantial. Over defense objections, the State presented evidence that Ricks had accused Hodges of exposing himself to her in November, 1986 (R. 296), and that she was adamant about prosecuting him (R. 297). Hodges was directed into an arbitration hearing and was scheduled to attend on January 8th (R. 488). That day he called the program and said there was no reason for him to go through the diversion program (R. 489). 3. Additionally, the State presented a witness, Janetta Hansen, who worked with Hodges at Zayre, which was located across the street from the Beverage Barn (R. 306). On the morning of the crime, while it was still dark, Hansen saw a truck that looked like Hodges’ near the

Beverage Barn, but she did not see the victim’s car (R. 311).

4. The medical examiner testified that Ricks had been shot twice (R. 288). Hodges

owned a shotgun, as did his step-son (R. 387).

5. Detective Miller testified that Hodges maintained that his step-son, Jesse Watson,

drove his car to school on the morning of the crime, but returned home around 8:30 a.m. because he

felt ill (R. 333). Hodges also surrendered his shotgun to the police (R. 333).

6. In order to refute Hodges’ statements, the State presented testimony from his family

members. Watson, testified that he awoke at 5:30 a.m. on the morning of the crime, when he heard

Hodges come home (R. 417). He testified that Hodges entered the house with his shotgun (R. 418).

Watson told Hodges that he was not feeling well and Hodges told him to drive his truck to school

(R. 420). Watson identified the shotgun in evidence as his (R. 416). 7. Watson testified that he lied to the police when he was interviewed about the crime (R. 425). And, Watson stated that Hodges admitted that he was involved in the crime, but that Watson did not believe him (R. 428). Watson was impeached with letters he wrote to Hodges, while he was incarcerated, admitting that he lied to the police about Hodges’ alleged confession and informing Hodges that the police and prosecutors were pressuring him (R. 430). Watson also admitted that he was a drug addict and that he was undergoing treatment for his problem (R. 434).

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8. Hodges’ wife, Harriet Hodges, testified that on the evening before the crime, she and Hodges stayed up late and played cards with friends (R. 382). When she awoke the next morning she heard Hodges speaking to Watson (R. 383). Harriet did not know whether, on the morning of the crime, Hodges left the house (R. 390). 9. Vickie Boatwright, Watson’s girlfriend, testified that Hodges told her in 1988, that he shot a woman and she died (R. 367). She also testified that Hodges stated that nothing happened because he gave the police Watson’s gun. On cross examination, Boatwright testified that she thought Hodges was kidding (R. 387). She also admitted that she did not tell the police about this conversation until after she was questioned twice and spoke to Watson (R. 371). 10. The defense presented evidence that a witness saw a truck, not Hodges’, in the

parking lot of the Beverage Barn around 6:00 a.m., on the morning of January 8th (R. 539-1).

11. Following the conviction, the penalty phase hearing lasted less than 45 minutes. The

State presented Det. Orzechowski and Horn as well as Debra Ricks, the victim's sister. All three of

the witnesses' testimony consisted of the hearsay testimony that the victim, told them that Hodges

approached her and attempted to convince her to drop the exposure charge (R. 681, 685, 689).

12. Hodges presented the testimony of two witnesses: Lula Hodges and Harold Stewart,

his mother and brother-in-law. Lula testified that George grew up in West Virginia; the family

moved around a lot; that George did not finish high school, but obtained a GED and that George's

brother drowned and "[i]t seemed to change [George] completely, because they was real close." (R.

694). Stewart testified that George was a good worker and a good father (R. 697-8).

13. The jury recommended death by a vote of 10 to 2 (R. 739). 14. The trial court sentenced Hodges to death finding: (1) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; and (2) The crime was committed in a cold, calculated and premeditated manner (R. 906-8). The court’s order stated: “the Court has attempted to find mitigating circumstances sufficient in weight to offset the [] aggravating circumstances . . . Mr. Hodges’ family has spoken as to his character and dedication to his family.” (R. 908).

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B. The Direct Appeal 15. During Hodges’ direct appeal, the Florida Supreme Court found that inadmissible hearsay was admitted during the guilt phase regarding the victim’s statements that she was adamant about prosecuting Hodges. Hodges v. State, 595 So. 2d 929, 931-2 (Fla. 1992). 16. Further, the Florida Supreme Court found that the prosecutor’s closing argument during the penalty phase was error. Id. at 933-934. However, the Court found that the error was harmless and there was no objection. Id. 17. The US Supreme Court vacated Hodges’ sentence and remanded in light of Espinosa v. Florida, 505 U.S. 1079. Hodges v. Florida, 506 U.S. 803 (1992). On remand, the Florida Supreme Court found that the issue was procedurally barred. Hodges v. State, 619 So. 2d 272, 273

(Fla. 1993).

C. Postconviction Proceedings

18. At his evidentiary hearing, Hodges presented several witnesses who provided

detailed testimony regarding his troubled childhood. These witnesses included his sister Karen Sue

Tucker, his brother, Robert Hodges, and family friend Cecilia Sanson. In addition, Dr. Richard Ball,

a sociologist, testified regarding the detrimental effects growing up in the poverty stricken

subculture of southern Appalachia where the Hodges lived. Also, Dr. Marlin Delaney, a

toxicologist, testified regarding the effects of lead poisoning from the Kanawha River.

19. Specifically, Tucker, testified that the family lived in a small place called Lock

Seven, which was located in St. Albans, West Virginia (PC-T. 25). Sanson testified that Lock Seven

is “mainly [a] community of welfare people, drunks, druggies” (PC-T. 103). Further, Ball described the area as a “subculture of the southern Appalachian” (PC-T. 460), and he explained that a subculture consists of a “pattern of values that are somewhat different from that prevailing in the rest of the country.” (PC-T. 460). 20. The area was populated with chemical plants and industry (PC-R. 26, 100). Chemical waste and pollutants were dumped into the Kanawha River by the plants causing water pollution so severe that it killed or caused mutations of the fish (PC-T. 109). The waste also effected the taste

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and created odor problems in public water supplies (PC-T. 38). Traces of cyanide, manganese, lead, mercury and cadmium were found in the river (PC-T. 274-5). 21. The witnesses also described Hodges’ dysfunctional and chaotic family life. Tucker testified that the family moved twenty to twenty-five times when she and her siblings were growing up (PC-T. 30). The houses were usually two-bedroom houses, where the five children shared a room and their parents had a room (PC-T. 40). Some of the houses did not have heat or indoor plumbing (PC-T. 39). All of the houses had rats in them (PC-T. 39). 22. Dr. Michael Maher testified that the family lived in extreme impoverishment “of a nature which in the modern United States is almost unheard of except in some very isolated areas.” (PC-T. 258). Ball testified that Lock Seven is ‘just about at the bottom of the ladder

socioeconomically’ (PC-T. 474). Tucker explained that the garbage dump was the only place the

Hodges “got anything, because, you know, we didn’t have a lot when we was growing up. I mean,

that was just simple. You know, daddy didn’t make a lot; and what he did, he drank.” (PC-T. 32).

23. The witnesses testified that the Hodges children wore feed sacks as clothes or took

clothes from a garbage dump (PC-T. 31). The dump smelled vile but the family also ate from it (PC-

T. 34, 38). Tucker and Robert explained that the chemical plants used the dump to deposit chemical

waste (PC-T. 34, 81). Sanson recalled when a dead baby was found in the dump (PC-T. 107).

24. As far as nutrition, the family ate mayonnaise sandwiches, contaminated fish from

the contaminated river, and potatoes and pinto beans (PC-T. 29, 31, 60, 76). Robert testified that the

Hodges’ children were often hungry: “Well, you’d get maybe two spoonfuls of beans; a small piece

of cornbread, about two inches square; and a couple of spoons of potatoes.” (PC-T. 78). 25. Like most impoverished families, the Hodges also did not have proper medical care. There was no money for medicine or insurance (PC-T. 84). When the children needed glasses they were provided by the Lions Club (PC-T. 55). Living near the dump, Hodges and his siblings were often afflicted with “fall” sores and infections that took several weeks to heal (PC-T. 35-6). Hodges suffered from whooping cough throughout his childhood (PC-T. 37). 26. The witnesses also testified about Hodges’ father. Tucker testified:

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A: My daddy drank all the time. * * * Q: So, you said he drank all the time? A: He drank up until I was about 18 years old and then quit. Q: I guess – could you – could you tell the judge what your dad was like when he was – had been drinking? A: He was mean. He was mean. I mean, I loved my dad, but he was mean. Q: Let’s talk about, you know, when your dad would get drunk, would – would he do anything to [George Hodges]? A: He got to us all. Q: Well, could you tell me what – what kind of things did your dad do? A: Mainly to my mother. You know, he would — he – he’d beat my mother and then [George Hodges] and then Robert (crying) – sorry. Q: That’s okay. A: And then [George Hodges] and Robert, and Randy would try to stop him. * * * A: But they would try to stop him and he would just pick them up like rags and shook them up against the wall; and he’d tell us if we didn’t shut up, we’d be next. And, I mean, you know, you watched him beat your mother. The blood would pour from her nose; and when he gets done, you know, she’s right there with him like nothing happened.

(PC-T. 41-2). Tucker testified that the family beatings occurred three to four times a week (PC-T.

43). Her mother would lie about the beatings when people asked about her bruises and marks (PC-

T. 42). Hodges witnessed the brutal beatings of his mother (PC-T. 87).

27. Hodges’ also beat his children with switches, belts or his bare hands (PC-T. 87, 304).

In addition, Mrs. Hodges would beat her children, especially, if they told anyone that their father

beat her and them (PC-T. 43). Even when Tucker called her aunt for assistance a few times, her

mother would turn out the lights so that it looked like no one was home (PC-T. 43).

28. Tucker also testified about the events that occurred surrounding her parents’

marriage and the exposure to her parents’ sexual relationships. She testified that her parents had

affairs (PC-T. 45). At one time, her father impregnated his sixteen year old girlfriend and “[s]he

lived with us. She had the baby. You know they stayed with us.” (PC-T. 45). 29. In addition to his dysfunctional family life, Hodges had a difficult childhood. “He really only had one friend, and he was – he was retarded” – Raymond Riffle (PC-T. 46). Hodges also had a speech defect (PC-T. 46). The children at school teased him about his speech and appearance (PC-T. 46-7). 30. Hodges was close to his brother, Randy (PC-T. 47). When Randy drowned in the

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Kanawha River, Hodges “was lost” (PC-T. 49). Robert described Hodges’ reaction as: “he just withdrew off by himself, wouldn’t hardly talk to anybody. He stayed by himself.” (PC-T. 90). 31. The dysfunction and chaos of the Hodges family took a toll on all of the children: Robert has an alcohol problem and has tried to commit suicide three times (PC-T. 91). He was told that he was depressed (PC-T. 93). Randy was hyperactive and suffered from ADHD which resulted in severe mood swings (PC-T. 68). He and George Hodges shared a close relationship, but an abusive one. Randy took advantage of his brother, engaging him in sex throughout their childhood and teenage years (Supp. T. 69). Hodges’ records illustrate three clear suicide attempts. Once he drank disinfectant. Another time he slit his wrists (PC-T. 162). On the third attempt, just after the penalty phase, he tried to hang himself (PC-T. 162).

32. Delaney confirmed the suspicions about the problems in the Kanawha River.

Delaney described the area near where the Hodges lived as a “cesspool” because of the “tremendous

amount of dumping” (PC-T. 128). Large volumes of hazardous wastes and other waste residuals

were disposed of in landfills, dumps, and surface impoundments that were not properly designed,

constructed, or maintained to adequately contain the toxic substances present in the wastes (Id.). As

a result, toxic pollutants were released to the air, surface water, and groundwater (PC-T. 278-80).

33. The lead in the water would uptake in the fish and “once you consume the fish,

you’ve taken in lead” (PC-T. 129). Delaney testified and Dr. Craig Beaver concurred that children

who ingest lead can develop neurological deficits, low IQ, behavioral problems and nervous system

problems (PC-T. 131, 231).

34. As to Hodges’ mental health Maher diagnosed Hodges with chronic depressive disorder, that he had brain damage and that Hodges suffered from “an extreme, beyond even what would normally be considered significant or dramatic, pattern of impoverishment and abuse as a child.” (PC-T. 257-8). 35. Maher also testified that Hodges’ history was filled with negative factors which impacted his mental health and behavior, including exposure to toxins (PC-T. 279), his malnutrition he suffered as a child (PC-T. 271), and his suicide attempts (PC-T. 283).

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36. Maher also concluded that Hodges was under the influence of an extreme mental or emotional disturbance at the time of the crime (PC-T. 292). He also concluded that there was evidence to rebut the cold, calculated and premeditated aggravating factor (PC-T. 300). 37. Beaver testified that Hodges suffers from brain dysfunction which affects him, that he suffers from a verbal learning disability and that he has suffered a lifelong struggle with depression (PC-T. 176-9, 180). Beaver agreed that Hodges was under the influence of extreme emotional distress at the time of the crime (PC-T. 188). 38. In rebuttal, the State presented the testimony of Dr. Sidney Merin. Merin concluded that Hodges suffered from dysthymic disorder (Supp. T. 47). Merin explained that his diagnosis meant that Hodges suffered from a longstanding depression (Supp. T. 47). Merin also believed that

Hodges suffered from a personality disorder, not otherwise specified, with borderline features

(Supp. T. 87-8). Merin described the childhood of an individual with borderline features: “Usually

these people have felt and, in fact, may have been abandoned when they were kids, pretty much

fending for themselves ... inadequate parenting, inadequate affection ... (Supp. T. 89).

CLAIM I MR. HODGES’ DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLORIDA.

This claim is evidenced by the following:

1. All other factual allegations in this motion and in Hodges’ previous motions to

vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. This motion is filed with one year of the issuance of Hurst v. Florida, Perry v. State, and Hurst v. State, all of which established new Florida law. Accordingly, this motion is timely. 3. The Sixth Amendment right enunciated in Hurst v. Florida and found applicable to Florida’s capital sentencing scheme guarantees that all facts that are statutorily necessary before a judge is authorized to impose death are to be found by a jury, pursuant to the capital defendant’s constitutional right to a jury trial. Hurst v. Florida held, “Florida’s capital sentencing scheme violates the Sixth Amendment . . . .” On remand, the Florida Supreme Court held in Hurst v. State

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that Hurst v. Florida means “that before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.” Hurst v. State, 202 So. 3d at 57. 4. Hurst v. Florida changed Florida law and established that capital defendants had a constitutional right to a jury that finds the facts statutorily necessary to authorize a judge to impose a death sentence. See Rule 3.851(d)(2)(B) (“the fundamental constitutional right asserted ... has been held to apply retroactively”). In Mosley, the Florida Supreme Court held: “we conclude that Hurst should apply retroactively to Mosley.” 2016 WL 7406506 at *18. See also Armstrong v. State, 2017

WL 224428 (Hurst applied retroactively to collateral appeal without discussion). This means that

Rule 3.851(d)(2)(B) has been satisfied and motions to vacate may be “considered” that rely on the

constitutional right recognized in Hurst v. Florida ...” Mosley does indicate that whether a specific

defendant receives the benefit of Hurst v. Florida requires a case-by-case analysis.

5. In Mosley v. State4, the Florida Supreme Court determined that Hurst v. Florida and

Hurst v. State constituted a change in Florida law that was to be applied retroactively to Mosley and

required the Court to vacate Mosley’s death sentence and remand for a resentencing.

6. In Mosley, the Florida Supreme Court held that under Florida law, there are two

separate and distinct approaches for conducting retroactivity analysis. 2016 WL 7406506 at *20

n.13. The first approach to retroactivity discussed in Mosley was explained as follows:

This Court has previously held that fundamental fairness alone may require the retroactive application of certain decisions involving the death penalty after the United States Supreme Court decides a case that changes our jurisprudence. For example, in James, this Court

4In Mosley v. State, the Florida Supreme Court referenced the decision in Asay v. State, 2016 WL 7406538 (Fla. Dec. 22, 2016), which issued the same day as Mosley. The Court in Mosley noted that Asay had not extended the benefit of the change in law created by Hurst v. Florida to Asay. See Asay v. State, 2016 WL 7406538 at *13 (“we conclude that Hurst should not be applied retroactively to Asay's case”). However, Mosley noted that the Court in Asay had not foreclosed the retroactive application of Hurst v. Florida to other capital postconviction defendants. Thus, Mosley is a follow-up opinion to Asay that makes clear that Asay is limited in its scope and merely concludes that Asay is not entitled to the benefit of Hurst v. Florida. 10

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reviewed whether the United States Supreme Court's decision in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), should apply retroactively. James, 615 So.2d at 669. Although pre-Espinosa this Court had rejected claims that our jury instruction on the extremely heinous, atrocious or cruel (HAC) aggravator was unconstitutionally vague, the United States Supreme Court disagreed and held in Espinosa that our instruction was, indeed, unconstitutionally vague. 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854. This Court then held that defendants who had raised a claim at trial or on direct appeal that the jury instruction pertaining to the HAC aggravating factor was unconstitutionally vague were entitled to retroactive application of Espinosa. James, 615 So.2d at 669. While this Court did not employ a standard retroactivity analysis in James, the basis for granting relief was that of fundamental fairness. Id. This Court reasoned that, because James had raised the exact claim that was validated by the United States Supreme Court in Espinosa, “it would not be fair to deprive him of the Espinosa ruling.” Id. Mosley, 2016 WL 7406506 at * 19 (emphasis added). It is clear that the fundamental fairness approach requires a case-by-case determination of which collateral litigants will get the benefit of the change in law retroactively.

7. The second approach to retroactivity discussed in Mosley is the analysis set forth in

Witt v. State, 387 So. 2d 922 (Fla. 1980). It was also discussed in Asay where the per curium

opinion said: “When considering the three factors of the Stovall/Linkletter test together, we

conclude that they weigh against applying Hurst retroactively to all death case litigation in

Florida.”5 Asay v. State, 2016 WL 7406538 at *13 (emphasis added). Prior to the issuance of Asay,

there was no precedent for partial retroactivity under Witt or under the Stoval/Linkletter test. Witt

retroactivity was binary, either a decision was to applied retroactively or it was not.6 In Mosley the

Court also employed Witt and wrote: “Because Florida's capital sentencing statute has essentially

been unconstitutional since Ring in 2002, fairness strongly favors applying Hurst, retroactively to

that time.”7 2016 WL 7406506 at *23. The Court’s Witt analysis in Mosley noted that:

5The Hurst decision at issue in the Witt analysis conducted by the Florida Supreme Court in Asay was Hurst v. Florida. Asay v. State, 2016 WL 7406538 at *13 (“we conclude that this factor also weighs heavily against applying Hurst v. Florida retroactively to Asay”). 6Justice Canady did not join the per curium opinion in Asay; he merely concurred in the result. However in Mosley, he wrote a dissenting opinion and addressed what had been done to the Witt standard: “Based on an indefensible misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in tatters, the majority unjustifiably plunges the administration of the death penalty in Florida into turmoil ...” Mosley, 2016 WL 7406506 at *32.

7As noted in Hurst v. Florida, Florida’s capital sentencing statute and the case law approving it (continued...) 11

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holding Hurst retroactive would only affect the sentences of capital defendants. Further, in addition to the fact that convictions will not be disturbed, not every defendant to whom Hurst applies will ultimately receive relief. As we determined in Hurst, each error should be reviewed under a harmless error analysis to individually determine whether each defendant will receive a new penalty phase. Hurst, 202 So.3d at 67–68; James, 615 So.2d at 669. 2016 WL 7406506 at *24-25. This logic applies in Hodges’ case. The retroactive application of Hurst to Hodges’ death sentence “will only impact the sentence of death”. 8. In Mosley, the Florida Supreme Court concluded that under either the fundamental fairness approach to retroactivity or under the Witt analysis, Hurst v. Florida and Hurst v. State were a changes in law that were to be retroactively applied: The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So.3d at 50–51, 55. Applying Hurst retroactively to Mosley, in light of the rights guaranteed by the United States and Florida Constitutions, supports basic tenets of fundamental fairness. And it is fundamental fairness that underlies the reasons for retroactivity of certain constitutionally important decisions, especially those involving the death penalty.

2016 WL 7406506 at *25.8 The Sixth Amendment right enunciated in Hurst v. Florida found

applicable to Florida’s capital sentencing scheme and at issue in Hurst v. State, guarantees that all

(...continued) as constitutional was irreconcilable with Apprendi v. New Jersey, 530 U.S. 466 (2000). Hurst v. Florida, 136 S. Ct. at 623 (The case law upholding the statute “was wrong, and irreconcilable with Apprendi.”). The significance of Apprendi was not addressed in Mosley or Asay.

8In Asay v. State, the Florida Supreme Court ruled that Hurst v. Florida was not to be applied retroactively to Asay’s case. Asay v. State, 2015 WL 7406538 at *13 (“we conclude that Hurst should not be applied retroactively to Asay's case, in which the death sentence became final before the issuance of Ring.”). Despite this statement, two justices indicated that Hurst v. Florida would be applied to judicial override cases that were “final before the issuance of Ring” and possible other cases “final before the issuance of Ring.” See Id. at *20 (Labarga, C.J., concurring) (“The impact of Hurst v. Florida and Hurst upon their death sentences is an issue for another day.”); Id. at *25 (Pariente, J., dissenting) (“Even under the majority’s holding today, relief should be granted to two Florida death row inmates whose sentences were a result of a judicial override”). Two other justices indicated that pre-Ring defendants may be able to have Hurst v. Florida apply retroactively to their cases. Id. at *21 (Lewis, J., concurring in result) (Pre-Ring “defendants who challenged Florida’s unconstitutional sentencing scheme based on the substantive matters addressed in Hurst are entitled to consideration of that constitutional challenge.”); Id. at 27 (Perry, J., dissenting) (“I would find that Hurst v. Florida applies retroactively, period.”). In Mosley v. State, a majority of the Florida Supreme Court embraced Justice Lewis’ position in his concurrence in Asay, that pre-Ring defendants were entitled to the retroactive application of Hurst v. Florida in their cases if fundamental fairness warranted it. Mosley, 2016 WL 7406506 at *19. 12

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facts that are statutorily necessary before a judge becomes authorized to impose death must be found by a jury pursuant to a capital defendant’s constitutional right to a jury trial. In Hurst v. State, the Florida Supreme Court held that Hurst v. Florida means that a capital case’s jury “must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable

doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.” Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016). 9. As to the question of whether he should receive the benefit of the change in Florida law that occurred when Hurst v. Florida overruled Spaziano v. Florida and Hildwin v. Florida, Hodges first addresses the fundamental fairness approach as to whether to apply a change in law retroactively. This approach was set forth in Mosley v. State, but has long been recognized. See Moreland v. State, 582 So. 2d 618, 619 (Fla. 1991); Fannin v. State 751 So. 2d 158, 161 (Fla. 2d

DCA 2000); Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992); Wright v. State, 604 So. 2d 1248,

1249 (Fla. 4th DCA 1992). Of course, fundamental fairness is an equitable concept. See Treadwell

v. Town of Oak Hill, 175 So. 2d 777, 779 (Fla. 1965) (“courts of equity do have power in proper cases to require that to be done which in law should be done”); Degge v. First State Bank of Eutis,

199 So. 564, 441 (Fla. 1941) (“Equity came into existence as a means of granting justice in cases

wherein the law by its rigid principles was deficient. It has been truly called a court of conscience. It should not be shackled by rigid rules of procedure and thereby preclude justice being administered

according to good conscience.”).

10. Turning to Hodges’ death sentence, fundamental fairness demands that Hurst v. Florida be applied retroactively to his case. As explained earlier, fundamental fairness can be shown in a variety of ways. One way involves looking at what the jury was told concerning its role at the penalty phase and what that means under Hurst v. Florida. During the trial proceedings, Hodges’ jury was repeatedly told that the judge was the sentencer. The jury’s role was merely to return an advisory recommendation by a majority vote. The jury was continuously told that they were doing nothing more than making a recommendation to the trial court.

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11. At the time of Hodges’ 1989 trial, what the jury was told may have been consistent with the procedure set forth in Florida law at that time. See Combs v. State, 525 So. 2d 853 (Fla. 1988). But now under the Sixth Amendment, it has been recognized that the procedure was unconstitutional. See Hurst v. Florida, 136 S. Ct. at 622 (“The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.”). This is because it was recognized in Caldwell v. Mississippi, 472 U.S. 320 (1985), that diminishing an individual juror’s sense of responsibility for the imposition of a death sentence creates a bias in favor of a juror voting for death. Caldwell, 472 U.S. at 330 (“In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an

appellate court.”) (emphasis added).

12. Indeed in Caldwell v. Mississippi, a unanimous jury verdict in favor of a death

sentence was vacated because the jury was not correctly instructed as to its sentencing

responsibility.9 Caldwell held: “it is constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that the responsibility for

determining the appropriateness of the defendant's death rests elsewhere.” Id. 328-29. Jurors must

feel the weight of their sentencing responsibility; they must know that if the defendant is ultimately

executed it will be because no juror exercised her power to preclude a death sentence. Part of

feeling the weight of a juror’s sentencing responsibility is dependent upon knowing of their

individual authority to preclude a death sentence. See Blackwell v. State, 79So. 731, 736 (Fla. 1918)

9In Caldwell, the prosecutor responding to defense counsel’s argument had stated in his closing argument to the jury: “Now, they would have you believe that you're going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable.” Id. at 325. Because the jury’s sense of responsibility was improperly diminished by this argument, the Supreme Court held that the jury’s unanimous verdict imposing a death sentence in that case violated the Eighth Amendment and required the death sentence to be vacated. Caldwell, 472 U.S. at 341. Caldwell explained: “Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to ‘send a message’ of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can more freely ‘err because the error may be corrected on appeal.’” Id. at 331. 14

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(prejudicial error found in “the remark of the assistant state attorney as to the existence of a Supreme Court to correct any error that might be made in the trial of the cause, in effect told the jury that it was proper matter for them to consider when they retired to make up their verdict. Calling this vividly to the attention of the jury tended to lessen their estimate of the weight of their responsibility, and cause them to shift it from their consciences to the Supreme Court.”). Where the jurors’ sense of responsibility for a death sentence is either not explained or is in fact diminished, a jury’s unanimous verdict in favor of a death sentence violates the Eighth Amendment and the resulting death sentence cannot stand. Caldwell, 472 U.S. at 341. 13. While Caldwell was the law before Hodges’ death sentence became final, it was ruled to be inapplicable to Florida capital proceedings by the Florida Supreme Court. See Darden v.

State, 475 So.2d 217, 221 (Fla. 1985). In Darden, the Court held that under Florida’s sentencing

scheme, the jury was not responsible for the sentence and thus Caldwell was not applicable to jury

instructions in Florida telling the jury that its role was advisory:

In Caldwell, the Court interpreted comments by the state to have misled the jury to believe that it was not the final sentencing authority, because its decision was subject to appellant review. We do not find such egregious misinformation in the record of this trial, and we also note that Mississippi's capital punishment statute vests in the jury the ultimate decision of life or death, whereas, in Florida, that decision resides with the trial judge.

After Darden, a Caldwell based claim that instructing the jury it was advisory violated the Eighth

Amendment was not a meritorious claim as explained in Darden. While some attorneys were

willing to nonetheless bring Caldwell claims based upon such jury instructions, others viewed it to

be a violation of the governing bar rules to present such a claim.

14. It is fundamentally unfair to punish Hodges by denying him the benefit of Hurst v. Florida because any of his lawyers failed to present a Caldwell challenge to the jury instructions about its role being an advisory one. Of course, this is not the first time that in the context of a change in law, attorneys had stopped raising claims that had been found to be meritless under controlling authority. Hitchcock v. Dugger, 481 U.S. 393 (1987), recognized that after Lockett v. Ohio, 438 U.S. 586 (1978), the Florida Supreme Court had erroneously not required the advisory jury to be instructed that nonstatutory mitigation was to be considered and weighed when returning

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its sentencing recommendation. In the years between Lockett and Hitchcock, challenges to the jury instructions on the failure to provide such an instruction were held to be meritless. As a result, many attorneys did not challenge the erroneous instructions because they felt constrained by controlling case law. In recognition of this fact, the Florida Supreme Court declared Hitchcock retroactive under Witt v. State and explained: [T]he state argues that even though the United States Supreme Court ruling is contrary to the holding of the Eleventh Circuit, the procedural default rule applies. We reject this argument. In Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), we held that only a state supreme court or the United States Supreme Court can effect a sufficient change of law to merit a subsequent post-conviction challenge to a final conviction and sentence. Id. at 931. We had previously ruled in a similar fashion as the Eleventh Circuit. Hitchcock v. State, 432 So.2d 42 (Fla.1983). We find that the United States Supreme Court's consideration of Florida's capital sentencing statute in its Hitchcock opinion represents a sufficient change in the law that potentially affects a class of petitioners, including Thompson, to defeat the claim of a procedural default. Thompson v. Dugger, 515 So. 2d 173, 175 (Fla. 1987) (emphasis added). The reasoning of

Thompson applies equally to Hodges’ circumstances.

15. But even more problematic and fundamentally unfair than the Caldwell situation is

the fact that at the time of Hodges’ direct appeal, Spaziano v. Florida, 468 U.S. 447 (1984), was the

governing law. There, the US Supreme Court was presented with a case where a jury recommended

a life sentence and the judge overrode the life recommendation and imposed a death sentence. The

US Supreme Court ruled:

In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

Id. at 464. The decision in Spaziano definitively put the Sixth Amendment argument regarding the Florida jury’s advisory role and the judge’s fact finding responsibilities to bed. Rule 4-3.1 of the Florida Rules of Professional Conduct would seemingly foreclose challenges or arguments that the US Supreme Court got it wrong in Spaziano. See Mosley v. State, 2016 WL 7406506 at *32 (“The concept of fundamental error is based on the recognition that some matters are so important that it is fundamentally unfair for the client to suffer as a result of counsel's oversight.”). Because Hodges’

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counsel were constrained by Spaziano v. Florida and by Rule 4-3.1, they were required to not present arguments and challenges that lacked merit. In those circumstances, fundamental fairness requires this Court to deem the issue raised when controlling case law and bar rules precluded the presentation of the meritless arguments. 16. It was not until Apprendi in 2000 that US Supreme Court precedent clearly broke against the logic and reasoning of Spaziano v. Florida and Hildwin v. Florida. An Apprendi challenge to Florida’s capital sentencing scheme was presented by Greg Mills in 2001 while a death warrant was pending against him.10 In Mills v. Moore, 786 So. 2d 532 (Fla. 2001), the Florida Supreme Court rejected Mills’ claim that Florida’s capital sentencing scheme violated the Sixth Amendment principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).11 The Florida

Supreme Court wrote: “Because Apprendi did not overrule Walton[ v.Arizona], the basic scheme in

Florida is not overruled either.” Id. at 537. In denying Mills’ Apprendi claim, the Florida Supreme

Court denied it on the merits - it did not apply a procedural bar.12

17. Then in late 2001, death warrants were signed for Linroy Bottoson and Amos King.

Both Bottoson and King raised Apprendi challenges to their death sentences. Bottoson presented an

Apprendi claim in a successive habeas petition filed in the Florida Supreme Court more than five

months before Ring v. Arizona was decided. The Florida Supreme Court denied the Apprendi claim

in a successive habeas petition ruling on the merits and without applying a procedural bar:

We have consistently rejected similar claims and have decided this issue adversely to Bottoson's position. See King v. State, 808 So.2d 1237 (Fla. 2002), stay granted, 534 U.S. 1118, 122 S.Ct. 932, 151 L.Ed.2d 894 (2002); Mills v. Moore, 786 So.2d 532, 536-537 (Fla. 2001), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001); see also Brown v. Moore, 800 So.2d 223 (Fla. 2001) (rejecting claims that aggravating circumstances are

10Mills conviction and death sentence were final on February 24, 1986. See Mills v. State, 476 So. 2d 172 (Fla. 1985), cert denied, 475 U.S. 1031 (1986).

11The Supreme Court held in Apprendi that under the Sixth Amendment, “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.” 530 U.S. at 490. Apprendi indicated that this had been the holding in Jones v. United States, 526 U.S. 227 (1999).

12After the decision in Mills v. Moore, Mills presented newly discovered evidence which resulted in relief. See State v. Mills, 788 So. 2d 249 (Fla. 2001). 17

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required to be charged in indictment, submitted to jury during guilt phase, and found by unanimous jury verdict); Mann v. Moore, 794 So.2d 595, 599 (Fla. 2001). Thus, we conclude that Bottoson is not entitled to relief on this claim. Bottoson v. State, 813 So. 2d 31, 36 (Fla. 2002). 18. King presented his Apprendi claim in a successive Rule 3.851 motion. In his appeal from the denial of his motion, the Florida Supreme Court denied the Apprendi claim on the merits: King's sixth contention, that Apprendi applies to Florida's capital sentencing statute and the maximum sentence under the statute is death, has been decided adversely to King's position. See Mills v. Moore, 786 So.2d 532, 537-38 (Fla.2001), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001); see also Brown v. Moore, 800 So.2d 223 (Fla.2001) (rejecting claims that aggravating circumstances are required to be charged in indictment, submitted to jury during guilt phase, and found by unanimous jury verdict); Mann v. Moore, 794 So.2d 595, 599 (Fla.2001) (same). King v. State, 808 So. 2d 1237, 1245-46 (Fla. 2002). Thus, the Apprendi claims presented by

Bottoson and King were both denied on the merits - and not on the basis of a procedural bar.

19. On June 24, 2002, the US Supreme court issued its decision in Ring v. Arizona and

overruled Walton v. Arizona as it was irreconcilable with Apprendi. Ring, 536 U.S. at 609.

20. After Ring v. Arizona issued, Bottoson and King both filed successive habeas

petitions in the Florida Supreme Court on July 5, 2002. The Florida Supreme Court denied the Ring

claims presented in the petitions on October 24, 2002. The opinions denying Bottoson and King

relief were the Florida Supreme Court’s first opinions addressing Ring v. Arizona and claim, and the

opinions denied the claim in both cases on the merits even though the claim in each case was

presented in a successive habeas petition. Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v.

Moore, 831 So. 2d 143 (Fla. 2002). The October 24, 2002, opinion in Bottoson v. Moore was

specifically identified in Hurst v. State as one that had been abrogated by Hurst v. Florida. Hurst v. State, 202 So. 3d at 44 (“The Supreme Court's ruling in Hurst v. Florida also abrogated this Court's decisions in Tedder v. State, 322 So.2d 908 (Fla.1975), Bottoson v. Moore, 833 So.2d 693 (Fla.2002), Blackwelder v. State, 851 So.2d 650 (Fla.2003), and State v. Steele, 921 So.2d 538 (Fla.2005), precedent upon which this Court has also relied in the past to uphold Florida's capital sentencing statute.”) (emphasis added). Thus, it is now recognized that the ruling in Bottoson upholding his death sentence and allowing his execution to occur was wrongly decided. The Florida

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Supreme Court in Mills v. Moore in 2001 had rejected the Apprendi claim because Walton v. Arizona had not been abrogated. Then when it was overruled in Ring v. Arizona, the Florida Supreme Court in Bottoson in 2002 abandoned the position taken in Mills v. Moore, and instead relied upon the US Supreme Court’s failure to mention Hildwin v. Florida, when overruling Walton v. Arizona even though the reasoning in Walton had rested on Hildwin v. Florida. The Florida Supreme Court claimed that it was up to the US Supreme Court to overturn Hildwin and Spaziano though those decisions were irreconcilable with Apprendi. 21. Both Bottoson and King lost and failed to get habeas relief from the Florida Supreme Court because that court failed to take the reasoning of Apprendi and Ring and apply it. Instead, the Florida Supreme Court hid behind Hildwin v. Florida and left it up to the US Supreme Court to

decide whether to let the executions of Bottoson and King proceed.

22. Since Ring v. Arizona issued, there have been forty-one capital defendants executed

in Florida.13 Had the Florida Supreme Court recognized that Apprendi and Ring were irreconcilable

with Hildwin and Spaziano, both Bottoson and King would have been afforded resentencings, and

collateral relief would have been available to all death row inmates.

23. Furthermore, until the Florida Supreme Court issued Johnson v. State, 904 So. 2d

400 (Fla. 2005), every Apprendi claim and every Ring claim presented to it in collateral proceedings

was denied on the merits. No procedural bars were applied. Then on April 28, 2005, the Florida

Supreme Court held in Johnson v. State that Ring v. Arizona not only was inapplicable to current

capital proceedings and had no relevance to any death sentence under review in a direct appeal,

Ring also was to be not applied retroactively. After the issuance of Johnson v. State, the Florida

13The forty-one capital defendants executed after Ring v. Arizona issued were: Rigoberto Sanchez-Velasco, Aileen Wournos, Linroy Bottoson, Amos King, Newton Slawson, Paul Hill, Johnny Robinson, John Blackwelder, Glen Ocha, Clarence Hill, Arthur Rutherford, Danny Rolling, Angel Diaz, Mark Schwab, Richard Henyard, Wayne Tompkins, John Marek, Martin Grossman, Manuel Valle, Oba Chandler, Robert Waterhouse, David Gore, Manuel Pardo, Larry Mann, Elmer Carroll, William Van Poyck, John Ferguson, Marshall Gore, William Happ, Darius Kimbrough, Askari Muhammad, Juan Carlos Chavez, Paul Howell, Robert Henry, Robert Hendrix, John Henry, Eddie Wayne Davis, Chadwick Banks, Johnny Kormondy, Jerry Correll, and Oscar Bolin. There were also three post-Apprendi pre-Ring executions: Dan Hauser, Ed Castro and Robert Glock. 19

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Supreme Court denied Ring claims presented in collateral proceedings on the basis of its decision in Johnson v. State that Ring did not apply retroactively. But of course, the decision in Johnson v. State was premised upon the Florida Supreme Court’s failure to understand that Apprendi and Ring were irreconcilable with Hildwin v. Florida and Spaziano v. Florida and that the latter two cases were wrong and could no longer stand. 24. It is in this context that it is clearly fundamentally unfair to deprive Hodges of the retroactive benefit of Hurst v. Florida. It was not Hodges’ fault that the Florida Supreme Court and the US Supreme Court did not have a shared understanding of what Apprendi and Ring required. Those decisions were irreconcilable with Spaziano and Hildwin. It is not Hodges’ fault that Bottoson and King were executed solely because the Florida Supreme Court did not understand the

import of Apprendi and Ring. Indeed, had Bottoson been decided correctly, habeas relief would

have issued in that case. Certainly it cannot be disputed that if the Florida Supreme Court had

correctly resolved the issue in Bottoson and granted him relief on his death sentence, one that was

final in 1984, then Hodges would have also been granted relief as well.

25. In Mosley v. State, the Florida Supreme Court stated: “Because Florida's capital

sentencing statute has essentially been unconstitutional since Ring in 2002, fairness strongly favors

applying Hurst retroactively to that time.” Mosley, 2016 WL 7406506 at *23. This suggests that

Hurst v. Florida should be treated as the governing law of Florida at least back to Ring v. Arizona

which issued on June 24, 2002. But if Hurst v. Florida is to be treated as the law effective June 24,

2002, it must be applied across the board to direct appeals and collateral rulings alike. Accordingly,

Bottoson and all the other collateral decisions rejecting Apprendi/Ring claims must be subject to attack, just the same as post-Ring direct appeal opinions. And there must be a recognition that had Bottoson been correctly decided, Bottoson would have been granted a resentencing. If Bottoson had gotten a resentencing, then Hodges would have as well. 26. Another aspect of fundamental fairness warranting retroactive application of Hurst v. Florida is the fact that the decision in Perry v. State shows that capital defendants charged with murders that were committed long before Hurst v. Florida issued will have Hurst-compliant

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procedures govern at a retrial or resentencing. For example, Douglas Ray Meeks will receive the benefit of Hurst v. Florida and the new Florida law when he is sentenced on two first degree murder convictions for two 1974 homicides. Meeks had separate trials and received two death sentences. Both death sentences were affirmed. Meeks v. State, 336 So. 2d 1142 (Fla. 1976); Meeks v. State, 339 So. 2d 186 (Fla. 1976). However, because Meeks obtained relief in light of Hitchcock v. Dugger, 481 U.S. 393 (1987), and those penalty phases have yet to occur, Hurst v. Florida and the new Florida law will govern the sentencing procedure in both cases. 27. As another example, Jacob Dougan was convicted of a 1974 homicide and was sentenced to death. His conviction and death sentence were affirmed in his direct appeal. Barclay v. State, 343 So. 2d 1266 (Fla. 1977). Subsequently, after protracted proceedings, the circuit court

granted Dougan a new trial in 2013. In State v. Dougan, ___ So. 3d ___, 2016 WL 6137285 (Fla.

