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IN the 1St District Court of Appeal IN THE 1 st District Court of Appeal TALLAHASSEE, FLORIDA CASE NO. 16-1994-CF-012188-AXXX-MA DIVISION CR-A APPEAL NO. N/A RONNIE FUSSELL, GARY RAY BOWLES Appe11ant_, CLERK VS OF THE CIRCUIT AND Appeuee COUNTY COURTS STATE OF FLORIDA RECORD ON APPEAL VOLUME 1 Appeal from the Circuit Court Duval County, Florida Francis Jerome Shea ATTORNEY GENERAL FOR APPELLANT FOR APPELLEE IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA GARY RAY BOWLES CASE NO: 16-1994-CF-012188-AXXX-MA DIVISION CR-A APPELLANT STATE OF FLORIDA APPEAL NO: N/A APPELLEE VOLUME 1 MOTION) STATE'S RESPONSE TO DEFENDANT'S SUCCESSIVE 06/26/17 29-41 RELIEF IN LIGHT OF HURST V. FLORIDA AND HURST V. STATE -1 SENT. SUCCESSIVE 3.851 IN LIGHT OF HURST V. FLORIDA AND HURST V. STATE 0302 Page 1 of 1 CERTIFICATE OF CLERK STATE OF Florida, 16-1994-CF-012188-AXXX-MA COUNTY OF DUVAL N/A I, RONNIE FUSSELL, Clerk of the Circuit and County Courts for the County of Duval, State of Florida, do hereby certify that the foregoing pages 01 to 054 inclusive contain a correct transcript of the record of the judgment in the case of vs. GARY RAY BOWLES and a true and correct recital and copy of all such papers and proceedings in said cause as appears from records and }401lesof my of}401ceand that have been directed to be included in said record by the directions furnished to me. VOLUME 1 PAGES 001-054 In Witness Whereof, I have set my hand and af}401xedthe Seal of said Court this 25th day of September, A.D. 2017. RONNIE FUSSELL, CLERK OF THE CIRCUIT AND COUNTY COURTS OF DUVAL COUNTY /S/ Adanna Russell BY ADANNA M RUSSELL Deputy Clerk 501 West Adams St. Room 1262 Jacksonville, FL 32202 (904) 255-2206 Email:[email protected] 030\._\l§<.030\«.\-030k\030030=)W031 ._:-030A031HE cm V- ;:;"' 0* we 2:030! n'..%Q0342-..?)3' 030"0C6 at '3 at '. 030 :' * 3 J2!!!030{'4' %3'05...030wJ 030I...3':¢°Y }401t!034 'lcuoc0' _;'f 5}034 030:3 I030030Rik\030c\..§""254= Filing # 57762116 E-Filed 06/14/2017 03:25:40 PM 030IN030THE "CIRCUIT:COURT OF-THE FOURTH .T_UDICIAL_CIRC_U_IT IN AND030FORDUVAL COUNTY, FLORIDA - 'STATE OF FLORIDA, _ "Plaintiff," " v; ' Case No. 1994-CF.-1-2188 _ GARY RAY BQWLES, Defendant _ I . _______J . DEFENDANT031SSUCCESSIVE.RUL_E 3,851]MOTIONIFOR.POST024CQNVT[C1TIQNRELIEF. IN L_IGI_~IT O11 HURST y; FLORIDAAND HURST Vs STATE Defendant; .thxough.coun's'e1, moves 030forpost:oony°ict1oh relief034fromhis sentenceof death under the Sixth and.Eighth030.;:5L1nend1nentsin light of-Hurst v. Florida, 136 S; Ct-.' 616 (2016), and Hmfsf. V. State,.202 So.'..3d 40 (Fla. 2016),'cert._ d_enie_d, No, 16-998, 2017'WL.635999 030(May22, 2017). See Fla_.030R_.; P.-- 3.851(e)(-2)._ , _I. Background In 1996, Defendant pleadedjguinilty to }401r'st-degreernurdenin the Circuit Court, Fourth Judicial ,Circuit, Duval County. The="030ac1V/isory035jury recommended the death penaltyvby ayote of 10-2. See 'Bow1es' v. State, 716 So--12d 769, 7.70 (Fla. 1998):. Onappeal, the F1orida_Sup1:eme Court Vacated" 'Defendant031ssentence and remanded for. anew sentencing: Id. at 4773. - On remand, the 034advis_ory035,juryunanimovusly recommended the death penalty- Bowles V: _State,- 804 _So,__'-2'd "1173 (Fla. -200'l__). The. court, not the"j:uryj,'then' made the }401ndingoffact "required to. firnpose a death sentence under,F1orida'1'a'W... 030Thecourt found030thatthe folloyvingétggravating factors =1iacl'been030prov'enbeyond a.r'ea'sonable doubt: (1)030Defendantwas convicted oftwo othervcapital felonies and" two other violent. felonies; (2) Defendant was onprobation when he_ committed the .murder_;_'(3) Defendant c_on11nitte_d the murder during a robbery or an attempted robbery, and the 'rnurder~we_.s cornm_itted for pecuniaryygaing-_(4)'t11e 030n1urderwas ~heinou's, atrocious, or cruel; and (5) ' the murder, was 030cold,"calculated, andtpremeditated. :Id. at 11175. 030 . 1 - ACCEPTED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 06/15/2017 11:27To0355030AM PAGE # 1 The trial court found the following mitigatingfactors: Defendant hadan "abusive childhood; Defenclantihad a history"ofalcoholism landabsence of a father030}401gure; D'efendant?'s' lack of education; (4) Defendant031sguilty plea and cooperation with police "in thisand other cases; (5) 'Def_en'c'la_nt031suseof into)_;icant_s__ at_*th_e_ time of the murder; and (6) the .circ1_1ms_tances that caused Defendant to leave home_and030his_circumstances a'fter_"he035,left-030home.Id. The co_urt,'not the jury, then. 030t'o'1'1nd.beyondaieasonahle doubt thatthose agg_raVators'w'e're 034sufficient035to impose the death. penalty, and that the'aggr'avators were not outweighed by-the mitigation. Based upon:'its.fact024finding; -the court sentenced Defendant to death, and the Florida Supreme Courtaf}401mied;_Id_._' at l__1_84, The United States Supreme Court denied D_efendant031spetition for a writ of certiorari'on J_'une*"17,;2002_. Bowles v..Fl0rida, 536 U_.S.:930 (2002). T'he;Florida035Sup'reme-Courtlater af}401nnedthe denialjof 'Defendant.031sinitial Rule 3.851 1n'otio'nt for posts-conviction relief. Boiiiles v". Shara. 979 So. 2d 182 I (Fla. .2008).- In 2Q08-, Defendant fileda petition for federal habeas _corpus.re1iefin_the030UnitedStates 031District_C_ourt.Bowles v.030Sec 031y,Florida Dep 031t.__of_Corrs.,No. 3:08:-cv-.791-I-ILA, ECF No.11 Fla. "Jun. 8,'2008).Tl1e030districtcourt deniedthe petition, "and. he United States Court ofAppealsfor the030 Eleventh Circuit'.af}401rnied;Bowzes v. sec 031yforDep030031t¢fCoi~i~s., 608 F.3d 1313, 131'7'(11th.Cir.;2010)L In 2013',_ Defendantf}401leda successive.030-mot_ion_forpost-cohnyiction relief in state court. Doc.031No.0301-566.-. This Court denied Defendant031sjn1otion_.,}'Doc._No., _157_3. II. Grounds for relief . CLAINI1: DEFENDANT031SDEATH SENTENCE ISUNCONSTITUTIONAL UNDER THE SIXTH"'AND EIGHTH AM.'EN_Dl__\{IENT__S INLIGHT OF 034HURSTV.034FLQRIDA AND HURST STATE030 Defen_dant031_sdeath sentenceis unconstitutional underthe Sixth and Eightli Amendmentsfin light of'Hu'r.s't v. ,FIoridd&irz2l Hurst. v. State. The Hurst decisions" areretroactive to Defendant under035 the f11ndarnerita1~fain1ess test; the traditional retroactivity analysis established in Witt. v..:Sta'ze,_ 387 So. 2d 922 (1980); and._federa1 retroactiVi_ty principles, 031Tl__1eState cannot meet its burden of proving030 beyond;a reasonable doubt that_the..Hurst_ errors were,h_arrnless.; Accordingly; fo_r'_tl_'1e:_reasons explained below,__ Defendant respectfully requeststhat this Court Vacate his deathsentence. A. Défcndant031ssentence.