IN THE SUPREME COURT OF THE STATE OF FLORIDA
MILFORD WADE BYRD DEFENDANT/APPELLANT
CASE NO. 81-CF-010517-A VS.
STATE OF FLORIDA PLAINTIFF/APPELLEE
APPELLATE CASE NO: 17-1733
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
MARTIN J. MCCLAIN, ESQ. ASSISTANT ATTORNEY GENERAL 141 NE 30TH ST CONCOURSE CENTER NO. 4 WILTON MANORS, FL 33334 3507 E FRONTAGE ROAD, STE 200 TAMPA, FLORIDA 33607
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE MASTER INDEX INDEX TO THE ORIGINAL RECORD ON APPEAL ITEM FILE DATE INSTRUMENT PAGE 81-CF-010517-A 1 12/6/2017 APPEAL CASE SUMMARY 1 - 42 2 11/2/2016 SUCCESSIVE MOTION TO VACATE JUDGMENTS OF 43 - 86 CONVICTION AND SENTENCE OF DEATH 3 11/2/2016 MOTION TO EXCEED PAGE LIMITATION 87 - 88 4 11/22/2016 STATE'S RESPONSE TO DEFENDANT'S SUCCESSIVE 89 - 112 MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES 5 2/10/2017 ORDER ON FEBRUARY 9, 2017 STATUS HEARING, 113 - 114 SIGNED BY MICHELLE SISCO ON 02/10/17 6 3/13/2017 AMENDED SUCCESSIVE MOTION TO VACATE 115 - 201 JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH 7 3/13/2017 MOTION TO EXCEED PAGE LIMITATION 202 - 203 8 3/28/2017 ORDER GRANTING MOTION TO EXCEED PAGE 204 - 206 LIMITATION, SIGNED BY MICHELLE SISCO ON 03/27/17 9 4/3/2017 STATE'S RESPONSE TO DEFENDANT'S 207 - 229 SUPPLEMENTAL SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES 10 4/11/2017 MOTION FOR LEAVE TO AMEND SUCCESSIVE MOTION 230 - 241 TO VACATE 11 4/20/2017 ORDER ON APRIL 13, 2017 STATUS HEARING, 242 - 244 SIGNED BY MICHELLE SISCO ON 04/20/17 12 4/27/2017 SUPPLEMENT TO AMENDED SUCCESSIVE MOTION 245 - 266 JUDGMENTS OF CONVICTION AND SENTENCES AND ALTERNATIVELY MOTION TO CORRECT ILLEGAL SENTENCES 13 5/12/2017 STATE'S ANSWER TO DEFENDANT'S AMENDED 267 - 277 SUCCESSIVE MOTION (CLAIM V) FOR POST- CONVICTION RELIEF 14 5/25/2017 NOTICE OF SUPPLEMENTAL AUTHORITY 278 - 287 15 6/17/2017 NOTICE OF SUPPLEMENTAL AUTHORITY 288 - 290 16 6/17/2017 ATTACHMENT TO NOTICE OF SUPPLEMENTAL 291 - 309 AUTHORITY 17 8/14/2017 NOTICE OF SUPPLEMENTAL AUTHORITY 310 - 317 18 8/22/2017 ORDER DENYING CLAIMS I, II, AND III, OF 318 - 332 SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH, CLAIMS 1, II, III, AND IV OF AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH, AND CLAIM V OF SUPPLEMENT TO AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES, AND ALTERNATIVELY MOTION TO CORRECT ILLEGAL SENTENCE, SIGNED BY MICHELLE SISCO ON 08/21/17 19 9/27/2017 MOTION TO EXTEND THE TIME FOR FILING NOTICE 333 - 340 OF APPEAL, OR IN THE ALTERNATIVE, MOTION TO RE-ENTER ORDER DENYING DEFENDANT'S AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH 20 9/27/2017 NOTICE OF APPEAL 341 - 342 21 10/4/2017 ORDER DENYING MOTION TO EXTEND THE TIME FOR 343 - 344 FILING NOTICE OF APPEAL, OR IN THE ALTERNATIVE, MOTION TO RE-ENTER ORDER DENYING DEFT'S AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH, SIGNED BY MICHELLE SISCO ON 10/04/17 22 12/11/2017 TRANSCRIPT OF PROCEEDINGS TAKEN BEFORE T1 - T9 MICHELLE SISCO ON 12/06/16 23 12/11/2017 TRANSCRIPT OF PROCEEDINGS TAKEN BEFORE T1 - T7 MICHELLE SISCO ON 02/09/17 24 12/11/2017 TRANSCRIPT OF PROCEEDINGS TAKEN BEFORE T1 - T10 MICHELLE SISCO ON 04/13/17 25 12/11/2017 TRANSCRIPT OF PROCEEDINGS TAKEN BEFORE T1 - T18 MICHELLE SISCO ON 05/24/17 P1
DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A STATE OF FLORIDA vs BYRD, MILFORD WADE § Location: Division C § Judicial Officer: Ward, Samantha L § Filed on: 12/18/2000 § Case Number History: 81-CF-010517 § Uniform Case Number: 291981CF010517000AHC §
CASE INFORMATION
Offense Statute Deg Date Case Type: FELONY CAPITAL MURDER Municipality: HILLSBOROUGH COUNTY 1. 782041 MURDER IN THE FIRST DEGREE EVID FC 12/18/2000 Case Flags: FILE HOME LOCATION - (PREMEDITATED) RECORDS CENTER Sequence: 1 Filed As: EVID SEE HISTORY FICHE NN 12/18/2000 FOR CHARGE DETAIL
DATE CASE ASSIGNMENT
Current Case Assignment Case Number 81-CF-010517-A Court Division C Date Assigned 06/23/2012 Judicial Officer Ward, Samantha L
PARTY INFORMATION Lead Attorneys Defendant BYRD, MILFORD WADE
Plaintiff STATE OF FLORIDA
Judge BLACK, ANTHONY K Removed: 03/08/2011 Rotation/Administrative Order LOPEZ, MANUEL A Removed: 03/05/2012 Rotation/Administrative Order TIMMERMAN, WAYNE S Removed: 03/05/2012 Rotation/Administrative Order WARD, SAMANTHA L
WOLFE, MARK Removed: 02/05/2007 Rotation/Administrative Order
DATE EVENTS & ORDERS OF THE COURT INDEX
10/04/2017 ORDER DENYING MOTION TO EXTEND THE TIME FOR FILING NOTICE OF APPEAL, OR IN THE ALTERNATIVE, MOTION TO RE-ENTER ORDER DENYING DEFT'S AMENDED Index # 8 SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTY, ATTORNEY GENERAL OFFICE AND SAO--SP
10/02/2017 ORDER FROM SUPREME COURT Index # 7 SC17-1733
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
09/29/2017 ACKNOWLEDGEMENT OF NEW CASE Index # 6 SC17-1733
09/27/2017 LETTER OF TRANSMITTAL Index # 5 NOA SENT TO SUPREME COURT (FILING # 62070999)
09/27/2017 NOTICE OF APPEAL Index # 4
09/27/2017 MOTION FOR EXTENSION OF TIME FOR FILING NOTICE OF APPEAL, OR IN THE ALTERNATIVE, MOTION TO RE-ENTER Index # 3 ORDER DENYING DEFTS AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
08/22/2017 ORDER DENYING CLAIMS I, II, AND III, OF SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH, CLAIMS 1, II, III, AND IV OF AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE Index # 2 OF DEATH, AND CLAIM V OF SUPPLEMENT TO AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES, AND ALTERNATIVELY MOTION TO CORRECT ILLEGAL SENTNECES--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTYS ATTORNEY GENERAL OFFICE AND SAO--VBA
08/14/2017 NOTICE Index # 1 OF SUPPLEMENTAL AUTHORITY
06/17/2017 ATTACHMENT
06/17/2017 NOTICE OF SUPPLEMENTAL AUTHORITY
05/25/2017 NOTICE OF SUPPLEMENTAL AUTHORITY CERTIFICATE OF SERVICE
05/24/2017 COURT DOCKET PAGE
05/24/2017 ALSO PRESENT ATTY GEN OFFICE - MARILYN BECCUE
05/24/2017 ORDER TO BE PREPARED
05/24/2017 COURT REPORTER OFFICIAL NATALIE LAMA
05/24/2017 ASSISTANT STATE ATTORNEY JAY PRUNER
05/24/2017 BY ATTORNEY MARTIN MCCLAIN
STATUS REVIEW (11:00 AM) (Judicial Officer: SISCO, 05/24/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MANAGEMENT CONFERNECE
CANCELED STATUS REVIEW (11:00 AM) (Judicial Officer: Judge, 05/24/2017 Senior ;Location: COURTROOM 18 1ST FLOOR)
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A SET IN ERROR CASE MANAGEMENT CONFERNECE
05/12/2017 ANSWER TO MOTION STATE'S TO DEFTS AMENDED SUCCESSIVE MOTN (CLAIM V) FOR POST- CONVICTION RELIEF
04/27/2017 MOTION TO VACATE SUPPLEMENT TO AMENDED SUCCESSIVE JUDGMENTS OF CONVICTION AND SENTENCES & ALTERNATIVELY MOTN TO CORRECT ILLEGAL SENTENCES
04/20/2017 ORDER ON APRIL 13, 2017 STATUS HEARING--SIGNED BY JUDGE SISCO-COPIES SENT TO ATTY, ATTY GENERAL OFFICE AND SAO--VBA
04/18/2017 NOTICE OF HEARING Court Date: 05/24/2017 Party: Defendant BYRD, MILFORD WADE FELONY NOTICE OF HEARING
04/13/2017 COURT DOCKET PAGE
04/13/2017 ALSO PRESENT JAY PRUNER PRESENT ON BEHALF OF STATE ATTY'S OFFICE
04/13/2017 ASSISTANT STATE ATTORNEY MARILYN BECCUE-ATTORNEY GENERAL OFFICE
04/13/2017 BY ATTORNEY MARTIN MCLAIN & BRYAN MARTINEZ
STATUS REVIEW (11:00 AM) (Judicial Officer: SISCO, 04/13/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MANAGEMENT CONFERENCE
04/13/2017 COURT REPORTER CHRISTINA CRANTON DIGITAL & MARY BLAZER
04/11/2017 MOTION MOTION FOR LEAVE
04/03/2017 STATES RESPONSE TO DEFTS SUPPLEMENTAL SUCCESSIVE MOTN TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES
03/28/2017 ORDER GRANTING MOTION TO EXCEED PAGE LIMITATION--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTY,ATTY GENERAL OFFICE AND SAO--VBA
03/13/2017 MOTION TO EXCEED PAGE LIMITATION
03/13/2017 MOTION TO VACATE AMENDED SUCCESSIVE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
02/15/2017
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A RETURNED MAIL
02/11/2017 NOTICE OF HEARING Court Date: 04/13/2017 Party: Defendant BYRD, MILFORD WADE FELONY NOTICE OF HEARING
02/10/2017 ORDER ON FEBRUARY 9, 2017 STATUS HEARING--SIGNED BY JUDGE SISCO--COPIES SENT TO ATTY, ATTORNEY GENERAL OFFICE AND SAO--VBA
02/09/2017 COURT DOCKET PAGE
02/09/2017 NOTIFY ATTORNEY
02/09/2017 ATTORNEY HAS 30 DAYS TO FILE CLAIMS ATTORNEY GENERAL OFFICE HAS 20 DAYS TO RESPOND AFTER ATTORNEY
02/09/2017 STATEWIDE PROSECUTOR MARILYN BECCUE
02/09/2017 BY ATTORNEY MARTIN MCCLAIN - TELEPHONIC HEARING
02/09/2017 COURT REPORTER MARY BLAZER OFFICIAL
POST CONVICTION RELIEF STATUS HEARING (9:00 AM) (Judicial Officer: SISCO, 02/09/2017 MICHELLE ;Location: COURTROOM 10 1ST FLOOR) CASE MGMT CONFERENCE
02/07/2017 REQUEST TO ADD CASE ON DOCKET SET FOR CASE MGMT CONF
12/06/2016 COURT DOCKET PAGE
12/06/2016 SEE FREE FORM TEXT MARILYN BECCUE - STATE WIDE PROSECUTOR OFFICE
12/06/2016 SEE FREE FORM TEXT NO FUTURE COURT DATE SET AT THIS TIME
12/06/2016 SEE FREE FORM TEXT MATTER STAY PENDING, RULING FROM SUPREME COURT
12/06/2016 ASSISTANT STATE ATTORNEY JAMES PRUNER
12/06/2016 BY ATTORNEY MARTIN MCCLAIN
12/06/2016 COURT REPORTER ELEC EMILY CRIST
12/06/2016 POST CONVICTION RELIEF STATUS HEARING (11:00 AM) (Judicial Officer: Sisco, Michelle ;Location: COURTROOM 10 1ST FLOOR)
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A CASE MGMT CONFERENCE
12/05/2016 REQUEST TO ADD CASE ON DOCKET FOR 12-6-16@11:00AM-CASE MGMT CONF
11/22/2016 STATES RESPONSE TO DEFTS SUCCESSIVE MOTN TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES
11/02/2016 MOTION TO VACATE
11/02/2016 MOTION TO VACATE MOTION TO EXCEED PAGE LIMITATION
09/22/2014 EVIDENCE RETURNED TO EVIDENCE DEPT Release # R-3048, from Appeals.
08/22/2013 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE SUPREME ORDER DATED 7/03/13 HAND DELIVERED TO FELONY FOR IMAGING AND TO GIVE TO A FELONY MANAGER User ID=MANRESAE
08/19/2013 ORDER Party: Defendant BYRD, MILFORD WADE FROM SUPREME COURT, 7/03/13, SC12-1680 User ID=MANRESAE
09/27/2012 SUPREME COURT HAS RECORD - TRANSCRIPT : Defendant BYRD, MILFORD WADE SC12-1680 User ID=MANRESAE
09/27/2012 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE RECORD SENT TO SUPREME COURT, CCRC-MIDDLE, & AG. (APPEAL INDEX ATTACHED). EM User ID=MANRESAE
09/24/2012 APPEAL CASE PREPARED FOR COURT Party: Defendant BYRD, MILFORD WADE User ID=HAYDEN
09/24/2012 APPEAL PREPARED Party: Defendant BYRD, MILFORD WADE Ready to be copied and sent out/dh User ID=HAYDEN
09/12/2012 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF THE APPELLATE RECORD--SIGNED BY JUDGE BEHNKE User ID=BENSON
09/11/2012 EVIDENCE CHECKED OUT TO APPEAL Party: Defendant BYRD, MILFORD WADE RELEASE# 3048, EDS# 901367 User ID=ARAGOND
09/10/2012 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,DIVJ,05-SEP-2012,09:00:00, Judge:BEHNKE, DEBRA, Room:CT53A, Room Location:NT, User ID = ROSEBOROUGH User ID=ROSEBOROUGH
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 09/06/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: APPEALS DEPT WILL HAVE RECORD ON APPEAL BY 10-17-2012 Hearing: DIVJ-2012-09-06; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
09/06/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: MARY BLAZER Hearing: DIVJ-2012-09-06; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
09/06/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: JAY PRUNER Hearing: DIVJ-2012-09-06; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
09/06/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NONE-NO ONE PRESENT Text: Hearing: DIVJ-2012-09-06; Motion By: ; Ruling: Ruling Desc: NO ONE PRESENT
POST CONVICTION RELIEF MOTION HEARING (8:00 AM) (Judicial Officer: Behnke, 09/06/2012 Debra ;Location: COURTROOM 53A 5TH FLOOR)
09/06/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2012-09-06; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING
POST CONVICTION RELIEF MOTION HEARING (9:00 AM) (Judicial Officer: Behnke, 09/05/2012 Debra ;Location: COURTROOM 53A 5TH FLOOR) STATUS CONFERENCE.
09/05/2012 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,DIVJ,06-SEP-2012,09:00:00, Judge:BEHNKE, DEBRA, Room:CT53A, Room Location:NT, User ID = RAY User ID=RAY
08/31/2012 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,DIVJ,06-SEP-2012,09:00:00, Judge:BEHNKE, DEBRA, Room:CR053A, Room Location:NT, User ID = RAY User ID=RAY
08/23/2012 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,06-SEP-2012,09:00, Judge:BEHNKE, DEBRA, Room:CR53A, Room Location:NT, User ID = BENSON User ID=BENSON
08/23/2012 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE PER JUDGE'S OFFICE MEMO SET FOR STATUS HRGING 9-6-12@9:00AM User ID=BENSON
08/21/2012 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE SUPREME COURT ORDER DATED 8/10/12 HAND DELIVERED TO FELONY FOR IMAGING AND TO GIVE TO A FELONY MANAGER (FOR JUDGE) User ID=MANRESAE
08/20/2012 ORDER Party: Defendant BYRD, MILFORD WADE FROM SUPREME COURT, 8/10/12, SC12-1680 User ID=MANRESAE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
08/10/2012 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE CD CONTAINING INFORMATION OF THE TRANSCRIPTS FILED. ALL TRANSCRIPTS IN APPEALS TO COMPLETE THE RECORD User ID=REYESN
08/06/2012 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE MAY 11, 2012 INCOMPLETE User ID=REYESN
08/06/2012 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE MAY 26, 2011 User ID=REYESN
08/02/2012 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE MAR 7, 2012 INCOMPLETE User ID=REYESN
08/02/2012 DESIGNATION TO COURT REPORTER Party: Defendant BYRD, MILFORD WADE User ID=MANRESAM
08/02/2012 WRITTEN DIRECTIONS TO CLERK Party: Defendant BYRD, MILFORD WADE User ID=MANRESAM
08/01/2012 CASE STATUS UPDATED User ID=RODRIGZ
07/31/2012 LETTER Party: Defendant BYRD, MILFORD WADE TO AOC FOR TRANSCRIPTS User ID=BENNIFIE
07/16/2012 CERTIFIED COPIES TO APPEALS DEPARTMENT Party: Defendant BYRD, MILFORD WADE User ID=ALVAREZC
07/16/2012 NOTICE OF APPEAL Party: Defendant BYRD, MILFORD WADE FILED BY ATTY MARTIN MCCLAIN (CAPITAL COLLATERAL REGIONAL COUNSEL) User ID=ALVAREZC
06/15/2012 ORDER DENYING Party: Defendant BYRD, MILFORD WADE DEFT'S AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE AND DEFT'S MOTION TO AMEND PENDING MOTION TO VACATE-- SIGNED BYJUDGE SEXTON--COPIES SENT TO CCRC AND ATTY GENERAL BY CLERK (DL) User ID=BENSON
05/25/2012 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE RESPONSE TO STATE'S NOTICE OF SUPPLEMENTAL AUTHORITY--FILED BY CCRC M.MEYER FOR MARTIN MCCLAIN User ID=BENSON
05/25/2012 LETTER Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A TO THE CLERK User ID=BENSON
05/24/2012 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE RESPONSE TO STATE'S NOTICE OF SUPPLEMENTAL AUTHORITY--FILED BY CCRC M MEYER FOR MARTIN MCCLAIN User ID=BENSON
05/24/2012 LETTER Party: Defendant BYRD, MILFORD WADE TO THE CLERK User ID=BENSON
05/15/2012 LETTER Party: Defendant BYRD, MILFORD WADE TO THE CLERK--FROM ASSIST ATTORNEY GENERAL OFFICE--SCOTT BROWNE User ID=BENSON
05/15/2012 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE STATE'S NOTICE OF SUPPLEMENTAL AUTHORITY--FILED BY ATTY GENERAL OFFICE ASSIST SCOTT BROWNE User ID=BENSON
POST CONVICTION RELIEF MOTION HEARING (9:30 AM) (Judicial Officer: Sexton, 05/11/2012 Susan ;Location: COURTROOM 10 1ST FLOOR) CASE MGMT CONF--.
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ALSO-ALSO PRESENT: Text: SCOTT BROWN - ATTY GENERAL OFFICE Hearing: DIVJ- 2012-05-11; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: ATTY GEN OFFICE TO LIKE NOTICE OF SUPPLEMENTAL AUTHORITY DEFENSE COUNSEL WILL RESPONSE IN WRITING Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: JUDGE WILL ISSUE ORDER Hearing: DIVJ-2012- 05-11; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: MEMORANDUM OF LAW WILL BE TAKEN UNDER ADVISEMENT Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DEPW-DEFENDANT'S PRESENCE WAIVED Text: Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: DEFENDANT'S PRESENCE WAIVED
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: C MERRITT Hearing: DIVJ-2012-05-11; Motion By: ;
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Ruling: Ruling Desc: COURT REPORTER
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: JALAL HARB FOR JAY PRUNER Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
05/11/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: DIVJ-2012-05-11; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
05/08/2012 MEMORANDUM OF LAW Party: Defendant BYRD, MILFORD WADE FILED BY MARTIN J. MCCLAIN, Esq. User ID=KIRKCONNELL
04/30/2012 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,11-MAY-2012,09:30, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
04/30/2012 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,DIVJ,18-MAY-2012,09:00:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
04/30/2012 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE PER JUDGE'S OFFICE MEMO SET FOR CASE MGMT CONF 5-11-12@9:30AM//STRIKE 5-18-12@9:00AM User ID=BENSON
03/08/2012 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,18-MAY-2012,09:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BEALS User ID=BEALS
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: SA JAY PRUNER - NOT PRESENT Hearing: DIVJ- 2012-03-07; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2012-03-07; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: DIV J STATUS HE CASE MANAGEMENT 18-MAY-2012 09:AM Hearing: DIVJ-2012-03-07; Motion By: ; Ruling: Ruling Desc: CONTINUED
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: OFFICIAL NICOLE SCHELT Hearing: DIVJ-2012-03-07; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SCOTT BROWN (ATTY GEN OFFICE) TELEPHONIC HEA Hearing: DIVJ-2012-03-07; Motion By: ; Ruling: Ruling Desc:
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A ASSISTANT STATE ATTORNEY
03/07/2012 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN TELEPHONIC HEA Hearing: DIVJ-2012- 03-07; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
POST CONVICTION RELIEF MOTION HEARING (10:15 AM) (Judicial Officer: Sexton, 03/07/2012 Susan ;Location: COURTROOM 10 1ST FLOOR) STATUS HRGING.
03/06/2012 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,DIVJ,07-MAR-2012,10:15:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
03/06/2012 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,07-MAR-2012,10:30, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
03/06/2012 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE PER JUDGE'S OFFICE MEMO SET FOR STATUS 3-7-12@10:15AM User ID=BENSON
01/06/2012 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE STATE'S NOTICE OF SUPPLEMENTAL AUTHORTY (WALTON V STATE-SO.3D--2011 WL 5984284,36FLA. . WEEKLY S702( FLA. DECEMBER 2011)FILED BY ASSIST ATTY GENERAL SCOTT BROWN User ID=BENSON
01/06/2012 LETTER Party: Defendant BYRD, MILFORD WADE User ID=BENSON
10/27/2011 ORDER DENYING Party: Defendant BYRD, MILFORD WADE STATE'S MOTION FOR RECONSIDERATION--SIGNED BY JUDGE SEXTON--COPIES SENT TO DEFT , ATTY GENERAL OFFICE AND ATTYS BY CLERK(DL) User ID=BENSON
09/07/2011 RESPONSE Party: Defendant BYRD, MILFORD WADE TO STATE'S MOTION FOR RECONSIDERATION OF THIS COURT'S ORDER TO HOLD THE PROCEEDINGS IN ABEYANCE ( WITH ATTACHED COVER LETTER ) User ID=JEFFERIE
09/06/2011 RESPONSE Party: Defendant BYRD, MILFORD WADE TO STATE'S MOTION FOR RECONSIDERATION OF THIS COURT'S ORDER TO HOLD THE PROCEEDINGS IN ABEYANCE User ID=JEFFERIE
08/31/2011 LETTER Party: Defendant BYRD, MILFORD WADE TO THE CLERK User ID=BENSON
08/30/2011 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A STATE'S MOTION FOR RECONSIDERATION OF THIS COURT'S ORDER TO HOLD THE PROCEDDINGS ON BYRD'S SUCCESSIVE MOTION TO VACATE IN ABEYANCE--FILED BY ATTY GENERAL OFFICE SCOTT A BROWNE User ID=BENSON
08/29/2011 STATE MOTION Party: Defendant BYRD, MILFORD WADE FOR RECONSIDERATION OF THIS COURT'S ORER TO HOLD THE PROCEEDINGS ON BYRD'S SUCCESSIVE MOTION TO VACATE IN ABEYANCE (WITH ATTACHED COVER LETTER) [ NO NOTICE OF HEARING ATTACHED / NO DATE SET ] User ID=JEFFERIE
08/24/2011 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,DIVJ,26-AUG-2011,09:30:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
08/23/2011 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE PER JUDGE'S OFFICE MEMO STRIKE 8-26-11@9:30AM User ID=BENSON
08/17/2011 ORDER Party: Defendant BYRD, MILFORD WADE ON DEFT'S AMENDED SECOND SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE--SIGNED BY JUDGE SEXTON--COPIES SENT TO CAPITAL COLLERTAL REGIONAL AND STATE WIDE PROSECUROR BY CLERK(DL) User ID=BENSON
07/12/2011 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,DIVJ,15-JUL-2011,09:00:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
07/12/2011 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,26-AUG-2011,09:30, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
07/12/2011 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE PER JUDGE'S OFFICE MEMO SET FOR STATUS 8-26-11@9:30AM//STRIKE 7-15-2011 User ID=BENSON
05/27/2011 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,15-JUL-2011,09:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BEALS User ID=BEALS
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NOTA-NOTIFY ATTORNEY Text: Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: NOTIFY ATTORNEY
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: PER JUDGE MOTION TAKEN UNDER ADVISEMENT ORDER WILL BE PREPARED TO SEE IF A 3.851 SUCCESSIVE MOTION CAN BE FILED Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A ALSO-ALSO PRESENT: Text: SCOTT BROWN ATTY GEN OFFICE Hearing: DIVJ-2011- 05-26; Motion By: ; Ruling: Ruling Desc: ALSO PRESENT:
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: ORDER DISMISSING MOTION T AMEND PENDING MOTION TO VACATE SIGNED BY JUDGE IN OPEN COURT Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: STATE FILED RESPONSE TO DEFT MOTIONTO AMEND PENDING SUCCESSIVE MOTION TO VACATE Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: DIV J STATUS HEA CASE MANAGEMENT CONF 15-JUL-2011 09:AM Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: CONTINUED
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DEPW-DEFENDANT'S PRESENCE WAIVED Text: Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: DEFENDANT'S PRESENCE WAIVED
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DIVJ-POST CONVICTION RELIEF HEARING Text: Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: POST CONVICTION RELIEF HEARING
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: C FEBO , THOMAS WHITE (0FFICIAL) Hearing: DIVJ- 2011-05-26; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: JAY PRUNER Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
05/26/2011 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: DIVJ-2011-05-26; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
05/26/2011 ORDER Party: Defendant BYRD, MILFORD WADE DISMISSING MOTION TO AMEND PENDING MOTION TO VACATE--SIGNED BY JUDGE SEXTON User ID=BENSON
05/26/2011 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE STATE'S RESPONSE TO DEFT'S MOTION TO AMEND PENDING SUCCESSIVE MOTION TO VACATE--FILED BY ASSIST ATTY GENERAL--SCOTT A BROWN--(COPY) User ID=BENSON
POST CONVICTION RELIEF MOTION HEARING (9:00 AM) (Judicial Officer: Sexton, 05/26/2011 Susan ;Location: COURTROOM 10 1ST FLOOR) CASE MANAGEMENT CONFERENCE.
05/20/2011 FELONY RELATED 3.850
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE MOTION TO AMEND PENDING MOTION TO VACATE--FILED BY CCRC-- ATTY MARTIN J. MCCLAIN User ID=BENSON
05/04/2011 POST CONVICTION RELIEF MOTION HEARING Party: Defendant BYRD, MILFORD WADE Event Scheduled,DIVJ,26-MAY-2011,09:00, Judge:SEXTON, SUSAN, Room:CR10, Room Location:AN, User ID = BENSON User ID=BENSON
05/03/2011 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE PER JUDGE'S MEMO SET FOR CASE MGMT CONFERENCE 5-26-11@9:00AM User ID=BENSON
05/03/2011 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE NOTICE OF HEARING--SET FOR CASE MANAGEMENT CONFERENCE--5-26- 11@9:00AM--PER JUDGE OFFICE User ID=BENSON
05/02/2011 LETTER TO JUDGE Party: Defendant BYRD, MILFORD WADE PAM BONDI - ATTORNEY GENERAL - STATE OF FLORIDA User ID=JEFFERIE
04/26/2011 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE STATE'S NOTICE OF FILING LETTER AND PREVIOUS RESPONSE TO DEFT'S AMENDED SECOND SUCCESSIVE RULE 3.851 MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE User ID=BENSON
04/26/2011 LETTER Party: Defendant BYRD, MILFORD WADE TO THE CLERK FROM ASST ATTY GENERAL--SCOTT A BROWNE User ID=BENSON
04/04/2011 FELONY RELATED 3.850 Party: Defendant BYRD, MILFORD WADE AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE--FILED BY MARTIN J MCCLAIN User ID=BENSON
04/04/2011 LETTER Party: Defendant BYRD, MILFORD WADE TO THE CLERK User ID=BENSON
03/03/2011 REOPEN CASE User ID=RODRIGZ
03/03/2011 REOPEN CASE Party: Defendant BYRD, MILFORD WADE User ID=BENSON
03/03/2011 ORDER GRANTING Party: Defendant BYRD, MILFORD WADE IN PART, DEFT'S MOTION FOR REHEARING AND /OR TO AMEND SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE--SIGNED BY JUDGE SEXTON(COPIES SENT TO DEFT,ATTY GENERAL AND SAO BY JA) User ID=BENSON
02/24/2011 SEE DOCKET TEXT
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE COVER PAGE ( STATE'S ANSWER TO DEFT'S 2ND SUCCESSIVE RULE 3.851 MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE User ID=JEFFERIE
02/24/2011 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE STATE'S ANSWER TO DEFT'S SECOND SUCCESSIVE RULE 3.851 MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE User ID=CARANNTE
12/20/2010 MOTION FOR REHEARING Party: Defendant BYRD, MILFORD WADE AND/OR TO AMEND SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE User ID=JEFFERIE
12/20/2010 LETTER Party: Defendant BYRD, MILFORD WADE FROM LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH ( A COPY OF THE 1ST AND LAST PAGES RETURNED TO CCRC-SOUTH WITH CLOCK IN DATE ) User ID=JEFFERIE
12/08/2010 NOTICE OF FILING Party: Defendant BYRD, MILFORD WADE User ID=VILLEGAS
12/07/2010 ORDER Party: Defendant BYRD, MILFORD WADE DISMISSED WITHOUT PREJUDICE---SUCCESSIVE MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE SIGNED BY JUDGE WAYNE TIMMERMAN 12/07/10 User ID=JEFFERIE
12/07/2010 ORDER GRANTING Party: Defendant BYRD, MILFORD WADE MOTION TO EXCEED PAGE LIMIT SIGNED BY JUDGE WAYNE TIMMERMAN 12/07/10 WITH ATTACHED MOTION User ID=JEFFERIE
12/07/2010 NOTICE Party: Defendant BYRD, MILFORD WADE OF FILING User ID=BUDDS
11/29/2010 MOTION Party: Defendant BYRD, MILFORD WADE SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE BY ATTY MARTIN J. MCCLAIN User ID=JEFFERIE
11/29/2010 MOTION Party: Defendant BYRD, MILFORD WADE TO EXCEED PAGE LIMIT BY ATTY MARTIN J. MCCLAIN User ID=JEFFERIE
02/10/2010 RELEASE TRANSFER OF EVIDENCE Party: Defendant BYRD, MILFORD WADE NO. 2389 User ID=MORANKE
09/15/2009 SEE DOCKET TEXT EVIDENCE RETURNED TO EVIDENCE DEPT/RELEASE #2389 User ID=MANN
09/15/2009 EVIDENCE RETURNED TO EVIDENCE DEPT Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A REL # 2389 User ID=CHERRYE
07/31/2009 ORDER Party: Defendant BYRD, MILFORD WADE FROM SUPREME COURT, 7/9/09, SC06-539 User ID=MANRESAE
07/31/2009 MANDATE AFFIRMED Party: Defendant BYRD, MILFORD WADE SC 06-539, DIV L, NCR User ID=REYESN
06/09/2008 CASE STATUS UPDATED User ID=CUSHMAN
01/22/2008 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE SUPPLEMENT SENT TO SUPREME COURT, AG, & CCRC-SOUTH. EM User ID=MANRESAE
12/07/2007 ORDER Party: Defendant BYRD, MILFORD WADE SUPREME COURT ORDER: 12-05-07 : THE MOTION FOR EXTENSION OF TIME FILED IN THE ABOVE CASE IS GRANTED AND THE TIME FOR FILING THE SUPPLEMENTAL RECORD WITH THIS COURT IS EXTENDED TO AND INCLUDING DECEMBER 7, 2007. SC06-539. EM User ID=MANRESAE
12/07/2007 SUPREME COURT HAS RECORD - TRANSCRIPT TRANSCRIPTS WILL NOT BE RETURNED FROM SUPREME COURT. EM User ID=MANRESAE
12/07/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE RECORD SENT TO SUPREME COURT, AG, & CCRC-SOUTH. EM User ID=MANRESAE
12/06/2007 APPEAL CASE PREPARED FOR COURT Party: Defendant BYRD, MILFORD WADE 2ND SUPPLEMENT SENT OUT TO SC User ID=HARRISD
12/03/2007 CLERKS RESPONSE Party: Defendant BYRD, MILFORD WADE SENT TO SUPREME COURT REQUESTING EXTENSION OF TIME TO FILE A SUPPLEMENTAL RECORD. User ID=MANN
11/28/2007 ORDER Party: Defendant BYRD, MILFORD WADE SUPREME COURT ORDER: 11-16-07 : APPELLANT'S MOTION TO SUPPLEMENT THE RECORD IS GRANTED. (COPY ATTACHED) THE TRIAL COURT CLERK IS DIRECTED, ON OR BEFORE NOVEMBER 26, 2007, TO SUPPLEMENT THE RECORD WITH A COMPLETE COMPILATION OF THE EXHIBITS INTRODUCED AT THE EVIDENTIARY HEARING. APPELLANT IS ALLOWED EIGHT DAYS FROM THE FILLING OF THE SUPPLEMENT RECORD IN WHICH TO FILE THE INITIAL BRIEF ON THE MERITS. SC06-539. EM User ID=MANRESAE
11/09/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE VOL 10 OF 12 SENT TO SUPREME COURT ONLY (EXHIBITS). EM User ID=MANRESAE
05/29/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF APPELLATE RECORD User ID=FREESTON
05/25/2007 COPY OF
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF APPELLATE RECORD. User ID=MANN
05/21/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE RECORD RESENT TO SUPREME COURT (VOL 1-9 & 11-12). EM User ID=MANRESAE
05/18/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE SUPPLEMENT SENT TO SUPREME COURT, AG, & CCRC-SOUTH. EM User ID=MANRESAE
05/17/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: REPORT TO SUPREME COURT TO BE DONE Hearing: SRC-2007-05-17; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
05/17/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2007-05-17; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
05/17/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: CHRISTINA SPUDEAS FOR MARTIN MCCLAIN Hearing: SRC-2007-05-17; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
05/17/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: JALAL HARB FOR JAY PRUNER Hearing: SRC-2007-05-17; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 05/17/2007 Debra ;Location: COURTROOM 52A 5TH FLOOR) COMPLETION OF APPEAL FILE.
05/08/2007 APPEAL CASE PREPARED FOR COURT Party: Defendant BYRD, MILFORD WADE User ID=REYESN
05/08/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE SUPPLEMENT SENT TO SUPREME COURT, AG, & CCRC-SOUTH. EM User ID=MANRESAE
04/27/2007 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,17-MAY-2007,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = LANTZ User ID=LANTZ
04/26/2007 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE FOR 5-17-07 @8:30 User ID=LANTZ
04/13/2007 COPY OF Party: Defendant BYRD, MILFORD WADE MOTION TO RELINQUISH JURISDICTION AND TO TOLL THE BRIEFING SCHEDULE. User ID=MANN
04/13/2007 ORDER Party: Defendant BYRD, MILFORD WADE User ID=MANRESAE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
03/29/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF APPELLATE RECORD User ID=FREESTON
03/28/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: Hearing: SRC-2007-03-28; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
03/28/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: Hearing: SRC-2007-03-28; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
03/28/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: SEND COPY TO SUPREME COURT (OF REPORT FROM DEFENSE) Hearing: SRC-2007-03-28; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
03/28/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2007-03-28; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 03/28/2007 Debra ;Location: COURTROOM 52A 5TH FLOOR)
03/23/2007 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,28-MAR-2007,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = WILIAMAU User ID=WILIAMAU
03/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 3/28 SRC @ 8:30 Hearing: SRC-2007-03-22; Motion By: ; Ruling: Ruling Desc: CONTINUED
03/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NOTA-NOTIFY ATTORNEY Text: Hearing: SRC-2007-03-22; Motion By: ; Ruling: Ruling Desc: NOTIFY ATTORNEY
03/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NONE-NO ONE PRESENT Text: Hearing: SRC-2007-03-22; Motion By: ; Ruling: Ruling Desc: NO ONE PRESENT
03/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: Hearing: SRC-2007-03-22; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
03/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2007-03-22; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 03/22/2007 Debra ;Location: COURTROOM 52A 5TH FLOOR)
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 03/15/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF APPELLATE RECORD - SIGNED BY JUDGE DKB ON 3-14-07 User ID=DRAKEB
03/02/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE REPORT ON PREPARATION OF APPELLATE RECORD User ID=SUTTLE
02/23/2007 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,22-MAR-2007,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = MERCEDES User ID=MERCEDES
02/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 3/22/07 8:30 Hearing: SRC-2007-02-22; Motion By: ; Ruling: Ruling Desc: CONTINUED
02/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: BARBARA COLEMAN FOR JAY PRUNER Hearing: SRC-2007-02-22; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: Hearing: SRC-2007-02-22; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
02/22/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2007-02-22; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 02/22/2007 Debra ;Location: COURTROOM 52A 5TH FLOOR)
02/15/2007 SUPREME COURT HAS RECORD - TRANSCRIPT : Defendant BYRD, MILFORD WADE RECORD WILL NOT BE RETURNED TO OUR COURT, ONLY EXHIBITS. EM User ID=MANRESAE
02/15/2007 LETTER OF TRANSMITTAL Party: Defendant BYRD, MILFORD WADE RECORD SENT TO SUPREME COURT, AG, & MARTIN J. MCCLAIN, CCRC. EM User ID=MANRESAE
02/09/2007 APPEAL PREPARED Party: Defendant BYRD, MILFORD WADE WAITING ON THE REST OF DISCS, THEN COPIED AND SENT OUT User ID=HARRISD
02/08/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE appeal not ready to ship, due to not all transcript dates are on disc User ID=HARRISD
02/08/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE May 16, 2006 transcript entry for date 9-29-04, Court Reporter's Certificate was for the wrong date. Placing these transcript in file User ID=HARRISD
02/06/2007 EVIDENCE CHECKED OUT TO COURT DEPT
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE RELEASE #2389, EVIDENCE CHECKED OUT TO APPEALS User ID=CHERRYE
02/01/2007 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,22-FEB-2007,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = WILIAMAU User ID=WILIAMAU
01/31/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2007-01-31; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
01/31/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NOTA-NOTIFY ATTORNEY Text: Hearing: SRC-2007-01-31; Motion By: ; Ruling: Ruling Desc: NOTIFY ATTORNEY
01/31/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 2-22-07 8:30 Hearing: SRC-2007-01-31; Motion By: ; Ruling: Ruling Desc: CONTINUED
01/31/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: BARBARA COLEMAN FOR JAY PRUNER Hearing: SRC-2007-01-31; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
01/31/2007 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: Hearing: SRC-2007-01-31; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 01/31/2007 Debra ;Location: COURTROOM 52A 5TH FLOOR)
01/22/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE REQUEST TO ADD ON DOCKET (PER J.A REQUEST) User ID=SUTTLE
01/22/2007 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,31-JAN-2007,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = SUTTLE User ID=SUTTLE
01/03/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE SUPREME COURT ORDER; 12-28-06 : APPELLANT'S REQUEST FOR PERMISSION TO FILE REPLY TO RESPONSE TO PETITION FOR BELATED APPEAL IS DENIED AND APPELLANT'S REPLY FILED WITH THIS COURT ON SEPTEMBER 20, 2006, IS HEREBY STRICKEN. UPON CONSIDERATION OF THE PETITON FOR BELATED APPEAL, AND RESPONSE THERETO, IT IS ORDERED THAT SAID PETITION IS HEREBY GRANTED AND SAID PETITION IS NOW BEING TREATED AS A NOTIE OF APPEAL. APPELLANT'S NOTICE OF APPEAL WAS FILED WITH THIS COURT ON MARCH 20, 2006. THE STYLE OF THE ABOVE CASE HAS BEEN CHANGED FROM MILFORD WADE BYRD VS. JAMES R. MCDONOUGH, ETC. TO MILFORD WADE BYRD VS. STATE OF FLORIDA. NCR User ID=REYESN
01/03/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE User ID=REYESN
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
01/03/2007 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE SUPREME COURT ORDER; 12-28-06 : WE HAVE RECEIVED A NOTICE OF APPEAL IN THE ABOVE-CAPTIONED CASE, WHICH IS AN APPEAL FROM A FIRST-DEGREE MURDER CONVICTION WITH A SENTENCE OF DEATH. PURSUANT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.142(A)(1), THE HONORABLE MANUEL MENENDEZ, JR. CHIEF JUDGE OF THE THIRTEENTH JUDICIAL CIRCUIT COURT OF FLORIDA, IS HEREBY APPOINTED TO MONITOR THE PREPARATION OF THE COMPLETE RECORD IN THE CIRCUIT COURT FOR TIMELY FILING IN THIS COURT. THE COURT REPORTERS ARE DIRECTED TO START IMMEDIATELY TRANSCRIBING ANY PROCEEDINS (THE TRANSCRIPTS IN THIS INSTANT CASE SHOULD BE CONSECUTIVELY NUMBERED THROUGHOUT). THE TRANSCRIPTS, ALONG WITH DISKETTES FOR THE PARTIES ONLY, SHOULD BE FILED WITH THE TRIAL COURT CLERK WITHIN EIGHTY DAYS FROM THE DATE OF THIS ORDER. PER THIS COURT'S ADMINISTRATIVE ORDER IN RE: MANDATORY SUBMISSION OF ELECTRONIC COPIES OF DOCUMENTS AOSC04-84 DATED SEPTEMBER 13, 2004, THE COURT REPORTERS ARE FURTHER DIRECTED TO TRANSCIT A COPY OF ALL TRANSCRIPTS AS REQUIRED BY THE PROVISIONS OF THAT ORDER IN AN ELECTRONIC VERSION FOR THIS COURT WHICH SHALL BE SUBMITTED TO THE FOLLOWING E-MAIL ADDRESS: [email protected]. AS THE TIME FOR FILING THE TRANSCRIPT HAS ALREADY BEEN EXTENDED, THE COURT DOES NOT ANTICIPATE THAT ANY FURTHER EXTENSIONS OF TIME WILL BE NECESSARY. User ID=REYESN
10/25/2006 EVIDENCE RECEIVED FROM COURT CLERK Party: Defendant BYRD, MILFORD WADE RELEASE 2266 RETURNED FROM APPEALS User ID=LOVELACE
10/25/2006 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE EVIDENCE RETURNED TO THE EVIDENCE DEPARTMENT. EVIDENCE DATA SHEET # 2266 User ID=MANN
06/08/2006 EVIDENCE CHECKED OUT TO COURT DEPT Party: Defendant BYRD, MILFORD WADE To Appeals # 2266 User ID=LAPEER
06/08/2006 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE RECEIVED EVIDENCE FROM EVIDENCE DEPT. EVIDENCE DATA SHEET # 2266. User ID=MANN
05/16/2006 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE TWO DISC INCLUDED WITH TRANSCRIPTS OF LAST DOCKET, NCR User ID=REYESN
05/16/2006 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE 5-20-02, 6-24-02(CERTIFICATE), 7-19-02, 8-16-02, 9-25-02, 11-21-02, 12-11-02, 2-20-03, 2-28-03, 4-3-03, 6-9-03, 11-10-03(CERTIFICATE), 12-16-03, 2-10-04, 4-5-04 (CERTIFICATE), 6-17-04, 7-28-04, 9-22-04, 10-19-04, 11-5-04, 11-29-04(CERTIFICATE) & 2-1-06. ALL TRANSCRIPTS IN APPEALS TO COMPLETE RECORD. NCR User ID=REYESN
05/02/2006 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE 2-8-06, INCOMPLETE, NCR User ID=REYESN
03/31/2006 TRANSCRIPT FILED Party: Defendant BYRD, MILFORD WADE 9-9-04, COURT REPORTER'S CERTIFICATE, INCOMPLETE. NCR User ID=REYESN
03/22/2006 DESIGNATION TO COURT REPORTER
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE User ID=ESCALONA
03/22/2006 WRITTEN DIRECTIONS TO CLERK Party: Defendant BYRD, MILFORD WADE User ID=ESCALONA
03/15/2006 CERTIFIED COPIES TO APPEALS DEPARTMENT Party: Defendant BYRD, MILFORD WADE User ID=ESCALONA
03/14/2006 MAIL RETURNED Party: Defendant BYRD, MILFORD WADE ORDER/ User ID=GUNTERS
03/14/2006 NOTICE OF APPEAL Party: Defendant BYRD, MILFORD WADE NOTICE OF APPEAL FILED BY ATTORNEY, McCLAIN User ID=ESCALONA
03/01/2006 DEFENDANT CLOSED Party: Defendant BYRD, MILFORD WADE User ID=DIPIAZZAS
02/28/2006 ORDER DENYING Party: Defendant BYRD, MILFORD WADE MOTION TO RE-ENTER ORDER DENYING MOTION FOR POSTCONVICTION RELIEF (JUDGE BEHNKE) User ID=LANTZ
02/08/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: COURT HAS NO JURISDICTION , ORDER TO BE SUBMITTED Hearing: OTH-2006-02-08; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
02/08/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: J GIBBS Hearing: OTH-2006-02-08; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
02/08/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: Hearing: OTH-2006-02-08; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/08/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: Hearing: OTH-2006-02-08; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
OTHER (8:00 AM) (Judicial Officer: Behnke, 02/08/2006 Debra ;Location: COURTROOM 52A 5TH FLOOR)
02/01/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: Hearing: SRC-2006-02-01; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/01/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: Hearing: SRC-2006-02-01; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 02/01/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE MO-MOTION Text: TO RE-ENTER ORDER DENYING MOTION FOR POST CONVICTION RELIEF Hearing: SRC-2006-02-01; Motion By: ; Ruling: MOTG Ruling Desc: MOTION GRANTED
02/01/2006 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2006-02-01; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 02/01/2006 Debra ;Location: COURTROOM 52A 5TH FLOOR) REQUEST TO ADD CASE ON DOCKET/. SAO TO OBJECT ENTRY OF ORDER.
01/25/2006 REOPEN CASE User ID=JOHNSONT
01/25/2006 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,01-FEB-2006,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = GUNTERS User ID=GUNTERS
01/23/2006 REOPEN CASE Party: Defendant BYRD, MILFORD WADE User ID=GUNTERS
01/18/2006 MOTION Party: Defendant BYRD, MILFORD WADE TO RE-ENTER ORDER DENYING MOTION FOR POSTCONVICTION RELIEF User ID=LANTZ
08/04/2005 CASE STATUS UPDATED User ID=JOHNSONT
08/01/2005 DEFENDANT CLOSED Party: Defendant BYRD, MILFORD WADE CT1 User ID=MILLRK
08/01/2005 ORDER DENYING Party: Defendant BYRD, MILFORD WADE MOTN FOR POST CONVICTION RELIEF; CT1 User ID=MILLRK
08/01/2005 COPIES SENT TO Party: Defendant BYRD, MILFORD WADE MARTIN MCCLAIN & SAO 8/3/05 User ID=MILLRK
08/01/2005 ORDER DENYING Party: Defendant BYRD, MILFORD WADE CT1; MOTN FOR POST CONV RELIEF User ID=MILLRK
02/08/2005 COPIES OF ORDER SENT TO Party: Defendant BYRD, MILFORD WADE SAO& DEFT/CD User ID=DAWSON
02/08/2005 ORDER Party: Defendant BYRD, MILFORD WADE GRANTING SECOND MOTION TO STRIKE/CD User ID=DAWSON
01/27/2005 NOTICE Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A SUPPLEMENTAL AUTHORITY, EM User ID=MURGASEN
12/16/2004 CLOSING ARGUMENTS Party: Defendant BYRD, MILFORD WADE (SUPPLEMENTAL WRITTEN) / MLC User ID=CAMPBELM
12/16/2004 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE DEFENDANT'S SUPPLEMENTAL WRITTEN CLOSING ARGUMENTS(DML) User ID=LANTZ
12/15/2004 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE FINAL CLOSING ARGUMENT/CD User ID=DAWSON
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: RESERVED RULING Hearing: SRC-2004-11-05; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TALK-HEARD SWORN TESTIMONY FROM: Text: Hearing: SRC-2004-11-05; Motion By: ; Ruling: Ruling Desc: HEARD SWORN TESTIMONY FROM:
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: SRC-2004-11-05; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2004-11-05; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2004-11- 05; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
11/05/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: ATTY MARTIN CCLAIN Hearing: SRC-2004-11-05; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 11/05/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR) EVIDENTIARY HEARING.
11/03/2004 ADDITIONAL LIST OF WITNESSES Party: Defendant BYRD, MILFORD WADE JG User ID=GONZALZ
10/28/2004 STATES RESPONSE Party: Defendant BYRD, MILFORD WADE IN OPPOSITION TO DEFT'S MOTN TO REOPEN EVIDENTIARY HEAR &/OR AMEND THE PENDING MOTN TO VACATE IN LIGHT OF THE RECENTLY CONDUCTED DEPOSITIONS; SM User ID=MILLRK
10/27/2004 CERTIFIED COPIES TO Party: Defendant BYRD, MILFORD WADE HCSO X2; SM User ID=MILLRK
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
10/27/2004 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE FOR 11/5/04; SM User ID=MILLRK
10/22/2004 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE User ID=RUTLAND
10/20/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,05-NOV-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DURAN User ID=DURAN
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE MOTN-MOTION Text: TO REOPEN EVIDENTIARY HEARING Hearing: SRC-2004-10-19; Motion By: ; Ruling: MOG Ruling Desc: MOTION GRANTED
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: EVIDENTIARY HEARING 11-05-04 @ 8:30 Hearing: SRC- 2004-10-19; Motion By: ; Ruling: Ruling Desc: CONTINUED
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: SRC-2004-10-19; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2004-10- 19; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: DEBRA BEHNKE Hearing: SRC-2004-10-19; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
10/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2004-10-19; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 10/19/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR)
10/15/2004 MOTION Party: Defendant BYRD, MILFORD WADE TO REOPEN EVIDENTIARY HEAR &/OR AMEND THE PENDING MOTN TO VACATE IN LIGHT OF THE RECENTLY CONDUCTED DEPOSITIONS; SM User ID=MILLRK
09/30/2004 MOTION Party: Defendant BYRD, MILFORD WADE TO REOPEN EVIDENTIARY HEARING AND/OR AMEND THE PENDING MOTION TO VACATE IN LIGHT OF THE RECENTLY CONDUCTED DISPOSITIONS (BD) User ID=DRAKEB
09/23/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,19-OCT-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DURAN User ID=DURAN
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 10-19 Hearing: SRC-2004-09-22; Motion By: ; Ruling: Ruling Desc: CONTINUED
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NOTA-NOTIFY ATTORNEY Text: Hearing: SRC-2004-09-22; Motion By: ; Ruling: Ruling Desc: NOTIFY ATTORNEY
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2004-09- 22; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN J MCCLAIN Hearing: SRC-2004-09-22; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: SRC-2004-09-22; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
09/22/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2004-09-22; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 09/22/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR)
09/10/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,22-SEP-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DURAN User ID=DURAN
09/09/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: SRC-2004-09-09; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
09/09/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: EVELYN FRANCOIS Hearing: SRC-2004-09-09; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
09/09/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: SAA - NO ONE PRESENT Hearing: SRC-2004-09-09; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
09/09/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NONE-NO ONE PRESENT Text: Hearing: SRC-2004-09-09; Motion By: ; Ruling: Ruling Desc: NO ONE PRESENT
09/09/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 9/22/04 SRC Hearing: SRC-2004-09-09; Motion By: ; Ruling:
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Ruling Desc: CONTINUED
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 09/09/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR)
07/29/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,09-SEP-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = PORRATAN User ID=PORRATAN
07/28/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: SRC-2004-07-28; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
07/28/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2004-07-28; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
07/28/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: LORI ELLINGSWORTH FOR SHARON M VOLLRATH Hearing: SRC-2004-07-28; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
07/28/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN J MCCLAIN Hearing: SRC-2004-07-28; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
07/28/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 9/9/04 SRC Hearing: SRC-2004-07-28; Motion By: ; Ruling: Ruling Desc: CONTINUED
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 07/28/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR)
06/24/2004 CERTIFICATE GOOD FAITH COORDINATOR DEPOSITION Party: Defendant BYRD, MILFORD WADE X3/ KF User ID=FULGINIT
06/24/2004 NOTICE OF TAKING DEPOSITION Party: Defendant BYRD, MILFORD WADE X3/ KF User ID=FULGINIT
06/18/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,28-JUL-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = VONESH User ID=VONESH
06/17/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: SRP-2004-06-17; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
06/17/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULMEQ Hearing: SRP-2004-06-17; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 06/17/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRP-2004-06- 17; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
06/17/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: SRP-2004-06-17; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
06/17/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 7/28/04 Hearing: SRP-2004-06-17; Motion By: ; Ruling: Ruling Desc: CONTINUED
STATUS REVIEW-PENDING (8:30 AM) (Judicial Officer: Behnke, 06/17/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR)
05/25/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRP,17-JUN-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = CARVAJAL User ID=CARVAJAL
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: JANIE GIBBS Hearing: MOP-2004-05-24; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: DEBRA BEHNKE Hearing: MOP-2004-05-24; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: MOP-2004-05- 24; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE WICO-WITH COUNSEL Text: MARTIN MC CLAIN Hearing: MOP-2004-05-24; Motion By: ; Ruling: Ruling Desc: WITH COUNSEL
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 6/17/04 Hearing: MOP-2004-05-24; Motion By: ; Ruling: Ruling Desc: CONTINUED
05/24/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE MO-MOTION Text: MOTION TO STRIKE 6/18/04 Hearing: MOP-2004-05-24; Motion By: ; Ruling: MOTG Ruling Desc: MOTION GRANTED
05/24/2004 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,HEA,18-JUN-2004,08:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = LANTZ User ID=LANTZ
MOTION/PENDING CASE (8:30 AM) (Judicial Officer: Behnke, 05/24/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR) MOTION TO COMPEL DISCOVERY.
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 05/21/2004 NOTICE OF FILING Party: Defendant BYRD, MILFORD WADE KF User ID=FULGINIT
05/20/2004 MOTION PENDING CASE SET Party: Defendant BYRD, MILFORD WADE Event Scheduled,MOP,24-MAY-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = JENNINGT User ID=JENNINGT
05/20/2004 STATES RESPONSE Party: Defendant BYRD, MILFORD WADE TO DEFENDANT'S MOTION TO COMPEL DISCOVERY. EC User ID=CHERRYE
05/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: MOP-2004-05-19; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
05/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: MOP-2004-05-19; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
05/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: MOP-2004-05- 19; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
05/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: MOP-2004-05-19; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
05/19/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE LDPS-LEAVE DATE PREVIOUSLY SET Text: 6/18/04 Hearing: MOP-2004-05-19; Motion By: ; Ruling: Ruling Desc: LEAVE DATE PREVIOUSLY SET
MOTION/PENDING CASE (8:30 AM) (Judicial Officer: Behnke, 05/19/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR) MOTION TO COMPEL DISCOVERY.
05/17/2004 MOTION PENDING CASE SET Party: Defendant BYRD, MILFORD WADE Event Scheduled,MOP,19-MAY-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DRAKEB User ID=DRAKEB
05/17/2004 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE FOR 5-19-04 (BD) User ID=DRAKEB
05/13/2004 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,18-JUN-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DRAKEB User ID=DRAKEB
05/11/2004 NOTICE OF HEARING Party: Defendant BYRD, MILFORD WADE FOR 6-18-04 - ORAL ARGUMENTS FROM CONCLUSION OF EVIDENTIARY HEARING (BD) User ID=DRAKEB
05/10/2004 PRO SE MOTION
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE to compel discovery-bl User ID=LOGGANSB
05/10/2004 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE argument from conclusion of evidentiary hearing on September 25,2002 and february 10,2004-bl User ID=LOGGANSB
05/10/2004 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE deft's written clsing arguments-bl User ID=LOGGANSB
04/01/2004 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,SRC,05-APR-2004,08:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = DRAKEB User ID=DRAKEB
03/31/2004 COPIES SENT TO Party: Defendant BYRD, MILFORD WADE SAO,MARTIN MCCLAIN / LMC User ID=MCDANIEL
03/31/2004 ORDER GRANTING Party: Defendant BYRD, MILFORD WADE UOPPOSED EXTENSION OF TIME -FAXED COPY- LMC User ID=MCDANIEL
03/31/2004 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE STRIKE 4-5-04 DISPO PER J.A. (BD) User ID=DRAKEB
03/22/2004 ADDITIONAL LIST OF WITNESSES Party: Defendant BYRD, MILFORD WADE vg User ID=GULLEY
03/22/2004 NOTICE OF DISCOVERY Party: Defendant BYRD, MILFORD WADE vg User ID=GULLEY
03/22/2004 NOTICE OF FILING Party: Defendant BYRD, MILFORD WADE VG User ID=GULLEY
03/08/2004 MOTION FOR EXTENSION OF TIME Party: Defendant BYRD, MILFORD WADE FILED W/O NOTICE OF HRNG (BD) User ID=DRAKEB
03/01/2004 NOTICE OF FILING Party: Defendant BYRD, MILFORD WADE LETTER FROM JAMES ENDRESS PDW User ID=PWILLIAMS
03/01/2004 NOTICE OF DISCOVERY Party: Defendant BYRD, MILFORD WADE PDW User ID=PWILLIAMS
02/11/2004 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,05-APR-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = COLON User ID=COLON
HEARING (8:30 AM) (Judicial Officer: Behnke, 02/10/2004 Debra ;Location: COURTROOM 52A 5TH FLOOR) EVIDENTIARY.
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE HEST-HEARD SWORN TESTIMONY Text: Hearing: HEA-2004-02-10; Motion By: ; Ruling: Ruling Desc: HEARD SWORN TESTIMONY
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 4-5-04 08:30 Hearing: HEA-2004-02-10; Motion By: ; Ruling: Ruling Desc: CONTINUED
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: HEA-2004-02-10; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: HEA-2004-02- 10; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: HEA-2004-02-10; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
02/10/2004 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: HEA-2004-02-10; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
02/07/2004 AFFIDAVIT OF INDIGENCY DEFENDANT IS NOT REQUESTING PUBLIC DEFENDER, User ID=BURGESS
02/05/2004 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=BRICED
02/05/2004 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE User ID=BRICED
01/28/2004 COPIES SENT TO Party: Defendant BYRD, MILFORD WADE MARTIN J MCCLAIN,SAO,MARTIN CORRECTIONAL INSTITUTION& HCSO/CD User ID=DAWSON
01/27/2004 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE User ID=DAWSON
01/27/2004 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=BRICED
01/27/2004 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE User ID=BRICED
12/22/2003 ORDER Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A DEFENDANT IS ENTITLED TO PRESENT EVIDENCE(DML) User ID=LANTZ
12/18/2003 DEMAND FOR DISCOVERY Party: Defendant BYRD, MILFORD WADE NP User ID=PORRATAN
12/17/2003 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,10-FEB-2004,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = COLON User ID=COLON
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: HEA-2003-12- 16; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: ORDER TO BE SUBMITTED Hearing: HEA-2003-12- 16; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: HEA-2003-12-16; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: EVID HEA 2-10-04 08:30 Hearing: HEA-2003-12-16; Motion By: ; Ruling: Ruling Desc: CONTINUED
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: HEA-2003-12-16; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
12/16/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: HEA-2003-12-16; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
HEARING (1:30 PM) (Judicial Officer: Behnke, 12/16/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR) HUFF HEARING.