Oct. 20, 2016), the Florida Supreme Court affirmed. Hurst v. Florida will govern at the sentencing

phase if a first degree murder conviction is returned.

28. Another example is John Hardwick who was charged with a 1984 homicide. He

was convicted and sentenced to death. His conviction and death sentence were affirmed. Hardwick

v. State, 521 So. 2d 1071 (Fla. 1988). In pursuing relief in the federal courts, the district court

granted habeas relief and ordered the death sentence vacated. The Eleventh Circuit affirmed.

Hardwick v. Sec’y Fla. Dep’t of Corr., 803 F.3d 541 (11th Cir. 2015). Currently, Hardwick’s case is

pending in the trial court for a resentencing. As a result, Hurst v. Florida and the new Florida law

will govern the sentencing procedure.

29. Yet another example is Paul Hildwin who was charged and convicted of a 1985 homicide. After a death sentence was imposed, his conviction and death sentence were affirmed in his direct appeal. Hildwin v. State, 531 So. 2d 124 (Fla. 1988). See Hildwin v. Florida, 490 U.S. 638 (1989). In the course of collateral proceedings, Hildwin’s conviction was vacated by the Florida Supreme Court and a new trial ordered. Hildwin v. State, 141 So. 3d 1178 (Fla. 2014). Currently, Hildwin is awaiting his new trial and Hurst v. Florida and the resulting new Florida law will govern as to the sentencing procedure if a first degree murder conviction is returned.

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30. Still another example is Ana Cardona who was charged with a 1990 homicide. After she received a death sentence, her conviction and death sentence were affirmed. Cardona v. State, 641 So. 2d 361 (Fla. 1994). Later, her conviction and sentence were vacated. Cardona v. State, 185 So. 3d 514 (Fla. 2016). Currently, Cardona awaits her new trial. At that trial on a first degree murder charge for a 1985 homicide, Hurst v. Florida and the resulting new Florida law will govern as to the sentencing procedure if a first degree murder conviction is returned. 31. There are also cases in which a capital defendant has had a death sentence vacated in collateral proceedings, a resentencing ordered, and another death sentence imposed which was pending on a direct appeal when Hurst v. Florida issued. In those circumstances, the capital defendant will receive the benefit of Hurst v. Florida because a final death sentence was not in

place when Hurst issued. Paul Beasley Johnson was convicted of first degree murder for three 1981

homicides and sentenced to death. His convictions and death sentences were affirmed. Johnson v.

State, 483 So. 2d 774 (Fla. 1983). After multiple proceedings, in 2010, Johnson’s death sentences

were vacated, and a resentencing was ordered. Johnson v. State, 44 So. 3d 51 (Fla. 2010). Though

Johnson again received death sentences, his direct appeal was pending when Hurst v. Florida

issued. Johnson will receive the benefit of Hurst and the resulting new Florida law.

32. Also, the Florida Supreme Court recently issued Armstrong v. State, _ So. 3d _, 2017

WL 224428 (Fla. Jan. 19, 2017), and on the basis of Hurst v. State vacated Armstrong’s death

sentence. The homicide at issue occurred in February of 1990. Armstrong was tried and convicted

for the murder of one deputy sheriff. He was then sentenced to death. The Florida Supreme Court

affirmed the convictions and death sentence. Armstrong v. State, 642 So. 2d 730 (Fla. 1994), cert denied 514 U.S. 1085 (1995). In 2003, the Florida Supreme Court granted Armstrong Rule 3.850 relief, vacated his death sentence, and ordered a resentencing. At his resentencing, the jury returned a 9-3 death recommendation, and a death sentence was again imposed. It was affirmed on direct appeal. Armstrong v. State, 73 So. 3d 155 (Fla. 2011). Armstrong filed for collateral relief. His appeal from the denial of collateral relief was before the Florida Supreme Court when Hurst v. Florida issued. Without even discussing retroactivity, the Florida Supreme Court granted

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Armstrong collateral relief on the basis of Hurst v. State. 33. With Meeks, Dougan, Hardwick, Hildwin, Cardona, Johnson and Armstrong all entitled to the benefit of Hurst v. Florida and the resulting new Florida law for murders committed as early as 1974, ensuring uniformity and fairness in circumstances in Florida’s application of the

death penalty requires the retroactive application of Hurst and the resulting Florida law. Indeed, the logic of Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987), applies: Justice POWELL has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted).

We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.

(emphasis added). “[S]elective application of new rules violates the principle of treating similarly

situated defendants the same.” Id. at 323. While Hodges’ death sentence was final when Hurst v.

Florida issued, numerous other capital defendant’s death sentences had been final, including

Hurst’s, when good fortune and good timing meant that at the moment that Hurst v. Florida issued,

those defendants were free of the shackles of finality. Fundamental fairness requires Hodges to get

the benefit of the change in law. 34. Moreover, in Hurst v. State, the Florida Supreme Court noted that “[i]n requiring jury unanimity in [the statutorily required fact] findings and in [the jury’s] final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice.” 202 So. 3d at 58. Hurst v. State specifically noted that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant

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who stands to lose his life as a penalty.” Id. at 59. The new Florida law enhances and promotes the reliability of death sentences that juries unanimously authorize. Implicit in the holding that unanimity promotes reliable death sentences is the acknowledgment that non-unanimous death sentences are less reliable. Clearly, uniformity and fairness require that Hodges be given the benefit of Hurst v. Florida and the resulting new Florida law. 35. The procedure employed when Hodges received a death sentence deprived him of his Sixth Amendment rights under Hurst v. Florida. In the wake of Hurst v. Florida, the Florida Supreme Court has held that each juror is free to vote for a life sentence even if the requisite facts have been found by the jury unanimously. Hurst v. State, 202 So. 3d at 58, 62, n. 18. Individual jurors may decide to exercise “mercy” and vote for a life sentence and in so doing preclude the

imposition of a death sentence. Perry v. State, 2016 WL 6036982 at *8.

36. In Hurst v. State, the Florida Supreme Court found that because Hurst v. Florida

treated the facts necessary to authorize a death sentence as elements of the criminal offense, Florida

law, which has long required unanimity on the elements of a crime, applied. Hurst v. State, 202 So.

3d at 53-54. The Florida Supreme Court explained that this unanimity requirement will enhance the

reliability of any death sentence that results:

In requiring jury unanimity in these findings and in its final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice. Supreme Court Justice Anthony Kennedy, while a judge on the Ninth Circuit Court of Appeals, noted the salutary benefits of the unanimity requirement on jury deliberations as follows:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury's verdict. United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978). That court further noted that “[b]oth the defendant and society can place special confidence in a unanimous verdict.” Id. Comparing the unanimous jury requirement to the requirement for proof beyond a reasonable doubt, the Fifth Circuit Court of Appeals stated, “the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977).

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Hurst v. State, 202 So. 3d at 58. We also note that the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty. Id. at 59.14 Fundamental fairness requires that Hodges receive the benefit of a change in law when the purpose of the change is to meet the heightened level of reliability constitutionally required. See Teague v. Lane, 489 U.S. 288, 312 (1989) (“In Desist, Justice Harlan had reasoned that one of the two principal functions of habeas corpus was “to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted,” and concluded “from this that all ‘new’ constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas.” 394 U.S., at 262, 89 S.Ct., at 1041.”) (emphasis added).

37. Another reason fundamental fairness dictates that Hodges should get the benefit of

retroactive application of Hurst v. Florida arises from the fact that his jury was instructed that it was

advisory. After Hurst v. Florida, the jury’s penalty phase verdict is not advisory. Each juror has the

power to exercise mercy and require the imposition of a life sentence. In Hurst v. Florida, the Court

wrote that “[t]he State cannot now treat the advisory recommendation by the jury as a necessary

factual finding that Ring requires.” 136 S. Ct. at 622.

38. Applying Hurst v. Florida to Hodges’ case shows that his death sentences cannot

stand. In Hurst v. State, the Florida Supreme Court held that Sixth Amendment error under Hurst v.

Florida would be subject to a strict harmless error test in which “the State bears an extremely heavy

14The unanimity requirement set forth in Hurst v. State significantly distinguishes the change in Florida law brought by Hurst v. Florida from the change in Arizona law that accompanied Ring v. Arizona. The change in Arizona was simply going from judge sentencing to jury sentencing. Schriro v. Summerlin, 542 U.S. 348, 356 (2004) (“When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.”). The Florida Supreme Court specifically found that going from a majority jury recommendation that was merely advisory to requiring a unanimous jury death recommendation to even authorize a judge to consider the imposition of a death sentence enhanced reliability. Hurst v. State, 202 So. 3d at 63 (“In a capital case, the gravity of the proceeding and the concomitant juror responsibility weigh even more heavily, and it can be presumed that the penalty phase jurors will take special care to understand and follow the law.”). 25

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burden” of proving beyond a reasonable doubt that “the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst’s death sentence in this case.” 202 So. 3d at 68. See Mosley v. State, 2016 WL 7406506 at *25-26 (applying the Hurst v. State harmless error analysis when Hurst v. Florida is retroactively applied in collateral proceedings). The State must also show beyond a reasonable doubt that no properly instructed juror would have dispensed mercy to Hodges by voting for a life sentence. All of these considerations must be factored into any evaluation of the reliability of Hodges’ death sentence and the likely outcome if a resentencing were conducted. 39. The Sixth Amendment error under Hurst v. Florida cannot be proven by the State to be harmless beyond a reasonable doubt in Hodges’ case. Hodges’ penalty phase jury did not

return a verdict making any findings of fact. The only document returned by the jury was an

advisory recommendation that a death sentence be imposed. And, this advisory verdict was not

unanimous. Two jurors did not join in the death recommendation. One juror voting for a life

sentence is all it takes for a binding life recommendation mandating the imposition of a life

sentence. The fact that two jurors here recommended life in and of itself shows that there must be

doubt that a properly instructed jury would have unanimously returned a death recommendation.

40. The Florida Supreme Court has addressed whether or not error under Hurst v.

Florida is harmless in several cases. No case in which a less than unanimous jury recommendation

was returned has been determined to be harmless. See Hurst v. State, 202 So. 3d 40 (Fla. 2016);

Franklin v. State, ___ So. 3d ___, 2016 WL 6901498 (Fla. Nov. 23, 2016); Johnson v. State, ___

So. 3d ___, 2016 WL 7013856 at *3 (Fla. Dec. 1, 2016); Mosley v. State, ___ So. 3d ___, 2016 WL 7406506 (Fla. Dec. 22, 2016); Kopsho v. State, ___ So. 3d ___, 2017 WL 224727 (Jan. 19, 2017); Williams v. State, ___ So. 3d ___, 2017 WL 224529 (Fla. Jan. 19, 2017); McGirth v. State, ___ So. 3d ___, 2017 WL 372095 (Fla. Jan. 26, 2017); Calloway v. State, ___ So. 3d ___, 2017 WL 372058 (Fla. Jan. 26, 2017); Durousseau v. State, ___ So. 3d ___, 2017 WL 411331 (Fla. Jan. 31, 2017); Hojan v. State, ___ So. 3d ___, 2017 WL 410215 (Fla. Jan. 31, 2017). 41. Indeed, in the cases where the Florida Supreme Court has found the error to be

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harmless, the jury was unanimous in its recommendation and the facts were particularly egregious. See Davis v. State, ___ So. 3d ___, 2016 WL 6649941 (Fla. Nov. 10, 2016); King v. State, ___ So. 3d ___, 2017 WL 372081 (Fla. Jan. 26, 2017); Knight v. State, ___ So. 3d. ___, 2017 WL 411329 (Fla. Jan. 31, 2017); Kaczmar v. State, ___ So. 3d. ___, 2017 WL 410214 (Fla. Jan. 31, 2017). 42. Here, the State cannot show beyond a reasonable doubt that the Hurst error in was harmless. The Hurst error in Hodges’ case warrants relief. Rule 3.851 relief is warranted. CLAIM II HODGES’ DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDER HURST V. STATE AND SHOULD BE VACATED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. In Hurst v. State, the Florida Supreme Court ruled that on the basis of the Eighth

Amendment and on the basis of the Florida Constitution, the evolving standards of decency now

requires jury “unanimity in a recommendation of death in order for death to be considered and

imposed”. 202 So. 3d at 61. This unanimity requirement was not derived from Hurst v. Florida

itself nor the Sixth Amendment, but from the Florida Constitution and from the Eighth Amendment.

In light of the ruling in Hurst v. State, Hodges’ death sentence stands in violation of both the Florida

Constitution and the Eighth Amendment.

3. Hurst v. State was broader in scope than Hurst v. Florida. This was because Hurst v.

Florida meant the statutory facts necessary to authorize a death sentence were elements of capital murder. In turn, this meant that the Florida Constitution requirement that the jury must unanimously find the elements of a crime offense was applicable: We also conclude that, just 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—thus allowing imposition of the death penalty— are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.

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Id. at *53-54. The Florida Supreme Court acknowledged that the unanimity requirement had not been found by the US Supreme Court to be mandated by the Sixth Amendment, but that it arose from the Florida Constitution: We are mindful that a plurality of the United States Supreme Court, in a non-capital case, decided that unanimous jury verdicts are not required in all cases under the Sixth Amendment to the United States Constitution. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion). However, this Court, in interpreting the Florida Constitution and the rights afforded to persons within this State, may require more protection be afforded criminal defendants than that mandated by the federal Constitution. This is especially true, we believe, in cases where, as here, Florida has a longstanding history requiring unanimous jury verdicts as to the elements of a crime. 202 So. 3d at 57 (emphasis added) (footnote omitted). The Florida Supreme Court then explained the benefit to the administration of justice that its holding would provide would mean more reliable

death sentences:

In requiring jury unanimity in these findings and in its final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice. Supreme Court Justice Anthony Kennedy, while a judge on the Ninth Circuit Court of Appeals, noted the salutary benefits of the unanimity requirement on jury deliberations as follows:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury's verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978). That court further noted that “[b]oth the defendant and society can place special confidence in a unanimous verdict.” Id. Comparing the unanimous jury requirement to the requirement for proof beyond a reasonable doubt, the Fifth Circuit Court of Appeals stated, “the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977). 202 So. 3d at 58 (emphasis added). Thus, the ruling that the Florida Constitution required juror unanimity when returning a death recommendation was bottomed on enhanced reliability and confidence in the result. Id. at 59. The change mandated by Hurst v. State was specifically found to improve accuracy, unlike the change in Arizona procedure that resulted from the decision in Ring v. Arizona.

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4. The Florida Supreme Court in Hurst v. State then alternatively found that a unanimous jury’s death recommendation was also required under the Eighth Amendment. In addition to the requirements of unanimity that flow from the Sixth Amendment and from Florida's right to trial by jury, we conclude that juror unanimity in any recommended verdict resulting in a death sentence is required under the Eighth Amendment. Hurst v. State, 202 So. 3d at 59. The Florida Supreme Court in Hurst v. State observed: If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process. Id. at 60. In Hurst v. State, the Florida Supreme Court found that under of the Eighth Amendment and the Florida Constitution, the evolving standards of decency now require jury “unanimity in a recommendation of death in order for death to be considered and imposed”. Id. at 61. Quoting the US Supreme Court, Hurst v. State noted, “the ‘clearest and most reliable objective

evidence of contemporary values is the legislation enacted by the country's legislatures.’” Id. Then,

from a review of the capital sentencing laws throughout the United States, Hurst v. State found that

a national consensus reflecting society’s evolving standards of decency was apparent:

The vast majority of capital sentencing laws enacted in this country provide the clearest and most reliable evidence that contemporary values demand a defendant not be put to death except upon the unanimous consent of the jurors who have deliberated upon all the evidence of aggravating factors and mitigating circumstances.

Id. Accordingly, the Court in Hurst v. State concluded:

the United States and Florida Constitutions, as well as the administration of justice, are implemented by requiring unanimity in jury verdicts recommending death as a penalty before such a penalty may be imposed.

Id. at 63. The Eighth Amendment holding in Hurst v. State turned upon both 1) a finding of a consensus reflecting the evolving standards of decency that now precluded the execution of a defendant without a jury’s unanimous death recommendation, and 2) the enhanced reliability that would result from no longer allowing a jury’s death recommendation to be returned without juror unanimity. 5. What constitutes cruel and unusual punishment under the Eighth Amendment turns upon considerations of the “evolving standards of decency that mark the progress of a maturing

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society.” Atkins v. Virginia, 536 U.S. 304, 312 (2002). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C. J., dissenting).” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). 6. According to Hurst v. State, the evolving standards of decency are reflected in a national consensus that a defendant can only be given a death sentence when a penalty phase jury has voted unanimously in favor of the imposition of death. The US Supreme Court has explained that the “near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not.” Burch v.

Louisiana, 441 U.S. 130, 138 (1979). The near-uniform judgment of the states is that only a

defendant who a jury unanimously concluded should be sentenced to death can receive a death

sentence. As a result, those defendants who have had one or more jurors vote in favor of a life

sentence are not eligible to receive a death sentence. This class of defendants, those who have had

jurors formally vote in favor a life sentence, cannot be executed under the Eighth Amendment.

7. Hodges is within the protected class. At his penalty phase, two jurors voted in

favor of the imposition of a life sentence. Under the Eighth Amendment, his execution would thus

constitute cruel and unusual punishment. His death sentence must accordingly be vacated.

8. Hurst v. State must be applied retroactively. When a juror in a capital proceeding has

voted against recommending death, the defendant is within a class that society’s evolving standards

of decency has concluded to be ineligible for a death sentence. In Walls v. State, 2016 WL 6137287 at *6, the Florida Supreme Court found retroactivity must be accorded to an Eighth Amendment decision when it “places beyond the State of Florida the power to impose a certain sentence” against a category or subgroup of people. Here, the State of Florida under Hurst v. State cannot carry out a death sentence on capital defendants who had one or more of their jurors at their capital trial vote in favor of a life sentence and against recommending a death sentence. The Eighth Amendment decision in Hall v. Florida, 134 S. Ct. 1986 (2014), “removes from the State [the]

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authority to impose death sentences” in a category of cases. Walls, 2016 WL 6137287 at *5. 9. Moreover, the purpose of the ruling in Hurst v. State was to enhance the reliability of a death recommendation. Enhancement of reliability also warrants retroactive application of Hurst v. State and Perry v. State to Hodges. See Desist v. United States, 394 U.S. at 262 (Harlan, J., dissenting) (“The greatly expanded writ of habeas corpus seems at the present time to serve two principal functions. [Citations] First, it seeks to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. It follows from this that all ‘new’ constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas.”) (emphasis added).15 In Mosley v. State, the Florida Supreme Court explained the basis for the decision in Hurst v. State to

require juror unanimity when returning a death recommendation:

Under Florida's independent constitutional right to a trial by jury, this Court concluded: “If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process.” [202 So. 3d] at 60.

2016 WL 7406506 at *21.

10. The retroactivity analysis of new law under the Eighth Amendment is different than

the analysis under the Sixth Amendment. In Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2016),

the US Supreme Court wrote:

A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner's sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids. To conclude otherwise would undercut the Constitution's substantive guarantees.

Accordingly, a new substantive rule under the Eighth Amendment must be applied retroactively: A substantive rule, in contrast, forbids “criminal punishment of certain primary conduct” or prohibits “a certain category of punishment for a class of defendants because of their status

15See United States v. Johnson, 457 U.S. 537, 548 (1982) (“We now agree with Justice Harlan that “ ‘[r]etroactivity’ must be rethought,” Desist v. United States, 394 U.S., at 258, 89 S.Ct., at 1038 (dissenting opinion). We therefore examine the circumstances of this case to determine whether it presents a retroactivity question clearly controlled by past precedents, and if not, whether application of the Harlan approach would resolve the retroactivity issue presented in a principled and equitable manner.”). 31

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or offense.” Penry, 492 U.S., at 330, 109 S.Ct. 2934; see also Schriro, supra, at 353, 124 S.Ct. 2519 (A substantive rule “alters the range of conduct or the class of persons that the law punishes”). Under this standard, and for the reasons explained below, Miller announced a substantive rule that is retroactive in cases on collateral review. Montgomery, 136 S. Ct. at 732. 11. Under Hurst v. State, a death sentence may not be imposed on the class of defendants whose jury did not unanimously vote in favor of a death recommendation. As to those within that class of defendants, Hurst v. State must be applied retroactively. Since Hodges is within that class of defendants, he must be accorded the retroactive benefit of Hurst v. State. 12. The decision in Asay v. State, 2016 WL 7406538 (Fla. Dec. 22, 2016), did not address the retroactivity of Hurst v. State and its holding that under the Eighth Amendment and under the Florida Constitution, the jury must return a unanimous death recommendation before a

death sentence is authorized. In fact, Asay did not file anything after Hurst v. State was decided

raising an Eighth Amendment claim or a Florida Constitution claim based upon the holding in

Hurst v. State. Therefore, the decision in Asay did not decide the issue, as it was not presented by

the parties and it was not addressed by the Court. As explained by the US Supreme Court:

The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.). In this case, petitioners did not ask us to hold that there is no constitutional right to informational privacy, and respondents and their amici thus understandably refrained from addressing that issue in detail. It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided.

Nat’l Aeronautics and Space Admin. v. Nelson, 532 U.S. 134, 147 n.10 (2011). The Florida

Supreme Court has also supported this basic tenet that appellate courts should not address an issue was not briefed or argued.16 See, e.g., State v. Simpson, 554 So. 2d 506, 510 n.5 (Fla. 1989) (“After the relevant events of this case occurred, the legislature has changed the standard of proof from clear and convincing to a preponderance of the evidence. Ch. 87-110, Laws of Florida. The parties

16Arguably, this basic precept of appellate review stems from Article III Section 2's Case-or- Controversy Clause, as issuing an opinion on issues that were not briefed or argued appears advisory and is certainly not a “concrete, living contest between adversaries.” See, e.g., Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring). 32

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have not briefed this issue and we thus do not address any matter associated with the enactment of chapter 87-110.”); Arab Termite and Pest Control of Florida, Inc. V. Jenkins, 409 So. 2d 1039, 1043 (Fla. 1982) (“The parties have not briefed [whether the trial court’s decision was affirmatively supported by the record or by the findings in the judge’s order]. We therefore remand the case to the district court to prove the appropriate appellate review.”). 13. Alternatively under the fundamental fairness approach to retroactivity set forth in Mosley, Hodges is entitled to the retroactive application of Hurst v. State to his case. It would be fundamentally unfair to deprive Hodges of the benefits of Hurst v. State while other similarly situated individuals received its benefit. As set forth in Claim I, individuals like, Meeks, Dougan, and Johnson, will be receiving the benefit of Hurst v. State in connection with homicides that pre-

date the one for which Hodges was convicted. Because retrials and/or resentencings have been

ordered in these and in other cases, such defendants will receive the benefit of Hurst v. State. In

these circumstances, it would be fundamentally unfair to deprive Hodges of the same benefit. The

logic of Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987) is applicable:

Justice POWELL has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted). We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. (Emphasis added). “[S]elective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 323. Fundamental fairness requires that Hodges receive the benefit of the change in law.

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14. Under Hurst v. State, Hodges’ death sentence stands in violation of the Eighth Amendment and the Florida Constitution. The jury did not vote unanimously in favor of a death recommendation. This places Hodges in a substantive class (i.e. those who were judicially sentenced to death even though the jury did not unanimously vote in favor of death) who may not be sentenced to death. Rule 3.851 relief is warranted. CLAIM III THE RETROACTIVITY RULINGS IN ASAY v. STATE AND MOSLEY v. STATE THAT SEEMINGLY PERMIT PARTIAL RETROACTIVITY AND/OR CATEGORY BY CATEGORY AND/OR CASE BY CASE RETROACTIVITY OF NEW LAW IN DEATH PENALTY PROCEEDINGS INJECTS ARBITRARINESS INTO THE FLORIDA’S CAPITAL SENTENCING SCHEME THAT VIOLATES THE EIGHTH AMENDMENT PRINCIPLES OF FURMAN V. GEORGIA. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to

vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. In Furman v. Georgia, 408 U.S. 238, 239-40 (1972) , the US Supreme Court found

that the death penalty “could not be imposed under sentencing procedures that created a substantial

risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S.

153, 188 (1976); see also Furman, 408 U.S. at 239-40. Because of the recognition that “the penalty

of death is qualitatively different from a sentence of imprisonment, however long * * * there is a

corresponding difference in the need for reliability” in capital cases. Woodson v. North Carolina,

428 U.S. 280, 305 (1976). See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (finding there is a

“qualitative difference” between death and other penalties requiring “a greater degree of reliability when the death sentence is imposed”). 3. On the same day that the Florida Supreme Court issued Asay v. State, 2016 WL 7406538, it also issued Mosley v. State, 2016 WL 7406506. Both Asay and Mosley had challenged their death sentences in light of Hurst v. Florida. Asay’s death sentences and Mosley’s death sentence were final before the decision in Hurst v. Florida issued. However, the Florida Supreme Court broke apart its Witt v. State standard and held Hurst v. Florida to be retroactive in Mosley’s

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death sentence under its Witt analysis, while in Asay its Witt analysis found Hurst v. Florida was not retroactive to Asay’s case. See Mosley v. State, 2016 WL 7406506 at *32 (Canady, J., dissenting) (“Based on an indefensible misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in tatters, the majority unjustifiably plunges the administration of the death penalty in Florida into turmoil that will undoubtedly extend for years.”) (emphasis added). The repudiation of a binary approach to retroactivity set forth in Witt was also a repudiation of the Stoval/Linkletter standard that was adopted in Witt. It means that the retroactivity standard in Florida is now without an objective principled basis, but instead rests upon some variable subjective standard of two justices.17 In Asay, the Florida Supreme Court superficially at least seemed to suggest that there were just two categories of collateral cases at issue in a Witt analysis of Hurst v.

Florida - those cases final after the issuance of Ring v. Arizona, 536 U.S. 584 (2002), and those

final before it Ring issued. Full analysis of the various concurring and dissenting opinions in Asay

and Mosley suggests that there are likely more categories of cases that warrant specific

consideration under Witt. That is a by product of eschewing an objective standard in favor of

standardless subjectivity.

4. In Asay v. State, Chief Justice Labarga was one of three justices who concurred in the

lead opinion that announced the result. But he wrote a concurring opinion stating: “I write

separately to express my view that our decision today does not apply to those defendants whose

death sentences were imposed based upon, and who are facing execution solely as a result of, a

judicial override.” Asay v. State, 2016 WL 7406538 at *20. That is an explicit recognition that there

are pre-Ring people who may get the benefit of Hurst.

17When the decisions in Asay and Mosley are analyzed and attention paid to the various separate opinions, there are only two justices of the Florida Supreme Court who seem to be on board for the break up of the Witt binary approach. Justice Polston joined Justice Canady’s dissent in Mosley that asserted that the majority had left “the Witt framework in tatters.” Justices Pariente and Perry had dissented in Asay because the majority had not applied Hurst v. Florida retroactively to Asay under Witt. And Justice Lewis in a specially concurring opinion agreed with Justice Perry that “there is no salient difference between June 23 and June 24, 2002—the days before and after the case name Ring arrived. See Perry, J., dissenting op. at 58. However, that is where the majority opinion draws its determinative, albeit arbitrary, line.” Asay v. State, 2016 WL 7406538 at *22 (Lewis, J., concurring in result). 35

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5. Justice Lewis, who provided a fifth vote in favor of denying Asay the benefit of Hurst, wrote: in my view, the majority opinion has incorrectly limited the retroactive application of Hurst by barring relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury factfinding and unanimity in Florida's capital sentencing procedure at the trial level and on direct appeal, the underlying gravamen of this entire issue. Asay, 2016 WL 7406538 at *20. Thus, Justice Lewis suggests that pre-Ring defendants should be able to get the benefit of Hurst v. Florida on a case-by-case basis. 6. When the opinions of Chief Justice Labarga and Justice Lewis are considered with the two dissenting opinions, a majority of the Court is clearly open to granting the benefit of Hurst to pre-Ring people.

7. In Mosley, Justice Quince joined the majority opinion recognizing that pre-Ring

defendants may be entitled to the benefit of Hurst if they can show on a case-by-case basis that

depriving them of the benefit of Hurst v. Florida would be fundamentally unfair. This means five

justices of the Florida Supreme Court have concluded that the benefit of Hurst v. Florida may be

extended to pre-Ring cases either on a category-by-category approach or a case-by-case approach.

8. A majority of the justices of the Florida Supreme Court in separate opinions in the

two decisions complained that the Court through the two rulings had injected unacceptable

arbitrariness into Florida’s capital sentencing process. As a result, the distinction between who gets

the benefit of Hurst v. Florida and 3.851 relief and who doesn’t and gets executed will be an

arbitrary one. See Asay, 2016 WL 7406538 at *22 (Lewis, J., concurring in result) (“As Justice

Perry noted in his dissent, there is no salient difference between June 23 and June 24, 2002—the days before and after the case name Ring arrived. See Perry, J., dissenting op. at 58. However, that is where the majority opinion draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently—here, the difference between life and death—for potentially the simple reason of one defendant's docket delay.”) (emphasis added); Id. at *26 (Pariente, J., concurring in part, dissenting in part) (“The majority's conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced

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or, in some cases, resentenced.”) (emphasis added); Id. at 26 (Perry, J., dissenting) (“In my opinion, the line drawn by the majority is arbitrary and cannot withstand scrutiny under the Eighth Amendment because it creates an arbitrary application of law to two groups of similarly situated persons.”) (emphasis added); Mosley, 2016 WL 7406506 at *32 (Canady, J., concurring in part, dissenting in part) (“the supposed rule of ‘fundamental unfairness’ articulated in James is deeply problematic—if not entirely incoherent—when judged by its own terms. If counsel accepted our decisions at face value and relied on the United States Supreme Court's repeated rejection of Ring claims, the client loses under James. But if counsel raised claims that had been consistently rejected, the client wins. This hardly comports with the notion of fundamental fairness.”) (emphasis added); Id. at *32 (Canady, J., concurring in part, dissenting in part) (“ Based on an indefensible misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in tatters, the majority unjustifiably plunges the administration of the death penalty in Florida into turmoil that will undoubtedly extend for years. I strongly dissent from this badly flawed decision.”).18 Justice Polston concurred in Justice Canady’s dissent in Mosley.

10. Completely ignored in Asay and Mosley is the logic of Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987) that justice should be administered with an even hand: Justice POWELL has pointed out that it “hardly comports with the ideal of

18Justice Canady also disagrees with the court’s action in abandoning the binary approach of the Witt analysis, and Justice Polston concurred in Justice Canady’s dissent. Thus, five of the seven Florida Supreme Court justices do not support discarding the either-it-is-or-isn’t-retroactive Witt analysis. Once the binary approach is abandoned and the issue is no longer between just a prospective (nonretroactive) application of Hurst v. Florida and a retroactive application to cases final when Hurst v. Florida issued, necessarily the retroactive application of the law can be given to some and not to others. But, there are no governable standards. This is particularly true when, applying the same Witt test to Asay and Mosley, the majority reached different conclusions on the issue. For example, the third prong of Witt requires an analysis of the extent of reliance factor on pre-Hurst law. In Asay the court found that the extent of reliance on Florida’s unconstitutional death penalty scheme weighed “heavily against” retroactive application to Asay, while in Mosley, the court reached the opposite conclusion, holding that the extent of reliance on the same pre-Hurst law weighed “in favor” of retroactive application to Mosley. See Asay, 2016 WL 7406538, at *12; Mosley, 2016 WL 7406506, at *23. The distinction is simply arbitrary. Asay and Mosley also reached differed as to the third Stovall/Linkletter retroactivity factor — the effect on the administration of justice—finding that it weighed “heavily against” retroactive application as to Asay, but in favor of retroactive application as to Mosley. See Asay, 2016 WL 7406538, at *13; Mosley, 2016 WL 7406506, at *24.

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‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted). We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. (emphasis added). “[S]elective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 323.

11. While Hodges death sentence was final when Hurst v. Florida issued, numerous

other capital defendant’s death sentences had been final when good fortune and good timing meant

that at the moment that Hurst v. Florida those defendants were free of the shackles of finality. The

decisions in Asay and Mosley have opened the door to arbitrariness infecting Florida’s death penalty

system in violation of the Eighth Amendment. Rule 3.851 relief is warranted.

CLAIM IV THE DECISIONS IN HURST V. STATE AND PERRY V. STATE, WHICH ARE NEW LAW THAT WOULD GOVERN AT A RESENTENCING AND REQUIRE THE JURY TO UNANIMOUSLY FIND THE STATUTORILY REQUIRED FACTS NECESSARY TO AUTHORIZE A DEATH SENTENCE AND ALSO REQUIRE THE JURY TO UNANIMOUSLY RECOMMEND A DEATH SENTENCE BEFORE THE JUDGE WOULD BE AUTHORIZED TO IMPOSE A DEATH SENTENCE, MUST BE PART OF THE SECOND PRONG ANALYSIS OF MR. HODGES’ PREVIOUSLY PRESENTED STRICKLAND CLAIMS. THE NEW LAW, DUE PROCESS PRINCIPLES, AND THE EIGHTH AMENDMENT ALL REQUIRE THIS COURT TO REVISIT MR. HODGES’ PREVIOUSLY PRESENTED CLAIMS AND DETERMINE WHETHER THE EVIDENCE PRESENTED TO SUPPORT EACH CLAIM AND ALL THE OTHER ADMISSIBLE EVIDENCE AT A FUTURE RESENTENCING WOULD PROBABLY RESULT IN A LIFE SENTENCE IN LIGHT OF THE NEW LAW, AND WHEN THE PROPER ANALYSIS IS CONDUCTED IT IS CLEAR THAT IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD RESULT, RULE 3.851 RELIEF IS REQUIRED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to

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vacate, and all evidence presented by him during his trial and previous postconviction proceeding, are incorporated herein by specific reference. 2. In Perry v. State, the Florida Supreme Court held that the death recommendation necessary to authorize a death sentence had to be reached unanimously by the jury: to increase the penalty from a life sentence to a sentence of death, the jury must unanimously find the existence of any aggravating factor, that the aggravating factors are sufficient to warrant a sentence of death, that the aggravating factors outweigh the mitigating circumstances, and must unanimously recommend a sentence of death. 2016 WL 6036982 at 8. In deciding whether to recommend a death sentence, jurors may choose to vote in favor of a life sentence to be merciful. Id. In Hurst v. State, the Court explained: Requiring a unanimous jury recommendation before death may be imposed, in accord with precepts of the Eighth Amendment and Florida’s right to trial by jury, is a critical step toward ensuring that Florida will continue to have a constitutional and viable death penalty law, which is surely the intent of the Legislature. The requirement will dispel most, if not all, doubts about the future validity and long-term viability of the death penalty in Florida.

202 So. 3d at 62.

3. In Hildwin v. State, 141 So.3d 1178, 1184 (Fla.2014), the Florida Supreme Court

explained that when presented with qualifying newly discovered evidence:

the postconviction court must consider the effect of the newly discovered evidence, in addition to all of the evidence that could be introduced at a new trial. Swafford v. State, 125 So.3d 760, 775-76 (Fla. 2013). In determining the impact of the newly discovered evidence, the court must conduct a cumulative analysis of all the evidence so that there is a ‘total picture’ of the case.

In Swafford, the Florida Supreme Court indicated the evidence to be considered in evaluating

whether a different outcome was probable included “evidence that [had been] previously excluded

as procedurally barred or presented in another proceeding.” Swafford v. State, 125 So.3d at 775-76.

The “standard focuses on the likely result that would occur during a new trial with all admissible evidence at the new trial being relevant to that analysis.” Id. Put simply, the analysis requires envisioning how a new trial or resentencing would look with all of the evidence that would be available. Obviously, the law that would govern at a new trial must be part of the analysis. Here, the law would require the jury to determine unanimously that sufficient aggravators exist and that they outweigh the mitigators. It would also require the jury to unanimously recommend a death sentence

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before the sentencing judge would be authorized to impose a death sentence. One single juror voting in favor of a life sentence would require the imposition of a life sentence. 7. This is new Florida law that did not exist when Hodges previously presented his Strickland claims. Hodges’ previously presented claims must be re-evaluated. 8. The Florida Supreme Court explained in Hurst v. State that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty.” 202 So. 3d at 59. See State v. Steele, 921 So. 2d 538, 549 (Fla. 2005), quoting State v. Daniels, 542 A.2d 306, 315 (Conn. 1988). Reliability of Florida death sentences is the touchstone of the new Florida law requiring a unanimous jury to make the factual determinations necessary for the imposition of a death sentence and requiring the jury to

unanimously return a death recommendation before a death sentence is authorized as a sentencing

option. Implicit in the justification for the new Florida law is an acknowledgment that death

sentences imposed under the old capital sentencing scheme were (or are) less reliable. Before

executions are carried out in a case in which the reliability of a death sentence is subpar, a re-

evaluation of such a death sentence in light Hurst v. State, and Perry v. State is warranted. The

Strickland prejudice analysis requires a determination of whether confidence in the reliability of the

outcome - the imposition of a death sentence - is undermined by the evidence the jury did not hear

due to the Strickland error. The new Florida law should be part of the evaluation of whether

confidence in the reliability of the outcome is undermined.

9. Because the new Florida law will apply at a resentencing, it constitutes new law

within the meaning of Rule 3.851 because it extends a new right to capital defendants, i.e. the right to a life sentence if one juror votes in favor of a life sentence. This new law and the new right it extends requires this Court to revisit Hodges’ previously presented Strickland claims and determine whether a different result, i.e. a life sentence, is more likely than not. Here, with two jurors at the original penalty phase voting in favor of a life sentence, confidence in the reliability of the outcome is undermined on the basis of the Strickland claims. Rule 3.851 relief is warranted.

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CONCLUSION AND RELIEF SOUGHT Based on the foregoing, Hodges requests that this Court grant him a new penalty phase and/or a life sentence. CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851 (e) Pursuant to Fla. R. Crim P. 3.851(e)(2)(A) and (e)(1)(F), undersigned counsel hereby certifies that counsel has endeavored to fully discuss and explain the contents of this motion with Mr. Hodges, and that counsel to the best of her ability has complied with Rule 4-1.4 of the Rules of Professional Conduct, and that this motion is filed in good faith. I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished electronic service to Suzanne Bechard ([email protected] & carlasuzanne.bechard

@myfloridalegal.com) and Jail Pruner ([email protected]) on this 1st day of March,

2017.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

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Filing # 54320971 E-Filed 03/28/2017 03:31:54 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 89-2165 Death Penalty Case GEORGE M. HODGES,

Defendant. ______/

STATE’S ANSWER TO DEFENDANT’S AMENDED SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

The State of Florida, by and through the undersigned

counsel, submits this response to Hodges’ amended successive

motion for postconviction relief. On December 14, 2016, Hodges

filed his motion raising three interrelated claims for relief,

all based on the decisions in Hurst v. Florida, 136 S. Ct. 616

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

State, ___ So. 3d ___, 2016 WL 6036982 (Fla. Oct. 14, 2016). On

February 1, 2017, this Court granted Hodges’ motion to amend his

successive postconviction motion. His overlong 41-page amended

motion was filed March 1, 2017. As explained below, Hodges’

amended motion must be summarily denied because Hurst does not

apply retroactively to capital defendants—like Hodges—whose

sentences were final before the United States Supreme Court

issued its opinion in Ring v. Arizona, 536 U.S. 584 (2002). See

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Asay v. State, ___ So. 3d ___, 2016 WL 7406538 (Fla. Dec. 22,

2016), Mosley v. State, ___ So. 3d ___, 2016 WL 7406506 (Fla.