-is unconstitutional'under Hursfv. Florida and Hurst v. State r 030 2 In Hurst030v. Florida, the United States __Supreme Court invalid_ate_d 'Florida.031_s__capital sentencing statute030,which allowed for imposition of a death. sentence only after (1) apenalty phase rendered vanadvisory ver'(lict,without specifying"the factual basis for its recommendation, and (2) I notwithstanding 030the-recommendationof a majority of the jury,-the-tria_1 co_urt'found as f_act=-that aggravating circumstances were proven beyond a reasonable :'doubt,the_a_ggra_v_ators were sufficient to 030:impose'thedeatl1_penalty, and the?agg_ravators"were not outweighed by the mitigating; circumstances. 136 S. Ct. at.,62(030),02421.Critical facts foun'd.b_y"thejudge "alone includedi (ll) the aggravatihgifactors that. 'were_proven' beyond-a reasonable doubt; (2) whetherfthose aggravators were 034sufficient035to justify the deathpenaltyg and (3) wl_1__ether_thoseaggravators outweighedthemitigation. The Supreme Court035held -that1_?lorida031scapital sentencing schemewas unconstitutional because."030F1oridadoes notrequire the" jurytojmakei c1itical.}401ndin"gsnecessary_to' impose" the death pe'nalty,"031b'ut'ratl1e'r,- .034requir'es"ajudge" to .fir1d.these facts." Id. at 622. 030 I'n.Hurs't"v. State, the Florida Supreme Courtruled that; iiiaddition to'the'federal constitutional requirements set forth_'in_I-Iurst v. Florida, _the state constitution required-that capital defendants be afforded additiona1_protections. "First, the Florida..'Sup'reme Court ru1edthat_,.in additionto the Sixth Amendment, 'the"Eighth Amendment.requires"unanimousjury facti}401nding031that speci}401caggravating circuinstances were p031r030o031ve030i1,that the aggravating circumstances are suf}401cientto impose the death" penalty, and that the aggravating circumstances outweigh the mitigating circumstances. '-Each of 030those.030findingsoffact, _t_he030_Flo1ida'Si1preme"Court held, 1_nu_st- be made by all ofthe 030jurors.bVey_o_nd034a 030reasonabledoubt. Hurst v._ State, -202-_S,o. 3d at'53-A59, fSecond_, thejFlorida Supreme031Court 030ruledthat 030claimsby030Florida'_'prison'ers030underHurst must be subjectedto individualized harmless error.review, 030and.tl1at=sucl1.revi'ewplaces theburden onthe state "to" prove beyond a reasonable doubt that the Hurst errors didnot affectrthe-jury031~srecommendation. 030Id.at '67-68. Ruling in Hurst031sfavor, the:F1orida Supreme Court wrote: 034aftera.detai_led review of -the evidence;presented as.proofof the aggravating factors and 030evidenceof"substantia'l,miti_gation,v we are not so sanguine as _to conclude that Hurst031s~jury'wou1dwithoutajdoubt have found both. aggravating factors024and,as importantly; that the jury" would have foundthe aggravators 'sufiicie"nt to. impose death and thatthe"-aggravatingffactors030outweighedthe'mitigation.-031l"Id. at 68... Articulating {principles similar to those in" Ca'lclwell030v.030Mississippi,47?. _U._S_. 320 (l985)030,j'th_eCourtgernphasized that; 034wecannot determine wha_t_ aggravatorsg
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