12/12/2003 TRANSCRIPT OF PROCEEDING Party: Defendant BYRD, MILFORD WADE User ID=LANTZ
12/12/2003 TRANSCRIPT OF PROCEEDING Party: Defendant BYRD, MILFORD WADE FROM SEPT 25, 2002 (DML) User ID=LANTZ
11/10/2003 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,16-DEC-2003,13:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = LANTZ User ID=LANTZ
11/10/2003 STIPULATION Party: Defendant BYRD, MILFORD WADE TO SET FOR HUFF HEARING ON 12-16-03 @1:30PM(DML) User ID=LANTZ
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 11/10/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE PRJU-PRESIDING JUDGE Text: BEHNKE Hearing: HEA-2003-11-10; Motion By: ; Ruling: Ruling Desc: PRESIDING JUDGE
11/10/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: HEA-2003-11-10; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
11/10/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE SOD-CASE STRICKEN OFF DOCKET Text: Hearing: HEA-2003-11-10; Motion By: ; Ruling: Ruling Desc: CASE STRICKEN OFF DOCKET
HEARING (1:30 PM) (Judicial Officer: Behnke, 11/10/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR) HUFF.
11/06/2003 STIPULATION Party: Defendant BYRD, MILFORD WADE NG User ID=GONZALEZN
10/02/2003 NOTICE OF HEARING Party: Defendant BYRD, MILFORD WADE FOR 11-10-03 - HUFF HEARING; ALREADY SET (BD) User ID=DRAKEB
09/30/2003 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,10-NOV-2003,13:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
09/29/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: HEARING(HUFF) 11-10-03 1:30PM Hearing: SRC-2003-09-29; Motion By: ; Ruling: Ruling Desc: CONTINUED
09/29/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2003-09- 29; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
09/29/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY Hearing: SRC-2003-09-29; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
09/29/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NONE-NO ONE PRESENT Text: Hearing: SRC-2003-09-29; Motion By: ; Ruling: Ruling Desc: NO ONE PRESENT
09/29/2003 NOTICE Party: Defendant BYRD, MILFORD WADE OF STIPULATION -DC User ID=CARVAJAL
09/29/2003 LETTER Party: Defendant BYRD, MILFORD WADE FROM MZRTIN J. MCCLAIN -ATTY - ENCLOSED NOTICE OF STIPULATION DC User ID=CARVAJAL
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke,
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 09/29/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR) STATE'S RESPONSE TO DEFENDANT'S AMENDED. MOTION TO VACATE JUDGEMENTS OF CONVICTIO. SENTENCE WITH SPECIAL REQUEST FOR LEAVE. TO AMEND AND FOR EVIDENTIARY HEARING
09/26/2003 NOTICE Party: Defendant BYRD, MILFORD WADE BY STIPULATION - TM User ID=MAUNDT
09/11/2003 STATES RESPONSE Party: Defendant BYRD, MILFORD WADE TO DEFENDANT'S AMENDED MOTION TO VACATE JUDGEMENTS OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMNED AND FOR EVIDENTIARY HEARING/CD User ID=DAWSON
06/10/2003 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,29-SEP-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
06/09/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 29-SEPT-2003 08:30AM Hearing: SRC-2003-06-09; Motion By: ; Ruling: Ruling Desc: CONTINUED
06/09/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2003-06-09; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
06/09/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2003-06- 09; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
06/09/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: ATTY MARTIN MCCLAIN Hearing: SRC-2003-06-09; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 06/09/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR)
05/27/2003 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE DEPOSITION FROM 4-2-03 FILED.(DML) User ID=LANTZ
04/04/2003 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,09-JUN-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
04/03/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NOTA-NOTIFY ATTORNEY Text: Hearing: SRC-2003-04-03; Motion By: ; Ruling: Ruling Desc: NOTIFY ATTORNEY
04/03/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 09-JUN-2003 08:30AM Hearing: SRC-2003-04-03; Motion By: ; Ruling: Ruling Desc: CONTINUED
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 04/03/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2003-04-03; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
04/03/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2003-04- 03; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
04/03/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: ATTY MARTIN MCCLAIN Hearing: SRC-2003-04-03; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 04/03/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR)
03/03/2003 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,03-APR-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
02/28/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRC 03-APR-2003 08:30AM Hearing: SRC-2003-02-28; Motion By: ; Ruling: Ruling Desc: CONTINUED
02/28/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2003-02-28; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
02/28/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRC-2003-02- 28; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/28/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: ATTY MARTIN MCCLAIN Hearing: SRC-2003-02-28; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 02/28/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR)
02/21/2003 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,28-FEB-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
02/20/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH-NOT PRESENT Hearing: SRC-2003-02-20; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
02/20/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 2/28-STATUS REVIEW Hearing: SRC-2003-02-20; Motion By: ; Ruling: Ruling Desc: CONTINUED
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 02/20/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE NONE-NO ONE PRESENT Text: Hearing: SRC-2003-02-20; Motion By: ; Ruling: Ruling Desc: NO ONE PRESENT
02/20/2003 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME Hearing: SRC-2003-02-20; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 02/20/2003 Debra ;Location: COURTROOM 52A 5TH FLOOR)
01/13/2003 PER JUDGES MEMO Party: Defendant BYRD, MILFORD WADE DATED 1/10/03 - WO User ID=OWENSW
01/13/2003 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,SRC,20-FEB-2003,08:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = OWENSW User ID=OWENSW
12/16/2002 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,17-FEB-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BISSON User ID=BISSON
12/16/2002 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,SRP,17-FEB-2003,08:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BISSON (RESET FOR SRC) User ID=BISSON
12/12/2002 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRP,17-FEB-2003,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
12/11/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SRP 17-FEB-2003 08:30AM Hearing: SRP-2002-12-11; Motion By: ; Ruling: Ruling Desc: CONTINUED
12/11/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY - OFFICIAL Hearing: SRP-2002-12-11; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
12/11/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: SRP-2002-12- 11; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
12/11/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: ATTY MARTIN MCCLAIN Hearing: SRP-2002-12-11; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
STATUS REVIEW-PENDING (8:30 AM) (Judicial Officer: Behnke, 12/11/2002 Debra ;Location: COURTROOM 52A 5TH FLOOR)
11/22/2002 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Event Scheduled,SRP,11-DEC-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = MARSHALLT User ID=MARSHALLT
11/21/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 12/11-HEARING Hearing: HEA-2002-11-21; Motion By: ; Ruling: Ruling Desc: CONTINUED
11/21/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: HEA-2002-11- 21; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
11/21/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN MCCLAIN Hearing: HEA-2002-11-21; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
11/21/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY-OFFICIAL Hearing: HEA-2002-11-21; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
HEARING (8:30 AM) (Judicial Officer: Behnke, 11/21/2002 Debra ;Location: COURTROOM 52A 5TH FLOOR) EVIDENTARY HEARING.
11/12/2002 MEMORANDUM OF LAW Party: Defendant BYRD, MILFORD WADE REGARDING DECISIONS IN BOOTOSON V.MOORE AND KING V.MOORE/CD User ID=DAWSON
11/12/2002 MOTION TO COMPEL DISCOVERY Party: Defendant BYRD, MILFORD WADE MOTION FILED WITHOUT NOTICE OF HEARING DW User ID=WATERSDO
09/27/2002 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,HEA,24-SEP-2002,13:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
09/26/2002 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,21-NOV-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = BEALS User ID=BEALS
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: * SEND WITNESS JAMES ENDRESS BACK TO FSP Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE SWTE-SWORN TESTIMONY TAKEN Text: HEARD Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: SWORN TESTIMONY TAKEN
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: HEA EVIDENTIARY HRG 21-N0V-2002 08:30AM Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: CONTINUED
09/25/2002 CONVERTED MINUTE CODE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: NOTICE OF WAIVER OF APPEARANCE FILED BY DEFT Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY - OFFICIAL Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: HEA-2002-09- 25; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
09/25/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE WICO-WITH COUNSEL Text: ATTY MARTIN MCCLAIN Hearing: HEA-2002-09-25; Motion By: ; Ruling: Ruling Desc: WITH COUNSEL
HEARING (8:00 AM) (Judicial Officer: Behnke, 09/25/2002 Debra ;Location: COURTROOM 52A 5TH FLOOR)
HEARING (1:30 PM) (Judicial Officer: Behnke, 09/24/2002 Debra ;Location: COURTROOM 52A 5TH FLOOR) EVIDENTARY HEARING.
09/06/2002 NOTICE OF DISCOVERY Party: Defendant BYRD, MILFORD WADE User ID=OWENSW
08/30/2002 SUBPOENA RETURNED SERVED Party: Defendant BYRD, MILFORD WADE VS User ID=SIERRAVI
08/29/2002 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,HEA,25-SEP-2002,13:30:00, Judge:BEHNKE, DEBRA, Room:CR52A, Room Location:NT, User ID = MARSHALLT User ID=MARSHALLT
08/29/2002 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
08/29/2002 WRIT OF HABEAS CORPUS AD TESTI Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
08/29/2002 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
08/29/2002 WRIT OF HABEAS CORPUS AD PROSE Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
08/23/2002 NOTICE Party: Defendant BYRD, MILFORD WADE OF FILING RE: STATE'S WITNESS LIST (RDD) User ID=DANIELS
08/23/2002 NOTICE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Party: Defendant BYRD, MILFORD WADE OF FILING RE: LETTER & MEMORANUDM (RDD) User ID=DANIELS
08/23/2002 DEMAND FOR DISCOVERY Party: Defendant BYRD, MILFORD WADE User ID=AVERSA
08/16/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON M VOLLRATH Hearing: SRP-2002- 08-16; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
08/16/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE BYAT-BY ATTORNEY Text: MARTIN J MCCLAIN Hearing: SRP-2002-08-16; Motion By: ; Ruling: Ruling Desc: BY ATTORNEY
08/16/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 9-25-02 Hearing: SRP-2002-08-16; Motion By: ; Ruling: Ruling Desc: CONTINUED
08/16/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY-BERRYHILL Hearing: SRP-2002-08-16; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
08/16/2002 MEMORANDUM OF LAW Party: Defendant BYRD, MILFORD WADE REGARDING DECISISONS IN RING V. ARIZONA AND ATKINS V. VIRGINAI FILED IN COURT (RDD) User ID=DANIELS
STATUS REVIEW-PENDING (8:30 AM) (Judicial Officer: Behnke, 08/16/2002 Debra ;Location: COURTROOM 22 2ND FLOOR) STATUS HEARING.
07/29/2002 COPIES SENT TO Party: Defendant BYRD, MILFORD WADE SAO, ATTORNEY GENERAL, MARTIN MCCLAIN,AF User ID=FREESTON
07/29/2002 ORDER Party: Defendant BYRD, MILFORD WADE ORDER GRANTING IN PART, EVIDENTIARY HEARING AND RESERVING RULING, IN PART, ON DEFENDANT'S MOTION TO VACATE JUDGEMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING,AF User ID=FREESTON
07/22/2002 NOTICE OF HEARING Party: Defendant BYRD, MILFORD WADE FOR 09-25-02 - ALREADY SET - EVIDENTIARY HEARING PD User ID=DENTPAM
07/22/2002 NOTICE OF HEARING Party: Defendant BYRD, MILFORD WADE FOR 08-16-02 - ALREADY SET - STATUS HEARING PD User ID=DENTPAM
07/22/2002 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,25-SEP-2002,13:30, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = MARTINEZB User ID=MARTINEZB
07/22/2002 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A Event Scheduled,SRP,16-AUG-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = MARTINEZB User ID=MARTINEZB
07/19/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE WICO-WITH COUNSEL Text: MARTIN MCCLAIN Hearing: HEA-2002-07-19; Motion By: ; Ruling: Ruling Desc: WITH COUNSEL
07/19/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: HEA-2002-07- 19; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
07/19/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE TEXT-SEE FREE FORM TEXT Text: SEND DEF BACK TO FSP Hearing: HEA-2002-07- 19; Motion By: ; Ruling: Ruling Desc: SEE FREE FORM TEXT
07/19/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 8/16-SR & 9/25 HEA Hearing: HEA-2002-07-19; Motion By: ; Ruling: Ruling Desc: CONTINUED
07/19/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY FORRY-OFFICIAL Hearing: HEA-2002-07-19; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
HEARING (10:00 AM) (Judicial Officer: Behnke, 07/19/2002 Debra ;Location: COURTROOM 22 2ND FLOOR) HUFF HEARING.
06/26/2002 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
06/26/2002 WRIT OF HABEAS CORPUS AD PROSE Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
06/24/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE WICO-WITH COUNSEL Text: CHRISTOPHER DEBOCK Hearing: STK-2002-06-24; Motion By: ; Ruling: Ruling Desc: WITH COUNSEL
06/24/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: LORI PALMIERI Hearing: STK-2002-06-24; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
06/24/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHLEY HULME- BERRYHILL Hearing: STK-2002-06-24; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
06/24/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: 06-26-02 JTR Hearing: STK-2002-06-24; Motion By: ; Ruling: Ruling Desc: CONTINUED
06/24/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A SOD-CASE STRICKEN OFF DOCKET Text: Hearing: STK-2002-06-24; Motion By: ; Ruling: Ruling Desc: CASE STRICKEN OFF DOCKET
STRIKE FROM CALENDAR (8:30 AM) (Judicial Officer: Behnke, 06/24/2002 Debra ;Location: COURTROOM 22 2ND FLOOR)
STATUS REVIEW-CLOSED (8:30 AM) (Judicial Officer: Behnke, 06/24/2002 Debra ;Location: COURTROOM 22 2ND FLOOR)
06/21/2002 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE STRIKE CASE OF DOCKET FOR 06-24-02 PER JA DIV B PD User ID=DENTPAM
06/21/2002 STRIKE FROM DOCKET Party: Defendant BYRD, MILFORD WADE Event Scheduled,STK,24-JUN-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = LANTZ User ID=LANTZ
06/18/2002 SUBPOENA RETURNED SERVED Party: Defendant BYRD, MILFORD WADE Y.M. User ID=MURRAYY
06/12/2002 COURT EVENT DELETED Party: Defendant BYRD, MILFORD WADE Event Deleted,HEA,24-JUN-2002,08:30:00, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = MARTINEZB User ID=MARTINEZB
06/12/2002 STATUS REVIEW SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,SRC,24-JUN-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = MARTINEZB User ID=MARTINEZB
06/12/2002 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Change,HEA,24-JUN-2002,08:30:00, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = OWENSW User ID=OWENSW
06/12/2002 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,19-JUL-2002,10:00, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = OWENSW User ID=OWENSW
06/12/2002 HEARING SET AND NOTICE SENT Party: Defendant BYRD, MILFORD WADE Event Scheduled,HEA,24-JUN-2002,10:00, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = OWENSW User ID=OWENSW
06/05/2002 COPIES SENT TO Party: Defendant BYRD, MILFORD WADE SAO SHARON G VOLLRATH,ATTY MARTIN MCCLAIN,ASST ATTY GEN SCOTT BROWN (RDD) User ID=DANIELS
06/05/2002 ORDER Party: Defendant BYRD, MILFORD WADE (AMENDED) DEFENDANT MILFORD BYRD BE RETURNED TO UNION CORRECTIONAL DEATH ROW (RDD) User ID=DANIELS
05/29/2002 ORDER Party: Defendant BYRD, MILFORD WADE SCHEDULING FOR STATUS CONFERENCE AND HUFF HEARING - WO User ID=OWENSW
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 05/22/2002 OPEN User ID=JONESV
05/20/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE ASSA-ASSISTANT STATE ATTORNEY Text: SHARON VOLLRATH Hearing: MOC-2002-05- 20; Motion By: ; Ruling: Ruling Desc: ASSISTANT STATE ATTORNEY
05/20/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE RCR-COURT REPORTER Text: ASHELY HULME- OFFCIAL Hearing: MOC-2002-05-20; Motion By: ; Ruling: Ruling Desc: COURT REPORTER
05/20/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DENP-DEFENDANT NOT PRESENT Text: MARTIN MCCLAIN Hearing: MOC-2002-05- 20; Motion By: ATTY; Ruling: Ruling Desc: DEFENDANT NOT PRESENT
05/20/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE CONT-CONTINUED Text: SR 06-24-02/ HEA EVIDENTAY 07-19-02 Hearing: MOC-2002- 05-20; Motion By: ; Ruling: Ruling Desc: CONTINUED
05/20/2002 CONVERTED MINUTE CODE Party: Defendant BYRD, MILFORD WADE DEFT-DEFENDANT Text: NOT BROUGHT OUT Hearing: MOC-2002-05-20; Motion By: ; Ruling: Ruling Desc: DEFENDANT
MOTION/CLOSED CASE (8:30 AM) (Judicial Officer: Behnke, 05/20/2002 Debra ;Location: COURTROOM 22 2ND FLOOR) MOTN.
05/13/2002 EVENT MODIFIED Party: Defendant BYRD, MILFORD WADE Event Modified,MOC,20-MAY-2002,08:30:00, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = DRAKEB User ID=DRAKEB
05/08/2002 WRIT OF HABEAS CORPUS AD PROSE Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
05/08/2002 2 CERTFIED COPIES TO SAO PROCESS Party: Defendant BYRD, MILFORD WADE User ID=RICHARDSOND
05/03/2002 REOPEN CASE User ID=JONESV
05/03/2002 MOTION CLOSED CASE SET Party: Defendant BYRD, MILFORD WADE Event Scheduled,MOC,20-MAY-2002,08:30, Judge:BEHNKE, DEBRA, Room:CR22, Room Location:NT, User ID = DENTPAM User ID=DENTPAM
05/03/2002 REOPEN MOTION Party: Defendant BYRD, MILFORD WADE CT 1 REOPENED PD User ID=DENTPAM
05/02/2002 REQUEST TO ADD CASE ON DOCKET Party: Defendant BYRD, MILFORD WADE FOR 05-20-02 - MOTION PD User ID=DENTPAM
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DIVISION C CASE SUMMARY CASE NO. 81-CF-010517-A 04/19/2002 SEE DOCKET TEXT Party: Defendant BYRD, MILFORD WADE STATE'S RESPONSE TO DEFENDANT'S SUCCESSIVE MOTION TO VACATE JUDGMENT OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING (RDD) User ID=DANIELS
03/25/2002 MOTION TO VACATE Party: Defendant BYRD, MILFORD WADE JUDGEMENTS OF CONVICTION AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND AND FOR EVIDENTIARY HEARING - WO User ID=OWENSW
01/11/2001 CASE STATUS UPDATED User ID=JONESV
12/18/2000 EVIDENCE LOGGED IN BANNER Party: Defendant BYRD, MILFORD WADE User ID=LOVELACE
08/13/1982 Sentence (Judicial Officer: Ward, Samantha L) 1. 782041 MURDER IN THE FIRST DEGREE (PREMEDITATED) CONVERTED SENTENCING EVENT Charge Reopen Status (01/23/2006, OTHER, 1, Comment: FREOP-REOPEN CASE; ) Charge Reopen Status (03/03/2011, OTHER, 1, Comment: FREOP-REOPEN CASE; ) Confinement (Effective 08/13/1982 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 Charge Reopen Status (08/08/2012, RECLOSED, 1)
08/13/1982 Disposition (Judicial Officer: Ward, Samantha L) 1. 782041 MURDER IN THE FIRST DEGREE (PREMEDITATED) NT - ADJUDGED GUILTY OBTS: Sequence: 1
11/12/1981 INDICTMENT Party: Defendant BYRD, MILFORD WADE User ID=KLAUSG
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P42 Filing # 48436187 E-Filed 11/02/2016 05:57:45 PM
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ATTACHMENT 1
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ATTACHMENT 2
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ATTACHMENT 3
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Filing # 48436187 E-Filed 11/02/2016 05:57:45 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA, Plaintiff, CASE NO. 81-CF-010517
v. MILFORD WADE BYRD, Defendant. ______/
MOTION TO EXCEED PAGE LIMITATION The Defendant, Milford Wade Byrd, by and through undersigned counsel,
respectfully moves this Court to allow him to exceed the page limitation for his successive Rule.
3.851 motion being filed simultaneously with this motion. In support, Mr. Byrd submits as
follows:
1. Mr. Byrd is under a sentence of death. With this motion, Mr. Byrd is filing a
successive motion to vacate his sentence of death pursuant to Rule 3.851.
2. Fla. R. Crim. P. 3.581(e)(2) directs that “a successive motion shall not exceed 25
pages, exclusive of attachments.”
3. Mr. Byrd’s successive motion is 35 pages in length exclusive of attachments, and
44 pages in length with attachments and cover pages. Mr. Byrd’s rule 3.851 motion includes
claims premised upon the January 12, 2016 ruling in Hurst v. Florida, 136 S. Ct. 616 (2016). It is
also premised upon the enactment of Chapter 2016-13, which was enacted on March 7, 2016.
Finally, it is also premised upon the Florida Supreme Court’s October 14, 2016 rulings in Perry
v. State, __ So. 3d __, 2016 WL 6036982, (Fla. 2016) and Hurst v. State, __ So. 3d __, 2016 WL
6036978, (Fla. 2016). The excess in pages is due to sheer significance of the new Florida law,
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and Mr. Byrd must be able to coherently explain the new Florida law and the basis of his claims
arising from it.
4. The procedural, factual, and legal aspects of Mr. Byrd’s claims are complex. This
is particularly true given the size of the record in his case and its lengthy procedural history.
Permitting the filing of a Rule 3.851 motion in excess of the prescribed limitation set forth in the
rules allows Mr. Byrd to fully explain his claim that he is entitled to relief.
WHEREFORE, based on the foregoing, Mr. Byrd requests that this honorable 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 true and correct copies of the foregoing motion have
been electronically furnished to Scott Browne, Assistant State Attorney General, and Jay Pruner,
Assistant State Attorney, on this 2nd day of November 2016.
Respectfully Submitted,
/s/ Martin J. McClain MARTIN J. MCCLAIN Fla. Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law TH 141 N.E. 30 Street Wilton Manors, FL 33334 (305) 984-8344 [email protected] COUNSEL FOR MR. BYRD
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Filing # 49194632 E-Filed 11/22/2016 11:19:10 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
STATE’S RESPONSE TO DEFENDANT’S SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES
COMES NOW, The State of Florida, by and through undersigned
counsel, and hereby responds to the Successive Motion to Vacate
Judgment of Conviction and Sentence filed in the above-styled
cause. The State respectfully submits that the motion must be
dismissed as untimely and/or denied as meritless, and states the
following:
BACKGROUND AND PROCEDURAL HISTORY
Milford Byrd was sentenced to death for the 1981 murder of
his wife, Debra. In his direct appeal, Byrd raised the following
guilt phase issues: (1) his confession was erroneously admitted
because it was not shown to have been voluntarily given and
because it was the fruit of an unlawful, warrantless arrest at
his residence without compliance with Florida's knock-and-
announce statute, section 901.19(1), Florida Statutes (1981); (2)
evidence obtained from the warrantless search of a storeroom was
improperly admitted since the consent to search was not
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voluntarily given; (3) the consideration promised to a key state
witness was not fully disclosed to the jury; and (4) the trial
court failed to grant a mistrial based on the prosecution's
improper cross examination of a witness.
Regarding the sentencing phase, Byrd raised the following
five issues: (1) failed to instruct the jury on all statutory
aggravating circumstances and only gave those supported by the
evidence; (2) erroneously found that the homicide was committed
for pecuniary gain; (3) erroneously found that the murder was
heinous, atrocious, and cruel; (4) erroneously considered, as
nonstatutory aggravating circumstances, the appellant's lack of
remorse and his continued danger to the community; and (5) failed
to appropriately discuss, in the sentencing order, the
nonstatutory mitigating factors, indicating that the trial judge
failed to consider such evidence in the penalty phase. The
Florida Supreme Court affirmed Byrd’s conviction and sentence.
Byrd v. State, 481 So. 2d 468 (Fla. 1985). Byrd filed a Petition
for Writ of Certiorari to the United States Supreme Court, which
was denied. Byrd v. Florida, 106 S. Ct. 2261 (1986).
In his first post-conviction motion, Byrd raised seventeen
issues, eleven of which the Florida Supreme Court found
procedurally barred because they either were or could have been
raised on direct appeal. Byrd v. State, 597 So. 2d 252, 254 (Fla.
1992).
2
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The procedurally barred claims included:
(1) whether Byrd was convicted on the basis of evidence obtained in violation of his constitutional rights and his invocation of his right to silence was ignored and a confession was coerced from him and used against him because his counsel failed to present the proper facts; (2) whether Byrd was convicted and sentenced on the basis of statements obtained in violation of his constitutional rights; (3) whether Byrd's constitutional rights were violated when law enforcement officers entered his home without a warrant to effectuate his arrest; (4) whether the exclusion of critical evidence rendered Byrd's sentence of death fundamentally unreliable; (5) whether Byrd was improperly denied his right to cross-examine key State witnesses on matters that would have undermined their credibility; (6) whether the trial court unconstitutionally shifted the burden of proof by its sentencing instructions; (7) whether the jury's sense of responsibility for sentencing was diluted by the court's instructions and counsel's arguments; (8) whether the jury instructions regarding aggravating factors perverted the sentencing phase, resulting in the arbitrary and capricious imposition of the death penalty; (9) whether the jury instructions regarding nonstatutory aggravating factors perverted the sentencing phase resulting in the arbitrary and capricious imposition of the death penalty; (10) whether the presentation of victim-impact testimony denied Byrd's rights to a fundamentally fair and reliable capital sentencing; and (11) whether failure to consider nonstatutory mitigating factors violated Byrd's rights.
The court addressed the merits of the remaining claims using
the following four headings: (1) whether Byrd was deprived of his
due process rights and a fair trial when he was prosecuted by an
assistant state attorney with a personal, familial, and financial
interest in obtaining a conviction, as well as his claim that he
was deprived of a fair trial as a result of the State's
nondisclosures; (2) whether the jury was misled about its
3
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function at the sentencing phase; (3) whether Byrd received
ineffective assistance of counsel; and (4) whether the State
withheld exculpatory evidence. The court affirmed the denial of
post-conviction relief.
Three years later, in 1995, the Florida Supreme Court denied
Byrd’s Petition for Writ of Habeas Corpus. Therein, Byrd raised
the flowing issues: (1) law enforcement officers violated Byrd's
right to remain silent; (2) his appellate counsel was ineffective
for failing to raise a number of issues on appeal; (3) in light
of new evidence, his conviction has been undermined and his
sentence is disproportionate; and (4) his rights were violated
due to his counsel's lack of adequate time and funds. The court
found that “[i]ssues (1), (3), and (4) are procedurally barred
because they were not raised at the appropriate time; issue (1)
should have been raised on direct appeal; issue (3) should have
been raised in a rule 3.850 motion; and issue (4) should have
been raised in Byrd's appeal of his rule 3.850 motion.” Byrd v.
Singletary, 655 So. 2d 67, 68 (Fla. 1995). The court rejected
Byrd’s argument to reconsider issue one in light of Jacobs v.
Singletary, 952 F.2d 1282 (11th Cir. 1992). Further, the court
rejected as non-meritorious issue two and its multiple sub-claims
alleging ineffective assistance of appellate counsel. Byrd v.
Singletary, 655 So. 2d 67, 68 (Fla. 1995)
In 2009, the Florida Supreme Court affirmed the denial of
4
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Byrd’s successive motion for post-conviction relief. The claims
raised in that motion were: (1) he was deprived of due process
when the State maintained inconsistent positions regarding
Sullivan's credibility in different proceedings; (2) newly
discovered evidence demonstrates that he was deprived of due
process when the State either presented false or misleading
evidence, or withheld material exculpatory evidence, and he
received ineffective assistance of counsel; and (3) the trial
court failed independently to weigh the sentencing factors in
sentencing him to death. Byrd v. State, 14 So. 3d 921, 924 (Fla.
2009).
In 2013, the order denying Byrd’s second successive
summarily denied motion was likewise affirmed. The Florida
Supreme Court found that the issues raised were procedurally
barred and that the motion was unauthorized. Byrd v. State, 118
So. 3d 807 (Fla. 2013) (unpublished). In that motion, Byrd argued
(1) the Court should reconsider its decision in Walton v. State,
77 So.3d 639 (Fla. 2011), because failure to apply Porter v.
McCollum, 559 U.S. 30 (2009), retroactively to his sentence of
death violates the Sixth and Eighth Amendments, Furman v.
Georgia, 408 U.S. 238 (1972), and the Fourteenth Amendment; and
(2) Porter applies retroactively to Byrd's claims of ineffective
assistance of counsel as well as claims under Brady v. Maryland,
383 U.S. 83 (1963), because the same analysis applies to the
5
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prejudice prong of a claim under Strickland v. Washington, 466
U.S. 668 (1984), and the materiality prong of a Brady claim.
On November 2, 2016, Byrd filed the instant “Successive
Motion to Vacate Judgments of Conviction and Sentence.” This is
Byrd’s third successive post-conviction motion to vacate.
Byrd’s successive motion is time-barred:
Rule 3.851(d)(1), Florida Rule of Criminal Procedure, bars a
post-conviction motion filed more than one year after a judgment
and sentence are final. Byrd’s judgment and sentence became final
in 1986 when the Supreme Court denied certiorari after his
conviction and sentence were affirmed on direct appeal. 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”).
Additionally, Byrd’s third successive motion does not meet
any exception to the time-limits of Rule 3.851. Rule 3.851(d)(2)
provides that “No motion shall be filed or considered pursuant to
this rule if filed beyond the time limitation provided in
subdivision (d)(1).” An exception to this rule permits otherwise
untimely motions if “the fundamental constitutional right
asserted was not established within the period provided for in
subdivision (d)(1) and has been held to apply retroactively.”
Fla. R. Crim. P. 3.851(d)(2)(B).
As will be discussed in further detail later in this
6
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response, Byrd’s successive Rule 3.851 motion fails to meet this
test.
CLAIM I MR. BYRD’S DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLORIDA AND SHOULD BE VACATED.
Byrd attempts to avoid the rule’s time bar by arguing that
Hurst1 should be applied retroactively. The language of the rule
itself exposes the fallacy of this argument. The rule excuses
motions filed after the one-year time limitation if the
constitutional right asserted was not established within the time
prior provided for in the rule, and “has been held to apply
retroactively.” (emphasis added). Neither the United States
Supreme Court nor the Florida Supreme Court had held that Hurst
applies retroactively.
Additionally, considering Hurst is an extension of Apprendi2
and Ring,3 both of which have been found not to be retroactive,
it is unlikely Hurst will be given retroactive application.
Hughes v. State, 901 So. 2d 837 (Fla. 2005); Johnson v. State,
904 So. 2d 400 (2005). Assuming the Florida Supreme Court remains
faithful to its Witt analysis as discussed in both Johnson and
Hughes, Hurst will not be given retroactive effect. Witt v.
State, 387 So. 2d 922, 925 (Fla. 1980).
1 Hurst v. Florida, 136 S. Ct. 616 (2016) 2 Apprendi v. New Jersey, 530 U.S 466 (2000) 3 Ring v. Arizona, 536 U.S. 584 (2002)
7
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In Witt, the Florida Supreme Court provided a framework for
determining whether a change in decisional law should be applied
retroactively. The court held that such changes should not be
applied retroactively unless the change 1) emanates from this
Court or the United States Supreme Court; 2) is constitutional in
nature, and 3) constitutes a development of fundamental
significance. Id. at 931. Hurst meets the first two prongs of the
Witt test. The relevant question becomes, then, whether the
decision constituted a development of fundamental significance.
Developments of fundamental significance are those that
either place beyond the authority of the state the power to
regulate certain conduct or impose certain penalties or are of
sufficient magnitude to necessitate retroactive application as
determined by the three-part test provided in Stovall v. Denno,
388 U.S. 293 (1967) and Linkletter v. Walker, 381 U.S. 618
(1965). The Stovall/Linkletter-test requires consideration of the
following three factors: first, a consideration of the purpose to
be served by the rule; second, the extent of the reliance on the
old rule; and, third, the effect retroactive application of the
rule on the administration of justice. Witt, 387 So. 2d at 926.
Like Apprendi and Ring, Hurst does not place beyond the
authority of the state the power to impose a certain penalty, in
this case the death penalty. See Johnson, 904 So. 2d at 409
(stating, “Ring does not fall within the first category because
8
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it does not prohibit the government from criminalizing certain
conduct or imposing certain penalties.”). Therefore, the court
would turn to the three part Stovall/Linkletter test.
In Johnson, the Florida Supreme Court found that Ring was
not a substantive change to the law but, rather, was a
“prototypical procedural rule” regulating the manner in which
culpability is determined but does not alter the range of conduct
or class of persons that the law punishes. Johnson, 904 So. 2d at
409 quoting Schriro v. Summerlin, 524 U.S. 348, 353 (2004).
Significantly, Ring did not turn on the “relative rationality,
fairness, or efficiency of potential factfinders.” The decision
in Ring is not a condemnation of judicial fact-finding nor is it
an endorsement of superiority of jury fact-finding. Summerlin,
524 U.S. 355.
The Florida Supreme Court also found that the reliance on
Florida’s capital sentencing scheme was “immeasurably large” and
entirely in good faith. Both the Florida Supreme Court and the
United States Supreme Court had upheld Florida’s capital
sentencing scheme for years. “This reliance is an important
factor in weighing against retroactive application . . . .”
Johnson, 904 So. 2d at 411.
Finally, the Florida Supreme Court recognized that the
effect on the administration of justice that retroactive
application of Ring would have weighed heavily against
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retroactive application. “The retroactive application of Ring in
Florida would require reconsideration of hundreds of cases to
determine whether a new penalty phase is warranted. This
reconsideration alone would be a major undertaking.” Johnson, 904
So. 2d at 411. Further, the court stated:
Resentencing hearings necessitated by retroactive application of Ring would be problematic. For prosecutors and defense attorneys to reassemble witnesses and evidence literally decades after an earlier conviction would be extremely difficult. We fear that any new penalty phase proceedings would actually be less complete and therefore less (not more) accurate than the proceedings they would replace.
Id.
Hurst, being the application of Ring to Florida’s sentencing
scheme, is no more a substantive change then was Ring. Hurst does
not alter the range of conduct subject to the death penalty nor
does it affect a class of persons that the law punishes. Hurst is
not a commentary on the superiority of jury findings of fact. It
is a decision regarding who makes factual determinations
regarding aggravating circumstances that permit the state to
impose death as a punishment.
Additionally, reliance on Florida’s pre-Hurst sentencing
scheme was in good faith and retroactive application would
“undermine the perceived and actual finality of criminal
judgments and would consume immense judicial resources without
any corresponding benefit to the accuracy or reliability of the
penalty phase proceedings.” Johnson, 904 So. 2d at 412.
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Therefore, under a Witt analysis, Hurst should not be
retroactively applied.
Hurst was not the “jurisprudential tectonic shift” that Byrd
claims. Moreover, merely asserting that a decision consists of a
“fundamental change” does not lead to the conclusion it should be
applied retroactively – as Byrd seems to argue. Further, Byrd’s
reliance on Falcon v. State, 162 So. 3d 954 (Fla. 2015) is
misplaced. In Falcon, the Florida Supreme Court determined that
the United States Supreme Court’s decision in Miller v. Alabama,
which precluded mandatory life sentences for juvenile murderers,
was a change in law that “place[d] beyond the authority of the
state the power to regulate certain conduct or impose certain
penalties.” Because life without parole was the only available
sentence and was mandatory for 20 years prior to the Miller
decision, “considerations of fairness and uniformity” required
retroactive application to these “indistinguishable cases.”
Falcon, 162 So. 3d at 962. Notably, the court held the
appropriate remedy for Miller violations was individualized
sentencing where statutorily-enumerated and other pertinent
factors should be considered. Something adult capital murderers
have already received. Individualized sentencing proceedings
render death penalty cases distinguishable from one another;
therefore, “considerations of fairness and uniformity” do not
require retroactive application of Hurst.
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Byrd’s contention that harmless error “can never be shown by
the State” is both legally and factually incorrect. First, unlike
a direct appeal where the State has the burden to prove beyond a
reasonable doubt that any alleged error was harmless, in post-
conviction proceedings it is the movant who must show harmful
error.
Second, in this case, despite Byrd’s tortured interpretation
of the verdict form, the jury unanimously recommended death. The
State presented two aggravating factors: the murder was heinous
atrocious and cruel, and was for pecuniary gain. In the direct
appeal the court presented the facts supporting both aggravators:
Appellant and his wife, Debra, managed a motel in Tampa. Debra's body was found on the floor of the motel office at approximately 7:00 a.m. on October 13, 1981. An autopsy revealed that Debra had suffered four non- fatal scalp lacerations, four non-fatal gunshot wounds, and scratches and bruises on the neck. The pathologist determined that the cause of death was strangulation and that death had occurred between 9:00 p.m. on October 12 and 3:00 a.m. on October 13. During interrogation on the morning of October 13, appellant told police that, on the night of the murder, he had gone to a gym and then to two bars. He stated that he returned home to the motel around 6:45 a.m., found his wife's body and called the police. Later that morning appellant requested that a desk clerk at the motel contact a life insurance company with reference to an insurance policy on Debra's life. Appellant was the sole beneficiary of the $100,000 policy. Five days later, on October 19, appellant personally carried a copy of Debra's death certificate to the insurance company and twice inquired as to how long settlement of the policy claim would take.
… When questioned about the murder, appellant stated that he had fallen in love with his girlfriend and that his wife had denied his request for a divorce. He confessed that he had offered Sullivan and Endress, 12
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Sullivan's roommate at the motel, five thousand dollars apiece to murder his wife. He also stated that the murder was planned to look like a robbery. Appellant denied, however, that he was present when the murder occurred. After this initial confession, appellant requested permission to use the telephone in the homicide squad room to call his father. Three police officers overheard this conversation and testified that appellant informed his father that, although he had not committed the murder, he had had it done.
Byrd v. State, 481 So. 2d 468, 469 (Fla. 1985).
The jury in his 1981 trial recommended death and indicated
on the advisory form that its recommendation was “by a majority
of 12.” Byrd concludes that this means not that “all twelve
jurors voted for death. It merely means that at least seven
jurors voted in favor of death.” Simply looking at the form
controverts this claim. The form leaves a blank space for the
foreman to fill in what the vote was. In fact, they were
instructed “If a majority of the jury determine that the
defendant should be sentences to death, your advisory verdict
will be ‘A majority of the jury, by a vote of, advise and
recommend to the Court that it impose the death penalty upon the
defendant.” See Attachment A. If Byrd’s interpretation of the
form were correct there would be no need to even include the
blank space for the foreman to fill in. The number would always
be 12. The only reasonable interpretation of the advisory form is
that all 12 jurors recommended a sentence of death.
Additionally, considering Byrd’s confession, and his conduct
as it related to the victim’s life insurance policy, any
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reasonable jury would unanimously find that the murder was
committed for pecuniary gain. Similarly, as noted by the Florida
Supreme Court in Byrd’s direct appeal, “Sullivan, appellant's
codefendant, testified that the appellant participated in the
murder, and the record is unrefuted that the victim sustained
four gunshot wounds and four deep scalp lacerations, none of
which were fatal. After suffering these wounds, the victim
ultimately died from strangulation. All of these circumstances
justify the finding that this murder was heinous, atrocious, and
cruel.” Byrd, 481 So. 2d at 474.
Byrd is not entitled to an evidentiary hearing on this claim
as it is purely a question of law related to the non-
retroactivity of a United States Supreme Court decision.
CLAIM II MR. BYRD’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDER HURST V. STATE AND, THEREFORE, SHOULD BE VACATED.
This claim is also time-barred and does not fall within the
rule’s time limitations exception. The Florida Supreme Court’s
expansion of the issue on remand in Hurst to include an Eighth
Amendment analysis has not been held to be retroactive.
In this claim Byrd again relies on his “12 does not mean 12”
argument to assert that his death sentence violates the Eighth
Amendment. Byrd also asserts that he “is entitled to Rule 3.851
relief, and his death sentence must be vacated with a life
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sentence substituted in its place” because he falls within a
class that society’s evolving standards of decency has concluded
to be ineligible for [a] death sentence.”
Respondent relies on the argument made in response to Claim
I with regard to the “majority of 12” argument. As to Byrd’s
argument that he now belongs to some protected class of
individuals that the death penalty cannot reach he is simply
wrong. There is nothing in the United States Supreme Court
decision in Hurst, or the Florida Supreme Court’s Hurst4 and
Perry5 decisions that renders Byrd ineligible for death. As
previously noted, Byrd’s penalty-phase jury unanimously
recommended death.
Furthermore, there is nothing in the record to support the
proposition that the jury’s responsibility in rendering and
advisory verdict was assailed or diminished. The jury knew and
understood their great responsibility in reviewing the evidence
and determining whether to recommend death. Other than in cases
were a defendant is within a class of people for whom the death
penalty is not an option – juveniles, intellectually disabled,
those who commit crimes short of murder - the only limit the
Eighth Amendment places on the imposition of the death penalty is
that the penalty cannot be imposed in an arbitrary or capricious
4 Hurst v. State, 41 Fla. L. Weekly S433 (Fla. Oct. 14, 2016) 5 Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016) 15
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manner. It is reserved for the most aggravated and least
mitigated of crimes.
The Florida Supreme Court recognized that the United States
Supreme Court has never held that a death recommendation must be
unanimous. The state supreme court, though, felt that unanimity,
going forward, would help “perform a narrowing function to ensure
that the death penalty is not being arbitrarily or capriciously
imposed.” Capital defendants, like Byrd, are afforded an
individualized sentencing proceeding in which aggravating and
mitigating circumstances were presented to the jury. Byrd’s jury
unanimously recommended death. There is no evidence that the
voice of the minority juror was disregarded or that the jury
arbitrarily and capriciously rendered its recommendation. Based
on the facts of this case, any reasonable jury would have
unanimously recommended death had it been instructed that
unanimity was required.
Byrd suggests that unless each juror knows that he or she
“wields the power to defeat the wishes of every other juror
simply by voting to spare the defendant his life” renders a jury
recommendation, even a unanimous one, in violation of the Eighth
Amendment and Caldwell v. Mississippi, 472 U.S. 320 (1985). This
statement presumes much and is not supported by the law. Knowing
one has the “power to defeat the wishes of every other juror”
does nothing to enhance the jury’s deliberative process or ensure
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reliable sentencing recommendations. The Florida Supreme Court
brushed off concerns that requiring unanimity would “allow a
single juror, who for personal reasons would under no
circumstances vote to impose capital punishment, to derail the
process of meaningful jury deliberations . . .” Hurst v. State,
41 Fla. L. Weekly S433 (Fla. Oct. 14, 2016). Yet it seems that
Byrd is suggesting an instruction to that effect is necessary.
An evidentiary hearing is unnecessary to resolve this claim.
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. BYRD'S PREVIOUSLY PRESENTED NEWLY DISCOVERED EVIDENCE CLAIM, HIS PREVIOUSLY PRESENTED BRADY CLAIMS AND HIS PREVIOUSLY PRESENTED STRICKLAND CLAIMS. THE NEW LAW, DUE PROCESS PRINCIPLES, AND THE EIGHTH AMENDMENT ALL REQUIRE THIS COURT TO REVISIT MR. BYRD'S 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 RESENTENCING, AND WHEN THE PROPER ANALYSIS IS CONDUCTED IT IS CLEAR THAT IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD RESULT, RULE 3.851 IS REQUIRED.
While Byrd casts his request for relief as a successive
motion filed pursuant to Florida Rule of Criminal Procedure
3.851, it is effectively a motion asking this Court to reconsider
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the same facts alleged in his previously-filed successive motion,
but applying law that did not exist at the time this Court’s
Order was rendered. The rules do not authorize this Court to
revisit an identical factual claim merely because of a
subsequent, non-retroactive change in the law.
Byrd contends that because he seeks a new sentencing
hearing, the validity of his present conviction must be tested by
viewing it in terms of whether he would receive the same sentence
under the revised capital sentencing statute. This procedure, he
contends, is mandated because of the cumulative analysis required
under Hildwin v. State, 141 So. 3d 1178 (Fla. 2014) and Swafford
v. State, 125 So. 3d 760 (Fla. 2013). Neither case addresses the
circumstance presented here, however, where the law governing
sentencing procedures has been revised.
Moreover, the State is unaware of any case authorizing
application of non-retroactive changes in the law that took
effect after the defendant’s conviction became final. Indeed,
this Court previously rejected Byrd’s assertion to that effect.
To the contrary, neither Hildwin nor Swafford address the
propriety of applying non-retroactive changes in the law.
Instead, both cases focus on the quantum of newly discovered
factual evidence that should be considered in assessing the
validity of the defendant’s detention.
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It is significant that Byrd cites no case law to support his
claim that such an approach is mandated. To the contrary, if
Byrd’s position is correct, it would effectively eviscerate both
Witt and Rule 3.851(d)(2)(B)’s retroactivity requirement. Byrd
provides no legal support for his position that the revised
statute has any retroactive effect; he merely asserts that it
“obviously” should be considered as part of the cumulative
analysis. Byrd’s position, however, is flawed.
The Florida Supreme Court has never required the procedure
espoused by Byrd. Indeed, incorporating all subsequent changes in
the law into the cumulative analysis required under Hildwin
sidesteps the retroactivity rules as well as the procedural
requirements of Jones v. State, 591 So. 2d 911 (Fla. 1991). Under
Jones, the trial court is required to weigh both the newly
discovered evidence and the evidence which was introduced at the
trial; in reaching its decision, the court must assess “whether
such evidence, had it been introduced at the trial, would have
probably resulted in an acquittal.” Id. at 916. Clearly, the
focus under Jones is what the jury that heard the original trial
would have done. Thus, the correct analysis is whether the
defendant’s newly discovered facts, when viewed through the lens
of the defendant’s jury, under the correct law in effect at the
time of the defendant’s trial, would have produced an acquittal.
The instant motion merely seeks to apply a new and non-
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retroactive legal rule; it should be summarily dismissed as
untimely and unauthorized. Waterhouse v. State, 82 So. 3d 84, 91
(Fla. 2012). To do otherwise would effectively render all
subsequent statutory changes retroactive. Moreover, Byrd’s
proposed procedure would unnecessarily and improperly cast doubt
on the integrity of the original trial proceeding and improperly
limit the State’s legitimate interest in maintaining finality of
judgment. Witt v. State, 387 at 929.
No evidentiary hearing is necessary to resolve this claim.
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CONCLUSION
In conclusion, this motion is untimely and does not satisfy
any exception to the rule’s time limits. Further, the issues
raised are without merit. This Court should dismiss the motion.
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL
/s/ Marilyn Muir Beccue MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Office of the Attorney General 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: 813-287-7910 Facsimile: 813-281-5501 [email protected] [and] [email protected]
COUNSEL FOR STATE OF FLORIDA
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd day of November, 2016, I
electronically 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: Martin J. McClain, Esquire,
McClain & McDermott, P.A., 141 N.E. 30th Street, Wilton Manors,
33334, [email protected]; Jay Pruner, Assistant State
Attorney, Office of the State Attorney, 419 N. Pierce Street,
Tampa, Florida 33602, [email protected] and
[email protected]; Honorable Susan Sexton, Circuit Judge,
Criminal Courthouse Annex, 401 N. Jefferson Street, Tampa,
Florida 33602, [email protected].
s/ Marilyn Muir Beccue Counsel for State of Florida
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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
Attachment A
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Filing # 53670953 E-Filed 03/13/2017 11:55:13 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, CASE NO. 81-CF-010517
v. MILFORD WADE BYRD, Defendant. ______/ AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH The Defendant, MILFORD WADE BYRD, by and through undersigned counsel,
respectfully moves this Court for an order vacating and setting aside his death sentence pursuant
to Florida Rule of Criminal Procedure 3.851, and, in the alternative, for an order pursuant to
Florida Rule of Criminal Procedure 3.800(a) correcting his illegal death sentence.1 In support of
this motion, Mr. Byrd states:
1. On October 13, 1981, Debra Byrd, the wife of Mr. Byrd, was killed in the office
of the Econo Travel Motor Lodge in Tampa, Florida, which. Mr. Byrd and his wife managed.
2. The police were aware that a night auditor, Benjamin Parry, was robbed at
gunpoint at a nearby Ramada Inn on September 26, 1981. Mr. Parry identified Ronald Sullivan
as the man who robbed him at gunpoint at the Ramada Inn. Mr. Sullivan and Mr. Endress were
residing at the Econo Travel Motor Lodge. As a result, Mr. Sullivan and Mr. Endress became
suspects in Mrs. Byrd’s homicide.
3. On November 12, 1981, Mr. Byrd—along with Mr. Sullivan and James
Endress—was indicted for first degree murder. The State’s theory before the grand jury was that
1 The following symbols will be used to designate references to the record in previous appeals. References to the direct appeal record are cited as “(R. #).” References to the initial state postconviction record are cited as “(PCR. #).” References to the first successive postconviction record shall be cited as “(PCR2. #).” All other citations will be self-explanatory or will be otherwise explained.
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Mr. Byrd hired Mr. Sullivan and Mr. Endress to kill his wife even though police were aware of
conflicting information, namely that Mr. Endress told Debra Williams that he and Mr. Sullivan
murdered Mrs. Byrd during a robbery. The State’s theory further alleged that the murder took
place while Mr. Byrd was at a bottle club.
4. On January 6, 1982, the State filed its Notice of Discovery. In this notice, the
State said “Co-defendant Sullivan made statement to: det. R.J. Reynolds.” Mr. Sullivan’s fifty-
one page statement to Det. Reynolds was made on October 28, 1981. There was no notice of any
other statements by Mr. Sullivan.
5. On January 7, 1982, the Florida Parole Commission held a preliminary hearing on
an alleged parole violation by Mr. Sullivan, who was on parole due to a 1978 burglary
conviction in Pinellas County. The issue in the hearing related to the allegation that Mr. Sullivan
robbed Benjamin Parry on September 26, 1981. While acting pro se, Mr. Sullivan called Mr.
Endress as a witness. After answering some questions, Mr. Endress declined to answer further
questions on the advice of counsel. Thereafter, Mr. Sullivan called Regina Schiemelfining to
testify that they had spent the night of the robbery together at Mr. Endress’ house.
6. In April of 1982, Mr. Sullivan pled to second degree murder as to Debra Byrd’s
homicide and received probation in return for his agreement to testify against Mr. Byrd. After
the plea deal was final, Mr. Sullivan gave the prosecutors a sworn statement on April 19, 1982,
in which he claimed that Mr. Byrd hired him and Mr. Endress to kill his wife. The pending
armed robbery charge and a grand theft charge against Mr. Sullivan were dropped; however, Mr.
Byrd’s jury was not advised that the State dropped these charges in exchange for Mr. Sullivan’s
testimony. That same month, Willie Love, who was in jail with Mr. Sullivan, gave a deposition
in which he testified that Mr. Sullivan stated: “I killed the bitch, but I won’t get any time. I’ll get
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probation.” Mr. Love was never called to testify, but there was a reference made in court to
Sullivan’s statement to him.
7. At voir dire in Mr. Byrd’s trial, the State told the jury that its role as in a penalty
phase was “advisory only,” “not binding upon the judge,” and could be accomplished by a
“majority vote.” (R. 30).
8. At Byrd’s trial, Mr. Sullivan testified that the statements he gave on October 13
and October 28 were false. He then indicated that he made no further statements until the one
given on April 19, after he had been given probation. Manuel Lopez, the lead prosecutor at the
guilt phase, gave the guilt phase closing and advised the jury that the deal was entered with Mr.
Sullivan “before he told the State Attorney’s office anything.” Mr. Lopez Stated: “If Mr.
Sullivan had told Mr. Ober and myself, ‘I did it guys, Wade Byrd didn’t have anything to do
with it,’ we would have been bound by those please negotiations.” The jury returned a verdict of
guilty on July 23, 1982 for first degree murder.
9. The penalty phase began on July 27, 1982. The jury was instructed as follows:
The final decision as to what punishment shall be imposed rests solely with the judge of this court. However, the law requires that you, the jury, render to the court an advisory sentence as to what punishment should be imposed to the defendant.
(R. 1301) (emphasis added). The jury was also instructed that “it is not necessary that the
advisory sentence of the jury be unanimous. Your decision may be made by a majority of the
jury.” (R. 1347). The jury returned an advisory sentence of death. The verdict form read that by
a “majority of 12" the jury recommended a death sentence. The breakdown of how the 12 jurors
voted was not indicated. All that was revealed was that there was some sort of vote and that a
“majority of 12" voted to return a death recommendation. On August 13, 1982, Mr. Byrd was
sentenced to death by the judge.
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10. Before the sentencing order was filed, Mr. Lopez, one of the prosecuting
attorneys, wrote the Florida Parole Commission. In that letter, he requested that Mr. Sullivan be
reinstated on parole. Mr. Lopez’s correspondence was dated September 14, 1982. Therein, Mr.
Lopez noted that Mr. Sullivan pled to second degree murder, the armed robbery charge
concerning Benjamin Parry had been dropped, and that the State would not pursue another
charge for grand theft.
11. As stated earlier, Mr. Sullivan pled guilty on April 19, 1982. At Mr. Byrd’s trial,
Mr. Byrd’s defense counsel inquired Mr. Sullivan whether he made any other statements to
police between October 28, 1981 and April 19, 1982, the day he pled guilty. (R. 438). Mr.
Sullivan denied having had any other conversations with law enforcement during that period of
time; however, this was not accurate. In fact, Mr. Sullivan spoke with the police on December
17, 1981. Therein, it was reported by Det. Carter that Mr. Sullivan had advised the detective that
he could give them “Wade [Byrd] and [E]ndress really good.” The State did not correct Mr.
Sullivan’s testimony and advise the judge and the jury that Sullivan had spoken to the police on
December 17, 1981 and indicated that he could give them Mr. Byrd “really good” months before
the plea deal to probation was offered. The omission of the December 17, 1981 statement from
Sullivan’s testimony is particularly significant not only because it adversely affected Mr. Byrd
but also because the prosecution at Mr. Byrd’s trial maintained that the plea was given to Mr.
Sullivan before it knew that Mr. Sullivan would inculpate Mr. Byrd. (R. 382-83). Thus, the State
used Mr. Sullivan’s erroneous omission to assert that Mr. Sullivan was given the deal without
knowing that he would incriminate Mr. Byrd. The prosecution stated that Mr. Sullivan could
have denied Mr. Byrd’s involvement altogether on the stand and that the State would nonetheless
be obligated to afford Mr. Sullivan parole. (R. 1206-07). At a 1989 postconviction evidentiary
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hearing on the Brady claim arising from the non-disclosure of this police report, Mr. Lopez
conceded that Mr. Sullivan’s testimony was “inconsistent” with the December 17, 1981 police
report and that he “hoped to god” that Mr. Sullivan and defense counsel were given copies of the
December 17th police report.2 (PCR. 91). Consequently, either due to ineffective assistance by
defense counsel or a Brady/Giglio violation by the prosecution, the jury did not learn that,
contrary to the State’s assertion, the State knew Mr. Sullivan would give the State Mr. Byrd
before offering Mr. Sullivan probation for his role in the murder. Mr. Sullivan had reason to give
false testimony against Mr. Byrd, as he was delivering on his December 17, 1981 promise.
12. During the period of time that the State was deciding which codefendant it should
enter into plea negotiations, the prosecuting attorney, Mark Ober, referred the victim’s sister,
Linda Latham, to an attorney who was related to him —his brother-in-law, James LaRussa. This
was after Ms. Latham had indicated that she went to obtain the proceeds from the life insurance
policy that had been taken out on Mrs. Byrd. Under the policy, Mr. Byrd was the beneficiary.
After the guilty verdict was obtained, Mr. LaRussa on behalf of Ms. Latham collected the
proceeds ($100,000) from Mrs. Byrd’s life insurance policy because Mr. Byrd’s had been
convicted and could not be the beneficiary. After Mr. LaRussa used Mr. Byrd’s first degree
murder conviction to gain the insurance benefits for Ms. Latham, he collected a $16,000
contingency fee simply. He then gave Mr. Ober ten percent of that contingency fee as, what he
2 In addition, the State put forward false and misleading argument to the jury that was used to obtain a death recommendation against Mr. Byrd, as the State asserted that its case against Mr. Sullivan was a “weak” as a justification for why Mr. Sullivan got probation for his participation in a first degree murder, while the State sought a death sentence against Mr. Byrd. See (R. 1331- 32). However, the State did not acknowledge that Mr. Sullivan had “confessed” to other inmates of his participation in the murder during that time. (R. 1559, 1587-88) (showing the State was aware of Mr. Love’s statement discussed infra). 5
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labeled, a gift.3 Mr. Ober has since testified that he recommended Mr. LaRussa to Ms. Latham
due to a feeling of familial and financial indebtedness to Mr. LaRussa, as Mr. LaRussa assisted
him financially while he attended law school. At an evidentiary hearing, Mr. Ober described the
mutual financial indebtedness and familial duty that Mr. LaRussa and Mr. Ober felt for each
other. However, DR 2-103 of the Code of Professional Responsibility which was in effect at that
time provided:
[A] lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client. As anyone who has made it through law school knows, Linda Latham, armed with a criminal
conviction against Mr. Byrd or even just Mr. Sullivan’s sworn testimony, stood to collect the
proceeds of the insurance policy, i.e. $100,000. It was obvious that her attorney would likely
earn a large contingency fee. Certainly, Mr. Ober knew this when recommending Mr. LaRussa to
Ms. Latham, and he also knew this when giving Mr. Sullivan probation on a murder charge in
exchange for his testimony against Mr. Byrd.
13. In 1985, the Florida Supreme Court denied Mr. Byrd’s direct appeal. Byrd v.
State, 481 So.2d 468 (Fla. 1985).4 The US Supreme Court denied Mr. Byrd’s petition for writ of
3 The life insurance policy on Mrs. Byrd’s life was a feature of the case as Mr. Byrd’s alleged motive to kill his wife. 4 Therein, he argued: (1) the trial court erred in admitting testimony relating to Mr. Byrd’s initial confession since the State failed to prove voluntariness; (2) the trial court erred in admitting testimony relating to Mr. Byrd’s initial confession because it was the fruit of an unlawful arrest made upon intrusion into his home without a warrant; (3) the trial court erred in admitting testimony related to Mr. Byrd’s initial confession because the confession was the fruit of an unlawful arrest due to the State’s violation of Florida’s knock and announce statute; (4) the trial court erred in admitting testimony related to Mr. Byrd’s second confession; (5) the trial court erred in admitting the fruit of a warrantless search of a storage room because consent was not voluntarily given; (6) constitutional error occurred when the State allowed a witness to go uncorrected thereby putting forward false testimony; (7) trial court erred in denying a mistrial after the prosecutor improperly impeached a witness; (8) trial court erred in giving jury 6
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certiorari in May of 1986. Byrd v. Florida, 476 U.S. 1153 (1986).
14. In 1992, the Florida Supreme Court affirmed the denial of Mr. Byrd’s motion for
postconviction relief under Fla. R. Crim. P. 3.850.5 Mr. Byrd initially petitioned for the writ of
habeas corpus in federal court in 1992. The district court dismissed his petition without prejudice
to permit exhaustion of Byrd’s state claims. See Byrd v. Singletary, 8:92–cv–1042–T–23 (M.D.
Fla. 1992). In 1995, the Florida Supreme Court affirmed the denial of Mr. Byrd’s state petition
for the writ of habeas corpus. Therein, he had argued that (1) law enforcement officers violated
his right to remain silent; (2) his appellate counsel was ineffective for failing to raise a number
instructions on only aggravating circumstances; and (9) the trial court erred in sentencing Mr. Byrd to death because the weighting process included inapplicable aggravating circumstances, excluded existing mitigating circumstances, and considered nonstatutory aggravating circumstances.