Dec. 22, 2016); Gaskin v. State, ___ So. 3d ___, 2017 WL 224772

(Fla. Jan. 19, 2017); Bogle v. State, ___ So. 3d ___, 2017 WL

526507 (Fla. Feb. 9, 2017); Lambrix v. State, ___ So. 3d ___,

2017 WL 931105 (Fla. Mar. 9, 2017).

FACTS AND PROCEDURAL HISTORY

Hodges was convicted of the first-degree murder of twenty-

year-old Betty Ricks. The victim, who had accused Hodges of

indecent exposure, was discovered the morning Hodges’ indecent

exposure charge was scheduled for a criminal diversion program

arbitration hearing. She had been shot twice with a rifle and

died the next day. Hodges v. State, 595 So. 2d 929, 930-31 (Fla.

1992). Following a trial, the jury recommended death by a vote

of ten to two. (V6/742). The trial court followed the jury’s

recommendation and sentenced Hodges to death, finding two

aggravating circumstances: (1) the murder was cold, calculated,

and premeditated; and (2) Hodges committed the murder to disrupt

or hinder the lawful exercise of government functions or

enforcement of the law. Hodges v. State, 595 So. 2d 929, 934

(Fla. 1992). Thereafter, the United States Supreme Court granted

Hodges’ petition for writ of certiorari, vacating and remanding

for further consideration in light of its ruling in Espinosa v. 2

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Florida, 505 U.S. 1079 (1992). Hodges v. Florida, 506 U.S. 803

(1992). The Florida Supreme Court issued its opinion on April

15, 1993, reaffirming its earlier decision. Hodges v. State, 619

So. 2d 272 (Fla. 1993). Mandate issued July 9, 1993. Hodges’

petition for writ of certiorari from that decision was denied on

November 29, 1993. Hodges v. Florida, 510 U.S. 996 (1993).

Hodges filed his initial postconviction motion in this

Court on June 23, 1995. An evidentiary hearing was held on his

amended motion, and this Court ultimately denied relief on all

grounds. The Florida Supreme Court affirmed the denial of

postconviction relief and denied habeas relief in Hodges v.

State, 885 So. 2d 338 (Fla. 2003). In his habeas petition,

Hodges claimed that Florida’s death penalty sentencing scheme

violated his right to a jury trial contrary to Ring v. Arizona,

536 U.S. 584 (2002). The Florida Supreme Court rejected this

claim. Hodges, 885 So. 2d at 359.

On March 4, 2005, Hodges filed an untimely and successive

petition for writ of habeas corpus claiming entitlement to

relief under Crawford v. Washington, 541 U.S. 36 (2004). The

Florida Supreme Court denied the petition on June 23, 2005.

Hodges v. Crosby, 907 So. 2d 1170 (Fla. 2005).

Hodges’ federal petition for writ of habeas corpus was

denied in an unpublished opinion on February 22, 2007. Hodges v. 3

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Secretary, Dept. of Corr., 2007 WL 604982 (M.D. Fla. Feb. 22,

2007). The Eleventh Circuit Court of Appeals affirmed the ruling

of the district court. Hodges v. Att’y Gen., State of Fla., 506

F.3d 1337 (11th Cir. 2007), cert. denied, 555 U.S. 855 (2008).

Hodges now raises a claim for relief pursuant to Hurst v.

Florida, 136 S. Ct. 616 (2016), Hurst v. State, 202 So. 3d 40

(Fla. 2016), and Perry v. State, 2016 WL 6036982 (Fla. Oct. 14,

2016).

ARGUMENT

A Rule 3.851 motion for postconviction relief must be filed

within one year after the judgment and sentence are finalized.

Fla. R. Crim. P. 3.851(d). If this time period expires, a motion

filed thereafter is procedurally barred unless it alleges:

(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or

(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or

(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.851(d)(2).

Additionally, a “motion filed under this rule is successive

if a state court has previously ruled on a postconviction motion

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challenging the same judgment and sentence.” Fla. R. Crim. P.

3.851(e)(2). A successive Rule 3.851 motion may be summarily

denied on the merits “[i]f the motion, files, and records in the

case conclusively show that the movant is entitled to no relief.”

Fla. R. Crim. P. 3.851(f)(5)(B).

Here, Hodges filed the Rule 3.851 motion after his previous

motion for postconviction relief had been denied. His initial

successive Rule 3.851 motion was filed on December 14, 2016,

which is well beyond the one-year time limitation after the

judgment and sentence were finalized on November 29, 1993, when

the United States Supreme Court denied certiorari review of the

Florida Supreme Court’s decision following the Supreme Court’s

remand for reconsideration in light of Espinosa. Hodges v.

Florida, 510 U.S. 996 (1993); Fla. R. Crim. P. 3.851(d)(1)(B)

(judgment becomes final “on the disposition of the petition for

writ of certiorari by the United States Supreme Court”). Thus, to

be reviewed on the merits, Hodges’ claim must be based on either

(A) new evidence that would have been unknowable through the

exercise of due diligence, or (B) a fundamental constitutional

right that has been held to apply retroactively and was not

established before November 29, 1993. Fla. R. Crim. P.

3.851(d)(2)(A)-(B). Hodges cannot meet these requirements.

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CLAIM I: HODGES IS NOT ENTITLED TO RELIEF FROM THIS COURT UNDER HURST V. FLORIDA AND HURST V. STATE.

Hodges asserts he is entitled to relief under Hurst v.

Florida and Hurst v. State because his death sentence violates

the Sixth Amendment to the United States Constitution. This claim

is untimely, procedurally barred from review, and cannot be

applied retroactively. Rule 3.851(d)(2)(B) provides that a motion

for postconviction relief may be filed out of time only where

“the fundamental constitutional right was not established within

the time period provided for in subdivision (d)(1) and has been

held to apply retroactively.” Hurst v. Florida does not apply

retroactively to cases like Hodges’ that were already final when

the United States Supreme Court issued its decision in Ring v.

Arizona, 536 U.S. 584 (2002). Asay v. State, 2016 WL 7406538

(Fla. Dec. 22, 2016).

When a constitutional rule is announced, its requirements

apply to defendants whose convictions or sentences are pending on

direct review or not otherwise final. Griffith v. Kentucky, 479

U.S. 314, 323 (1987). In Hurst v. Florida, the United States

Supreme Court extended its holding in Ring to Florida’s death

penalty procedures, holding that the Sixth Amendment right to

jury trial rendered those procedures unconstitutional because

they allowed a judge to make the necessary findings to render a

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death penalty. Hodges’ conviction and sentence were final in

1993, long before Ring was decided. In Asay, 2016 WL 7406538 at

*7-14, the Florida Supreme Court ruled that Hurst v. Florida does

not apply retroactively to cases that were final when Ring was

decided. See also Mosley v. State, 2016 WL 7406506, *18 (Fla.

Dec. 22, 2016) (“[W]e have now held in Asay v. State that Hurst

does not apply retroactively to capital defendants whose

sentences were final before the United States Supreme Court

issued its opinion in Ring.”). In Gaskin v. State, 2017 WL 224772

(Fla. Jan. 19, 2017), the court again denied relief in a Hurst

claim. The court explained that Gaskin was not entitled to relief

under Hurst because his sentence became final in 1993. Id. at *2.

See also Bogle v. State, 2017 WL 526507 (Fla. Feb. 9, 2017)

(rejecting Hurst based claims because Bogle’s conviction and

sentence were final when Ring was issued). See also Lambrix v.

State, 2017 WL 931105 (Fla. Mar. 9, 2017) (“In accordance with

our opinion in [Asay], we conclude that Lambrix is not entitled

to a new penalty phase based on Hurst v. Florida, and our opinion

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

Whether or not Hodges previously raised a Ring claim makes

no difference in whether he is entitled to relief because his

sentence was final prior to Ring. Asay, 2016 WL 7406538 at *13;

Mosley, 2016 WL 7406506 at *18; Gaskin, 2017 WL 224772 at *2; 7

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Bogle, 2017 WL 526507 at *16. The Florida Supreme Court has set a

clear boundary for the retroactive application of Hurst. Hodges’

death sentence was final in 1993. This was before Ring was

decided in 2002. Under the Florida Supreme Court’s controlling

precedent, Hurst is not retroactive to his case, and his motion

must be denied. Asay; Gaskin; Bogle; Lambrix.

Despite the Florida Supreme Court’s unequivocal rulings on

the issue, Hodges claims his motion is timely and that Hurst can

be applied to his case. Specifically, Hodges argues that Mosley

in fact created two sets of capital defendants entitled to seek

relief under Hurst: (1) all cases which were not yet final when

Ring was decided in June 2002; and (2) all cases where the

defendants specifically preserved a Ring issue, regardless of the

date of finality. Hodges claims to be a member of the second

class, and therefore entitled to relief under Hurst.

However, Hodges’ interpretation is not supported by a

reasonable reading of Mosley. Although the Florida Supreme Court

analyzes the issue under both the “fundamental fairness”

principles of James v. State, 615 So. 2d 668 (Fla. 1994), and the

traditional retroactivity factors of Witt v. State, 387 So. 2d

922 (Fla.), cert. denied, 449 U.S. 1067 (1980), the opinion gives

no indication that any defendant who has challenged the lack of

jury factfinding at sentencing at any time can now seek relief 8

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under Hurst. To the contrary, Mosley cited to and built on Asay,

where the court expressly held that Ring does not apply to cases

that were final prior to Ring. Mosley, 2016 WL 7406506 at *18.

Accordingly, the time-of-finality factor was in play prior to

Mosley even being decided and applies to both retroactivity

analyses conducted in that case. Id. at *25 (Thus, Mosley, whose

sentence was final in 2009, falls into the category of defendants

who should receive the benefit of Hurst.”) (emphasis added).

If Mosley itself is not clear on the issue, the Florida

Supreme Court reiterated in Gaskin that capital sentences that

were final prior to 2002 are not entitled to any reconsideration

under Hurst. In Gaskin, the defendant raised the substance of a

Hurst claim both at trial and on direct appeal, specifically

challenging the lack of unanimous jury factfinding as to

sentencing factors. Gaskin, 2017 WL 224772 at *3 (Pariente, J.,

concurring and dissenting). The Florida Supreme Court found this

unpersuasive in deciding retroactivity and held that “[b]ecause

Gaskin’s sentence became final in 1993, Gaskin is not entitled to

relief under Hurst v. Florida.” Id. at *2. Gaskin clearly renders

Hodges’ claim meritless and it should be denied.

Despite Hodges’ complaints that the result is not fair, this

Court is obligated to follow the precedent of the Florida Supreme

Court in Gaskin and Asay. State v. Herring, 76 So. 3d 891, 897 9

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(Fla. 2011); State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976)

(“Where an issue has been decided in the Supreme Court of the

state, the lower courts are bound to adhere to the Court’s ruling

when considering similar issues, even though the court might

believe that the law should be otherwise.”). There is no language

in Asay or any other case which supports the suggestion that

retroactivity is to be reconsidered anew in every case. The rules

of procedure counsel against such action, since a successive

motion is only timely once a new constitutional decision has been

affirmatively held to be retroactive. This rule is meaningless if

retroactivity is to be a case-by-case, individualized

determination. Accordingly, this Court must apply Asay and Gaskin

and find Hodges’ motion to be untimely.

Finally, Hodges’ suggestion that Caldwell v. Mississippi,

472 U.S. 320 (1985), mandates relief in this case is patently

without merit. First, any complaint about jury instructions at

this point is untimely and procedurally barred from consideration

in this successive postconviction motion. Troy v. State, 57 So.

3d 828, 838 (Fla. 2011). In addition, to establish constitutional

error under Caldwell, a defendant must show that the comments or

instructions to the jury “improperly described the role assigned

to the jury by local law.” Romano v. Oklahoma, 512 U.S. 1, 9

(1994). The jury was properly instructed on its role based on the 10

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law existing at the time of Hodges’ trial. It is ludicrous to

suggest that the jury should have been instructed in accordance

with a constitutional change in the law which occurred long after

the trial. For all these reasons, Hodges’ motion must be

summarily denied.

CLAIMS II & III: HODGES IS NOT ENTITLED TO RELIEF UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION BASED ON HURST.

Hodges invokes the Eighth Amendment to the United States

Constitution and claims that the Florida Supreme Court’s

adoption of partial retroactivity is unconstitutional. However,

the United States Supreme Court has acknowledged that the issue

of postconviction retroactivity, even for federal constitutional

violations, is primarily a matter of state law. Danforth v.

Minnesota, 522 U.S. 264, 288 (2008). There is no United States

Supreme Court Eighth Amendment decision which supports Hodges’

claim.

Hodges is not being treated any differently than similarly

situated capital defendants. In fact, Hodges should be treated

exactly the same as similarly situated capital defendants. That

is, his claims—all premised on Hurst—should be rejected because

his death sentence was final when the decision in Ring was

announced. Asay; Gaskin; Bogle; Lambrix. Hodges’ Eighth

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Amendment claim fails procedurally and substantively, and must

be denied.

Hodges also asserts a separate, stand-alone argument of

constitutional error based on the Eighth Amendment, but this

claim is similarly subject to summary denial. As the United

States Supreme Court has never held that the Eighth Amendment

requires a unanimous jury recommendation, this claim is

procedurally barred and meritless.

In Spaziano v. Florida, 468 U.S. 447, 463-64 (1984), the

United States Supreme Court held that the Eighth Amendment is

not violated in a capital case when the ultimate responsibility

of imposing death rests with the judge. In deciding Hurst v.

Florida, the United States Supreme Court analyzed the case

pursuant to Sixth Amendment grounds and overruled Spaziano to

the extent that it allows a sentencing judge to find aggravating

circumstances independent of a jury’s factfinding. Hurst v.

Florida, 136 S. Ct. at 618. The Court did not address the issue

of any possible Eighth Amendment violation, and similarly, it

did not overrule Spaziano on Eighth Amendment grounds.

While the Florida Supreme Court initially included the

Eighth Amendment as a reason for warranting unanimous jury

recommendations in its Hurst decision, the court did not, and

cannot, overrule the United States Supreme Court’s surviving 12

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precedent in Spaziano. In addition, Florida has a conformity

clause in its state constitution that requires the state courts

to interpret Florida’s prohibition on cruel and unusual

punishments in conformity with the United States Supreme Court’s

Eighth Amendment jurisprudence. Art. I, § 17, Fla. Const.; Henry

v. State, 134 So. 3d 938, 947 (Fla. 2014) (noting that under

Article I, section 17 of the Florida Constitution, Florida

courts are “bound by the precedent of the United States Supreme

Court” regarding Eighth Amendment claims). Given that there is

no United States Supreme Court case holding that the Eighth

Amendment requires the jury’s final recommendation be unanimous,

Hodges’ argument must fail.

While the Florida Supreme Court found unanimity necessary

under the state and federal constitutions in Hurst, as

previously demonstrated, that case is not retroactive to Hodges.

Finally, reliance on any purported fairness in jury

factfinding is misplaced. Just like Ring did not enhance the

fairness or efficiency of death penalty procedures, neither does

Hurst. Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005). As the

United States Supreme Court has explained, “for every argument

why juries are more accurate factfinders, there is another why

they are less accurate.” Schriro v. Summerlin, 542 U.S. 348, 356

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(2004). Because the accuracy of Hodges’ death sentence is not at

issue, fairness does not demand retroactive application of Hurst.

In short, the Florida Supreme Court has made it very clear

that Hurst should not be applied retroactively to cases in which

the death sentence became final before the issuance of Ring.

Hodges’ case squarely falls within this parameter. Each claim

presented in this successive postconviction motion is premised on

Hurst being applied to Hodges’ case, which is contrary to

established law. Therefore, all relief must be denied.

CLAIM IV: HODGES IS NOT ENTITLED TO A REOPENING OF HIS INITIAL POSTCONVICTION PROCEEDING

In this claim, Hodges appears to be suggesting that the

Florida Supreme Court’s rejection of the non-unanimous jury

recommendation in § 921.141, Florida Statutes (2016), somehow

qualifies as “newly discovered evidence” that entitles him to a

new postconviction proceeding. Thus, he contends, this Court

must re-evaluate his initial postconviction evidence in light of

the requirement of unanimity in the jury recommendation. In

essence, Hodges is claiming entitlement to a reopening of his

initial postconviction proceeding based on Hurst v. State, and

on Perry v. State, 2016 WL 6036982 (Fla. Oct. 14, 2016)

(invalidating Florida’s revised 2016 death penalty statute for

its failure to require unanimity in the jury’s death

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recommendation). There is no basis in the law for Hodges’

suggestion. The Florida Supreme Court has determined that Hurst

does not apply retroactively to cases, like Hodges’, that were

final prior to the issuance of Ring in 2002. Asay. That is the

end of it. Hodges is not entitled to a reopening of his initial

postconviction proceeding or any other relief based on Hurst.

Hodges’ reliance on Hildwin v. State, 141 So. 2d 1178 (Fla.

2014), and Swafford v. State, 125 So. 3d 760 (Fla. 2013), is

misplaced. Both cases require a cumulative analysis of all the

evidence when a claim of newly discovered evidence is being

raised. A Hurst based claim, however, is not a claim of newly

discovered evidence and is not premised in any way on

evidentiary concerns. Hurst is a purely legal issue, and no

language from any case offers support for Hodges’ position that

his previously denied claims must be reconsidered under Hurst.

Indeed, Hurst, a Sixth Amendment right-to-a-jury-trial case,

does not operate to breathe new life into unrelated, previously

denied claims.

Hodges further argues that the new requirements for jury

unanimity would impact the prejudice prong of his previously

litigated Strickland v. Washington, 466 U.S. 668 (1984), claims

because he would allegedly be more likely to receive a life

sentence. This argument is based on nothing but mere 15

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speculation, and “[p]ostconviction relief cannot be based on

speculation or possibility.” Maharaj v. State, 778 So. 2d 994,

951 (Fla. 2000). Furthermore, Hodges’ argument assumes he is

entitled to relief under Hurst, when, as explained herein, he is

clearly not. It further assumes that his prior claims can be

resurrected, when they cannot be. Even if Hodges could

relitigate his previously disposed of claims, he would be

entitled to no relief because the prejudice standard requires a

showing that the defendant was prejudiced by other

constitutional errors, not a Sixth Amendment factfinding error.

Strickland, 466 U.S. at 695.

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CONCLUSION

In conclusion, Hodges’ conviction and sentence were long

final prior to the decision in Ring. In Asay, the Florida

Supreme Court has ruled that Hurst does not apply retroactively

to capital defendants whose sentences were final before the

United States Supreme Court issued its decision in Ring. Because

Hurst is not retroactive to cases that were final prior to the

Ring decision, Hodges is not entitled to relief as a matter of

law. Accordingly, Hodges’ motion must be summarily denied.

Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ C. Suzanne Bechard_ C. SUZANNE BECHARD Assistant Attorney General Florida Bar No. 0147745 Office of the Attorney General 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 [email protected] [and] [email protected] CO-COUNSEL, STATE OF FLORIDA

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 28th day of March, 2017, I

filed the foregoing with the Clerk of the Court by using the E-

Portal Filing System which will send a notice of electronic

filing to the following: Linda McDermott, Esquire, McClain &

McDermott, P.A., 20301 Grande Oak Boulevard, Suite 118-61,

Estero, Florida 32928, [email protected]; and Jay Pruner,

Assistant State Attorney, 419 N. Pierce St., Tampa, Florida

33602, [email protected] and Honorable Michelle

Sisco, 401 N. Jefferson St., Room #102, Tampa, Florida 33602,

[email protected].

/s/ C. Suzanne Bechard_ CO-COUNSEL, STATE OF FLORIDA

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Filing # 55211400 E-Filed 04/18/2017 12:42:14 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 89-2165

STATE OF FLORIDA,

Plaintiff, v.

GEORGE M. HODGES,

Defendant. ______/

MOTION FOR LEAVE TO AMEND PENDING AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE, PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851

COMES NOW, the Defendant, GEORGE M. HODGES, by and through undersigned

counsel, and respectfully moves this Court to allow him to amend his pending amended

successive Rule 3.851 motion. In support of this motion, Mr. Hodges states as follows:

1. Mr. Hodges is before this Court on his amended successive motion to vacate his

death sentence, filed on March 1, 2017, and raising four claims challenging his death sentence.

A case management conference is currently scheduled for April 26, 2017.

2. Claim II of Mr. Hodges’ motion to vacate presented his claim that he was

deprived of his substantive constitutional right to be free of a death sentence unless a jury

unanimously returned a death recommendation. This substantive right as noted in the text of the

motion was identified and recognized by the Florida Supreme Court in Hurst v. State, 202 So. 3d

40 (Fla. 2016), a decision released on October 14, 2016. The Florida Supreme Court found this

fundamental right on the basis of the Florida Constitution, and alternatively on the basis of the

Eighth Amendment and a societal consensus reflecting the evolving standards of decency.

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3. As explained in the motion to vacate, in Hurst v. State, 202 So. 3d at 44, the

Florida Supreme Court held that in light of Hurst v. Florida, in order for a death sentence to be

authorized under Florida law, the statutorily required and identified facts were in effect elements

of the criminal offense, i.e. capital first degree murder. A death sentence was not authorized

until a jury returned a verdict finding the defendant guilty and each element of the offense proven

by the State beyond a reasonable doubt. Based upon a Florida defendant’s substantive right to be

convicted of a criminal offense only upon a unanimous jury verdict, the Florida Supreme Court

held in Hurst v. State that the jury must return a unanimous verdict reflecting unanimous findings

of the necessary facts and a unanimous death recommendation before a death sentence was even

authorized. The substantive right that a defendant cannot receive a death sentence unless the jury

returns a unanimous death recommendation was found to be contained in the Florida

Constitution:

We are mindful that a plurality of the United States Supreme Court, in a non-capital case, decided that unanimous jury verdicts are not required in all cases under the Sixth Amendment to the United States Constitution. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion). However, this Court, in interpreting the Florida Constitution and the rights afforded to persons within this State, may require more protection be afforded criminal defendants than that mandated by the federal Constitution. This is especially true, we believe, in cases where, as here, Florida has a longstanding history requiring unanimous jury verdicts as to the elements of a crime.

202 So. 3d at 57 (emphasis added) (footnote omitted). This unanimity requirement was not

derived from Hurst v. Florida itself nor the Sixth Amendment, but from the Florida Constitution.

“We reach this holding based on the mandate of Hurst v. Florida and on Florida's constitutional

right to jury trial, considered in conjunction with our precedent concerning the requirement of

jury unanimity as to the elements of a criminal offense.” 202 So. 3d at 44.

2

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4. Then, on December 22, 2017 in Mosley v. State, 209 So. 3d 1248 (Fla. 2016), the

Florida Supreme Court observed that in Hurst v. State, “we held, based on Florida's

independent constitutional right to trial by jury that, in order for the trial court to impose

a sentence of death, the jury's recommendation for a sentence of death must be

unanimous.” Id. at 1273-74 (emphasis added). Again, the Florida Supreme Court recognized

the substantive state constitutional right that a defendant could not be sentenced to death unless

the jury’s death recommendation had been unanimous. Otherwise, a judge was not authorized to

impose a death sentence.1

5. Significantly, on March 13, 2017, Chapter 2017-1 which amends Florida’s capital

sentencing statute to preclude the imposition of a death sentence unless a jury returns a

unanimous death recommendation was enacted. In others words, the legislature has codified the

fundamental constitutional right that the Florida Supreme Court identified in Hurst v. State.

6. Chapter 2017-1 applies retrospectively to all homicide cases regardless of the date

of the offense. It will apply to any first degree murder case that goes to trial. It will apply to any

first degree murder case in which a retrial or resentencing is conducted. Thus, the statute will

govern at Paul Johnson’s resentencing which was recently ordered even though the homicides for

which he is to be sentenced occurred in 1981. Johnson v. State, 205 So. 3d 1285 (Fla. 2016). His

conviction of those homicides was final in 1992, yet at his resentencing which will occur at some

point in the future, Mr. Johnson cannot receive a death sentence if one or more jurors votes for a

life sentence. Mr. Johnson’s homicides occurred before the one Mr. Hodges stands convicted of,

1Under Hurst v. State, the State of Florida can no longer impose a death sentence on a defendant when one or more of his jurors voted in a favor of a life sentence.

3

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and Mr. Johnson’s convictions were final before Mr. Hodges’ convictions became final. Yet,

Mr. Johnson now has a substantive right under the statute to an acquittal of the capital first

degree murder if one juror votes for a life sentence.

7. This statutory right arises from statute that creates a substantive rule, and as such

must be applied retroactively. In Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016), the US

Supreme Court held:

As a final point, it must be noted that the retroactive application of substantive rules does not implicate a State's weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of “continually forc[ing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.” 489 U.S., at 310, 109 S.Ct. 1060. This concern has no application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction or sentence that the Constitution deprives the State of power to impose. See Mackey, 401 U.S., at 693, 91 S.Ct. 1160 (opinion of Harlan, J.) (“There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose”).

In Welch v. United States, 136 S. Ct. 1257, 1264 (2016), the US Supreme Court held:

First, “[n]ew substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); see Montgomery v. Louisiana, 577 U.S. ––––, ––––, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016); Teague, supra, at 307, 311, 109 S.Ct. 1060. Second, new “ ‘watershed rules of criminal procedure,’ ” which are procedural rules “implicating the fundamental fairness and accuracy of the criminal proceeding,” will also have retroactive effect.

In Schriro v. Summerlin, 542 U.S. 348, 355-56 (2004), the US Supreme Court explained what is

necessary for a new rule to qualify as watershed:

Rather, the question is whether judicial factfinding so “seriously diminishe[s]” accuracy that there is an “ ‘impermissibly large risk’ ” of punishing conduct the law does not reach.

In his dissenting opinion in Schriro, Justice Breyer explained:

As I have pointed out, the majority does not deny that Ring's rule makes some contribution to greater accuracy. It simply is unable to say “confidently” that the absence

4

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of Ring's rule creates an “ ‘ “impermissibly large risk” ’ ” that the death penalty was improperly imposed.

542 U.S. at 366.

8. Chapter 2017-1 incorporates a rule that does more than just contribute to greater

accuracy. Had the rule existed at the time of Mr. Hodges’ penalty phase, he would have been

acquitted of capital first degree, i.e. first degree murder plus a jury’s unanimous death

recommendation finding the facts necessary to make him eligible for a death sentence. This is

because one juror voted for a life sentence. This means that there is an “impermissibly large

risk” that a death sentence was imposed when the conduct did not rise to the level necessary for

the imposition of a death sentence. As a result, the retrospective Chapter 2017-1 established a

substantive rule that must be applied retroactively.

9. This Court should grant this motion and allow Mr. Hodges to amend his

successive motion to vacate with a claim based upon Chapter 2017-1. In Spera v. State, the

Florida Supreme Court held that a trial court abuses its discretion if it does not permit a

defendant to amend his Rule 3.851 motion if the court has not ruled on the motion and the time

for filing the claim has not expired. 971 So. 2d 754, 759 (Fla. 2007)(“We have held that a trial

court abuses its discretion when it refuses to consider amendments to a motion filed before the

deadline and before the trial court rules on the motion.”). Here, the time for amending Mr.

Hodges’ claim has not expired as he would have a year from March 13, 2017, to file his amended

claim, and this Court has yet to rule on Mr. Hodges’ motion.

WHEREFORE, Mr. Hodges requests that this Court permit him to amend his amended

successive Rule 3.851 motion and continue the case management conference scheduled for April

5

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26, 2016.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished

electronic service to C. Suzanne Bechard, Assistant Attorney General, Office of the Attorney

General, Concourse Center 4, 3507 East Frontage Road, Suite 200, Tampa, FL 33607-7013, on

this 19th day of April, 2017.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

6

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P152 IN THE THIRTEENTH JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA Criminal Justice and Trial Division

STATE OF FLORIDA CASE NO.: 89-CF-002165

GEORGE HODGES, DIVISION: J Defendant.

ORDER ON APRIL 26, 2017 CASE MANAGEMENT CONFERENCE

THIS MATTER came before the Court on Defendant's Amended Successive Motion to

Vacate Death Sentence Pursuant to Florida Rule of Criminal Procedure 3.851, filed on March 1,

2017, pursuant to Florida Rule of Criminal Procedure 3.851.1 On March 28, 2017, the State filed its Answer to Defendant's Amended Successive Motion for Postconviction Relief. On April 18,

2017, Defendant filed a Motion for Leave to Amend Pending Amended Successive Motion to

Vacate Death Sentence, Pursuant to Florida Rule of Criminal Procedure 3.851.

On April 26, 2017, the Court held a hearing, which was originally scheduled as a case management conference. This order memorializes the Court's rulings during the April 26, 2017 hearing.

Linda McDermott, Esq., appeared telephonically on behalf of Defendant, and Assistant

Attorney General Suzanne Bechard and Assistant State Attorney Jay Pruner appeared on behalf of the State. Ms. McDermott argued her April 18, 2017 motion and requested leave to amend

Defendant's successive motion for postconviction relief to add a claim that incorporates the recently enacted amended death penalty statute. Over the State's objection, the Court granted

¹ The Court notes that Defendant initially filed a Successive Motion to Vacate Death Sentence Pursuant to Florida Rule of Criminal Procedure 3.851 on December 14, 2016, and the State filed its Answer to Defendant's Successive Motion for Postconviction Relief on Janaury 3, 2017. The March 1, 2017 amended motion and the March 28, 2017 response supplant the initial filings. Page 1 of 3

P153 counsel's request. The Court gave the defense until close of business on May 8, 2017 to file the amended claim (not to exceed 10 pages), and allowed the State until close ofbusiness on May 24,

2017, to file a response. The Court scheduled another case management conference for June 15,

2017.

It is therefore ORDERED AND ADJUDGED that Defendant's Motion for Leave to

Amend Pending Amended Successive Motion to Vacate Death Sentence, Pursuant to Florida Rule of Criminal Procedure 3.851is hereby GRANTED.

It is further ORDERED AND ADJUDGED that Defendant SHALL HAVE UNTIL

MAY 8, 2017, to file an amended claim, and the State SHALL HAVE UNTIL MAY 24, 2017, to respond to Defendant's amended claim.

It is further ORDERED that a case management conference is hereby SCHEDULED for

June 15, 2017 at 1:30 p.m.

DONE AND ORDERED in Chambers in Hillsborough County, Florida this ay of

April, 2017, nunc pro tunc, April 26, 2017. \

D. MICHE LE SISCÓ Circuit Judge

Page 2 of 3

P154 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this order has been furnished to Lisa McDermott,

Esq., Attorney for Defendant, 20301 Grande Oak Blvd., Suite 118-61, Estero, FL 33928, by U.S. mail; Jay Pruner, Esq., Office of the State Attorney, Thirteenth Judicial Circuit, 419 N. Pierce

Street, Tampa, FL, 33602, by inter-office mail; and Suzanne Bechard, Esq., Office ofthe Attorney

General, 3507 E. Frontage Rd., Suite 200, Tampa, FL 33607, by U.S. mail, on thi day of

April, 2017.

IIeputy Clefk

Page 3 of 3

P155 P156

Filing # 56114613 E-Filed 05/08/2017 12:20:13 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. 89-2165 STATE OF FLORIDA, Plaintiff, v. GEORGE M. HODGES, Defendant. ______/ SECOND AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.851 COMES NOW, GEORGE MICHAEL HODGES, Defendant in the above-captioned action, and hereby files this successive motion to vacate under Fla. R. Crim. P. 3.851. This motion is filed in light the decisions in Hurst v. Florida, 136 S.Ct. 616 (2016), Hurst v. State, 202 So. 3d 40 (Fla. 2016), and Perry v. State, 2016 WL 6036982 (Fla. Oct. 14, 2016).

Procedural History 1. On January 8, 1987, Betty Ricks was shot (R. 256-58). Ricks died the next day of gunshot wounds to her head and neck (R. 283, 287). In 1989, Hodges, was indicted for first degree murder (R. 806, 815). Following a trial, a jury convicted Hodges (R. 650). 2. Subsequent to a penalty phase, the jury recommended death (R. 741-44); the Court sentenced Hodges to death (R. 893-99, 902-08). 3. On direct appeal, the Florida Supreme Court affirmed Hodges’ conviction and sentence. Hodges v. State, 595 So. 2d 929 (Fla. 1992).1 However, US Supreme Court vacated the

judgment and remanded in light of Espinosa v. Florida, 505 U.S. 1079 (1992). On remand, the

Florida Supreme Court affirmed Hodges’ sentence. Hodges v. State, 619 So. 2d 272 (Fla. 1993).

4. On June 20, 1995, Hodges filed a motion under Rule 3.850 (PC-R. 14-54). The

1Hodges raised the following grounds on appeal: 1) inadmissible hearsay was admitted at the guilt phase; 2) inadmissible hearsay was admitted at the penalty phase; 3) the improper admission of evidence; 4) failure to hold a competency hearing; 5) Hodges’ right to be present for all critical stages was violated; 6) a Booth claim; 7) improper prosecutorial argument; and 8) improper aggravating factors.

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Court granted an evidentiary hearing on four claims (PC-R. 210-30, 730-49). On June 6, 2001, the Court denied relief. Hodges appealed, and the Florida Supreme Court affirmed. Hodges v. State, 885 So. 2d 338 (Fla. 2003).2 5. On April 22, 2002, Hodges filed a habeas corpus petition in the Florida Supreme Court, which denied relief. Hodges v. State, 885 So. 2d 338 (Fla. 2003).3 On March 4, 2005, Hodges filed a second habeas corpus petition based upon Crawford v. Washington, 124 S.Ct. 1354 (2004). The petition was denied. Hodges v. Crosby, 907 So. 2d 1170 (Fla. 2005). 6. On January 4, 2006, Hodges filed a federal habeas corpus petition. The petition was denied. Hodges’ appealed was denied. Hodges v. Attorney General, 506 F.3d 1337 (11th Cir. 2007). Hodges’ petition for writ of certiorari was denied. Hodges v. McNeil, 129 S.Ct. 122 (2008).

7. On July 28, 2008, Hodges filed a successive postconviction motion in this

Court based on a lethal injection issue (PC-R2. 12). This Court issued an order summarily denying

the motion (PC-R2. 64-82). Hodges appealed, and the Florida Supreme Court affirmed. Hodges v.

State, SC09-575 (Fla. Jan. 11, 2010).

8. On October 21, 2010, Hodges filed a successive Rule 3.851 motion based upon

Porter v. McCollum, 130 S.Ct. 447 (2009). This Court denied Hodges’ motion. Hodges appealed,

and the Florida Supreme Court affirmed. Hodges v. State, 94 So. 3d 498 (Fla. 2012).

Relevant Facts

A. The Trial

1. In 1987, Betty Ricks was shot and killed as she exited her car at the Beverage Barn in

2Hodges raised the following issues on appeal: 1) trial counsel was ineffective at the penalty phase; 2) Hodges received ineffective assistance as to mental health issues; 3) Hodges was denied due process; 4) trial counsel was ineffective in failing to present evidence rebutting the cold, calculated, and premeditated aggravtor; 5) the jury instructions shifted the burden to Hodges to prove that death was inappropriate; 6) Florida’s death penalty statute is unconstitutional as applied; and 7) error in denying an evidentiary hearing on a number of claims. 3In his petition for writ of habeas corpus, Hodges repeated his claims regarding the burden shifting and aggravating factors. He also argued that appellate counsel rendered ineffective assistance by failing to challenge the introduction of collateral crime evidence and the exclusion of a potential juror. Hodges further claimed that Florida’s death penalty statute is unconstitutional. 2

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Plant City to begin work on January 10th. In 1989, the police arrested Hodges. 2. The testimony presented at the guilt phase of Hodges’ capital trial was entirely circumstantial. Over defense objections, the State presented evidence that Ricks had accused Hodges of exposing himself to her in November, 1986 (R. 296), and that she was adamant about prosecuting him (R. 297). Hodges was directed into an arbitration hearing and was scheduled to attend on January 8th (R. 488). That day he called the program and said there was no reason for him to go through the diversion program (R. 489). 3. Additionally, the State presented a witness, Janetta Hansen, who worked with Hodges at Zayre, which was located across the street from the Beverage Barn (R. 306). On the morning of the crime, while it was still dark, Hansen saw a truck that looked like Hodges’ near the

Beverage Barn, but she did not see the victim’s car (R. 311).

4. The medical examiner testified that Ricks had been shot twice (R. 288). Hodges

owned a shotgun, as did his step-son (R. 387).

5. Detective Miller testified that Hodges maintained that his step-son, Jesse Watson,

drove his car to school on the morning of the crime, but returned home around 8:30 a.m. because he

felt ill (R. 333). Hodges also surrendered his shotgun to the police (R. 333).

6. In order to refute Hodges’ statements, the State presented testimony from his family

members. Watson, testified that he awoke at 5:30 a.m. on the morning of the crime, when he heard

Hodges come home (R. 417). He testified that Hodges entered the house with his shotgun (R. 418).

Watson told Hodges that he was not feeling well and Hodges told him to drive his truck to school

(R. 420). Watson identified the shotgun in evidence as his (R. 416). 7. Watson testified that he lied to the police when he was interviewed about the crime (R. 425). And, Watson stated that Hodges admitted that he was involved in the crime, but that Watson did not believe him (R. 428). Watson was impeached with letters he wrote to Hodges, while he was incarcerated, admitting that he lied to the police about Hodges’ alleged confession and informing Hodges that the police and prosecutors were pressuring him (R. 430). Watson also admitted that he was a drug addict and that he was undergoing treatment for his problem (R. 434).

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8. Hodges’ wife, Harriet Hodges, testified that on the evening before the crime, she and Hodges stayed up late and played cards with friends (R. 382). When she awoke the next morning she heard Hodges speaking to Watson (R. 383). Harriet did not know whether, on the morning of the crime, Hodges left the house (R. 390). 9. Vickie Boatwright, Watson’s girlfriend, testified that Hodges told her in 1988, that he shot a woman and she died (R. 367). She also testified that Hodges stated that nothing happened because he gave the police Watson’s gun. On cross examination, Boatwright testified that she thought Hodges was kidding (R. 387). She also admitted that she did not tell the police about this conversation until after she was questioned twice and spoke to Watson (R. 371). 10. The defense presented evidence that a witness saw a truck, not Hodges’, in the

parking lot of the Beverage Barn around 6:00 a.m., on the morning of January 8th (R. 539-1).

11. Following the conviction, the penalty phase hearing lasted less than 45 minutes. The

State presented Det. Orzechowski and Horn as well as Debra Ricks, the victim's sister. All three of

the witnesses' testimony consisted of the hearsay testimony that the victim, told them that Hodges

approached her and attempted to convince her to drop the exposure charge (R. 681, 685, 689).

12. Hodges presented the testimony of two witnesses: Lula Hodges and Harold Stewart,

his mother and brother-in-law. Lula testified that George grew up in West Virginia; the family

moved around a lot; that George did not finish high school, but obtained a GED and that George's

brother drowned and "[i]t seemed to change [George] completely, because they was real close." (R.

694). Stewart testified that George was a good worker and a good father (R. 697-8).

13. The jury recommended death by a vote of 10 to 2 (R. 739). 14. The trial court sentenced Hodges to death finding: (1) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; and (2) The crime was committed in a cold, calculated and premeditated manner (R. 906-8). The court’s order stated: “the Court has attempted to find mitigating circumstances sufficient in weight to offset the [] aggravating circumstances . . . Mr. Hodges’ family has spoken as to his character and dedication to his family.” (R. 908).

