Filing # 123657082 E-Filed 03/24/2021 10:15:51 AM

IN THE SUPREME COURT OF FLORIDA CASE NO: SC15-391

(Lower Court Case No: 09-004654 CF10A)

JAMES HERARD,

Appellant, vs.

STATE OF FLORIDA,

Appellee. ______/

UNOPPOSED MOTION FOR ENLARGEMENT OF TIME TO FILE AMENDED INITIAL BRIEF ON APPEAL AND MOTION TO TOLL BRIEFING

COMES NOW, the Appellant, James Herard, by and through his

undersigned counsel, and respectfully requests this Honorable Court enter

an Order enlarging the time in which to file the Appellant, James Herard’s,

Amended Initial Brief on direct appeal until up to and including 60 days

from the date such relief is granted, and further, toll the Briefing Schedule,

and as grounds and in support thereof states as follows:

1. This is the direct appeal of the Judgment, Conviction and Sentence of

RECEIVED, 03/24/2021 10:16:28 AM, Clerk, Supreme Court death by lethal injection was imposed by the Circuit Judge.

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2. This case involves a pre-Hurst1, post Ring2, appeal of an 8-4

decision by the jury recommending imposition of the death penalty.

3. Undersigned counsel was appointed by the Circuit Court as a Special

Public Defender to represent the Defendant in this Capital appeal.

4. On January 15, 2020, Appellant James Herard’s Initial Brief on

Appeal was filed.

5. Several issues were raised in the Initial Brief, but the sentencing

issue surrounded the United States Supreme Court’s decision in

Hurst v. Florida, 577 U.S. 92, 136 S.C.t. 616, 193 L.Ed.2d 504

(2016). Specifically, the Hurst Opinion, in an 8–1 ruling, applied the

rule of Ring v. Arizona to the Florida capital sentencing scheme,

holding that the Sixth Amendment requires a jury to find the

aggravating factors necessary for imposing the death penalty. In

Florida, under a 2013 statute, the jury made recommendations but

the judge decided the facts.

6. In light of the United States Supreme Court’s decision in Hurst, there

was no need to initially contest other sentencing issues because

James Herard was sentenced under an unconstitutional sentencing

scheme. See Section 921.141, Fla.Stat. (2013).

1 Hurst v. Florida, 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) 2 Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002) 2

7. Subsequently, this Honorable Court issued it’s Opinion in State v.

Poole, 297 So.3d 487 (Fla. 2020), wherein the Court made clear that

not only was there no Sixth Amendment problem with its decision, but

also that nothing about its conclusions in Poole would offend federal

or state constitutional protections against cruel and unusual

punishments. The Court held that the state Constitution’s prohibition

on cruel and unusual punishment does not require a unanimous jury

recommendation — or any jury recommendation — before a death

sentence can be imposed.

8. Following Poole, this case was stayed in light of the pending

decisions in Bessman Okafor and Michael Jackson.

9. Opinions were issued in both the Okafor and Jackson cases on

November 25, 2020. State v. Okafor, 306 So.3d 930 (Fla. 2020);

State v. Jackson, 306 So.3d 936 (Fla. 2020).

10. James Herard filed a Motion for Leave to File an Amended Initial Brief

which was granted by this Honorable Court.

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11. The Appellant’s Initial Brief is presently due to be filed on or before

April 1, 2021.

12. Based upon several factors, including the complexity and voluminous

nature of this capital appeal, an extension of time is needed to finish

researching and drafting James Herard’s Amended Initial Brief.

13. In light of case law which has developed since the time of the

Appellant, James Herard’s, trial and sentencing and initial briefing in

this matter, undersigned counsel needs to more fully address the

sentencing issues in this case, and requires additional time to do so.

14. The Appellant, James Herard, is an active participant in his appellate

process and is desirous of actively participating in his appeal.

15. No prejudice shall inure to the State of Florida nor the Appellant,

James Herard, as James Herard is incarcerated presently serving

several life sentences for his role in a number of Dunkin Donuts

robberies in Palm Beach County3 and lengthy prison terms for

robberies in Broward County4 unrelated to this case.

16. Assistant Attorney General Lisa-Marie Lerner advised that the Office

of the Attorney General does not object to the relief sought herein.

3 See, e.g., State v. Herard, Palm Beach County Case No: 08-17526 [9 life sentences] 4 See, e.g., State v. Herard, Broward County Case No: 08-23586 [two 20-year sentences] 4

17. This Motion is made in good faith and not for the purpose of delay or

avoidance in any manner.

18. Good cause exists for the extension, enlargement and tolling sought

herein.

19. Appellant, James Herard, respectfully requests that this Court grant

an enlargement of time in which his Amended Initial Brief can be filed

as set forth herein.

WHEREFORE, based upon the foregoing the Appellant, James

Herard, respectfully requests this Honorable Court enter an Order enlarging the time in which to file the Appellant, James Herard’s, Amended Initial

Brief on direct appeal until up to and including 60 days from the date such relief is granted and further toll the Briefing Schedule.

CERTIFICATE OF COMPLIANCE WITH RULE 9.045, FLA. R. APP. P. AND RULES 2.250 AND 2.50(a), FLORIDA RULES OF JUDICIAL ADMINISTRATION

Pursuant to Rule 9.045, Fla.R.App.P. and Rules 2.520 and 2.520(a),

Florida Rules of Judicial Administration, the Appellant certifies that this

Initial Brief of Appellant is typed in 14 point, Arial.

This document complies with the type-volume limit of Rule 9.045,

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Fla.R.App.P. because, excluding the parts of the document exempted by

Rule 9.045, Fla.R.App.P. this document contains 739 words.

I HEREBY CERTIFY that the foregoing has been filed via E-Portal Filing with the Clerk of Court and copies furnished via E-Portal filing to AAG Lisa-Marie Lerner, Office of the Attorney General ([email protected] and [email protected]) on this 24th day of March, 2021. Respectfully submitted,

LAW OFFICES OF RICHARD ROSENBAUM Primary Email: [email protected] Secondary Email: [email protected] s/RICHARD L. ROSENBAUM Richard L. Rosenbaum, Esq. Fla. Bar No: 394688 315 SE 7th Street, Suite 300 Fort Lauderdale, FL 33301 Telephone (954) 522-7007 Facsimile (954) 522-7003

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