5 Therein, Mr. Byrd raised the following issues: (1) whether Mr. Byrd was convicted on the basis of evidence obtained in violation of his constitutional rights, his invocation of his right to silence was ignored and a confession was coerced from him and used against him because his counsel failed to present the proper facts; (2) whether Mr. Byrd was convicted and sentenced on the basis of statements obtained in violation of his constitutional rights; (3) whether Mr. Byrd's constitutional rights were violated when law enforcement officers entered his home without a warrant to effectuate his arrest; (4) whether the exclusion of critical evidence rendered Mr. Byrd's sentence of death fundamentally unreliable; (5) whether Mr. Byrd was improperly denied his right to cross-examine key State witnesses on matters that would have undermined their credibility; (6) whether the trial court unconstitutionally shifted the burden of proof by its sentencing instructions; (7) whether the jury's sense of responsibility for sentencing was diluted by the court's instructions and counsel's arguments; (8) whether the jury instructions regarding aggravating factors perverted the sentencing phase, resulting in the arbitrary and capricious imposition of the death penalty; (9) whether the jury instructions regarding nonstatutory aggravating factors perverted the sentencing phase resulting in the arbitrary and capricious imposition of the death penalty; (10) whether the presentation of victim-impact testimony denied Mr. Byrd's rights to a fundamentally fair and reliable capital sentencing; and (11) whether failure to consider nonstatutory mitigating factors violated Mr. Byrd's rights; (12) whether Mr. Byrd was deprived of his due process rights and a fair trial when he was prosecuted by an assistant state attorney with a personal, familial, and financial interest in obtaining a conviction, as well as his claim that he was deprived of a fair trial as a result of the State's nondisclosures; (13) whether the jury was misled about its function at the sentencing phase; (14) whether Mr. Byrd received ineffective assistance of counsel on various grounds; and (15) whether the State withheld exculpatory evidence. The first eleven claims were summarily denied as procedurally barred. 7
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of issues on appeal;6 (3) in light of new evidence, his conviction has been undermined and his
sentence is disproportionate; and (4) his rights were violated due to his counsel's lack of
adequate time and funds. Mr. Byrd petitioned for writ of certiorari in the United States Supreme
Court, which was ultimately denied. Byrd v. Singletary, 116 S. Ct. 1270 (1996).
15. Mr. Byrd then again petitioned the district court for a writ of habeas corpus in
April 1996; however, it was stayed in abeyance and closed administratively. The federal case
was briefly reopened in 2001, but was closed administratively pending the outcome of Bottoson
v. Moore, 824 So.2d 115 (Fla.2002), and King v. Moore, 824 So.2d 127 (Fla.2002), and
remained close while Mr. Byrd again sought state court relief in a successive 3.851 motion.
16. In 2009, the Florida Supreme Court denied Mr. Byrd’s successive motion.
Therein, he argued that (1) the state made inconsistent arguments regarding Mr. Sullivan at trial
and at Mr. Sullivan’s subsequent parole violation hearing; (2) the State failed to correct Mr.
Sullivan’s testimony as to when he knew of his plea deal; (3) the State violated Brady and Giglio
by not disclosing that it discharged unrelated claims against Mr. Sullivan; (4) the newly
discovered evidence and the disbarment of Mr. Byrd’s trial counsel requires a re-evaluation of
Mr. Byrd’s ineffective assistance of counsel claims that were raised previously; (5) the trial court
failed to weigh the aggravators against the mitigators. After the denial, the district court
reopened the case.
6 Those sub-claims were: (a) certain aggravating circumstances and Florida's death penalty are constitutionally invalid; (b) the sentencing court failed to timely impose a written sentence of death; (c) newly discovered evidence undermines a key government witness; (d) the exclusion of critical evidence rendered his sentence of death fundamentally unreliable; (e) he was improperly denied his right to cross-examine key state witnesses; (f) the burden of proof was improperly shifted at the sentencing proceeding; (g) the prosecutor improperly vouched for the credibility of the State's witnesses and case; (h) he was convicted and sentenced on the basis of unconstitutionally obtained statements; (i) the trial judge failed to assure Byrd's presence during critical stages of the proceeding; (j) the jury's sense of responsibility was diluted by the instructions and arguments; and (k) the written jury instructions erroneously varied from the oral jury instructions. 8
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17. In 2013, the Florida Supreme Court affirmed the denial of another successive
motion for postconviction relief in which he argued that (1) the Court should reconsider its
decision in Walton v. State, 77 So.3d 639 (Fla. 2011) because a failure to apply Porter v.
McCollum, 559 U.S. 30 (2009) retroactively to his sentence of death violates the Sixth and
Eighth Amendments, Furman v. Georgia, 408 U.S. 238 (1972), and the Fourteenth Amendment;
and (2) Porter applies retroactively to his claims of ineffective assistance of counsel as well as
claims under Brady v. Maryland, 383 U.S. 83 (1963), because the same analysis applies to the
prejudice prong of a claim under Strickland v. Washington, 466 U.S. 668 (1984) and the
materiality prong of a Brady claim.
CLAIM I MR. BYRD’S DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLORIDA AND SHOULD BE VACATED.
This claim is evidenced by the following:
1. All factual allegations contained elsewhere within this motion and set forth in the
Mr. Byrd’s previous motions to vacate, and all evidence presented by him during previous
evidentiary hearings on the previously presented motions to vacate, are incorporated herein by
specific reference.
2. This motion is filed within one year of issuance of Hurst v. Florida, the issuance
of Perry v. State, the issuance of Hurst v. State, the issuance of Mosley v. State, and the issuance
of Asay v. State, all of which established new Florida law and a basis for the claims presented
herein. The claims could not have been presented previously. Thus, 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 becomes authorized to impose death must be found by a jury pursuant to a capital
9
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defendant’s constitutional right to a jury trial. Hurst v. Florida unambiguously held that
“Florida’s capital sentencing scheme violates the Sixth Amendment.” It thereby invalidated Fla.
Stat. §§ 921.141(2) and (3) as unconstitutional. Under those provisions, a defendant who has
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 exited that justify the
imposition of 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.
4. On October 14, 2016, the Florida Supreme Court issued Hurst v. State, 202 So. 3d
40 (Fla. 2016). There, the Florida Supreme Court construed Hurst v. Florida:
The Supreme Court in Hurst v. Florida made clear that the jury must find “each fact necessary to impose a sentence of death,” 136 S.Ct. at 619, “any fact that expose[s] the defendant to a greater punishment,” id. at 621, “the facts necessary to sentence a defendant to death,” id., “the facts behind” the punishment, id., and “the critical findings necessary to impose the death penalty,” id. at 622 (emphasis added).
202 So. 3d at 53 n.7. “[B]ecause these findings occupy a position on par with elements of a
greater offense,” id. at 57, the Florida Supreme Court concluded that the Florida Constitution
and longstanding Florida law required these to be made by the jury unanimously. Id. at 59 (“we
conclude that under the commandments of Hurst v. Florida, Florida's state constitutional right to
trial by jury, and our Florida jurisprudence, 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.”). Alternatively, the Florida Supreme Court stated: “we
conclude that juror unanimity in any recommended verdict resulting in a death sentence is
10
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required under the Eighth Amendment.” Hurst v. State, 202 So. 2d at 59.
5. On December 22, 2016, the Florida Supreme Court issued Mosley v. State, _ So.
3d _, 2016 WL 7406506 (Fla. Dec. 22, 2016), and held that Hurst v. Florida was a changs in
Florida law that was to be applied retroactively to Mosley’s death sentence. In Mosley, the
Florida Supreme Court explained: “we conclude that Hurst should apply retroactively to
Mosley.” 2016 WL 7406506 at *18. See Id. at *25 (“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.”).7 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 which
“has been held to apply retroactively.”
6. The Florida Supreme Court also found that Mosley was entitled to the retroactive
benefit of Hurst v. Florida under an alternative retroactivity approach known as fundamental
fairness, as exemplified in James v. State. Mosley v. State, 2016 WL 7406506 at *18 (“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.”) (emphasis added). Because Mosley
recognized two alternative approaches to retroactivity whether a specific defendant receives the
benefit of Hurst v. Florida requires a case-by-case and/or category-by-category analysis.
7. On December 22, 2016, the Florida Supreme Court also issued its decision in
Asay v. State, _ So. 3d _, 2016 WL 7406538 (Fla. Dec. 22, 2016). There, a fracture court
declined to extend the retroactive benefit of Hurst v. Florida to Asay. Because it was granted in
Mosley while being denied in Asay meant that for the first time, the Witt analysis was not
7This 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 which “has been held to apply retroactively.” 11
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treated as binary. Previously, either a decision was retroactive or it was not. This was not
addressed in either opinion.
8. Nevertheless in Mosley v. State8, the Florida Supreme Court determined that
Hurst v. Florida was to be applied retroactively to Mosley, required postconviction relief to
issue, meant that Mosley was entitled to a resentencing.9 As the Court in Mosley observed: “it is
undeniable that Hurst v. Florida changed the calculus of the constitutionality of capital
sentencing in this State.” 2016 WL 7406506 at *23.
9. In Mosley, the Florida Supreme Court explained that, under Florida law, there are
two separate and distinct approaches for conducting retroactivity analysis. 2016 WL 7406506 at
*20 n.13.10 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.
8In 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”); Id. (“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”). 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. Asay does not mean that Hurst v. Florida is not to be applied retroactively in any capital collateral case; in fact, Mosley holds that Hurst v. Florida and Hurst v. State are to be applied retroactively to at least 2002, and when fundamental fairness dictates and/or when the Witt balancing test warrants to cases final before June 24, 2002. Because of its broader scope and its statement of the two approaches for determining when retroactive application of Hurst v. Florida and Hurst v. State is necessary, this motion primarily focuses on the opinion in Mosley v. State. 9The homicide at issue in Mosley occurred in 2004. Thereafter, Mosley was tried, convicted and sentenced to death. The judgment and sentence were affirmed on direct appeal. Mosley v. State, 46 So. 3d 510 (Fla. 2009), cert denied 562 U.S. 887 (2010). 10The State filed a motion for rehearing in Mosley complaining that by providing for a case-by- case analysis “this Court has created confusion and caused an unnecessary unsettling of the law.” (Motion for Rehearing at 2, Mosley v. State, Case No. SC14-2108). 12
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Mosley, 2016 WL 7406506 at * 19 (emphasis added). Clearly, James is cited just as an example
of the fundamental fairness approach to determining when a particular defendant is entitled to
the retroactive application of a change in law that resulted from a decision from the US Supreme
Court. It is also 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.
10. 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.”11 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 to
be applied retroactively.12 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.”13 2016 WL 7406506 at *23.14 The
11The 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”). 12Justice Canady did not joined 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 that will undoubtedly extend for years.” Mosley, 2016 WL 7406506 at *32 (emphasis added). 13Actually as noted in Hurst v. Florida, Florida’s capital sentencing statute and the case law approving it 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 the 2000 decision in Apprendi was not addressed in either Mosley or Asay. 14The use of the word “fairness” in the context of the Witt analysis would suggest that fairness, indeed fundamental fairness, is the Florida Supreme Court’s central concern in determining which defendants should retroactively receive the benefit of Hurst v. Florida and Hurst v. State. 13
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Court’s Witt analysis in Mosley noted that:
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. Additionally, we have declined to find Hurst applicable to those cases where the defendant waived his/her right to trial by jury. See Mullens v. State, 197 So.3d 16 (Fla.), pet. for cert. filed, No. 16–6773 (Nov. 4, 2016).
Finally, we again emphasize that this decision will only impact the sentence of death, not the conviction. The difference is not guilt or innocence but, instead, life or death. 2016 WL 7406506 at *24-25.15 This logic applies here in Mr. Byrd’s case. The retroactive
application of Hurst to Mr. Byrd’s death sentence “will only impact the sentence[s] of death, not
the conviction[s].”
11. Prior to the issuance of the decisions in Mosley and Asay, death sentenced
defendants were not on notice that the Witt analysis was no longer binary and that other
arguments for the retroactive application needed to be made on a case by case basis. As
explained by the United States 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
15It is important to note that the Witt analysis in Mosley included whether Hurst v. State was to be applied retroactively: “Likewise, our recent decision in Hurst is undoubtedly a decision of fundamental constitutional significance because it emanates from this Court and is based on Florida's independent constitutional right to trial by jury under article I, section 22, of the Florida Constitution.” Hurst v. State was not part of the Witt analysis in Asay. 14
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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 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.”).
12. Turning to Mr. Byrd’s death sentence, fundamental fairness absolutely demands
the retroactive application of Hurst v. Florida to this 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
voir dire process, Mr. Byrd was repeatedly told that the judge was the sentencer. The jury’s role
was merely to return an advisory recommendation by a majority vote. It was emphasized to the
jury that it was not responsible for whatever sentence was ultimately imposed. At the time of Mr.
Byrd’s 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
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).
15
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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).17
13. 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.18
17If a bias in favor a death recommendation increases when the jury’s sense of responsibility is diminished, removing the basis for that bias increases the likelihood that one or more jurors will vote for a life sentence. The likelihood increases even more when the jury receives accurate instruction as to each juror’s power and authority to dispense mercy and preclude a death sentence. In this regard, the context of the prosecutor’s improper argument in Caldwell is important. The prosecutor was responding to and trying to blunt defense counsel’s assertion that the sentencing decision rested with the jury and that it could chose mercy:
I implore you to exercise your prerogative to spare the life of Bobby Caldwell.... I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you but we live in a society where we are taught that an eye for an eye is not the solution.... You are the judges and you will have to decide his fate. It is an awesome responsibility, I know—an awesome responsibility.
Caldwell, 472 U.S. at 324. 18In 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 (“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.”). 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 16
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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.
14. 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) (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 (“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.”).
15. While Caldwell was the law before Mr. Byrd’s death sentence became final, it
was almost immediately ruled as inapplicable to Florida capital proceedings by the Florida
Supreme Court. During the time that Mr. Byrd’s direct appeal was pending in the Florida
Supreme Court, the Florida Supreme Court ruled in Darden v. State, 475 So.2d 217, 221 (Fla.
receptive to the prosecutor's assurance that it can more freely ‘err because the error may be corrected on appeal.’” Id. at 331. 17
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1985). Therein, the Florida Supreme Court ruled that under Florida’s sentencing scheme, the
jury was not responsible for the sentence 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.
The decision in Caldwell issued on June 11, 1985. The decision in Darden v. State issued on
September 3, 1985, less than three months later. The Florida Supreme Court affirmed the
sentence of death November 14, 1985, nearly two months after Darden issued. After Darden v.
State, a Caldwell based claim that instructing the jury it was advisory violated 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. Certainly, a member of the
Florida bar may have reasonably concluded that he or she were precluded by Rule 4-3.1 of the
Florida Rules of Professional Conduct from arguing that the Florida Supreme Court’s decision in
Darden v. State was wrong.
16. It is fundamentally unfair to punish Mr. Byrd 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. When a governing bar rule contains mandatory
language precluding the presentation of non-meritorious claims or arguments, an attorney is
required to chose between his obligations as a member of the Florida Bar and his duties to his
client. That by definition establishes that attorneys in such a situation had a conflict of interest -
having to chose between making sure that their standing with the Bar remained in good stead,
18
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and the obligation to zealously litigate on behalf of the capital client.
17. Fundamental fairness must preclude holding it against Mr. Byrd when attorneys
have an interest in maintaining their good standing with the Florida Bar that may inhibit
presentation of claims that were deemed to be without merit by the US Supreme Court, only to
later to be found meritorious. 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 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 Mr. Byrd’s circumstances.
18. But even more troubling and fundamentally unfair than the Caldwell situation is
19
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the fact that at the time of Mr. Byrd’s 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.
19. After the United States Supreme Court rules, there is no further review available.
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. It was over. The Sixth
Amendment challenges to the Florida capital sentence scheme were then without merit
according to the US Supreme Court. Rule 4-3.1 of the Florida Rules of Professional Conduct
seemingly foreclosed challenges or arguments that the US Supreme Court was 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 of the decision in Spaziano v.
Florida, Rule 4-3.1 was a constraint on the presentation of claims found meritless in Spaziano.
There was no good faith basis to say Spaziano was not the governing Sixth Amendment law
when the highest court in the nation had ruled. 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. This was why when the Florida Supreme Court held
Hitchcock was a retroactive change in the law under Witt v. State, it was found to have defeated
20
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all procedural defaults
20. Of course in addition to Spaziano v. Florida, the US Supreme Court in 1989
issued Hildwin v. Florida, 490 U.S. 638, 640 (1989) and held that the Sixth Amendment “does
not forbid the judge to make the written findings that authorize imposition of a death sentence.”
Hildwin only made matters worse in terms of presenting Sixth Amendment arguments in
collateral review that have now been found meritorious in Hurst v. Florida. Surely, fundamental
fairness means that it cannot be held against Mr. Byrd that his collateral counsel in the years
following Spaziano and Hildwin did not present Sixth Amendment arguments of the type that
Hurst v. Florida found meritorious because Florida Bar rule indicated that it was improper to
present frivolous claims. Fundamental fairness should mandate that he was not required to raise
claims specifically foreclosed by the US Supreme Court decisions in Spaziano and Hildwin in
order to preserve them.
21. 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.19 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).20 In
19Mills 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). The homicide at issue in Mills’ case occurred in 1979. 20The 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):
we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a 21
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Mills v. Moore, 786 So. 2d at 537, the Florida Supreme Court wrote: “Because Apprendi did not
overrule Walton[ v.Arizona], the basic scheme in Florida is not overruled either.” The Florida
Supreme Court in Mills v. Moore went on to write:
The plain language of section 775.082(1) is clear that the maximum penalty available for a person convicted of a capital felony is death. When section 775.082(1) is read in pari materia with section 921.141, Florida Statutes, there can be no doubt that a person convicted of a capital felony faces a maximum possible penalty of death. ***
Mills is actually attacking the validity of the bifurcated guilt and sentencing phases of a capital trial. That issue was litigated and decided in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The Apprendi majority clearly did not revisit these rulings.
Id. at 538 (emphasis added). In denying Mills’ Apprendi claim, the Florida Supreme Court
denied it on the merits - it did not apply a procedural bar.21 Thus, the Florida Supreme Court
in its decision in Mills v. Moore did not just rule against Mills, it told capital defendants and their
attorneys that Spaziano v. Florida and Hildwin v. Florida were still controlling because Walton
criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” 526 U.S., at 252-253, 119 S.Ct. 1215 (opinion of STEVENS, J.); see also id., at 253, 119 S.Ct. 1215 (opinion of SCALIA, J.).
Apprendi, 530 U.S. at 490. In Jones, Justice Stevens explained that this rule was derived from a line of cases decided in the 1970's:
That is the essence of the Court's holdings in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
Jones, 526 U.S. at 253 (Stevens, J., concurring). The majority opinion in Jones did cite and rely on these three decisions as well. Id. at 540-41. 21Greg Mills was not executed. After the decision in Mills v. Moore, Mills discovered newly discovered evidence that he presented under Jones v. State, 591 So. 2d 911 (Fla. 1991), and which resulted in the issuance of Rule 3.851 relief and the imposition of a life sentence. See State v. Mills, 788 So. 2d 249 (Fla. 2001). 22
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v. Arizona had not been overruled and in fact was still good law.22 Then in late 2001, death
warrants were signed for Linroy Bottoson and Amos King. With executions set, both Bottoson
and King raised Apprendi challenges to their death sentences. Bottoson’s death sentence was
final on October 1, 1984 when certiorari review was denied by the US Supreme Court following
the direct appeal. Bottoson v. State, 443 So.2d 962, 963-64 (Fla.1983), cert. denied, 469 U.S. 873
(1984). Bottoson presented an Apprendi claim in a successive habeas petition filed in the Florida
Supreme Court in January of 2002, 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 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).23 King had been charged with a 1976 homicide.
He was tried, convicted and sentenced to death in 1977. His conviction and sentence became
22It is worth noting that Timothy Hurst in his first direct appeal to the Florida Supreme Court challenged his death sentence on the basis of Apprendi. His initial brief was in January of 2001, even before Mills had filed his habeas petition in which he raised his Apprendi challenge. Hurst had been tried in 2000 for a 1998 homicide. The Florida Supreme Court rejected Hurst’s Apprendi challenge on the basis of Mills v. Moore. See Hurst v. State, 819 So. 2d 689, 703 (Fla. 2002). 23Again, Mills v. Moore rejected the Apprendi claim on the merits finding that death was authorized as a sentence upon the conviction of first degree murder and that the Apprendi challenge had been rejected in Walton v. Arizona which had not been overturned. Mills v. Moore, 786 So. 2d at 538. While the ruling in Mills was clearly abrogated by Hurst v. Florida, the denial of Mills’ successive habeas petition in Mills v. Moore was treated by the Florida Supreme Court’s definitive rejection of challenges to Florida’s capital sentencing scheme on the basis of Apprendi. See Hurst v. State, 819 So. 2d 689, 703 (Fla. 2002) (“this Court finds no reason to revisit the Mills decision.”). 23
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final in 1981. King v. State, 390 So. 2d 315 (Fla. 1980), cert denied, 450 U.S. 989 (1981). After
federal habeas relief issued and a resentencing ordered, King was again sentenced to death,
though his conviction remained final dating back to 1981. On appeal after the resentencing, the
death sentence was affirmed. King v. State, 514 So. 2d 354 (Fla. 1987), cert denied, 487 U.S.
1241 (1988). King’s death sentence became final on June 30, 1988. King presented the Apprendi
claim in a successive Rule 3.851 motion in late 2001. 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).24 Thus, the Apprendi claims presented by
Bottoson and King were both denied on the merits - and not on the basis of a procedural bar.
22. Since Ring v. Arizona issued, there have been forty-one capital defendants
executed in Florida.25 Bottoson and King were just the third and fourth ones to be executed post-
24 At the time that the Florida Supreme Court rejected Bottoson’s and King’s Apprendi claims, it knew that the US Supreme Court had granted certiorari review in Ring v. Arizona. Yet, the Florida Supreme Court elected not to wait to find out what the outcome of Ring would be. As a result, it fell to the US Supreme Court to grant both Bottoson and King stays of execution during the pendency of Ring, and the US Supreme Court did stay both executions at that time on the basis of the grant of certiorari review in Ring. 25The 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. 24
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Ring.26 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 with Apprendi/Ring error
as Justice Wells noted in his specially concurring opinion in Bottoson.
23. 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:
For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.
Ring, 536 U.S. at 609. After Ring v. Arizona issued, the US Supreme Court lifted the stays of
execution for both Bottoson and King, obviously to let the Florida Supreme Court consider Ring
v. Arizona and decide what to do in light of that ruling. 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’s 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).27 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
26 The first two were individuals who had waived further challenges to their sentences and requested execution dates: Rigoberto Sanchez-Velasco and Aileen Wournos. 27Bottoson v. Moore became the lead case - King v. Moore relied upon the decision in Bottoson. 25
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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 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 even though
those decisions were irreconcilable with Apprendi.
24. It was not just direct appeals that were effected by the Florida Supreme Court’s
failure to recognize that Apprendi and Ring were irreconcilable with Hildwin and Spaziano.
Collateral appeals and habeas petitions were also erroneously rejected; Apprendi and Ring
claims were denied on the merits. In Mills, Mann, Brown, Bottoson and King, the Florida
Supreme Court erroneously concluded that Apprendi did not apply to the Florida capital
sentencing statute because the statute authorized death sentences on its face. Then after Ring v.
Arizona issued, the Florida Supreme Court erroneously decided in Bottoson and King that Ring
v. Arizona did not apply in Florida and that the logic of Hildwin v. Florida was not touched by
Ring, and if it was, then it was the US Supreme Court’s obligation to say so. Once the US
Supreme Court let Bottoson and King be executed after denying certiorari review, the Florida
Supreme Court treated the denial of certiorari review in those cases as meaningful.
26
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25. The Florida Supreme Court in Bottoson and King rejected the Apprendi and Ring
arguments that Bottoson and King made on the merits. No procedural bar was applied. 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. Linroy Bottoson was executed on
December 9, 2002. Amos King was executed on February 26, 2003.
26. The Florida Supreme Court was not required to blindly follow Hildwin v. Florida.
In 1978, the US Supreme Court issued its decision in Lockett v. Ohio, and held that the Eighth
Amendment did not permit a State to limit the available mitigating circumstances in a capital
case to a finite list. Yet in 1976, Florida’s statute which limited mitigating circumstances to a
finite list was upheld as constitutional and Eighth Amendment compliant in Proffitt v. Florida,
428 U.S. 242 (1976). The Florida Supreme Court did not rely upon Proffitt as controlling and/or
rendering Lockett inapplicable in Florida. This is in sharp contrast to the manner in which the
Florida Supreme Court consider the import of Ring v. Arizona when it issued Bottoson v. Moore.
The refusal to acknowledge what Apprendi and Ring meant can best be understood from Justice
Wells’ specially concurring opinion:
Extending Ring so as to render Florida's capital sentencing statute unconstitutional as applied to either King or Bottoson would have a catastrophic effect on the administration of justice in Florida and would seriously undermine our citizens' faith in Florida's judicial system. If Florida's capital sentencing statute is held unconstitutional based upon a change in the law applicable to these cases, all of the individuals on Florida's death row will have a new basis for challenging the validity of their sentences on issues which have previously been examined and ruled upon.
Bottoson v. Moore, 833 So. 2d at 698-99 (Wells, J., specially concurring) (emphasis added). The
rejection of Ring as inapplicable in Florida was in Justice Wells’ view not about the ruling in
27
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Ring so much as it was about policy - would it be good policy for Florida’s sentence statute to be
found in violation of Ring. Justice Wells’ opined that Bottoson’s Apprendi/Ring claim had to be
found meritless in order to prevent “all of the individuals on Florida’s death row” from being
entitled to have their Apprendi/Ring claims heard on the merits.
27. Mills, Bottoson and King were not the only collateral capital litigants to have
their Apprendi and/or Ring claims considered and heard on the merits. In Mann v. Moore, 794
So. 2d 595 (Fla. 2001), Mann filed an Apprendi claim in a 2000 habeas petition in the Florida
Supreme Court. Mann’s death sentence was final in 1992. Relying on Mills v. Moore, the court
in Mann v. Moore rejected the Apprendi claim for the same reason that the claim was rejected in
Mills v. Moore. Mann v. Moore, 794 So. 2d at 599.28 In Brown v. Moore, 800 So.2d 223
(Fla.2001), Paul Brown filed an Apprendi claim in a 2001 habeas petition filed in the Florida
Supreme Court. Brown’s conviction and sentence were final in 1990. Relying on Mills v. Moore,
the court in Brown v. Moore rejected the Apprendi claim for the same reason that the claim was
rejected in Mills v. Moore. Brown, 800 So. 2d at 225.
28. Since Ring v. Arizona issued, there have been forty-one capital defendants
executed in Florida.29 Bottoson and King were just the third and fourth ones to be executed post-
Ring.30 Had the Florida Supreme Court recognized that Apprendi and Ring were irreconcilable
28Larry Mann was executed on April 10, 2013. 29The 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. 30 The first two were individuals who had waived further challenges to their sentences and requested execution dates: Rigoberto Sanchez-Velasco and Aileen Wournos. 28
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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 with Apprendi/Ring error
as Justice Wells noted in his specially concurring opinion in Bottoson.
29. Johnny Robinson was executed on February 4, 2004. His conviction and death
sentence became final in 1991. Before he was executed, he raised a challenge to his death
sentence on the basis of Ring v. Arizona. However as it had done in Bottoson and King, the
Florida Supreme Court rejected the claim on the merits and permitted Robinson to be executed:
First, we address Robinson's claim that he is entitled to have his death sentence vacated in light of the United States Supreme Court's opinion in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (finding Arizona's capital sentencing statute to be unconstitutional “to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty”). This Court has consistently rejected similar claims.
Robinson v. State, 865 So. 2d 1259,1265 (Fla. 2004). In Robinson, the Florida Supreme Court
cited Rivera v. State, 859 So. 2d 495, 508 (Fla.2003), as an example of its previous rejection of
Ring claims on the merits.31 Robinson, like Bottoson and King, was executed because the Florida
31In Rivera v. State, 859 So. 2d at 508, the Florida Supreme Court in a collateral appeal addressed the Ring claim on the merits and set forth a string citation to the many cases rejecting Ring claims as meritless:
First, we address Rivera's claim that his death sentence should be invalidated due to the United Supreme Court's decision in Ring. Rivera asserts that Florida's capital sentencing scheme violates the United States Constitution under the holding of Ring. This Court addressed similar contentions in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and, while there was no single majority view expressed, we denied relief. We have since rejected numerous similar claims and find that Rivera is likewise not entitled to relief on this claim. See, e.g., Chandler v. State, 848 So.2d 1031 (Fla.2003); Grim v. State, 841 So.2d 455 (Fla.2003); Lawrence v. State, 846 So.2d 440 (Fla.2003); Banks v. State, 842 So.2d 788 (Fla.2003); Lugo v. State, 845 So.2d 74 (Fla.2003); Kormondy v. State, 845 So.2d 41 (Fla.2003); Doorbal v. State, 837 So.2d 940, 963 (Fla.2003), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Anderson v. State, 841 So.2d 390 (Fla.2003); Conahan v. State, 844 So.2d 629 (Fla.2003); Lucas v. State, 841 29
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Supreme Court did not recognize that Hildwin and Spaziano were irreconcilable with Apprendi
and Ring. With each additional execution, the Florida Supreme Court became more entrenched
in its ruling that Ring v. Arizona was not applicable in Florida.
30. In 2013, Darius Kimbrough whose death sentence was final in 1997 was
executed. He had previously presented an Apprendi/Ring claim in collateral proceedings which
the Florida Supreme Court denied on the merits in 2004:
Kimbrough raises two claims in his petition for habeas corpus. He first argues that Florida's death sentencing statutes as applied are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court has previously declined to hold that Florida's death penalty scheme is unconstitutional on the basis of Apprendi or Ring. See Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002).
Additionally, one of the aggravators in this case was a prior conviction for “burglary of a dwelling with a battery therein” and sexual battery. The prior violent felony aggravator alone clearly satisfies the mandates of the United States and Florida Constitutions. See Doorbal v. State, 837 So.2d 940 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003). This claim is without merit.
Kimbrough v. State, 886 So. 2d 965, 984 (Fla. 2004).32 Had the Florida Supreme Court correctly
So.2d 380 (Fla.2003); Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003); Spencer v. State, 842 So.2d 52 (Fla.2003); Fotopoulos v. State, 838 So.2d 1122, 1136 (Fla.2002); Bruno v. Moore, 838 So.2d 485, 492 (Fla.2002); Chavez v. State, 832 So.2d 730, 767 (Fla.2002), cert. denied, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003); Marquard v. State, 850 So.2d 417 (Fla.2002).
While some of these decisions were direct appeals, Chandler, Banks, Kormondy, Lucas, Porter, Spencer, Fotopoulos, Bruno, and Marquard were all collateral appeals or habeas petitions in which the Florida Supreme Court rejected Apprendi and Ring claims on the merits. And of these individuals who erroneously lost their Apprendi/Ring claims on the merits, several have been executed: Chandler, Banks, and Kormondy. Bruno died of natural causes. Porter got a resentencing ordered by the US Supreme Court, and thereafter a life sentence. In addition, the appellant in one of the direct appeal decisions denying a Ring claim on the merits has been executed. Chavez had a post-Ring direct appeal, and he too has been executed. 32 Shortly before Kimbrough’s 2013 execution, Kimbrough argued that “that Florida's death penalty statute violates the Eighth Amendment's evolving standards of decency because most 30
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analyzed the claim as Hurst v. Florida, Kimbrough would not have been executed.
31. In 2014, Eddie Wayne Davis whose death sentence was final in 1997 was
executed. Davis had presented his Apprendi/Ring claim in collateral proceedings which the
Florida Supreme Court denied on the merits in 2003:
Finally, Davis argues that Florida's death penalty statute, section 921.141, Florida Statutes (2003), is unconstitutional based on Apprendi and Ring. We note that Davis's death sentence is supported by both the “committed during the course of a kidnapping and sexual battery” aggravator and a unanimous death recommendation. We have denied relief in direct appeals where there has been a prior violent felony aggravator. See Duest v. State, 855 So.2d 33, 49 (Fla.2003); see also Doorbal v. State, 837 So.2d 940, 963 (Fla.2003) (stating that prior violent felony aggravator based on contemporaneous crimes charged by indictment and on which defendant was found guilty by unanimous jury “clearly satisfies the mandates of the United States and Florida Constitutions”). We have also denied relief to postconviction defendants raising this issue.
Davis v. State, 875 So. 2d 359, 374 (Fla. 2003). The Florida Supreme Court’s analysis does not
comport with Hurst v. Florida.
32. 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
states require a unanimous jury verdict to recommend a death sentence.” Kimbrough v. State, 125 So. 3d 752, 753 (Fla. 2013). The Florida Supreme Court denied Kimbrough’s claim on the merits:
Kimbrough's claim “is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.” 112 So.3d at 1162 (citing Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote.”); Davis v. State, 859 So.2d 465, 479 (Fla.2003) (“This Court has repeatedly rejected [this] argument and held that a capital jury may recommend a death sentence by a majority vote.”)); see also Robards v. State, 112 So.3d 1256, 1267 (Fla.2013) (rejecting argument that death sentences based on seven-to-five jury recommendations are unconstitutional, arbitrary, and unreliable).
(emphasis added). In light of Hurst v. State, the Florida Supreme Court’s rejection of Kimbrough’s claim was erroneous. 31
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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.
33. After the issuance of Johnson v. State, the Florida 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.
34. Then from the issuance of Apprendi in 2000 through the issuance of Ring in 2002
and until the issuance of Johnson v. State in 2005, every capital collateral defendant who
presented Apprendi claims and/or Ring claims had them denied erroneously as without merit.
35. It is in this context that it is clearly fundamentally unfair to deprive Mr. Byrd of
the retroactive benefit of Hurst v. Florida.
36. It was not Mr. Byrd’s 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 Mr. Byrd’s 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.33 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 Mr. Byrd would have also been granted relief as well. Certainly, it is
33 Bottoson jury returned a 10-2 death recommendation. Accordingly, the error under Apprendi/Ring/Hurst could not have been found harmless beyond a reasonable doubt. 32
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fundamentally unfair to allow Mr. Byrd to be executed because the Florida Supreme Court
erroneously decided Bottoson and permitted Bottoson to be executed.
37. Just because Bottoson was executed does not mean fundamental fairness demands
that Mr. Byrd’s death sentence be carried out as well. Fundamental fairness is an equitable
concept. A basic premise of equity is the clean hands doctrine. In these circumstances, his hands
are clean. Fundamental fairness means that he should not be punished by carrying out the
execution because mistakes were made in a line of cases beginning with Mills v. Moore, and
including Bottoson v. Moore and King v. Moore.
38. 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
suggest that Hurst v. Florida should be treated as the governing law of Florida at least back to
the Ring v. Arizona issued on June 24, 2002. Mosley noted that “in holding our statute
unconstitutional, the United States Supreme Court [in Hurst v. Florida] applied the exact
reasoning of Ring to Florida's death penalty sentencing scheme.” 2016 WL 7406506 at *17.
“Holding Hurst retroactive to when the United States Supreme Court decided Ring would not
destroy the stability of the law, nor would it render punishments uncertain and ineffectual.” 2016
WL 7406506 at *23.34 But if Hurst v. Florida is to be treated as the law effective June 24, 2002,
34In Asay v. State, 2016 WL 7406538 at *22, Justice Lewis wrote:
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 ––––. 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. Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing.
33
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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 Mr. Byrd would have as well.
39. Another aspect of fundamental fairness warranting retroactive application of
Hurst v. Florida is the fact that the decisions in Perry v. State and Hurst v. State mean that
capital defendants charged with murders that were committed long before Hurst v. Florida
issued will have Hurst-compliant procedures govern at a retrial or resentencing. For example,
Douglas Ray Meeks recently received the benefit of Hurst v. Florida. On January 18, 2017,
Meeks was resentenced to life imprisonment. Originally, Meeks was given two death sentences
on two first-degree murder convictions for two 1974 homicides. Meeks’ original death sentences
became final in 1976. See 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, 76 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
Justice Perry in his dissent in Asay wrote:
I would find that Hurst v. Florida applies retroactively, period. I therefore would not limit its application to cases final after June 24, 2002, when the United States Supreme Court issued its decision in Ring. I can find no support in the jurisprudence of this Court where we have previously determined that a case is only retroactive to a date certain in time. Indeed, retroactivity is a binary—either something is retroactive, has effect on the past, or it is not.
2016 WL 7406538 at *27 (Perry, J., dissenting). 34
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State of Florida stipulated that Meeks would be provided with a new penalty phase in both
cases.’”). Because those new penalty phases had not yet to occurred when Hurst v. Florida
issued, the new Florida law was to govern the sentencing procedure in both cases. Recognizing
the inevitable, the State on January 18, 2017 agreed to the imposition of life sentences. Put
contextually, although Meeks faced possible death sentences for the 1974 homicides, had the
matter proceeded to a new penalty phase the jury would have to unanimously return death
recommendations in order for death sentences to be imposed. Because the State agreed to life
sentences after Hurst v. Florida became law, Meeks got the benefit of Hurst v. Florida as to his
first degree murder convictions that were final in 1976. There is no valid basis for Meeks to get
the benefit of Hurst v. Florida, while Mr. Byrd does not.
40. Then there is Jacob Dougan who was charged with and convicted of a 1974
homicide and 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, 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
35
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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 determined that post
conviction relief was warranted. It vacated Dougan’s conviction and ordered a new trial. On
October 20, 2016, the Florida Supreme Court affirmed the order granting a new trial, meaning
Hurst v. Florida will govern at a retrial and as to the sentencing procedure if a first-degree
murder conviction is returned on the 1974 homicide. Dougan v. State, 202 So. 3d 363 (Fla.
2016). Dougan will be eligible for a death sentence for the 1974 homicide only if the jury
unanimously makes the requisite findings of fact and unanimously recommends a death
sentence. This means the homicide surrounding Dougan’s prior to the one at issue here, will be
entitled the benefit of Hurst.
41. John Hardwick was charged with a 1984 homicide. He was convicted and given a
death sentence. His conviction and death sentence were affirmed. Hardwick v. State, 521 So. 2d
1071 (Fla. 1988), cert denied 488 U.S. 871 (1988). Later, the Florida Supreme Court affirmed
the denial of Hardwick’s 3.850 motion, and denied Hardwick’s habeas petition. Hardwick v.
Dugger, 648 So. 2d 100 (Fla. 1994). Hardwick then filed for federal habeas relief. After the
district court granted habeas relief and ordered the death sentence vacated and a new penalty
phase due to trial counsel’s ineffective assistance, the Eleventh Circuit affirmed. Hardwick v.
Sec’y Fla. Dep’t of Corr., 803 F.3d 541 (11th Cir. 2015). Hardwick’s case is now pending a
resentencing. Hurst v. Florida and the resulting new Florida law will govern the sentencing
procedure. Hardwick will be eligible for a death sentence for the murder conviction that was
final in 1988 only if his jury unanimously returns a death recommendation.
42. In 1986, Paul Hildwin was convicted of a 1985 homicide. After a death sentence
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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). Hildwin is now awaiting a new trial. At that trial,
Hurst v. Florida and the resulting new Florida law will govern as to the sentencing procedure if
Hildwin is convicted of the 1985 homicide. Hildwin will be eligible for a death sentence only if
his jury unanimously returns a death recommendation.
43. There are also cases in which a capital defendant 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 get the benefit of Hurst v. Florida because a final death sentence was not in place
when Hurst issued. Paul Johnson was convicted of first degree murder for three 1981 homicides
and sentenced to death. His convictions and death sentences were affirmed in his first direct
appeal. Johnson v. State, 483 So. 2d 774 (Fla. 1983). Habeas relief was granted on an appellate
counsel ineffectiveness claim, and a new trial 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). Habeas relief was denied. Johnson v. Moore, 837
So. 2d 343 (Fla. 2002). Next, the denial of a successive 3851 motion was affirmed. Johnson v.
State, 933 So. 2d 1153 (Fla. 2006) (table decision). But then in 2010, the denial of yet another
37
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successive 3851 motion was reversed. Johnson’s death sentences were vacated; a resentencing
was ordered. Johnson v. State, 44 So. 3d 51 (Fla. 2010). However, the conviction (final in 1992)
remained in place. After Johnson again received death sentences, his third direct appeal was
pending when Hurst v. Florida issued on January 12, 2016. Based on Hurst, the death sentences
were vacated and a resentencing ordered, notwithstanding the jury’s 11-1 death
recommendations on all three homicide. Johnson v. State, 2016 WL 7013856 (Fla. Dec. 1,
2016). Thus, even though he was convicted of three 1981 murders and his convictions were final
in 1992, Hurst applied. There is no principled basis for Johnson to get the benefit of Hurst v.
Florida, while Mr. Byrd does not. Further, it is clearly a manifest injustice when observing that
Johnson will receive the benefit of Hurst even though Johnson was originally sentenced to death
on September 22, 1981 a few weeks before the offense for which Mr. Byrd was convicted.
44. 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 and the attempted murder of a second deputy. He
was then sentenced to death. 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, 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: “we vacate Armstrong's sentence and
remand for a new penalty phase consistent with Hurst v. State, 202 So.3d 40 (Fla. 2016).”
45. With Meeks, Dougan, Hardwick, Hildwin, 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 fundamental fairness in circumstances in Florida’s application
of the death penalty requires the retroactive application of Hurst and the resulting new Florida
law. Indeed, 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).35 “[S]elective application of new rules violates the principle of treating
35 Justice Harlan in his dissent in Desist v. United States wrote:
We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law. 39
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similarly situated defendants the same.” Id. at 323. While Mr. Byrd’s 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.36 Fundamental fairness
requires Mr. Byrd receive the benefit of the change in law. See Desist v. United States, 394 U.S.,
at 258-259 (Harlan, J., dissenting) (“[W]hen another similarly situated defendant comes before
us, we must grant the same relief or give a principled reason for acting differently. We depart
from this basic judicial tradition when we simply pick and choose from among similarly situated
defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.”).
46. Moreover, the Florida Supreme Court noted that as a result of Hurst v. Florida,
the administration of justice in Florida will benefit because the new law that has resulted
enhances and promotes the reliability of death sentences that are ultimately imposed. Implicit in
the conclusion as a result of Hurst v. Florida there be more reliable death sentences is the
acknowledgment that the existing death sentences are less reliable. Clearly, uniformity and
fairness require that Mr. Byrd 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).
47. The procedure employed when Mr. Byrd received his death sentence deprived
394 U.S. at 258-59. 36 In Witt v. State, 387 So. 2d 922, 926 (Fla. 1980), the Florida Supreme Court noted the Eighth Amendment required extra weight to be given to “individual fairness because of the possible imposition of a penalty as unredeeming as death.” In a footnote, the Court wrote: “It bears mention that the constitutionality of Florida's capital sentencing procedures, s 921.141, Florida Statutes (1979), is contingent upon this Court's role of reviewing each case to ensure uniformity in the imposition of the death penalty.” Id. at 926 n.7 (emphasis added). 40
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him of his Sixth Amendment rights under Hurst v. Florida.
48. In Hurst v. State, the Florida Supreme Court found that because Hurst v. Florida
treated the facts necessary to authorize a death sentence as element of the criminal offense,
Florida law, which has long required unanimity on the elements of a crime, applied:
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. This holding is founded upon the Florida Constitution and Florida's long history of requiring jury unanimity in finding all the elements of the offense to be proven; and it gives effect to our precedent that the “final decision in the weighing process must be supported by ‘sufficient competent evidence in the record.’ ” [Citation] As we explain, we also find that in order for a death sentence to be imposed, the jury's recommendation for death must be unanimous. This recommendation is tantamount to the jury's verdict in the sentencing phase of trial; and historically, and under explicit Florida law, jury verdicts are required to be unanimous.
Hurst v. State, 202 So. 3d at 53-54. Fundamental fairness requires that Mr. Byrd get the benefit
of a change in law when the change is enhances reliability. 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).
49. Another reason fundamental fairness dictates that Mr. Byrd is entitled to
retroactive application of Hurst v. Florida arises from the fact that his jury was instructed that it
41
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was advisory. The jury was told that the sentencing responsibility rested elsewhere. After Hurst
v. Florida, the jury’s penalty phase verdict is not advisory. Each juror will know of its power and
responsibility; his or her right 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.
50. Mr. Byrd is also entitled to the benefit of the change in law resulting from Hurst
v. Florida when the Witt v. State balancing is applied to his case individually. The unique
circumstances of his death sentence, as explained throughout this motion, tip the balance of the
Witt factors in his favor.
51. Applying Hurst v. Florida to this case shows that Mr. Byrd’s death sentence
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 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); Johnson v. State, 44 So. 3d 51, 69 (Fla. 2010) (as
to constitutional error established in a successive 3.851 motion, death sentence was vacated
because “the State has not met its burden of showing that Smith's testimony was harmless
beyond a reasonable doubt.”); Way v. Dugger, 568 So. 2d 1263, 1266 (Fla. 1990) (in collateral
appeal, the Florida Supreme Court held: “we are not convinced that the error was harmless
beyond a reasonable doubt.”); Hall v. State, 541 So. 2d 1125, 1128 (Fla. 1989) (Hitchcock error
presented in collateral proceedings was subject to the harmless beyond a reasonable doubt
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standard); Mikenas v. Dugger, 519 So. 2d 601, 602 (Fla. 1988) (in a collateral appeal, the court
held: “we cannot say beyond a reasonable doubt that had the jury known that nonstatutory
mitigating evidence could be considered, it would not have recommended life rather than
death.”). 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 dispensed mercy to Mr. Byrd by voting for a life
sentence.
52. 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). Harmless error cannot be shown to exist in
this case.
53. There is no record as to which aggravating circumstances were found to exist by a
unanimous jury. There is no record as to which existing, aggravating circumstances were found
to be sufficient to warrant death by a unanimous jury. There is no record as to which mitigating
circumstances were found to exist by a unanimous jury. There is no record as to whether the
aggravating circumstances outweigh the mitigating circumstances by a unanimous jury. In fact,
the only information available is that contained in the completed verdict form which indicates
that some sort of majority voted in favor of death. The Hurst error cannot be found harmless
beyond a reasonable doubt.
54. The jury was not told that jurors could vote to be merciful or that they bore any
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responsibility for the sentence Mr. Byrd would receive. See Caldwell, 472 U.S. at 329 (finding
the Eighth Amendment requires capital sentencers to “view their task as a serious one of
determining whether a specific human being should die at the hands of the State”) (emphasis
added); McGautha v. California, 402 U.S. 183, 208 (1971) (noting the importance that a capital
sentencing jury understands “the gravity of its task and proceeds with the appropriate awareness
of its ‘truly awesome responsibility’”). The advisory death recommendations are tainted. The
State cannot prove beyond a reasonable doubt that no juror would have voted for a life sentence
at a resentencing conducted with proper Caldwell instructions and proper instructions regarding
each juror’s power to vote for mercy. 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).
55. The Florida Supreme Court has addressed whether Hurst error is harmless in
several 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. In light of
44
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the mitigation and the jury’s 7 to 5 death recommendation, the Court could not find the Hurst
error harmless beyond a reasonable doubt.
56. In Johnson v. State, ___ So. 3d ___, 2016 WL 7013856 at *3, the jury returned
three 11-1 death recommendations. Though there were three victims in Johnson, the Florida
Supreme Court could not conclude that the Hurst error was harmless beyond a reasonable doubt
where the record reflected “a nonunanimous jury recommendation and a substantial volume of
mitigation evidence.”
57. Here, the State cannot show beyond a reasonable doubt that the Hurst v. Florida
error was harmless. Mr. Byrd’s death sentence stands in violation of the Sixth Amendment under
Hurst v. Florida. His jury did not return a verdict making any findings of fact, the jury’s death
recommendation was tainted by Caldwell issues given that the jury was told its role was an
advisory one, 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 on the basis of mercy.
58. The Hurst error permeates throughout this case. For this reason, it is unique and
requires relief. The death sentence must be vacated and a resentencing ordered. Rule 3.851
relief is required.
CLAIM II MR. BYRD’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDER HURST V. STATE AND, THEREFORE, SHOULD BE VACATED.
This claim is evidenced by the following:
1. All other factual allegations contained in this motion and its attachments are fully
incorporated herein by specific reference.
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A. Jury Unanimity as to Elements of Criminal Offense Mandated by Florida
Constitution
2. Since before Florida was admitted into the union as a state, Florida juries have
been required to find elements of an offense unanimously. “[T]he requirement was an integral
part of all jury trials in the Territory of Florida in 1838.” Bottoson v. Moore, 833 So. 2d 693, 715
(Fla. 2002) (Shaw, J., concurring). Likewise, the requirement that Florida juries find elements
unanimously has been an “inviolate tenet of Florida jurisprudence since the State was created.”
Id. at 714. The Florida Legislature adopted the English common law rule on November 6, 1829
with enactment of Section 775.01 of the Florida Statutes. See id. Florida’s first Constitutional
Convention adopted the right to a jury trial when it proclaimed in Article I of our Declaration of
Rights that “the right of trial by jury, shall for ever remain inviolate.” Fla. Const. art. I, § 6.
3. The Florida Supreme Court recognized over a century- and-a-half ago that “[t]he
common law wisely requires the verdict of a petit jury to be unanimous.” Motion to Call Circuit
Judge to Bench, 8 Fla. 459, 482 (1859). And the Florida Supreme Court has held true to that
requirement over the years, stating in Patrick v. Young, 18 Fla. 50, 50 (Fla. 1881) that “[t]he
record of a verdict implies a unanimous consent of the jury, and is conclusive evidence of that
fact,” and later in Jones v. State, 92 So. 2d 261, 261 (Fla. 1956) that “[i]n this state, the verdict of
the jury must be unanimous.”37
4. As Justice Shaw explained in his concurrence in Bottoson v. Moore:
37The Florida Supreme Court has memorialized the requirement in Florida Rule of Criminal Procedure 3.440. It provides that “[n]o verdict may be rendered unless all of the trial jurors concur in it,” that a court may not even correct matters of form in a verdict without “the unanimous consent of the jurors,” and that a verdict cannot be entered of record if “disagreement is expressed by one or more” jurors. Fla. R. Crim. P. 3.440 (Rendition of Verdict; Reception and Recording). The requirement also appears in Florida Court’s Standard Jury Instruction 3.10, which admonishes juries that “[w]hatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.” 46
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[i]t is settled in Florida that the State in a criminal prosecution has the burden of proving each element of the charged offense beyond a reasonable doubt. Before jurors can return a guilty verdict, they must unanimously agree that each element of the charged offense has been established beyond a reasonable doubt.
Bottoson, 833 So. 2d at 714 (Shaw, J., concurring) (footnotes omitted). This has been Florida
law since 1829. The criminal defendant’s right to a jury’s unanimous verdict reflecting juror
unanimity as to the establishment of each element of the criminal offense beyond a reasonable
doubt is a substantive right under the Florida Constitution.
5. What constitutes an element of an offense has long been governed by federal
constitutional law. This was at issue in Apprendi v. New Jersey when the Supreme Court
reviewed a sentencing statute in which the New Jersey Legislature “decided to make the hate
crime enhancement a ‘sentencing factor,’ rather than an element of an underlying offense,” so
that it would be found by a judge, rather than a jury. Apprendi, 530 U.S. at 471. Apprendi found
this New Jersey statute violated the Sixth Amendment and the right to a jury trial embodied
therein as to all elements of a criminal offense. The US Supreme Court explained in Apprendi:
“[T]o guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours . . . .” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone) (emphasis added). See also Duncan v. Louisiana, 391 U.S. 145, 151-154, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
Apprendi, 530 U.S. at 477 (alterations and emphasis in original). The foundation of Apprendi
was built firmly on the inviolable right to trial by twelve jurors.
6. Observing that “[a]ny possible distinction between an ‘element’ of a felony
offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by
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jury, and judgment by court as it existed during the years surrounding our Nation’s founding,”
id. at 478 (footnote omitted), the Apprendi Court ruled that any finding of fact which “expose[s a
defendant] to a penalty exceeding the maximum he would receive if punished according to the
facts reflected in the jury verdict alone,” is an element, and thus must be found by a jury. Ring,
536 U.S. at 586 (citing Apprendi). The Court stated that “[d]espite what appears to us the clear
‘elemental’ nature of the factor here, the relevant inquiry is one not of form, but of effect—does
the required finding expose the defendant to a greater punishment than that authorized by the
jury’s guilty verdict?” Apprendi, 530 U.S. at 494.
7. In Hurst v. State, 202 So. 3d 40 (Fla. 2016), 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 a unanimous finding of the
necessary facts and a unanimous death recommendation before a death sentence was authorized.
This unanimity requirement was not derived from Hurst v. Florida itself nor the Sixth
Amendment, but from the Florida Constitution, and alternatively from the Eighth Amendment.38
8. In Mosley v. State, 2016 WL 7406506, 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. (emphasis added). Again,
38The Eighth Amendment basis for the unanimity requirement is discussed infra. 48
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the requirement that the jury’s death recommendation had to be unanimous in order for it to
authorize a death sentence was not contained within Hurst v. Florida. As the Florida Supreme
Court explained in Hurst v. State the unanimity requirement arose when the mandate of Hurst v.
Florida intersected with Florida law: “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. Thus, Hurst v. State was broader in scope than Hurst v. Florida
because the substantive right under the Florida Constitution was found to apply. This was
because Hurst v. Florida meant the statutory facts necessary to authorize a death sentence were
elements of capital murder. That meant that the substantive right under Florida Constitution
required the jury to unanimously find the elements of a criminal offense:
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.
Id. at *53-54. It is important and bears repeating that the Florida Supreme Court acknowledged
that the unanimity requirement has not been found by the US Supreme Court to be mandated by
the Sixth Amendment and thus was not part of the ruling in Hurst v. Florida. The substantive
right that a conviction can only be returned by a unanimous jury verdict is 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
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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).
9. Hurst v. State issued on October 14, 2016. It delineates for the first time a Florida
capital defendant’s substantive right to a unanimous jury making the statutorily required finding
of facts necessary to authorize his death sentence. See King v. State, _ So. 3d _, 2017 WL
372081 (Fla. Jan. 26, 2017) (In Hurst v. State, [w]e further held that a unanimous jury
recommendation is required before a trial court may impose a sentence of death.”). The
substantive right found and identified in Hurst v. State had not previously been recognized by
the Florida Supreme Court. This substantive right recognized in Hurst v. State is a “fundamental
constitutional right” that “was not established within” one year of the date on which Mr. Byrd’s
death sentence became final. See Rule 3.851(d)(2)(B). Mr. Byrd is presenting this claim based
upon the fundamental constitutional right identified in Hurst v. State on October 14, 2016, within
one year of the date that Hurst v. State issued.
10. In McGirth v. State, _ So. 3d _, 2017 WL 372095 (Fla. Jan. 26, 2017), the Florida
Supreme Court applied the fundamental constitutional right to a unanimous jury verdict
recommending a death sentence retroactively:
On remand from the Supreme Court, 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.” Hurst, 202 So.3d at 54. We further held that a unanimous jury recommendation is required before a trial court may impose a sentence of death. Id.
McGirth, 2017 WL 372095 at *12. The Florida Supreme Court ordered a resentencing in
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McGirth “[b]ecause the jury vote was eleven to one”.Id. The failure to return a unanimous death
recommendation could not be found to be harmless beyond a reasonable because the record
established that the jury was not unanimous and did not return a unanimous death
recommendation.
11. In King v. State, 2017 WL 372081 at *17, the Florida Supreme Court asserted:
in Mosley v. State, Nos. SC14–436 & SC14–2108, ––– So.3d ––––, 2016 WL 7406506 (Fla. Dec. 22, 2016), we further held that our decision in Hurst v. State applies retroactively to those postconviction defendants whose sentences were final after the United States Supreme Court's 2002 decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Thus, the Florida Supreme Court has itself recognized that Hurst v. State “has been held to apply
retroactively.” See Rule 3.851(d)(2)(B). However, the Witt analysis set forth in Mosley was
limited to only analyzing retroactivity post-Ring in light of the decision in Asay v. State.
However, Asay v. State conducted no retroactivity analysis under Witt regarding the
substantive right identified in Hurst v. State as an examination of the decision in Asay v. State,
2016 WL 7406506 reveals. This suggests that King is referencing the Sixth Amendment
discussion in Hurst v. State, not the Eighth Amendment right.
12. The absence of any consideration of the fundamental right identified in Hurst v.
State from is glaringly apparent when the portion of the Asay opinion addressing the “Effect on
the Administration of Justice” aspect of the Witt analysis is reviewed. Asay, 2016 WL 7406538
at *12-13. There, Asay relied upon the Witt analysis of Ring v. Arizona that was set forth in
Johnson v. State, 904 So. 2d 400 (Fla. 2005), a decision issued long before Hurst v. State
explained the holding in Hurst v. Florida and recognized the fundamental constitutional right to
a unanimous death recommendation before a death sentence was permissible.39 In that context
39The Florida Supreme Court’s reliance upon Johnson v. State at all is perplexing given that in Asay v. State it recognized:
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with a completely different understanding of the Sixth Amendment right identified in Apprendi
and Ring, the Florida Supreme Court did not find any benefit to the administration of justice
would result. The Asay opinion specifically relied upon this and stated:
we concluded that “[t]o apply Ring retroactively in Florida would ... ‘consume immense judicial resources without any corresponding benefit to the accuracy or reliability of penalty phase proceedings.’ ” Id. at 412.
Although we recognize that Johnson's analysis of the first prong of Witt was impacted by an incorrect understanding of the Sixth Amendment claim, the analysis as to the impact on the administration of justice holds the same force.
Asay v. State, 2016 WL 7406538 at *13 (emphasis added). And no reference was made regarding
the right to a unanimous death recommendation recognized in Hurst v. State.
13. Notably in Hurst v. State, the Florida Supreme Court had explained at length the
considerable benefit to the administration of justice that the substantive right to a unanimous
death recommendation would provide because it would result in 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
[O]ur retroactivity analysis in Johnson hinged upon our understanding of Ring's application to Florida at that time. Thus, we did not treat the aggravators as elements of the crime that needed to be found by a jury to the same extent as other elements of the crime. Specifically, because we were still bound by Hildwin[v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989)], we did not properly analyze the purpose of the new rule in Ring, which was to protect the fundamental right to a jury in determining each element of an offense. With the issuance of Hurst v. Florida, in which the United States Supreme Court overruled its decision in Hildwin, we conclude that this Court must now reconsider its prior decision in Johnson.
Asay, 2016 WL 7406538 at *8. Nevertheless, the reliance on Johnson clearly demonstrates that the ruling in Hurst v. State recognizing a fundamental constitutional right to a unanimous death recommendation was not part of the Witt analysis conducted in Asay. 52
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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).
Further, it has been found based on data that “behavior in juries asked to reach a unanimous verdict is more thorough and grave than in majority-rule juries, and that the former were more likely than the latter jurors to agree on the issues underlying their verdict. Majority jurors had a relatively negative view of their fellow jurors' openmindedness and persuasiveness.” See Elizabeth F. Loftus & Edith Greene, Twelve Angry People: The Collective Mind of the Jury, 84 Colum. L.Rev. 1425, 1428 (1984). Another study disclosed that capital jurors work especially hard to evaluate the evidence and reach a unanimous verdict where they can find agreement. See Scott E. Sundby, War & Peace in the Jury Room: How Capital Juries Reach Unanimity, 62 Hastings L.J. 103 (2010). Unanimous-verdict juries tend to be more evidence driven, generally delaying their first vote until the evidence has been discussed. See Kate Riordan, Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation After McDonald, 101 J.Crim. L. & Criminology 1403, 1429 (2011). Further, juries not required to reach unanimity tend to take less time deliberating and cease deliberating when the required majority vote is achieved rather than attempting to obtain full consensus; and jurors operating under majority rule express less confidence in the justness of their decisions. See, e.g., Kim Taylor–Thompson, *59 Empty Votes in Jury Deliberations, 113 Harv. L.Rev. 1261, 1272–73 (2000). All these principles would apply with even more gravity, and more significance, in capital sentencing proceedings. 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.
202 So. 3d at 58-59 (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 (explaining juror unanimity “will help to ensure the
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heightened level of protection necessary for a defendant who stands to lose his life as a
penalty”).40 Ultimately in Hurst v. State, the Florida Supreme Court stated:
For all the foregoing reasons, 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.
202 So. 3d at 63. Improvement in “the administration of justice” was specifically identified as a
compelling basis for its recognition of the fundamental constitutional right to a unanimous death
recommendation before a death sentence was permissible. Clearly, Hurst v. State was not part of
the Witt analysis in Asay as demonstrated by its reliance upon Johnson v. State as showing that
there is no benefit to the administration of justice to be gained from retroactively applying the
Sixth Amendment right identified in Apprendi and Ring and set forth in Hurst v. Florida.41 Of
course, the defendant in Asay did not present a claim under Hurst v. State when he filed his
3.851 motion under the exigencies of a death warrant on January 27, 2016, eight and a half
months before the substantive constitutional right was recognized on October 14, 2016, in Hurst
40In Hurst v. State, the Florida Supreme Court observed that studies comparing majority rule juries to those required to return a unanimous verdict showed enhanced reliability in unanimous verdicts. 202 So. 2d at 58 (“ it has been found based on data that ‘behavior in juries asked to reach a unanimous verdict is more thorough and grave than in majority-rule juries, and that the former were more likely than the latter jurors to agree on the issues underlying their verdict. Majority jurors had a relatively negative view of their fellow jurors' openmindedness and persuasiveness.’”) (emphasis added); Id. (“juries not required to reach unanimity tend to take less time deliberating and cease deliberating when the required majority vote is achieved rather than attempting to obtain full consensus; and jurors operating under majority rule express less confidence in the justness of their decisions.”) (emphasis added). 41In contrast to Asay, the Court in Mosley noted the benefit to be reaped from Hurst v. State in the course of its Witt analysis when it quoted from Hurst v. State:
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.” Id. at 60.