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B. The Direct Appeal 15. During Hodges’ direct appeal, the Florida Supreme Court found that inadmissible hearsay was admitted during the guilt phase regarding the victim’s statements that she was adamant about prosecuting Hodges. Hodges v. State, 595 So. 2d 929, 931-2 (Fla. 1992). 16. Further, the Florida Supreme Court found that the prosecutor’s closing argument during the penalty phase was error. Id. at 933-934. However, the Court found that the error was harmless and there was no objection. Id. 17. The US Supreme Court vacated Hodges’ sentence and remanded in light of Espinosa v. Florida, 505 U.S. 1079. Hodges v. Florida, 506 U.S. 803 (1992). On remand, the Florida Supreme Court found that the issue was procedurally barred. Hodges v. State, 619 So. 2d 272, 273

(Fla. 1993).

C. Postconviction Proceedings

18. At his evidentiary hearing, Hodges presented several witnesses who provided

detailed testimony regarding his troubled childhood. These witnesses included his sister Karen Sue

Tucker, his brother, Robert Hodges, and family friend Cecilia Sanson. In addition, Dr. Richard Ball,

a sociologist, testified regarding the detrimental effects growing up in the poverty stricken

subculture of southern Appalachia where the Hodges lived. Also, Dr. Marlin Delaney, a

toxicologist, testified regarding the effects of lead poisoning from the Kanawha River.

19. Specifically, Tucker, testified that the family lived in a small place called Lock

Seven, which was located in St. Albans, West Virginia (PC-T. 25). Sanson testified that Lock Seven

is “mainly [a] community of welfare people, drunks, druggies” (PC-T. 103). Further, Ball described the area as a “subculture of the southern Appalachian” (PC-T. 460), and he explained that a subculture consists of a “pattern of values that are somewhat different from that prevailing in the rest of the country.” (PC-T. 460). 20. The area was populated with chemical plants and industry (PC-R. 26, 100). Chemical waste and pollutants were dumped into the Kanawha River by the plants causing water pollution so severe that it killed or caused mutations of the fish (PC-T. 109). The waste also effected the taste

5

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and created odor problems in public water supplies (PC-T. 38). Traces of cyanide, manganese, lead, mercury and cadmium were found in the river (PC-T. 274-5). 21. The witnesses also described Hodges’ dysfunctional and chaotic family life. Tucker testified that the family moved twenty to twenty-five times when she and her siblings were growing up (PC-T. 30). The houses were usually two-bedroom houses, where the five children shared a room and their parents had a room (PC-T. 40). Some of the houses did not have heat or indoor plumbing (PC-T. 39). All of the houses had rats in them (PC-T. 39). 22. Dr. Michael Maher testified that the family lived in extreme impoverishment “of a nature which in the modern United States is almost unheard of except in some very isolated areas.” (PC-T. 258). Ball testified that Lock Seven is ‘just about at the bottom of the ladder

socioeconomically’ (PC-T. 474). Tucker explained that the garbage dump was the only place the

Hodges “got anything, because, you know, we didn’t have a lot when we was growing up. I mean,

that was just simple. You know, daddy didn’t make a lot; and what he did, he drank.” (PC-T. 32).

23. The witnesses testified that the Hodges children wore feed sacks as clothes or took

clothes from a garbage dump (PC-T. 31). The dump smelled vile but the family also ate from it (PC-

T. 34, 38). Tucker and Robert explained that the chemical plants used the dump to deposit chemical

waste (PC-T. 34, 81). Sanson recalled when a dead baby was found in the dump (PC-T. 107).

24. As far as nutrition, the family ate mayonnaise sandwiches, contaminated fish from

the contaminated river, and potatoes and pinto beans (PC-T. 29, 31, 60, 76). Robert testified that the

Hodges’ children were often hungry: “Well, you’d get maybe two spoonfuls of beans; a small piece

of cornbread, about two inches square; and a couple of spoons of potatoes.” (PC-T. 78). 25. Like most impoverished families, the Hodges also did not have proper medical care. There was no money for medicine or insurance (PC-T. 84). When the children needed glasses they were provided by the Lions Club (PC-T. 55). Living near the dump, Hodges and his siblings were often afflicted with “fall” sores and infections that took several weeks to heal (PC-T. 35-6). Hodges suffered from whooping cough throughout his childhood (PC-T. 37). 26. The witnesses also testified about Hodges’ father. Tucker testified:

6

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A: My daddy drank all the time. * * * Q: So, you said he drank all the time? A: He drank up until I was about 18 years old and then quit. Q: I guess – could you – could you tell the judge what your dad was like when he was – had been drinking? A: He was mean. He was mean. I mean, I loved my dad, but he was mean. Q: Let’s talk about, you know, when your dad would get drunk, would – would he do anything to [George Hodges]? A: He got to us all. Q: Well, could you tell me what – what kind of things did your dad do? A: Mainly to my mother. You know, he would — he – he’d beat my mother and then [George Hodges] and then Robert (crying) – sorry. Q: That’s okay. A: And then [George Hodges] and Robert, and Randy would try to stop him. * * * A: But they would try to stop him and he would just pick them up like rags and shook them up against the wall; and he’d tell us if we didn’t shut up, we’d be next. And, I mean, you know, you watched him beat your mother. The blood would pour from her nose; and when he gets done, you know, she’s right there with him like nothing happened.

(PC-T. 41-2). Tucker testified that the family beatings occurred three to four times a week (PC-T.

43). Her mother would lie about the beatings when people asked about her bruises and marks (PC-

T. 42). Hodges witnessed the brutal beatings of his mother (PC-T. 87).

27. Hodges’ also beat his children with switches, belts or his bare hands (PC-T. 87, 304).

In addition, Mrs. Hodges would beat her children, especially, if they told anyone that their father

beat her and them (PC-T. 43). Even when Tucker called her aunt for assistance a few times, her

mother would turn out the lights so that it looked like no one was home (PC-T. 43).

28. Tucker also testified about the events that occurred surrounding her parents’

marriage and the exposure to her parents’ sexual relationships. She testified that her parents had

affairs (PC-T. 45). At one time, her father impregnated his sixteen year old girlfriend and “[s]he

lived with us. She had the baby. You know they stayed with us.” (PC-T. 45). 29. In addition to his dysfunctional family life, Hodges had a difficult childhood. “He really only had one friend, and he was – he was retarded” – Raymond Riffle (PC-T. 46). Hodges also had a speech defect (PC-T. 46). The children at school teased him about his speech and appearance (PC-T. 46-7). 30. Hodges was close to his brother, Randy (PC-T. 47). When Randy drowned in the

7

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Kanawha River, Hodges “was lost” (PC-T. 49). Robert described Hodges’ reaction as: “he just withdrew off by himself, wouldn’t hardly talk to anybody. He stayed by himself.” (PC-T. 90). 31. The dysfunction and chaos of the Hodges family took a toll on all of the children: Robert has an alcohol problem and has tried to commit suicide three times (PC-T. 91). He was told that he was depressed (PC-T. 93). Randy was hyperactive and suffered from ADHD which resulted in severe mood swings (PC-T. 68). He and George Hodges shared a close relationship, but an abusive one. Randy took advantage of his brother, engaging him in sex throughout their childhood and teenage years (Supp. T. 69). Hodges’ records illustrate three clear suicide attempts. Once he drank disinfectant. Another time he slit his wrists (PC-T. 162). On the third attempt, just after the penalty phase, he tried to hang himself (PC-T. 162).

32. Delaney confirmed the suspicions about the problems in the Kanawha River.

Delaney described the area near where the Hodges lived as a “cesspool” because of the “tremendous

amount of dumping” (PC-T. 128). Large volumes of hazardous wastes and other waste residuals

were disposed of in landfills, dumps, and surface impoundments that were not properly designed,

constructed, or maintained to adequately contain the toxic substances present in the wastes (Id.). As

a result, toxic pollutants were released to the air, surface water, and groundwater (PC-T. 278-80).

33. The lead in the water would uptake in the fish and “once you consume the fish,

you’ve taken in lead” (PC-T. 129). Delaney testified and Dr. Craig Beaver concurred that children

who ingest lead can develop neurological deficits, low IQ, behavioral problems and nervous system

problems (PC-T. 131, 231).

34. As to Hodges’ mental health Maher diagnosed Hodges with chronic depressive disorder, that he had brain damage and that Hodges suffered from “an extreme, beyond even what would normally be considered significant or dramatic, pattern of impoverishment and abuse as a child.” (PC-T. 257-8). 35. Maher also testified that Hodges’ history was filled with negative factors which impacted his mental health and behavior, including exposure to toxins (PC-T. 279), his malnutrition he suffered as a child (PC-T. 271), and his suicide attempts (PC-T. 283).

8

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36. Maher also concluded that Hodges was under the influence of an extreme mental or emotional disturbance at the time of the crime (PC-T. 292). He also concluded that there was evidence to rebut the cold, calculated and premeditated aggravating factor (PC-T. 300). 37. Beaver testified that Hodges suffers from brain dysfunction which affects him, that he suffers from a verbal learning disability and that he has suffered a lifelong struggle with depression (PC-T. 176-9, 180). Beaver agreed that Hodges was under the influence of extreme emotional distress at the time of the crime (PC-T. 188). 38. In rebuttal, the State presented the testimony of Dr. Sidney Merin. Merin concluded that Hodges suffered from dysthymic disorder (Supp. T. 47). Merin explained that his diagnosis meant that Hodges suffered from a longstanding depression (Supp. T. 47). Merin also believed that

Hodges suffered from a personality disorder, not otherwise specified, with borderline features

(Supp. T. 87-8). Merin described the childhood of an individual with borderline features: “Usually

these people have felt and, in fact, may have been abandoned when they were kids, pretty much

fending for themselves ... inadequate parenting, inadequate affection ... (Supp. T. 89).

CLAIM I MR. HODGES’ DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLORIDA.

This claim is evidenced by the following:

1. All other factual allegations in this motion and in Hodges’ previous motions to

vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. This motion is filed with one year of the issuance of Hurst v. Florida, Perry v. State, and Hurst v. State, all of which established new Florida law. Accordingly, this motion is timely. 3. The Sixth Amendment right enunciated in Hurst v. Florida and found applicable to Florida’s capital sentencing scheme guarantees that all facts that are statutorily necessary before a judge is authorized to impose death are to be found by a jury, pursuant to the capital defendant’s constitutional right to a jury trial. Hurst v. Florida held, “Florida’s capital sentencing scheme violates the Sixth Amendment . . . .” On remand, the Florida Supreme Court held in Hurst v. State

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that Hurst v. Florida means “that before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.” Hurst v. State, 202 So. 3d at 57. 4. Hurst v. Florida changed Florida law and established that capital defendants had a constitutional right to a jury that finds the facts statutorily necessary to authorize a judge to impose a death sentence. See Rule 3.851(d)(2)(B) (“the fundamental constitutional right asserted ... has been held to apply retroactively”). In Mosley, the Florida Supreme Court held: “we conclude that Hurst should apply retroactively to Mosley.” 2016 WL 7406506 at *18. See also Armstrong v. State, 2017

WL 224428 (Hurst applied retroactively to collateral appeal without discussion). This means that

Rule 3.851(d)(2)(B) has been satisfied and motions to vacate may be “considered” that rely on the

constitutional right recognized in Hurst v. Florida ...” Mosley does indicate that whether a specific

defendant receives the benefit of Hurst v. Florida requires a case-by-case analysis.

5. In Mosley v. State4, the Florida Supreme Court determined that Hurst v. Florida and

Hurst v. State constituted a change in Florida law that was to be applied retroactively to Mosley and

required the Court to vacate Mosley’s death sentence and remand for a resentencing.

6. In Mosley, the Florida Supreme Court held that under Florida law, there are two

separate and distinct approaches for conducting retroactivity analysis. 2016 WL 7406506 at *20

n.13. The first approach to retroactivity discussed in Mosley was explained as follows:

This Court has previously held that fundamental fairness alone may require the retroactive application of certain decisions involving the death penalty after the United States Supreme Court decides a case that changes our jurisprudence. For example, in James, this Court

4In Mosley v. State, the Florida Supreme Court referenced the decision in Asay v. State, 2016 WL 7406538 (Fla. Dec. 22, 2016), which issued the same day as Mosley. The Court in Mosley noted that Asay had not extended the benefit of the change in law created by Hurst v. Florida to Asay. See Asay v. State, 2016 WL 7406538 at *13 (“we conclude that Hurst should not be applied retroactively to Asay's case”). However, Mosley noted that the Court in Asay had not foreclosed the retroactive application of Hurst v. Florida to other capital postconviction defendants. Thus, Mosley is a follow-up opinion to Asay that makes clear that Asay is limited in its scope and merely concludes that Asay is not entitled to the benefit of Hurst v. Florida. 10

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reviewed whether the United States Supreme Court's decision in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), should apply retroactively. James, 615 So.2d at 669. Although pre-Espinosa this Court had rejected claims that our jury instruction on the extremely heinous, atrocious or cruel (HAC) aggravator was unconstitutionally vague, the United States Supreme Court disagreed and held in Espinosa that our instruction was, indeed, unconstitutionally vague. 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854. This Court then held that defendants who had raised a claim at trial or on direct appeal that the jury instruction pertaining to the HAC aggravating factor was unconstitutionally vague were entitled to retroactive application of Espinosa. James, 615 So.2d at 669. While this Court did not employ a standard retroactivity analysis in James, the basis for granting relief was that of fundamental fairness. Id. This Court reasoned that, because James had raised the exact claim that was validated by the United States Supreme Court in Espinosa, “it would not be fair to deprive him of the Espinosa ruling.” Id. Mosley, 2016 WL 7406506 at * 19 (emphasis added). It is clear that the fundamental fairness approach requires a case-by-case determination of which collateral litigants will get the benefit of the change in law retroactively.

7. The second approach to retroactivity discussed in Mosley is the analysis set forth in

Witt v. State, 387 So. 2d 922 (Fla. 1980). It was also discussed in Asay where the per curium

opinion said: “When considering the three factors of the Stovall/Linkletter test together, we

conclude that they weigh against applying Hurst retroactively to all death case litigation in

Florida.”5 Asay v. State, 2016 WL 7406538 at *13 (emphasis added). Prior to the issuance of Asay,

there was no precedent for partial retroactivity under Witt or under the Stoval/Linkletter test. Witt

retroactivity was binary, either a decision was to applied retroactively or it was not.6 In Mosley the

Court also employed Witt and wrote: “Because Florida's capital sentencing statute has essentially

been unconstitutional since Ring in 2002, fairness strongly favors applying Hurst, retroactively to

that time.”7 2016 WL 7406506 at *23. The Court’s Witt analysis in Mosley noted that:

5The Hurst decision at issue in the Witt analysis conducted by the Florida Supreme Court in Asay was Hurst v. Florida. Asay v. State, 2016 WL 7406538 at *13 (“we conclude that this factor also weighs heavily against applying Hurst v. Florida retroactively to Asay”). 6Justice Canady did not join the per curium opinion in Asay; he merely concurred in the result. However in Mosley, he wrote a dissenting opinion and addressed what had been done to the Witt standard: “Based on an indefensible misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in tatters, the majority unjustifiably plunges the administration of the death penalty in Florida into turmoil ...” Mosley, 2016 WL 7406506 at *32.

7As noted in Hurst v. Florida, Florida’s capital sentencing statute and the case law approving it (continued...) 11

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holding Hurst retroactive would only affect the sentences of capital defendants. Further, in addition to the fact that convictions will not be disturbed, not every defendant to whom Hurst applies will ultimately receive relief. As we determined in Hurst, each error should be reviewed under a harmless error analysis to individually determine whether each defendant will receive a new penalty phase. Hurst, 202 So.3d at 67–68; James, 615 So.2d at 669. 2016 WL 7406506 at *24-25. This logic applies in Hodges’ case. The retroactive application of Hurst to Hodges’ death sentence “will only impact the sentence of death”. 8. In Mosley, the Florida Supreme Court concluded that under either the fundamental fairness approach to retroactivity or under the Witt analysis, Hurst v. Florida and Hurst v. State were a changes in law that were to be retroactively applied: The purpose of the holdings in Hurst v. Florida and Hurst is to prevent a violation of the fundamental and critically important right to a trial by jury. See Hurst, 202 So.3d at 50–51, 55. Applying Hurst retroactively to Mosley, in light of the rights guaranteed by the United States and Florida Constitutions, supports basic tenets of fundamental fairness. And it is fundamental fairness that underlies the reasons for retroactivity of certain constitutionally important decisions, especially those involving the death penalty.

2016 WL 7406506 at *25.8 The Sixth Amendment right enunciated in Hurst v. Florida found

applicable to Florida’s capital sentencing scheme and at issue in Hurst v. State, guarantees that all

(...continued) as constitutional was irreconcilable with Apprendi v. New Jersey, 530 U.S. 466 (2000). Hurst v. Florida, 136 S. Ct. at 623 (The case law upholding the statute “was wrong, and irreconcilable with Apprendi.”). The significance of Apprendi was not addressed in Mosley or Asay.

8In Asay v. State, the Florida Supreme Court ruled that Hurst v. Florida was not to be applied retroactively to Asay’s case. Asay v. State, 2015 WL 7406538 at *13 (“we conclude that Hurst should not be applied retroactively to Asay's case, in which the death sentence became final before the issuance of Ring.”). Despite this statement, two justices indicated that Hurst v. Florida would be applied to judicial override cases that were “final before the issuance of Ring” and possible other cases “final before the issuance of Ring.” See Id. at *20 (Labarga, C.J., concurring) (“The impact of Hurst v. Florida and Hurst upon their death sentences is an issue for another day.”); Id. at *25 (Pariente, J., dissenting) (“Even under the majority’s holding today, relief should be granted to two Florida death row inmates whose sentences were a result of a judicial override”). Two other justices indicated that pre-Ring defendants may be able to have Hurst v. Florida apply retroactively to their cases. Id. at *21 (Lewis, J., concurring in result) (Pre-Ring “defendants who challenged Florida’s unconstitutional sentencing scheme based on the substantive matters addressed in Hurst are entitled to consideration of that constitutional challenge.”); Id. at 27 (Perry, J., dissenting) (“I would find that Hurst v. Florida applies retroactively, period.”). In Mosley v. State, a majority of the Florida Supreme Court embraced Justice Lewis’ position in his concurrence in Asay, that pre-Ring defendants were entitled to the retroactive application of Hurst v. Florida in their cases if fundamental fairness warranted it. Mosley, 2016 WL 7406506 at *19. 12

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facts that are statutorily necessary before a judge becomes authorized to impose death must be found by a jury pursuant to a capital defendant’s constitutional right to a jury trial. In Hurst v. State, the Florida Supreme Court held that Hurst v. Florida means that a capital case’s jury “must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable

doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.” Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016). 9. As to the question of whether he should receive the benefit of the change in Florida law that occurred when Hurst v. Florida overruled Spaziano v. Florida and Hildwin v. Florida, Hodges first addresses the fundamental fairness approach as to whether to apply a change in law retroactively. This approach was set forth in Mosley v. State, but has long been recognized. See Moreland v. State, 582 So. 2d 618, 619 (Fla. 1991); Fannin v. State 751 So. 2d 158, 161 (Fla. 2d

DCA 2000); Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992); Wright v. State, 604 So. 2d 1248,

1249 (Fla. 4th DCA 1992). Of course, fundamental fairness is an equitable concept. See Treadwell

v. Town of Oak Hill, 175 So. 2d 777, 779 (Fla. 1965) (“courts of equity do have power in proper cases to require that to be done which in law should be done”); Degge v. First State Bank of Eutis,

199 So. 564, 441 (Fla. 1941) (“Equity came into existence as a means of granting justice in cases

wherein the law by its rigid principles was deficient. It has been truly called a court of conscience. It should not be shackled by rigid rules of procedure and thereby preclude justice being administered

according to good conscience.”).

10. Turning to Hodges’ death sentence, fundamental fairness demands that Hurst v. Florida be applied retroactively to his case. As explained earlier, fundamental fairness can be shown in a variety of ways. One way involves looking at what the jury was told concerning its role at the penalty phase and what that means under Hurst v. Florida. During the trial proceedings, Hodges’ jury was repeatedly told that the judge was the sentencer. The jury’s role was merely to return an advisory recommendation by a majority vote. The jury was continuously told that they were doing nothing more than making a recommendation to the trial court.

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11. At the time of Hodges’ 1989 trial, what the jury was told may have been consistent with the procedure set forth in Florida law at that time. See Combs v. State, 525 So. 2d 853 (Fla. 1988). But now under the Sixth Amendment, it has been recognized that the procedure was unconstitutional. See Hurst v. Florida, 136 S. Ct. at 622 (“The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.”). This is because it was recognized in Caldwell v. Mississippi, 472 U.S. 320 (1985), that diminishing an individual juror’s sense of responsibility for the imposition of a death sentence creates a bias in favor of a juror voting for death. Caldwell, 472 U.S. at 330 (“In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an

appellate court.”) (emphasis added).

12. Indeed in Caldwell v. Mississippi, a unanimous jury verdict in favor of a death

sentence was vacated because the jury was not correctly instructed as to its sentencing

responsibility.9 Caldwell held: “it is constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that the responsibility for

determining the appropriateness of the defendant's death rests elsewhere.” Id. 328-29. Jurors must

feel the weight of their sentencing responsibility; they must know that if the defendant is ultimately

executed it will be because no juror exercised her power to preclude a death sentence. Part of

feeling the weight of a juror’s sentencing responsibility is dependent upon knowing of their

individual authority to preclude a death sentence. See Blackwell v. State, 79So. 731, 736 (Fla. 1918)

9In Caldwell, the prosecutor responding to defense counsel’s argument had stated in his closing argument to the jury: “Now, they would have you believe that you're going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable.” Id. at 325. Because the jury’s sense of responsibility was improperly diminished by this argument, the Supreme Court held that the jury’s unanimous verdict imposing a death sentence in that case violated the Eighth Amendment and required the death sentence to be vacated. Caldwell, 472 U.S. at 341. Caldwell explained: “Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to ‘send a message’ of extreme disapproval for the defendant's acts. This desire might make the jury very receptive to the prosecutor's assurance that it can more freely ‘err because the error may be corrected on appeal.’” Id. at 331. 14

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(prejudicial error found in “the remark of the assistant state attorney as to the existence of a Supreme Court to correct any error that might be made in the trial of the cause, in effect told the jury that it was proper matter for them to consider when they retired to make up their verdict. Calling this vividly to the attention of the jury tended to lessen their estimate of the weight of their responsibility, and cause them to shift it from their consciences to the Supreme Court.”). Where the jurors’ sense of responsibility for a death sentence is either not explained or is in fact diminished, a jury’s unanimous verdict in favor of a death sentence violates the Eighth Amendment and the resulting death sentence cannot stand. Caldwell, 472 U.S. at 341. 13. While Caldwell was the law before Hodges’ death sentence became final, it was ruled to be inapplicable to Florida capital proceedings by the Florida Supreme Court. See Darden v.

State, 475 So.2d 217, 221 (Fla. 1985). In Darden, the Court held that under Florida’s sentencing

scheme, the jury was not responsible for the sentence and thus Caldwell was not applicable to jury

instructions in Florida telling the jury that its role was advisory:

In Caldwell, the Court interpreted comments by the state to have misled the jury to believe that it was not the final sentencing authority, because its decision was subject to appellant review. We do not find such egregious misinformation in the record of this trial, and we also note that Mississippi's capital punishment statute vests in the jury the ultimate decision of life or death, whereas, in Florida, that decision resides with the trial judge.

After Darden, a Caldwell based claim that instructing the jury it was advisory violated the Eighth

Amendment was not a meritorious claim as explained in Darden. While some attorneys were

willing to nonetheless bring Caldwell claims based upon such jury instructions, others viewed it to

be a violation of the governing bar rules to present such a claim.

14. It is fundamentally unfair to punish Hodges by denying him the benefit of Hurst v. Florida because any of his lawyers failed to present a Caldwell challenge to the jury instructions about its role being an advisory one. Of course, this is not the first time that in the context of a change in law, attorneys had stopped raising claims that had been found to be meritless under controlling authority. Hitchcock v. Dugger, 481 U.S. 393 (1987), recognized that after Lockett v. Ohio, 438 U.S. 586 (1978), the Florida Supreme Court had erroneously not required the advisory jury to be instructed that nonstatutory mitigation was to be considered and weighed when returning

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its sentencing recommendation. In the years between Lockett and Hitchcock, challenges to the jury instructions on the failure to provide such an instruction were held to be meritless. As a result, many attorneys did not challenge the erroneous instructions because they felt constrained by controlling case law. In recognition of this fact, the Florida Supreme Court declared Hitchcock retroactive under Witt v. State and explained: [T]he state argues that even though the United States Supreme Court ruling is contrary to the holding of the Eleventh Circuit, the procedural default rule applies. We reject this argument. In Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), we held that only a state supreme court or the United States Supreme Court can effect a sufficient change of law to merit a subsequent post-conviction challenge to a final conviction and sentence. Id. at 931. We had previously ruled in a similar fashion as the Eleventh Circuit. Hitchcock v. State, 432 So.2d 42 (Fla.1983). We find that the United States Supreme Court's consideration of Florida's capital sentencing statute in its Hitchcock opinion represents a sufficient change in the law that potentially affects a class of petitioners, including Thompson, to defeat the claim of a procedural default. Thompson v. Dugger, 515 So. 2d 173, 175 (Fla. 1987) (emphasis added). The reasoning of

Thompson applies equally to Hodges’ circumstances.

15. But even more problematic and fundamentally unfair than the Caldwell situation is

the fact that at the time of Hodges’ direct appeal, Spaziano v. Florida, 468 U.S. 447 (1984), was the

governing law. There, the US Supreme Court was presented with a case where a jury recommended

a life sentence and the judge overrode the life recommendation and imposed a death sentence. The

US Supreme Court ruled:

In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

Id. at 464. The decision in Spaziano definitively put the Sixth Amendment argument regarding the Florida jury’s advisory role and the judge’s fact finding responsibilities to bed. Rule 4-3.1 of the Florida Rules of Professional Conduct would seemingly foreclose challenges or arguments that the US Supreme Court got it wrong in Spaziano. See Mosley v. State, 2016 WL 7406506 at *32 (“The concept of fundamental error is based on the recognition that some matters are so important that it is fundamentally unfair for the client to suffer as a result of counsel's oversight.”). Because Hodges’

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counsel were constrained by Spaziano v. Florida and by Rule 4-3.1, they were required to not present arguments and challenges that lacked merit. In those circumstances, fundamental fairness requires this Court to deem the issue raised when controlling case law and bar rules precluded the presentation of the meritless arguments. 16. It was not until Apprendi in 2000 that US Supreme Court precedent clearly broke against the logic and reasoning of Spaziano v. Florida and Hildwin v. Florida. An Apprendi challenge to Florida’s capital sentencing scheme was presented by Greg Mills in 2001 while a death warrant was pending against him.10 In Mills v. Moore, 786 So. 2d 532 (Fla. 2001), the Florida Supreme Court rejected Mills’ claim that Florida’s capital sentencing scheme violated the Sixth Amendment principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).11 The Florida

Supreme Court wrote: “Because Apprendi did not overrule Walton[ v.Arizona], the basic scheme in

Florida is not overruled either.” Id. at 537. In denying Mills’ Apprendi claim, the Florida Supreme

Court denied it on the merits - it did not apply a procedural bar.12

17. Then in late 2001, death warrants were signed for Linroy Bottoson and Amos King.

Both Bottoson and King raised Apprendi challenges to their death sentences. Bottoson presented an

Apprendi claim in a successive habeas petition filed in the Florida Supreme Court more than five

months before Ring v. Arizona was decided. The Florida Supreme Court denied the Apprendi claim

in a successive habeas petition ruling on the merits and without applying a procedural bar:

We have consistently rejected similar claims and have decided this issue adversely to Bottoson's position. See King v. State, 808 So.2d 1237 (Fla. 2002), stay granted, 534 U.S. 1118, 122 S.Ct. 932, 151 L.Ed.2d 894 (2002); Mills v. Moore, 786 So.2d 532, 536-537 (Fla. 2001), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001); see also Brown v. Moore, 800 So.2d 223 (Fla. 2001) (rejecting claims that aggravating circumstances are

10Mills conviction and death sentence were final on February 24, 1986. See Mills v. State, 476 So. 2d 172 (Fla. 1985), cert denied, 475 U.S. 1031 (1986).

11The Supreme Court held in Apprendi that under the Sixth Amendment, “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.” 530 U.S. at 490. Apprendi indicated that this had been the holding in Jones v. United States, 526 U.S. 227 (1999).

12After the decision in Mills v. Moore, Mills presented newly discovered evidence which resulted in relief. See State v. Mills, 788 So. 2d 249 (Fla. 2001). 17

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required to be charged in indictment, submitted to jury during guilt phase, and found by unanimous jury verdict); Mann v. Moore, 794 So.2d 595, 599 (Fla. 2001). Thus, we conclude that Bottoson is not entitled to relief on this claim. Bottoson v. State, 813 So. 2d 31, 36 (Fla. 2002). 18. King presented his Apprendi claim in a successive Rule 3.851 motion. In his appeal from the denial of his motion, the Florida Supreme Court denied the Apprendi claim on the merits: King's sixth contention, that Apprendi applies to Florida's capital sentencing statute and the maximum sentence under the statute is death, has been decided adversely to King's position. See Mills v. Moore, 786 So.2d 532, 537-38 (Fla.2001), cert. denied, 532 U.S. 1015, 121 S.Ct. 1752, 149 L.Ed.2d 673 (2001); see also Brown v. Moore, 800 So.2d 223 (Fla.2001) (rejecting claims that aggravating circumstances are required to be charged in indictment, submitted to jury during guilt phase, and found by unanimous jury verdict); Mann v. Moore, 794 So.2d 595, 599 (Fla.2001) (same). King v. State, 808 So. 2d 1237, 1245-46 (Fla. 2002). Thus, the Apprendi claims presented by

Bottoson and King were both denied on the merits - and not on the basis of a procedural bar.

19. On June 24, 2002, the US Supreme court issued its decision in Ring v. Arizona and

overruled Walton v. Arizona as it was irreconcilable with Apprendi. Ring, 536 U.S. at 609.

20. After Ring v. Arizona issued, Bottoson and King both filed successive habeas

petitions in the Florida Supreme Court on July 5, 2002. The Florida Supreme Court denied the Ring

claims presented in the petitions on October 24, 2002. The opinions denying Bottoson and King

relief were the Florida Supreme Court’s first opinions addressing Ring v. Arizona and claim, and the

opinions denied the claim in both cases on the merits even though the claim in each case was

presented in a successive habeas petition. Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v.

Moore, 831 So. 2d 143 (Fla. 2002). The October 24, 2002, opinion in Bottoson v. Moore was

specifically identified in Hurst v. State as one that had been abrogated by Hurst v. Florida. Hurst v. State, 202 So. 3d at 44 (“The Supreme Court's ruling in Hurst v. Florida also abrogated this Court's decisions in Tedder v. State, 322 So.2d 908 (Fla.1975), Bottoson v. Moore, 833 So.2d 693 (Fla.2002), Blackwelder v. State, 851 So.2d 650 (Fla.2003), and State v. Steele, 921 So.2d 538 (Fla.2005), precedent upon which this Court has also relied in the past to uphold Florida's capital sentencing statute.”) (emphasis added). Thus, it is now recognized that the ruling in Bottoson upholding his death sentence and allowing his execution to occur was wrongly decided. The Florida

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Supreme Court in Mills v. Moore in 2001 had rejected the Apprendi claim because Walton v. Arizona had not been abrogated. Then when it was overruled in Ring v. Arizona, the Florida Supreme Court in Bottoson in 2002 abandoned the position taken in Mills v. Moore, and instead relied upon the US Supreme Court’s failure to mention Hildwin v. Florida, when overruling Walton v. Arizona even though the reasoning in Walton had rested on Hildwin v. Florida. The Florida Supreme Court claimed that it was up to the US Supreme Court to overturn Hildwin and Spaziano though those decisions were irreconcilable with Apprendi. 21. Both Bottoson and King lost and failed to get habeas relief from the Florida Supreme Court because that court failed to take the reasoning of Apprendi and Ring and apply it. Instead, the Florida Supreme Court hid behind Hildwin v. Florida and left it up to the US Supreme Court to

decide whether to let the executions of Bottoson and King proceed.

22. Since Ring v. Arizona issued, there have been forty-one capital defendants executed

in Florida.13 Had the Florida Supreme Court recognized that Apprendi and Ring were irreconcilable

with Hildwin and Spaziano, both Bottoson and King would have been afforded resentencings, and

collateral relief would have been available to all death row inmates.

23. Furthermore, until the Florida Supreme Court issued Johnson v. State, 904 So. 2d

400 (Fla. 2005), every Apprendi claim and every Ring claim presented to it in collateral proceedings

was denied on the merits. No procedural bars were applied. Then on April 28, 2005, the Florida

Supreme Court held in Johnson v. State that Ring v. Arizona not only was inapplicable to current

capital proceedings and had no relevance to any death sentence under review in a direct appeal,

Ring also was to be not applied retroactively. After the issuance of Johnson v. State, the Florida

13The forty-one capital defendants executed after Ring v. Arizona issued were: Rigoberto Sanchez-Velasco, Aileen Wournos, Linroy Bottoson, Amos King, Newton Slawson, Paul Hill, Johnny Robinson, John Blackwelder, Glen Ocha, Clarence Hill, Arthur Rutherford, Danny Rolling, Angel Diaz, Mark Schwab, Richard Henyard, Wayne Tompkins, John Marek, Martin Grossman, Manuel Valle, Oba Chandler, Robert Waterhouse, David Gore, Manuel Pardo, Larry Mann, Elmer Carroll, William Van Poyck, John Ferguson, Marshall Gore, William Happ, Darius Kimbrough, Askari Muhammad, Juan Carlos Chavez, Paul Howell, Robert Henry, Robert Hendrix, John Henry, Eddie Wayne Davis, Chadwick Banks, Johnny Kormondy, Jerry Correll, and Oscar Bolin. There were also three post-Apprendi pre-Ring executions: Dan Hauser, Ed Castro and Robert Glock. 19

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Supreme Court denied Ring claims presented in collateral proceedings on the basis of its decision in Johnson v. State that Ring did not apply retroactively. But of course, the decision in Johnson v. State was premised upon the Florida Supreme Court’s failure to understand that Apprendi and Ring were irreconcilable with Hildwin v. Florida and Spaziano v. Florida and that the latter two cases were wrong and could no longer stand. 24. It is in this context that it is clearly fundamentally unfair to deprive Hodges of the retroactive benefit of Hurst v. Florida. It was not Hodges’ fault that the Florida Supreme Court and the US Supreme Court did not have a shared understanding of what Apprendi and Ring required. Those decisions were irreconcilable with Spaziano and Hildwin. It is not Hodges’ fault that Bottoson and King were executed solely because the Florida Supreme Court did not understand the

import of Apprendi and Ring. Indeed, had Bottoson been decided correctly, habeas relief would

have issued in that case. Certainly it cannot be disputed that if the Florida Supreme Court had

correctly resolved the issue in Bottoson and granted him relief on his death sentence, one that was

final in 1984, then Hodges would have also been granted relief as well.

25. In Mosley v. State, the Florida Supreme Court stated: “Because Florida's capital

sentencing statute has essentially been unconstitutional since Ring in 2002, fairness strongly favors

applying Hurst retroactively to that time.” Mosley, 2016 WL 7406506 at *23. This suggests that

Hurst v. Florida should be treated as the governing law of Florida at least back to Ring v. Arizona

which issued on June 24, 2002. But if Hurst v. Florida is to be treated as the law effective June 24,

2002, it must be applied across the board to direct appeals and collateral rulings alike. Accordingly,

Bottoson and all the other collateral decisions rejecting Apprendi/Ring claims must be subject to attack, just the same as post-Ring direct appeal opinions. And there must be a recognition that had Bottoson been correctly decided, Bottoson would have been granted a resentencing. If Bottoson had gotten a resentencing, then Hodges would have as well. 26. Another aspect of fundamental fairness warranting retroactive application of Hurst v. Florida is the fact that the decision in Perry v. State shows that capital defendants charged with murders that were committed long before Hurst v. Florida issued will have Hurst-compliant

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procedures govern at a retrial or resentencing. For example, Douglas Ray Meeks will receive the benefit of Hurst v. Florida and the new Florida law when he is sentenced on two first degree murder convictions for two 1974 homicides. Meeks had separate trials and received two death sentences. Both death sentences were affirmed. Meeks v. State, 336 So. 2d 1142 (Fla. 1976); Meeks v. State, 339 So. 2d 186 (Fla. 1976). However, because Meeks obtained relief in light of Hitchcock v. Dugger, 481 U.S. 393 (1987), and those penalty phases have yet to occur, Hurst v. Florida and the new Florida law will govern the sentencing procedure in both cases. 27. As another example, Jacob Dougan was convicted of a 1974 homicide and was sentenced to death. His conviction and death sentence were affirmed in his direct appeal. Barclay v. State, 343 So. 2d 1266 (Fla. 1977). Subsequently, after protracted proceedings, the circuit court

granted Dougan a new trial in 2013. In State v. Dougan, ___ So. 3d ___, 2016 WL 6137285 (Fla.

Oct. 20, 2016), the Florida Supreme Court affirmed. Hurst v. Florida will govern at the sentencing

phase if a first degree murder conviction is returned.

28. Another example is John Hardwick who was charged with a 1984 homicide. He

was convicted and sentenced to death. His conviction and death sentence were affirmed. Hardwick

v. State, 521 So. 2d 1071 (Fla. 1988). In pursuing relief in the federal courts, the district court

granted habeas relief and ordered the death sentence vacated. The Eleventh Circuit affirmed.

Hardwick v. Sec’y Fla. Dep’t of Corr., 803 F.3d 541 (11th Cir. 2015). Currently, Hardwick’s case is

pending in the trial court for a resentencing. As a result, Hurst v. Florida and the new Florida law

will govern the sentencing procedure.

29. Yet another example is Paul Hildwin who was charged and convicted of a 1985 homicide. After a death sentence was imposed, his conviction and death sentence were affirmed in his direct appeal. Hildwin v. State, 531 So. 2d 124 (Fla. 1988). See Hildwin v. Florida, 490 U.S. 638 (1989). In the course of collateral proceedings, Hildwin’s conviction was vacated by the Florida Supreme Court and a new trial ordered. Hildwin v. State, 141 So. 3d 1178 (Fla. 2014). Currently, Hildwin is awaiting his new trial and Hurst v. Florida and the resulting new Florida law will govern as to the sentencing procedure if a first degree murder conviction is returned.

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30. Still another example is Ana Cardona who was charged with a 1990 homicide. After she received a death sentence, her conviction and death sentence were affirmed. Cardona v. State, 641 So. 2d 361 (Fla. 1994). Later, her conviction and sentence were vacated. Cardona v. State, 185 So. 3d 514 (Fla. 2016). Currently, Cardona awaits her new trial. At that trial on a first degree murder charge for a 1985 homicide, Hurst v. Florida and the resulting new Florida law will govern as to the sentencing procedure if a first degree murder conviction is returned. 31. There are also cases in which a capital defendant has had a death sentence vacated in collateral proceedings, a resentencing ordered, and another death sentence imposed which was pending on a direct appeal when Hurst v. Florida issued. In those circumstances, the capital defendant will receive the benefit of Hurst v. Florida because a final death sentence was not in

place when Hurst issued. Paul Beasley Johnson was convicted of first degree murder for three 1981

homicides and sentenced to death. His convictions and death sentences were affirmed. Johnson v.

State, 483 So. 2d 774 (Fla. 1983). After multiple proceedings, in 2010, Johnson’s death sentences

were vacated, and a resentencing was ordered. Johnson v. State, 44 So. 3d 51 (Fla. 2010). Though

Johnson again received death sentences, his direct appeal was pending when Hurst v. Florida

issued. Johnson will receive the benefit of Hurst and the resulting new Florida law.

32. Also, the Florida Supreme Court recently issued Armstrong v. State, _ So. 3d _, 2017

WL 224428 (Fla. Jan. 19, 2017), and on the basis of Hurst v. State vacated Armstrong’s death

sentence. The homicide at issue occurred in February of 1990. Armstrong was tried and convicted

for the murder of one deputy sheriff. He was then sentenced to death. The Florida Supreme Court

affirmed the convictions and death sentence. Armstrong v. State, 642 So. 2d 730 (Fla. 1994), cert denied 514 U.S. 1085 (1995). In 2003, the Florida Supreme Court granted Armstrong Rule 3.850 relief, vacated his death sentence, and ordered a resentencing. At his resentencing, the jury returned a 9-3 death recommendation, and a death sentence was again imposed. It was affirmed on direct appeal. Armstrong v. State, 73 So. 3d 155 (Fla. 2011). Armstrong filed for collateral relief. His appeal from the denial of collateral relief was before the Florida Supreme Court when Hurst v. Florida issued. Without even discussing retroactivity, the Florida Supreme Court granted

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Armstrong collateral relief on the basis of Hurst v. State. 33. With Meeks, Dougan, Hardwick, Hildwin, Cardona, Johnson and Armstrong all entitled to the benefit of Hurst v. Florida and the resulting new Florida law for murders committed as early as 1974, ensuring uniformity and fairness in circumstances in Florida’s application of the

death penalty requires the retroactive application of Hurst and the resulting Florida law. Indeed, the logic of Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987), applies: Justice POWELL has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted).

We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.

(emphasis added). “[S]elective application of new rules violates the principle of treating similarly

situated defendants the same.” Id. at 323. While Hodges’ death sentence was final when Hurst v.

Florida issued, numerous other capital defendant’s death sentences had been final, including

Hurst’s, when good fortune and good timing meant that at the moment that Hurst v. Florida issued,

those defendants were free of the shackles of finality. Fundamental fairness requires Hodges to get

the benefit of the change in law. 34. Moreover, in Hurst v. State, the Florida Supreme Court noted that “[i]n requiring jury unanimity in [the statutorily required fact] findings and in [the jury’s] final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice.” 202 So. 3d at 58. Hurst v. State specifically noted that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant

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who stands to lose his life as a penalty.” Id. at 59. The new Florida law enhances and promotes the reliability of death sentences that juries unanimously authorize. Implicit in the holding that unanimity promotes reliable death sentences is the acknowledgment that non-unanimous death sentences are less reliable. Clearly, uniformity and fairness require that Hodges be given the benefit of Hurst v. Florida and the resulting new Florida law. 35. The procedure employed when Hodges received a death sentence deprived him of his Sixth Amendment rights under Hurst v. Florida. In the wake of Hurst v. Florida, the Florida Supreme Court has held that each juror is free to vote for a life sentence even if the requisite facts have been found by the jury unanimously. Hurst v. State, 202 So. 3d at 58, 62, n. 18. Individual jurors may decide to exercise “mercy” and vote for a life sentence and in so doing preclude the

imposition of a death sentence. Perry v. State, 2016 WL 6036982 at *8.

36. In Hurst v. State, the Florida Supreme Court found that because Hurst v. Florida

treated the facts necessary to authorize a death sentence as elements of the criminal offense, Florida

law, which has long required unanimity on the elements of a crime, applied. Hurst v. State, 202 So.

3d at 53-54. The Florida Supreme Court explained that this unanimity requirement will enhance the

reliability of any death sentence that results:

In requiring jury unanimity in these findings and in its final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice. Supreme Court Justice Anthony Kennedy, while a judge on the Ninth Circuit Court of Appeals, noted the salutary benefits of the unanimity requirement on jury deliberations as follows:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury's verdict. United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978). That court further noted that “[b]oth the defendant and society can place special confidence in a unanimous verdict.” Id. Comparing the unanimous jury requirement to the requirement for proof beyond a reasonable doubt, the Fifth Circuit Court of Appeals stated, “the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977).

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Hurst v. State, 202 So. 3d at 58. We also note that the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty. Id. at 59.14 Fundamental fairness requires that Hodges receive the benefit of a change in law when the purpose of the change is to meet the heightened level of reliability constitutionally required. See Teague v. Lane, 489 U.S. 288, 312 (1989) (“In Desist, Justice Harlan had reasoned that one of the two principal functions of habeas corpus was “to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted,” and concluded “from this that all ‘new’ constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas.” 394 U.S., at 262, 89 S.Ct., at 1041.”) (emphasis added).

37. Another reason fundamental fairness dictates that Hodges should get the benefit of

retroactive application of Hurst v. Florida arises from the fact that his jury was instructed that it was

advisory. After Hurst v. Florida, the jury’s penalty phase verdict is not advisory. Each juror has the

power to exercise mercy and require the imposition of a life sentence. In Hurst v. Florida, the Court

wrote that “[t]he State cannot now treat the advisory recommendation by the jury as a necessary

factual finding that Ring requires.” 136 S. Ct. at 622.

38. Applying Hurst v. Florida to Hodges’ case shows that his death sentences cannot

stand. In Hurst v. State, the Florida Supreme Court held that Sixth Amendment error under Hurst v.

Florida would be subject to a strict harmless error test in which “the State bears an extremely heavy

14The unanimity requirement set forth in Hurst v. State significantly distinguishes the change in Florida law brought by Hurst v. Florida from the change in Arizona law that accompanied Ring v. Arizona. The change in Arizona was simply going from judge sentencing to jury sentencing. Schriro v. Summerlin, 542 U.S. 348, 356 (2004) (“When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.”). The Florida Supreme Court specifically found that going from a majority jury recommendation that was merely advisory to requiring a unanimous jury death recommendation to even authorize a judge to consider the imposition of a death sentence enhanced reliability. Hurst v. State, 202 So. 3d at 63 (“In a capital case, the gravity of the proceeding and the concomitant juror responsibility weigh even more heavily, and it can be presumed that the penalty phase jurors will take special care to understand and follow the law.”). 25

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burden” of proving beyond a reasonable doubt that “the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst’s death sentence in this case.” 202 So. 3d at 68. See Mosley v. State, 2016 WL 7406506 at *25-26 (applying the Hurst v. State harmless error analysis when Hurst v. Florida is retroactively applied in collateral proceedings). The State must also show beyond a reasonable doubt that no properly instructed juror would have dispensed mercy to Hodges by voting for a life sentence. All of these considerations must be factored into any evaluation of the reliability of Hodges’ death sentence and the likely outcome if a resentencing were conducted. 39. The Sixth Amendment error under Hurst v. Florida cannot be proven by the State to be harmless beyond a reasonable doubt in Hodges’ case. Hodges’ penalty phase jury did not

return a verdict making any findings of fact. The only document returned by the jury was an

advisory recommendation that a death sentence be imposed. And, this advisory verdict was not

unanimous. Two jurors did not join in the death recommendation. One juror voting for a life

sentence is all it takes for a binding life recommendation mandating the imposition of a life

sentence. The fact that two jurors here recommended life in and of itself shows that there must be

doubt that a properly instructed jury would have unanimously returned a death recommendation.

40. The Florida Supreme Court has addressed whether or not error under Hurst v.

Florida is harmless in several cases. No case in which a less than unanimous jury recommendation

was returned has been determined to be harmless. See Hurst v. State, 202 So. 3d 40 (Fla. 2016);

Franklin v. State, ___ So. 3d ___, 2016 WL 6901498 (Fla. Nov. 23, 2016); Johnson v. State, ___

So. 3d ___, 2016 WL 7013856 at *3 (Fla. Dec. 1, 2016); Mosley v. State, ___ So. 3d ___, 2016 WL 7406506 (Fla. Dec. 22, 2016); Kopsho v. State, ___ So. 3d ___, 2017 WL 224727 (Jan. 19, 2017); Williams v. State, ___ So. 3d ___, 2017 WL 224529 (Fla. Jan. 19, 2017); McGirth v. State, ___ So. 3d ___, 2017 WL 372095 (Fla. Jan. 26, 2017); Calloway v. State, ___ So. 3d ___, 2017 WL 372058 (Fla. Jan. 26, 2017); Durousseau v. State, ___ So. 3d ___, 2017 WL 411331 (Fla. Jan. 31, 2017); Hojan v. State, ___ So. 3d ___, 2017 WL 410215 (Fla. Jan. 31, 2017). 41. Indeed, in the cases where the Florida Supreme Court has found the error to be

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harmless, the jury was unanimous in its recommendation and the facts were particularly egregious. See Davis v. State, ___ So. 3d ___, 2016 WL 6649941 (Fla. Nov. 10, 2016); King v. State, ___ So. 3d ___, 2017 WL 372081 (Fla. Jan. 26, 2017); Knight v. State, ___ So. 3d. ___, 2017 WL 411329 (Fla. Jan. 31, 2017); Kaczmar v. State, ___ So. 3d. ___, 2017 WL 410214 (Fla. Jan. 31, 2017). 42. Here, the State cannot show beyond a reasonable doubt that the Hurst error in was harmless. The Hurst error in Hodges’ case warrants relief. Rule 3.851 relief is warranted. CLAIM II HODGES’ DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDER HURST V. STATE AND SHOULD BE VACATED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. In Hurst v. State, the Florida Supreme Court ruled that on the basis of the Eighth

Amendment and on the basis of the Florida Constitution, the evolving standards of decency now

requires jury “unanimity in a recommendation of death in order for death to be considered and

imposed”. 202 So. 3d at 61. This unanimity requirement was not derived from Hurst v. Florida

itself nor the Sixth Amendment, but from the Florida Constitution and from the Eighth Amendment.

In light of the ruling in Hurst v. State, Hodges’ death sentence stands in violation of both the Florida

Constitution and the Eighth Amendment.

3. Hurst v. State was broader in scope than Hurst v. Florida. This was because Hurst v.

Florida meant the statutory facts necessary to authorize a death sentence were elements of capital murder. In turn, this meant that the Florida Constitution requirement that the jury must unanimously find the elements of a crime offense was applicable: We also conclude that, just 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—thus allowing imposition of the death penalty— are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.

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Id. at *53-54. The Florida Supreme Court acknowledged that the unanimity requirement had not been found by the US Supreme Court to be mandated by the Sixth Amendment, but that it arose from the Florida Constitution: We are mindful that a plurality of the United States Supreme Court, in a non-capital case, decided that unanimous jury verdicts are not required in all cases under the Sixth Amendment to the United States Constitution. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion). However, this Court, in interpreting the Florida Constitution and the rights afforded to persons within this State, may require more protection be afforded criminal defendants than that mandated by the federal Constitution. This is especially true, we believe, in cases where, as here, Florida has a longstanding history requiring unanimous jury verdicts as to the elements of a crime. 202 So. 3d at 57 (emphasis added) (footnote omitted). The Florida Supreme Court then explained the benefit to the administration of justice that its holding would provide would mean more reliable

death sentences:

In requiring jury unanimity in these findings and in its final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice. Supreme Court Justice Anthony Kennedy, while a judge on the Ninth Circuit Court of Appeals, noted the salutary benefits of the unanimity requirement on jury deliberations as follows:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury's verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978). That court further noted that “[b]oth the defendant and society can place special confidence in a unanimous verdict.” Id. Comparing the unanimous jury requirement to the requirement for proof beyond a reasonable doubt, the Fifth Circuit Court of Appeals stated, “the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue.’ ” United States v. Gipson, 553 F.2d 453, 457 (5th Cir.1977). 202 So. 3d at 58 (emphasis added). Thus, the ruling that the Florida Constitution required juror unanimity when returning a death recommendation was bottomed on enhanced reliability and confidence in the result. Id. at 59. The change mandated by Hurst v. State was specifically found to improve accuracy, unlike the change in Arizona procedure that resulted from the decision in Ring v. Arizona.

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4. The Florida Supreme Court in Hurst v. State then alternatively found that a unanimous jury’s death recommendation was also required under the Eighth Amendment. In addition to the requirements of unanimity that flow from the Sixth Amendment and from Florida's right to trial by jury, we conclude that juror unanimity in any recommended verdict resulting in a death sentence is required under the Eighth Amendment. Hurst v. State, 202 So. 3d at 59. The Florida Supreme Court in Hurst v. State observed: If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process. Id. at 60. In Hurst v. State, the Florida Supreme Court found that under of the Eighth Amendment and the Florida Constitution, the evolving standards of decency now require jury “unanimity in a recommendation of death in order for death to be considered and imposed”. Id. at 61. Quoting the US Supreme Court, Hurst v. State noted, “the ‘clearest and most reliable objective

evidence of contemporary values is the legislation enacted by the country's legislatures.’” Id. Then,

from a review of the capital sentencing laws throughout the United States, Hurst v. State found that

a national consensus reflecting society’s evolving standards of decency was apparent:

The vast majority of capital sentencing laws enacted in this country provide the clearest and most reliable evidence that contemporary values demand a defendant not be put to death except upon the unanimous consent of the jurors who have deliberated upon all the evidence of aggravating factors and mitigating circumstances.

Id. Accordingly, the Court in Hurst v. State concluded:

the United States and Florida Constitutions, as well as the administration of justice, are implemented by requiring unanimity in jury verdicts recommending death as a penalty before such a penalty may be imposed.

Id. at 63. The Eighth Amendment holding in Hurst v. State turned upon both 1) a finding of a consensus reflecting the evolving standards of decency that now precluded the execution of a defendant without a jury’s unanimous death recommendation, and 2) the enhanced reliability that would result from no longer allowing a jury’s death recommendation to be returned without juror unanimity. 5. What constitutes cruel and unusual punishment under the Eighth Amendment turns upon considerations of the “evolving standards of decency that mark the progress of a maturing

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society.” Atkins v. Virginia, 536 U.S. 304, 312 (2002). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C. J., dissenting).” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). 6. According to Hurst v. State, the evolving standards of decency are reflected in a national consensus that a defendant can only be given a death sentence when a penalty phase jury has voted unanimously in favor of the imposition of death. The US Supreme Court has explained that the “near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not.” Burch v.

Louisiana, 441 U.S. 130, 138 (1979). The near-uniform judgment of the states is that only a

defendant who a jury unanimously concluded should be sentenced to death can receive a death

sentence. As a result, those defendants who have had one or more jurors vote in favor of a life

sentence are not eligible to receive a death sentence. This class of defendants, those who have had

jurors formally vote in favor a life sentence, cannot be executed under the Eighth Amendment.

7. Hodges is within the protected class. At his penalty phase, two jurors voted in

favor of the imposition of a life sentence. Under the Eighth Amendment, his execution would thus

constitute cruel and unusual punishment. His death sentence must accordingly be vacated.

8. Hurst v. State must be applied retroactively. When a juror in a capital proceeding has

voted against recommending death, the defendant is within a class that society’s evolving standards

of decency has concluded to be ineligible for a death sentence. In Walls v. State, 2016 WL 6137287 at *6, the Florida Supreme Court found retroactivity must be accorded to an Eighth Amendment decision when it “places beyond the State of Florida the power to impose a certain sentence” against a category or subgroup of people. Here, the State of Florida under Hurst v. State cannot carry out a death sentence on capital defendants who had one or more of their jurors at their capital trial vote in favor of a life sentence and against recommending a death sentence. The Eighth Amendment decision in Hall v. Florida, 134 S. Ct. 1986 (2014), “removes from the State [the]

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authority to impose death sentences” in a category of cases. Walls, 2016 WL 6137287 at *5. 9. Moreover, the purpose of the ruling in Hurst v. State was to enhance the reliability of a death recommendation. Enhancement of reliability also warrants retroactive application of Hurst v. State and Perry v. State to Hodges. See Desist v. United States, 394 U.S. at 262 (Harlan, J., dissenting) (“The greatly expanded writ of habeas corpus seems at the present time to serve two principal functions. [Citations] First, it seeks to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. It follows from this that all ‘new’ constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas.”) (emphasis added).15 In Mosley v. State, the Florida Supreme Court explained the basis for the decision in Hurst v. State to

require juror unanimity when returning a death recommendation:

Under Florida's independent constitutional right to a trial by jury, this Court concluded: “If death is to be imposed, unanimous jury sentencing recommendations, when made in conjunction with the other critical findings unanimously found by the jury, provide the highest degree of reliability in meeting these constitutional requirements in the capital sentencing process.” [202 So. 3d] at 60.

2016 WL 7406506 at *21.

10. The retroactivity analysis of new law under the Eighth Amendment is different than

the analysis under the Sixth Amendment. In Montgomery v. Louisiana, 136 S. Ct. 718, 731 (2016),

the US Supreme Court wrote:

A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner's sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids. To conclude otherwise would undercut the Constitution's substantive guarantees.

Accordingly, a new substantive rule under the Eighth Amendment must be applied retroactively: A substantive rule, in contrast, forbids “criminal punishment of certain primary conduct” or prohibits “a certain category of punishment for a class of defendants because of their status

15See United States v. Johnson, 457 U.S. 537, 548 (1982) (“We now agree with Justice Harlan that “ ‘[r]etroactivity’ must be rethought,” Desist v. United States, 394 U.S., at 258, 89 S.Ct., at 1038 (dissenting opinion). We therefore examine the circumstances of this case to determine whether it presents a retroactivity question clearly controlled by past precedents, and if not, whether application of the Harlan approach would resolve the retroactivity issue presented in a principled and equitable manner.”). 31

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or offense.” Penry, 492 U.S., at 330, 109 S.Ct. 2934; see also Schriro, supra, at 353, 124 S.Ct. 2519 (A substantive rule “alters the range of conduct or the class of persons that the law punishes”). Under this standard, and for the reasons explained below, Miller announced a substantive rule that is retroactive in cases on collateral review. Montgomery, 136 S. Ct. at 732. 11. Under Hurst v. State, a death sentence may not be imposed on the class of defendants whose jury did not unanimously vote in favor of a death recommendation. As to those within that class of defendants, Hurst v. State must be applied retroactively. Since Hodges is within that class of defendants, he must be accorded the retroactive benefit of Hurst v. State. 12. The decision in Asay v. State, 2016 WL 7406538 (Fla. Dec. 22, 2016), did not address the retroactivity of Hurst v. State and its holding that under the Eighth Amendment and under the Florida Constitution, the jury must return a unanimous death recommendation before a

death sentence is authorized. In fact, Asay did not file anything after Hurst v. State was decided

raising an Eighth Amendment claim or a Florida Constitution claim based upon the holding in

Hurst v. State. Therefore, the decision in Asay did not decide the issue, as it was not presented by

the parties and it was not addressed by the Court. As explained by the US Supreme Court:

The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.). In this case, petitioners did not ask us to hold that there is no constitutional right to informational privacy, and respondents and their amici thus understandably refrained from addressing that issue in detail. It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided.

Nat’l Aeronautics and Space Admin. v. Nelson, 532 U.S. 134, 147 n.10 (2011). The Florida

Supreme Court has also supported this basic tenet that appellate courts should not address an issue was not briefed or argued.16 See, e.g., State v. Simpson, 554 So. 2d 506, 510 n.5 (Fla. 1989) (“After the relevant events of this case occurred, the legislature has changed the standard of proof from clear and convincing to a preponderance of the evidence. Ch. 87-110, Laws of Florida. The parties

16Arguably, this basic precept of appellate review stems from Article III Section 2's Case-or- Controversy Clause, as issuing an opinion on issues that were not briefed or argued appears advisory and is certainly not a “concrete, living contest between adversaries.” See, e.g., Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., concurring). 32

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have not briefed this issue and we thus do not address any matter associated with the enactment of chapter 87-110.”); Arab Termite and Pest Control of Florida, Inc. V. Jenkins, 409 So. 2d 1039, 1043 (Fla. 1982) (“The parties have not briefed [whether the trial court’s decision was affirmatively supported by the record or by the findings in the judge’s order]. We therefore remand the case to the district court to prove the appropriate appellate review.”). 13. Alternatively under the fundamental fairness approach to retroactivity set forth in Mosley, Hodges is entitled to the retroactive application of Hurst v. State to his case. It would be fundamentally unfair to deprive Hodges of the benefits of Hurst v. State while other similarly situated individuals received its benefit. As set forth in Claim I, individuals like, Meeks, Dougan, and Johnson, will be receiving the benefit of Hurst v. State in connection with homicides that pre-

date the one for which Hodges was convicted. Because retrials and/or resentencings have been

ordered in these and in other cases, such defendants will receive the benefit of Hurst v. State. In

these circumstances, it would be fundamentally unfair to deprive Hodges of the same benefit. The

logic of Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987) is applicable:

Justice POWELL has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted). We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. (Emphasis added). “[S]elective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 323. Fundamental fairness requires that Hodges receive the benefit of the change in law.

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14. Under Hurst v. State, Hodges’ death sentence stands in violation of the Eighth Amendment and the Florida Constitution. The jury did not vote unanimously in favor of a death recommendation. This places Hodges in a substantive class (i.e. those who were judicially sentenced to death even though the jury did not unanimously vote in favor of death) who may not be sentenced to death. Rule 3.851 relief is warranted. CLAIM III THE RETROACTIVITY RULINGS IN ASAY v. STATE AND MOSLEY v. STATE THAT SEEMINGLY PERMIT PARTIAL RETROACTIVITY AND/OR CATEGORY BY CATEGORY AND/OR CASE BY CASE RETROACTIVITY OF NEW LAW IN DEATH PENALTY PROCEEDINGS INJECTS ARBITRARINESS INTO THE FLORIDA’S CAPITAL SENTENCING SCHEME THAT VIOLATES THE EIGHTH AMENDMENT PRINCIPLES OF FURMAN V. GEORGIA. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to

vacate, and all evidence presented by him during his trial and previous postconviction proceeding,

are incorporated herein by specific reference.

2. In Furman v. Georgia, 408 U.S. 238, 239-40 (1972) , the US Supreme Court found

that the death penalty “could not be imposed under sentencing procedures that created a substantial

risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S.

153, 188 (1976); see also Furman, 408 U.S. at 239-40. Because of the recognition that “the penalty

of death is qualitatively different from a sentence of imprisonment, however long * * * there is a

corresponding difference in the need for reliability” in capital cases. Woodson v. North Carolina,

428 U.S. 280, 305 (1976). See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (finding there is a

“qualitative difference” between death and other penalties requiring “a greater degree of reliability when the death sentence is imposed”). 3. On the same day that the Florida Supreme Court issued Asay v. State, 2016 WL 7406538, it also issued Mosley v. State, 2016 WL 7406506. Both Asay and Mosley had challenged their death sentences in light of Hurst v. Florida. Asay’s death sentences and Mosley’s death sentence were final before the decision in Hurst v. Florida issued. However, the Florida Supreme Court broke apart its Witt v. State standard and held Hurst v. Florida to be retroactive in Mosley’s

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death sentence under its Witt analysis, while in Asay its Witt analysis found Hurst v. Florida was not retroactive to Asay’s case. See Mosley v. State, 2016 WL 7406506 at *32 (Canady, J., dissenting) (“Based on an indefensible misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in tatters, the majority unjustifiably plunges the administration of the death penalty in Florida into turmoil that will undoubtedly extend for years.”) (emphasis added). The repudiation of a binary approach to retroactivity set forth in Witt was also a repudiation of the Stoval/Linkletter standard that was adopted in Witt. It means that the retroactivity standard in Florida is now without an objective principled basis, but instead rests upon some variable subjective standard of two justices.17 In Asay, the Florida Supreme Court superficially at least seemed to suggest that there were just two categories of collateral cases at issue in a Witt analysis of Hurst v.

Florida - those cases final after the issuance of Ring v. Arizona, 536 U.S. 584 (2002), and those

final before it Ring issued. Full analysis of the various concurring and dissenting opinions in Asay

and Mosley suggests that there are likely more categories of cases that warrant specific

consideration under Witt. That is a by product of eschewing an objective standard in favor of

standardless subjectivity.

4. In Asay v. State, Chief Justice Labarga was one of three justices who concurred in the

lead opinion that announced the result. But he wrote a concurring opinion stating: “I write

separately to express my view that our decision today does not apply to those defendants whose

death sentences were imposed based upon, and who are facing execution solely as a result of, a

judicial override.” Asay v. State, 2016 WL 7406538 at *20. That is an explicit recognition that there

are pre-Ring people who may get the benefit of Hurst.

17When the decisions in Asay and Mosley are analyzed and attention paid to the various separate opinions, there are only two justices of the Florida Supreme Court who seem to be on board for the break up of the Witt binary approach. Justice Polston joined Justice Canady’s dissent in Mosley that asserted that the majority had left “the Witt framework in tatters.” Justices Pariente and Perry had dissented in Asay because the majority had not applied Hurst v. Florida retroactively to Asay under Witt. And Justice Lewis in a specially concurring opinion agreed with Justice Perry that “there is no salient difference between June 23 and June 24, 2002—the days before and after the case name Ring arrived. See Perry, J., dissenting op. at 58. However, that is where the majority opinion draws its determinative, albeit arbitrary, line.” Asay v. State, 2016 WL 7406538 at *22 (Lewis, J., concurring in result). 35

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5. Justice Lewis, who provided a fifth vote in favor of denying Asay the benefit of Hurst, wrote: in my view, the majority opinion has incorrectly limited the retroactive application of Hurst by barring relief to even those defendants who, prior to Ring, had properly asserted, presented, and preserved challenges to the lack of jury factfinding and unanimity in Florida's capital sentencing procedure at the trial level and on direct appeal, the underlying gravamen of this entire issue. Asay, 2016 WL 7406538 at *20. Thus, Justice Lewis suggests that pre-Ring defendants should be able to get the benefit of Hurst v. Florida on a case-by-case basis. 6. When the opinions of Chief Justice Labarga and Justice Lewis are considered with the two dissenting opinions, a majority of the Court is clearly open to granting the benefit of Hurst to pre-Ring people.

7. In Mosley, Justice Quince joined the majority opinion recognizing that pre-Ring

defendants may be entitled to the benefit of Hurst if they can show on a case-by-case basis that

depriving them of the benefit of Hurst v. Florida would be fundamentally unfair. This means five

justices of the Florida Supreme Court have concluded that the benefit of Hurst v. Florida may be

extended to pre-Ring cases either on a category-by-category approach or a case-by-case approach.

8. A majority of the justices of the Florida Supreme Court in separate opinions in the

two decisions complained that the Court through the two rulings had injected unacceptable

arbitrariness into Florida’s capital sentencing process. As a result, the distinction between who gets

the benefit of Hurst v. Florida and 3.851 relief and who doesn’t and gets executed will be an

arbitrary one. See Asay, 2016 WL 7406538 at *22 (Lewis, J., concurring in result) (“As Justice

Perry noted in his dissent, there is no salient difference between June 23 and June 24, 2002—the days before and after the case name Ring arrived. See Perry, J., dissenting op. at 58. However, that is where the majority opinion draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently—here, the difference between life and death—for potentially the simple reason of one defendant's docket delay.”) (emphasis added); Id. at *26 (Pariente, J., concurring in part, dissenting in part) (“The majority's conclusion results in an unintended arbitrariness as to who receives relief depending on when the defendant was sentenced

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or, in some cases, resentenced.”) (emphasis added); Id. at 26 (Perry, J., dissenting) (“In my opinion, the line drawn by the majority is arbitrary and cannot withstand scrutiny under the Eighth Amendment because it creates an arbitrary application of law to two groups of similarly situated persons.”) (emphasis added); Mosley, 2016 WL 7406506 at *32 (Canady, J., concurring in part, dissenting in part) (“the supposed rule of ‘fundamental unfairness’ articulated in James is deeply problematic—if not entirely incoherent—when judged by its own terms. If counsel accepted our decisions at face value and relied on the United States Supreme Court's repeated rejection of Ring claims, the client loses under James. But if counsel raised claims that had been consistently rejected, the client wins. This hardly comports with the notion of fundamental fairness.”) (emphasis added); Id. at *32 (Canady, J., concurring in part, dissenting in part) (“ Based on an indefensible

misreading of Hurst v. Florida and a retroactivity analysis that leaves the Witt framework in

tatters, the majority unjustifiably plunges the administration of the death penalty in Florida

into turmoil that will undoubtedly extend for years. I strongly dissent from this badly flawed

decision.”).18 Justice Polston concurred in Justice Canady’s dissent in Mosley.

10. Completely ignored in Asay and Mosley is the logic of Griffith v. Kentucky, 479 U.S.

314, 327-28 (1987) that justice should be administered with an even hand:

Justice POWELL has pointed out that it “hardly comports with the ideal of

18Justice Canady also disagrees with the court’s action in abandoning the binary approach of the Witt analysis, and Justice Polston concurred in Justice Canady’s dissent. Thus, five of the seven Florida Supreme Court justices do not support discarding the either-it-is-or-isn’t-retroactive Witt analysis. Once the binary approach is abandoned and the issue is no longer between just a prospective (nonretroactive) application of Hurst v. Florida and a retroactive application to cases final when Hurst v. Florida issued, necessarily the retroactive application of the law can be given to some and not to others. But, there are no governable standards. This is particularly true when, applying the same Witt test to Asay and Mosley, the majority reached different conclusions on the issue. For example, the third prong of Witt requires an analysis of the extent of reliance factor on pre-Hurst law. In Asay the court found that the extent of reliance on Florida’s unconstitutional death penalty scheme weighed “heavily against” retroactive application to Asay, while in Mosley, the court reached the opposite conclusion, holding that the extent of reliance on the same pre-Hurst law weighed “in favor” of retroactive application to Mosley. See Asay, 2016 WL 7406538, at *12; Mosley, 2016 WL 7406506, at *23. The distinction is simply arbitrary. Asay and Mosley also reached differed as to the third Stovall/Linkletter retroactivity factor — the effect on the administration of justice—finding that it weighed “heavily against” retroactive application as to Asay, but in favor of retroactive application as to Mosley. See Asay, 2016 WL 7406538, at *13; Mosley, 2016 WL 7406506, at *24. 37

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‘administration of justice with an even hand,’ ” when “one chance beneficiary-the lucky individual whose case was chosen as the occasion for announcing the new principle-enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U.S. 233, 247, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U.S., at 255, 89 S.Ct., at 1037 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U.S. 47, 60, 93 S.Ct. 1966, 1973, 36 L.Ed.2d 736 (1973) (MARSHALL, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U.S., at 556, n. 16, 102 S.Ct., at 2590, n. 16 (emphasis omitted). We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. (emphasis added). “[S]elective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 323.

11. While Hodges death sentence was final when Hurst v. Florida issued, numerous

other capital defendant’s death sentences had been final when good fortune and good timing meant

that at the moment that Hurst v. Florida those defendants were free of the shackles of finality. The

decisions in Asay and Mosley have opened the door to arbitrariness infecting Florida’s death penalty

system in violation of the Eighth Amendment. Rule 3.851 relief is warranted.

CLAIM IV THE DECISIONS IN HURST V. STATE AND PERRY V. STATE, WHICH ARE NEW LAW THAT WOULD GOVERN AT A RESENTENCING AND REQUIRE THE JURY TO UNANIMOUSLY FIND THE STATUTORILY REQUIRED FACTS NECESSARY TO AUTHORIZE A DEATH SENTENCE AND ALSO REQUIRE THE JURY TO UNANIMOUSLY RECOMMEND A DEATH SENTENCE BEFORE THE JUDGE WOULD BE AUTHORIZED TO IMPOSE A DEATH SENTENCE, MUST BE PART OF THE SECOND PRONG ANALYSIS OF MR. HODGES’ PREVIOUSLY PRESENTED STRICKLAND CLAIMS. THE NEW LAW, DUE PROCESS PRINCIPLES, AND THE EIGHTH AMENDMENT ALL REQUIRE THIS COURT TO REVISIT MR. HODGES’ PREVIOUSLY PRESENTED CLAIMS AND DETERMINE WHETHER THE EVIDENCE PRESENTED TO SUPPORT EACH CLAIM AND ALL THE OTHER ADMISSIBLE EVIDENCE AT A FUTURE RESENTENCING WOULD PROBABLY RESULT IN A LIFE SENTENCE IN LIGHT OF THE NEW LAW, AND WHEN THE PROPER ANALYSIS IS CONDUCTED IT IS CLEAR THAT IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD RESULT, RULE 3.851 RELIEF IS REQUIRED. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions

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to vacate, and all evidence presented by him during his trial and previous postconviction proceeding, are incorporated herein by specific reference. 2. In Perry v. State, the Florida Supreme Court held that the death recommendation necessary to authorize a death sentence had to be reached unanimously by the jury: to increase the penalty from a life sentence to a sentence of death, the jury must unanimously find the existence of any aggravating factor, that the aggravating factors are sufficient to warrant a sentence of death, that the aggravating factors outweigh the mitigating circumstances, and must unanimously recommend a sentence of death. 2016 WL 6036982 at 8. In deciding whether to recommend a death sentence, jurors may choose to vote in favor of a life sentence to be merciful. Id. In Hurst v. State, the Court explained: Requiring a unanimous jury recommendation before death may be imposed, in accord with precepts of the Eighth Amendment and Florida’s right to trial by jury, is a critical step toward ensuring that Florida will continue to have a constitutional and viable death penalty law, which is surely the intent of the Legislature. The requirement will dispel most, if not all, doubts about the future validity and long-term viability of the death penalty in Florida.

202 So. 3d at 62.

3. In Hildwin v. State, 141 So.3d 1178, 1184 (Fla.2014), the Florida Supreme Court

explained that when presented with qualifying newly discovered evidence:

the postconviction court must consider the effect of the newly discovered evidence, in addition to all of the evidence that could be introduced at a new trial. Swafford v. State, 125 So.3d 760, 775-76 (Fla. 2013). In determining the impact of the newly discovered evidence, the court must conduct a cumulative analysis of all the evidence so that there is a ‘total picture’ of the case.

In Swafford, the Florida Supreme Court indicated the evidence to be considered in evaluating

whether a different outcome was probable included “evidence that [had been] previously excluded

as procedurally barred or presented in another proceeding.” Swafford v. State, 125 So.3d at 775-76. The “standard focuses on the likely result that would occur during a new trial with all admissible evidence at the new trial being relevant to that analysis.” Id. Put simply, the analysis requires envisioning how a new trial or resentencing would look with all of the evidence that would be available. Obviously, the law that would govern at a new trial must be part of the analysis. Here, the law would require the jury to determine unanimously that sufficient aggravators exist and that they

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outweigh the mitigators. It would also require the jury to unanimously recommend a death sentence before the sentencing judge would be authorized to impose a death sentence. One single juror voting in favor of a life sentence would require the imposition of a life sentence. 7. This is new Florida law that did not exist when Hodges previously presented his Strickland claims. Hodges’ previously presented claims must be re-evaluated. 8. The Florida Supreme Court explained in Hurst v. State that “the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty.” 202 So. 3d at 59. See State v. Steele, 921 So. 2d 538, 549 (Fla. 2005), quoting State v. Daniels, 542 A.2d 306, 315 (Conn. 1988). Reliability of Florida death sentences is the touchstone of the new Florida law requiring a unanimous jury to make

the factual determinations necessary for the imposition of a death sentence and requiring the jury to

unanimously return a death recommendation before a death sentence is authorized as a sentencing

option. Implicit in the justification for the new Florida law is an acknowledgment that death

sentences imposed under the old capital sentencing scheme were (or are) less reliable. Before

executions are carried out in a case in which the reliability of a death sentence is subpar, a re-

evaluation of such a death sentence in light Hurst v. State, and Perry v. State is warranted. The

Strickland prejudice analysis requires a determination of whether confidence in the reliability of the

outcome - the imposition of a death sentence - is undermined by the evidence the jury did not hear

due to the Strickland error. The new Florida law should be part of the evaluation of whether

confidence in the reliability of the outcome is undermined.

9. Because the new Florida law will apply at a resentencing, it constitutes new law within the meaning of Rule 3.851 because it extends a new right to capital defendants, i.e. the right to a life sentence if one juror votes in favor of a life sentence. This new law and the new right it extends requires this Court to revisit Hodges’ previously presented Strickland claims and determine whether a different result, i.e. a life sentence, is more likely than not. Here, with two jurors at the original penalty phase voting in favor of a life sentence, confidence in the reliability of the outcome is undermined on the basis of the Strickland claims. Rule 3.851 relief is warranted.

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CLAIM V THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION REQUIRES THE RETROACTIVE APPLICATION OF THE SUBSTANTIVE RULE ESTABLISHED BY CHAPTER 2017-1, WHICH PRECLUDES THE IMPOSITION OF A DEATH SENTENCE UNLESS A JURY UNANIMOUSLY RETURNS A DEATH RECOMMENDATION. This claim is evidenced by the following: 1. All other factual allegations in this motion and in Hodges’ previous motions to vacate, and all evidence presented by him during his trial and previous postconviction proceeding, are incorporated herein by specific reference. 2. On March 13, 2017, the Governor signed Chapter 2017-1 into law. The preamble explained itself as “[a]n act relating to sentencing for capital felonies; amending ss. 921.141 and 921.142, F.S.; requiring jury unanimity rather than a certain number of jurors for a sentencing recommendation of death.” Chapter 2017-1 amended § 921.141(2)(c) to provide: “If a unanimous

jury does not determine that the defendant should be sentenced to death, the jury’s recommendation

to the court shall be a sentence of life imprisonment without the possibility of parole.” Section

921.141(3)(a) provides that “[i]f the jury has recommended a sentence of ...[l]ife without the

possibility of parole, the court shall impose the recommended sentence.” As a result, Florida’s

capital sentencing statute now precludes the imposition of a death sentence unless a jury returns a

unanimous death recommendation.

3. In an opinion issued on April 13, 2017, the Florida Supreme Court addressed the

enactment of Chapter 2017-1 and stated:

the Florida Legislature enacted chapter 2017-1, Laws of Florida, effective March 13, 2017. This legislation requires a jury to unanimously determine that a defendant should be sentenced to death before a trial court may impose the death penalty. In re: Standard Criminal Jury Instructions in Capital Cases, _ So. 3d _, Case No. SC17-583, Slip Op. at 2 (Fla. April 13, 2017). The Court acknowledged that Chapter 2017-1 was enacted in response to its holding in Hurst v. State, 202 So. 3d 40 (Fla. 2016): we held that “in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Id. at 54. We further

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held that a unanimous jury recommendation for death is required before a trial court may impose a sentence of death. Id.

In re: Standard Criminal Jury Instructions in Capital Cases, Case No. SC17-583, Slip Op. at 2. While the State has filed a petition for a writ of certiorari in the US Supreme Court seeking review of the decision in Hurst v. State, the enactment of Chapter 2017-1 recognizing the right to a life sentence unless a jury unanimously recommends the imposition of a death sentence now exists separate and apart from Hurst v. State. 4. Before the enactment of Chapter 2017-1, the Florida’s capital sentencing statute was substantially revised when Chapter 2016-13 was enacted on March 7, 2016. This occurred after the January 12, 2016, issuance of Hurst v. Florida, 136 S. Ct. 616 (2016), which declared Florida’s capital sentencing scheme unconstitutional. The Florida Legislature passed Chapter 2016-13 to

correct the constitutional defect identified by the US Supreme Court in Hurst v. Florida. On March

7, 2016, the Governor signed Chapter 2016-13 into law. It provided that unless 10 jurors voted to

recommend a death sentence, a capital defendant could not be given a death sentence. Thus, the

legislature increased the number of jurors required to vote in favor of a death sentence before the

jury’s recommendation qualified as a death recommendation, and it eliminated a judge’s ability to

override a life recommendation.