Mosley, 2016 WL 7406506 at *21. 54
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v. State.
14. While Hurst v. State has been held to apply retroactively, the Florida Supreme
Court did not conduct a Witt analysis as to the retroactive application of Hurst v. State to cases
final before the issuance of the opinion in Ring v. Arizona. When the enhanced reliability
afforded by the fundamental right to a unanimous death recommendation is part of the Witt
analysis, it is clear that Hurst v. State should be applied retroactively in Mr. Byrd’s case. See
Desist v. United States, 394 U.S. at 262 (Harlan, J., dissenting) (“constitutional rules which
significantly improve the pre-existing fact-finding procedures are to be retroactively applied”).
Replacing a majority vote verdict with a requirement that the jury must be unanimous when
returning a death recommendation is markedly different that switching from a judge to jury as
the finder of fact. See 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
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.
15. What is also clear is that the right to a unanimous death recommendation is being
extended to defendant’s whose homicide convictions were final long before June 24, 2002, the
date that Ring v. Arizona issued.42 See Johnson v. State, 205 So. 3d 1285 (Fla. 2016); Armstrong
v. State, 2017 WL 224428 (Fla. Jan. 19, 2017). In Claim I, Mr. Byrd identified defendants who
will receive the benefit of Hurst v. State, and whose offenses were committed prior to the
homicide surrounding Mr. Byrd’s death sentence. This is fundamentally unfair, a clear manifest
42It is also perplexing why the date that Ring issued would have anything to do with who gets the benefit of the right to a unanimous death recommendation when it is recognized that neither Ring v. Arizona nor Hurst v. Florida said anything about a right to a unanimous death recommendation. 55
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injustice, and without a principled reason.
B. The Eight Amendment Basis for Requiring a Unanimous Death Recommendation
16. The Florida Supreme Court in Hurst v. State 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 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:
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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.
17. 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). “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). “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).
18. 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.43 The US Supreme Court has
43As this amended motion is being prepared, the Governor has before him legislation that requires that a death recommendation must be unanimous before a judge is empowered to impose a death sentence. If the Governor signs the legislation and it is enacted, the evolving standards will have evolved further and have been codified. This further strengthens the argument that the substantive right must be applied retroactively, just as the legislation barring the imposition of a death sentence on an intellectually disable defendant had to be applied retroactively to all capital cases regardless of when a death sentence was imposed. 57
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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 has received a unanimous jury verdict finding the facts necessary to
authorize the imposition of a death sentence and a unanimous jury vote against extending mercy
and recommending the imposition of death sentence.44 As a result, those defendants who have
are not known to have a unanimous jury vote in favor of death are ineligible to receive a death
sentence. This class of defendants cannot be executed under the Eighth Amendment.
19. Mr. Byrd is within a protected class. As explained elsewhere in this motion, all
that is known is that death was voted in favor of by a “majority of twelve.”45 Thus, no one can
infer whether a unanimous jury voted in favor of death. Under the Eighth Amendment, Mr.
Byrd’s execution would thus constitute cruel and unusual punishment. His death sentence must
accordingly be vacated.
20. Hurst v. State must be applied retroactively. When a juror in a capital proceeding
44 Former 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). 45 On July 26, 1982, the jury submitted its advisory verdict. The verdict form read “[w]e the jury, by a majority of twelve, advise and recommend to the Court that it impose the death penalty.” Judge Alvarez, the sentencing judge,testified that a “[m]ajority of twelve could be seven five.” (PCR2. 1519). Further, the jury poll simply confirmed that a majority of the jury had voted to recommend a death sentence. (R. 1350-52).
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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 do not have or are not
known to have a unanimous jury recommendation of death. The Eighth Amendment decision in
Hall v. Florida, 134 S. Ct. 1986 (2014), “removes from the State [the] authority to impose death
sentences” in a category of cases. Walls, 2016 WL 6137287 at *5. “[Mr. Byrd’s] eligibility or
ineligibility for execution must be determined in accordance with the correct United States
Supreme Court jurisprudence.” Id. at *8 (Pariente, J., concurring). “More than fundamental
fairness and a clear manifest injustice, the risk of executing a person who is not
constitutionally able to be executed, trumps any other considerations that this Court looks to
when determining if a subsequent decision of the United States Supreme Court should be
applied.” Id. (emphasis added).
21. 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 Mr. Byrd. 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
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habeas.”) (emphasis added).46 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.
22. 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 United States 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 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.
23. Under Hurst v. State, a death sentence may not be imposed upon a class of
46See 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.”). 60
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defendants where jury either voted for life or its majority recommendation is unknown. As to
those within that class of defendants, Hurst v. State must be applied retroactively. As Mr. Byrd is
a member of that class of defendants, he must be afforded the retroactive benefit of Hurst v.
State.
24. When one or more jurors in a capital proceeding have 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 afforded 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 when one or more jurors voted for life or when
it cannot demonstrate that a unanimous jury voted for death. 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 Mr. Byrdx.
25. 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 v. State 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 United States
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, 61
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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.47 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 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.”). For similar reasons, Gaskin, Bogle, and Lambrix do not answer whether the Eighth
Amendment right recognized in Hurst v. State applies retroactively to pre-Ring capital
defendants. Put simply, none of those opinions address the Eighth Amendment right to a
unanimous death recommendation recognized in Hurst v. State, and none of those defendants
actually briefed that issue.48
47Arguably, 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). 48 It was only in a motion to relinquish that Gaskin and Lambrix raised the Eighth Amendment right recognized in Hurst v. State. Those motions are now moot in light of the denials of relief that were based upon what was actually briefed by the parties. Bogle never raised an Eighth Amendment right to a unanimous death recommendation. 62
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26. Alternatively under the fundamental fairness approach to retroactivity set forth in
Mosley, Mr. Byrd is entitled to the retroactive application of Hurst v. State to his case. It would
be fundamentally unfair to deprive Mr. Byrd 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, Johnson,Hardwick, and Hildwin will be receiving the benefit of Hurst v. State
in connection with homicides that pre-date the one for which Mr. Byrd was convicted. Some
defendants who will receive the benefit of Hurst were convicted and sentenced to death before
Mr. Byrd’s trial even started. 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 Mr. Byrd of the same benefit,
application of the new rule of law set forth in Hurst v. State. 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
63
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similarly situated defendants the same.” Id. at 323. While Mr. Byrd’s death sentences were final
when Hurst v. State 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.
State issued, those defendants were free of the shackles of finality. Fundamental fairness requires
that Mr. Byrd receive the benefit of the fundamental constitutional right identified in Hurst v.
State.
C. Conclusion
27. Under Hurst v. State, Mr. Byrd’s 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. Three jurors voted in favor of life as to all three homicide convictions. This
places Mr. Byrd in a substantive class (i.e. those who are not known to have a unanimous jury
vote for death) who may not be sentenced to death. Under Hurst v. State, Mr. Byrd’s death
sentence cannot stand. Rule 3.851 relief must issue and his death sentences must be vacated.
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 Mr. Byrd’s 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 Furman v. Georgia, 408 U.S. 238, 239-40 (1972) , the US Supreme Court
64
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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”); Gregg v.
Georgia, 428 U.S. 153, 187–88 (1976) (stating that “death is different in kind” and as a
punishment is “unique in its severity and irrevocability”); Furman v. Georgia, 408 U.S. at 238,
286 (1972) (Brennan, J., concurring) (“Death is a unique punishment in the United States.”).
3. In Hall v. Florida, 134 S. Ct. 1986, 2001 (2014), the US Supreme Court found
that Florida’s procedure for determining intellectual disability was inadequate to reliably insure
that an intellectually disabled defendant was not executed. “A State that ignores the inherent
imprecision of these tests risks executing a person who suffers from intellectual disability.” Id. at
2001. Because Florida ignored that inherent imprecision, the Supreme Court found that
“Florida's rule is invalid under the Constitution's Cruel and Unusual Punishments Clause.” Id.
The Supreme Court explained: “The death penalty is the gravest sentence our society may
impose. Persons facing that most severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution. Florida's law contravenes our Nation's commitment to
dignity and its duty to teach human decency as the mark of a civilized world.”
4. The heightened need for reliability in the capital sentencing process was
recognized by the Florida Supreme Court when in 1999 when it adopted minimum standards for
attorneys in capital cases. See Fla. R. Crim. P. 3.112. When issuing Rule 3.112, the court 65
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explained that the minimum standards were: “an important step in ensuring the integrity of the
judicial process in capital cases by adopting a rule of criminal procedure to help ensure that
competent representation will be provided to indigent capital defendants in all cases.” In re
Amendment to Fla. Rules of Crim. Pro., 759 So. 2d 610, 611 (Fla. 1999) (emphasis added). It
further noted: “This Court has a continuing obligation to ensure the integrity of the judicial
process in all cases. Our overview is especially important in death penalty cases.” Id. at 612.
5. In Arbelaez v. Butterworth, 738 So. 2d 326, 326-27 (Fla. 1999), the Florida
Supreme Court acknowledged its Eighth Amendment obligation in insuring fair capital process
that operated in a reliable manner:
We acknowledge we have a constitutional responsibility to ensure the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the postconviction process.
(emphasis added).
6. In Allen v. Butterworth, 756 So. 2d 52, 67 (Fla. 2000), the Florida Supreme Court
explained that competent representation by collateral counsel was critical and necessary in order
to insure reliability in capital cases:
A reliable system of justice depends on adequate funding at all levels. Obviously, this means adequate funding for competent counsel during trial, appellate, and postconviction proceedings for both the State and the defense, including access to thorough investigators and expert witnesses. It is critical that this state provides for adequately funded and trained public defenders, conflict counsel, and CCR and registry counsel, as these are vital to the reliability and efficiency of the trial, appellate, and postconviction process.
(emphasis added) (footnotes omitted).
7. In Fla. Dep’t of Financial Services v. Freeman, 921 So. 2d 598 (Fla. 2006),
Justice Pariente wrote a specially concurring opinion and observed: “the credibility of our
death penalty system depends in large part on the quality of the attorneys who undertake the 66
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representation.” Id. at 921 So. 2d at 604 (emphasis added). Justices Anstead and Cantero
concurred in her opinion.
8. 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. Both cases
presented the question of the retroactivity of Hurst v. Florida. However, the Florida Supreme
Court broke apart its Witt v. State standard and held Hurst v. Florida to be retroactive in
Mosley’s 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.49 In Asay, the Florida
Supreme Court superficially at least seemed to suggest that there were just two categories of
49When 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). 67
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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.50 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 than merely the two
referenced in Asay. That is a by product of eschewing an objective standard in favor of
standardless subjectivity.
9. 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
50Of course, there are other categories that were not before the court in either Asay or Mosley. The court did not consider those death sentences that became final after the issuance of Apprendi v. New Jersey, 530 U.S. 466 (2000), but before the issuance of Ring. In Hurst v. Florida, 136 S. Ct. 616 (2016), the US Supreme Court relied upon Apprendi as the basis for ruling that Spaziano v. Florida, 468 U.S. 447 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989) were “wrong, and irreconcilable with Apprendi.” 136 S. Ct. at 623. The Supreme Court specifically held: “And in the Apprendi context, we have found that ‘stare decisis does not compel adherence to a decision whose “underpinnings” have been “eroded” by subsequent developments of constitutional law.’” Id. at 623-24. It was on the basis of Apprendi that the Supreme Court concluded that the legal principle employed in Spaziano and Hildwin “was wrong.” Hurst, 136 S. Ct. at 623. In neither Asay nor Mosley did the Florida Supreme Court conduct a Witt analysis of the post-Apprendi cases. In Apprendi the US Supreme Court indicated that its ruling there:
was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), construing a federal statute. We there noted that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id., at 243, n. 6, 119 S.Ct. 1215. The Fourteenth Amendment commands the same answer in this case involving a state statute.
Apprendi, 530 U.S. at 476 (emphasis added). If Apprendi was foreshadowed by Jones, what about post-Jones cases? And in Jones, Justice Stevens in a concurrence wrote that the result in Jones was premised upon In re Winship, 397 U.S. 358 (1970), Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432 U.S. 197 (1977). Jones, 526 U.S. at 253 (Stevens, J., concurring). The majority opinion in Jones not only relied upon Mullaney, but it also called into question the decisions in Spaziano v. Florida, 468 U.S. 447 (1984), Hildwin v. Florida, 490 U.S. 638 (1989), and Walton v. Arizona, 497 U.S. 639 (1990). Jones, 526 U.S. at 251-52. 68
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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 a pretty explicit recognition
that there are pre-Ring people who may get the benefit of Hurst. If two pre-Ring defendants who
were sentenced to death pursuant to a judicial override of a life recommendation qualify for the
benefit of Ring because their jury voted 6-6, it is inconsistent not to afford that benefit to an 11-1
death recommendation. The distinction between a 6-6 life recommendation and an 11-1 death
recommendation could hardly justify this inconsistency, as the 11-1 death recommendation is
presently a judicial override under current constitutional standards. This is particularly troubling
with the bias created in favor of death that Mr. Byrd faced because, as noted in Caldwell v.
Mississppi, jurors are more likely to vote in favor of death when told responsibility for a death
sentence rests elsewhere . This is precisely what Florida’s statutory scheme did to the jury when
informing it that its recommendation is advisory.
10. 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.
11. 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.
12. In Mosley, Justice Quince joined the majority opinion recognizing that pre-Ring
69
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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 are open to extending the benefit of Hurst v. Florida
retroactively in pre-Ring cases.
13. The State has filed a motion for rehearing in Mosley complaining that the Florida
Supreme Court “has created confusion and caused an unnecessary unsettling of the law.”
(Motion for Rehearing at 2, Mosley v. State, Case No. SC14-2108). The State noted that only “on
rare and limited occasion, [had the] Court [] permitted retroactive application of new law out of a
concern for fairness without performing the three-part analysis from Witt.” (Motion for
Rehearing at 3, Mosley v. State, Case No. 14-2108). This is way of agreeing that until December
22, 2016, the Witt analysis had always been binary. The two cases that the State cite as the
occasions that this Court has permitted a retroactive application as the State notes did not involve
or include the Witt analysis, but instead turned on fundamental fairness. So, it appears that the
State agrees that a partial retroactivity result under Witt is unprecedented. In fact, the State
argues the “substantive analyses set forth in [Mosley] violate fundamental principles found
in existing precedent.” (Motion for Rehearing at 2, Mosley v. State, Case No. SC14-2108). This
is another way of saying the retroactivity analyses employed in Asay and Mosley were arbitrary
and ad hoc.
14. The State is not alone in that view. A majority of the justice 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 70
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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 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.”).51 Justice Polston concurred in Justice Canady’s dissent in Mosley.
51Justice 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 71
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15. 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 ‘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).52 “[S]elective application of new rules violates the principle of treating
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. 52 Justice Harlan in his dissent in Desist v. United States wrote:
We do not release a criminal from jail because we like to do so, or because we 72
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similarly situated defendants the same.” Id. at 323.
16. While Mr. Byrd’s death sentence was final when Hurst v. Florida issued, other
capital defendant whose death sentences had been final, including Hurst’s, had the good luck and
good timing to be free of the shackles of finality at the moment that Hurst v. Florida issued..53
The decisions in Asay and Mosley have opened the door to arbitrariness infecting Florida’s death
penalty system in violation of the Eighth Amendment. See Desist v. United States, 394 U.S., at
258-259 (Harlan, J., dissenting) (“[W]hen another similarly situated defendant comes before us,
we must grant the same relief or give a principled reason for acting differently. We depart from
this basic judicial tradition when we simply pick and choose from among similarly situated
defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.”).
Because Florida ignored the inherent imprecision in testing for intellectual disability, the
Supreme Court found that “Florida's rule is invalid under the Constitution's Cruel and Unusual
Punishments Clause.” Hall v. Florida, 134 S. Ct. at 2001. In abandoning the binary approach to
retroactivity, the court has embraced imprecision as it sifts through death penalty cases in
collateral review on a case by case ad hoc approach.54 As five justices of the Florida Supreme
think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.
394 U.S. at 258-59. 53 In Witt v. State, 387 So. 2d 922, 926 (Fla. 1980), the Florida Supreme Court noted the Eighth Amendment required extra weight to be given to “individual fairness because of the possible imposition of a penalty as unredeeming as death.” In a footnote, the Florida Supreme Court wrote: “It bears mention that the constitutionality of Florida's capital sentencing procedures, s 921.141, Florida Statutes (1979), is contingent upon this Court's role of reviewing each case to ensure uniformity in the imposition of the death penalty.” Id. at 926 n.7 (emphasis added). 54The lengthy time consuming costly case-by-case analysis that the Florida Supreme Court has mandated in its Asay and Mosley opinions was not factored into the effect on the administration 73
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Court recognized and as the State in its motion for rehearing in Mosley recognized, the new
approach to retroactivity insures an unreliable and arbitrary death penalty system will govern
collateral review of capital cases in Florida.
17. In Claim I of this motion, Mr. Byrd identified individuals who were convicted of
murder and sentenced to death for homicides before the one for which he was convicted. He also
identified individuals who will receive the benefit of Hurst and the entitlement to a life sentence,
assuming the jury does not return a unanimous death recommendation. As a result, the integrity
of Florida’s death penalty system has been shredded; it has been so infected with arbitrariness
that it violates the Eighth Amendment. Accordingly, Mr. Byrd’s death sentence cannot stand. He
is entitled to Rule 3.851 relief.
CLAIM IV
THE RECENT DECISIONS IN HURST V. STATE AND IN PERRY V. STATE MEAN THAT AT A RESENTENCING ORDERED IN A CAPITAL CASE A UNANIMOUS DEATH RECOMMENDATION WILL BE REQUIRED AND THAT ASPECT OF A RESENTENCING ORDER IN MR. BYRD’S CASE MUST BE PART OF THE SECOND PRONG ANALYSIS OF MR. BYRD’S PREVIOUSLY PRESENTED NEWLY DISCOVERED EVIDENCE CLAIMS, AND REQUIRES THIS COURT REVISIT MR. BYRD’S NEWLY DISCOVERED EVIDENCE CLAIMS AND DETERMINE WHETHER THE NEW EVIDENCE AND ALL THE OTHER ADMISSIBLE EVIDENCE AT A RESENTENCING IN WHICH THE NEW STATUTE WOULD GOVERN WOULD PROBABLY RESULT IN LIFE SENTENCES.
This claim is evidence by the following:
1. All factual allegations contained elsewhere within this motion and set forth in the
Mr. Byrd’s previous motions to vacate, and all evidence presented by him during previous
evidentiary hearings on the previously presented motions to vacate are incorporated herein by
specific reference.
of justice analysis when the court denied Asay the benefit of Hurst v. Florida. 74
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2. On March 7, 2016, Chapter 2016-13 was signed into law. It substantially revised
Florida’s capital sentencing statute. 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).
3. 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
provision making a 10-2 vote by the jury a necessary predicate for a death sentence was
unconstitutional because it did not require unanimity. 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.
2016 WL 6036982 at 8. Jurors may also choose to vote in favor of a life sentence in order 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.”).55
4. This is the law, which was announced on October 14, 2016, that now governs
when a death sentence is vacated and a resentencing 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.
55 Residual doubt, while not necessarily mitigating, could lead one of more jurors to chose mercy and vote in favor of a life sentence. 75
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Hurst v. State, 202 So. 3d at 62. In Mosley v. State, the Florida Supreme Court explained that it
had held in Hurst v. State:
that “these specific findings required to be made by the jury include the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances.” Id. Further, 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.
2016 WL 7406506 at *18. At a resentencing in Mr. Byrd’s case, this law would govern.
vote in favor of a life sentence, according to the statute, a death sentence cannot be imposed.
5. In Hildwin v. State, 141 So. 3d 1178, 1184 (Fla.2014), the Florida Supreme Court
explained then 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.
6. In Swafford v. State, 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.
7. Put simply, the analysis requires envisioning how a new trial or resentencing
would look with all of the evidence that would be available. Thus, the issue is whether in light of
all of the evidence admissible at a resentencing it is likely that at least one juror would not join a
death recommendation, but would instead vote in favor of a life sentence.
8. The law that would govern at a resentencing must be part of the analysis. Under 76
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Perry v. State and Hurst v. State, which will govern at a resentencing, now require that the jury
unanimously determine what aggravating factors exist, then find that those aggravators are
sufficient to justify a death sentence, and then find that the aggravators outweigh the mitigating
factors before a death sentence is authorized. Those decision require the jury to unanimously
recommend a death sentence before the sentencing judge can impose a death sentence. Thus, a
single juror’s vote in favor of life precludes the imposition of a death sentence.
9. This is new Florida law did not exist when Mr. Byrd previously presented his
previous postconviction motions. Thus, before the issuance of Perry v. State and Hurst v. State
on October 14, 2016, Mr. Byrd could not present his claim as set forth herein because the new
law that would govern any resentencing ordered in Mr. Byrd’s case did not yet exist. Mr. Byrd’s
previously presented claims must be reevaluated in light of the new Florida law.
10. Unanimity produces reliability. In Hurst v. State, the Florida Supreme Court
emphasized the tremendous importance of unanimity in capital cases by stating 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.” Hurst v. State,
2016 WL 6036978, at *14 (emphasis added). See also State v. Steele, 921 So. 2d 538, 549 (Fla.
2005) (“[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.”) (internal citation and original source omitted). The
Florida Supreme Court further 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. Hurst v. State, 2016 WL 6036978, at *15 (bolded text added). In sum, the purpose of Florida’s
77
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new law requiring unanimity before death sentences may be imposed is reliability. A mere
majority damages a sentence’s reliability. Implicit in the justification for the new Florida law is
an acknowledgement that Florida death sentences that were imposed under the old capital
sentencing scheme were (or are) less reliable. Before an execution is carried out in a case where
the death sentence’s reliability is subpar compared to the rest of the country, a re-evaluation of
such a sentence should be made in light of Hurst v. State, and Perry v. State. A previous denial
of a death sentenced individual’s Strickland claims, Brady claims, or newly discovered evidence
claims should be reexamined to ensure the sentence’s reliability. Certainly, a court’s denial of
any claim on the basis that six jurors would never have voted for life cannot comport with the
new law when all that is necessary now is to sway a single juror. Consequently, it seems that a
defendant’s burden to show that a different outcome would probably occur has been eased by the
new law. Indeed, this is so not only because Florida capital sentences lack “the highest degree of
reliability” due to non-unanimous sentencing but also because it is very likely that a single juror
could have been swayed by unpresented evidence. Such unpresented evidence might be the
result of deficient trial counsel, of withholding material documents from the defense, of failing
to correct false testimony, or a mere change of circumstances. As a result, because Hurst v. State
implicitly holds that existing Florida capital sentences are lacking in reliability, it appears that a
defendant’s burden to show prejudice under Strickland or Brady has also been eased by the new
law, as the prejudice prong in both Strickland and Brady speak to whether reliability in the
outcome has been undermined.
11. At Mr. Byrd’s 1982 penalty phase trial, a “majority of twelve” recommended
death. This was after they had been instructed that the sentencing recommendation was to be
based on “whether sufficient aggravating circumstances exist to justify the imposition of the
death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating 78
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circumstances found to exist.” When the newly discovered evidence is evaluated under Swafford
and Hildwin, and all of the evidence that would be admissible at a resentencing is evaluated
under the law that will govern, it is very likely that at least one juror would vote in favor of life.
The new evidence admissible at a resentencing would include Sullivan’s December 17, 1981,
statement that he would give the State Mr. Byrd “really good,” it would include Endress’ life
sentence, it would include all of the similar crimes and robberies committed by Sullivan and
Endress, it would include Sullivan’s statements to Love, and it would include Endress’
statements to Debra Williams. Under the revised statute, it is likely that this evidence presented
in the prior collateral motions would lead at least one juror to vote for a life sentence and
preclude the imposition of a death sentence, meaning a different outcome at a resentencing.
12. This Court must re-visit and re-evaluate Mr. Byrd’s previously presented newly
discovered evidence, Brady, and Strickland claims in light of Florida’s revised capital sentencing
statute pursuant to the standard enunciated in Swafford and Hildwin. When such a re-evaluation
is conducted, it is apparent that the outcome would probably be different and that Mr. Byrd
would receive a binding life recommendation from the jury. Accordingly, he is entitled to Rule
3.851 relief on his newly discovered evidence claims on the basis of new Florida law, i.e. the
revised capital sentencing statute.
13. In Thompson v. State, _ So. 3d _, 2016 WL 6649950 *1 (Fla. Nov. 10, 2016), the
Florida Supreme Court addressed whether Thompson was entitled to the retroactive benefit of
Hall v. Florida, 134 S. Ct. 1986 (2014). There, the Court acknowledged the more traditional
Witt analysis had already been applied to Hall v. Florida and determined it was to be applied
retroactively. But importantly, the Court also noted an alternative basis for giving Thompson the
benefit of Hall: “to fail to give Thompson the benefit of Hall, which disapproved of Cherry,
would result in a manifest injustice, which is an exception to the law of the case doctrine. See 79
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State v. Owen, 696 So.2d 715, 720 (Fla.1997)”). In State v. Owen, 696 So. 2d 715 (Fla. 1997),
the Florida Supreme Court had previously ruled that statements obtained from Duane Owen
were inadmissible as they had been obtained in violation of Owens’ rights under Miranda v.
Arizona, 384 U.S. 436 (1966). See Owen v. State, 560 So. 2d 207(Fla. 1990), cert denied,
Florida v. Owen, 498 U.S. 855.56 Prior to Owens’ retrial, the United States Supreme Court
rendered a decision in Davis v. United States, 512 U.S. 452 (1994).57 On the basis of Davis, the
State argued that Owens’ statements should be held to be admissible at Owens’ retrial. “[T]he
trial court held the confession inadmissible. The State next filed a petition for a writ of certiorari
in the district court of appeal.” State v. Owen, 696 So. 2d at 717. “Because the suppression of
Owen's confession was the law of the case, the [district] court denied the petition but certified [a]
question” to the Florida Supreme Court. Id. The Florida Supreme Court then set aside the law of
the case because of the intervening decision from the US Supreme Court:
Generally, under the doctrine of the law of the case, “all questions of law which have been decided by the highest appellate court become the law of the case which must be followed in subsequent proceedings, both in the lower and appellate courts.” Brunner Enters., Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla.1984). However, the doctrine is not an absolute mandate, but rather a self-imposed restraint that courts abide by to promote finality and efficiency in the judicial process and prevent relitigation of the same issue in a case. See Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965) (explaining underlying policy). This Court has the power to reconsider and correct erroneous rulings in exceptional circumstances and where reliance on the previous decision would result in manifest injustice, notwithstanding that such rulings have become the law of the case.
State v. Owen, 696 So. 2d 715, 720 (Fla. 1997) (emphasis added).
14. In Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla. 1965), the Florida Supreme Court
held that a court was not “wholly without authority to reconsider and reverse a previous ruling
56 The United States Supreme Court denied Florida’s petition for a writ of certiorari on October 1, 1990, meaning that the ruling in Owen v. State was final as of that date. 57 The decision in Davis issued on June 24, 1994, over four years after Owen v. State had issued, and three years and eight months after Owen v. State was final. 80
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that is ‘the law of the case.’” Strazzulla then explained that a court should be able to reconsider a
point of law previously decided within the history of a case:
[A]n exception to the general rule binding the parties to ‘the law of the case’ at the retrial and at all subsequent proceedings should not be made except in unusual circumstances and for the most cogent reasons-and always, of course, only where ‘manifest injustice’ will result from a strict and rigid adherence to the rule.
Id. (emphasis added). One example cited as an exception to the law of the case doctrine arose
when warranted by “considerations of public policy in order to give effect to the law of a sister
state and judicial orders regularly entered pursuant to such law.” Id. The Court then noted:
Another clear example of a case in which an exception to the general rule should be made results from an intervening decision by a higher court contrary to the decision reached on the former appeal, the correction of the error making unnecessary an appeal to the higher court.
Id. (emphasis added). To make it clear that it was not limiting the exceptions to the law of the
case doctrine, the Court observed: “Other examples which have appealed to courts of other
jurisdictions as proper exceptions to the general rule are set out in the annotation in 87 A.L.R.2d,
at pp. 299 et seq.” Thus, Strazzula stands for the proposition that a “court has the power to
reconsider and correct an erroneous ruling that has become ‘the law of the case.’” Strazzula, 177
So. 2d at 5.
15. A second and similar reason to revisit the previous rulings on Mr. Byrd’s newly
discovered evidence claims is the fundamental fairness approach set forth in Mosley v. State. As
noted there, a new appellate decision should be applied to a previously decided matter when
warranted by fundamental fairness. Florida’s jurisprudence has long recognized fundamental
fairness as a reason to revisit a previous decision when warranted due to new case law. See
Moreland v. State, 582 So. 2d 618, 619 (Fla. 1991); Fannin v. State 751 So. 2d 158, 161 (Fla. 2nd
DCA 2000); Benedit v. State, 610 So. 2d 699 (Fla. 3rd DCA 1992); Wright v. State, 604 So. 2d
81
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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.”). The United States Supreme Court
recently addressed a court’s inherent equitable powers to permit equitable tolling:
But we have also made clear that often the “exercise of a court's equity powers ... must be made on a case-by-case basis.” Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). In emphasizing the need for “flexibility,” for avoiding “mechanical rules,” Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946), we have followed a tradition in which courts of equity have sought to “relieve hardships which, from time to time, arise from a hard and fast adherence” to more absolute legal rules, which, if strictly applied, threaten the “evils of archaic rigidity,” Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 248, 64 S.Ct. 997, 88 L.Ed. 1250 (1944). The “flexibility” inherent in “equitable procedure” enables courts “to meet new situations [that] demand equitable intervention, and to accord all the relief necessary to correct ... particular injustices.” Ibid. (permitting postdeadline filing of bill of review). Taken together, these cases recognize that courts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.
Holland v. Florida, 560 U.S. 631, 649-50 (2010). See Martel v. Clair, 132 S. Ct. 1276, 1285
(2012) (purpose of providing counsel to federal habeas petitioners “to foster ‘fundamental
fairness in the imposition of the death penalty.’” ); Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847 (1988) (Fed. R. Civ. P. 60(b) “provides courts with authority ‘adequate to
enable them to vacate judgments whenever such action is appropriate to accomplish justice.’”).
As an equitable concept and like exception to the law of the case doctrine, fundamental fairness
must be addressed on a case-by-case basis. 82
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16. The manifest injustice exception to the law of the case doctrine clearly applies to
the Florida Supreme Court’s rejection of Mr. Byrd’s newly discovered evidence claims in its
2010 and 2013 opinions. Indeed, the purpose of the law announced in Hurst v. State, 202 So. 3d
40 (Fla. 2016), is to make death sentences more reliable:
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).
Hurst v. State, 202 So. 3d at 58 (emphasis added). 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 (juror unanimity “will help to ensure the
heightened level of protection necessary for a defendant who stands to lose his life as a
penalty”).58 See Desist v. United States, 394 U.S. at 262 (Harlan, J., dissenting) (“constitutional
58In Hurst v. State, the Florida Supreme Court relied upon studies comparing majority rule juries to those required to return a unanimous verdict. 202 So. 2d at 58 (“ it has been found based on data that ‘behavior in juries asked to reach a unanimous verdict is more thorough and grave than in majority-rule juries, and that the former were more likely than the latter jurors to agree on the issues underlying their verdict. Majority jurors had a relatively negative view of their fellow jurors' openmindedness and persuasiveness.’”) (emphasis added); Id. (“juries not required to reach unanimity tend to take less time deliberating and cease deliberating when the 83
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rules which significantly improve the pre-existing fact-finding procedures are to be retroactively
applied”).59 This further demonstrates the manifest injustice exception to the law of the case
doctrine requires revisiting Mr. Byrd’s previously presented newly discovered evidence claims.
Hurst v. State must be part of the evaluation of whether it is more likely than not that at a
resentencing at least one juror would vote to recommend a life sentence, and as a result, a life
sentence would be the only sentencing option.
17. Another reason that the Florida Supreme Court’s decision rejecting Mr. Byrd’s
newly discovered evidence claims must be revisited is the fact that the Florida Supreme Court in
Mosley v. State wrote: “Because Florida's capital sentencing statute has essentially been
unconstitutional since Ring in 2002, fairness strongly favors applying Hurst, retroactively to that
time.” 2016 WL 7406506 at *23. If Hurst v. Florida and Hurst v. State are to be treated as the
governing law of Florida effective in 2002, then it was the governing law when the Florida
Supreme Court issued its opinion denying Mr. Byrd’s newly discovered evidence claims. If
Hurst v. Florida and Hurst v. State are to be treated as the law effective June 24, 2002, when
Ring v. Arizona issued, they must be applied across the board to direct appeals and collateral
rulings alike. Under Hurst v. State, the Florida Supreme Court’s denial of Mr. Byrd’s newly
discovered evidence claims failed to properly recognize that at a resentencing it is exceedingly
likely that at least one juror would vote in favor of life sentences and that would mean death
sentences could not be imposed. Under Hurst v. State, the newly discovered evidence would
required majority vote is achieved rather than attempting to obtain full consensus; and jurors operating under majority rule express less confidence in the justness of their decisions.”) (emphasis added). 59Replacing a majority vote verdict with a requirement that the jury must be unanimous when returning a death recommendation is markedly different that switching from a judge to jury as the finder of fact. See 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.”). 84
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most assuredly result in a different outcome at a resentencing. That means a resentencing must
be ordered.
18. To refuse to revisit the previously presented newly discovered evidence claims
would punish Mr. Byrd for diligently investigating and presenting his newly discovered evidence
claims. Because if his claims were presented today, the analysis required by Hildwin and
Swafford would require a resentencing to be ordered. Mr. Byrd would certainly have at least one
juror voting for a life sentence and that would require the imposition of life sentences. See Hall
v. Florida, 134 S. Ct. 1986, 2001 (2014) (“The death penalty is the gravest sentence our society
may impose. Persons facing that most severe sanction must have a fair opportunity to show that
the Constitution prohibits their execution.”). Consequently, in light of the new sentencing
statute, it is likely that at least one juror would vote in favor of a life sentence. This would mean
that a life sentence would be required and a different outcome at the resentencing would occur.
Accordingly, Mr. Byrd is entitled to a new sentencing proceeding pursuant to Swafford and
Hildwin.
19. Rule 3.851 relief is warranted. Mr. Byrd’s death sentence must be vacated and a
new penalty phase ordered. CLAIM _ AN ADDITIONAL CLAIM MAY ARISE FROM THE ENACTMENT OF A NEW CAPITAL SENTENCING STATUTE As Mr. Byrd has been preparing this amended motion, legislation was passed by both the
Senate and the House revising Florida’s capital sentencing scheme. Whether this legislation is
enacted is currently up to the Governor who has not scheduled or rescheduled any executions
while Florida has been without a constitutional capital sentencing statute. If the Governor did not
schedule executions or sign death warrants because there was no current capital sentencing
statute in place, it is unclear whether he will sign the legislation into law since it codifies the 85
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substantive right to a unanimous death recommendation identified in Hurst v. State.
The effect of a statute that prohibits a death sentence when the jury fails to return a
unanimous death recommendation on existing death sentences in cases where one or more jurors
voted against recommending a death sentence seems problematic. This is particularly true in
light of the Governor’s decision to hold off on death warrants pending the enactment of a new
statute. The two most recent death warrants that the Governor signed and which remain active
are in cases in which juries did not return unanimous death recommendations. It is at best
illogical for the Governor both to hold off executions and any attempts to reschedule such
executions because a constitutional capital sentencing statute was not in place and to reschedule
such executions upon a statute’s enactment which precludes death sentences unless a jury
ensured that the substantive right to a unanimous death recommendation was met.
In any event, Mr. Byrd is not currently in a position to pled any claim or claims that he
may have arising from statutory revision that has yet to be enacted. However, he wishes to
inform this Court that a possibility exists that he may need to once again amend his motion to
vacate once a statutory revision is enacted.
CONCLUSION
Based on the foregoing, Mr. Byrd 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, Brady, and newly discovered evidence 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)
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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.
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. Byrd, that counsel to the best of his 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 Second Amended Successive
Motion to Vacate Judgments of Convictions and Sentence has been furnished by electronic mail
to all counsel of record through the electronic service provide by the e-portal on March 13, 2017.
Respectfully submitted,
/s/ Martin J. McClain Martin J. McClain Florida Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street. Wilton Manors, FL 33334 [email protected] (305) 984-8344
BRYAN E. MARTINEZ Florida Bar No. 0119286
COUNSEL FOR MR. BYRD
87
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Filing # 53670953 E-Filed 03/13/2017 11:55:13 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. CASE NO. 81-CF-010517
MILFORD WADE BYRD, Defendant. ______/ MOTION TO EXCEED PAGE LIMITATION The Defendant, MILFORD WADE BYRD, by and through undersigned counsel,
respectfully moves this Court to allow him to exceed the page limitation in his amended successive Rule 3.851 motion filed simultaneously with this motion. In support, Mr. Byrd submits as follows: 1. Mr. Byrd is under a sentence of death. With this motion, Mr. Byrd is filing a second amended successive motion to vacate his sentence of death pursuant to Rule 3.851. 3. Fla. R. Crim. P. 3.851(e)(2) directs that “a successive motion shall not exceed 25 pages, exclusive of attachments.” 4. Mr. Byrd’s amended motion is 87 pages in length. The amended successive Rule 3.851 motion includes claims premised upon the January 12, 2016 ruling in Hurst v. Florida, 136 S. Ct. 616 (2016), the October 14, 2016 rulings in Perry v. State, __ So. 3d __, 2016 WL 6036982, (Fla. 2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), the October 20, 2016 ruling in Walls v. State, _So. 3d _, 2016 WL 6137287 (Fla. Oct. 20, 2016), the November 10, 2016
ruling in Thompson v. State, _ So. 3d _, 2016 WL 6649950 (Fla. Nov. 10, 2016), the December
1, 2016 ruling in Johnson v. State, _ So. 3d _, 2016 WL 7013856 (Fla. Dec. 1, 2016), the
December 22, 2016 rulings in Mosley v. State, 2016 WL 7406506 (Fla. Dec. 22, 2016), and Asay
v. State, 2016 WL 7406538 (Fla. Dec. 22, 2016), the January 19, 2017 ruling in in Armstrong v.
State, _ So. 3d _, 2017 WL 224428 (Fla. Jan. 19, 2017), among other recent decisions from the
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Florida Supreme Court. The excess pages are due to the significance of the new Florida law and Mr. Byrd’s need to coherently set forth the significance of the new Florida law, the basis of his claims arising from the new law, and the Florida Supreme Court’s recent decisions regarding the harmless error analysis that is to be conducted when considering whether Hurst v. Florida error requires a resentencing free from the error. 5. The procedural, factual and legal aspects of Mr. Byrd’s claims are extremely complex in nature. Permitting the filing of a motion in excess of the prescribed limitation set forth in the rules will allow Mr. Byrd to fully explain his claims of entitlement to relief. 6. Finally, it should be noted that this Court and other circuit courts throughout Florida have granted motions for excess pages when capital defendants have filed successive Rule 3.851 motions presenting the constitutional challenges arising in the wake of Hurst v. Florida, the decisions in Perry v. State and Hurst v. State, and the decisions in Mosley v. State and Asay v. State.
WHEREFORE, based on the foregoing, Mr. Byrd requests that this Court allow him to
exceed the page limitation set forth in Rule 3.851 (e)(2) in his amended successive 3.851 motion.
I HEREBY CERTIFY that true and correct copies of the foregoing motion has been
electronically furnished to all counsel of record through the electronic service provide by the e- portal on this 13th day of March, 2017. /s/ Martin J. McClain MARTIN J. MCCLAIN Fla. Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344 [email protected] BRYAN E. MARTINEZ Florida Bar No. 0119286
COUNSEL FOR MR. BYRD
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Filing # 54528337 E-Filed 04/03/2017 09:28:39 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
STATE’S RESPONSE TO DEFENDANT’S SUPPLEMENTAL SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES
COMES NOW, The State of Florida, by and through undersigned
counsel, and hereby responds to the Supplemental Successive
Motion to Vacate Judgment of Conviction and Sentence filed on
March 13, 2017, in the above-styled cause. The State respectfully
submits that the motion must be dismissed as untimely and/or
denied as meritless, and states the following:
BACKGROUND AND PROCEDURAL HISTORY
Milford Byrd was sentenced to death for the 1981 murder of
his wife, Debra. In his direct appeal, Byrd raised the following
guilt phase issues: (1) his confession was erroneously admitted
because it was not shown to have been voluntarily given and
because it was the fruit of an unlawful, warrantless arrest at
his residence without compliance with Florida's knock-and-
announce statute, section 901.19(1), Florida Statutes (1981); (2)
evidence obtained from the warrantless search of a storeroom was
improperly admitted since the consent to search was not
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voluntarily given; (3) the consideration promised to a key state
witness was not fully disclosed to the jury; and (4) the trial
court failed to grant a mistrial based on the prosecution's
improper cross examination of a witness.
Regarding the sentencing phase, Byrd raised the following
five issues: (1) failed to instruct the jury on all statutory
aggravating circumstances and only gave those supported by the
evidence; (2) erroneously found that the homicide was committed
for pecuniary gain; (3) erroneously found that the murder was
heinous, atrocious, and cruel; (4) erroneously considered, as
nonstatutory aggravating circumstances, the appellant's lack of
remorse and his continued danger to the community; and (5) failed
to appropriately discuss, in the sentencing order, the
nonstatutory mitigating factors, indicating that the trial judge
failed to consider such evidence in the penalty phase. The
Florida Supreme Court affirmed Byrd’s conviction and sentence.
Byrd v. State, 481 So. 2d 468 (Fla. 1985). Byrd filed a Petition
for Writ of Certiorari to the United States Supreme Court, which
was denied. Byrd v. Florida, 106 S. Ct. 2261 (1986).
In his first post-conviction motion, Byrd raised seventeen
issues, eleven of which the Florida Supreme Court found
procedurally barred because they either were or could have been
raised on direct appeal. Byrd v. State, 597 So. 2d 252, 254 (Fla.
1992).
The procedurally barred claims included: 2
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(1) whether Byrd was convicted on the basis of evidence obtained in violation of his constitutional rights and his invocation of his right to silence was ignored and a confession was coerced from him and used against him because his counsel failed to present the proper facts; (2) whether Byrd was convicted and sentenced on the basis of statements obtained in violation of his constitutional rights; (3) whether Byrd's constitutional rights were violated when law enforcement officers entered his home without a warrant to effectuate his arrest; (4) whether the exclusion of critical evidence rendered Byrd's sentence of death fundamentally unreliable; (5) whether Byrd was improperly denied his right to cross-examine key State witnesses on matters that would have undermined their credibility; (6) whether the trial court unconstitutionally shifted the burden of proof by its sentencing instructions; (7) whether the jury's sense of responsibility for sentencing was diluted by the court's instructions and counsel's arguments; (8) whether the jury instructions regarding aggravating factors perverted the sentencing phase, resulting in the arbitrary and capricious imposition of the death penalty; (9) whether the jury instructions regarding nonstatutory aggravating factors perverted the sentencing phase resulting in the arbitrary and capricious imposition of the death penalty; (10) whether the presentation of victim-impact testimony denied Byrd's rights to a fundamentally fair and reliable capital sentencing; and (11) whether failure to consider nonstatutory mitigating factors violated Byrd's rights.
The court addressed the merits of the remaining claims using
the following four headings: (1) whether Byrd was deprived of his
due process rights and a fair trial when he was prosecuted by an
assistant state attorney with a personal, familial, and financial
interest in obtaining a conviction, as well as his claim that he
was deprived of a fair trial as a result of the State's
nondisclosures; (2) whether the jury was misled about its
function at the sentencing phase; (3) whether Byrd received
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ineffective assistance of counsel; and (4) whether the State
withheld exculpatory evidence. The court affirmed the denial of
post-conviction relief.
Three years later, in 1995, the Florida Supreme Court denied
Byrd’s Petition for Writ of Habeas Corpus. Therein, Byrd raised
the flowing issues: (1) law enforcement officers violated Byrd's
right to remain silent; (2) his appellate counsel was ineffective
for failing to raise a number of issues on appeal; (3) in light
of new evidence, his conviction has been undermined and his
sentence is disproportionate; and (4) his rights were violated
due to his counsel's lack of adequate time and funds. The court
found that “[i]ssues (1), (3), and (4) are procedurally barred
because they were not raised at the appropriate time; issue (1)
should have been raised on direct appeal; issue (3) should have
been raised in a rule 3.850 motion; and issue (4) should have
been raised in Byrd's appeal of his rule 3.850 motion.” Byrd v.
Singletary, 655 So. 2d 67, 68 (Fla. 1995). The court rejected
Byrd’s argument to reconsider issue one in light of Jacobs v.
Singletary, 952 F.2d 1282 (11th Cir. 1992). Further, the court
rejected as non-meritorious issue two and its multiple sub-claims
alleging ineffective assistance of appellate counsel. Byrd v.
Singletary, 655 So. 2d 67, 68 (Fla. 1995).
In 2009, the Florida Supreme Court affirmed the denial of
Byrd’s successive motion for post-conviction relief. The claims
raised in that motion were: (1) he was deprived of due process 4
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when the State maintained inconsistent positions regarding
Sullivan's credibility in different proceedings; (2) newly
discovered evidence demonstrates that he was deprived of due
process when the State either presented false or misleading
evidence, or withheld material exculpatory evidence, and he
received ineffective assistance of counsel; and (3) the trial
court failed independently to weigh the sentencing factors in
sentencing him to death. Byrd v. State, 14 So. 3d 921, 924 (Fla.
2009).
In 2013, the order denying Byrd’s second successive
summarily denied motion was likewise affirmed. The Florida
Supreme Court found that the issues raised were procedurally
barred and that the motion was unauthorized. Byrd v. State, 118
So. 3d 807 (Fla. 2013) (unpublished). In that motion, Byrd argued
(1) the Court should reconsider its decision in Walton v. State,
77 So. 3d 639 (Fla. 2011), because failure to apply Porter v.
McCollum, 559 U.S. 30 (2009), retroactively to his sentence of
death violates the Sixth and Eighth Amendments, Furman v.
Georgia, 408 U.S. 238 (1972), and the Fourteenth Amendment; and
(2) Porter applies retroactively to Byrd's claims of ineffective
assistance of counsel as well as claims under Brady v. Maryland,
383 U.S. 83 (1963), because the same analysis applies to the
prejudice prong of a claim under Strickland v. Washington, 466
U.S. 668 (1984), and the materiality prong of a Brady claim.
On November 2, 2016, Byrd filed a “Successive Motion to 5
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Vacate Judgments of Conviction and Sentence.” On March 13, 2017,
Byrd filed this supplemental successive post-conviction motion to
vacate.
BYRD’S SUCCESSIVE MOTION IS TIME-BARRED:
Rule 3.851(d)(1), Florida Rule of Criminal Procedure, bars a
post-conviction motion filed more than one year after a judgment
and sentence are final. Byrd’s judgment and sentence became final
in 1986 when the Supreme Court denied certiorari after his
conviction and sentence were affirmed on direct appeal. 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”).
Additionally, Byrd’s motion does not meet any exception to
the time-limits of Rule 3.851. Rule 3.851(d)(2) provides that “No
motion shall be filed or considered pursuant to this rule if
filed beyond the time limitation provided in subdivision (d)(1).”
An exception to this rule permits otherwise untimely motions if
“the fundamental constitutional right asserted was not
established within the period provided for in subdivision (d)(1)
and has been held to apply retroactively.” Fla. R. Crim. P.
3.851(d)(2)(B).
As will be discussed in further detail later in this
response, Byrd’s successive Rule 3.851 motion fails to meet this
test.
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BYRD’S DEATH SENTENCE DOES NOT VIOLATE THE SIXTH AMENDMENT UNDER HURST V. FLORIDA.
Byrd attempts to avoid the rule’s time bar by arguing that 1
Hurst v. Florida, 136 S. Ct. 616 (2016) should be applied
retroactively to his case. The language of the rule itself
exposes the fallacy of this argument. The rule excuses motions
filed after the one-year time limitation if the constitutional
right asserted was not established within the time prior provided
for in the rule, and “has been held to apply retroactively.”
(emphasis added). Neither the United States Supreme Court nor the
Florida Supreme Court have held that Hurst applies retroactively
to cases final before Ring v. Arizona, 536 U.S. 584 (2002) was
issued in 2002.
Byrd, whose conviction became final in 1986, seeks relief
pursuant to the United States Supreme Court’s opinion in Hurst v.
Florida, 136 S. Ct. 616 (2016), and the Florida Supreme Court’s
opinion in Hurst v. State, 202 So. 3d 40 (Fla. 2016). Byrd’s
successive motion for post-conviction relief was filed well
beyond one-year after his judgment and sentence became final. See
Fla. R. Crim. P. 3.851(d)(1). Therefore, Byrd’s successive motion
is untimely and subject to summary dismissal unless his claim is
either based on newly discovered evidence that could not have
been ascertained by the exercise of due diligence, or on a
fundamental constitutional right not established within one year
of finality of his judgment and sentence that has been held to
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apply retroactively. See Fla. R. Crim. P. 3.851(d)(2) (emphasis
added).
As will be established below, Byrd cannot meet these
requirements, and his motion must be summarily dismissed as
untimely. Fla. R. Crim. P. 3.851 (e)(2).
HURST DOES NOT RETROACTIVELY APPLY TO BYRD’S CASE.
Byrd’s convictions and sentences were final in 1986 when the
United States Supreme Court denied his petition for writ of
certiorari. The Florida Supreme Court has determined that Hurst
v. State, 202 So. 3d 40 (Fla. 2016) is not to be applied
retroactively to cases that were final before the United States
Supreme Court issued Ring v. Arizona, 536 U.S. 584 (2002).
Because Byrd’s conviction and sentence were final some 16 years
before Ring he is not entitled to relief. Respectfully, to allow
Byrd to present a meritless claim is a waste of resources and is
in violation of the Rules of Criminal Procedure.
Byrd’s assertion that he is entitled to an individualized
assessment as to whether he gets the benefit of Hurst is simply
incorrect. Using the Stovall/Linkletter factors in its Witt
analysis the Florida Supreme Court held as a matter of law that
Hurst does not apply retroactively to cases final when Ring was
decided. Asay v. State, 41 Fla. L. Weekly S646 (Fla. Dec. 22,
2016), reh'g denied, SC16-102, 2017 WL 431741 (Fla. Feb. 1,
2017), at * 11. In cases since Asay, the court has reiterated its
bright-line rule that cases final before the United States 8
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Supreme Court decided Ring are not entitled to relief under
Hurst. Gaskin v. State, 42 Fla. L. Weekly S16 (Fla. Jan. 19,
2017) (holding that because Gaskin’s conviction was final in 1993
he is not entitled to relief under Hurst); Bogle v. State, 42
Fla. L. Weekly S166 (Fla. Feb. 9, 2017) (holding that Hurst is
not retroactive to cases that were final before Ring was
decided); Lambrix v. State, SC16-56, 2017 WL 931105 (Fla. Mar. 9,
2017) (rejecting Hurst relief in death warrant proceedings where
defendant’s conviction and sentence were final prior to issuance
of Ring.)
Furthermore, Byrd erroneously alleges that the Florida
Supreme Court’s fundamental fairness analysis in Mosley v. State,
41 Fla. L. Weekly S629 (Fla. Dec. 22, 2016), reh'g denied, SC14-
2108, 2017 WL 510491 (Fla. Feb. 8, 2017) requires that he be
allowed to show that he is entitled to Hurst relief. In Mosley,
the Florida Supreme Court expressly held that Hurst does not
retroactively apply to cases that were final when Ring was
decided. The court observed that in Hurst the United States
Supreme Court did not rely on “new jurisprudential developments
in Sixth Amendment case law” but, rather, on its 2002 opinion in
Ring in deciding that Florida’s death penalty procedure was
unconstitutional. According to the Florida Supreme Court,
Florida’s statue was rendered unconstitutional by the Ring
decision. Presumably, that is why the court tied its
retroactivity analysis to the date of the Ring opinion and did 9
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not retroactively apply Hurst to cases final before Ring even if
a defendant raised a “Ring-type” claim prior to trial. See
Gaskin, 42 Fla. L. Weekly S16 (holding that because Gaskin’s
conviction was final in 1993 he is not entitled to relief under
Hurst despite that fact that “. . . Gaskins asserted, presented,
and preserved a challenge to the lack of jury factfinding in
Florida’s capital sentencing procedure.”) (J. Pariente concurring
in part and dissenting in part).
Regardless, Byrd did not raise a Sixth Amendment “Ring-type”
claim prior to trial. Therefore, Mosley, and by extension James
v. State, 615 So. 2d 668 (Fla. 1993), affords him no relief. In
Mosley, the Florida Supreme Court reiterated that James requires
that a defendant preserve his claim in the trial court before
fundamental fairness would require retroactive application of new
decisional law to his or her case. Mosley, 41 Fla. L. Weekly
S629. Even if Byrd raised a Ring claim within one year after Ring
was decided, that fact is irrelevant. Ring has never been held to
be retroactive; therefore, his post-conviction Ring claim was
barred. See Johnson v. State, 904 So. 2d 400 (Fla. 2005) and
Schriro v. Summerlin, 542 U.S. 348 (2004).
Despite the Florida Supreme Court’s unequivocal ruling in
Asay and subsequent cases, Byrd asserts that fairness and
uniformity require that Hurst be retroactively applied to all
cases. Byrd is incorrect. Byrd cannot validly claim that his
sentencing procedure was less accurate than future sentencing 10
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procedures employing the new standards announced in Hurst v.
State. Just like Ring did not enhance the fairness or efficiency
of death penalty procedures, neither does Hurst. Johnson, 904 So.
2d at 409. 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, 542 U.S. at 356.
Because the accuracy of Byrd’s death sentence is not at issue,
fairness does not demand retroactive application of Hurst v.
State.
The Florida Supreme Court has repeatedly rejected nearly
identical arguments calling for Hurst to be retroactively applied
to all cases. The court clearly stated that Hurst should not be
applied retroactively to cases in which the death sentence became
final before the issuance of Ring. Byrd’s case squarely falls
within these parameters. Therefore, relief must be denied.
Furthermore, Byrd’s contention that harmless error “can
never be shown by the State” is both legally and factually
incorrect. First, unlike a direct appeal where the State has the
burden to prove beyond a reasonable doubt that any alleged error
was harmless, in post-conviction proceedings it is the movant who
must show harmful error.
Second, in this case, despite Byrd’s tortured interpretation
of the verdict form, the jury unanimously recommended death,
which is a factor that the Florida Supreme Court considers
paramount. Davis v. State, 207 So. 3d 142 (Fla. 2016), reh'g 11
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denied, SC11-1122, 2017 WL 56089 (Fla. Jan. 5, 2017); King v.
State, 42 Fla. L. Weekly S67 (Fla. Jan. 26, 2017), reh'g denied,
SC14-1949, 2017 WL 961818 (Fla. Mar. 13, 2017). The State
presented two aggravating factors: the murder was heinous
atrocious and cruel, and was for pecuniary gain. In the direct
appeal the court presented the facts supporting both aggravators:
Appellant and his wife, Debra, managed a motel in Tampa. Debra's body was found on the floor of the motel office at approximately 7:00 a.m. on October 13, 1981. An autopsy revealed that Debra had suffered four non- fatal scalp lacerations, four non-fatal gunshot wounds, and scratches and bruises on the neck. The pathologist determined that the cause of death was strangulation and that death had occurred between 9:00 p.m. on October 12 and 3:00 a.m. on October 13. During interrogation on the morning of October 13, appellant told police that, on the night of the murder, he had gone to a gym and then to two bars. He stated that he returned home to the motel around 6:45 a.m., found his wife's body and called the police. Later that morning appellant requested that a desk clerk at the motel contact a life insurance company with reference to an insurance policy on Debra's life. Appellant was the sole beneficiary of the $100,000 policy. Five days later, on October 19, appellant personally carried a copy of Debra's death certificate to the insurance company and twice inquired as to how long settlement of the policy claim would take.
… When questioned about the murder, appellant stated that he had fallen in love with his girlfriend and that his wife had denied his request for a divorce. He confessed that he had offered Sullivan and Endress, Sullivan's roommate at the motel, five thousand dollars apiece to murder his wife. He also stated that the murder was planned to look like a robbery. Appellant denied, however, that he was present when the murder occurred. After this initial confession, appellant requested permission to use the telephone in the homicide squad room to call his father. Three police officers overheard this conversation and testified that appellant informed his father that, although he had not committed the murder, he had had it done. 12
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Byrd, 481 So. 2d at 469.
The jury in his 1981 trial recommended death and indicated
on the advisory form that its recommendation was “by a majority
of 12.” Byrd concludes that this means not that “all twelve
jurors voted for death. It merely means that at least seven
jurors voted in favor of death.” Simply looking at the form
controverts this claim. The form leaves a blank space for the
foreman to fill in what the vote was. In fact, they were
instructed “If a majority of the jury determine that the
defendant should be sentences to death, your advisory verdict
will be ‘A majority of the jury, by a vote of, advise and
recommend to the Court that it impose the death penalty upon the
defendant.” See Attachment A to State's Response filed November
22, 2016. If Byrd’s interpretation of the form were correct there
would be no need to even include the blank space for the foreman
to fill in. The number would always be 12. The only reasonable
interpretation of the advisory form is that all 12 jurors
recommended a sentence of death.
Additionally, considering Byrd’s confession, and his conduct
as it related to the victim’s life insurance policy, any
reasonable jury would unanimously find that the murder was
committed for pecuniary gain. Similarly, as noted by the Florida
Supreme Court in Byrd’s direct appeal, “Sullivan, appellant's
codefendant, testified that the appellant participated in the
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murder, and the record is unrefuted that the victim sustained
four gunshot wounds and four deep scalp lacerations, none of
which were fatal. After suffering these wounds, the victim
ultimately died from strangulation. All of these circumstances
justify the finding that this murder was heinous, atrocious, and
cruel.” Byrd, 481 So. 2d at 474.
Byrd is not entitled to an evidentiary hearing on this claim
as it is purely a question of law related to the non-
retroactivity of a United States Supreme Court decision.
BYRD’S DEATH SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT.
This claim is also time-barred and does not fall within the
rule’s time limitations exception. The Florida Supreme Court’s
expansion of the issue on remand in Hurst to include an Eighth
Amendment analysis has not been held to be retroactive.
In this claim Byrd again relies on his “12 does not mean 12”
argument to assert that his death sentence violates the Eighth
Amendment. Byrd also asserts that he “is entitled to Rule 3.851
relief, and his death sentence must be vacated with a life
sentence substituted in its place” because he falls within a
class that society’s evolving standards of decency has concluded
to be ineligible for [a] death sentence.”
The State relies on the argument made in response to Claim I
with regard to the “majority of 12” argument. As to Byrd’s
argument that he now belongs to some protected class of
individuals that the death penalty cannot reach he is simply 14
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wrong. There is nothing in the United States Supreme Court
decision in Hurst, or the Florida Supreme Court’s Hurst1 and
Perry2 decisions that renders Byrd ineligible for death. As
previously noted, Byrd’s penalty-phase jury unanimously
recommended death.
Furthermore, there is nothing in the record to support the
proposition that the jury’s responsibility in rendering an
advisory verdict was assailed or diminished. The jury knew and
understood their great responsibility in reviewing the evidence
and determining whether to recommend death. Other than in cases
were a defendant is within a class of people for whom the death
penalty is not an option – juveniles, intellectually disabled,
those who commit crimes short of murder - the only limit the
Eighth Amendment places on the imposition of the death penalty is
that the penalty cannot be imposed in an arbitrary or capricious
manner. It is reserved for the most aggravated and least
mitigated of crimes.
The Florida Supreme Court recognized that the United States
Supreme Court has never held that a death recommendation must be
unanimous. The state supreme court, though, felt that unanimity,
going forward, would help “perform a narrowing function.” Capital
defendants, like Byrd, are afforded an individualized sentencing
proceeding in which aggravating and mitigating circumstances were
1 Hurst v. State, 202 So. 3d 40 (Fla. 2016) 2 Perry v. State, 41 Fla. L. Weekly S449 (Fla. Oct. 14, 2016) 15
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presented to the jury. Byrd’s jury unanimously recommended death.
There is no evidence that the voice of the minority juror was
disregarded or that the jury arbitrarily and capriciously
rendered its recommendation. Based on the facts of this case, any
reasonable jury would have unanimously found all the facts
necessary to impose death had it been instructed.
Byrd suggests that unless each juror knows that he or she
has the power to defeat the wishes of every other juror simply by
voting to spare the defendant his life renders any jury
recommendation, even a unanimous one, in violation of the Eighth
Amendment and Caldwell v. Mississippi, 472 U.S. 320 (1985). This
argument presumes much and is not supported by the law. Knowing
one has the power to defeat the wishes of every other juror does
nothing to enhance the jury’s deliberative process or ensure
reliable sentencing recommendations. The Florida Supreme Court
brushed off concerns that requiring unanimity would “allow a
single juror, who for personal reasons would under no
circumstances vote to impose capital punishment, to derail the
process of meaningful jury deliberations . . .” Hurst, 202 So. 3d
40. Yet it seems that Byrd is suggesting an instruction to that
effect is necessary.
An evidentiary hearing is unnecessary to resolve this claim.
MOSLEY AND ASAY DO NOT INJECT ARBITRARINESS INTO FLORIDA’S CAPITAL SENTENCING SCHEME; RATHER THEY ARE FLORIDA SUPREME COURT DECISIONS THAT THIS COURT IS REQUIRED TO FOLLOW.
Circuit courts are bound to follow precedent of Florida 16
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Supreme Court. State v. Herring, 76 So. 3d 891, 897 (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”).
In death penalty cases, the United States Supreme Court has
imposed additional constraints on the state’s ability to
proscribe death as punishment for a crime. These constraints are
derived from the Eighth Amendment’s cruel and unusual punishment
clause. The Eighth Amendment limits arbitrary and capricious
imposition of the death penalty by requiring certain standards be
met. Gregg v. Georgia, 428 U.S. 153, 189 (1976) citing Furman,
408 U.S. 238. Death penalty statutes that focus on the
particularized nature of the crime, the particularized
characteristics of the individual defendant, and require a
unanimous finding an aggravating circumstance(s) pass Eighth
Amendment muster. Gregg, 428 U.S. at 206.
While reasonable people can disagree as to the wisdom of the
Florida Supreme Court’s decisions in Asay and Mosley, those
decisions do not render arbitrary death sentences imposed using
Florida’s pre-Ring sentencing scheme. That scheme satisfied the
Eighth Amendment and took into consideration the nature of the
crime, the characteristics of the individual, and the existence
of at least one aggravating circumstance. Therefore, it ensured 17
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that the death penalty was reserved for a narrow group of
individuals who commit particularly aggravated murders. It also
ensured that the characteristics of the individual were
considered. Hurst does not change what must be considered and
weighed in determining whether a death sentence is appropriate,
it merely changes the factfinder. As such, death sentences
imposed pre-Ring are not arbitrary or capricious.
Asay and Mosley deal only with whether Hurst should be
applied retroactively to cases final before its issuance. The
Florida Supreme Court made a determination that Hurst is not
retroactive to cases final before Ring was decided; but it is
retroactive to decisions final after Ring was decided. Although
the court expressed its belief that unanimous recommendations
would serve to further narrow the types of murders subject to the
death penalty, the court did not hold or even intimate that
either pre-Ring or post-Ring sentences were arbitrarily or
capriciously imposed.
Byrd’s reliance on cases dealing with the applicability of
new rules to cases pending on direct review does not further his
argument. No one is disputing that cases that are on direct
review and in the “pipeline” are entitled to application of
Hurst. This claim should be summarily dismissed.
DEFENDANT IS NOT ENTITLED TO A REEVALUATION OF HIS PREVIOUSLY LITIGATED CLAIMS.
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While Byrd casts his request for relief as a successive
motion filed pursuant to Florida Rule of Criminal Procedure
3.851, it is effectively a motion asking this Court to reconsider
the same facts alleged in his previously-denied successive
motion, but applying law that did not exist at the time this
Court’s Order was rendered. The rules do not authorize this Court
to revisit an identical factual claim merely because of a
subsequent, non-retroactive change in the law.
Byrd contends that because he seeks a new sentencing
hearing, the validity of his present conviction must be tested by
viewing it in terms of whether he would receive the same sentence
under the revised capital sentencing statute. This procedure, he
contends, is mandated because of the cumulative analysis required
under Hildwin v. State, 141 So. 3d 1178 (Fla. 2014) and Swafford
v. State, 125 So. 3d 760 (Fla. 2013). Neither case addresses the
circumstance presented here, however, where the law governing
sentencing procedures has been revised.
Moreover, the State is unaware of any case authorizing
application of non-retroactive changes in the law that took
effect after the defendant’s conviction became final. Indeed,
this Court previously rejected Byrd’s assertion to that effect.
To the contrary, neither Hildwin nor Swafford address the
propriety of applying non-retroactive changes in the law.
Instead, both cases focus on the quantum of newly discovered
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factual evidence that should be considered in assessing the
validity of the defendant’s detention.
If Byrd’s position is correct, it would effectively
eviscerate both Witt and Rule 3.851(d)(2)(B)’s retroactivity
requirement. Byrd provides no legal support for his position that
the revised statute has any retroactive effect; he merely asserts
that it should be considered as part of the cumulative analysis.
Byrd’s position, however, is flawed.
The Florida Supreme Court has never required the procedure
espoused by Byrd. Indeed, incorporating all subsequent changes in
the law into the cumulative analysis required under Hildwin
sidesteps the retroactivity rules as well as the procedural
requirements of Jones v. State, 591 So. 2d 911 (Fla. 1991). Under
Jones, the trial court is required to weigh both the newly
discovered evidence and the evidence which was introduced at the
trial; in reaching its decision, the court must assess “whether
such evidence, had it been introduced at the trial, would have
probably resulted in an acquittal.” Id. at 916. Clearly, the
focus under Jones is what the jury that heard the original trial
would have done. Thus, the correct analysis is whether the
defendant’s newly discovered facts, when viewed through the lens
of the defendant’s jury, under the correct law in effect at the
time of the defendant’s trial, would have produced an acquittal.
The instant motion merely seeks to apply a new and non-
retroactive legal rule; it should be summarily dismissed as 20
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untimely and unauthorized. Waterhouse v. State, 82 So. 3d 84, 91
(Fla. 2012). To do otherwise would effectively render all
subsequent statutory changes retroactive. Moreover, Byrd’s
proposed procedure would unnecessarily and improperly cast doubt
on the integrity of the original trial proceeding and improperly
limit the State’s legitimate interest in maintaining finality of
judgment. Witt v. State, 387 at 929.
No evidentiary hearing is necessary to resolve this claim.
BYRD SHOULD NOT BE ALLOWED TO ONCE AGAIN AMEND HIS MOTION BASED ON THE NEWLY-ENACTED STATUTE.
Hurst is a decision regarding the necessary procedure for
imposition of a death penalty. The Florida Supreme Court recently
recognized this in Jackson v. State, SC13-1232 (March 23, 2017)
noting that Hurst errors do not “occur because no findings were
made, but rather because the jury did not make the findings as
required by the Sixth Amendment. Such an error does not
constitute ‘a defect affecting the framework’ of the trial to the
extent that any resulting sentence must be deemed fundamentally
unfair.” Jackson citing Neder v. United States, 527 U.S. 1, 8
(1999).
The court further recognized that § 941.121, Fla. Stat. is
procedural in nature. “The invalidity of a single provision
purely procedural in nature does not automatically invalidate the
underlying punishment to which that procedure applies.” Jackson
quoting State v. Galindo, 278 Neb. 599, 774 N.W.2d 190, 213
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(2009).
An additional successive motion is unnecessary and a waste
of resources. This Court should not allow any further amendments
or supplements to the post-conviction motion.
CONCLUSION
In sum, this motion is untimely and does not satisfy any
exception to the rule’s time limits. This Court should dismiss
the motion. Further, the issues raised are without merit. The
Florida Supreme Court has precluded Hurst from being
retroactively applied to capital defendants like Byrd whose
sentences were final before Ring. Because Hurst is not
retroactive to Defendant’s case, he is not entitled to relief as
a matter of law. Each claim raised by Defendant in his successive
motion is similarly without merit and provides no basis for
relief. Accordingly, Defendant’s motion must be summarily
dismissed/denied.
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL /s/ Marilyn Muir Beccue MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Office of the Attorney General 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: 813-287-7910 Facsimile: 813-281-5501 [email protected] [and] [email protected] CO-COUNSEL FOR STATE OF FLORIDA 22
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of April, 2017, I
electronically 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: Martin J. McClain, Esquire,
McClain & McDermott, P.A., 141 N.E. 30th Street, Wilton Manors,
33334, [email protected]; Jay Pruner, Assistant State
Attorney, Office of the State Attorney, 419 N. Pierce Street,
Tampa, Florida 33602, [email protected] and
[email protected]; The Honorable Michelle D. Sisco, 401 North
Jefferson Street, Tampa, Florida 33602, [email protected].
s/ Marilyn Muir Beccue Co-Counsel for State of Florida
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Filing # 54917873 E-Filed 04/11/2017 01:08:03 PM
IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, v. CASE NO. 81-CF-010517 MILFORD WADE BYRD Defendant. ______/ MOTION FOR LEAVE TO AMEND SUCCESSIVE MOTION TO VACATE The Defendant, MILFORD WADE BYRD, by and through undersigned counsel,
respectfully moves this Court to allow him to amend his pending successive Rule 3.851 motion. In support of this motion, Mr. Byrd as follows:
1. Mr. Byrd is under a sentence of death. On March 13, 2017, Mr. Byrd filed an amended successive Rule 3.851 motion, raising four claims challenging his death sentences.
2. Claim II of Mr. Byrd’s 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.
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
1
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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. 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
2
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impose a death sentence.1 5. Subsequently, the Florida Supreme Court has found resentencings required by its holding in Hurst v. State when a jury failed to return a unanimous death recommendation. See Abdool, _ So. 3d _, Slip Op. No. SC14-582 at 18 (Fla. April 6, 2017) (“Because the jury in this case recommended death by a vote of ten to two, ‘we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.’ Kopsho, 209 So. 3d at 570. ‘We can only determine that the jury did not unanimously recommend a sentence of death.’ Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Abdool’s sentencing was not harmless beyond a reasonable doubt.”); Bradley v. State, _ So. 3d _, 2017 WL 1177618 *7 (“In Hurst v. State, we explained that ‘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.’ 202 So.3d at 57. Because the nonunanimous jury in this case did not make such findings, we cannot find the error harmless beyond a reasonable doubt. See id. at 57–59, 66–69.”); White v. State, _ So. 3d _, 2017 WL 1177640 *7 (Fla. March 30, 2017) (“Simply put, any attempt by this Court to determine why four jurors voted for life and eight jurors voted for death is mere speculation without more information and certainly does not rise to the level of proof beyond a reasonable doubt. For these reasons, we conclude that the Hurst error in this case was not harmless beyond a reasonable doubt and, therefore, White's case should be remanded for a new penalty phase.”); Orme v. State, _ So. 3d _, 2017 WL 1201781 (Fla. March 30, 2017) (“Given the jury vote of eleven to one, it is impossible for this Court to determine which, if any, of the aggravators the jury would have found unanimously if properly instructed. Moreover, we cannot determine whether the jury would have found ‘that there were
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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sufficient aggravating factors to outweigh the mitigating circumstances.’ Id. Accordingly, we cannot conclude that the Hurst error in this case was harmless beyond a reasonable doubt.”) (footnote omitted); Ault v. State, _ So. 3d _, 2017 WL 930926 *8 (“In light of the nonunanimous recommendations of death and failure of the jury to make any findings as to the aggravating and mitigating factors, any attempt to discern what jurors would have done if properly instructed under Hurst is purely speculative. Therefore, we cannot conclude that the Hurst error in Ault's resentencing was harmless beyond a reasonable doubt.”); Anderson v. State, _ So. 3d _, 2017 WL 930924 *12 (Fla. March 9, 2016) (“And in light of the nonunanimous jury recommendation to impose a death sentence, it cannot be said that the failure to require a unanimous verdict here was harmless.”) . 6. Mr. Byrd seeks to amend his motion to vacate on the basis of a recent Florida Supreme Court decision relevant to Claim II and on the basis of the enactment of Chapter 2017- 1, which gives rise to additional claim. In King v. State, _ So. 3d _, 2017 WL 372081 at *17 (Fla. Jan. 26, 2017), the Florida Supreme Court asserted: in Mosley v. State, Nos. SC14–436 & SC14–2108, ––– So.3d ––––, 2016 WL 7406506 (Fla. Dec. 22, 2016), we further held that our decision in Hurst v. State applies retroactively to those postconviction defendants whose sentences were final after the United States Supreme Court's 2002 decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). (emphasis added). The Florida Supreme Court in King recognized that the constitutional right identified in Hurst v. State “has been held to apply retroactively.” See Rule 3.851(d)(2)(B). Because the fundamental constitutional right set forth in Hurst v. State “has been applied retroactively,” it means that the claim based on it is timely. The question of whether Mr. Byrd receives the retroactive benefit is now subject to a case-by-case determination. In this regard it is important to recognize that the Witt v. State, 387 So. 2d 922 (Fla. 1980), analysis set forth in Mosley was limited to analyzing retroactivity only in post-Ring cases in light of Asay v. State, 210 So. 3d 1 (Fla. 2016). But, in Asay, the Florida Supreme Court conducted no retroactivity analysis under Witt regarding the substantive right identified in Hurst v. State, as an examination
4
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of the decision in Asay reveals. 7. The absence from Asay of any consideration of the fundamental right identified in Hurst v. State is glaringly apparent when the portion of the Asay opinion addressing the “Effect on the Administration of Justice” aspect of the Witt analysis is reviewed. Asay, 210 So. 3d at 20- 23. There, Asay relied upon the Witt analysis of Ring that was set forth in Johnson v. State, 904 So. 2d 400 (Fla. 2005), a decision issued long before Hurst v. State explained the holding in Hurst v. Florida and recognized the fundamental constitutional right to a unanimous death recommendation before a death sentence was permissible.2 In that context, with a completely different understanding of the Sixth Amendment right identified in Apprendi and Ring, the Florida Supreme Court did not find any benefit to the administration of justice would result. Yet, the Asay opinion specifically relied upon Johnson v. State and stated: we concluded that “[t]o apply Ring retroactively in Florida would ... ‘consume immense judicial resources without any corresponding benefit to the accuracy or reliability of penalty phase proceedings.’ ” Id. at 412. Although we recognize that Johnson's analysis of the first prong of Witt was impacted by an incorrect understanding of the Sixth Amendment claim, the analysis as to the impact on the administration of justice holds the same force. Asay v. State, 210 So. 3d at 21 (emphasis added). No reference was made in Asay to the right to a
2The Florida Supreme Court’s reliance upon Johnson v. State at all is perplexing given that in Asay v. State it recognized: [O]ur retroactivity analysis in Johnson hinged upon our understanding of Ring's application to Florida at that time. Thus, we did not treat the aggravators as elements of the crime that needed to be found by a jury to the same extent as other elements of the crime. Specifically, because we were still bound by Hildwin[v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989)], we did not properly analyze the purpose of the new rule in Ring, which was to protect the fundamental right to a jury in determining each element of an offense. With the issuance of Hurst v. Florida, in which the United States Supreme Court overruled its decision in Hildwin, we conclude that this Court must now reconsider its prior decision in Johnson. Asay, 210 So. 3d at 15-16. Nevertheless, the reliance on Johnson clearly demonstrates that the ruling in Hurst v. State recognizing a fundamental constitutional right to a unanimous death recommendation was not part of the Witt analysis conducted in Asay. 5
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unanimous death recommendation found in Hurst v. State, which was not part of Ring. Because juror unanimity was not a requirement of Ring, there is no rational or logical basis for Hurst v. State to be retroactive to death sentences that became final after Ring issued, but not retroactive to death sentences final before Ring issued. The reasoning that the Witt standard is met and that Hurst v. State is retroactive to post-Ring death sentences applies equally to pre-Ring death sentences. 8. Notably, in Hurst v. State, the Florida Supreme Court explained at length the considerable benefit to the administration of justice that the substantive right to a unanimous death recommendation would provide because it would result in 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). Further, it has been found based on data that “behavior in juries asked to reach a unanimous verdict is more thorough and grave than in majority-rule juries, and that the former were more likely than the latter jurors to agree on the issues underlying their verdict. Majority jurors had a relatively negative view of their fellow jurors' openmindedness and persuasiveness.” See Elizabeth F. Loftus & Edith Greene, Twelve Angry People: The Collective Mind of the Jury, 84 Colum. L.Rev. 1425, 1428 (1984). Another study disclosed that capital jurors work especially hard to evaluate the evidence and reach a unanimous verdict where they can find agreement. See Scott E. Sundby, War & Peace in the Jury Room: How
6
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Capital Juries Reach Unanimity, 62 Hastings L.J. 103 (2010). Unanimous-verdict juries tend to be more evidence driven, generally delaying their first vote until the evidence has been discussed. See Kate Riordan, Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation After McDonald, 101 J.Crim. L. & Criminology 1403, 1429 (2011). Further, juries not required to reach unanimity tend to take less time deliberating and cease deliberating when the required majority vote is achieved rather than attempting to obtain full consensus; and jurors operating under majority rule express less confidence in the justness of their decisions. See, e.g., Kim Taylor–Thompson, *59 Empty Votes in Jury Deliberations, 113 Harv. L.Rev. 1261, 1272–73 (2000). All these principles would apply with even more gravity, and more significance, in capital sentencing proceedings. 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. 202 So. 3d at 58-59 (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 (juror unanimity “will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty”).3 Ultimately, in Hurst v. State, the Florida Supreme Court stated: For all the foregoing reasons, 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. 202 So. 3d at 63. Improvement in “the administration of justice” was specifically identified as a compelling basis for its recognition of the fundamental constitutional right to a unanimous death recommendation before a death sentence was permissible. Clearly, Hurst v. State was not part of the Witt analysis in Asay as demonstrated by its reliance upon Johnson v. State as showing that there is no benefit to the administration of justice was to be gained from retroactively applying
3In Hurst v. State, the Florida Supreme Court observed that studies comparing majority rule juries to those required to return a unanimous verdict showed enhanced reliability in unanimous verdicts. 202 So. 2d at 58 (“ it has been found based on data that ‘behavior in juries asked to reach a unanimous verdict is more thorough and grave than in majority-rule juries, and that the former were more likely than the latter jurors to agree on the issues underlying their verdict. Majority jurors had a relatively negative view of their fellow jurors' openmindedness and persuasiveness.’”) (emphasis added); Id. (“juries not required to reach unanimity tend to take less time deliberating and cease deliberating when the required majority vote is achieved rather than attempting to obtain full consensus; and jurors operating under majority rule express less confidence in the justness of their decisions.”) (emphasis added). 7
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the Sixth Amendment right identified in Apprendi and Ring and set forth in Hurst v. Florida.4 Of course, the defendant in Asay did not present a claim under Hurst v. State when filing his 3.851 motion under the exigencies of a death warrant on January 27, 2016, eight and a half months before the substantive constitutional right was recognized on October 14, 2016 in Hurst v. State. 9. While Hurst v. State has now been held to apply retroactively, the Florida Supreme Court has yet to conduct a Witt analysis as to the retroactive application of Hurst v. State to any cases final before the issuance of the opinion in Ring v. Arizona. When the enhanced reliability afforded by the fundamental right to a unanimous death recommendation is part of the Witt analysis, it is clear that Hurst v. State should be applied retroactively in Mr. Byrd’s case. See Desist v. United States, 394 U.S. at 262 (Harlan, J., dissenting) (“constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied”). Replacing a majority vote verdict with a requirement that the jury must be unanimous when returning a death recommendation is markedly different than switching from a judge to jury as the finder of fact. See 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.”).5 The
4In contrast to Asay, the Court in Mosley noted the benefit to be reaped from Hurst v. State in the course of its Witt analysis when it quoted from Hurst v. State: 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.” Id. at 60. Mosley, 209 So. 3d at 1278. 5In Arizona prior to Ring, it was the judge who determined what sentence to impose on a defendant convicted of first degree murder. A jury was not involved in any way in the sentencing. However in Florida prior to Hurst v. Florida, the jury was required to return a sentencing recommendation which the judge was required to weigh when deciding whether to impose a death sentence. While in Arizona juries had no role to play after returning a conviction of first degree murder, Florida juries were in essence co-sentencers in capital cases. Espinosa v. Florida, 505 U.S. 1079 (1992). Thus the change in Florida law is not simply substituting judicial factfinding with jury factfinding. The change in Florida law is going from a jury’s 8
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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. 10. Again, because of the January 26th decision in King v. State recognizing that the fundamental right identified in Hurst v. State has been applied retroactively, Mr. Byrd seeks to amend Claim II to discuss the significance of that decision as explained herein. 11. But an even more significant development requiring Mr. Byrd to seek to amend his successive motion to vacate is the March 13, 2017 enactment of 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. In others words, the legislature has codified the fundamental constitutional right that the Florida Supreme Court identified in Hurst v. State. 12. 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 a mere nine months before the one Mr. Byrd stands convicted of. 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. The statute will also govern at Jacob Dougan’s penalty phase should a jury find him guilty at the retrial . Then there is Jacob Dougan who was charged with and convicted of a 1974 homicide and 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.
recommendation by a majority vote to the necessity of a jury’s unanimous death recommendation before a defendant is eligible for death. Thus, the logic and reasoning of Schriro v. Summerlin is completely inapplicable. 9
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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, 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). 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 determined that post conviction relief was warranted. It vacated Dougan’s conviction and ordered a new trial. On October 20, 2016, the Florida Supreme Court affirmed the order granting a new trial, meaning Hurst v. Florida will govern at a retrial and as to the sentencing procedure if a first-degree murder conviction is returned on the 1974 homicide. Dougan v. State, 202 So. 3d 363 (Fla. 2016). Dougan will be eligible for a death sentence for the 1974 homicide only if the jury unanimously makes the requisite findings of fact and unanimously recommends a death sentence. Dougan’s conviction was final years before the events surrounding Mr. Byrd’s conviction occurred. Dougan’s third direct appeal regarding his sentence was also final one year prior to Mr. Byrd’s conviction or sentence were final. Still, Dougan 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. 13. This statutory right arises from a 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:
10
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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 of Ring's rule creates an “ ‘ “impermissibly large risk” ’ ” that the death penalty was improperly imposed. 542 U.S. at 366. 14. Chapter 2017-1 incorporates a rule that does more than just contribute to greater accuracy. Had the rule existed at the time of Mr. Byrd’s penalty phase, he most likely 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 all that is known of Mr. Byrd’s sentence is that some majority voted in favor of death. At the very least, had the rule existed at the time of Mr. Byrd’s penalty phase, the circuit court would have demanded more than just an inquiry as to whether a majority of the twelve jurors 11
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voted in favor of death. 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. This Court should grant this motion and allow Mr. Byrd to amend his successive motion to vacate with a claim based upon Chapter 2017-1.
WHEREFORE, based on the foregoing, Mr. Byrd requests that this Court allow him to
amend his successive Rule 3.851 motion.
I HEREBY CERTIFY that true and correct copies of the foregoing motion have been
electronically furnished to all counsel of record, on this 11th day of April, 2017.
/s/ Martin J. McClain MARTIN J. MCCLAIN Fla. Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344 [email protected] BRYAN E. MARTINEZ Florida Bar No. 0119286 Staff Attorney Capital Collateral Regional Counsel-South 1 East Broward Boulevard, Suite 444 Ft. Lauderdale, FL 33301 [email protected] (954) 713-1284
COUNSEL FOR MR. BYRD
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Filing # 55642505 E-Filed 04/27/2017 01:05:29 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CASE NO. 81-CF-010517 STATE OF FLORIDA,
Plaintiff, v.
MILFORD WADE BYRD,
Defendant. ______/
SUPPLEMENT TO AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES, AND ALTERNATIVELY MOTION TO CORRECT ILLEGAL SENTENCES
The Defendant, MILFORD WADE BYRD, by and through undersigned counsel,
respectfully supplements his previously filed third amended motion to vacate.1 In lieu of the
unnumbered claim (“CLAIM _”) appearing on pages 85-87 of the amended successive motion to
vacate, Mr. Byrd submits the following claim, CLAIM V, which arises from the enactment of
Chapter 2017-1 on March 13, 2017. On the basis of Claim V, as with his other claims, Mr. Byrd
moves this Court for an order pursuant to Florida Rule of Criminal Procedure 3.851 vacating and
setting aside the judgment of conviction and sentence imposed upon him by this Court, and
alternatively an order pursuant Florida Rule of Criminal Procedure 3.800(a) correcting his illegal
1At a case management conference on April 13, 2017, this Court “allowed Mr. McClain to amend the amended successive rule 3.851 motion”. See Order on April 13, 2017, status hearing. This supplement is filed pursuant to this Court’s ruling allowing Mr. Byrd’s counsel to amend the pending motion to vacate with the claim arising from the enactment of Chapter 2017- 1 on March 13, 2017.
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sentence of death.
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 contained in this motion and its attachments are fully
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
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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 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. The vested statutory right will not be affected by
any action taken by the US Supreme Court in Florida v. Hurst, US Supreme Court Case No. 16-
998.
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
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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 (“we conclude that ... most of the
provisions of the Act can be construed constitutionally and could otherwise be validly applied to
pending prosecutions”). 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 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. “). 2
6. Thus, with the March 7, 2016, enactment of Chapter 2016-13, a substantive right
was created statutorily - a capital defendant in Florida for the first time had the right to a life
2Nevertheless, Chapter 2017-1 was enacted within weeks of the decision in Evans v. State and revised the statute in the manner Perry had indicated was necessary.
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sentence unless 10 of 12 jurors voted to recommend a death sentence. Without 10 jurors voting
in favor of a death sentence, the defendant would not be eligible for a death sentence, i.e. he or
she would be acquitted of capital first degree murder. 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.
7. Seven months later on October 14, 2016, the Florida Supreme Court issued Hurst
v. State and found that because the Florida Constitution granted a criminal defendant the
substantive right not to be convicted of a criminal offense unless a jury unanimously returned a
guilty verdict, a jury in a capital case was required to unanimously find all of the necessary facts
and unanimously recommend a death sentence before such a sentence could be imposed. Hurst v.
State, 202 So. 3d at 44 (“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.”). In
Mosley v. State, 2016 WL 7406506, the Florida Supreme Court reiterated 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. (emphasis added). Thus, the crime of capital first degree
required a conviction of first degree murder and a jury’s unanimous death recommendation
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showing that the jury had unanimously found all of the statutorily required facts necessary to
authorize a judge to impose a death sentence.
8. It was on the basis of Hurst v. State that the Court in Perry v. State found the 10-2
provision in Chapter 2016-13 to be unconstitutional under the Florida Constitution. The decision
in Perry led to the enactment of Chapter 2017-1.
9. 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).
The Florida Supreme Court has explained:
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 (Fla.1969). It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their persons and property. Adams v. Wright, 403 So.2d 391 (Fla.1981).
Haven Federal Savings & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991). In Benyard v.
Wainwright, 322 So. 2d 473, 475 (Fla. 1975), the Florida Supreme Court reiterated:
Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions.
Pursuant to separation of powers, matters of procedure are a judicial function and not a
legislative function. See State v. Raymond, 906 So. 2d 1045, 1049 (Fla. 2005) (“where there is no
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substantive right conveyed by the statute, the procedural aspects are not incidental; accordingly,
such a statute is unconstitutional.”); Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (“We have
held that where a statute contains some procedural aspects, but those provisions are so intimately
intertwined with the substantive rights created by the statute, that statute will not impermissibly
intrude on the practice and procedure of the courts in a constitutional sense, causing a
constitutional challenge to fail.”).
10. Chapter 2016-13 initially established a retrospective substantive right that a
capital defendant could not receive a death sentence if three or more jurors voted to recommend a
life sentence. Then, a right under the Florida Constitution was recognized in Hurst v. State
requiring a unanimous death recommendation in addition to a first degree murder conviction
before a judge was authorized to impose a death sentence. On the basis of this constitutional
right, Chapter 2016-13 was declared unconstitutional. Chapter 2017-1 followed. It rewrote the
statute to include the right to a life sentence unless a jury returned a unanimous death
recommendation which it extended retrospectively to all capital defendants in pending capital
prosecutions regardless of the date of the alleged capital crime.
11. 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
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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.
12. Recently, the Florida Supreme Court vacated Paul Johnson’s death sentence and
ordered a resentencing. Johnson v. State, 205 So. 3d 1285 (Fla. 2016). Johnson stands convicted
of three first degree murders that occurred in 1981. Though his original convictions of the
homicides was overturned and a new trial ordered, his subsequent convictions of the three
homicides became final in 1993. At the retrial, he was again convicted of all three murders and
given three death sentences which the Florida Supreme Court affirmed on direct appeal. Johnson
v. State, 608 So. 2d 4 (Fla. 1992), cert denied, 508 U.S. 919 (1993). The convictions became
final when the US Supreme Court denied Johnson’s petition for a writ of certiorari asking for
review of the Florida Supreme Court’s denial of the direct appeal. Johnson v. Florida, 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). The convictions
(final in 1993) remained intact. 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. At issue will be his sentence on the three
homicide convictions that were final in 1993 and which have remained in place ever since, and
whether Johnson’s new jury will unanimously return death recommendations authorizing the
imposition of death sentences for the three 1981 homicides.
13. Recently, the Florida Supreme Court vacated Lancelot Armstrong’s death
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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). The homicide conviction became final
on April 24, 1995, when the US Supreme Court denied Armstrong’s petition for a writ of
certiorari asking for review of the Florida Supreme Court’s denial of his direct appeal. Armstrong
v. Florida, 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 (“we reverse the postconviction court’s order and
remand for a new penalty phase”). Chapter 2017-1 will govern the new penalty phase. At issue
will be Armstrong’s sentence on his homicide conviction, which was final in 1995 and has
remained in place ever since, and whether Armstrong’s new jury will unanimously return a death
recommendation authorizing the imposition of a death sentence for the 1990 homicide.
14. The homicide at issue in Mr. Byrd’s case occurred in October of 1981, a mere
nine months after Johnson’s homicides and seven years after the homicide at issue in Dougan’s
case. Even though Mr. Byrd’s homicide conviction became final on May 27, 1986, there will be
defendant’s whose convictions were final before Mr. Byrd’s conviction was final that will be
entitled to a resentencing (e.g. Johnson and Dougan before their retrials were ordered). Yet, Mr.
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Byrd was sentenced to death after an unknown majority recommended death for a homicide that
occurred later in time and as to a conviction that was final after Dougan’s first degree murder
conviction became final in 1978.3
15. 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 given
retrospective 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. Thus, in Smith v. State, the Florida Supreme Court found a right under the Florida
Constitution to the fair and evenhanded application rules of law that requires similarly situated
defendants to be treated the same.
16. Recently, in accord with Smith v. State and the constitutional right discussed
3John Hardwick was convicted of a 1984 murder and sentenced to death. His conviction became final in 1988. Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), cert denied, 488 U.S. 871 (1988). The Eleventh Circuit vacated his death sentence and ordered a resentencing in Hardwick v. Sec’y Fla. Dep’t of Corr., 803 F.3d 541, 565 (11th Cir. 2015) (“Hardwick is entitled to habeas relief as to the penalty phase of his trial.”). Because the resentencing has yet to occur, Hardwick will receive the benefit of Chapter 2017-1 as to his conviction (final since 1988) of a 1984 homicide.
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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.”).
17. 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 2016-13, it took 10 jurors voting for a death sentence to return a
death recommendation and authorize a death sentence. This meant when 3 or more jurors voted
for a life sentence, a death sentence was not authorized. Then, in Chapter 2017-1, the substantive
right established in Chapter 2016-13 was broadened and 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.
18. In the wake of Chapter 2016-13 and Chapter 2017-1, it is clear that the statutory
right established in these recent enactments has been extended to defendants convicted of first
degree murder years ago with the convictions final 15 years or more before Ring v. Arizona
issued. John Hardwick, Paul Johnson, Lancelot Armstrong, and others now have the right to life
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sentences on those murder convictions final in 1988, 1993, 1995 unless juries return unanimous
death recommendations. 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 Mr.
Byrd’s case. Moreover because the statutory right is attaching to Johnson homicide convictions
that were final in 1993 and to Hardwick’s conviction final in 1988, that is no valid justification
that the right does not also attach to Mr. Byrd’s homicide conviction that was final in 1986.
19. 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.
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2004) (“It is the Due Process Clause that protects the individual against the arbitrary and
unreasonable exercise of governmental power.”).
20. In Evitts v. Lucey, 469 U.S. 387, 400 (1985), the US Supreme Court recognized
that “a State need not provide a system of appellate review as of right at all.” States have the
option to not provide appellate review of criminal convictions. See McKane v. Durston, 153 U.S.
684 (1894). But “when a State opts to act in a field where its action has significant discretionary
elements, it must nonetheless act in accord with the dictates of the Constitution-and, in particular,
in accord with the Due Process Clause.” Evitts v. Lucey, 469 U.S. at 401. See Jones v. Barnes,
463 U.S. 745, 751 (1983) (“There is, of course, no constitutional right to an appeal, but in Griffin
v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1955), and Douglas v. California,
372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court held that if an appeal is open to
those who can pay for it, an appeal must be provided for an indigent.”). Who gets the benefit of
the substantive right and who does not must not offend the Due Process Clause.
21. In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States 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:
James Kirkland Batson, the petitioner in Batson v. Kentucky, and Randall Lamont Griffith, the petitioner in the present Kentucky case, were tried in Jefferson Circuit Court approximately three months apart. The same prosecutor exercised peremptory challenges at the trials. It was solely the fortuities of the judicial process that determined the case this Court chose initially to hear on plenary review. 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
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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).
Griffith v. Kentucky, 479 U.S. 327-28 (emphasis added).4 “[S]elective application of new rules
violates the principle of treating similarly situated defendants the same.” Id. at 323.
22. 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
4 Justice Harlan in his dissent in Desist v. United States wrote:
We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.
394 U.S. at 258-59.
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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 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.
23. On June 12, 2001, legislation was enacted in Florida to preclude the imposition of
a death sentence on intellectually disabled defendants:
A sentence of death may not be imposed upon a defendant convicted of a capital felony if it is determined in accordance with this section that the defendant is intellectually disabled.
Section 921.137(2), Fla. Stat. The statute included language indicating that the substantive right
did not apply retrospectively and did not apply to any death sentence that had been imposed
before the effective date of the legislation. See §921.137(8) (“This section does not apply to a
defendant who was sentenced to death prior to the effective date of this act.”). However, when
the Florida Supreme Court promulgated a rule regarding the procedure to be used in determining
an individual’s intellectual disability, it included procedures for those already under a sentence of
death to challenge their death sentences on the basis of their intellectual disability. In re
Amendments to Fla. R. Crim. P. and Fla. R. App. P., 875 So. 2d 563 (Fla. 2004). While Atkins v.
Virginia, 536 U.S. 304 (2002), had issued by the time the Florida Supreme Court adopted Rule
3.203, it had not issued when the rules committee first proposed Rule 3.203. Id., 875 So. 2d at
565. In any event, the substantive right statutorily created in 2001 has been applied to defendants
who had been sentenced to death prior to the effective date of § 921.137, which was June 12,
2001. The statutorily created right has been extended to those who were under a sentence of
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death when § 921.137 became effective. For example, Freddie Hall’s sentence of death was
affirmed eight years earlier. See Hall v. State, 614 So. 2d 473 (Fla. 1993), cert denied, 510 U.S.
834 (1993). Yet on the basis of his intellectual disability, his death sentence was vacated and a
life sentence imposed. Hall v. State, 201 So. 3d 628 (Fla. 2016). See Herring v. State, 2017 WL
1192999 (Fla. March 31, 2017) (vacating a death sentence affirmed in a 1984 direct appeal on
the basis of intellectual disability and ordering a life sentence imposed). The Eighth Amendment
did not permit § 921.137 to be applied only to those who had not yet been sentenced to death
when the statute was enacted.
24. Further, the Eighth Amendment spoke to Florida’s line drawing as to who was
intellectually disabled and who was not. In Hall v. Florida, 134 S. Ct. 1986, 2001 (2014), the US
Supreme Court found that Florida’s procedure for determining intellectual disability was
inadequate to reliably insure that an intellectually disabled defendant was not executed. “A State
that ignores the inherent imprecision of these tests risks executing a person who suffers from
intellectual disability.” Id. at 2001. Because Florida ignored that inherent imprecision, the
Supreme Court found that “Florida’s rule is invalid under the Constitution’s Cruel and Unusual
Punishments Clause.” Id. The Supreme Court explained: “The death penalty is the gravest
sentence our society may impose. Persons facing that most severe sanction must have a fair
opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our
Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized
world.” This Eight Amendment principle applies here where Paul Johnson is convicted of a
murder that occurred nine months before that for which Mr. Byrd was convicted. Yet, Hardwick,
Johnson, and Armstrong have the right to a life sentence unless the jury unanimously returns a
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death recommendation, while Mr. Byrd is under a death sentence when an unknown number of
jurors may have voted against the imposition of a death sentence. There is only one word to
describe the distinction between circumstances faced by Hardwick, Johnson and Armstrong and
Mr. Byrd’s circumstances, and that word is “arbitrary.” To allow this arbitrary distinction to
leave Mr. Byrd’s death sentence intact while others like Hardwick, Johnson and Armstrong
receive the right to a life sentence unless their juries returns a unanimous death recommendations
violates Furman v. Georgia, 408 U.S. 238 (1972).
25. 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.
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26. 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.5 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 plus those statutorily defined facts necessary to authorize
a judge to impose a death sentence.6 In his dissenting opinion in Schriro, Justice Breyer
explained:
5Replacing a majority vote advisory verdict with a requirement that the jury must be unanimous when returning a death recommendation and its failure to do so precludes a death sentence is markedly different than merely switching from a judge to jury as the finder of fact. It is the equivalent of going from a preponderance burden of proof to a beyond a reasonable doubt burden of proof. It necessarily ensures convictions to be more reliable and more assuredly accurate. See 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.”).
6In 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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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.7
7 In Mosley v. State, 209 So. 3d 1248 (Fla. 2016), the Florida Supreme Court explained:
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.” Id. at 60.
Mosley, 209 So. 3d at 1278. The ruling that the Florida Constitution required juror unanimity when returning a death recommendation was bottomed on enhanced reliability and confidence in the result. Hurst v. State, 202 So. 3d at 59 (juror unanimity “will help to ensure the heightened level of protection necessary for a defendant who stands to lose his life as a penalty”). Implicit in that ruling is the recognition that Mr. Byrd’s death sentence does not have the “necessary” heightened level of protection because the death sentences lacked the enhanced reliability that
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27. There can be no question that when an unknown number of jurors vote in favor of
life sentences, there is a very large risk that the death penalty was improperly imposed because
Mr. Byrd cannot be said to have been 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 unknown majority death recommendation
would constitute an acquittal of capital first degree murder and preclude the imposition of a death
sentence.8
28. 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 John Hardwick, Paul Johnson and Lancelot Armstrong. 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 Mr. Byrd of that statutorily created
substantive right given that it has been extended to Johnson and Armstrong. “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.’” Vitek v. Jones,
445 U.S. 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.”).
29. Failing to grant Mr. Byrd the benefit of the substantive right contained in Chapter
juror unanimity would have provided.
8Even under Chapter 2016-13, the 9-3 death recommendation would constitute an acquittal of capital first degree murder and preclude the imposition of a death sentence.
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2017-1 violates Art. I, §§ 9, 16, Fla. Const., the Due Process Clause of the Fourteenth
Amendment, and the Eighth Amendment. Mr. Byrd is entitled to the same substantive right
extended to John Hardwick, Lancelot Armstrong and Paul Johnson. In Mr. Byrd’s case, we don’t
know how many jurors voted to return a death recommendation. We only know that a majority of
12 voted to return a death recommendation which under either Chapter 2016-13 or Chapter 2017-
1 would preclude the imposition of a death sentence, as it is necessary that the judiciary knows
whether 10 or 12 jurors voted for death. As it is, Mr. Byrd’s 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. Mr. Byrd’s death sentence must be
vacated and a resentencing ordered.
I HEREBY CERTIFY that a true copy of the foregoing Supplement to the Amended
Successive Motion to Vacate Judgments of Convictions and Sentence, and Alternatively Motion
to Correct Illegal Sentences has been furnished by electronic mail through the e-portal service to
The Honorable Michelle Sisco, Circuit Judge, Jay Pruner, Assistant State Attorney and Marilyn
Beccue, Assistant Attorney General on April 27, 2017.
Respectfully Submitted,
MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th St. Wilton Manors, FL 33334 [email protected] (305) 984-8344
BRYAN E. MARTINEZ
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Florida Bar No. 0119286 Staff Attorney Capital Collateral Regional Counsel-South
COUNSEL FOR MR. BYRD
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Filing # 56364767 E-Filed 05/12/2017 12:41:19 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
STATE’S ANSWER TO DEFENDANT’S AMENDED SUCCESSIVE MOTION (CLAIM V) FOR POST-CONVICTION RELIEF
COMES NOW, the State of Florida, by and through the
undersigned counsel, and hereby responds to Defendant’s
Successive Post-Conviction Motion filed on April 27, 2017.
Byrd’s motion is untimely and meritless and should be summarily
denied. Hurst1 is not retroactive to Byrd’s sentence which was
final before Ring2; therefore, he is not entitled to relief as a
matter of law. Moreover, neither the newly-enacted statute nor
the Florida Constitution give capital defendants whose cases are
final a substantive right to a life sentence or resentencing
regardless of the number of jurors who recommended death.
CLAIM V THE FLORIDA CONSTITUTION DOES NOT REQUIRE RETROACTIVE APPLICATION OF CHAPTER 2017-1, WHICH GOVERNS THE PROCEDURE USED TO DETERMINE WHETHER A CRIMINAL DEFENDANT IS ELIGIBLE FOR THE DEATH PENALTY, TO ANY CASE THAT WAS FINAL WHEN THE STATUTE WAS ENACTED.
1 Hurst v. Florida, 136 S. Ct. 616, 624 (2016). 2 Ring v. Arizona, 536 U.S. 584 (2002). 1
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Byrd, whose conviction and sentence have been final since
1986, claims that he has a vested and substantive right to
either a life sentence or a resentencing. Byrd v. Florida, 106
S. Ct. 2261 (1986). Byrd claims this right is derived from
§921.141, Fla. Stat. (2017), and the Florida Constitution and is
separate and apart from the Florida Supreme Court’s decision in
Hurst v. State, 202 So. 3d 40 (Fla. 2016).
In March 2016, the Legislature amended Florida’s death
penalty statute requiring that the jury unanimously find at
least one aggravator in order to make a defendant eligible for
the death penalty. After that finding was made, a jury could
recommend death only if at least 10 jurors determined that that
aggravator or aggravators were sufficient and outweighed the
mitigating circumstance(s). The Legislature amended the statute
in response to the United States Supreme Court’s specific
holding in Hurst v. Florida, 136 S. Ct. 616, 624 (2016) that
“Florida’s sentencing scheme, which required the judge alone to
find the existence of an aggravating circumstance, is therefore
unconstitutional.”
The United States Supreme Court remanded Hurst back to the
Florida Supreme Court to conduct a harmless error analysis.
Rather than limit itself to the issue of harmless error, the
Florida Supreme Court reevaluated Florida’s death penalty
statute and found that even the 2016 statute failed to comply
2
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with the United States Supreme Court’s ruling in Hurst; the
Florida Constitution’s requirement of jury unanimity as to each
element of a criminal offense; and the Eighth Amendment’s
requirement that death penalty statutes adequately narrow the
types of offenses to which the death penalty is applicable.
Hurst v. State, 202 So. 3d at 44.3
In a case issued on the same day as Hurst v. State, the
Florida Supreme Court held that the 2016 statute could not be
applied to pending prosecutions because the provision allowing
for a nonunanmious jury recommendation was rendered
unconstitutional by the Court’s companion decision in Hurst v.
State. Perry v. State, 210 So. 3d 630 (Fla. 2016). About four
months later, the court issued an opinion in Evans v. State, ---
So. 3d. ---, 42 Fla. L. Weekly S200 (Fla. Feb. 20, 2017)
clarifying that the portion of the statute the Court deemed
unconstitutional in Hurst v. State could be severed from the
remainder of the statute and the statute could, therefore, be
applied to pending prosecutions. A month later, in March 2017,
the Legislature amended the statute to require that the jury
unanimously recommend death before a death sentence could be
considered by the judge.
3 The State of Florida is seeking certiorari review of the Florida Supreme Court’s decision. Florida v. Hurst, 16-998. 3
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Byrd accurately states that the Florida Legislature amended
the death penalty statute after the Florida Supreme Court’s
decisions in Hurst and Perry v. State. The amended statute
requires that the jury unanimously find at least one aggravator
making the defendant eligible for the death penalty. After
making such a finding, the jury then must weigh the sufficiency
of the aggravator or aggravators against the mitigating
circumstance or circumstances. “If a unanimous jury determines
that the defendant should be sentenced to death, the jury’s
recommendation to the court shall be a sentence of death.”
§921.141 (2)(c), Fla. Stat. (2017).
From this relatively unremarkable series of events, Byrd
makes a giant leap concluding that the new statute confers a
substantive right to a life sentence for any capital defendant,
regardless of when their crime was committed and, presumably,
regardless of how long their sentence has been final.
The State agrees with Byrd’s general proposition that the
state constitution give the Legislature the power to enact
substantive law and the Florida Supreme Court the power to enact
procedural law. The distinction between what is substantive or
procedural is rarely easily made and depends on the purpose for
making the distinction.
The complexity and uncertainty surrounding the substance/procedure distinction arises in part from the circumstance that the distinction is applied in
4
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different contexts in different ways. “Except at the extremes, the terms ‘substance’ and ‘procedure’ precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn.” Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988); see also In re Fla. Rules of Crim. P., 272 So.2d 65, 66 (Fla. 1972)(Adkins, J., concurring)(“The entire area of substance and procedure may be described as a ‘twilight zone[,]’ and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.”). Accordingly, a measure which is substantive for one purpose, may be procedural for another. For example, a statute may be deemed procedural for purposes of Ex-Post-Facto- Clause analysis, while the same statute is deemed substantive for purposes of analysis under article V, section 2(a). In re Commitment of Cartwright, 870 So. 2d 152, 160–61 (Fla. 2d
DCA 2004).
Additionally, procedural provisions that are “intimately
related to” or “intertwined with” substantive statutory
provisions have been upheld against separation of powers
challenges. See Caple v. Tuttle's Design-Build, Inc., 753 So. 2d
49, 54 (Fla. 2000). Furthermore, almost 40 years ago, in Dobbert
v. State, 375 So. 2d 1069, 1071–72 (Fla. 1979), the Florida
Supreme Court held that in enacting Florida’s death penalty
statute the Legislature did not violate the separation of powers
provided for in the state constitution. “. . . Dobbert argues
that the death penalty statute is unconstitutionally violative
of article V, section 2(a), Florida Constitution, because it
attempts to govern practice and procedure; that its application 5
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to him violates article X, section 9, Florida Constitution;
that, at the time of his resentencing, section 921.141
unconstitutionally limited consideration of mitigating
circumstances to those enumerated in the statute; and that this
Court's failure to review capital cases where a sentence of life
has been imposed constitutes a violation of the eighth and
fourteenth amendments. We have considered each of these
arguments and find them to be without merit.” See also Booker v.
State, 397 So. 2d 910, 918 (Fla. 1981) citing Dobbert, 375 So.
2d at 54 (“Contrary to defendant's contention, we have held that
section 921.141, Florida Statutes (1977), does not violate the
requirements of article V, section 2(a), Florida Constitution,
because it attempts to govern practice and procedure.)
The Florida Supreme Court recently recognized the
procedural nature of the amended statute and the Legislature’s
authority to enact it in Jackson v. State, --- So. 3d ---, 42
Fla. L. Weekly S361 (March 23, 2017). “The invalidity of a
single provision purely procedural in nature does not
automatically invalidate the underlying punishment to which that
procedure applies.” Jackson quoting State v. Galindo, 278 Neb.
599, 774 N.W.2d 190, 213 (2009). Additionally, the Court noted
that Hurst errors do not “occur because no findings were made,
but rather because the jury did not make the findings as
required by the Sixth Amendment. Such an error does not
6
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constitute ‘a defect affecting the framework’ of the trial to
the extent that any resulting sentence must be deemed
fundamentally unfair.” Jackson citing Neder v. United States,
527 U.S. 1, 8 (1999).
Likewise, Byrd’s Due Process argument fails. Byrd is not
similarly situated to capital defendants who are either pending
prosecution or pending new penalty phase. More importantly,
though, the statute does not confer a substantive right to which
Byrd is entitled.
“‘The Due Process Clause provides two different kinds of
constitutional protections: procedural due process and
substantive due process.’ Procedural due process is, as its name
suggests, ‘a guarantee of fair procedure.’” J.R. v. Hansen, 803
F.3d 1315, 1320 (11th Cir. 2015) (internal citation omitted)
citing Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013)
and Zinermon v. Burch, 494 U.S. 113, 125 (1990). The substantive
component of the Due Process Clause protects individual liberty
against certain government actions regardless of the fairness of
the procedures used to implement them. Id. It has long been
recognized that a criminal defendant does not have a substantive
due process right to any particular sentence authorized by
statute. See Gardner v. Florida, 430 U.S. 349, 358 (1977).
Furthermore, Byrd cannot establish that the procedure used
to sentence him to death was unfair and, thus, a procedural due
7
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process violation. Byrd cannot validly claim that his sentencing
procedure was less accurate than future sentencing procedures
employing the new statute. Hurst v. Florida is a decision about
who makes the necessary factual findings. The Court did not hold
or even imply that sentencing procedures where a judge makes
factual findings are fundamentally unfair. To the contrary, the
Court has previously explained that, “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
(2004).
Likewise, the Florida Supreme Court’s Hurst v. State
decision did not find that any of Florida’s previous statutory
schemes were fundamentally unfair. Instead, relying on a broad
interpretation of the United States Supreme Court’s decision in
Hurst v. Florida, the court concluded that the state
constitutional mandate that defendants have right to a unanimous
jury finding regarding the elements of a criminal offense,
applies to the findings of whether an aggravator exists and
whether the aggravator is sufficient and outweighs any
mitigation.
The Florida Supreme Court’s Hurst opinion makes it clear
that the Florida Constitution’s unanimous jury requirement comes
into play only because, in the court’s view, the Sixth Amendment
to the U.S. Constitution, as interpreted by Hurst v. Florida,
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provides a right to have a jury determine the question of
whether the aggravators are sufficient and whether they outweigh
the mitigating circumstances. The Florida Supreme Court’s
decision, therefore, is premised on its reading of Hurst v.
Florida and the notion that the federal constitution requires
unanimity as to not only the existence of the aggravators, but
also as to their relative weight. The fact that the Legislature
promptly acted in response to the Florida Supreme Court’s
decision does not change the fact that Hurst is not retroactive
and neither are any resulting statutory amendments. Despite
Byrd’s representation to the contrary, this claim is “about
retroactivity of a court ruling,” and not about a statutorily
created substantive right. Hurst v. Florida is not retroactive
to cases final prior to the issuance of Ring v. Arizona, 536
U.S. 584 (2002) and neither are any of the subsequent statutory
amendments. Byrd’s conviction and sentence were final in 1986.
Consequently, this Court should dismiss this claim as untimely
or alternatively deny it.
Finally, and significantly, Byrd has already received a
unanimous recommendation of death. The jury in his 1981 trial
recommended death and indicated on the advisory form that its
recommendation was “by a majority of 12.” Byrd concludes that
this means not that “all twelve jurors voted for death. It
merely means that at least seven jurors voted in favor of
9
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death.” Simply looking at the form controverts this claim. The
form leaves a blank space for the foreman to fill in what the
vote was. In fact, they were instructed “If a majority of the
jury determine that the defendant should be sentenced to death,
your advisory verdict will be ‘A majority of the jury, by a vote
of, advise and recommend to the Court that it impose the death
penalty upon the defendant.” If Byrd’s interpretation of the
form were correct there would be no need to even include the
blank space for the foreman to fill in. The number would always
be 12. The only reasonable interpretation of the advisory form
is that all 12 jurors recommended a sentence of death.
Byrd’s claims are time barred and meritless. This Court
should summarily dismiss or deny each and every claim in Byrd’s
various post-conviction motions.
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL /s/ Marilyn Muir Beccue MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Office of the Attorney General 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: 813-287-7910 Facsimile: 813-281-5501 [email protected] [and] [email protected] CO-COUNSEL FOR STATE OF FLORIDA
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of May, 2017, I
electronically 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: Martin J. McClain, Esquire,
McClain & McDermott, P.A., 141 N.E. 30th Street, Wilton Manors,
33334, [email protected]; Jay Pruner, Assistant State
Attorney, Office of the State Attorney, 419 N. Pierce Street,
Tampa, Florida 33602, [email protected],
[email protected] [and] [email protected]; The
Honorable Michelle D. Sisco, Circuit Judge, Hillsborough County
Courthouse, 401 North Jefferson Street, Tampa, Florida 33602,
s/ Marilyn Muir Beccue Co-Counsel for State of Florida
11
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Filing # 56934885 E-Filed 05/25/2017 02:08:30 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
NOTICE OF SUPPLEMENTAL AUTHORITY
COMES NOW, Plaintiff, State of Florida, by and through the
undersigned Assistant Attorney General and hereby gives notice
of the following supplemental authority, a copy of which is
attached:
Zakrzewski v. Jones, ___ So. 3d ___, Case No. SC16-729
(Fla. May 25, 2017) (p. 4, “I concur in the majority’s
result because I am bound by this Court’s precedent in
Asay v. State, 210 So. 3d 1 (Fla. 2016), petition for
cert. filed, No. 16-9033 (U.S. Apr. 29, 2017), and
Marshall v. State, 2017 WL 1739246 (Fla. May 4, 2017),
which held that Hurst v. State (Hurst), 202 So. 3d 40
(Fla. 2016), cert. denied, No. 16-998 (U.S. May 22,
2017), does not apply retroactively to sentences of
death that became final before the United States
Supreme Court decided Ring v. Arizona, 536 U.S. 584
(2002) . . .” (Pariente, J. concurring)).
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of May, 2017, I
electronically filed the foregoing with the Clerk of the Court
by using the Florida Courts E-Portal filing system which will
send a notice of electronic filing to the following: Martin J.
McClain, Esquire, McClain & McDermott, P.A., 141 N.E. 30th
Street, Wilton Manors, 33334, [email protected]; Jay
Pruner, Assistant State Attorney, Office of the State Attorney,
419 N. Pierce Street, Tampa, Florida 33602,
[email protected], [email protected] [and]
[email protected]; The Honorable Michelle D. Sisco,
Circuit Judge, Hillsborough County Courthouse, 401 North
Jefferson Street, Tampa, Florida 33602, [email protected].
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL /s/ Marilyn Muir Beccue MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Office of the Attorney General 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: 813-287-7910 Facsimile: 813-281-5501 [email protected] [and] [email protected] CO-COUNSEL FOR STATE OF FLORIDA
2
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P279 P280 Supreme Court of Florida
______
No. SC16-729 ______
EDWARD J. ZAKRZEWSKI, II, Petitioner,
vs.
JULIE L. JONES, etc., Respondent.
[May 25, 2017]
PER CURIAM.
This case is before the Court on Edward J. Zakrzewski, II’s petition for a
writ of habeas corpus claiming a right to relief under the United States Supreme
Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on
remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-
998 (U.S. May 22, 2017). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.
For the following reasons, we affirm Zakrzewski’s three sentences of death.
In 1994, Zakrzewski pled guilty to three charges of first-degree murder for
the deaths of his wife and two young children. Zakrzewski v. State, 717 So. 2d
488, 490 (Fla. 1998), cert. denied, 525 U.S. 1126 (1999). After the penalty phase,
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the jury recommended sentences of death for the murders of Zakrzewski’s wife
and son, both by a vote of seven to five. Id. at 491. For the murder of
Zakrzewski’s daughter, the jury recommended a sentence of life imprisonment
without parole. Id. The trial court, concluding that the aggravating factors
outweighed the mitigating circumstances for all three murders, followed the jury’s
recommendation on the first two and overrode the jury’s recommendation on the
third and sentenced Zakrzewski to death for all three murders. Id. On direct
appeal, this Court “affirm[ed] the three death sentences.” Id. at 495.
In 2003, Zakrzewski appealed the trial court’s denial of postconviction relief
on his claim that Florida’s death penalty is unconstitutional under the United States
Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Ring v. Arizona, 536 U.S. 584 (2002). Zakrzewski v. State, 866 So. 2d 688, 692,
696 (Fla. 2003). This Court affirmed the trial court’s denial of postconviction
relief. Id. at 697. Zakrzewski now claims that his death sentences are
unconstitutional under Hurst v. Florida and Hurst and that he is entitled to relief
under chapter 2016-13, Laws of Florida.
In Asay v. State, 210 So. 3d 1 (Fla. 2016), petition for cert. filed, No. 16-
9033 (U.S. Apr. 29, 2017), we held that Hurst does not apply retroactively to
sentences of death that were final before the United States Supreme Court decided
Ring. In Marshall v. State, 2017 WL 1739246 (Fla. May 4, 2017), we denied
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Marshall’s petition for a writ of habeas corpus based on Asay, concluding that the
judicial override in Marshall’s case did not warrant an exception to the
retroactivity analysis in Asay. Id. Zakrzewski’s sentences became final in 1999
when the United States Supreme Court denied his petition for certiorari review.
Thus, Zakrzewski is not entitled to Hurst relief, and we deny his petition for writ of
habeas corpus.
It is so ordered.
LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. LEWIS and CANADY, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
Despite the savage, horrific way in which Zakrzewski, a veteran of the
United States Air Force, murdered his wife and two children, the jury votes in this
case, where “the trial judge found two statutory mitigating [circumstances], as well
as a number of nonstatutory mitigating [circumstances],” were 7-5, 7-5, and 6-6.
Zakrzewski v. State, 717 So. 2d 488, 494 (Fla. 1988). Following the jury’s two
recommendations for death and overriding the jury’s third recommendation for
life, the trial court sentenced Zakrzewski to death for all three murders. The
sentences of death became final in 1999. Majority op. at 3.
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I concur in the majority’s result because I am bound by this Court’s
precedent in Asay v. State, 210 So. 3d 1 (Fla. 2016), petition for cert. filed, No. 16-
9033 (U.S. Apr. 29, 2017), and Marshall v. State, 2017 WL 1739246 (Fla. May 4,
2017), which held that Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert.
denied, No. 16-998 (U.S. May 22, 2017), does not apply retroactively to sentences
of death that became final before the United States Supreme Court decided Ring v.
Arizona, 536 U.S. 584 (2002), and there is no exception to this rule for sentences
that resulted from judicial overrides.
However, as I expressed in Asay and Chief Justice Labarga expressed in
Marshall, the judicial override for the death sentence where the jury voted for life
“constitutes an injustice that should be remedied.” Marshall, 2017 WL 1739246, at
*1 (Labarga, C.J., dissenting); accord Asay, 210 So. 3d at 35 n.32 (Pariente, J.,
concurring in part and dissenting in part). Of course, in this case, as Petitioner
points out, Zakrzewski’s counsel raised arguments substantially similar to those
that were eventually recognized in both Ring and Hurst, including that Florida’s
capital sentencing scheme was unconstitutional under the Sixth Amendment and
article I, section 16, of the Florida Constitution for requiring only a bare majority
of the jury’s vote to impose death.