5. On October 14, 2016, on the basis of its decision in Hurst v. State, the Florida

Supreme Court found the 10-2 provision unconstitutional in Perry v. State, 210 So. 3d

630,(Fla.2016). Otherwise, the Florida Supreme Court in Perry concluded that Chapter 2016-13

was intended to be applied retrospectively to pending homicide prosecutions in which the crime

occurred prior to the enactment of Chapter 2016-13. Id. at 635. However, the Florida Supreme Court concluded that the unconstitutional provision was not severable and left it to the legislature to rewrite the statute in a constitutional fashion. Months later, the Florida Supreme Court changed its position and indicated that the unconstitutional provision in Chapter 2016-13 was severable. Evans v. State, _ So. 3d _, 2017 WL 664191 *3 (Fla. Feb. 20, 2017) (“Accordingly, pursuant to our holding in Perry, the revised statutory scheme in chapter 2016–13, Laws of Florida, can be applied

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to pending prosecutions because “most of the provisions of the Act can be construed constitutionally and [can] otherwise be validly applied to pending prosecutions.” Id. at 635. “). 6. Thus, with the March 7, 2016, enactment of Chapter 2016-13, a substantive right was created statutorily. Under Chapter 2016-13, capital first degree murder was to be first degree murder plus a finding of the additional statutorily defined facts necessary to authorize a judge to impose a death sentence as reflected in a jury’s death recommendation. The legislature intended this right to a life sentence unless 10 jurors voted to recommend a death sentence to be extended retrospectively to any defendant charged with a capital homicide that had occurred prior to March 7, 2016, with a prosecution pending after the effective date of Chapter 2016-13. The decision in Perry led to the enactment of Chapter 2017-1.

7. While the holding in Hurst v. State was premised upon the Florida Constitution,

Chapter 2016-13 and Chapter 2017-1 were both crafted by the Florida Legislature and signed into

law by the Governor. The Florida Supreme Court has said: “Generally, the Legislature has the

power to enact substantive law, while the Court has the power to enact procedural law.” Allen v.

Butterworth, 756 So. 2d 52, 59 (Fla. 2000). It also has written: “Substantive law has been defined as

that part of the law which creates, defines, and regulates rights, or that part of the law which courts

are established to administer.” State v. Garcia, 229 So. 2d 236, 238 (Fla. 1969).

8. By virtue of the fact that Chapter 2016-13 and Chapter 2017-1 as written apply

retrospectively to all pending homicide prosecutions, any defendant convicted of a homicide who

was sentenced to death and who has or does receive a new trial or a resentencing now has the right

to a life sentence unless a jury unanimously recommends a death sentence. It will not matter how long ago the homicide occurred on which the prosecution is based. For example, Jacob Dougan who had been charged and convicted of a 1974 homicide recently received a new trial. State v. Dougan, 202 So. 3d 363 (Fla. 2016). Though he had resentencings, his conviction of first degree murder was final in 1978, and remained intact until the order granting a new trial was affirmed in 2016. At his new trial, Chapter 2017-1 will apply and if convicted, he will have a right to a life sentence unless his jury returns a unanimous death recommendation.

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9. The same is true for Paul Johnson, whose crime occurred in 1981, and who convictions became final, after a retrial in 1993. Johnson v. State, 608 So. 2d 4 (Fla. 1992), cert denied, 508 U.S. 919 (1993). In 2010, in a collateral appeal, the Florida Supreme Court vacated Johnson’s death sentences and ordered a resentencing. Johnson v. State, 44 So. 3d 51 (Fla. 2010). After he was again sentenced to death, Johnson’s death sentences were again vacated and another resentencing ordered in 2016. Johnson v. State, 205 So. 3d at 1291 (“we vacate Johnson’s death sentence and remand for a new penalty phase proceeding”). Chapter 2017-1 will govern the new penalty phase. 10. Recently, the Florida Supreme Court vacated Lancelot Armstrong’s death sentence. Armstrong v. State, _ So. 3d _, 2017 WL 224428 (Fla. Jan. 19, 2017). The homicide at issue

occurred in February of 1990. Armstrong was convicted of the murder of a deputy sheriff and the

attempted murder of another deputy. A death sentence was imposed. In August of 1994, the Florida

Supreme Court affirmed the convictions and death sentence. Armstrong v. State, 642 So. 2d 730

(Fla. 1994), cert denied 514 U.S. 1085 (1995). In 2003, in a collateral proceeding, the Florida

Supreme Court vacated Armstrong’s death sentence and ordered a resentencing. Armstrong v. State,

862 So. 2d 705 (Fla. 2003). Armstrong’s conviction, final in 1995, remained intact. Subsequently,

another death sentence was imposed and affirmed on direct appeal. In the 2017 collateral appeal the

Florida Supreme Court vacated Armstrong’s death sentence and ordered another resentencing.

Armstrong v. State, 2017 WL 224428 *2. Chapter 2017-1 will govern the new penalty phase.

11. The homicide at issue in Hodges’ case occurred in January, 1987. Even though

Hodges’ homicide conviction became final in 1993, there will be many defendant’s whose convictions were final before his that will be entitled to a resentencing. 12. The Florida Supreme Court ruled in Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992), that “[a]ny rule of law that substantially affects the life, liberty, or property of criminal defendants must be applied in a fair and evenhanded manner. Art. I, §§ 9, 16, Fla. Const.” Accordingly, the Court held: “any decision of this Court announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be give retrospective

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application by the courts of this state in every case pending on direct review or not yet final.” Id. The Court explained the basis for this rule: “selective application of new rules violates the principle of treating similarly situated defendants the same,” because selective application causes “‘actual inequity’” when the Court “‘chooses which of many similarly situated defendants should be the chance beneficiary’ of a new rule.” [Griffith v. Kentucky, 479 U.S. 314, 323 (1987)] (quoting [United States v.]Johnson, 475 U.S. at 556 n. 16, 102 S.Ct. at 2590 n. 16). Id. 13. Recently, in accord with Smith v. State and the constitutional right discussed therein, the Florida Supreme Court applied Hurst v. State which it issued on October 14, 2016, as governing law in all nonfinal cases pending on direct appeal. Deviney v. State, _ So. 3d _, 2017 WL 1090560 *5 (Fla. March 23, 2017) (“New rules of law set down by this Court . . . apply to cases on direct

review or those not otherwise finalized. [Citation] This case is before us on direct appeal; therefore,

Deviney's appeal is subject to Hurst v. State.”).

14. With the enactment first of Chapter 2016-13 and then of Chapter 2017-1, the

legislature created a substantive right to a life sentence for defendants convicted of first degree

murder unless a jury returns a death recommendation that includes the finding of the statutorily

required facts. Under Chapter 2017-1, the substantive right established the right to a life sentence

could only be overcome if the jury unanimously recommended a death sentence. One juror voting

for a life sentence now precludes the imposition of a death sentence. Because Chapter 2016-13 was

found to apply retrospectively, the statutorily created substantive right was extended to all homicide

defendants regardless of the date that the homicide was committed. Chapter 2017-1 did not change

the extension of the right retrospectively, but merely broadened the right by requiring a unanimous death recommendation before a death sentence was authorized. 15. Indeed, the statutory right has attached to convictions final long before Ring v. Arizona issued. Under the Florida Constitution provision discussed in Smith v. State, similarly situated defendants with convictions final before Ring v. Arizona issued must be treated the same. Other than the fact that Johnson recently received a resentencing, there is no basis for him to be afforded a substantive right as to homicides committed before the ones at issue in Hodges’ case.

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16. A capital defendant’s right to a life sentence unless a jury unanimously returns a death recommendation is a substantive right. Whether viewed as a legislatively created right that applies retrospectively or a constitutional right identified in Hurst v. State, it is a substantive right, not a procedural rule. The right to a life sentence unless a jury unanimously returns a death recommendation as noted in Hurst v. State did not arise from the Sixth Amendment principles of Apprendi v. New Jersey, Ring v. Arizona, or Hurst v. Florida. It is derived either from legislative enactments or the Florida Constitution or both. A state created right that carries a liberty or life interest with it is protected by the Due Process Clause of the Fourteenth Amendment. The US Supreme Court has recognized that States “may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Vitek v. Jones,

445 U.S. 480, 488 (1980). “Once a State has granted prisoners a liberty interest, [the US Supreme

Court has] held that due process protections are necessary ‘to insure that the state-created right is

not arbitrarily abrogated.’” Id. at 488-89. See State v. Robinson, 873 So. 2d 1205, 1209 (Fla. 2004)

(“It is the Due Process Clause that protects the individual against the arbitrary and unreasonable

exercise of governmental power.”).

17. In Griffith v. Kentucky, 479 U.S. 314, 323 (1987), the US Supreme Court recognized

that the due process principles of fairness and the administration of justice with an even hand

required treating similarly situated defendants the same. (“[S]elective application of new rules

violates the principle of treating similarly situated defendants the same.”).

18. Besides due process, the Eighth Amendment is implicated if substantive rights are

doled out arbitrarily in capital cases. In Johnson v. Mississippi, 486 U.S. 578 (1988), the US Supreme Court discussed the Eighth Amendment’s requirement that death sentences be reliable and free from arbitrary factors: The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special “ ‘need for reliability in the determination that death is the appropriate punishment’ ” in any capital case. See Gardner v. Florida, 430 U.S. 349, 363–364, 97 S.Ct. 1197, 1207–1208, 51 L.Ed.2d 393 (1977) (WHITE, J., concurring in judgment)(quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991–92, 49 L.Ed.2d 944 (1976)). Although we have acknowledged that “there can be ‘no perfect procedure for deciding in which cases governmental authority

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should be used to impose death,’ ” we have also made it clear that such decisions cannot be predicated on mere “caprice” or on “factors that are constitutionally impermissible or totally irrelevant to the sentencing process.” Zant v. Stephens, 462 U.S. 862, 884–885, 887, n. 24, 103 S.Ct. 2733, 2747, 2748, n. 24, 77 L.Ed.2d 235 (1983). Johnson v. Mississippi, 486 U.S. 584-85. 19. Prior to Chapter 2017-1, prior to Hurst v. State, prior to Chapter 2016-13, Florida law provided for a penalty phase jury to hear evidence and return an advisory recommendation as to the sentence by a majority vote. Seven jurors were required to vote in favor of a death recommendation for the advisory verdict to in fact be a death recommendation. Because the sentencing judge was required to give great weight to the advisory recommendation, the jury was essentially a co-sentencer. Espinosa v. Florida, 505 U.S. 1079, 1082 (1992) (“the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn

weighed within the trial court's process of weighing aggravating and mitigating circumstances”);

Lambrix v. Singletary, 520 U.S. 518, 528 (1997) (“In Espinosa, we determined that the Florida

capital jury is, in an important respect, a cosentencer with the judge.”). The change first made in

Chapter 2016-13 was to require 10 jurors voting in favor of a death sentence necessary for a

death recommendation to be returned, and to require the imposition of a life sentence when a life

recommendation (3 or more jurors voting in favor of a life recommendation) was returned by the

jury. A short time later another change, a unanimous death recommendation was determined to

be required before a judge becomes authorized to impose a death sentence.

20. Unlike the circumstances in Schriro v. Summerlin, 542 U.S. 348 (2004), the change

is not simply going from judge fact finding to jury fact finding. The change here is going from an

advisory jury recommendation requiring seven of twelve jurors to vote in favor of an advisory death recommendation, to requiring a unanimous death recommendation before a judge is authorized to impose a death sentence. In Schriro v. Summerlin, 542 U.S. at 355-56, the US Supreme Court noted that a substantive right would apply retroactively if it seriously improved accuracy and reliability. In other words, did the advisory recommendation by a majority vote carry a large risk of punishing defendants who had not committed the crime of capital first degree murder, i.e. first degree murder

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plus those statutorily defined facts necessary to authorize a judge to impose a death sentence.19 In his dissenting opinion in Schriro, Justice Breyer explained: As I have pointed out, the majority does not deny that Ring's rule makes some contribution to greater accuracy. It simply is unable to say “confidently” that the absence of Ring's rule creates an “ ‘ “impermissibly large risk” ’ ” that the death penalty was improperly imposed. 542 U.S. at 366. The purpose of the unanimity requirement contained in the Florida Constitution and applied in Hurst v. State is to ensure the reliability of a criminal conviction. Hurst v. State, 202 So. 3d at 58 (“In requiring jury unanimity in these findings and in its final recommendation if death is to be imposed, we are cognizant of significant benefits that will further the administration of justice.”); Id. at 59 (“We also note that the requirement of unanimity in capital jury findings will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty.”); Id. at 61 (“contemporary values demand a defendant not be

put to death except upon the unanimous consent of the jurors who have deliberated upon all the

evidence of aggravating factors and mitigating circumstances.”); Id. (unanimity will “more surely

protect the rights of defendants guaranteed by the Florida and United States Constitutions.”).

Requiring a unanimous death recommendation before a death sentence is authorized will clearly

enhance the reliability of death sentences imposed in Florida.

21. There can be no question that when two jurors vote in favor of a life sentence, the

death penalty was improperly imposed because Hodges was not unanimously convicted of capital

first degree murder, i.e. first degree murder plus those statutorily defined facts necessary to

authorize a judge to impose a death sentence. Indeed, under Chapter 2017-1, the non-unanimous

19In Welch v. United States, 136 S. Ct. 1257, 1264 (2016), the US Supreme Court held: First, “[n]ew substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); see Montgomery v. Louisiana, 577 U.S. ––––, ––––, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016); Teague, supra, at 307, 311, 109 S.Ct. 1060. Second, new “‘watershed rules of criminal procedure,’ ” which are procedural rules “implicating the fundamental fairness and accuracy of the criminal proceeding,” will also have retroactive effect.

(Emphasis added).

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death recommendation constitutes an acquittal of capital first degree murder and precludes the imposition of a death sentence. 22. This claim is not about retroactivity of a court ruling. It is about a statutorily created substantive right that was intended to be retrospective. The statutorily created substantive right is being extended to other capital postconviction defendants whose crimes occurred and convictions were final before Hodges’. There is no valid basis under Art. I, §§ 9, 16, Fla. Const., the Due Process Clause of the Fourteenth Amendment, and the Eighth Amendment for depriving Hodges of that statutorily created substantive right. 23. Chapter 2017-1 violates Art. I, §§ 9, 16, Fla. Const., the Due Process Clause of the Fourteenth Amendment, and the Eighth Amendment. In Hodges’ case, two jurors voted against a

death recommendation; under either Chapter 2016-13 or Chapter 2017 1 juror voting against a death

recommendation would preclude the imposition of a death sentence. As it is, Hodges’ death

sentence stands in violation of Chapter 2017-1, the Florida Constitution and the Eighth and

Fourteenth Amendments to the United States Constitution. Rule 3.851 relief is required. Hodges’

death sentence must be vacated and a resentencing ordered.

CONCLUSION AND RELIEF SOUGHT

Based on the foregoing, Hodges requests that this Court grant him a new penalty phase

and/or a life sentence.

CERTIFICATION PURSUANT TO FLA. R. CRIM. P. 3.851 (e)

Pursuant to Fla. R. Crim P. 3.851(e)(2)(A) and (e)(1)(F), undersigned counsel hereby

certifies that counsel has endeavored to fully discuss and explain the contents of this motion with Mr. Hodges, and that counsel to the best of her ability has complied with Rule 4-1.4 of the Rules of Professional Conduct, and that this motion is filed in good faith.

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I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished electronic service to Suzanne Bechard ([email protected] & carlasuzanne.bechard @myfloridalegal.com) and Jay Pruner ([email protected]) on this 8th day of May, 2017.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected] Counsel for Mr. Hodges

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Filing # 56779584 E-Filed 05/23/2017 09:14:09 AM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 89-2165 Death Penalty Case GEORGE M. HODGES,

Defendant. ______/

STATE’S ANSWER TO DEFENDANT’S SECOND AMENDED SUCCESSIVE MOTION FOR POSTCONVICTION RELIEF

The State of Florida, by and through the undersigned

counsel, submits this response to Hodges’ second amended

successive motion for postconviction relief. On December 14,

2016, Hodges filed his motion raising three interrelated claims

for relief, all based on the decisions in Hurst v. Florida, 136

S. Ct. 616 (2016), Hurst v. State, 202 So. 3d 40 (Fla. 2016),

and Perry v. State, 2010 So. 3d 630 (Fla. 2016). On February 1,

2017, this Court granted Hodges’ motion to amend his successive

postconviction motion. His amended motion was filed March 1,

2017. On April 26, 2017, this Court granted Hodges’ second

motion to amend his successive postconviction motion. His second

amended motion was filed on May 8, 2017. As explained below,

Hodges’ second amended motion must be summarily denied because

Hurst does not apply retroactively to capital defendants—like

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Hodges—whose sentences were final before the United States

Supreme Court issued its opinion in Ring v. Arizona, 536 U.S.

584 (2002). See Asay v. State, 210 So. 3d 1 (Fla. 2016), Mosley

v. State, 209 So. 3d 1248 (Fla. 2016); Gaskin v. State, ___ So.

3d ___, 2017 WL 224772 (Fla. Jan. 19, 2017); Bogle v. State, 213

So. 3d 833 (Fla. 2017); Lambrix v. State, ___ So. 3d ___, 2017

WL 931105 (Fla. Mar. 9, 2017).

FACTS AND PROCEDURAL HISTORY

Hodges was convicted of the first-degree murder of twenty-

year-old Betty Ricks. The victim, who had accused Hodges of

indecent exposure, was discovered the morning Hodges’ indecent

exposure charge was scheduled for a criminal diversion program

arbitration hearing. She had been shot twice with a rifle and

died the next day. Hodges v. State, 595 So. 2d 929, 930-31 (Fla.

1992). Following a trial, the jury recommended death by a vote

of ten to two. (V6/742). The trial court followed the jury’s

recommendation and sentenced Hodges to death, finding two

aggravating circumstances: (1) the murder was cold, calculated,

and premeditated; and (2) Hodges committed the murder to disrupt

or hinder the lawful exercise of government functions or

enforcement of the law. Hodges v. State, 595 So. 2d 929, 934

(Fla. 1992). Thereafter, the United States Supreme Court granted

Hodges’ petition for writ of certiorari, vacating and remanding 2

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for further consideration in light of its ruling in Espinosa v.

Florida, 505 U.S. 1079 (1992). Hodges v. Florida, 506 U.S. 803

(1992). The Florida Supreme Court issued its opinion on April

15, 1993, reaffirming its earlier decision. Hodges v. State, 619

So. 2d 272 (Fla. 1993). Mandate issued July 9, 1993. Hodges’

petition for writ of certiorari from that decision was denied on

November 29, 1993. Hodges v. Florida, 510 U.S. 996 (1993).

Hodges filed his initial postconviction motion in this

Court on June 23, 1995. An evidentiary hearing was held on his

amended motion, and this Court ultimately denied relief on all

grounds. The Florida Supreme Court affirmed the denial of

postconviction relief and denied habeas relief in Hodges v.

State, 885 So. 2d 338 (Fla. 2003). In his habeas petition,

Hodges claimed that Florida’s death penalty sentencing scheme

violated his right to a jury trial contrary to Ring v. Arizona,

536 U.S. 584 (2002). The Florida Supreme Court rejected this

claim. Hodges, 885 So. 2d at 359.

On March 4, 2005, Hodges filed an untimely and successive

petition for writ of habeas corpus claiming entitlement to

relief under Crawford v. Washington, 541 U.S. 36 (2004). The

Florida Supreme Court denied the petition on June 23, 2005.

Hodges v. Crosby, 907 So. 2d 1170 (Fla. 2005).

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Hodges’ federal petition for writ of habeas corpus was

denied in an unpublished opinion on February 22, 2007. Hodges v.

Secretary, Dept. of Corr., 2007 WL 604982 (M.D. Fla. Feb. 22,

2007). The Eleventh Circuit Court of Appeals affirmed the ruling

of the district court. Hodges v. Att’y Gen., State of Fla., 506

F.3d 1337 (11th Cir. 2007), cert. denied, 555 U.S. 855 (2008).

Hodges now raises a claim for relief pursuant to Hurst v.

Florida, 136 S. Ct. 616 (2016), Hurst v. State, 202 So. 3d 40

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

ARGUMENT

A Rule 3.851 motion for postconviction relief must be filed

within one year after the judgment and sentence are finalized.

Fla. R. Crim. P. 3.851(d). If this time period expires, a motion

filed thereafter is procedurally barred unless it alleges:

(A) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, or

(B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or

(C) postconviction counsel, through neglect, failed to file the motion.

Fla. R. Crim. P. 3.851(d)(2).

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Additionally, a “motion filed under this rule is successive

if a state court has previously ruled on a postconviction motion

challenging the same judgment and sentence.” Fla. R. Crim. P.

3.851(e)(2). A successive Rule 3.851 motion may be summarily

denied on the merits “[i]f the motion, files, and records in the

case conclusively show that the movant is entitled to no relief.”

Fla. R. Crim. P. 3.851(f)(5)(B).

Here, Hodges filed the Rule 3.851 motion after his previous

motion for postconviction relief had been denied. His initial

successive Rule 3.851 motion was filed on December 14, 2016,

which is well beyond the one-year time limitation after the

judgment and sentence were finalized on November 29, 1993, when

the United States Supreme Court denied certiorari review of the

Florida Supreme Court’s decision following the Supreme Court’s

remand for reconsideration in light of Espinosa. Hodges v.

Florida, 510 U.S. 996 (1993); Fla. R. Crim. P. 3.851(d)(1)(B)

(judgment becomes final “on the disposition of the petition for

writ of certiorari by the United States Supreme Court”). Thus, to

be reviewed on the merits, Hodges’ claim must be based on either

(A) new evidence that would have been unknowable through the

exercise of due diligence, or (B) a fundamental constitutional

right that has been held to apply retroactively and was not

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established before November 29, 1993. Fla. R. Crim. P.

3.851(d)(2)(A)-(B). Hodges cannot meet these requirements.

CLAIM I: HODGES IS NOT ENTITLED TO RELIEF FROM THIS COURT UNDER HURST V. FLORIDA AND HURST V. STATE.

Hodges asserts he is entitled to relief under Hurst v.

Florida and Hurst v. State because his death sentence violates

the Sixth Amendment to the United States Constitution. This claim

is untimely, procedurally barred from review, and cannot be

applied retroactively. Rule 3.851(d)(2)(B) provides that a motion

for postconviction relief may be filed out of time only where

“the fundamental constitutional right was not established within

the time period provided for in subdivision (d)(1) and has been

held to apply retroactively.” Hurst v. Florida does not apply

retroactively to cases like Hodges’ that were already final when

the United States Supreme Court issued its decision in Ring v.

Arizona, 536 U.S. 584 (2002). Asay v. State, 210 So. 3d 1 (Fla.

2016).

When a constitutional rule is announced, its requirements

apply to defendants whose convictions or sentences are pending on

direct review or not otherwise final. Griffith v. Kentucky, 479

U.S. 314, 323 (1987). In Hurst v. Florida, the United States

Supreme Court extended its holding in Ring to Florida’s death

penalty procedures, holding that the Sixth Amendment right to

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jury trial rendered those procedures unconstitutional because

they allowed a judge to make the necessary findings to render a

death penalty. Hodges’ conviction and sentence were final in

1993, long before Ring was decided. In Asay, the Florida Supreme

Court ruled that Hurst v. Florida does not apply retroactively to

cases that were final when Ring was decided. See also Mosley v.

State, 209 So. 3d 1248, 1274 (Fla. 2016) (“[W]e have now held in

Asay v. State that Hurst does not apply retroactively to capital

defendants whose sentences were final before the United States

Supreme Court issued its opinion in Ring.”). In Gaskin v. State,

2017 WL 224772 (Fla. Jan. 19, 2017), the court again denied

relief in a Hurst claim. The court explained that Gaskin was not

entitled to relief under Hurst because his sentence became final

in 1993. Id. at *2. See also Bogle v. State, 213 So. 3d 833 (Fla.

2017) (rejecting Hurst based claims because Bogle’s conviction

and sentence were final when Ring was issued). See also Lambrix

v. State, 2017 WL 931105 (Fla. Mar. 9, 2017) (“In accordance with

our opinion in [Asay], we conclude that Lambrix is not entitled

to a new penalty phase based on Hurst v. Florida, and our opinion

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

Whether or not Hodges previously raised a Ring claim makes

no difference in whether he is entitled to relief because his

sentence was final prior to Ring. Asay; Mosley; Gaskin; Bogle. 7

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The Florida Supreme Court has set a clear boundary for the

retroactive application of Hurst. Hodges’ death sentence was

final in 1993. This was before Ring was decided in 2002. Under

the Florida Supreme Court’s controlling precedent, Hurst is not

retroactive to his case, and his motion must be denied. Asay;

Gaskin; Bogle; Lambrix.

Despite the Florida Supreme Court’s unequivocal rulings on

the issue, Hodges claims his motion is timely and that Hurst can

be applied to his case. Specifically, Hodges argues that Mosley

in fact created two sets of capital defendants entitled to seek

relief under Hurst: (1) all cases which were not yet final when

Ring was decided in June 2002; and (2) all cases where the

defendants specifically preserved a Ring issue, regardless of the

date of finality. Hodges claims to be a member of the second

class, and therefore entitled to relief under Hurst.

However, Hodges’ interpretation is not supported by a

reasonable reading of Mosley. Although the Florida Supreme Court

analyzes the issue under both the “fundamental fairness”

principles of James v. State, 615 So. 2d 668 (Fla. 1994), and the

traditional retroactivity factors of Witt v. State, 387 So. 2d

922 (Fla.), cert. denied, 449 U.S. 1067 (1980), the opinion gives

no indication that any defendant who has challenged the lack of

jury factfinding at sentencing at any time can now seek relief 8

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under Hurst. To the contrary, Mosley cited to and built on Asay,

where the court expressly held that Ring does not apply to cases

that were final prior to Ring. Mosley, 209 So. 3d at 1274.

Accordingly, the time-of-finality factor was in play prior to

Mosley even being decided and applies to both retroactivity

analyses conducted in that case. Id. at *25 (Thus, Mosley, whose

sentence was final in 2009, falls into the category of defendants

who should receive the benefit of Hurst.”) (emphasis added).

If Mosley itself is not clear on the issue, the Florida

Supreme Court reiterated in Gaskin that capital sentences that

were final prior to 2002 are not entitled to any reconsideration

under Hurst. In Gaskin, the defendant raised the substance of a

Hurst claim both at trial and on direct appeal, specifically

challenging the lack of unanimous jury factfinding as to

sentencing factors. Gaskin, 2017 WL 224772 at *3 (Pariente, J.,

concurring and dissenting). The Florida Supreme Court found this

unpersuasive in deciding retroactivity and held that “[b]ecause

Gaskin’s sentence became final in 1993, Gaskin is not entitled to

relief under Hurst v. Florida.” Id. at *2. Gaskin clearly renders

Hodges’ claim meritless and it should be denied.

Despite Hodges’ complaints that the result is not fair, this

Court is obligated to follow the precedent of the Florida Supreme

Court in Gaskin and Asay. State v. Herring, 76 So. 3d 891, 897 9

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(Fla. 2011); State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976)

(“Where an issue has been decided in the Supreme Court of the

state, the lower courts are bound to adhere to the Court’s ruling

when considering similar issues, even though the court might

believe that the law should be otherwise.”). There is no language

in Asay or any other case which supports the suggestion that

retroactivity is to be reconsidered anew in every case. The rules

of procedure counsel against such action, since a successive

motion is only timely once a new constitutional decision has been

affirmatively held to be retroactive. This rule is meaningless if

retroactivity is to be a case-by-case, individualized

determination. Accordingly, this Court must apply Asay and Gaskin

and find Hodges’ motion to be untimely.

Finally, Hodges’ suggestion that Caldwell v. Mississippi,

472 U.S. 320 (1985), mandates relief in this case is patently

without merit. First, any complaint about jury instructions at

this point is untimely and procedurally barred from consideration

in this successive postconviction motion. Troy v. State, 57 So.

3d 828, 838 (Fla. 2011). In addition, to establish constitutional

error under Caldwell, a defendant must show that the comments or

instructions to the jury “improperly described the role assigned

to the jury by local law.” Romano v. Oklahoma, 512 U.S. 1, 9

(1994). The jury was properly instructed on its role based on the 10

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law existing at the time of Hodges’ trial. It is ludicrous to

suggest that the jury should have been instructed in accordance

with a constitutional change in the law which occurred long after

the trial. For all these reasons, Hodges’ motion must be

summarily denied.

CLAIMS II & III: HODGES IS NOT ENTITLED TO RELIEF UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION BASED ON HURST.

Hodges invokes the Eighth Amendment to the United States

Constitution and claims that the Florida Supreme Court’s

adoption of partial retroactivity is unconstitutional. However,

the United States Supreme Court has acknowledged that the issue

of postconviction retroactivity, even for federal constitutional

violations, is primarily a matter of state law. Danforth v.

Minnesota, 522 U.S. 264, 288 (2008). There is no United States

Supreme Court Eighth Amendment decision which supports Hodges’

claim.

Hodges is not being treated any differently than similarly

situated capital defendants. In fact, Hodges should be treated

exactly the same as similarly situated capital defendants. That

is, his claims—all premised on Hurst—should be rejected because

his death sentence was final when the decision in Ring was

announced. Asay; Gaskin; Bogle; Lambrix. Hodges’ Eighth

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Amendment claim fails procedurally and substantively, and must

be denied.

Hodges also asserts a separate, stand-alone argument of

constitutional error based on the Eighth Amendment, but this

claim is similarly subject to summary denial. As the United

States Supreme Court has never held that the Eighth Amendment

requires a unanimous jury recommendation, this claim is

procedurally barred and meritless.

In Spaziano v. Florida, 468 U.S. 447, 463-64 (1984), the

United States Supreme Court held that the Eighth Amendment is

not violated in a capital case when the ultimate responsibility

of imposing death rests with the judge. In deciding Hurst v.

Florida, the United States Supreme Court analyzed the case

pursuant to Sixth Amendment grounds and overruled Spaziano to

the extent that it allows a sentencing judge to find aggravating

circumstances independent of a jury’s factfinding. Hurst v.

Florida, 136 S. Ct. at 618. The Court did not address the issue

of any possible Eighth Amendment violation, and similarly, it

did not overrule Spaziano on Eighth Amendment grounds.

While the Florida Supreme Court initially included the

Eighth Amendment as a reason for warranting unanimous jury

recommendations in its Hurst decision, the court did not, and

cannot, overrule the United States Supreme Court’s surviving 12

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precedent in Spaziano. In addition, Florida has a conformity

clause in its state constitution that requires the state courts

to interpret Florida’s prohibition on cruel and unusual

punishments in conformity with the United States Supreme Court’s

Eighth Amendment jurisprudence. Art. I, § 17, Fla. Const.; Henry

v. State, 134 So. 3d 938, 947 (Fla. 2014) (noting that under

Article I, section 17 of the Florida Constitution, Florida

courts are “bound by the precedent of the United States Supreme

Court” regarding Eighth Amendment claims). Given that there is

no United States Supreme Court case holding that the Eighth

Amendment requires the jury’s final recommendation be unanimous,

Hodges’ argument must fail.

While the Florida Supreme Court found unanimity necessary

under the state and federal constitutions in Hurst, as

previously demonstrated, that case is not retroactive to Hodges.

Finally, reliance on any purported fairness in jury

factfinding is misplaced. Just like Ring did not enhance the

fairness or efficiency of death penalty procedures, neither does

Hurst. Johnson v. State, 904 So. 2d 400, 409 (Fla. 2005). As the

United States Supreme Court has explained, “for every argument

why juries are more accurate factfinders, there is another why

they are less accurate.” Schriro v. Summerlin, 542 U.S. 348, 356

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(2004). Because the accuracy of Hodges’ death sentence is not at

issue, fairness does not demand retroactive application of Hurst.

In short, the Florida Supreme Court has made it very clear

that Hurst should not be applied retroactively to cases in which

the death sentence became final before the issuance of Ring.

Hodges’ case squarely falls within this parameter. Each claim

presented in this successive postconviction motion is premised on

Hurst being applied to Hodges’ case, which is contrary to

established law. Therefore, all relief must be denied.

CLAIM IV: HODGES IS NOT ENTITLED TO A REOPENING OF HIS INITIAL POSTCONVICTION PROCEEDING.

In this claim, Hodges appears to be suggesting that the

Florida Supreme Court’s rejection of the non-unanimous jury

recommendation in § 921.141, Florida Statutes (2016), somehow

qualifies as “newly discovered evidence” that entitles him to a

new postconviction proceeding. Thus, he contends, this Court

must re-evaluate his initial postconviction evidence in light of

the requirement of unanimity in the jury recommendation. In

essence, Hodges is claiming entitlement to a reopening of his

initial postconviction proceeding based on Hurst v. State, and

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

Florida’s revised 2016 death penalty statute for its failure to

require unanimity in the jury’s death recommendation). There is

14

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no basis in the law for Hodges’ suggestion. The Florida Supreme

Court has determined that Hurst does not apply retroactively to

cases, like Hodges’, that were final prior to the issuance of

Ring in 2002. Asay. That is the end of it. Hodges is not

entitled to a reopening of his initial postconviction proceeding

or any other relief based on Hurst.

Hodges’ reliance on Hildwin v. State, 141 So. 2d 1178 (Fla.

2014), and Swafford v. State, 125 So. 3d 760 (Fla. 2013), is

misplaced. Both cases require a cumulative analysis of all the

evidence when a claim of newly discovered evidence is being

raised. A Hurst based claim, however, is not a claim of newly

discovered evidence and is not premised in any way on

evidentiary concerns. Hurst is a purely legal issue, and no

language from any case offers support for Hodges’ position that

his previously denied claims must be reconsidered under Hurst.

Indeed, Hurst, a Sixth Amendment right-to-a-jury-trial case,

does not operate to breathe new life into unrelated, previously

denied claims.

Hodges further argues that the new requirements for jury

unanimity would impact the prejudice prong of his previously

litigated Strickland v. Washington, 466 U.S. 668 (1984), claims

because he would allegedly be more likely to receive a life

sentence. This argument is based on nothing but mere 15

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speculation, and “[p]ostconviction relief cannot be based on

speculation or possibility.” Maharaj v. State, 778 So. 2d 994,

951 (Fla. 2000). Furthermore, Hodges’ argument assumes he is

entitled to relief under Hurst, when, as explained herein, he is

clearly not. It further assumes that his prior claims can be

resurrected, when they cannot be. Even if Hodges could

relitigate his previously disposed of claims, he would be

entitled to no relief because the prejudice standard requires a

showing that the defendant was prejudiced by other

constitutional errors, not a Sixth Amendment factfinding error.

Strickland, 466 U.S. at 695.

CLAIM IV: HODGES IS NOT ENTITLED TO THE BENEFIT OF CHAPTER 2017- 1, LAWS OF FLORIDA, BECAUSE HE IS NOT ENTITLED TO RELIEF UNDER HURST.

In Perry, 210 So. 3d at 640, the Florida Supreme Court

ruled that, based on its interpretation of Hurst v. Florida, the

revised § 941.141, which provided for a 10-2 jury death sentence

recommendation, was unconstitutional. The Florida Supreme Court

interpreted Hurst v. Florida to require a unanimous jury

recommendation. Id. In response to this ruling, the Legislature

passed Chapter 2017-1, Laws of Florida, which requires a

unanimous jury recommendation for a death sentence to be

imposed.

16

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Hodges claims that Chapter 2017-1 should apply to him. He

reasons that, because the revised statute will apply

“retrospectively to all pending homicide prosecutions,” and

because some other death-sentenced inmates will get the benefit

of Hurst relief (and therefore will receive a new penalty phase

at which the revised statute will apply), then the revised

statute should apply to him as well.

Hodges is wrong. As explained herein, the Florida Supreme

Court has made it abundantly clear that Hurst does not apply

retroactively to capital defendants whose sentences were final

before the United States Supreme Court issued its opinion in

Ring. Asay v. State, 210 So. 3d 1 (Fla. 2016); Mosley v. State,

209 So. 3d 1248 (Fla. 2016); Lambrix v. State, 2017 WL 931105

(Fla. Mar. 9, 2017); Gaskin v. State, 2017 WL 224772 (Fla. Jan.

19, 2017); Bogle v. State, 2013 So. 3d 833 (Fla. 2017);

Wainwright v. State, ___ So. 3d ___, 2017 WL 394509 (Fla. Jan.

30, 2017); Davis v. Jones, ___ So. 3d. ___, 2017 WL 656307 (Fla.

Feb. 17, 2017); Stein v. Jones, ___ So. 3d ___, 2017 WL 836806

(Fla. Mar. 3, 2017); Hamilton v. Jones, ___ So. 3d ___, 2017 WL

836807 (Fla. Mar. 3, 2017); Hartley v. Jones, ___ So. 3d ___,

2017 WL 944232 (Fla. Mar. 10, 2017); Geralds v. Jones, ___ So.

3d ___, 2017 WL 944236 (Fla. Mar. 10, 2017); Willacy v. Jones,

___ So. 3d ___, 2017 WL 1033679 (Fla. Mar. 17, 2017); Suggs v. 17

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Jones, ___ So. 3d ___, 2017 WL 1033680 (Fla. Mar. 17, 2017);

Lukehart v. Jones, ___ So. 3d ___, 2017 WL 1033691 (Fla. Mar.

17, 2017); Cherry v. Jones, ___ So. 3d ___, 2017 WL 1033693

(Fla. Mar. 17, 2017); Archer v. Jones, ___ So. 3d ___, 2017 WL

1034409 (Fla. Mar. 17, 2017); Jones v. Jones, ___ So. 3d ___,

2017 WL 1034410 (Fla. Mar. 17, 2017); Rodriguez v. State, ___

So. 3d ___, 2017 WL 1409668 (Fla. Apr. 20, 2017). See also

Marshall v. Jones, ___ So. 3d ___, 2017 WL 1739246 (Fla. May 4,

2017) (holding that even in the case of a judicial override of a

jury-recommended life sentence, defendant is not entitled to

retroactive application of Hurst because his sentence was final

before Ring was decided). The revised statute cannot apply to

Hodges because Hodges not entitled to a new penalty phase under

Hurst. Accordingly, this Court should deny Hodges’ motion.

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CONCLUSION

In conclusion, Hodges’ conviction and sentence were long

final prior to the decision in Ring. In Asay, the Florida

Supreme Court has ruled that Hurst does not apply retroactively

to capital defendants whose sentences were final before the

United States Supreme Court issued its decision in Ring. Because

Hurst is not retroactive to cases that were final prior to the

Ring decision, Hodges is not entitled to relief as a matter of

law. Accordingly, Hodges’ motion must be summarily denied.

Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ C. Suzanne Bechard_ C. SUZANNE BECHARD Assistant Attorney General Florida Bar No. 0147745 Office of the Attorney General 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 [email protected] [and] [email protected] CO-COUNSEL, STATE OF FLORIDA

19

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 23rd day of May, 2017, I filed

the foregoing with the Clerk of the Court by using the E-Portal

Filing System which will send a notice of electronic filing to

the following: Linda McDermott, Esquire, McClain & McDermott,

P.A., 20301 Grande Oak Boulevard, Suite 118-61, Estero, Florida

32928, [email protected]; and Jay Pruner, Assistant State

Attorney, 419 N. Pierce St., Tampa, Florida 33602,

[email protected] and Honorable Michelle Sisco,

401 N. Jefferson St., Room #102, Tampa, Florida 33602,

[email protected].

/s/ C. Suzanne Bechard_ CO-COUNSEL, STATE OF FLORIDA

20

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Filing # 57163498 E-Filed 06/01/2017 11:23:16 AM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

v. Case No. 89-2165 Death Penalty Case GEORGE M. HODGES,

Defendant. ______/

STATE’S NOTICE OF SUPPLEMENTAL AUTHORITY

The State of Florida, by and through the undersigned co-

counsel, files notice of the following supplemental authority:

A) Zakrzewski v. Jones, ___ So. 3d ___, 2017 WL 2290077 (Fla. May 25, 2017) (holding that even in the case of a judicial override of a jury-recommended life sentence, defendant is not entitled to retroactive application of Hurst because his sentence was final before Ring was decided);

B) Oats v. State, ___ So. 3d ___, 2017 WL 2291288 (Fla. May 25, 2017) (“[W]e conclude that Oats is not entitled to Hurst relief because Hurst does not apply retroactively to Oats’ sentence, which became final in 1985).