As Justice Anstead stated, dissenting to this Court’s 1998 opinion affirming
the judicial override in this case, joined by Chief Justice Kogan and Justice Shaw:
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The majority has not honored Tedder and our consistent case law in holding that, despite the unusual and unique circumstances involved herein, and the extensive amount of statutory and non-statutory mitigation established, no reasonable juror could vote for mercy, as the jury did here, and spare appellant’s life for the killing of the child Anna, while voting for death in the killing of Edward. The mistake of the majority is illustrated by the recent case of Esty v. State, 642 So. 2d 1074, 1076 (Fla. 1994), where the trial court overrode the jury’s life recommendation and found the HAC and CCP aggravators, the statutory mitigator of no significant prior criminal history, and no nonstatutory mitigation. In reversing the improper override, we explained the Tedder standard and its application: For a trial judge to override a jury recommendation of life, ‘the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.’ Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). An override is improper if there is a reasonable basis in the record to support the jury’s recommendation. Ferry v. State, 507 So. 2d 1373, 1376 (Fla. 1987). The record in this case reveals a number of factors that support the jury’s recommendation, including Esty’s age of eighteen at the time of the murder, his lack of a criminal history, his potential for rehabilitation, and the possibility that he acted in an emotional rage. Thus, we conclude that jury override was improper because the jurors could have relied on these factors established in the record to recommend a life sentence in this case.
Id., 642 So. 2d at 1080 (emphasis supplied). Similarly, in Strausser v. State, 682 So. 2d 539, 542 (Fla. 1996), we found that the trial court’s override failed the Tedder standard because “there was vast mitigation to support the jury’s recommendation.” Likewise, we have just recently again reaffirmed this enduring standard in reversing the trial court’s override of the jury’s recommendation of a life sentence in Pomeranz v. State, 703 So. 2d 465, 471 (Fla. 1997), the latest of a series of recent cases wherein we have consistently reaffirmed Tedder. See Marta-Rodriguez v. State, 699 So. 2d 1010, 1012-1013 (Fla. 1997); Jenkins v. State, 692 So. 2d 893, 895 (Fla. 1997); Boyett v. State, 688 So. 2d 308, 310 (Fla. 1996).
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The majority has not considered the facts in a light most favorable to the recommendation of the jury, as we are required to do, or acknowledged the unchallenged reasonable basis in the record supporting the jury’s vote as to Anna’s death. Further, the majority has ignored not only the evidence and inferences therefrom that would support the jury’s recommendation, but has also ignored the fact that even the jury vote recommending death was by a slim seven to five margin, one vote away from a life recommendation for the appellant. Hence, the majority, in direct violation of the law and our decision in Tedder has substituted its subjective analysis of the facts for the views of the sworn and death-qualified jurors, who not only could have had reasonable but differing views as to whether death was appropriate, but did have those views and openly expressed them. The majority has apparently concluded that because its members would not have extended mercy, the views of the twelve citizens sitting on this jury extending mercy will be ignored. There can be no legitimate dispute that the jury had an abundance of evidence upon which it could have based its life recommendation for Anna’s death. Indeed, the extensive mitigation found by the trial court in this case is vastly greater than that found in the cases discussed above and, both in its nature and degree, is unique. Even the trial judge, who obviously disagreed with the jury’s recommendation, acknowledged the existence of the unusual extent of the mitigation and found two statutory mitigators, no significant prior criminal history and under the influence of an extreme mental or emotional disturbance, and gave varying degrees of weight to some fourteen (14) nonstatutory mitigators, ranging from substantial to slight weight. On such a record there is simply no way that we can properly conclude that there is no “reasonable basis in the record to support the jury’s recommendation.” . . . . As we approach the 21st century of our civilization, do we really want to take a law (the trial judge’s sentencing 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 a sword for the judiciary to emotionally trump a jury acting with reasoned mercy?
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Zakrzewski, 717 So. 2d at 496-97 (Anstead, J., concurring in part and dissenting in
part) (last emphasis added) (footnote omitted).
The bottom line is that, in light of Hurst, we should at least reconsider our
case law on judicial overrides. Only three defendants stand sentenced to death as a
result of a judicial override. Zakrzewski’s sentence was the most recent of the
judicial override sentences that this Court affirmed, and we have not affirmed a
judicial override on direct appeal since Zakrzewski’s case. Further, the cases upon
which this Court relied to uphold jury overrides—Spaziano v. Florida, 468 U.S.
447 (1984), and Hildwin v. Florida, 490 U.S. 638 (1989)—have now been
overruled by the United States Supreme Court in Hurst v. Florida. See, e.g.,
Marshall v. Crosby, 911 So. 2d 1129, 1135 (Fla. 2005).
As this Court has explained, when a jury recommends a sentence of life, “a
majority of a twelve-person jury concluded that . . . the record before them . . .
compelled a life recommendation.” Keen v. State, 775 So. 2d 263, 284 n.19 (Fla.
2000). Since Zakrzewski’s case, the Court has emphasized the “fundamental
distinction . . . between a defendant who receives an advisory sentence of death
from a jury as opposed to one who receives an advisory sentence of life.” Weaver
v. State, 894 So. 2d 178, 200 (Fla. 2004); see Coleman v. State, 64 So. 3d 1210,
1225-27 (Fla. 2011). After Hurst v. Florida and Hurst, which emphasized the
critical importance of the jury’s findings and ultimate sentence recommendation in
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capital sentencing, this distinction is even clearer. Thus, I would grant Hurst relief
to Zakrzewski for his third sentence of death that resulted from a judicial override.
Although granting relief to Zakrzewski based on the judicial override in his
case would not disturb 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
unconstitutional judicial override. See Marshall, 2017 WL 1739246, at *1-3
(Labarga, J., dissenting).
Original Proceeding – Habeas Corpus
Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, and Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, Florida,
for Respondent
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Filing # 57900986 E-Filed 06/17/2017 05:35:58 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA STATE OF FLORIDA,
Plaintiff, v. CASE NO. 81-CF-010517
MILFORD WADE BYRD,
Defendant. ______/
NOTICE OF SUPPLEMENTAL AUTHORITY
COMES NOW, the Defendant, MILFORD WADE BYRD, by and through counsel, and
provides this Court notice of the attached supplemental authority in support of Claims IV and V
of his amended Rule 3.851 motion:
1. On June 15, 2017, the Florida Supreme Court issued Bevel v. State, _ So. 3d _,
2017 WL 2590702 (Fla. 15, 2017). In Bevel, two death sentences had been imposed. One death
sentence was imposed after the jury returned a 8-4 death recommendation. The second death
sentence was imposed after the jury returned a unanimous death recommendation.
2. While the Florida Supreme Court vacated the first death sentence on the basis of
Hurst v. Florida, 136 S. Ct. 616 (2016), the second death sentence, which was imposed after the
jury had voted 12-0 to recommend a death sentence, was vacated on the basis of ineffective
assistance of penalty phase counsel under Strickland v. Washington, 466 U.S. 668 (1984). In its
Strickland analysis, the Florida Supreme Court noted that the prejudice prong of the Strickland
standard had to be applied differently in the wake of Hurst v. State, 202 So. 3d 40 (Fla. 2016).
3. The prejudice prong of the Strickland analysis is concerned with whether
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counsel’s deficient performance undermined confidence in the reliability of the outcome.
According to Bevel, the concern for the reliability of the penalty phase requires an adjustment to
the prejudice prong analysis:
After our more recent decision in Hurst, 202 So. 3d 40, where we determined that a reliable penalty phase proceeding requires that “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,” 202 So. 3d at 59, we must consider whether the unpresented mitigation evidence would have swayed one juror to make “a critical difference.” Phillips, 608 So. 2d at 783.
Bevel v. State, 2017 WL 2590702 at *10 (emphasis added). Previously, the issue was the
likelihood of six jurors voting to recommend a life sentence. After making this adjustment to the
prejudice prong analysis, the Florida Supreme Court vacated the death sentence imposed even
though the jury returned a unanimous death recommendation. Confidence in the reliability of the
outcome was undermined.
4. This aspect of the decision in Bevel v. State supports and validates Claim IV of
Mr. Byrd’s amended motion to vacate. It also supports and validates Claim V of the amended
motion to vacate and establishes that Mr. Byrd’s death sentence lacks the reliability required by
the Eighth Amendment. Johnson v. Mississippi, 486 U.S. 578 (1988).
I HEREBY CERTIFY that a true copy of the foregoing notice of supplemental authority
has been served on by electronic mail to all counsel of record through the electronic service
provide by the e-portal , on June 17, 2017.
/s/. Martin J. McClain MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A.
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Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344 [email protected]
BRYAN E. MARTINEZ Florida Bar No. 0119286 Staff Attorney Capital Collateral Regional Counsel-South 1 East Broward Boulevard, Suite 444 Ft. Lauderdale, FL 33301 [email protected] (954) 713-1284
COUNSEL FOR MR. BYRD
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Filing Bevel# 57900986 v. State, --- E-Filed So.3d ---- 06/17/2017(2017) 05:35:58 PM
Karen M. Gottlieb of Florida Center for Capital Representation, Miami, Florida; and Sonya Rudenstine, 2017 WL 2590702 Gainesville, Florida, for Amici Curiae Justice Harry Only the Westlaw citation is currently available. Lee Anstead, Judge Rosemary Barkett, Martha Barnett, NOTICE: THIS OPINION HAS NOT BEEN Talbot D'Alemberte, Hank Coxe, Justice Gerald Kogan, RELEASED FOR PUBLICATION IN THE Florida Association of Criminal Defense Lawyers, PERMANENT LAW REPORTS. UNTIL RELEASED, Florida Capital Resource Center, and Florida Center for IT IS SUBJECT TO REVISION OR WITHDRAWAL. Capital Representation
Supreme Court of Florida. Opinion
Thomas BEVEL, Appellant, PER CURIAM. v. *1 In this appeal from the denial of an initial motion STATE of Florida, Appellee. for postconviction relief filed pursuant to Florida Rule Thomas Bevel, Petitioner, of Criminal Procedure 3.851, death-sentenced prisoner v. Thomas Bevel raises the sole claim that his attorney Julie L. Jones, etc., Respondent. provided constitutionally ineffective assistance during the penalty phase of his capital murder trial. Bevel also raises, No. SC14–770 in an accompanying petition for a writ of habeas corpus, a | claim of ineffective assistance of appellate counsel for not No. SC14–2106 presenting an issue on direct appeal pertaining to allegedly | improper prosecutorial comments. We have jurisdiction. [June 15, 2017] See art. V, § 3(b)(1), (9), Fla. Const. For the reasons An Appeal from the Circuit Court in and for Duval explained in this opinion, we deny the habeas petition, County, John Bradford Stetson, Judge—Case No. but reverse the postconviction court's order denying 162004CF004525AXXXMA And an Original Proceeding Bevel's motion for postconviction relief, vacate Bevel's —Habeas Corpus death sentences, and remand for a new penalty phase proceeding. Attorneys and Law Firms
Frank Tassone of Tassone & Dreicer, LLC, Jacksonville. Florida; and Rick A. Sichta, Susanne K. Sichta, and Joe I. FACTS AND PROCEDURAL HISTORY Hamrick of The Sichta Firm, LLC., Jacksonville, Florida, The facts of Bevel's crimes were set forth in this Court's for Appellant/Petitioner opinion affirming the convictions and sentences on direct Pamela Jo Bondi, Attorney General, and Carine L. Mitz, appeal: Assistant Attorney General, Tallahassee, Florida, for Thomas Bevel was charged with the February 2004 Appellee/Respondent first-degree murders of Garrick Stringfield and his Stephen K. Harper, Clinical Professor, Death Penalty son Phillip Sims and attempted first-degree murder of Clinic, Florida International University College of Feletta Smith. Law, Miami, Florida; and Stuart L. Hartstone, Acting The key events of February 28, 2004, which ended in Executive Director, Florida Capital Resource Center, two murders and one attempted murder, established the Miami, Florida, for Amici Curiae The Florida Capital following. Thomas Bevel, who was twenty-two years Resource Center and The Death Penalty Clinic at Florida old at the time of the crime, resided with Garrick International University College of Law Stringfield, who was thirty. The two were close friends, Robert C. Josefsberg of Podhurst Orseck, P.A., Miami, such that Stringfield referred to Bevel as “nephew” or Florida; Robert G. Kerrigan of Kerrigan, Estess, “Tom Tom” and Bevel referred to Stringfield as “Unc.” Rankin, McLeod & Thompson, LLP, Pensacola, Florida; On February 28, 2004, both men were at a street parade
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
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Bevel v. State, --- So.3d ---- (2017)
in Jacksonville where they ran into Feletta Smith, whom on the door and said, “Unc, open the door.” Stringfield they both knew from their childhood. Smith exchanged got up from the bed, unarmed, and opened the door in telephone numbers with Stringfield and made plans to his pajamas. Bevel immediately shot Stringfield in the meet later that evening. head and he instantly fell to the floor in the doorway. Smith began screaming and Bevel yelled, “Bitch, shut After leaving the parade, Bevel and Stringfield up” while he shot her several times as she lay in the purchased a bottle of gin and went back to Stringfield's bed. Smith became quiet and pretended to be dead. She house later in the evening. Because Stringfield was going testified that there was “no doubt in [her] mind” that out, he asked Bevel to wait for his thirteen-year-old Bevel was the shooter. Rohnicka Dumas corroborated son, Phillip Sims, who was being dropped off by his Smith's testimony. She observed Bevel pick up the rifle, mother, Sojourner Parker. Although Parker noticed go out into the hallway, knock on Stringfield's bedroom that Stringfield's car was not in the driveway when door and say, “Unc, look here.” She testified that she arrived at the house, she was unconcerned because multiple shots were fired, during which she heard both Bevel, a person she considered Stringfield's roommate, the woman in the other room screaming and Bevel yell, answered the door and let her son inside. “Bitch, shut up.”
Around 9 p.m., Stringfield met Smith at a Walgreens Bevel then went into the living room where Sims was store and she followed him back to his house. When still sitting on the sofa with the television remote in his they arrived at Stringfield's house, Bevel and Sims were hand and shot him twice, once grazing his arm and chest playing video games in the living room where Smith and and once in the face. Subsequently, Bevel returned to Stringfield joined them. Although no illegal drugs were the bedroom where Dumas had been and they walked being consumed, Smith stated that Bevel and Stringfield out the front door. Bevel locked the burglar bar door, a were drinking gin out of the bottle and she had a barred security gate located on the outside of the front half cup of gin and grapefruit juice. At some point, door to the house, and drove away in Stringfield's car Smith and Stringfield went into his bedroom to watch with Dumas sitting in the passenger seat. While driving television. Stringfield showed Smith an AK–47 rifle that to Dumas's house, Bevel held the AK–47 rifle under his he kept under his bed and, because Smith was scared of chin and stated that he did not mean to kill the boy it, he handed the gun to Bevel who removed it from the (Sims), but had to because he was going to be a witness. room. Stringfield and Smith remained in the bedroom Bevel abandoned Stringfield's car near Dumas's house. with the door closed. Smith said that she last saw Sims playing video games in the living room. Smith was eventually able to reach 911 by using Stringfield's cell phone. Because Smith was unable to *2 Bevel then drove Stringfield's car to a BP gas station give the police an exact address, it took some time for to meet his girlfriend, Rohnicka Dumas, took her to the police and rescue to find the house. Ultimately, a bar where he purchased another bottle of gin, and rescuers were able to transport her to the hospital brought her back to the house. When they returned, where she stayed for almost a month while undergoing Stringfield and Bevel went into the backyard, Dumas multiple surgeries for various gunshot wounds to her went inside, Smith remained in Stringfield's bedroom, pelvis and upper legs. and Sims continued to play video games in the living room. Stringfield and Bevel then came back into the After hiding for almost a month, Bevel was finally house and each had a gun in his possession; Stringfield found by officers from the Jacksonville Sheriff's Office was carrying a smaller handgun and Bevel had the on March 27, 2004. Bevel was informed of his AK–47 rifle that Stringfield had handed to him earlier constitutional rights and indicated his understanding in the evening. Bevel and Dumas went into the other of each right by signing the rights form. The police bedroom, located across the hall from Stringfield's questioned Bevel on two occasions over the course of room, and talked. twenty-four hours. During these two interviews, Bevel gave four different versions of the story but ultimately Bevel then left the bedroom with the AK–47 rifle in his confessed to the murders. hand. He went to Stringfield's bedroom, where Smith and Stringfield were lying in bed nearly asleep, knocked
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Bevel v. State, --- So.3d ---- (2017)
a conversation with Smith at a federal courthouse in Although Bevel confessed to murdering Stringfield and which Smith said that she did not see who committed Sims, his version of events was contrary to the testimony the murder. of both Smith and Dumas. Bevel stated that he and Stringfield had been fighting recently about money After the guilt-phase portion of the trial, the jury that Stringfield believed he was owed and that Bevel found Bevel guilty of first-degree murder of Stringfield feared that Stringfield was going to try and kill him. He by discharging a firearm, first-degree murder of Sims said that when he brought Dumas back to the house by discharging a firearm, and attempted first-degree that night, Stringfield began to get angry, saying that murder of Smith by discharging a firearm. he should have killed Bevel a long time ago. While Dumas and Smith were in opposite bedrooms, the fight Bevel v. State, 983 So. 2d 505, 510–12 (Fla. 2008). escalated until Stringfield was pointing the handgun at Bevel and Bevel had picked up the AK–47 rifle. Then, During the penalty phase, the State presented testimony Stringfield went into his bedroom and, when Bevel from Detective Kuczkowski, who had investigated a heard a clicking noise that sounded like a magazine previous armed robbery charge involving Bevel. Id. at being loaded into the handgun, Bevel moved towards 512. After pleading guilty to the lesser-included offense of the room and shot Stringfield when he reached the door. attempted robbery without a firearm, Bevel was sentenced Bevel said the gun went off several times but he did not to one year in county jail for that crime. Id. at 512 n.1. mean to shoot Smith. Within a year of being released, Bevel committed the murders at issue in this case. Id. *3 At trial, the State presented the testimony of several forensic and medical experts, who testified regarding The State also presented penalty phase testimony from the causes of death of Stringfield and Sims and the Detective Dingee, “who recounted Bevel's confession that extensive injuries suffered by Smith. Dr. Jesse Giles, he killed Sims because he would have been a witness.” who performed the autopsy of Sims, testified that Sims Id. at 512. In addition to offering three victim-impact received a gunshot wound that grazed his chest and statements as further evidence, “the State played the exited his arm but that he died as a result of massive portion of the videotape in which Bevel stated that he trauma due to a gunshot wound to the head. Dr. killed Sims because he knew who Bevel was and would tell Aurelian Nicolaescu, who performed the autopsy of Stringfield's brother that he killed Stringfield.” Id. Stringfield, testified that he died as a result of a gunshot wound to the head. Both doctors testified that each This Court summarized the evidence presented by Bevel victim had stippling injuries, which is indicative of during the penalty phase as follows: being shot at close to intermediate range. The State also presented evidence technicians and crime-scene In defense, Bevel presented the testimony of several analysts who discussed bullet fragments, casings, and family members who described Bevel's poor childhood, fingerprints lifted from the scene. In addition, the State the physical abuse he suffered and witnessed at the introduced the two videotaped interviews with Bevel hands of his mother's boyfriend, the bond he held with and letters that Bevel wrote to Dumas from prison, his mother and how her death affected him at the age in which he attempted to convince her to change her of twelve, his poor relationship with his father who testimony and lie at trial to save his life. was a heroin addict, and his positive relationships with his extended family. Bevel also presented the testimony In his defense, Bevel presented testimony to contradict of Dr. Harry Krop, a psychologist, who conducted Smith's version of events. Officer Kenneth Bowen, one neuropsychological evaluations and other personality of the first officers to arrive at the crime scene, stated tests to evaluate Bevel for competency to stand trial and that Smith told him that two black males with ski masks his mental state at the time of the crimes, and to explore committed the crimes. Francis Smith, Smith's mother, his psychological status and background to prepare to stated that she overheard her daughter tell Bevel's possibly testify during the penalty phase. brother and his friend in the hospital that the man who committed the murder had on a mask. Finally, Ketrina Among other things, Dr. Krop testified about Bevel's Bronner, a neighbor of Stringfield, stated that she had low full-scale IQ of 65, which placed him in the range
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of mild mental retardation; however, he stated that Id. at 513. “In fact, the trial court noted that either Bevel could not be diagnosed as mentally retarded aggravator standing alone would outweigh the mitigators because, based on Bevel's letters and writings from in the murder of Sims.” Id. The trial court therefore prison, he believed Bevel “had a lot of street sense and ... sentenced Bevel to death for both murders. Id. clearly has a higher level of adaptive functioning.” Dr. Krop stated that Bevel's mental age is somewhere On direct appeal to this Court, Bevel raised nine claims: around that of a fourteen- or fifteen-year-old and that (1) the trial court erred in failing to strike a juror for cause he would function well in a structured environment on the asserted ground of favoring law enforcement; (2) such as the general population at prison. However, the trial court erred in finding that the aggravating factors on cross-examination, Dr. Krop admitted that Bevel outweighed the mitigating circumstances; (3) Bevel's death was clearly responsible for the crimes he committed; he sentences are disproportionate; (4) the trial court erred also appreciated the criminality of the conduct, had no in denying Bevel's motion arguing that Florida's death organic brain damage or other serious mental infirmity, penalty statute is unconstitutional because a jury, rather and was not suffering from any mental illness at the time than a judge, must make a unanimous finding as to the of the crime. aggravators; (5) the trial court erred in the weight assigned to the aggravating factors and mitigating circumstances; *4 Id. at 512–13 (footnote omitted). (6) the trial court abused its discretion in allowing photographic evidence that was gruesome and unduly The jury recommended the death penalty by a vote prejudicial; (7) the trial court erred in admitting Bevel's of eight to four as to the murder of Stringfield confession; (8) the trial court erred in adopting verbatim and by a unanimous vote of twelve to zero as to the State's proposed findings of fact and conclusions of the murder of Sims. Id. at 513. Following the jury's law; and (9) the death penalty is inappropriate because recommendations, the trial court found the prior violent Bevel's mental age is under that of an eighteen-year-old. felony aggravating factor applicable to both murders, Id. at 513 n.5. This Court unanimously rejected all of based on the contemporaneous crimes and the prior Bevel's claims and affirmed his murder convictions and attempted robbery, and assigned this aggravating factor death sentences. Id. at 526. “very great weight.” Id. As to the murder of Sims, the trial court found the additional aggravating factor that *5 Bevel subsequently filed an initial motion for the murder was committed to avoid arrest, assigning this postconviction relief, pursuant to Florida Rule of aggravating factor “great weight.” Id. Criminal Procedure 3.851, in which he raised the following ten claims: (1) trial counsel was ineffective during the In mitigation, the trial court rejected the statutory age guilt and penalty phases of Bevel's trial; (2) Bevel was mitigating circumstance, finding that it had not been deprived of the right to the effective assistance of a proven by a preponderance of the evidence since Bevel mental health expert as required by Ake v. Oklahoma, was twenty-two at the time of the murders and his mental 470 U.S. 68 (1985); (3) Bevel is ineligible for the death age, according to the trial court, was not significantly penalty because he is intellectually disabled; (4) the State lower. Id. The trial court did, however, find the following improperly withheld material evidence in violation of six nonstatutory mitigating circumstances: (1) Bevel has Brady v. Maryland, 373 U.S. 83 (1963); (5) Bevel was religious faith and loves his family members (minimal erroneously denied access to public records; (6) Bevel's weight); (2) Bevel confessed to the crime (little weight); (3) death sentences are unconstitutional because the State Bevel exhibited good behavior in jail (very little weight); does not have uniform standards for determining whether (4) Bevel exhibited good behavior in court (little weight); to seek the death penalty; (7) Bevel's death sentences are (5) Bevel has an IQ of 65 (little weight); and (6) Bevel not proportionate; (8) cumulative error deprived Bevel of struggled with the death of his mother (very little weight). a fundamentally fair trial; (9) Florida's capital sentencing Id. at 513 & n.4. scheme is unconstitutional in violation of the Sixth and Eighth Amendments to the United States Constitution; “The trial court concluded that the aggravating [factors] and (10) execution by lethal injection is unconstitutional. strongly outweighed the mitigating circumstances as to the murder of Stringfield and that the aggravators far outweighed the mitigators as to the murder of Sims.”
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The postconviction court held a Huff 1 hearing and thereafter entered an order granting an evidentiary On appeal to this Court, Bevel contends that the hearing as to three of Bevel's claims: claim 1, pertaining postconviction court erred in denying the ineffective to ineffective assistance of counsel; claim 3, pertaining to assistance of penalty phase counsel claim. He does not intellectual disability; and claim 4, pertaining to Brady. challenge the denial of the intellectual disability 2 or The postconviction court determined that the remaining Brady claims, nor does he raise any substantive issue claims could be decided as a matter of law, with the pertaining to the summarily denied claims. 3 He has, exception of the cumulative error claim, which it would however, filed an accompanying petition for a writ of decide after the evidentiary hearing. habeas corpus, raising a claim of ineffective assistance of appellate counsel. Bevel also argues that he is entitled to 1 Huff v. State, 622 So. 2d 982, 983 (Fla. 1993). The Hurst 4 relief. procedure set forth in Huff has since been codified in Florida Rule of Criminal Procedure 3.851(f)(5)(A). 2 See Johnson v. State, 135 So. 3d 1002, 1011 n.4 (Fla. While the current appeal was pending in this Court, 2014). Bevel filed a motion to permit the filing of a successive motion for postconviction relief in the trial court, During an evidentiary hearing that spanned four days, indicating his intent to raise a claim based on the Bevel presented testimony from the following thirteen United States Supreme Court's decision in Hall v. witnesses: Refik Eler (trial counsel for Bevel who was Florida, 134 S. Ct. 1986 (2014), which invalidated responsible for the guilt phase); Richard Selinger (trial Florida's method of determining whether a defendant counsel for Bevel who was responsible for the penalty in a capital case has an intellectual disability. This phase); Mike Hurst (private investigator for the defense); Court granted Bevel's motion, thereby permitting him Antorio McCray (Bevel's older brother); Laurel French to file the successive claim while the current appeal Wilson (an attorney who had represented Bevel in juvenile continued as scheduled.
court); Carl Burden (Bevel's friend); Barbara Jean Fisher 3 In his brief, Bevel made a cursory reference to (Bevel's aunt); Lavonne McCray (Bevel's uncle); Maria alleged deficiencies in the postconviction court's Sardinas (Bevel's foster parent); Gregorio Hector Sardinas order pertaining to the summarily denied claims. (Bevel's foster parent); Dr. Chester Aikens (employer of To the extent Bevel challenges the merits of the Bevel's mother); Blanche Juliette Thayer (social worker); postconviction court's denial of these claims, that and Sara Flynn (mitigation specialist). In addition, expert issue is insufficiently pled. See Wheeler v. State, 124 witness testimony was elicited from four mental health So. 3d 865, 889–90 (Fla. 2013) (denying a claim as experts: Dr. Harry Krop, the defense expert from trial; Dr. insufficiently pled where the appellant “completely Robert Ouaou; Dr. Steven Gold; and Dr. Richard Dudley. failed to make any legal argument to support” the claim). To the extent Bevel alleges that the postconviction court's order is procedurally defective, Following the evidentiary hearing, the postconviction we deny that claim. court issued an order denying Bevel's motion for postconviction relief. In its order, the postconviction 4 Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, court determined, as a matter of law, that claims 2 No. 16–998 (U.S. May 22, 2017). While Bevel's (Ake), 5 (public records), 6 (lack of uniform standards), appeal was pending, the United States Supreme Court 7 (proportionality), 9 (constitutionality of death penalty decided Hurst v. Florida, 136 S. Ct. 616 (2016), statute), and 10 (constitutionality of lethal injection) and we decided Hurst on remand. The parties filed were without merit. As to claims 1 and 4 (the supplemental briefing addressing the application of ineffective assistance of counsel and Brady claims), the Hurst v. Florida before this Court. postconviction court concluded that Bevel had failed to demonstrate prejudice, and as to claim 3 (the intellectual II. ANALYSIS disability claim), the postconviction court determined that “Bevel's adaptive functioning precludes a diagnosis of *6 We begin by addressing whether Bevel is entitled to mental retardation.” Because the postconviction court postconviction relief as a result of our decision in Hurst, found no individual error, it also denied claim 8 (the requiring unanimity in the jury's findings of “the existence cumulative error claim). of each aggravating factor that has been proven beyond a
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reasonable doubt, the finding that the aggravating factors 6 Bevel's sentence became final in 2008. See Bevel, 983 are sufficient ... the finding that the aggravating factors So. 2d at 510. outweigh the mitigating circumstances,” and unanimity As to Bevel's death sentence for the murder of Sims, which as to the jury's final recommendation for death. 202 So. the penalty phase jury unanimously recommended, we 3d at 44. We conclude that Bevel is entitled to Hurst “conclude beyond a reasonable doubt that a rational jury relief for his death sentence imposed for the murder of would have unanimously found that there were sufficient Stringfield, which the penalty phase jury recommended by aggravators to outweigh the mitigating factors.” Davis a vote of eight to four. However, Bevel is not entitled to v. State, 207 So. 3d 142, 174 (Fla. 2016). In this case, Hurst relief for his death sentence imposed for the murder where no aggravating factors have been struck, “we can of Sims, which the penalty phase jury unanimously conclude that the jury unanimously made the requisite recommended. After addressing Bevel's Hurst claim, we factual findings” before it unanimously recommended then address Bevel's postconviction claim of ineffective that Bevel be sentenced to death for the murder of Sims, assistance of penalty phase counsel and conclude that and we therefore deny relief under Hurst for that death Bevel has demonstrated both deficient performance and sentence. Id. at 175. We next consider whether Bevel's 5 prejudice under Strickland . Thus, we conclude that penalty phase counsel was ineffective, therefore entitling Bevel is entitled to a new penalty phase based on his Bevel to a new penalty phase. ineffective assistance of counsel claim. We also address Bevel's habeas petition, which we conclude lacks a basis for relief. B. Ineffective Assistance of Penalty Phase Counsel 5 Strickland v. Washington, 466 U.S. 668 (1984). Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective assistance of A. Hurst v. Florida and Hurst counsel claims to be successful, two requirements must be In Hurst , we explained that “the jury in a capital satisfied: case must unanimously and expressly find all the First, the claimant must identify aggravating factors that were proven beyond a reasonable particular acts or omissions of the doubt, unanimously find that the aggravating factors lawyer that are shown to be outside are sufficient to impose death, unanimously find the broad range of reasonably that the aggravating factors outweigh the mitigating competent performance under circumstances, and unanimously recommend a sentence prevailing professional standards. of death.” 202 So. 3d at 57–58. In Mosley v. State, 209 Second, the clear, substantial So. 3d 1248 (Fla. 2016), this Court held that Hurst applies deficiency shown must further be retroactively to death sentences that became final after the demonstrated to have so affected United States Supreme Court decided Ring v. Arizona, the fairness and reliability of the 536 U.S. 584 (2002). Because Bevel's conviction became proceeding that confidence in the 6 final after Ring, Hurst applies retroactively to his case. outcome is undermined. See Mosley, 209 So. 3d at 1283. In light of the jury's nonunanimous recommendation of death for the murder Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) of Stringfield, we cannot conclude beyond a reasonable (quoting Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. doubt that the jury made the requisite findings required by 1986)). Hurst. Nor can we speculate why four jurors determined that death was inappropriate for the murder of Stringfield. To establish the deficiency prong under Strickland, the Thus, we conclude that the Hurst error in this case as to the defendant must prove that counsel's performance was Stringfield murder was not harmless beyond a reasonable unreasonable under “prevailing professional norms.” doubt. Accordingly, we vacate Bevel's sentence of death Morris v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting imposed for the murder of Stringfield. Strickland, 466 U.S. at 688). “A fair assessment of attorney performance requires that every effort be made to
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eliminate the distorting effects of hindsight, to reconstruct 900, 906 (Fla. 2015) (quoting Stephens v. State, 748 So. 2d the circumstances of counsel's challenged conduct, and 1028, 1033 (Fla. 1999)). to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Deficient Performance *7 As to the prejudice prong of Strickland, this Court has explained: Bevel argues that his penalty phase counsel was deficient in failing to conduct a constitutionally adequate With respect to those claims alleging ineffective mitigation investigation. In support, he points to assistance of counsel specifically during the penalty the following evidence and records, discovered during phase, penalty-phase prejudice under the Strickland postconviction proceedings, that he asserts a reasonable standard is measured by “whether the error of trial mitigation investigation would have uncovered: evidence counsel undermines this Court's confidence in the that he suffers from brain damage, frontal lobe sentence of death when viewed in the context of impairment, and diminished mental capacity; evidence the penalty phase evidence and the mitigators and of childhood sexual abuse; evidence of neglect and a aggravators found by the trial court.” Hurst [v. State, poor living environment while growing up; evidence of 18 So. 3d 975, 1013 (Fla. 2009)]. Under this standard, academic and behavioral struggles in school; evidence of a defendant is not required “to show ‘that counsel's unresolved grief issues following the death of his mother; deficient conduct more likely than not altered the evidence that Bevel's life dramatically improved while outcome’ of his penalty proceeding, but rather that staying with foster parents and then again deteriorated he establish ‘a probability sufficient to undermine upon leaving foster care; evidence of physical and confidence in [that] outcome.’ ” Porter v. McCollum, emotional abuse suffered by Bevel at the hands of victim 558 U.S. 30, 44 (2009) (quoting Strickland, 466 U.S. Stringfield; evidence of Bevel's history of serious alcohol at 693–94). “To assess that probability, [the Court] and drug use; and evidence that Bevel's mental disorders consider[s] ‘the totality of the available mitigation affected his mental state at the time of the crime. evidence ...’ and ‘reweigh[s] it against the evidence in aggravation.’ ” Id. at 41 (quoting Williams v. Taylor, *8 During the postconviction evidentiary hearing, 529 U.S. 362, 397–98 (2000)). penalty phase counsel testified that he had worked on only Wheeler v. State, 124 So. 3d 865, 873 (Fla. 2013) one prior capital case before representing Bevel during (alterations in original) (parallel citations omitted). In the penalty phase. He conceded that it was “probably assessing whether counsel's deficient performance in correct” that he did not begin his mitigation investigation investigating and presenting mitigation evidence was until August 10, 2005, which was twelve days before the prejudicial, we must ask “whether, had the jury and trial trial began. Counsel's billing records reflected that he judge considered the total mitigating evidence presented spent only 9.5 hours prior to the start of guilt phase jury both at trial and during postconviction proceedings and selection conducting a mitigation investigation, including compared it with the aggravating circumstances,” our speaking with Bevel twice; requesting school records; and confidence in the jury's recommendation is undermined. speaking with Bevel's grandmother, brother, sister, and Butler v. State, 100 So. 3d 638, 665 (Fla. 2012). aunt. He then spent “probably” another 6 to 7 hours investigating mitigation prior to the start of the penalty “[T]his Court's standard of review is two-pronged: (1) this phase, for a total of 15.5 to 16.5 hours on the mitigation Court must defer to the [trial] court's findings on factual investigation in Bevel's case. issues so long as competent, substantial evidence supports them; but (2) must review de novo ultimate conclusions on From a review of the evidentiary hearing transcript and the deficiency and prejudice prongs.” Everett v. State, 54 the record, it is clear that counsel failed to obtain, or was So. 3d 464, 472 (Fla. 2010) (quoting Reed v. State, 875 So. unaware of, significant records and mitigation evidence 2d 415, 421–22 (Fla. 2004)). “Thus, under Strickland, both that could have assisted in the defense's penalty phase the performance and prejudice prongs are mixed questions presentation. Indeed, penalty phase counsel conceded, of law and fact, with deference to be given only to the based on the records postconviction counsel established to lower court's factual findings.” Eaglin v. State, 176 So. 3d
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have been in existence, that he could have done more to note that the mental health experts who testified at investigate mitigation. the evidentiary hearing were provided with additional background information not previously discovered or These records included, among others, reports from provided to Dr. Krop—that is, the very records and Bevel's time in foster care, a report that Bevel was information penalty phase counsel failed to discover. In the victim of childhood sexual abuse, and records fact, Dr. Ouaou testified that some of these records were from an attorney who represented Bevel during juvenile “key” in forming his opinion. proceedings. Obtaining these records, and contacting some of the witnesses who testified in postconviction *9 The breadth of the undiscovered mitigation proceedings that were not contacted prior to the trial, evidence, combined with this Court's statement on would have enabled penalty phase counsel to emphasize direct appeal that the mitigation presented at trial was the extent of Bevel's poor living situation with his “minimal,” Bevel , 983 So. 2d at 525, strongly supports grandmother, including the dangerous neighborhood a conclusion that penalty phase counsel conducted plagued by high crime and drugs; the extent of an unreasonable mitigation investigation. See, e.g., Bevel's academic and childhood behavioral problems Coleman v. State, 64 So. 3d 1210, 1221 (Fla. 2011) and how he never received the help he needed; and (“A reasonable investigation in Coleman's case would how Bevel was not irredeemable but rather a product have revealed substantial mitigation. Had [trial counsel] of his difficult upbringing, based on his demonstrated performed a reasonable investigation and uncovered behavioral improvement while living with his foster the abovementioned mitigation, he would have been parents. compelled to ‘explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of There is little doubt that the quality and depth of conviction.’ ” (quoting Rompilla v. Beard, 545 U.S. 374, the postconviction evidence painted a more complete 387 (2005))); see also Wiggins v. Smith, 539 U.S. 510, 524 and troubling picture of Bevel's background than was (2003) ( “[I]nvestigations into mitigating evidence ‘should presented to the jury and the trial court—something comprise efforts to discover all reasonably available postconviction counsel was able to uncover primarily due mitigating evidence ....’ ” (quoting ABA Guidelines to the extensive investigation undertaken by mitigation for the Appointment and Performance of Counsel in specialist Sara Flynn. Death Penalty Cases 11.4.1 C (1989)). This conclusion is bolstered by the very little amount of total time counsel The mental health experts who testified during spent preparing for the penalty phase and by penalty postconviction proceedings also offered qualitatively phase counsel's own admission that he did not start the more favorable opinions—a fact the State has conceded. mitigation investigation until just twelve days before trial. For instance, evidentiary hearing testimony from Dr. Ouaou indicated that Bevel suffers from frontal lobe Based on the failure to discover available records and impairment, a history of traumatic brain injury, and social history that would have assisted both in the penalty diminished mental capacity. Testimony from Drs. Gold phase presentation and in the mental health evaluation and Dudley indicated that Bevel suffers from depression, undertaken by Dr. Krop, this is not a case in which penalty Post–Traumatic Stress Disorder, and anxiety. This phase counsel cannot be deemed deficient because he or testimony can be contrasted with Dr. Krop's penalty phase she made a reasonable strategic decision to forego the testimony, as summarized by this Court on direct appeal, presentation of certain evidence. See Simmons v. State, that Bevel “had no organic brain damage or other serious 105 So. 3d 475, 508 (Fla. 2012) (“The United States mental infirmity, and was not suffering from any mental Supreme Court has rejected the suggestion that a decision illness at the time of the crime.” Bevel, 983 So. 2d at 513. to focus on one potentially reasonable trial strategy is justified by a ‘tactical decision’ when counsel does While a more favorable expert opinion in postconviction not conduct a thorough investigation of the defendant's generally does not establish deficient performance, background.”). In fact, penalty phase counsel actually because trial counsel is entitled to rely on the evaluations testified that much of the undiscovered mitigation would of qualified mental health experts, see Jennings v. State, have been useful and consistent with his trial strategy. 123 So. 3d 1101, 1116 (Fla. 2013), it is critical to
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For these reasons, we conclude that the totality of the would have been different had the jury heard the evidence introduced during postconviction proceedings unpresented mitigation evidence. For example, where demonstrates that penalty phase counsel conducted an the jury's vote recommending death was dependent on unreasonable mitigation investigation. See State v. Lewis, one juror's vote, our confidence has been undermined 838 So. 2d 1102, 1113 (Fla. 2002) (“[T]he obligation when counsel was deficient in presenting mitigation to to investigate and prepare for the penalty portion of a the jury, because “[t]he swaying of the vote of only one capital case cannot be overstated—this is an integral part juror would have made a critical difference.” Phillips v. of a capital case.”). Accordingly, Bevel's penalty phase State, 608 So. 2d 778, 783 (Fla. 1992). As this Court counsel was deficient. We next consider whether Bevel has emphasized in Ferrell v. State, 29 So. 3d 959 (Fla. 2010), established the prejudice prong of Strickland. “counsel's deficiency in failing to investigate and present ... mitigation evidence deprived [the defendant] of a reliable penalty proceeding such that this Court's confidence in the outcome is undermined. This is particularly the case Prejudice in light of the close jury vote of seven to five.” Id. at 986 The postconviction court concluded that Bevel had (citation omitted). failed to meet the prejudice prong of Strickland because of the strong aggravating factors and overwhelming *10 Thus, this Court unquestionably focuses on the evidence in support of Bevel's death sentences. However, effect the unpresented mitigation could have had on our analysis of the prejudice prong is not merely an the jury's ultimate recommendation. For instance, in evaluation of whether strong aggravation was present, Hurst v. State, 18 So. 3d 975 (Fla. 2009), in addressing but also considers whether the totality of the available whether there was deficient performance and prejudice, mitigation evidence, when reweighed against the evidence we reasoned that “[b]ecause this mitigation was not made in aggravation, establishes a probability sufficient to available for the jury or the trial judge to consider undermine confidence in the death sentence. See Wheeler, before the death sentence was imposed, our confidence 124 So. 3d at 873. As we explained in Simmons, in in the imposition of the death penalty in this case is evaluating the prejudice prong of a defendant's ineffective undermined.” Id. at 1015. After our more recent decision assistance of counsel claim, “this Court has rejected in Hurst , 202 So. 3d 40, where we determined that the notion that the existence of” an especially weighty a reliable penalty phase proceeding requires that “the aggravator “will defeat the need for a new penalty phase penalty phase jury must be unanimous in making the when substantial mitigation existed that was not presented critical findings and recommendation that are necessary to the jury.” 105 So. 3d at 509; see also Blackwood v. State, before a sentence of death may be considered by the judge 946 So. 2d 960, 976 (Fla. 2006) (affirming postconviction or imposed,” 202 So. 3d at 59, we must consider whether court's determination that “in light of the available mental the unpresented mitigation evidence would have swayed health mitigation evidence, trial counsel's failure to ... one juror to make “a critical difference.” Phillips, 608 So. present such evidence to the jury constituted ineffective 2d at 783. assistance of counsel during the penalty phase”). In this case, Bevel offered a more compelling picture of a Therefore, this Court's inquiry in evaluating the prejudice “poor childhood” during the postconviction proceedings. prong of Strickland focuses, in part, on the effect that As we have detailed above, there was unpresented the additional mitigation would have had on the jury's evidence of substantial mitigation related to Bevel's recommendation of death had the mitigation originally childhood sexual abuse, mental disorders that affected been presented to the jury. Because we have already Bevel's mental state at the time of the crime, and brain concluded that Bevel is entitled to Hurst relief for his damage Bevel sustained. Therefore, after “reweighing the death sentence for the murder of Stringfield, our inquiry evidence in aggravation against the mitigation evidence focuses on the effect that the additional mitigation would presented during the postconviction evidentiary hearing have had on the jury's unanimous recommendation of and the penalty phase, our confidence in the outcome of death for the murder of Sims. In determining whether the penalty phase trial is undermined,” Walker v. State, this Court's confidence in the outcome is undermined, we 88 So. 3d 128, 141 (Fla. 2012), because “[t]he swaying have considered whether the jury's death recommendation of the vote of only one juror would have made a critical
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difference.” Phillips, 608 So. 2d at 783. Accordingly, Bevel 259 (Fla. 2012) (quoting Nixon v. State, 572 So. 2d has met the prejudice prong under Strickland and we are 1336, 1340 (Fla. 1990)). In this case, with the exception compelled to vacate his death sentence for the murder of of one particular reference during the penalty phase Sims and remand for a new penalty phase. to the murders as “brutal and savage,” trial counsel did not offer a contemporaneous objection to any of the challenged comments. Thus, in order to prevail on a claim of error on direct appeal, Bevel would have C. Habeas Petition had to demonstrate fundamental error—that is, that Bevel's habeas petition raises a claim of ineffective the unobjected-to comments “reache [d] down into the assistance of appellate counsel, which hinges on validity of the trial itself to the extent that a verdict the argument that the State committed prosecutorial of guilty ... could not have been obtained without the misconduct during guilt phase and penalty phase closing assistance of the alleged error.” Scott v. State, 66 So. 3d statements. Claims of ineffective assistance of appellate 923, 929 (Fla. 2011) (quoting Poole v. State, 997 So. 2d counsel are appropriately presented in a petition for a 382, 390 (Fla. 2008)). writ of habeas corpus. Chavez v. State, 12 So. 3d 199, 213 (Fla. 2009) (citing Freeman v. State, 761 So. 2d 1055, *11 Bevel points to three allegedly improper categories 1069 (Fla. 2000)). To grant habeas relief on the basis of prosecutorial argument. First, he contends that the of ineffectiveness of appellate counsel, this Court must prosecutor made impermissible references to his bad resolve the following two issues: character during the penalty phase, specifically pointing to comments in which the prosecutor referenced Bevel's [W]hether the alleged omissions are “true character.” The full context of these prosecutorial of such magnitude as to constitute arguments, which Bevel nowhere set forth in his petition, a serious error or substantial was as follows: deficiency falling measurably outside the range of professionally And then you also look at the defendant's character and acceptable performance and, you've got a little bit of that yesterday, didn't you? I second, whether the deficiency mean, the last witness you heard from, Dr. Krop, kind in performance compromised the of gave you a little sample of what the defendant's true appellate process to such a degree character is. Talked about him as a child, how he started as to undermine confidence in the his life of crime. You might recall the testimony was correctness of the result. about I think he was ten, 11, 12, somewhere in that range wherein he resorted [to] violence on a mother that Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting was trying to come to the aid of the son that he got into Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)). a fight with. Somebody said something about slapping Under this standard, “[t]he defendant has the burden of the boy and he did, and then the boy tried to defend alleging a specific, serious omission or overt act upon himself so what did he do? [Bevel] got a gun. which the claim of ineffective assistance of counsel can be based.” Anderson v. State, 18 So. 3d 501, 520 (Fla. .... 2009) (quoting Freeman, 761 So. 2d at 1069). Importantly, And then he came up with Dr. Krop, I'm kind of “[i]f a legal issue ‘would in all probability have been jumping over there but he talked about with Dr. Krop, found to be without merit’ had counsel raised the issue okay, minimizing this, you know, the first one was on direct appeal, the failure of appellate counsel to raise because Mr. Stringfield, I thought, was going to go for the meritless issue will not render appellate counsel's a gun, et cetera. Then the second one, well, it was just performance ineffective.” Walls v. State, 926 So. 2d 1156, an accident, I didn't really mean to shoot Feletta Smith, 1175–76 (Fla. 2006) (quoting Rutherford v. Moore, 774 it just happened. And the third one, what about Phillip So. 2d 637, 643 (Fla. 2000)). Sims, the 13 year old boy? I don't want to talk about that. Of course, makes perfect sense, he eliminated him. “Ordinarily, to preserve a claim based on improper But again he denied it and said two masked men. comment, counsel has the obligation to object and request a mistrial.” Bright v. State, 90 So. 3d 249,
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was error in the first place, let alone fundamental error. Then in terms of disagreements with the victim, he Indeed, as the full context of the comments demonstrates, thought the victim was going to kill him. Then he said he the allegedly improper “character” references were in fact heard a gun magazine. We're talking about the murder comments directed specifically at evidence presented to of Garrick Stringfield. the jury regarding proposed mitigation. Several of the comments explicitly referenced penalty phase testimony So his story then is to the police well, okay, I did do from Dr. Krop, who testified regarding Bevel's antisocial it but you know what, there have been some threats in personality and childhood behavioral issues. As fair the past, and it was something outside, we had some comments based on the evidence, these comments were words, and you know, they make this big deal about not improper. See Valentine v. State, 98 So. 3d 44, 58 (Fla. well, he had a 45. Yeah, he had it and you've got the 2012). photographs of it. It's on the other side of the table, I mean, he caught this guy red-handed in terms of Second, Bevel contends that the prosecutor erroneously surprising him, didn't give Mr. Stringfield a chance. inflamed the passions of the jury by referring to the Doesn't that show his true character? murders as “brutal and savage.” The State acknowledges .... that this was a poor choice of words and could be seen as improper inflammatory language. However, the And Dr. Krop testified as an expert in terms of his comments were isolated—occurring only once during the experience, his studies regarding the death penalty, guilt phase (unobjected-to) and once during the penalty people on death row, et cetera. I believe he testified what phase (objected-to). Even if the prosecutor's one reference 42 percent, maybe 50 percent of the people there have each during the guilt and penalty phases to the murders as a low IQ. And what's the key points? This doctor who “brutal and savage” was improper, we conclude that these was there to help him, what was the defendant's attitude isolated references would not have inflamed the passions throughout? Doesn't that show his true character? of the jury to such an extent as to influence its verdict or Because that's what you need to focus on, his true sentencing recommendation. character. Finally, Bevel asserts that the State committed improper Now, Dr. Krop did talk about that based on the history “Golden Rule” violations, asking the jury to place itself in terms of talking to the family and based on talking to in the shoes of the attempted murder victim through the the defendant, his mother died and that's tragic. She had following commentary: an accident. I think there was some he said defendant felt, I forget what, you rely on what you remember She [victim Feletta Smith] was shot numerous times, Dr. Krop saying, but—and I think I asked Dr. Krop, terrified, I think she described it as a burning sensation. does that mean how many people have parents that are She thought she was going to die. And she still has a unfortunately killed, forget about violent crime, just die, continuing fear in terms of at the hospital and even how many of those people go on to become murderers? when the police got there because [the] defense made Obviously as the impression you would be left with is, a big deal, you had all these police officers with guns oh, that must explain why he did what he did. Well, and they were there to protect you, she was still in fear most people that have access to losing a loved one, a of what the defendant had done. Forever traumatized, parent, don't go out and kill people like this defendant how much weight should you give to this as part of this did. So it's not like a license that he's got the ability to aggravator, how her life had forever been changed. do this. It's a mitigator you should consider the fact that his mother died. But then how much weight do you give And then again he gave different versions as to what to that? happened, talked about shot Stringfield, the rifle kept shooting, it was kind of an accident. He even talked *12 Bevel recognizes that none of these alleged errors about with Dr. Krop about that, well, that was an were preserved for appellate review by contemporaneous accidental shooting, I didn't really mean to shoot objection, but nevertheless argues that the improper her. You didn't have any problem saying, pardon my comments amounted to fundamental error. However, language, shut up bitch, and keep shooting but just an Bevel cannot demonstrate that any of the comments accident, the trigger just kept pulling.
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court's order denying relief and to remand for a new Now, I'm finished with the aggravator in terms of prior penalty phase. I disagree with the majority for three violence, in terms of each murder being used against it. reasons. First, I would conclude that the requirements And I submit to you on behalf of the State of Florida of Hurst v. Florida, 136 S. Ct. 616 (2016), were this aggravator should be given great weight and would satisfied because the jury unanimously found the existence justify the imposition of the death penalty. of an aggravating circumstance as evidenced by its contemporaneous, unanimous verdicts for the murder of Bevel's argument of error is without merit. The the second victim and the attempted murder of the third prosecution never invited the jury to place itself in the victim. Second, I adhere to my view that Hurst v. Florida victim's place or to imagine her pain. Rather, the State should not be given retroactive application. Lastly, I recounted the facts, as reflected by the victim's testimony, would conclude that Bevel is not entitled to relief because in the context of arguing why the prior violent felony he failed to establish at least one of the Strickland prongs aggravating circumstance should be given great weight. in each of his ineffective assistance of counsel claims. The postconviction court's denial of relief should therefore be In sum, most of the challenged comments were not affirmed. improper and, to the extent the “brutal and savage” references were improper, there was no reversible error. Appellate counsel cannot be deemed deficient for failing to raise a meritless argument. See Walls, 926 So. 2d at 1175– I. 76. Appellate counsel raised numerous issues on direct I adhere to my view that Hurst v. Florida—like Ring appeal and was not required “to present every conceivable v. Arizona, 536 U.S. 584 (2002)—only requires that the claim.” Davis v. State, 928 So. 2d 1089, 1126 (Fla. 2005). jury find the existence of an aggravating circumstance that renders a defendant eligible for a death sentence. See Hurst v. State, 202 So. 3d 40, 77 (Fla. 2016) III. CONCLUSION (Canady, J., dissenting) (noting “the Hurst v. Florida Court's repeated identification of Florida's failure to Based on the foregoing, we deny Bevel's petition for require a jury finding of an aggravator as the flaw that a writ of habeas corpus but reverse the postconviction renders Florida's death penalty law unconstitutional”), court's denial of Bevel's motion for postconviction relief. cert. denied, No. 16–998, 2017 WL 635999 (U.S. May Accordingly, we vacate Bevel's death sentences and 22, 2017); see also Hurst v. Florida, 136 S. Ct. at remand for a new penalty phase proceeding. 624 (“Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating *13 It is so ordered. circumstance, is therefore unconstitutional.”). Bevel's jury did make a unanimous finding regarding the existence of an aggravating circumstance—that Bevel was previously LABARGA, C.J., and PARIENTE, and QUINCE, JJ., convicted of another capital felony or of a felony concur. involving the use or threat of violence to the person. The jury unanimously determined that this aggravating LEWIS, J., concurs in result. circumstance was proven beyond a reasonable doubt as reflected in its separate verdicts finding Bevel guilty of CANADY, J., concurs in part and dissents in part with an the contemporaneous first-degree murder of the second opinion, in which POLSTON, J., concurs. victim and of the contemporaneous attempted first-degree murder of the third victim. Thus, I would conclude that LAWSON, J., concurs in part and dissents in part with an no Hurst v. Florida error occurred. opinion.
CANADY, J., concurring in part and dissenting in part. II. I agree that Bevel's habeas petition should be denied, but I disagree with the decision to reverse the postconviction
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Even if Hurst v. Florida error were present in this case, I to have been in existence, that he could have done more would deny Bevel relief. As I have previously explained, to investigate mitigation. Hurst v. Florida should not be given retroactive effect. See Mosley v. State, 209 So. 3d 1248, 1285–91 (Fla. 2016) These records included, among others, reports from (Canady, J., concurring in part and dissenting in part). Bevel's time in foster care, a report that Bevel was the victim of childhood sexual abuse, and records from an attorney who represented Bevel during juvenile proceedings. Obtaining these records, and contacting III. some of the witnesses who testified in postconviction proceedings that were not contacted prior to the trial, I disagree with the majority's analysis of Bevel's ineffective would have enabled penalty phase counsel to emphasize assistance of counsel claims. The majority summarizes the extent of Bevel's poor living situation with his Bevel's claims as follows: “Bevel argues that his penalty grandmother, including the dangerous neighborhood phase counsel was deficient in failing to conduct plagued by high crime and drugs; the extent of Bevel's a constitutionally adequate mitigation investigation.” academic and childhood behavioral problems and how Majority op. at 17. But Bevel actually argues that he never received the help he needed; and how Bevel was *14 counsel provided ineffective assistance in the not irredeemable but rather a product of his difficult penalty phase of trial by conducting his mitigation upbringing, based on his demonstrated behavioral investigation at the “eleventh hour” and failing to improvement while living with his foster parents. discover Mr. Bevel's organic brain damage, frontal .... lobe impairment, “extreme emotional disturbance,” “capacity to conform his conduct to the requirements The mental health experts who testified during of the law,” sexual abuse, PTSD, depression, anxiety, postconviction proceedings also offered qualitatively and other significant mental health and social more favorable opinions—a fact the State has and environmental mitigation and subsequently hire conceded. For instance, evidentiary hearing testimony experts, and present these mitigators to the jury, in from Dr. Ouaou indicated that Bevel suffers from violation of Bevel's Fifth, Sixth, Eighth, and Fourteenth frontal lobe impairment, a history of traumatic brain Amendment rights to effective representation and a fair injury, and diminished mental capacity. Testimony trial. from Drs. Gold and Dudley indicated that Bevel suffers from depression, Post–Traumatic Stress Disorder, and Appellant's Initial Brief at 56, Bevel v. State, No. 14–770 anxiety. This testimony can be contrasted with Dr. (Fla. Oct. 27, 2014). In my view, Bevel's claims cannot Krop's penalty phase testimony, as summarized by this be lumped into a single ineffective assistance of counsel Court on direct appeal, that Bevel “had no organic claim; instead, the allegations should be divided into brain damage or other serious mental infirmity, and was separate subclaims and analyzed individually. This is so not suffering from any mental illness at the time of the because counsel may have rendered deficient performance crime.” with respect to some of the allegations but not others, and Bevel may have been prejudiced by some of counsel's While a more favorable expert opinion in actions but not others. postconviction [proceedings] generally does not establish deficient performance[ ] because trial counsel The majority justifies its conclusion that trial counsel is entitled to rely on the evaluations of qualified mental rendered deficient performance in the penalty phase as health experts, it is critical to note that the mental health follows: experts who testified at the evidentiary hearing were provided with additional background information not From a review of the evidentiary hearing transcript and previously discovered or provided to Dr. Krop—that is, the record, it is clear that counsel failed to obtain, or was the very records and information penalty phase counsel unaware of, significant records and mitigation evidence failed to discover. In fact, Dr. Ouaou testified that some that could have assisted in the defense's penalty phase of these records were “key” in forming his opinion. presentation. Indeed, penalty phase counsel conceded, based on the records postconviction counsel established *15 Majority op. at 18–20 (citations omitted).
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based on an interview of Bevel, conducted on March The only records identified by the majority that trial 25, 1994. The referral source was HRS, but the report counsel “failed to obtain, or was unaware of,” are “reports indicates that there was no HRS involvement. Ms. Wilson from Bevel's time in foster care, a report that Bevel was testified at the evidentiary hearing that the evaluation the victim of childhood sexual abuse, and records from an was done by a school guidance counselor. Trial counsel attorney [ (Laurel French Wilson) ] who represented Bevel testified that he did not recall having reviewed this during juvenile [delinquency] proceedings.” Majority op. document. at 18. The evaluation interview form indicates that at the time of The records referred to by the majority as “foster care” the interview, Bevel's peer relations, family relations, and records are not records from a time when Bevel was communication skills were good and that his psychosexual in foster care through the Department of Children functioning was appropriate. He denied previous or and Families Services or its predecessor agency, the current abuse of himself, his mother, father, and siblings. Department of Health and Rehabilitative Services (HRS); He was in “regular class” and had not repeated any grade they are actually from a time when Bevel was adjudicated levels. His mother was killed in a car accident in May delinquent and committed to a residential program in the 1993, and at the time of the interview, Bevel was living Department of Juvenile Justice (DJJ). According to the with his grandmother and having sporadic contact with record, after a judge committed Bevel to DJJ in 1994, his father. He was dressed appropriately, his activity level he “was admitted to the White Foundation Individual in the interview was appropriate, he was cooperative, and Family Treatment Home Program.” So instead of being he was oriented in all three spheres. His mood, affect, sent to a typical DJJ program in a camp-like or prison- speech, sleep, and eating habits were normal. His thought like setting, he was sent to live with a “foster” family, the processes were rational in content and form. His thought Sardinas, on August 8, 1994. organization was logical. His insight was realistic. His judgment was limited. His emotional tone seemed normal. These records 7 indicate that while Bevel initially had a He accepted responsibility for his behaviors. He was on tough time when living with the Sardinas, his behavior probation for an assault he denied committing. He was and grades eventually improved and he completed the sent to a different school due to numerous referrals for program satisfactorily. The records show that Bevel was disrupting class. The evaluation interview form listed with the Sardinas for six months but only reached the Oppositional Defiant Disorder (ODD) as an Axis I DSM upper level of improvement during the final month. diagnosis and a medical ICD–9–CM diagnosis. Bevel now argues that counsel rendered ineffective assistance in failing to learn he was diagnosed with ODD and present 7 The parties have referred to these records that fact as mitigation at the penalty phase. alternatively as foster care records, records from the Sardinas, and records from the White Foundation. *16 During the penalty phase, Dr. Krop—with express Postconviction counsel provided these records to agreement from Bevel after consultation with his postconviction expert Dr. Gold, who relied on them to attorneys—testified about Bevel's ASPD diagnosis. Dr. conclude that Bevel does not have Antisocial Personality Krop also testified that Bevel probably had Attention Disorder (ASPD)—which Dr. Krop testified at the Deficit Hyperactivity Disorder (ADHD), that he had been penalty phase Bevel does have—because ASPD is an recommended for treatment for Post–Traumatic Stress enduring pattern of behavior, but when Bevel was with the Disorder (PTSD), that his intellectual ability was in the Sardinas, his grades and behavior improved. mildly mentally retarded range, that he had cognitive deficits, that he had behavioral problems in school, that Laurel French Wilson, an attorney who represented Bevel he was depressed at times, that he did not have good on one occasion when he was twelve years old and charged coping skills, that he turned to drugs and crime at a with possession of cocaine with intent to sell, grand young age, that he was living in the streets at a young theft, criminal mischief, and a violation of community age, that his mother's drinking during her pregnancy with control, provided her file to postconviction counsel. In him affected his intellect, that his judgment was almost pertinent part, the file contains a “Child Guidance Center totally compromised at various times in his life, and that Psychosocial Evaluation Interview” form, which was
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he progressed fairly well when he was placed in structured The records from when Bevel was with the Sardinas were environments, including DJJ commitment programs. indeed progress reports from one of the programs to Dr. Krop also testified at the penalty phase that he which Bevel was committed as a juvenile. Thus, Dr. Krop's reviewed records regarding Bevel's involvement with DJJ testimony at the penalty phase established that he had (which started when Bevel was rather young), including these records at the time of the penalty phase; he either predisposition reports and psychological evaluations. obtained them on his own or was provided them by trial counsel, who simply did not remember having done so by With regard to Bevel's claim that counsel was ineffective the time of the evidentiary hearing. Further, contrary to for failing to obtain “reports from Bevel's time in foster Bevel's assertion and Dr. Gold's testimony, these records care,” Bevel failed to establish that counsel rendered do not prove that Bevel does not have ASPD. These deficient performance. There was no evidence presented records were compiled when Bevel was thirteen years old, at the evidentiary hearing that trial counsel failed to but, as the experts testified, one of the requirements for review these records in preparation for the penalty phase. an ASPD diagnosis is a pervasive pattern of disregard When asked whether he reviewed the records from Bevel's for and violation of the rights of others since the age time with the Sardinas, counsel responded, “I don't recall of fifteen. Even if we were to ignore the evidence which specifically. Again, I turned over the file to you. If it was establishes that Dr. Krop was provided with these records there, then I had them obviously.” Trial counsel did recall prior to the penalty phase and assume that trial counsel speaking to the Sardinas in the course of preparing for rendered deficient performance by failing to obtain and the penalty phase. Trial counsel specifically recalled that provide them to Dr. Krop, because Dr. Krop did testify Mr. Sardina told him that when Bevel was living with the at the penalty phase that Bevel does better in a structured Sardinas he was able to follow the rules, obey authority, environment and because the records would not have not commit any crimes and that he did better in school, precluded Dr. Krop from diagnosing Bevel with ASPD, was a good boy, and was doing well. Bevel has not established prejudice.
Bevel asserts that the point of the records was to *17 With regard to Bevel's claim that counsel was show that he does better in structured environments deficient for failing to obtain Ms. Wilson's file— and therefore does not have ASPD. But Dr. Krop was specifically, the March 25, 1994, “Child Guidance Center aware, and even testified at the penalty phase, that Psychosocial Evaluation Interview” form, which was the Bevel does better in structured environments, yet he still only relevant item in the file—Bevel has not established found that Bevel met the criteria for ASPD. Dr. Krop deficiency. It was not per se unreasonable under prevailing testified at the penalty phase that for Bevel, “structured professional norms for counsel to not obtain or attempt programs as a juvenile and the jail [as an adult] are to obtain all of the files from all of the defense attorneys actually healthier environments for him and he does not who handled each of Bevel's twenty-one referrals 8 to DJJ. exhibit the antisocial behavior [in those environments], Most of them almost certainly had been destroyed or he only exhibits the antisocial behavior when he's in the discarded. It was just by happenchance that Ms. Wilson community.” Dr. Krop also specifically discussed Bevel's retained her file for many years. time with the Sardinas at the penalty phase. The State asked Dr. Krop, “Didn't [Bevel] have a problem with 8 A referral to DJJ is made when a juvenile is charged disrupting his peers in class and wasn't he suspected for with a crime in Florida. It is similar to an arrest in the certain things [when he was with the Sardinas]?” Dr. Krop adult criminal justice system. responded, Moreover, there was no evidence presented to establish He would typically, yes, he would typically have that trial counsel did not review the March 25, 1994, problems when he would start in one of the programs evaluation interview form. Trial counsel testified at the and then he would tend to do better. evidentiary hearing only that he did “not specifically recall seeing that document.” And Dr. Krop was not If you looked at the progress reports in each of the asked whether he reviewed this document or whether individual programs that he was in it would pretty much having been aware that Bevel was diagnosed with ODD be a similar pattern. at the age of twelve would have changed his opinions in any way. In any event, as previously explained, Bevel's
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ODD diagnosis at the age of twelve would not have whether he was “aware that there is a 1987 abuse registry precluded a subsequent diagnosis of ASPD. Thus, Bevel report that has Bevel listed as a victim of sexual abuse,” has not established that he was prejudiced by counsel's trial counsel stated, “I don't recall.” Because there is failure to obtain Ms. Wilson's file. Further, although Bevel evidence that Chipperfield either obtained the report or complains that trial counsel did not call an expert to testify was at least aware of its contents and no evidence that about his ODD diagnosis at the penalty phase, even one trial counsel did not have the report, we cannot draw of his own postconviction experts, Dr. Dudley, testified the conclusion that trial counsel was deficient simply for at the evidentiary hearing that he disagreed with the failing to discover this report. Nor can we conclude that diagnosis. The totality of the evidence regarding Bevel's trial counsel's performance was deficient for failing to ODD diagnosis is therefore that the diagnosis is disputed. discover the sexual abuse allegations by speaking with Any mitigation provided by such disputed evidence would Bevel's deceased mother's coworker friend. have been minimal at best. *18 Even assuming that trial counsel performed The report relating to Bevel being a victim of sexual abuse deficiently by failing to offer the evidence of sexual abuse as a child indicates that in 1987, a six-year-old male victim as mitigation, Bevel is not entitled to relief because he has and a three-year-old female victim were sexually battered not established that he was prejudiced by counsel's failure. by a juvenile relative. The male was apparently Bevel, The fact that the jury did not hear that Bevel may have and the female was his sister. The report states that a been abused on one occasion by a juvenile cousin does not juvenile cousin performed oral sex on Bevel and tried to undermine confidence in the outcome in this case, a double get Bevel to reciprocate, but Bevel resisted. Other family —nearly a triple—homicide, in which one of the victims members in the house at the time denied that this incident Bevel executed was a child. Moreover, because Bevel could have happened because at the time it allegedly continues to deny this incident occurred, the presentation occurred, there were five children (including two children of the allegations in the report at a new penalty phase who were “older”) playing together and the adults were would likely be rebutted by testimony that Bevel and his nearby and checking on the children periodically. Despite family members deny that any abuse occurred and would these denials, there was physical evidence that the three- therefore have little, if any, mitigating value. year-old was digitally penetrated as she claimed, and the juvenile cousin was arrested. Whether he was charged with It appears that the majority has also found that trial or convicted of a crime against Bevel is unknown. counsel was ineffective because while the postconviction experts testified that Bevel suffers from frontal lobe A friend and coworker of Bevel's deceased mother testified impairment, a history of traumatic brain injury, at the evidentiary hearing that Bevel's mother told him diminished mental capacity, depression, PTSD, and that Bevel was sexually abused by a family member anxiety, Dr. Krop did not offer the same opinions at the when he was a young boy—apparently in reference to penalty phase. The majority notes that more favorable the incident described above. According to the coworker expert opinions in postconviction proceedings generally friend, Bevel's mother told him that she talked to Bevel do not establish deficient performance because trial about the abuse but did not get him any therapy. Bevel has counsel is entitled to rely on the evaluations of qualified repeatedly denied that the incident occurred, even during mental health experts, but it nonetheless concludes that the postconviction proceedings. There is no evidence that trial counsel was deficient for failing to provide Dr. Krop this abuse was anything other than an isolated incident. with records and “additional background information not previously discovered,” some of which were “ ‘key’ ” for The abuse report was noted in a chronology of Bevel's life one of the postconviction experts, Dr. Ouaou, in forming prepared by predecessor trial counsel, Alan Chipperfield, his opinion. Majority op. at 20. which included the allegation of abuse and stated that “the report of abuse was ‘closed without classification The majority does not indicate which records or with ongoing services provided by a non-HRS agency.’ background information it believes should have been, but ” Trial counsel testified at the evidentiary hearing that were not, provided to Dr. Krop. And there is no evidence he reviewed Chipperfield's chronology in preparation for in the record that any of the postconviction experts had the penalty phase. When asked at the evidentiary hearing any records or background information that Dr. Krop did
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not. The only arguable support for the majority's finding reach different and more favorable conclusions than the is that when postconviction expert Dr. Ouaou was asked experts consulted by trial counsel.” (citing e.g., Diaz v. at the evidentiary hearing, “[W]as Dr. Krop provided State, 132 So. 3d 93, 113 (Fla. 2013); Wyatt v. State, 78 all of the records, bench notes, school records that you So. 3d 512, 533 (Fla. 2011); Asay v. State, 769 So. 2d 974, have?” and Dr. Ouaou replied, “It's my impression that 986 (Fla. 2000))). I would therefore conclude that Bevel is he was not, and some of those were key, I believe, in not entitled to relief because he has not established that forming my opinion.” Dr. Ouaou gave no explanation for counsel's performance was deficient. his “impression” that Dr. Krop did not have all the same records that he was provided. *19 Regarding Bevel's childhood, the majority states:
We cannot rely on Dr. Ouaou's “impression” to conclude Obtaining these records, [ 9 ] and contacting some that trial counsel rendered deficient performance. of the witnesses who testified in postconviction Moreover, the majority appears to speculate that had proceedings that were not contacted prior to the trial, Dr. Krop been furnished with whichever records and would have enabled penalty phase counsel to emphasize background information the majority has found he was the extent of Bevel's poor living situation with his not provided, he would not have testified at the penalty grandmother, including the dangerous neighborhood phase that Bevel “had no organic brain damage or other plagued by high crime and drugs; the extent of Bevel's serious mental infirmity, and was not suffering from any academic and childhood behavioral problems and how mental illness at the time of the crime,” majority op. at 20 he never received the help he needed; and how Bevel was (quoting Bevel v. State, 983 So. 2d 505, 513 (Fla. 2008)), not irredeemable but rather a product of his difficult and instead would have offered opinions similar to those upbringing, based on his demonstrated behavioral of the postconviction experts. But even assuming that improvement while living with his foster parents. there were “key” records and background information with which Dr. Krop was not provided, there was no There is little doubt that the quality and depth of evidence presented at the evidentiary hearing that had Dr. the postconviction evidence painted a more complete Krop been provided with those records and background and troubling picture of Bevel's background than was information, he would have changed his opinions and presented to the jury and the trial court—something offered different testimony at the penalty phase. postconviction counsel was able to uncover primarily due to the extensive investigation undertaken by Further, even though Dr. Ouaou opined at the evidentiary mitigation specialist Sara Flynn, hearing that Bevel's capacity to conform his conduct to majority op. at 18–19, and “Bevel offered a more the requirements of the law was substantially impaired at compelling picture of a ‘poor childhood’ during the the time of the murders due to frontal lobe dysfunction postconviction proceedings,” majority op. at 24. But —which Dr. Ouaou said might have been caused by a without identifying any records that trial counsel did not traumatic brain injury that might have occurred when have or specifying the witnesses that trial counsel was Bevel was hit in the head as a child or as a result of Bevel's deficient for failing to interview, the mere fact that trial mother's drinking while she was pregnant with him—he counsel could have “emphasized the extent of” or “offered stated that his diagnosis was only “hypothetical” without a more compelling picture of” Bevel's “poor childhood” brain imaging, which was not done. Dr. Ouaou further does not necessarily render his performance deficient. stated that it is possible that Bevel's actions in committing the murders were due to ASPD rather than brain damage. 9 Thus, the evidence presented at the evidentiary hearing This reference refers generically to the “foster care” that Bevel suffers from brain damage is tenuous at best. records, the sexual abuse report, Ms. Wilson's juvenile file, and “other” records, which the majority has not Bevel's claim is nothing more than a claim that trial identified. Again, the record does not establish that counsel did not find the most favorable experts, which trial counsel did not have the documents that are is a claim that we have repeatedly rejected. See Brant identified. v. State, 197 So. 3d 1051, 1069 (Fla. 2016) (“[W]e have repeatedly stated that trial counsel is not deficient because Further, Bevel has not established that he was prejudiced the defendant is able to find postconviction experts that by counsel's presentation of the circumstances of his
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childhood. This Court summarized some of the evidence postconviction counsel was able to uncover evidence that presented by Bevel during the penalty phase as follows: painted a more complete and troubling picture of Bevel's background than was presented during Bevel's penalty In defense, Bevel presented the phase and sentencing proceedings. At the evidentiary testimony of several family members hearing, Flynn was asked, “[W]hat mitigating factors who described Bevel's poor would you have given defense counsel?” Flynn responded childhood, the physical abuse he that she would have provided trial counsel with: the suffered and witnessed at the hands different types of abuse Bevel endured and was exposed to; of his mother's boyfriend, the bond the genealogical factors; the substance abuse; the fact that he held with his mother and how Bevel was sexually exploited in the neighborhood where he her death affected him at the age grew up; that Bevel had been sexually abused as a young of twelve, his poor relationship with boy; that there was nobody to protect Bevel from males in his father who was a heroin addict, the neighborhood who were exploiting him; that Bevel had and his positive relationships with depression and PTSD, which were not treated other than his extended family. by his use of marijuana; that Bevel started using marijuana when he was twelve years old; and that Bevel received Bevel, 983 So. 2d at 512. Other evidence presented in head injuries. Most of the mitigating factors that Flynn mitigation at the penalty phase included the following: described are cumulative to the mitigation presented at Bevel's mother had alcoholism and drank heavily while the penalty phase. The only items in her list that were pregnant with Bevel; there was domestic violence between noncumulative are the sexual abuse, which was previously Bevel's mother and father, including an incident during discussed, “the genealogical factors,” and the fact that which Bevel's mother stabbed Bevel's father in the chest; Bevel was sexually exploited in the neighborhood. Bevel's father abandoned him, tried to commit suicide, and died of complications from AIDS; the odds were The only “genealogical factor” that Flynn mentioned at against Bevel his whole life; Bevel received no counseling the evidentiary hearing was the fact that Bevel's mother regarding his mother's tragic and untimely death; Bevel's was stabbed by her first husband, years before Bevel mother's boyfriend verbally and physically abused Bevel, was born, which caused her to start drinking. But other his mother, and his sister, and, more specifically, that witnesses testified that Bevel's mother began drinking he would get drunk and beat them, sometimes with a because her second husband, Bevel's father, was using belt, and one time he kicked Bevel so hard that Bevel heroin. And one witness even testified that Bevel's mother could not breathe and had to be taken to the hospital; started drinking just after high school. Even assuming Bevel's mother would go to the bar and leave Bevel with that being stabbed by her first husband triggered Bevel's the abusive boyfriend; Bevel had bad grades, behavior mother's drinking, that fact is not relevant or mitigating. problems, and probably ADHD; Bevel should have been Trial counsel presented evidence at the penalty phase in special education; Bevel had no positive male role that Bevel's mother drank while she was pregnant with model and turned to living in the streets, using and selling Bevel and during Bevel's childhood. That information was drugs, and a life of crime at a young age; Bevel was often mitigating but what might have triggered her drinking depressed because he was not taught adequate coping years before Bevel was born was not. Counsel was not skills; Bevel's judgment was almost totally compromised deficient for failing to discover or present evidence that at various times in his life; Bevel was suspicious of others Bevel's mother was stabbed, nor was Bevel prejudiced by because when he let down his guard one time, he was the absence of this “genealogical factor” at his penalty shot; Bevel progressed fairly well when in structured phase. environments; a criminal element was present everywhere in Bevel's environment and that was the modeling that he As to Flynn's assertion that Bevel was sexually exploited was exposed to; and Bevel never received counseling for in his neighborhood, Flynn testified that she learned that PTSD, which was always recommended. victim Stringfield would recruit young men to drive him around town because he was an alcoholic and did not want *20 The majority states that through the extensive to get charged with DUI, but he was also a drug dealer investigation undertaken by mitigation specialist Sara and needed transportation to conduct his dealings. Flynn Flynn in preparation for the postconviction proceedings,
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said Stringfield “did not pay [the young men] anything, In addition to denying Bevel habeas relief, for the reasons but gave them privileges, and used them for his own sexual explained above, I would also affirm the trial court's order pleasure. And he also did the same thing with females.” denying postconviction relief and conclude that Bevel is But Flynn did not provide any basis for this knowledge not entitled to Hurst relief. nor did she say that this happened to Bevel. When asked on cross-examination whether Bevel reported being sexually abused by Stringfield, Flynn said, “He did not POLSTON, J., concurs. deny it or admit it.” Counsel was not deficient for failing LAWSON, J., concurring in part and dissenting in part. to discover from an unnamed source that Stringfield I concur with the majority's decision to vacate Bevel's exploited boys and girls in the neighborhood. And because death sentence for the Stringfield murder and remand the bad character of a victim is not mitigating, there was for a new penalty phase based upon Hurst error that is no prejudice to Bevel. not harmless beyond a reasonable doubt. See Okafor v. State, No. SC15–2136, slip op. at 15 (Fla. June 8, 2017) Lastly, I would point out that although the majority states (Lawson, J., concurring specially). However, I would not that trial counsel's billing records reflect that he spent “a grant Bevel a new penalty phase for the Smith murder total of 15.5 to 16.5 hours on the mitigation investigation because, as explained in Justice Canady's concurring in in Bevel's case,” majority op. at 18, these numbers fail to part and dissenting in part opinion, Bevel's counsel was take into account any of the work done by predecessor not ineffective during the penalty phase. counsel. Alan Chipperfield's chronology shows that a much more thorough mitigation investigation was done than is accounted for by the majority. All Citations
--- So.3d ----, 2017 WL 2590702
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Filing # 60344605 E-Filed 08/14/2017 11:30:44 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, vs. CASE NO. 81-CF-010517 DEATH PENALTY CASE MILFORD WADE BYRD,
Defendant. ______/
NOTICE OF SUPPLEMENTAL AUTHORITY
COMES NOW, Plaintiff, State of Florida, by and through the
undersigned Assistant Attorney General and hereby gives notice
of the following supplemental authority, a copy of which is
attached:
Hitchcock v. State, ___ So. 3d ___, 2017 WL 3431500 (Fla. August 10, 2017) (holding that defendant was not entitled to retroactive application of Hurst v. Florida, 136 S. Ct. 616, which held that the Sixth Amendment required a jury, not a judge, to find each fact necessary to impose a death sentence, and Hurst v. State, 202 So. 3d 40, which interpreted Hurst v. Florida. “Although Hitchcock references various constitutional provisions as a basis for arguments that Hurst v. State should entitle him to a new sentencing proceeding, these are nothing more than arguments that Hurst v. State should be applied retroactively to his sentence, which became final prior to Ring1. As such, these arguments were rejected when we decided Asay2.”).
1 Ring v. Arizona, 536 U.S. 584 (2002) 2 Asay v. State, 210 So. 3d 1 (Fla. 2016)
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of August, 2017, I
electronically filed the foregoing with the Clerk of the Court
by using the Florida Courts E-Portal filing system which will
send a notice of electronic filing to the following: Martin J.
McClain, Esquire, McClain & McDermott, P.A., 141 N.E. 30th
Street, Wilton Manors, 33334, [email protected]; Jay
Pruner, Assistant State Attorney, Office of the State Attorney,
419 N. Pierce Street, Tampa, Florida 33602,
[email protected], [email protected] [and]
[email protected]; The Honorable Michelle D. Sisco,
Circuit Judge, Hillsborough County Courthouse, 401 North
Jefferson Street, Tampa, Florida 33602, [email protected].
Respectfully submitted,
PAMELA JO BONDI ATTORNEY GENERAL /s/ Marilyn Muir Beccue MARILYN MUIR BECCUE Assistant Attorney General Florida Bar No. 119581 Office of the Attorney General 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: 813-287-7910 Facsimile: 813-281-5501 [email protected] [and] [email protected] CO-COUNSEL FOR STATE OF FLORIDA
2
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Attorneys and Law Firms 2017 WL 3431500 Only the Westlaw citation is currently available. James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and David Dixon Hendry, James L. Driscoll, NOTICE: THIS OPINION HAS NOT BEEN Jr., and Gregory W. Brown, Assistant Capital Collateral RELEASED FOR PUBLICATION IN THE Regional Counsel, Middle Region, Temple Terrace, PERMANENT LAW REPORTS. UNTIL RELEASED, Florida, for Appellant IT IS SUBJECT TO REVISION OR WITHDRAWAL. Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Supreme Court of Florida. and Tayo Popoola, Assistant Attorney General, Daytona Beach, Florida, for Appellee James Ernest HITCHCOCK, Appellant, v. Opinion STATE of Florida, Appellee. PER CURIAM. No. SC17–445 | *1 James Ernest Hitchcock is a prisoner under sentence [August 10, 2017] of death whose sentence became final in 2000. See Hitchcock v. State, 755 So.2d 638 (Fla.), cert. denied, Synopsis 531 U.S. 1040, 121 S.Ct. 633, 148 L.Ed.2d 541 (2000). Background: Defendant, whose conviction for murder in Following the United States Supreme Court's decision the first degree had been affirmed, 413 So.2d 741, and in Hurst v. Florida, ––– U.S. ––––, 136 S.Ct. 616, 193 whose sentence of death had been made final by the L.Ed.2d 504 (2016), and this Court's decision on remand Supreme Court, 755 So.2d 638, filed a successive motion in Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, for postconviction relief, arguing that his death sentence ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), was unconstitutional. The Circuit Court, Orange County, Hitchcock filed a successive motion for postconviction Reginald K. Whitehead, J., summarily denied motion. relief pursuant to Florida Rule of Criminal Procedure Defendant appealed. 3.851, arguing that these decisions render his death sentence unconstitutional under both the United States and Florida Constitutions. 1 The circuit court summarily [Holding:] The Supreme Court held that defendant was not denied Hitchcock's motion, concluding that this Court's entitled to retroactive application of Hurst v. Florida, 136 decision in Asay v. State, 210 So.3d 1 (Fla. 2016), petition S.Ct. 616, which held that the Sixth Amendment required for cert. filed, No. 16–9033 (U.S. Apr. 29, 2017), precludes a jury, not a judge, to find each fact necessary to impose relief. Hitchcock appeals the circuit court's order, 2 and a death sentence, and Hurst v. State, 202 So.3d 40, which we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We interpreted Hurst v. Florida. affirm because we agree with the circuit court that our decision in Asay forecloses relief.
Affirmed. We have consistently applied our decision in Asay, denying the retroactive application of Hurst v. Florida as Lewis, J., concurred in the result and filed opinion. interpreted in Hurst v. State to defendants whose death sentences were final when the Supreme Court decided Canady, J., concurred in the result. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See, e.g., Zack v. State, ––– So.3d Pariente, J., dissented and filed opinion. ––––, 42 Fla. L. Weekly S656, 2017 WL 2590703 (Fla. June 15, 2017); Marshall v. Jones, ––– So.3d ––––, 42 Fla. An Appeal from the Circuit Court in and for Orange L. Weekly S533, 2017 WL 1739246 (Fla. May 4, 2017); County, Reginald K. Whitehead, Judge—Case No. Lambrix v. State, 217 So.3d 977 (Fla. 2017); Willacy v. 481976CF001942000AOX Jones, No. SC16-497, 2017 WL 1033679 (Fla. Mar. 17,
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2017); Bogle v. State, 213 So.3d 833 (Fla. 2017); Gaskin v. State, 218 So.3d 399 (Fla. 2017). Hitchcock is among Many courts struggle with the “staggeringly intricate body those defendants whose death sentences were final before of law governing the question whether new constitutional Ring, and his arguments do not compel departing from doctrines should be ‘retroactively’ or ‘prospectively’ our precedent. applied.” Witt v. State, 387 So.2d 922, 925 (Fla. 1980) (quoting Paul M. Bator et al., Hart & Wechsler's The *2 Although Hitchcock references various constitutional Federal Court & the Federal System 1477 (2d ed. 1973)). provisions as a basis for arguments that Hurst v. State This Court need not tumble down the dizzying rabbit hole should entitle him to a new sentencing proceeding, these of untenable line drawing; instead, the Court could simply are nothing more than arguments that Hurst v. State entertain Hurst claims for those defendants who properly should be applied retroactively to his sentence, which presented and preserved the substance of the issue, even became final prior to Ring. As such, these arguments were before Ring arrived. This is consistent with the precedent rejected when we decided Asay. Accordingly, we affirm of this Court. In James v. State, 615 So.2d 668, 669 (Fla. the circuit court's order summarily denying Hitchcock's 1993), we granted relief to a defendant who had asserted successive postconviction motion pursuant to Asay. at trial and on direct appeal that the jury instruction pertaining to the heinous, atrocious, or cruel aggravating It is so ordered. circumstance was unconstitutionally vague before the United States Supreme Court ultimately reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). We concluded LABARGA, C.J., and QUINCE, POLSTON , and that—despite his case becoming final before the principle LAWSON, JJ., concur. of law had a case name—it would be unjust to deprive LEWIS, J., concurs in result with an opinion. James of the benefit of the Supreme Court's holding in Espinosa after he had properly presented and preserved CANADY, J., concurs in result. such a claim. James, 615 So.2d at 669. Similarly, I believe that defendants who properly preserved the substance of PARIENTE, J., dissents with an opinion. a Ring challenge at trial and on direct appeal prior to that decision should also be entitled to have their constitutional LEWIS, J., concurring in result. challenges heard. In my view, as it did in Asay v. State, 210 So.3d 1 (Fla. 2016), petition for cert. filed, No. 16–9033 (U.S. Preservation of the issue is perhaps the most basic Apr. 29, 2017), the majority opinion incorrectly limits tenet of appellate review, see Steinhorst v. State, 412 the retroactive application of Hurst by barring relief to So.2d 332, 338 (Fla. 1982); and this Court should be even those defendants who, prior to Ring, had properly particularly cognizant of preservation issues for capital asserted, presented, and preserved challenges to the lack defendants. Accordingly, the fact that some defendants of jury factfinding and unanimity in Florida's capital specifically cited the name Ring while others did not is not sentencing procedure at the trial level and on direct dispositive. Rather, the proper inquiry centers on whether appeal, the underlying gravamen of this entire issue. a defendant preserved his or her substantive constitutional Although the United States Supreme Court's decision in claim to which and for which Hurst applies. 4 This Apprendi 3 became final while Hitchcock's case was on preservation approach—enshrined in James—ameliorates direct appeal before this Court, Hitchcock did not raise some of the majority's concern with the effect on the a Sixth Amendment challenge to his death sentence for administration of justice. Defendants, like Hitchcock, the first time until after our decision, in the form of who did not properly preserve their constitutional a postconviction claim, after his death sentence became challenges—through trial and direct appeal—forfeited final. See Hitchcock v. State, 991 So.2d 337, 344 n.6 (Fla. them just as any other defendant who fails to raise 2008). Therefore, I agree that he is not entitled to relief, and preserve a claim. However, those defendants who and I concur in the result. However, I write separately to challenged Florida's unconstitutional sentencing scheme explain my disagreement with the Hurst retroactivity issue based on the substantive matters addressed in Hurst are as adopted by this Court. entitled to consideration of that constitutional challenge.
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outcome with its very limited interpretation of Hurst's *3 Jurists have echoed this type of approach as a retroactivity and application. remedy to the more exacting federal Teague 5 standard. 6 Federal courts have employed a similar preservation approach, and it is “one of the dominant means by PARIENTE, J., dissenting. which federal courts limit the disruptive effects of Reliability is the linchpin of Eighth Amendment legal change in the context of direct review of federal jurisprudence, and a death sentence imposed without a criminal convictions.” 7 Regardless of the limited federal unanimous jury verdict for death is inherently unreliable. approach, scholars urge state courts to pull retroactivity The statute under which Hitchcock was sentenced, which off Teague 's constitutional floor, 8 which the Supreme did not require unanimity in the jury's recommendation Court expressly permitted in Danforth v. Minnesota, 552 for death, was unconstitutional under the Sixth and U.S. 264, 280, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). Eighth Amendments. To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process. The Eighth This Court's adoption of the Stovall 9 /Linkletter 10 Amendment and due process arguments presented here standard was intended to provide “more expansive and not addressed by the majority in Asay, in addition to retroactivity standards” than those of Teague. Johnson the Sixth Amendment right announced in Hurst v. Florida v. State, 904 So.2d 400, 409 (Fla. 2005). However, and Hurst, “create[ ] the rare situation in which finality the Court's retroactivity decision today eschews that yields to fundamental fairness in order to ensure that the intention. Further, it illuminates Justice Harlan's famous constitutional rights of all capital defendants in Florida critique of Linkletter: are upheld.” Asay v. State, 210 So.3d 1, 35 (Fla. 2016) Simply fishing one case from (Pariente, J., concurring in part, dissenting in part) (citing the stream of appellate review ... Witt v. State, 387 So.2d 922, 925 (Fla. 1980)), petition and then permitting a stream for cert. filed, No. 16–9033 (U.S. Apr. 29, 2017). Rather of similar cases subsequently to than analyze Hitchcock's constitutional arguments, the flow by unaffected by that new majority dismisses them without explaining why Asay, in rule constitute[s] an indefensible fact, forecloses relief. departure from this model of judicial review. *4 Hitchcock argues that he is entitled to retroactive application of the right to a unanimous jury Williams v. United States, 401 U.S. 667, 679, 91 S.Ct. recommendation for death announced in Hurst under the 1171, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part Eighth Amendment to the United States Constitution. See and dissenting in part). However, that is how the majority Hurst v. State (Hurst), 202 So.3d 40, 44 (Fla. 2016), cert. opinion draws its determinative, albeit arbitrary, line. As denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 a result, Florida will treat similarly situated defendants (May 22, 2017). Hitchcock also contends that denying differently—here, the difference between life and death— retroactive application of Hurst to him and other similarly for potentially the simple reason of one defendant's docket situated defendants violates their constitutional right to delay. Vindication of these constitutional rights cannot be due process. Contrary to the majority's assertion, these reduced to either fatal or fortuitous accidents of timing. 11 issues were not specifically addressed in this Court's opinion in Asay. In Asay, this Court made multiple Every pre-Ring defendant has been found by a jury references to the “right to jury trial” as an “indispensable to have wrongfully murdered his or her victim. There component of our justice system” and focused primarily may be defendants that properly preserved challenges to on the rule announced in Ring, a Sixth Amendment case. their unconstitutional sentences through trial and direct Asay, 210 So.3d at 17 (citing Blair v. State, 698 So.2d 1210, appeal, but this Court now limits the application of Hurst, 1213 (Fla. 1997)). This Court did not in Asay, however, which may result in the State wrongfully executing those discuss the new right announced by this Court in Hurst to defendants. It seems axiomatic that “two wrongs don't a unanimous recommendation for death under the Eighth make a right”; yet, this Court essentially condones that Amendment. Indeed, although the right to a unanimous jury recommendation for death may exist under both
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the Sixth and Eighth Amendments to the United States applied to him, but the majority Constitution, the retroactivity analysis, which is based holds that he is not entitled to on the purpose of the new rule and reliance on the old the Sixth Amendment protections rule, is undoubtedly different in each context. Therefore, articulated in Hurst v. Florida. Asay does not foreclose relief in this case, as the majority Yet, under the present majority's opinion assumes without explanation. See majority op. at decision, another defendant who ––––. committed his offense on an earlier date but had his sentence vacated As I did in Asay and Mosley v. State, 209 So.3d 1248 and was later resentenced after (Fla. 2016), I continue to agree that Witt provides the Ring, cannot receive the death appropriate standard for determining the retroactivity of penalty without the protections Hurst. However, as I explained in my concurring in part articulated in Hurst. Timothy Hurst and dissenting in part opinion in Asay, any line drawing in committed his crimes on May 2, the retroactive application of Hurst to capital defendants 1990, and was originally sentenced “results in an unintended arbitrariness as to who receives on April 26, 2000, which was final relief.” Asay, 210 So.3d at 36 (Pariente, J., concurring in October 21, 2002, a few short part and dissenting in part). months after the decision in Ring. The majority's application of Hurst For the same reasons I conclude that the right announced v. Florida makes constitutional in Hurst under the right to jury trial (Sixth Amendment protection depend on little more and article I, section 22, of the Florida Constitution) than a roll of the dice. requires full retroactivity, I would conclude that the right to a unanimous jury recommendation of death 210 So.3d at 39–40 (Perry, J., dissenting) (footnotes announced in Hurst under the Eighth Amendment omitted). requires full retroactivity. As I stated in Asay, “To avoid ... arbitrariness and to ensure uniformity and *5 As to Justice Lewis's approach to Hurst retroactivity fundamental fairness in Florida's capital sentencing, our under James v. State, 615 So.2d 668 (Fla. 1993), 13 I opinion in Hurst should be applied retroactively to all agree that this approach is preferable to denying relief death sentences. Id. (Pariente, J., concurring in part, altogether. Since Hurst, I have noted defendants who dissenting in part) (emphasis added). In addition to the raised Sixth Amendment challenges against Florida's arbitrariness of the imposition of the death penalty as capital sentencing scheme even before the United States described by Justice Breyer, joined by Justice Ginsburg, 12 Supreme Court issued its decision in Ring. See, e.g., this Court imposes another layer of arbitrariness in Gaskin v. State, 218 So.3d 399, 402 (Fla. 2017) (Pariente, determining which defendants will receive relief, based J., concurring in part and dissenting in part). Ultimately, on the critical right to a jury trial and a unanimous jury as I stated in Asay, because “death is different,” “we recommendation. Justice Perry provided an example in his must be extraordinarily vigilant in ensuring that the death dissenting opinion in Asay: penalty is not arbitrarily imposed.” Asay, 210 So.3d at 32 (Pariente, J., concurring in part and dissenting in part). For example, Asay committed two murders on the night of July 17, Hitchcock, who was twenty years old at the time of 1987. His sentence became final his crime, has had four different sentencing proceedings. on October 7, 1991, when the His sentence of death has been litigated since 1977. See United States Supreme Court denied Hitchcock v. State, 413 So.2d 741, 743 (Fla.), cert. denied, certiorari. See Asay v. Florida, 502 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). 14 Two U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d times, the United States Supreme Court granted penalty 218 (1991). Asay's nine-to-three jury phase relief, remanding the case each time for further recommendation that resulted in review. See Hitchcock v. Florida, 505 U.S. 1215, 112 S.Ct. a death sentence would not be 3020, 120 L.Ed.2d 892 (1992); Hitchcock v. Dugger, 481 constitutional if Hurst v. Florida U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). After
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a third penalty phase, in which the jury unanimously arguments were without merit, and “[c]ounsel cannot recommended a sentence of death, this Court again be expected to anticipate changes in the law.” Id. at reversed the sentence of death and remanded for a new 363 (citing Walton v. State, 847 So.2d 438, 445 (Fla. penalty phase. Hitchcock v. State, 673 So.2d 859, 860 2003)). Thus, while approaching retroactivity based solely (Fla. 1996). After Hitchcock's fourth penalty phase, which on preservation, as Justice Lewis would contend is began twenty years after the crime, the jury recommended appropriate, is preferable to the majority's resolution a sentence of death by a vote of 10–2, and the trial court of the issue—denying relief to all defendant's whose again sentenced Hitchcock to death. Hitchcock v. State, sentences became final before Ring—this resolution still 755 So.2d 638, 640 (Fla.), cert. denied, 531 U.S. 1040, 121 results in the additional arbitrariness of defendants being S.Ct. 633, 148 L.Ed.2d 541 (2000). That sentence is at issue granted a new penalty phase only if their lawyers had the in this case. foresight to raise an issue that was repeatedly determined to be meritless before Ring. For all these reasons, I At each proceeding, Hitchcock presented mitigating would apply Hurst retroactively to Hitchcock's sentence evidence, including that Hitchcock suffered “from of death. extreme mental and emotional disturbance, that he was under extreme duress or the domination of another *6 In Hurst, this Court stated: person, ... that his capacity to appreciate the criminality of If death is to be imposed, unanimous his conduct was substantially impaired,” and that he was jury sentencing recommendations, under the influence of alcohol and drugs at the time of the when made in conjunction with the crime. Hitchcock, 413 So.2d at 747. other critical findings unanimously found by the jury, provide As early as 1982, Justice McDonald, joined by Justice the highest degree of reliability Overton, concluded that Hitchcock's death sentence in meeting these constitutional was disproportionate and argued that Hitchcock's death requirements in the capital sentence should have been reduced to life. Id. at 748– sentencing process. 49 (McDonald, J., concurring in part and dissenting in part). Likewise, after Hitchcock's second penalty phase, 202 So.3d at 60. Based on the numerous resentencing Justice Kogan, joined by Justice Barkett, concluded “that procedures in Hitchcock's case, Hitchcock's sentence of the death penalty is disproportionate” in Hitchcock's case. death is anything but reliable. Also, the jury's most Hitchcock v. State, 578 So.2d 685, 694 (Fla. 1990) (Kogan, recent vote to recommend that Hitchcock be sentenced J., dissenting). 15 to death was 10–2. Hitchcock, 755 So.2d at 640. The Hurst error in Hitchcock's case is clear. Additionally, Hitchcock raised a timely Ring claim in his postconviction because of the significant mitigating evidence Hitchcock motion and in a separate petition for a writ of habeas has presented at each penalty phase, and because it is corpus. Hitchcock v. State, 991 So.2d 337, 344 n.6 (Fla. unclear why two jurors determined that death was not 2008); id. at 345 n.7. The postconviction court denied the appropriate punishment in this case, I would conclude relief; this Court affirmed the postconviction court's that the Hurst error in Hitchcock's case is not harmless denial of relief and denied Hitchcock's petition for a writ beyond a reasonable doubt. Therefore, I would vacate the of habeas corpus. Id. at 362–63. sentence of death, and remand for a new penalty phase.
Hitchcock also raised a “corresponding ineffective Accordingly, I dissent. assistance of counsel claim,” which this Court denied. This Court stated that because “neither Ring nor Apprendi All Citations had been decided when the appeal of Hitchcock's latest resentencing was pending before this Court,” Hitchcock's --- So.3d ----, 2017 WL 3431500
Footnotes
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Hitchcock v. State, --- So.3d ---- (2017)
1 Hitchcock relied on Hurst v. Florida and Hurst v. State to argue below that his death sentence is unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the corresponding provisions of the Florida Constitution, and article I, sections 15 and 16, of the Florida Constitution. 2 In this appeal, Hitchcock relies on Hurst v. Florida and Hurst v. State for the following arguments: (1) the Hurst error in his case was not harmless because his jury did not unanimously recommend death; (2) denying Hitchcock Hurst relief based on non-retroactivity violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution; (3) Hitchcock was denied his right to a jury trial on the facts that led to his death sentence; (4) Hitchcock's death sentence violates the Eighth Amendment because it was contrary to evolving standards of decency and is arbitrary and capricious; (5) the fact-finding that subjected Hitchcock to death was not proven beyond a reasonable doubt; (6) Hitchcock's death sentence violates article I, sections 15(a) and 16(a), of the Florida Constitution because the State did not present the aggravating factors in his indictment, and the aggravating factors were not found by his grand jury, thereby denying him notice of the full nature and cause of the accusation against him; and (7) the denial of Hitchcock's prior postconviction claims must be reheard and determined under a constitutional framework. 3 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 4 See L. Anita Richardson & Leonard B. Mandell, Fairness Over Fortuity: Retroactivity Revisited and Revised, 1989 Utah L. Rev. 11, 56–57 (1989). 5 Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). 6 Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203, 232 (1998). 7 Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 Yale L.J. 922, 942 (2006). 8 Christopher N. Lasch, The Future of Teague Retroactivity, or “Redressability,” After Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev. 1, 51–54 (2009). 9 Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). 10 Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). 11 See generally, Christopher M. Smith, Schriro v. Summerlin: A Fatal Accident of Timing, 54 DePaul L. Rev. 1325 (2005). 12 See Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2760–64, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting) (Justice Breyer, joined by Justice Ginsburg, explained that because of the inherent arbitrariness in the imposition of the death penalty it is unconstitutional under the Eighth Amendment.). 13 See concurring in result op. at –––– (Lewis, J.); Asay, 210 So.3d at 30–31 (Lewis, J., concurring in result). 14 The jury's vote to recommend a sentence of death in Hitchcock's first trial is unclear. 15 Chief Justice Shaw also dissented in the affirmance of the death sentence for unstated reasons. Hitchcock, 578 So.2d at 694 (Shaw, C.J., dissenting).
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. 6
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IN THE TI-IIRTEENTI-I JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA Criminal Justice and Trial Division -I ~-.. STATE OF FLORIDA CASE NO.: 8l-CF-010517 r~.x .._, v.
MILFORD WADE BYRD, DIVISION: J E Defendant. L: / 4:"
ORDER DENYING CLAIMS l. ll. AND Ill OF SUCCESSIVE MOTION To VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH. CLAIMS l. u. up. AND IV OF AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH. AND CLAIM v OF SUPPLEMENT TO AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES. AND ALTERNATIVELY MOTION TO CORRECT ILLEGAL SENTENCES
THIS MATTER came before the (`oun on Delendantls "successive motion m vacate
judgments of conviction and sentence of death" filed. through counsel. on November 2, 2016.
pursuant to Florida Rule of Criminal Procedure 3.851 .' On November 22, 201 6. the State filed its
response. The Coup scheduled a case management conference for December 6, 2016. During the
December 6, 2016. case management conference. the Coup orally stayed the instant proceedings
pending the Florida Supreme (`ounls determination as to the retroactivityof llursl.
On December 22. 2016. the Florida Supreme (`oun in Asqvl held the United States
Supreme Coup decision in Hurst does not apply retroactively to death penalty cases final at the
time of Ring.' Therefore. the Court scheduled a case management conference for February 9.
2017. At the Fehnxary 9. 2017. case management conference. Ikfcndanfs counsel Mr. Marin
' In his motion. Defendant raises claims involvingHurst v. Florida. 136 S. Cl. 616 (20l6) and Hurst \'. Florida. 202 So. 3M 40 (Fla. 2016). z Asqv \'. Sum-. 210 So. 3M I (Fla. 2016). 3Ring \'. Ari:ona. 536 U.S. 584 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Page I of 15
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McClain advised the Coup that he intended to file an amended mle 3.851 motion to incorporate
recent decisions, including Asav, Moslcv.' and Arms!rong.5 Assistant Attomey General Ms.
Marilyn Beccue argued that the Florida Supreme Coup determinedHurst is not retroactive to cases
final beforeRing and therefore, the motion is time-barred under mle 3.851. On Fehmary 9. 20] 7.
alter hearing from both counsel. the Coup allowed Mr. McClain thirty (30) days to amend the
successive rule 3.851 motion and allowed the State twenty (20) days attar the filing of the amended
motion to tile its response. The Coup set a case management conference for April 13. 2017, at
l l:00 a.m.
On March 13. "0l7. Defendant. through counsel. filed an "amended successive motion to
vacate judgments ol' conviction and sentence of death" and a "motion to exceed page limitation."
On March 27. 20] 7. the Coun granted l)elendantls "motion to exceed page limitation." On April
3, 2017. the State tiled its response. On April ll, 2017. Defendant, through counsel. filed a
"motion for leave to amend successive motion to vacate
At the April 13. 2017. case management conference. Defendant's counsel Mr. Marin
McClain advised the Coup that he recently filed a "motion lbr leave to amend successive motion
to vacate" seeking to amend his motion on the basis of a recent Florida Supreme Coup decision
relevant to claim ll on the has is of the enactment of Chapter 2017-1 which gives rise to an
additional claim. Assistant Attomey General Ms. Marilyn Beccue objected on the basis that his
amended successive motion is time-barred under mle 3.851 . On April I 3. 201 7. alter hearing from
both counsel. the Coup granted the "motion lor leave to amend successive motion to vacate."
4 Moslqv v. Stale. 209 So. 3M 1748 (Fla. 2016). 5Armstrong \'. Stale,2] I So. 3M 864 (Fla. 2017).
Page 2 of 15
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allowed Mr. McClain to amend the amended successive mule 3.851 motion. and allowed the Slate
to file its response. The Coup set a case management conference for May 24. 20] 7. at l l:00 a.m.
()n April 27. 201 7. Dependant. through counsel. filed a "supplement to amended successive
motion to vacate judgments of conviction and sentences. and alternatively motion to correct illegal
sentence." On May 12. 201 7. the State filed its answer. On May 24, 2017. the case management
conference was held. ()n May 25. 201 7. the Stale filed a "notice of supplemental authority." ()n
June 17. 2017. Defendant. through counsel, filed n "notice ollsupplemental authority." ()n August
14. 20] 7. the State filed a "notice of supplemental authority." Alter reviewing all the pleadings.
the court tile. and the record. the Coup finds as follows:
On .lily 23, 1982. a jury found Defendant guilty of first-degree murder. The jury
recommended a sentence of death by a "majority of 1'7... ()n August 13. 1982. the Coup sentenced
Defendant to death. The Florida Supreme Coup alarmed l)elendantls conviction and sentence.
See Byrd v. Stale. 48] So. ad 468 (Fla. 1985). On May 27, 1986. the United States Supreme Coup
denied Defendant's petition tar writ of certiorari. Seclived \'. Florida, 106 S.(lt. 2261 (1986).
Defendant subsequently filed a motion for post conviction relief The post conviction court
denim the motion for post conviction relief The Florida Supreme Coup affirmed the denial. See
Bw-d \', Slate. 597 So. ad 252. 254 (Fla. l992). Defendant subsequently tiled a petition Rxr writ of
habeas corpus. which the Florida Supreme Court denied in 1995. SeeByrd \'. Singlvrarjv. 655 So.
ad 67. 68 (Fla. l995).
Defendant suhsmuently tiled a successive motion for post conviction relief; which was
denim. The Florida Supreme Coup affirm the denial. Sw' Byrd \'. Stale. 14 So. 3M 921. 924
(Fla. 2009). Defendant subsequently filed a second successive motion tar post conviction relief
Page 3 of 15
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which was denied. The Florida Supreme Court affirmed the denial. SeeByrd v. State, 1 18 So. 3M
807 (Fla. 201 3).
CLAIM I SUCCESSIVE MOTION TO VACATE JUDGMENTS OF conviction AND SENTENCE OF DEATH AND AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS UF CONVICTION AND SENTENCE OF DEATH
MR. BYR])*S DEATH SENTENCE VIOLATES THE SIXTH AMENDMENT UNDER HURST V. FLDRIDA AND SHOULD BE VACATED
In claim I, Defendant asserts his death sentence is unconstitutional and in violation of the
Sixth Amendment pursuant toHurst v. Florida and Hurst v. State. Defendant alleges his jury did
not return a verdict making any findings of fact, the jury's death recommendation was tainted by
Caldwell issues given that the jury was told its role was an advisory one, 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 on the basis of mercy. He alleges the Hurst error permeates throughout
this case. Therefore, he alleges his death sentence must be vacated and a resentencing ordered.
In its responses, the State asserts Defendant's successive motion is time-barred and does
not meet any exception under rule 3.851. The State further assent Defendants death sentence
does not violate the Sixth Amendment under Hurst v. Florida because Hurst does not apply
retroactive to Defendant's case. Specifically, the State asserts Hurst is not to be applied
retroactively to cases that were final before the United States Supreme Court issued Ring v.
Arizona, 536 U.S. 584 (2002). The State asserts because Defendants conviction and sentence
were final in 1986, Defendant is not entitled to relief
<» Caldwell v. Mississippi,472 U.S. 320 (1985).
Page 4 of 15
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Moreover, the State asserts Defendants assertion that he is entitled to an individualized
assessment regarding whether he gets the benefit ofHurst is simply incorrect. The State asserts
Defendant erroneously alleges that the Florida Supreme Court's fundamental fairness analysis in
Mosley v, State, 209 So. 3M 1248 (Fla. 2016), rah 'g denied,2017 WL 510491 (Fla. Feb. 8, 2017),
requires that he be allowed tm show that he is entitled to Hurst relief. The State asserts that in
Mosley, the Florida Supreme Court expressly held that Hurst does not retroactively apply to cases
that were final whenRing was decided. Therefore, the State asserts Defendant is not entitled to an
evidentiary hearing on this claim,
After reviewing the allegations, the State' s response, the notices of supplemental authority,
the court file. and the record, the Court finds the Florida Supreme Court's decision inAmy v. State,
210 So. 3M l (Fla. 2016), reh'g denied, 2017 WL 431741 (Fla. Feb. 1, 2017) precludes relief
Specifically, the Court finds the Florida Supreme Court's decision in Away denies retroactive
application of Hurst v. Florida as interpreted in Hurst v.Slate,to defendants whose death sentences
were final when the Supreme Court decidedRing. See eg., Zack v. State,42 Fla. L. Weekly S656,
2017 WL 2590703 (Fla. June 15, 2017), Marsnali v. Jones, 42 Fla. L,Weekly S533, 2017 WL
1739246 (Fla May4, 201 7), Lambrix v. State, 217 So. 3M 977 (Fla. 2017), Willacy v. James, 2017
WL 1033679 (Fla. Mar. 17, 2017), Bogie v. State, 21 3 So. 3M 833 (Fla. 2017), Gaskin v. State, 218
So. 3M 399 (Fla. 2017). The Court finds Defendants death sentence was final before Ring. See
Byrd v. Florida, 106 S.Ct. 2261 (1986). Therefore, the Court finds Defendant is not entitled to
retroactive application ofHurst. As such, no relief is warranted upon claim 1.
CLAIM II SUCCESSIVE MOTION TD VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH AND AMENDED SUCCESSIVE MOTIUN TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
Page 5 off
P322 P323
MR. BYRD'S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT UNDERHURST V. FLORIDA AND sHoULD BE VACATED
In claim II, Defendant asserts his death sentence is unconstitutional and in violation of the
Eighth Amendment pursuant to Hurst v. Florida and Hurst v. State. Specifically, Defendant
asserts his death sentence was not the product of unanimous jury findings or a unanimous jury
verdict. He asserts his sentence was the product of an arbitrary and capricious system that did not
afford him the rights that the Eighth Amendment guarantees. He asserts the Florida Supreme Court
in Hurst v. State 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 Endings. Defendant asserts 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. Defendant asserts that
according to Hurst v. Stale, the evolving standards of decency reflected in a national consensus
that a defendant could only be given a death sentence when a penalty phase jury has voted
unanimously in favor of the imposition of death. He asserts 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.
He asserts dais class of defendants cannot be executed under the Eighth Amendment.
Defendant asserts he is Within this protected class because he did not receive the benefit of
a penalty phase jury verdict. He asserts his case was only heard by an advisory panel and the
verdict was rendered by a judge. He asserts under the Eighth Amendment, his execution would
constitute cruel and unusual punishment and his death sentence must be vacated. He further asserts
while Hurst v. State has been held to apply retroactively, the Florida Supreme Court did not
Page 6 of 15
P323 P324
conduct a Wire analysis regarding the retroactive applicationof Hurst v. State to cases final before
the issuance of the opinion in Ring. He asserts when the enhanced reliability afforded by the
fundamental right to a unanimous death recommendation is part of the I/Wit analysis, it is clear that
Hurst v, State should be applied retroactively in his case. Defendant further asserts it would be
fundamentally unfair to deprive him of the benefits of Hurst v. State,while other similarly situated
individuals received its benefit.
In its responses, the State asserts this claim is also time-barred and does not fall within any
exception to rule 3.851 's time limitation. The State asserts the Florida Supreme Court's expansion
of the issue on remand inHurst to include an Eighth Amendment analysis has not been held to be
retroactive. The State asserts Defendant's penalty phase jury unanimously recommended death.
The State assent there is nothing in the record to support the proposition that the jury's
responsibility in rendering an advisory verdict was assailed or diminished as the jury knew and
understood their great responsibility in reviewing the evidence and determining whether to
recommend death. The State asserts is it not necessary to hold an evidentiary hearing to address
this claim.
After reviewing the allegations, the State's response, the notices of supplemental authority,
the court tile, and the record, the Court finds Detendanfs jury returned a verdict of a "majority of
l2." The Court finds it is not necessary for this Court to decide whether a verdict of a "majority
of l2" constitutes a unanimous or non-unanimous verdict for death because the Florida Supreme
Court's decision inAway v State,210 So. 3M l (Fla. 2016) precludes relief Specifically, the Court
finds the Florida Supreme Court's decision in Away denies retroactive application of Hurst v.
Florida as interpreted in Hurst v. State, to defendants Whose death sentences were final when the
7 Witt v. SILII6, 387 So. ad 922, 925 (Fla. 1980).
Page 7 of 15
P324 P325
Supreme Court decided Ring. See e.g., Zack v. State, 42 Fla. L. Weekly S656, 201 7 WL 2590703
(Fla. June 15, 2017), Marshall v. Jones, 42 Fla. L.Week1y S533, 2017 WL 1739246 (Fla. May 4,
2017), Lambrix v. State, 217 So. 3M 977 (Fla. 2017), Wllacy v. Jones, 2017 WL 1033679 (Fla.
Mar. 17, 2017), Bogle v. State, 213 So. 3M 833 (Fla. 2017), Gaskin v. State, 218 So. 3M 399 (Fla.
2017). The Court finds Defendants death sentence was final before Ring. See Byrd v. Florida,
106 S.Ct. 2261 (1986). Therefore, the Court finds Defendant is not entitled to retroactive
application ofHurs1. As such, no relief is warranted upon claim Il.
CLAIM up SUCCESSIVE MOTION To VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
THE DECISIONS IN HURST V_ STATE AND PERRY V_ STA TE 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. BYRD'S PREVIOUSLY PRESENTED NEWLY DISCOVERED EVIDENCE CLAIM. HIS PREVIOUSLY PRESENTED BRADY CLAIMS AND HIS PREVIOUSLY PRESENTED STRICKLAND CLAIMS. THE NEW LAW. DUE PROCESS PRINCIPLES. AND THE EIGHTH AMENDMENT ALL REQUIRE THIS COURT TO REVISIT MR. BYRD'S 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 RESENTENCING. AND WHEN THE PROPER ANALYSIS IS CONDUCTED IT IS CLEAR THAT IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD RESULT, RULE 3.851 IS REQUIRED
Page 8 of 15
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In claim III, Defendant asserts on March 7, 2016, Chapter 2016-13 was signed into law by
Governor Scott. He asserts it substantially revised Florida's capital sentencing statute and
constitutes new law in rule 3.851 proceedings. He asserts its adoption was intended to cure the
constitutional defect in Florida's capital sentencing scheme identified in Hurst v, Florida. He
asserts the revised capital sentencing statute would apply at a resentencing and would require that
the jury unanimously determine that sufficient aggravating factors existed to justify a defendants
sentence and unanimously determine that the aggravators outweigh the mitigating factors. He
asserts it would also require the jury to unanimously recommend a death sentence before the
sentencing judge would be authorized to impose a death sentence. He asserts one single juror
voting in favor of a life sentence would require the imposition of a life sentence.
Defendant asserts this new Florida law did not exist when he previously presented his
post conviction motions. He asserts he could not present his claim set forth herein because the new
law that would govern any resentencing ordered in his case was previously unavailable. He asserts
a previous rejection of a death sentenced defendant's Strickland claims and newly discovered
evidence claims should be re-evaluated in light of the new requirement that juries must
unanimously make the necessary findings of fact and return a unanimous death recommendation
before a death sentence is even a sentencing option. He asserts if post conviction claims would
have enhanced his case for a life sentence, it is likely that he can meet his burden to show the
outcome at a resentencing would probably be diiierent. Therefore, he asserts this Court must
revisit and re-evaluate the rejection of all his previous post conviction claims in light of the new
Florida law which would govern at a resentencing. He asserts this Court should vacate his death
sentence and order a new penalty phase.
Page 9 no 15
P326 P327
In its response, the Stale asserts the rules do not authorize this Court to revisit an identical
factual claim merely because of a subsequent, non-retroactive change in the law. The State asserts
Delendanfs motion merely seeks to apply a new and non-retroactive legal mle and should be
summarily dismissed as untimely and unauthorized. The State funder asserts an evidentiary
hearing is not needed to resolve this claim.
After reviewing the allegations. the Statels response. the notices of supplemental authority.
the coin file, and the record. the Court finds this claim is beyond the scope ofHurst relief. The
Coup funder finds that Defendant is not entitled to retroactive application of Hurst or Chapter
2016-13. Laws of Florida. As such, no relief Is warranted upon claim lll.
CLAIM Ill AMENDED SUCCESSIVE MOTION To VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
THE RETROACTIVITY RULINCS IN ASAY V. STA TE AND MOSLEY y_ STA TE 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 K GEORGIA
In claim Ill. Defendant assent the distinction between who gets the benefit of Hurst \-.
Florida and 3.851 relief and who docsnlt and gets executed will be an arbitrary one. lie alleges
the decisions in Asqv and Moslqv have opened the door to arbitrariness infecting Florida's death
penalty system in violation of the Eighth Amendment. He alleges because Florida's death penalty
system has been shredded and so infected with arbitrariness that it violates the Eighth Amendment,
his death sentence cannot stand.
in its response, the State assent Moslqr and Asqv do not inject arbitrariness into lfloridals
capital sentencing scheme. The Slate assent they are Florida Supreme Court decisions that this
Page 10 of 15
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Coup is require to follow. The Stale assent death sentences imposed pre-Ring are not arbitrary
or capricious. The State assent the Florida Supreme Coup made a determination that Hurst is not
retroactive to cases final before Ring was decided. but is retroactive to decisions final aver Ring
was decided. The State asserts this claim should he dismissed.
Alter reviewing the allegations. the Statels response. the notices of supplemental authority.
the coin tile. and the record. the (`our1 finds the Florida Supreme Counts decision in Asqv v. Slate.
2 I 0 So. 3M l (Fla. 2016) precludes reliell Specifically. the (.'our1 finds the Florida Supreme (`ounls
decision in Asser denies retroactive application ofHurst r. Florida as interpreted in llunrr \'. Slate,
to defendants whose death sentences were final when the Supreme Coup decided Ring. Sec ag..
Zack \'. Slule,42 Fla. L. Weekly S656. 201 7 WL 2590703 (Fla..lone 15,201 7). Marshall \'_ Jones.
42 Fla. L.Weekly S533. 2017 WL 1739246 (Fla. May 4. 2017), Lambrix \'. Slam, 217 So. 3M 977
(Fla. 2017), Willaqi' \'. Jones, 2017 WL 1033679 (Fla. Mar. 17, 2017), Bogie \'. Slate. 213 So. 3M
833 (Fla. 2017); Gaskin \'. Stale. 218 So. 3M 399 (Fla. 2017). 'l`he Coup finds l)elendantls death
sentence was final he hireRing. Sec lived \.. Florida, 106 S.Ct. 2261 (l986). Therefore. the Coup
finds Defendant is not entitled to retroactive applicationof llunst. As such, no relief is warranted
upon claim Ill.
CLAIM IV AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
THE RECENT DECISIONS IN HURST K STATE AND IN PERRY V. STATE MEAN THAT A RESENTENCING ORDERED IN A CAPITAL CASE A UNANIMOUS DEATH RECOMMENDATION WILL BE REOUIRED AND THAT ASPECT OF A RESENTENCING ORDER IN MR. BYRD'S CASE MUST BE PART OF THE SECOND PRONG ANALYSIS OF MR. BYRD'S PREVIOUSLY PRESENTED NEWLY DISCOVERED EVIDENCE CLAIMS. AND REQUIRES THIS COURT REVISIT MR. BYRD'S NEWLY DISCOVERED EVIDENCE CLAIMS AND DETERMINE
Page ll of 15
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WHETHER THE NEW EVIDENCE AND ALL THE OTHER ADMISSIBLE EVIDENCE AT A RESENTENCING IN WHICH THE NEW STATUTE WOULD GGVERN WOULD PROBABLY RESULT IN LIFE SENTENCE
In claim IV, Defendant asserts on March 7, 2016, Chapter 2016-13 was signed into law by
Governor Scott. He asserts it substantially revised Florida's capital sentencing statute and
constitutes new law in mle 3.851 proceedings. He asserts its adoption was intended to cure the
constitutional defect in Florida's capital sentencing scheme identified in Hurst v. Florida. He
asserts the revised capital sentencing statute would apply at a resentencing and would require that
the jury unanimously determine that sufficient aggravating factors existed to justify a der°endant's
sentence and unanimously determine that the aggravators outweigh the mitigating factors. He
asserts it would also require the jury to unanimously recommend a death sentence before the
sentencing judge would be authorized to impose a death sentence. He asserts one single juror
voting in favor of a life sentence would require the imposition of a life sentence.