Copies are attached. This supplemental authority is

pertinent to Hodges’ claim that his sentence of death cannot be

sustained in light of Hurst v. Florida, 136 S. Ct. 616 (2016).

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of June, 2017, I

filed the foregoing with the Clerk of the Court by using the E-

Portal Filing System which will send a notice of electronic

filing to the following: Linda McDermott, Esquire, McClain &

McDermott, P.A., 20301 Grande Oak Boulevard, Suite 118-61,

Estero, Florida 32928, [email protected]; and Jay Pruner,

Assistant State Attorney, 419 N. Pierce St., Tampa, Florida

33602, [email protected] and Honorable Michelle

Sisco, 401 N. Jefferson St., Room #102, Tampa, Florida 33602,

[email protected].

Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ C. Suzanne Bechard_ C. SUZANNE BECHARD Assistant Attorney General Florida Bar No. 0147745 Office of the Attorney General 3507 E. Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 [email protected] [and] [email protected] CO-COUNSEL, STATE OF FLORIDA

2

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Zakrzewski v. Jones, --- So.3d ---- (2017) 2017 WL 2290077

the murders of Zakrzewski's wife and son, both by a vote of seven to five. Id. at 491. For the murder of 2017 WL 2290077 Zakrzewski's daughter, the jury recommended a sentence Only the Westlaw citation is currently available. of life imprisonment without parole. Id. The trial court, NOTICE: THIS OPINION HAS NOT BEEN concluding that the aggravating factors outweighed the RELEASED FOR PUBLICATION IN THE mitigating circumstances for all three murders, followed PERMANENT LAW REPORTS. UNTIL RELEASED, the jury's recommendation on the first two and overrode IT IS SUBJECT TO REVISION OR WITHDRAWAL. the jury's recommendation on the third and sentenced Zakrzewski to death for all three murders. Id. On direct Supreme Court of Florida. appeal, this Court “affirm[ed] the three death sentences.” Id. at 495. Edward J. ZAKRZEWSKI, II, Petitioner, v. In 2003, Zakrzewski appealed the trial court's denial of Julie L. JONES, etc., Respondent. postconviction relief on his claim that Florida's death penalty is unconstitutional under the United States No. SC16–729 Supreme Court's decisions in Apprendi v. New Jersey, | 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), [May 25, 2017] and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 Original Proceeding–Habeas Corpus L.Ed.2d 556 (2002). Zakrzewski v. State, 866 So.2d 688, 692, 696 (Fla. 2003). This Court affirmed the trial court's Attorneys and Law Firms denial of postconviction relief. Id. at 697. Zakrzewski now claims that his death sentences are unconstitutional under Martin J. McClain of McClain & McDermott, P.A., Hurst v. Florida and Hurst and that he is entitled to relief Wilton Manors, Florida, for Petitioner under chapter 2016–13, Laws of Florida. Pamela Jo Bondi, Attorney General, and Carolyn In Asay v. State, 210 So.3d 1 (Fla. 2016), petition for M. Snurkowski, Assistant Deputy Attorney General, cert. filed, No. 16–9033 (U.S. Apr. 29, 2017), we held that Tallahassee, Florida, for Respondent Hurst does not apply retroactively to sentences of death Opinion that were final before the United States Supreme Court decided Ring. In Marshall v. State, 2017 WL 1739246 (Fla. PER CURIAM. May 4, 2017), we denied Marshall's petition for a writ of habeas corpus based on Asay, concluding that the judicial *1 This case is before the Court on Edward J. override in Marshall's case did not warrant an exception Zakrzewski, II's petition for a writ of habeas corpus to the retroactivity analysis in Asay. Id. Zakrzewski's claiming a right to relief under the United States Supreme sentences became final in 1999 when the United States Court's decision in Hurst v. Florida , ––– U.S. ––––, 136 Supreme Court denied his petition for certiorari review. S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on Thus, Zakrzewski is not entitled to Hurst relief, and we remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), deny his petition for writ of habeas corpus. cert. denied, No. 16–998, –––U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2017 WL 635999 (U.S. May 22, 2017). It is so ordered. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the following reasons, we affirm Zakrzewski's three sentences of death. LABARGA, C.J., and QUINCE, POLSTON, and In 1994, Zakrzewski pled guilty to three charges of LAWSON, JJ., concur. first-degree murder for the deaths of his wife and PARIENTE, J., concurs in result with an opinion. two young children. Zakrzewski v. State, 717 So.2d 488, 490 (Fla. 1998), cert. denied, 525 U.S. 1126, 119 LEWIS and CANADY, JJ., concur in result. S.Ct. 911, 142 L.Ed.2d 909 (1999). After the penalty phase, the jury recommended sentences of death for (Labarga, J., dissenting).

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Zakrzewski v. Jones, --- So.3d ---- (2017) 2017 WL 2290077

unusual and unique circumstances involved herein, and the extensive amount of statutory and non-statutory PARIENTE, J., concurring in result. mitigation established, no reasonable juror could vote Despite the savage, horrific way in which Zakrzewski, for mercy, as the jury did here, and spare appellant's life a veteran of the United States Air Force, murdered for the killing of the child Anna, while voting for death his wife and two children, the jury votes in this case, in the killing of Edward. where “the trial judge found two statutory mitigating [circumstances], as well as a number of nonstatutory The mistake of the majority is illustrated by the mitigating [circumstances],” were 7–5, 7–5, and 6–6. recent case of Esty v. State, 642 So.2d 1074, 1076 Zakrzewski v. State, 717 So.2d 488, 494 (Fla. 1998). (Fla. 1994), where the trial court overrode the jury's Following the jury's two recommendations for death and life recommendation and found the HAC and CCP overriding the jury's third recommendation for life, the aggravators, the statutory mitigator of no significant trial court sentenced Zakrzewski to death for all three prior criminal history, and no nonstatutory mitigation. murders. The sentences of death became final in 1999. In reversing the improper override, we explained the Majority op. at 3. Tedder standard and its application:

*2 I concur in the majority's result because I am bound by For a trial judge to override a jury recommendation this Court's precedent in Asay v. State, 210 So.3d 1 (Fla. of life, ‘the facts suggesting a sentence of death 2016), petition for cert. filed, No. 16–9033 (U.S. Apr. 29, should be so clear and convincing that virtually no 2017), and Marshall v. State, 2017 WL 1739246 (Fla. May reasonable person could differ.’ Tedder v. State, 322 4, 2017), which held that Hurst v. State (Hurst), 202 So.3d So.2d 908, 910 (Fla. 1975). An override is improper 40 (Fla. 2016), cert. denied, No. 16–998, ––– U.S. ––––, if there is a reasonable basis in the record to support –––S.Ct. ––––, ––– L.Ed.2d ––––, 2017 WL 635999 (U.S. the jury's recommendation. Ferry v. State, 507 So.2d May 22, 2017), does not apply retroactively to sentences of 1373, 1376 (Fla. 1987). The record in this case death that became final before the United States Supreme reveals a number of factors that support the jury's Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. recommendation, including Esty's age of eighteen at 2428, 153 L.Ed.2d 556 (2002), and there is no exception to the time of the murder, his lack of a criminal history, this rule for sentences that resulted from judicial overrides. his potential for rehabilitation, and the possibility that he acted in an emotional rage. Thus, we conclude However, as I expressed in Asay and Chief Justice that jury override was improper because the jurors Labarga expressed in Marshall, the judicial override could have relied on these factors established in the for the death sentence where the jury voted for life record to recommend a life sentence in this case. “constitutes an injustice that should be remedied.” Marshall, 2017 WL 1739246, at *1 (Labarga, C.J., Id., 642 So.2d at 1080 (emphasis supplied). Similarly, dissenting); accord Asay, 210 So.3d at 35 n.32 (Pariente, in Strausser v. State, 682 So.2d 539, 542 (Fla. 1996), J., concurring in part and dissenting in part). Of course, we found that the trial court's override failed the in this case, as Petitioner points out, Zakrzewski's counsel Tedder standard because “there was vast mitigation to raised arguments substantially similar to those that support the jury's recommendation.” Likewise, we have were eventually recognized in both Ring and Hurst, just recently again reaffirmed this enduring standard including that Florida's capital sentencing scheme was in reversing the trial court's override of the jury's unconstitutional under the Sixth Amendment and article recommendation of a life sentence in Pomeranz v. State, I, section 16, of the Florida Constitution for requiring only 703 So.2d 465, 471 (Fla. 1997), the latest of a series a bare majority of the jury's vote to impose death. of recent cases wherein we have consistently reaffirmed Tedder. See Marta–Rodriguez v. State, 699 So.2d 1010, As Justice Anstead stated, dissenting to this Court's 1998 1012–1013 (Fla. 1997); Jenkins v. State, 692 So.2d 893, opinion affirming the judicial override in this case, joined 895 (Fla. 1997); Boyett v. State, 688 So.2d 308, 310 (Fla. by Chief Justice Kogan and Justice Shaw: 1996).

The majority has not honored Tedder and our *3 The majority has not considered the facts in a light consistent case law in holding that, despite the most favorable to the recommendation of the jury, as we

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Zakrzewski v. Jones, --- So.3d ---- (2017) 2017 WL 2290077

are required to do, or acknowledged the unchallenged reasonable basis in the record supporting the jury's vote The bottom line is that, in light of Hurst, we should at least as to Anna's death. Further, the majority has ignored reconsider our case law on judicial overrides. Only three not only the evidence and inferences therefrom that defendants stand sentenced to death as a result of a judicial would support the jury's recommendation, but has also override. Zakrzewski's sentence was the most recent of the ignored the fact that even the jury vote recommending judicial override sentences that this Court affirmed, and death was by a slim seven to five margin, one vote we have not affirmed a judicial override on direct appeal away from a life recommendation for the appellant. since Zakrzewski's case. Further, the cases upon which Hence, the majority, in direct violation of the law and this Court relied to uphold jury overrides—Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 our decision in Tedder has substituted its subjective analysis of the facts for the views of the sworn and (1984), and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. death-qualified jurors, who not only could have had 2055, 104 L.Ed.2d 728 (1989)—have now been overruled . reasonable but differing views as to whether death by the United States Supreme Court in Hurst v. Florida See, e.g., Marshall v. Crosby, 911 So.2d 1129, 1135 (Fla. was appropriate, but did have those views and openly expressed them. The majority has apparently concluded 2005). that because its members would not have extended mercy, the views of the twelve citizens sitting on this jury As this Court has explained, when a jury recommends extending mercy will be ignored. a sentence of life, “a majority of a twelve-person jury concluded that ... the record before them ... compelled There can be no legitimate dispute that the jury had an a life recommendation.” Keen v. State, 775 So.2d 263, abundance of evidence upon which it could have based 284 n.19 (Fla. 2000). Since Zakrzewski's case, the Court its life recommendation for Anna's death. Indeed, the has emphasized the “fundamental distinction ... between extensive mitigation found by the trial court in this case a defendant who receives an advisory sentence of death is vastly greater than that found in the cases discussed from a jury as opposed to one who receives an advisory above and, both in its nature and degree, is unique. sentence of life.” Weaver v. State, 894 So.2d 178, 200 Even the trial judge, who obviously disagreed with (Fla. 2004); see Coleman v. State, 64 So.3d 1210, 1225– the jury's recommendation, acknowledged the existence 27 (Fla. 2011). After Hurst v. Florida and Hurst, of the unusual extent of the mitigation and found which emphasized the critical importance of the jury's two statutory mitigators, no significant prior criminal findings and ultimate sentence recommendation in capital history and under the influence of an extreme mental sentencing, this distinction is even clearer. Thus, I would or emotional disturbance, and gave varying degrees of grant Hurst relief to Zakrzewski for his third sentence of weight to some fourteen (14) nonstatutory mitigators, death that resulted from a judicial override. ranging from substantial to slight weight. On such a record there is simply no way that we can properly Although granting relief to Zakrzewski based on conclude that there is no “reasonable basis in the record the judicial override in his case would not disturb to support the jury's recommendation.” Zakrzewski's other two “bare majority” death sentences, recognizing that judicial overrides warrant relief under .... Hurst would afford relief to the two other pre-Ring defendants whose sentences were the product of the clearly As we approach the 21st century of our civilization, do unconstitutional judicial override. See Marshall, 2017 WL we really want to take a law (the trial judge's sentencing 1739246, at *1–3 discretion) that was intended to act as a rational check on a jury possibly voting for death based upon an emotional appeal, and twist that law so as to use it as All Citations a sword for the judiciary to emotionally trump a jury acting with reasoned mercy? --- So.3d ----, 2017 WL 2290077 (Mem)

Zakrzewski, 717 So.2d at 496–97 (Anstead, J., concurring in part and dissenting in part) (last emphasis added) (footnote omitted).

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Zakrzewski v. Jones, --- So.3d ---- (2017) 2017 WL 2290077

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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Oats v. Jones, --- So.3d ---- (2017) 2017 WL 2291288

Attorneys and Law Firms 2017 WL 2291288 Only the Westlaw citation is currently available. Martin J. McClain, Special Assistant Capital Collateral Regional Counsel, and Nicole M. Noël, Assistant Capital NOTICE: THIS OPINION HAS NOT BEEN Collateral Regional Counsel, Southern Region, Fort RELEASED FOR PUBLICATION IN THE Lauderdale, Florida, for Petitioner PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Vivian Singleton, Assistant Attorney General, Supreme Court of Florida. Daytona Beach, Florida, for Respondent

Sonny Boy OATS, Jr., Petitioner, Opinion v. Julie L. JONES, etc., Respondent. PER CURIAM.

No. SC17–68 *1 Sonny Boy Oats, Jr., was tried and convicted for the | December 1979 robbery of a convenience store and first- [May 25, 2017] degree murder of the store clerk. Oats v. State, 181 So.3d 457, 460 (Fla. 2015). This Court affirmed Oats' conviction Synopsis on direct appeal but held that the trial court erroneously Background: Approximately 30 years after affirmance found three aggravating factors and remanded to the of his conviction for first-degree murder, 446 So.2d 90, trial court for entry of a new sentencing order. Oats v. and death sentence, 472 So.2d 1143, defendant filed State, 446 So.2d 90, 95–96 (Fla. 1984). On remand, the motion for determination of intellectual disability as bar trial court reweighed the valid aggravating factors and to his execution. The Circuit Court, Marion County, Hale again imposed the death penalty, which this Court then Ralph Stancil, J., denied the motion. Defendant appealed, affirmed. Oats v. State, 472 So.2d 1143, 1145 (Fla.), cert. and the Supreme Court, 181 So.3d 457, reversed and denied, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985). remanded for a new evidentiary hearing. Defendant filed This Court later affirmed the trial court's denial of Oats' postconviction motion in the Circuit Court, which was initial motion for postconviction relief and denied his held in abeyance pending the evidentiary hearing, and petition for a writ of habeas corpus. Oats v. Dugger, 638 then filed petition for writ of habeas corpus in the Supreme So.2d 20, 20 (Fla. 1994). Court. In late 2015, pursuant to the United States Supreme Court's decision in Hall v. Florida, ––– U.S. ––––, 134 [Holding:] The Supreme Court held that defendant was S.Ct. 1986, 188 L.Ed.2d 1007 (2014), this Court remanded not entitled to have jury determine his claim of intellectual Oats' case back to the circuit court for a new intellectual 1 disability. disability evidentiary hearing. Oats, 181 So.3d at 471. Following this Court's opinion in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16–998, 2017 Petition denied. WL 635999 (U.S. May 22, 2017), on October 28, 2016, Oats filed a postconviction motion in the circuit court Pariente, J., filed concurring opinion. seeking relief under Hurst, which the circuit court held in abeyance pending the evidentiary hearing on Oats' Hall Lawson, J., filed concurring opinion in which Canady, J., claim. concurred. On January 17, 2017, Oats filed the current petition for a writ of habeas corpus and additionally filed a Original Proceeding—Habeas Corpus motion to stay the circuit court proceedings (on remand from this Court's 2015 decision). 2 In his petition, Oats

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Oats v. Jones, --- So.3d ---- (2017) 2017 WL 2291288

contends that (1) he is entitled to have his death sentence vacated pursuant to Hurst, and (2) regardless, Hurst *2 Oats, 181 So.3d at 471. Our instruction was clear applies to cases involving Hall claims, like his, because that the new intellectual disability hearing should be held the determination of whether a defendant is intellectually before the trial court. disabled is a fact that must be found by the jury. For reasons more fully explained below, we conclude that Pursuant to section 921.141, Florida Statutes (2016), Oats is not entitled to relief. Accordingly, we deny Oats' once a defendant is convicted of first-degree murder, the petition. minimum sentence is life imprisonment without parole. See § 921.141(3), Fla. Stat. (2016); Hurst, 202 So.3d at 51. The trial then proceeds to the penalty phase where the jury ultimately determines whether the defendant should ANALYSIS be sentenced to life imprisonment without parole or death. See Hurst, 202 So.3d at 44. As to Oats' first claim, we conclude that Oats is not entitled to Hurst relief because Hurst does not apply retroactively In 2002, the United States Supreme Court decided Atkins to Oats' sentence, which became final in 1985. See Asay v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, 335 (2002), which held that the Eighth Amendment to No. 16–9033 (U.S. Apr. 29, 2017); see also Oats, 472 So.2d the United States Constitution bars the execution of 1143. criminal defendants who are intellectually disabled. Id. at 321, 122 S.Ct. 2242. Although Atkins held that the Next, we address Oats' claim that the United States imposition of the death penalty against intellectually Supreme Court's decision in Hurst v. Florida and this disabled individuals is unconstitutional, the United States Court's decision in Hurst require that the jury, rather Supreme Court left for the states “the task of developing than the trial judge, determine intellectual disability. In appropriate ways to enforce the constitutional restriction” granting Oats a new hearing on his claim of intellectual established in Atkins. Id. at 317, 122 S.Ct. 2242. disability, we concluded:

[T]he circuit court erred in In 2001, before Atkins, the Legislature enacted section determining that Oats failed to 921.137, Florida Statutes, barring the execution of establish onset of his intellectual intellectually disabled defendants. See § 921.137(2), Fla. disability prior to the age of 18. Stat. (2001). In 2004, after Atkins, this Court adopted The evidence presented to the circuit Florida Rule of Criminal Procedure 3.203, which became court in fact strongly leads to the effective on October 1, 2004, to provide a procedure for conclusion that Oats established implementing Atkins and section 921.137. Amends. to both his low IQ and onset of Fla. Rules of Crim. P. & Fla. Rules of App. P., 875 an intellectual disability prior to So.2d 563, 565 (Fla. 2004). Both the statute and the the age of 18. However, because court rule provide for an evidentiary hearing to determine the circuit court did not analyze intellectual disability to take place before the trial court. the remaining prongs, and because See Fla. R. Crim. P. 3.203(e). neither the circuit court nor the parties and their experts had the It is clear that the Florida Legislature designated the benefit of Hall, we remand for trial judge, not the jury, as the factfinder for intellectual further proceedings consistent with disability determinations. Intellectual disability is not a this opinion, including providing “necessary finding[ ] to impose a death sentence” but is, the parties with an opportunity to rather, the opposite—a fact that bars death. Hurst, 202 present additional evidence at an So.3d at 67. Therefore, nothing from the United States evidentiary hearing to enable a full Supreme Court's decisions in Ring, Atkins, Hall, or Hurst reevaluation of whether Oats is v. Florida, compel a conclusion either way on the issue intellectually disabled. of whether a judge or jury must determine that a criminal defendant is intellectually disabled. Rather, the United States Supreme Court explicitly left the implementation of

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Oats v. Jones, --- So.3d ---- (2017) 2017 WL 2291288

Atkins to the states. Thus, Oats has not demonstrated that convicted of a violent felony, (2) that the murder was Florida's Atkins procedure, as set forth in section 921.137, especially heinous, atrocious, or cruel (HAC), and (3) is unconstitutional. Accordingly, Oats is not entitled to that the murder was committed for pecuniary gain. Id. at relief on this claim. 94–95. “On remand, the trial court reweighed the valid aggravators and reimposed the death penalty.” Oats v. State, 181 So.3d 457, 460 (Fla. 2015). CONCLUSION Oats appealed, claiming in pertinent part “that the For the above reasons, Oats' petition for writ of habeas trial court erred in failing to impanel a jury to rehear corpus is hereby denied. evidence and to make a recommendation as to the proper sentence.” Oats v. State, 472 So.2d 1143, 1144–45 (Fla. It is so ordered. 1985). This Court denied relief on this claim, stating that “[b]ecause a new jury would be considering essentially the same evidence as was presented to the original jury,” there was “no reason to resubmit the evidence to a jury.” Id. at , C.J., and PARIENTE, LEWIS, QUINCE, LABARGA 1145 (quoting Oats, 446 So.2d at 96). and POLSTON, JJ., concur. However, it was error for this Court not to have allowed PARIENTE, J., concurs with an opinion. jury resentencing in Oats' case after striking three of LAWSON, J., concurs with an opinion, in which the aggravators, even under our pre-Hurst harmless CANADY, J., concurs. error jurisprudence for errors in sentencing orders. See Kaczmar v. State, 104 So.3d 990, 1008 (Fla. 2012); see also Wood v. State, 209 So.3d 1217, 1234 (Fla. 2017). PARIENTE, J., concurring. “Post–Hurst, this conclusion is even more compelling.” I concur in the majority's holding that Oats is not entitled Wood, 209 So.3d at 1234. to a jury determination on his claim that he is intellectually disabled and therefore ineligible for execution. As to Oats' Regardless of the error on resentencing, because this claim for relief under Hurst v. State (Hurst), 202 So.3d Court struck three of the six aggravating factors upon 40 (Fla. 2016), cert. denied, No. 16–998, 2017 WL 635999 which the jury originally relied in recommending death, (U.S. May 22, 2017), based upon the trial court's failure I cannot conclude that the error of submitting invalid to impanel a jury on resentencing, I concur in the majority aggravators to the jury is harmless beyond a reasonable opinion because I am bound by this Court's precedent in doubt. See id. Nonetheless, because I am bound by our Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. precedent in Asay, I concur in denying Oats Hurst relief. filed, No. 16–9033 (U.S. Apr. 29, 2017). However, for Oats will not receive a new penalty phase. And because the reasons fully expressed in my concurring in part and Oats is not entitled to a jury determination of intellectual dissenting in part opinion in Asay, I would apply Hurst disability, this case should be returned to the trial court retroactively to Oats' sentence and, finding that the error to conduct the new hearing on intellectual disability, as is not harmless beyond a reasonable doubt, reverse for a previously ordered by this Court in Oats, 181 So.3d at 471. new penalty phase. Id. at 32–38 (Pariente, J., concurring in part and dissenting in part). There are good reasons in Oats' case for doing so. LAWSON, J., concurring. I concur in the majority's holding that Oats is not entitled *3 In 1981, Oats' original jury “rendered an advisory to a jury determination on his intellectual disability claim sentence of death.” Oats v. State, 446 So.2d 90, 92 and concur in the result of the majority's holding that Oats (Fla. 1984). The jury's precise vote for life or death is is not entitled to relief under Hurst. See Mosley v. State, unknown because the verdict form only indicated that 209 So.3d 1248, 1285 (Fla. 2016) (Canady, J., concurring at least a majority of the jury voted to recommend a in part and dissenting in part). sentence of death. On appeal, this Court struck three of the aggravating factors upon which the trial judge's sentencing CANADY, J., concurs. determination relied: (1) that Oats had been previously

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 06/01/2017 11:23 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9

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Oats v. Jones, --- So.3d ---- (2017) 2017 WL 2291288

All Citations

--- So.3d ----, 2017 WL 2291288

Footnotes 1 That hearing has now been scheduled for September 7, 2017. 2 We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 06/01/2017 11:23 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10

P235 RLED

IN THE THIRTEENTH JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLGIRMBL 3 I PM 3: 35 Criminal Justice and Trial Division

STATE OF FLORIDA CASE NOW894CF-002165 v.

GEORGE HODGES, DIVISION: J Defendant.

ORDER DENYING DEFENDANT'S SECOND AMENDED SUCCESSIVE MOTION TO VACATE DEATH SENTENCE PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.85I

THIS MATTER is before the Court on Defendant's "Successive Motion to Vacate Death

Sentence Pursuant to Florida Rule of Criminal Procedure 3.851," filed December 14, 2016. On

January 3, 2017, the State filed "State's Answer to Defendant's Successive Motion for

Postconviction Relief." At a February 1, 2017 hearing, the Court granted Defendant's are tenus motion for leave to amend his successive motion. On March 1, 2017, Defendant filed "Amended

Successive Motion to Vacate Death Sentence Pursuant to Florida Rule of Criminal Procedure

3.851." On March 28, 2017, the State filed "State's Answer to Defendant's Amended Successive

Motion for Postconviction Relief." On April 18, 2017, Defendant filed "Motion for Leave to

Amend Pending Amended Motion to Vacate Death Sentence, Pursuant to Florida Rule ofCriminal

Procedure 3.851," which the Court granted at an April 26, 2017 hearing. On May 8, 2017,

Defendant filed "Second Amended Successive Motion to Vacate Death Sentence Pursuant to

Florida Rule of Criminal Procedure 3.851."1 On May 23, 2017, the State filed "State's Answer to

Defendant's Second Amended Successive Motion for Postconviction Relief," and the State filed a

Notice of Supplemental Authority on June 1, 2017. On June 15, 2017, the Court held a case

¹ This filing supersedes Defendant's December 14, 2016 and March 1, 2017 filings. Page 1 of 11

P236 management conference, at which time it determined that Defendant's claims are purely legal and do not require an evidentiary hearing. After considering Defendant's motion and memoranda of law, the State's answers, and the court file and record, as well as the arguments of counsel at the

June 15, 2017 case management conference, the Court finds as follows.

Procedural History

On July 13, 1989, a jury found Defendant guilty of first degree murder. The jury recommended a death sentence and, on August 10, 1989, the trial court sentenced Defendant to death. On direct appeal, the Florida Supreme Court affirmed Defendant's conviction and death sentence. See State v. Hodges, 595 So. 2d 929 (Fla. 1992). Thereafter, the United States Supreme

Court granted certiorari, vacated Hodges, and remanded for further consideration in light of the

Court's decision in Espinosa v. Florida, 505 U.S. 1079 (1992). See Hodges v. Florida, 506 U.S.

803 (1992). On remand from the United States Supreme Court, the Florida Supreme Court again affirmed the death sentence in Hodges v. State, 619 So. 2d 272 (Fla. 1993), and the United States

Supreme Court denied certiorari in Hodges v. Florida, 510 U.S. 996 (1993).

On June 20, 1995, Defendant filed a 3.850 motion for postconviction relief and, on June 6,

2001, the postconviction court denied Defendant's motion. The Florida Supreme Court affirmed the denial of Defendant's 3.850 motion in Hodges v. State, 885 So. 2d 338 (Fla. 2003).

On April 22, 2002 and March 4, 2005, Defendant filed habeas corpus petitions in the

Florida Supreme Court. Those petitions were denied on June 19, 2003 and June 23, 2005, respectively. See Hodges v. State, 885 So. 2d 338 (Fla. (2003); Hodges v. Crosby, 907 So. 2d 1170

(Fla. 2005). Defendant also filed a federal petition for writ of habeas corpus in the United States

District Court for the Middle District of Florida, and that petition was denied. See Hodges v. Sec 'y,

Dep't ofCorrections, 2007 WL 604982 (M.D. Fla. Feb. 22, 2007). The Eleventh Circuit Court of

Page 2 of 11

P237 Appeal affirmed. Hodges v. Attorney Gen., State ofFlorida, 506 F. 3d 1337 (11th Cir. 2007).

Defendant then filed a petition for writ ofcertiorari, which the United States Supreme Court denied on October 6, 2008. See Hodges v. McNeil, 129 S. Ct. 122 (2008).

On July 28, 2008, Defendant raised a lethal injection issue in a successive 3.851 motion and that motion was summarily denied. The Florida Supreme Court affirmed the denial of his successive motion in Hodges v. State, 26 So. 3d 1290 (Fla. 2010).

On October 21, 2010, Defendant filed a successive Rule 3.851 motion, which the Court summarily denied. The Florida Supreme Court affirmed this ruling. See Hodges v. State, 94 So.

3d 498 (Fla. 2012).

In this successive motion, Defendant asserts various claims in light of the United States

Supreme Court's opinion in Hurst v. Florida, 136 S. Ct. 616 (2016), and the· Florida Supreme

Court's decisions in Hurst v. State, 202 So. 3d 40 (Fla. 2016); Ferry v. State, 210 So. 3d 630 (Fla.

2016), Mosley v. State, 209 So. 3d 1248 (Fla. 2016), Asay v. State, 210 So. 3d 1 (Fla. 2016),

Armstrong v. State, 211 So. 3d 864 (Fla. 2017), and Gaskin v. State, No. SC15-1884, 2017 WL

224772 (Fla. Jan. 19, 2017), as well as the enactment of Chapter 2017-1, Laws of Florida.

Defendant requests that the Court vacate his death sentences and grant a new penalty phase or sentence him to life in prison.

Claim I: Defendant's death sentence violates the Sixth Amendment under Hurst v. Florida.

In claim I, Defendant asserts his death sentences are unconstitutional and in violation of the Sixth Amendment pursuant to Hurst v. Florida and Hurst v. State. Defendant asserts Hurst v.

Florida should be applied retroactively to his case under the Witt2 analysis, as well as principles of fundamental fairness as set forth in Mosley and James v. State, 615 So. 2d 668 (Fla. 1993).

2 Witt v. State, 387 So. 2d 922 (Fla. 1980).

Page 3 of 11

P238 Defendant posits that in Mosley, the court found two classes of defendants are entitled to retroactive application of the Hurst decisions: those whose sentences were final after Ring,3 and those who preserved a Ring-type error (regardless of when their death sentences became final).

Defendant asserts he falls into the latter category. Defendant contends considerations of fairness and uniformity require retroactive application of Hurst, and he provides examples of defendants whose crimes were committed before his own but will still receive the benefit of Hurst because their convictions or death sentences were vacated for other reasons. Defendant also argues that it is fundamentally unfair to punish him by denying him the benefit ofHurst v. Florida because, at the time of his penalty phase proceeding, his lawyers were precluded from raising a challenge under Caldwell v. Mississippi, 472 U.S. 320 (1985), which had been ruled inapplicable in Florida.

Defendant further contends he has a federal constitutional right to retroactive application of Hurst pursuant to Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Defendant also asserts the State cannot establish beyond a reasonable doubt any Hurst error was harmless here.

In its response, the State asserts Defendant's motion is untimely, procedurally barred and without merit. The State contends a reasonable reading of Mosley, Asay and Gaskin reflect that

Hurst v. Florida and Hurst v. State do not apply retroactively to Defendant's case. The State requests that the Court summarily deny claim L

The Court disagrees with Defendant's interpretation of Mosley. The Mosley court specifically noted that its decision in Asay held Hurst does not apply retroactively to defendants whose sentences were final before Ring but left unanswered the question of whether Hurst applies retroactively to defendants whose death sentences became final after Ring. Mosley, 209 So. 3d at

1274. The Court finds the Florida Supreme Court has held Hurst v. Florïda and Hurst v. State

3 Ring v. Arizona, 536 U.S. 584 (2002). Page 4 of 11

P239 simply do not apply retroactively to cases that were final at the time of Ring 4 See Asay, 210 So.

3d at 10-22 (conducting a retroactivity analysis and concluding that Hurst should not be applied to defendant's case, which became fmal before Ring); Mosley, 209 So. 3d at 1274 ("[W]e have now held in Asay v. State, that Hurst does not apply retroactively to capital defendants whose sentences were final before the United States Supreme Court issued its opinion in Ring. "); Gaskin,

2017 WL 224772, at *2 (citing Asay and fmding defendant is not entitled to relief under Hurst v.

Florida because his sentence became final in 1993); Bogle v. State, 213 So. 3d 833, 855 (Fla. 2017)

(citing Asay and finding defendant is not "entitled to Hurst reliefbecause Hurst does not apply to retroactively to cases that were final before Ring was decided "); Davis v. State, No. SC16-264,

2017 WL 656307, *2 (Fla. February 17, 2017) (citing Asay and denying defendant's Hurst v.

Florida claim); Lambrix v. State, SC16-8, 2017 WL 931105, *8 (Fla. March 9, 2017) (citing Asay and concluding defendant is not entitled to a new penalty phase based on Hurst v. Florida or Hurst v. State). This Court is bound by the decisions of the Florida Supreme Court.

Here, Defendant's sentence became final when the United State Supreme Court denied certiorari on November 29, 1993. See Fla. R. Crim. P. 3.851(d)(1)(B) ("For purposes of this rule, a judgment is final . . . on disposition of the petition for writ of certiorari by the United States

Supreme Court, if filed."). Because Defendant's sentence was final before Ring was decided, the

Court finds Hurst v. Florida and Hurst v. State do not retroactively apply to the instant casef No relief is warranted on claim L

4 Ring was decided on June 24, 2002. See Ring, 536 U.S. at 584. 5 Because the Hurst decisions are not retroactively applicable to Defendant's case, the Court does not further address the issue of hannless error. Page 5 of 11

P240 Claim II: Defendant's death sentence violates the Eighth Amendment under Hurst v. State and should be vacated.

In claim II, Defendant asserts that in Hurst v. State, the Florida Supreme Court held the

Eighth Amendment requires jury unanimity in recommending a death sentence and the jury must be informed of its right to recommend a life sentence even if it unanimously makes the necessary factual findings. Defendant further asserts that failure to properly inform thejury ofits role violates the Eighth Amendment. Defendant argues that failure to properly instruct the jury and the jury's non-unanimous advisory recommendation in this case violates the Eighth Amendment and reflects that Hurst error is not harmless here.

Defendant again argues Hurst v. State applies retroactively to his case under Montgomery and principles of fundamental fairness. Defendant posits that failure to retroactively apply Hurst to his case will result not only in a violation of his constitutional right to due process and equal protection, but also "in a death sentence that is arbitrary and capricious" in violation of the Eighth

Amendment and the corresponding provision of the Florida Constitution. Defendant contends that in Hurst v. State, the court required jury unanimity in the recommendation verdict based on the

Eighth Amendment and evolving standards of decency, and to prevent arbitrary and capricious imposition of the death penalty.

In its response, the State asserts the Eighth Amendment has never required a unanimous jury sentencing recommendation and the United States Supreme Court has never held the Eighth

Amendment requires a unanimous jury sentencing recommendation. The State contends in

Spaziano v. State, 468 U.S. 447 (1984), the United States Supreme Court held the Eighth

Amendment is not violated when the ultimate sentencing responsibility rests with the judge. The

State further contends Hurst v. Florida overruled Spaziano only to the extent Spaziano allows a sentencing judge to find an aggravating circumstance independent of the jury's fact finding, but

Page 6 of 11

P241 the Court did not overrule Spaziano on Eighth Amendment grounds. The State also contends the conformity clause of the Florida Constitution requires this Court to construe Florida's prohibition against cruel and unusual punishment consistently with the United States Supreme Court's precedent on Eighth Amendment claims. The State again argues Hurst is not retroactive to

Defendant's case. The State urges the Court to summarily reject this claim.

As discussed in claim I above, the Hurst decisions do not apply retroactively to the instant case. No relief is warranted on claim II.

Claim III: The retroactivity rulings in Asay and Mosley that seemingly permit partial retroactivity or category-by-category or case-by-case retroactivity of new law in death penalty proceedings injects arbitrariness into Florida's capital sentencing scheme that violates the Eighth Amendment principles of Furman v. Georgia.

In claim III, Defendant asserts that in Furman v. Georgia, 408 U.S. 238, 239-40 (1971), the United States Supreme Court found that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary or capricious manner." Gregg v. Georgia, 428 U.S. 153, 188 (1976). Defendant argues that the decisions in Asay and Mosley have opened the door to arbitrariness infecting Florida's death penalty scheme in violation of the Eighth Amendment because the Florida Supreme Court found

Hurst v. Florida applied retroactively to Mosley's death sentence under Witt, but not to Asay under the same test. Defendant argues that the Florida Supreme Court has injected unacceptable arbitrariness into Florida's capital sentencing process by drawing a "determinative, albeit arbitrary,

line" at Ring. As a result, Defendant opines that the distinction between who gets the benefit of

Hurst v. Florida and 3.851 relief and who doesn't and gets executed will be an arbitrary one.

Accordingly, he contends that his death sentences cannot stand.

The Court disagrees with Defendant's construction of the issue. Mosley and Asay do not

inject arbitrariness into Florida's capital sentencing scheme; rather, they are Florida Supreme

Page 7 of 11

P242 Court decisions that this Court is bound to follow. There is no authority that suggests that the distinction the Florida Supreme Court drew between pre- and post-Ring cases with respect to Hurst error renders the death sentences of individuals in Defendant's posture unconstitutional. No relief is warranted on claim III.

Claim IV: The decisions in Hurst v. State and Perry, which are new law that would govern at a resentencing and require the jury to unanimously find the statutorily required facts necessary to authorize a death sentence and also require the jury to unanimously recommend a death sentence before the judge would be authorized to impose a death sentence, must be part of the second prong analysis of Defendant's previously presented Strickland claims.

In claim IV, Defendant asserts the Court should review his previously presented Strickland claims in light of the new Florida law which would govern at a resentencing and the requirement that the jury now make all fmdings unanimouslyf Defendant cites to Hildwin v. State, 141 So. 3d

1178 (Fla. 2014), and Swafford v. State, 125 So. 3d 760 (Fla. 2014). Defendant asserts that under such a re-evaluation, it is apparent the outcome of the proceedings would have been different, as

Defendant would likely receive a binding life recommendation.

In its response, the State asserts Hurst "does not operate to breathe new life into previously denied claims." The State further contends the cases relied on by Defendant are inapplicable here as those cases address a cumulative analysis standard for newly discovered evidence, which is not at issue here. The State requests that the Court summarily deny this claim.

As discussed in claim I above, Hurst v. Florida and Hurst v. State do not apply retroactively to the instant case. The Court agrees with the State's assertion that there is no legal authority which

6 In this claim, Defendant refers to Chapter 2016-13, an amendment to Florida's death penalty scheme that was enacted on March 7, 2016, in response to Hurst v. Florida. The Florida Supreme Court struck down this amendment in Perry. See Perry, 210 So. 3d at 639-40. The Legislature has since enacted Chapter 2017-1, Laws of Florida, correcting the deficiencies of the statute identified in Perry. Page 8 of 11

P243 would permit or require this Court to re-evaluate and reconsider previously presented postconviction claims in light ofHurst. No relief is warranted on claim IV.

Claim V: The Eighth and Fourteenth Amendments to the United States Constitution require the retroactive application of the substantive rule established by Chapter 2017-1, which precludes the imposition of a death sentence unless a jury unanimously returns a death sentence.

In claim V, Defendant asserts that on March 13, 2017, the Governor signed Chapter 2017-

1 into law, amending Florida's capital sentencing statute such that it precludes the imposition of a death sentence unless a jury returns a unanimous death recommendation. Defendant contends that the decisions in Hurst v. State and Perry led to the enactment of Chapter 2017-1. Defendant cites to authority for the proposition that, pursuant to separation of powers, the legislative branch is responsible for substantive changes to the law while the judicial branch is responsible for procedural ones. He asserts that because Chapter 2017-1 was crafted by the Legislature, it is a substantive change to the law. Defendant includes several other arguments in support of his contention that Chapter 2017-1 is a substantive change to the law and must therefore inure to his benefit.

Defendant notes that, as written, Chapter 2017-1 applies retrospectively to all pending homicide prosecutions-any defendant convicted of a homicide who was sentenced to death and

who has or does receive a new trial or a resentencing now has the right to a life sentence unless a jury unanimously recommends a death sentence, without discrimination based on how long ago

the underlying homicide occurred. Defendant cites to several examples of capital defendants

whose crimes took place before Defendant's but whose death sentences were overturned due to

Hurst error. He asserts that Chapter 2017-1 now clearly provides that these defendants will have a

right to a life sentence unless their juries return unanimous death recommendations, but he is not

being afforded the same right, notwithstanding the fact that his homicide occurred later in time.

Page 9 of 11

P244 Defendant cites to Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992), for the proposition that "any rule of law that substantially affects the life, liberty, or property of criminal defendants must be applied in a fair and evenhanded manner. Art. I, §§ 9, 16 Fla. Const." In accordance with this principle, Defendant opines that he is entitled to the application ofChapter 2017-1 to his death sentences and that the failure to grant him relief will violate Art. I, §§ 9, 16, Fla. Const., the Due

Process Clause of the Fourteenth Amendment, and the Eighth Amendment. As such, he asks the

Court to vacate his death sentences and order a resentencing proceeding.

In its response, the State reiterates its position that Hurst does not apply retroactively to capital defendants whose sentences were final before Ring issued. The State maintains that the revised death penalty statute cannot apply to Defendant because he is not entitled to a new penalty phase under Hurst.

As the Court found in claim I, Defendant is not entitled to the retroactive application of

Hurst. In addition, the Court does not find that Chapter 2017-1 confers upon Defendant a substantive right to resentencing under Florida's amended death penalty scheme, nor does the

Court find that the failure to grant Defendant a new sentencing proceeding renders his death sentence unconstitutional. No relief is warranted on claim V.

Page 10 of 11

P245 Order of the Court

It is therefore ORDERED AND ADJUDGED that Defendant's Second Amended

Successive Motion to Vacate Death Sentence Pursuant to Florida Rule of Criminal Procedure

3.851 is hereby DENIED.

Defendant has thirty (30) days from the date of this Final Order within which to appeal However, a timely filed motion for rehearing shall toll the finality of this Order.

DONE AND ORDERED in Chambers in Hillsborough County, Florida this day ofJuly, 2017.

MICHELLEYISCO Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this order has been furnished to Linda McDermott,

Esq., 20301 Grande Oak Boulevard, Suite 118-61, Estero, Florida 32928; Suzanne Bechard, Esq.,

Office of the Attorney General, 3507 East Frontage Road, Suite 200, Tampa, FL 33607; Jay

Pruner, Esquire, Office of the State Attorney, 419 North Pierce Street, Tamp, FL 33602, by U.S. mail, on thi day ofJuly, 2017.

IMputy Clerk

Page 11 of 11

P246 P247

Filing # 61016246 E-Filed 08/28/2017 03:19:13 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 89-2165

STATE OF FLORIDA,

Plaintiff, v.

GEORGE M. HODGES,

Defendant. ______/

NOTICE OF APPEAL

Defendant, GEORGE M. HODGES, takes and enters his appeal to the Florida Supreme

Court to review the Orders and Judgments of the Circuit Court of the Thirteenth Judicial Circuit,

in and for Hillsborough County, Florida, bearing the date of July 31, 2017 (Order Denying

Defendant’s Second Amended Successive Motion to Vacate Death Sentence), and all other

rulings, actions, or acts rendered adversely to the Defendant in support of said judgment.

The nature of the order appealed from is the denial of Defendant’s Second Amended

Successive Motion to Vacate Death Sentence, in the above-captioned case, which is a final order.

All parties to said cause are hereby notified of the entry of this appeal.

/s/. Linda McDermott LINDA McDERMOTT Florida Bar No. 0102857 McClain & McDermott, P.A. 20301 Grande Oak Blvd. Suite 118-61 Estero, Florida 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

P247 P248

I HEREBY CERTIFY that a true copy of the foregoing notice of appeal has been

furnished electronic service to Suzanne Bechard ([email protected] &

carlasuzanne.bechard @myfloridalegal.com) and Jay Pruner ([email protected])

on this 28th day of August, 2017.

/s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

2

P248 P249

Filing # 61016246 E-Filed 08/28/2017 03:19:13 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 89-2165

STATE OF FLORIDA,

Plaintiff, v.

GEORGE M. HODGES,

Defendant. ______/

STATEMENT OF JUDICIAL ACTS TO BE REVIEWED

Defendant, GEORGE M. HODGES, files the following Statement of Judicial Acts to be

reviewed:

Order Denying Defendant’s Second Amended Successive Motion to Vacate Death Sentence (July 31, 2017)

I HEREBY CERTIFY that a true copy of the foregoing statement has been furnished

electronic service to Suzanne Bechard ([email protected] & carlasuzanne.bechard

@myfloridalegal.com) and Jay Pruner ([email protected]) on this 28th day of

August, 2017. /s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

P249 P250

Filing # 61016246 E-Filed 08/28/2017 03:19:13 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 89-2165

STATE OF FLORIDA,

Plaintiff, v.

GEORGE M. HODGES,

Defendant. ______/

DIRECTIONS TO THE CLERK

Defendant, GEORGE M. HODGES, directs the Clerk to include all items filed in this

post-conviction proceeding in the record on appeal since December 14, 2017, including the

following pleadings and orders:

a. Successive Motion to Vacate Death Sentence, December 14, 2016

b. Motion to Exceed Page Limitation, December 14, 2016

c. Notice of Filing, December 14, 2016

d. Amended Successive Motion to Vacate Death Sentence, March 1, 2017

e. State’s Answer to Defendant’s Amended Successive Motion for Postconviction Relief, March 28, 2017

f. Motion for Leave to Amend, April 18, 2017

g. Order on April 26, 2017 Case Management Conference, April 27, 2017

h. Second Amended Successive Motion to Vacate Death Sentence, May 8, 2017

i. Notice of Case Management Hearing, June 30, 2017

j. State’s Answer to Defendant’s Second Amended Successive Motion to Vacate Death Sentence, May 23, 2017

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k. State’s Notice of Supplemental Authority, June 1, 2017

l. Order Denying Defendant’s Second Amended Successive Motion to Vacate Death Sentence, July 31, 2017

I HEREBY CERTIFY that a true copy of the foregoing directions has been furnished

electronic service to Suzanne Bechard ([email protected] & carlasuzanne.bechard

@myfloridalegal.com) and Jay Pruner ([email protected]) on this 28th day of

August, 2017. /s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected]

Counsel for Mr. Hodges

2

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Filing # 61016246 E-Filed 08/28/2017 03:19:13 PM

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO. 89-2165 STATE OF FLORIDA, Plaintiff, v. GEORGE M. HODGES, Defendant. ______/ DEFENDANT'S DESIGNATION TO COURT REPORTER AND REPORTER'S ACKNOWLEDGMENT I. DESIGNATION. Defendant, GEORGE HODGES, files this Designation to Court Reporter and directs

that the official court reporters, transcribe an original of the postconviction proceedings to be

used in this appeal: 1. All postconviction proceedings recorded by the Court Reporter after December 14, 2016, to date. No portion of the post conviction record should be excepted. Counsel has

determined that there was a hearing on the following date: a. February 1, 2017 b. April 26, 2017

c. June 15, 2017 2. The Court Reporter is directed to file the original with the clerk of the lower tribunal.

I, counsel for Defendant, certify that satisfactory financial arrangements have been made with the Court Reporter for preparation of the transcript.

/s/. Linda McDermott LINDA McDERMOTT Counsel for Defendant

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II. REPORTER'S ACKNOWLEDGMENT. 1. The following designation was served on ______, 2017, and received on ______, 2017. 2. Satisfactory arrangements have/have not been made for payment of the transcript cost. These financial arrangements were completed on ______, 2017. 3. Number of hearing days to be transcribed: ______. 4. Estimated number of pages: ______. 5a. The transcript will be available within _____ days of service of the foregoing designation and will be filed on or before the ____ day of ______, 2017. OR

5b. For the following reason(s) the Court Reporter requests an extension of time of _____ days for preparation of the transcript which will be filed on or before the day of ______, 2017:

6. Completion and filing of this acknowledgment by the Court Reporter constitutes submission to the jurisdiction of the Court for all purposes in connection with these appellate proceedings. 7. The undersigned Court Reporter certifies that the foregoing is true and correct and that a copy has been furnished by mail/hand delivery this _____day of ,

2017, to each of the parties or their counsel.

Court Reporters

2

P253 P254

I HEREBY CERTIFY that a true copy of the foregoing designation has been furnished electronic service to Suzanne Bechard ([email protected] & carlasuzanne.bechard @myfloridalegal.com) and Jay Pruner ([email protected]) on this 28th day of August, 2017. /s/ Linda McDermott LINDA MCDERMOTT Fla. Bar No. 0102857 McClain & McDermott, P.A. Attorneys at Law 20301 Grande Oak Blvd. Suite 118 - 61 Estero, FL 33928 (850) 322-2172 [email protected] Counsel for Mr. Hodges

3

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Filing # 61145916 E-Filed 08/30/2017 03:00:13 PM 1

1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 2 CRIMINAL DIVISION

3

4 STATE OF FLORIDA

5 Case No.: 89-CF-2165 vs. 6 Division: J GEORGE M. HODGES, 7 Defendant. ______/ 8

9

10 TRANSCRIPT OF PROCEEDINGS

11 This case came on to be heard before the Honorable Michelle D. Sisco, Circuit Judge, at the 12 Hillsborough County Courthouse Annex, Tampa, Florida, on February 1, 2017, commencing at approximately 1:43 p.m., 13 reported by Mary E. Blazer, RPR.

14

15 APPEARANCES:

16 C. Suzanne Bechard, Assistant Attorney General Office of Attorney General 17 3507 East Frontage Road, Suite 200 Tampa, Florida 33607 18 On Behalf of the State of Florida.

19

20 Linda McDermott, ESQUIRE 21 McClain & Mcdermott P.A 141 NE 30th Street 22 Wilton Manors, Florida 33334-1064 On Behalf of the Defendant. 23

24 Also Present:

25 Staff Attorney

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2

1 P R O C E E D I N G S

2 THE COURT: So on the Hodges matter, let's

3 come on up.

4 And if you-all could identify yourself for the

5 record who is who.

6 MS. MCDERMOTT: Good afternoon, Judge.

7 Linda McDermott on behalf of Mr. Hodges.

8 THE COURT: Okay.

9 MS. BECHARD: Suzanne Bechard, co-counsel for

10 the State from the attorney general's office.

11 THE COURT: Okay. Are we anticipating anybody

12 else?

13 MS. MCDERMOTT: No, I don't think so.

14 THE COURT: So I was looking today over the

15 motion and the response, and just to clarify,

16 Ms. McDermott, are you asking for an evidentiary

17 hearing or you're just asking for me to rule up or

18 down?

19 MS. MCDERMOTT: Well, the way that the claims

20 were written, I have characterized those as legal

21 claims. I certainly think there's somewhat of an

22 argument that trial counsel's strategy does change

23 in light of the new law; however, my understanding

24 was we were coming here today to argue just the --

25 as them as legal claims.

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3

1 THE COURT: Okay.

2 MS. MCDERMOTT: And if I may.

3 When I prepared for the hearing today, I have

4 been a little bit under the weather the past few

5 weeks and I realized in preparing that obviously

6 the case law has evolved dramatically --

7 THE COURT: Right.

8 MS. MCDERMOTT: -- in the last 30 days. And I

9 was actually going to ask the Court if you would

10 indulge me to submit an amendment to the 3.850, if

11 permitted. I can do it fairly quickly, within

12 seven or ten days.

13 THE COURT: With an amendment or a supplement

14 to what's already been raised because there's a

15 difference.

16 MS. MCDERMOTT: Well, I think it would be an

17 amendment because I would be adding a claim, and

18 then I would be, you know, also adding information

19 to the three existing claims. So I would

20 characterize it as an amendment.

21 THE COURT: Okay. So what claim do you wish

22 to add?

23 MS. MCDERMOTT: The claim that I would be

24 adding would relate to the State's argument that

25 Assay and -- has disposed of the issue, the Hurst

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4

1 versus Florida issue, and that Mosley has drawn

2 this bright line of who is entitled to relief and

3 who isn't because I think that that also creates an

4 8th Amendment problem because all of these

5 individuals are in the same class of --

6 THE COURT: Well, sounds like you really want

7 to do a rebuttal to the State's response.

8 MS. MCDERMOTT: Well, that -- that claim is

9 not in there because those cases had not been

10 issued at the time that I drafted the motion. So

11 it would -- in the motions I've written since

12 December 22nd I have included a fourth claim

13 related to that distinction --

14 THE COURT: Okay.

15 MS. MCDERMOTT: -- of, you know, an 8th

16 Amendment claim. So I was --

17 THE COURT: It sounds like we're still dealing

18 with legal -- legal matters.

19 MS. MCDERMOTT: Yes, that would be an entirely

20 legal thing.

21 THE COURT: And what's the State's response to

22 that?

23 MS. BECHARD: Your Honor, quite frankly, the

24 State would object to any further amendments.

25 We're already at 36 pages, which is 16 pages over

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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5

1 the 20 page limit here. It seems like we're adding

2 claims piecemeal. And, obviously, in the State's

3 opinion, when you look at these cases that have

4 come out since Assay, for example, Gaskin and the

5 other cases, they haven't said anything new.

6 They are -- it is all a straight line from --

7 we've got Hurst, and then we've got Assay deciding

8 on the retroactivity as far as from pre-Ring, and

9 then we've got Mosley coming out and saying, okay,

10 everything that's post-Ring, Hurst applies

11 retroactively. And then everything else has been a

12 permutation of that. There has been nothing new

13 that has come out in those cases. And the State

14 would object to an opportunity for any amendment

15 because of those reasons.

16 THE COURT: Okay. All right. Well, just

17 looking at the timeline, it looks like if we were

18 going to have an evidentiary hearing, it would have

19 to be within 90 days from today, correct?

20 MS. BECHARD: Correct.

21 THE COURT: Okay. But I'm not hearing that we

22 really need a evidentiary hearing because these are

23 all issues of law. So because we have some time

24 before I have to truly do my final, final order, I

25 am going to, in an abundance of caution, go ahead

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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6

1 and allow them, I'm going to give them 30 days to

2 do what they need to do to add this one additional

3 claim, and then I'll give the State 30 days to

4 respond to this one additional claim, and then I

5 will rule up or down on the motion.

6 MS. BECHARD: Could we have, Your Honor, a

7 limitation on --

8 THE COURT: Yes. Well, there is a limitation.

9 So, I mean, we're at 35 pages as is.

10 How many more pages do you need?

11 MS. MCDERMOTT: Well, I mean, without having

12 drafted the motion, I can't tell you that, but what

13 I can tell you is that these cases from the Florida

14 Supreme Court are 80, 90 pages, and there's

15 multiple cases. I do take exception to the fact

16 that the cases aren't adding anything because we've

17 had multiple cases of where just yesterday and last

18 week granting you penalty phases that would be

19 germane to the harmless error analysis in this

20 case.

21 So I will do my best to keep this as

22 streamlined and concise as possible, but I will

23 tell you that around the state 70, 80 page motions

24 and the motions to exceed have been granted with

25 the recognition that this is clearly a significant

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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1 development, and that as -- as the cases evolve

2 there is a lot to say about them. I don't

3 anticipate using 70 or 80 pages.

4 My -- the most I think I filed have been in

5 like the low 50s, but -- and I will certainly try

6 to keep this one in the 35-page range, which is

7 what I'm in now.

8 So, you know, by adding and trying to

9 streamline a little bit I think I can sort of keep

10 it there.

11 MS. BECHARD: Your Honor, if I may

12 respectfully interject.

13 THE COURT: Yes.

14 MS. BECHARD: What I mean by nothing really

15 new, I'm talking about the retroactivity analysis.

16 I recognize that there have been cases that

17 have been lengthy that have come out of the Florida

18 Supreme Court. Many of them have been cases where

19 Hurst does apply because they are post-Ring cases.

20 THE COURT: Right.

21 MS.BECHARD: So, therefore, there are many,

22 many more matters. But, for example, when you look

23 at Gaskin, which is a case that came out I believe

24 on the 26th, or a couple weeks ago, that case is

25 very short and sweet. It says Gaskin's not

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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8

1 entitled to relief because his case was final

2 pre-Ring, and that's what we've got in this case.

3 So I wanted to just add that.

4 MS. MCDERMOTT: Well, just for point of fact,

5 Gaskin did not raise the issues the 8th Amendment

6 claim related to Hurst versus State, nor did he

7 even supplement his Florida Supreme Court briefing

8 related to after Hurst versus Florida issue, he

9 just simply sort of threw it out there that he

10 should get relief without ever making a fundamental

11 fairness argument.

12 So, of course, it wasn't ruled on because it

13 wasn't raised to the Florida Supreme Court. So I

14 think this shows the need to be able to fully

15 address the issues to the court about the

16 significance of these various cases and why they do

17 or don't apply to Mr. Hodges.

18 MS. BECHARD: Your Honor, at this time, I

19 don't know how far the Court wants to go with legal

20 argument on this matter. If you're going to allow

21 additional briefing, I'm -- I'm prepared to argue

22 more, but if --

23 THE COURT: No, because it's -- what is

24 written in the motion is what's going to control

25 and you'll have a chance to respond, as I

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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9

1 indicated. So -- and I would just anticipate your

2 response would just be your initial response plus

3 whatever -- addressing whatever additional claims

4 are alleged, so -- anyway.

5 Yes. So we need to keep it 40 pages and

6 under, okay?

7 MS. MCDERMOTT: Okay. Your Honor, thank you.

8 THE COURT: And so -- let's see. Today is

9 February 1st. So you've got until 5 p.m. on March

10 the 1st, to file your amendment.

11 MS. MCDERMOTT: Okay.

12 THE COURT: State, you have until 5 p.m. on

13 March the 29th to file your response. And I will

14 get an order out within 30 days thereafter. Okay.

15 MS. MCDERMOTT: Thank you, Your Honor.

16 MS. BECHARD: Thank you, Your Honor.

17 THE COURT: Okay. Thank you.

18 (Concluded at 1:53 p.m.)

19

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AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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1

2 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA 4 COUNTY OF HILLSBOROUGH

5

6 I, Mary E. Blazer, Registered Professional

7 Reporter, AOC Circuit Court, hereby certify that I was

8 authorized to and did stenographically report the

9 foregoing proceedings and that the transcript is a true

10 record.

11

12 I further certify that I am not employed by or

13 related to any of the parties in this matter, nor am I

14 financially or otherwise interested in this action.

15

16 IN WITNESS WHEREOF, I have hereunto set my hand

17 in Tampa, Hillsborough County, Florida, this 29th day of

18 August, 2017.

19

20 ______Mary E. Blazer, RPR 21 AOC Circuit Court Reporter

22

23

24

25

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P264 P265

Filing # 61145916 E-Filed 08/30/2017 03:00:13 PM 1

1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 2 CRIMINAL DIVISION

3

4 STATE OF FLORIDA

5 Case No.: 89-CF-2165 vs. 6 Division: J GEORGE M. HODGES, 7 Defendant. ______/ 8

9 TRANSCRIPT OF PROCEEDINGS

10 This case came on to be heard before the Honorable Michelle D. Sisco, Circuit Judge, at the 11 Hillsborough County Courthouse Annex, Tampa, Florida, on April 26, 2017, commencing at approximately 10:30 a.m., 12 reported by Mary E. Blazer, RPR.

13

14 APPEARANCES:

15 Jay J. Pruner, Assistant State Attorney 419 North Pierce Street 16 Tampa, Florida 33602 On behalf of the State of Florida. 17

18 C. Suzanne Bechard, Assistant Attorney General Office of Attorney General 19 3507 East Frontage Road, Suite 200 Tampa, Florida 33607 20 On Behalf of the State of Florida.

21 Linda McDermott, Esquire McClain & Mcdermott P.A 22 141 NE 30th Street Wilton Manors, Florida 33334-1064 23 On Behalf of the Defendant. (Appearing via Telephone.) 24 Also Present: 25 Staff Attorney AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P265 P266

2

1 P R O C E E D I N G S

2 THE COURT: All right. And let's see. I

3 need to get Ms. McDermott on the telephone.

4 MS. BECHARD: Your Honor, the only caveat

5 this hearing was supposed to start at 11:00, so

6 hopefully --

7 THE COURT: Oh. I thought it was 10:00.

8 You guys are just super early. I'm sorry.

9 MS. BECHARD: That's okay.

10 THE COURT: You're just super early.

11 * * * * *

12 THE COURT: Okay. So let's go ahead and

13 have the attorneys step up on the George Hodges

14 matter, and I will get Ms. McDermott on the

15 phone.

16 MS. McDERMOTT: Good morning, this is

17 Linda.

18 THE COURT: Hi. Is this Ms. McDermott?

19 MS. McDERMOTT: Yes, Your Honor. This is

20 Linda McDermott.

21 THE COURT: Okay. Very good.

22 Good morning. This is Judge Sisco calling on

23 the George Hodges matter. We're set for a case

24 management conference, but I believe you have filed

25 a motion to amend; is that correct?

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P266 P267

3

1 MS. McDERMOTT: Yes, Your Honor.

2 THE COURT: Okay. And if you just want to

3 briefly state on the record, you're moving to

4 amend how?

5 MS. McDERMOTT: Yes, Your Honor. I

6 requested an opportunity to amend based on the

7 statute that was passed by the Florida

8 legislature on March 13th, I think it was, of

9 this year, which amended Florida's capital

10 sentencing statute and that applies

11 retrospectively, and therefore should also

12 apply to Mr. Hodges' case in that it is a

13 substantive -- it substantively affects him.

14 So I'm asking to add a claim to our 3.851

15 motion that's pending before the Court.

16 THE COURT: Okay. And I have a couple of

17 other cases that I have granted leave to amend,

18 so I --

19 MS. BECHARD: Your Honor, this is actually

20 a request to amend it again. This is a second

21 amendment.

22 THE COURT: Uh-huh.

23 MS. BECHARD: The State would object.

24 This new statute doesn't change anything about

25 the retroactivity analysis in Assay, et cetera,

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P267 P268

4

1 et cetera. And this would be a meritless

2 argument and would be waste of judicial

3 resources. So the State would respectfully ask

4 the Court simply not delay this any further.

5 THE COURT: Okay. If only I could not

6 delay these matters any further, if only it

7 were in my ability to do that, but I think

8 we're essentially stuck in a vortex of delay at

9 this point in all of these cases.

10 So, just to tie up loose ends and not have

11 anything else out there that could possibly be

12 raised, I'm going to grant the Motion for Leave to

13 Amend.

14 So how long do you need to respond?

15 MS. McDERMOTT: Well, I would need -- I

16 would just need a very short time to get the

17 motion together. If the Court could give me

18 even ten days that would be -- that would be

19 plenty of time.

20 THE COURT: Oh, I'm sorry, I thought the

21 motion -- I thought the motion had already

22 been -- the body of the motion already

23 submitted. All you filed was your motion to

24 amend; is that correct?

25 MS. McDERMOTT: Right, I have not yet

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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5

1 filed the amendment but --

2 THE COURT: Okay.

3 MS. McDERMOTT: -- I can file it in the

4 very near future.

5 THE COURT: Okay. So you stated you need

6 about ten days; is that correct?

7 MS. McDERMOTT: Yeah, I can definitely

8 have it in in ten days.

9 MS. BECHARD: And, Your Honor, considering

10 the length of the motions and amendments that

11 we've had in this case so far, can we have a

12 limitation on the -- on the page numbers?

13 THE COURT: What are you requesting? How

14 many pages are you requesting?

15 MS. McDERMOTT: Well, the motion that's

16 pending before the Court, you did ask me to

17 keep it to 40 pages and I did that. This --

18 this claim will certainly add some length to

19 the motion, but I can try to, you know, keep it

20 within maybe seven or eight pages, you know, I

21 could have some fifty pages, I think I can do

22 that.

23 THE COURT: All right. Are you fine with

24 50 pages? With the understanding that --

25 MS. BECHARD: It's added to the 40 we

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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6

1 already have.

2 THE COURT: There's already 40 and she's

3 asking for an additional 10 for this one claim.

4 Any objection?

5 MS. McDERMOTT: Yes. And it's a new claim

6 so it will be --

7 THE COURT: Okay.

8 MS. McDERMOTT: -- need to distinguish it.

9 THE COURT: That's fine. Now you're maxed

10 out at 50 pages. Maxed out.

11 MS. McDERMOTT: Okay.

12 THE COURT: Okay.

13 MS. McDERMOTT: I appreciate that.

14 THE COURT: Okay. So today is April 26th,

15 so ten days would put us at one, two, three --

16 all right. I'll give you to the close of

17 business on Monday, May 8th.

18 MS. McDERMOTT: Okay.

19 THE COURT: And, State, how many days

20 would you need to respond?

21 MS. BECHARD: If you could give me 15 on

22 on a response, that would work for me.

23 THE COURT: Okay. So I'll give you up

24 until close of business on May 24th.

25 MS. BECHARD: Sounds good.

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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7

1 THE COURT: And then do I need to set

2 another case management conference then once

3 the pleadings are closed or can I just rule at

4 that point?

5 MS. McDERMOTT: Your Honor, I would ask

6 that we have a case management conference and

7 an opportunity to --

8 THE COURT: Okay.

9 MS. McDERMOTT: -- to present argument.

10 THE COURT: Sure. Let's see here.

11 I think I've got some of you coming back on

12 June 15th.

13 Ms. McDermott, are you coming to see me on

14 either of those days, on either William Taylor,

15 Perry Taylor, or Ray Johnston?

16 MS. McDERMOTT: I'm not on any of those

17 cases, but I do have -- the 15th is open, so

18 I'm available that day.

19 THE COURT: Okay.

20 MS. BECHARD: I'm already here on the

21 15th, so...

22 THE COURT: Are you here morning or

23 afternoon?

24 MS. BECHARD: Honestly, I don't recall.

25 It's Taylor. It's Perry Taylor.

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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8

1 THE COURT: Which -- Perry Taylor?

2 MR. PRUNER: 9:00.

3 MS. McDERMOTT: 9:00? Okay.

4 THE COURT: Well, William Taylor is at

5 9:00. Perry is at 1:30.

6 MR. PRUNER: 1:30.

7 MS. BECHARD: Oh, Perry.

8 THE COURT: 1:30, okay.

9 If you're already coming on Perry Taylor --

10 MS. BECHARD: Correct.

11 THE COURT: Let's set Hodges for case

12 management on June 15th at 1:30 as well.

13 MS. BECHARD: Thank you, Your Honor.

14 MS. McDERMOTT: Thank you, Judge.

15 MR. PRUNER: Again just advising Your

16 Honor, I'm in trial that week. My presence, I

17 imagine, could be waived.

18 THE COURT: We will suffer through and

19 forge ahead, Mr. Pruner.

20 MR. PRUNER: I know it might be difficult

21 but I appreciate it.

22 THE COURT: Okay. Very good.

23 MS. McDERMOTT: Thank you, Judge.

24 THE COURT: Okay. Thanks.

25 MS. BECHARD: Thank you, Your Honor.

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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9

1 THE COURT: Bye-bye.

2 MS. McDERMOTT: Bye.

3 THE COURT: (Concluded at 11:17 a.m.)

4

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AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

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10

1

2 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA 4 COUNTY OF HILLSBOROUGH

5 I, Mary E. Blazer, Registered Professional

6 Reporter, AOC Circuit Court, hereby certify that I was

7 authorized to and did stenographically report the

8 foregoing proceedings and that the transcript is a true

9 record.

10

11 I further certify that I am not employed by or

12 related to any of the parties in this matter, nor am I

13 financially or otherwise interested in this action.

14

15 IN WITNESS WHEREOF, I have hereunto set my hand

16 in Tampa, Hillsborough County, Florida, this 30th day of

17 August, 2017.

18

19 ______Mary E. Blazer, RPR 20 AOC Circuit Court Reporter

21

22

23

24

25

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P274 P275

Filing # 61145916 E-Filed 08/30/2017 03:00:13 PM 1

1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 2 CRIMINAL DIVISION

3

4 STATE OF FLORIDA

5 Case No.: 89-CF-2165 vs. 6 Division: J GEORGE M. HODGES, 7 Defendant. ______/ 8

9 TRANSCRIPT OF PROCEEDINGS

10 This case came on to be heard before the Honorable Michelle D. Sisco, Circuit Judge, at the 11 Hillsborough County Courthouse Annex, Tampa, Florida, on June 15, 2017, commencing at approximately 2:31 p.m., 12 reported by Mary E. Blazer, RPR.

13

14 APPEARANCES:

15 Jay J. Pruner, Assistant State Attorney 419 North Pierce Street 16 Tampa, Florida 33602 On behalf of the State of Florida. 17

18 C. Suzanne Bechard, Assistant Attorney General Office of Attorney General 19 3507 East Frontage Road, Suite 200 Tampa, Florida 33607 20 On Behalf of the State of Florida.

21 Linda McDermott, Esquire McClain & Mcdermott P.A 22 141 NE 30th Street Wilton Manors, Florida 33334-1064 23 On Behalf of the Defendant. (Appearing via Telephone.) 24 Also Present: 25 Staff Attorney AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P275 P276

2

1 P R O C E E D I N G S

2 THE COURT: You guys can just stand at the

3 podium since the counsel tables are occupied.

4 All right. So, Ms. McDermott, we're here for

5 a case management conference. And are you asking

6 for an evidentiary hearing or are you agreeing that

7 these are purely legal matters?

8 MS. McDERMOTT: Yes, these are purely legal

9 matters.

10 THE COURT: Okay. And do you have any

11 additional argument that you wish to make at this

12 point in time other than what's previously been

13 made in your pleadings?

14 MR. CHALELA: I do, Your Honor, but I realize

15 that your Court -- Your Honor and your staff has

16 been going, going, going this morning, so I will be

17 as concise as I can.

18 THE COURT: Sure.

19 MS. McDERMOTT: As to Claim 1, which is based

20 on Hurst versus Florida, I want to point out a

21 couple of things. Based on Hurst versus Florida,

22 the jury has to decide whether or not each

23 aggravator would be unanimously found, whether or

24 not the sufficiency of the aggravators is enough to

25 make a defendant eligible for the death penalty,

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P276 P277

3

1 and whether or not the aggravators outweigh the

2 mitigators. All of that has to be done unanimously

3 pursuant to Hurst versus Florida. But as the

4 Florida Supreme Court has interpreted, there is

5 also another role for the jury in that they get to

6 decide whether or not the defendant, or in this

7 case Mr. Hodges, would be granted mercy in their

8 opinion, and so therefore not eligible for a death

9 sentence.

10 And in Mr. Hodges case, I just want to point

11 out, he was not able to assert that particular

12 right with the jury. And he was an individual who

13 always maintained his innocence of the crime.

14 Certainly mercy could be based on lingering doubt

15 and the fact that the jury felt uncomfortable, even

16 though they had convicted him, of giving him a

17 sentence of death for that particular crime. So I

18 did just want to point that out.

19 And then as to -- as to Mosley, and

20 essentially Mosley, the Florida Supreme Court finds

21 that Hurst versus Florida is retroactive up until

22 Ring -- back until Ring I should say, which is in

23 2002. But again there's absolutely no distinction

24 between Mosley and Hodges when they come before the

25 Florida Supreme Court because Mosley was final. He

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1 was in postconviction. His sentence had been

2 decided, his conviction was final, and therefore

3 this -- this arbitrariness that the court has

4 injected based on drawing this line is certainly

5 not fundamentally fair to Mr. Hodges. And I think

6 one of the cases the opinions that came out today,

7 which is certainly not in the 3.850, the Braddy

8 case, B-R-A-D-D-Y case. This is a case where the

9 crime was committed in 1998 and the death sentence

10 didn't become final in 2013. And if you read the

11 facts of that case it was an extremely recalcitrant

12 defendant. And, in essence, he's now been rewarded

13 for causing so much trouble with the trial court

14 and insisting on changing counsel and filing pro se

15 motions, and that sort of thing. So that

16 defendant, who would have been final likely

17 pre-Ring became a post-Ring case because of his

18 behavior, and that just demonstrates this

19 arbitrariness that's been -- and this lack of

20 fundamental fairness that we have where these

21 defendants are being treated differently based on

22 these -- this one line and not based on the facts

23 of their crime or the aggravators, the particular

24 aggravators in their case.

25 So I know you have heard the other arguments

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1 as to fundamental fairness and the Witt analysis,

2 but I would just point out that Mr. Hodges' jury

3 recommendation was 10 to 2, it was not unanimous.

4 Aggravators, CCP aggravator was found to be

5 inappropriate or inadequate because it was not

6 specifically defined and there was also error that

7 occurred during the prosecutor's closing argument

8 before the jury.

9 I'm just going to keep going and then --

10 because I don't know how much the State is going to

11 do -- but as to Claim 2, this is the claim relating

12 to the Eighth Amendment in Hurst versus State.

13 Certainly this has a different retroactivity

14 analysis to it. Basically, the U.S. Supreme Court

15 has said that if you change something to make the

16 determination or the verdict more reliable, then it

17 should get applied retroactively.

18 And in this case the Florida Supreme Court

19 certainly made that conclusion, that by having a

20 unanimous jury verdict as to the sentencing and

21 making the defendant eligible for a death sentence,

22 it makes the sentence more reliable. So there's

23 absolutely no reason why Mr. Hodges should be

24 excluded from that improvement in terms of the

25 reliability of his sentence.

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1 Claim 3 is -- relates to the Witt analysis

2 that the Florida Supreme Court conducted in the

3 Mosley and Assay cases. If you look at those cases

4 as companion cases, five of the seven just

5 assumes -- make comments about how it has created

6 this arbitrary situation based on a particular

7 date. Where individuals who are falling four days

8 after Ring are getting the benefit of Hurst versus

9 Florida. Individuals falling a few days before

10 Ring are not. And so that again is an Eighth

11 Amendment claim and that makes absolutely no sense.

12 Witt is a binary concept. You either are -- you

13 either get retroactivity or you don't. So this

14 notion that they're going to split it has created a

15 problem in the jurisprudence as well as in the

16 reliability of how we can address these types of

17 issues as lawyers for our clients.

18 Finally, Claim 4 is related to a newly

19 discovered evidence issue. And we're asking that

20 the Court reconsider Mr. Hodges previously pled

21 claims. His evidentiary hearing was post-Ring; and

22 so, therefore, if we are taking sort of everything

23 back to Ring, then he would certainly qualify to

24 get the benefit of this.

25 And his ineffective assistance of counsel of

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1 claim at the penalty phase should be reviewed in

2 light of the notion that now all it takes is one

3 juror to have a death sentence be found to be -- or

4 to have ineffective assistance to be found to be

5 prejudicial and also that would impact how a

6 particular trial attorney might try his or her

7 case. So in that sense it should be -- that

8 particular claim should be reconsidered.

9 And today, in the Bevel case, B-E-V-E-L, the

10 Florida Supreme Court ruled in this way.

11 Mr. Bevel, who is post-Ring, had two death

12 sentences, one was 8 to 4, one was 12 to 0, and the

13 court split on the Hurst issue because of the

14 unanimity of the one death sentence and the

15 nonunanimity on the other. However, the court also

16 found ineffective assistance of counsel, so

17 Mr. Bevel is going to receive a resentencing as to

18 both of those -- both of those victims.

19 And what the Florida Supreme Court recognized

20 is that the Hurst versus Florida and post -- you

21 know, the changes that have been made in terms of

22 unanimity have to be considered now in that context

23 where it would only take one juror. And certainly

24 that recognition, though it was a post-Ring case,

25 should apply to someone like Mr. Hodges who was

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1 litigating his postconviction case when the Florida

2 Supreme -- when Ring was issued. And it was only

3 because the Florida Supreme Court didn't understand

4 the impact of Ring on our sentencing statute

5 that -- that it was not considered to be at that

6 time impactful to cases like Mr. Hodges. So I

7 would just ask the Court to reconsider the -- the

8 prior ineffective assistance of counsel claim that

9 was pled and was being litigated post-Ring.

10 THE COURT: Okay. Any response?

11 MS. BECHARD: Yes, Your Honor. Just very

12 briefly. We will largely rely on the arguments

13 that we made in our responses.

14 I would just say that, again, this case was

15 final in 1993. Obviously, the State doesn't

16 believe that there should be any retroactivity at

17 all, but the Florida Supreme Court has drawn its

18 line.

19 THE COURT: Right.

20 MS. BECHARD: And it's given its reasons for

21 the line that its drawn.

22 And as far as the mercy argument is concerned,

23 even in cases where there's been a judicial

24 override of a jury life recommendation, if the case

25 was final prior to Ring, then the Florida Supreme

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1 Court has not entertained a Hurst argument and

2 those cases are Zakrzewski and Oats. And so,

3 again, the State would more, you know, rely on

4 its -- the arguments made in its brief --

5 THE COURT: Okay.

6 MS. BECHARD: -- and ask the Court to --

7 MS. McDERMOTT: Just to clarify. The override

8 cases are Matthew Marshall and Zakrzewski. Oats

9 had to do with an intellectual disability case.

10 MS. BECHARD: In any event, I apologize.

11 MS. McDERMOTT: I don't disagree with anything

12 that the State has said.

13 THE COURT: All right. Anything further,

14 Ms. McDermott?

15 MS. McDERMOTT: No, Your Honor.

16 THE COURT: Okay. So, you'll get an order

17 from me on the pending motion. And there is -- at

18 this time there's no reason to set an evidentiary

19 hearing. Okay.

20 MS. McDERMOTT: Okay.

21 THE COURT: All right. Sorry I was running

22 late. Thanks for your patience.

23 MS. McDERMOTT: Thank you.

24 THE COURT: Okay. Mr. Pruner, is that it for

25 you?

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1 MR. PRUNER: Yes.

2 THE COURT: Another brilliant job, Mr. Pruner.

3 Just absolutely brilliant.

4 MR. PRUNER: Appreciate you acknowledging

5 that.

6 (Concluded at 2:42 p.m.)

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1

2 CERTIFICATE OF REPORTER

3 STATE OF FLORIDA 4 COUNTY OF HILLSBOROUGH

5

6 I, Mary E. Blazer, Registered Professional

7 Reporter, AOC Circuit Court, hereby certify that I was

8 authorized to and did stenographically report the

9 foregoing proceedings and that the transcript is a true

10 record.

11

12 I further certify that I am not employed by or

13 related to any of the parties in this matter, nor am I

14 financially or otherwise interested in this action.

15

16 IN WITNESS WHEREOF, I have hereunto set my hand

17 in Tampa, Hillsborough County, Florida, this 30th day of

18 August, 2017.

19

20 ______Mary E. Blazer, RPR 21 AOC Circuit Court Reporter

22

23

24

25

AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA

P285 CLERK OF THE CIRCUIT COURT PO BOX 1110 TAMPA, FLORIDA 33601-1110 813-276-8100 CASE NO: 89-CF-002165-A APPEAL NO: SC17-1586

CERTIFICATE OF CLERK

STATE OF FLORIDA COUNTY OF HILLSBOROUGH

I, PAT FRANK, CLERK OF THE CIRCUIT COURT FOR THE COUNTY OF HILLSBOROUGH, STATE OF

FLORIDA, DO HEREBY CERTIFY THAT THE FOREGOING PAGES 1 TO 254 CONTAIN A CORRECT COPY OF

THE APPEAL RECORD IN THE CASE OF

GEORGE MICHAEL HODGES APPELLANT VS

STATE OF FLORIDA APPELLEE

AND A TRUE AND CORRECT RECITAL AND INCLUSION OF ALL SUCH ORIGINAL PAPERS AND PROCEEDINGS IN SAID CAUSE AS IT APPEARS FROM THE RECORDS AND FILES OF MY OFFICE THAT HAVE BEEN DIRECTED TO BE INCLUDED IN SAID RECORD BY THE DIRECTIONS FURNISHED ME. PAGES T1 TO T10, T1 TO T10, T1 TO T11 INCLUSIVE EMBRACES THE TRANSCRIBED NOTES OF THE REPORTER AS MADE AT THE TRIAL AND CERTIFIED TO ME BY HIM/HER. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID

COURT ON THIS THE 14TH DAY OF SEPTEMBER, 2017.

89-CF-002165-A,Isomar Molina 9/14/2017 10:59 AM ______AS DEPUTY CLERK 89-CF-002165-A, 9/14/2017 10:59 AM