Defendant asserts this new Florida law did not exist when he previously presented his
post conviction motions. He asserts he could not present his claim set forth herein because the new
law that would govern any resentencing ordered in his ease was previously unavailable. He asserts
a previous rejection of a death sentenced defendant's Strickland claims and newly discovered
evidence claims should be reevaluated in light of the new requirement that juries must
unanimously make the necessary findings of fact and return a unanimous death recommendation
before a death sentence is even a sentencing option. He asserts if post conviction claims would
have enhanced his case for a life sentence, it is likely that he can meet his burden to show the
outcome at a resentencing would probably be different. Therefore, he asserts this Court must
revisit and re~evaluate the rejection of all his previously post conviction claims in light of the new
Page 12 of 15
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Florida law which would govern at a resentencing and based on fundamental fairness. He asserts
this Court should vacate his death sentence and order a new penalty phase.
In its response, the State asserts Defendant is not entitled to a reevaluation of his previously
litigated claims, The State asserts the rules do not authorize this Court to revisit an identical factual
claim merely because of a subsequent, non-retroactive change in the law. The State asserts
Defendant's motion merely seeks to apply a new and non~retroactive legal rule and should be
summarily dismissed as untimely and unauthorized. The State further asserts an evidentiary
hearing is not needed to resolve this claim.
After reviewing the allegations, the State's response, the notices of supplemental authority,
the court file, and the record, the Court finds this claim is beyond the scope ofHurst relied The
Court further tends that Defendant is not entitled to retroactive application of Hurst or Chapter
2016-13 Laws of Florida. As such, no relief is warranted upon claim IV.
CLAIM v SUPPLEMENT TO AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCES.. AND ALTERNATIVELY MoT1oN To CORRECT ILLEGAL SENTENCES
THE EIGHTH AND FOURTEENTH AMENDMENTS To THE UNITED STATES CONSTITUTION REoU1REs THE RETROACTIVE APPLICATIDN OF THE SUBSTANTIVE RULE ESTABLISHED BY CHAPTER 2017-1, WHICH PRECLUDES THE IMPOSITION oF A DEATH SENTENCE UNLESS A JURY UNANIMGUSLY RETURNS A DEATH RECOMMENDATION.
In claim V, Defendant asserts on March 13, 2017, Chapter 201 7~l was signed into law by
Governor Scott. He asserts as a result, Florida's capital sentencing statute now precludes the
imposition of a death sentence unless a jury returns a unanimous death recommendation. He
alleges the enactment of Chapter 2017-1 recognizing the right to a life sentence unless a jury
unanimously rewmmends the imposition of a death sentence now exists separate and apart Ham
Page 13 of 15
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Hurst v. State. He alleges failing to grant him the benefit of the substantive right contained in
Chapter 201 7-1 violates Article I, Sections 9 and 16 of the Florida Constitution, the Due Process
Clause of the Fourteenth Amendment, and the Eighth Amendment. He alleges because his
sentence stands in violation of Chapter 20l7~l, the Florida Constitution, and the Eighth and
Fourteenth Amendments to the United States Constitution, he is entitled to mule 3.851 relief, his
sentence must be vacated, and he is entitled to a resentencing.
In its response, the State asserts the Florida Constitution does not require retroactive
application of Chapter 2017-1, which governs the procedure used to determine whether a criminal
Defendant is eligible for the death penalty, to any case that was final when the statute was enacted.
The State asserts Defendant makes a giant leap concluding that the new statute confers a
substantive right to a life sentence for any capital defendant, regardless of when their crime was
committed and, presumably, regardless of how long their sentence has been final.
The State further asserts Defendant's due process argument fails. Specifically, the State
asserts Defendant is not similarly situated to capital defendants who are either pending prosecution
or pending a new penalty phase. The State also asserts the statute does not confer a substantive
right to which Defendant is entitled. The State asserts Defendant cannot establish that the
procedure used to sentence him to death was unfair and, thus, a procedural due process violation.
The State asserts Defendant cannot validly claim that his sentencing procedure was less accurate
than future sentencing procedures employing the new statute. The State asserts this Court should
dismiss this claim as untimely or alternatively deny it.
After reviewing the allegations, the State's response, the notices of supplemental authority,
the court file, and the record, the Court finds this claim is beyond the scope ofHurst relief The
Page 14 0f15
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Coup limner finds that Defendant is not entitled to retroactive application of Hu/:sr or Chapter
201 7-1. Laws otIFlolida. As such, no relief is warranted upon claim V.
It is therefore ORDERED AND ADJUDGED that claims I. ll. and lll of Delendanfs
"successive motion to vacate judgments of conviction and sentence olldeath." claims l. ll. lll.
and IV of Dcfcndantls "amended successive motion to vacate judgments of conviction and
sentence olldeath." and claim V of Delendanfs "supplement to amended successive motion to
vacate judgments of conviction and sentences, and alternatively motion to correct illegal
sentence" are hereby DENIED.
Defendant has thirty (30) days from the date of this Final Order within which to
appeal. However, a timely-liled motion for rehearing shall toll the Venality ol' this Order.
DONE AND ORDERED in Chambers in Hillsborough County. Florida thisQ? l.§.§'§f W . , 201 7. l \ `\ \ &1»Q§2Q*>a»» MIC1.1E1.I.E ® 0, Circuit M82
CERTIFICATE OF SERVICE
l HEREBY CERTIFY that a copy of this order has been famished to Marin McClain,
Esquire. McClain & McDermott. P.A.. 141 N.E. 30th Street. Wilton Manors. Florida 33334;
Marilyn Muir Beccue, Assistant Attomey General. Office of the Attomey General. 3507 East
Frontage Road. Suite 200. Tampa. Florida 33607. hy U.S. mail: and Jay Pmncr. Assistant State
Attomey. Oflicc of the State Attomey, 419 Pierce Street, Tampa. Florida 33602, by inter-office
mail, onWZ7444., old 201 7. 9 444 DEPUTY CILERK
Page 15 of 15
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Filing # 62038165 E-Filed 09/27/2017 01:03:35 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA, Plaintiff, CASE NO. 81-CF-010517 v.
MILFORD WADE BYRD, Defendant.
______/
MOTION TO EXTEND THE TIME FOR FILING NOTICE OF APPEAL, OR IN THE ALTERNATIVE, MOTION TO RE-ENTER ORDER DENYING DEFENDANT’S AMENDED SUCCESSIVE MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE OF DEATH
The Defendant, MILFORD WADE BYRD, by and through undersigned counsel,
respectfully moves this Court to either extend the time for filing Mr. Byrd’s notice of appeal, or
in the alternatively, to re-enter the order denying his amended successive motion to vacate
judgements of conviction and sentence of death, to allow a timely notice of appeal to be filed so
that Mr. Byrd’s appeal can be heard. In support of this motion, Mr. Byrd states:
1. On November 2, 2016, Mr. Byrd filed his Successive Motion to Vacate
Judgments of Conviction and Sentence of Death. The motion presented claims that were
premised upon Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016), as well as the Sixth, Eighth and Fourteenth Amendments to the US Constitution and the
corresponding sections of the Florida Constitution.
2. On March 13, 2017, that motion was amended to in light of additional new case
law issued in the wake of Hurst v. Florida and Hurst v. State. On April 27, 2017, Mr. Byrd
submitted an additional claim in a supplement to the motion to vacate based upon the March 13,
2017, enactment of Chapter 2017-1..
3. On August 22, 2017, this Court issued its order denying the amended motion to
vacate and Mr. Byrd’s supplement to the motion. The order reflects service by mail on Mr.
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Byrd’s counsel, Martin J. McClain at his office address in Wilton Manors, Florida. It does not
reflect service on co-counsel Bryan E. Martinez, the Office of CCRC-South in Fort Lauderdale.
4. At that time undersigned counsel, Martin J. McClain, was also serving as counsel
for Mark Asay. On July 3, 2017, the Governor had scheduled Mr. Asay’s execution for August
24, 2017. As a result, Mr. McClain was engulfed in warrant litigation in Mr. Asay’s case
throughout July and August.
5. On August 23, 2017, undersigned counsel prepared for and appeared by phone at
the case management conference held in State v. Lambrix case, a Glades County case. After the
case management conference in State v. Lambrix was over, Mr. McClain travelled to Palatka, FL
and prepared for a case management conference in State v. Wright, scheduled for the morning of
August 24, 2017. By that point in time, Mr. McClain had on behalf of Mr. Asay filed a petition
for a writ of certiorari and a motion for a stay of execution in the US Supreme Court.
6. On August 24, 2017, the Wright case management conference which was
scheduled for 10 AM had to be pushed back until 2 PM so that a court reporter could be present.
The case management conference lasted two hours. During it, Mr. McClain received word that
the US Supreme Court had denied the stay request for Mr. Asay and the petition for certiorari
review filed on Mr. Asay’s behalf. Shortly thereafter, Mr. Asay was executed.
7. Sick from exhaustion, Mr. McClain spent most of the next week recovering. On
Friday, September 1, 2017, Mr. McClain had recovered enough to go into the CCRC-South
office. Coincidentally right after arriving, he received an email informing him that the Governor
had schedule another of his clients for execution. Mr. Lambrix’s execution was set for October
5, 2017. Counsel once again found himself engulfed in warrant litigation.
2
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8. As counsel’s preparation for the warrant litigation was getting underway, on
September 4, 2017, the Governor declared a state of emergency due to the threat posed by
Hurricane Irma.
9. On September 5, 2017, the threat increased as it became more imminent and the
hurricane gained strength. In Fort Lauderdale, hurricane preparations began in earnest, and
counsel’s attention had to focus on taking steps to prepare for the storm. As Governor Scott put
it: “In Florida, we always prepare for the worse and hope for the best and, while the exact path of
Irma is not absolutely known at this time, we cannot afford to not be prepared.”
10. By September 6, 2017, counsel had to cease all legal work on behalf of clients get
prepared and the CCRC-South office closed.1 In the early afternoon of September 6, the
projected path had the eye of the hurricane passing over Fort Lauderdale and creating a monster
storm surge that would flood counsel’s home and office. Client files and records had to be
moved to a safer place. From September 6 until the morning of September 10 when the storm
arrived, counsel’s time was spent exclusive trying to prepare. At 8:20 AM on the September 10,
counsel was left with electricity. Power was not restored until the afternoon of September 15.
11. All told, counsel’s life was consumed with the hurricane from September 5 thru
September 15. In the course of moving client files and records to protect them, chaos reigned.
For example, counsel’s flash drive went missing. Counsel is still uncertain of the location of
many files and records that were moved because of the project path of the storm. Before order
could be restored to his office, counsel had to get back to the warrant litigation in Lambrix. The
1 Undersigned counsel, Mr. McClain, resides in Broward County Florida. The Office of the Capital Collateral Regional Counsel—South (“CCRC-South”), as well as Mr. McClain’s private law office, are both located in Broward County. Mr. McClain’s co-counsel, Bryan E. Martinez, is a Staff Attorney at CCRC-South and resides just over the county line in Miami- Dade County. As stated elsewhere in this motion, Mr. Martinez and CCRC-South was not served by this Court. 3
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Florida Supreme Court issued a scheduling order directing counsel to file the initial brief in the
Lambrix appeal by 3 PM on Monday, September 25, 2017.2
12. As counsel was working on the Lambrix initial brief, he remembered that this
Court’s order had arrived sometime before the hurricane. In took sometime to locate the envelop
with the order. He could not find where he had written down when the order arrived. While
searching, he checked with co-counsel, Mr. Martinez at the CCRC-South office who told him
that office had not receive an order in Mr. Byrd’s case.
13. Finally late on Saturday, September 23, while working on the Lambrix initial
brief, counsel happened on the envelop with this Court’s order only to see that it was dated
August 22. This meant that the notice of appeal that he had been instructed to file by his client if
this Court denied the motion to vacate was past due.
14. Counsel had to spend the rest of the weekend trying to get the Lambrix initial
brief done. But, he was unable to get it filed until 4 PM on September 25. Because it was an hour
late, counsel had to file a motion to accept the brief as timely filed while advising the Florida
Supreme Court that he would file an amended brief with the Table of Contents and Table of
Authorities inserted as soon as the tables could be completed. Ultimately, the amended initial
brief in Lambrix was filed at 1 AM on September 26, 2017.
15. After getting some sleep, counsel has turned his attention to preparing this motion
on Mr. Byrd’s behalf.
16. Due to the two death warrants issued for two of counsel’s clients and the chaos
engendered by Hurricane Irma, along with the fact as it turns out the CCRC-South office was not
served with a copy of the August 22 order (circumstances all beyond counsel’s control), counsel
2 Co-counsel, Mr. Martinez, is also part of the Lambrix litigation team. The Lambrix case is his first instance where he has litigated under warrant. 4
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requests this Court to re-enter the order denying the 3.851 motion so that a timely appeal can be
filed.
17. The Florida Supreme Court issued Administrative Order, SC17-67 on September
19, 2017. The order signed by Chief Justice Labarga specifically addressed emergency requests
to extend time periods in Hillsborough County due to Hurricane Irma. The order noted that from
September 7, 2017, until September 12, 2017, the courts in Hillsborough County were closed
due to the hurricane. The order then directs:
In Hillsborough County, all time limits prescribed or allowed by rule of procedure, court order, statutes applicable to court proceedings, or otherwise pertaining to court proceedings are extended from the close of business on Wednesday, September 6, 2017, until the close of business on Wednesday, September 13, 2017.
Administrative Order, SC17-67, at 2. Upon reading this provision, counsel initial thought that
this extended all time periods by seven days, and thus, he had until September 28 to file a timely
notice of appeal. However, a subsequent paragraph in the order which stated:
The extension of time periods under this order shall apply only when the last day of those periods falls within the time extended. The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated herein.
Id. From this, it appears that a suspension or tolling of time is only automatic as to speedy trial
time periods. Otherwise, the time is extended automatically only if the last day of the time period
in question was between September 6 and September 13. This would seem to mean that the time
for filing Mr. Byrd’s notice of appeal is not extended automatically for that seven day time
period.
18. The administrative order does then provide for a case-by-case determination by
the court that has jurisdiction as to whether to extend the time period at issue, here the thirty days
allotted for filing a notice of appeal. In this regard the administrative order states:
5
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This Court recognizes that there may be instances where, because of this emergency, these and other time limits applicable to matters in or outside Hillsborough County could not be met even upon application of the periods stated above. If such a claim is made, it shall be resolved by the court in which jurisdiction is vested on a case-by-case basis when a party demonstrates that the lack of compliance with requisite time periods was directly attributable to this emergency and that equitable remedy is required.
Administrative Order, SC17-67, at 3. Under this paragraph of the order, this Court has the
authority to extend the time for filing the notice of appeal if compliance with a time limit was
attributable to the emergency created by Hurricane Irma. Certainly in this instance, that is the
case. The envelop with this Court’s order denying Mr. Byrd’s 3.851motion was misplaced when
counsel was required to prepare for the predict storm surge that was going to flood counsel’s
home and office. Due to the 10 day disruption of counsel’s life and of his office directly
attributable to Hurricane Irma, counsel had misplaced this Court’s order and lost track of when it
arrived. His sense of time was disrupted and he thought the order issued at the end of August.
19. Mr. Byrd’s counsel first asks this Court to exercise its authority granted in
Administrative Order, SC17-67, to extend the time for filing a notice of appeal of this Court
August 22, 2017 order denying Mr. Byrd’s request for Rule 3.851 relief. With this motion,
counsel is also filing a notice of appeal on behalf of Mr. Byrd which if this Court grants this
motion would be rendered timely.
20. Alternatively, counsel asks this Court to re-enter the August 22 order and restart
the thirty day clock for filing a notice of appeal. Because Mr. Byrd told counsel to appeal if an
order was entered denying his motion to vacate, the law is clear that Mr. Byrd is entitled to have
an appeal heard even if counsel fails to file a timely notice of appeal. In Williams v. State, 777
So. 2d 947, 950 (Fla. 2000), the Florida Supreme Court noted that (“Williams' attorney indicated
that Williams asked him to file a notice of appeal should the postconviction motion be denied,
6
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but he failed to do so over confusion as to the date of the trial court's order denying the
postconviction motion.” The Florida Supreme Court held that a defendant is entitled to an appeal
of a motion to vacate when he has instructed counsel to file an appeal and a timely notice of
appeal did not get timely filed. Re-entering the August 22 so that a timely notice of appeal can
be filed will provide Mr. Byrd with the appeal to which he is entitled.
WHEREFORE, Mr. Byrd respectfully requests this Court to extend the time period for
filing a notice of appeal from the August 22 order denying Rule 3.851 motion so that the
accompanying notice of appeal is timely as Administrative Order SC17-67 authorizes, or in the
alternative, Mr. Byrd respectfully request this Court to re-enter its order denying Mr. Byrd’s
Rule 3.851 motion and allow Mr. Byrd’s counsel to file a timely notice of appeal.
Respectfully submitted,
/s/Martin J. McClain MARTIN J. MCCLAIN Florida Bar No. 0756773 McClain & McDermott, P.A. Attorneys at Law 141 N.E. 30th Street Wilton Manors, FL 33334 [email protected] (305) 984-8344
BRYAN E. MARTINEZ Staff Attorney, CCRC-South Florida Bar No. 0119286 Office of the Capital Collateral Regional Counsel-South 1 E. Broward Blvd., Ste. 444 Ft. Lauderdale, FL 33301 [email protected] (954) 713-1284
7
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above has been electronically
filed and electronically served on all counsel of record via the e-portal this 27th day of
September, 2017.
/s/Martin J. McClain MARTIN J. MCCLAIN Florida Bar No. 0756773
8
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Filing # 62038165 E-Filed 09/27/2017 01:03:35 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
STATE OF FLORIDA,
Plaintiff, CASE No.: 81-CF-010517
v.
MILFORD WADE BYRD
Defendant. ______/
NOTICE OF APPEAL
NOTICE IS GIVEN that MILFORD WADE BYRD, Defendant, by and through
undersigned counsel, appeals to the Florida Supreme Court, the Order of this court rendered on
August 22, 2017. The nature of the Order is the final order denying relief dated on Mr. Byrd’s
successive motion for Rule 3.851 filed on November 2, 2016, amended on March 13, 2017, and
supplemented on April 27, 2017.
1
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Appeal has been electronically filed and served to all counsel of record via the e-portal this 27th day of September, 2017.
______MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 NE 30th Street Wilton Manors, FL 33334 [email protected] (305) 984-8344
BRYAN E. MARTINEZ Staff Attorney Florida Bar No. 0119286 Office of the Capital Collateral Regional Counsel - Southern Region 1 E. Broward Blvd., Ste. 444 Ft. Lauderdale, FL 33301 [email protected] (954) 713-1284
Counsel for Mr. Byrd
2
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Filing # 65195225 E-Filed 12/11/2017 09:16:43 AM 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.: 81-CF-10517 vs. 6 Division: J MILFORD WADE BYRD, 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 December 6, 2016, commencing at approximately 11:00 13 a.m., reported by Mary E. Blazer, RPR.
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 Marilyn Beccue, Assistant Attorney General 18 Office of Attorney General 3507 East Frontage Road, Suite 200 19 Tampa, Florida 33607 On Behalf of the State of Florida. 20 Martin J. McClain, Esquire 21 141 Northeast 30th Street Wilton Manors, Florida 33334-1064 22 On Behalf of Defendant.
23 Also Present:
24 Staff Attorney
25
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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2
1 P R O C E E D I N G S
2 THE BAILIFF: Remain seated.
3 Come to order.
4 Court is back in session.
5 THE COURT: Good morning. All right.
6 Okay. Very good.
7 So if everyone can identify themselves for the
8 record.
9 MR. McCLAIN: My name is Martin McClain. I'm
10 here on behalf of Mr. Byrd, and it's through the
11 Office of Capital Collateral Regional Counsel for
12 the Southern Region. I also do cases with McClain
13 & McDermott, the law firm, so... It's CCRC.
14 THE COURT: Okay. Very good. Thank you.
15 MR. BECCUE: My name is Marilyn Beccue. I'm
16 with the Office of the Attorney General.
17 THE COURT: Okay. And, Mr. Pruner?
18 MR. PRUNER: Jay Pruner on behalf of the State
19 of Florida.
20 THE COURT: Okay. Very good.
21 Okay. So from what I understand from the
22 motion that was filed, this is a successive motion;
23 however, these are Hurst-related claims, correct?
24 MR. McCLAIN: Yes, Your Honor.
25 THE COURT: Okay. You can remain seated. You
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
P346 P347
3
1 don't have to stand up every time you talk to me,
2 that's fine.
3 So I guess the issue is what to do while we're
4 waiting for further instructions from the Florida
5 Supreme Court or the United States Supreme Court,
6 correct?
7 MR. McCLAIN: Yesterday I was over in Brevard
8 County on a similar motion, and the judge there
9 wanted me to go ahead with the case management as
10 opposed to staying or rescheduling. I know other
11 courts have done other things. For example, I just
12 got an order from Palm Beach County, somebody sent
13 it to me that was just entered yesterday in the
14 case of Jerry Halburton. And in that case the
15 Attorney General's Office agreed that it should be
16 stayed, the proceeding stayed until something came
17 from the Florida Supreme Court on Hurst and
18 retroactivity of Hurst.
19 I also know in Miami-Dade County in the case
20 of Harry Phillips, the state attorney agreed, let's
21 just reschedule it for February.
22 So different judges are doing different
23 things. I can proceed however you direct.
24 THE COURT: Okay.
25 MR. McCLAIN: If you want me to argue, in
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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4
1 essence, the case management stay, I can do that.
2 I just did it yesterday in another case, or we can
3 wait until we actually hear from the Florida
4 Supreme Court.
5 THE COURT: Right.
6 MR. McCLAIN: Which could be any given
7 Thursday.
8 THE COURT: Right.
9 All right. And so does the State have a
10 preference?
11 MR. BECCUE: Well, Your Honor, the State's
12 preference would be that you dismiss the petition
13 altogether. It is untimely. Mr. Bryd's conviction
14 has been final since 1986. Hurst has not been held
15 to be retroactive.
16 THE COURT: Right.
17 MR. BECCUE: So, therefore, he doesn't meet
18 any of these -- doesn't satisfy any of the
19 exceptions of the rule for timeliness.
20 I don't know anything about Mr. Halburton's
21 case. I can't speak for the Attorney General
22 there, but in this case the rules seem pretty clear
23 that the court should dismiss the motion.
24 MR. McCLAIN: Your Honor, I need to address
25 that. It's just wrong.
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
P348 P349
5
1 THE COURT: Sure.
2 MR. McCLAIN: I represented Mike Lambrix under
3 warrant back in January of this year when Hurst
4 came out. A 3.851 was filed. It was not found
5 untimely. It was found that it's up to the Florida
6 Supreme Court to determine retroactivity. The
7 Florida Supreme Court stayed the execution.
8 Clearly, the 3.851 was properly filed and gave the
9 Florida Supreme Court jurisdiction to enter stay to
10 address the issue.
11 When you look at the history of 38 -- excuse
12 me, 3.850, I've been here since January of '88, and
13 the process is that the motions filed within a year
14 of the decision. The State is setting up a Catch
15 22, where they don't want it filed until there's a
16 retroactivity determination, which may be after a
17 year has past and then you would be barred.
18 The law has been in Florida that you file
19 within one year of the decision and in that
20 proceeding you can address whether or not the
21 decision is retroactive. The history cited in the
22 State's pleading notes this very same thing
23 happened with Porter V McCall. Those 3.851s were
24 properly filed. Mark Hayes had had a 3.851. I
25 represented him under warrant. Florida Supreme
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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6
1 Court stayed that in March. Those are still
2 pending. If there wasn't jurisdiction entertained,
3 that wouldn't have happened.
4 In another case, Walton V State out of
5 Pinellas County. I represent him too. And Florida
6 Supreme Court, a 3.850 appeal was pending, and I
7 filed a motion to relinquish to consider a 3.851 on
8 the basis of Hurst; and the Florida Supreme Court
9 granted it, relinquished jurisdiction. Clearly,
10 the State's position is simply wrong.
11 THE COURT: Okay.
12 So, I think the most prudent course would be
13 to stay the matter and just wait to get further
14 instruction from the Florida Supreme Court. So,
15 obviously, if Hurst is not retroactively applied
16 then your motion would be susceptible to being
17 dismissed, correct?
18 MR. McCLAIN: There are three claims. Claim 1
19 involves the retroactivity of Hurst V Florida.
20 Claim 2, involves Hurst V State where the Florida
21 Supreme Court said it's an Eighth Amendment
22 violation. It's a separate issue than Claim 1.
23 Claim 1 is a Sixth Amendment violation, and
24 you have different retroactivity rules for Eighth
25 Amendment violation then you do for Sixth Amendment
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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7
1 violation.
2 And Claim 3 is not about retroactivity at all.
3 It's about the Swafford, Hildwin analysis which
4 says on newly discovered evidence claims, you look
5 to see is he likely to get a different sentence at
6 a future sentencing. It's not looking backwards.
7 It's looking forwards. And under Perry V State,
8 Hurst V State, the law now and in the future,
9 unanimity is required.
10 THE COURT: Okay.
11 MR. McCLAIN: So that has to be part of the
12 answer.
13 THE COURT: So the short answer is no, you're
14 not conceding that. So, that's fine.
15 So let's just -- I'm just going to stay the
16 matter and we'll see what happens when the Florida
17 Supreme Court issues an opinion. And then I will
18 give you further direction once I hear from the
19 Florida Supreme Court. So -- okay.
20 MR. McCLAIN: Yes, Your Honor.
21 MR. BECCUE: Okay. Thank you, Your Honor.
22 THE COURT: Thank you.
23 And, Mr. Pruner, if you can approach on an
24 unrelated matter.
25 MR. PRUNER: Yes, Your Honor.
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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8
1 (Concluded at 11:06 a.m.)
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AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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9
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 7th day of
18 December, 2017.
19
20 ______Mary E. Blazer, RPR 21 AOC Circuit Court Reporter
22
23
24
25
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
P353 P354
Filing # 65195225 E-Filed 12/11/2017 09:16:43 AM 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.: 81-CF-10517 vs. 6 Division: J MILFORD WADE BYRD, 7 Defendant. ______/ 8
9
10 TRANSCRIPT OF PROCEEDINGS
11 This case came on to be heard before the Honorable Michelle Sisco, Circuit Judge, at the 12 Hillsborough County Courthouse Annex, Tampa, Florida, on February 9, 2017, commencing at approximately 9:09 a.m., 13 reported by Mary E. Blazer, RPR.
14
15 APPEARANCES:
16 Marilyn Beccue, Assistant Attorney General 17 Office of Attorney General 3507 East Frontage Road, Suite 200 18 Tampa, Florida 33607 On Behalf of the State of Florida. 19
20 Martin J. McClain, Esquire (Appearing Telephonically) 141 NE 30th Street 21 Wilton Manors, Florida 33334-1064 On Behalf of the Defendant. 22 Also Present: 23 Staff Attorney 24
25
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2
1 P R O C E E D I N G S
2 THE COURT: All right. I have the next one is
3 Milford Byrd. And I have Martin McClain to appear
4 telephonically.
5 And are you also Ms. Beccue?
6 MS. BECCUE: I am, yes.
7 THE COURT: Let me get him on the phone.
8 MR. MCCLAIN: Law office.
9 THE COURT: Hi. Is this Mr. McClain?
10 MR. MCCLAIN: This is Mr. McClain.
11 THE COURT: Hi, Mr. McClain. This is Judge
12 Sisco calling from Tampa on the Milford Byrd case.
13 MR. MCCLAIN: Yes, Your Honor.
14 THE COURT: And I also have Ms. Beccue with
15 the AG's office present.
16 All right. So it looks like these are only
17 legal issues that the Court needs to rule upon; is
18 that correct?
19 MR. MCCLAIN: Well, at the moment, Your Honor,
20 since the motion was filed November 1st, I need to
21 amend that and file, in light of the cases that
22 have been handed down by the Florida Supreme Court
23 since then and the claims that have been created as
24 a result of the ruling, so I would ask for an
25 opportunity to submit the amendment sometime within
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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3
1 the next 30 days.
2 THE COURT: Okay. And what -- I'm just
3 curious, so you can give me some guidance, and the
4 State, what do you anticipate you're going to be
5 amending? What are going to be your new arguments?
6 MR. MCCLAIN: Well, I'm going to be addressing
7 the decisions that have come down in the meantime.
8 For example, Asay V State. That's A-S-A-Y.
9 THE COURT: Yes.
10 MR. MCCLAIN: Mosley V State, M-O-S-L-E-Y.
11 And in addition, there have been other cases:
12 Armstrong V State; Johnson V State that have been
13 addressed, currently related issues.
14 And for example, in Asay and Mosley, the
15 Florida Supreme Court did not use the binary
16 approach for Witt V State, which is a new
17 development, they have not done that before. And
18 four of the seven justices recognize the various
19 separate opinions that interject arbitrariness into
20 the capital sentencing process. And in so doing
21 creates an Eighth Amendment issue that now the
22 process is violating from -- towards it because the
23 difference between who gets executed and who
24 doesn't is turning upon arbitrary factors. So,
25 that's a separate claim.
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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4
1 But, in addition, the cases require me now at
2 the claim warrant to address what's contained in
3 Mosley V State, which is that there is an
4 alternative basis for getting retroactivity apply,
5 to get Hurst in Florida applied retroactively and
6 that is a fundamental fairness argument and showing
7 under fundamental fairness, it should be applied in
8 Mr. Byrd's case.
9 In addition, what's not addressed in Asay V
10 State is the retroactivity that Hurst V State.
11 Hurst V State came out October 14th, 2016. In
12 Hurst V State, the Court recognized under the
13 Florida constitution and under the Eighth Amendment
14 unanimity was required. If a single juror votes
15 for a life sentence, then a death sentence is not
16 an option. This is -- has not yet been addressed.
17 It was mentioned in Mosley V State in the opinion
18 that it did qualify for the Witt analysis; however,
19 the focus of the opinion generally then was on
20 Hurst V Florida as opposed to Hurst V State.
21 These are actual matters because recently
22 since the filing of the 3.851 and they need to be
23 addressed in the motion to vacate -- the amended
24 motion to vacate.
25 THE COURT: All right. State, any response?
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1 MS. BECCUE: Yes, Your Honor.
2 The State's position is that the Florida
3 Supreme Court has determined that Hurst is not
4 retroactive to cases prior to the United States
5 Supreme Court decision in Ring. Mr. Byrd's case
6 has been final since 1986, so we would object.
7 THE COURT: Okay.
8 MR. MCCLAIN: Your Honor, if I may respond.
9 That's just not true. That's not what the Florida
10 Supreme Court decided. Asay V State does make
11 mention of that. Mosley V State makes it clear
12 that the State's position is wrong as an
13 alternative basis for retroactivity.
14 THE COURT: Okay. All right. So I'm going to
15 give the defense the 30 days they've requested to
16 amend.
17 And then how many days does the State need to
18 respond?
19 MS. BECCUE: 20.
20 THE COURT: Okay. All right. So 30 days to
21 amend, Mr. McClain. The State will have 20 days to
22 respond.
23 And I will set this for -- then the pleadings
24 will be closed, right? We're done.
25 MS. BECCUE: Yes, Your Honor.
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1 THE COURT: The pleadings are closed and we
2 will reset this for a case management conference
3 on -- Mr. McClain, are you available April the 13th
4 at 11 a.m.?
5 MR. MCCLAIN: Yes, Your Honor.
6 THE COURT: And you can appear telephonically
7 as well, but please make sure if you intend to
8 appear telephonically that you contact my office in
9 advance of the hearing some day so that we can make
10 sure we have a good telephone number for you where
11 you can be reached.
12 MR. MCCLAIN: Your Honor, April 13th at what
13 time?
14 THE COURT: 11 a.m.
15 MR. MCCLAIN: 11 a.m. Thank you.
16 THE COURT: Okay. Very good. Thank you.
17 Okay. Bye-bye.
18 (Concluded at 9:14 a.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 7th day of
18 December, 2017.
19
20 ______Mary E. Blazer, RPR 21 AOC Circuit Court Reporter
22
23
24
25
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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Filing # 65195225 E-Filed 12/11/2017 09:16:43 AM 1
1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 2 CRIMINAL DIVISION
3 STATE OF FLORIDA
4 Case No.: 81-CF-10517 vs. 5 Division: J MILFORD WADE BYRD, 6 Defendant. ______/ 7
8 TRANSCRIPT OF PROCEEDINGS
9 This case came on to be heard before the Honorable Michelle D. Sisco, Circuit Judge, at the 10 Hillsborough County Courthouse Annex, Tampa, Florida, on April 13, 2017, commencing at approximately 10:04 a.m., 11 reported by Mary E. Blazer, RPR.
12 APPEARANCES:
13 Jay J. Pruner, Assistant State Attorney 419 North Pierce Street 14 Tampa, Florida 33602 On behalf of the State of Florida 15 Marilyn Beccue, Assistant Attorney General 16 Office of Attorney General 3507 East Frontage Road, Suite 200 17 Tampa, Florida 33607 On Behalf of the State of Florida 18 Martin J. McClain, Esquire 19 141 Northeast 30th Street Wilton Manors, Florida 33334-1064 20 and Bryan Martinez, Esquire 21 Capital Collateral Regional Counsel- S Office of the Capital Collateral 22 1 East Broward Boulevard, Suite 444 Fort Lauderdale, Florida 33301-1827 23 On Behalf of Defendant
24 Also Present:
25 Staff Attorney
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1 P R O C E E D I N G S
2 THE BAILIFF: Remain seated.
3 Come to order.
4 Court is back in session.
5 THE COURT: Hello. Oh, I have to grab my
6 notes, so come on up whoever is ready to go.
7 (Pause.)
8 Okay. I guess I'll just go --
9 MR. MCCLAIN: Milford Wade Byrd.
10 THE COURT: I'll go in alphabetical order
11 starting with Mr. Byrd.
12 And for the record?
13 MR. MCCLAIN: I'm Martin McClain.
14 THE COURT: Okay. Very good.
15 MS. BECCUE: Marilyn Beccue.
16 THE COURT: Okay.
17 MR. PRUNER: And Jay Pruner, state attorney's
18 office.
19 MR. MARTINEZ: And this is Bryan Martinez.
20 THE COURT: Okay. Come up, Mr. Martinez.
21 And so we're here for a case management
22 conference.
23 Are you asking for an evidentiary hearing or
24 is this just strictly legal issues for me to roll
25 up or down?
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1 MR. MCCLAIN: Well, in light of the statute
2 that was passed on March 13th -- or enacted on
3 March 13th, which was the day I submitted the
4 amendment, and I had in the amendment a claim
5 saying the statute, if it is enacted, is going to
6 create an issue. I did a motion to amend in light
7 of the statute. And under Sparre V State, I'm
8 entitled to do an amendment since this just
9 happened. The statute --
10 THE COURT: Are you talking about your
11 March 13th amendment?
12 MR. MCCLAIN: Well, the March 13th amendment,
13 if you'll look at the end, the last claim indicates
14 there may be a statute going into effect.
15 THE COURT: It has to be filed.
16 MR. MCCLAIN: I filed a motion to amend --
17 THE COURT: A more recent one.
18 MR. MCCLAIN: Tuesday.
19 THE COURT: Tuesday, okay.
20 MR. MCCLAIN: Based on the statute.
21 THE COURT: Okay.
22 MR. MCCLAIN: And the statute creates a
23 substantive right to not get a death sentence
24 unless there is a unanimous jury death
25 recommendation. And as a substitute right that
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1 under a number of cases has to be applied
2 retroactively since it applies to every homicide
3 case that goes to trial you can't pick and choose
4 which defendants because it's watershed under T.V.
5 Lane.
6 THE COURT: Okay. So, I guess you need to
7 respond to the amended motion.
8 MS. BECCUE: Well, we would object to him
9 filing an amended motion. Mr. Byrd's case has been
10 final since 1986.
11 THE COURT: Right.
12 MS. BECCUE: We already know that Hurst is not
13 retroactive and the new statute is procedural and
14 doesn't have any effect on his pleadings, but
15 clearly if the Court were going to grant the
16 amendment, we would like a chance to respond, yes.
17 MR. MCCLAIN: Your Honor, again Sparre V
18 State, 737 So.2d 509, says it's an abuse of
19 discretion not to allow an amendment based on
20 something new if the motion to vacate is still
21 pending. This just happened. It's a month old.
22 THE COURT: Okay. All right. So I'll allow
23 them to amend. How many days do you need to
24 respond?
25 MS. BECCUE: 20.
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1 THE COURT: Okay. And so then we need another
2 case management conference --
3 MR. MCCLAIN: Yes, Your Honor.
4 THE COURT: -- or even if -- I've allowed you
5 to amend, they're going to respond. So even with
6 this new argument, are you going to need an
7 evidentiary hearing or is this strictly me ruling
8 up or down on the law?
9 MR. MCCLAIN: Well, to the extent -- there is
10 one aspect of it that may require evidentiary
11 development and that aspect would be the effect it
12 would have on an attorney in terms of how they
13 would do the penalty phase different. How they
14 would have the jury instructed in compliance with
15 Caldwell versus Mississippi that the burden is on
16 them. Each juror individually has a right to block
17 a death sentence by voting against the death
18 recommendation.
19 THE COURT: So you would maybe call one
20 witness?
21 MR. MCCLAIN: Yes.
22 THE COURT: So I'll tell you what, let's just
23 go ahead and get a hearing date on the books so we
24 have.
25 MR. MCCLAIN: Yes, Your Honor.
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1 THE COURT: And then in the interim you'll get
2 an order from me and I'll either say yay, you still
3 have an issue, we need an evidentiary hearing, or
4 no, I ruled and I find these are all legal issues,
5 I'm ruling on them, and here's the ruling, okay.
6 So just to keep things moving, I think I've
7 got 60 days, correct?
8 MR. MCCLAIN: Yes, Your Honor.
9 THE COURT: So, all right. So, let's look at
10 May the -- excuse me, June the 9th, it's a Friday.
11 MS. BECCUE: I'm not available.
12 THE COURT: Okay. Are you available on the
13 6th or 7th or 8th?
14 MS. BECCUE: The 6th.
15 THE COURT: The 6th you would be.
16 MR. MCCLAIN: Your Honor, I have oral argument
17 in Atlanta on June the 5th.
18 THE COURT: Okay.
19 MR. MCCLAIN: So the 6th is not a good day for
20 me.
21 THE COURT: The 7th?
22 MS. BECCUE: I'll be in Tallahassee.
23 THE COURT: Okay. And the 8th you said --
24 MS. BECCUE: I'll be in Tallahassee.
25 THE COURT: Tallahassee, okay.
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1 Okay. Okay. I'm going to go ahead and put
2 this on the books June the 12th. Monday, June the
3 12th?
4 MR. MCCLAIN: Yes, Your Honor.
5 THE COURT: At 9 a.m.
6 MR. PRUNER: Judge, to the extent I would be
7 involved, I don't know what involvement that would
8 be, I just want to notify you that I'll be in a
9 jury trial at that time, but I think you can
10 probably proceed in my absence. I just want to let
11 you know.
12 THE COURT: All right. Very good. Like I've
13 said, we've set the hearing date. So we have it
14 set, but if you filed your most recent amendment,
15 the State has 20 days to respond. Then you'll get
16 an order from me in the interim, and then, as I
17 indicated, if I rule on all of the issues --
18 MR. MCCLAIN: But I'm going to be seeking a
19 case management under Huff V State where I argue
20 orally my claims.
21 THE COURT: Okay. So then we need to back up
22 then.
23 Let's strike that date.
24 Once the State files its response, how many
25 days -- you have what, 30, 60 days to have case
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8
1 management? 30?
2 Okay. So, the State's going to file its
3 response within 20 days.
4 Okay. So can we set this for status May the
5 25th? Case management, I mean?
6 MR. MCCLAIN: That's fine with me, Your Honor.
7 MS. BECCUE: That's fine, Your Honor.
8 THE COURT: Okay. So we're going to set Byrd
9 for case management May the 25th, 9 a.m.
10 MR. MCCLAIN: 9 a.m.?
11 THE COURT: Yes.
12 MR. MCCLAIN: Would you possibly move it to 11
13 a.m., like today?
14 THE COURT: No.
15 MS. BECCUE: Okay. No problem.
16 THE COURT: But I can do it later on the 24th
17 like at 11:00, if that would work better.
18 MR. MCCLAIN: Just in terms of plane schedules
19 getting over here, Your Honor.
20 THE COURT: Sure. Can you do --
21 MR. MCCLAIN: I can do -- I'll do the --
22 THE COURT: Can you do May 24th at 11:00?
23 MS. BECCUE: Yes.
24 MR. MCCLAIN: May 24th at 11:00.
25 THE COURT: Case management on Mr. Byrd.
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1 MR. MCCLAIN: Thank you, Your Honor.
2 MS. BECCUE: Thank you.
3 STAFF ATTORNEY: For clarification, the
4 June 12th date --
5 THE COURT: June 12th is stricken because
6 we're go back into it since the pleadings are still
7 open.
8 (Concluded at 10:12 a.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 7th day of
18 December, 2017.
19
20 ______Mary E. Blazer, RPR 21 AOC Circuit Court Reporter
22
23
24
25
AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
P370 P371
Filing # 65196512 E-Filed 12/11/2017 09:35:11 AM 1
1 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 2 CIRCUIT CRIMINAL DIVISION 3 4 STATE OF FLORIDA, Plaintiff, 5 Case No.: 81-CF-010517 vs. 6 Division: J MILFORD BYRD, 7 Defendant. ______/ 8 9 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 May 24, 2017, commencing at approximately 9:00 a.m. 12 13 14 APPEARANCES: 15 Jay Pruner, Assistant State Attorney 419 North Pierce Street 16 Tampa, Florida 33602 On behalf of the State of Florida 17 Marilyn Beccue, Assistant Attorney General 18 Office of Attorney General 3507 East Frontage Road, Suite 200 19 Tampa, Florida 33607 On behalf of the State of Florida. 20 21 Martin J. McClain, Esquire 141 Northeast 30th Street 22 Wilton Manors, Florida 33334 On behalf of the Defendant. 23 24 25 AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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2
1 (THE FOLLOWING PROCEEDINGS ENSUED IN OPEN 2 COURT.) 3 THE COURT: All right, Mr. Byrd. 4 MR. MCCLAIN: Byrd with a Y. 5 THE COURT: Pardon me? 6 MR. MCCLAIN: With a Y. 7 THE COURT: With a Y, yes. 8 And for the record. 9 MR. MCCLAIN: For the record, my name is Martin 10 McClain. McClain with two Cs. M-C-C-L-A-I-N. I 11 represent Mr. Byrd through CCRC-South. I am a 12 part-time assistant CCRC-South and I am 13 representing him. 14 THE COURT: I know we had some recent -- looks 15 like supplemental arguments that have been -- 16 motions that have been made. So, do we need to set 17 an evidentiary hearing or are these purely legal 18 issues for the Court to decide? 19 MR. MCCLAIN: As with the previous case, 20 Hannon, to the extent that the harmless error -- I 21 mean, what happened is the Florida Supreme Court 22 when dealing with Hitchcock error back in '88, '89, 23 had a case, Hall, Freddie Hall, the famous Hall, 24 who ultimately won on the intellectual disability, 25 they found Hitchcock error. He was presented in a AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 habeas corpus position and they were limited to the 2 record and they found it harmless. 3 Subsequently, it was presented in a -- back 4 then it was 3.850, was presented in a 3.850 and 5 there were affidavits from the attorneys about had 6 they known Hitchcock was the law and they could 7 present nonstatutory mitigation, they would have 8 done so. An affidavit of the available amount of 9 statutory mitigation that would have been 10 presented. 11 And the Florida Supreme Court granted relief 12 on that basis, even though they had previously 13 denied it as harmless. So to the extent that we 14 get to the harmless error analysis, that would 15 become relevant to have how it would impact the 16 penalty phase. 17 For example, you would do the voir dire 18 different. You would have Caldwell done 19 differently, because the jurors would know under 20 the new provisions that each juror individually 21 had the power to veto a death sentence. And just 22 so you're aware, here is important, Caldwell v. 23 Mississippi, of course, said there is a bias in 24 favor of the death sentence if they think 25 responsibility rests somewhere else. AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 THE COURT: That's if we get there if, if, I 2 understand, looking at harmless error. 3 MR. MCCLAIN: Yes. If we have harmless error, 4 we get there, yes, Your Honor. 5 THE COURT: And Mr. Byrd's sentence became 6 final on May 27th of 1986? 7 MR. MCCLAIN: Yes, Your Honor. 8 THE COURT: So understanding the State's 9 position, again, that these are purely legal 10 matters and we don't need to set an evidentiary 11 hearing? 12 MS. BECCUE: That's correct. 13 THE COURT: Okay. So, any additional argument? 14 MR. MCCLAIN: Absolutely, Your Honor. 15 THE COURT: Okay. 16 MR. MCCLAIN: First, I want to clarify 17 something, the State made reference to Gaskin. 18 Interestingly, in Gaskin the -- it was an appeal of 19 a 3.851, and the initial brief was filed in 20 November of 2015. And in a sentence right at the 21 end of the brief, referenced cert was granted in 22 Hearse. Mr. Gaskin has a better claim than Hurst. 23 That's all that was said. 24 Then the reply brief was filed on January 25 12th, 2016, without referencing Hurst. And AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 nothing was filed raising Hurst by the attorneys. 2 THE COURT: In Gaskin? 3 MR. MCCLAIN: So, Gaskin to the extent Justice 4 Pariente descent argues that under fairness he 5 should prevail -- it hadn't been raised by Gaskin. 6 And the majority opinion doesn't address it. 7 So to the extent the State relies on Gaskin, 8 it wasn't an issue, it hadn't been raised. It is 9 pending for a hearing. It has been pending for 10 like four months. It has been pointed out that 11 the Court made a mistake. So it had been a 12 reentry of the sentences, so it is actually a post 13 Ring case, according to the Motion for Rehearing. 14 Also, with reference to 3.851, it provides 15 that when a case has been declared retroactive, 16 not as to an individual, but when it has been 17 declared retroactive in law, you get to come in. 18 And whether it applies to a certain individual you 19 don't dismiss it, you consider it whether it 20 applies to an individual. The argument that you 21 are required to dismiss it is just wrong. Okay. 22 Starting with -- Your Honor, I don't know if 23 you have been informed, the U.S. Supreme Court 24 denied cert in Florida v. Hurst on Monday. 25 THE COURT: I heard. AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 MR. MCCLAIN: Since then there had been at 2 least five cases where there was a grant of relief 3 by a circuit court judge in Florida on the basis of 4 Hurst, where the State had filed an appeal and the 5 appeal had been dismissed. 6 Michael Nelson, Phillip Martin, Todd Zommer, 7 David Francis, Troy Merk. The State has -- as 8 soon as that cert came out they started dismissing 9 these appeals. 10 I also know that Your Honor had granted relief 11 on Hernandez Alberto. I don't think that the 12 State has filed an appeal yet in that case. My 13 guess is, in light of what they are doing in these 14 other cases, they probably won't. 15 I recognize that generally the sort of notion 16 has developed that June 24, 2002, is the magic 17 date, magic line. And for example, James Card on 18 May 4th got a resentencing because his cert was 19 denied on June 28, 2002. 20 What is interesting about Mr. Card's case is 21 it is a 1981 homicide. Final in 1984. The 22 conviction and death sentence originally. The 23 conviction's never been vacated. The conviction 24 is still final from 1984. He got a resentencing 25 in '98 because the judge had had the State on an AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 ex parte basis draft the sentencing order. That 2 lead to a resentencing. At the resentencing there 3 was a death threat and cert was denied four days 4 after Ring came out and he just got relief. 5 THE COURT: From who? 6 MR. MCCLAIN: The Florida Supreme Court. 7 THE COURT: On what basis? 8 MR. MCCLAIN: Hurst. 9 THE COURT: And how did they justify that? 10 What was their reasoning? 11 MR. MCCLAIN: Cert was denied in his case four 12 days after Ring, so it wasn't final until June 28, 13 2002. The death sentence wasn't final, even though 14 the conviction was final in '84. 15 THE COURT: Okay. Well, it seems like they are 16 sticking to their bright line test though, right? 17 MR. MCCLAIN: I can't argue that as to Hurst v. 18 Florida that's the situation, but that doesn't take 19 care of it. All that's been addressed by the 20 Florida Supreme Court is Hurst v. Florida and Hurst 21 v. State. 22 Hurst v. State didn't come out until October 23 of 2016. Most of the cases that have been 24 decided, the arguments based on Hurst v. State 25 hasn't been presented. Because Hurst v. State is AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 not a Sixth Amendment case. It is a Florida 2 constitution case and an Eighth Amendment case. 3 Hurst v. State says there is a right to a 4 unanimous death recommendation, that there is in 5 essence creates a presumption of life when you're 6 sentencing somebody on a homicide. Presumably, 7 you are getting a life sentence, unless the jury 8 unanimously recommends death. 9 What is also interesting about it, I know that 10 a lot of times the AG's office argues this is 11 procedural. And Schriro v. Summerlin comes up. 12 And in Arizona, just so it is clear, Ring v. 13 Arizona, when he got convicted of first degree 14 murder there, the jury was not involved at all in 15 the sentencing. No participation whatsoever. The 16 sentencing was from the judge only. And the judge 17 in his sentencing as a first step had to find one 18 aggravating circumstance to be able to consider to 19 be able to impose death. 20 In Schriro v. Summerlin the U.S. Supreme 21 Court, Scalia, I believe, wrote the opinion. He 22 indicated that there has not really been any sort 23 of empirical evidence establishing that a jury 24 verdict is more reliable than a judge's judgment. 25 So the majority in Schriro said, going from AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 the judge making the determination to the jury 2 making the determination, we really don't know 3 that enhances reliability. 4 In Florida, the jury was a co-sentencer. The 5 U.S. Supreme Court said in Lambert v. Singletary, 6 that the jury is a co-sentencer, a coactor. The 7 Florida situation is entirely different than in 8 Arizona. If we are not going from having the 9 judge make a final decision by himself to the 10 jury, we're going from the situation where the 11 jury returned an advisory verdict -- we were told 12 it was advisory -- by a majority vote that was a 13 recommendation that could be overwritten. But 14 they were in co-sentencer. They participated. 15 They were an integral part. That's what all the 16 case law says. They were a necessary part. 17 We've now gone -- it is not advisory anymore. 18 It cannot be overwritten. It is controlling. And 19 we have gone from a majority vote to unanimity. 20 That would be like going from preponderance of the 21 evidence to beyond a reasonable doubt. And we 22 know that's substantive. That's a substantive 23 change, that's not a procedural change. And its 24 whole purpose, as was explained in Hurst v. State, 25 not in Hurst v. Florida. It's not in there. AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 Nowhere in Hurst v. Florida. 2 In Hurst v. State it was explained that the 3 purpose of this is we will have more reliable gut 4 determinations. It is to enhance reliability, 5 exactly what was missing in Arizona, according to 6 Schriro. This will improve reliability. That's 7 what the Florida Supreme Court said in Hurst v. 8 State and cert has been denied on that. 9 Its purpose is to improve reliability. What 10 is also implicit in that ruling is the notion that 11 previously the older death sentences are less 12 reliable. A recognition that they are less 13 reliable violates the Eighth Amendment. Because 14 the states are obligated under the Eighth 15 Amendment, under Johnson v. Mississippi, to be 16 concerned about reliability. That's the purpose. 17 It is supposed to be making sure they are 18 reliable. 19 Florida has an interesting distinction. Over 20 the years Florida has had the most exonerations 21 from death row of any state in the country. Even 22 on a per capita basis. Not just numerical. There 23 is an obvious reason. And that was because it was 24 a majority vote by the jury that could be 25 overwritten by the jury. Individuals who are AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 guilty have less mitigation -- individuals who are 2 innocent have less mitigation because they didn't 3 do it. And they are more likely under the old 4 system to get a death sentence which, again, goes 5 to show unreliability. It's unreliable. 6 Florida courts recognize it's unreliable, it's 7 empirically unreliable, and now we have Chapter 8 2017-1. Under Florida law the legislature cannot 9 constitutionally pass procedural rules or 10 procedural harm. It is a violation of separation 11 of power. 12 What is also interesting, those things 13 actually had adopted Chapter 2016-13 in March of 14 2016, after Hurst came out. And that's when they 15 first did away with the judicial override. And 16 that's when they first went from a majority vote 17 to a super majority vote. Indicating that Florida 18 society, Eighth Amendment notions involving 19 standards of decency were evolving. There was a 20 consensus. And that wasn't required. Hurst v. 21 Florida didn't require that. That was the 22 legislature deciding on its own to do away with 23 the override and to go to a ten-two requirement. 24 They took the first step, freely. Reflecting the 25 values of Florida's society. AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 Now, the court in Harry v. State said it has 2 to be unanimous under the Florida constitution. 3 What is interesting is what the Florida Supreme 4 Court did next. They didn't fix it. Because it 5 is not procedural. If it were procedural the 6 Florida Supreme Court would have fixed it. The 7 Florida Supreme Court has not been shy on the 8 notion that the legislature cannot -- for example, 9 with the death penalty reformat it was struck down 10 as a violation of separation of powers because it 11 was procedural. 12 The Florida Supreme Court passes procedural 13 rules all the time. They change the number of 14 pages that a brief can be. They change the number 15 of pages that a 3.851 can be. They move it from 16 3.850 to a 3.851. They can make procedural 17 changes. This is not a procedural change because 18 we know that because they said in Perry versus 19 State they were leaving it to the legislature. 20 In fact, previously in the case of State v. 21 Steel in 2005, they said we really should do 22 something about this majority vote override 23 situation, legislature, it's your job, please do 24 something, because it is substantive. 25 And what does that mean? If it is AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 substantive, Florida law has said for the 2 legislature to create rights, to establish rights. 3 It's a right and if it's a right to a life 4 sentence, unless the jury returns a unanimous 5 death threat, what does it attach to? If it is 6 procedural it could attach to the sentencing 7 proceeding. If it is not, it is substantive, it 8 attaches to the defendant who has been convicted 9 of first degree murder. 10 All of the decisions regarding the 11 significance of June 24, 2002, and the date that 12 Ring came out having addressed the passage of 13 Chapter 2017-1, which was enacted on March 13 of 14 2017, and created a substantive right that 15 attaches to a conviction finality date. 16 James Card's conviction was final in 1984. To 17 the extent that he is getting the benefit of this 18 and Mr. Byrd, whose conviction was final after 19 that, we are back to the situation that happened 20 after Ring came out, where the Florida Supreme 21 Court struggled with it in Bodison and King. 22 Didn't do anything. And 14 years later it's been 23 established they were wrong. Ignoring the fact 24 that James Card with a conviction finality date of 25 1984, is getting the right to a unanimous jury. AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 Mr. Byrd isn't. Is to ignore the obvious. 2 THE COURT: Well, I tell you what, if you 3 can -- I assume you will make that argument 4 directly to the Florida Supreme Court. 5 MR. MCCLAIN: Yes. 6 THE COURT: Okay. 7 MR. MCCLAIN: But I need to preserve my record. 8 THE COURT: I understand. And I am going to 9 give you five more minutes to preserve your record. 10 MR. MCCLAIN: Yes, Your Honor. 11 Jay v. Parker, 1982 homicide, finality date 12 1985. He had two co-defendants, Alphonso Pave and 13 John L. Bush. John L. Bush was executed in 1985. 14 Alphonso Pave got a resentencing from the 11th 15 Circuit in '91. Had a resentencing in the mid 16 90s. Got another death sentence. But in the 17 course of his resentencing Brady material 18 regarding Jay v. Parker surfaced, which caused him 19 to get a resentencing. Which when he got death it 20 wasn't final until after Ring. He just got a 21 resentencing order and so far I think the State 22 filed notice of appeal. They have not seen a 23 dismissal yet of that appeal. It's only been a 24 couple days since Florida v. Hurst came out. 25 Jay v. Parker and Card are both finality dates AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 before Byrd. 2 The arguments are in this chain of sequence of 3 events Hurst v. Florida is the least significant. 4 It's the least significant. That is unleased 5 these dominoes, these series of events where the 6 legislature first changes that, overrides what the 7 super majority can do, went to the ten-two and the 8 Florida Supreme Court said, it has got to be 9 bigger than that, than Hurst v. State. And now 10 the legislature adopted a new statute. 11 The manner in which the retroactivity analysis 12 is being conducted is itself a violation of Ferman 13 v. Georgia. But more importantly, the statute, 14 the statute is the biggest thing. It is a 15 legislative determination. And when we -- before 16 Adkins v. Virginia came out, barring the execution 17 of intellectually disabled, the Florida 18 legislature adopted its own bar. And they tried 19 to apply it only to people who hadn't yet been 20 sentenced and not affect people who have already 21 been sentenced. And that didn't stand. This is 22 the same thing. 23 Under -- under the statute the legislature has 24 determined it is the little upheaval not to 25 execute individuals unless 12 jurors agree it is AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 appropriate. 2 And Florida Supreme Court has said, that will 3 make it a more reliable determination. To allow 4 death sentences to be carried out because they are 5 old, they are less reliable, violates the Eighth 6 Amendment. Juveniles who got death sentences 7 before the ban on giving death sentences to 8 juveniles, they're already dead. This is no 9 different. And you have the power to do that now. 10 Beyond that I will rely on my brief. 11 THE COURT: Okay. Thank you. Ms. Beccue. 12 MS. BECCUE: Very briefly, Your Honor. 13 Mr. Byrd's conviction sentence was final in 1986. 14 He did have a unanimous recommendation. 15 MR. MCCLAIN: Objection -- 16 MS. BECCUE: I did not interrupt you. 17 MR. MCCLAIN: That is not true. 18 MS. BECCUE: I did not interrupt you. We would 19 rely on our pleadings. There is one thing that I 20 did want to point out. I don't see it in my file 21 here. 22 Mr. McClain had indicated the Florida Supreme 23 Court has never said that Hurst v. State is not 24 retroactive. And they did in an order, which I 25 recognize is not an opinion, and I'll supplement AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 that this afternoon. 2 MR. MCCLAIN: Your Honor, that's Archer v. 3 State -- Archer v. Jones. I filed a Motion for 4 Rehearing in that case. The State just filed its 5 response. It's pending. It was a two sentence 6 order that's not published and is -- has no 7 precedential value. 8 But more importantly, it's false to say it was 9 a unanimous verdict in Mr. Byrd's case. The 10 testimony at the evidentiary hearing that happened 11 previously established no one knows what the vote 12 was. 13 THE COURT: Okay. All right. So I do find 14 that these are purely legal issues for me to rule 15 upon. I am not going to set an evidentiary hearing 16 on the pending -- Mr. Byrd's pending 3.851. So you 17 will get an order from me within 90 days. 18 MR. MCCLAIN: Thank you. 19 MS. BECCUE: Thank you. 20 THE COURT: All right. Thank you. 21 (THE PROCEEDINGS WERE CONCLUDED.) 22 23 24 25 AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
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1 CERTIFICATE OF REPORTER
2 STATE OF FLORIDA 3 COUNTY OF HILLSBOROUGH
4 I, Natalie Lama, AOC Circuit Court Reporter, 5 hereby certify that I was authorized to and did report the foregoing proceedings had in the previously-styled 6 cause; and that the preceding transcript attached hereto is a true, accurate, and correct computerized 7 transcription of said proceedings.
8 I further certify that I am not employed by or related to any of the parties in this matter, nor am I 9 financially or otherwise interested in this action.
10 IN WITNESS WHEREOF, I have hereunto set my hand in Tampa, Hillsborough County, Florida. 11 12 13 ______Natalie Lama 14 AOC Circuit Court Reporter 15 16 17 18 19 20 21 22 23 24 25 AOC CIRCUIT COURT REPORTERS HILLSBOROUGH COUNTY, FLORIDA
P388 CLERK OF THE CIRCUIT COURT PO BOX 1110 TAMPA, FLORIDA 33601-1110 813-276-8100 CASE NO: 81-CF-010517-A APPEAL NO: 17-1733
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 344 CONTAIN A CORRECT COPY OF
THE APPEAL RECORD IN THE CASE OF
MILFORD WADE BYRD 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 T9, T1 TO T7, T1 TO T10, T1 TO T18 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 11TH DAY OF DECEMBER, 2017.
81-CF-010517-A,Isomar Molina 12/11/2017 10:48 AM ______AS DEPUTY CLERK 81-CF-010517-A, 12/11/2017 10:48 AM